Greg Fox on the U.S./Iraq Status of Forces Agreement: Bringing Iraqi Law and International Law into the Debate

Greg Fox of Wayne State University Law School has posted a new article on SSRN that examines the proposed US/Iraq Status of Forces Agreement (SoFA) from a unique angle. Discussions in U.S. academic journals and blogs have tended to focus on the constitutionality under U.S. law of the Administration pursuing the completion of a long-term security arrangement with Iraq under the auspices of a SoFA that is not submitted to Congress. But Greg’s analysis looks at the SoFA from through the optics of Iraqi law and politics as well as international law and asks what would be the result if the Iraqi Prime Minister “approved” the SoFA but the Iraqi Parliament did not.

The article abstract begins:

The United States and Iraq are about to conclude a Status of Forces Agreement (SOFA) designed to replace UN Security Council resolutions as the legal basis for a continued U.S. troop presence in Iraq. But it appears the Iraqi Prime Minister and the Iraqi Parliament are divided on the desirability of a SOFA, the former favoring the agreement and the latter opposing it. Because the United States has pushed very hard to complete an agreement, one possible scenario is that the Iraqi Parliament will refuse to ratify the SOFA. What would happen if the Iraqi Prime Minister nonetheless signed the agreement, representing that his signature was sufficient to bind the state of Iraq?

Few dispute that such an act would violate the 2005 Iraqi constitution, which requires parliamentary approval of all treaties. This article inquires into the international legal effect of such a national law violation. It concludes that under Article 46 of the Vienna Convention on the Law of Treaties, the SOFA would be voidable at the discretion of future Iraqi governments…

Thus, rather than rehashing the arguments over Executive versus Congressional power under U.S. law, this article frames the issues within Iraqi domestic law and the international law of treaties. A welcome addition to the debate over the Iraqi SoFA.