Iraq, Iraqi constitution, international law
This chapter examines the project of transformative occupation undertaken by the United States and its allies following the invasion of Iraq in 2003. More specifically, it considers the Iraqi occupation in light of two competing sensibilities in international legal argument. On one view, which I term “legal formalism”, the purpose of international law is eclectic, intersubjective and value-pluralist: to create the conditions for peaceful coexistence between different political orders and ways of life. This view is commonly associated with the liberalism of the United Nations Charter which posits both the subject of international law and its liberty in formal terms as “the state” and “sovereign equality” respectively. On a rival view, which I term “instrumental anti-pluralism”, the purpose of international law is to project a universal regime based on a rationally reconstructed and universally authoritative morality. Here the identity of the sovereign as a subject of international law is understood in material terms as “the liberal democratic state” and sovereignty is understood as the equal treatment of legal subjects so defined. The chapter argues that that the attempt to transform the Iraqi constitutional structure via military occupation illustrates the complex dialectic between the formal and instrumental views, a dialectic that oscillates precariously between imperial imposition in the name of liberal democracy on the one hand, and a desperate attempt to secure internal legitimation for the new political order on the other. The role of international law in this process is ambiguous and paradoxical. On one hand, the law assumes an instrumentalist anti-formal guise facilitating the external project of imposing subjective material norms on a resistant political order. On the other hand, it provides a formal anti-instrumental site of deliberation, contestation and struggle critical to the internal project of the emergence of a distinctly Iraqi constitutionalism. The contradictions generated by this dialectic allow us to see how international law both constructs and mediates between certain “internal” and “external” forms of rationality.
International Law, Human Rights and the Transformative Occupation of Iraq, in The Role of International Law in Rebuilding Societies after Conflict: Great Expectations. 64 (Brett Bowden et al. eds., Cambridge University Press, 2009).