Posted on | August 23, 2009
All CPA Regulations, Orders, Memoranda and Notices can be found on the CPA Official Archive site.*
The CPA legislated by edicts signed by Paul Bremer, the ‘Administrator’. Regulation Number 1 signed 16 May 2003, states that it is made “Pursuant to my authority as Administrator of the Coalition Provisional Authority (CPA) relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war”.
Section 1(1) states that the CPA “shall exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration . . .” and Section 1(2) states that “The CPA is vested with all executive, legislative and judicial authority necessary to achieve its objectives . . .”.
These are sweeping powers. On 22 May 2003, six days after CPA Regulation 1 was signed (despite the Regulation purporting to act under its authority), UNSC Resolution 1483 was adopted , and it states:
The Security Council . . .
Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the “Authority”)
. . .
4. Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future;
5. Calls upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907;
. . .
9. Supports the formation, by the people of Iraq with the help of the Authority and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognized, representative government is established by the people of Iraq and assumes the responsibilities of the Authority;
The first Official Gazette of the CPA era was published on 17 June 2003 marked ‘revised first edition’. It contains another version of Regulation 1, with identical content but now purporting to have been issued on 23 May 2003. It also contains Order 1 (De-Ba’athification) which is still dated 16 May 2003 and which merely references “relevant UN Security Council resolutions, and the laws and usages of war” and a number of other orders post dating and expressly referencing UNSC Resolution 1483.
Section 2 of CPA Regulation 1 states that:
Unless suspended or replaced by the CPA or superseded by legislation issued by democratic institutions of Iraq, laws in force in Iraq as of April 16, 2003 shall continue to apply in Iraq insofar as the laws do not prevent the CPA from exercising its rights and fulfilling its obligations, or conflict with the present or any other Regulation or Order issued by the CPA.
Section 3 states:
In carrying out the authority and responsibility vested in the CPA, the Administrator will, as necessary, issue Regulations and Orders. Regulations shall be those instruments that define the institutions and authorities of the CPA. Orders are binding instructions issued by the CPA . . . Regulations and Orders shall take precedence over all laws and publications to the extent such other laws and publications are inconsistent.
Section 4 states:
The Administrator may issue Memoranda in relation to the interpretation and application of any Regulation or Order. . . The provisions of Section 3 shall apply to the promulgation of CPA Memoranda.
It had long been the case in Iraq that, unless otherwise stated, laws were regarded as coming into force when published in the Official Gazette (e.g. as stated in Article 64(A) of the 1970 constitution as amended). Although the CPA legislation all states that it comes into force upon the date of signature, most of it was also published in the Official Gazette. Iraqi legal practitioners works and textbooks and the texts of proposed amendments to the CPA legislation issued by the Council of Representatives all appear to presume that only such published CPA legislation ever had force.* Unlike Regulations, Orders and Memoranda, Public Notices were not published in the Official Gazette. They do not ever appear to have been regarded by the CPA or Iraqi lawyers to have had the force of law.
Ali Allawi, who served as Minister of Defense and Minister of Finance, wrote in The Occupation of Iraq: Winning the War, Losing the Peace (2007) that “the ‘legality’ of Bremer’s Orders was always a contentious issue. The Iraqi judiciary was loath to implement the more controversial aspects of Bremer’s decrees, and a number of them were left to gather dust.” By the end of the CPA’s tenure in 2004, many Iraqi lawyers and judges increasingly procrastinated in implementing or interpreting some of the CPA’s laws, preferring the established Iraqi version if it contravened the CPA’s orders. “Enforcement of the Orders,” Allawi thus concluded, “was an ongoing problem.”
That said, the 2004 Transitional Administrative Law in Article 26 does state that:
The laws, regulations, orders, and directives issued by the Coalition Provisional Authority pursuant to its authority under international law shall remain in force until rescinded or amended by legislation duly enacted and having the force of law.
The CPA’s final Order, No. 100 transferred the Administrator’s powers to the Prime Minister and the CPA’s powers to the Iraqi Interim Government.
The 2005 Constitution does not refer to the CPA legislation directly. It does state in Article 143 with regard to the Transitional Administrative Law that:
The Transitional Administrative Law and its Annex shall be annulled on the seating of the new government, except for the stipulations of Article 53(A) and Article 58 of the Transitional Administrative Law.
Article 130 states:
Existing laws shall remain in force, unless annulled or amended in accordance with the provisions of this Constitution.
Iraqi practitioners books do publish the CPA legislation alongside the texts of the earlier laws they purport to amend. However, unlike other amendments the CPA amendments are not usually incorporated into the original texts. It is as if they are kept apart – tacitly recognised but in bad odour. There has not been a case before the Federal Supreme Court challenging the very basis of the CPA legislation. Until that question is determined in that forum, the most common view taken appears to be that the CPA legislation, where it has not been expressly repealed, has the force of law in Iraq but that even where there is a desire to keep some of the CPA amendments made, it is desireable to replace the CPA laws with legislation passed by an Iraqi legislature.
In the Kurdistan Region of Iraq, Kurdish members of the government, legislators, judges and lawyers do not regard the CPA legislation (nor any other post 1992 Baghdad legislation) as having effect within the Region, save where the matters legislated are amongst the exclusive federal powers of the central state (now listed in Article 110 of the 2005 Constitution).
*Note that the revised version of Memorandum 3 on the CPA archive site does not appear to have ever been published in the Official Gazette and is not the version used by Iraqi legislators. The original published version can be found here.
^A number of CPA Orders were revised and amended, sometimes more than once. Great care must be taken to ascertain the correct text. Note in particular the very many changes wrought to most of the CPA Orders and Memoranda by CPA Order 100.
The Legal Status of the CPA is explored by Elaine Halperin in a CRS Report for Congress: The Coalition Provisional Authority (CPA): Origin, Characteristics, and Institutional Authorities, updated June 6, 2005. In summary, given conflicting messages from the US Government, she cannot come to any firm conclusion as to whether the CPA was a Federal Agency (and if so what kind of agency) or an International Organisation.
Nathan Brown describes the the juridical and political basis for the CPA’s enactments as ‘shaky’ in The Fate of CPA Orders after June 30 on the Carnegie Endowment for International Peace website.