Article 13 of 15
International
U.S.
Probes Its Iraq - Oil Rights
International Law Gives Occupying Power Freedom
to Maneuver
By Chip Cummins
01/29/2003
The Wall Street Journal
Page A16
(Copyright (c) 2003, Dow Jones & Company, Inc.)
London -- IF U.S. FORCES find themselves in control of Iraq, international law would give them a large degree of leeway in managing the country's oil fields.
Some analysts expect Washington -- eager to avoid accusations of going to war for oil -- to refrain from making big decisions about the industry in the early days of any Iraqi occupation. But international treaties concerning military occupation and precedents dating to the early 1800s give the administration ammunition to press for a more aggressive role in Iraq's oil patch.
"If you justify [actions] under the law of military occupation, you can justify just about anything," said one administration official familiar with the current debate among Pentagon and State Department lawyers.
For now, military planners are focused on how best to secure oil infrastructure and protect it from possible sabotage by Saddam Hussein, officials say. But Pentagon and State Department attorneys also are debating how to interpret various treaties and precedents for a number of scenarios that may unfold in Iraq. The official familiar with the discussions said one option calls for taking advantage of precedents that would allow military commanders significant leeway in oil operations, though he stressed there were other views. "The thought is, give them the widest possible latitude in the first couple of weeks to get the sector up to speed," the official said.
The Hague Convention of 1907 and subsequent regulations provide an occupying "belligerent" specific guidelines when it comes to administering natural resources like forests, mines and oil fields. Such resources remain the property of the territory's people and shouldn't be used in a manner that will permanently damage them, the convention states. It is also widely interpreted to require that revenue from the resources should go toward occupation costs or otherwise benefit the territory's people.
But because an occupying force must also restore civil order quickly, it could become a powerful steward over oil resources, scholars of international law say. Such a force would be entitled to make key operational decisions aimed at getting essential infrastructure -- including oil fields, pipelines and refineries -- up and running.
"You are the temporary sovereign," said R. Dobie Langenkamp, director of the National Energy-Environment Law and Policy Institute in Tulsa, Okla. And unlike other natural resources, oil has clear military importance. As such, scholars agree that an army would enjoy leeway to control it long after hostilities end. "Oil is a threat to the occupying belligerent. If you don't control it, you don't control the country," Mr. Langenkamp said.
Commanders like Army Gen. Tommy Franks, the head of U.S. forces in the region, would be in a position to make crucial calls about which refineries to switch back on after the shooting stops, and when to crank the spigots open or shut at some 1,500 Iraqi oil wells. The U.S. would have the authority to use Iraqi oil revenue to immediately hire oil-field-service companies and other contractors to repair damages caused by the fighting and to quickly restore production, legal experts say.
Commanders also would be able to require managers and workers at Iraq's state oil company to show up each day to keep the oil flowing, some experts say. But it isn't clear whether those workers could legally call a strike, said Adam Roberts, who writes about the law of occupying armies as a professor of international relations at Oxford University. "There is discretion there, but that has to be exercised in the interests of the Iraqi people," he said.
Secretary of State Colin Powell told reporters last week that should the U.S. end up in Iraq, it would hold its oil sector, which boasts the world's second-largest reserves behind Saudi Arabia, "in trust" for the Iraqi people. "Whatever we do will be consistent with international law with respect to the responsibilities of an occupying power," he said.
Washington wouldn't be guided by legal precedents alone, of course. The Bush administration also would have to consider how the Iraqi public and the international community would react to a postwar oil policy. U.S. control over Iraqi oil fields would also raise questions that international law hasn't yet addressed. For instance, how would an occupied Baghdad be represented at the Organization of Petroleum Exporting Countries? What role would the United Nations -- which already oversees Iraq's oil exports -- play in a post-Saddam Hussein regime?
Some precedents would also limit U.S. actions in Iraq's oil patch, scholars say. A tribunal after World War II found that Japan breached international law by aggressively exploiting occupied oil fields in the Dutch East Indies and using the oil to fuel its own war needs. Another widely cited precedent involves Israel's operation of occupied oil fields in the Sinai after the 1967 Six-Day War. The State Department criticized Israel's actions in that case, arguing that Israel had no right to develop oil fields in territory that wasn't already being developed for oil production.
Oxford's Prof. Roberts said that precedent may mean no new wells in Iraq during an American occupation -- if this generation of Washington lawyers heeds earlier decisions. "U.S. views on this matter were quite important at the time," he said.