Equity, Iraq & Weimar

It has been a long time since I scraped through equity but I do recall the doctrines of ‘undue influence’ and ‘unconscionable conduct’: if one party enters a contract with another where there is a particular relationship of trust and confidence between the parties. As Mason J put it in Commercial Bank of Australia v. Amadio:

Historically, courts have exercised jurisdiction to set aside contracts and other dealings on a variety of equitable grounds. They include fraud, misrepresentation, breach of fiduciary duty, undue influence and unconscionable conduct. In one sense they all constitute species of unconscionable conduct on the part of a party who stands to receive a benefit under a transaction which, in the eye of equity, cannot be enforced because to do so would be inconsistent with equity and good conscience. But relief on the ground of “unconscionable conduct” is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage, e.g., a catching bargain with an expectant heir or an unfair contract made by taking advantage of a person who is seriously affected by intoxicating drink. Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.

This legal concept concept seems very relevant to the current negotiations between the US and the Iraqi government for a long-term security agreement. Says Patrick Cockburn:

Iraqi officials fear that the accord, under which US troops would occupy permanent bases, conduct military operations, arrest Iraqis and enjoy immunity from Iraqi law, will destabilise Iraq’s position in the Middle East and lay the basis for unending conflict in their country…Under the terms of the new treaty, the Americans would retain the long-term use of more than 50 bases in Iraq. American negotiators are also demanding immunity from Iraqi law for US troops and contractors, and a free hand to carry out arrests and conduct military activities in Iraq without consulting the Baghdad government…The US is adamantly against the new security agreement being put to a referendum in Iraq, suspecting that it would be voted down.

American policy claims to support a ‘free, democratic, pluralistic, federal, and unified Iraq’. Yet it clear that although Iraq has a democratically elected parliament it does not have a sovereign government. The real governing power in Iraq is the United States and its allies. The US government is in such a strong bargaining position versus the Iraqi government that any decision reached by the Iraqi government cannot plausibly be regarded as the expression of sovereign and democratic will of the Iraqi people. it is invalid on the same grounds as that of a victimised party in a case of unconscionable conduct. Recall how Weimar democracy was crippled by the Treaty of Versailles? Who can now doubt that the best decision for the victors of 1918 to have supported would have been the establishment of a fully sovereign and democratic Germany? Arab commentators have raised parallels between American ambitions and the security linkages between Britian and the Hashemite Iraq kingdom after its nominal independence from 1930. Hashemite Iraq had elections based on a universal male franchise (see its Constitution ) but this was a facade, all it achieved was to pave the way for the post-1958 dictatorships.

One thought on “Equity, Iraq & Weimar

  1. [...] Geoff Robinson questions: can Iraq really be thought to have a sovereign government? [...]

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