AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW
AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW
Volume 8
AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW Volume 8, 2003 Editor-in-Chief
Gerhard Loibl Executive Editor
Stephan Wittich
MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON
Published with support from the Federal Ministry for Education, Science and Culture, Vienna, Austria.
A CIP Catalogue record for this book is available from the Library of Congress Suggested citation: 8 ARIEL (2003) Manuscripts, editorial communications and book reviews as well as books for review are welcomed and may be sent to: Editor, Austrian Review of International and European Law c/o Department of International Law University of Vienna Universitätstraße 2 A-1090 Vienna, Austria
[email protected] http://www.univie.ac.at/intlaw/ariel.htm
Printed on acid-free paper. ISBN 90-04-14454-4 © 2005 Koninklijke Brill NV, Leiden, The Netherlands http://www.brill.nl Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP. This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher.
AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW EDITOR-IN-CHIEF Gerhard Loibl Institut für Völkerrecht und Internationale Beziehungen, Vienna, Austria
EXECUTIVE EDITOR Stephan Wittich Institut für Völkerrecht und Internationale Beziehungen, Vienna, Austria
ASSISTANT EDITORIAL MANAGER Ursula Kriebaum Institut für Völkerrecht und Internationale Beziehungen, Vienna, Austria
EDITORIAL BOARD F. Cede, Vienna, Austria P. Fischer, Vienna, Austria G. Hafner, Vienna, Austria W. Hummer, Innsbruck, Austria
W. Karl, Salzburg, Austria H. Neuhold, Vienna, Austria M. Nowak, Vienna, Austria C. Schreuer, Vienna, Austria K. Zemanek, Vienna, Austria
ADVISORY BOARD W. Balekjian, Glasgow, Scotland J. Crawford, Cambridge, England P.-M. Dupuy, Paris, France T. M. Franck, New York, U.S.A. K. Ginther, Graz, Austria G. Handl, New Orleans, U.S.A. K. Herndl, Strasbourg, France M. Koskenniemi, Helsinki, Finland H. F. Köck, Linz/Auhof, Austria
S. C. McCaffrey, Sacramento, U.S.A. A. Randelzhofer, Berlin, Germany W. M. Reisman, New Haven, U.S.A. M. Rotter, Linz, Austria B. Simma, The Hague, the Netherlands L. Sucharipa-Behrmann, Vienna, Austria C. Tomuschat, Berlin, Germany H.-J. Uibopuu, Salzburg, Austria F. Weiss, Amsterdam, The Netherlands L. Wildhaber, Strasbourg, France
Manuscripts, editorial communications and book reviews as well as books for review are welcomed and may be sent to:
Editor, Austrian Review of International and European Law c/o Department of International Law University of Vienna Universitätstraße 2 A-1090 Vienna, Austria
[email protected] http://www.univie.ac.at/intlaw/ariel.htm
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Contents
Agora: Is the Nature of the International Legal System Changing? Gerhard Loibl & Stephan Wittich Introduction ........................................................................................................................... 1
Karl Zemanek Is the Nature of the International Legal System Changing? ............................................... 3
Sir Franklin Berman What Does ‘Change’ Mean? International Law vs. the International Legal System ....... 11
Michael Bothe No Need to Panic! Or: plus ça change, plus c’est la même chose ...................................... 17
Antonio Remiro Brotóns New Imperial Order or (Hegemonic) International Law? ................................................ 25
Thomas M. Franck After Austerlitz: The International System in the Age of Rampant American Unilateralism ...................................................................................................... 35
Andrea Gattini Two Faces of Hegemony ..................................................................................................... 49
Martti Koskenniemi The Empire(s) of International Law: System Change and Legal Transformation ........... 61
Vaughan Lowe Is the Nature of the International Legal System Changing?—A Response ....................... 69
Donald McRae United States Unilateralism: Cause or Symptom? A Brief Response to Professor Zemanek ............................................................................................................. 75
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Georg Nolte The International Legal System: Is its Nature Changing? ................................................ 81
Mary Ellen O’Connell Who Helps the Hegemon? ................................................................................................... 91
Alain Pellet Can International Law Survive US “Leadership”? ......................................................... 101
Anne Peters The Growth of International Law between Globalization and the Great Power ............ 109
Pemmaraju Sreenivasa Rao Is the Nature of the International Legal System Changing?—A Response ..................... 141
August Reinisch Does US Hegemony Change the Nature of the International Legal System?— A Reply to Professor Zemanek ......................................................................................... 153
W. Michael Reisman & Scott Shuchart Unilateral Action in an Imperfect World Order .............................................................. 163
Hélène Ruiz Fabri Is the Nature of the International Legal System Changing?—A Reply .......................... 179
Eric Suy Is the International Legal Order in Jeopardy? ................................................................ 187
Christian Tomuschat A New World Order Dominated by a Hegemon? ............................................................ 197
Bakhtiyar Tuzmukhamedov Keeping Pace with the Times? .......................................................................................... 205
László Valki Merely the Notion of Self-Defence is Changing ................................................................ 211
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Francisco Orrego Vicuña Has the Nature of International Law Changed? Le Plus Ça Change… ......................... 221
Rüdiger Wolfrum Reflections on the Development of International Treaty Law under the Auspices of the United States Hegemony and Globalization ............................................ 229
Xue Hanqin What Has Been Changed of the International Legal System? ......................................... 235
Articles Thomas Jaeger We Hold These Truths to Be Self-evident, perhaps—Side-stepping the Commonality of ‘Common Principles’ and Fundamental Aims in EU Law .............. 247
Bernd-Roland Killmann Procurement Activities of International Organizations—An Attempt of a First Insight in Evolving Legal Principles ........................................................................ 277
Current Developments Emanuelle Cerf Legal Reforms in Bosnia and Herzegovina versus Good Common Sense ....................... 303
Stephan Wittich Recent Austrian Cases on Questions of Jurisdictional Immunities .................................. 309
Documentation Michael Schoiswohl Austrian Measure for Victims of National Socialism ....................................................... 325
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Austrian Practice in International Law (2001/ 2002)/ Österreichische Praxis zum Internationalen Recht (2001/2002) Structure ............................................................................................................................ 411
Stephan Wittich & Michael Schoiswohl Part I: Austrian Judicial Decisions Involving Questions of International Law/ Österreichische Judikatur zum internationalen Recht ..................................................... 423
Christina Binder, Isabelle Buffard, Gerhard Hafner & Katrin Hagemann Part II: Austrian Diplomatic and Parliamentary Practice in International Law/ Österreichische diplomatische und parlamentarische Praxis zum internationalen Recht ........................................................................................................ 503
Book Reviews William E. Butler, Russian Law (Ulrike Köhler) .................................................................. 569 Andreas O’Shea, Amnesty for Crime in International Law and Practice (Michael Schoiswohl) ......................................................................................................... 571 Hans Rudolf Trüeb, Umweltrecht in der WTO. Staatliche Regulierungen im Kontext des internationalen Handelsrechts (Erich Vranes) ................................................. 587 Erika de Wet & André Nollkaemper (eds.), Review of the Security Council by Member States (August Reinisch) .................................................................................. 590
Book Notes Patrick Capps/Malcolm Evans & Stratos Konstantinidis (eds.), Asserting Jurisdiction. International and European Legal Perspectives (August Reinisch) ................. 593 Nina H.B. Jørgensen, The Responsibility of States for International Crimes (Gerhard Hafner) ................................................................................................................ 594 Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals (August Reinisch) ............................................................................................................... 595
Agora: Is the Nature of the International Legal System Changing?
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Agora: Is the Nature of the International Legal System Changing?
Introduction The developments of international affairs in the last few years have been characterised by the end of the bipolar focus on the two super powers that have dominated world politics most of the time after 1945. The break-up of the Soviet Union and the changes in Eastern and Central Europe have influenced global politics fundamentally. The reaction by the Security Council to the invasion of Kuwait by Iraq was a demonstration of the “new political realities” which pointed to a less contentious and more cooperative system of international relations. But these developments have also lead to a situation which only sees one “superpower” remaining—the United States. Much has been said on the consequences of this state of affairs, the more so as the United States have shown strong tendencies to deal with international questions unilaterally and do not seek the close cooperation with other states or international institutions. The decisions taken by the United States not to become a party to the Statute of the International Criminal Court, the Kyoto Protocol or the Ottawa Convention on Land-Based Mines, its intention to resort to pre-emptive intervention under the guise of self-defence, or its debatable treatment of the prisoners at the Guantànamo naval base—to name but a few examples—have been quoted as illustrations of the “unilateral attitude” of the United States towards international affairs. This attitude has been confirmed in the wake of the terrorist attacks of 11 September 2001. The invasion in Afghanistan and the overthrow of Saddam Hussein in Iraq without authorisation by the United Nations Security Council to use military force have added to the debate within both the diplomatic and the academic community on the effects of the United States position towards international issues for the future of international relations, but also for international law as the foundation of the international system. It is the intention of the agora in this volume of the Austrian Review of International and European Law to debate the consequences for international law of such an unmistakable “unilateral approach to world affairs” by the United States. For this purpose the editors of the Austrian Review have invited 23 distinguished authors from various parts of the world to share their views on the validity of the
Austrian Review of International and European Law 8: 1-2, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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argument that international law is reaching a new stage in its evolution and that this will inevitably lead to changes in the entire international legal system. To stimulate the discussion among the participants, Karl Zemanek presented an essay introducing the topic and submitting for debate what he regards as the major questions which are to be addressed by international law as a result of the changed situation in international society. January 2004 Gerhard Loibl Editor-in-chief Stephan Wittich Executive editor
Is the Nature of the International Legal System Changing?
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Is the Nature of the International Legal System Changing? Karl Zemanek*
Two years ago, a Japanese scholar, Yasuaki Onuma published a paper in the Journal of the History of International Law1 in which he studied the concept of the international legal community as conceived and practiced through the ages and across civilizations. He identified two basic concepts which had been followed at various times in history and in different regions of the world: one of them decentralized, regulated by agreements between independent human groups sharing a common world image; the other centralized, governed by unilateral rules of a central State or empire. In a footnote of his paper Onuma describes the current situation as follows: Thus, one could understand, although one may not endorse, why the US tends to apply unilaterally its domestic laws even outside its territory. Since the US is today’s version of the central power or empire, it is in a sense natural for it to behave unilaterally, disregarding rules of international law which are based on the principle of equality. The serious problem for the US is that, unlike historical norms surrounding the former empires behaving unilaterally, today’s international law is based, not on hierarchical notions, but on the notion of equality of states. Moreover, the US itself values highly the notion of equality in domestic settings. Thus, the hypocritical character of the US behavior often becomes evident, thereby inviting much criticism that hurts its legitimacy and authority.2
These remarks suggest that the international system is presently in a period of transition. The traditional body of international law, based on the legal equality of States, co-exists with an “imperial” tendency of the US. This tendency is apparent in its applying the rules of international law when it suits its interest, but to ignore them if they appear to restrict its policy preferences. One cannot foretell where this dichotomy will lead to and prophesy is not the purpose of this essay. It more modestly aims at exploring whether areas of international law can be identified which are
* Prof. em., University of Vienna. 1
Y. Onuma, “When was the Law of International Society Born?—An Inquiry of the History of International Law from an Intercivilizational Perspective”, 2 Journal of the History of International Law 1-66 (2000).
2
Ibid., at 18, note 38.
Austrian Review of International and European Law 8: 3-10, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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already affected by that tendency. Given the limited framework of this essay the enquiry must necessarily be selective and cannot cover the whole field of international law. But even limited results should permit at least a tentative appraisal of the possible effect on the nature of the international legal system should the tendency continue. The US has the strongest and most sophisticated military force in the world, practically the only one that can be deployed anywhere on the globe. It has by far the most powerful single economy, with a corresponding influence on world trade. In the perception of other States these two factors combine to add persuasive weight to any effort undertaken by the US in support of a foreign policy aim. As long as such an effort remains within the boundaries of established international law it is not per se the concern of this paper. But to the extent that the legal exercise of power has an impact on international law-making and on the working of international organizations, it is relevant to the development of international law. At the same time one has to keep in mind that sovereign equality, while it is a postulate of the existing international legal order, always had to be squared with the factual inequality of States in the real world. Probing into an alleged “imperial” tendency must therefore look beyond the mere factual exercise of power. It must examine whether the State concerned has developed a rationale justifying its “leading” the world by acting as guardian of self-proclaimed values of asserted universal validity; whether that State construes the established rules of international law to suit its political aims; whether that State controls the course of legal development within the system according to its own interests; and whether such a State claims to act as supreme arbiter of right and wrong, derived i.a. from the belief in the superiority of its legal order (hence the latter’s extraterritorial application), of its human rights standard (hence humanitarian intervention), and of its socio-economic system (hence the unilateral right to protect it preemptively). *** One area in which such a tendency has long been observed, albeit in a relatively moderate form, is the exercise of jurisdiction, in criminal as well as civil matters, over events in foreign countries. The considerations underlying the American variant of the concept of extraterritorial jurisdiction were recorded in the 1987 Restatement of the Law by the American Law Institute.3 In practice, US authorities use the concept even more extensively than the Restatement would suggest and with little regard for the sovereignty of other States.4 Courts tend to assume jurisdiction even when the link of the case to the US is tenuous or artificial. They rely, in particular, on the
3
The American Law Institute, Restatement of the Law Third, Vol. I, §§ 401-444 (1987).
4
C. J. Olmstead, Extraterritorial Application of Laws and Responses Thereto (1984), though dated, gives a good overview. For a more recent celebrated case cf. A. Reinisch, “Widening
Is the Nature of the International Legal System Changing?
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effects theory, although in other parts of the world that theory is recognized as applying only in respect of competition law and certain criminal matters. The belief of US courts in the salutary effect of their exercise of quasi-universal jurisdiction is also visible in their attitude towards judicial assistance agreements, which they often bypass in favour of more direct means of service or discovery abroad. The American practice of extraterritorial jurisdiction, particularly in the form of indirect enforcement (e.g. “blacklisting”), comes close to intervention, forbidden by international law, into the domestic jurisdiction of the States whose nationals, whether individuals or corporations, are the object of court action. Yet it can reasonably be argued that it only comes close. Recently, however, that boundary has been crossed openly. On 15 December 2002, the New York Times reported that the President of the US had approved a list of 25 terrorists whom the CIA may kill without further presidential approval (“death list”), if they cannot be captured alive without danger to civilians. And that the authorization applies irrespective of where these individuals may be found—even on foreign territory. It seems that in this instance the claim to quasi-universal jurisdiction for the purpose of protecting American values and interests has been carried to extremes. *** Another area with a long-standing record of a distinctive American position is the “inherent” right of self-defence as defined in Article 51 of the UN Charter. Oscar Schachter wrote in 1989:5 [T]he fact that the Court and international legal scholars considered that selfdefense is governed by positive law has not obliterated an opposing conception of self-defense as an autonomous, nonderogable right that “exists” independently of legal rules. That conception, I, believe, continues to influence popular and official attitudes concerning national security.
The same author refers to remarks by former Secretary of State Dean Acheson to the American Society of International Law in 1963 as indicative of the belief in the subordination of law to power, which Schachter considered to be a second intellectual root of the proposition that self-defence cannot be governed by law. Acheson had in fact stated: “The survival of states is not a matter of law”.6
the US Embargo Against Cuba Extraterritorially. A Few Public International Law Comments on the ‘Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996’”, 7 EJIL 545562 (1996). 5
O. Schachter, “Self-Defense and the Rule of Law”, 83 AJIL 259, at 260 (1989).
6
Source ibid., in note 8.
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While these views may have reflected no more than a somewhat inflated defensive strategy, the years of the Cold War gave rise to a more active use of force, particularly by the two superpowers in what they considered their respective spheres of interest. Random illustrations are Hungary (1956) and the CSSR (1968) for one, the Dominican Republic (1965) and Grenada (1983) for the other superpower. After the end of the Cold War the events in Kosovo, which led to NATO’s operation against the Federal Republic of Yugoslavia (now Serbia and Montenegro), signalled a further watering down of the prohibition of the use of force.7 The 19th Century concept of humanitarian intervention was unearthed to provide legitimacy for the use of force even without Security Council authorization.8 Several arguments were developed in support of that position. By far the most widely used was that in case of Security Council inaction in the face of massive violations of human rights, States—individually or collectively—were free under alleged customary law to act even militarily to prevent or to end the violations.9 The attack of 11 September 2001 turned the discourse back to the right of selfdefence. The US invoked that right and informed the Security Council accordingly.10 The novel feature was not only that the attack against which the right to self-defence was claimed had been carried out by a non-State terrorist organization. Also, the traditional understanding that defensive action is allowed only against an ongoing attack, was converted into a right to eliminate the source of the attack. In the particular case this meant the elimination of the Al-Qaeda and its supporting Taliban regime in Afghanistan.11 The fight against international terrorism has since become a primary aim of the US and has led to a new “National Security Strategy” in which the idea of “preemptive
7
See A. Buzzi, L’intervention armée de l’OTAN en République Fédérale de Yougoslavie (2001).
8
For a comprehensive survey of the different schools of thought cf. W. D. Verway, “Humanitarian Intervention and International Law”, 32 NILR 357-418 (1985).
9
See e.g., F. K. Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention, particularly at 132, 222, 246, and 256 (1999). The opposite position is argued by P. Hilpold, “Humanitarian Intervention: Is There Need for a Legal Reappraisal?”, 12 EJIL 437-467 (2001).
10
In a letter dated 7 October 2001 by the Permanent Representative of the United States to the United Nations, reprinted in 40 ILM 1281 (2001).
11
For a more detailed analysis see K. Zemanek, “Self-Defence Against Terrorism. Reflexions on an Unprecedented Situation”, in F. M. Marino Menéndez (ed.), El Derecho internacional en los albores del siglo XXI, Homenage al profesor Juan Manuel Castro-Rial Canosa 695714 (2002).
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intervention” was introduced as a new variant of self-defence.12 This idea dominates the attitude of the US towards Iraq, which is suspected of having developed and stored, or being capable of developing within a short period of time, various weapons of mass destruction. It is difficult to conceive of these weapons as a direct threat to the territory of the US on the American continent. Therefore, it seems more likely that the rationale behind any military action to eliminate the possible use of these weapons is the American belief in its “leadership” role. This conclusion finds support in the heading of Section V of the “National Security Strategy” which reads: “Prevent Our Enemies from Threatening Us, Our Allies, and Our Friends with Weapons of Mass Destruction”. The manner in which the campaign against Iraq was conducted strengthens the suggestion of imperial strategy. Iraq had to be subdued simply because the US considered it necessary. The reason for doing so, offered by the administration, was changed repeatedly. First, it was Iraq’s suspected possession of weapons of mass destruction. Later that was changed to the risk that Iraq could make such weapons available to Al-Qaeda. Finally, the missionary goal to bring democracy to Iraq was declared the ultimate ground, implying the willingness to intervene in the domestic affairs of a sovereign state. When Iraq was defeated and hostilities ended, obligations imposed by the Hague Rules on the occupying power were only partly observed. In fact, a virtual Anglo-American protectorate was imposed on Iraq and the Security Council was manoeuvred into condoning it. All this confirms the American determination ultimately to act alone, with little or no regard for international legal obligations, particularly those under the UN Charter. This determination to act alone also explains the profound and continuing annoyance with those who did not unquestioningly join the American side in the preparation and execution of the military strike against Iraq. An aspiring empire’s conception leaves no room for subtleties: the world is divided in friends and foes. *** A more recent example of the willingness of the US to ignore existing international obligation that are impediments to policy goals, is the treatment of prisoners taken in Afghanistan. No matter how one views the intervention of American forces in that country from a legal perspective, there was clearly an international armed conflict. Hence international humanitarian law applies. Although neither of the two States is a party to the First Additional Protocol, both are bound by the Third Geneva Convention Relative to the Treatment of Prisoners of War of 1949, which was thus applicable. Its provisions, especially Articles 5 para.
12
The National Security Strategy of the United States of America, September 2002, section V, 15: “To forestall or prevent such hostile acts by our adversaries, the US will, if necessary, act preemptively”.
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213, 13, 14, and 17 read together leave no doubt that the fighters taken prisoner in Afghanistan, whatever they call themselves or are called by others, have a right to be treated as prisoners of war until a “competent tribunal” has decided otherwise.14 So far, no such decision has become known. Hence the treatment accorded to these persons at Guantanamo naval base does not conform to the obligations which the US has assumed under the Geneva Convention. *** In international organizations in which it is a member, the position of the US as the sole remaining superpower is perhaps best described as compelling influence. That influence varies according to the degree of the organization’s dependence on American support for achieving its purpose. In some organizations, for instance in the Bretton Woods institutions, the influence is strong enough to control the orientation of operational activities. The United Nations are a special case. It would be a waste of space to repeat what has been written about the veto power of the permanent members of the Security Council. But it is obvious that the ability to block the adoption of a decision greatly enhances a State’s influence on its drafting. Even the threat of non-participation of the most powerful and resourceful member in an operation acts as a deterrent to its adoption, no matter how urgently it appears in the eyes of other members. The influence which the US can bring to bear on the Security Council to get a desired decision adopted, in other words the extent to which it can use the latter as an instrument of its own policy, is more difficult to evaluate. In the last resort, this depends on how “persuasive” the US is in its bilateral contacts with the other members of the Security Council and with the groups of States with which some of them identify. A recent example illustrates the point. At first, the Security Council decreed that the report, which Iraq had submitted on its weapons programmes in accordance with Security Council Resolution 1441, would not be circulated until it had been analysed by the weapons inspectors. Upon further reflection however, it decided to circulate it immediately but only among the permanent members. The other members were to receive a censored version later on because the report contained sensitive information about the building of nuclear devices which was not to be imparted to non-nuclear States. The reproduction of the full report for the permanent members was entrusted to the US because, so it was stated, they had the more efficient copying machines. For 13
It reads: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”
14
See Zemanek, supra note 11, at 713; and G. H. Aldrich, “The Taliban, Al-Qaeda and the Determination of Legal Combatants”, 96 AJIL 891-898 (2002).
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that purpose the US was handed the only complete copy of the report available in New York. There is no need to restate that in NATO the position of the US is preponderant, if only because it provides most of the military infrastructure, particularly in respect of logistics and intelligence gathering. But the US exercises a strong influence even on organizations to which it does not belong, such as the European Union. Because of its strategic interest in Turkey the US “persuaded” influential EU members—Germany in particular—to give Turkey the perspective of EU membership. The EU’s Copenhagen Summit dutifully adopted this position despite massive reservations in EU countries. Even decision-making in the framework of the EU’s so-called Common Foreign and Security Policy comes sometime under this influence. In the critical weeks before the Security Council determined how to act against Iraq, the foreign ministers of the EU member States met as the Council of the Union. They adopted a common position favouring the peaceful disarming of Iraq through United Nations inspections. Yet two days later fife member States (Denmark, Italy, Portugal, Spain, and the UK) publicly supported the more bellicose position of the US. That this support was expressed in newspaper advertisments rather than conveyed through diplomatic channels was doubly humiliating for France and Germany which, as members of the Security Council, argued at that time against unilateral American military action without Security Council authorization. The incident showed the true worth of the CFSP in case of a severe international crisis. It was a rude awakening for an organization with pretensions to become a “global player” in security matters. *** Law-making by international conventions is another area in which the US exercises considerable influence, although this influence is manifested mostly by obstruction. For instance, the US renounced the Kyoto Protocol15 and refuses to accept the Rome Statute of the International Criminal Court.16 Of course, it is perfectly legitimate for a State not to accept new multilateral treaty obligations, even if the frequent exercise of this option may appear to other States as a manifestation of poor community spirit. But the US, as the most powerful of nations, is a special case. Its use of the option not to join has ominous implications which do not arise from the abstention of less important States. One is the impact that a negative US position has on the overall process of international law-making. If a proposed regulation requires universal 15
For more information cf. D. G. Victor, The Collapse of the Kyoto Protocol and the Struggle to Slow Global Warming (2001).
16
Cf. A. W. Rovine, “Memorandum to Congress on the ICC From Current and Past Presidents of the ASIL”, 95 AJIL 967-969 (2001); and H. Duffy, “National Constitutional Compatibility and the International Criminal Court”, 11 Duke J of Comp. and Int. Law 5-38 (2001).
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participation to become effective, or at least the co-operation of the States most advanced in the matter to be regulated, the absence of the US is crippling. In the case of the Kyoto Protocol, this means that the purpose of the regulation cannot be achieved despite the wishes of a large majority of States. As a consequence, the process of improving international relations by subjecting them progressively to the rule of law is impaired. Yet that is not all. In the case of the Rome Statute of the International Criminal Court, the US does not confine itself to non-participation but tries to protect its nationals against possible third-party effects. It uses all the leverage at its disposal to induce parties to the Statute to conclude bilateral agreements with the US which would exempt US nationals from the jurisdiction of the Court were they apprehended by the authorities of those States. The purpose of the Statute is thus not only impaired by the absence of the US but actively undermined by an unwarranted exception. It seems that the champion of international criminal responsibility for so-called “rogues” puts itself above the law. *** In this brief essay it was possible to look only at a few points. But even these warrant the tentative suggestion that the “imperial” tendency of the US, to which Onuma alluded in his paper, does indeed exist. This tendency is, perhaps, most visible in matters related to the use of force and in extraterritorial actions which one could describe as “the long arm of Uncle Sam”. But to varying degrees it also touches upon other areas of international law and its development. The intended predominance is manifest and, in view of the unrivalled power of the US, virtually unimpeded. Should the asymmetry of power in the international system persist one must be prepared for a temporary and possibly extended suspension of certain accepted rules of international law, or at least for their application in a hitherto unfamiliar manner. Whether this will only lead to the transformation of these rules of international law or to a change in the nature of the system as a whole depends on several factors. These include, above all, the intentions of the US and how prudently it will use its resources to achieve them—or, as Henry Kissinger has put it,17 its ability of learning to distinguish between what it must do, what it wants to do, and what it can do. Furthermore, the duration of the current situation, and factual developments which might have an impact on the asymmetry of power. However, for the medium-term, States will be well-advised to face reality in their policy assessments and to acknowledge the unique role of the US, instead of persisting in the fantasy of a world order based on the equality in law of all members of the international system. May 2003
17
Die Herausforderung Amerikas. Weltpolitik im 21. Jahrhundert 349 (2002).
What Does ‘Change’ Mean? International Law vs. the International Legal System
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What Does ‘Change’ Mean? International Law vs. the International Legal System Sir Franklin Berman*
I.
Introduction
It is always wise to give oneself time to stand back from events in order to pass judgement on their significance. The shockwaves from the appalling incidents in New York (& elsewhere) on the 11th of September 2001 reached deeply into the universal human consciousness. When they, and the reverberations of the world events that came in their train, reached the shores of the lawyers’ domain, there was an instant reaction too, something like a reflection back of the shock received. But the task of the lawyer is to make mature, considered judgements, not instantaneous ones. And, while the practice of international law very often demands immediate judgements as a guide to legitimate action, that does not stand in the way of reconsideration and reassessment, when circumstances allow, and significances become clearer. The theme for this Agora asks us to give our view on whether the nature of the international legal system is changing. By that it means of course changing under the cumulative impact of pressures, both recent and not so recent, pressures which have been brought about not just by blind events, but by shifts in the pattern of power in the world within which we live.
II. Changes in the Rules vs. Changes in the System Likewise, our views are sought on whether the international legal system is changing. Not, in other words, on whether international law is changing. Naturally, the rules which make up the corpus of international law are changing. They are changing all the time; that is what one would expect. It is in fact the mysterious and elusive processes of adaptation and change that give international law much of its fascination,
*
Barrister and arbitrator; Visiting Professor of International Law at the University of Oxford; Judge ad hoc on the International Court of Justice; formerly Legal Adviser to the Foreign and Commonwealth Office, London.
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as well as its real-world importance. Whether the principles (encapsulated in that common catch-phrase ‘principles and rules of international law’) are also changing is a much deeper question altogether. For many of us—probably all of us—the ‘principles’ are expected to have an enduring permanence quite different in kind from the stability (or otherwise) of particular rules. From there, I think we have to move on to recognize that international law does not exist for its own sake, but to serve a purpose. The purpose (or in fact the multiple purposes) are exactly the same as we would recognize to be the goals of good policymaking: the preservation of peace and order; social progress; protection of the rights and freedoms of the individual; facilitation of legitimate trade and travel; etc., etc. Sometimes, especially at moments of challenge, international lawyers do tend to react in ways that look to the policy-maker like a defence of ‘international law’ for its own sake. In fact, when that happens, it is usually because what the international lawyer is standing up for is not particular rules, but the underlying legal principles that animate them and which (as I suggest above) are intended, for the good of the system, to be more enduring and permanent than the particular rules valid at any given moment. Of course there is room for honest argument about what is an (evanescent) rule and what is a (permanent) principle, but if the purposes of international law and the goals of good policy-making are broadly the same, that should be a constructive debate not a damaging one. That brings us directly back, if not to the processes of change, then to the pressures for it. If international law is a system in a process of continual change and development, then it should not be in the slightest surprising, or shocking, that States bring conscious pressure to bear in order to produce change. Indeed, it is pretty hard to see how, without such pressure, change could ever happen! This is something that strong States have always done; the surprise would be if they hadn’t. But it is equally something that weak States have always done, if they could. It might have been individually, by exploiting, say a geographical position around a key strait or shipping lane. It might have been on a group basis, as for example the drive by a numerically quite limited number of Latin American States for acceptance of 200-mile territorial seas, later transmuted into 200-mile resource zones; or the attempt by the group of equatorial States to assert ownership over the geostationary orbit. Or it might have been by sheer weight of numbers, as in the strenuous efforts to conjure into being a ‘New International Economic Order’ by majority voting power in the UN General Assembly. But these all fall to be classed as ‘pressures to change international law’. And now we face the phenomenon de nos jours by which other organized groupings outside the State system as such, i.e. NGOs and pressure groups, mount campaigns with considerable skill and resourcefulness, but campaigns to do what? why to change international law.
What Does ‘Change’ Mean? International Law vs. the International Legal System
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III. A Sole Hyperpower? However, the question for today is changes in the international legal system, a question we must distinguish carefully from changing existing international law. It doesn’t involve registering that there are pressures for change, nor identifying who is bringing the pressures to bear. What it involves is how the system reacts. There is a tendency abroad to assume that, simply by virtue of the fact that it is a ‘hyperpower’ (as the phrase goes)—and, so the argument continues, the sole hyperpower—the USA can change international law just by saying that it wants change, for example by enunciating a new doctrine and declaring that it will conform its future practice to that doctrine, or by simply acting in ways that conform to its interests or preferences but take little account of the interests of others. We can, to be sure, question the hypothesis that the USA is the sole hyperpower. It all depends, of course, on what measure you use and on what groupings you look at. There is certainly a good case for saying that in the fields of trade, finance and economics, US power is not predominant at all. And we can also question the hypothesis that, just because a State is a hyperpower, it will always pursue consistent objectives and seek to impose its will by unilateral diktat. Neither current nor past international practice, as we have been able to observe it, bears out either of those conclusions, even though elements of them can be seen in the behaviour of powerful States in all epochs.
IV. The Processes of Change Our question remains, however, how the international legal system reacts to an attempt to impose change by the unilateral action of a single powerful State. And here we must be careful not to confuse power with law. Nor, as is generally recognised, must we confuse the basic principle of the legal equality of States with the factual phenomenon of the wide disparities in their actual power. However, the fact that a State is powerful is no protection against a finding (if justified) that its behaviour is unlawful. That is something we are all quite accustomed to from the Judgments of the International Court of Justice. And in the trade field, it is something we are becoming accustomed to from the Decisions of the Dispute Settlement Mechanism of the World Trade Organization. So the crucial question remains, How does the international legal system react when faced with attempts—never mind the quarter from which the attempt comes— to force the pace of change? Has the nature of that reaction changed? Is it now changing? There are, of course, two avenues through which international law is altered: by the development of customary law, and by treaty-making. And we know—again, it is
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one of the great fascinations of modern international law—that these two avenues are not sealed off from one another by a concrete wall, but that they interrelate: treatymaking can play an important role in the formation of custom, and customary law (as the Vienna Convention of 1969 reminds us) plays a role in the interpretation of treaty obligations. We must therefore investigate whether the essential nature of either process has changed, or seems to be changing. Is the customary law process essentially the same as before? Has treaty-making lost its traditional character and acquired legislative characteristics?
V. The Customary Law Process The answer to both of those questions seems clearly to be in the negative. So far as customary law is concerned, there is no sign in the recent case law that the International Court is altering the basic approach it has taken to the formation of customary rules, namely that it looks specifically both for State practice and for opinio iuris, and that both the practice and the opinio must be sufficiently widespread and consistent to qualify as general. To be sure, there has been much argument over the Court’s assessment of what counts as evidence (both of the general practice and of the opinio), but that is obviously a different matter. Likewise, the Court seems not to have deviated from its established view that resolutions of the UN General Assembly can not in themselves ‘create’ law, though they do have a valid part to play, according to the circumstances, in ascertaining the existence of a rule of law. And finally, the Court’s insistence that practice has to include that of States whose interests are specially affected, is more of a protective principle than the opposite. Nor has there been any revolution in the academic literature—to judge, for example, from the Report adopted by the International Law Association in 2000 on the Formation of Customary Law. To the extent that learned commentators may seem to be advocating a reassessment of the established criteria, they turn out very often to be arguing little more than that the same evidence can serve simultaneously to establish both practice and opinio iuris. Therefore, an overall assessment of the customary law process seems to lay emphasis on the protection it offers to States who resist the pressure brought to bear on them by others, rather than on any propensity to open itself to imposition by dominant States. A final remark in this connection might be that neither the drive to have certain rules accepted as having a higher status (whether as ius cogens or under some other name), with dramatic effects on their legal consequences, nor the pressure to impose, as it were, the compulsory nature of certain provisions of international law irrespective of the normal considerations of State consent, evident chiefly in the field of human
What Does ‘Change’ Mean? International Law vs. the International Legal System
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rights and the law of armed conflict, is attributable to the United States. It is characteristic, rather, of the group of liberal Western democracies, largely in Europe, who tend to be the loudest voices raised in criticism of US hegemonic behaviour. We must be careful therefore to steer clear of the contradictions inherent in asserting that whereas individual hegemony is by definition bad, hegemony on a group basis may be acceptable.
VI. The Treaty Process Moving now to the treaty process, the first question must be whether the basis of treaty obligation has shifted from the express and formal consent of the State Party. The question has only to be posed in order to be dismissed. The rules remain those set out in Articles 2 and 7-17 of the 1969 Vienna Convention (replicated almost exactly in the 1986 Convention), and there is no sign of their having come under questioning or attack. Though perhaps one ought to pause momentarily at this point to note that some of the rather peculiar practice that has emerged in recent years over reservations, notably to human rights treaties, seems to embody a wish to brush aside the fundamental precept that treaty obligation is based on formal and express consent. At all events that practice, doubtful as it is in its legal foundation, is once again not spearheaded by the United States at all. However, the next phenomenon to remark under this head is the growing propensity to regard the United States as legally at fault for not having become party to what is by now a growing list of important multilateral treaties: the Additional Protocols to the Geneva Conventions, the Law of the Sea Convention, the Kyoto Protocol, the Land Mines Convention, the Statute of the International Criminal Court, and so on. Again, there is something odd about this. If it were a political criticism, one could understand it entirely; it is very unfortunate indeed that the United States has separated itself from the mainstream, including from the common opinion of its traditional allies, on these important matters, and the fact that it has done so tends (to put the matter no more strongly than that) to weaken the chances of success of the multilateral regimes in question. On the legal front, however, the position is surely plain. A State has the right to decide whether it will or will not give its consent to be bound by a treaty. That is part of its sovereign rights, and is therefore indefeasible. It is, after all, nothing more than the corollary of the proposition that treaty obligation is based on consent. It really does beggar the imagination, therefore, to see how the exercise of that right is, in any legal sense, reprehensible. From the policy point of view the position may no doubt be different. But, if so, the conclusion to be drawn from it is the opposite of the one usually drawn. Put bluntly, if the participation of a given State, or group of States, is regarded as having that
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degree of importance, then the negotiations must be conducted in such a way as to ensure that their outcome meets the essential requirements of those States. To demand both that the majority set the terms, and that the minority has no option but to accept them, is to deny an element of the right of self-determination as codified in the International Covenants. Were the proposition to be put the other way round (that the minority, or a single State, set the terms, and that the majority was bound to accept them), it would be denounced as hegemonistic behaviour, and quite justifiably so. The writer’s conclusion is therefore as follows. Firstly, the picture is by no means simple. It cannot be correctly described, nor accurately analysed, by any form of caricature. Secondly, the fundamentals of the international legal system are sound. They provide ample protection for States against the imposition of new rules or doctrines without their consent. Conversely, if they do acquiesce, or even give their formal consent, whatever the policy reasons may be, it does not lie in their mouth afterwards to bewail the consequences. Thirdly, and perhaps most importantly of all, to cry wolf (as in the Aesop Fable) operates directly against self-interest (as the Fable was designed to show). If we face a situation we don’t like by insisting that it betokens unpalatable consequences for the international legal system, all that we do is increase the likelihood that precisely those unpalatable consequences will follow. The better course is in fact to stick to our fundamentals ever more firmly. Fourthly, what is really to be deplored about present American behaviour in certain fields is not its supposed capability single-handedly to upset the established system of international law, but the unfortunate aspects of American foreign policy from which it springs: the preference for unilateral solutions over multilateral ones; the tendency to let a perception of the national interest drown out the legitimate interests of others (or at least to talk as if that were the case); and the downgrading, in relative terms, of legality as a determinant of foreign policy decisions. That said, it is easy to paint the picture blacker than it really is: these phenomena presently characterize American behaviour in certain fields only, not in all; Mr Bush spoke out strongly during his recent State Visit to London about the United States’ commitment to multilateral institutions; and US public opinion is by no means as monolithically behind muscular unilateralism in foreign policy as our media would have us believe. In other words, there is much to play for; and that is what we should be doing. December 2003
No Need to Panic! Or: plus ça change, plus c’est la même chose
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No Need to Panic! Or: plus ça change, plus c’est la même chose Michael Bothe*
I.
Introduction
The basic issue raised by Karl Zemanek’s introductory article is this: Do we have to change the rules of international law because there is now, contrary to the situation which existed before, a one and only player which concentrates overwhelming power in its hands? Is there, or rather: is there about to develop, a new hegemonic or “imperial” system of law creation and application? Imbalances or asymmetries of power do cause difficulties for the international law creation process as there is not enough reciprocity as a driving force for accepting mutual obligations. But they are not a new phenomenon. For centuries, international law has dealt with them. In the 17th century, there was an imbalance of power between the various States competing on the seas, in particular the Dutch and the British. Despite the overwhelming sea power of Britain, the principle of mare liberum, which protects the weaker users of the sea, was upheld.1 That history should warn against premature conclusions as to the establishment of a new hegemonic world order. A closer look at the norm creating processes is necessary in order to ascertain the true impact of the overwhelming power of the United States in the modern or, to use a more fashionable expression, “post modern” law creation processes.2 I would like to specify the basic issues as follows: Has the United States a specific veto power concerning the development of new international regulations? Can the US achieve modifications of existing international law where this law is perceived by relevant American actors to be contrary to American interests? Or, more generally speaking, is there a special, “imperial” role of the US in the law making process, and if so, which?
* Prof. em. Johann Wolfgang Goethe Universität, Frankfurt/Main, Head of the Research Unit, Peace Research Institute Frankfurt. 1
W. G. Grewe, The Epochs of International Law (transl. M. Byers) 263 (2000).
2
M. Koskenniemi, “Fragmentation of International Law? Postmodern Anxieties”, 15 LJIL 553 (2002).
Austrian Review of International and European Law 8: 17-24, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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So far, the international community has not abandoned its decentralised procedures of law making based on consensus. But on the other hand, power has, and has always had, an impact on consensus building. Influence on the decision of others is the very essence of power.
II. American Non-Participation—an Effective Veto Power? Let us first look at American non-participation in international agreements. Is there anything like an American veto power? There are still a number of human rights treaties to which the United States is not a party because it does not like those treaties. The best known examples are the Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. That absence of the United States, regrettable as it is, has not prevented these conventions from constituting flourishing treaty regimes. Treaty bodies have been established, they work for the implementation of the treaties, and there is no sign that United States absence affects in any way the viability of these treaties. In the field of international humanitarian law, the absence of the United States from the 1977 Protocols additional to the Geneva Conventions, controversial also in the United States, presents perhaps a more serious question. Which impact does the absence of the single most important military power have on the functioning of a treaty regime relating to the law of war? It is worth recalling that the United States took a very active part in the negotiations and that it and its NATO allies tried to solve certain perceived problems involved in some of the provisions of Protocol I (in particular its applicability to the use of nuclear weapons) by way of declarations made on the occasion of signature and/or ratification. Nevertheless, many NATO countries were for a long time reluctant to ratify,3 but by now all of them have joined the club, except the United States and Turkey. But also the United States has recognised that most of the provisions of Protocol I reflect customary international law. Thus, US non-ratification does not really affect the interoperability of NATO forces, as far as their obligations under the laws of war are concerned. True, the application of international humanitarian law has to face difficulties, as it always has. The United States has its share in this crisis by insisting on a claim that certain categories of persons, “unlawful combatants”,4 are not entitled to certain 3
Only the Nordic members ratified early (Norway 1981, Denmark 1982), some ratified in the mid-eighties (Belgium 1986, Italy 1986, Netherlands 1987, Iceland 1987), some by the end of the Cold War (Spain, Greece and Luxembourg 1989, Germany 1991), some really late (United Kingdom 1998, France 2001).
4
G. Aldrich, “The Taliban, Al Qaeda and the Determination of Illegal Combatants”, 96 AJIL 891 (2002); Y. Naqvi, “Doubtful Prisoner of War Status” 84 IRRC 571 (2002); S. Oeter,
No Need to Panic! Or: plus ça change, plus c’est la même chose
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protections under IHL. But this is not related to the absence of the United States from the treaty regime of Protocol I. The relevant rules are those of customary international law and of the Third Geneva Convention to which the United States is a party. We will revert to the question of customary law. At this point, we must draw the conclusion that there is no effective US veto power preventing the development of new treaty regimes relating to the law of war. A really serious problem is the absence of the United States from the Statute of the ICC. This treaty regime, too, is functioning despite United States absence. The Statute has now next to 100 parties, the Court has been established, a Prosecutor elected. But the practical relevance and effectiveness of the Court remains to be seen. The list of absentees other than the United States is important. Whether the Court will really have jurisdiction in relation to significant conflict is also an open question. In addition, what distinguishes US absence in this case from the preceding one is the active hostility which the US shows in relation to the ICC. That has probably slowed down the ratification by certain States. The energy with which the United States pushes legal devices designed to make sure that US personnel is not affected is remarkable. The instruments of this policy are immunity agreements concluded with the US, sometimes under heavy pressure, by a number of States5 and the resolutions of the Security Council exempting, in the case of UN peacekeeping or UN mandated military operations, personnel from States which are not parties to the ICC Statute from the jurisdiction of the Court.6 The legality of both devices is highly questionable. The Security Council adopted the first respective resolution after the United States had vetoed a resolution providing for the prolongation of the UN mandate for BosniaHerzegovina—a macabre package deal! The example shows that the development of international law has difficulty to move ahead where the relevant actors in the United States strongly feel that this is against vital US interest. Be it noted, however, that in the case of the ICC, the United States has three important silent allies: Russia, China and India. The attitude of Russia is particularly problematic, as there have been a number of declarations that it is going to ratify. But the real political value of these promises becomes more and more doubtful. For China and India, the Court constitutes, at least for the time being, an unacceptable infringement of their sovereignty. Be it noted, on the other hand, that a further prolongation of the Security Council resolutions in 2004 was not possible as it would not have obtained a sufficient number of votes in the Security Council. At least in this respect, the US did not succeed in imposing its will to reduce an international regime it dislikes.
Terrorism and laws of war”, in SFDI (ed.), Les nouvelles menaces contre la paix et la securité internationale 183, at 193 (2004). 5
For an overview see http://www.iccnow.org/documents/USandICC/BIAs.html (21.09.2004).
6
UN Doc. S/RES/1422 (2002) and UN Doc. S/RES/1487 (2003).
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Another spectacular case of United States non-ratification is the Kyoto Protocol.7 The United Nations Framework Convention of Climate Change (UNFCCC), to which the United States is a party, does not impose any meaningful obligations to stabilize or even reduce the emission of greenhouse gases. The Kyoto Protocol, implementing the Framework Convention, does. The Clinton administration agreed to it, but there was never a real chance that it would receive the US Senate’s advice and consent required for ratification. The Bush administration clearly stated its intention not to ratify. The United States interest which has so far prompted US absence is a complex mixture of economic considerations (which are highly controversial) and matters of internal politics. It is considered that the cost of reduction would be too high for certain industries where numerous jobs were at stake—in regions which are politically relevant, in particular the old industrial centres. More generally, it was probably feared that the reduction of energy consumption (the best means of reducing greenhouse gas emissions) would affect American lifestyle and therefore be politically unacceptable for a significant part of the American electorate. When the American decision to remain outside the Protocol became clear, the other parties decided to go ahead and try without the United States—a solution which was technically possible, although it is somewhat doubtful whether this regime can be effective when a major part of the problem, 36% of the relevant emissions, remains unregulated. This gave a key role to Russia, which accounts for 17% of the emissions. Since a number of years, Russia kept lingering about this decision. Without Russian ratification, the Kyoto Protocol could not enter into force, as 55% of the relevant emissions constitute the necessary quorum. It has finally decided to join, and the Protocol has entered into force—without the United States. The threshold countries (China, India, Brazil), for the time being, feel comfortable with their position which does not impose any quantified emission reduction commitments upon them. The practical impact of the Kyoto Protocol on the problem of global warming remains to be seen. The absence of the United States is not the only problem. The Kyoto Protocol, as it is now, relates to a first reduction period 2008-2012. Negotiations for a next period are being launched, and once more the United States have refused to participate. If the system works efficiently during the first period and if it were possible to make the major threshold countries join, that US absence might not be the last word. The analysis of American absenteeism would be imbalanced without looking at the GATT/WTO treaty regime which poses serious problems of American internal politics, too, and where, nevertheless, the United States remains an active participant even though it is not always happy with the actual results of the system. In this case, there is an obvious cleavage between the relevant internal political interests in the
7
For an overview see M. Bothe, “The United Nations Framework Convention on Climate Change—An Unprecedented Multilevel Regulatory Challenge”, 63 HJIL 239 (2003).
No Need to Panic! Or: plus ça change, plus c’est la même chose
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United States: on the one hand, the protectionist interest in sparing American industry or agricultural production from import competition, on the other hand the interest in gaining access to foreign markets which is difficult to obtain where there is no reciprocity. The interest in market access so far appears to be strong enough that the United States is willing to live with the procedures established by WTO, although they do not always work in favour of US protective or protectionist interest. To sum up, the problem of the United States refusing to participate in certain international treaty regimes is real, but it should not be overstated. The world has learned how to deal with the problem, not always, however, with success.
III. American “Unilateralism” and the United Nations The American attitude towards the United Nations is somewhat ambivalent. The United Nations were an important element of Roosevelt’s design for the world order after World War II. That order owes very much to American efforts. As long as it had a secure majority in the General Assembly, the United States tried to promote the efficiency of the United Nations by shifting powers from the Security Council, which was blocked by the (at that time mainly Soviet) veto, to the General Assembly. This situation changed with the success of decolonisation. The political structure of the United Nations changed dramatically. The US quite often found itself in the minority, and the American attitude towards the UN became lukewarm to hostile. The end of the East-West conflict once more changed the rules of the game in the United Nations in a fundamental way. The disappearance of the automatic Soviet/ Russian veto made it possible for the United States, for the time being the only remaining superpower, to use the United Nations as an instrument, or more precisely as a legitimizer of US foreign policy. The first and successful attempt of doing so was the Iraqi invasion in Kuwait. The United States sought and obtained from the Security Council an authorisation to use force (although this was not necessary as a matter of law, there being a clear case of collective self-defence). Other attempts were first unsuccessful, but succeeded at a later stage (Kosovo), still others remained controversial (Iraq). In the latter case, the United States opted for using the Security Council as a legitimizer for its action, but the legal argument that there is indeed a UN authorization is very weak. The fact that the argument was used nevertheless shows that the United Nations plays a significant, although not decisive role in US decisionmaking. After 9-11, the attitude of the United States showed a different nuance. The United States did not seek an authorisation by the Security Council to use force. It sought and obtained a general and vague recognition by the Council that there was a situation of self-defence. Apparently, the United States shied away from a mandate which would have given some power to define the scope of the force to be used to the Council.
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Relying on self-defence seemed to leave more room for unilateral interpretation, and therefore more freedom of choosing different options to use force. On the other hand, the United States has become the most frequent user of the veto in the Security Council. Out of 15 vetoes cast between 1990 and 2004, 11 came from the United States, and 9 of them related to Palestine. In this case, the General Assembly has stepped in. Is it necessary or appropriate to change the system of the United Nations in order to better reflect the exceptional position of the United States? The United States has already a privileged position on the basis of the UN Charter as it is: It has the veto power which it shares, however, with four other States. It has the military power to enforce Security Council decisions where it sees fit to do so. In addition, it is the single most important financial contributor to the UN. On the other hand, this structural primacy of the United States is balanced by the fact that it does not command any automatic majority. All this does not mean that there is a need to change the United Nations in the sense of allowing even more American political, i.e. hegemonic impact. The Iraq case is a telling example: Had the Security Council given in to US pressure to use force against Iraq in order to terminate its alleged breach of its disarmament obligations, the UN would be completely discredited as no forbidden weapons have been found. Now, the blame is only on the US and the UK.
IV. United States Pressure to Change the Law Does international law change under the impact of United States pressure? Yes, to a certain extent. The United States has been an essential driving force behind a modification of the legal norms governing the international economic system. This is not only reflected in the results of the Uruguay Round of 1995. A major case in point is the fundamental change in the law of international telecommunications from a system of interconnected State or other privileged enterprises to an open market of telecommunication services. Yet, although the United States were the cutting edge of this development, it was soon shared by the EC and Japan, and also promoted by the latter ones.8 It is this combined effort that changed the international order, and it still is a trilateral effort of regulatory agencies in the field of competition law which maintains the standard of free competition on world markets. Today, however, the major issue in this respect is United States pressure to expand the field of the lawful use of force in international relations. This is a goal which has characterised United States policies for many years. It becomes more visible as the
8
P. Malanczuk, “Telecommunications, International Regulation”, in R. Bernhardt (ed.), 4 EPIL 791, in particular Add. 1999, at 794 (2000).
No Need to Panic! Or: plus ça change, plus c’est la même chose
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military/political restraints on the use of force by the superpowers which prevailed during the Cold War have disappeared. When justifying its use of force, the United States usually relied on a broad concept of self-defence, be it in the form of an intervention to protect US nationals, e.g. Grenada, Panama, be it in the form of “collective” self-defence (Nicaragua), or with a more complex construction in the case of the destruction of Iranian offshore oil installations in 1987/88. These interpretations of the right of self-defence have remained controversial, and they have in two instances been rejected by the International Court of Justice (Nicaragua v. US 1986, Iran v. US 2003). After 9-11, the United States again relied on a broad concept of self-defence in order to justify the “Operation Enduring Freedom”, this time without encountering any significant contradiction in the rest of the world (at least as far as political practice is concerned). Under the impact of US positions, there might indeed have been a certain modification of the law of self-defence, namely in relation to the question whether the use of force by private actors justifies under certain conditions a right of self-defence against the State from where these actors are operating. It must be emphasised, however, that all these US strategies to justify the use of force by the US have been characterised by a kind of low key approach, relying on traditional lines of argument relating to self-defence. The US attitude is somewhat different in the debate about the so-called new threats which tries to modify the basic character of the right of self-defence. That right has so far been an exception to the prohibition of the use of force limited to the case of an actual armed attack. The National Security Strategy of 20029 explains that these threats (essentially: the combined existence of weapons of mass destruction, rogue States and organised terrorism) cannot be effectively met if armed response had to wait until an armed attack had already occurred or was really imminent. Thus, the doctrine of “pre-emptive action” is developed: As the doctrine has it, the use of force should be (or is?) lawful as a response to such threat even where there is not yet certainty as to what type of attack is to be expected. If this construction of a right of self-defence became positive law, this would be the final blow to the prohibition of the use of force as enshrined in the Charter and in customary law. Contrary to what certain theoretical minds suggest, this has not yet happened, as witnessed by the official stance of governments, i.e. the main actors shaping the opinio iuris which is relevant for the change or preservation of rules or customary international law. The US/British intervention in Iraq is not a precedent for the new concept of preventive strikes. The existence of a threat has played a major role in the political debate preceding this use of force. But when it came to the question of legal justification, both the United States and Great Britain relied on construing the
9
The National Security Strategy of the United States of America (17.9.2002), available at http://www.whitehouse.gov/nsc/nss.html (21.9.2004).
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existence of a Security Council authorisation, namely the resurrection of the old authorisation given in November 1990, the alleged breaches of the 1991 armistice being revindicated as the ground of this legal reanimation. That legal construction, in the view of this writer, possesses fatal flaws. But the very fact that both governments preferred it to that of pre-emptive “self-defence” is of legal significance. It probably reflects an opinio iuris that the good old law of self-defence being limited to cases of an armed attack actually existing or immediately threatening is still valid. Thus, it is fair to conclude that certain neo-conservative approaches propagating a hegemonic use of force by the United States have not made new international law, so far. That being so, it is still necessary that the international community seriously addresses the issue of these new threats. These threats are a reality, despite the fact that they have been grossly overstated in the Iraqi case. But there is so far no proof whatsoever that this cannot be done through reliance on the United Nations Security Council or a cautious development of international law on a traditional, nondiscriminatory basis, i.e. without special privileges for a hegemon. July 2004
New Imperial Order or (Hegemonic) International Law?
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New Imperial Order or (Hegemonic) International Law? Antonio Remiro Brotóns*
I.
Introduction
When, on the occasion of the Gulf War (1990-1991), the Soviet Union decided to cooperate with the US within the Security Council (SC), President George Bush said that he shared with Mijail Gorbachov the vision of “a world where the rule of law supplants the rule of the jungle, a world in which nations recognize the shared responsibility for freedom and justice, a world where the strong respect the rights of the weak”.1 Twelve years afterwards, this vision has disappeared because the US has assumed an imperial tendency, rightly outlined by professor Zemanek in his introductory essay,2 above all when the right wing Republicans that already had the control of the Congress (1996) conquered the Presidency through courts (2000). It suffices to read the declaration of principles of the New American Century Project (June 1997)3 and to take account of its signatories4 to realize that the Iraq intervention was part of American planned policies shaped by people that constitute the core of the current Administration, even before the S-11 crimes offered the occasion of putting them in practice. Although before this date the US foreign policy showed signs of unilateralism, afterwards the Bush Administration has decided to impose a New World Order that turns around the American security and that is based on the American military
*
Professor of International Law and International Relations, Universidad Autónoma of Madrid.
1
President Bush, Toward a New World Order, US Department of State Dispatch 1, no. 3 (17 September 1990), at 91, available at http://dosfan.lib.uic.edu/ERC/briefing/dispatch/1990/ html/Dispatchv1no03.html.
2
K. Zemanek, “Is the Nature of the International Legal System Changing?”, 8 ARIEL 3 (2003).
3
See http://www.newamericancentury.org.
4
Namely, Dick Cheney, current Vice-President of the US, Donald Rumsfeld, US Secretary of Defense, Paul Wolfowitz, Deputy Secretary of Defense.
Austrian Review of International and European Law 8: 25-34, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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supremacy and its readiness to use force. Diplomacy and international institutions mainly work for intervention and war rather than for peaceful dispute settlement and cooperation. The outcome is profoundly regressive.
II. Leadership, Hegemony, Empire Nobody questions that the world needs leadership and that only the US can offer it. However, the George W. Bush Administration does not bet on leadership,5 but on hegemony; even on the consecration of an Imperial order that denies sovereignty and sovereign equality with all its consequences.6 We should be “unashamed, unapologetic, uncompromising American constitutional hegemonists”, wrote John Bolton,—who is today Under Secretary of the US Department of State—in a article that was revealingly entitled Is There Really “Law” in International Affairs?.7 For fellows like Bolton, IL hampers American policies insofar as it does not accommodate to their requirements nor allows the imperial order. Among the symptoms that shows transition to the one (the emptiness or manipulation of norms in force by reason of hegemonic practices) or the other (a New Imperial Order) one can mention the current of opinion that denies that treaties are sources of legal obligations, that consistently rejects their direct effect or that subordinates their direct effect to domestic rules; the exclusion of judicial review of government acts beyond the American territory; the efforts to bring to deadlock the Draft articles on the Responsibility of States for Internationally Wrongful Acts, approved by the ILC; the fact that Congress Acts are put above the UN Charter and the denial that only the UN Charter can legitimate the use of force, with the exception of the right of self-defence; or the affirmation that there is no UN competence to review the US decisions on foreign policy and national security. The increasing manifestations of legislative and judicial imperialism are also symptomatic: Acts that authorise the use of force abroad to arrest—even to annul if necessary it be—people that are requested by federal justice or that are considered terrorists; the replacement of diplomacy by systematic use of retorsion and (armed) reprisals; the irresistible tendency to replace norms and institutions by non-legal
5
Leadership implies to attend to the others’ interests, to sponsor negotiations of compromises in multilateral fora and to get that the others not only do but desire to do what one wants them to do.
6
See D. V. Vagts, “Hegemonic International Law”, 95 AJIL 843-844 (2001).
7
J. Bolton, “Is There Really ‘Law’ in International Affairs?”, 10 Transnational Law and Contemporary Problems 1, 48 (2000).
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(political) compromises; the invocation of religious freedom to introduce by force a manipulating and reactionary thought etc. Besides, the US gathers too many noes to multilateral cooperation that their closest European allies have not only supported but sponsored. The US has said no to the Comprehensive Nuclear Test-Ban Treaty, no to the Verification Protocol to The Biological Weapons Convention, no to the Land Mines Convention, no to the Kyoto Protocol; no to the ICC Statute (this is, in addition, a target of their hostile activity) etc. As noted by Zemanek, this may appear to other States as “a manifestation of poor community spirit” with “ominous implications” on the overall process of international law-making and the achievement of the purposes of the regulation.8
III. The Centrality of Security Security has always been a core concept in the building of an institutionalized system of international relations. The UN Charter made of it its backbone. This security, the Charter’s security, was closely related to peace. Both concepts appear together in twenty-nine out of the thirty-two occasions in which they are mentioned in the Charter. This link of security to peace, provides security with a positive energy, accentuated when peace is related to freedom, justice, or development. On the other hand, the Charter’s security was—and it is—a collective security, in spite of the limits imposed on it by the Council decision-making process. The security that is the core concept of the new order prefers to be termed “democratic”, “energetic”, “ecological”, “economic” or “demographic”—which insists on the perception that we are living a high risk society—to its former link to peace, justice, freedom or development. In addition, it is a positional security: it is “my” or “our” security—the North’s security, the US and its clients’ security—that reacts against “their” threat (the South’s threat, the axis of evil one), caused by terrorism, drug trafficking, irregular immigration waves or the possession of arms that are only in good hands if they are in our hands. This outline reinforces the return to an individual and groupal self-preservation to the detriment of the UN Charter. The US and their client states are entitled, as it is said, to protect “their” security, where they think it is endangered, by making recourse to the means they chose, including recourse to armed force. Therefore, blacklisting, so loved by the American Administration as a means to discredit the others, is not surprising. The goal is to get the others socially and legally excluded so that they become the target of the US and their client states use of force without provoking
8
Zemanek, supra note 2, at 9.
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negative reactions or scandals. The document on the national security strategy of the US (2002) even makes of the Rogue State a category.9 Nevertheless, in democratic countries, the first victims are individual and collective rights, public freedoms, judicial guarantees, transparent and plural information, restriction in the use of repressive force ...
IV. Military Supremacy and Readiness to Use Force The US looks for a supremacy that avoids any kind of competition, prevents policies against it and fights against any tendency of its allies to deviate from it. The republican majority wants less State, even less diplomacy, but an increment in Defense budget. President Clinton had foreseen these risks when he vetoed the Foreign Operations Appropriations Bill (H.R. 2606), that meant a drastic budget cut to the Department of State. “By denying America a decent investment in diplomacy, this bill suggests we should meet threats to our security with our military might alone ...”.10 There is a propensity to use military power within what Marcelo G. Kohen has denominated a culture of force.11 As it had happened in Kosovo and Afghanistan, in Iraq the US disdained the UN Charter and the competences of the SC under Ch. VII. However, in contrast with what happened in Kosovo (where one could claim a humanitarian intervention) or Afghanistan (reaction against terror), the reasons to intervene in Iraq (possession of weapons of mass destruction, terrorism networks) have been perceived as a pretext to remove a hostile regime and replace it by a friendly one (shall we call it democratic?) that allows Washington to deploy its military power to control energetic resources and to intimidate those that in the agitated Middle East neighbourhood react against Washington’s dictates. The mentioned document on US national security strategy (2002) widens the notion of self-defence so as to accommodate, it says, the concept of imminent threat to the capabilities and objectives of today’s adversaries, in the first place terrorists and the States that shelter them.12 “Our best defense is a good offense”, argues President
9
The National Security Strategy of the US of America, September 2002, at 13-14, available at http://www.whitehouse.gov/nsc.
10
Available at http://www.usembassy-israel.org.il/publish/peace/archives/1999/october/ me1018e. html.
11
M. G. Kohen, “Manifeste pour le droit international du XXIe siècle”, in L. Boisson de Chazournes/V. Gowlland-Debbas (eds.), The International System in Quest of Equity and Universality. Liber Amicorum Georges Abi-Saab, 123, 130-131 (2001).
12
“The National Security Strategy”, supra note 9, at 15.
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Bush.13 It must be said that however flexible, the concept of self-defence cannot include, as it is claimed, situations in which a presumed enemy’s bad intention is assimilated into a specific, precise and aggressive decision. The fight against terrorism leads to pre-emptive action which finally becomes applicable to any threats to what the American Administration considers its vital interests. Furthermore, pre-emptive action becomes applicable to any hegemonic or imperial plan. The fact that selfdefence has not been invoked to invade Iraq, allows us to suggest that even for the Bush Administration the doctrine of the “pre-emptive intervention” is susceptible of being the axis of an Imperial Order or a new Hegemonic IL; it cannot be the expression of the IL in force, which is based on the principles of the UN Charter.
V. The Instrumentalisation of the United Nations and Other International Organisations The hostility of republican fundamentalists to the UN and in particular to the SC is deeply visceral. Thus, until the SC has opposed to the disproportionate Bush Administration projects concerning Iraq, the US has managed to use the Council as an instrument of its policies, moderating its objectives, reducing the tone and being persistent. Given the position of the United States, the Council can only aim, if it is not left aside, to drive or moderate the American policies by legalising them. The Council should not act arbitrarily, but there are no ways within the UN system to challenge the conformity of its resolutions with the Charter. These years, we have witnessed the SC disposition to assume American policies or, if needed, to look away from them. The Council has renounced to its centrality with regard to the institutional recourse to the use of force; it has left in the hands of member States peace enforcing operations, either ignoring them or simply formally authorising them; at the request of the United States, the Council has assumed (normative, judicial) tasks that the UN Charter reserves for State relations or grants on other organs (General Assembly, ICJ); it has given to its permanent Members every kind of licences even that of being both judge and party to the settlement of disputes with third parties; it has fuelled arbitrariness by applying different measures to situations that are materially similar, particularly with regard to Israel; the Council has lacked willingness and energy to get its resolutions complied with when a party has a patron (Western Sahara); finally, it has exercised roughly the competences granted on it by the Rome Statute (Article 16) when it has requested the Court not to commence or proceed with investigation or prosecution against nationals of States that are not parties to the Statute of the Court that participate in peace keeping
13
Ibid., at 6.
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operations authorised by the Council (Resolution 1422-2002 and 1487-2003).14 The US acts on its own when the United Nations “fail”, when it finds obstacles within organisations that it controls or simply when so require its interests and “singular responsibilities”.15 Occasionally, it builds ad hoc coalitions, and it satisfies its logistic and intelligence needs by exercising its influence and direct pressure on States that can supply them; it takes for granted that organs like the SC or the UN Secretary General will accommodate to facts, by making pragmatism to prevail over the half-heartedly defense of their prerogatives. Subsequently, the US has not hesitated to sit on the Security Council both to broaden measures involving the use of force that help to develop its policies, with the consequence that third countries are forced to apply them, and to endorse agreements reached outside the Council, for instance those reached in Kumanovo (for Kosovo) or in Bonn (for Afghanistan), including the deployment of international forces. The same has happened in Iraq with the adoption of resolution 1483 (2003) that assumes the Authority set up by the occupying States; or even more, resolution 1511 (2003) which authorises a multinational force under unified command (the US).
VI. The Aggression Against Iraq Colin Powell, US Secretary of State, warned two weeks before the Iraq aggression that “The US will invade Iraq with a coalition of like-minded nations with or without the UN authorisation”. President Bush had previously received the Congress authorisation; consequently it had satisfied the legal requirements that may cause concern to him. It had been a Bush administration policy to discredit in advance the fruits of an inspection that resolution 1441 (2002) had rightly toughened and to exert intolerable pressure on the chairmen of the UNMOVIC and IAEA and on the members of the SC. With arrogant manners, President Bush required from the Council “determination” to act. He called upon it to assume “its responsibilities” while warning at the same time that “time comes to an end”. It seems that Council’s relevance was linked to its willingness to give cover to US policies—as the Council had previously done. Zemanek is right when he claims that the manner in which the campaign against Iraq was conducted strengthens the suggestion of an imperial strategy. Iraq was subdued
14
Res. 1497 (2003) goes further. It authorises a multinational force in Liberia and decides (para. 7) that current or former officials or personnel from a contributing State which is not party to the Rome Statute “shall be subject to the exclusive jurisdiction of that contributing State” unless “such exclusive jurisdiction has been waived by that contributing State”.
15
“The National Security Strategy”, supra note 9, at 25 and 31.
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simply because the US considered it necessary.16 In the view of the US, France or Germany opposition to its draft resolutions was not the expression of a right as members of the SC but a disloyalty as allies of the US The refusal of the SC to authorise the use of force already decided by the US reinforced its credibility before public opinion. The efforts of the US (and its satellites) to present their action as a legal one were so intensively refuted that to insist on them would not be compatible with good faith. However, aggression gave rise to a delicate situation. One could not expect that the action would be condemned, not even regretted;17 in either case the veto of the aggressors would be present. However, the fact that everyone wants to forget does not imply that one should accept the AngloAmerican occupation. The Council longed to consider the facts as a fait accompli given that it could not satisfactorily examine them according to the legal order and at the same time it wanted to affirm the organisation’s role in the “reconstruction” of Iraq. Consequently, its objective had to be the recovery of its competences and to “be in charge of” the country; to manage the latter as it had done in Kosovo, until the country set up its own representative institutions. Only by this means could one limit the evil inflicted and could it be put into practice the Council’s commitment with the people’s of Iraq self-determination. Nevertheless, this was unthinkable for the Bush Administration, which had decided that the Council had to recognise the Authority established by the occupying powers, to accept its measures and to transfer to the Authority the control of Iraq resources within and outside the country; it was also sought that the UN had a secondary role. Unfortunately, today one can affirm that the US has reached its objectives (resolutions 1483 and 1511-2003), beyond the rhetoric discourses that have allowed their opponents within the SC to justify their giving in.
VII. A Universal International Law, an Institutionalised and Democratic Society: A Mere Fantasy? Should the asymmetry of power in the international system persist, one must be prepared for a temporary and possibly extended suspension of certain accepted rules of IL, or at least for their application in a hitherto unfamiliar manner, warns Zemanek, for whom the situation will lead to the mere transformation of these rules of IL or to a change in the nature of the system as a whole depending on several factors (above all, the intentions of the US and how prudently it will use its resources to achieve
16
Ibid.
17
It suffices to read resolution 1472 (2003) when, during the war, it referred to an “emergency phase” of the “Oil-for-Food” Programme, originated by the s “exceptional circumstances” prevailing in Iraq and it requested “all parties concerned” to strictly abide by ius in bello.
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them, and also the duration of the current situation and factual developments which might have an impact on the asymmetry of power). In any event, for the mediumterm Zemanek advises the States “to face reality in their policy assessments and to acknowledge the unique role of the US, instead of persisting in the fantasy of a world order based on the equality in law of all members of the international system”.18 Zemanek seems to suggest that unless prevailing circumstances change, the only way for States to avoid an Imperial Order is to accept an Hegemonic IL, and to abandon the fantasy of an institutionalized, universal, democratic IL. In my opinion this conclusion, although realistic is too pessimistic. In a changing society, it is illusory to envisage IL as a pacific order. One cannot examine a legal order avoiding its uncertain and unstable process of transformation; likewise, one must not isolate the violation of norms from the context in which it occurs. This being said, it is important to recall that the members of the international society have proclaimed the imperative character of fundamental norms and, at a certain moment, they have qualified their infraction as constitutive of an international crime. In spite of the fact that international law-making processes are loose and that they may take into account acts that were originally transgressors, it is awkward that the New Order could be created from criminal acts, whatever the cloths they wear. One should not confuse discretion with arbitrariness nor assume that the democratic character of a government exempts it from being accused of aggression or of war crimes. The Bush Administration converts the international order into a precarious concept when it polarizes the international society by dividing it between friends (those who are on my side) and foes (those that are not on my side and who are inevitably condemned to be against me) and when it assumes that power legitimates every kind of action. An order that is imposed on most of countries and planet inhabitants is not the best conceptualisation of a world that must be built. The arrogant and reactionary spirit—which reveals a superiority complex—explains its lack of sensitivity to the ultimate causes (the fact that essential needs are not satisfied or humiliation) and provokes that desperate people become believers of prophets of change through terrorist violence. Human dignity and social justice will not be reached through crime, nor will terrorism be put to an end by bombing those with whom one has pending matters. Hard sanctions must be inflicted to States that are responsible for having committed international crimes. The loss of legitimacy of a State and the suspension of its status civitatis is not a novelty. One can share the view that terrorist or rogue States must be placed outside the law; however, one cannot share the view that the most powerful States are empowered by themselves to fulfil this task and to reach their own
18
Zemanek, supra note 2, at 10.
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conclusions therefrom. To hold the contrary is characteristic of an imperial order; to cover such pretensions is characteristic of an Hegemonic IL. The IL built from the UN Charter has entailed an enormous progress in the history of international relations. No matter the fact that the Charter can be improved, it is necessary to return to it, to rebuild the consensus over the institutions that must serve the principles that we have given to ourselves and to broaden or complement these principles. Their democratic character and the type of society that they design are still valid. International institutions must be reinforced by making them more representative and plural, despite the fact that they may be sensitive to power. The most powerful States cannot prevail over international legality nor can their objectives be unilaterally imposed on other democratic sovereign subjects. The programme proposed to solve Afghanistan problems may, why not, be of application all over the planet: an open, plurietnic and fully representative government, engaged to peace keeping, respectful of international norms and human rights without distinction of gender, race or religion, cooperative with fight against terrorism and any kind of illegal traffic, supporter of solidarity, promoter of health, and committed to the construction of a welfare society.
VIII. And the Europeans? In the near past, the member States of the EU have not only avoid to follow the US in some of their plans with regard to disarmament, persecution of international crimes, environmental protection or affirmation of human rights, but they have been the bastion of positions that the US expected to defeat. In contrast to the American approach of “full spectrum warfighting” it has been claimed a European approach of “full spectrum peacekeeping”.19 It is true that after the S-11 the Americans have managed to attract some of the Europeans to the war side, thus creating serious doubts about the feasibility that the EU be a political subject. It has become too common the sight of the most important Heads of Government looking for to being received in Washington, participating in restrictive meetings or showing themselves up by means of mass media and not by the normal diplomatic ways. In the Iraq war, the unconditional subordination of Great Britain, Spain or Italy to the Bush Administration, drifting apart from Germany and France has only been the most significant evidence of a serious breach among Europeans. To be the first commercial power or the first aid development donor is not enough if one assists vicariously in operations
19
J. Lindley-French, “Leading Alone or Acting Together? The Transatlantic Security Agenda for the Next US Presidency”, Occasional Papers 20, Institut d’Études de Sécurité, Paris, September 2000.
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decided and controlled by those that do not respect institutions nor norms. If one accepts that Europe can only grow within an euroatlantism defined by the US strategic decisions, the process of the European construction, although necessary, will become a secondary one. October 2003
The International System in the Age of Rampant American Unilateralism
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After Austerlitz: The International System in the Age of Rampant American Unilateralism Thomas M. Franck*
I.
The Great Delusion
“Voilà le soleil d’Austerlitz!” Napoleon boasted, recalling his triumph seven years earlier over the Austrians, as his officers formed outside the gates of Moscow in 1812.1 This bit of over-the-top braggadocio merely symbolizes a larger truth: that emperors and empires, sooner or later, get things wrong. History is littered with the shards of their grandeur: Two vast and trunkless legs of stone Stand in the desert... My name is Ozymandias, king of kings: Look on my works, ye Mighty, and despair... Nothing beside remains. Round the decay Of that colossal wreck, boundless and bare The lone and level sands stretch far away.2
In a sense, the imperial penchant for failure is a pity, for, otherwise, humanity might, by now, have emancipated itself from its narrow tribalism to achieve a form of the global unity so enthusiastically espoused by Alexander the Great3, Claudius I4 and Napoleon, not to mention prominent contemporary publicists of international law.
*
Murry and Ida Becker Professor Emeritus, New York University School of Law.
1
The remark was supposedly made on September 7, 1812, just before his army disintegrated in the rigors of the Moscow winter. It referred to Napoleon’s brilliant victory over the Austrians and Russians in 1805, which had forced the Emperor Francis I of Austria to sue for peace.
2
The quote is from Ozymandias by Percy Bysshe Shelly (1792-1822).
3
Emperor Alexander III of Macedonia who conquered the lands of the Persians and extended his sway all the way to India (356-323 B.C.).
4
Emperor Tiberius Claudius Nero Germanicus, who, as Roman Emperor, succeeded in subjugating territories as far away as Armenia, Mauritania and Britain (10 B.C.-54 A.D.).
Austrian Review of International and European Law 8: 35-48, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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But bad things always happen, even to relatively benign imperialists as well as (fortunately) to the really awful ones like Adolf Hitler. Invariably, at some point, they or their minions make a fatal mistake. The message of history appears to be that, for an empire to sustain itself, it must generate an ethos of invincibility. Where democratic rulers are sustained by their legitimacy, rulers of empire need to be perceived as infallible. Unlike elected presidents, they cannot be seen to fall on their face for, when the subjects begin to snigger, the game is up. And, the thing is, the emperor always stumbles. Truly thoughtful imperialists have tried to beat the odds by setting up a facade of legitimate institutions behind which, for example, the wizard of Windsor could safely rule unobserved. Lord Lugard dubbed this “indirect rule” utilizing traditional chiefs and nabobs. But the enlightened British imperialists, like their less-benevolent predecessors and cohorts, found that they could neither extirpate nor allay people’s eagerness to rule themselves. And so, things fall apart. To the colonially ruled, imperium is always them, never us. This “us-them” phenomenon appears to be the stumbling block over which emperors always fall. If being nice and enlightened toward the other side of the “us-them” equation were the answer, Hungary would still be a prosperous and contented partner in the Austro-Hungarian imperial “ausgleich”. As Oliver Cromwell discovered in Ireland, people prefer to take their chances on self-misrule rather than rule by them. This easily-accessible lesson of history is worth another look as the United States, hot on the heels of Macedonia, Rome et al., enters into what Andy Warhol might have characterized as its 15 minutes of fame as the world’s single superpower. The American President has already made clear that he intends to use those 15 minutes to get them extended indefinitely.5 Still, history cautions against putting one’s bet on that lame cavalry horse. A far more constructive way to spend one’s allotted span of imperium might be to plan for the time after it is, inevitably, over. After all, those 15 minutes of disproportionate power afford a unique opportunity to influence the shape of the international system in ways that accord with the lone superpower’s cherished social, political and legal values.
5
In the words of President George W. Bush: “Our military must […] dissuade future military competition […]. Our forces will be strong enough to dissuade potential adversaries from pursuing a military build-up in hopes of surpassing, or equalling, the power of the United States.” National Security Strategy, The White House, September 17, 2002, at 29-30 (in Part IX, Transform America’s National Security Institutions to Meet the Challenges and Opportunities of the Twenty-First Century), available at http://www.whitehouse.gov/nsc/ nss.pdf (21.9.2004).
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Even such a strategy, informed by enlightened self-interest, is stumble-prone. In the second half of the twentieth century, Britain set out to decolonize its empire by reproducing the Westminster model of democratic governance in one-third of the world. In some parts of the globe it took root, but failed disastrously in others. What that semi-noble experiment tells us is that an imperial power, because to the very end it is seen to be government by them, has great difficulty telling us what to do after “they” turn over the keys. The trick –a very difficult one– is for the dominant power to convince those it dominates that they are participating as equals in inventing the institutions that will govern the common enterprise after the end of imperium. It is as if the sole superpower were to convene a conference of the nations to draft the post-imperial constitution of the world. The meeting would take place behind the Rawlsian “veil of ignorance”6 where the negotiators, knowing themselves to be the representatives of nations but unaware of which nations they represented, would engage in a common search for truly neutral, fair principles of transnational governance: except that everyone would know, unofficially, which were the representatives of the sole superpower. An America truly pursuing its national interest by preparing for the end of its monopoly on power would use its 15 minutes precisely to influence, with great subtlety, the configuration of the next era. If it hopes to achieve that goal, it will be because it succeeds in convincing the world that they, and not the US, invented the new configuration. Instead, Washington seems determined to do what all other empires did: lay down the rules by which everyone else, except it, are expected to play. This may work for a while, but in the end it will fail, and it will leave nothing behind but its clay feet standing sentinel in the desert.
II. The Economics and Sociology of Imperialism Empires, historically, have been of tremendous economic benefit to their heartland. That, traditionally, is a powerful reason why nations set out in search of colonies. The American empire, however, has not translated into economic predominance. In global terms, the US has become a net debtor, mortgaging its future by running current account deficits of five percent or more, seemingly into the indefinite future. Such deficits, because they undermine stability, have been prohibited to members of the European Union and would drive a developing country into World Bank receivership. To make matters worse, America has been trying to make up for its shortfall in current receipts by borrowing: from itself, from future generations and from other states. Whereas, from 1960 to 1976, the US ran a balance of payments surplus with
6
J. Rawls, A Theory of Justice (1971).
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respect to its transactions with other states, since 1982 this has turned into a three trillion dollar deficit. At the same time Americans have been selling off their assets. Foreign investors now own about 8 trillion dollars worth of these. However, even this is not as threatening to American power as would be a world-wide loss of confidence in the future stability of the dollar and its economy. That, unfortunately, is no longer so remote a possibility. Were foreign investors in dollar-denominated securities to tire of our sluggish economy, our rock-bottom returns on capital, they might stop buying our debt and start cashing in. Certainly, there are warning signs. The dollar has depreciated against the Euro by almost twenty-five percent in the past sixteen months. One begins to hear whispers of the inflation that almost always follows such imbalance as now exists between national receipts and expenditures. It seems all too possible that the pursuit of empire will do for the United States what the exhausting arms race did for the Soviet Union. Historically, moreover, the pursuit of empire has had a mobilizing effect on the society of the metropolitan power. In America, however, there is today very little sense of the Victorian spirit of “Rule Britannia”. The nation feels less, not more, united. This, too, may be attributable at least in part, to the economic toll the American role as sole superpower has taken on the social fabric. According to the (Republican) economist Kevin Phillips, in the past twenty years the gap between the richest one percent and the poorest twenty percent of the population has more than doubled, from a ratio of 30:1 in 1979 to more than 75:1 in 1999.7 Moreover, the nation is about to reduce spending on such basic needs as education, health care and infrastructure by $100 billion. One consequence is that most US cities are nearly bankrupt. This does not describe a very supple socio-economic springboard from which to launch the leap into empire. Rather, it seems to predict the social divisiveness that marked the era of the Vietnam war. The mobilizing civic pride of empire also has depended, historically, on how the imperial venture is regarded by others. When one quarter of the world’s map was coloured red, there was envy of the British Empire, but also a grudging admiration. The rain-soaked home counties of Britain basked in the warmth of the sun that was, everywhere, acknowledged never to set on their imperium. America’s role as sole superpower, too, initially was accorded such acclaim. At last, people everywhere thought, the world has a benevolent imperium, a preeminence imagined to spring from respect for law, liberty and democracy. On 11 September 2001, every nation in the world voiced its support for the victim: not merely for the innocent people killed, but also for the decent nation unjustly violated. Now, opinion polls reveal, the citizens of almost every nation regard America as the world’s gravest
7
K. Phillips, “How Wealth Defines Power”, 14 The American Prospect A8, at A9 (May 2003).
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threat to peace. This negativity is not based only on the invasion of Iraq but on other unilateral moves, all taken in cavalier disregard of the rest of the world’s agenda and values as expressed in the treaty prohibiting land-mines, the Kyoto Protocol on environmental pollution, the Rome Treaty establishing the International Criminal Court and other recent multilateral initiatives. Saddled with so much international animosity, the US can no longer count on the sort of burden-sharing that once animated its creative participation in instruments of multilateral diplomacy such as the United Nations and the North Atlantic Treaty Organization. In great undertakings, nations excluded from the take-off are understandably reluctant to share responsibility for the landing. That, in turn, fuels the argument in Washington for acting without much regard for international institutions and the “old Europe,” heedless of history and of the economic and social implications
III. Succumbing to the Unilateralist Temptation Despite the warnings of history and of economic circumstance, in Washington the unilateralists are in triumphalist ascendance, buoyed by seemingly easy victories in Afghanistan and Iraq. The carefully-crafted postwar system of multilateral diplomacy is being phased out. After World War II, it was the US which was singularly responsible for designing that post-World War II system of institutionalized governance and international law embodied in the UN Charter. Chief of its characteristics was the strict limitation on individual states’ discretion in resorting to force.8 That Charter, a treaty consented to by the US Senate and ratified by America and more than 190 other states, makes it a central point to limit the grounds on which states lawfully may use military force. Article 2(4) stipulates that parties shall “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” With this provision, the world, as it emerged from history’s bloodiest war of aggression, sought forever to repudiate the imperial principle attributed by Thucydides to the Athenians in their aggressive conduct towards the little Melian republic which had vainly sought to stay neutral in the Peloponnesian War: that “the strong do what they can and the weak suffer what they must.”9 Recourse to force, in the new system, was permitted to states in only two
8
See T. M. Franck, Recourse to Force, State Action Against Threats and Armed Attacks 1-52 (2002).
9
The Peloponnesian War, in The Complete Writings of Thucydides (Crawley, transl.) 331 (1934).
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circumstances: if they were the subject of an armed attack (Charter article 51), or if the Security Council decided, in accordance with the terms of the Charter’s chapter VII, that there existed a “threat to the peace, breach of the peace, or act of aggression” (Charter article 39). Of course, the mere fact that almost every nation, formally, had agreed to repudiate the Melian Doctrine did not automatically turn them all into law-abiding saints dwelling in state of transcendental grace. Throughout the first fifty years there were unlawful recourses to force: not only by the US but also by Russia, Britain, France, Egypt, Jordan, Syria, Iraq, Israel, Tanzania, Cuba, India, Vietnam, Argentina, Yugoslavia and others. What distinguished states’ conduct during this first half-century, however, was the effort made by transgressors either to deny that they had used force, or to argue that it had been used only in self-defence against an actual or imminent attack, or to insist that a particular instance of recourse to force, even if technically unlawful, had, nevertheless, prevented a much more serious violation of law (such as an impending genocide or humanitarian disaster). In some instances these explanations were widely viewed as credible and mitigating. In a few cases, the widespread acceptance of the explanation may even have had the effect of slightly modifying the new rule limiting recourse to force.10 At the very least, the explanations seemed to show that “l’hypocrisie est un hommage que le vice rend à la vertu”.11 Now, however, even the fig-leaf of hypocrisy has been all but discarded. While a few government lawyers still go through the motions of asserting that the invasion of Iraq was justified in anticipation of an imminent armed attack,12 the leaders of America no longer much bother with such legal niceties.13 Instead, they boldly assert a new
10
See Franck, supra note 8, chapters 4-10.
11
Duc de la Rochefoucauld, Maxims 218 (1678).
12
“Bush has Legal Authority to Use Force in Iraq”, Address by W. H. Taft IV, State Department Legal Adviser, to National Association of Attorneys General, 20 March 2003. See also Statement by the UK Attorney General, Lord Goldsmith, in answer to a parliamentary question, 18 March 2003, House of Lords, available at http://www.fco.gov.uk (21.9.2004).
13
I have tried to examine the case presented by Britain and the US at the UN and elsewhere to the effect that their action was authorized by Security Council Resolutions 678, 687 and 1441. These contentions simply do not withstand strict scrutiny of these resolutions, which simply envisage action against Iraq in event of its non-compliance with the requisites therein enumerated. It cannot be presumed that the resolutions, in the absence of any indication in the text, intended to transfer to individual members of the Organization the Security Council’s Charter-given power to determine whether its orders have been carried out by the state to which they are addressed and, in the event of non-compliance, what ought to be done about it. See T. M. Franck, “What Happens Now? The United Nations After Iraq”, 97 AJIL 8 (2003).
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policy that openly repudiates the restrictions on recourse to force of Charter article 2(4), replacing it with the Melian principle. It is thus not enough to say that any effort to establish a thousand-year American empire is likely to meet the same fate as all prior essays in global grandiosity. Failure represents a wasted opportunity. Meanwhile, what can the world expect in this neo-Melian order? The effect of the “coalition’s” unauthorized recourse to force in Iraq, in practice and in intent, is to revise and undermine the Charter’s fundamental provisions limiting the discretion of states in the recourse to force. It is true that state practice, even when in violation of the law, may have the eventual effect of reforming the law, sometimes even to the law’s benefit. For example, the International Court of Justice has confirmed that the Security Council’s long-standing practice of not counting a permanent member’s abstention as a veto has had the effect of “reinterpreting” the text of Charter article 27(3), which requires that substantive resolutions receive “the concurring votes of the permanent members”.14 More recently, practice may be said to have legitimated military action by regional organizations when these have received the subsequent approval of the Security Council, despite the Charter’s requirement (in Article 53) that “no enforcement action shall be taken under regional arrangements or by regional agencies without the approval of the Security Council”—a proviso that plainly implies the need for prior approval.15 The new Constitutive Act of the African Union, article 4(h) appears to recognize this important change-through-practice by stipulating “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity” when such intervention is authorized by two thirds of the members.16 That practice, even violations, can reinterpret the law has recently prompted wellmeaning friends of international legal order to attempt reconfigurations of the norms applicable to states’ sovereign recourse to force in the absence of Security Council approval.17 The several recent instances of humanitarian intervention—in Kosovo and in West Africa—in the absence of prior Security Council approval, as well as the launching of the attack on Iraq in 2003, make it attractive to try to bring the law more nearly into line with prevailing practice. In pursuit of such rationalization of the Charter, Dean Anne-Marie Slaughter of Princeton’s Woodrow Wilson School has
14
Legal Consequences for States of the Continuing Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16, at 22, para. 22.
15
See Franck, supra note 8, at 135-73.
16
Available at http://www.africa-union.org (21.9.2004).
17
A.-M. Slaughter, “A Chance to Reshape the UN”, The Washington Post, 13 April 2003, B.07..
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proposed that the Security Council “adopt a resolution recognizing that the following set of conditions would constitute a threat to the peace sufficient to justify the use of force: 1)possession of weapons of mass destruction or clear and convincing evidence of attempts to gain such weapons; 2) grave and systematic human rights abuses sufficient to demonstrate the absence of any internal constraints on government behavior; and 3) evidence of aggressive intent with regard to other nations.”18 Slaughter evidently intends these three requisites to be cumulative, which makes them a useful guide as to when the Security Council ought to authorize a coalition of the willing to act in accordance with Chapter VII, article 42 of the Charter. That provision gives the Council power to “take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security.” It should be noted, however, that the three conditions spelled out by Slaughter already are encompassed by the virtually unlimited power of the Security Council to invoke article 42 whenever lesser means (article 41) have failed and the Council has concluded, in accordance with article 39, that conditions within a state constitute “any threat to the peace, breach of the peace, or act of aggression.” In practice, the Council has authorized recourse to force in situations involving the breakdown of civil authority and widespread starvation (Somalia), the abrogation of democracy by a military junta (Haiti) and large-scale violations of humanitarian law (Bosnia). It might be helpful to spell out other controversial aspect of the Council’s wide latitude, but clearly the authority to act, in the circumstances envisaged by Slaughter, already exists. Unfortunately, the systemic effect of the invasion of Iraq in 2003 cannot be rationalized by clarifying the power of the Security Council to authorize recourse to force. The problem, in that case, was not that the Council lacked power but, rather, that it chose to exercise it in ways not congenial to American policy-makers. By Resolution 1441, members unanimously ordered Iraq to readmit a formidable contingent of inspectors and gave them free rein to examine and hunt at will. This was done under the aegis of Charter article 39, which authorizes that body to decide “what measures shall be taken”. When, instead, the US and Britain decided to resort to force, they did so in the express knowledge that the large majority of Council members opposed their action. That distinguishes the war against Iraq from the other two recent instances in which states have resorted to force without getting prior Council authorization and points to the heart of the challenge the Iraqi action poses to the very notion of international law and institutions. The decision of the West African Economic Community (ECOWAS) to deploy its forces to deal with humanitarian crises in Liberia and then
18
Ibid.
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in Sierra Leone,19 as also the decision of NATO to intervene in Kosovo, reflected the interveners’ concern that one or two permanent members might veto their action, however well-understood by others. The US-British decision to invade Iraq, on the other hand, reflected defiance of the view shared by 11 of the 15 members of the Council as to how best to address the threat of weapons of mass destruction. Whereas the West African and Kosovo precedents should lead to a reconsideration of the veto (or threat of veto) in such demonstrable humanitarian emergencies, the Iraqi precedent directly challenges the power of the United Nations to place any limits on national sovereignty when it comes to deploying force in a self-perceived national interest. Since those limits are at the heart of the whole enterprise of post-war multilateral governance, the Iraqi precedent challenges the very raison d’etre of the UN. Indeed, the violators have said so explicitly. Although Resolution 1441 charged Iraq with violations of the disarmament regime imposed on it in 1991, it addressed that failure exclusively by deciding “to set up an enhanced inspection regime”20 and providing that, in the event of unsatisfactory compliance, the Council be convened immediately “in order to consider the situation” while warning Iraq of “serious consequences” if there were “continued violations of its obligations....”21 The resolution concludes by emphasizing that the Council “will remain seized of the matter.”22 How could Lord Goldsmith, the British Attorney General, conclude from this that, while there is an obligation to convene the Council “to consider the matter before any action is taken...further [military] action can be taken [by a Member] without a new resolution of the Council” and, moreover, that “all that resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorize force.”23 In proposing her three-point plan, Professor Slaughter observes that the UN “is the forum in which a genuine multilateral decision-making process must take place.”24 Lord Goldsmith, however, sees the UN as an apt place for multilateral discussions, but certainly not for multilateral control over actions sovereign states may wish to take in pursuit of their national security. The trouble is that Slaughter’s vision precisely reflects that of the drafters of the UN system, while Goldsmith’s is that of the
19
For a fuller discussion of these “humanitarian interventions” see Franck, supra note 8, at 155-173.
20
UN Doc. S/RES/1441 (2002), preamble and para. 2.
21
Ibid., paras. 12, 13.
22
Ibid., para. 14.
23
Statement by the Attorney General, Lord Goldsmith, in answer to a parliamentary question, Tuesday, 18 March 2003 (House of Lords), supra note 12.
24
See Slaughter, supra note 17.
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international anarchy it was intended to displace, but which is again emerging as the predominant mode in international relations. A “genuine multilateral decision-making process” such as Slaughter envisions requires a willingness on the part of each participant not merely to hear, but also to accept views, perceptions and policies it does not share, but which prevail within the institution in which a previously-agreed process occurs in accordance with mutually-accepted rules. Thus, for example, in the run-up to the Iraqi invasion it became clear that the overwhelming majority of states were of the view that Iraq either did not have weapons of mass destruction or that these could be found by augmented UN inspections. On the evidence, very few accepted the ostensible link between Al Qaida and the Ba’ath. This was a perception, underpinning a policy, which the US and UK were willing to discuss, but not to adopt. Indeed, they were quite unwilling, not just in the instant case but also on principle, to accept that they should ever have to do so. In essence, therefore, the Iraqi crisis was not primarily about what to do, but who decides. There is an answer to that problem in article 27 of the Charter. The United States is not just another of the Organization’s more than 190 members. It, and four other permanent members of the Security Council have the extraordinary power of the veto. Little can be done by the Organization without the assent of Washington, and the US takes frequent advantage of this preferred status. However, the Chartersystem does not give the permanent members the power to initiate action, except in response to an armed attack. While this may have seemed an acceptable deal in 1945, apparently it no longer corresponds to the ambitions of the US, now that it is the sole superpower. And there’s the rub. Evidence of a more generalized refusal any longer to subordinate American power to the constraints of international law and institutions was already apparent in the National Security Strategy document published by the White House in September 2002.25 This recapitulates several statements made by President George W. Bush between 20 September 2001 and 1 June 2002. First, it stipulates that, since the US “cannot let our enemies strike first” it “will, if necessary, act preemptively” and do so “even if uncertainty remains as to the time and place of the enemy’s attack.”26 This is not only a departure from the terms of Chapter article 51, which demands an actual armed attack before a state may resort to self-defence, but even an expansion of the historic Caroline test, which requires a “necessity of...self-defence [that] is instant,
25
National Security Strategy, The White House, September 17, 2002, available at http:// www.whitehouse.gov/nsc/nss.pdf (21.9.2004).
26
Ibid., at 15 (in Part V, Prevent Our Enemies from Threatening Us, Our Allies, and Our Friends with Weapons of Mass Destruction).
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45
overwhelming, and leaving no choice of means, and no moment for deliberation.”27 In place of these norms it sets out what appears as a “balance of probabilities” test for a nation’s recourse to force in anticipatory self-defence. Second, however, the NSS asserts an even more far-reaching right: “While the United States will constantly strive to enlist the support of the international community,” President Bush said, “we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country.”28 Taken together, these two propositions seem to spell out not only a broadly expanded concept of self-defence (which, in the era of weapons of mass destruction and terrorism, may be inevitable) but also an unlimited US right to decide for itself whether conditions exist for the exercise of that right anywhere in the world. Such a doctrine is not a proposal for a new international law, because the US itself would be unwilling to concede such an unlimited reciprocal right of action to any other state.29 It does, however, spell out a principle, that ascribed by Thucydides to Athens in its conduct towards Melos, a brazen double standard which Yale Professor Harold Koh has called “the most virulent strain of American exceptionalism.”30
IV. Alternative Strategies for the Superpower in Its Fifteen Minutes The American era as sole superpower is shaping up as just another Melian moment. This is neither necessary, nor necessarily in America’s best interest. But, given the grim prospects following the 2001 attacks on New York and Washington, what alternative is there? The answer to that question calls for careful attention to the lessons of history and of socio-economic circumstances. Were that attention to be paid, it would rule out all
27
Letter from Daniel Webster to Lord Ashburton (6 August 1842), quoted in J. Bassett Moore, A Digest of International Law, vol. 2, 412 (1906).
28
See National Security Strategy, supra note 25, at 6 (in Part III, Strengthen Alliances to Defeat Global Terrorism and Work to Prevent Attacks Against Us and Our Friends).
29
Even while asserting its own right of preemptive self-defense, the United States has properly hesitated to recognize any other country’s claim to engage in forced disarmament or preemptive self-defense in the name of homeland security. See M. E. O’Connell, The Myth of Preemptive Self-Defense 3 (2002).
30
H. Hongju Koh, “On American Exceptionalism”, 55 Stanford Law Review 1479, at 1500 (2003).
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unilateralist solutions to the problem of American national security. In Harold Koh’s words, For over the past two centuries, the United States has become party not just to a few treaties , but to a global network of closely interconnected treaties enmeshed in multiple frameworks of international institutions. Unilateral administration decisions to break or bend one treaty commitment thus rarely end the matter, but more usually trigger vicious cycles of treaty violation. In an interdependent world, the United States simply cannot afford to ignore its treaty obligations while at the same time expecting its treaty partners to help it solve the myriad problems that extend far beyond any nation’s control: the global AIDS and SARS crises, climate change, international debt, drug smuggling, trade imbalances, currency coordination, and trafficking in human beings, to name just a few.31
To this list one may add as capstone, terrorism. Through the Chapter VII system of mandatory measures, the Security Council, at the instigation of the US, has imposed a global system of controls, reporting and supervision. Why should countries, far less threatened than America, cooperate in this regulatory scheme, even at some risk of themselves becoming targets of the terrorists, if not out of respect for their inextricable link to the system of mutually respected norms and institutions? It would also rule out the “solution” of dependence on ad hoc coalitions. Some American so-called realists link the demise of the UN system to the invention of something more amenable to the exercise of appropriate American leadership. Professor Michael Glennon, of the Fletcher School, thinks “[a}d hoc coalitions of the willing will effectively succeed it.”32 Really? Have we not already seen in the recent conflict what these ad hoc coalitions will look like: a sizeable contingent from Britain and Australia, a few policemen from Poland, Romania and Bulgaria, at least until those nations are integrated into “old” Europe, and good wishes from Israel?33 Have we not already witnessed the refusal of almost everyone else to send personnel or money until they can do so under UN auspices? Is it not all too apparent that the investment of 200,000 troops and almost two billion dollars a month has crippled America’s capacity to play a leading role anywhere else, whether in the Balkans,
31
Ibid., at 1501.
32
M. J. Glennon, “Why the Security Council Failed”, 82 Foreign Affairs 16, 34. (issue 3/ 2003).
33
There are currently 21,000 other troops in Iraq: 11,000 from the UK Token forces have also been sent by Albania, Azerbaijan, the Czech Republic, Denmark, Estonia, Georgia, Hungary, Italy, Latvia, Lithuania, Macedonia, the Netherlands, Norway, Poland, Romania, Slovakia, Spain and Ukraine. See The New York Times, 14 August 2003, at A1.
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Afghanistan, Liberia or Korea? Real realism, in place of the prevailing unilateralist fantasies, would force a sober reconsideration of the national advantages to be gleaned, even for the sole superpower, of a return to the norms and institutions of multilateral diplomacy. This requires leadership, not bullying. In the words of Harvard’s Professor Joseph Nye, “If I can get you to want to do what I want, then I do not have to force you to do what you do not want to do.”34 In its fifteen minutes of imperium, instead of pursuing a policy of boastful domination and heedlessness, the US ought to be nudging the world towards a more effective cooperative approach to the three predominant global problems of the century: terrorism, failed states and poverty. As noted above, the only viable tactic for promoting its solutions—aside from having solutions—would be for the US to use its influence behind the scenes to make the nations of the world feel that it is they who are designing the common approach to these three related problems. There is ample room for creativity and ideas aplenty, many of them originating with global networks of experts and emanating from fifty years of field experience by international organizations. Most of the components of reform are, by now, selfevident and interdependent: that is, a way must be found to do all of the necessary parts of the essential whole and not just bits and pieces of it. The world needs a standing transnationally-recruited, volunteer rapid reaction force; its deployment must be by multilateral decision but not subject to one-state veto; it must be under a centralized international command; its components must include police, intelligence experts and personnel trained in reconstructing civil societies; it must be funded by a flat assessment against the gross national product of every state (or comparable measure); and it must be configured, administratively, and authorized to act in close cooperation with the complementary capabilities of the world’s major powers as well as with the world’s financial, monetary, and economic development institutions. No small task, you say? Of course not. But what’s the sole superpower’s exalted status for, if not to tackle the world’s really big tasks and to do so in a creative but subtle way; so that, when its fifteen minutes are up, we will all be living, appreciatively, in a better, safer, more civilized place? August 2003
34
J. S. Nye, Jr., The Paradox of American Power: Why The World’s Only Superpower Can’t Go It Alone 9 (2002).
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Two Faces of Hegemony
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Two Faces of Hegemony Andrea Gattini*
I.
Introduction
International law, as a normative system regulating interstate relations and as a social science, has always struggled with the concept of hegemony. It is interesting to note that even a critical and historically alert scholar as Onuma recognizes that “European” international law was less “unilateralistically and hierarchically oriented” than Sinocentrism or the Muslim sy’ar, providing therefore for less powerful nations “a more attractive and useful tool to fight against more powerful nations”.1 There has been virtually no epoch in which one state or another has not tried to take advantage of its comparative strength in terms of cultural, economic, and above all military power and to affirm its hegemony over the others. International law has dealt with this bothersome phenomenon in various ways. One option is just to ignore it, by throwing it beyond the realm (or boundaries) of legal discourse: the sovereign equality of all members States of the international community before the law2 is an indispensable assumption (a “costituent fiction”3) which does not need to correspond to reality, in which of course some are “more equal” than others.4 Formally States are always free to enter or not into international agreements, even if it is obvious that the pressure for entering or the cost for not entering may be greater for some states than for others. That some states in certain
*
Associate Professor of International Law, University of Urbino (Italy).
1
Cf. Y. Onuma, “When was the Law of International Society Born?—An Inquiry of the History of International Law from an Intercivilizational Perspective”, 2 Journal of the History of International Law 1, at 65 (2000).
2
For this classical definition of sovereign equality see H. Kelsen, “Theorie du droit international public”, 84 Recueil des Cours 1, at 104 (1953).
3
For this felicitous expression see P.- M. Dupuy, “Comment”, in M. Byers/G. Nolte (eds.), United States Hegemony and the Foundations of International Law 176, at 179 (2003).
4
See N. Krisch, “More Equal than the Rest? Hierarchy, Equality and US Predominance in International Law”, in Byers/Nolte (eds.), United States Hegemony, supra note 3, at 135.
Austrian Review of International and European Law 8: 49-60, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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circumstances favourable to them can bend or even break the law and get away with it without having to fear any serious consequence is more annoying, but that is everybody’s experience in everyday life too. To judge whether a certain conduct is an iniuria, from which inescapably ius non oritur, or a factum, from which a norm could possibly arise, is to a certain extent a matter of sense and timing, for which the opinio iuris ac necessitatis, especially of the most influential members, offers the suitable theoretical tool.5 This peculiar blend of formalism/pragmatism so typical of the international law system, far from being an opportunistic device, reflects ancient wisdom: law must not only discipline but also serve the society which creates it, and history teaches that no human society ever remains the same, perceptions and habits change, patterns of power shift, empires rise and fall, pace all those propagating, alas prematurely, the end of history.6 A second option tries to figure out the relative advantages of anchoring in legal rules the position of a great power, as an order-furthering factor. The history of international law from the nineteenth century onward is marked by the attempt to “constitutionalize” the international community, which implies a certain distribution of functions between its members according to their power,7 from the old fashioned and fluid distinction between “puissances à interêts generaux” and “puissances à interêts singuliers”8 to the distinction, anchored in the UN Charter, between the permanent members of the Security Council and the other members of the United Nations.9 However it must be stressed that the element of hegemony built into the UN system was envisaged as a collective one, and for that same reason tamed to a great extent, and functionally limited to the maintenance of collective security. The prerogatives of a permanent member through the exercise of its veto power are construed in purely negative or “defensive” terms: instead of being able to impose a
5
The relation between power and custom is a classical topos of international law theory, in the infinite literature see M. Byers, Custom, Power and the Power of Rules (1999).
6
For a timely critique of Fukuyama’s wishful thoughts as applied to international law theory see S. Marks, “The End of History? Reflections on some International Legal Theses”, 8 European Journal of International Law 449 et seq. (1997).
7
Cf. G. Simpson, Great Powers and Outlaw States, at 68 (2004) for the definition of “legalised hegemony”, the first element of which is the “constitutional basis to the dominance of certain powers”.
8
This time honoured distinction is followed by H. Mosler, Die Grossmachtstellung im Völkerrecht (1949).
9
See for all H. Kelsen, The Law of the United Nations, at 276 (1950): “The veto right of the five permanent powers above the law of the UN establishes their legal hegemony over all the other members of the organization” (emphasis added).
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certain course of action, all that a permanent member of the Security Council may obtain is to prevent its adoption by the Organization, which per se does not exclude that the same action could be taken outside of the framework of the Organization, if consistent with general international law, as it is the case for the protection of obligations erga omnes.10 We all are well aware that the discussion has in the last decade been moving away from the UN and the efforts for its reform and it is now focusing on the perspective of the international society, including the UN itself,11 under a sole hegemonic power, and the impact that this situation may have on the structure of international law itself.12 However challenging this discussion may be from an intellectual perspective, I doubt its reality and its inevitability. To substantiate my doubts I will make use of two perspectives, that of a classical discourse on hegemony (section II) and that of globalization (section III).
II. Classical Hegemony On the one side, there is the classical approach which consists in weighing a state’s power per se and in comparison with that of others, and with regard to its capability of expressing and expanding itself. From this angle undoubtedly the USA currently displays a panoply of power, and a will to make use of it in furtherance of its goals,
10
For a systematic overview of the multifaceted relations between the UN system and general international law with special regard to the protection of obligations erga omnes see P. Picone, “Interventi delle Nazioni Unite e obblighi erga omnes”, in the volume edited by same Author, Interventi delle Nazioni Unite e diritto internazionale 517, at 552 (1995). The theory of the Author is of particular interest, because it tries to fully apprehend the structural change that the concept of obligations erga omnes has brought about in the international legal system as a whole, in the way of its “verticalization”. The Author cautions that the term must be properly understood in its normative dimension, i.e. as the faculty of every State to react uti universi to a violation of an obligation erga omnes, and should not be equated or confused with the wholly different aspect, that, as a matter of fact, the predominant States are in a better position to react. For a recent overview see P. Picone, “La guerra contro l’ Iraq e le degenerazioni dell’ unilateralismo”, 86 Rivista di diritto internazionale 329, at 332 (2003), especially footnotes 8 and 9 with indication of his previous contributions.
11
See J. Alvarez, “Hegemonic International Law Revisited”, 97 American Journal of International Law 873, at 874 (2003), for whom the perspective of an “hegemonic capture of the Security Council…should not be relegated to science fiction”.
12
Besides the authors already quoted, see for a short masterly assessment D. Vagts, “Hegemonic International Law”, 95 American Journal of International Law 843 et seq. (2001).
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which is incommensurate with that of any other state. However, turning to the question of how this is being expressed and how far it is predicated on changing the very structure of international law, the answer is multifaceted. First, to speak of the USA as of a monolith is inappropriate. The US society is much more complex and pluralistic than it is usually thought to be. There may be a bipartisan tradition in the USA that understands the role of international law to usually be a tool fit for consolidating its leading role in international society, but here differences in methods mean more than mere differences in styles or tactics. The preference for the use of soft power and the search for multilateral institutional solutions, typical of US Democratic administrators, can not be equated with the bullying attitudes and uncompromising unilateralism, which is the mark of the present neo-conservative administration. 13 It is true that the previous administration occasionally bombarded Baghdad without the authorization of the Security Council,14 but on the whole its containment strategy was something substantially different from the outright full-scale invasion of Iraq which took place last year. Of course, one could argue that the mere possibility of a state acting in unimpeded disregard of (presumably) still existing international law, as the present US Government has done by invading Iraq, already points to a structural change in international law itself. I think that this inference would be too hasty and unwarranted. Surely no state was able, inside or outside the United Nations, to impede the US Government from carrying out its decision, but it is significant that the US and its allies tried to win as much support as possible, first by trying to get an authorising resolution from the Security Council,15 and then by mobilising the widest range of albeit improbable international law arguments and rhetoric as they could.
13
For an opposite view see, among others, P. Fitzpatrick, “‘Gods would be needed…’: American Empire and the Rule of (International) Law”, 16 Leiden Journal of International Law 429, at 430 (2003); and by the same Author, “Immanence of Empire”, in J. Dean/P. Passavant (eds.), The Empire’s New Clothes 31 (2003).
14
With regard to the bombardment of June 1993 see L. Condorelli, “A propos de l’ attaque américaine contre l’ Irak du 26 juin 1993", 5 European Journal of International Law 134 (1994); with regard to the bombardment of December 1998 see J. M. Thouvenin, “Le jour le plus triste pour les Nations Unies—Les frappes anglo-américaines de décembre sur l’ Iraq”, 44 Annuaire français de droit international 209 (1998).
15
With the caveat that an eventual authorization by the Security Council would not have substantially changed the unilateral nature of the US and UK conduct. On the necessity to radically distinguish between at least two different normative models with regard to SC ‘authorizations’, depending on the grade of the control maintained by the SC see Picone, “La guerra contro l’ Iraq”, supra note 10, at 339, and already by the same Author, Interventi delle Nazioni Unite, supra note 10, at 545; idem, “La ‘guerra del Kosovo’ e il diritto internazionale generale”, 83 Rivista di diritto internazionale 309, 332 (2000).
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A second consideration regards the various elements which make up hegemony. If in military matters the USA shows a troubling and growing inclination to get rid of constraints and controls,16 in economic matters the same cannot be said. Setting aside the international financial institutions such as the IMF and the World Bank, in which the USA has from the beginning enjoyed an institutionally guaranteed hegemony, its role in the WTO is much more dialectical. For the USA the strengthening of the system has led not only to benefits but also to occasional defeats.17 From this a third consideration follows, which goes beyond the current dispute over the way the USA exercises its power, and questions the real strength of that power. There are more than a few signals suggesting that that power is actually declining, not rising.18 If US military strength is indisputable and awesome, the same cannot be said of its actual economic might and cultural predominance, the indispensable tool of that hegemonic “soft power” in which the USA once excelled, and which alone can guarantee the stability of that same hegemony.19 As for the first, it is a fact that the maintenance of the US pivotal role in the world economy is based on the choice of other economic actors, such as the EU, not to openly challenge its position, more than on its own strength and capacities. As for the second, it is difficult to say how “Americanized” commonly shared cultural ideas and perceptions are. One cannot say that the US tendency to shape the very concepts of human rights and democracy in its own image has succeeded up to now. There are enough questions, from the death penalty to the protection of economic and social rights, from the ozone layer to biodiversity, not to speak of the establishment of an international criminal court, in which the USA has not been able to stop what it perceived as an unwelcome trend or to persuade the majority of other components of international community as
16
Mention is made here to the US note of December 13, 2001 on withdrawal from the 1972 Anti-Ballistic Missile Treaty in order to move forward unfettered with the implementation of the controversial Missile Defense Plan. The present US government also refused to agree to an Optional Protocol to the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and on their Destruction, with the purpose of establishing an inspection system, see S. D. Murphy “Contemporary Practice of the United States Relating to International Law”, 95 American Journal of International Law 873, at 899 (2001).
17
A statistical survey of the WTO dispute settlement activity from 1995 to 2003 shows that the US has been the party which both has brought the most complaints (76 out of 333) and against which the most complaints have been brought (81 out of 305), cf. K. Leitner/S. Lester, “WTO Dispute Settlement 1995-2003: A Statistical Analysis”, 7 Journal of International Economic Law 169 (2004).
18
Cf. the only apparently provocative essay by E. Todd, Après l’ empire (2002).
19
Cf. the renowned analysis of J. Nye, The Paradox of American Power (2002).
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to the superiority of its views.20 Once again, one could object that the present state of hegemony makes it unnecessary for the USA to compromise its positions in order to subdue opposition or criticisms, and that at any rate the USA could feel comfortable in changing its role from that of a leading “opinion maker” to that of a persistent objector.21 But, here again, this shift in the perception and self-perception of the US role, unfortunate as it might prove to be for the development of international cooperation, would not change by itself the structure of international law and of its sources. However, a tangible sign of a truly imperialistic conception of international law, better of the negation of the latter, would be the attitude of the hegemonic state to extend its own domestic law to govern international relations.22 as the USA is indeed increasingly doing. But one here should be particularly cautious before drawing a conclusion. First, there is a long US tradition of attempts to extraterritorially apply its domestic statutes,23 which has regularly met with opposition and occasionally blocking statutes from outside. Second, there is the relatively novel trend, albeit based on a statute dated from 1789, for domestic courts to hear claims arising outside and on the whole unrelated to the US. Although the risks of abuses should not be underestimated, 24 and its pecuniary emphasis might be perceived as utterly unsatisfactory, the Alien Tort Statute has until now had on balance a rather beneficial
20
Cf. the contributions by S. Toope, Powerful but Unpersuasive? The Role of United States of America in the Evolution of Customary International Law and by A. Skordas, “Hegemonic Custom?”, in Byers/Nolte, United States Hegemony, supra note 3, 287, 317 respectively.
21
See B. Kingsbury, “Sovereignty and Inequality”, 9 European Journal of International Law 599, at 610 (1998) views the persistent objector rule as “mainly a negotiating card (or possible outlet) for the powerful”.
22
See Krisch, “More equal than the rest?” supra note 4, at 160; U. Mattei, “A Theory of Imperial Law: A Study on US Hegemony and the Latin Resistance”, 10 Indiana Journal of Global Legal Studies 383 et seq. (2003), who however, apart from some specific aspects of US substantive and procedural law, sees the sign of imperialism in a more “general process of Americanization in legal thinking” on a world-wide scale.
23
Cf. M. Gibney, “The Extraterritorial Application of US Law: The Perversion of Democratic Governance, the Reversal of Institutional Roles, and the Imperative of Establishing Normative Principles”, 19 Boston College of International & Comparative Law Review 297 (1996); V. Mani, “Unilateral Imposition of Sanctions Through Extraterritorial Application of Domestic Laws: A Tale of Two US Statutes”, 38 Indian Journal of International Law 1, (1998).
24
For the label of “humanitarian imperialism” see A. Cassese, “International Criminal Justice: Is It Needed in the Present World Community?” in G. Kreijen (ed.), State, Sovereignty, and International Governance 239, at 243 (2002). That Author expresses his concern for the fact that this kind of conduct goes “hand in hand with the tendency of the US Government to take upon itself the task of policing the world”. See also U. Mattei/J. Lena, “US Jurisdiction
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effect for the cause of the international redress of grave breaches of human rights. Third, in 1996 there has been an Amendment to the Foreign Sovereign Immunity Act in order to deny immunity from jurisdiction to States responsible of grave breaches of human rights or labelled as sponsors of terrorism.25 But, if the US 1996 statute might be criticized from some aspects, this is a tendency which is found in other states as well, and which has been on the brink of being blessed by the European Court of Human Rights.26
III. Hegemony and Globalization If from a classical perspective US behaviour can still on a whole be accommodated within the framework of the international law we are accustomed to, there is a second way to look at the problem, which makes the picture much more complex and potentially harmful. This perspective focuses on the changes in the nature of international law which are due to the globalization and questions the role which the USA plays in the process. As is well known, theories differ about the nature of globalization and how it will effect on an international law primarily based on states as political units governed by the principle of sovereign equality.27 In particular, it is not at all certain that the state as such will evaporate in the process of globalization,28 or that all states will be equally affected. For those who view globalization as an outright “americanization” of the world,29 the matter is easily disposed of. Far from disaggregating into a bundle of services
Over Conflicts Arising Outside of the United States: Some Hegemonic Implications”, 24 Hastings International & Comparative Law Review 381 (2001). 25
Section 221 of the Anti-Terrorism and Effective Death Penalty Act—Public Law No. 104132, 110 Stat. 1214.
26
See El Adsani v. UK, Appl. No. 35763/97, ECHR 2001-XI.
27
For a recent and concise overview see A. von Bogdandy, “Demokratie, Globalisierung, Zukunft des Völkerrechts—eine Bestandaufnahme”, 63 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 853 (2003).
28
See in this sense O. Schachter, “Decline of Nation State and Its Implications for International Law”, 36 Columbia Journal of Transnational Law 7 (1997); W. Werner/J. De Wilde, “The Endurance of Sovereignty”, 7 European Journal of International Relations 283 (2001). For the opposite view see M. Reismann, “Designing and Managing the Future of the State”, 8 European Journal of International Law 409 (1997). On the whole see G. Kreijen (ed.), State, Sovereignty and International Governance (2002).
29
See for instance S. Sur, “The State Between Fragmentation and Globalisation”, 8 European Journal of International Law 421, at 433 (1997).
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connected in a world network for the benefit of the consumer, as some neo-liberal visionaries want us make to believe,30 the USA would be in fact on the way to world domination through the corrosion of the integrity of potentially competing states. This is an oversimplification of reality, unless the noun “americanization” is taken as a synonym for the empire of the capitalistic system.31 In this latter meaning, it is true that the western model of state is in the process of loosen its administrative hold on economic governance. If this process has to be welcomed as an efficient reshaping of power leverages in an integrated and multileveled international environment, or to be lamented as a dismantling of the achievements of social cohesion and a surrender to the market’s dominance, is not a question which has to be answered here. The point is that in any case the state lays down some of its prerogatives and is put on the same level as other actors such as international institutions, “independent” agencies, interest groups, corporations, individuals. This cannot but have a profound impact on the nature of international law, or at least on some of its tenets, first of all on sovereign equality. Indeed, it is clear that even in an advanced stage of international economic interdependence, states will not disappear as principal units of order and governance. Rather, as Kingsbury has aptly argued, the crucial change is likely to be normative, until reaching a functional concept of sovereignty as a “bargaining resource of variable quantum”.32 It is obvious that the most powerful states will be in a better position to bargain their power, or even to make the deal at the expenses of others. This uneven diminution of state sovereignty will not only lead to a re-division of the world into zones of “civilization” reminiscent of a colonial past, but will also be most dramatically felt in a loosening of the restraints on coercive intervention.33
30
See A. M. Slaughter, “International Law in a World of Liberal States”, 6 European Journal of International Law 503 (1995). For a less radical view of an “evolving” sovereignty concept as a question of optimal “multilevel power allocation policy” see J. Jackson, “SovereigntyModern: A New Approach to an Outdated Concept”, 97 American Journal of International Law 782 (2003).
31
Cf. P. Allott, “International Law and the American Mind”, ASIL Proceedings 129 (2003), for whom since 1870 the reality of America has been “the catastrophic experience of capitalism, that juggernaut of social transformation, the new leviathan, unstoppable, irresistible capitalism, capitalism with its power to corrupt all values and all institutions, capitalism with democracy as its wily servant and its officious agent”. For an enlarged perspective, according to which the existing system of international institutions would already point at an “imperial global state in the making” see B. S. Chimni, “International Institutions Today: An Imperial Global State in the Making”, 15 European Journal of International Law 1 (2004).
32
Cf. Kingsbury, supra note 21, at 617.
33
See Kingsbury, supra note 21, at 618.
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It is at this point that the discourse on globalization meets the specter of hegemony. It might well be that liberal states, in the meaning of free market oriented democracies, are not likely to fight each other, so that the system of a “liberal” world should incarnate the ideal of a perpetual “liberal” peace,34 but this does not at all imply that liberal states are less inclined to use force than others. On the contrary, their missionary and self-righteous zeal pushes them to override ethical and normative barriers against the use of whatever they deem to be “just” force.35 There are theories which go even further and view war as immanent in the very concept of globalization. The views differ with the perspectives. So, for neo-colonial studies, it is quite obvious that “globalization” is but a synonym of a predatory design by western states to re-establish their control over world strategic resources, preferably through the interplay of international financial institutions, but if need be through some more decisive destabilising devices or the outright use of force.36 For other theorists a permanent state of emergency, a constant conflict with the “Other”, be it with an opportunely designated “rogue” state37 or even more aptly with a “global” threat such as terrorism, is even necessary for the self-understanding and survival of the very concept of state in the age of globalization.38 After all, from Hobbes onward, sovereignty has commonly been understood as obedience in exchange of protection.
34
See M. Doyle, “Kant, Liberal Legacies and Foreign Affairs”, 12 Philosophy and Public Affairs 205 (1983), and Slaughter, supra note 30, at 509.
35
For a timely critique of Slaughter’s thesis see P. Alston, “The Myopia of the Handmaidens: International Lawyers and Globalization”, 8 European Journal of International Law 435 (1997); J. Alvarez, “Do Liberal States Behave Better? A Critique of Slaughter’s Liberal Theory”, 12 European Journal of International Law 183 (2001).
36
See A. Anghie, “Time Present and Time Past: Globalization, International Financial Institutions and the Third World”, 32 New York University Journal of International Law and Politics 243 (1999-2000).
37
Neoliberal theories predict a trasformation of war into police power with regard to so called ‘outlaw’ states. See critically J. Simpson, “Two Liberalisms”, 12 European Journal of International Law 537, at 570 (2001), who exposes the neoliberal habit to liken ‘rogue’ states to deviants, subjecting both to a repressive system of “continual surveillance and occasional disciplinary violence”; of the same Author, supra note 7, at 76, for the view that liberal anti-pluralism, differently from the “legalised hegemony”, destroys any semblance of a formalized system of “sovereign equals”. For the nexus between war and “global police” see recently A. Dal Lago, Polizia globale: Guerra e conflitti dopo l’ 11 settembre (2003).
38
See from a philosophical perspective J. Derrida, Voyous (2003), for whom this would be the logical consequence of two assumptions: the self-immunitarian process inherent in the same concept of democracy, which can always put itself off for the sake of “self-preservation”, and the indivisibility of the concept of sovereignty, which can not but aim at “imperial
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Therefore globalization, somehow “perversely…can serve to confirm the continuing significance of national imperialism”.39 What does this mean for the present discussion on US hegemony? From what has been said above, it seems that a new hegemony may necessarily have to be conceived of in terms of military strength alone. In fact it does not come as a surprise that there are now in the USA intellectuals who explicitly propagate the inevitability of war for the defence of the free markets,40 or favourably compare US readiness to display its military power in today’s “world jungle” with European weaknesses, cowardice and fancies about an outdated international law.41 In all respects, the invasion of Iraq marks the crossing of a threshold. Not only it was an unapologetically, openly defiant blow by the USA to the collective will of the Security Council. It also departed from the “zero casualty” doctrine, cherished by the prior US military and political establishment, which is now felt irreconcilable with the pathos and ethos of a “superpower” worthy its name. This development sheds a sinister light on President Bush’ National Security Strategy document of 17 September 2002, a document which some have tried to accommodate as a dialectical attempt to reinterpret customary international law on self-defence.42 More than the proclaimed right of pre-emptive self-defence against terrorist threats and proliferation of weapons of mass destruction,43 for which some arguments could be made, the real
hegemony”. On the concept of a “permanent state of exception” see G. Agamben., Stato di eccezione. Homo sacer II (2003). From a strategic studies perspective see A. Joxe, L’ empire du chaos (2002). 39
See Fitzpatrick, “Gods would be needed”, supra note 13, at 450.
40
See P. Bobbitt, The Shield of Achilles: War, Peace and the Course of History (2002).
41
See R. Kagan, Power and Weaknesses, 113 Policy Review (June-July 2002); ibid., Of Paradise and Power (2003).
42
Cf. C. Greenwood, “International Law and the Pre-emptive Use of Force: Afghanistan, AlQaida and Iraq”, 4 San Diego International Law Journal 7 (2003); M. Schmitt, “Pre-emptive Strategies in International Law”, 24 Michigan Journal of International Law 513 (2003); A. M. Slaughter, “An American Vision of International Law?” ASIL Proceedings 125 (2003); M. Byers, “Pre-emptive Self-Defence: Hegemony, Equality and Strategies of Legal Change”, 11 Journal of Political Philosophy 171 (2003), who however concedes that the US effort aims “to alter dramatically” the international rules on the use of force (at 189). For a critical assessment see C. Gray, “The US National Security Strategy and the new “Bush doctrine” on preemptive self-defense”, 1 Chinese Journal of International Law 437 (2002); E. Cannizzaro, “La dottrina della guerra preventiva e la disciplina internazionale sull’ uso della forza”, 86 Rivista di diritto internazionale 171 (2003).
43
One should note that the language deliberately recalls that of the Atlantic Charter of 14 August 1941, see the text in American Journal of International Law Suppl. 1941, at 191. It
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motive of the NSS seems to be the determination of the US Government “to dissuade potential adversaries from pursuing military build-up in hopes of surpassing, or equalling, the power of the United States”44. Taken together with the neo-liberal millenarianism which pervades the present US administration, its pronounced “interest” in holding its grip on strategic resources such as oil45, and its unabashed contempt for international institutional or multilateral checks, this amounts to little less than an admission of a resolute will to dominate the world, to establish an ultimate imperium, whatever the price might be. Should this be the grand strategy behind some recent US moves, such as the labelling of some states as belonging to an “axis of evil”,46 one cannot help but see the future with apprehension. International law is not new to such grosswahnsinnige challenges, and it is little consolation to remember that it was with the decisive help of the USA that it managed to escape this danger once.
IV. Conclusions History will tell. For the present one thing is sure: despite of the present turmoil, international law has not yet changed its nature. The aftermath of the invasion of Iraq is a case in point. The unforeseen difficulties of quickly reshaping Iraq according to US will, the daily death rate which the occupation exacts, and the US desperate attempt to enlarge the coalition and/or to bring the issue back to a reluctant UN have shown that the US “hyperpower” has already been over-stretched, and that the death-knell for the UN was once again untimely rang. Furthermore, a whole year after the invasion the world peace movement has proved that it is still the alternative “superpower”, and the ever growing criticism of the electorates of those same states which participated in the “Operation Iraqi Freedom” makes it now look highly probable that those responsible for that adventure will at least politically, if not legally, pay
is not clear whether the suggested inference should be that the US Government considers itself entitled to engage in a “pre-emptive” world war. 44
The National Security Strategy of the United States of America (17 September 2002) at 30, available at http://www.whitehouse.gov/nsc/nss.html.
45
An exponent of the afro-american studies in international law interprets the Iraqi invasion as the first North-South Resource War of a new generation, aimed to establish “a colonial regime over Iraq”, cf. H. Richardson III, “US Hegemony, Race and Oil in Deciding UN Security Council Resolution 1441 on Iraq”, 17 Temple International & Comparative Law Journal 27, at 69 (2003).
46
Cf. President George W. Bush’s State of the Union Address, 29 January 2002, available at http://www.whitehouse.gov/news/releases/2002/01.
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for their decisions.47 At the beginning of this short essay, I have described international law as a peculiar blend of formalism and pragmatism. Surely, there is something more in it, and it is the task of every international lawyer to nurture it. One could call it, along with Koskenniemi, “an overarching standpoint”,48 as politically and ideologically biased as it may be. This underlying choice is nevertheless necessary in order not to make international law lapse into “pragmatism all the way down”,49 which often is a sign of intellectual poverty rather than of intellectual strength. The overarching standpoint I share, maybe a hopelessly old fashioned one, is that international law is there to provide the actors of the international society with codes of conduct which are both indispensable for guaranteeing their reciprocal respect, their cultural, religious and ideological differences notwithstanding, and apt to further not only their peaceful coexistence but also co-operation.50 Such a view is simply irreconcilable with that of an overbearing, aggressive hegemon. Instead of untimely hurrying to hail the new emperor, it is rather time to hurry to bar him the way. June 2004
47
See the editorial of The Economist of 20 March 2004, “One down, three to go”, whereby the first is the recently defeated Spanish Prime Minister Mr. Aznar, and the latter Messrs. Bush, Blair, and Howard, respectively US President, British and Australian Prime Ministers.
48
Cf. M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 516 (2001).
49
Ibid.
50
Cf. P.- M. Dupuy, “International Law: Torn between Coexistence, Cooperation and Globalization”, 9 European Journal of International Law 278, at 284 (1998): “Law has a meaning, that is to say, a direction and a orientation historically assigned to it. The renunciation of force, itself associated with respect for other cardinal principles laid down in the Charter […] is not only a rule of positive law but also a project, an ultimate objective”.
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The Empire(s) of International Law: System Change and Legal Transformation Martti Koskenniemi*
I.
Introduction
It is a commonplace that social description is hard to distinguish from political prescription. In his paper on “Is the Nature of the International Legal System Changing”, Professor Zemanek not only enquires about the way the world is but also expresses an “old European” concern: recent American behaviour is not only hard to fit within existing ways of depicting the international world, but a regressive turn against some of its more valuable aspects. The social-scientific coolness of his query is underlain by a political ethos: if only we (old Europeans) were able to situate American behaviour within an analytic matrix that would suggest that the United States is acting against its own declared ideals as well as the ideals of the international normative world, then, perhaps, we might be able to persuade it to change course, or at least to strengthen the hand of those who think that it should do so. This is a perfectly honourable enterprise. My interest in this paper, however, is not so much to take part in it as to analyse its direction and limits. I see the mélange of the descriptive and the normative in Professor Zemanek’s paper as an occasion to enquire into one type of analysis of recent US behaviour that, to me, seems to produce a onesided or even ideological view of the international world. And if description and prescription really are indissociable, then I am entitled to make the further claim that something about the way many international lawyers, including Professor Zemanek, approach the question—“is the nature of the international legal system changing?”— is responsible for the invisibility of certain deeply entrenched international problems. In his paper, Professor Zemanek employs a contrast between two types of legal system: sovereign equality under universal legal rules on the one hand, imperial dominance on the other. That we now live in a period of transition means that “[t]he traditional body of the international law, based on the legal equality of States, coexists with an ‘imperial tendency’ of the United States”. I have two problems with
* Professor of International Law, University of Helsinki. Global Professor of Law, NYU Law School, Member, International Law Commission (UN).
Austrian Review of International and European Law 8: 61-68, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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this description. First, it tends to portray the past—“the traditional system”—in too linear and positive way. Second, its State-centred description of what is significant today misses important aspects of continuity and change.
II. Understanding the Past: Law and Hegemony Now if the past was indeed a period in which formal rules and sovereign equality dominated, then the five aspects of US behaviour described in Professor Zemanek’s paper signify a departure. But most standard descriptions of the states-system highlight the fluctuations between moments of more or less centralisation and more or less decentralisation, and nearly all of them observe both tendencies in existence nearly all of the time: hence the description of the international world as an “anarchic society”. However, perhaps there is nothing paradoxical about such a description. It is sometimes argued that institutional co-operation is normally achievable only through the activity and guarantee of a hegemon.1 If law is seen as a combination of a normative framework with the power that establishes and upholds it, then the same reality might seem rule-governed and hegemonic simultaneously. In such case, present events would not signify a change in the “nature of the international legal system”, only in its hegemonic basis. This, I think, is suggested by the similarity between Professor Zemanek’s description and that employed by Carl Schmitt half a century ago to characterise the demise of the Ius publicum Europaeum in face of a seaborne Anglo-American commercial-industrial empire.2 What was characteristic to the transformations after the first world war, as Schmitt saw them, was the way in the which the US and Britain relied on abstract humanitarianism and engaged in the discriminatory treatment of “unjust belligerents” so as to justify their hegemonic position. Like Zemanek, Schmitt wished to develop a description of what was new in international law in regard to the past. But where Zemanek views traditional law in terms of the formal equality that it declared on its surface and refers only in passing to how it “always had to be squared with the factual inequality of States in the real world”, Schmitt took “the real world” as his starting-point. For him, equality, non-discrimination and scrupulous application of neutral rules under the Ius publicum Europaeum were based on balance of power
1
For the classic, see R. Keohane, After Hegemony. Cooperation and Discord in the World Political Economy (1984). Keohane suggests a corrective to the theory of hegemonic stability, suggesting the relative autonomy of cooperation once it has been set up by hegemonic power.
2
C. Schmitt, Der Nomos der Erde in Völkerrecht des Jus Publicum Europaeum 200 et seq. (1950).
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and only governed inter-European relations. The non-European world was relegated for 400 years into an object of imperial European Landnahme, a concrete order (nomos), ratified as law by the ability of the Europeans to occupy and set a determined order over it. Schmitt’s use of the sovereign equality/American empire juxtaposition was premised on a sociological jurisprudence that did not appraise a legal system in terms of its formal rules but by identifying the pouvoir constituant behind them. That the old law had ratified a completely Eurocentric system, and peaked in domestic absolutism, was no problem for the conservative Schmitt. For him—as today for many of the American critics of “old Europe”—the demise of that system resulted from the rise of a decadent liberalism in Europe on the one hand, and the inability of a technical jurisprudence, on the other, to articulate Europe’s underlying order.3 The contrast between the European and American periods did not signify a change in the “nature of the legal system”, merely in the power that acted as its guarantor. His suggestion to counteract the American threat was by organising Europe, and the rest of the world, in quasi-imperial “large spaces” (Grossräume)4—a suggestion perhaps reflected in efforts to build up an independent security community within the European Union. But this appears not to be Professor Zemanek’s normative message. The way back to European hegemony is neither open, nor perhaps desirable. Failing to see the way a normative framework interacts with a concrete power underlying it, however, his views remain needlessly idealistic and contrast with recent proposals by some European intellectuals that virtually equate the struggle for “international law” with that for “Europe”.5 If the development of the legal system is seen in abstraction from hegemonic power this may not only produce a one-sided view of the past but also a distorted sense of the political possibilities in the present.
III. Making the Future: What is Visible, what is not? No doubt, contemporary debates on both sides of the Atlantic go often strikingly against the language of formal equality. Surveying nation-building in Bosnia, Kosovo and Afghanistan, Michael Ignatieff concludes that the novel empire may be an empire
3
C. Schmitt, “The Plight of European Jurisprudence” (transl. from “Die Lage der europäischen Rechtswissenschaft”, 1943/44), 83 Telos 35, at 57-70 (1990).
4
C. Schmitt, “Der neue Nomos der Erde”, in C. Schmitt (ed.), Staat, Grossraum, Nomos. Arbeiten aus den Jahren 1916-1969 518-522 (1995).
5
See especially the dialogues in G. Borradori (ed.), Philosophy in a Time of Terror. Dialogues with Jürgen Habermas and Jacques Derrida (2003).
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“without consciousness of itself as such. But that does not make it any less of an empire, that is, an attempt to permanently order the world of states and markets according to [US] national interests”.6 Jean Bethke Elshtein completely dismisses “liberal internationalism of the sort that yields dozens of pacts and agreements and treaties and other quasi-judicial exercises”. In an age of liberal and European “denial”, someone has got to take the hard decision—“politics is not the nursery”. 7 While the Europeans are still “proselytizing their doctrines of international law and international institutions, Americans have begun…turning back toward a more traditional American policy of independence, toward that uniquely American form of national universalism”.8 “Imperialism does not stop being necessary just because it becomes politically incorrect”.9 Such views tend to suggest that, despite occasional appearances to the contrary, the international world continues to be about the use of State power to advance State interests and that in this regard, no significant change has taken place since the description by Thucydides of the relations between Greek city-states around 400 BC. The international system remains unchanging either because human nature is so (“classical realism”) or because the structural dynamics of a states-system condemn it to being so (“neo-realism”). The only change is a circular movement between periods of more or less hegemony or anarchy, the melancholy rise and fall of great powers.10 In this regard, the behaviour of the United States merely affirms the complete submission of the legal system to the play of power and interests that underlies it. There is no “modernity”, Robert D. Kaplan writes: “ancient history…is the surest guide to what we are likely to face in the early decades of the twenty-first century”.11 Yet, how credible is it to cover 2.500 years of social behaviour under one single principle? It may be true that states are appropriately seen as predominant in ancient Greece, renaissance Italy or, say, industrial modernity. But they have not always been and when they have, may not be a result of autonomous laws of the international world but of social configuration of forces within civil society that have sometimes led to a functional differentiation of a “public realm” of diplomacy between elite groups of particular societies. To put feudal states, absolutist states and capitalist
6
M. Ignatieff, Empire Lite. Nation-Building in Bosnia, Kosovo and Afghanistan 2(2003).
7
J. B. Elshtein, Just War against Terror. The Burden of American Power in a Violent World 165, 167 (2003).
8
R. Kagan, Paradise & Power. America and Europe in the New World Order 88 (2003).
9
Ignatieff, supra note 6, at 106.
10
See typically, W. Grewe, The Epochs of International Law (2000).
11
R. D. Kaplan, Warrior Politics. Why Leadership Demands a Pagan Ethos 14 (2002).
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states, for instance, into a single frame is to empty the concept of “State” of its meaning. In each, social relations organise themselves differently. In particular, among capitalist states, the economy is differentiated from other forms of social power, and becomes both imperial and invisible, while state power becomes a territorially constricted focus for public contestation.12 And this is my second problem, one that infects both professor Zemanek’s analysis and the political realist corrective introduced in the previous section. Both are thoroughly embedded in a state-centric universe for which international law is exclusively an instrument of public diplomacy. They are thus blind to the way in which legal rules and principles do more than just oscillate between more or less coordination State policies, multilateralism versus sovereignty. In other words, they leave invisible the aspects of political modernity—referred to as “globalisation”— that take place outside State power and public diplomacy and that call for an altogether different framework of analysis than provided by either multilateralism or Realpolitik. For example, instead of focusing on State politics it is also possible to find the laws of motion of the international world from the functional differentiation of civil society, dictated by the relationship between the forces and relations of production in particular societies. The social world would still be understood in terms of the exercise of power by some over others, but that exercise would now appear to take place by the extraction of surplus value in what is usually cantoned as “economic” (instead of “political”) activity. Under this view, public diplomacy, “states-system” and international law would be functionally related to the system of exchange relations that it would be their task to protect and expand. The international world would then appear not so much a system of state-to-state relations as the expansion of capitalist relationships over the globe.13 Focusing on the longue durée of the Western (capitalist) World-System (circa 1300-2000) the turn from multilateral co-operation to American unilateralism would then signify a transformation in the techniques through which that system is upheld as an “unpolitical” framework of intrinsically transnational private law arrangements. This might be seen as the effect of the break-down of the cultural or civilizational unity that underlay Western predominance, necessitating increasingly violent policing measures by a reinforced imperial centre against the margins. 14 For such an
12
See generally, J. Rosenberg, The Empire of Civil Society. A Critique of the Realist Theory of International Relations (1994).
13
Apart from Rosenberg, see I. Wallerstein, The Modern World-System (1974) and more recently “The Capitalist World-Economy: Middle-Term Prospects”, in I. Wallerstein (ed.), Geopolitics and Geoculture 123-136 (1991).
14
This interpretation of 9/11 is suggested in B. Wicht, Guerre et hégémonie. L’éclairage de la longue durée (2002).
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understanding, the international legal system would consist of a combination of sovereignty-based laissez faire rules that enable the functioning transnational markets through nationally policed private law systems plus rules of imperial co-ordination between and enforcement against national authorities. Such an understanding would finally render legally significant the fact that a quarter of the World’s population—1,5 billion human beings—subsists today below the international poverty line and that more than 6 million children under 5 years die annually of malnutrition created of causes that we have the economic and technological resources to prevent. In the traditional framework for which “economics” was distinct from politics and diplomacy, the fact that the combined wealth of the 200 richest families in the world was eight times as much as the combined wealth of the 582 million people in all the least developed countries was a refection of natural human relationships irrelevant for questions of legal regulation.15 As international lawyers concentrate on great crises, war and terrorism, they overlook the fact that for example in 1998 588.000 deaths were caused by wars while 18 million resulted from starvation from preventable diseases. The decade covering the end of the cold war and the establishment of the World Trade Organization was discussed as one of co-operation and institutional innovation. And yet, while an enormous amount of material resources was freed in the West, the world’s richest countries (members of the OECD) reduced their official development aid (ODA) in 1987-1997 from 0,33 % of their combined GNPs to 0,24 %.16 To see international law as a combination of laissez-faire rules with imperial enforcement would capture such phenomena as aspects produced by an international system instead of occurring naturally within it. The rules of sovereignty and noninterference would then appear as justifications for what Thomas Pogge has called the “international borrowing principle” and the “international resources principle”, the former enabling formal governments to lend money from international financial institutions, the latter endowing them with exclusive right to conclude concession agreements with Western companies with binding force vis-à-vis successor governments and to use the revenues thus attained for buttressing the position of pro-government elites.17 From this perspective, poverty does not emerge from an overwhelming non-political necessity but is produced by aspects of the international
15
United Nations Development Programme, Human Development Report 2000, 73, 82(2000).
16
T. Pogge, “Priorities of Global Justice”, 32 Metaphilosophy 6, at 13-14 (2001).
17
T. Pogge, “Moral Universalism and Global Economic justice”, in T. Pogge (ed.), World Poverty and Human Rights 91-117(2002). See also Paul D. Ocheje, “Refocusing International Law on the Quest for Accountability in Africa—the Case against the ‘Other Impunity’”, 15 LJIL 749-779 (2002).
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legal system that sustain the privileges of those in powerful positions. In cultural terms, West’s staggering indifference to poverty is maintained by the ideology that the world is governed by neutral and universal rules that provide each State with “equality” and forbids “intervention” in their affairs. Yet, non-intervention, too, is intervention, as illustrated in Anne Orford’s recent analysis of the policies of western financial and aid organisations in Rwanda, East Timor and Kosovo. In each, structural adjustment policies favoured economic liberalisation but did little to advance controlled or community-sensitive social transformation. For standard analyses, these activities were invisible because they were part of “economics” that was merely the natural background for political conflict that was understood to be about State-building, the establishment and composition of public institutions. But markets cannot exist without institutional and regulatory intervention, least of all in societies that have never grown into the kinds of private law relationships that underlie the capitalist system.18 Focusing on the often populistic rhetoric of the more visible political actors, and neglecting the realm of private (economic) power, analyses of these conflicts had to attribute their causes to increasingly abstract and unreal assumptions about ethnic hatred or simply atavistic “evil”—leaving the question of economic reconstruction to experts on post-conflict governance.19 Concentrating on great crises, the diplomacy of multilateral treaty-making or the Security Council, international law participates in this making of invisible of the politics of private law that is transforming societies out of recognition through what is seen as an unpolitical and unavoidable globalisation. From this perspective, recent events have not manifested a “change in the international legal system” but appear as technical adjustments within a system seeking to grapple with “autoimmunity problems”.20 Whether one then makes the further claim that there is a broader or a more foundational logic of, say, historical, civilizational, or economic cycles that condemns the present system to fail, and that what we see today are the last gasps of an already lifeless global Leviathan, is to enter the realm of speculation. So is the international legal system changing? The response to that question depends on how one should understand the “international system” in the first place,
18
A. Orford, Reading Intervention. Human Rights and the Use of Force in International Law esp. 87-110, 127-143 (2003).
19
The centrality of economic reconstruction as condition for political reconciliation is a unifying theme of much writing on post-conflict governance, seen usually as a technical instead of a political task. See e.g. O. Korhonen and J. Gras, Post-Conflict Governance (2002).
20
Terrorism as an “autoimmunity problem” of the international system is discussed by J. Derrida, in Borradori, supra note 5, at 94-100.
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and how dependent should international law be seen on that. There are many competing accounts of the “international system”.21 Some focus on narrowly confined periodic oppositions, often identified by reference to hegemonic leadership, and my first part took up some of those. But I contrasted them with an explanation focusing on the longue durée, the persistence of the Western-dominated “states-system” from late Renaissance. Civilization, too, may be a relevant matrix—and I hinted at the possibility that what we may now see is at least in part a reaction against Western values from the imperial periphery. Finally, I have suggested that to define the international system by reference to a typically capitalist mode of production and distribution might throw some light on the reasons for the strength of that reaction. None of this is to say that legal change should (or could) be reduced to change in an “underlying” social, historical or economic system. Although it continues to be useful to think in terms of a social concept of law (instead of timeless principles) the very proliferation of systemic conceptualisations makes it hard to believe that any one of them might provide the “ultimate” frame of reference. Each is partial, focusing on some aspect of the international world, leaving other aspects invisible. If I have here chosen to emphasise the extreme imbalance existing in the way economic resources are distributed between the north and the south, this is a result from a choice of one particular frame of reference, one systemic account that is an alternative to the old European one provided by Professor Zemanek. This is not because I think traditional state-centrism useless as a frame of analysis but because I think description secondary to political choice. It is about the time that international lawyers reimagine their craft by including in its compass aspects of the world that mark the lives of very large human groups. International lawyers have traditionally described changes in the international legal system. Today their task is no longer to describe change, but to achieve it. October 2003
21
This brief apercu of systems-thinking uses B. Buzan and R. Little, International Systems in World History. Remaking the Study of International Relations esp. 52-67 (2000).
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Is the Nature of the International Legal System Changing?—A Response Vaughan Lowe*
The central argument of Professor Zemanek’s paper, as I understand it, is that there have over the years been two theoretical concepts or practical tendencies underlying international law. One is the sovereign equality of States, the other a hierarchical ‘imperial’ relationship between States. The USA, as the dominant military and economic power, is now evidencing an ‘imperial’ tendency; and that may modify international law because contemporary international law has been based on the principle of the legal equality of States. I am not convinced that the premises of this argument are correct. First, the two concepts are not, and never have been, mutually exclusive. Developed systems of imperial law have operated within, for example, the British and Soviet empires. Those systems co-existed with the conduct of foreign affairs by the UK and the USSR with other States on the footing of sovereign equality. Much the same phenomenon is visible today. Relations between EU Members States are conducted on a different basis from relations with non-Member States.1 Imperialism and sovereign equality are not so much characterizations of the basis of the entire international system as descriptions of the nature of the relationship between particular States. It follows that the question is whether US dominance is so pervasive in its impact and influence upon relations between the USA and each other State, and also among other States inter se, that it is affecting the very structure of international law. Second, Professor Zemanek’s analysis rests on notions of power and influence. Those notions need to be carefully examined. He writes that the US “has the strongest and most sophisticated military force in the world” and “has by far the most powerful single economy”. Power and influence are, however, contextual. They exist and operate within particular frameworks. Bobby Fischer may have been an extraordinarily powerful chess player: but that power was of little use if someone kicked over the chess board. That is more or less what happened on 11 September 2003. Al Qaida, doing on a larger scale what countless terrorist groups had done before, demonstrated that even great military power cannot confer immunity from attack. An army designed
* Chichele Professor of Public International Law, All Souls College, Oxford. 1
For a vivid illustration, see the pleadings before the arbitral tribunal in the MOX (Ireland v. UK) case, PCA website, available at http://www.pca-cpa.org/ENGLISH/RPC.
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to fight a high-tech international war may be very poorly suited to fighting different kinds of conflict, as the USA has discovered in Vietnam, Somalia and now Iraq. Similarly, I do not think that the characterization of the USA as the “most powerful single economy” can stand without significant qualification. Given the mobility of international capital, are the elements that make up the US economy really tied to the USA in such a way that they can be identified with it? Can the US government rely on those who control the capital, and commercial and manufacturing operations, always to fall in behind US foreign policy? Moreover, the US economy is, at least on some calculations, smaller than that of the EU. What is it that makes the USA a ‘single economy’ but the EU not? Certainly, the relative incoherence of EU foreign policy makes it difficult for that economic power to be routinely marshalled in support of non-economic goals. But that is a limitation on the uses to which Europe’s economic power in this context can presently be put: it is not a denial of it. The economic power of the US, too, is limited in some ways. For example, some States are closely bound to an economic power other than the US, such as China or the EU. US influence over such States is less than is the influence of the US over its own client States. Some limitations are legal. The US has ratified a range of trade and economic agreements and is constrained by their disciplines. Some limitations are commercial. The USA is not dominant in every industrial and commercial sector that makes up the world economy. Account must be made in any analysis for the effects of such constraints. These points may be made in more general terms by saying that power needs to move through conduits in order that it can be brought to bear. Can the US government deploy economic power and influence against a target State without securing the cooperation of corporations and financial institutions, in the USA and elsewhere? The answer plainly varies from State to State, from industry to industry, and from time to time. My third, and related, point is that it is misleading to speak about the USA as if it were an individual or a monolithic organization. It plainly is not. Within government the perspectives of, say, the State Department and the Defense Department differ, not least in the significance that they appear to attach to international law. (Indeed, the use of international law within the government—in the USA and elsewhere—as a means of gaining influence and power is one of the more intriguing features of the current political landscape.) Similarly, the interests and perspectives of the US government are not the same as those of US corporations. Nor are the interests and perspectives of west coast and east coast, of the north and south of the USA, identical. And all these interests and perspectives change over time. Views relating to the bombing and invasion of Iraq are, for example, markedly different at the time of writing, in October 2003, than they were at the beginning of the year before the bombing started. The fourth point is that the novelty of the present situation is frequently overstated.
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‘Self defence’ operations using force against or in other States in order to repress terrorist activity by ‘non-State actors’ based in the State are not new. Israel’s military raids in Lebanon, and South Africa’s in Zimbabwe are among the examples. Nor is President Bush the only head of state who has, as Professor Zemanek reports, drawn up lists of people it intends to kill. Quite apart from distinguished predecessors such as Stalin and Pol Pot, the practice has been widespread in recent years in States such as Argentina, Chile, Israel, Peru, and Uganda. In some cases there has been international condemnation; in other cases, silence. Add to that the widespread popularity of mass murder as an instrument of social engineering, in Cambodia, the Balkans, Uganda, Rwanda, Burundi, Argentina and the like, and the view that government-sponsored murder is a boundary recently and dramatically crossed appears to be untenable. Fifth, I am far from convinced that it is right to regard the US as an ‘imperial’ power. States do not become imperial powers by accident. Imperialism is a deliberate policy, not a condition in which States can unexpectedly find themselves. The reason is that empires are based upon reciprocal relationships. Imperial powers and colonies each have responsibilities towards one another. That is the factor that is not clearly apparent in US foreign policy. The USA acts, in contexts such as Iraq, to secure certain interests (and I have no clearer idea now of what the non-oil interests of the USA were in Saddam’s Iraq than I had when it was said that the interest was in preventing Iraq flouting the will of the international community by not co-operating as the US wished with the Security Council over the—perhaps non-existent—weapons of mass destruction.) It has a record of such interventions, among which the invasions of Grenada (1983) and Panama (1989) hit depths of incoherence in terms of their legal justifications that few would have thought possible. This suggests that the invasion of Iraq is not a novel turning point. Yet the US does not appear to wish to turn the States in which it intervenes into colonies. Indeed, it sometimes seems to have little interest in formal long-term relationships with those States. That is a characteristic sometimes invoked in defence of US action. It is said to indicate that the USA does not want to have an empire; and that view seems very plausible. It may indeed be true that the US seeks only to impose good behaviour upon miscreant States, and not to adopt them. If that is correct it suggests that the ‘imperial tendency’ is rather different from traditional imperialism. Professor Zemanek writes of the need to determine whether the USA has “developed a rationale justifying its ‘leading’ the world by acting as guardian of self-proclaimed values of asserted universal validity; whether that State construes the established rules of international law to suit its political aims,” and so on. If only that were so. During the heated weeks leading up to the bombing of Iraq, it was not uncommon for US officials to give the impression that the USA was simply not bound by rules of international law, however construed, and that it was unrealistic and unreasonable to subject the USA to the same rules as small States. The US
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administration might have seen themselves as ‘leading the world’; but they were not leading it in enforcing the law. They were leading it in the imposition of policies developed by the USA for third States, which policies it would not necessarily accept as binding upon itself. It is the difference between the role of world policeman and world vigilante. All States try to construe established rules of international law to suit their political aims and interests. Sometimes their interests are served by entrenching and enforcing the law; sometimes by trying to weaken, widen or abandon rules. There is nothing objectionable, or even remarkable, in that. There is a good deal of misplaced criticism of the USA for its unilateralism. It should not be criticised if it does no more than adopt, in good faith, reasonable interpretations of the law that serve its interests. Nor can it reasonably be criticised for undermining the law if it simply refuses to join in new regimes such as the Kyoto Protocol, which it reasonably believes to be misconceived. International law is not democratic. The majority cannot oblige the minority to sign up to treaties. But the USA, and all other States, are properly and rightly criticised when they put themselves above the law. This is the real problem. It is not that the US administration is imperialist: it is that it is exceptionalist. There are rules; but they apply only to the other States, and they do not fetter the USA. Iraq may be bombed because it ‘flouts’ the UN over its obligation to destroy its weapons of mass destruction (which now have every sign of not existing except in the imaginations, or at least in the public speeches, of those who argued with vehemence in favour of the war). The USA, on the other hand, is free to disregard the UN if it impedes US action. Other States are free to sign up to the International Criminal Court; but they must also agree to exempt US troops from the scope of its obligations. Outrage greets the televising, in alleged breach of the Geneva Conventions, of the bodies of US soldiers killed in Iraq; but the USA is entitled to ignore the Geneva Conventions when it detains people in the legal black hole of Guantanamo Bay, beyond the reach of the protection of the fundamental guarantees of US law. This is not imperialism. Imperialism is close to what Senator William Fulbright referred to as “the arrogance of power, the tendency of great nations to equate power with virtue and major responsibilities with a universal mission.” That has at least the merit of a principled approach. Exceptionalism replaces a sense of universal mission with narrow self-interest. If the USA sought to impose an hierarchical, imperial order on States, based not upon the principle of sovereign equality but upon differential rights and duties, it would in truth be doing no more than extending the pattern already set by weighted voting in the EU and the IMF, preferential membership in the UN Security Council and the IMO, differential obligations in the WTO and the nuclear non-proliferation regime. Given the imbalance between States such as Tuvalu, whose entire population numbers little more than 1% of the number of people who are reported missing in the USA each year, and States of the size of China, India and the USA, differential
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responsibilities may appear not merely inevitable but positively desirable. The end of Professor Zemanek’s paper suggests that States would do well to acknowledge the unique role of the USA, instead of persisting in the fantasy of the equality of States. Up to a point, I agree. The maxim “from each according to his abilities; to each according to his needs” has much to commend it as a basis for organizing international co-operation. But there is a world of difference between, on the one hand, accepting that the Great Powers might be given a special position in some fields and, on the other hand, accepting that they can simply disregard the law. We may sometimes have little choice but to submit to US military or economic power; but we do not have to accept that the USA has the legal right to use its power as it chooses, unconstrained by law. For these reasons I do not think that we are at a turning point in the foundations of international law. We are rather at a stage, reached from time to time, when a very large and powerful State must decide if it wishes to conduct itself in accordance with the law or to put itself above the law. Whatever answer the present US administration might give, the rest of the world must hold fast to the Rule of Law. October 2003
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United States Unilateralism: Cause or Symptom?
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United States Unilateralism: Cause or Symptom? A Brief Response to Professor Zemanek Donald McRae*
Professor Zemanek poses an interesting and important question: “Is the nature of the international legal system changing?” His analysis of that question is a valuable contribution as in doing so he focuses on a number of events that have caused widespread concern in the international legal community.1 However, in centering his enquiry on what he describes as the “imperial tendency of the US” he provides only a partial diagnostic of what may be more fundamental problems of the international legal system. The invasion of Iraq is perhaps a questionable example on which to base conclusions about the future of international law. In terms of traditional analyses of the legality of the use of force there is little legal justification for the invasion. Those who have sought to find legality have generally done so by expanding existing concepts or charting new bases for legality.2 Moreover, as Professor Zemanek points out, the reasons put forward for the invasion have tended to shift over time, making legal analysis even more questionable. And, of course, Professor Zemanek’s commentary was written before the consequences of the invasion were known. The impact on socalled US unilateralism of the difficulties in managing post-invasion Iraq may well have implications for future US policy. While drawing conclusions about the international legal system on the basis of the Iraq invasion may be questionable, arguably it is even more doubtful whether it is possible to draw conclusions about the changing nature of the international legal system as a whole from a branch of the field that traditionally has been one of controversy. The law relating to the promotion and management of international peace and security has had a long and legitimate pedigree. Yet, violence between and within states has waxed and waned over time and there is no necessary correlation between peace and developments in the law relating to international peace and security.
* Hyman Soloway Professor of Business and Trade Law, University of Ottawa, Canada. 1
See, e.g., ASIL, Proceedings of the 97th Annual Meeting, April 2-5, 2003, in particular, A.-M. Slaughter, “An American Vision of International Law?” 125-129.
2
See generally, “Agora: Future Implications of the Iraq Conflict” 97 AJIL 553-642 (2003).
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The predominant position of the US in the world today is of course of fundamental importance for international law. The balance of power of the Cold War era is gone. That the US enjoys hegemonic power is widely recognized and the fact that there is a single hegemon has profound implications for international peace and security. Indeed, it might be argued that the fact that such military power is reposed in one state is of more significance for the future of the international legal order than how that power is in fact exercised by the US on particular occasions.3 Moreover, it is equally widely recognized that the peace and security system as envisaged by the founders of the UN Charter has not worked. The Security Council has been essentially dysfunctional and that has not changed just because the US can no longer be militarily opposed. Nor would that dysfunction have been cured if in fact political alignments had resulted in Security Council endorsement of the invasion of Iraq. It would simply have demonstrated that whether the Security Council is able to function or not depends on contingent or transitory circumstances. In short, there is an institutional deficit in managing international peace and security, which was not caused by “an American determination ultimately to act alone.” It has been there since the early days of the Charter. Bi-polarity either masked the issue or provided a disincentive for doing anything about it. The so-called US “imperial tendency” highlights the fact that international institutional issues have been neglected and that they have to be addressed. Other examples of the US willingness to “go it alone” equally raise broader systemic issues. Extraterritoriality is cast as a consequence of a belief by the US in the superiority of its own legal order, but it also is symptomatic of a much deeper and widespread phenomenon. The extraterritorial extension of laws is a consequence of globalization. The greater the liberalization of trade and investment, and the linking of economies across borders, the less effective are laws that operate solely within borders. Regulation that applies only within a state will be ineffective if harm is the consequence of action that occurs outside that state. Open economies, which can easily be affected by external activities and events, are, in the absence of international rules or of harmonization, likely to resort to the extraterritorial application of laws. The US actions with respect to the Kyoto Protocol and the Rome Statute are troubling but hardly an indication of a tendency to act outside the law. Arguments about the illegality of the US actions in these cases are practically non-existent. Moreover, the US action is not without precedent. After ten years of negotiations in which the US played a key role, the 1982 Law of the Sea Convention was concluded. But the US refused to sign or ratify the Convention. A new administration in the US (the Reagan Administration) decided to reject the policies of its predecessors and reject the Convention. Moreover, the US actively encouraged other states not to ratify
3
See, e.g., J. E. Alvarez, “Hegemonic International Law Revisited” 97 AJIL 873-888 (2003).
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the Convention. But the Law of the Sea Convention did not die, and today, some twenty years later, the US appears to be close to becoming a party to it. What often seems troubling about all of this is that the US willingness to make international commitments, or seemingly to abide by commitments that it has already made, is closely linked to its domestic politics. This has both a legal and a political aspect. The division of powers in respect of foreign affairs between the Executive and Congress results in there being two hurdles to cross for those entering into international agreements with the US—negotiation with the Executive and then approval by a Congress over which the negotiator (the Executive) has no particular control. Beyond this, the influence of domestic political interests on the content of foreign policy appears more direct under US democracy than it does under the political systems of other countries. Thus, it appears as if a decision by the US to respect or not to respect a particular international obligation is a response to domestic concerns rather than based on a conception of international legal obligation. In part a response to this is that all democracies base their decisions to some extent on domestic political interests. The transparency of the US system simply makes it more obvious. Nor can the conduct of international relations neglect the reality of domestic processes. The US constitution has structured the powers of the Executive and the Congress in a way that makes life difficult for other states; that is a fact of life. It poses a challenge for states negotiating with the US, but not an insurmountable challenge. The intertwining of domestic and international processes was recognized and used effectively by the European Union in the recent dispute with the US over steel tariffs. The WTO had ruled that the tariffs imposed by the US were contrary to its WTO obligations.4 The US had an obligation to comply with that decision and, in the absence of compliance, the EU and the other WTO Members that had brought the complaint against the US would have had the right to retaliate by withdrawing from the US concessions of equivalent benefit. The EU could have waited for the US to decide whether it would carry out its international obligations and then if the response was negative it could have retaliated. But the EC recognized that the US decision whether to implement the WTO’s ruling was going to depend on domestic, electoral politics. Thus, it made clear that its retaliation was going to be directed at products that would have an impact on those states of the US that would be critical in the US presidential elections. In short, it made clear that it was prepared to enter the domestic arena and influence a domestic political outcome. The ultimate decision of the US to comply with its WTO obligations in respect of steel tariffs was widely regarded as influenced by predictions of voting
4
United States-Definitive Safeguard Measures on Certain Steel Products, Report of the Appellate Body, 10 November 2003, AB-2003-3.
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in the next presidential election. The EC recognized that this could occur and acted to take advantage of it. The domestic and the international became intertwined. That international diplomacy might have to be conducted with non-state entities calls into question traditional notions of statehood, although the bifurcation of foreign relations power between the EU and it member states has already done that. Nevertheless, it provides one part of the answer to the question that Professor Zemanek poses. Perhaps the international system is changing in the way that states have to deal with each other. States seeking to influence the behaviour of the US as a state cannot limit themselves to dealing with the US government as a monolith. They have to deal directly with the US domestic political processes and interests. In a sense, the response to what has been seen as a readiness of the US to ignore traditional notions of non-intervention might be to reconsider traditional notions about non-interference in domestic jurisdiction of states—including the domestic jurisdiction of the US.5 Moreover, “US unilateralism” cannot become an excuse for inaction by other states. There are many problems that require active cooperation between states and here responsibility lies particularly with both the EU and the US. Economic globalization and the problem of development, the quantum leap in terrorism and the rise of the influence of non-governmental organizations are all indications of the changing nature of the international system and hence of the international legal system. Yet on many fronts the cooperation that is essential is lacking for which the blame cannot be placed solely at the door of the US. The insistence of the developing world to have their issues brought to the forefront of international economic agendas may be perceived as part of the reason for the failure at Cancun, but of equal importance is the failure of the major economic powers to address fundamental problems of equity between countries in a globalised trading system. Here both the US and the EU bear major responsibility. And when the EU cannot really agree within itself there is little likelihood that there will be coordination between the EU and the US, something that may be a prerequisite to moving ahead internationally on many issues. In short, individual actions of the US in recent years call for criticism and can give rise to concern about the future of international law. But is the legal fiction of the “equality of states” against which unilateral action by the US is opposed still an appropriate foundational basis for international law? More fundamentally does the international legal system as presently structured meets the needs of the contemporary world? The world has changed dramatically since the United Nations Charter was drafted. The Charter regime responded to the chaos of the World War II and the years that preceded it. What is now needed is a new vision and institutions for the world as
5
For a discussion of how the Pacific Salmon negotiations between Canada and the US involved a mixing of the international and the domestic, see D. McRae “The Negotiation of the 1999 Pacific Salmon Agreement” 27 Canada-United States L. J. 267-278 (2001).
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it is today and may be tomorrow and not as it was more than fifty years ago. Focusing on the actions of the US may obscure the fact that in many areas there is collective international dysfunction and that there is a collective international responsibility to do something about it. February 2004
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The International Legal System: Is Its Nature Changing?
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The International Legal System: Is its Nature Changing? Georg Nolte*
I.
Introduction
The terror attacks of 11 September 2001 and their aftermath, including the Iraq war of 2003, have brought the question of the influence of the US on international law to the forefront of public debate. This topic is, however, much older, extending back at least to Woodrow Wilson. In its most recent variant it began to be debated under the Clinton administration. The terror attacks of 11 September 2001 have, however, led to a significant sharpening and a refocusing of the issue. The sharpening occurred after a radical claim was staked out by the US Government in the National Security Strategy of September 2002. This Strategy contains the so-called Bush Doctrine which proclaims an unprecedented right of “pre-emptive” self-defence that seems to be designed for use by the US only. The refocusing of the issue lies in the change of emphasis from “soft” issues, in particular economic globalisation and its political fall-out, including local crises of ethnic conflict, to “hard” issues, in particular the so-called “war against terrorism”. Since then security issues have once again replaced economic issues as trend-setting areas of international law. For some, the role which the United States of America is currently playing even raises the question of whether “the nature of the international legal system is changing”. They ask whether the US is asserting itself as the lawgiver and policeman of the world, thereby not only sometimes disregarding certain international legal rules, but even transforming the traditional egalitarian international law into a hierarchically structured legal order in which the US occupies a position of authority and can not be taken to account for its actions. Such a perspective certainly simplifies matters. Distinctions must be made, but generalisations are also necessary.
* Professor of Law, University of Munich.
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II. Preliminary Considerations It is necessary to distinguish between exercises of power which remain within the realm of well-known and accepted power politics and exercises of power which may be symptoms of a more deep-seated structural change. Pressure by the US on European States to admit Turkey into the European Union, and even US pressure on European States to slow down pursuing a Common Security and Defence Policy, are examples of such classical and acceptable forms of political pressure. The process of European integration is not a purely domestic affair of the European States but profoundly affects other States as well, including the US. Third states have a right to exercise political pressure against European integration if they perceive this process to be detrimental to themselves. It is, on the other hand, up to the European States and their Union to determine how important it is for them to resist such forms of pressure. The example of the contested European integration is valid for international law in general. It is law which leaves much room for political pressure and contested interpretation and even depends on them for its development. Furthermore, it is necessary to recognise that the State “United States of America”, and the society which it represents, are complex, and that both are closely interrelated with the outside world. Much depends on the policy field one is examining. There is no comprehensive or coherent policy of “the US” in all fields. Such differentiation, however, is itself vulnerable to the opposite objection, namely that it may overlook the forest for the trees. Similar patterns of US policy repeat themselves in different areas. It is only fair to ask whether they add up to a larger picture.
III. The “Nature of the International Legal System” Before addressing the question of whether the nature of the international legal system is changing, it is necessary to state what the nature of the international legal system supposedly consists of. Karl Zemanek emphasises states and sovereign equality. This traditional view has been under attack for the past century or so, and never more so than in the preceding decade. It has, however, proven remarkably resilient in the face of theories which view new actors emerging below, above and between the states, the (formerly?) primary actors in international law. After 11 September 2001 it may even seem as if the issue is no longer the disintegration of the State but its possible reestablishment in its full leviathanic nature. This perspective would nevertheless be compatible with the picture of a declining role of sovereign equality in international law if there is only one state which re-establishes itself along the Hobbesian/ Westphalian ideal and all the others dissolve into more permeable units. If that were to be the case, it would indeed no longer be sensible to talk of a state-centred system which is based on sovereign equality. We would then be in the presence of an imperial
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international law which may have had its predecessors before the emergence of the Westphalian system. It is true that even the Westphalian system accommodated some imperial elements. Such elements, however, were always considered as being either exceptional or blended with a domestic arrangement. In any case, under the UN Charter the Westphalian emphasis on sovereign equality was reaffirmed in the context of the process of decolonisation. An alternative broad-brush view is that the US, as a State, is the more or less unconscious agent of a more profound structural development which leaves all States, including the US, only enough room to react in a way which will ultimately lead to a more hierarchical international law, but an international law hierarchical in a different sense. This alternative hierarchical international law would not have the US at its centre, but an international institution like the UN and thereby preserve sovereign equality. As unlikely as it may appear today, this is, I think, the more probable development.
IV. Factual and Political Assessments Much certainly depends on how one assesses the power and the potential of the US, and whether one takes the world-view as it has been espoused in the Bush Doctrine seriously. If it is actually true that the US is “the only superpower”, which has no parallel in history, which is far superior to all other entities in almost all forms of power, even if combined, and if it is true that the leadership of the US has and sustains the will to preserve such a position of superiority, it would indeed be time to reflect whether the nature of the international legal system is changing or rather whether international law is partly becoming irrelevant. There are, however, good reasons to be sceptical towards such views. Such reasons are not only pragmatic, such as the expectation that the occupation of Iraq will demonstrate the limits of American power. There are also more general considerations. We are probably in the early stages of a historical development which has started with an ambiguous, that is simultaneously aggressive and defensive assertion of American power, including an emerging new US design for world public order. American self-perception, however, excludes certain forms and degrees of discriminatory treatment of others which some powerful entities have displayed in former times. Even more importantly, we have only begun to see significant reactions to certain US claims and to more robust forms of the exercise of US hegemony. The most visible of such reactions was the refusal in early 2003 by a large coalition of states to agree to a Security Council authorisation to use force against Iraq. There have, however, also been other and more subtle counterweights to unilateral or supposedly imperial designs. On the state level, there have been unprecedented coalitions to resist US pressures to bilateralise issues, such as with respect to the
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International Criminal Court. On a societal level, there seems to be an increasing consciousness emerging from the shared experience of being exposed to US pressure and policies. This may well contribute to a developing sense of political community where there used to be none. Whether this sense of political community should be seen as being “Anti-American” or merely as extolling an alternative multilateralist model of world order, is a secondary question. It is difficult to gauge the political and economic strength and the determination of “the rest of the world” towards the assertions of US leadership. It is not entirely excluded that the rest of the world (states, societies, and groups) will acquiesce in US designs for world order, it is also possible that there will be active resistance. Much depends on whether tangible and calculable forms of power (military, economic and scientific) will play a greater role in a given issue than less tangible forms of power (political identity, stamina, self-determination, sense of equality). Such assessments are not within the expertise of the international lawyer. International law can, however, serve as an indicator, a symptom, of the general direction of developments.
V. The State of International Law Today Today, international law seems to be in a paradoxical state. On the one hand there are signs of a loss of its authority, and perhaps even signs of its disintegration, as the US ambiguously either violates some of its rules or puts forward politico-legal justifications by which important rules would lose their capacity to make behaviour foreseeable. Some political rhetoric even goes further. On the other hand there is an increasing amount of international treaty-making and legislation taking place which suggests that the building of an international legal order is in full blossom. There are two alternative models which may serve to interpret this state of affairs (1.). They can be applied to different areas of international law, such as treaty-making (2.), jurisdiction, (3.), and human rights (4.).
A. Two Models A first model would see the paradox as confirmation that international law is indeed changing towards a hierarchical system with the US in a position of unaccountability at the top: International law develops as far as the others bind themselves or let themselves be subjected to exercises of political power by the US which is itself much freer from legal constraints. This model can be called instrumental, as international law is seen to be relegated to an instrumental role, that is the role of stabilising the rule of the governing actor who himself remains relatively unconstrained. A second model would interpret the paradox in a more dialectical fashion: The flourishing of international law among the rest of the world may also be a first counter-
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reaction to US unilateralist tendencies. While the web of international obligations may at first sight leave the US unconstrained and even help it to stabilise a world order which is under its control, this web also creates a subtle form of counterweight by which it becomes more difficult for the US to influence others. They have tied themselves together as Ulysses tied himself to the mast as a precaution against the seductive power of the sirens.
B. Treaty-Making Recent treaty-making exemplifies this paradox: The US has been reluctant to participate in major recent law-making treaties. The best-known examples are the Statute of the International Criminal Court, the Kyoto Protocol, the Landmines Convention, the Comprehensive Test Ban Treaty and the Biological Weapons Verification Protocol. It is too simple to say that every state has a right not to participate in a treaty, just as it is too easy to say that a leading state has a moral obligation to participate in international law-making. The more appropriate approach for our purposes is to ask whether such treaties are likely to become law only for the second-rate rest of the world, serving the unbound imperial power to preserve stability, or whether a “compliance pull” (Franck) on the reluctant super-power will emanate from them. It is possible that a working International Criminal Court, for example, will mobilise moral sensibilities demanding equal justice for all, sensibilities which are particularly embedded in Western societies. An environmentally free-riding US should be difficult but not impossible to persuade.
C. Jurisdiction Issues of jurisdiction are also important indicators for the general development of international law. The US has long been the champion in extensions of jurisdiction. Some of these extensions may have been substantially fed by characteristic forms of American self-confidence and self-righteousness. On the other hand, it cannot be denied that certain extensions of jurisdiction have been occasioned by objective factors which raise an issue for all legal systems in a time of globalisation. Here again, we are probably in a period of trial and error. When the US was the champion of extending its jurisdiction, other states and entities, such as the EU, partly followed suit which in turn led to a more ambiguous position of the formerly avant garde US. Today, the US is the main actor resisting the exercise of universal jurisdiction with respect to international crimes. It is another question whether this means that the US is only resisting the exercise of jurisdiction by others while at the same time pursuing its own extensions of jurisdiction. There may be political tendencies to that effect, but the important question is whether self-contradictory tendencies would be sustainable as state policy. This is to be doubted.
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D. Human Rights Human rights are currently under particular pressure from the US. Since the attacks of 11 September 2001, security concerns are being given a higher priority at the expense of the rights to life, liberty, property, privacy and others. “Guantanamo” has become a symbol of the US effort to free itself from certain international humanitarian and human rights law constraints in its “war against terrorism”. It is important to note, however, that such pressures on international law have little, if anything, to do with the contemplated “changing nature of the international legal system” from a more egalitarian to a more hierarchical legal order. Human rights are already the result of a certain loss of the egalitarian character of international law. They are primarily directed against the exercise of hierarchical exercises of authority. And there is nothing wrong, in principle, in reassessing the relative weight given to security concerns as opposed to privacy interests in the light of new developments. It should not be surprising, and it is legitimate, that the US is today a champion of security concerns. It is the shared responsibility of the US and all others to ensure that these security concerns are not exaggerated and that they remain appropriately balanced. It would be significant, however, if the US claimed to be free from international human rights constraints (as opposed to domestic constitutional rights constraints) and at the same time insisted that other states remain bound by them. Although instances of such a “the king can do no wrong” attitude can be found, a doublestandard attitude is unlikely to be seriously adopted, or likely to attain more than occasional international or US domestic support. The interest of the US to use certain means which it wants to deny to others can only be satisfied by assertions that the situations are different. Due to its powers to characterise and to define situations, the US can achieve certain successes in efforts at distinguishing, particularly if it does not subject itself to formal international supervision procedures. There are, on the other hand, certain inherent limits to such powers. Human rights issues mostly concern individual cases, the circumstances of which can be independently verified and made subject to public discussion. Therefore, the accusation of hypocritical behaviour can be easily substantiated, with all the political inconveniences that this may entail. This is different, for instance, with respect to the assertion that a particular state should be treated as an international pariah because of its (suspected) harbouring of terrorists and/or developing of weapons of mass destruction.
VI. Proliferation as a Possible Key Issue in the Future It is indeed the issue of weapons of mass destruction from which perhaps the most important impulses for changes in the nature of the international legal system can be expected. One need not fully agree with assessments of the US Government concerning the risk of “rogue states” and terrorists being able and willing to use weapons of
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mass destruction in the future. Even if such assessments may appear somewhat reminiscent of the “communist scare”, the overblown domestic US reaction to the perceived threat by a Soviet “fifth column” in the 1950’s, the risks connected with weapons of mass destruction must be taken seriously. There is clearly some incoherence in the attitude of those states and societies which have taken the decision to abandon the peaceful use of nuclear energy after balancing the rather low likelihood of an accident with its potentially catastrophic effects, but are slow to accord the same priority and to apply the same standards to the issue of the proliferation of weapons of mass destruction.
A. The Significance of the Proliferation Issue When the proliferation threat is taken seriously it quickly becomes apparent that it is unprecedented and that it probably requires an unprecedented legal response. The proliferation threat is unprecedented because it involves the possibility of an uncontrollable multitude of irrational actors acquiring catastrophic potential. Even if the likelihood of this happening is not much higher than the explosion of a nuclear power plant, there are more disruptive imponderables involved. The risk cannot be localised, threats or sham threats create additional risks. It is decisive, however, that risk prevention may require extraordinary measures. While nuclear activities may be controllable by traditional means, the same may not be true of chemical and biological proliferation. From this point of view the reasoning of the US National Security Strategy of 2002 according to which unprecedented threats require an evolution of the law to cope with present-day circumstances is quite plausible. If it is true that the new threats can only be countered pre-emptively, it may not even seem far-fetched to conclude that the inherent right of self-defence be adapted accordingly.
B. The Need for Institutionalisation The fallacy of this argument is, of course, that pre-emption against the proliferation threat, in order to be comprehensive and effective, would require institutionalisation and in particular administration. The improvement of national capabilities can only go so far, in particular in less developed States. Unilateral military enforcement can only be an exceptional last resort and must be balanced against the risks of abuse. Generally agreed counter-proliferation standards and their globally effective administration are not sufficiently developed. From this point of view it should, therefore, be a policy priority for the leading State(s) to push for the establishment of reinforcing and supplementary international administrations in order to achieve a generally satisfactory level of security.
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C. United States Scepticism against International Institutions It is well-known, however, that a general scepticism towards international administrations exists in the US. The abandonment of the Biological Weapons Verification Protocol and the rejection of the Comprehensive Test Ban Treaty are among the most important examples of this phenomenon. The reasons for this scepticism towards international institution-building are manifold, but not all of them are unfounded. Special interests, the desire to protect advanced technology, overconfidence in nationally available means, such as intelligence collection capabilities, but also discouraging experiences with existing international organisations all contribute to a prevailing scepticism in and by the US against international institutions. Once it is determined, however, that a comprehensive nonproliferation effort should have political priority and that all other means are likely to remain ineffective, there is no escaping the recognition that the only alternative is to try to build better and more effective international institutions.
D. Moving beyond Traditional Models: Security Council Activism Better and more effective international counter-proliferation institutions would require moving beyond traditional models. They would require a faster tempo of standardsetting, more comprehensive and intrusive verification procedures, including inspections, and faster and more efficient dispute settlement. This means that there would have to be substantial enhancement of the legislative, executive and judicative international public function in this field. Since, under present conditions, the counterproliferation field is not so easily separated from more general fields of international law, in particular as far as chemical and biological weapons are concerned (e.g. protection of business secrets), such a substantial enhancement would tend to spill over into other areas as well. How could such substantial enhancement of international public functions be brought about? So far, international legislation has been mainly produced by treaties which require cumbersome processes of negotiation and ratification. As Resolution 1373 has demonstrated, however, the Security Council can also perform this function. Decisions of the Security Council under Chapter VII have the great advantage of speed and of being binding on all states. On the other hand, Security Council legislation also has its drawbacks. Not the least of which is the uncertainty about the extent of the Security Council’s powers under Article 39 of the UN-Charter. This uncertainty, however, can be overcome by organisational practice which can be justified if it receives sustained general acceptance and by pointing to the extraordinary nature of the threat posed by weapons of mass destruction. The nature of this threat would seem to require an extension of the usually situation-specific and preliminary nature of the Security Council’s powers. If the Security Council can set standards, it can also, subject to certain conditions, establish or supplement international institutions and mandate dispute settlement in order to implement these standards.
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An obvious disadvantage of reliance on the Security Council is its widely perceived limited legitimacy, on ground of composition and procedure, for wider-ranging purposes. If, however, one focuses on the proliferation threat, and possible alternative routes to deal with it, i.e. unilateral and erratic pre-emptive measures by the US, the advantages of the Security Council become more plausible. The Council possesses an enormous legal potential. Clearly, decisions of the Security Council would not be universally accepted and implemented if they were not backed up with determination and, if need be, by force. It is here that the international system needs the backing of the powerful. It should be equally clear, however, that the powerful need the international system. From this perspective, the seemingly unsatisfactory composition of the UN Security Council is perhaps not so unsatisfactory after all because it strikes a compromise between the possibility of efficient decision-making and codetermination.
E. Possible Objections To “realists”, the envisaged alternative to an international legal system in which the US plays a hierarchically superior role at the expense of the principle of sovereign equality may not seem to be a substantial alternative at all. A system which focuses increasingly on the Security Council may formally preserve the principle of sovereign equality because all member states have at one point agreed to its powers. In reality, however, the UN system is more than ever dependent on being backed up by powerful states, in particular by the US. The envisaged alternative could therefore be viewed as just another form of recognising an authoritarian turn in international law. This recognition would then also make the alternative unattractive for liberal and critical theorists who see the international system in terms of multi-level interactions by different kinds of actors who are merely exposed to forms of “governance” which leave their creative, democratic and autonomous potentials unaffected to the greatest extent possible.
VII. Conclusion Desirable as it is, the time of a world in which minimal or erratic forms of coercion are sufficient to ensure general safety and well-being has probably not yet come. If a global Leviathan is necessary today it is preferable that this Leviathan be somewhat more composite than to consist of just one State, as complex as that State’s political system may be. Formal procedures and institutions preserve the openness for input by different and potentially by all actors, and they preserve the elementary principle of equality. The question of the limits of the powers of the global Leviathan is a second, but not a secondary question. There will have to be a debate and even a struggle over the limits of the powers of the Security Council. It is to be hoped that
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this debate does not turn into a struggle between freedom and dictatorship, but becomes part of a world-wide effort to strike an appropriate global balance between freedom and security. November 2003
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Who Helps the Hegemon? Mary Ellen O’Connell*
I.
Introduction
Is the nature of the international legal system changing? Do we see developments in international relations that challenge the core concepts of international law, rendering the law dys-or non-functional. Professor Karl Zemanek sees indicators of just such change. He writes to arouse our attention to the dangers, urging us to act before it is too late. Professor Zemanek sees the United States tending toward hegemony or even imperialism and argues that these tendencies are already changing international law. I share his concerns for the ultimate health of international law, but urge a broader look at the dangers. Focus should be kept on the US, but let us not overlook the hegemon’s willing helpers. We can find much to criticize in US policy relevant to international law since the end of the Cold War. Nevertheless, the US is not an imperial power nor is likely to become one, despite the neo-conservative ideology of some members of the Bush Administration. The US is more correctly classified as a hegemonic power—it has predominant military, economic and technical strength combined with a self-concept of exceptionalism and moral superiority.1 None of this is new but what is new since the end of the Cold War is the decision by a number of countries to aid the US in the exercise of hegemony. Some thirty countries publicly supported the US-led invasion of Iraq.2 Some of these countries sent troops and some of the troop-contributing countries had only four years earlier participated in the US-led intervention in Yugoslavia. The Netherlands, Spain, the United Kingdom, Denmark, Portugal, Italy—
* William B. Saxbe Designated Professor of Law, The Ohio State University. With thanks for research assistance to Timothy Laden Crum (’03), Sara DePaul (’04), and Caoilte Joy (’05). 1
Professor Thomas Franck has observed similar American traits that he has referred to as tendencies toward “messianism” and “chauvinism”. T. M. Franck/J. M. Lehrman, “Messianism and Chauvinism in America’s Commitment to Peace Through Law”, in L. F. Damrosch (ed.), The International Court of Justice at Crossroads 3 (1987).
2
US Department of State Daily Press Briefing Index, 18 March 2003, available at 2003 WL 2046840.
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all countries long understood to be committed to the UN Charter and restrictions on the use of force—used military force twice in five years in violation of the Charter. My concerns about the US impact on the international legal system would not be so great if it were not for these countries. This essay looks first at the charges of American imperialism. It concludes that the US is not now an imperial power and casts doubts on the likelihood it will ever be one. The essay then considers hegemony and accepts that the US does today enjoy hegemonic power. The presence of a hegemon, as opposed to an imperial power, need not necessarily alter the Westphalian legal order. The US, however, has exercised hegemonic power in clear violation of fundamental community rules and it has received support in doing so. These actions and reactions have clearly retarded the further development of an international legal community. It remains to be seen whether they have fundamentally altered the rules as well.
II. On Imperialism “Empire” implicates taking and keeping control of significant territory by military force. Imperialism, through colonies or in other ways, involves ruling or maintaining authority over foreign countries. Rome had an empire. Britain had an empire. France, Germany and Japan sought empires and sought empires that included peer nations. For that reason, they were opposed in ways the British were not. The US had an imperial moment when it took colonies from Spain after the Spanish-American war of 1898. Most Americans, including American leaders regretted taking those colonies. It was not in the American tradition or consistent with American values. America made imperial errors but was and is no imperialist. This is still the case despite the invasion of Iraq. At the time of the invasion, the Bush Administration made it clear that it did does not intend to control Iraq indefinitely and took concrete steps to prepare Iraq for self-rule.3 The US does not, therefore, embody the threat to international law posed by empire. This fact is significant, since one doubts that empire is inconsistent with the international legal system that emerged at Westphalia in 1648. The history of international law reads like the constant pull between the polls of imperial ambition and of international legal community. The Peace of Westphalia that finally ended the
3
The US, for example, fully supported UN Security Council Res. 1511 of 16 October 2003. The Resolution in para. 7 invited the Iraqi Governing Council to provide to the Security Council by 15 December 2003 a timetable and a program for drafting a constitution and holding of elections. See also In Bush’s Words: “We Will Do What Is Necessary” in the Fight Against Terror, NY Times, 8 September 2003, at A10.
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Thirty Years’ War effectively ended the Holy Roman Empire. Essentially, the treaties that made up the Peace created a community of formally equal and sovereign states. Those states prohibited resort to force by any one of them for the purpose of domination. They permitted the forming of alliances, meaning states could take steps to ensure their independence from the old Empire, as well as future ones.4 The failure to respect the rights of states could result in collective action. With equality eventually came the belief that co-equal sovereigns could not sit in judgment of one another. The ultimate decision to go to war was left to consciences of individual sovereigns. The leaders of revolutionary France felt they could intervene in good conscience since they were spreading the enlightened ideology of rights and self-determination. Napoleon followed them making the same proclamations but, of course, only as a cover in his pursuit of empire.5 Napoleon fought France’s peers to establish a continental empire in which Paris would determine the rules, not the collectivity of nations. The Congress of Vienna of 1815, aimed at re-establishing balance among European nations, resurrecting the concept of formal equality.6 The Final Act of the Congress achieved this goal largely through territorial dispositions— settling boundaries, transferring regions, clarifying rights of passage, and the like and guaranteeing those dispositions through joint military action. It was “a conscious effort to establish a community of states based on the will of all states or at least on the will of the Great Powers.”7 Germany began its own push for a continental empire in the 19th century. This push only came to an end with its defeat, along with another empire builder, Japan, in the World War II. Imperialism was once again countered at the end of the war in an international legal instrument based on the formal equality of states enforced through collective action. The UN Charter provides in article 2(1) that “The Organization is based on the principle of the sovereign equality of its Members.” The Charter again limited the unilateral use of force and organized collective enforcement of those limitations. The Charter, incorporating key Westphalian features, has, despite the odds, remained in force since 1945. The Soviet Union embraced a policy of world domination that again was in direct conflict with an international legal system of coequal states. The Westphalian system did not succumb to Soviet policy, however, in large measure because the Soviet Union did not attack its peer, the US, and the US
4
W. G. Grewe, The Epochs of International Law 108-111 (2000); A. Nussbaum, A Concise History of the Law of Nations 113-117 (1962); L. Gross, “The Peace of Westphalia” I Essays on International Law and Organization 3, 7 (1984).
5
Grewe, supra note 4, at 414-18, 424.
6
Vienna Congress Treaty, reprinted in M. Hurst (ed.), Key Treaties for the Great Powers, 1814-1914, 41 (1972); see also Nussbaum, supra note 4, at 186.
7
Gross, supra note 4, at 19.
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did not have imperial ambitions of its own. The US itself emerged from colonial status in a revolutionary war of independence. New Americans took the land of indigenous people on the North American continent but, somehow, did not think of this as building an empire. Acquiring Spain’s colonies was seen as imperial but President McKinley was harshly criticized even within his own party for having done so.8 Today, a small group of advisers to President Bush may want an American empire. They may have pushed US policy toward invading Iraq in order to create one. This group includes students of the philosopher Leo Strauss.9 Apparently Strauss’s students “are not bashful about American empire; instead they strongly endorse it.”10 Despite the close proximity of Straussians to President Bush, the Bush Administration nevertheless resists embracing empire. Prominent supporters of imperialism have felt the need to call on the US to take up its imperial burden. Niall Ferguson,11 Max Boot,12 Dimitri Simes,13 and others recognize the American disinclination to conquer and control. They see the need to argue for empire but are met consistently with rejection. Nor can we think US coalition partners in the invasion of Iraq ever believed the US would embrace imperialism. It cannot serve the national interest of any of these states to help create an American empire. While it is true that international law could not survive in its present form in the force of American imperialism, the US is not an imperial power. “Like any legal system, [international law] could not resist a coup de force by a superpower less benevolent than the US. The US has never planned to govern the world, with all the duties such a program bears.”14
8
R. W. Leopold, The Growth of History of American Foreign Policy: A History 180 (1962).
9
S. B. Drury, The Political Ideas of Leo Strauss 29 (1988).
10
Congressman Ron Paul of Texas, Address in the House of Representatives (10 July 2003) available at http://www.house.gov/paul/congrec/congrec2003/cr0171003.htm (December 2004). See also, M. Lind, “How Neoconservatives conquered Washington and Launched a War”, Salon.com, available at http://archive.salon.com/opinion/feature/2003/04/09/neocons/ (9 April 2003).
11
N. Ferguson, “The Empire Slinks Back”, NY Times Mag., 27 April 2003, at 52; N. Ferguson, “Hegemony or Empire?” 82 For. Aff. 154 (2003, No. 5); see also, I. H. Daalder & J. M. Lindsay, “American Empire, Not ‘If’ but ‘What Kind’” NY Times Mag., 10 May 2003.
12
M. Boot, The Savage Wars of Peace (2002).
13
D. K. Simes, “America’s Imperial Dilemma”, 82 For. Aff. 91 (2003).
14
M. Cosnard, “Sovereign Equality—The Wimbledon Sails On”, in M. Byers/G. Nolte (eds.), United States Hegemnoy and the Foundations of International Law 117, at 134 (2003). See also Brian Urquhart, “World Order and Mr. Bush”, 50 NY Rev. Book’s 8 (2003).
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III. On Hegemony The US may not plan to govern the world; it may not be seeking empire, but it is a hegemonic power. A hegemon is willing and able to subordinate the will of others to its own will.15 It may even be willing and able to subordinate the will of the entire international community, as expressed in international law. Vagts refers to hegemony as a form of “command,” but a phenomenon less than imperialism.16 Despite its hegemonic power, meaning its ability to command others, the US mostly complies with international law. Even when it does not, the international community, in some cases, resists hegemony, sanctioning or protesting American non-compliance. The troubling cases are those involving fundamental rules of international law where powerful members of the community not only fail to protest US non-compliance, but actually join in with the hegemon to enhance their own power at the expense of the community and its law. Two such cases appeared within a five-year period: Kosovo (1999) and Iraq (2003). These cases reveal much for us about the challenge the US poses for the system of international law. They reflect the American belief that the US is an exceptional nation. They reflect the confidence Americans have in their own moral insights, and they reflect the on-going influence, not of Leo Strauss, but rather of Hans Morgenthau on the thinking of American leaders after the World War II. Morgenthau taught that it is the duty of a leader to pursue power, and urged American leaders to pursue dominance. Kosovo and Iraq come out of a long tradition—Americans have been characterized by their sense of exceptionalism and moral certitude since the nation’s founding. However, these characteristics of the US only became a challenge for international
15
H. Triepel, Die Hegemonie—Ein Buch von führenden Staaten 138-149 (1938); see also G. Nolte, “Conclusion”, in M. Byers/G. Nolte (eds.), United States Hegemony and the Foundations of International Law 491 (2003): Hegemony “includes […] all situations in which States or other entities act together in uncoerced recognition of a more or less developed leadership function by one (or more) of them.
16
D. Vagts, “Hegemonic International Law”, 95 AJIL 843, at 843, 844 (2001). Vagts writes that it remains to be seen whether the US is a hegemon. He notes the US has the resources to be a hegemon but doubts it has the “the political and psychological infrastructure hegemony calls for.” Id., at 845. I agree that the US lacks these attributes to be an imperial power and perhaps even to consistently act the hegemon. Yet, the US does practice hegemony in a way other powerful states do not. Vagts also writes of hegemony as on a scale between imperialism and “first among equals.” Id., at 848. If this means less than imperialism but more than first among equals, I find this a helpful metaphor. See also on America’s ill-suitedness to be an imperial power: W. Clark, “America’s Virtual Empire”, Wash. Monthly, November 2003, available at http://www.washingtonmonthly.com/features/2003/0311.clark.html (23.9.2004).
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law when the US achieved unchallenged military, economic and technical superiority after the Cold War. The combination of immense resources, interest in pursuing power, combined with the deep-seated belief in its exceptionalism and the impulse to spread its morality, help to explain why American leaders decided for military force in the Kosovo and Iraq cases, despite the prohibition of force in international law. The US has always been highly committed to the rule of law, but members of the international community must be aware that that this commitment is not as strong as the other three motivating attitudes. What these attitudes essentially reveal about the US is that it is not fundamentally community-oriented. It is a unitary state whose leaders are not finally convinced of the need for their exceptional nation to conform in the important questions to community will. Correctly characterizing the US vis-à-vis international law is a complicated matter. The US is not a simple hegemon. The US was a chief architect of the UN. The US supports the Charter principles of self-determination, equality, non-intervention and the non-use of force. The US fought against aggression by North Korea against the South in 1950 in compliance with the Charter. It condemned the use of force by the British and French with Israel against Egypt in 1956. The US championed the end of empires until deeply enmeshed in the Cold War. The US did not use force to liberate peoples under Soviet domination, but it did use force to counter Soviet expansion to new countries. This force was not always consistent with the UN Charter, as in the Cuban Missile Crisis or more dramatically in Vietnam. After Vietnam and with the Reagan Administration, America’s reputation became that of a militaristic power, riding roughshod over the rule of law. In fact, the US in these years justified its uses of force as consistent with the Charter. It had no interest in setting precedents for the Soviets. President Reagan and his advisers were imbued with a sense of moral and humanitarian mission that they believed could be advanced through the use of unilateral military force.17 The Reagan Administration believed Jimmy Carter had weakened the US during the time Iran held Americans hostage (1979-1981). Reagan would resurrect American power and the American mission in Nicaragua, Grenada and Lebanon. With the end of the Cold War, American concern about precedents declined, but the sense of America’s moral duty did not nor did exceptional ability of the US to accomplish its duty. The US led the liberation of Kuwait from Iraq in 1990-91, largely in conformity with the UN Charter. In the decade that followed, international law advanced, absent the pressures of the Cold War rivalry. New tribunals for the law of the sea, for trade disputes, and criminal law opened. Then Kosovo happened and NATO members
17
See generally J. J. Kirkpatrick/A. Gerson, “The Reagan Doctrine, Human Rights, and International Law”, in L. Henkin et al. (eds.), Right v. Might: International Law and the Use of Force 29 (1991).
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participated in an act of American hegemony that helped pave the road to Iraq. This brief essay can only provide a few facts revealing how that using force in Kosovo was as much about advancing US hegemony as anything else. It was also a choice for personal power by the leaders of a powerful state, Germany, leaders that could have been expected to resist hegemony in support of the community’s law. For some years before NATO’s 1999 bombing campaign in Yugoslavia, US leaders asserted that NATO, which they saw as a US creature, was not subject to the authority of the UN Security Council.18 In the summer of 1998, US Secretary of Defense William Cohen was taking this position with respect to Kosovo. Speaking in Europe, Cohen said NATO could intervene in Kosovo without Security Council authorization. Germany’s Defense Minister, Völker Rühe, agreed with him. However, Chancellor Helmut Kohl and Foreign Minister Klaus Kinkel were adamant that NATO would need Security Council authorization for any use of force not in self-defense. Kohl lost the autumn election in Germany. The SDP’s leader, Gerhard Schroeder, would become chancellor, partnering with the Green Party. The Green Party’s Joschka Fisher was the coalition’s foreign minister designate. When NATO took its first decision to use force against Yugoslavia in October 1998, the German government looked to Fischer for a decision on how to vote. The Security Council had made it clear it was pursuing sanctions against Yugoslavia but would not be authorizing force. The pressures on Fischer were clear—the Green Party had long held a pacifist and antiNATO policy. Fischer needed to show that neither he nor his party would be obstructionist and, therefore, unfit to govern, as was feared by some.19 He agreed that NATO should activate to bomb Yugoslavia. Shortly after the vote, Richard Holbrooke was able to negotiate with Yugoslavia’s Milosevic to get human rights monitors into Kosovo. They agreed to 2000 monitors, though only 1400 ever arrived. Still, by all accounts the monitors were succeeding even in the face of a plan by the Kosovo Liberation Army to “draw NATO into its fight for independence by provoking Serbian forces into further atrocities.”20 Fischer and his French counter-part Hubert Vedrine tried to characterize NATO’s October decision to activate as only part of the strategy to pressure Milosevic. For US leaders, however, the precedent was clear. Madeline Albright, US Secretary of
18
E.g., Richard Holbrooke, former US representative to the UN, took this position. He restated it while discussing why he did not see any need for a specific Security Council authorization for force in Iraq: “In Bosnia [and] Kosovo, the Clinton administration bombed twice. We had no Security Council resolutions, we had NATO backing.” MSNBC: News with Brian Williams, 21 January 2003, available at 2003 WL 6413205.
19
“Germany, Fear of Greenery”, The Economist, 10 October 1998, at 55.
20
B. Gellman, “The Path to Crisis: How the US and its Allies Went to War”, Int’l Herald Trib., 19 April 1999, at 2.
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State, emphasized in Brussels in December 1998 her view that NATO could use force without Security Counsel authorization. In January 1999, just a few weeks after the monitors arrived, 45 Kosovo Albanians were killed in the village of Racak. At the time, US envoy Christopher Hill announced that the dead were women, children and elderly. (At the trial of Slobodan Milosevic, it was later revealed that the dead were mostly young men.) Following Racak, however, the monitors were pulled out. Negotiations occurred in Rambouillet, France. Dr. Albright presented Milosevic with an ultimatum to pull out of Kosovo entirely or face bombing. He refused and NATO began bombing on 24 March 1999 without Security Council authorization. US military and intelligence sources informed Dr. Albright that bombing would not accomplish the publicly-stated goals of the military campaign—protecting human rights and removing Milosevic from power.21 And in fact bombing continued for more than 70 days, triggering a massive exodus of refugees, widespread killing of civilians by Yugoslav regular forces and militias. Human rights groups charge that NATO killed approximately 500 civilians in violation of the laws of war. The bombing only ended when the Russians intervened with Milosevic to persuade him to pull his forces from Kosovo. He himself was in office for another year. Even his strongest opponents rallied around him when their country was attacked. As Serb forces left Kosovo, Kosovo Albanians began the systematic killing of the Serbs who remained. Today the province is still part of Serbia but only a small number of Serbs still live there.22 US leaders, especially Dr. Albright, acted against Yugoslavia out of a combination of moral mission and reaction to Milosevic’s defiance. America’s partners in NATO had the opportunity to hold the US to the rule of law but they did not. This was not a case where it was simply impossible to resist the hegemon. Each member of NATO can veto a decision to take action. Nor was the legal situation doubtful. Austria correctly analyzed the law and took affirmative steps to sanction the violation. It prohibited access to its territory for NATO forces headed to Yugoslavia. From Kosovo we can trace the path to the next hegemonic use of force by the US: Iraq. Both US Secretary of State Powell and Secretary of Defense Rumsfeld stated that President Bush had the same authority to use force in Iraq that the US had had in Kosovo.23 True, prior Security Council resolutions on Iraq were cited. Despite those,
21
On indications that the Clinton administration had prior knowledge that bombing would be ineffective, see, E. Schmitt, “The Powell Doctrine is Looking Pretty Good Again”, NY Times, 4 April 1999, section 4, page 5; R. Scarborough & A. Cain, “GAO Cites Confusion’, in Kosovo Policy”, Wash. Times, 8 April 1999, at A1; Gellman, supra note 20.
22
A. Rosenbaum, “An Ethnic War that Still Rages”, NY Times, 14 October 2003, at A31.
23
See D. Rumsfeld, “UK Defense Minister See Broad Coalition on Iraq- Joint Press Conference February 12 Following Meeting in Washington”, St. Dep’t. Press Releases & Documents, 12 February 2003, available at 2003 WL 2046175; Interview on ABC’s This Week with
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the British sought desperately to get new authorization two days before bombing started,24 knowing the legal case for war was weak. Again, states had alternatives to using force. Yet, President Bush, at the urging of Vice President Cheney and Secretary Rumsfeld, went forward. Bush was motivated out of a sense of moral certitude and opposition to a defiant Saddam Hussein.25 He has called the war in Iraq a “great moral cause”26 and has invoked President Reagan’s 1982 speech calling for a “crusade for freedom.”27 The US claimed to have the support of thirty to forty countries for the invasion. Why these countries supported a use of force at odds with the law of the international community is interesting in every case. Poland, for example, quickly and readily offered its full support, even sending a small contingent of troops during the fighting and a much larger one after the major fighting. Poland experienced aggression in World War II and it was to prevent similar aggression that the UN Charter prohibited the use of force. Poland nevertheless preferred to support the hegemon, in defiance of international law on the use of force. By contrast, Austria supported the international legal system. Austria could also have chosen to curry favor with the US. It chose the law. If all states had followed Austria’s lead, the situation for international law would be very different today. If a hegemon acts outside a rule, it is clear the rule is being broken, not changed. The prohibition on the use of force remained viable throughout the Cold War because so many states condemned Soviet and American violations. When as many as 30 or 40 states fail to condemn, we must be concerned about the future viability of a rule and if it is a rule as fundamental as the prohibition on force, we must be concerned about international law generally. Unfortunately, a significant number of states traded the rule of the law for the reflected power of the hegemon. Several of the states supporting the US in Iraq have made a point of opposing the US on the question of the International
George Stephanopoulos, Secretary Colin L. Powell, St. Dep’t. Press Releases & Documents, 20 October 2002, available at 2002 WL 25971910. 24
M. E. O’Connell, Addendum to Armed Force in Iraq: Issues of Legality (2003), available at http://www.asil.org/insights/insigh99a1.htm (2 December 2004).
25
See e.g., J. Lears, “How a War Became a Crusade”, NY Times, 11 March 2003, at A29.
26
See R. Steel, “The Missionary”, NY Rev. Book s, 20 November 2003, at 26.
27
President Bush Discusses Freedom in Iraq and Middle East, remarks by the President at the 20th Anniversary of the National Endowment for Democracy, 6 November 2003, available at http://www.whitehouse.gov/news/releases/2003/11/20031106-2.htm/ (2 December 2004); see also D. Milbank & M. Allen, “Bush Urges Commitment to Transform Mideast”, Wash. Post, 7 November 2003, at A1.
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Criminal Court.28 Poland for one has sought to juxtapose its decision on Iraq with that on the ICC. Poland’s leaders have some sense that it is not in Poland’s interest to have a hegemonic US acting in rampant disregard of community-based law. Yet, if Poland is not willing to take a stand on the big questions, like Iraq, the US will hardly pay attention to it on the smaller issues like the ICC. Professor Vagts warns of “hegemonic international law,” law that privileges the hegemon, negating the concept of equality so central to the Westphalian system. Vagts, like Zemnek, encourages us to confront the implications of hegemonic international law in a concrete way. This essay had the aim of doing so by exposing the role of the hegemon’s willing helpers in the creation of hegemonic law on the use of force. We need not fear that the United States will seek an empire and in doing so destroy international law entirely. The United States is not and is never likely to become an imperial power. We do need to fear, however, that the United States will continue to be tempted to take advantage of its hegemonic power to act in defiance of certain fundamental principles of international law, in particular, the prohibition on the use of force. Continued defiance can only undermine this hard-won principle. To preserve it will require the courage and commitment of states the world over, states willing to forego the self-interested advantages of helping the hegemon. January 2004
28
For a more extensive discussion of the making and unmaking of rules on the use of force, see M. E. O’Connell, “Releashing the Dogs of War, Review of Christine Gray’s International Law and the Use of Force”, 97 AJIL 446, at 446-49 (2003).
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Can International Law Survive US “Leadership”? Alain Pellet*
Professor Zemanek’s excellent introductory paper to the present Agora clearly gives a list of the most serious breaches of international law committed by the United States during the last few years. They are numerous; they raise serious concerns; but they are clearly violations and no honest impartial mind can see them otherwise. By themselves, breaches of legal rules do not mean that those rules or, indeed, international law itself do not exist any more in the legal sphere. On the contrary it can be sustained that law violations “reveal” the existence and content of the violated rules, if only through the disapproval they entail; “in any legal system, international or domestic, breaking the law does not make the law disappear”1. Now, this is unfortunately not the end of the question. If one accepts that law is but a “successful policy”2 or, to put it in “Marxian” terms, a “superstructure” resulting from a balance of powers between the actors in international relations, then, repeated breaches by the “dominant” actor cannot but result in dramatic changes in the law itself. This is not to say that “might is right”, but that, in the long run, might deeply influences the evolution of law, which, unfortunately, might strengthen Professor Zemanek’s conclusion that States (as well as scholars) could be “well-advised to face reality … and to acknowledge the unique role of the United States, instead of persisting in the fantasy of a world order based on the equality in law of all members of the international system”. Therefore, the question is: have we already reached the momentum when the world legal order based on the “Westphalian” view that all States are juridically equal is no more tenable? and, if the answer is “no” or “not yet”—which, I think, is the case—is it worth trying to maintain it? to which extent? and how? A first point must be made however: the sovereign equality of States is not and has never been, an “absolute” concept. “Sovereignty” only means that States have no “superior power” over them; however, contrary to what happens in the domestic legal
* Professor, Université de Paris X-Nanterre; Member and Former Chairman, ILC. 1
A.- M. Slaughter, “Misreading the Record”, 82/4 Foreign Affairs 202, at 203 (2003).
2
“Une politique qui a réussi” (É. Giraud, “Le droit positif—ses rapports avec la philosophie et la politique”, Hommage d’une génération de juristes au Président Badevant 210, at 234 [1960]).
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sphere, they do meet with competing powers—hence the fundamental idea of “equal sovereignty” or “sovereign equality”. As a consequence, States possess “the totality of international rights and duties recognized by international law”3—that is all rights and obligations (i) compatible with the same rights and obligations recognized to all other States and (ii) which can be based on a legal “title” (mainly territoriality or nationality)4. Moreover, exactly as the principle of equal rights and dignity of human beings is not incompatible with the fact that men and women are not equal in reality due to their physical and health conditions, financial and social situation, etc., the sovereign equality of States is by no means “descriptive” of the real situation. It is a legal concept, imperfectly protecting weak and vulnerable States from the pretence of the mighty States to domination. In contrast with the Empire, the inter-states society is then characterized by an acceptance (even if purely verbal) of the “other” as an equal. While an Empire negates the others’ rights, a State, by definition, accepts that its own sovereignty is restricted by that, equal, of all the other States. The US aspirations to an imperial world governance, which it would lead, is not new5 and, since World War I, the Administrations in Washington D.C. have constantly oscillated between the temptation of a superb isolationism and a proactive policy of intervention in world affairs and other States’ domestic affairs. Reagan’s and George Bush I’s Administrations were clear examples of the latter behaviour. However, the conditions were different from the present situation: - in the Reagan’s case, the Soviet Union had still not collapsed and the US power was mitigated by the Soviet influence as well as by the, already declining, relative strength of the Third World; and even at the very beginning of the 1990s, the new unequal distribution of world power had not yet been integrated by US policy makers; - in both cases, the UN was an influential actor (or “reactor”) in the various crisis in question; - the US celebrated system of “checks and balances” worked in its usual rather efficient way.
3
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, 1949 ICJ Rep. 174, at 180.
4
I refer here to the théorie des compétences, mainly developed by the French doctrine. See, e.g., J. Basdevant, “Règles générales du droit de la paix”, 58/IV Recueil des cours, 568576, 588-618 and 628-637 (1936) and C. Rousseau, Droit international public, t. III, Les compétences, Sirey , XVI-635 (1977).
5
See, e.g., R. Aron, The Imperial Republic, the United States and the World, 1945-1973 339 (1974).
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The picture has now changed dramatically in many respects. Not only there can be no doubt that the United States is now the only hyper-power and is seen as such, but also, as shown by the last Iraqi war, it has tried—with some success—to bypass the United Nations and the checks and balances have not functioned efficiently mainly because of the media self-censorship following September the 11th, with the result that the “liars’ war”6 launched by George W. Bush and Tony Blair and a few allies has not been seriously questioned by the press and the US public opinion, not to speak of the Congress and the Supreme Court. Moreover, with the triumph of the capitalist liberal ideology, the so-called “globalization” of the world economy has weakened the traditional inter-States system in unifying the global economic space under legal rules centrally inspired and enforced through international institutions largely controlled by the United States, such as the International Monetary Fund or, but less clearly, the World Trade Organization. In itself the gradual elimination of borders as the legal limits of States’ jurisdiction is not to be lamented: after all, the new trend superficially corresponds to an old dream of many international lawyers beginning with Georges Scelle, and could announce a new law of mankind rather than of inter-States relations. The 1919 Covenant and, even more strikingly, the 1945 Charter, have laid down the foundations of a new international law based on a paramount limitation of the traditional prerogative of States to use force in international relations while, at the same time, new categories of subjects were recognized international personality. This was the case e.g. concerning international organizations and private persons whether physical or juridical. The idea behind these changes in the very nature of international law was to “humanize” and to “pacify” the international society. Far from calling into question the sovereign equality of States they aimed at reinforcing and concretizing it, making States the “implementers” of the measures decided by the Security Council7 and the guarantors of human and investors’ rights. The new legal order takes a very different path. It is: - global in that it includes important transnational elements, that is principles, rules and institutions which are not dependant upon the territorial division
6
In his introductory paper, Professor Zemanek is rather generous in accepting that the reason for the armed attack against Iraq “was changed repeatedly”. The reason constantly invoked has been the so-called Weapons of Mass Destruction (WMD) possessed by Iraq, a reason which has proved to be erroneous and deliberately so. The other reasons given from time to time by the leaders of the ‘Coalition’ are additional, complementary, but cannot be seen as the motives for the invasion, let alone as convincing legal justifications.
7
See, e.g., Art. 42 of the UN Charter: the Security Council acts to maintain or restore international peace and security through “forces of Members of the United Nations”.
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of the world between States; and hegemonic in that it is twisted by the United States according to its selfdefined interests, needs and whims.
Both aspects largely overlap: the economic and military superiority of the sole hyperpower makes it the main beneficiary of the globalization and expanding economic freedoms; as Lacordaire put it “in relations between the strong and the weak, it’s freedom that oppresses and law that liberates”8. At the same time, the US strength endeavours it to change the rules of the game when it deems it proper and, as aptly shown by Professor Zemanek, it can reintroduce national barriers and “territorialism” or exempt itself from the common rules when it fits its interests. Among the most distressing examples of this latter phenomenon are the conclusion of agreements by which the US obtained an exemption from the ICC’s jurisdiction for its nationals from States parties to the Rome Statute in clear violation of their commitments or the newly forged concept of “pre-emptive” self-defence when no armed attack is to be feared, or the clearly unlawful conditions of detention of alleged terrorists in Guantanamo Bay. More widely, the combination of “unilateralism” and “extra-territoriality” (both terms must be qualified) certainly threatens the classical international law and, most probably, the very existence of law in international relations. In many respects, the US uses international law exactly in the same way as the European States did during the colonial enterprise: while colonialism was based on superior force, France, Britain and some lesser lords used to conclude “treaties” with local Rulers as long as they served their interests; then they held those accords as scraps of paper as soon as the initial goal (territorial take-over) was obtained. Empire leads straight to imperialism… However, I suggest that those dramatic (in all meanings of the word) changes have not occurred yet and are not inevitable. First, it seems that the US cannot entirely do without international law and institutions—this, even when said rules and institutions are not favourable to it in the short run. Thus, while it could have been feared that the US would boycott the mechanism for the settlement of disputes instituted within the WTO9, it willy-nilly complies with the decisions of the Appellate Body. Similarly, after the 2003 Iraqi war, the Bush Administration have had to accept that the UN be re-introduced into the picture and, at the time when the present paper is being drafted, it seems that the Secretary General of the United Nations, while reluctant to accept a strong UN
8
“Dans les rapports entre le fort et le faible, le droit protège le faible, et la liberté opprime”.
9
Cf. the “conditional” or “threatening” ratification of the WTO Agreements—, see A. Pellet, Comments on “Law of Treaties”, in M. Byers/G. Nolte, United States Hegemony and the Foundations of International Law 416, at 419 (2003).
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involvement on the field, has his word on the future of Iraq and is gaining a position, if not of an arbitrator, at least of an influential mediator. And at regional or bilateral levels, there are encouraging signs not only of a “resistance” of international law, but of its strengthening—among those signs: the broadening of the European Union (a complex juridical construction) or the revival of the World Court. Second and consequently, the worst is never certain. The Bush Administration is not in power for ever. Empires also die and the wakening of China, a possible political strengthening of Europe, or a new burst of energy, or simply of international “existence” at the universal level, of Russia or the Third World are not to be excluded and could restrain the drifts of international law engendered by the US imperial hegemonism. If one or several of these trends are confirmed, a new balance of power would occur with unavoidable consequences on international law which, again, would lay on some kind of “equality”. However, this is a remote possibility and, in any case, it is far from granted that all consequences would be positive. Just think of the influence China could have on the evolution of the protection of human rights at the international level… It seems therefore tremendously important to envisage a realistic appraisal of the situation as it stands and of the possible means to mitigate its drawbacks and disadvantages and to strengthen its good aspects—some do exist. In the first place, I would think that international lawyers would be well inspired not to lean on all and every aspects of the traditional “good old” international law. Some of its rules are obviously outmoded while some new trends are probably to be approved and encouraged, notwithstanding the fact that they stem from an hegemonic power’s initiative. Let me just take four examples. The establishment of the concept of ius cogens in the 1969 Vienna Convention, the creation of the ad hoc Criminal Tribunals, then of the ICC, the inclusion of Articles 40 and 41 in the ILC Articles on State Responsibility10, the NATO action in Kosovo, bear witness of the growing concern of the “international community [of States?] as a whole” in respect with gross violations of human rights. A first (positive) answer has been the widening of the notion of “threat to the peace” in case of “humanitarian disasters” by the Security Council. However, it must be acknowledged that this might not be enough in cases when the Council is paralyzed. In such cases, a unilateral use of force of the kind of the US and UK intervention in Iraq would indeed not be acceptable11: it would ruin one century of progress of international law with respect to the prohibition of the use of armed force and achieve a “second killing” of Article
10
Arts. 40 and 41 relate to “serious breaches of obligations under peremptory norms of general international law”, that is the former “crimes” in Art. 19 of the 1996 Draft.
11
Kosovo is less debatable in that (i) it was not based on a lie; (ii) its clear purpose was humanitarian; (iii) the NATO action was a collective one.
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2(4) of the Charter12. But, within the spirit of Article 54 of the ILC Articles on State Responsibility13, collective or unilateral measures not implying the use of armed force, should not, in such cases be considered as prohibited. In this respect and within those limits, humanitarian intervention should be seen as permissible. Similarly, the US concerns about the spread of WMD either among States or nonStates actors (beginning with terrorist groups) must be taken seriously. For the reasons I have already indicated, Iraq is not a convincing precedent. However, the results achieved in the cases of Libya or Iran shows that the diplomatic method can work and that there is a growing consensus on the idea that the dissemination of WMD is a serious threat to the peace and it can be hoped that, when negotiations fail, the Security Council (not the US alone) should decide measures in accordance with Article 41 of the Charter14. More generally, fight against terrorism has rightly become a matter of serious concern for the international community. In some respect, Resolution 1373 (2001) of the Security Council is controversial since it vests the Security Council with a quasi-legislative function in that it imposes measures on States at the detriment of democratic parliamentary control. On the other hand, Article 24 confers on the Security Council “primary responsibility for the maintenance of international peace and security” and terrorism is, rightly, recognized as a threat to the peace. A balance between those opposed considerations should be kept but, all in all, this precedent deserves attention and it is worth to be further explored. The same holds true for an even more controversial doctrinal trend relating to the use of force to counter a use of military force by a State, not amounting to an “armed attack”. In Nicaragua, the ICJ rightly recalled that the right of self-defense “is subject to the State concerned having been the victim of an armed attack”15; however, the Court left open the question “whether a State has a right to respond to intervention
12
See T. M. Franck, “Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States”, 64 AJIL 809-837 (1970) and id., “What Happens Now? The United Nations After Iraq”, 97 AJIL 607-620 (2003).
13
According to Art. 54, the Chapter of the Draft on Countermeasures “does not prejudice the right of any State, entitled […] to invoke the responsibility of another State [even when it is not an injured State and, in particular, in case of “serious breaches”] to take lawful [which excludes recourse to armed force] measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached”.
14
In such a case, recourse to Art. 42 (military measures) would, of course, clearly be inappropriate.
15
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Judgment of 27 June 1986, 1986 ICJ Rep. 103, at 195.
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with intervention going so far as to justify a use of force in reaction to measures which do not constitute an armed attack but may nevertheless involve a use of force”16. In this respect, while the recent Judgment in the case concerning Oil Platforms is rather inconclusive17, in his Separate Opinion, Judge Simma took the very clear position that at “a lower level of hostile military action, not reaching the threshold of an ‘armed attack’ … a State may of course defend itself, but only within a more limited range and quality of responses (the main difference being that the possibility of collective self-defence does not arise, cf. Nicaragua) and bound to necessity, proportionality and immediacy in time in a particularly strict way”18. I am not sure that such a finding is that obvious; nevertheless, the question certainly arises and it must be recognized that the Charter is deficient or, at least, ambiguous, in this respect and the matter should be given careful consideration. On the other hand, it must be clear that one single State cannot substitute itself to the international community for ascertaining the good and the evil. The Security Council might meet some problem of legitimacy; it is, nevertheless an emanation of the “international community of States as a whole” and its permanency and relative efficiency (when its Members find a ground for agreement) plead in its favour as a vehicle for changes. Moreover, its composition, if it can be changed and improved (but when?), is a token of both realism and relative fairness: it gives all international main sensitivities (including, of course, the US) a guarantee that their opposition cannot be bypassed. And, if it is paralyzed, either by a veto or a threat to use it or a lack of majority, Resolution 377(V) (“Uniting for Peace”) offers a “soft alternative”: indeed the General Assembly cannot take decisions nor impose measures implying “a coercive or enforcement action” 19 ; it may however, make “appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security”20.
16
Ibid., 110, at 210.
17
Case Concerning Oil Platforms (Iran v. USA), Merits, Judgment of 6 November 2003 (not yet published). The Court dismisses the US arguments in favour of its using force against Iran on the ground of “disproportionality” (see., e.g. para. 77), but it seems to reason exclusively in the framework of self-defence (while it should probably have envisaged the “measures necessary to protect the essential security interests” of the US in a wider context; it probably abstained from doing so because of the surprising position taken by the US during the pleadings).
18
Para. 13 of the Separate Opinion.
19
Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, ICJ Rep. 5, at 164 (1962).
20
UN Doc. A/RES/377 (1950) at para 1.
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Outside the UN too, instruments and institutions do exist which can be used with a view to “channelling” and, if need be, challenging the US diktats. As seen above (paragraph 14), the WTO is one of them: both at the normative (rules of majority) and implementation (Dispute Settlement Body) levels, no State, as strong as it might be, can unilaterally impose its views. Similarly, to take another example, the US (and China, and many other imprudent States…) have ratified the 1966 Covenant on Civil and Political Rights; as is well known, a treaty is a “trap for will” since conditions to denounce a ratified treaty are extremely constraining21; even though the Committee has, up to now, been extremely generous in examining the reports by powerful States, the situation could and should change. This, of course, does not solve all the pending questions. What in case of breaches of well established and commendable international legal rules in the absence of international mechanism vested with monitoring powers? Here comes the responsibility of “the invisible college of lawyers”. The “most highly qualified publicists of the various nations” must not behave as the guardians of an outmoded international legal order and they must accept the changes imposed by the evolving course of international relations. On the other hand, it is the responsibility of scholars to be clear (and reasonable) in their denunciation of obvious breaches of international law—a cat is a cat and an aggression is an aggression—and to warn about the consequences of unfortunate trends. However, absent political will and Governments’ appropriate reactions, doctrinal positions alone cannot stop the decline of States’ and public opinion’s trust in the value of international legal rules thus opening the way for a world without law or, which is the same, for the law of the jungle. Law is too serious a matter to be relinquished to lawyers22. November 2003
21
Contrary to the (first) Optional Protocol (Art. 12), the Covenant has no provision on denunciation.
22
“No developed nation would allow its legislative policy to be decided upon just by the lawyers. They would be employed to advise and to draft; but the legislative policy would be decided by those who understood the matter the subject of the legislation”, Sir R. Jennings, “International Law Reform and Progressive Development”, in G. Hafner et al. (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern in Honour of His 80th Birthday 325, at 334 (1998); the same holds true at the international level.
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The Growth of International Law between Globalization and the Great Power Anne Peters*
I.
Introduction
International Law is not only growing fast, but is virtually exploding: between 1864 and 1919, an estimated 257 multilateral treaties were concluded, and from 1919 to 1971, 1090 entered into force.1 In August 2003, a total of 40,000 treaties (among them 2799 multilateral ones), were registered with the UN.2 The question of this agora, is, however, not only whether international law is changing in quantity, but whether the international legal system is changing “in nature”. The principal reason for such a change might be the termination of the bipolar world order with its balance of power between two rivaling Great Powers and the increasing contempt of international law by the remaining single Superpower, the United States.3 Although the international legal system has always been shaped and dominated by Great Powers, America’s current global supremacy constitutes, as US Foreign Policy Advisor Professor Zbigniew Brzezinski pointed out, a “hegemony of a new type”.4 Hegemony means, since Greek antiquity, the political phenomenon of leadership or predominance, which may or may not be legally to some extent
* Prof. Dr. iur., LL.M. (Harvard), Chair of public international law and Swiss constitutional law, University of Basel, Switzerland.
[email protected]. 1
L. Wildhaber, “Treaties, Multilateral” 4 EPIL 949-950 (2000).
2
Available at http://untreaty.un.org/English/access.asp (22 October 2003). Treaties concluded in the UN era are registered pursuant to Art. 102 UN Charter. About 500 of the multilateral treaties are deposited with the UN Secretary General.
3
See generally on this question: “Symposium: American Hegemony and International Law”, 1 Chicago Journal of International Law 1 (2000); “The Single Superpower and the Future of International Law”, 94 American Society of International Law Proceedings (2000); “Unilateralism in International Law: A United States-European Symposium”, 11 EJIL 1 (2000); M. Byers/G. Nolte (eds.), United States Hegemony and the Foundations of International Law (2003).
4
Z. Brzezinski, The Grand Chessboard: American Primacy and its Geostrategic Imperatives Chapter 1 (1997). See generally on US-American hegemony W. Pfaff, “The Question of
Austrian Review of International and European Law 8: 109-140, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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formalized or institutionalized.5 So what is new with the USA? One novelty is that, while all former Empires were in reality only regional in scope, the United States has been, since 1990, a truly global power. It controls all the world’s oceans and leads in three key dimensions of power, namely in military, economic, and scientific/ technological realms. The superiority of the military potential of the USA and other states is as overwhelming as never before in the history of any other hegemony. In 2002, the United States spent six times more on defense than Russia. The US defense budget exceeds by one third the budgets of the other nine NATO-members plus Australia, Japan and South Korea added together.6 In the year 2000, the United States’ economy accounted for 30 percent of the entire world’s gross product.7 Moreover, due to the market dominance of US corporations, superior expertise, and the availability of model norms in US domestic law, US rules and in particular US technical standards often exceed their formal confines and function as global rules of the world markets, or of the internet.8 In science and technology, American firms and researchers are at the cutting-edge of tomorrow’s economy. In the cultural domain, US-American mass entertainment, films, music, and American life-style in general, as well as higher education in the USA are loathed and condemned by some groups in the world. However, that resentment rather confirms than disproves the overall power of the American maelstrom. The United States’ unique position has, especially since 1990, tempted the state to move more and more often towards the edge of international legality. In his leading article, Professor Karl Zemanek enumerates various telling instances of this kind. In conclusion, Zemanek urges states (and academics) to face reality and to give up “the
Hegemony”, 80/1 Foreign Affairs (2001), available at http://www.cfr.org/about/mediacenter/ bush-putin/fa-pfaff.html (13 October 2003). 5
Greek hegemonia (leadership), from hegemon (leader), hegeisthai (to lead). Used first by Thukydides to describe the predominance of a Greek city state over the others. See for the modern use K. Ginther, “Hegemony”, 2 EPIL 685 (1995). The classical work in legal scholarship is H. Triepel, Die Hegemonie: Ein Buch von führenden Staaten (1938, reprint 1974), on a hegemony’s political and legal foundations at 6 and 206. Triepel situates the political phenomenon of hegemony on a sliding scale between mere influence and complete domination (at 140).
6
Center for Defense Information, “World Military DataBase” 2002. available at http://www. cdi.org/products/almanac0102.pdf (23 September 2003).
7
Le Monde diplomatique, Atlas der Globalisierung 46 (2003).
8
N. Krisch, “More Equal than the Rest? Hierarchy, Equality and US Predominance in International Law”, in M. Byers/G. Nolte (eds.), United States Hegemony and the Foundations of International Law, 135 at 163 (2003), with further references.
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fantasy of a world order based on the equality of law for all members of the international system.”9 My response to Professor Zemanek’s appeal is that “sovereign equality” (Article 2(1) UN Charter) is no fantasy and that states and academics are well advised to insist on the equality of law. And my broader response to the initial question of this agora is that the nature of international law is indeed changing, but not towards an asymmetrical system in the form of a legalized hegemony.
II. The Facts: American Powerplay in a Selective Disdain of International Law Before developing my answer, I would like to face reality by giving even more examples of the US powerplay which is situated, to put it mildly, on the borderline of international illegality. Professor Zemanek mentioned the following issues: The United States exercises extraterritorial jurisdiction both in criminal and civil law matters in an exorbitant fashion. Somewhat inconsistently, US jurisdiction is denied, with regard to the detention of Taliban combatants in legal no-man’s land on the American military base territory in Guantánamo—for several years even without any legal protection.10 This was not only a déni de justice, but violated the Third 1949 Geneva Convention on War Prisoners.11 Additionally, Professor Zemanek mentions the American refusal to ratify the Kyoto Protocol on Climate Change.12 Finally, Zemanek points to the American rejection of the International Criminal Court (ICC). American disapproval of the ICC13 has meanwhile matured into an active policy of 9
K. Zemanek, “Is the Nature of the International Legal System Changing”, 8 ARIEL 3, 10 (2003).
10
Al Odah v. US (Court of Appeals for the District of Columbia Circuit 11 March 2003), available at http://www.cadc.uscourts.gov/scripts/isysweb/isyswebext.dll?op=get&uri=/ isysquery/irl1e8c/3/doc#hit1 (4 October 2003), reversed by US S.Ct. Rasul v. Bush, judgement of 28 June 2004, 124 S. Ct. 2686, available at http://www.supremecourtus.gov/opinions/ 03slipopinion.html (24 November 2004).
11
See Art. 5(2) Geneva Convention (III) relative to the Treatment of Prisoners of War: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Art. 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”
12
“US blow to Kyoto hopes”, BBC News, 28 March 2001, available at http://news.bbc.co.uk/ 2/hi/science/nature/1247518.stm (7 October 2003).
13
See “War Crimes Court Created Over Fierce US Objection”, Washington Post, 12 April 2002, available at http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=
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undermining this institution. The USA had signed the ICC-Statute of 17 July 1998 in 2000 under President Clinton. However, two years later, the Bush administration declared that the United States did not intend to become a party to the treaty, and accordingly had no legal obligations arising from its signature.14 The government thereby successfully eclipsed the bona-fides-obligations stemming from Article 18 of the Vienna Convention on the Law of Treaties. One building block of the American ICC-obstruction policy is formed by bilateral immunity agreements with some 37 ICC-member-states (as of October 2004). 15 On the side of the ICC-members, conclusion of these agreements violates the contractual obligation to cooperate with the Court, and is not covered by the exception of Article 98 of the Rome Statute.16 However, the respective ICC-members, all of them weak and small states, had little choice. Virtually every agreement was reached under pressure.17 For example, East Timor was coerced by the withdrawal of three US military observers from UNMISET in July 2002.18 Bosnia was threatened with the loss of 73 million US Dollars in US
&contentId=A34610-2002Apr11¬Found=true (7 October 2003). 14
Declaration of 6 May 2002, adressed to the Secretary-General: “This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on 17 July 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on 31 December 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.” See ratification status of the Rome Statute, available at http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/ chapterXVIII/treaty10.asp#N6 (24 September 2003).
15
The exact number of BIAs actually in force is currently not verifiable. As of 5 October 2004, the US State Department reports over 80 (signed) agreements. But according to the most important ICC-related NGO-coalition, only 18 BIAs have been ratified (as of 5 October 2004). Of all these states, a minority only is a member to the ICC-statute. See “Status of US Bilateral Immunity Agreements”, available at http://www.iccnow.org/documents/USandlICC/ BIAs.html (26 October 2004).
16
See Internal Opinion of the EU-Commission’s legal service of 13 August 2002, 23 HRLJ 158 (2002).
17
See the harsh critique by the Parliamentary Assembly of the Council of Europe, Res. 1336 (2003): Threats to the International Criminal Court, available at http://assembly.coe.int/ main.asp?link=http%3A%2F%2Fassembly.coe.int%2FDocuments%2FAdoptedText %2Fta03%2FERES1336.htm (24 September 2003).
18
“Three Observers Pulled Out of East Timor—US Move Underscores Vow to Shield Americans From War Crimes Court”, Washington Post, 2 July 2002, available at http:// www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A108812002Jul1¬Found=true (24 September 2003). See also Human Rights Watch, available at http://www.hrw.org/wr2k3/asia5.html (24 September 2003).
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aid, just to mention one more case.19 For those 36 states who refused to conclude an immunity agreement before the American deadline of 1st July 2003,20 American military aid was cut.21 Further American steps taken against the ICC were to force the United Nations to guarantee immunity to non-member states’ soldiers participating in UN peace-keeping activities. The respective Security Council Resolutions22 were adopted pursuant to the American threat not to prolong US forces in the peace-keeping mission in Bosnia-Hercegovina.23 On the domestic front, the American Service Members’ Protection Act clarifies that “[t]he United States will not recognize the jurisdiction of the International Criminal Court over United States nationals” and explicitly prohibits cooperation with the ICC.24 This rejection of jurisdiction in the event that US soldiers commit war crimes on the territory of a state party runs counter to the ICC’s territorial jurisdiction under Article 12(2.a) ICC-Statute. Besides this most spectacular anti-ICC policy, numerous other American acts, hostile to the international legal system, deserve a mention. While claiming extraterritorial US jurisdiction, for example, over European firms which seek trade with Cuba,25 the United States prevents the exercise of universal jurisdiction by other 19
“US plays aid card to fix war crimes exemption”, The Guardian, 12 June 2003, available at http://www.guardian.co.uk/yugo/article/0,2763,975476,00.html (24 September 2003).
20
Sec. 2007 of the ASPA infra note 24.
21
“US Presses Allies on War Crimes Court—Aid Wielded in Push for Immunity Pacts”, Washington Post, 27 August 2002, available at http://www.washingtonpost.com/ac2/wpdyn?pagename=article&node=&contentId=A64476-2002Aug26¬Found=true (24 September 2003); “US May Cut Aid In Court Dispute—About 35 Nations Could Lose Funds”, Washington Post, 1 July 2003, available at http://www.washingtonpost.com/ac2/wpdyn?pagename=article&node=&contentId=A54753-2003Jun30¬Found=true (24 September 2003).
22
UN Doc. S/RES/1422 (2002), prolonged for one further year by UN Doc. S/RES/1487 (2003).
23
“US Vetoes Bosnia Mission, Then Allows 3-Day Reprieve”, New York Times, 1 July 2002, available at http://query.nytimes.com/gst/abstract.html?res=FB0B1FF8345A0C728 CDDAE0894DA404482 (24 September 2003). “Collateral Costs in Fighting a New Court”, New York Times, 2 July 2002, available at http://query.nytimes.com/gst/abstract.html?res= F20C14FA3D550C718CDDAE0894DA404482 (24 September 2003); “Dispute Threatens UN Role In Bosnia—US Wields Veto In Clash Over War Crimes Court”, Washington Post, 1 July 2002, available at http://www.washingtonpost.com/ac2/wp-dyn?pagename= article&node=&contentId=A5514-2002Jun30¬Found=true (24 September 2003).
24
“American Servicemembers’ Protection Act of 2002” (ASPA), entry into force 2 August 2002, Sec. 2002 and 2004 (repr. in 27 HRLJ 275 (2002)).
25
Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 (Helms Burton Act), P. L. 104-114, available at http://usinfo.state.gov/regional/ar/us-cuba/libertad.htm (2 November
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states.26 Notably, America disapproved of the prosecution of war crimes and crimes against humanity as foreseen in Belgian criminal law. Under a Belgian 1993 Act, criminal action had been brought, inter alia, against Israel’s Prime Minister Ariel Sharon.27 The American threat to withdraw NATO-headquarters from Brussels28 was a key factor for the recent de facto renouncement on Belgian jurisdiction over international crimes committed outside Belgian territory.29 The story of US exceptionalism in human rights policy has often been reiterated.30 The state conditions US financial and military aid on recipient states’ human rights commitments in line with quite strict American guidelines. In contrast to this proactive policy of enforcing human rights abroad, America itself has a modest record of international human rights acceptance. It has up to now ratified only some universal international human rights instruments.31 Moreover, the US makes ample use of reservations, and often formulates declarations and understandings ensuring that the
2003). Title III (creation of a private right of action in US courts that will allow US nationals whose property was confiscated by the Cuban government to sue Cuban governmental entities or foreign investors who use or profit in any way from those properties) currently suspended. See Fact Sheet of the US Department of State: http://usinfo.state.gov/regional/ ar/us-cuba/helmsbur.htm (2 November 2003). 26
A Bill to prohibit cooperation with or assistance to any investigation or prosecution under a universal jurisdiction was referred to the House Committee on International Relations on 9 May 2003 (H. R. 2050): Universal Jurisdiction Rejection Act of 2003, available at http://www.theorator.com/bills108/hr2050.html. See for the status: http://thomas.loc.gov/cgibin/bdquery/z?d108:h.r.02050 (26 September 2003).
27
See Court of Cassation of Belgium, H. S. A et al. v. S. A. et al., 12 February 2003, 42 ILM 596 (2003), holding criminal action inadmissible.
28
“US attacks Belgium war crimes law”, BBC News, 12 June 2003, available at http://news. bbc.co.uk/2/hi/europe/2985744.stm (8 October 2003).
29
Belgian Act of 5 August 2003 (Amending the Code of Criminal Procedure). See “Nouvelles dispositions du titre préliminaire du Code de procédure pénale”, Art. 10 Abs. 1bis and Art. 12bis nouveau, available at http://www.ulb.ac.be/droit/cdi/Codepp2003.html (6 October 2003).
30
See R. Foot, “Credibility at Stake: Domestic Supremacy in America’s Human Rights Policy”, in D. Malone and Y. F. Khong (eds.), Unilateralism and US Foreign Policy: International Pespectives 95-115 (2003); A. Moravcsik, “Why is US Human Rights Policy so Unilateralist?”, in S. Patrick/S. Forman (eds.), Mulilateralism and US Foreign Policy 345-376 (2002); H. Keller, Rezeption des Völkerrechts 389-412 (2003).
31
ICCPR of 1966 (ratified in 1992, but not the optional protocol on individual complaints); CERD of 1966 (ratified by the USA in 1994); CAT of 1984 (ratification in 1994 and acceptance of individual communications to the Committee (under Art. 21 CAT)); Genocide Convention of 1948 (ratified by the USA in 1988).
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respective treaties are a mere dédoublement of already existing domestic law.32 The domestic impact of human rights covenants is further curtailed by the accompanying declaration that they are not self-executing before the US Courts.33 One of the most prominent examples of disdain for international human rights is the US reservation to Article 6(5) of the ICCPR which prohibits the imposition of the death sentence for crimes committed by persons below eighteen years of age.34 That reservation is arguably incompatible with the object and purpose of the treaty and therefore inadmissible under Article 19(1.c) of the Vienna Convention on the Law of Treaties.35 As a general matter, the US ranks all international treaty law below American domestic law.36 The government routinely subjects international treaties to eventually conflicting constitutional provisions.37 Moreover, the US applies the later-in-time rule to international treaties, which are consequently superseded even by subsequent
32
See C. Redgwell, “US reservations to human rights treaties: all for one and none for all?” in M. Byers/G. Nolte (eds.), United States Hegemony and the Foundations of International Law 392-415 (2003).
33
See, for example, 102d Congress, 2d Sess., US Senate Resolution of Advice and Consent to Ratification of the International Covenant on Civil and Political Rights, para. III. (1), in 138 Cong Rec, S4781, at S483 (2 April 1992), available at http://thomas.loc.gov/cgi-bin/query/ C?r102:./temp/~r102nqa4yi (18 October 2003). For the WTO: Sec. 102(a) and (b)(2) of the Urugay Round Agreements Act, 19 USCA 3512.
34
See 102d Congress, 2d Sess., US Senate Resolution of Advice and Consent to Ratification of the International Covenant on Civil and Political Rights, para. I. (2), in 138 Cong Rec, S4781, at S483 (2 April 1992), available at http://thomas.loc.gov/cgi-bin/query/C?r102:./ temp/~r102nqa4yi (18 October 2003).
35
See H. Keller, “Todesstrafe vorbehalten: Zulässige Einschränkungen internationaler Menschenrechtsgarantien durch die Vereinigten Staaten?”, 13 SZIER 113, at 139 (2003).
36
See H. Keller, supra note 30, at 144-163.
37
See on the Genocide Convention of 1948 the US reservation in Multilateral Treaties as Deposited with the Secretary-General—Status as at 31 December 2002, Vol. 1, part I, Chapter IV, at 124: “nothing in this Convention requires or authorizes legislation or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.” Objections against this reservation were lodged by Denmark, Estonia, Finland, Norway, Ireland, Mexico, Netherlands and Sweden on the grounds that no State party may invoke the provisions of its internal law as justification for failure to perform a treaty (id., at 125 et seq.) Such objections led the US to formulate the identical statement not in a “reservation”, but in less visible special notes. See on the CAT of 1984, Communication of the United States of America to the Secretary-General requesting that a notification should be made to all ratifying parties. Available at http://untreaty.un.org ENGLISH/bible/englishinternetbible/partI/chapterIV/treaty14.asp (9 October 2003). Positive signals in the opposite direction are two recent Supreme Court decisions in which the US
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ordinary domestic legislation.38 In the context of double taxation, the US pursues an official policy of “treaty override”. This means that new American tax laws are applied with disregard to existing double taxation agreements concluded with foreign nations.39 The most important example in this context is the American doctrine of pre-emptive strikes, which does not appear to be covered by Article 51 UN Charter. Consequently, the American military attack on Iraq in the spring of 2003 violated core principles of international law. I will come back to this issue later.40 Here, I merely wish to point out that during the entire Iraq crisis of 2002/2003, the USA constantly exercised pressure on other states. From November 2002 to March 2003, the American government tried to win over the non-permanent members of the Security Council, striving for an authorization of a military intervention. In particular, the African Council members (Angola, Cameroon, Guinea), who are receiving US economic and military aid and grants, voted under heavy diplomatic and economic pressure by the United States, as well as by Britain and France.41 When it turned out that a UN mandate
Constitution is interpreted by reference to international law (Lawrence v. Texas, 123 S.Ct. 2472 (2003) and Grutter v. Bollinger, 123 S. Ct. 2325 (2003), concurring opinion Justice Ginsburg). 38
See Senator Jesse Helms, US Senate Committee on Foreign Relations, Address before the UN Security Council, 20 January 2000: “Under our system, when international treaties are ratified they simply become US law. As such, they carry no greater or lesser weight than any other domestic US law. Treaty obligations can be superseded by a simple act of Congress. ... Thus, when the United States joins a treaty organization, it holds no legal authority over us.” Available at http://usinfo.state.gov/regional/af/unmonth/t0012005.htm (18 October 2003).
39
See K. Vogel, Doppelbesteuerungsabkommen, paras. 127-130 (1996). I am indebted to Ferdinand Kirchhof of the university Tübingen for this information.
40
See in detail infra part IV.A.
41
“US Dollars Yielded Unanimous UN Vote Against Iraq”, Inter Press Service, 11 November 2002, available at http://www.globalpolicy.org/security/issues/iraq/attack/2002/1111dollars.htm (20 October 2004).; “Focus on non-permanent members of UNSC”, The Hindu, 21 February 2003, available at http://www.thehindu.com/thehindu/2003/02/21/stories/ 2003022102681400.htm (20 October 2004).; “War Resolution Puts Mexico in Bind—Fox Weighs Political Costs of Supporting US, Economic Costs of Not”, Washington Post, 1 March 2003, available at http://www.washingtonpost.com/ac2/wpdyn?pagename=article &node=&contentId=A19057-2003Feb28¬Found=true (20 Ocotber 2004); “Analysis: Africa’s Iraq swing votes”, BBC News, 10 March 2003, available at http://news.bbc.co.uk/ 2/hi/africa/2835913.stm (20 Ocotber 2004).; “War on Iraq: Britain, France target African states”, Voice of America News, 11 March 2003, available at http://www.africaonline.com/ site/Articles/1,3,52377.jsp (20 October 2004).
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was not attainable, the USA forged a “coalition of the willing”, supporting unilateral military strikes against Iraq. This coalition (USA, Britain and 48 other states42) was built with considerable pressure and money.43 A closer study of the facts by a Washington based multi-issue think tank, the Institute for Policy Studies, revealed “evidence of coercion, of bullying and acts tantamount to bribery” which led the Institute to label the coalition a “coalition of the coerced”.44 After the war, Turkey was granted a loan of 8.5 Billion US Dollars, which was conditional on cooperating with the US in Iraq.45 There are, of course, also instances in which the United States coerced other states in order to further the cause of international law. A well-known example of this is the considerable, and ultimately successful pressure on Serbia to surrender the former Yugoslav President Slobodan Milosevic to the ICTY.46 And of course America is not the only state to practice checkbook diplomacy.47 However, the United States is, due to its overwhelming military and economic power, in a unique position to reach its
42
See Official White House list of the Coalition members, published 21 March 2003, available at http://www.whitehouse.gov/news/releases/2003/03/20030321-4.html (20 October 2004).
43
“US builds war coalition with favors—and money”, USA Today, 24 February 2003, available at http://www.usatoday.com/news/world/iraq/2003-02-24-unwilling-cover_x.htm (20 October 2004).
44
“Coalition of the Willing or Coalition of the Coerced?: How the Bush Administration Influences Allies in its War on Iraq”, by S. Anderson/P. Bennis/J.Cavanagh, Institute for Policy Studies, 26 February 2003, quotes at 10, available at http://www.ips-dc.org/ COERCED.pdf (20 October 2004).
45
BBC News, 22 September 2003, available at http://news.bbc.co.uk/2/hi/business/3130504.stm (4 October 2003). However, the initial decision to deploy Turkish troops in Iraq, as desired by the US, was after two months reversed by the Turkish government, inter alia in reaction to fierce opposition of the population both in Turkey and in Iraq.
46
“US Makes Arrest of Milosevic A Condition of Aid to Belgrade”, New York Times 10 March 2001, available at http://query.nytimes.com/gst/abstract.html?res=F4091 EFD3E5E0C 738DDDAA0894D9404482 (20 October 2004); “Yugoslavia: Pressure Mounts To Transfer Milosevic To The Hague”, Radio Free Europe, 27 June 2001, available at http://www.rferl. org/nca/features/2001/06/27062001111624.asp (4 October 2003). Another example: The USA has made a 1.3 Billion Dollar military aid contribution to “Plan Colombia” conditional on Colombia’s agreement to test a decease-causing fungus against Colombian coca plantations. “US Pressures Colombia To Use Biological Drugs Warfare”, Irish Times, 8 July 2000, available at http://www.commondreams.org/views/070800-104.htm (4 October 2003).
47
To give but one recent example: Negotiations to seal a 30 billion US Dollar energy resources deal between Australia and East Timor were completed in March 2003, amid accusations of blackmail and acrimony. East Timor is believed to have agreed to sign under pressure from
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policy goals with carrots and sticks, regardless of what the international law says. This is highly frustrating for international lawyers and for less powerful states. However, the recent events have neither led to a fundamental change of basic legal principles, nor do they recommend one for the future. This will be explained in the following sections.
III. How Can this Powerplay Change the International Legal System? The question of this agora is whether the nature of the international legal system is changing due to US hegemony. An answer must begin by clarifying what we mean by “change”. Ideally, a legal system can change through evolution or revolution.
A. Revolution? Quite a few authors claim that America’s general reluctance to bind itself under international law, its pick and choose approach to international rules, and its actively obstructive policy regarding specific legal regimes constitute a fundamental challenge to the current legal order48 risking destruction49 or annihilation of
the Australian government which was stalling another deal vital to Dili’s economic future, the Timor Sea Treaty. G. Holloway, “Timor energy deal finally sealed”, CNN.com of 6 March 2003, available at http://edition.cnn.com/2003/WORLD/asiapcf/auspac/03/05/ australia.timor.gasdeal/ (4 October 2003). 48
The UN Secretary-General spoke of “a fundamental challenge to the principles on which, however imperfectly, world peace and stability have rested for the last fifty-eight years.” UN Secretary-General’s Address to the General Assembly, 23 September 2003, available at http://www.un.org/webcast/ga/58/statements/sgeng030923.htm (3 November 2003).
49
“.... that would be the end of the current world order” (C. Tomuschat, “Das Ende der Weltordnung”, Der Spiegel 24, at 25 (2003/4), transl. by the author, available at http://www. spiegel.de/spiegel/0,1518,232200,00.html (7 October 2003)). Rainer Merkel opines that the US are laying an axe at the roots of international law as a legal order (R. Merkel, “Amerikas Recht auf die Welt”, in D. S. Lutz/H. J. Giessmann (eds.), Die Stärke des Rechts gegen das Recht des Stärkeren 37, at 39 (2003)). Mary-Ellen O’Connor writes: “If the US claims for itself imperial privileges, privileges not available to other States, international law may be fundamentally altered” (M.- E. O’Connor, “Pre-Emption and Exception—The USA Moves Beyond Unilateralism”, in D. S. Lutz/H. J. Giessmann (eds.), Die Stärke des Rechts 148, at 157 (2003)). Anthony Clark Arend asserts: “For all practical purposes, the UN Charter framework is dead” (A. Arend, “International Law and the Pre-emptive Use of Military Force”, 26 Washington Quarterly 89, at 101 (Spring 2003). See also T. M. Franck,
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it.50 In terms of legal theory, these observations more or less explicitly contain the argument that a genuine revolution in international law is taking place.51 The ultimate American revolutionary act was, in this view, the arrogation of a special American privilege of pre-emptive self-defense, the selective disdain of the prohibition on the use of force and the corresponding claim that war is merely politics by other means.52 In this perspective, the war of aggression was not illegal, but extralegal, justified by a higher legitimacy, in short, a “just war”.53 It marks the beginning of a completely novel, asymmetrical international legal order. What does that imply? Revolution means legal discontinuity. It means trashing the old international legal order and setting up a new order whose legality cannot be measured according to the standards of the old one. In Kelsen’s terms, a revolution is a change of the basic norm (Grundnorm). If the old basic norm was: “the states ought
“What happens Now? The United Nations after Iraq”, 97 AJIL 607, at 608, 614, 617, 630 (2003); R. Herzinger, “Siamesische Zwillinge: Amerika und Europa streiten sich heftig— und gehören doch untrennbar zusammen”, 58 Internationale Politik 1, at 8 (2003/6). 50
“We need not mourn for the destroyed international law.” S. Tönnies, “Ist das Völkerrecht noch zu retten?” Blätter für deutsche und internationale Politik 778, at 780 (transl. by the author) (7/2003). H. Münkler, “Das Ende des ‘klassischen’ Krieges”, Neue Züricher Zeitung No. 213, 14/15 September 2002, at 73, arguing that the American attack on Iraq was the death blow for international law. See also G. Nolte, “Weg in eine andere Rechtsordnung”, in D. S. Lutz/H. J. Giessmann (eds.), Die Stärke des Rechts 187, supra note 49, at 190 (2003): “Step into a different legal order”.
51
In a widely noticed article of summer 2002 discussing the usefulness of pre-emptive strikes on Iraq, Henry Kissinger wrote: “The new approach is revolutionary. Regime change as a goal for military intervention challenges the international system established by the 1648 Treaty of Westphalia”. H. Kissinger, “Pre-emptive strike on Iraq to improve peace prospects”, The Manila Times Internet Edition, 11 August 2002, available at http://www. manilatimes.net (7 October 2003). See also U. Preuss, “Krieg auf Verdacht oder imperialer Gründungskrieg: Reflexionen über Kriegsgründe”, Stuttgarter Zeitung, Wochenendbeilage, 1 February 2003, at 1, available at http://www.stuttgarter-zeitung.de/stz/index.php (7 October 2003).
52
“So sehen wir also, dass der Krieg nicht bloss ein politischer Akt, sondern ein wahres politisches Instrument ist, eine Fortsetzung des politischen Verkehrs, ein Durchführen desselben mit anderen Mitteln.” C. von Clausewitz, Vom Kriege 210 (1980, original 1832).
53
M. Walzer, “Es muss einen Ausweg geben”, Frankfurter Allgemeine Zeitung, 16 August 2003, at 9. See also G. Haller, Die Grenzen der Solidarität: Europa und die USA im Umgang mit Staat, Nation und Religion 83-95 (2002), asserting that the United States’ attitude towards international law differs fundamentally from the European one, because it is fundamentally moralist and does not separate law from morals.
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to behave as they have customarily behaved”,54 the new basic norm would be: “the states ought to behave as it suits the United States.” However, the theory that we are in the midst of a revolution of the international legal order is not entirely convincing. The absence of a genuine revolution can, firstly, be demonstrated with regard to the events in Iraq. The American justification of the Iraq war was two-fold. On various occasions, the US asserted some higher legitimacy and denied the necessity of a UN mandate for the use of military force.55 This attitude is, by the way, no novelty of the Iraq crisis, but had already been asserted by the Clinton administration: “we act in concert with the international community whenever possible, but do not hesitate to act unilaterally when necessary.”56 However, this claim for unilateral action embodies neither explicitly nor by necessary implication a will to disregard or to breach the law. Unilateralism is no crime under international law. And even breaching the law in one or more specific cases does not perforce amount to denying the validity of the norm in question or the validity of the entire system. Moreover, the United States has never officially stated that the existing prohibition of the use of force is out-moded or irrelevant. It has not called for a different international law. Instead, it struggled for a long time during the Iraq crisis for a mandate by the Security Council. When it did not obtain the authorization, the United States argued, in its official letter to the UN Security Council, that the military actions were authorized under existing Council resolutions, notably resolution 678 (1990)
54
H. Kelsen, Principles of International Law 564 (1966).
55
See the US President’s Remarks at the United Nations General Assembly, 12 September 2002 with the veiled announcement to act unilaterally: “If Iraq’s regime defies us again, the world must more deliberately, decisively to hold Iraq to account. We will work with the UN Security Council for the necessary resolutions. But the purposes of the United States should not be doubted. The Security Resolutions will be enforced—the just demands of peace and security will be met—or action will be unavoidable.” Available at http://www.whitehouse. gov/news/releases/2002/09/20020912-1.html (13 October 2003) (emphasis added). See also Secretary of State Colin Powell: “And keep in mind that even though we’re talking about resolutions and we’re trying to get the collective will of the United Nations through the Security Council behind this resolution, the President still retains all of his options to act in any manner that he believes appropriate to protect American interests and American lives.” Interview on CNN’s Late Edition, 15 September 2002, available at http://www.state.gov/ secretary/rm/2002/13481.htm (13 October 2003).
56
A National Security Strategy for a New Century, in Chapter II under the heading “The decision to Employ Military Forces” at 27 (December 1999), available at http://usinfo.state.gov/ regional/ar/natsec2k.htm (8 October 2003). Apparently, the slogan “With the UN, whenever possible, without it when necessary”, already appeared as the title of an internal memorandum (“non-paper”) presented by the US Embassy at NATO to its Allies in Brussels as early as summer of 1993.
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and 687 (1991) relating to the Gulf War of 1991.57 Additionally, the USA relied on the state’s inherent right to self-defense, which it claimed to “adapt” by its doctrine of pre-emption. Both justifications are legally untenable, but they are made within the legal order. Lawyerly constructions of this type can amount to abusing the law as a mere fig leaf to cover actions motivated by a perceived (perhaps misconceived) raison d’Etat. Such a fig leaf-function of the law may undermine its normative power. However, with view to our initial question whether a revolution is occurring, it is important to realize that the US argumentation in no way implies a revolutionary claim.58 Secondly, as far as American manoeuvres with regard to the Kyoto Protocol, the Landmines Convention, or the ICC are concerned, it is of course significant that the United States abstains from important multilateral constitutional treaties which are landmarks in the evolution of the post-1989 global order.59 The US thereby opts out from significant portions of the international system. This strategy results in an unequal legalization of international relations: other states become subject to new and bold rules, but not the USA.60 However, slowing down progress does not constitute a violation of international law. Notwithstanding tiers-mondiste theories on a general duty to cooperate in the international realm, and despite the current rise of traitéslois, which appear somewhat hostile to the notion of freedom of contract, a general legal duty to cooperate or to contract does not (yet) exist. Thus, American isolationism neither violates international law nor revolutionizes it. Thirdly, although the conditions of American aid coerces dependent states into compliance, this policy is not prohibited by current legal standards. Recipients have no legal right to aid. Consequently, the American conditions do not constitute an intervention in internal affairs and the sanction of withdrawing benefits does not per se (absent specific agreements or legitimate expectations) infringe any legally valid position. Overall, it seems as if US unilateralism and even deviations from international law have as yet not established a “new” international legal order.
57
Letter dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council (S/2003/ 351). http://www.un.int/usa/s2003_351.pdf (25 September 2003).
58
In this sense also A.- M. Slaughter, “Good Reasons for Going Around the UN”, The New York Times, 18 March 2003, at A 33: “What is most important here is that the contenting sides continue to regard United Nations approval as a necessary component of the use of force.”
59
Among the pre-1989 world order treaties, the Vienna Convention on the Law of Treaties and the Law of the Sea Convention have not been ratified by the US either.
60
Krisch, supra note 8, at 154.
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B. Evolution? In the absence of a revolution, the law changes via evolution. Legal evolution occurs over an extended period of time. Neither 20 March 2003 (the beginning of the military invasion in Iraq), nor 11 September 2001 constitute a big bang for the international legal and political system. The current evolutionary phase basically started on 9 November 1989, with the fall of the Berlin wall. This date symbolizes the beginning of the end of the bipolar world order. Evolution means that rules are created, modified, or abrogated in the procedures foreseen by the secondary norms of legal order.61 In international law, the procedures are treaty-making or the formation of customary law. Our question is whether frequent violations of international law, especially by the most powerful member of the international community, can modify customary principles such as the non-use of force and the equality of states and thereby effectuate change. In the international legal system, in which law-making and law-enforcement is only fragmentarily centralized, the “normative power of the facts”62 is greater than in domestic legal systems. However, this does not mean that “might” collapses into “right”. The assertion that a Great Power’s illegal practices could per se abrogate customary principles amounts to pure sociological-political positivism and denies the existence of international law. Law is by definition counterfactual, because it establishes standards of behavior, which are of course not always satisfied. The generally shared concept of law implies that the law is sometimes impotent. Otherwise we would not condemn for example human rights violations in many parts of the world. If, on the other hand, legal standards were always satisfied and never violated, the law would be superfluous. The objection to the observation that America alone cannot change the law, is the reproach of naiveté. We must face reality, writes Professor Zemanek. This is true. But lawyers, as well as statesmen, must not only be realists, they must at the same time be idealists. Moreover, an extreme legal scepticism likewise misconstrues the reality of international politics. Here international law does play a more or less modest role.63 Therefore, not only the overstatement, but also the understatement of the role of rules appears naive and does not further the cause of international peace and stability. The upshot of these reflections is that although the actions and the pronounced convictions of powerful states have more weight than the behavior and utterances of small and weaker states in the process of customary evolution and in treaty-formation, one Great Power’s occasional disdain of international law cannot in itself change the
61
See H. L. A. Hart, The Concept of Law 92 (1961).
62
G. Jellinek, Allgemeine Staatslehre 338-344 (1914).
63
See also infra part V.
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law. There must be some more to it. This rather complex evolutionary process will be examined in the following section with regard to two core principles of international law.
IV. The “Nature” of the International Legal System: Limited Egalitarianism Among Basically Peaceful States The question of this agora is, whether the “nature” of the international legal system is changing. By “nature” I mean basic (constitutional) principles, structure, and functions of the legal system or order. The current American hegemony (in a political sense) most obviously affects two (or three) constitutional principles of international law, notably the prohibition of the use of force and the sovereign equality of states. In terms of structure, American hegemony affects the UN system of collective security. As regards functions, US dominance might have an impact on the steering capacity of international law as such and on the role of legal arguments in the global policy discourse. I will first discuss the constitutional principles, which are intrinsically related.
A. Non-Use of Force: Towards a Doctrine of Pre-emption? The prohibition of the use of force is codified in Article 2(4) UN Charter. It is the most important achievement of the UN era. Most states and commentators consider it to be ius cogens.64 The prohibition of resort to military force serves most of all the weak and smaller states. Without this prohibition, their sovereignty and territorial integrity are permanently in danger. Non-use of force means that states may not resolve their conflicts by resorting to military force. Instead, it is for the Security Council to determine whether there is a threat to peace and, in the last resort, to authorize military measures. The prohibition of the use of force does however not impair the inherent right of self-defense in the case of an armed attack against a state.
1. The So-Called Bush Doctrine of 2002 The question at issue is whether recent US statements and practice, notably the US National Security Strategy of 2002 (the so-called Bush Doctrine) and its de factoimplementation in the 2003 war on Iraq, is the starting point of a legal evolution of the constitutional principle of the non use of force. The Bush Doctrine claims to
64
See Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Judgment of 27 June 1986, Merits, 1986 ICJ Rep. 14, at 190; YILC (1966-II), at 247; A. Randelzhofer, “Article 2”, 63, at 66, para. 12, in B. Simma (ed.), The Charter of the United Nations: A Commentary, Vol. I (2002).
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“adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries”. Why? Because “[r]ogue states and terrorists do not seek to attack [the USA] using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction— weapons that can be easily concealed, delivered covertly, and used without warning. ... To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively.”65 The new concept of “pre-emptive” self-defense is even broader than the previously discussed and still highly controversial “anticipatory”, sometimes called “interceptive” self-defense.66 The latter concept allows a state to react with military means visà-vis a directly threatening or imminent attack.67 Despite the obvious danger of abuse, a right to anticipatory self-defense has recently been, especially under the impression of the attacks of 11 September 2001, more widely acknowledged, be it parallel to or covered by Article 51 UN Charter.68 The concept of pre-emption must be discussed on two distinct levels. On the level of positive law, one must ask whether the concept is becoming a legal norm. On the 65
The National Security Strategy of the United States of America of 17 September 2002, Chapter V: “Prevent Our Enemies from Threatening Us, Our Allies, and Our Friends with Weapons of Mass Destruction”, available at http://www.whitehouse.gov/nsc/nss.pdf (7 October 2003). See already the President’s Commencement Address at the United States Military Academy in West Point, New York, 1 June 2002, available at http://www.dartmouth. edu/~govdocs/docs/iraq/060102.pdf/ (9 October 2003).
66
See for good discussions of anticipatory self-defense M. N. Shaw, International Law 789790 (1997); C. Gray, International Law and the Use of Force 111-115 (2001); A. Cassese, International Law 307-311 (2001).
67
See the Caroline-test (1841/42), according to which self-defense is limited to cases in which the “necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation”. Mr. Webster, US Secretary of State, to Lord Ashburton, British plen., 6 August 1842, repr. in J. B. Moore, A Digest of International Law, Vol. II, at 412 (1906). Reaffirmed by the International Military Tribunal (Nuremberg), Judgment of 1 October 1946, 41 AJIL 172, at 205 (1947).
68
In favor of anticipatory self-defense seminally M. S. McDougall, “The Soviet-Cuban Quarantine and Self-Defense”, 57 AJIL, 597, at 600-601 (1963); see also B.- O. Bryde, “Self-Defence”, 4 EPIL 361, at 362 (2000); Y. Dinstein, War, Aggression and Self-Defence 172 (2001); M. Sapiro, “Iraq: The Shifting Sands of Pre-emptive Self-Defense”, 97 AJIL 599, at 604 (2003); J. E. Stromseth, “Law and Force after Iraq: A Transitional Moment”, 97 AJIL 628, at 637-638 (2003). Prior to 9/11, many authors negated the lawfulness of anticipatory strikes, for example, I. Brownlie: “The Use of Force in Self-Defence”, 37 BYIL 183, at 242-244 (1961); A. Cassese, supra note 66; A. Randelzhofer, “Article 51”, in B. Simma (ed.), The Charter of the United Nations: A Commentary, Vol. I, 788, 803-804, paras. 39-40 ; Gray, supra note 66, at 112 (“doubtful status of this justification”).
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level of legal policy, one must ask whether such a legal evolution is desirable.
2. Customary Law? With a view to the formation and modification of customary law, the Bush Doctrine may be qualified as a manifestation of opinio iuris. As regards the objective element of customary law, the war on Iraq was the first example of state practice. Leaving aside the possibility of instant custom, which is not generally acknowledged, it is too early to identify a change of the customary law of self-defense. A new rule and thereby a crucial modification of the prohibition of the use of force would come into being only if this practice continued, on the side of America or other states. As yet, a respective general opinio iuris has not emerged. As already mentioned (supra part. II), the “coalition of the willing” was in part forced into collaboration, so that the member’s support was no clear evidence of an opinio iuris.69 As yet, only three states, Australia,70 Russia and Israel,71 have explicitly endorsed the Bush Doctrine. The Indian government has, after initial approval by the secretary of finances,72 dissociated itself from the pre-emption doctrine.73 Other states, among them France,74 Pakistan75 and 69
See also “‘New’ Europe Distances Itself From War,” Independent, 1 April 2003, available at http://www.commondreams.org/headlines03/0401-07.htm (25 September 2003).
70
See “The PM And Pre-Emption Politics”, australianpolitics.com, 14 March 2003, quoting PM Howard: “Possession of chemical, biological or nuclear weapons by terrorists would constitute a direct, undeniable and lethal threat to Australia and its people [...]. That more than any other reason is why Iraq must be effectively and comprehensively disarmed.” Available at http://australianpolitics.com/words/daily/archives/00000219.shtml (25 September 2003). See also “Australiens Regierungschef für Anti-Terror-Schläge im Ausland”, Neue Zürcher Zeitung, 1 December 2002, available at http://www.nzz.ch/2002/12/01/al/pagenewzzD96V9VAV-12.html (25 September 2003).
71
“Israel Threatens Militants Abroad”, New York Times, 9 September 2003, available at http://www.nytimes.com/aponline/international/AP-Israel-Militant-Leaders.html (25 September 2003). See for Russia The Washington Times, 9 September 2004.
72
“Pre-emption not prerogative of one country”, The Tribune, Online Edition, 1 October 2002, quoting Indian Secretary of finances Jaswant Singh: “Pre-emption is not the sole prerogative of any one country.” Available at http://www.tribuneindia.com/2002/20021001/world.htm#2 (25 September 2003).
73
See “Sinha flies a kite”, The Hindu, 20 April 2003, available at http://www.hinduonnet.com/ thehindu/mag/2003/04/20/stories/2003042000420200.htm (25 September 2003).
74
Discours de Monsieur Jacques Chirac, Président de la République française à l’ouverture de la 58ième séssion de l’Assemblée Générale des Nations Unies, 23 September 2003, available at http://www.elysee.fr/magazine/deplacement_etranger/sommaire.php?doc=/documents/ discours/2003/NY030922E.html (8 October 2003).
75
“Pakistan rejects Sinha’s ‘talk of pre-emption’”, The Hindu, 4 April 2003, available at
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Malaysia,76 have objected to the doctrine of pre-emption. Switzerland seems to oppose the doctrine as well.77 China’s attitude is unclear.78 Among international non-state actors, the UN Secretary General clearly condemned the doctrine of pre-emption.79 First reactions by publicists (whose teachings are a “subsidiary means for the determination of the rules of law”, Article 38(1.d) ICJ Statue) were only very rarely apologetic,80 but for the most part, highly critical—even in the USA.81 In European academic circles, rejection of the Bush Doctrine is almost unanimous.82 http://www.thehindu.com/thehindu/2003/04/04/stories/2003040404991100.htm (25 September 2003), quoting the Indian Foreign Minister Yaswant Sinha: “India has a much better case to go for pre-emptive action” against Pakistan than the United States in Iraq. 76
“First strike an ‘act of war’”, CNN.com, 3 December 2002, available at http://edition.cnn.com/ 2002/WORLD/asiapcf/auspac/12/02/australia.terror.us/index.html (25 September 2003).
77
Declaration of J. A. Staehelin, Permanent Representative of Switzerland at the United Nations before the Security Council on the subject: “The situation between Iraq and Kuwait”, of 11 March 2003: “Dans les circonstances actuelles, c’est-à-dire aussi longtemps que, selon les experts, les inspections continuent à donner des résultats, la Suisse considère qu’il faut donner la priorité au désarmement pacifique de l’Irak. (...) Si toutes les tentatives tendant au désarmement pacifique de l’Irak venaient malgré tout à échouer, la Suisse invite les membres du Conseil de sécurité à veiller à ce que toute décision, prise sur la base du chapitre VII de la Charte des Nations Unies, inclue l’exigence inconditionnelle pour toutes les parties à un éventuel conflit de respecter et de faire respecter le droit international humanitaire”, available at http://www.eda.admin.ch/eda/g/home/recent/focus/irakcr.Par.0012.UpFile.pdfsp_030311_ UNiraqkuwt_fe.pdf (25 September 2003).
78
It is merely speculated whether the country will make use of the pre-emption doctrine against Taiwan. See “Iraq effect on US role in Asia”, The Christian Science Monitor, 8 May 2003, available at http://www.csmonitor.com/2003/0508/p11s02-coop.html (25 September 2003).
79
UN Secretary-General’s Address to the General Assembly, 23 September 2003, supra note 48.
80
See in favor of the doctrine of pre-emption, L. R. Beres, “Israel and Pre-emption: Striking First Under International Law”, Tzemach News Service, 30 January 2001, available at http://www.tzemach.org/fyi/docs/beres/preempt.htm (25 September 2003).
81
E. O’Connor, “Addendum to Armed Forces in Iraq: Issues of Legality”, ASIL-Insights, April 2003, available at http://www.asil.org/insights.htm (7 October 2003). P. W. Schroeder,“What would Kant say? Iraq: The Case Against Pre-emptive War”, The American Conservative, 21 October 2002, available at http://www.amconmag.com/10_21/iraq.html (7 October 2003); R. N. Gardner, “Neither Bush nor the ‘Jurisprudes’”, 97 AJIL 585, at 588 (2003); Sapiro, supra note 68, at 599-607.
82
See, e.g., I. H. Daalder, “The Use of Force in a Changing World—US and European Perspectives”, 16 LJIL 171 (2003); C. Tomuschat, “Völkerrecht ist kein Zweiklassenrecht”, 2 Vereinte Nationen 41, at 42-43 (2003); R. Kolb, “Ein Recht auf präventive Verteidigung?”
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3. Sound Policy? Any policy analysis must begin with the insight that a universalized doctrine of preemption would constitute a change of paradigm away from the current scheme of detention and containment. The question is whether the promotion of such a novel scheme would become the international order generally. The ultimate telos of the international legal system is to accommodate conflicting (national) interests and thereby promote and safeguard, as far as possible, both stability/legal security and fairness. This is also in the interest of the more powerful actors, although they may hope to achieve the twin-goals of stability and rightness more often than other actors independent from legal constraints. I will now look at the most pertinent policy considerations. One argument in favor of this doctrine is that the current transformation of state sovereignty might require, as a corollary, a modification of the principle of non-use of force. As state sovereignty is eroding, military force might have a role to play in a far greater number of circumstances than before.83 The correct starting point of this argument is that the prohibition of resort to force, as enshrined in the UN Charter, presupposes that the states have the monopoly of the legitimate use of force, which is an important element of state sovereignty. Therefore, the principle of non-use of force focuses on the states. It is true that the states’ monopoly on organized violence is eroding (failed states; privatized warfare; warlords; global terrorism etc.). However, the law’s general reaction to this trend must rather be the extension of the prohibition of the use of force to new addressees. For sure, such a shift in turn implies an extension of the right to self-defense against non-state attacks. But this in no way compels a temporal extension of that right (because terrorists cannot, per se, attack more quickly and inadvertently than a hostile state). Given the fact that modern, even conventional weaponry allows the launch of serious attacks almost instantaneously, not to speak of easy and quickly to deliver WMD (notably biological weapons) with a vast potential destructive capacity, it seems reasonable to allow for anticipatory, proportionate defensive reactions to imminent attacks, including terrorist aggression. It would be cynical to ask the states to sit still, waiting until the first anthrax bomb explodes. It might even be necessary to adapt the notion of “imminence”, as phrased in the Caroline-formula more than 150 years ago, to modern conditions. Nevertheless, anticipatory self-defense must be subject to strict conditions and must refer to verifiable facts. In contrast, pre-emptive action concerns
Neue Zürcher Zeitung, 23 June 2003, available at http://www.nzz.ch/dossiers/2003/ terrorismus/2003.06.23-al-article8VKPS.html (6 No-vember 2003); D. Murswiek, “Die amerikanische Präventivkriegsstrategie und das Völkerrecht”, 56 Neue Juristische Wochenschrift 1014, at 1017 (2003). 83
See Daalder, supra note 82, at 172 and 180.
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a merely possible or foreseeable attack, an abstract, not a concrete danger.84 Most importantly, the installation of a doctrine of pre-emption would lower the threshold for unilaterally determined events that warrant acts of ostensible selfdefense. The doctrine would encourage latent adversaries to strike sooner than later in order to strike first (Pakistan versus India; Iran versus Iraq; Russia versus Georgia; Azerbaijan versus Armenia; North Korea versus South Korea, and so on). All in all, the general availability of the doctrine would most likely lead to a more frequent resort to military action and thereby raise the general level of transboundary violence.85 The danger of abuse appears even greater than under the current permission of self-defense against an imminent threat. This is due to the existence of an abstract threat which can hardly be verified by an objective criteria. Any finding in that regard highly depends on the perception of the potentially victimized state. As a result, the doctrine of pre-emption actually erases the distinction between aggression and defensive military action. Under the cover of pre-emption, the liberum ius ad bellum is re-introduced. The only difference to pre-1928 law is that the state one wishes to attack must be called a rogue state before striking.86 The slippery slope appears even more precipitous if we consider the extreme vagueness of grounds for potential threats: where does harboring of terrorists or support of terrorism actually begin? Moreover, the logic of the doctrine calls for acknowledging an even broader set of threats, such as protecting “global public goods”, such as oil, preventing the acquisition of weapons of mass destruction and ultimately a “regime-change” in general.87
84
See M. Reisman, “Editorial Comment: Assessing Claims to Revise the Laws of War”, 97 AJIL 82, at 86-87 (2003).
85
Reisman, supra note 84, at 89; Daalder, supra note 82, at 177; O’Connor, supra note 49, at 159; Tomuschat, supra note 82, at 45. Most succinctly, historian Paul W. Schroeder emphasizes “how novel, dangerous, and subversive of international order and peace this new, unprecedented American doctrine is. [...] A more dangerous, illegitimate norm and example can hardly be imagined. ... [I]t completely subverts previous standards for judging the legitimacy of resorts to war, justifying any number of wars hitherto considered unjust and aggressive. [...] It would in fact justify almost any attack by any state on any other for almost any reason. [...] The American example and standard for pre-emptive war, if carried out, would invite imitation and emulation, and get it.” (Schroeder, supra note 81). As the UN Secretary General aptly observed, the doctrine of pre-emption “could set precedents that resulted in a proliferation of the unilateral and lawless use of force, with or without credible justification”. Address to the General Assembly, 23 September 2003, supra note 48.
86
Mursiwek, supra note 82, at 1019.
87
Daalder, supra note 82, at 180.
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Moreover, in a functioning system of collective security, unilateral preventive strikes are not necessary. The Security Council is not bound by the narrow confines of Article 51 UN Charter. It may determine a threat to the peace and authorize such preventive strikes as may be needed to counter novel types of threats.88 Lawyers and officials should therefore strive to strengthen the system of collective security, not undermine it. In conclusion, it is evident that a generalization and legalization of the doctrine of pre-emptive strikes would be strategically imprudent. It would lead to relying on military force as a first, not a last resort. Consequently, a universal law of pre-emption would run counter to the general objective of international law and would in the long run endanger the United States itself.
4. Pre-emptive Strikes as an American Prerogative? In the preceding section, I have argued against a general doctrine of pre-emption. A distinct question is whether pre-emption is in the process of becoming an American privilege. Such an evolution would constitute a crucial element of transformation of the international legal order into an asymmetrical or hierarchical order. Generally speaking, a “doctrine”, such as the Bush Doctrine of pre-emptive strikes, may be understood as a demand for an exception.89 Consequently, some observers assume that “by asserting a right to act pre-emptively, the Administration appears to be claiming rights in international law not available to other states. Its claims appear to rest on the concept that the United States is an exceptional nation.”90 In my view, it can currently only be speculated whether the American government itself is indeed availing itself of an asymmetrical concept or whether it proposes pre-emption as a universal doctrine. In any case, the rare approving international reactions (supra part IV.A.2.) clearly point against legal consolidation of such an arrogation. Not one single state has, so far, acknowledged a specifically and uniquely American right to pre-emptive strikes. Rather, states have claimed such a right for themselves, hence by implication as a general right for all states. So even if the law moved towards an erosion of the prohibition of resort to military force, this erosion would not affect the principle of equality of states, which will now be examined in more detail.
88
Tomuschat, supra note 82, at 44.
89
Reisman, supra note 84, at 90.
90
O’Connor, supra note 49, at 148 and 157-18. In that sense also Schroeder, supra note 81.
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B. Sovereign Equality: Towards Animal Farm? At present, the international legal order is basically egalitarian and thereby antihegemonial.91 Any legal institutionalization of the current American factual hegemony would hurt itself at the axiom of legal equality of states92—or would modify the axiom.
1. Juridical Equality of States Despite Great Powers’ Dominance The history of the international legal order is characterized by alternate, but continuous leadership of various Great Powers: Spain dominated until the Peace of Westphalia of 1648, France until the Congress of Vienna of 1815, and England until the end of World War I in 1919.93 Groups of powerful states, such as the Holy Alliance of 1815, the Principal Allied and Associated Powers of 1918, and also the victors of World War II were the constructors of new orders at key historical turning points. With a view to these realities, doctrines of state inequality (or assertions of a privileged legal authority of the Great Powers) were occasionally formulated in scholarship,94 but never acquired general recognition as law. Quite the contrary, a basic rule of the Westphalian system has always been (however fictitious) that all states enjoy an equal juridical status under general international law.95 That basic rule originates from the epoch of “ius gentium et naturae”, when states were equated to individuals in the state of nature. Consistently, equality was construed as a fundamental right of states. Moreover, as (states’) rights were derived from natural law (not from consent), even concrete rights and obligations were per se applicable to all, hence equal. In the words of Emer de Vattel: “Puisque les hommes sont naturellement égaux, & que leurs
91
See Triepel, supra note 5, at 205; Ginther, supra note 5, at 688.
92
See on the history of the idea E. D. Dickinson, The Equality of States in International Law (1920); J.Goebel, The Equality of States: A Study in the History of Law (1923); W. Schaumann, Die Gleichheit der Staaten: Ein Beitrag zu den Grundprinzipien des Völkerrechts (1957), emphasizing the antagonism between the principle of equality and Great Power politics at 150-151; P. H. Kooijmans, The Doctrine of the Legal Equality of States: An Inquiry into the Foundations of International Law (1964); R. A. Klein, Sovereign Equality among States: The History of an Idea (1974), on equality in a world of superpowers (at 143).
93
W. Grewe, Epochs of International Law (2000).
94
See, e.g., T. J. Lawrence, The Principles of International Law, Chapter IV, 245-270 (1937); H. Mosler, Die Grossmachtstellung im Völkerrecht 33-47 (1949) on collective hegemony performing “an organising function in terms of the idea of law in the twilight between politics and law” (transl. by the author).
95
H. Steinberger, “Sovereignty”, 4 EPIL 500, at 515 (2000); G. Dahm/J. Delbrück/R. Wolfrum, Völkerrecht, Vol. I/1 239 (1988).
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droits & leurs obligations sont les mêmes, comme venant également de la Nature, les Nations composées d’hommes, & considérées commes autant de personnes libres qui vivent ensemble dans l’état de Nature, sont naturellement égales, & tiennent de la Nature les mêmes obligations & les mêmes droits.”96 However, the principle’s scope was limited by restricting its applicability to a closer family of (European “civilized”) nations.97 This limitation, as well as distinctions between sovereign and semi-sovereign states etc. were definitely abolished only with the foundation of the UN and the opening up of international law to a truly universal law. Today, the principle of equality is enshrined most prominently in the UN Charter (Preamble,98 Article 2(1)) and in the Friendly Relations Declaration.99 The systemic justification of the more or less utopian principle of state equality is that it is the flip-side of sovereignty (“sovereign equality” in Article 2(1) UN Charter). If sovereignty means independence from other states, it precludes legal authority of one state over the other and implies the legal equality of states.100 Thus, the principle of equality reflects the basic, horizontal structure of international law as a legal order among juxtaposed actors. The absence of a comprehensive, central law making body accounts for the special nature of state equality, which is (contrary to 18th century anthropomorphist constructions) not analogous to the equality of human individuals. States have, unlike individuals, no claim to equal laws or equal treatment against any superior authority. In the absence of a global legislator, states themselves are the primary international law makers. Therefore, the meaning of state equality is quite limited in international law. It basically requires that the primary norms (norms on how norms are produced, applied and enforced), regarding the conclusion of treaties, the formation of customary law, and dispute settlement are applied equally to all states.101 The most 96
E. de Vattel, Le droit des gens ou principes de la loi naturelle appliqués à la conduite et aux affaires des Nations et des Souverains, Préliminaires, para. 18 (1758, repr. 1916).
97
A. Anghie, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth Century International Law”, 40 HarvJIL 1, at 22 (1999).
98
Speaking of “equal rights of men and women and of nations large and small”.
99
UN Doc. A/RES/2625 (XVV), speaking of “equal rights and duties” of all States. See also UN Doc. A/RES/34/103 (1979): “Inadmissibility of the Policy of Hegemonism”.
100
S. Pufendorf, De Iure Naturae Gentium Libri Octo (1688, repr. 1934), Book VIII, Chapter 12, para. 4; J. J. Moser, Versuch des neuesten Europäischen Völkerrechts in Friedens- und Kriegszeiten, Vol. I, Chapter III (1777) (portions reprinted as Grundsätze des Völkerrechts 14 (1959)). In contemporary scholarship notably Dahm/Delbrück/Wolfrum, supra note 95, at 236.
101
Moreover, the principle of State equality is generally conceived of a purely legal (“formal”) position. It does not generally encompass a right to factual equality (substantially equal positions or outcomes). See for the quest for substantial equality or for “compensatory
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important practical consequences are that a treaty needs the signature and ratification of all partners and that all ratifications have equal legal weight. Moreover, the principle of equality justifies state immunity: “par in parem non habet iudicium”. Finally, equality demands that all states can act on an equal footing in international judicial or arbitrary procedures. In contrast, within specific regimes (under concrete treaties, in International Organizations), the law making or founding states may accord to themselves diverging rights and duties. Positivist reasoning justifies these concrete inequalities by the participating states’ prior consent. In this point of view, a crucial legitimating factor is the absence of pressure and constraint in that context. The problem is, of course, to draw a line between illegal duress and the ordinary “carrots and sticks” policy of the more powerful actors. In this context, the deterrent potential of the sanction formulated in Article 52 of the Vienna Convention on the Law of Treaties might be strengthened by dynamic interpretation of the clause.102 However, such efforts hurt themselves at the general acceptance of unequal bargaining power of the contracting states as legitimate in a legal order based on “formal” not “factual” equality. But this strict positivist separation of “law” and “politics”, which allows inequalities to be kept outside the law,103 is too simplistic to be true.104 I will present a different perspective below.
2. Trashing Equality? The current global constellation might be the constitutional moment to definitely trash the more or less notional principle of equality. According to some commentators, the events of 2003 have brought home as never before “the irrationality of treating states as equals”. In this view, the principle of sovereign equality is one of the “castles in the air –... imaginary truths” and “disables [the UN] from effectively addressing emerging crises”.105 The crucial question of this agora is whether we should adopt a
inequality” in favor of developing countries the 1970’s debate on the New International Economic Order. 102
During the drafting process, a proposal by a group of developing States to define “force” so as to include economic or political pressure was rejected. However, this does not preclude a dynamic interpretation of the existing text. See R. G. Wetzel/D. Rauschnig, The Vienna Convention on the Law of Treaties: Travaux Préparatoires 361-371 (1978); P. Reuter, Introduction au droit des traités 270-274 (1995).
103
See as a prototype of positivist reasoning L. Oppenheim, International Law, Vol. I, § 116, at 170-171 (1912).
104
See in this sense Krisch, supra note 8, at 153.
105
M. J. Glennon, “Why the Security Council Failed”, Foreign Affairs 16, at 32-33 (May/June 2003).
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new theory of “sovereign inequality”,106 which would be (more) conscious of the realities of power.107 I have several objections against this proposal. The first set of objections relates to the functions of law. The primary function of law is to create order. “Law” which merely sanctions the established facts would not fulfill that function. Therefore, international legal principles must work, inter alia, as regulative ideals. Notably the idea of the legal equality of states is—to some extent— a utopian appeal. But this utopia is greatly tempered by concrete legal privileges accorded to the Great Powers within specific regimes. Within International Organizations, the most common legal distinctions relate to membership fees, weighted voting, permanent seats and/or veto rights. The most conspicuous inegalitarian regimes are the UN Security Council with the Veto-power of the P 5, the Non-Proliferation Treaty of 1968 dividing the world in haves (the Atomic Club) and the have-nots, and finally the Bretton Woods Institutions (World Bank and World Monetary Funds) in which the richest states have the greatest voting power. A non-positivist justification of these and other concrete inegalitarian regimes runs as follows: It is an essential feature of law to be general. Generality (of rights and obligations) means equality.108 Therefore, the principle of equality is inherent in the notion of a legal system. However, equality is no abstract and absolute claim. Justice rather requires proportional equality (suum cuique, not idem cuique). The states’ right to have equal rights may be curtailed by countervailing considerations of justice. Consequently, the claim to equality within a concrete regime must be balanced against concerns of security or of effective peacekeeping, or of general functionality of an International Organization.109 These concerns may outweigh the interest in observing strict equality and may justify legal privileges such as more drawing rights or votes. With regard to our initial question, this means that the construction of sovereign equality, as it stands, is not blind to reality. The legal principle stands in a dialectic tension to reality. It is not necessary to further cut back the idea of equality or to abandon it altogether in order to be “realist”.
106
This was Hans Morgenthau’s characterization of the structure of the UN (H. Morgenthau, Politics Among Nations 322 (1948)).
107
See in this sense L. Brilmayer, American Hegemony: Political Morality in a One-Superpower World (1994), arguing that American hegemony is in some circumstances morally acceptable and creates the opportunity for political morality.
108
See M. Chemillier-Gendreau, “L’ordre juridique international, une chimère?” Le Monde diplomatique 46 (July 1999), No. 544, at 8-9 (emphasizing the lacking generality of international law).
109
W. G. Grewe, “Die Gleichheit der Staaten in der Rüstungskontrolle”, in Festschrift für Hermann Jahrreiss zu seinem siebzigsten Geburtstag 57, at 84 (1964); P. H. Kooijmans, supra note 92, at 107, 240, 246; see also Dickinson, supra note 92, at 336.
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Another functional argument relies on the principal task of the law, which is to protect the weak. Precisely because of the divergences of power in international relations, we need a vital international legal system. Weak actors, such as small states, depend on a legal order which integrates the more powerful ones. The Great Powers must not stand above the law. They must, as a general rule, be bound as all other actors by core principles such as the prohibition of the use of force. Additionally, an asymmetrical system may even hurt the strong actor itself. Given the increasing interaction between the internal and the external sphere of states, rejection of the principle of equality on the international plane might have repercussions on the domestic legal order. Flouting an ideal which is particularly cherished in American society seems self-contradictory and may have detrimental internal effects. My next argument seeks to undermine the basic premise of the quest for inequality. Given the fact that proportional equality is an axiom of any legal order, any attribution of additional rights to a factual hegemon needs special justification. The most obvious justifications are the hegemon’s particular burdens. It can be argued that a special responsibility (for example for peace-keeping), requires special rules. Historically, the United States has successfully negotiated privileges on these grounds (for example within the UN or the NP-Treaty regime). Special global responsibilities (notably military ones) and special exposure (for example to terrorist attacks) were also invoked by the US to justify abstention from the ICC and the Landmines Convention.110 However, these claims have in recent times not persuaded other states to grant the US special prerogatives. One reason may be increasing suspicion towards the assertion that notably a special hegemonic right to military intervention would generally contribute to order, stability, and peace. The Great Powers’ interventionism often served dictatorial regimes, for example in Africa or in Latin America. The United States, for instance, supported Augusto Pinochet in Chile, Saddam Hussein in Iraq, and the Taliban in Afghanistan. It is probable that these and other activities rather have long-term de-stabilizing effects and do not contribute to world peace. Ultimately, the opposition against Great Power privileges may stem from a spreading belief that we are living in a post-hegemonial era for reasons which will be explained below. The ultimate argument points to the current structural evolution of international law. This structural evolution is the constitutionalization of international law (see infra part V). With view to the question of sovereign (in-)equality, the crucial aspect of constitutionalization is its pull towards equality.111 This is most obvious in treaty law. In this context, one facet of constitutionalization is the rise of multilateral “world-
110
P. Malanczuk, “The International Criminal Court and Landmines: What are the Consequences of Leaving the United States Behind?” 11 EJIL 77-90 (2000) with further references.
111
This has been forcefully argued by Krisch, supra note 8, at 150-152.
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order treaties”. While in bilateral exchange relationships rights and obligations are usually unequal, multilateral, law-making treaties lay down equal duties for all. Privileges here appear as anomalies.112 Moreover, the legislatory character of the new instruments eclipses the topoi of freedom of contract and “private” autonomy. All considerations suggest that the gradual emergence of an asymmetrical global legal order in which some states are (or one state is) more equal than others113 is neither likely nor desirable.
V. Towards Global Constitutionalism In the preceding sections, I have argued both on an empirical and on a normative level that the international legal system is not and should not be giving up its two foundational principles, namely non-use of force and the equality of states. In the final section, I venture an overall-assessment and conclude that democracy, globalization and the constitutionalization of international law basically preclude the installation of a stable, legalized hegemony. The first anti-hegemonic factor is democracy. We have seen that the most impressive element of American global power is its military superiority over all other nations. However, under current conditions, this superiority can no longer be fully exploited as in previous eras. One reason is the danger of regional atomic contamination with unforeseeable global effect. Moreover, military conflicts are too expensive. Even the United Sates cannot afford simultaneous military action in several parts of the world (for example Iraq, Afghanistan and North-Korea), although its National (Preventive) Security Strategy would call for such parallel action.114 Apart from the foreseeable reluctance on the side of a responsible parliament, the political and
112
The fact that the global environmental law conventions build on common, but differentiated responsibilities of the State parties does not disprove this diagnosis. Differentiated burdens here as in the GATT are supposed to satisfy the quest for material equality. The said regimes’ aspiration is genuinely egalitarian.
113
G. Orwell, Animal Farm 114 (1976, orig. 1945).
114
According to an analysis of the US Military’s Ability to Sustain an Occupation of Iraq, presented by the Congressional Budget Office (CBO) of 3 September 2003, the Army lacks sufficient active-duty forces to maintain its current level of nearly 150,000 troops in Iraq beyond the spring of 2004, available at http://www.cbo.gov/showdoc.cfm?index=4515& sequence=0 (31 October 2003). See on the study T. E. Ricks/J. Weismann, “Army Lacks Forces for Iraq Mission, CBO Warns”, Washington Post, 2 September 2003, available at http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId= A16689-2003Sep2¬Found=true (3 November 2003).
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psychological infrastructure of a liberal democracy is genuinely anti-hegemonial.115 A political consensus on occasionally costly leadership abroad is not easy to reach. Polls actually show that a majority of Americans prefer that America should solve international problems together with other countries.116 Notably the lives of soldiers can only to a limited extent be sacrificed on foreign battle fields, if this must be justified before the electorate. This is why recent conflicts were guided by a “nodeath-strategy” on the American side. In the contemporary world which is highly complex and in which people have some notion of their inalienable rights, an order based on coercion and the use of force alone is unstable. A regime can only last if it is accepted as legitimate.117 The post-war scenario in Iraq illustrates this insight. Peace and security, not to speak of a democratic transformation is not in sight, inter alia because the military intervention and the occupation is not accepted as legitimate by large parts of the population. What is true for a domestic order applies also to the global order. No single state can rule the world on the basis of its military and technological lead alone, if this domination is not accepted. An eventual general acceptance of US leadership appears to be conditioned on a redefinition of the American national interests so as to include at least some global values.118 Secondly, globalization points against legalizing hegemony. Globalization is understood here as the emergence of world-wide networks of interdependence not only in the economic sector, but also in politics, law, and even the cultural sector.119 Globalization is therefore both an extra-legal factor and a product of the law. The
115
I. Kant, Zum ewigen Frieden 205-206 (1983, orig. 1795). See with regard to US imperialism Brzezinski, supra note 4, at 210; D. Vagts, “Hegemonic International Law”, 95 AJIL 843, at 845 (2001); Franck, supra note 49, at 617 (pointing to lacking sociopolitical solidarity at home).
116
See references to US newspapers in Stromseth, supra note 68, at 633.
117
See already J. J. Rousseau, The Social Contract or Principles of Political Right (1762), Book I, Chapter 3 (“Of the Right of the Strongest”), first sentence: “The strongest is never strong enough to be always master, unless he transforms strength into right, and obedience into duty.” (transl. by G. D. H. Cole, rendered into HTML and text by J. Roland, available at http://www.constitution.org/jjr/socon.htm (3 November 2003).
118
J. S. Nye, The Paradox of American Power, Chapter 5: “Redefining the National Interest” 137 et seq. (2002); Brzezinski, supra note 4, at 214.
119
J. Delbrück, “Globalization of Law, Politics, and Markets—Implications for Domestic Law: A European Perspective”, 1 Indiana Journal of Global Legal Studies 9-36 (1993); D. Held et al., Global Transformations: Politics, Economics and Culture (1999); J. A. Scholte, Globalization: A Critical Introduction (2000); M. R. Ferrarese, Le istituzioni della globalizzazione (2000); Nye, supra note 118, at 677 et seq.
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most important causes of globalization are increased scientific knowledge about interdependence and an accompanying change of consciousness, the communications revolution, the availability of cheap means of transportation of both goods and people, and the liberalization of trade. Due to these both technical and ideological factors, many current policy problems are today inherently global. “Global” means that they cannot be tackled with some chance of success by one state alone and not even by “ad hoc coalitions of the willing”120 (in which the USA would most likely bear the main burden). Issues such as terrorism and drugs, climate change, migration, financial stability, or infectious diseases can be reasonably dealt with only through institutionalized global cooperation. The existing web of global linkages precludes hegemony. The era of globalization is post-hegemonial.121 The general condition of complex interdependencies has created the “Paradox of American Power”, as Joseph S. Nye has called his recent book. “The paradox of American power at the end of this millennium is that it is too great to be challenged by any other state, yet not great enough to solve problems such as global terrorism and nuclear proliferation.”122 In Nye’s analysis, globalization is the principal reason “why the World’s only Superpower can’t go it alone”.123 American officials of course realize this: Recently, the US State Department Legal Adviser brought to the attention of the National Association of Attorneys General in Washington the “fundamental changes we are seeing in the American legal landscape. That is, of course, the fact that our legal work at every level of government is being influenced by international law and activities.”124 An illustration of the paradox of American power is the controversy surrounding the ICC. Despite fierce opposition by the United States, the Court was installed. This was the result of co-operation of a sufficient number of less powerful, like-minded states. Because the US was not powerful enough to prevent the ICC to come into being, it could only opt out. In the position of an outsider, the remaining American policy-options are basically negative: The US attempts to undermine the Court (see supra part II), but it can offer no constructive alternative. The state has deprived itself of the opportunity to bring superior power to bear within the legal regime. This
120
But see Glennon, supra note 107, at 34.
121
M. Hardt/A. Negri, Empire (2000); E. Todd, Après L’Empire: Essai sur la décomposition du système américain (2002).
122
Nye, supra note 118, at 40, quoting J. Joffe, “America the Inescapable”, New York Times [Sunday]Magazine, 8 June 1997, at 38.
123
Nye, supra note 118, subtitle of the book.
124
William Howard Taft IV, Address of 20 March 2003. US Department of State, International Information Programs, Washington File of 21 March 2003, available at http://usinfo.state.gov/ topical/rightsd/law/03032202.htm (2 September 2003).
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means to renounce international law as a useful and increasingly indispensable policy instrument.125 The third development precluding legal hegemony is the “legalization of international relations” 126 and the constitutionalization of international law. Overall, the relevance of international law as a factor of global politics is growing. Norms, rules, standards of conduct count more than ever. They function as a factor of legitimacy, as an institutionalized framework governing expectations and calculations of statesmen, and as a means to settle conflicts. They influence public opinion and play a major role in the struggle for transnational approval.127 Tellingly, the European public debate on the Iraq war was to a large extent a debate on its international legality. The “legalization” of international politics is no mere quantitative phenomenon. Within the law, we witness a qualitative evolution, which is commonly called the constitutionalization of international law. The idea of constitutionalization128 presupposes that the international community is a legal community which is governed by rules and principles, not (only) by power. The most fundamental norms represent global constitutional law. This conception implies, generally speaking, that the traditional guiding principle of the international legal order, namely state sovereignty,
125
Krisch, supra note 8, at 155.
126
See the special issue in 54 IO 385 et seq. (2000); notably M. Kahler, “Conclusion: The Causes and Consequences of Legalization”, 54 IO 661-703 (2000).
127
Schroeder, supra note 81. See on States’ reasons to observe law L. Henkin, How Nations Behave 49-68 (1979), concluding that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” (Id., at 47). But see J. R. Bolton, “Is There Really ‘Law’ in International Affairs?”, 10 Transnational Law and Contemporary Problems 1-48 (2000).
128
See notably C. Tomuschat, “Obligations Arising for States Without or Against their Will”, 241 Recueil des Cours 209-240 (1993); B. Simma, “From Bilateralism to Community Interests”, 250 RdC 217-384 (1994); B. Fassbender, UN Security Council Reform and the Right of Veto: A Constitutional Perspective (1998); B. Fassbender, “The United Nations Charter as Constitution of the International Community,” 36 Columbia JTL 529-619 (1998); J. A. Frowein, “Konstitutionalisierung des Völkerrechts”, 29 Berichte DGV 427-447 (2000); C. Walter, “Constitutionalizing (inter)national Governance—Possibilities for and Limits to the Development of an International Constitutional Law”, 44 GYIL 170-201 (2001); R. Uerpmann, “Internationales Verfassungsrecht”, 56 Juristen-Zeitung 565-573 (2001); E.- U. Petersmann, “Constitutionalism, International Law and ‘We the Peoples of the UN’”, in H. J. Cremer et al. (eds.), Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger 291-313 (2002); B.- O. Bryde, “Konstitutionalisierung des Völkerrechts und Internationalisierung des Verfassungsrechts”, 42 Der Staat 61-75 (2003); T. Cottier/M. Hertig, “The Prospects of 21st Century Constitutionalism”, 7 Max Planck YB of UN Law 261-328 (2003).
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is gradually being complemented, if not substituted, by the guiding principle of the rule of law. That change of paradigm is, on the one hand, an academic artifact. It is however, no mere deduction from wishful thinking, but induced by manifold developments in international law. Among them is the emergence of more “objective” (more legislation-like, less treaty-like) regimes, in which the consent principle is eroded (weakening of the persistent objector rule, third party effects of treaties, majority voting within treaty bodies). A typical formal feature of constitutional law is present with the acknowledgement of hierarchy within international law. “Supernorms”, such as ius cogens and erga omnes obligations trump ordinary international law. Multilateral agreements (“World Order Treaties”) reflect commitment to basic values which are widely agreed upon, such as free trade, or sustainable development. The legalization of these values has led to a new category of norms called public interest norms.129 With regard to the concept of statehood and the recognition of states, the principle of effectiveness is marginalized, and standards of legitimacy (concerning human rights and even democracy) are established. These developments do not lead to one world constitution, but may be described as the emergence of various, fragmentary constitutions which transcend the more and more porous boundaries between domestic and international law and between public and private law.130 To make a long story short: The international legal order is of course changing. Contemporary international law and politics are characterized by two antagonistic trends: A pull towards hegemony and a pull towards global constitutionalism. It seems likely that the trend towards broadening, deepening and constitutionalizing the international legal order will prevail. November 2003
129
J. Delbrück (ed.), New Trends in International Lawmaking—International ‘Legislation’ in the Public Interest (1997).
130
Walter, supra note 128, at 193; G. Teubner, “Globale Zivilverfassungen: Alternativen zur staatszentrierten Verfassungstheorie”, 63 ZaöRV 1, at 27 (2003).
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Is the Nature of the International Legal System Changing?—A Response
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Is the Nature of the International Legal System Changing?—A Response Pemmaraju Sreenivasa Rao*
In order to answer the question posed for the present agora, it is necessary first to identify the nature of the international legal system. It is common experience that we live in a world of interdependence. We are also no longer, as groups of people, isolated and unaffected by events far from our immediate neighborhood. We also frequently witness massive show of solidarity through public demonstrations by groups of people in different parts of the world sharing a common cause, be it against unbridled globalization of trade or use of force against the former Iraqi regime or any other cause. We also increasingly witness the adoption and urgings of uniform application of international standards for human rights, and preservation and protection of environment. Regional economic and political unions are becoming a reality, with the EU offering a powerful stimulus and inspiration as a model for increasing integration of a cluster of countries. There are hundreds of international organizations composed mostly of States as Members; and some of them composed of States and non-state entities. These are the institutions, which profess common objectives and purposes, set common standards and provide a basis for the increasing use of parliamentary diplomacy at the global level. The UN is the preeminent body of all of them. The Charter of the UN may even be referred to without exaggeration as the ‘Constitution of the peoples of the World’.1 On the international legal plane, there are international treaties and conventions that govern practically every aspect of not only inter-State relations but also most transnational interactions of their nationals and other entities. To plead ‘non-liquet’
*
Member, International Law Commission, Associate Member, Institut de droit International, Former Additional Secretary and the Legal Advisor, Ministry of External Affairs, Government of India.
1
See B. Simma, “From Bilateralism to Community Interest”, 250 Recueil des Cours 256-284 (1994) for a discussion of the UN Charter as the “constitution” of the international community. He concludes however “the competencies exercised by the principal organs of the UN cannot simply be assessed according to the model of national constitutions. However one does find at least some elements of a separation of powers. The lack of any effective judicial review does not distinguish the Charter from most domestic constitutions”. Ibid, at 283. For a comprehensive review of the idea, B. Fassbender, “The United Nations Charter as Constitution of the International Community’, 36 Col. J.T. Law 529-619 (1998).
Austrian Review of International and European Law 8: 141-152, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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in international law is no longer an easy matter.2 Whether it is human rights, or environment, or trade and other economic rights like patents, despite their essential local, national or regional character, have become matters of global concern and regulations. Oceans, outer space, and Antarctica, the last frontiers of man, are now governed fully by international regimes.3 International legal system (hereinafter referred to as the System) has been deriving its authority since the advent of the Westphalia system, from the concurring wills of States and achieving its control through common and reciprocal but voluntary behavior of States. Even here it is possible now to argue that an increasing area of that System has a degree of autonomy and independence to it that it remains valid and applicable to States with or against their will. Community interest and not bilateralism is providing the foundation for it.4 In spite of the above, there are some worrying questions or gaps in explanation about the existence of a truly integrated international community.5 An international
2
According to Oppenheim’s International Law, R. Jennings/A. Watts (eds.), Vol.1, at 13 (1991): “Furthermore international law may now properly be regarded as a complete system. It is thus not permissible for an international tribunal to pronounce a non liquet, i.e., to invoke the absence of clear legal rules applicable to dispute as reason for declining to give judgement (unless the compromis submitting the dispute somehow limits the power of the tribunal to apply international law as a whole.”
3
For a treatment of different aspects of International Law, I. Brownlie, Principles of Public International Law (1999), M. N. Shaw, International Law (2003).
4
C. Tomuschat, “Obligations Arising for States without or Against their Will”, 241 Recueil des Cours 195 (1993). See also J. A. Perkins, “The Changing Foundations of International Law: From State Consent to State Responsibility”, 15 BostonU. Intl. L.J. 433-509 (1997).
5
Simma dwells upon this point and notes, very objectively, “The rise and recognition of community interests is one thing, their impact on the real world quite another. There simply did not arise any tangible, ‘operational’ as it were, sense of community which reacted forcefully enough to the genocide in Bosnia or Rwanda, or the gang wars in Somalia or Liberia”. And he added that, “As a consequence, the observer is frequently torn between feelings of satisfaction because international law is finally being invested with some of the social accountability long developed in domestic law, and fears that the still primitive, still essentially bilateralist infrastructure upon which the new, more progressive edifices rest will turn out to be too weak to come to terms with the implications of such community interest.” In his view, which this author shares, ‘However, in the last instance, of course, what will be decisive is not the use of the term “international community’ as such, as a mere combination of words, but rather concrete institutions, principles and rules through which commitment to the interests common to human kind can be activated.” See Simma, supra note 1, at 247-249. For an interesting discussion of the concept of international community in general, E. Kwakwa, “The International community, international Law, and the US: three in one, two against one
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legal community of mankind appears still a far cry and a distant dream. We may have shared responsibilities but no shared values, priorities or equal capacities.6 In contrast to the present System, a more integrated international community does not necessarily either involve or lead to a world Government but should be the product of a more centralized but democratic system.7 Such a system, from the perspective of this author foremost should respect diverse cultures and be sensitive to different stages of economic development. It must aim as a priority to eradicate poverty and eliminate hunger. It should provide international aid and assistance, with sufficient financial and monitoring powers, to meet the basic needs of the world’s poor like housing, sanitation, drinking water, health care and education. It should set universal standards and obligations in which the major and minor States would have equal powers of participation in all decisions, with majority voting and assured minority protection. Such a system should also have a compulsory settlement of disputes on the basis of commonly agreed applicable law and a more organized and non-discriminatory, hence institutionalized and uniform reactions and responses to the violations of international law without regard to the status or power of the State involved.8 In other words it may mean a better and more streamlined UN
or one and the same?” (for the view that the concept of international community is a real and cognizable one in which not only States but even the non-State actors have a significant role) and A Paulus, “The influence of the US on the concept of the ‘international community” (for the view that the US accepts the concept of international community but resolutely opposes any institutionalization of that concept to the detriment of its own individualism and the freedom to engage in unilateral actions). On the ever increasing interdependencies in general, see M. Byers/G. Nolte (eds.), United States Hegemony and the Foundations of International Law 25-114 (2003). 6
The concept of ‘common but differentiated responsibilities’, enunciated by Principle 7 of the Rio Declaration on Environment and Development addressed this problem in the context of environment and development. For an analysis of this principle using sources from other areas and for making the point that the distinction is often made between the capacities and the needs of developing countries See P. Sands, Principles of Environmental Law 288 (2003).
7
The point is not whether such an ideal model could be realistically achieved in the near future, but to note some of the necessary elements of any scheme designed to establish effective international institutions to discharge the functions associated with a truly integrated international community.
8
That such a system is possible has been established by the WTO dispute settlement procedures. It could be a model of sort for other areas of international law including security see for an exposition in this regard, J. Bacchus, “Grouping Towards Grotius; The WTO and the International Rule of Law” 44 Harv. Int’l. L. J 533-550 (2003).
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with a more effective and representative Security Council. A reformed Security Council, in addition, must act without veto power. It should act more as a true trustee of the system and values and less as an instrument for negative and narrow national policies or interests. It should act promptly and effectively by using more of its Chapter VI powers and less its Chapter VII powers.9 An effective Security Council would require military powers with an international army, even if the units are maintained and earmarked in different countries, as part of their national army. But once commissioned by the UN they must work under the command and control of the UN.10 However, in the international community as it is now prevailing ‘auto interpretation of applicable international obligations is still predominant.11 This phenomenon is aided and reinforced by vaguely worded and hastily concluded international treaties and commitments.12 Preference for auto-interpretation is a reason for rejection of treaties and agreements by some powerful States, denying universal authority to legal
9
It is feared however that any expansion of the Security Council and either enlarging the veto powers or removing them altogether may actually frustrate the working of the Security Council rather than make it more functional in the interest of the international community, see D. Bills, “International Human rights and Humanitarian Intervention: The Ramifications of Reform on the UN’ Security Council’ 31 Texas Int’l. L. J 107, at 123, 126, 127 (1996). These fears may come true as long as States, particularly the major powers put their national political interests of the time ahead of their responsibilities as members of the organized international community when they participate in the decision-making within the Security Council.
10
Lack of such military contingents under the UN command, as originally envisaged under Arts. 43-47of the UN Charter is one of the main reasons for the failure of the collective security system of the UN so far. On this aspect see R. B. Russell, The United Nations and the United States Security Policy 47-60 and 119-121 (1968). One idea is to promote international police force as opposed to or in addition to an international military force, building upon the use of such police forces to execute warrants, to arrest and to maintain law and order in situations of severe internal conflicts associated with a failed State see H. Perritt, Jr., “Policing International Peace and Security. International Police Forces”, 17 Wisconsin Intl’l. L J. 281, at 323-324 (1999).
11
For the view that for all its defects, State centric world order as it has been functioning since the days of Westphalia peace, established in 1648, more than 350 years ago, is still more an agreeable system than the one often romanticized by conceptions of jus cogens, or erga omnes obligations, see P. Weil, “Towards Relative Normativity in International Law?” 77 AJIL, 413-442 (1983).
12
For all its merits the conclusion of the Rome Statute on International Criminal Court could be an example of hastily concluded international Convention. On vague and too indeterminate obligations and their lack of normative value, see Weil, supra note 11, at 417-418.
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obligations incorporated in them. Even when obligations are accepted at the international level, their implementation, being largely dependent on national legislation and execution, may not be uniform and exhibit different degrees of context and conformity. Further, given the unorganized nature of the System and domination of narrow or immediate national interests of States in the decision-making of the international institutions including the working of the Security Council of the UN, double standards are a common feature in the interpretation, application and enforcement of international law.13 In addition, there is the difficulty that most of the developing and poor countries and in particular several of them small and economically least developed, do not weigh significantly in the development and codification of international law. Yet they are intensely affected by bilateral and international regimes which are negotiated or developed reflecting largely the interests of the more articulate and powerful States.14 In a world of uneven power and varying degrees of economic strength there is no level playing field for all States to take equal advantage through participation in the dynamic process of globalization. They remain without empowerment to efficiently joint their interests in the overall composition of the common interests. It is the irony of our times that these poor States, even though they account for a great majority of nations and represent a substantial section of world populations, remain impoverished without basic minimum human needs and, hence dignity. Predominant theories of development of law and in particular the formation of customary law do not give much weight either to the number of these poor States nor to their aspirations, preferences or interests in such a process. On the contrary, much value is given to the persistent objector15 or to the practice of States with most means to affect a course of action in the formation and development of law.16
13
On the question of double standards and the need for the political organs to act within the limits of powers designated for their decisions to be treated as valid in law, see I. Brownlie, ‘International Law at the Fiftieth Anniversary of the United Nations,’ 255 Recueil des Cours 255, 211-227 (1995).
14
On developing countries and international law, see R. Falk, “The New States and International Legal Order”, 118 Recueil des Cours 1 (1966 II).
15
See J. Charney, ‘The Persistent Objector and the Development of International Law”, 56 BYIL 1 (1985).
16
See the separate opinion, Judge Schwebel, in the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons in Armed Conflict 1996 ICJ Reports, at 226. He argued that the State practice concerning deterrence is not only that of a “lone and secondary persistent objector”, but a practice of the Permanent Members of the Security Council,’ supported by “a large and weighty number of other States—that together represent the bulk of the world’s military and economic and financial
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Thus power and economic strength count in that order in making and remaking of the international legal system. It must also be quickly added that the lack of effective participation by the developing countries in the formation, maintenance, continuous adaptation of the System is also in some measure traceable to several factors at their national level. Among these are the lack of representative democracy, responsible and respected national elite, lack of political stability, incessant internal and often violent struggles, denial of basic human rights to their populations, lack of consensus on national priorities, corruption, and in general, lack of good governance. Given the primacy accorded to the military and economic power in international relations, countries have been characterized as small, medium and super powers. Even among the super powers there are differences and presently, in the post-cold war we have only one real super Power, the US. In spite of the single super Power status that the US at present enjoys, and the imperial posture it adopts on occasion, it is still appropriate to treat the US as a major power for the purpose of evaluation of any changes its disputed unilateral acts might induce in the existing system. The focus here is therefore on disputed actions only. Further in dealing with this question, it is assumed that the present enquiry is not concerned with gradual and inevitable changes in the System, which are achieved through either a new treaty or custom. An answer to the question whether the nature of the System is changing because of certain actions of the US may be approached in the light of the above considerations. First, it may be pertinent to note that the phenomenon of engaging in disputed unilateral acts is not confined either to the US or even to anyone particular class or group of States, whatever is their status.17 Nevertheless, it is fair to examine the issue and technological power and a very large proportion of its population”. Hence, he believed that the manufacture and the deployment of nuclear weapons for over 50 years should be regarded as lawful. Ibid., at 312. Judge Shi, did not share this view and noted that the policy of nuclear deterrence is a political doctrine. According to him, the principle of sovereign equality of States, enshrined in the UN Charter, demanded that no undue importance be given to the practice of a few States in projecting a “proper view of the existence of a customary rule on the use of the weapon” however materially powerful they might be, which only constitute a fraction of a membership of the community of States in the evaluation of customary law. Ibid., at 278. See for review, P. S. Rao, “Advisory Opinion of the International Court of Justice on Legality of the Threat and or Use of Nuclear Weapons: An Assessment from Indian Perspective”, 37 Indian J. Intl’l. Law 219, at 224-225 (1997). Ambassador Kamalesh Sharma of India makes a point similar to Judge Shi, before the Security Council in the debate on the legitimacy of NATO’s action in Kosovo. See the view quoted by A. Paulus, in Byers/Nolte, supra note 5, at 59. 17
Schachter examined disputed unilateral use of force by different countries in such cases as Afghanistan, Angola, Cambodia, Chad, Falkland Islands, Grenada, Iran-Iraq, Lebanon,
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raised keeping in view the disputed unilateral acts of the US because of their implications for and the magnitude of their impact on the nature of the System. On several previous occasions the US acted unilaterally, even if the present case of invasion of Iraq attracted the widest global reaction and one might add, widespread disapproval. Its opposition to the establishment of the International Criminal Court also is attracting considerable attention as also its policies affecting the application and revision of the international trade regime, and the creation of universally applicable international environmental regimes. It is ironic that the idea of the establishment of an international criminal court would not have matured to the stage of adoption of the Rome Statute if the US did not support the earlier stages through which the idea evolved. For example it was first at the instance and support of the US, the ad hoc international criminal courts for Yugoslavia and Rwanda were established. These Courts in their turn propelled and made it feasible for the international community to consider the idea of the establishment of a regular and permanent international criminal court. Similarly, the Law of the Sea convention, 1982 could not have proceeded as far as it did but for the active participation and initial approval of the delegation of the US of the total package put together as a basis for its conclusion. It is a different matter that in the case of the Law of the Sea Convention, the Regan administration and in the case of Rome Statute, the present Bush administration, differed with the predecessor US administration and decided to oppose them. In fact, there were any number of other instances in which it was felt that the US acted unilaterally without regard for international law. At least in one case, the Nicaragua case, the International Court of Justice found the US in violation of international law concerning the prohibition against the use of force. The US not only pulled out of the merits phase of that case but it also rejected the final verdict of the Court. Whenever the US acted in a manner that others considered it as a violation of international law, enough justifications are offered both on policy and legal grounds using some very plausible techniques of interpretation and lofty logic. More often they are centered around policy preferences, basing their arguments on a more dynamic and flexible grounds of justification by appealing to higher values like the defense of democracy, human dignity, free market economy and associated tangible and intangible property rights. This in addition to pleading of the classic defense, protection of the vital interest and the need to ward off grave and imminent threats to
Mozambique, Nicaragua, and Vietnam. See O. Schachter, ‘In defense of International Rules on the Use of Force”, 53 U. Chicago Law Review, 113-146 (1986). See also T. Franck, Recourse to Force (2002), for analysis of incidents of use of force from the early 50s to the more recent ones including the NATO action in Kosovo.
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the US and to the international peace and security.18 These justifications and the strong conviction of the US administration of the correctness and desirability of its unilateral actions cannot be ignored in any analysis of their impact on the nature of the international legal system. First, they force the opponents to be defensive. Second, such unilateral acts might attempt even prompt policy and decision makers elsewhere to think on similar lines when confronted with problems affecting their own countries, where justifications could roughly be the same. This is true particularly in matters of fighting terrorism and defending their own vital interests. Like the US itself, any other State thinking of acting on its own without the authority of international law, would have to weight the costs to their nation of such disputed actions. In respect of non-endorsement of international legal regimes, US abstention may not be aped by others for the same or similar reasons but it emboldens the others for not joining the regime for their own reasons. It is common knowledge that in such situations, there would be less pressure on the errant States to yield to the entreaties of others to join the regime. The other implication is that once a major State like the US feels that the rules of the game are not in favor of its preferred policy and actions, it may seek changes in the rules and force those changes as the price for its participation in the game. This happened in the case of the 1982 Law of the Sea Convention and a Supplementary Agreement was concluded in 1994. It is a different matter that such changes may not always readily be forthcoming. In such a case tension is bound to exist between the widely accepted regime and the preferred course of action of the United States. There was an attempt in 80s to construct a parallel legal regime to govern the exploration and exploitation of the deep seabed mining rivaling the regime incorporated in the 1982 Law of the Sea convention. That it did not succeed is another matter. When tension continued to exist between the generally approved legal regime and the course of action taken by a major power like the U.S, even if the disputed act achieves its immediate objectives—as it did in the case of Iraq (of removing the regime of Saddam Hussein)—it does not follow that the substance of the legal rules widely held as valid has somehow become irrelevant or invalid. It may be recalled that aggression in the past did not abolish the principle that it was illegal and a crime in international law but only served to validate the principle. Daily occurrence of violations of international law do not validate an opposite rule, unless such a rule is
18
For a very thorough analysis and rejection of the various justifications offered in defense of highly controversial cases of uses of force, see Schachter, supra note 17, at 125-131. For a recent and very stimulating critique of such positions, see M. G. Kohen, “The Use of Force by the United States after the End of Cold War, and its Impact on International Law”, in Byers/Nolte, supra note 5, at 197-231.
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endorsed by the international community of States either through a new treaty or custom. Mere acquiescence unrelated to the belief of States that the new course of action has become obligatory for all of them has no legal weight in announcing a new customary rule displacing the old one. In assessing the impact of a disputed action on the nature of the System, account has also to be taken of the reasons given for the deviant behaviour. If the applicable and basic postulates are not questioned but the justification is offered in terms of interpretation of the principles involved, it is a matter for third party determination. No one could be a judge in ones own cause. Disputes lingering without a final third party decision in this area would not affect the nature of the System. If the justifications offered question the very applicability of international law itself, for example, the argument that law has no role to play in matters of survival of a State, then it becomes a question of rule of law in international relations. On this point since the days of the League of Nations and more so with the adoption of the Charter of the UN, there is a legal community of mankind, howsoever imperfect it still may be. The main feature of this legal community of mankind is that use of force as a national instrument is prohibited in international relations and States are under an obligation to settle their disputes peacefully through means freely chosen. It is pertinent to recall in this connection that the International Court of Justice has clearly stated that all disputes are amenable to be settled on the basis of international law, even if they involved some very sensitive political issues.19 For this reason it would be difficult to attack or undermine the significance of legal obligations or alter the nature of System through a unilateral proclamation of their irrelevance. There is also another argument. It suggests that unilateral acts of use of force, as in the case of Iraq, cannot be judged in terms of their lawfulness on the basis of Article 2(4) and Article 51 of the UN Charter. The ‘failure’ of the UN scheme of maintenance of peace and security according to this line of reasoning justifies the inherent right of self-help. Actions taken in such situations are to be judged in terms of just or unjust use of force or on the basis of natural law principles. This is even more spurious an argument than any other so far noted. First, the UN and its Security Council is a live and active international instrument. It meets continuously through out the year. If a resolution is not in place authorizing a State to use force, it is inevitably frustrating to the State concerned. But it does not thereby become a failure or irrelevant as a custodian for the maintenance of the international peace and security. Since 1945, by common consent it is the sole custodian in this regard and continues to be by choice. Lack of a decision to authorize force in a given case is a decision by itself. The use of veto by a State, if that is what prevented a decision of the Security Council,
19
See the United States Diplomatic and Consular Staff in Tehran (US v. Iran), Merits, Judgment of 24 May 1980, 1980 ICJ Rep. 19, at para. 36.
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is equally lawful as a procedure of voting within that Charter scheme. It only means that the issues involved are to be resolved through negotiation rather than through use of force. Once own impatience to achieve certain results cannot be an excuse to resort to unilateral use of force or to condemn the UN scheme as irrelevant or impotent. An appeal to the application of principles of natural law does not cure the illegality because there is no sanction for such principles within the acknowledged sources of international law. Arguments of this type thus would not seriously affect the sanctity of the System, as they clearly are outside the pale of rule of law or the System. Nature of the System is affected not by one or two disputed unilateral acts but by consistent pattern of such acts by States in general under similar circumstances. Further, the pattern should be followed by a community’s approval. But as we noted on more than one occasion, it is the US that objects to and condemns any deviant behavior of use of force in disregard of UN sanction.20 It is to be observed that almost all the States, when their own national interests are not at stake, uniformly oppose any unilateral use of force and stand by the principle of prohibition of the use of force in international relations. In spite of all the violations that occur, the core principle of the prohibition of the use of force in international relations is cited as a principle of jus cogens. There is no evidence in the behavior of any State including the US questioning this status for that principle. One of the primary reasons cited by the US for its strike against Iraqi regime was the terrorist attack on the World Trade Towers in New York and on Pentagon on September 11, 2001. The use of force on Iraq drew some support from that angle, attempting to link the Iraqi regime to terrorists and their plans to commit more grievous acts of terrorism against the US. It was also supported on the ground that the Iraqi regime was in possession of weapons of mass destruction in violation of the UN sanctions. Further, a preemptive attack was justified on the ground that such concealed weapons or weapons program was aimed principally against the US or its vital interests. Terrorism is a curse of modern times affecting several States and for a long time, much before the 9/11 attacks. Extensive international cooperation is mounted through a network of bilateral and multi lateral agreements. The UN came close to adopting a comprehensive Convention to suppress international terrorism. Terrorism is universally condemned as a crime and could not be justified by any cause, creed or religion or ideology or for any other reason. Perpetrators of terrorism are increasingly denied safe heaven in any country. The obligation to extradite or prosecute is gaining ground. There is however the question whether certain forms of resistance could be treated as terrorism pure and simple? Further, in spite of evidence of close links
20
Kohen summed up the US practice well in such matters when he said that it reduced itself to an advice from the US to the rest of the world to the effect “do what I say but not what I do” Kohen, supra note 18, at 229.
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between different terrorist groups and the general networking that otherwise appear to exist among these groups, proclamation of a general war on terrorism appears unjustified. Such a general war lacks international consensus. Terrorism, for all its capacity to undermine the safety and security of the innocent peoples of the world and the stability and good order in the international community, remains a faceless and diffused menace. This cannot be fought solely by the use of force. There are no clear limits to such use of force either in terms of time or amount of force to be employed. Any war against terrorism would inevitably be a war without conclusion. As a matter of strategy fight against terrorism rests not in twisting the concept of self-defense or even attempting to engineer some exceptions to the principle of prohibition of use of force. This might lie ultimately in addressing the basic issues dividing the people and nations and finding credible and durable solutions. The doctrine of preemption advanced in this context, as opposed to the doctrine of selfdefense, cannot therefore be a proper legal concept as it lacks clear conditions and limitations under which it would operate.21 The broad conclusion I reach from the above analysis is that disputed actions of the US, however dramatic they may be have no great potential to change the nature of ILS, particularly in respect the maintenance of international peace and security. The scheme of the Charter of the UN would continue to be the main fulcrum around
21
It is widely accepted that right of self-defence, which Art. 51 of the UN Charter refers to as the inherent right of States is available to States under some clearly applicable conditions and limitations. Some of these are: the presence of an imminent or an overwhelming armed attack, the criteria of necessity or proportionality, first noted by Daniel Webster, Secretary of State of the US in the Caroline incident of 1837, and the need to respect principles of humanitarian law are also important. Despite these limitations, justification for the unilateral use of force as a form of legitimate, if not entirely lawful self-defense is offered on grounds of anticipatory self-defense or on humanitarian grounds. While admitting that interpretation and application of the strict requirements of self-defence in international law is not always easy or found possible, both Schachter and Brownlie argued that the validity of those requirements could not be denied. In their view self-serving justifications which did not have sanction from the UN or the international community in general should be rejected as pleas for exceptions which would make the original rule totally meaningless. See O. Schachter, International Law in Theory and Practice 126 (1991). For observations of Brownlie, supra note 13, at 203, 207, 209-210. Brownlie relies upon the ICJ and the ILC for his view that self-defense is an exception to the general principle of prohibition of the use of force, and is strictly available against armed or violent attacks and in cases in which the ‘agencies of the central authority’ which have monopoly or virtual monopoly of the use of force, ‘cannot be resorted to promptly and efficiently enough to protect a subject in question’. See also B. Roth, “Bending the Law, Breaking it, or Developing it? The United States and the Humanitarian Use of Force in the Post-Cold War Era”, in Byers/Nolte, supra note 5, at 232263.
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which this would be organized and promoted. Only solutions achieved through that mechanism would have the proper legitimacy and would endure. Because of its superior economic and military power, the US is better able to absorb the resistance to and the attendant ill effects of its disputed unilateral actions and stay the course for a longer time than any other State in the world. But this capacity to go it alone devoid of legitimacy and universal approval would not give its disputed acts any power to bring fundamental changes in ILS. They would only exacerbate the inherent weakness of international law otherwise suffers in the area of its compliance. Lack of coordinated, centralized, objective and uniform interpretation and application, was and still is militating against the establishment and functioning of a true International Legal System. December 2003
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Does US Hegemony Change the Nature of the International Legal System?—A Reply to Professor Zemanek August Reinisch*
It is difficult to write a reply when one broadly agrees with what has been argued. I may thus be permitted to use this opportunity to voice some questions about some of the assumptions underlying Professor Zemanek’s typically European, critical view of American activism by focusing on two central themes, the use of force and extraterritoriality. I agree with Professor Zemanek on most points. In particular, I agree that the examples provided by Zemanek illustrate that a lonely superpower may succumb to the temptation of violating international rules when it suits its purposes and when no significant costs are expected. But I have some doubts about the main thesis these examples are intended to demonstrate: are the numerous international law violations by the US in which it “got away with it”—and, of course, this list could be considerably prolonged—really indications of an “imperial” tendency or could they be explained within the framework of the existing system of sovereign equality? If I have understood the Zemanek paper correctly, he detects a development where international law may depart from the hitherto unquestioned Westphalian principle of sovereign equality of states. My doubts in this regard have been nourished by Zemanek himself who reminds the reader “to look beyond the mere factual exercise of power”.1 In order to identify an “imperial” tendency of the US, Zemanek suggests that we “examine whether the State concerned has developed a rationale justifying its ‘leading’ the world by acting as guardian of self-proclaimed values of asserted universal validity,” and “whether that State construes the established rules of international law to suit its political aims,”2 etc.
* August Reinisch is Professor of International and European Law at the University of Vienna and Professorial Lecturer at the Bologna Center of SAIS/Johns Hopkins University in Bologna. 1
K. Zemanek, “Is the Nature of the International Legal System Changing?”, 8 ARIEL 3, 4 (2003).
2
Ibid.
Austrian Review of International and European Law 8: 153-162, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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I find it to be a striking feature of US unilateralism that it is almost invariably couched in system-maintaining, i.e. international law-abiding terms. In all the examples raised from a Helms-Burton-type extraterritoriality to uses of force in Kosovo and now Iraq, the US is seeking to justify these actions under existing international law, arguing and defending its case. The elaborate and certainly frequently far-fetched attempts to justify Helms-Burton under the effects doctrine, the protective principle or a quasi-universality principle3 seem to demonstrate the basic acceptance of spheres of jurisdictional power allocated among states. This, in turn, is still predicated upon an acceptance of sovereign equality. It does not question the underlying principles, even if it may question some of the specific existing rules (the scope of the effects doctrine, the applicability of the protective principle in new fields, etc.). The same appears to be true with regard to the use of force. Neither in the Kosovo nor in the Iraq case did the US assert a right to be free to use force as a hegemon, as the only remaining superpower. Instead, it tried to find legal justifications under accepted public international law, protecting sovereign equality of states through the prohibition of the use of force. The US may have been wrong in the particular cases where it asserted that a right to humanitarian intervention or of preventive self-defence justified its action. But the important aspect is that it did not contend that it enjoyed complete freedom of action unfettered by legal principles. Rather, by invoking specific exceptions to the sovereign equality-norm prohibiting the use of force against another sovereign state and by its attempts to obtain a resolution of the Security Council, the US clearly accepted the underlying rule. It is true that the US has repeatedly threatened to go it alone in case it would not obtain the Security Council’s blessing and, in a sense, it did so both in the Kosovo and the Iraq case. But instead of claiming a hegemonic freedom of action, it resorted to sometimes highly formalistic justifications, in particular in the Iraq context, attempting to portray any new authorization by the Security Council as superfluous. Of course, in these cases as well as in other instances of unilateralism, the official statements attempting to justify US action may be dismissed as cheap rhetoric designed to curb potential criticism of friends and foes. To a certain extent we seem to be back to the debate about “whether states mean what they say.”4 The cynical observer may easily presume that this is not the case and, thus, dismiss the official justifications for US unilateral acts that are contrary to established international rules
3
See A. Reinisch, “Widening the US Embargo Against Cuba Extraterritorially. A Few Public International Law Comments on the “Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996”, 7 European Journal of International Law 545, at 552 (1996).
4
Cf. G. Arangio-Ruiz, “The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations”, 137 Recueil des Cours 419, at 431 (1972 III).
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as mere diplomatic exercises of “lying on higher level”. I doubt whether this is plausible, not so much because I would trust that Americans have internalized their “honor code” to such a degree that they are effectively unable to lie. Rather, I wonder why the selfish hegemon should lie. It would be easier to change the law by asserting the change. Turning back to the fundamental issue of whether US actions led to a change in the system, to an “imperial” turn in international law, it appears to be questionable whether “acts” alone are sufficient to erode the existing system of sovereign equality. It seems that the mitigating force of “words” prevents this from happening. Where does this lead us? It seems to imply that as long as the US seeks to justify its actions within the existing international legal framework, that framework does not change. Apart from the uneasiness this should arouse—what happens if there is an American change of mind?—the striking question is why does the US appear to remain loyal to traditional notions of sovereign equality in an era when it possesses all the potential to become a hegemon? The realist answer may be because it fears China to take over soon, i.e. within the next decades, and would not want to create new rules advantageous to others. But it is questionable whether states really engage in such long-term planning. It is my feeling that there may be a deeper, underlying reason for the US adherence to equality on the international level. It may have to do with a point raised in the Onuma footnote quoted by Zemanek, with the fact that “the US itself values highly the notion of equality in domestic settings.”5 There is, of course, a more profound problem resulting from the hegemonic action of the US and its repercussions on the state of international law: I must confess that I am not fully convinced of the arguments I have relied upon above in order to uphold the integrity of international law. They are largely based on the well-know ICJ rationale in the Nicaragua Case6 where it was stated that “[i]f a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attribute is to confirm rather than to weaken the rule.”7 As appealing as such a rationale may appear to lawyers in helping them to uphold the center-posts of their internalized belief-system, the question remains whether anyone else would accept this premise.
5
O. Yasuaki, “When Was the Law of International Society Born?—An Inquiry of the History of International Law from an Intercivilizational Perspective”, 2 Journal of the History of International Law 1, at 18 note 38 (2000).
6
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 1986 ICJ Rep. 14 (27 June).
7
Ibid., at 98.
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In the eyes of the public at large and certainly also of “realist” political scientists the judgement clearly comes out differently: no one seems to believe that the prohibition of the use of force is still good law and many doubt the use and validity of international law in general. There is an enormous gap between this broadly shared perception and the lawyers’ sophisticated strategy to defend international law. There may be a danger that lawyers, by creating an apologetic system of maintaining the law, may dissociate themselves not only from the perception of the majority of laypersons but—worse— from reality itself. In order to prevent international law from losing ground it may be necessary to question the validity of the self-immunizing strategy inherent in the ICJ’s argument. In other words, it seems necessary to determine the outer limits of the Nicaragua-type apologetic reasoning: what degree of norm violation can be sustained by a rule of international law without losing its binding character? I do not have an answer at hand but I think this question will continue to disturb us for quite some time while we, as international lawyers, are busy explaining how international law has survived Kosovo, Afghanistan and Iraq. It may well be, however, that the presently transformed Westphalian system of an international law “among” sovereign states may be replaced in a far less spectacular manner by the gradual substitution of international law by unilateral American rules. Instead of the dramatic field of the use of force, it may be the more technical, downto-earth problems created by the continued American use of extraterritorial jurisdiction that will pose the more serious systemic threat to international law. In particular, with regard to—what the American Restatement prefers to call in a technical way—”jurisdiction to prescribe”8, the extraterritorial application of American law could prove to become the most explicit form of an imperial US tendency because it substitutes national law for international law. Such a creeping Americanization of international law9 in fact negates the necessity of international rules by replacing it with national law. In fact, the matter is even more complex since the US frequently claims that, in exercising extraterritorial jurisdiction, it is in reality just enforcing international law. The more recent trend of human rights litigation before US courts bears witness to
8
§ 401(a) Restatement (Third) of Foreign Relations Law (1987).
9
See also A. Reinisch, “The Americanization of International Law”, 1 Juridikum 71 (2000).
10
Starting with Filartiga v. Pena-Irala, United States Court of Appeals, Second Circuit, 1980, 630 F.2d 876, 19 ILM (1980) 966, a number of human rights violations committed outside the US by non-US nationals have been subject to US court proceedings, ranging from slave labour and Holocaust-related cases to environmental and other torts committed by large business firms in developing countries. See B. Stevens/S. R. Ratner, International Human Rights Litigation in US Courts (1996).
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such assertions.10 The Alien Tort Claims Act enables foreigners to sue before US courts “for a tort only, [committed] in violation of the law of nations.”11 This legal device may well be portrayed as a mechanism for the decentralized enforcement of international law. The fact, however, that the availability of US courts brings with it long-arm jurisdiction over foreign defendants coupled with punitive damages, jury trials, and US discovery rules has led to fierce criticism of this form of extraterritorial jurisdiction. It is censured as a particularly hypocritical form of American unilateralism which posits domestic views for universal standards12 and which undermines the fundamentals of sovereign equality. The allegation of hypocrisy may be a boomerang, however, and turn back to the Europeans who would then have to answer the question of how hypocritical they are themselves. They would have to find a justification for why they reject US attempts to make human rights more effective through extraterritoriality. This European rejection based on the assertion of a lack of US jurisdiction may indeed appear to be a very formal argument when they largely agree with the content and goals pursued by US extraterritoriality. Putting aside the specifics of Alien Tort Claims Act litigation, there is still a great variety of typical extraterritorial jurisdiction whereby the US clearly attempts to impose its own rules (of antitrust, securities, products liability, employment law, etc.) on foreigners operating abroad on the basis of rather tenuous jurisdictional links. The most explicit form of Americanizing the law can be detected in blunt assertions of extraterritorial jurisdiction but there are in fact other more indirect forms of extraterritoriality whereby the US tries to extend the territorial scope of its own vision of legal regulation to other states. We already have first signals and may expect to find more frequent examples of forced harmonization via treaty-making and using the Security Council as world legislator. Whether using traditional treaty-making techniques or more innovative legislative approaches through international organizations, the outcome of various seemingly multilateralist law-making exercises remains strongly predetermined by unilateralist US wishes. An illustrative example of the indirect, “creeping” extraterritoriality which uses the accepted mechanisms of international law in order to export American rules and norms beyond its borders can be found in the field of anti-corruption measures.
11
Judiciary Act of 1789, ch. 20, Sec. 9(b), 1 Stat. 73, 77 (1989), codified at 28 U.S.C.A. Sec. 1350. See also R. G. Steinhardt/A. D’Amato (eds.), The Alien Tort Claims Act: An Analytical Anthology (1999).
12
This danger has been recognized by Judge Kaufman in one of the leading US cases where he cautioned that “the courts of one nation might feel free to impose idiosyncratic legal rules upon others, in the name of applying international law.” Filartiga v. Pena-Irala, supra note 10, 19 ILM 966, at 971 (1980).
13
15 U.S.C. §§ 78dd-1, et seq.
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Starting with giving extraterritorial teeth to its Foreign Corrupt Practices Act of 1977,13 in particular by its 1998 Amendments,14 the US ultimately succeeded in “persuading” its OECD partners to adopt the Anti-Bribery Convention.15 Hidden beneath this perfectly consensual treaty-law approach, which appears to be in full harmony with the sovereign equality system, lurked the underlying threat of unilateralism which casts doubt on the free choice of America’s treaty partners to enter into the Convention’s obligations. Another example of the imperial tendency of the US to shape the law according to its own views may lie in the use of the law-making potential of nascent UN Security Council powers in the field of legislation. What had started slowly through the establishment of the Yugoslav and Rwandan War Crimes Tribunals in 199316 and 199417 was impressively broadened by the adoption of the anti-terrorism resolution 1373 in September 2001.18 In addition to obliging states to take legislative measures that would otherwise result from adhering to various anti-terrorism conventions, this resolution contains a number of typical “American” responses to terrorism, such as asset freezing, blacklisting, etc. Given its current dominance in the Security Council, this bypassing of the traditional treaty-making process may become a readily available instrument for the US to shape the law along the line of its own interests. The potentially “imperial” character of US extraterritoriality claims can be easily recognized by studying US attitudes towards jurisdiction from a historical perspective. One can perceive a conspicuous trend from an initially (defensive) territoriality-based concept of jurisdiction to a contemporary (assertive) one of extraterritorial jurisdiction. This development of US claims to jurisdiction may be seen as a manifestation of the increasing awareness of a state with regard to its growing economic and political power. An initially strictly territorial notion of the exercise of jurisdictional power has been gradually expanded. When the US was a weak, “newly independent state”, gaining freedom from the former colonial power of Great Britain, it embraced a restricted, territorial concept of jurisdiction.19 With its international status and power
14
See H. L. Brown, “Extraterritorial Jurisdiction under the 1998 Amendments to the Foreign Corrupt Practices Act”, 26 North Carolina Journal of International Law and Commercial Regulation 239 (2001).
15
1997 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. 37 ILM 1 (1998), entered into force 15 February 1999.
16
UN SC Res. 827 (1993).
17
UN SC Res. 955 (1994).
18
UN SC Res. 1373 (2001).
19
American Banana Co. v. United Fruit Co., 213 US 347 (1909); Pennoyer v. Neff, 95 US 714 (1877).
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growing, the US became increasingly confident with using a more expansive concept of jurisdiction in prescriptive (antitrust, etc.)20 as well as adjudicatory (long arm)21 jurisdiction. Today we are witness to America’s missionary operation of exporting its own legal system which it considers to be the best available. Legal “imperialism” is not even limited to outright extraterritorial application of US law. It also encompasses a remarkable enthusiasm in advocating elements of the US legal system for adoption abroad from Eastern European to Central Asian “countries in transition” to Latin American and African states.22 Still, extraterritoriality remains the most visible aspect of US legal hegemony. Certainly, while recognizing the questionable stretch of extraterritorial jurisdiction by the US, one should not overlook the inherent necessity of developing at least some degree of extraterritorial jurisdiction. It is quite obvious that an increasingly interconnected, “globalized” economy requires regulation which cannot stop at national borders. The fields of antitrust/competition law and securities regulations/ insider trading legislation are obvious examples where the need to protect a functioning market confers legitimacy upon regulating also outside behavior that may negatively affect such markets. However, with the acceptance of the effects doctrine and other remote connections as being sufficiently close to justify the exercise of jurisdiction, a degree of uncertainty has entered the hitherto predominantly territorial allocation of jurisdictional powers among sovereign states that renders any precise delineation of jurisdiction illusory. Globalization theories based on an unprecedented interdependence of states provide the fertile groundwork for far-reaching assumptions about the reach of the effects principle. When almost everything may have some effect somewhere else, all states may concurrently use their regulatory jurisdiction. It is also obvious that the
20
United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945); Hartford Fire Insurance Co v California, 509 US 764 (1993).
21
Perkins v. Benguet Consol. Mining Co., 342 US 437 (1952); Frummer v. Hilton Hotels Int’l, Inc., 227 N.E.2d 851 (N.Y. 1967); See also in the field of criminal proceedings the view of the US Supreme court in United States v. Alvarez-Machain, 504 US 655, 668, 670 (1992), holding that the abduction of a criminal defendant from Mexico, although it “may be in violation of general international law principles, [...] does not [...] prohibit his trial in a court in the United States for violations of the criminal laws of the United States.”
22
See, for instance, the Central European and Eurasian Law Initiative of the American Bar Association which according to the ABA’s own description “ is a public service project of the American Bar Association that advances the rule of law in the world by supporting the legal reform process in Central and Eastern Europe and the New Independent States of the former Soviet Union”. Available at http://www.abanet.org/ceeli/home.html.
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only escape from such jurisdictional chaos lies in requiring stronger jurisdictional links. The American approach, advocated in the Restatement23 and partly adhered to by US courts,24 of trying to embed extraterritorial jurisdiction in a reasonableness test which is then portrayed as a requirement of international law may in fact be a possible solution.25 But, of course, the question then is: who determines the meaning of highly indeterminate concepts like reasonableness and appropriateness? One may justly remain skeptical about American courts sitting in judgment over the reasonableness of the assertion of US extraterritorial jurisdiction. In the absence of any inter-state dispute settlement with regard to jurisdictional conflicts, unilateral determinations will remain the rule. Since the Lotus case, even incidental international judicial pronouncements have been rare in this field.26 Even worse for international law is the fact that the largely judge-made limitations on US extraterritorial jurisdiction may not really be the result of conscious self-restraint under international law principles but rather the quasi-automatic consequence of jurisdictional limits derived from US law.27 In this regard American court decisions generally retain a considerable degree of ambiguity about whether they rely on an internationally required reasonableness or on US constitutional due process requirements.28 One might assert
23
See Restatement, supra note 8.
24
The primary exhibits are Timberlane Lumber Co. v. Bank of America, 549 F.2d 597, 614 (9th Cir. 1976) and Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1297 (3rd Cir. 1979).
25
According to § 403 Restatement, supra note 8, all exercises of legislative jurisdiction are subject to reasonableness. The same applies according to § 421 Restatement to the exercise of jurisdiction to adjudicate.
26
The Case of the S. S. Lotus (France v. Turkey), 1927 PCIJ (Ser. A) No. 10. Even this jurisdictional cause célèbre has given rise to controversial interpretations, from a general jurisdictional freedom to act in the absence of any restrictive norms of international law to the perception of a requirement of a sufficiently close link for exercising jurisdiction.
27
According to the US Supreme Court landmark decision in International Shoe Co. v. Washington, 326 US 310, 316 (1945), as a consequence of the Constitution’s due process clause a US court’s exercise of jurisdiction over an out-of-state defendant depends upon the latter’s “minimum contacts” with the forum state.
28
According to the Restatement’s Comment “the principle that an exercise of jurisdiction [to prescribe] […] is nonetheless unlawful if it is unreasonable is established in United States law, and has emerged as a principle of international law as well”. § 403 Restatement, supra note 8, Comment a). According to the Reporters’ Notes “the modern concepts of jurisdiction to adjudicate under international law are similar to those developed under the due process clause of the United States”. § 421 Restatement, supra note 8, Reporters’ note 1.
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that it is the result that counts—whatever may have led to a limitation of Uncle Sam’s long arm. But one should not underestimate the long-term effect of a loss of awareness of external, i.e. public international law, limitations on a state’s jurisdictional powers. Ultimately, the threat of US extraterritoriality to the existing international legal system will depend on how far the replacement of international law by US law will go. As Onuma has emphasized in his article, it may well be that there are simultaneous, competing perceptions of the nature of international relations: at times when some empires regarded the world order as a hierarchical system with themselves in the center, others disagreed and conceived of the same order as one being already based on horizontal concepts of equality.29 On the other hand, we may just be witnessing business as usual, which includes legal cross-fertilization whereby US concepts such as class actions, punitive damages, strict liability, etc. are exported to other states and internalized in their national legal systems. Time will tell. Time will also tell whether the spectacular cases of Kosovo, Afghanistan and Iraq are more likely to affect the nature of international law than an almost routine extraterritoriality. As explained, one may have serious doubts since the former may still be regarded as a mere re-interpretation of international law while the latter could lead to a veritable substitution of US law for international law. November 2003
29
Cf. Onuma, supra note 5, with regard to the clash between the Sinocentric System in East Asia or the Muslim system with the European system.
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Unilateral Action in an Imperfect World Order
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Unilateral Action in an Imperfect World Order* W. Michael Reisman & Scott Shuchart**
Introduction Recent events have cast substantial doubt, in the minds of many international elites, on the commitment of the US, easily the world’s most influential state, to action within multilateral structures. NATO bombing in Kosovo, American repudiation of the Rome Statute of the International Criminal Court,1 and the US government’s ambivalence on the wisdom of seeking UN Security Council approval, first, for military action against Iraq, and then for its reconstruction, have made clear—to some, uncomfortably clear—the extent to which multilateral organs and a multilateralist ideology are seen by powerful states as instruments to be used in the pursuit of national interests rather than as a substitute for national organs and national interest. By the same token, the failure of multilateral entities to act to secure their pronounced aims at critical junctures has made overt what some would prefer politely to deny, namely, the immaturity and impotence of multilateral structures when they cannot harness the political, economic, or military energies of actors for whom multilateral action is not the only conceivable vector for obtaining international policy outcomes.
*
This paper will appear in a forthcoming book, edited by John Attanasio, on unilateral and multilateral action in contemporary international politics. It draws on W. Michael Reisman, “Unilateral Action and the Transformations of the World Constitutive Process: The Special Problem of Humanitarian Intervention”, 11 EJIL 3 (2000), W. Michael Reisman, “The United States and International Institutions”, 41 Survival 62 (1999-2000), and W. Michael Reisman, “Towards a Normative Theory of Differential Responsibility for International Security Functions: Responsibilities of Major Powers”, in N. Ando (ed.), Japan and International Law: Past, Present and Future 43 (1999).
**
W. Michael Reisman is the Mc Dougal Professor of International Law at Yale University. Scott Shuchart is a Natural Resources Defense Council Fellow.
1
See Letter from J. R. Bolton, Under Secretary of State for Arms Control and International Security, to Secretary General Kofi Annan (6 May 2002), available at http://www.state.gov/ r/pa/prs/ps/2002/9968.htm (last visited 22 November 2004) (“[I]n connection with the Rome Statute […] the US does not intend to become a party to the treaty. Accordingly, the US has no legal obligations arising from its signature”.).
Austrian Review of International and European Law 8: 163-178, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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Angst about the success or failure, bolstering or undermining of a regime for multilateral action by unilateral actors presupposes both a potentially effective multilateral decision-making regime and an operative consensus about the duties of especially powerful states within such a regime. Both presumptions merit examination. For unilateral action is hardly extraordinary: Since 1990, as many internal military conflicts have had unilateral as UN-authorized foreign interventions.2
I. A “unilateral action” is an act by a formally unauthorized actor that effectively preempts any official decision by an entity legally designated to act. The unilateral actor claims that its action is, nonetheless, lawful, on the grounds that (1) the relevant legal regime allows such an action in particular circumstances, so long as substantive criteria for lawfulness are satisfied; (2) circumstances surrounding the unilateral act satisfy the relevant criteria; and (3) notwithstanding procedural irregularities, the act is claimed to satisfy those substantive criteria. Hence a “unilateral action” necessarily amounts to an effective displacement of decision-making by what would be the appropriate decision maker were the legally recognized procedure followed. Actions that merely prompt a logy official decision maker into action are then not unilateral, as they do not preclude an effective action through procedures sanctioned by relevant norms of recognition. A unilateral action is claimed by its author to be substantively lawful—in conformity with the ultimate goals of the relevant system, and productive of legitimate effects3—even if not procedurally legal. As unilateral action necessarily displaces other action, a given action’s propriety depends crucially on the likely decision, or range of action, it obviates. Hence the appraisal of any unilateral action depends on an understanding of the international decisionmaking apparatus outside of which the action is taken. Arguments against unilateralism are weakest when the displaced decisionmaker is incapacitated or otherwise unresponsive. Unilateral action is most plainly unacceptable when an officially designated actor could have solved the problem were it not pre-empted. The lawfulness of a unilateral action that sidelines a multilateral decisionmaker will depend in large part on the efficacy of the constitutive structure through which the multilateral decision might be taken. The international decision-making system, no less than any other system governed by quasi-legal concepts, includes a constitutive process that establishes and maintains decision-making procedures. This structural process is distinct from the decisions
2
See P. M. Regan, Civil Wars and Foreign Powers 102 (2000).
3
See V. D. Degan, Sources of International Law 272 (1997).
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the apparatus so constituted produces, but is not insulated from it. The first test of the lawfulness of a unilateral action is whether the constitutive process allows the unilateralist to displace the competence of formally designated decision-makers. The relevant constitutive process will, at a level of great abstraction, be one of four types: (1) An unorganized or non-hierarchical constitutive structure. In these systems, unilateral action is the primary means of decision-making; unilaterality therefore cannot per se be an indicator of the unlawfulness of the action. Though some participants and observers may note and bemoan the lack of effective multilateral processes, in their continued absence, unilateral action remains the norm and so not, eo ipso, unlawful. (2) An ineffective constitutive structure. These all-too-common systems tend to have purely semantic structures, processes that purport to abide by elaborate law-governed processes but which in fact operate on an entirely different value calculus and through channels distinct from those superficially recognized. An “operational code,”4 not a public constitution, regulates decision. Where the relevant decision maker cannot reach a decision through official methods, frequent unilateral action can be expected. Nonetheless, the cognitive dissonance generated by such systems can make effective operation within them quite difficult, as the presence even of empty legal symbols can make those undertaking action in derogation of the symbols seem unlawful and corrupting. Agents who move between effective domestic structures and ineffective international ones are liable to underestimate the emptiness of legalisms in these defective structures. (3) A partially effective constitutive structure. Limited effectiveness of a constitutive process may result from a lack of political power, authority, or coordination; but it may also arise as a conscious, or at least a useful, technique for mediating among the incompatible values, interests, and aspirations of a varied constituency. On areas of normative dissensus, partially effective structures will recognize claims as “valid” while providing no means to enforce them. Such generally effective systems may retain contingent exceptios for unilateral action where the decision maker has, at least at times, insufficient power to make effective the clear standards and procedures to which it subscribes. The “right of self-defense” in Article 51 of the UN Charter is a prime example; rather than some atavistic remnant of the pre-Charter right of each state to wage war, Article 51 carves out devolution to unilateral action from the general monopoly on force delegated to the Security Council. (4) An effective constitutive structure. It is in the presence of an effective institution capable of responding to the legally cognizable demands of its participants that unilateral action becomes generally unjustified, and so
4
See W. M. Reisman, Folded Lies: Bribery, Crusades, and Reforms 1 (1979).
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presumptively delictual. Though some unilateral action might be tolerated— if, in particular, it is not simply self-serving—an effective structure can be expected to condemn and to sanction any such action, lest the constitutive process be undermined and devolve into a structure of only limited effectiveness.
There simply is not at present sufficient consensus on which of these forms describes the instant world public order to provide a clear, categorical assessment of unilateral action. The UN may have been meant to be a fully effective institution, but the Cold War quickly relegated it to the third, limited sort, as the Security Council became effectively paralyzed in virtually all the situations in which the drafters of the Charter anticipated it would operate. A tide of unilateral actions filled the vacuum, often by expanding the conception of “self-defense.” The tide has not waned significantly since the end of the Cold War. Hence the genuinely uncertain legal status, and indeed wisdom, of actions taken outside of world constitutive structures. To imagine that the Security Council retains a full and effective monopoly on economic, political, or military sanction is to conjure away all the occasions on which it has failed to act as it is supposed to in an effective constitutive structure. Yet to suggest that the Council acts with only the simulacra of effectiveness is perhaps equally unfair. It is no surprise, then, that the world—and its jurists—are in a quandary about the role of unilateral action in the system.
II. Arguments for the desirability of a fully effective multilateral order are too easily mistaken for reasons to treat the extant order as though it were fully effective. Quite often, current multilateral mechanisms are unable to induce steps supported by the values of most participating states. The comparatively easily-achieved consensus authorizing a response to Iraq’s 1990 invasion of Kuwait5 responded to a manifest violation of a state’s security in its borders, and contrasts with reaction since then to internal human rights abuses, over which the Security Council has remained essentially sessile. Indeed, the mismatch between the process of international law-making by which human rights norms are enunciated and the Security Council’s processes for enforcement of those norms has in recent years provided the primary justification for unilateral actions thought to pre-empt matters within the Council’s remit. Because some veto-holders on the Security Council reject consensus norms on human rights
5
See, e.g., S.C. Res. 678, UN SCOR, 45th Sess., 2963d mtg. at 27, UN Doc. S/RES/678 (1990) (implicitly authorizing use of force against Iraq).
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values and standards, the broader human rights constituency has tried to work through the larger constitutive process—in which the UN is embedded—to seek to implement those norms. For these matters, the Security Council is at best only a partially effective institution, hobbled by its internal legal arrangements from giving effect to values it is pledged to support. In many circumstances, the judgment of ineffectiveness of the official decisionmaking system that might justify unilateral action will depend on whose ox is being gored. In a system whose effectiveness varies with respect to different domains and the issues at stake there, participants may profoundly disagree as to whether the officially designated decisionmaker is effective with regard to a class of events. These disagreements may rest on differing factual assessments, but may just as often turn on value conflict, with the result that proponents of a unilateral action may believe the official decisionmaker incapable of effective action while opponents take official inaction to be an effective, and so preclusive, decision. When less powerful states stand up for territorial integrity safeguarded by absolute sovereignty and against unilateral military interventions for humanitarian purposes, they do so in part because their own ability to remain vital participants in international affairs depends on the conceit that an official decisionmaker committed to humanitarian values might choose to refrain from intervention. For states unthreatened by the erosion of a nonintervention norm, official inaction in a humanitarian crisis is a defect, whereas for the smaller states enforced inaction seems the apotheosis of multilateral decisionmaking displacing the ability of powerful players to act by their own lights. The coexistence of domains in which members or advocates of the Security Council and other official decisionmakers can fairly claim to be effective, and those in which these claims are mere palaver, creates genuine uncertainty as to the nature of public order and the duties owed by individual actors to hew to the formal prohibitions of international law. In times of crisis, actors capable of acting outside the official structure may be inclined to do so—not because they reject the authority of the official decisionmaker, but because they cannot for whatever reason abide the long process of ascertaining whether the decisionmaker will prove effective. The continued existence of genuine exigencies, and the continued failure of official decisionmakers to respond in a reliably timely or efficacious manner, makes a sweeping antiunilateralist position untenable.
III. Regardless of the degree of effectiveness manifested in the official international decisionmaker, there is reason to suppose that some states might competently and justly bear distinct responsibilities, especially for security functions. Even under a capable multilateral decisionmaker, asymmetries among national resources, techno-
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logies, and competencies are conducive to a recurrent apportionment of decisionimplementing functions among participating states. Only a minority of states has the logistical technologies to mount a major humanitarian relief operation; some states are better able to bear the political costs of long-term peacekeeping deployments than are others. While many states maintain substantial military forces as a share of population, these establishments may still not be large in the international sense nor trained for foreign deployments; support of states capable of such deployments is thus a prerequisite for any international security undertaking. These asymmetries are, perhaps, even more pronounced in the current climate, where differential competence leads some actors to take the lead in implementing norms on which the official decisionmaker fails to act. By and large, these are the “major powers”—states with the demographic and economic wherewithal to project force across the globe in the service of political activities. The truly difficult question is, then, whether in the absence of a fully effective regime possessed of its own capable international military instrument, these major-power states might justly bear special responsibility, especially for international security. Finding an answer to that broad question is beyond the scope of this paper, but there do appear to be domains in which differential responsibility has been recognized as justifying displacement of the official decisionmaker by some forms of unilateral action. In the case of nuclear security especially, the fact that the 1970 Nuclear NonProliferation Treaty (NPT)6 imposes different responsibilities on non-nuclear and “grandfathered” nuclear states indicates a system of asymmetric duties. The basic obligation imposed by the NPT, after all, is that the allowed powers not transfer nuclear weapons or assistance in producing such weapons to the non-nuclear states parties.7 This “seemingly unequal treaty … reflected the reality of the international relations in the 1970s and 1980s”8 and in effect endeavored to freeze the extant balance of power. With that balance now having shifted, under the regime established in the 1995 treaty extension the five Permanent Members of the Security Council covenanted not to use nuclear weapons against any non-nuclear state party to the NPT.9 The regime then essentially turns on assurances to limit the spread and use of the weapons given
6
Treaty for the Non-Proliferation of Nuclear Weapons, 1 July 1968, 21 UST. 483, 729 UNTS 161.
7
Ibid., Art. II.
8
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, 1996 ICJ Rep. 35, 855 (dissenting opinion of Judge Oda); see also W. M. Reisman, “The Political Consequences of the General Assembly Advisory Opinion”, in L. Boisson de Chazournes/ P. Sands (eds.), International Law, the International Court of Justice, and Nuclear Weapons 473 (1999).
9
See UN Doc. S/1995/261, 262, 263, 264, 265.
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by the nuclear powers to the other states. This system, approved by the Security Council,10 amounts to a regime of differential responsibility for the maintenance of security through the management of nuclear weapons: The nuclear powers are barred from using their weapons against nonnuclear NPT signatories and are expected to come to the assistance of any nonnuclear state threatened or attacked with nuclear weapons.11 Economic and development issues are inseparable from security, and the major powers dominate these institutions as well. The Grundnorm of multilateral economic agencies holds that power be distributed on the basis of the size of contributions. Where dominant economic power may be used to further partial economic interest rather than that of the world economy, the major economic powers may have special duties to constrain their ability to manipulate the constitutive world economic institutions to their own ends. Moreover, whatever asymmetric duties the major powers hold for physical security surely entail duties to contribute adequately to economic development projects, the inadequacy of which may form the predicate for military instability. Alas, the major powers often make economic decisions of international import with an eye toward their own national economic interest, largely for domestic political reasons. Differential responsibility is also encoded in the UN Charter through the special status accorded to the five Permanent Members of the Security Council, notably the veto power.12 Just as possession of nuclear weapons has been taken by the NPT regime as a basis for imposing special security obligations, so too might the major powers be under some obligation to utilize the veto in a way that furthers world order. Use of the veto in a way that advances only the holder’s interest is antinomian and, under the Charter, inappropriate. It would be plainly inappropriate, for example, for a state to take unilateral action after its veto (or threatened veto) kept the Security Council from taking an effective decision to create a multilateral solution. The possibility of a General Assembly “Uniting for Peace” resolution,13 if responsibly used, may provide some check on abuse of the veto, but special obligations for the Permanent Members remain. The factual dominance of one Permanent Member in particular makes differential responsibility inevitable. Given its extraordinary economic, military, and political
10
See S.C. Res. 984, UN SCOR, 50th Sess., 3514th mtg., UN Doc. S/RES/984 (1995).
11
Ibid., at 2 (providing that, in the event a non-nuclear state is threatened or attacked by nuclear weapons, “the nuclear-weapon State Permanent members of the Security council will … seek Council action to provide […] the necessary assistance to the State victim”).
12
UN Charter Art. 2, para. 3.
13
See G.A. Res. 377, UN GAOR, 5th Sess., Supp. No. 20, at 10, UN Doc. A/1775 (1950).
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centrality to a variety of constitutive regimes, both internal and international political pressures make it extremely difficult for the US to forego unilateral action in support of consensus norms to which it subscribes.14 The existence of such a preeminent actor itself may tend to reduce a fully effective constitutive procedure to one of only limited effectiveness, through both that actor’s ability to act and to stand apart from official decision makers, and through a crowding-out effect whereby the official decision maker foregoes political costs the preeminent actor is willing to bear itself. And it should not be forgotten that arguments for differential responsibility resonate with the decisionmaking elites within powerful states, who appreciate the political benefits that come from projecting unilateral strength. So long as one actor plays such a dominant role, acknowledgement of special duties on its part may be the only vector for achieving a variety of policy outcomes. By the same token, a public order largely dependent on the presumed altruism of the most powerful actors is dangerously prone to moral hazard. Given the frequent ineffectiveness of multilateral decisionmaking and the fact of broad inequalities of military and economic means among states, some realistic theory of asymmetric obligations to mediate these perils would be helpful.
IV. In light of the frequent ineffectiveness of the multilateral constitutive decisionmaking structure and the substantial arguments favoring special responsibility for some states, unilateral action is apt to coexist for some time with multilateral policies adopted by partially effective international decisionmakers. Yet some contemporary defenses of unilateral action often overstate the ineffectiveness of multilateral bodies and minimize the political values participation in such bodies serves. The international myth system depends crucially on the principle of sovereign equality set forth in the UN Charter.15 Yet it is quite evident that members of the UN have unequal rights and obligations, with respect to budget and security matters especially. UN practice has been to speak the language of equality, but to act on the maxim “each according to his ability, each according to his means.” For states with little ability, multilateral institutions have begun to become the principal avenues for diplomacy. Whereas for the US the formal institutions of international law are often
14
See generally R. Wedgwood, “Unilateral Action in a Multilateral World”, in S. Patrick/ S. Forman (eds.), Multilateralism & US Foreign Policy: Ambivalent Engagement 167, at 169 (2002) (describing ways in which asymmetries of power tend to bolster American claims to legitimacy of unilateral action).
15
UN Charter, Art. 2, para. 1.
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little more than means to an end determined by domestic elites,16 these smaller states find substantial value in process itself. Their votes in multilateral bodies are their chief power-base in international relations, far greater than any leverage they might hope to exercise on a bilateral basis outside, perhaps, of their geographic region. Though the major powers cannot, of course, afford to ignore multilateral structures, they simply do not depend on them in the same way. The US is not the only state to see the UN largely as a means to obtaining bilateral outcomes. The other permanent members, even while they use the Security Council as a device to counterbalance US dominance, have bilateral tools at their disposal that the majority of states almost entirely lack. US impatience with the cumbersome procedures of multilateral diplomacy may spring from the national tendency to “cando-ism” and a genuine desire to obtain legitimate policy outcomes; but dispensing with those procedures oftentimes looks, to all the world, like impatience with the deliberative involvement of any state that dares not fall immediately in line behind American preferences. Respect for international deliberation is not the same as deference to international diplomats; but expressions of such respect are oftentimes the prerequisites to political acquiescence by other states. When America is seen not even to care whether other nations acquiesce in its actions, it raises legitimate questions regarding its apparent indifference to the lawfulness of its undertakings. While the US in one sense uses multilateral instruments more than any other state to project its values,17 these uses are distinctive and, from the standpoint of states more dependent on formal international institutions, often manipulative. By and large, these US practices reflect a political culture and the foreign policy of an actor that is, in many respects, distinctively altruistic, by its own lights. Nonetheless, the manifestations of distinctive US views at times threaten to undermine the viability of the international myth system that allows less powerful states to engage in multilateral structures under a claim of equality of status. The US engages with and engineers international institutions in a variety of modalities. First, as reformer, the US often attempts international “social engineering” in the expectation that new institutions and procedures could transform international politics. In this modality, law and legalism are central—as central as Americans believe law to be to their own politics. Second, as a factor within international organizations, the US is surprisingly restrained, generally deferring to and defending established constitutive procedures notwithstanding its ability to manipulate them to favor itself and its nationals. Because of the reformist role, however, the US is generally held to a higher standard, and expressions of its own partial interests are
16
See J. C. Ikenberry, “Multilateralism and US Grand Strategy”, in Patrick/Forman, supra note 14, at 121.
17
Ibid., at 122.
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often subject to special scrutiny. Some of these expressions may be America defending itself within approved bureaucratic procedures, procedures designed to function best when states vigorously advocate for themselves. But other aspects may be manifestations of the fact that, in a regime of only intermittently effective legal procedures, many key institutions remain conduits for expressions of power, and the US, like any other player, acts to preserve the power it has acquired. These roles can prove quite complex, however, as when America has supported expansion of the General Assembly’s power, at the expense of the Security Council’s, to circumvent veto roadblocks in the latter.18 Third, and uniquely, is the US role as custodian of international values and institutions. At times, the inherent defects of multilateral decisionmakers render them incapable of actions; multilateral success in forming an institution to implement certain norms does not always translate into successful execution. These institutions function in a regime of international politics largely dominated by actors representing their national perspectives, a fact far less transient than the Cold War. Rather, despite a homogenizing global culture (especially among elites, and particularly with regard to certain humanitarian values), states do act with different aims, different expectations, and divergent interests. When these conflicting aims threaten to undermine a multilateral entity, unilateral action that displaces official action may save the institution from itself. The US, for all its devotion to legalism, is more willing and more capable than many actors of taking sole action in part to safeguard the future viability of a paralyzed institution. While states threatened by the potential for US hegemonism may confuse these custodial actions with aggressive unilateralism, calls for America to fill this role often originate in other supporters of the crippled institution. A state’s unchecked aggression threatens to undermine the UN’ ultimate value as guarantor of international security; yet defects in its procedures or international politics may prevent it from authorizing a collective defense. Here it may be the US interest in future UN competence that leads it to take unauthorized action to secure tranquility—not because the aggression in question threatens any particular US interest, but because international stability is a goal for which America will act even without multilateral sanction. Such action may be reformist, too—a forceful implementation of the antiaggression norm. The irony that, sometimes, a multilateral institution must be set aside in order ultimately to be saved is not lost on American decisionmakers, but neither ought it at all events inhibit them from acting on reformist and custodial impulses. Fourth, the US role is heavily conditioned, more so than the diplomatic postures of many states, by internal political considerations, both electoral and intra-governmental. Values of state and local officials, whose activities are increasingly the subject
18
E.g., the “Uniting for Peace” Resolution, supra note 13 and accompanying text.
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of multilateral treaties, have substantial influence on federal diplomacy. The legislature, especially when the Senate is controlled by a political party other than the one holding the presidency, may have a large role in foreign policymaking; and legislators influence and are influenced by their constituents’ international concerns. These varied interests can put stress on the ability of federal diplomacy to speak in the single voice sometimes required for effective international politicking. They may also create especially great pressure for foreign-policymakers to see that the interests of the domestic constituency be honored even though doing so will involve extraordinary or unilateral action. Individual interest groups will almost invariably be willing to deplete the political capital available for other causes in the service of their own, meaning that an opportunity for unilateral involvement on a given issue will be quite appealing to some, usually vocal, constituent in the domestic decisionmaking apparatus. “Security”, widely conceived, has had an especially pronounced effect on the relationship between America’s domestic and international politics, often in ways quite different from the linkages to which international structures became accustomed during the Cold War. None of these institutional functions is aided, of course, by overt attempts to marginalize multilateral decisionmakers or to undermine the myth system that allows less powerful states to draw political benefits from their active participation in those institutions. Some in the US foreign policy establishment would appear to underestimate both the instrumental and rhetorical value of multilateralism, and as a result have fostered an erroneous sense in some corners that the US has retreated from its custodial role, altering its intra-institutional posture to favor its own interests and backing off from its reformist vision of a world order composed of legalized institutions.19 The signature and retrenchment20 on the Rome Statute for the International Criminal Court,21 the abandonment of a US role in the Kyoto Protocol on climate change,22 and the country’s failure to ratify the Comprehensive Nuclear Test Ban Treaty,23 the Convention on the Elimination of All Forms of Discrimination Against
19
See S. Patrick, “Multilateralism & Its Discontents”, in Patrick/Forman, supra note 14, at 1, 10 (noting value of multilateral institutions to breadth and success of US diplomatic initiatives).
20
See also Letter from Bolton to Annan, supra note 1 (claiming that, with no intention of ratification, US signature of treaty had no legal effect).
21
UN Doc. A/Conf.183/9 (1998).
22
Kyoto Protocol to the UN Framework Convention on Climate Change, Conference of the Parties, 3rd Sess., Agenda Item 5, UN Doc. FCCC/CP/1997/L.7/Add.1 (1997).
23
Comprehensive Nuclear-Test-Ban Treaty, UN Doc. A/50/1027, 35 ILM 1439, opened for signature 24 September 1996.
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Women,24 the Land Mines Convention,25 and the Convention on the Rights of the Child 26 have seemed to many an abdication of America’s reformist role. Its disinclination to involve official decisionmakers in its policy towards non-state terrorist actors, rogue authoritarian states and “nation-building” has, similarly, appeared to be a retreat from the custodial vision and towards a hegemonic, imperial sense of America not as ultimate underwriter of security, but as primary and exclusive guarantor. These steps, combined with an apparent failure of many in the policy elite to recognize the value—even if only instrumental—of international legal arrangements, have unnecessarily undermined the US’ ability to execute its reformist and custodial roles, and have left even its well-intentioned attempts to serve those goals tinged with an unhealthy air of self-interestedness. Domestic political concerns in part explain, but scarcely excuse, the frequent hostility to multilateral undertakings, institutions, and ideology expressed by and through policymaking and diplomatic elites. Especially since the end of the Cold War, consensus among elected officials on foreign policy matters has substantially collapsed, with the major political parties taking up adversarial views on the merits of international involvements. This new political culture has latched on to the tense relationship between the US and UN that accompanied the growth of the non-aligned movement during the 1970s and its control of the General Assembly.27 The lunatic fringe now worries not about the Communist International, but the UN’s black helicopters seeking to subjugate America to world government; the Republican electoral success in 1994 hinged on their “Contract with America” platform, one plank of which called for legislation to ensure that “No US troops [operate] under UN command….”28 The decade-long refusal of the US to pay its full mandatory dues to the UN emerged from the same sort of politics, joined with legitimate custodial concerns about fiscal and administrative management in the organization.29 American presidential politics, long the electorate’s focus for foreign-policy concerns, have of
24
1249 UNTS 13, 19 ILM 33 (1980) (opened for signature 1 March 1980).
25
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on Their Destruction, 36 ILM 1507 (1997) (opened for signature 3 December 1997).
26
20 November 1989, 1577 UNTS 3, 28 ILM 1448 (1989).
27
See M. P. Karns/Karen A. Mingst, “The United States as “Deadbeat”? US Policy and the UN Financial Crisis”, in Patrick/Forman, supra note 14, at 267, 269.
28
Republican Contract with America, available at http://www.house.gov/house/Contract/ CONTRACT.html (last visited 22 November 2004).
29
See generally Karns/Mingst, supra note 28.
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late put the issue of the authority of international organizations in the forefront of the public agenda.30 Whatever the merits of unilateral undertakings, there is no value at all in the world’s most powerful state issuing gratuitous insults to multilateral fora. Yet some in the US persist in doing just this, through policy behavior and the anti-internationalist rhetoric of distinguished commentators. Thus Charles Krauthammer: the United General Assembly is “a playground for the most powerless nations on earth to rant and vent their rage at the powerful.”31 One Permanent Representative, the Spanish Ambassador, lamented the hostility American tactics engender: The United States is, by its actions, setting a devastating example. The wealthiest nation in the world has chosen not to honor its dues to the organization that it helped create, and of which it is the most important member…. The leader of the free world went over a year without appointing an ambassador to the body entrusted with the task of securing and upholding international peace…. The United States does not even sign or ratify treaties whose propriety is acknowledged unanimously by the international community…. All these actions harm the United Nations beyond description, not only because the United States is one of the world’s foremost democratic states, but also because of the US standing as the sole superpower. The immediate effect thereof is both contagious and harmful.32
There is a good reason debate and process are of value to states lacking the wherewithal to act outside of sanctioned institutions, and even officials animated by Realpolitik and committed to preserving unilateral options should by word and deed allow multilateral institutions to fill whatever space they may competently and effectively occupy. American victory in the Cold War destabilized the balance that had earlier provided many smaller states with some measure of security, if only the thin assurance of predictable antagonisms; when that balance was lost, those states turned even more urgently to the international order just as some in the US felt liberated to conduct policy without substantial multilateral consultation.33 Lingering distaste for the 30
See Chicago Council on Foreign Relations, Global Views 2004, American Public Policy and Foreign Policy, available at http://www.ccfr.org/publications/opinion/main.html (last visited 1 December 2004).
31
C. Krauthammer, “A World Imagined: The Flawed Premises of Liberal Foreign Policy”, New Republic, 15 March 1999, at 23 (quoted in E. C. Luck, “The United States, International Organizations, and the Quest for Legitimacy”, in Patrick/Forman, supra note 14, at 47, 61).
32
I. Arias, “Humanitarian Intervention: Could the Security Council Kill the UN?”, 23 Fordham Int’l L.J. 1005 (2000). The author was the Spanish Ambassador to the UN.
33
See R. F. Hopkins, “Anomie, System Reform, and Challenges to the UN System”, in M. J. Esman/S. Telhami (eds.), International Organizations and Ethnic Conflict 72 (1995).
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General Assembly among some US policy elites appears at times to emerge as a concern that even engagement with the Security Council might subordinate American action to dominance of the poorer, southern nations in the membership as a whole. This is a serious mistake; both the General Assembly and Security Council can serve or impair US interests, but they do so in profoundly different ways, and the general ineffectiveness of the General Assembly—which was, in a sense, designed to be ineffective—reflects little on the potential effectiveness of the Security Council when sitting in its role as guarantor of security.
Conclusion Cognitive dissonance regarding the nature of the international order can produce destructive reverberations throughout international politics. As some states become comparatively incapable of executing major diplomatic enterprises outside of multilateral bodies, their own resentments at this fact may surface in the form of excessive faith in the competence of the body to succeed in whatever it undertakes.34 Failures by the multilateral organ will then only reinforce a dominant actor’s tendency to see the organ as an unnecessary, even silly, sideline to the real business of international politics, further alienating the two. Neither strategy is stable, and for all the reasons that the present international institutions were built following the World War II: Without a means for dissipating political costs throughout the states favoring a costly undertaking, norms will be under-enforced and miscreants allowed to thrive. Without a reliable way to involve the wealthiest states in the affairs of the poorer, the former will grow inattentive and the latter unstable. Just as unilateralists may now overlook these instrumental values, so too have multilateralists come to adopt an excessively Kantian view of unilateral pursuits, supposing that the admixture of a single nation’s interest irrevocably taints an otherwise worthwhile undertaking. But nation-states are not mere atavisms, national interest not synonymous with hegemony, and political elites cannot be expected to move about the international plane with disregard for the demands of or possible benefits to domestic constituencies. At the same time, though marginal states may
34
Hence the prematurity of the view of many international legal scholars that humanitarian intervention is lawful only when vetted by the authorized decisionmaker. See, e.g., E. Vargas Carreño, “Humanitarian Intervention”, in International Law on the Eve of the Twenty-First Century: Views from the International Law Commission 339 (1997); P. Malanczuk, Humanitarian Intervention and the Legitimacy of the Use of Force (1993).
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hope to expand their own political resources through the legitimacy of multilateral regimes, opposition to the affairs of a dominant actor is hardly the reason such states find international procedures so attractive. The interdependency of the multilateral and the unilateral, the decision-making powers of the group and the executive efficiency of the strong, are likely more than transient phenomena. Scarce political capital ought not be wasted disparaging a potentially worthwhile arrangement. November 2003
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Is the Nature of the International Legal System Changing?—A Reply
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Is the Nature of the International Legal System Changing?—A Reply Hélène Ruiz Fabri*
“Bad idea” was the comment made by the US Ambassador to UNESCO on the decision to give its Director General a mandate to prepare a draft convention on “cultural diversity” to be adopted, at best, at UNESCO’s 33rd General Conference in 2005. This convention would aim to safeguard the right of States to take measures to preserve and promote the diversity of cultural expressions and, through it, cultural diversity itself in the face of mounting economic globalization and constant pressure to liberalize trade in the realm of culture. The United States not only does not want a text that would impede a trade liberalization process which, it believes, operates essentially in its favour, but also considers that UNESCO is stepping outside its usual sphere of activity by becoming involved in trade.1 Since it was unable to block the mandate, which was given just as it was rejoining the organization, it seems likely that, failing a quick volte-face, the United States will do all it can to oppose the adoption of a text or delay it for as long as possible and/or empty it of all effective content and/or dissuade as many countries as possible from ratifying it. At the same time, it will pursue its efforts to negotiate bilateral or plurilateral trade liberalization agreements covering cultural and, in particular, audiovisual goods and services, thereby creating a fait accompli. This example illustrates one of the elements suggested by Karl Zemanek as a means of characterizing the “imperial” tendency of the United States. Further examples of
* Professor at the University of Paris I—Panthéon Sorbonne, Member of the Institut universitaire de France. 1
I. Bernier/H. Ruiz Fabri, “Evaluation of the Legal Feasibility of an International Instrument Governing Cultural Diversity”, Report for the Groupe de travail franco-québécois sur la diversité culturelle, Bibliothèque nationale du Québec (2002), 50 and available at http:// www.mcc.gouv.qc.ca/international/diversite-culturelle/106145_faisabilite.pdf. It should be noted that this is not, in fact, the first occasion on which UNESCO has had to deal with trade. The Agreement for facilitating the international circulation of visual and auditory materials of an educational, scientific and cultural character, concluded in Beirut in 1948, and the Agreement on the importation of educational, scientific and cultural materials, reached in Florence in 1950, are obvious examples to the contrary. Moreover, in order to facilitate US accession to the Florence agreement, a protocol was added to allow the US to enter a “reservation” in the form of a special safeguard mechanism.
Austrian Review of International and European Law 8: 179-186, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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this type come readily to mind. Most of them are hardly surprising if one bears in mind that “sovereign equality, while it is a postulate of the existing international legal order, always had to be squared with the factual inequality of States in the real world”.2 However, if the situation were to be viewed from this standpoint alone, it would have to be acknowledged that the United States is far from being the only country to use its power to loosen the grip of the legal constraints upon it or to free itself of them entirely in order to further its own interests. Nevertheless, it cannot be enough merely to make this observation when one of the actors is not only so powerful that it can simultaneously flout most of the rules of the game but is also making a doctrine out of it, a doctrine which it has the means to put into effect. The US National Security Strategy makes it clear that what it calls “a distinctly American internationalism”3 is ultimately not based on equal partnership but on the US prerogative “to act apart”4 when national interests so require. What seems new about this position is not the mere fact of US hegemony in military and other affairs but the conversion of this fact into a normative principle for conducting international relations, which could be called a “contingency-based approach”. Defining and assessing the effects of such a doctrine and its implementation on the international legal system is clearly becoming a challenge, especially as in the background there lurks the emerging debate on the nature of what is rapidly coming to be known as global governance. Indeed, insofar as it is leading, at the very least, to double standards affecting, first and foremost, the cardinal principle of sovereign equality, the new doctrine seems capable of shaking the very foundations of the international legal system. However, perhaps this American “imperial” tendency is particularly visible because not only the international legal system but also our perception of it are in the process of changing, indeed may already have changed. Thus, it is merely a matter of proposing certain elements with a view to refining the terms of reference for characterizing a tendency as “imperial”. The claim of double standards is being voiced within the context of a legal system that seems bent on rejecting it, as became apparent when the developing countries claimed a generalized double standard to compensate for their under-development. This rejection reflects a certain understanding of the principle of sovereign equality which is producing a steadily expanding range of effects as international law becomes increasingly institutionalized and universalized. Within this context, it is particularly difficult, since generally considered unlawful, to lay down differential rules, i.e. to
2
K. Zemanek, “Is the Nature of the International Legal System Changing?”, 8 ARIEL 3, 4 (2003).
3
The National Security Strategy of the United States of America, September 2002, Section 1, at 1.
4
Ibid., Section 9, at 31.
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legalize the unequal factual distribution of power. This rejection of differentiation extends upstream beyond the legal instruments to the negotiating stage, where one can observe an unwillingness to allow the negotiations to be monopolized by the States which are the most directly affected and/or the most powerful, as evidenced by the crises recently undergone by the WTO. Nevertheless, it is also apparent that the complaint of double standards levelled against the United States is related with the expansion of international law. Since “the possibilities for keeping inequalities ‘outside the law’” have been reduced, the United States has been asking for a legalization of inequalities. “Where it could not secure the legalization of inequalities, it opted for unequal legalization—other States became subject to new rules while the US did not”5. Moreover, this is not the only aspect. Attention has also been drawn to the extensive use of reservations by the United States to minimize its commitments, to its tendency to subordinate the fulfilment of its international obligations to the need to respect its national constitution, to its tendency to apply international law selectively at the domestic level since it can be more easily invoked against foreigners than against Americans, to its tendency to use bilateralism to circumvent multilateralism when the latter fails to deliver the expected results, and so on.6 The resulting situation is difficult to interpret. Some may be attracted by the idea of what is sometimes called “legal realism”, as opposed to political realism which is essentially concerned with the balance of power. This approach, which views legal norms not only as regulatory instruments but also as references expressing shared ideas—which also corresponds to the “moralization” of international law—is based on the fact that “the law, even if not accompanied by sanctions, produces such coercive and legitimizing effects that no State ever boasts of having violated it”.7 The correlation between the legitimacy and international legality of a mode of behaviour or an action is becoming ever closer as international law grows denser and negotiations conducted within a framework of rules become the norm. Hence the importance of developing international law, to increase its chances of exerting an influence. This approach is consistent with attachment to the principle of sovereign equality, the point being that “it preserves the legal possibility of articulating resistance to development and changes
5
N. Krisch, “Hierarchy, Equality and US Predominance”, in M. Byers/G. Nolte (eds.), United States Hegemony and the Foundations of International Law 154 (2003).
6
These are all manifestations mentioned by Zemanek in his introductory essay but are also analysed in depth by N. Krisch (see supra note 5), M. Cosnard, “Sovereign Equality—‘The Wimbledon Sails on’”, in Byers/Nolte, supra note 5, at 118, and P. M. Dupuy, “Comment”, in ibid., at 181.
7
G. Devin/C. Gautier, “Mondialisation et droit international public: entre réalisme juridique et politique”, in J. Laroche (ed.), Mondialisation et gouvernance mondiale, P.U.F., 254 (2003).
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in international law that might be initiated by the United States”.8 Nevertheless, the analysis is not without its ambiguities. Thus, the effects of the American attitude, including in its most visible and most frequently criticized aspect, namely, unilateralism, should be assessed not in terms of an alternative between law and nonlaw but, on the contrary, in terms of a particularly sophisticated “legal policy”.9 The double standard claimed by the United States is a legal one, which is precisely why it is necessary to consider its effects on the nature of the international legal system. Admittedly, the fact that the United States tries to come to terms with international law and goes to a great deal of trouble to shape it to suit its ends suggests a move in the direction of legal realism, but it may also indicate an attempt by the United States to turn it to its advantage. Whatever importance may be attached to the defence of the principle of sovereign equality, there are clear limits to the reasoning according to which the fact that the United States meets little or no resistance to many of its claims and actions is because most other States share the same values.10 There also needs to be an effective capacity to resist. The present panorama of the international legal system is rather confused. The general concept of traditional international law, based on relations between States, makes no allowance for the diversification of the development processes, their objectives, their actors and their control mechanisms. Thus, Zemanek’s analysis focuses closely on the State or States. Admittedly, international law is still made primarily by and for States, but globalization, among other trends, has stimulated further reflection on their place and their true role. Firstly, the success of the liberal democracy model is also that of a certain conception of international law. This favours the promotion of the idea of the State governed by the rule of law and requires States to be transparent. This is relativizing the divide between internal and external at the very moment that States are particularly open to trade and communications as a result of liberalization. And this projects a paradoxical image of the State and just as paradoxical a perception of sovereignty. On the one hand, the ability of the State to control the movements that affect it is called into question. On the other hand, the promotion of the fundamental rights of the individual and the related need for the State to protect them call for a rehabilitation of the State and a revival of sovereignty, albeit with material and functional aspects not necessarily ascribed to it in the classical analysis. Secondly, States are exposed to competition from other actors. Liberalization, which encourages the privatization of a number of functions and activities, and democratization have led to non-governmental entities becoming the “partners” of
8
G. Nolte, “Conclusion”, in Byers/Nolte, supra note 6, at 503 (2003).
9
A term coined by G. de Lacharrière, La politique juridique extérieure (1983).
10
M. Cosnard, supra note 6, at 118; G. Nolte, supra note 8, at 503.
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the State in developing and implementing the rules. The diversity of the actors and the interests to be reconciled is also making it more difficult to develop new law, particularly at the multilateral level, even as an “international community”, very difficult to identify on the basis of a purely formal and institutional approach, is being widely evoked. Thirdly, although the number of normative initiatives is increasing, they are still patchy and the results are uneven. There has been and still is an inflated tendency to elaborate rules that not only concern international relations but are also intended to regulate, if not uniformly then at least consistently, issues which are now of common concern, whether because they are new and result from the spread of communications or economic and technical development, or because they have hitherto been exclusively a matter for domestic law which is no longer capable of dealing with them effectively. As these rules are being developed in different contexts, sometimes institutional, as in the case of the international organizations, but sometimes more ephemeral, as in the case of conferences or summits, and with the participation of different actors, the result has been a proliferation of “normative spaces”, a term applied to bodies of rules which, though they may never amount to more than a partial legal system, display an internal consistency, which is all the greater if their adoption is accompanied by the establishment of mechanisms for controlling their application (WTO, ECHR, etc). These control mechanisms—courts, monitoring procedures, follow-up mechanisms—have in fact become more numerous, which, incidentally, is allowing the NGOs to play a more prominent role. “Normative spaces” may overlap. They hold no monopoly in the subjects with which they deal (politics, trade, human rights, the environment, etc.). These are multifaceted and may fall within several “normative spaces” at the same time. Thus, the environment can be approached from the standpoint of human rights just as well as from that of trade, and the origin, density and objectives of the norms may vary. Culture has elements of both human rights (cultural rights, freedom of speech) and trade law (trade in cultural property and services). There is no general rule or mechanism of international law assigning a “normative space” priority or the exclusive right to regulate a particular issue or topic. Take the case of law developed within an institutional framework. We have, it is true, the principle of specialization of international organizations, but this does not take us very far since the same issue may, in its various aspects, involve different specialities. Thus, audiovisual activities may be of interest both to the WTO, as tradable services, and to UNESCO, as a means of cultural expression. Legally, neither organization can claim precedence in regulating these activities and the intervention of one does not preclude the intervention of the other, each in its own field. It may also be that commitments, rights and obligations acquired in one context are, in practice, dependent for their implementation and enforcement on those acquired in other contexts. Though there may be complementarities, there may also be conflicts, since the various “normative
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spaces” are not naturally compatible. International law, and this is one sign of its lack of unity, contains very few, if any, rules for coordinating these “normative spaces” and, a fortiori, rules for establishing a hierarchy among them. Consider the conventions. Language like that of Article 103 of the United Nations Charter is an example, but an isolated one. The technical rules codified in Article 30 of the Vienna Convention on the Law of Treaties, which reduce to the application of a chronological (Lex posterior) or logical (Lex specialis) criterion, provide only a very partial solution to the problems of articulation, even when the parties are the same. For example, if a rule of WTO law were to conflict with a provision of a multilateral environmental agreement, it would be very difficult to determine which was “special” relative to the other. The situation is even more complicated when a text appears to have solved the problem of its articulation with the existing law but does so in a contradictory fashion. Thus, the Cartagena Protocol on trade in genetically modified organisms states, in the preamble, that “this Protocol shall not be interpreted as implying a change in the rights and obligations of a Party under any existing international agreements” but adds that the recital “is not intended to subordinate this Protocol to other international agreements”. As the system now stands, one might suppose that in the event of a conflict the “normative space” best equipped to make its rulings effective, for example, because it has a judge and enforcement procedures, would prevail. Rather paradoxically, considering that we are operating within the rule of law, the logic is actually one of power relationships and the outcome has very little to do with justice. But this can also lead to legally inextricable conflicts. The fact that, in practice, such conflicts are rare may be regarded as evidence of the limits of the autonomy of the law with respect to politics. Nevertheless, it is also possible to envisage the case of a process of containment, which suggests a system of checks and balances. For example, the work of the WTO Committee on Trade and the Environment reveals an awareness that, even though technically WTO law is capable of overriding multilateral environmental agreements, that would not be desirable. The search for a counterweight is also the driving force behind the move in UNESCO to draw up a convention on cultural diversity. This situation is giving rise to misgivings about the possible ”fragmentation” of international law. The debate has been fuelled by the spread of international courts which some fear may lead to conflicts of jurisdiction and contradictory decisions or interpretations of the law. The fact is that the proliferation of rules of different origin is increasing the risk of contradictions. There can be no salvation in the idea that consistency will be ensured by the fact that the rules are made by the same States working in different forums. First of all, there is no guarantee that the action they take internationally will always be consistent and, indeed, they are quite capable of taking contradictory positions, whether simultaneously or successively. Nor is it possible to perceive States, including the United States, as a unified whole. “The
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United States is not a monolithic structure. Different branches, and different levels, of US government have different interests and act differently”.11 Moreover, States do not have the existing legal mechanisms totally under their control. The proliferation of action programmes and regulatory procedures entrusted to international bodies is encouraging a certain autonomy and creating possibilities for the development of norms which States do not necessarily want, with the participation of actors whom they do not necessarily wish to see involved. Each such programme or procedure creates a different constellation of actors and interests. If it is indeed a question of fragmentation, it is also necessary to know with what unity it should be compared and inquire whether it might not be just as appropriate to analyze the situation in terms of pluralism. However, accepting this idea of pluralism also implies acknowledging that in analysing the international legal system it will henceforth be necessary to incorporate the notion of complexity. In a polycentric legal system, whose actors have never before had to juggle simultaneously with so many rules, the definition of more precise rules on the articulation of “normative spaces” appears to offer a choice between “ordered pluralism” and “hegemonic unification”.12 The latter echoes the imperial tendency imputed to the United States, but it also transcends it if the analysis takes into account the fact that the globalization process and its impersonal, globally effective economic and cultural logic are equally binding on all States, including the most powerful. Indeed, this logic might even be regarded as constituting the Empire, a “biopolitical” or “structural” Empire.13 Each “normative space” could then be viewed as a place or opportunity for “counterhegemonic strategies”, the cumulation of which would reveal “new or emergent ideas about ‘international community’”.14 This would shift the emphasis away from a law on globalization towards a globalized law, if one accepts the conceptual posture that consists in defining the latter as implying an idea of material justice, defence of fundamental rights and common management of common property, while regarding the former as merely an expression of neo-liberal concepts in legal terms. We also face the challenge of the articulation of international and domestic law, at a time when the former is invading the latter but the development of regional integration law, such as that of the European Union, is also proceeding apace. Although it is still difficult to determine to what extent and how the nature of the international legal system has changed, it is nevertheless possible to see how the debate has evolved. The talk is now of the possibility of an international community
11
V. Lowe, “Comment”, in Byers/Nolte, supra note 5, at 477.
12
See M. Delmas-Marty, Trois défis pour un droit mondial (1998).
13
M. Koskenniemi, “Comment” in Byers/Nolte, supra note 5, at 98.
14
Ibid., at 99.
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that is a human community.15 Admittedly, many conditions will have to be met and any opposing imperial tendency overcome. However, though words are clearly not the same as deeds, that is no reason for not saying what one believes to be possible. February 2004
15
E. Jouannet, “L’idée de communauté humaine à la croisée de la communauté des Etats et de la communauté mondiale”, 47 Archives de philosophie du droit 191-232 (2003).
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Is the International Legal Order in Jeopardy? Eric Suy*
Hegemonic Powers have a tendency to take the law into their own hands, and to come up with arguments justifying their military interventions either before or after these took place. The sometimes painful efforts to justify forcible interventions indicate the awareness of states that that international law contains a peremptory norm on the illegality of the use of force in interstate relations (Article 2(4) of the United Nations Charter). States are also aware of the two exceptions to the rule i.e. the right of selfdefence (Article 51) and the possible action by the Security Council under chapter VII of the Charter. In the practice of the Security Council, this action is, in fact, limited to authorising States, acting individually or collectively, to take ‘all necessary measures’ or use force when the Council has determined the existence of the threat to the peace, a breach of the peace or an act of aggression. In launching a military intervention against Serbia-Montenegro on 24 March 1999, the United States of America, in coalition with some NATO allies, declared that this action was taken “justified and necessary to stop the violence (by Serb forces in and around Kosovo) and prevent an even greater humanitarian disaster”.1 In a statement on the same day by the UK Ambassador Sir Jeremy Greenstock the argument of humanitarian necessity is clearly relied upon. Sir Jeremy said the following: “The action being taken is legal. It is justified as an exceptional measure to prevent an overwhelming humanitarian catastrophe. Under present circumstances in Kosovo, there is convincing evidence that such a catastrophe is imminent. Every means short of force has been tried to avert this situation. In these circumstances, and as an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention is legally justifiable”.2 In concluding a debate in the House of Commons, the UK Secretary of State for Defence, Mr. George Robertson, similarly stated: “The use of force in such circumstances can be justified as an exceptional measure in support of purposes laid down by the UN Security Council, but without the Council’s
*
Eric Suy is Professor Emeritus at the Catholic University of Leuven, Belgium. From 1974 until 1987 he was Under-Secretary-General of the United Nations, first as The Legal Counsel, and from 1983 as Director-General of the United Nations Office at Geneva, Switzerland.
1
Statement by US Ambassador Peter Burleigh to the UN Security Council, UN Doc. S/ PV.3988 (1999).
2
UN Doc. S/PV.3988 (1999), quoted in 70 BYIL 581 (1999).
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express authorisation, when that is the only means to avert an immediate and overwhelming humanitarian catastrophe”. 3 In other words, armed military intervention to avert an immediate humanitarian catastrophe should be added to the existing above mentioned exceptions to the use of force. The use of the expression ‘humanitarian necessity’ further indicates a tendency to introduce some state of necessity as a circumstance excluding the illegality of the use of force. In 1999, when several member states of NATO attacked Serbia-Montenegro, they did not follow the path leading to an authorization by the Securiy Council of the use of force. This side-stepping of the Council was explained by the fact that the Russian Federation would anyhow have refused to give the green light in using its veto. Furthermore, a permission given to NATO would have to be given under Chapter VIII of the UN Charter dealing with Regional Organizations and Arrangements. Article 54 of the Charter provides for action by such regional entities. It expressly stipulates that such actions cannot take place without the express fiat of the Council. Hence, and leaving the argument of the humanitarian necessity out of consideration for a moment, the forcible intervention of NATO members in Kosovo was illegal. NATO, however, considers that it is not a regional organization or arrangement under Chapter VIII of the Charter. If adopted by the international community, this position would mean a serious setback for the rule of Article 2(4), on the non use of force and its two exceptions. This is particularly true at a time when NATO has elaborated new mandates for itself wherever in the world as demonstrated through its presence and involvement in Afghanistan and the fact that it is getting prepared to take an active part in Iraq. States not only try to have recourse to the panoply of legal arguments provided by international law in order to justify their forcible action. They generally follow the procedural steps open to them in accordance with the UN Charter by trying to have their planned or actual actions approved by the Security Council in accordance with Chapter VII of the Charter. This procedure is followed even if the States could rely upon the argument of self defence in accordance with Article 51 of the Charter. Thus, after the flagrant act of agression by Iraq against Kowait in August 1990, States could have used force immediately in the exercise of individual or collective self defence. Yet, they preferred to play it by the rules of the system of collective secutity. The Security Council was seized and, determining that there was an act of agression, it immediately imposed ‘sanctions’ on Iraq. The Council eventually adopted Resolution 678 (1990) of 30 November 1990 authorizing member States to “use all necessary measures” after the expiry of an ultimatum. Somewhere between March and August 2002, the United States had decided to intervene militarily against the regime of Saddam Hussein. However, on September
3
Quoted in ibid., at 582.
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12, 2002, in his speech before the United Nations General Assembly, President George W. Bush announced that he would seek the Security Council’s approval for a military intervention. The Security Council should prove that it is not “irrelevant”. The President took this step reluctantly, “at least for the sake of appearances”4 and upon insistent advise of some of his friends in the United States and from abroad. The President probably hoped to win the support of the Security Council in the same way as his father, in a completely different situation though, had obtained the Council’s approval to start a military intervention in Resolution 678 (1990). During the next six months, between September 2002 and March 2003, the world watched and witnessed the diplomatic negotiations in the Security Council, whereas, in the United States, a constant and intense propaganda campaign was unleashed to convince public opinion and Congress that an armed intervention was justified. The centerpiece of this propaganda was the imminent threat of the wapons of mass destruction (WMD) in the hands of Saddam Hussein who had used them against other countries (against Iran during the Irak-Iran war between 1980 and 1988, and during the first Gulf War in 1990-1991 when Scud missiles were frired against Israel). Saddam had used chemical weapons even against his own people in Halabja (March 1988). These weapons could be readied for launching within forty-five minutes, and were a direct threat to the security of the United States. The propaganda was so overwhelming that two thirds of the United States population was convinced of the imminent danger from the regime in Iraq, which was even said to be involved in the terrorist attacks of 9/11 and, hence, must have links with the Al Qaeda movement. When Bagdad agreed to readmit the United Nations inspectors of UNMOVIC5 under Dr. Hans Blix and of the IAEA under Mohammed ElBaradei, the United States was not at all impressed. Iraq had been cheating and lying to the inspectors in the past, and it would continue to do so. Meanwhile, and after the adoption by the Security Council of Resolution 1441 (2002), efforts to obtain the formal green light for the planned military intervention through a new resolution continued at the highest level. Never in the history of the United Nations did Ministers of Foreign Affairs attend the Council’s sessions in person on three occasions in such a short span and on one single issue. One of the culminating and dramatic moments of this episode was the intervention by the United States Secretary of State, Colin Powell, on 5 February 2003. All propaganda stops were pulled out: he showed a vowel that could contain anthrax, aerial pictures were projected of so-called chemical weapons being moved around, tape recordings of conversations between military commanders about hiding of WMD were played, the Secretary of
4
R. Kagan, Of Paradise and Power 122 (2004).
5
United Nations Monitoring, Verification and Inspection Commission, established by Resolution 1284 (1999).
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State mentioned the presence of aluminum tubes to be used in the process of enriching uranium, and he finally revealed that Iraq had purchased uranium from an African country. It was later proven that all these elements were untrue, to say the least. In the end, there appeared to be little hope for the Security Council endorsing a military action by the United States and the United Kingdom. France had announced that it was against the unilateral action outside the Council, and, as a Permanent Member, it could use its veto. That would, however, not have been necessary since the United States diplomacy did not succeed in securing the necessary approval of an authorizing resolution by nine members of the Security Council. The United States and the United Kingdom then relied upon Council Resolution 1441 (2002) and the reference to possible ‘grave consequences’ in order to justify their military intervention. This again provides an indication that the Security Council is relevant. Kosovo in 1999 and Iraq in 2003 are the two outstanding examples where the Security Council was bypassed, but they are not the only ones. The United States, under the Clinton administration, sent troops to Haïti in 1994, and in 1998 it bombarded Iraq in Operation Desert Fox. Interventions in Panama and in Grenada also took place without a recourse to the Security Council. This reflects the permanent attitude of the United States, under whatever administration and at whatever epoch, to act with the Security Council where and when possible, but to bypass the Council when necessary i.e. when American interests are involved. President George W. Bush recently even went a step further when, in his State of the Union speech of 20 January 2004 he stated: “America will never seek a permission slip to defend the security of our country”. This brings us to the core of the question concerning the validity and the relevance of public international law in this new era after the end of the cold war and in the aftermath of 9/11. It is my firm conviction that public international law, as codified during the last sixty years, still reflects the practice and the opinio iuris of the international community. Recent events, how dramatic and shocking they may be, do not affect the traditional rules of international cooperation. The provisions of the Declaration of Principles of International Law concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations remain valid, although this document reflects, to a large extent, international law as it existed during the cold war. The same holds good for the principles enshrined in the 1975 Helsinki Declaration.These documents may perhaps reflect soft international law, although the 1970 Declaration is to be considered as an authentic interpretation of the Principles of the United Nations Charter. The Helsinki Declaration and the documents adopted at the subsequent follow-up conferences still reflect the basic principles and values as between the extended memberschip of the Organization on Security and Cooperation in Europe. Likewise, the international law concerning fundamental interstate relations such as: the law on diplomatic and consular relations, the law of the sea, the law of treaties, etc. do not seem to be affected by the recent
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events. One could, however, imagine situations where those rules may be violated, denunciated, suspended or otherwise terminated. But existing international law is perfectly capable of dealing with those situations on the basis of existing principles of treaty law, the law of state responsibility, or other general principles. It seems, therefore, that the ongoing debate on the changing nature of the international legal order can be summarized under two major items i.e. the role of the Security Council and the international law on the use of force. In subscribing to the Charter of the United Nations, Member States recognized, in Article 24, that the Security Council, acting under Chapter VII, acts on behalf of all of them. The Member States also agreed in Article 25 to carry out decisions of the Security Council. Both the action by the Council and its decisions imply that these have been validly taken in accordance with the Charter. The Charter contains a few clear provisions on procedural requirements that must be fulfilled in order for the action and the decisions to be valid. One of these requirements is that actions and decisions on substantive issues require the cooperation of at least nine members of the Council, including the five permanent members. The possibility of a veto by a permanent member is, therefore, a constitutionally guaranteed right. The immediate effect of the absence of the required votes is that there is no decision of or no action by the Council: the condition for their obligatory character under Articles 24 and 25 is not fulfilled. The rejection by the Security Council of a draft resolution purporting to determine the existence of a threat to the peace, a breach of the peace or an act of agression, or to authorize ‘action’, is a purely political decision which has no bearing on the qualification of an action by a Member State as wrongful under international law. It is not because of a veto by a permanent member or because of the absence of a majority of nine votes that the incriminating act becomes legal. And it is not because the Security Council fails to authorize a forcible intervention by one or more Member States that those States may proceed to a planned intervention for which they had requested the permission of the Security Council. The legal order of the United Nations Charter, which has changed the Westphalian system of international relations, does not allow States to take the law into their own hands. Any tendency to change this Charter regime in favor of the recognition of a unilateral right to use force under the so-called doctrine of preventive or pre-emptive intervention, would mean a return to pre-existing anarchy and is inadmissible. During the forty-five years from the entry into force of the Charter, from 1945 until August 1990 (the aggression against Kuwait), the Security Council adopted six hundred and sixty resolutions Only a few of these resolutions were adopted under Chapter VII of the Charter. During the period between August 1990 and March 2004, i.e. during a span of less than 14 years, the Security Council adopted eight hundred and sixty-nine resolutions. These eloquent figures show two important new aspects. Firstly, States submit more often situations to the Council. This seems to indicate a
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growing confidence in the importance of and the trust in the Council. Secondly, more and more resolutions are adopted by the Council “acting under Chapter VII of the Charter”. Whether or not these tendencies could be explained by the end of the cold war is not important. The fact of the matter is a growing trust by Member States in the role of the Security Council. Thirdly, the increased tendency to act under Chapter VII clearly indicates that the Permanent Members live up to their responsabilities for the maintenance of international peace and security. The reference to Chapter VII implies that the Council, acting under Article 39, determines that a given situation is a threat to the peace, a breach of the peace or an act of agression, and that the Permanent Members hold a unanimous view on this. Thus, the Council contributes to the development of international law in establishing criteria on the basis of which situations can be determined as dangerous. Serious violations of human rights, acts of terrorism, purely internal matters such as monetary disturbances due to the socalled ‘pyramid games’ in Albania, internal upheavals due to ethnic violence or to armed rebellion against a democratically elected government have been qualified as threats to the peace in a given region. In all these and other situations, the Council does, of course, take into consideration other aggravating circumstances with an international effect. One will recall that the United Kingdom did emphasize humanitarian necessity as the major argument justifying its participation in the military intervention against Iraq on 13 March 2003. To what extend does international law recognize the legality of the use of force for humanitarian purposes? Is armed humanitarian intervention another exception to the outlawing of the use of armed force? An inquiry into the official statements and declarations by the intervening states shows that humanitarian reasons are not given as the major ground for a unilateral recourse to force. Governments seem to be very aware of the narrow flexibility of the argument of humanitarian necessity, whereas the concept of self-defensce does not seem to create a major obstacle when it comes to arguing the admissibility of the use of force. After all, self-defensce is a recognized exception to the rule of the non use of force. According to modern scholars it is, therefore, doubtful if international law permits the use of force for humanitarian reasons, alhough clear statements are often lacking and surrounded by cautious wording that could be stretched to permit exceptions in clearly identified circumstances. The principle of the non-use of force by states, as embodied in Article 2(4), of the UN Charter, and confirmed by subsequent interpretative declarations adopted by the General Assembly and by regional organizations, has to prevail. Hence, every attempt to invoke exceptions must be viewed with suspicion and dealt with in a most cautious way. This is all the more necessary in the post cold war era where a single remaining superpower is predominant. State practice in the 19th and 20th centuries has seen too many instances where the argument of humanitarian needs has been abused to justify an intervention in the internal affairs of a state or to overthrow a regime. It is therefore
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a very risky enterprise to elaborate circumstances justifying unilateral armed action by a state or a group of states for humanitarian reasons. Cases in which intervention takes place on the basis of a genuine invitation or of a treaty provision have to be distinguished from those where no such legal justification is crearly present. Armed intervention may perhaps be justified for the protection of nationals who are in immediate danger in a country where the authorities are either unable or unwilling to provide the necessary protection. This was certainly the case in Stanleyville (1964) and Entebbe (1981). In those instances, the rule of proportionality is applicable: the amount of force to be used will depend upon the humanitarian goal to be achieved and, of course, upon the degree of resistance to be expected. Closely linked to the rule of proportionality is the requirement that the use of force must be limited ratione temporis and should not extend beyond the time strictly necessary for the achievement of the humanitarian goal. Finally, the military intervention should have no other purpose and objective than the safety of human beings, without intervening or appearing to intervene in the internal affairs of the State, or in violation of its sovereignty and political independence. Turning to the possibility of armed intervention for the protection of nationals of the state where the intervention takes place brings us in a slightly different situation because of the absence of the nationality link between the individuals and the intervening state. This is the area where international law seems to be in full development. Whereas, in the past, the criterion for humanitarian intervention was the nationality link, nowadays we are dealing with systematic, grave, massive and persistent violations of human rights affecting especially the own nationals. The novelty here seems to be that a state or a group of states does act unilaterally to protect the universal values of human rights. What is at stake in the modern discussion about humanitarian intervention is the question whether the massive violation of fundamental human rights by the state or by local authorities or even by de facto rulers or warlords justifies an armed intervention into the territory of the state. In its judgement of 27 June 1986 in the Case concerning Military and Paramilitary Activities in Nicaragua, the International Court of Justice dealt with the question of the use of force to enforce the respect for human rights. The Court said that “[i]n any event, while the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect”.6 In 1989, the Institut de Droit International adopted a resolution on “The Protection of Human Rights and the Principle of Non-intervention in the Internal Affairs of States”. The Institut, first of all, determines that “frequent gross violations of human rights, including those affecting ethnic, religious and
6
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, 1986 ICJ Rep. 14, 134, para. 268.
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linguistic minorities, cause legitimate and increasing outrage to public opinion and impel many states and international organisations to have recourse to various measures to ensure that human rights are respected”. It draws the conclusion “that human rights, having been given international protection, are no longer matters essentially within the domestic jurisdiction of states”. This is a correct statement, and it would be wrong to conclude that those violations entitle states to practice humanitarian intervention. The purpose of the doctrinal exercise by the Institut was to “define more precisely the conditions and limitations imposed by international law on the measures that may be taken by states and international organisations in response to violations of human rights”. The Institut then finds that “states, acting individually or collectively, are entitled to take diplomatic, economic and other measures towards any other state which has violated the obligation set forth in Article 1, provided such measures are permitted under international law and do not involve the use of armed force in violation of the Charter of the United Nations”7. This text is very clear and does not, in any way, support the position that international law now recognises that humanitarian intervention, conceived and interpreted as a unilateral use of force to enforce the protection of human rights, is legitimate. A final word on “preventive” war. Taking military action before a decision to strike has been taken by a potentially hostile power, and even well before, implies the existence of a state of necessity. The United Kingdom referred to a ‘humanitarian necessity’, but it also referred to the imminent threat of the WMD which could be readied within forty-five minutes. The United States propaganda between March 2002 and March 2003 focused on the imminent threat of an attack against the United States. Necessity is a well known circumstance precluding the wrongfulness of a state act. The articles on State Responsibility for Internationally Wrongful Acts, adopted by the United Nations General Assembly in Resolution A/Res/56/83, refer to necessity as a circumstance which “may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: (a) is the only way for the State to safeguard an essential interest against a grave and imminent peril”. But the state may not invoke the necessity if “the State has contributed to the situation of necessity”. This may certainly be the case when a state is providing false data concerning the grave and imminent peril from untraceable WMD. Furthermore, admitting the legitimacy of preventive or preemptive military interventions in international relations will reverse and undo the achievements of internatonal law during the era of the United Nations. It would open the door to anarchy in international relations. Some aspects of international law and
7
Annuaire de l’Institut de Droit International, Session de Saint-Jacques-de-Compostelle, Volume 63-II, 339-345 (1989).
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of the functioning of the Security Council, may be subject to revision. This, however, implies the cooperation of all states, and can definitely not be achieved by a stroke of the pen by one of them, almighty it may be. March 2004
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A New World Order Dominated by a Hegemon?
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A New World Order Dominated by a Hegemon? Christian Tomuschat*
I.
A New Factual Situation
It is a truism to state that since the demise of the socialist systems in Europe the United States (henceforth: US) has become the most powerful actor in world politics. Russia is far from wielding the strength which had been enjoyed for many decades by its predecessor, the Soviet Union. Still today, China cannot be regarded as a competitor that could enter into an open rivalry with the US although its influence, in economic, military, and political terms, is gradually growing and may one day—in a few years time—cast a long shadow over the US. This new situation, which can be traced back to the dramatic events of the years 1989 and 1990, has engendered a kind of euphoria in some political circles of the US. A perfect reflection of this state of mind can be found in the little booklet by Robert Kagan on “Paradise and Power”,1 which views naked economic and military power as the only defining and truly effective factors in world politics while discarding European conceptions of law and morality as the desperate attempt of an aging continent to astutely maintain and secure its place in world affairs. This state of mind, which conceives of the US as the master of the world, has survived with great difficulties only the aftermath of the invasion of Iraq. The troubles which the American troops—and to a lesser extent their British comrades—deployed in Iraq have encountered and are still encountering have made clear that military power has its definite limitations. An enemy’s territory may be invaded, foreign armies may be crushed by a military force with superior technological capabilities, but the hearts and minds of another people are not won over as easily by an occupation force. In that regard, the available methods are limited. A country which, like the US, is in principle committed to democracy and human rights cannot rely on brutal methods in combating its political enemies among those who it has promised to free from the yoke of an evil dictatorship. What was just a fact of life during the early
* Christian Tomuschat, Professor of Constitutional and International Law, Faculty of Law, Humboldt University Berlin; Member, Institut de droit international. 1
R. Kagan, Of Paradise and Power. America and Europe in the New World Order (2003).
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history of mankind, what was not an exceptional occurrence during the struggle of the European nations for the enlargement of their colonial empires, and what regularly accompanied the German invasion of the countries of eastern Europe during World War II, namely numerous atrocities, including genocide, cannot be any longer an element of an openly declared public policy on the part of a responsible government. To be sure, during the last decades the world has witnessed genocide in Cambodia, in Bosnia-Herzegovina, in Rwanda and, more recently, in the eastern provinces of the Democratic Republic of the Congo. But these genocidal convulsions occurred in countries where the rule of law had never held sway. The government of a civilized country, on the other hand, has no choice. For it, the only effective way to ensure peace and security within a community of human beings—be it within its own boundaries or outside its territory when it acts as an occupation force—is to seek an arrangement with the people concerned, accommodating their needs and thereby trying to obtain their approval.2 It is significant that in his speech on the occasion of the opening of the 58th session of the General Assembly on 23 September 2003, President Bush firmly renewed the commitment of his country to the Charter of the United Nations without any reservations. He said: As an original signer of the UN Charter, the US of America is committed to the United Nations. And we show that commitment by working to fulfill the UN’s stated purposes, and give meaning to its ideals.
Thus, one may conclude that he has distanced himself from earlier utterances in the automn of 2002 when during the protracted negotiating process for a new resolution on Iraq he claimed that the Security Council, by not adopting a draft resolution tabled by the US within a time frame set by its sponsor, would be making itself “irrelevant”.3 Yet, the relevancy of the Security Council became all too obvious when after the invasion of Iraq the United Kingdom and the US went back to the Security Council in order to buttress the legitimacy of their presence on Iraqui soil, requesting that their aim of rebuilding Iraq according to a different model of governance be approved by that UN body.4 Without such a resolution, the only foundation of the occupation forces would have been naked force—which is not enough for a constructive role in such a challenging undertaking.
2
Of course, such political moves must be accompanied by efforts to secure law and order.
3
Speech of 3 October 2002, available at http://www.usembassy-israel.org.il/publish/peace/ archives/2002/october/100402.html.
4
The Security Council responded by adopting first Res. 1483 on 22 May 2003 and then Res. 1511 on 16 October 2003.
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Lastly, it should also be taken into account that, in particular, the power of the US is dependent on a variety of factors many of which are beyond direct control of Washington. To a considerable degree, the US derives its economic strength from the unrestricted availability of energy, most of which is shipped to its shores from overseas in the form of oil. Nobody can be absolutely sure that the flow of oil will continue unimpeded year by year. Currently, the giant seems to be firmly positioned. But his feet might be easily crumbling one day—an observation which also applies to the European nations.
II. Have the New Facts Crystallized as Custom? A new factual situation, however, does not automatically translate into into a changed legal regime. It is true that international law must to some extent be flexible in order to remain the normative parameter which guides the actual conduct of nations in their interrelationships. But international law is more than a photographical reflection of the prevailing configuration of power in the world. In this regard, it appears useful to look back to 1945. When the Axis powers had been defeated, the victorious alliance (“The Big Four”) did not establish an elitist world government. Deliberately, they abstained from claiming all authority in world affairs for themselves, confining themselves instead to setting up the Security Council as the body through which they could assume a predominant function in all matters pertaining to international peace and security. In particular, they vowed to respect all other States as sovereign and equal, with the exception of the former enemy States which, for a certain period, remained under a special regime (UN Charter, Articles 53, 107). To date, no formal texts have been drawn up that would consecrate a hegemonic status of the US. As a permanent member of the Security Council, the US is of course superior to the other nations that do not hold a permanent seat. But in that capacity, it is called upon to discharge, as a trustee of the international community, a collective responsibility together with the other members of the Council. The UN Charter does not confer upon it an individualistic privilege. No new instruments have emerged since 1990 that might have increased the legal position of the US to that of an actor not bound by the ordinary rules as they also apply to every other nation. Article 2 (1) of the UN Charter remains unchallenged as the principle that determines the basic structure of the international community. It is common knowledge that the US has in recent years shown a tendency not to accept international regimes which most of the other members of the international community regard as essential for peaceful coordination of national sovereignties and even for the survival of mankind. Concerning the Rome Statute of the International
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Criminal Court,5 it has gone so far as to take active measures in order to dissuade other States from proceeding to ratification. Other examples of non-participation frequently cited are the Ottawa Convention on Land Mines6 and the Kyoto Protocol.7 But one should never overlook the distinction between the law as it stands and new instruments of international legislation which every State, by virtue of its sovereignty, is free to accept or to reject. In instances of major world order reform projects, nonparticipation of a major power may be bitter for those governments which perceive the needs of the international community in a more enlightened manner. However, no State is under a legal obligation to act wisely and prudently, no matter how regrettable uncooperative conduct on its part may be. Law-making in the international community remains a slow and cumbersome process outside of the areas where the Security Council may make unilateral determinations not requiring the consent of each and every member of the international community.8 The fact that the US is intent on remaining aloof from the International Criminal Court certainly does not testify to the maturity of its world order conceptions. But neither can this negative attitude as such be blamed as unlawful, nor does it show that the legal premises of the current world order have changed. As far as international customary law is concerned, it would seem appropriate to consider some of the relevant rules one by one in order to obtain tentative answers as to a legally acknowledged hegemonic role of the US. One of the main bulwarks that protect sovereign equality of States is the principle of non-use of force. It stands to reason that without that principle, small States would be structurally threatened. Sovereignty would only be a hollow word for them. The international community would be made up of different classes of States, the “lower” ones of which having no other recourse than to seek refuge under the protective umbrella of one of the super powers—as during the time of the Cold War. In this regard, the principle of non-use of force is of strategically defining importance. Thus, it is certainly not by accident that voices have emerged in the US claiming that the ban on the use of force has become obsolete. In the short run, the US might derive
5
Signed in Rome on 17 July 1998, reprinted in 37 ILM 999 (1998).
6
Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997, reprinted in 36 ILM 1507 (1997).
7
Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 December 1997, 37 ILM 32 (1998).
8
By Res. 1373, 28 September 2001, the Security Council brought into force a major part of the International Convention for the Suppression of the Financing of Terrorism (adopted by General Assembly Res. 54/109, 9 December 1999).
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most benefit from the fall of that ban. But the thesis propounded by Michael Glennon9 has extremely weak foundations. Third World countries, in particular, rightly view Article 2 (4) of the UN Charter as one of the great achievements of the current world order which they are not prepared to abandon lightly. In many official statements, they have expressed their attachment to the original features of the legal regime ushered in by the UN Charter in 1945. Although the doctrine of customary law may have undergone many twists, one thing is certain: the acts and activities of one single country are not able to topple an established rule of international law against the resistance of the major part of the international community. Similar considerations apply to the official policy of the US on self-defence as set out in the National Security Strategy of 17 September 2002.10 Quite naturally, since the invasion of Iraq attention has been focused on the claim enunciated in that document to be entitled to preemptive self-defence, irrespective of any determinations by the Security Council in that regard. As the invasion of Iraq has shown, the US interprets preemptive self-defence in an extremely wide sense as providing the right to take military action against a foreign State if that State, as a rival in world politics, constitutes a threat to US might that might materialize one far-away day in the future. The actual circumstances of the Iraq crisis have shown that this doctrine is fraught with deadly risks. Reliance was placed on intelligence reports that were simply false, containing trumped-up or overtly manipulated or fragmentary information. To date, the true motives of the invasion are still surrounded by the most complete mystery. By no means has the international community accepted the gist of the US position. Security Council resolutions 1483 and 1511 serve to accommodate the needs of the Iraqi people after the fact: Since the invasion did take place, the best had to be made of the chaotic situation brought about by the armed conflict and the fall of the dictatorship, while the debate on the lawfulness of the invasions still remains open. The world is prepared, however, carefully to listen to concerns that the principle of self-defence as currently interpreted does not adequately deal with the issue of terrorism. If a country provides shelter and refuge and even training camps to terrorists on its soil, it seems to forfeit the protection of the ban on the use of force even if the threat emerging from such groups may not be considered as actual or imminent. By the resolutions it adopted after 11 September 2001 (resolutions 1368 and 1373 (2001)), the Security Council has made clear that it does not condone support given to terrorists and that it even accepts unilateral military actions to eradicate such hotbeds of deadly threats. In the case of weapons of mass-destruction, the position is much more delicate since the permanent members of the Security Council all have in their possession
9
M. Glennon, “Why the Security Council Failed”, 82 For. Aff. 16 (May/June 2003, no. 3).
10
Available at http://www.whitehouse.gov/nsc/nss.pdf, at 15.
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such weapons. To say that a country constitutes a threat to international peace and security on account of its stock of arms means, therefore, that the principle of sovereign equality is departed from: while the traditional nuclear powers are considered as being reliable and trustworthy, any new possessor of such weapons is placed under suspicion. In that regard, the legal regime may be changing, but not in a hegemonic direction. Since the adoption of the Treaty on the Non-Proliferation of Nuclear Weapons of 1 July 1968,11 the international community has taken the view that the circle of States having nuclear arms at their disposal should be definitely closed and should not be open to enlargement. Coming to general international law, one finds no clues that the US might enjoy a privileged position. Before the International Court of Justice, in particular, the US is subject exactly to the same rules and principles as any other State. Currently, in the Avena proceeding, it is made accontable for alleged failures to heed the Vienna Consular Convention. In that proceeding, all its factual might does not relieve it from charges brought against it by Mexico pursuant to the ordinary rules applicable before the Court. Summarizing the preceding considerations, one may say that many rules of traditional international law have come under pressure. The giant, the US, wishes to get rid of, or soften, many constraints which he does not like. Obviously, he has much better chances to shape international law acording to his wishes than an ‘ordinary’ State. He can inaugurate a new practice, trying to convert that practice from pure fact into normative rule. But it remains that in these endeavours he cannot succeed unilaterally. Invariably, he depends on the consent given explicitly or implicitly by the international community. Regarding this basic requirement of the rules on legal sources, no change—which would be a dramatic one—has come about.
III. The Divergence Even if the US position does not seem to have emancipated itself from the constraints imposed by the international community on every State, the debate is not closed. The divide between the US on the one hand and the European nations, on the other, can also be analyzed in terms of a dispute over the nature of international law. What is international law? Is it a set of pre-established rules, subject, of course, to concretization and particularization in each instance of actual application, or a general fund of values from which solutions may be derived to deal with newly emerging problems? It would appear that the official US tendency is to follow the latter approach. There can be no doubt that international law is indeed based on certain values which are
11
729 UNTS 161.
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common to the international community. Thus, human rights is today such a commonly shared value which demands to be taken into consideration in any processes of balancing between diverging principles of the international legal order. Thus, the Kosovo intervention could be based only on the concept of humanitarian intervention. National sovereignty and territorial integrity had to be weighed against the protection of human beings against genocide and ethnic cleansing, and NATO States rightly believed that the discrepancy between the two elements had become of such magnitude that the relevant human rights concerns required prevalence. In other words, it is not alien to international law directly to resort to the basic principles of the international legal order. However, two caveats should be taken into account. First, only truly common interests of the international community may justify a decision or measure which interferes with the rights of other States. Quite easily, national interests can be presented as a reflection of a common goal of the international community. The principles and rules of the positive international legal order, as reflected in Article 38 of the ICJ Statute, have precisely as their aim to coordinate the diverging convictions and value judgments as they are held in different parts of the world. If and when consensus has been reached on the text of an international instrument, there is a certain guarantee that indeed that instrument is agreeable to all of its parties. Customary law, on the other hand, requires opinio iuris which can never be the opinio of just one actor. The second caveat relates to procedure. What in many instances the US wishes to achieve is freedom to act unilaterally. No one ignores that procedures may be painfully lengthy and that they can also be used to frustrate an intended action. Notwithstanding this well-known fact, the importance of procedure can hardly be overrated. In an actual proceeding over a pending issue, it can be verified whether the common value basis reflected in a text or unwritten rule covers indeed the concrete issue at stake in its particularized form. Everyone involved in such a proceeding must justify his position, trying to find political support for his views. Thus, a proceeding can clarify truly common positions, on one hand, or dividing lines, on the other. Unfortunately, on many occasions, the US finds itself in an isolated position where its political choice does not reflect the preferences of the large majority of States. Thus, it was together with Israel and two small Pacific States the only State that voted against the recent resolution of the General Assembly (of 21 October 2003)12 criticizing the building of the so-called security wall between Israel and the Palestinian territory, many times on Palestinian territory in the West Bank, and demanding that the construction of the wall be stopped and reversed.
12
Res. ES-10/13.
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IV. The Proper Role of the US All the preceding observations, which have exposed many of the failures of the US, should not be misunderstood to mean that the world does not need the US. On the contrary, the international community does need the support and cooperation of the most powerful State in implementing its fundamental rules. Many States confine themselves to lamenting about dangerous developments in international society without bothering to take any initiatives to cure the ills identified by them. The international community is dependent on States which are sufficiently conscious to concern themselves with general issues and sufficiently powerful to look beyond their boundaries and eventually to initiate appropriate international actions. But a true hegemon, who is recognized as such, must assume responsibilities towards the international community and cannot pursue primarily selfish interests. In that regard, the US is to praise for its zeal in attempting to prevent the spreading of nuclear weapons in accordance with the terms of the Non-Proliferation Treaty of 1 July 1968. Both the US and the world at large will benefit if any further expansion of the group of nuclear States can be blocked. Less impressive is the leadership of the US in combating the spread of biological weapons: at a review conference in Geneva in November 2002, it defeated the adoption of a verification protocol providing for inspection of sites where biological weapons could be produced. This is again an example which shows that US interests do not necessarily coincide with the interests of the international community. The US does indeed have a leading role which the international community accepts. The proper place for it to play that role is the Security Council, where it can and must cooperate with other nations. The international community is prepared to grant it a preponderant position, provided that some checks and balances exist as they govern, in particular, the procedure of the Security Council. On the other hand, it cannot commit itself to the whims and fancies of a Congress that pays little heed to the international obligations of the US. Unfortunately, not even the judicial branch of the US system of government has earned for itself more credibility. In Alvarez Machaín, the highest judicial body departed grossly from self-evident requirements of international law,13 and for almos two years now American judges have denied to the prisoners at the US base of Guantánamo the most elementary guarantees of fair trial as they are enshrined in the International Covenant on Civil and Political Rights (Article 9), thereby even reneging on their own constitutional tradition. October 2003
13
504 US 655 (1992).
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Keeping Pace with the Times? Bakhtiyar Tuzmukhamedov*
An American libertarian and statesman wrote to a correspondent in the summer of 1816: “Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. […] I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times”.1 That new rules need to be established and old rules ought to be amended in their letter or meaning, or erased altogether, is not subject to doubt. What bothers Karl Zemanek, if my perception of his worries is correct, is a mode of changing rules unilaterally and by stretching them to a breaking point and beyond. Emerging new rules are confusing—partly because they are not clearly defined and may be changed by a “Big Boy on the Block” at his will and occasionally unbeknownst to others, and partly because he can claim at own convenience that “the course of this nation does not depend on the decisions of others”.2 What may disturb an international legal academic, is that this policy finds support in writings by some of his own breed3. What might encourage him, is that there are
*
Professor of International Law at the Diplomatic Academy Moscow, Deputy Editor-inChief of the Moscow Journal of International Law.
1
Thomas Jefferson, letter to Samuel Kercheval, 12 July 1816, as reproduced at http://teaching americanhistory.org/library/index.asp?document=459.
2
George W. Bush, “State of the Union” address of 28 January 2003, available at http://www. whitehouse.gov/news/releaes/2003/01/print/20030128-19.html.
3
As Michael Glennon wrote in the aftermath of the US-led intervention in Kosovo, that campaign demonstrated “America’s new willingness to do what it thinks right—international law notwithstanding”—M. Glennon, “The New Interventionism. The Search for a Just International Law”, 78? Foreign Affairs 2 (1999, no. 3). And he concluded that “achieving
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quite a few who are opposed to it or who are in constructive doubt4. A “period of transition” of international system identified by Karl Zemanek, may otherwise be described as a post-Cold-War world order. Like any post-war period it abounds in gaps left by global, regional, or national security arrangements of the bipolar world now defunct. Before those gaps are patched they will be viewed as windows of opportunity by a variety of actors, both non-state entities and sovereigns, ranging from nationalistic insurgent groupings to international terrorist networks to states striving to seize regional or global vantage grounds, or, in other words, to fish in troubled waters. What Karl Zemanek’s analysis seems to omit is the permissive attitude of others to earlier symptoms of “arrogance of power”5. For example, one might argue that the UN Security Council Resolution 678 of 29 November 1990, which authorized the use of “all necessary means” to subdue Iraq, eroded the Council’s powers and procedures. In preceding resolutions the Council stopped an inch short of calling Iraq
justice is the hard part; revising international law to reflect it can come afterward. If power is used to do justice, law will follow”, ibid., at 7. Justice may be an elusive concept. President George W. Bush stated that many suspected terrorists were “no longer a problem to the United States” which could be construed as a hint at possible extra-judicial elimination, and concluded that “one by one, the terrorists are learning the meaning of American justice”— see Bush, supra note 2. 4
Consider a lively debate on the web-site of the Crimes of War Project, available at http://www.crimesofwar.org “Iraq and the ‘Bush Doctrine’ of Pre-Emptive Self-Defence” or more recently responses to M. Glennon “Why the Security Council Failed”, 82 Foreign Affairs 16 (2003, no. 3) by E. Luck, A.- M. Slaughter and I. Hurd (“Stayin’ Alive: The Rumors of the UN’s Death Have Been Exaggerated”, 82 Foreign Affairs 201 (2003, no. 4). Incidentally, I think that Karl Zemanek does some injustice to Oscar Schachter by selectively quoting from his essay. Schachter was rather critical of unbridled use of force in self-defense: “To say that each state is free to decide for itself when and to what extent it may use arms would remove the principal ground for international censure, and, in effect, bring to the vanishing point the legal limits on unilateral recourse to force”, O. Schachter, “Self-defense and the Rule of Law”, 83 AJIL 259, at 263 (1989). And he further warned that “a more permissive rule of self-defense will open the way to further disregard of the limits on force”, “Self-defense and the Rule of Law”, ibid., at 272.
5
J. William Fulbright, who coined the term in his The Arrogance of Power (1966), wrote that “power confuses itself with virtue and tends also to take itself for omnipotence. Once imbued with the idea of a mission, a great nation easily assumes that it has the means, as well as the duty to do God’s work” (ibid., at 3-4). While he brushed aside the assumption that the US, “with her deeply rooted democratic traditions, is likely to embark upon a campaign to dominate the world in the manner of Hitler or Napoleon”, he expressed muted fears that “she may be drifting into commitments which, though generous and benevolent in intent, are so farreaching as to exceed even America’s great capacities” (ibid.).
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“aggressor”, which it may, and ought to have done. In Resolution 678 the Council went farther than delegating authority to a coalition of the willing, rather it almost unconditionally relinquished its own authority. It gave sanction to the use of violent force, notwithstanding an abstention of one of its permanent members. The air campaign against Yugoslavia and “humanitarian intervention” in Kosovo, conducted with support or modest participation of those who currently oppose the grounds for, and the manner of the US invasion of Iraq, is another example. Or consider a more recent case. The restrictions on the use of force under Article 51 of the UN Charter have been loosened by a reference to the “inherent right of individual or collective self-defence” in the final paragraph of the preamble to the Security Council Resolution 1368 of 12 September 2001, without an explicit link to an “armed attack” as required by the letter of the Charter. In the opinion of this author, Article 51 should not be read in isolation from the non-use-of-force provision of Article 2(4) which is applicable solely to relations between states. Making terrorist networks a target of application of the right envisaged by Article 51 elevates them to the level of state entities, thus offering those hostis humani generis credit they do not deserve, but would eagerly accept6. The “unique role of the United States” which according to Karl Zemanek is leading to, and could define either superficial alterations or profound transformation of international system, does not always enjoy legitimacy under current postulates of international law, shared by many, or to which most at least pay lip service. However overwhelming capabilities that sole superpower may possess, they alone are unlikely to ensure legitimacy of however benevolent intentions it might have, and that will require not only consent of others, but concert of multiple actors. A resurrection of bipolarity is rather unlikely, at least in the foreseeable perspective, nor would it seem to be expedient. Multipolarity, on the other hand, will not be established by a binding resolution of the Security Council: it would have to emanate from a new global balance of powers and influences. As to the legal dimension, a Russian author might have had a point when he suggested that “international law prospectively would have to become inter-civilizational, reflecting interaction and confrontation of ideas of various religions, ideologies, juridical systems, values, and would strive for their synthesis”7. Looking over the horizon is not the capacity that this author may boast of. However, there are definitely more immediate areas of concern where existing legal regimes need reinforcement, or where less formal mechanisms might benefit from enhanced 6
A prominent Russian academic suggested a different qualification of using armed force to counter terrorism—”armed self-protective means” which he described as ‘limited, focused, adequate use of armed force”—S. V. Chernichenko, Teoriya mezhdunarodnogo prava [Theory of International Law], Vol. 2, at 471 (1999).
7
S. L. Rogozhin, “Mezhdunarodnoye pravo kak dialog i stolknoveniye tsivilizatsiy” [International Law as a Dialogue and Clash of Civilizations]—3 MoscowJIL 18 (2002).
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verification and enforcement, or where emerging arrangements could acquire credibility by addition of a legal component. Few would doubt that the nuclear non-proliferation regime is crisis. The Treaty on Non-Proliferation of Nuclear Weapons could not prevent the appearance of states that have a proven nuclear-weapon capacity (India and Pakistan) or whose nuclear capability is almost beyond reasonable doubt (Israel) or close to being such (North Korea). The non-proliferation ‘success story’ of South Africa, which destroyed its own weapons, should probably be taken with a grain of salt because the know-how and its human custodians are still there. Let me leave to political scientists to deal with a riddle of whether there is less stability in South Asia now that both major regional rivals have nuclear weapons, or whether there would be more stability in the Middle East with Israel being a confirmed non-nuclear state. Consider this: can NPT and IAEA effectively deal with further proliferation? Are universal prescriptions of the global regime applicable to regional maladies? Could NPT regime be strengthened by more stringent enforcement and preventive mechanisms? And if further proliferation is inevitable, wouldn’t it make sense to develop an enforceable code of nuclear conduct based on the experience of nuclear veterans? Missile Technology Control Regime remains a legally non-binding arrangement. Making it binding, verifiable and enforceable could be a way of dealing with proliferation of ballistic missiles. A recent Proliferation Security Initiative that envisages maritime and aerial interdiction of weapons shipments, as it stands now, may well run against established rules of the law of the sea, including those codified in the respective UN Convention of 1982. While the Initiative’s goals may be shared by many, cooperatively accommodating it with international law would add credibility to it. Exploring those avenues of constructive engagement could well be an exercise in wishful—and futile—thinking, and ultimately Karl Zemanek may be right in his sobering advice not to persist “in the fantasy of a world based on the equality in law of all members of the international system”. However, even the most consistent advocates of a radical change of the international legal system have to admit that “American hegemony will not last forever”8. In that same letter written in the summer of 1816 Thomas Jefferson cautioned his compatriots against seeking “through blood and violence rash and ruinous innovations” to laws and constitutions, which, “had they been referred to the peaceful
8
See Glennon, supra note 4. And he goes further: “Prudence therefore counsels creating realistically structured institutions capable of protecting or advancing US national interests even when military power is unavailable or unsuitable”.
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deliberations and collected wisdom of the nation, would have been put into acceptable and salutary forms”9. December 2003
9
See Jefferson, supra note 1.
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Merely the Notion of Self-Defence is Changing László Valki*
I. Introduction Professor Zemanek has identified the No. 1 issue of the latest developments in international law. I fully agree with all of his major conclusions. I do not think that any State may “lead” the international community in any respect, and act as a supreme arbiter of right and wrong, derived from its belief in the superiority of its legal order, and human rights standard. I find particularly dangerous the Bush administration’s reference to the “legal” conception of preemption. However, I see some change in the notion of self-defence, not necessarily as a consequence of the American behavior. In this paper, I will touch upon merely the interpretation of these two notions: selfdefence and preemption.
II. The Notion of Self-Defence The question emerged after 9/11, whether the United States had lawfully exercised the right to self-defence against Afghanistan. The first answers were negative. Alain Pellet wrote just some weeks after the terrorist attacks that they cannot be considered acts of war. A war presupposes “an armed conflict between adversaries if not identified, at least identifiable. . . [The attacks] are neither an ‘aggression’ in the legal sense of the word, nor war crimes. One might possible classify them as crimes against humanity. . . More troubling, by the [UNSC] Resolution 1368, the Council goes as far as to consider (sic) that the acts of terrorism of 11 September justify the exercise of the ‘inherent right of individual or collective self-defence’ in accordance
* László Valki is Professor of International Law at the Eötvös University, Budapest. His latest works include L. Andor, P. Tálas, L. Valki, Irak: Háborúra ítélve (Iraq: Doomed to War), Zrínyi, Budapest, 2004. 1
A. Pellet, “No, This is not War! The Attack on the World Trade Center: Legal Responses”, Discussion Forum, available at http://www.ejil.org/forum, 3 October 2001.
2
A. Cassese, “Terrorism is also Disrupting Some Crucial Legal Categories of International Law. The Attack on the World Trade Center—”, 12 EJIL 993 (2001).
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with the Charter”. According to Pellet, this is an “extremely wide interpretation which hardly conforms to the letter of the Charter, Article 51”1 A similar view was held by Antonio Cassese.2 Pierre-Marie Dupuy feared that the reference of the Security Council to the inherent right of self-defence would give the United States “a carte blanche to do, alone, what it likes and when it likes”.3 The same opinion was expressed by the Hungarian international lawyer Boldizsár Nagy.4 In his chapter, Karl Zemanek also comes to the conclusion that according to “traditional understanding . . .defensive action is allowed only against an ongoing attack”. He denies that the US would have been entitled to “eliminate the source of the attack”, i.e. al Qaeda and the supporting Taliban regime in Afghanistan. Actually, Article 2(4) of the UN Charter refers to states against which no force can be used. However, the Charter was prepared at the end of World War II, when the founding fathers of the United Nations wanted to address classical, inter-state aggression, which until that point posed the most serious threat to mankind in history. Resolution 3314 of the General Assembly, however, presented a definition of aggression that included, among others, the following act: “The sending by or on behalf of a State armed bands, groups, irregulars or mercenaries, which carry out armed attacks against another State, . . . or its substantial involvement therein”.5 According to the Resolution, only acts of “such gravity” as “bombardment” of the territory of another State, the “use of any weapons” against it, or attacking its ground, air or naval forces can be considered.6 Therefore, the question that arose on 11 September was whether the State of Afghanistan- or the Taliban- was “substantially involved” in the preparation and perpetration of the terrorist acts. Today most analysts agree that the Taliban was “substantially involved” in the attacks. It is interesting to note that prior to 9/11 as many as four Security Council resolutions had been passed regarding the Taliban and al Qaeda. No attention has been paid to these resolutions by either international lawyers or political scientists. The first Resolution, 1193 (1998) was adopted after Taliban troops occupied Mazare-Sharif, where they stormed the Consulate of Iran and murdered eleven diplomats and one journalist. In its Resolution, the Security Council condemned these atrocities and expressed its “grave concern at the continued Afghan conflict which has recently sharply escalated due to the Taliban forces’ offensive . . . causing a serious and growing
3
P.- M. Dupuy, “The Law after the Destruction of Towers. The Attack on the World Trade Center—”, available at http://http://www.ejil.org/forum_ WTC/ny-dupuy.html, October 2001.
4
B. Nagy, “Önvédelem, háború, jog” (Self-defence, War, Law), Élet és Irodalom, 28 September 2001, at 3.
5
UN General Assembly Res. 3314 (XXIX) on the definition of aggression, Art. 3(g) (emphasis added).
6
Art. 3(b) and (d).
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threat to regional and international peace and security, as well as extensive human suffering”. The Resolution demanded that “the Afghan factions . . . refrain from harboring and training terrorists and their organizations and . . . halt illegal drug activities.” The second Resolution, 1214 (1998), states that the Security Council remained “deeply disturbed by the continuing use of Afghan territory, especially areas controlled by the Taliban, for the sheltering and training of terrorists and the planning of terrorist acts”. The third Resolution, 1267(1999), mentioned Osama bin Laden by name. It stated that the Taliban continued to provide “sanctuary and training for the international terrorists and their organization” which constitutes a “threat to international peace security”. Acting under Chapter VII of the UN Charter, the Security Council demanded that the Taliban turn over bin Laden to either the United States or a third country where he could be brought to justice. The antecedents of the fourth Resolution, 1333 (2000), deserve special attention. In the late 1990’s the Russians realized that “Afghan” mujaheddin were participating in the war in Chechnya. Russian intelligence found a remarkably high number of Arabs among these Afghans and quickly tracked them back to Osama bin Laden’s organization. There was a growing interest in Russia to get rid of them. Moscow discussed the matter with Washington. After intensive Russian-American consultations the Security Council adopted Resolution 1333 (2000), which condemned the Taliban for the “sheltering and training of terrorists and planning of terrorist acts” and reaffirmed its “conviction that the suppression of international terrorism is essential for the maintenance of international peace and security”. The UNSC noticed that the Taliban benefited directly for the cultivation of illicit opium by imposing a tax on its production and recognized that “these substantial resources strengthen the Taliban’s capacity to harbour terrorists”. The above resolutions clearly indicated that the members of the Security Council were convinced that the Taliban had been “seriously involved” in providing support for the activities of al Qaeda and, consequently, held the Taliban responsible for events on Afghan soil. This is why, as early as the day after the terrorist attacks, Resolution 1368 (2001) was adopted, in which the Security Council condemned the “horrifying terrorist attacks” in New York and Washington, declaring them a “threat to international peace and security” and recognized “the inherent right of individual or collective self-defence in accordance with the Charter”. Furthermore, the resolution stressed that “those responsible for aiding, supporting or harboring the perpetrators, organizers and sponsors of these acts will be held accountable”. NATO took a similar position. The Permanent Session of the North Atlantic Council concluded that “if it is determined that this attack was directed from abroad against the United States, it shall be regarded as an action covered by Article 5 of the Washington Treaty”.7 On 2 October 2001, the North-Atlantic Council discussed the 7
Statement by the North Atlantic Council, Press Release (2001) 124, 12 September 2001.
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information provided by the United States. Secretary General Robertson announced after the meeting that it had been clearly determined that “the individuals who carried out the terrorist attacks belong to the Afghan terrorist organization headed by Osama bin Laden and protected by the Taliban regime”. Therefore the terrorist acts must be regarded as “attacks from abroad” under Article 5.8 A similar position was also taken by the European Council on 21 September. In their conclusion, the Heads of State and the Governments of the European Union stated that “on the basis of UNSC Resolution 1368 a riposte by the US is legitimate.9 A week later, on 28 September, the Security Council adopted Resolution 1373 (2001). The document referred again to the right of self-defence and the threat of terrorism to international peace and security. In addition, it determined that terrorism and its support were inconsistent with the purposes of the UN.10 Finally, on 16 January 2002, the Security Council adopted Resolution 1390, which affirmed all its previous resolutions with regard to Osama bin Laden, al Qaeda and the Taliban. Although in these resolutions the UNSC did not authorize any state to carry out military counter-measures, the fact that three permanent members of the Council (France, Great Britain, and later Russia) opened their airspace for military actions and the fourth (China) assured the United States of its support proved that a number of significant states recognized that since 11 September, the United States has been in a permanent state of self-defence. Some international lawyers did not come to the same conclusion. Pellet, Dupuy and Nagy stated that: (a) the behavior of the United States cannot be regarded as self-defence because Washington launched the counter-offensive several weeks after the attacks rather than immediately and, moreover, against a state located several thousand kilometers away; (b) when executing counter-strikes the United States might have used force against terrorists or states harboring them only if the Security Council authorized it to do so. “The inherent right of self-defence has limits”, wrote Boldizsár Nagy, referring to the Caroline case. “It was the US Secretary of State Webster who put down his immortal words in 1841 that have remained valid even today.” During the act, Webster noted that “the partying referring to this has to prove the necessity of self-defence, instant
8
Statement by NATO Secretary General, Lord Robertson. NATO Update, 2 October 2001.
9
Conclusions and Plan of Action of the Extraordinary European Council Meeting on 21 September 2001.
10
The wording of Art. 2(4) has appeared in the text (“inconsistent with the Purposes of the United Nations”).
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overwhelming, leaving no choice of means and no moment for deliberation”.11 The same view was expressed by Cassese and Pellet. In the opinion of Pellet, “the use of armed force must be subject to the authorization of the Security Council which has not (yet) been given”.12 According to this view the party concerned has no right to a delayed use of force in response to an armed attack. Cassese insisted that the use of force by the victim state should be directed “to repel the armed attack of the aggressor state”.13 The more than 150 year-old “immortal” words of Webster were, however, applicable only for defence against traditional acts of aggression only under certain conditions. As far as terrorist acts were concerned the Webster thesis is absolutely inapplicable.14 Moreover, it is the terrorists who could make the best use of it. In the case of a terrorist act the attackers and their supporters remain either unknown or are identified only after some of them are killed during the attack, while the others disappear and hide in remote countries. On the basis of this interpretation action against Osama bin Laden and his organization would have been possible only on 11 September and only if they had been, say, directing the execution of the attack on a mobile phone aboard a yacht in New York City harbor. Otherwise, the US would have had only one recourse; to turn to the UN in order to convene the Security Council, which would either have given a go-ahead for coalition war (as before the Gulf War) or not (as in the case of Kosovo). If one took the position of Karl Zemanek, a number of legally recognized countermeasures should have been deemed illegal, e.g. the use of force by Great Britain to take back the Falkland Islands from Argentina in 1982. The Argentine forces invaded the Islands on 2 April while the massive British counter-strike was launched only many weeks later, on 21 May. The British needed some time to build up their expeditionary forces and to cover the huge distance between Britain and the theater of war. On the basis of the conditions suggested by Zemanek, all “delayed” selfdefence should be considered illegitimate. However, this does not reflect military and political realities. As far as the “elimination” of the source of the attack is concerned, a number of UNSC resolutions provided that the Taliban should refrain from supporting and harbouring terrorist organization like al Qaeda. It is difficult to see any other way to decrease the threat of further terrorist attacks on the part of bin Laden’s organization due to its close ties with the Taliban regime. After 9/11 the
11
See Nagy, supra note 4.
12
See Pellet, supra note 1.
13
See Cassese, supra note 2.
14
See for a good description of the Caroline case, in A. Sofaer, “On the Necessity of Preemption”, 14 EJIL 214-220 (2003). However, I do not share the opinion of the author with regard to preemption.
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question was asked, with some irony, whether the Taliban should be eliminated to stop the activity of al Qaeda or vice versa. Cassese admits in his paper that “the magnitude of the terrorist attack on New York and Washington may perhaps warrant the broadening of the notion of selfdefence. I shall leave here in abeyance”, he added, “the question of whether one can speak of ‘instant’ custom, that is of the instantaneous formation of a customary rule widening the scope of self-defence as layed down in Article 51 of the UN Charter and in the corresponding rule customary law. It is too early to take a stand on this difficult matter”.15 My view is that is should not have been left here by Cassese. The decisions of the Security Council, the North Atlantic Council and the European Council indicate that the military counter-measures adopted by the US and its allies were accepted by a major part of the international community, including the remaining members of the UNSC and all NATO members. Moreover, this did not represent a single occurrence, but rather a continuum of unfolding developments regarding Afghanistan that date back to 1998. The new threat posed by terrorism requires a new interpretation of the notion of self-defence, because it differs in many aspects from the traditional military threat posed on a number of occasions since 1945. It may well be that no new written norm could be formulated regarding the response of a state suffering terrorist attack. Of course, it would be extremely difficult to describe in written legal norms how a state might respond to such an attack. In any case, my conclusion is that the old interpretation of the notion and scope of self-defence has been extended by the actions of the international community on 12 September 2001 and the following days. It represents an important change in customary international law. This was, however, the only change in international law as a consequence of 9/11. It does not mean, of course, that the nature of international law itself has changed in any way.
III. The Notion of Preemptive War In the same way it certainly did not mean that states perceiving any threat—as rightly pointed out by Karl Zemanek—might lawfully carry out a general preemptive war against states possessing WMD or supporting or harbouring terrorist organizations. In addition to Zemanek’s point of view, I would like to draw attention to the first official formulation of the—allegedly old—norm existing in international law. According to the National Security Strategy of the US: For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that
15
See Cassese, supra note 2.
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present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of imminent threat––most often a visible mobilization of armies, navies, and air forces preparing an attack. We must develop the concept of imminent threat to the capabilities and objectives of to day’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. … Instead, they rely on act of terror and, potentially, the use of weapons of mass destruction—weapons that can easily be concealed, delivered covertly, and used without warning. … To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively. ….[W]e will not hesitate to act alone if necessary, to exercise the right to self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country. 16
It was probably written by an undergraduate student of law. International law did not recognize “for centuries” the right to preemptive strikes, given that, until the end of World War I, it did not even limit the use of armed force. Thus, the question of lawfulness did not arise. Any state, on any pretext, had the right to launch a war against any other state. The total prohibition of war was provided for the first time by the 1928 Kellog-Briand Pact. The pact made no mention whatsoever of the legitimacy of preemptive strikes, but only stated that the contracting parties “renounce [war] for the solution of international controversies and renounce it as an instrument of national policy in their relations with each other”.17 The UN Charter prohibits any kind of “threat or use of force”, regardless of its purpose. While the Charter recognizes the “inherent right” of self-defence, it makes no reference to the right of any state acting in self-defence to preempt an attack. Finally, in terms of the Charter, the UNSC has the exclusive right to determine whether or not the situation in a given state constitutes a threat to international peace and security, as well as to authorise armed sanctions. Thus, the Bush administration had no right to invoke the inherent right of self-defence with regard to the invasion of Iraq. Interestingly enough, the US referred to its right of self-defence in general terms only during the days immediately preceding the war and did not mention the concept of preemptive self-defence. 18 Oddly enough, Great
16
The National Security Strategy of the United Sates of America. Washington, September 2002, at 15, 6 (emphasis added).
17
General Treaty for the Renunciation of War as an Instrument of National Policy. Signed in Paris on 27 August 1928, Art. 1.
18
Report In Connection With Presidential Deteremination Under Public Law 107-243. “White House Says US Has Clear Authority to Use Force Against Iraq”, Washington File, 19 March 2003.
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Britain never invoked this argument.19 Instead, an official British source referred to pervious UNSC resolutions to justify the Iraq war. The British Attorney-General said some days before the invasion that: The legal basis for any military action against Iraq would be the authorisation by the Security Council, in its resolution 678 (1990), which has given the right to Member States to use all necessary means to restore international peace and security in the area. That authorisation was suspended but not terminated by Security Council resolution 687 (1991), and revived by resolution 1441 (2002). …Chapter VII of the United Nations Charter gives the Security Council the power to authorise States to take such military action as may be necessary to maintain or restore international peace and security. … In the case of Iraq, the Security Council took such a step following the Iraqi invasion of Kuwait. Paragraph 2 of SC resolution 678 authorised “Member States co-operating with the Government of Kuwait to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.” … Resolution 687 did not repeal the authorisation to use force in paragraph 2 of resolution 678. On the contrary, it confirmed that resolution 678 remained in force. The authorisation was suspended for so long as Iraq complied with the conditions of the ceasefire.20
However, Resolution 678 (1990) provided for the restoration of peace and security in the area and referred to resolution 660 (1990) which condemned “the Iraqi invasion of Kuwait” and demanded that “Iraq withdraw immediately and unconditionally all its forces to the positions in which they [were] located on 1 August 1990”. Contrary to the statement by the Attorney General, the authorization to use force against Iraq was neither “suspended” nor “terminated” by resolution 687. On 3 April 1991, the UNSC simply welcomed “the restoration to Kuwait of its sovereignty, independence, and territorial integrity and the return of its legitimate government.” In other words, the UNSC said that the job was done by the American-led coalition forces. Iraq withdrew its army from Kuwait and Kuwaiti sovereignty was restored. The Iraqi government accepted the provisions of resolution 687 and later formally recognized
19
A German international lawyer of the Wehrmacht is as far as I know the only one who shared the American considerations with regard to preemption. See A. A. Steinkamm, “Der Irak-Krieg—auch völkerrechtlich eine neue Dimension: Unumgängliche Diskussion über das Recht der preväntiven Verteidigung.” Neue Zürcher Zeitung, 16 May 2003, available at http://www.nzz.ch/dossiers/2002/irak/2003.05.16-al-article8U623.html.
20
Foreign and Commonwealth Office. Available at http://www.guardian.co.uk, 17 March 2003. Initially, the Blair government did not want to discuss the legal aspects of the invasion until after it had been demanded by some MPs. See M. White, “Publish Advice on Legality of War”, available at http://www.guardian.co.uk, 13 March 2003 [2003. március 13].
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the independence of Kuwait. Consequently, the UN authorization to use force against Kuwait could have been invoked again only if Iraq would have started another aggression against Kuwait. The conditions of the ceasefire, laid out in resolution 687, may well have been violated by Iraq. In this case the UNSC should have drawn up a new resolution after discussing the matter. This resolution could have authorized the use of force by member states in case of aggression. However, no resolution was ever created. Otherwise, the question of a “second resolution” would not have been discussed by the UNSC members in the spring of 1993. In fact, whatever legal explanation of the invasion was given by the two governments, even the casus belli was missing, since no WMDs were found on the territory of Iraq and—apart from providing safe heaven for some retired terrorists—Bagdhad did not support any terrorist organization. October 2003
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Has the Nature of International Law Changed? Le Plus Ça Change…
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Has the Nature of International Law Changed? Le Plus Ça Change… Francisco Orrego Vicuña*
I.
Introduction
Rivers of ink have flowed on the question of the changing nature of international law. In fact this is a recurrent phenomenon. In the 1950’s Philip C. Jessup wrote his sharp perspective on “Transnational Law”,1 to be followed in the 1960’s by Wolfgang Friedman’s extraordinary work on “The Changing Structure of International Law”,2 which in turn was followed in the 1990’s by the view that globalization was substituting for international law,3 and just recently back again to the question of whether international law has evolved at all or it is simply a matter of power.4
II. Many Changes, yet Few Changes Changes in international law there have indeed been many. Yet these changes are for the most the outcome of the normal evolution of social life. They are not structural changes that might have overturned the traditional system and replace it by a new one as some authors have thought. The paradox of the current debate lies, however, in the fact that for some the change is so profound that a new global law has, or at the very least is, emerging, while for other the changes are turning back the clock to the period of unilateral State action, that is the opposite side of globalization, or is it?
*
Professor of International Law at the Institute of International Studies and the Law School of the University of Chile. Membre de l’Institut de Droit International.
1
P. C. Jessup, Transnational Law (1956).
2
W. Friedmann, The Changing Structure of International Law (1964).
3
H. Thierry, “L’Etat et l’organisation de la societé internationale”, Societé française pour le droit international, L’Etat souverain a l’aube du XXI siècle 189 (1994).
4
See the discussion of international law and relations in L. Henkin, How Nations Behave. Law and Foreign Policy (1979).
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How much international law has or not changed can best be realized by examining its very roots. Hedley Bull identified as the five main characteristics of the Grotian society the influence of natural law, universalism, the concern for the individual, solidarity in enforcement and the lack of institutionalization.5 All of them are still very much present in international society, albeit expressed in a different form. Indeed, natural law still provides the basic guiding principles for all the principal religions of the world, which in turn inspire their respective legal systems and for that matter international law. To the extent that norms of ius cogens can be identified in international law these are not really different from those that natural law has for long recognized.6 The protection of the rights of the individual is today inspired by the same concerns that led Grotius to the formulation of an international law in the first place, the form and the extent but not the substance being dramatically different. Universalism was at the time identified with a Euro-centered view of the world, but as different cultures made their influence felt so international law enlarged its scope and attained the current worldwide scope. Again the extent has changed, not so much the nature. Solidarity in the enforcement of international law is patently identical to the situation at the roots. International law did not and still does not have an effective means of enforcement and has relied essentially on the cooperation of States to this effect. Exceptions there are of course, but these are mainly in rather specialized areas and certainly not in crucial issues of international relations and political interests. This has not changed either with the United Nations, where cooperation is indeed more structured but still depending on the will of participating States. The lack of institutionalization would appear at first sight to have been entirely remedied as evidenced by the large number of international organizations in place. These have indeed made an important difference in the organization of cooperation. In essence, however, their work is not different from the interest of participating States. Autonomous decision making is rather exceptional. The greater the power of States, the greater their influence in such organizations. The European Directorate and the League of Nations were not structured on too different realities.
5
H. Bull, “The Importance of Grotius in the Study of International Relations”, in H. Bull/B. Kingsbury/A. Roberts (eds.), Hugo Grotius and International Relations 65, 78 (1992).
6
For a discussion of the current state of identification of norms of ius cogens see generally P.- M. Dupuy (ed.), Obligations multilatérales, Droit impératif et Responsabilité internationale des Etats (2003).
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III. Is that Right or Wrong? It may be argued that all of the above is utterly wrong. What about the new subjects of international law, the emergence of a hierarchical order in the law, the role of soft law in surpassing consensus and other inconveniences of the past, or the question that international lawmaking is substituting for domestic legislation and the role of parliaments? As international society evolves there is of course something of it, but not as much as to change the nature of international law. International organizations have a strictly limited power and seldom can they undertake functions that have not been expressly delegated by governments and that even then are kept under strict supervision.7 This is true not just of broad international organizations but also of those that are usually mentioned as the paradigm of supranational arrangements. The debates on a European Constitution are quite illustrative in this respect.8 Individuals also have a role as subjects of international law, but still exceptional and limited. Occasionally this very role has been overstretched, leading as a reaction to new requirements of transparency and accountability. The hierarchy of norms in international law responds, as noted above, to basic values of social life and these exist independently of their expression in the formal legal system. The identification of norms of ius cogens in the work of the International Law Commission and other such exercises turned out to be purely of academic significance and has in fact been to a large extent abandoned. International law has significantly expanded over the centuries, yet for the most it still is an horizontal legal system, not a vertical or hierarchical one. The very thought of doing away with State consensus in international lawmaking has entirely failed. Many technical changes have been introduced in order to facilitate consensus and make it less rigid, but the essence of international legislation requires the concurring will of States. Soft law and other such approaches are indeed useful as technical devices to implement or adapt rules of international law but they do not substitute for the role of States in international lawmaking as far as crucial matters are concerned. Neither is the identification of rules of customary international law less demanding than in the past, although the expediency of the process is much higher today. The sources of international law are still precisely that in spite of many efforts envisaging new ways of international lawmaking. New ways indeed there are, certainly if you look at Article 38, paragraph 1, of the Statute of the International Court of Justice and compare it with current practice, but none of them change the nature of
7
E. Denza, “Two Legal Orders: Divergent or Convergent?”, 48 ICLQ 257 (1999).
8
D. Heathcoat-Amory, “The European Constitution” (2003).
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the system and at the most supplement the existing features of international law. This includes the resort to general principles, equity, decisions of international organizations and judicial decisions.
IV. Is International Law at the Service of Citizens? In the end, progress in international law is controlled by legitimacy. The final determination about legitimacy is still very much a function of national societies. This might and should change in the future as the international legal system itself exercises the control of legitimacy, but in the meanwhile governments have the duty to protect the values, rights and interests of their citizens and they will participate in international law to the extent both interests are compatible. This duty is of course easier to identify in democratic societies but is equally valid of societies inspired in other values. In this context international law cannot be conceived as antagonistic to domestic legal systems, even less so as a means of circumventing national lawmaking requirements. International law since its inception is at the service of citizens, not against them. As governments are sometimes tempted to resort to the easier alternative, parliaments and public opinion are increasingly exercising control over governmental activity in international affairs and the elaboration of international law. Transparency and accountability will be increasingly developed as essential elements of control.
V. Dreaming a Multilateral Order It is against this background that current developments in international law may be scrutinized. It is first believed by some authors that unilateral decisions in the international legal system have done away with the multilateral order under the Charter of the United Nations.9 The true question, however, is how multilateral has the system really been. The existence of a multilateral system or one where unilateral influence prevails does not depend so much on legal arrangements, such as the Charter, as on a question of power. If various actors share economic, political and military power, a multilateral approach will prevail. If power is concentrated, then the unilateral option will be the salient feature of the system. The fact is that the allocation of power in the international community has changed in the last few decades. From a few powers that emerged from the World War II only 9
For a useful discussion of views and practice on the issue see K. Zemanek, “Intervention in the 21st Century”, Cursos Euromediterráneos. Bancaja de Derecho Internacional, Vol. V, 612, 648-658 (2001).
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one is really left. If this allocation has changed so has the influence in the operation of the system. The true crisis of the United Nations is that it was designed to work in the light of a reality no longer existent.10 In addition, the historical experience on the use of force shows that such a decision has always been unilateral and that international organizations have had a rather marginal intervention, particularly concentrated in the management of the aftermath. It is also necessary to keep in mind that to the extent that there was a multilateral decision making framework available this was broken much earlier than the events concerning Iraq. It was certainly broken with the NATO decision to use force in the Kosovo crisis, events where a good number of medium powers actively participated in spite of the fact that the Security Council was not even approached and later had to impart an ex post facto regularization. It is then rather surprisingly argued that such an intervention was done on behalf of the international community. Few, very few, scholars raised their voice then against a violation of international law.11 But many, too many, have raised their voice now in the Iraqi crisis. Yet the functioning of the system was not different in either case as it embodied a reaction against a regime not of the like of the decision makers, the redress of grave violations of humanitarian law and human rights and the dangers posed to international or regional peace and security. In both cases too the United Nations was called to participate in the aftermath. Ex post facto regularization was also granted in respect of the latest events.
VI. The ‘Who is Who’ in the Violation of International Law More troubling is the question about the violation of international law and its extent. Some believe that any use of force not expressly authorized by the Security Council is contrary to international law.12 Others believe that this authorization was already at hand in the context of a string of resolutions13 and still others believe that in any
10
A.- M. Slaughter, “A Chance to Reshape the U.N.”, The Washington Post, 13 April 2003, at B.07. This and other press citations are reported in American Society of International Law, “ASIL Members Speak Out” (Spring 2003).
11
See, e.g., M. G. Kohen, “L’emploi de la force et la crise du Kosovo: Vers un nouveau desórdre juridique international”, 32 Revue belge de droit international 122 (1999).
12
T. M. Franck, “La Charte des Nations unies est-elle devenue un chiffon de papier?”, Le Monde, 2 April 2003.
13
R. Gardner, Newsday, 20 March 2003 as cited in ASIL, supra note 10. On the present discussion see also generally F. Orrego Vicuña, “Uso de la Fuerza y Derecho Internacional”, 36 Estudios Internacionales, No. 142, at 121 (2003).
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event self defense provided legal authority to take action.14 The debate then goes on to anticipatory or preemptive self defense. But the true question again appears to be different. Is in violation of international law that who for twelve years systematically ignores United Nations resolutions,15 including Resolution 1441 (2002) giving a final warning under Chapter VII of the Charter, or those that intervene to redress the observance of the law? Are in violation of international law those who in this context take action after having tried to engage the multilateral system or those who actually impede the body of collective decision making to operate in spite of a clearly identified threat to the system? Quite evidently these questions allow for different answers. But keeping away from the passions of the moment one can realize that responsibility for these various events is more likely to be shared than just attributable to one party.
VII. International Law, Victim of its Own Success It has been rightly commented that international law has become the victim of its own success.16 Indeed, the concern for humanitarian values, human rights and democracy has become so widespread as to give place to new views about the use of force in given situations. Yet the question is again why what was the accepted standard for Kosovo is not accepted for Iraq. The issue is not that the standard might have been right or wrong but that there is a need for the system to be minimally coherent. In the light of such new priorities and the questions international society has now to face the very standards for the use of force are evidently changing. At the time when conventional armies confronted each other across a border and there was even some chivalry in the conduct of operations, the concept that self defense might be resorted to only in the case of an actual attack being launched was probably quite well connected to the reality. But is this still true in the context of massive terrorist attacks directed against thousands of innocent civilians? The underlying rationale for the legal rule necessarily has to adapt to new realities and this is where preventive self defense steps in. Undoubtedly many refinements to the operation and requirements of the rule will
14
For a discussion of present thoughts on self defense, with particular reference to pre-emptive self defense, see R. S. Litwak, “The New Calculus of Pre-emption”, 44 Survival, No. 4, at 53 (2002/2003).
15
R. Wedgwood, “Legal Authority Exists for a Strike against Iraq”, Financial Times, 14 March 2003.
16
A. Roberts, “Law and the Use of Force after Iraq”, 45 Survival 31, 34 (2003).
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need to be introduced, but this does not affect its legitimacy as a means to repel a non conventional attack or threat. One might not be unsympathetic to the view that when the reaction comes to toppling unwanted governments around the world the line of reasonableness might be difficult to draw.17 However, when such regimes are toppled repeatedly in Yugoslavia, Liberia, Afghanistan or Iraq, among a number of other contemporary examples, is this not reflecting a new approach in respect of the prevailing paradigms? Difficult as it is the issue of treatment of detainees from a legal perspective, one cannot fail to realize that also here the rules were devised for a totally different reality. Brave combatants were and indeed are entitled to due consideration as prisoners of war and other protected categories. While all individuals engaged in combat are entitled to due process in the light of international conventions in force, or at least to an independent determination of their status, it is also evident that the standard might require new approaches when the circumstances are again so dramatically different. Yet, the criticism about not complying with international law has been readily at hand but no thought has been given as how to approach the legal solution to unprecedented issues. Law and reality again do not seem to perfectly match.
VIII. The Imbalances of Globalization International law has also become a victim of its own success in another way. Globalization as a new dimension of economic, political and legal realities has only too evidently weakened the presumption of sovereign equality on which the international system is based.18 Not that States are disintegrating but certainly the share of power of many has diminished. Power vacuums are quickly filled in and this entails the emergence of new issues, approaches and reactions. The more international law succeeds in becoming genuinely global the more such imbalances will occur. The United Nations is experiencing a profound crisis that resulted from the gradual mismatch between its work and the realities of the international system. If a continuous secondary role in the handling of international conflicts is to be avoided it is the organization that has to adapt to such realities and not the other way around. Only when an organization truly ensures that international society is kept free from threats affecting its very substance is that States and the social body will come to rely on the effectiveness of its work.19 17
A. V. Lowe, “Are Bush and Blair Breaking the Law?”, The Times, 25 February 2003, at Law 3.
18
E. Brown Weiss, “The New International Legal System”, in N. Jasentuliyana (ed.), Perspectives on International Law 63 (1995).
19
On the reinvention of the United Nations, see Slaughter, supra note 10.
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IX. Constitutionalism and the Control of Legitimacy In spite of the many difficulties today confronting international law, the long term perspective is marked by a positive outlook. Just as the control of legitimacy is today basically a function of national societies, one may envisage that these very control will at some point be exercised by the international legal system itself. The increasingly active role of international courts and tribunals is pointing the way in this direction, still mostly in specialized areas but perhaps gradually enlarging to the body of international law as a whole.20 To accomplish this end important constitutional functions will need to be developed by the international community.21 This includes the need for a representative General Assembly of the United Nations and the organization of an international judicial system which may exercise functions of judicial control in respect of the acts of both government and international organizations, particularly when affecting the rights of individuals. As every international crisis leads to new answers so as to prevent its recurrence, perhaps the present one too will result in the overhauling of the international legal system in closer connection with the real needs of the international community. October 2003
20
F. Orrego Vicuña, International Dispute Settlement in a Global Society, (2004); Societé française pour le droit international (ed.), La juridictionnalisation du droit international (2003).
21
P. Allott, Eunomia. New Order for a New World (1990).
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Reflections on the Development of International Treaty Law under the Auspices of the United States Hegemony and Globalization Rüdiger Wolfrum*
Karl Zemanek points out that the “international system is presently in a period of transition” and refers to the fact, amongst others, that there is a dichotomy between the principle of legal equality of states and the “imperial” policy pursued by the United States. As to the reference to the transitional nature of international law it has to be pointed out that international law never was static and has been and will be in a permanent process of development. This is a mere reflection of its nature and its objective. However, a new factor has to be taken into consideration namely the hegemonic power of the United States at the moment. The following brief contribution will touch upon only on one of the several factors which are considered at the moment, namely the development of international treaty law under the auspices of the hegemonic power of the United States and globalization. It has frequently been pointed out by numerous authors1 that the United States has refrained from acceding to several international agreements. It has renounced the Kyoto Protocol and it has withdrawn the signature of the Rome Statute of the International Criminal Court. Further recent examples of international agreements the United States has refused to join are the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts (2000), the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (1997) and an Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2002). In the late 1980s and 1990s the United States has ratified several important international human rights agreements, such as the Convention against Genocide, the Convention Against Torture, the International Covenant on Civil and Political Rights and the Convention on the Elimination of all Forms of Racial Discrimination. It has not ratified yet, though, the two Additional Protocols to the
* Professor of Law, University of Heidelberg; Director Max Planck Institute for Comparative Public Law and International Law. 1
See, for example, G. Nolte, “Die USA und das Völkerrecht”, 78 Die Friedens-Warte 119 (2003).
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Four Geneva Conventions and the International Covenant on Economic Social and Cultural Rights. In acceding to international human rights treaties, such as the Covenant on Civil and Political Rights the United States has appended a multiplicity of reservations purporting to establish that the treaties did not apply directly on the national level, required no change in United States law and left the United States free to disregard international interpretations to the contrary.2 As far as the Rome Statute is concerned the United States has undertaken every effort to ensure that the jurisdiction of the International Criminal Court would not extend to United States citizens. This attitude of the United States towards international agreements has been referred to as American exceptionalism or as an indication of American unilateralism and has been related to its hegemonic position or policy. Historically the insistence of a powerful State not to adhere to international agreements which do not meet its interests is completely unremarkable. Nevertheless, it would be too easy to argue that it rests within the discretion of each single state to ratify or not to ratify international agreements. Although it would be equally unsustainable to argue that the United States is under an obligation to accede to international commitments if and when the respective international agreements have found the approval of a representative majority of the community of states or that there is an obligation of the United States to consider its adherence by taking into account not only its national interests but also the ones of those states willing to commit themselves. Certainly the United States should refrain from undermining the commitments undertaken by other states. It is for this reason that its actions by concluding bilateral agreements against the International Criminal Court are hardly defendable. However, it would be incorrect to argue that the United States is generally unwilling to accept international commitments or to honor them. In respect of the latter aspect it is a misconception to equal the ratification of an international human rights agreement with a genuine undertaking to effectively implement international human rights standards. It is a frequent phenomenon, well known to human rights treaty bodies, that states argue by having ratified a particular international human rights agreement to have done everything necessary. This policy is indirectly endorsed by interest groups which advocate additional human rights agreements without considering whether a more effective implementation of existing instruments would be more appropriate. How little counting the number of ratification concerning the real protection of human rights means becomes evident by considering the membership to the Convention on the Elimination of the Discrimination against Women and the status of women in some of its member states. It is a truism that not the ratification of an international human rights treaty proves the commitment to human rights standards
2
Critical in this respect L. Henkin, “United States Ratification of Human Rights Conventions: The Ghost of Senator Bricker”, 89 AJIL 341 (1995).
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but its effective implementation and the faithful report thereon. A quick ratification of international human rights agreements do not necessarily prove a respective commitment but may rather be an indication to the contrary. Nevertheless, it is necessary to fathom why the United States increasingly refrains from becoming a party to international agreements and what that means for the development of international law. What makes the situation a particular one is that an increasing number of international agreements have a normative function and, thus, are a surrogate of international legislation.3 Considering the attitude of the United States it seems as if it is particularly reluctant to commit itself to multilateral international agreements which are meant to form part of the international normative order that is such part of international law which serves the interest of the international community of states rather the ones of two states or of a particular group. All international human rights agreements, international environmental agreements are meant to protect goods considered by the international community worth protecting, such as climate, the ozone layer and biodiversity to name just the ones which belong beyond dispute to this category and arms control as well as disarmament agreements or agreements on humanitarian law may be qualified as being part of such an international normative order. The international agreements the United States has recently decided not to accede to belong to this very category whereas the United States continues to conclude bilateral agreements or agreements having a more limited scope. Nevertheless, many of these international agreements enter or have entered into force although without the United States, such as the two Additional Protocols to the Geneva Convention, the Convention on the Law of the Sea or the International Covenant on Economic, Social and Cultural Rights. Thus a corpus of norms is in the process of being developed to which the majority of States is committed but not the United States. This one may assume will result in the development of a two track international law one including the United States the other not. However, the situation is even more complex. Even in cases the United States is not formally committed to a particular international agreement this does not mean that it does not consider the respective rules as binding. For example, many—certainly not all—of the rules enshrined in the First Additional Protocol to the Geneva Conventions are considered by the United States as being part of customary international law. The same is true in respect of the Convention on the Law of the Sea, except for its Part XI on deep seabed mining. By protesting against unjustified claims by coastal states the United States has done more to preserve the delicate balance of the Convention on the Law of the Sea than other states. Nevertheless, the international legal order is in the process of developing as two tracks, one with the formal
3
J. Delbrück, “Comments on Chapters 13 and 14”, in M. Byers/G.Nolte (eds.), United States Hegemony and the Foundations of International Law, 416, at 417 (2003).
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commitment of the United States the other without. To close the gap or to prevent it from widening is one of the challenges international law faces at the moment. But what is the reason for the reluctance of the United States to enter into commitments as far as the international normative order is concerned? This American exceptionalism may be the result of an incoherence of interests compared to the ones of the majority of states. If this is the case, it is necessary to reconsider the international negotiation process from the point of view whether it is well designed to accommodate the interests introduced into that process. One has to fathom in each single case why the United States could not have been accommodated either directly or be developing a respective package deal which induced the United States to adhere. In this context one should equally consider whether the United States has formulated its interests clearly and whether the majority wanted to achieve a certain result by referring to its numerical strength. International negotiations although producing legal norms— cannot procedurally be equaled with a national norm making process. International agreements are still considered by national governments and national legislatures whether they offer enough incentives which justify a formal commitment. It may, however, be that the decision not to ratify an international agreement is a result of a reassessment of the government or of a different opinion of the national legislative body. In the latter case this points towards a structural deficit in the respective state organization concerning the conduct of international relations. To sum up on this point. The hegemonic position of the United States makes it necessary that its position is to be taken into account in treaty negotiations if the effective implementation of that given treaty depends on the participation of the United States. As far as international human rights agreements are concerned that may not always be the case. It is different, though, in respect of agreements on the protection of the international environment. For example, the failing commitment of the United States to the Kyoto Protocol severely curtails the effectiveness of this instrument whereas the reluctance of the United States to ratify the Convention on the Rights of the Child is of less direct significance for the global protection of children’s rights. The pragmatic approach advocated here merely reflects realities and should not only be seen under the auspices of the hegemony the United States is exercising. The present state of international relations rules out the developments of international rules on particular issues without making sure that those states who have to carry the main burden of the commitment will be willing to accept them. For example, it would have been unrealistic to adopt a treaty on outer space without the United States and the USSR or an international agreement on the protection of the tropical rain forests against the will of the respective states. The decision of the United States not formally to adhere to an international agreement or commitment may have a more fundamental reason, though. It may have resulted from the American perception that the commitments resulting from such agreements do not conform to the American commitment of democratic self-
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government. This was the argument advanced, in particular, in respect of the International Criminal Court where it was argued, amongst others, that its judges would lack the legitimacy to judge over the behavior over US American citizens. In the following the contribution will only deal with the more generic aspect whether the democratic legitimacy of international commitments entered into by a state is sufficiently guaranteed given the development of international treaty law has taken. Without going into details one has to concede that the negotiation of international agreements in most countries is a prerogative of the executive. As long as international agreements covered issues of little or no direct relevance for the citizens this was a matter of consequence. It is not, any more, when it becomes increasingly difficult to distinguish between matters of external and internal affairs. This problem of democratic legitimacy or rather the lack thereof is being aggravated if international organizations take up legislative or quasi legislative functions.4 The problem of democratic legitimization equally arises in an additional, but related, context. Although the development of international norms increasingly shifts from the national to a regional or the international level the enforcement of the respective rules remains mostly with national authorities. Thus it is increasingly appropriate to consider law from the perspective of a multi-level system where the formulation of norms takes place on different levels. Accordingly democratic accountability for the development of norms and for their enforcement falls apart. This phenomenon has been recognized and attention has been dawn to the increasing role of non-governmental organizations as if these would be able to represent a world public opinion and would thus be able to fill the democratic legitimacy gap.5 Without questioning the relevance of non-governmental organizations this exceeds their capability. The differences in perception on the future of the international legal system are apparent. This issue has—under different headlines—become the topic of many recent studies several of them approaching the issue from the point of view which changes to the international relations are brought about by globalization.6 Several theoretical approaches are under consideration all proceeding from the assumption that the
4
See, for example, E. Stein, “International Integration and Democracy: No Love at First Sight”, 95 AJIL 489, at 490 (2000).
5
See the assessment of, e.g., K. Anderson, The Ottawa Convention Banning Landmines, the Role of International Non-Governmental Organizations and the Idea of International Civil Society, 11 EJIL 91 (2000); B. Kohler-Koch, “Organized Interests in European Integration: The Evolution of a New Type of Governance”, in H. Wallace/A. R.Young (eds.), Participation and Policy-Making in the European Union 50 (1997).
6
See, e.g., A. v. Bogdandy, “Demokratie, Globalisierung, Zukunft des Völkerrechts—eine Bestandsaufnahme”, 63 ZaöRV 853 (2003).
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exercise of authority on the international level be prescriptive, executive or, in particular adjudicative, needs democratic legitimacy. To achieve such democratic legitimacy by abolishing states as the ultimate source for the exercise of public authority by establishing a global legislative, executive and adjudicative authority democratically legitimized on the global level is utopian. The more realistic approach is to strengthen democratization within the current structure of existing international relations. Whether this is, in future, to be achieved by strengthening the role of national legislatures in respect of the development of international agreements and their enforcement, or by establishing global networks between national legislative, executive and adjudicate authority, thus supplementing the exercise of national authority in international relations seems to be the main challenge international law is facing for the future. Its growing relevance for issues which used to be domestic affairs and the growing need to identify community interests and to accommodate them makes it not only necessary to reconsider democratic legitimacy of the exercise of international authority but to design structures and procedures where such legitimacy will be provided for. February 2004
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What Has Been Changed of the International Legal System? Xue Hanqin*,**
Since the end of the cold war, international relations have undergone profound changes and often faced with great challenges1. The anticipation of a time of peace, as envisaged at the dawn of the new era, unfortunately did not come true as subsequent events of regional conflicts and internal wars persistently proved that the maintenance of world peace and security remains the top priority for international community. In addressing security issues, such as serious internal and regional conflicts, grave and massive violation of human rights, and terrorism, the constant resort to force has been seriously debated and questioned as powerful States and State groups are more inclined to restore “order” and “peace” by force than maintaining international actions within the traditional limits. Never before, however, has the existing world order, particularly its legal institution for the maintenance of international peace and security, experienced such a crisis as rendered by the Iraq war, where the United States launched military operations against Iraq without the authorization of the Security Council2 and overthrew its government by force, overtly in defiance of the UN Charter and fundamental principles of international law. Disappointed and divided over the US actions, the international community is more than ever deeply concerned with the impact of US foreign policy, particularly its new national security strategy—the
*
The author is the former Director-General of the Legal Department of the Ministry of Foreign Affairs of China, currently, Ambassador of the People’s Republic of China to the Kingdom of the Netherlands, member of the International Law Commission.
**
The views expressed in the article are solely of the author and do not in any way represent the positions of the institutions for which she has worked and is working. The author undertakes full responsibility for any errors that may be found in the article.
1
The positive developments in the field of international law after the cold war are equally evident as great changes have taken place in the fields of human rights, environmental protection and social development.
2
The US and the UK jointly issued a position paper right before they started the war, claiming that they had got the authorization to use force again Iraq by the combined effects of the Security Council Res. 678, 687 and 1441. Most States, however, are evidently unconvinced.
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“preemptive intervention”—, on the future legal order,3 and on the future of the multilateral system of the United Nations. Undoubtedly, the international legal system is undergoing change, but doubtful is the nature of this change. Professor Karl Zemanek’s essay has rightly placed the issue in focus. It is interesting that Zemanek began his inquiry with the two basic concepts concluded by the Japanese scholar, Yasuaki Onuma in his study on the history of international law from an inter-civilization perspective. In Onuma’s view as summarized in the Zemanek’s essay, throughout history, international community, at various times and in different regions, is either decentralized, regulated by agreements between independent human groups sharing a common world image, or centralized, governed by unilateral rules of a central empire. Based on that proposition, Zemanek wonders whether the current “imperial” tendency of the United States may indicate a beginning of transition of the international legal system from an equal and decentralized state towards a more centralized “empire”. The areas that are identified as having already been affected by the tendency are fairly wide, some of which are of recent developments, (e.g. US positions on climate change and the International Criminal Court) and some are actually consistent practice of the US, (for instance, extraterritorial jurisdiction and judicial assistance). The American attitude towards international law in foreign relations as “Do what we say but not as we do” is notorious4, which has often been criticized even by its own scholars and public. To study the impact of the American legal practice in international relations, the present discussion will start with the very basic issue presented by Onuma, namely, “What is international law?”5 Its purpose, of course, is not to delve into the historic forms and structure of international communities, as the origin of international law is not the interest of the current discussion, but to re-emphasize what has influenced and shaped the law of nations as we know it today and why, so that we would be in a better position to appreciate what have been changed and what are affecting the legal order tomorrow. Historically speaking, as rightly observed by Onuma, it is beyond any question that the European international law as the product of Christian civilization was only one of the normative systems that existed in various regions of the world long before
3
As one commentator pointed out: “The onset of the Iraq war marked nothing less than the beginning of a new world order, an era in which the US has thrown off the constraints and balances of the multilateral system and exercises its enormous political and military supremacy on its own terms.” Financial Times, 30 May 2003, at 13.
4
That is what Onuma referred to as “the hypocritical character of the US behavior”, which gave rise to criticism and challenge to its legitimacy and authority. See Zemanek’s essay.
5
Y. Onuma, “When was the Law of International Society Born?”—An Inquiry of the History of International Law From an Intercivilizational Perspective”, 2 Journal of the History of International Law 2 (2000).
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the sixteenth century, when European values of equality of States with respect to international law began to take shape.6 However, it is equally unquestionable that European international law theory has greatly influenced the contemporary international legal system, more than any other normative system in history, including those illustrated by Onuma. This was dictated not by the system itself, but social conditions in which it grew and developed. When it is claimed, however, that “because it was in fact Europe and not America, Asia, or Africa that first dominated and, in so doing, unified the world, it is not our perspective but the historical record itself that can be called Eurocentric,” it is only half way from the truth, as Europe indeed “dominated” the world, but not “unified” it. Unlike domestic legal system, international legal system or norms, as we regard it today, since its early days was not created to “regulate” the relations between different social communities or national groups. In most cases it was the result of the conquest and the vindication of power of the strong over the weak. Whether to define those norms accepted among a certain international community as “rules” or “virtue”7, they were subject to the will of the powerful and guaranteed by its or their might. Once the power changed, so would the norms. Various social communities, from empires to other types of international systems, differed rather in the number of the powerful at each time than that of an empire and an equal society.8 Even within the “Family of Nations” in Europe, to which international law was applicable, it was the Great Powers that determined the course of legal development.9 As Oppenheim pointed out, “while the weak may propose, it is the strong that disposes.”10 The equality reflected more of equilibrium of powerful members of a certain society than a legal order. The early normative systems, to use the term by Onuma, such as Sinocentric tribute system, the Muslim World, did create certain norms that had binding force on the members of the community, but based on feudalist social system model11 or
6
In his paper Onuma gives the examples as Sinocentric Tribute System in East Asia, the Muslim World, and the Siyar, the Ottoman Empire, etc. Ibid., at 7, 63.
7
Onuma described the Chinese Empire’s tribute system as the rule by virtue. Ibid., at 16.
8
By being “regulated by agreements between independent human groups sharing a common world image”, Onuma’s concept implies that world community was at times, and has been, in a state of associated equals based on shared common goals. On the international plane, even at regional level, this assertion is arguable.
9
Bin Cheng, “Whither International Law?” The Josephine Onoh Memorial Lectures, in Contemporary Issues of International Law, A Collection of the Josephine Onoh Memorial Lectures, edited by David Freestone, Surya Subedi and Scott Davidson 30-35 (2002).
10
Ibid., at 36.
11
In Chinese history, some of the neighbouring countries were regarded as vassal states. Onuma names them as “Bodies politics”. As a matter of fact, they had different status in history. By
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religious faith, such legal systems both socially and culturally had their inbuilt defects, perhaps as being “unilateralistical and hierarchical”, to claim and achieve general application on the global basis. More importantly, none of the powers possessed the necessary abilities and material power to assure its dominance in the world, whether it wanted or not.12 What happened on the European continent after the industrial revolution took off sped up the pace of the European colonial expansion. With their rapidly growing military and economic strength, European States succeeded in opening and dividing up Asian and African continents by cannons (also canons) and warships to obtain access to their market and natural resources, together with their moral and legal justifications for their colonial rule. Although in the international treatise, lease or cession of territory, creation of protectorate, trade preferences, consular jurisdiction, etc. were done by the agreement of the States concerned in the form of treaties, these legal concepts and rules were obviously not shared by the non-European countries as normatively acceptable, but simply deemed as “unequal treaties” imposed by western powers. From the European perspective, these Asian and African countries were not considered as equals under their international law either.13 At the beginning of the twentieth century, only 46 States in the world were regarded as fully sovereign, among which just Turkey and Japan were non-Christian countries.14 A large part of the law provided the legal basis for the colonial expansion and exploitation by the
history, such relations were hardly regarded as “inter-State”, as those territories had once before been, or were still considered part of China at that time. No matter what those neighbours would like to think of such relations, the sense of equality could hardly be interpreted from such social circumstances. 12
The Sinocentric tribute system, as it was described, for instance, was used primarily to maintain the security and stability of the country and its region. The neighbouring States were required to pay tribute in return for the protection from the Empire. Under its feudalist system, it had many rules regarding its relations with its vassal states, but they were largely considered inapplicable to other nations.
13
L. Oppenheim, International Law 29 (1912): [I]nternational law] naturally does not contain any rules concerning the intercourse with and treatment of such states as are outside that circle. That this intercourse and treatment ought to be regulated by the principles of Christian morality is obvious. But actually a practice frequently prevails which is not only contrary to Christian morality, but arbitrary and barbarous.”
14
It is arguable to say that by the end of the nineteenth century that international law as the law of global international society came into existence (see Onuma, supra note 5, at 63), because most of the Asian and African countries were not yet fully independent and not considered as sovereign States. The nature of the law should not merely be determined by the territorial scope of its applicability, but by its content as well.
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imperialist powers of the Asian and African countries.15 This Eurocentric origin of international law is critically recognized by all sides now and no longer presents any debatable issue. After World War II, one of the most significant events in international relations was the founding of the United Nations.16 In the wake of the decolonization process came up a large number of newly independent States that drastically changed the composition of the international community. It is no surprise that Afro-Asian nations did not seek to re-establish their own traditional regional systems after attaining independence, but accepted the basic structure of the international society including international law, which Europeans had created17, because most of their economies were still under the control of the western powers, whose recognition was crucial for these newly independent States to participate in world affairs. Whether and to what extent these States should succeed the international obligations that were passed on to them from colonial times constituted a long, hard political and legal struggle between the former colonial countries and the new States, during the course of which the traditional international law was constantly subject to critical review and revision18. Although the political independence of these new States proved to be just the first step for them to effectively participate in international affairs, their presence on the world stage has nevertheless exerted a great impact on the facets of international relations and the formation of international law, as was to be witnessed by history. Great changes took place not only in the composition of the international legal community after WWII, but more so in the contents of its law. Professor Bin Cheng attributes this to three aspects: codification and progressive development of international law by means of multilateral conventions, growth of international organizations and judicial developments.19 More important in substance is that fundamental
15
As its contribution to setting up a universal legal system, European international law was equally responsible for creating an unequal international society, which still has its impact on the current international relations. See Onuma, supra note 5, at 64.
16
I. Brownlie believes that the political agency for the establishment of the UN was the WWII and associated history of barbarism. The moral purpose of the organization was the promotion of the Rule of Law in international relations. I. Brownlie, The Rule of Law in International Affairs 1 (1998).
17
See Onuma, supra note 5, at 65.
18
Onuma believes that the non-European States not only criticized the existing law but made full use of it. Consequently, international law is not only just a tool of western hegemony, but provided useful weapons for the liberation of non-European. Ibid., at 65. However, these States did not simply use the law as it was, they contributed new ideas and principles into the law.
19
See Bin Cheng, supra note 9, at 50-55.
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principles of international relations were hardened into positive legal rules as enunciated in the purposes and principles of the UN Charter, the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, and the Charter of Economic Rights and Duties of States. Besides, in fighting against colonialism, apartheid, racial discrimination, States, old and new, generally accepted such principles as self-determination, protection of fundamental freedom and human rights, together with other basic principles, as peremptory norms of international law. In recognizing the underlying values of these basic principles by all States, the moral ground of the legal system was expanded beyond the traditional Christian morality and European politics20 and gradually shared by all forms of civilization across the world. This substantial change in the character of the law thus rendered a sound and truly universal basis to the international legal system. Indisputably, international norms can never be separated from international reality. On the contrary, they must reflect it. At the same time, it is also generally realized that in international relations, asymmetry of power is an undeniable factor. The postulate of sovereign equality is often tested and squarely challenged by the factual inequality of States in practice21. In spite of the positive changes mentioned above, the cold war era still saw that great powers and powerful groups continued to play a crucial role in the international law-making, and largely dictated its course, both within and outside the UN system. With two superpowers in rivalry, balance of power not only checked against any possible unilateral actions to be taken by one power to the detriment of the other, but also restrained the desirable progress of international law in the common interests of States at large, as international cooperation often became impossible when the two superpowers were in confrontation. The end of the cold war exerted a tremendous impact on the formation and progress of international law.
20
As observed, the concept of “Europe” received the connotation of political freedom, cultural diversity and equality of states with respect to international law in its fight against Louis XIV’s striving for a “universal monarchy” and it thus began to involve values. H. Duchhardt, “The Missing Balance”, 2 Journal of the History of International Law 67, at 67 (2000); These values evolved in international relations in fight against colonialism and imperialism, which explains why “international law is not only just a tool of western hegemony, but provided useful weapons for the liberation of non-European”. See Onuma, supra note 5, at 65.
21
This is partly due to the factual differences between States in terms of their size, political influence, military power, economic capability and technical development, and partly due to the very character of the system itself, where rules of law are established by consent and consensus of States. Horizontal interplay of international subjects, upon which the institutional structure of the system takes shape, reinforces such a discrepancy between law and reality.
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Apart from a fast proliferation of international conventions in the economic, social and environmental fields in the 1990s, international organizations, with the United Nations in particular, have become increasingly active and important in world affairs, and in the field of international law. Together with that change is the growing participation of NGOs in the international negotiation process. Communal interests in world security, human rights protection, development and environment have become identifiable and universal. Noticeably, acceptance of “civil society” on the international plane is not simply regarded as recognition of NGOs’ role, but more deeply, a direct interplay of public opinion on international law-making at domestic and international levels. It would not be accurate to say that all the changes in the post-cold-war era are encouraging. With economic globalization and fragmentation of international law, such issues as poverty alleviation, development aid, and technical assistance, which are particularly significant to the developing countries, have been greatly marginalized. For example, in 2002, while the budget for the International Criminal Tribunal for the Former Yugoslavia constituted about 10% of the UN total budget22, official development aid to the developing countries dropped to less than 1%23. If the legitimate concerns of the developing countries continue to be neglected or ignored, the very foundation of the world order, upon which the international community claims itself, would surely be questioned and weakened. September 11 Incident definitely changed the US perspectives on world politics and its national security. Given its strong influence in the world, any change in the US national security strategy and foreign policy would inevitably affect the rest of the world, but to what extent such change would affect the future international legal system remains to be seen. Post-cold-war years have witnessed several major wars, some of which obtained the authorization from the Security Council and some did not. While the US position on Iraq deserves hard and critical thinking, the overall practice of use of force in recent years equally deserves a sharp appraisal. The unilateral approach taken by the US towards international law, as described by Zemanek in his essay, is not new, as the US often tends to regard itself as the guardian of world public interests and ready to exercise police power in international relations. It not only unilaterally construes legal rules to suit its political aims, but also actually enforces them accordingly whenever possible. While it claims to be the most democratic country in the world, its foreign policy conducts have proven to be most undemocratic in many cases. The recent events, however, give rise to deeper
22
For the recent UN resolution for the ICTY budget, see the General Assembly Res. 57/288, A/RES/57/288.
23
This only refers to direct budget from the UN, also see the General Assembly Res. 57/293, A/RES/57/293A-C.
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concerns over US policy on the world order. “The intended predominance is manifest and, in view of the unrivalled power of the United States, virtually unimpeded. Should the asymmetry of power in the international system persist one must be prepared for a temporary and possibly extended suspension of certain accepted rules of international law, or at least for their application in a hitherto unfamiliar manner.”24 We cannot guess how far this tendency will evolve, but there are a few important aspects that are likely to impinge on its development. First, as is said above, international legal system is determined by the social conditions in which it is to function. Great powers are the major players in the social development but also subject to it. In today’s world, with economic globalization, international cooperation and regional integration, States have become truly interdependent and interrelated. Even being the strongest power, the United States is more than ever in need of cooperation from other countries to resolve such important issues as security, fight on terrorism, trade, combat against international crimes, non-proliferation of weapons of mass destruction, etc. Even with unprecedented military and economic superiority, it cannot do it alone. Furthermore, to play a leading role in the world affairs, might is not the only prerequisite. In learning what it must do, what it wants to do and what it can do, the United States will not only have to assess how to use its resources prudently to achieve its goals, but more importantly, it also has to weigh up and balance its long-term and short-term interests by providing a rationale that both justifies its actions and reflects the values it has always advocated at home and abroad for the world order. Secondly, the international community has gone a long way to reach the stage where sovereign equality, peace, respect for cultural diversity, democracy and rule of law are generally shared as the common values by all States, regardless of their political, social, cultural and religious background. Although factual discrepancy of power between States often leads to acts that cannot be justified by legal reasoning, conception and conviction in a world order based on international law have only been hardened by factual unfairness. The history of international law has taught us that imperialist norms based on power may still have a bearing on international relations, but they will not be upheld if they run counter to the popular trend of the social development. When international relations are interwoven with domestic politics and foreign affairs are constantly put under public scrutiny, international legal development will definitely respond to the interaction. Thirdly, the US “imperial” tendency indicates that the basic structure of international relations remains unchanged; national supremacy is still the final aim that States are striving for and balance of power between national States renders a
24
K. Zemanek, “Is the Nature of the International Legal Sysem Changing?”, 8 ARIEL 3, 9 (2003).
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continued theme for international politics. Multilaterism, therefore in a way, presents a natural response to the imperial power from the rest of the community, weak and small. As the traditional pattern of rivalry for power persists, the strong will keep looking for enemies in order to provide justification for maintaining its superiority. This temperament, if allowed to indulge, will only provoke tensions and conflicts in international relations, and ultimately jeopardize the interests of the powerful itself. Asymmetry of power will continue to exist for quite some time to come, so will power politics. It is indeed unrealistic to imagine that the international legal system can change this fact. We are not certain that the nature of the international legal system is changing, but we are certain what has been changed of the system and what has changed it. With that historical insight, we should remain confident that a world order based on the equality in law of all members of international community should and will be realized. November 2003
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Articles
Articles
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Common Principles and Fundamental Aims in EU Law
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We Hold These Truths to Be Self-evident, perhaps—Side-stepping the Commonality of ‘Common Principles’ and Fundamental Aims in EU Law Thomas Jaeger*
I.
“…ever closer”
Establishment of the European Union by the Treaty of Maastricht1 in 1992 was the weaving of the first knot of a novel garment for post-modern Europe. Despite the relevance of the reforms, incentives and innovations agreed to at Maastricht, that event must nonetheless be regarded as but the cumulus and node of a string of efforts stemming from throughout the 1980s to lift the European venture to a new level.2 Similarly since then, at Amsterdam in 19973, at Nice in 20004 and, recently, from 2001 to 2003 at the European Convention5, the texture has ever thickened and gained shape. The regularity at which the Treaties were amended and re-worked over those last few years is striking to notice. Not least in the face of enlargement, the desire to get
*
The author is Research Fellow in European Law at the University of Salzburg, Austria (http://www.sbg.ac.at/ffe/people/jaeger.html).
1
Treaty on European Union of 29 July 1992, [1992] OJ C 191/1.
2
Cf. P. Craig/G. de Búrca, EU Law3 22 et seq. (2003).
3
Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts of 2 October 1997, [1997] OJ C 340/1.
4
Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts of 26 February 2001, [2001] OJ C 80/1.
5
Draft Treaty establishing a Constitution for Europe, [2003] OJ C 169/1. The final text of the draft constitution was presented to the European Council at the Intergovernmental Conference at Thessaloniki on 18 June 2003 but was yet awaiting modification or adoption by the Council at the time of publication of this text. For more information see also the website of the European Convention available at http://european-convention.eu.int.
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Europe shaped and attired for the coming challenges has certainly gained force.6 One can however not but wonder whether and in how far, besides the manifest concerns over the feasibility of European cooperation in a post-enlargement Union of 25 or 27 members, it might not also have been a strive for direction in and legitimacy7 of the integration project on the whole that has lent just equal impetus to integration.8 The latter dilemma is fittingly summarized by Erik Oddvar Eriksen and John Erik Fossum: How can the EU rectify its legitimacy deficit? On the basis of three logics of political integration we identify explicit strategies for how the legitimacy deficit of the EU can be remedied. The first strategy amounts to a scaling down of the ambitions of the polity-makers in the EU. If pursued to the full, the EU would end up as a problem-solving or special purpose organisation. Here the EU’s own legitimacy is held to be dependent on its performance and on the legitimacy of the Member States. The second strategy emphasises the need to deepen the collective self-understanding of Europeans. Consistent pursuit of this would make the EU a value-based community in a cultural sense. In this case legitimacy derives from a shared cultural identity. These two modes of legitimation figure strongly in the debate on and in aspects of the EU, but both have become problematic. The third strategy concentrates on the need to readjust and heighten the ambitions of the polity-makers so as to make the EU into a federal multicultural union founded on basic rights and democratic decision-making procedures. This latter strategy sees legitimacy as relying on a set of constitutional and communicative presuppositions, which ensure public deliberation. How robust is such an alternative and how salient is it, as opposed to the other two strategies, in the process of integration?9
6
Cf. S. Douglas-Scott, Constitutional Law of the European Union 36 (2002).
7
On the quest for and models of legitimacy in the EU cf. C. Lord/P. Magnette, Notes Towards a General Theory of Legitimacy in the European Union, ESRC Working Paper (39/2002), available at http://www.one-europe.ac.uk/pdf/w39lord.pdf; for further reading on this issue see M. Plattner, Sovereignty and Democracy, Policy Review 122/2003, available at http://www.policyreview.org/dec03/plattner.html, on the inter-relations of legitimacy, democracy and the ‘Westphalian’ notion of national sovereignty.
8
For a sharp analysis of this problem see A. Somek,
[email protected]—A Note on the Commission’s White Paper on Governance, Juridikum 202 (2002). Cf. also T. Garton Ash, Will Europe never be Europe because it is too busy becoming Europe?, Hoover Digest 2001, No. 3.
9
Europe in Search of its Legitimacy—Assessing strategies of legitimation, ARENA Working Paper 1 (38/2002). For this and other ARENA papers cited in the present text consult the website of ARENA available at http://www.arena.uio.no.
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It is argued here that the Union has gone—at least in part—for the second strategy of deepening the collective self-understanding of its citizens. Treaty by treaty, the EU has solidified its brickwork to become a value-based community. The stated reservation ‘in part’ owes to the fact that from the outside, it is not plainly visible how pressing the objective legal, economic and political validations for treaty reforms in such quick sequence really were. Certainly, there existed some pressure for reform of the legal basis and cooperation mechanisms originating from enlargement on the one hand and from the need to keep on pedalling the integration bicycle on the other.10 Beyond that however, one main objective that prompted those steps of integration was to remedy both the Union’s disorientation and the ache to fill an ‘internal barrenness’11 of the European polity. Be that as it may, the Maastricht Treaty united the previously loose threads of initiative for a wider, less economy-driven perspective of the European integration process and provided the bedrock for all subsequent effort.12 So just as weaving textiles requires a frame, commissioning the clothes for a bulky EU likewise presupposes a framework of assertions as to what such a normative garment should look like and how to craft it strong enough to endure the political ‘wear and tear’.
II. Identifying Commonalities: L’ Europe s’habille Until the mid-1980s, fundamental rights as well as the concept of democracy had not been mentioned in the operative parts of any of the treaty texts. In fact, while the
10
With regard to the process of multilateral trade liberalization, the bicycle theory suggests that if the forward movement (i.e. further liberalization) ceases, the whole process will collapse (i.e. past liberalization will be reversed). The theory was suggested by F. Bergsten, Toward a New International Economic Order (1975), and has since been used beyond its initial scope also with regard to European integration.
11
Cf. Ash, Hoover Digest 2001 (supra note 8): “Although the word constitution is not mentioned in [Declaration No. 23 on the future of the Union, attached to the Treaty of Nice (supra note 4)], most of those involved accept that this is a constitutional debate. There is a serious proposal to convoke, under EU auspices, something like a European version of the Philadelphia convention of 1787. In all previous rounds of EU soul-searching, European integration was assumed to be an open-ended progress toward the “ever closer union” evoked but not defined in the 1957 Treaty of Rome. It was a journey to an unknown destination. Now many—though not all—European leaders feel the time has come to try to describe the destination, to give shape to what the French call the finalité européenne. In short, Europe is summoned to its Philadelphia.”
12
For the relationship between the transformation spark-off by the Maastricht Treaty and the subsequent Treaty reforms see Craig/de Búrca (supra note 2) 23.
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original EC Treaty of 195713 made no reference at all to democracy or other political principles of the like, the Preamble to the Single European Act of 1986 for the first time spoke of a determination of member states to work together to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice.14
A. From Maastricht to the European Convention When at Maastricht15 first vague mention was made of democracy as an element of member states’ identity and of fundamental rights, that was perhaps intended more to constrain the new creature ‘EU’ in gentle cuffs, rather than the member states. Article F of the Maastricht Treaty read: (1) The Union shall respect the national identities of its Member States, whose systems of government are founded on the principles of democracy. (2) The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. […]
Clearly, speaking of a promotion of democracy and fundamental rights, as the Single European Act did, by no means equals the wording of the Maastricht Treaty affirming the respect of these principles, which is to say their full recognition as legally binding. The assertion of a willingness to promote democracy, fundamental rights, freedom, equality and social justice was probably aimed at the relations of the Community with third states more than at the Community itself or even at its member states. In any case also, that wording by far remained behind the ambitious Preamble to the UN Charter of 1947,16 by which all the member states were already bound anyway.
13
Treaty of Rome of 25 March 1957 establishing the European Economic Community, available at http://www.europa.eu.int/eur-lex/en/search/treaties_founding.html.
14
3rd Indent of the Preamble to the Single European Act of 17 February 1986, [1987] OJ L 169/1.
15
See supra note 1.
16
The Preamble to the Charter of the United Nations of 26 June 1945, available at http:// www.un.org/aboutun/charter/index.html, already affirms the faith of UN member states “in fundamental human rights, in the dignity and worth of the human person, in the equal rights
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Nonetheless, the Single European Act is significant insofar as it marks the initial step of mention, and therefore identification, of common European values not directly related to the Common Market. But because the mention was vague enough as to who would be bound by that declaration and to what extent, there was no need on the part of member states to counter the statement of common values in the Single European Act as a very soft step of non-economic integration by securing an opt-out from those values elsewhere. At Maastricht, as was pointed out before, and at each of the treaty modifications from Maastricht onward, additional principles were identified and enshrined in Union law. The Amsterdam Treaty remodelled Maastricht’s Article F to a new and quite expanded Article 6 EU Treaty, which since reads as follows: (1) The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. (2) The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. [...]
Then in 1998, following the 50th anniversary of the Universal Declaration of Human Rights by the UN17 and in response to widespread criticism18 of the EU for not having an appropriate fundamental rights footing, the Council19 decided to begin work on a charter of fundamental rights. The aim was that the fundamental rights applicable at Union level should be consolidated in a single document to raise awareness of them. The work was entrusted to a special body—which decided to call itself the Convention20—made up of sixty-two members including representatives of the governments of men and women and of nations large and small”, in the importance of promoting “social progress and better standards of life in larger freedom”, “tolerance”, “peace” and so on. 17
Universal Declaration of Human Rights, Adopted and proclaimed by General Assembly Res. 217 A (III) of 10 December 1948, available at http://www.un.org/Overview/rights.html.
18
For profound coverage of the manifold aspects of this debate see the different contributions, in Ph. Alston (Ed.), The EU and Human Rights (1999).
19
Cf. Presidency Conclusions of the Cologne European Council of 4 June 1999, available at http://ue.eu.int/en/Info/eurocouncil/index.htm, para. 44: “The European Council takes the view that, at the present stage of development of the European Union, the fundamental rights applicable at Union level should be consolidated in a Charter and thereby made more evident.” Details are laid out in Ann. IV to the Conclusions.
20
Cf. D. Scott, Constitutional Law (supra note 6) 471 et seq.
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of the member states and of the President of the European Commission, and members of the European Parliament and national parliaments.21 The result of the works of the convention was the EU Charter of Fundamental Rights, which in its seven chapters divided into 54 articles defines fundamental rights for the Union and its member states relating to dignity, liberty, equality, solidarity, citizenship and justice. The Nice European Council solemnly proclaimed the Charter as embracing values to the Union and the member states,22 but it was unable to reach agreement on incorporating the Charter in the treaties and thus making it legally binding. Despite the Charter’s lack of legal force, the CFI has taken on a practice of frequent reference to the Charter in its judgments.23 Although this legal policy was not taken over by the ECJ,24 the reference of the CFI to the Charter likely alarmed those member states which had opposed its inclusion in primary law. Since it was not likely that agreement could be reached on this issue within the Council, the matter was referred to the Convention on the Future of Europe, which was set up at the initiative of the Nice Conference and commenced its works in 2002.25 The works of the European Convention (leading to the signature of a Treaty establishing a Constitution for Europe in fall of 2004)25A finally constitute the latest step in this saga of weaving a thick common values basis for the Union on the one hand and the desire by member states to cut holes into it on the other. The aim of that Convention, which was organised according to a model similar to the one used for the body that drafted the Charter, later referred to as the ‘Constitutional Convention’,
21
See Annex to the Presidency Conclusions of the Tampere European Council of 16 October 1999.
22
Cf. Para. 2 and Ann. VIII to the Presidency Conclusions of the Nice European Council of 9 December 2000.
23
Groundbreaking in this respect Case T-54/99, max.mobil Telekommunikation Service vs Commission [2002] ECR II-313, para. 48. For recent references to the Charter see inter alia CFI judgments of 5 August 2003 in Joined Cases T-116/01 and T-118/01, P&O European Ferries, not yet published, para. 209, and of 13 January 2004 in Case T-67/01, JCB Service v Commission, not yet published, para. 36.
24
This despite frequent references to the Charter by its Advocates General, see, e.g., Opinion of AG A. Tizzano in Case C-173/99, The Queen vs Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU) [2001] ECR I-4881, para. 28; Opinion of AG F. Jacobs in Case C-270/99P, Z vs European Parliament [2001] ECR I-9197, para. 40; Opinion of AG Ph. Léger in Case C-353/99P, Council vs Heidi Hautala [2001] ECR I-9565, para. 51.
25
Cf. Presidency Conclusions of the Laeken European Council of 14 December 2001, 24.
25A
Treaty establishing a Constitution for Europe, CIG 87/2/04 of 29 October 2004, available at http://ue.eu.int/uedocs/cmsUpload/cg00087-re02.en04.pdf.
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was to examine four key questions on the future of the Union, among them, as has just been said, the legal status of the Charter of Fundamental Rights.26 The approach of the Convention to the Charter remarkably displays the divided method employed by the Union and its member states in the progressive framing of common values. On the one hand, the Charter forms an integral part of the Draft Constitution as such.27 On the other hand, and quite to the contrary of stipulations by the Convention and the Council that the initial Charter would not be altered, the European Convention introduced a distinction to the Charter between ‘rights’ and ‘principles’. This distinction is elaborated in Article II-52 of the Draft Constitution28: (2) Rights recognised by this Charter for which provision is made in other Parts of the Constitution shall be exercised under the conditions and within the limits defined by these relevant Parts[.] […] (5) The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by Institutions and bodies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.
It is due to this distinction between enforceable rights and not directly enforceable principles that a compromise to include the text of the Charter in the Constitution could be reached. The effect of this distinction, quite clearly, is to—in essence— limit the scope of enforceable fundamental rights to the status quo. After all, the economic and social rights contained in the Charter alongside traditional civil and political rights had essentially been its innovative trait.29 Even so, the remaining merit of the inclusion of the Charter in primary law lies in the highlighting of a whole set of common values, especially solidarity rights, which were already previously mentioned in the treaties but the importance of which for the common basis of the Union is now underscored. This approach to the Charter aptly illustrates that member states seek to solve the legitimacy dilemma of the EU by endowing it with legal foundations reminiscent of those of a democratic nation state, but are all the while reluctant and apprehensive to
26
Laeken Conclusions (supra note 25) 24 et seq.
27
Part II of the Draft Constitutional Treaty (supra note 5).
28
Supra note 5; Now Article II-112 of the Constitutional Treaty (supra note 25A).
29
Cf. Douglas-Scott, Constitutional Law (supra note 6) 475.
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surrender bits national sovereignty and national identity to the supranational entity. The solutions created by them to overcome this predicament are time and again imaginative in their outward appearance, but they all share the characteristic of being opt-outs from proclaimed or actual European commonalities. Nonetheless, gradually, the common fabric surrounding them becomes denser.
B. Assessment I: A Robe for A Common Identity? With the portrayed proliferation of common principles from Maastricht to the European Convention and the Constitutional Treaty, the terminology of ‘common values’ has become profuse: There are liberty, democracy and the rule of law.30 The respect for human rights and fundamental freedoms, the safeguard of dignity, equality and solidarity has taken on the form of a fully-fledged fundamental rights charter which even encompasses social and solidarity rights or, at least, principles. Through the end to the former taboo on use of the word ‘constitution’ for the set of treaties underlying the European polity brought about by the European Convention,31 these principles may now even be referred to as ‘common constitutional principles of the Union’. In stages, a common set of legal principles, social values, philosophical beliefs, scientific doctrine, or whatever may ultimately be the most appropriate denomination, made its way into the foundational laws of the Union. What these had in common was firstly their detachment from, and difference to, the reasonably tangible rules of (mostly economic) law hitherto and, secondly and not entirely unrelated to their anomalous nature vis-à-vis the rest of the treaty rules, their comparative practical insignificance. What is more important in the context of this examination however, another joint similarity lay in one less prominent characteristic: The implicit assertion that all of the proclaimed values were characteristics of the Union and thereby ‘common’ to the member states. That the principles of democracy, respect for the rule of law, fundamental rights etc are commonly shared by the member states in their legal systems is a statement that may be easily agreed to in this generality. After all, it had already hitherto formed part of not least the European Convention on Human Rights,32 signed and ratified by all member states33 and respected by the European Court of Justice as exerting
30
All of these : Arts. 6 (formerly Art. F) EU Treaty (consolidated version).
31
See Craig/de Búrca (supra note 2) 51. Also Ash in supra note 11.
32
Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, ETS No. 5.
33
For the latest status of signatures and ratifications check the Council of Europe website available at http://conventions.coe.int/-treaty/-en/searchsig.asp?NT=005&CM=&DF=.
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influence also on the European legal order.34 The European Convention on Human Rights had therefore already previously guaranteed a certain level of uniformity in human rights standards and therefore a certain set of shared values. Equally, despite the absence of any reference in the original constituent treaties to the protection of fundamental rights, the ECJ has long drawn inspiration from the constitutional traditions common to the member states.35 On that basis, the Court proclaimed and enforced ‘common constitutional principles’ as ‘general principles of Community law’.36 The overall picture as it stands thus really seems to indicate that the set of values and principles shared among the member states in their legal systems and traditions is coherent and ‘common’. In fact, there really can be no doubt that European states as such share a wider set of values and principles among themselves than they do with anyone else in the world—including the United States. On the other hand however, as John Erik Fossum rightly points out, [t]hese principles are central requirements of democratic legitimacy, and although they emerged in Europe, they have been spread worldwide. They are also universalistic, in that they provide few, if any, clues to the specification of a unique European identity.37
At such a general and abstract—indeed, universalistic—level, it is easy to agree on commonalities. The nitty-gritty really rests in the detail. Differences between member states are therefore abundant where it comes to, for example, the definite understanding and system of democracy, the scope and content of a given fundamental right, its enforcement or simply its importance and position in the social and political texture of a member state or even its territorial subdivisions and so on. Differentiations to the commonality of rights and values are abundant and crisscross the Union from West to East, like the abortion issue, and from North to South, like out-of-wedlock or
34
Consistent jurisprudence of the Community Courts; For many cf. ECJ Case C-415/93, Union royale belge des sociétés de football association ASBL vs Jean-Marc Bosman [1995] ECR I-4921, para. 79; ECJ Case Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, para. 18.
35
Cf. Ph. Alston/J. Weiler, An ‘Ever Closer Union’ in Need of a Human Rights Policy: The European Union and Human Rights, 9, in: Alston, Human Rights (supra note 18).
36
ECJ Case 4/73, J. Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities [1974] ECR 491, para. 13; CFI Case T-54/99, max.mobil Telekommunikation Service GmbH vs Commission of the European Communities [2002] ECR II-313, para. 48.
37
J. E. Fossum, The European Charter—Between deep Diversity and Constitutional Patriotism?, ARENA Working Paper 1 (5/2003).
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same-sex partnerships, but they also divide the map of the Union to a freckled pattern, like the scope of, and viewpoint on, social protection, and sometimes they even divide the regions of a member state between themselves.38 The intrinsic merit of commonalities thus construed to overarch differences without addressing them is however limited for the building of a common identity.
C. Assessment II: What Roots for ‘Constitutional Patriotism’? It is such differences that Timothy Garton Ash has in mind when describing the fine poise between the lack of political and cultural coherence of the European states and their indisputable commonalities to some extent as follows: EU-rope is a formidable economic community. It is, increasingly, a community of shared European law. The EU may not be good at projecting power or security, but it is itself a security community—a group of states for whom it has become unthinkable to resolve their differences by other than peaceful means. […] Moreover, though very far from being a direct democracy, or likely to become so, it is a community of democracies. However imperfectly, those democracies control and hence give legitimacy to its working. Measured against the European past— and the Balkan present—that is a lot to be happy about. If you look for a coherent, rational, transparent, democratic structure, you will be disappointed in the EU-rope of 15 states, and probably even more so in a EU-rope of 27. If, however, you think of it as a process rather than a structure, a method rather than a piece of architecture, you need not be. And you can be rather more optimistic about a EU-rope of 27, or 37, continuing somehow to work. To adapt Churchill’s famous remark about democracy: this is the worst possible Europe, apart from all the other Europes that have been tried from time to time.39
It seems therefore that, even though there is too little cohesion to brag about, all is not lost. But do the commonalities suffice to support ongoing, “ever closer” integration and Europe’s yearn for legitimacy? Also, in order to build a coherent, solidarious ‘European public’, a model of allegiance to a multi-cultural, multi-ethnic polity transcending the ‘classical’ scheme of identification along parameters of ‘nationality’,
38
For this last issue cf. ECtHR, Otto-Preminger-Institut vs Austria, judgment of 20 September 1994, Series A 295-A on the varying levels of religious and spiritual sensitivity to be observed in different European regions with regard to restrictions on the freedom of expression.
39
Hoover Digest 2001 (supra note 8).
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known as ‘constitutional patriotism’,40 has been suggested for the EU.41 Yet constitutional patriotism too requires a sufficiently thick set of shared values to base itself upon. As a post-national, rights-based type of allegiance, constitutional patriotism allows no attachment to intangible, conceptual principles but presupposes support and emotional attachment. The set of common principles required here is embedded in a particular context, deriving from an institutional context and from geographical traditions.42 In this respect, it is hard to see how common principles as vague as the ones contained in the European constitutional texts would suffice to substitute or at least over-ride existing frames of cultural reference. If these values are to serve the cause of forging allegiance to the European polity and of solving its legitimacy crisis at all, they must, as John Erik Fossum correctly highlights, be “pursued to the full”.43 This however inevitably means fleshing them out further. Interestingly enough, such an attempt was first made only recently, in 2000. In search for a way out of the ‘sanctions of the EU-14’44 against Austria, the report45 of the ‘three wise men’ for the first time really undertook a close definition of what ‘European values’ were supposed to mean.46 After all, the task of the team was to
40
This term originates from J. Habermas, who progressively shaped-out its meaning in discourse and writings, cf. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (1996), and Struggles for Recognition in the Democratic State, in C. Taylor/ A. Gutmann (Eds.), Multiculturalism (1994).
41
For this discourse see, among many, J. Lacroix, For A European Constitutional Patriotism, Political Studies 944 (2002); R. Bauböck, Citizenship and National Identities in the European Union, Jean Monnet Working Paper 4/1997, Pt 5; C. Closa, Forging European Constitutional Patriotism: Deliberating on the Constitution within the Convention, Paper for the CIDEL Workshop “Deliberative Constitutional Politics in the EU”, Albarracín 20/21 June 2003, available at http://www.arena.uio.no/cidel/workshopZaragoza/CClosa.pdf.
42
Fossum, European Charter (supra note 37) 4.
43
Fossum, European Charter (supra note 37) 5.
44
This term emerged in the ensuing discussion to depict a set of measures of purely diplomatic nature taken by the other fourteen EU member states vis-à-vis Austria on 4 February 2000, in response to the formation of a coalition government in Austria which included the far right “Freedom Party”.
45
The report by M. Ahtisaari/J. Frowein/M. Oreja on the Austrian Government’s Commitment to the Common European Values of 8 September 2000 is available at http://www.arena.uio. no/PDF/reportwisemenaustria.pdf; for an evaluation cf. Editorial of the 9 ZER 122 (2000), Die Beendigung des Sanktionsregimes durch die Vierzehn.
46
For an illustration relationship between the ‘Austrian case’ and Arts. 6 and 7 EU Treaty see M. M. Hintersteininger, Enhancing the Rule of Law Within the European Union—The Contribution of the Treaty of Nice, 5 ARIEL 31, 52 et seq. (2000).
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verify “the Austrian Government’s commitment to the common European values in particular areas.”47 However, as the mandate of the examiners was limited to the fields of minorities’ rights and to refugee and immigrant legislation, the report only defined the common European standard limited to these respects. More pertinent to the present context than the findings of the report was the method chosen for the verification of the content of European values in a given field, which was, in the end, a very pragmatic one. The approach of the report consists of an enumeration and examination of the acquis communautaire, i.e. the existing primary and secondary norms, including the jurisprudence of the Court of Justice, in the areas of concern. In addition to binding laws, the report also took account of non-binding but generally accepted EU texts on the one hand, such as the Declaration against Racism and Xenophobia,48 and of nonEU international agreements binding on all the member states, such as the Council of Europe Framework Convention on the Protection of National Minorities,49 on the other. In this context, it is first of all interesting to note that in order to endow a peculiar aspect of Europe’s common values with genuine meaning, the authors of the report did not seek to establish an independent definition of the values at issue. Such a ‘universal’ definition could, for example, have been deferred from philosophical discourse, legal theory or sociology. Instead, they conducted a synopsis and evaluation of those actions, which the Union or the member states in unison had actually taken in the pursuance of those values. This approach is quite justified in view of the fact that, as was shown earlier, political and ethical principles, although bearing the same names in all member states, may nonetheless be subject to quite different scopes and application practices. A ‘Community content’ of such principles is therefore conditional to either uniform state practice or to further EU action to flesh it out. In the absence of both, a given principle cannot be regarded as part of the ‘common values’ of the whole entity. Secondly, the report does not give a definition or framework concept of what European values are, although precisely these are the subject of examination. Much rather, it takes their existence as the granted starting point of the investigation. Perhaps therefore, the ‘common European values’ as understood and applied in the report, are generally not subject to a predictable definition and simply yield no precise content in the absence of their infringement. Thirdly however, it is significant to appreciate that the check-up of Austria’s adherence to the Union’s ‘common values’ was initiated in spite of these uncertainties
47
Report (supra note 45) para. 1.
48
[1986] OJ C 158/1.
49
Framework Convention for the Protection of National Minorities of 1 February 1995, H(1995)010.
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and even though those values were to be identified only in the process of the examination itself. The ‘common values’, despite their vagueness and blueprint character, are therefore very real for the Union. This means that although we can perhaps not say what exactly the ‘common values’ are, we cannot dismiss them as purely programmatic. As the example of the ‘Austrian case’ demonstrates, the considerable weaknesses in the definition and exactitude of the concept of ‘common values’ do not render the concept as such insignificant vis-à-vis limiting member states’ sovereignty. After the ‘Austrian case’, the latest attempt in spelling out the common value basis of the Union was made at the occasion of the Draft Constitutional Treaty drawn up by the European Convention.50 The Constitutional Treaty’s approach is to strongly reinforce the concept of European values at large, by way of numerous explicit, but even more implicit references to them throughout the text.51 Most prominent among these is the statement contained in Article I-1, whereby the Union is open to accession only to “European states which respect its values and are committed to promoting them together.” In the absence of an elucidating definition or enumeration of the EU’s values beyond what was already contained in Article 6 of the EU Treaty,52 one may but wonder whether not the, although not novel,53 restriction to European states does not imply that the fact of a state being European is in itself one of the common values. On the whole, although the identification of commonalities as undertaken by the report of the ‘three wise men’ was too limited in scope to substantively contribute to the debate over common values, the pragmatic tactic chosen affords an indication as to what method may be fitting for future attempts to track down the essence of that concept. The works of the European Convention equally did not add substance to the concept of values of the Union beyond what can be found already in the preceding treaties.54 Again therefore, its main benefit is to be seen in fuelling the debate over the value basis of the Union and in codifying that basis in a single document. Given
50
See supra note 5 for the Draft, and supra note 25A for the final Treaty.
51
Cf. J. E. Fossum, Still a Union of deep diversity?—The Convention and the Constitution for Europe, ARENA Working Paper 10 et seq. (21/2003).
52
See supra note 14.
53
This provision was already contained in Art. 49 (ex-Art. O) EU Treaty. Already before that, the Preamble to the EEC Treaty of 1957 in its 7th recital called upon “the other peoples of Europe who share their ideal” to join. When in 1987 the application of Morocco to join the (then) EC was turned down, it was likely due to the fact that Morocco was not regarded to be European, cf. K. Lenaerts/P. van Nuffel, Constitutional Law of the European Union (1999), para. 6-007.
54
Cf. Fossum, Deep diversity? (supra note 51) 15.
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that there were no material expansions of the concept however, the present avowals of commonality may still yield too little real meaning to provide a basis for a ‘constitutional patriotism’-type allegiance. Without such allegiance though, the tendency of member states to cut holes into the common values robe will doubtlessly remain prominent.
D. Assessment III: Preliminary Conclusion Notwithstanding a blatant lack of tangible content thus, the concept of common values and principles of the EU has become more significant throughout the treaty reforms of the recent years. The common values of the EU have, bit by bit, moved from the systematic margins of the treaties toward the centre of the legal framework. While in the beginning, they were very much an added beautification for “Lady Europe”, who actually bore other, perhaps more economic, but certainly more pragmatic interests in her heart,55 it appears from the direction of treaty reform at the level of an European Convention and the emergence of a true ‘European Constitution’ that these principles have transformed to form the backbone of the European body, from which all other components now transpire. The latest change in terminology illustrates this process, where the ‘common values’ are merged with the ‘constitutional’ foundations of the EU to become ‘constitutional values’. Apparently, the proclaimed commonality of the values may be merely superficial and does not allow for the pining-down of a clear-cut content. When nonetheless each new treaty introduced or identified further commonalities, that was owing to the need to invigorate the integration and enlargement processes. In parallel however, the ‘common principles’ gained practical relevance. The prominent example of the potential power of these principles to limit the range of sovereign action of member states was the subjection of Austria to a scrutiny of its adherence to the Union’s ‘common values’. Member states can hence be expected to remain cautious about the concept and will latently seek ways to side-step some of its pieces.
55
As is suggested by the functionalist theory of integration, the concerns of the Community in its early years were essentially of a very pragmatic nature and extended to efficient and technocratic management of some very distinct economic sectors, see Craig/de Búrca, EU Law (supra note 2) 5 et seq. and 9, and P. Craig, The Nature of the Community: Integration, Democracy, and Legitimacy, 3 et seq., in P. Craig/G. de Búrca (Eds.), The Evolution of EU Law (1999).
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III. Exit from Commonalities: L’Europe se déshabille Although these little by little established principles were labelled ‘common’ to the member states and placed at the very foundations of the Union, it became necessary from the point of view of the Union to secure and—where needs be—to enforce them by way of sanctioning mechanisms. Whereas until the Treaty of Amsterdam,56 the infringement procedure contained in Articles 226 to 228 EC Treaty was the only means of sanctioning the illegal conduct of member states under EC law, enlargementrelated precaution and, later, the ‘Austrian case’ respectively fostered the introduction and furthering of the much more far-reaching procedure of suspension of voting rights under Article 7 EU Treaty.57 Correspondingly at the level of the member states, the proliferation of actual or proclaimed commonalities in the treaties prompted a dive to secure opt-outs from those policies and principles. In this regard, the integration process, which has a momentum of its own, is to be separated from the procedures and devices, such as opt-outs, available to players within that process. The term ‘integration’ as used here depicts the process of harmonization of the different national legal orders with a view to establishing a uniform European legal system.58 It should be noted at this stage that most of the opt-out mechanisms concern political integration, while economic integration is mostly not questioned.59 Opt-outs from Economic and Monetary Union and the full ‘negotiated withdrawal’ from the Union are exceptions in this regard.60 Despite these examples, it is certainly true that most concerns of member states over a loss of sovereignty concern non-economic areas, such as, prominently, foreign policy, home affairs, social policy or the like. It is in these areas that integration either does not advance at all, or that advances are agreed to at the cost of opt-outs. In a defensive move vis-à-vis harmonization efforts, member states seek to preserve their, authentic or alleged, national, regional, infra-national and other identities.61 The progressive pushes for commonality in the recent treaty amendments prompted the parallel introduction of exit options from those commonalities for the member states. The description of the exit/voice-loyalty-mechanism initially stems from economic
56
See supra note 3.
57
Cf. Hintersteininger, 5 ARIEL (2000) (note 46).
58
Cf. Schauer, Schengen (infra note 68) 21.
59
Cf. also the quote by Ash given above (supra note 39).
60
These mechanisms will be illustrated in detail below.
61
Fossum, European Charter (supra note 37) 2.
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theory,62 but it has since trespassed disciplinary boundaries. The model proved a source of fertile insights for a large variety of organizations, from the family, to political parties, to the collapse of the political system of East Germany, and, finally, to the mode of cooperation of states and institutions in the European Union.63 The theory seeks to explain the inclination of actors constrained within a given system or bound by a given set of rules to adjust the rules according to their needs and preferences rather than to walk out on the system altogether. Where voice-loyalty is the choice of actors to influence an existing system, exit is the choice to abandon the existing system. The supposition is that the likelihood of actors to exit rather than to adjust the system is predisposed by the cost of their exit. In other words, the more exit options are available to actors and the easier these can be implemented, the more likely they are to opt-out of a constraining system rather than to seek to change it.64 At Maastricht already, due to resistance of the United Kingdom, the Social Policy Chapter could only be introduced to the first pillar at the expense of its selective applicability.65 That regime was only ended in 1997 by the Amsterdam Treaty when the United Kingdom abandoned its opt-out and agreed to an incorporation of these norms into the EC Treaty.66 At Amsterdam also, and more importantly, the foundation for flexible integration along structured, pre-defined legal provisions of primary law was laid in the form of the enhanced (then: closer) cooperation mechanism. Equally at Amsterdam, and not unlikely already with a view to enlargement, the aforementioned provision of Article 7 was added to the EU Treaty allowing for the suspension of the voting rights of a member state in “serious and persistent breach” of the common fundamental principles. In the subsequent Treaty of Nice,67 both the flexibility and the voting rights suspension-mechanisms were broadened and refined. Finally, in the Constitutional Treaty, member states were granted the fiercely debated right to
62
A. Hirschmann, Exit, Voice and Loyalty: Responses to decline in firms, organizations and states (1970).
63
For this last aspect cf. J. Weiler, The European community in change: exit, voice and loyalty (1987); M. Wohlgemuth, ‘Exit, Voice und Loyalty’ im Europäischen Binnemmarkt, in H. Hegmann/B. Neumärker (Eds.), Die Europäische Union aus politökonomischer Perspektive (2002).
64
For more insight into the exit/voice-loyalty-theory and in particular its application cf. R. Bauböck, Why Stay Together?—A Pluralist Approach to Secession and Federation, Vienna Working Papers in Legal Theory, Political Philosophy, and Applied Ethics, 1/1998, available at http://www.juridicum.at/forschung/federal.pdf.
65
See Protocol No. 14 attached to the Treaty of Maastricht (note 1).
66
Now Arts. 136 to 145 EC Treaty.
67
See supra note 4.
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voluntary withdrawal from the Union. An even more controversial provision obliging member states to mandatory withdrawal in case of failure to ratify amendments was, although finally not included in that text, on the constitutional agenda for some time. All of the depicted mechanisms introduced mirroring the thickening of the texture of “common values”, allow actors to exit the political and legal discourse and to resort to proceeding non-consensually, albeit at varying degrees of intensity. It is for this reason also that these mechanisms in their very essence do not constitute a form of loyalty-enhancing ‘voice’. The introductions of, for example, enhanced cooperation or the right to voluntary withdrawal do not foster integration efforts by giving member states additional bargaining power in the modelling of those efforts and thus, as such, do not enhance their willingness to cooperate with a view to furthering integration. Much rather, these provisions are pure ‘loopholes’ for potential exit. Nonetheless, the parallelism of integration and disintegration processes in the EU does not suggest a clear separation of exit and voice mechanisms. As will be shown in more detail below for the example of enhanced cooperation, the threat of exit can also add to a player’s bargaining power. Still, the fact that an exit mechanism need not in all cases actually be used for exit but can be employed as a means of voice does not alter its qualification as essentially an opt-out. What should finally be stressed to round-up this introduction to disintegration mechanisms is the absolute parallelism in the movements to introduce and expand the ‘common values’ groundwork on the one hand, and to secure opt-outs on the other. At the occasion of each treaty, both blocks were adapted and the expansion of one concept did not occur without the parallel expansion of the other. This phenomenon shall now be looked into in detail for three of the aforementioned mechanisms. They are illustrated and assessed as examples of the disintegrationist momentum that contrasts the progressive integration steps as described in detail earlier above.
A. Differentiation: Enhanced Cooperation Depending on the definition of ‘flexible integration’ chosen,68 differentiation mechanisms were contained in the treaties from, more or less, the very beginning. A very broad understanding would be focussed only on a differentiated yet parallel application of the rules of law within a given normative system. From this definition, the mere fact of partial territorial limitation of the scope of the EC Treaty, or specific derogations in favour of some member states, would qualify as differentiation
68
For an overview of definitions cf. M. Schauer, Schengen-Maastricht-Amsterdam—Auf dem Weg zu einer flexiblen Union (2000), 21 et seq.
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mechanisms.69 This definition however is too far-reaching. Differentiation does not mean just any arbitrary derogation from a given legal regime but refers specifically to a graduation from one level of integration to the next one.70 Differentiation thus construed as a ‘variable geometry’ approach does not imply a degeneration towards a Europe à la carte, in which each member would be able to pick up its favourite items without having to enter compromises with the others, as long at it is based upon a clear ex ante concept for flexible integration. On the contrary, it involves the definition of a Europe au menu, in which member states would be offered a limited number of clearly defined options.71 The term ‘differentiation’ as used here therefore depicts all integration concepts, which allow further integration only with respect to single components of the whole concept.72 The earliest example of flexible integration under the definition used here is to be found in the selective application of the Social Policy Chapter73 following the Treaty of Maastricht.74 From the given definition of differentiation already, the co-relation of the processes of integration and differentiation is quite evident. Already that definition illustrates very well that the introduction of and recourse to flexibility mechanisms is always related to, or triggered by, a parallel strive for further integration in a particular field. In other words, the thickening of the Community texture with regard to a particular aspect often meant that elsewhere loopholes would open up. In particular with regard to important integration advances, some member states will usually only agree to the advancement if they may at the same time secure a way to side-step this advancement where needs be—even if they subsequently actually never make recourse to that possibility. Examples here are manifold75 and range from the various safeguard clauses76 in the EC Treaty to normative frameworks of a larger scale and the respective 69
Cf. D. Hanf, Flexibility Clauses in the Founding Treaties, from Rome to Nice, in B. de Witte/D. Hanf/E. Vos (Eds.), The Many Faces of Differentiation in EU Law 5 et seq. (2001).
70
Cf. J. Pisani-Ferry, Dealing with Diversity: The Challenges for Europe, Berkeley Roundtable on the International Economy Working Paper 20 (122/1998), available at http://repositories. cdlib.org/brie/BRIEWP122.
71
Pisani-Ferry, Diversity (supra note 70) 18; For the flexibility-related terminology used here see the overview by D. Thürer, A Variable Geometry for Europe, in: D. Thürer/C. Jennings, Churchill Commemoration 1996—Fifty Years on: Constitutional, Economic and Political Aspects 99 et seq. (1997).
72
Cf. Schauer, Schengen (supra note 68) 21.
73
Cf. supra note 65.
74
Equally A. Arnull/A. Dashwood/M. Ross/D. Wyatt, European Union Law 164 (2000).
75
Cf. the different contributions in De Witte/Hanf/Vos, Differentiation (supra note 69).
76
A few prominent examples are Arts. 15, relating to temporary derogations from harmonisation measures, 95(4), relating to the approximation of member states’ laws which directly affect
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exception regimes, such as the Schengen accords77 or monetary union78. Enhanced cooperation is the paradigm of systematic differentiation in European integration. It allows a group on member states to press ahead in a certain area of Union policy without it being necessary for all member states to be on board.79 Since a minimum number of (now eight) member states suffices to initiate cooperation, the mechanism at first appears to be a very proactive instrument for fostering integration initiatives rather than, as is suggested here, a loophole to side-step commonality. This all the more so, since enhanced cooperation initiatives may not touch upon or go back behind the overall state of integration at the time of authorization. If however one adopts a slightly different perspective, it emerges that perhaps the member states that initiate cooperation further integration less than the states which do not participate hinder integration. After all, steps to raise integration to a higher level are not taken at random but only when the need to take them arises. If therefore it appears necessary or opportune to deepen integration in one particular area and a large number of member states are determined to push the respective project through, the only way for some member states to escape the prolonged political pressure of the others without eventually succumbing to it may be to authorize the enhanced cooperation of the others.
the establishment or functioning of the common market, and 175(5) EC Treaty, relating to exceptions from measures of the Community taken under the environmental policy chapter. 77
The Schengen acquis initially developed by some of the member states in an intergovernmental framework, was incorporated into the EU (Title VI) and EC (Title IV) frameworks with the entry into force of the Amsterdam Treaty, cf. Schengen Agreement of 14 June 1985 on the gradual abolition of checks at their common borders and Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, [2000] OJ L 239/19. Art. 1 of Protocol No. 2 annexed to the Treaty of Amsterdam states that the Schengen cooperation is an instance of closer cooperation and thereby allows its disapplication in the United Kingdom and Ireland. Further derogations will nonetheless not be allowed, as Art. 8 of the Protocol stated that the rules adopted by the institutions on the basis of the Schengen acquis must be adopted in their entirety by all applicant countries.
78
Arts. 105 to 111 EC Treaty; Derogations are governed by Protocols No. 24 to 26, all annexed to the Treaty of Maastricht. From the non-participants in the third stage of Economic and Monetary Union, only the United Kingdom and Denmark benefit from opt-out clauses. Sweden, which does also not participate does not at present meet all of the criteria regarding the independence of its central bank.
79
For an overview of the enhanced cooperation mechanism see T. Jaeger, Enhanced Cooperation in the Treaty of Nice and Flexibility in the Common Foreign and Security Policy, EFAR 297 (2002).
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The introduction of the Schengen acquis into the legal framework of the European Union is in fact a very good example of such dynamics. According to Article 1 of Protocol no 2 attached to the Treaty of Amsterdam, Schengen embodies a form of closer cooperation as newly introduced by that Treaty. That cooperation however was not established because a group of member states had a vanguard idea of deepening collaboration in the area of border checks and the free movement of persons. After all, at the time of the Amsterdam Treaty, the Schengen system had been in place and working for over a decade. Just as the Schengen cooperation had to be established outside the framework of the Community in a multilateral agreement because it was not possible to agree on it within the Community framework,80 its final introduction to the EU legal system in the form of closer cooperation was a loophole for the United Kingdom in particular to stay out of it while at the same time ending the political pressure from its European partners. Enhanced (or then: closer) cooperation in this instance therefore provided a means for one member state to sidestep a set of norms common to others. Admittedly, the Schengen cooperation does not involve commonality among the member states with respect to values and fundamental principles which were sidestepped. It is therefore only of limited value to the present examination. Yet the example set by Schengen is easily transposable to other areas which involve ‘common values’, such as for example social policy. With regard to the introduction of the Social Policy Chapter, no closer cooperation was established at Amsterdam because the British Labour government of the time ended its country’s previous opposition in the social area and rendered an unrestricted incorporation into the EC Treaty possible. Had this however not been the case, it is perfectly conceivable that the way out for that member state from the thick common texture in the social field would, again, have been the authorisation of a closer cooperation by the others. The means of non-participants to influence the direction and content of an enhanced cooperation once it is authorized are infinitesimal—and so is therefore the need for discourse between participants and non-participants of a running cooperation. The participants in the cooperation set its agenda and the extent of commonality attained in the respective field. The common texture woven within the cooperation inevitably becomes the Union’s acquis in the respective area, since the only direction foreseen in the EU Treaty that enhanced cooperation can take is that the outsiders eventually join it, and therefore the enlargement of the cooperation to eventual dissolution or redundancy by congruence with the rest of the EU.81 There is no provision in the treaties governing or requiring enhanced cooperation, once authorized, to end for any (other) reason. The only way for outsiders to influence the direction of the
80
Cf. Arnull et al., European Union Law (supra note 74) 156.
81
Cf. Art. 43 (j) EU Treaty.
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cooperation is therefore to join it. This again depicts that enhanced cooperation is an opt-out from further integration and common values, not so much for the participants than rather for the non-participants. Still, because of the, albeit minimal,82 consensus required to obtain authorization and because most83 forms of cooperation will remain subject to court control, enhanced cooperation is only a ‘soft’ form of exit for nonparticipants from the common values and principles of EU law.
B. Article 7-Procedure By the same token, the procedure leading to the suspension of voting rights may well be regarded as a form of exiting discourse and commonality. As was shown, the Article 7-procedure was introduced by the Treaty of Amsterdam and elaborated at Nice,84 a development paralleled by the introduction of the common values of Article 6 EU Treaty.85 Under Article 7 EU Treaty the Council86, on a reasoned proposal by one third of the member states, by the European Parliament or by the Commission, may determine that there is a clear risk of a serious breach by a member state of any one or all of the principles mentioned in Article 6(1) EU Treaty. The Council will then “address appropriate recommendations to that State.” Where the member state fails to comply, after having acknowledged the observations of the member state concerned, the European Council87 may unanimously88 determine the existence of a serious and persistent breach Article 6(1). On a basis of such a determination, the Council may subsequently also decide to suspend “certain of the rights deriving from the appli-
82
The number of consenting member states required to launch a cooperation varies from field to field, cf. Arts. 27c, 40a(2) and 43(g) EU Treaty and Art. 11(2) EC Treaty.
83
There is no judicial review of acts adopted under the Common Foreign and Security Policy, which encompasses enhanced cooperation in that field, cf. Art. 46 EU Treaty.
84
Cf. Hintersteininger, 5 ARIEL 48 et seq. (2000) (supra note 46).
85
One of the member states which proposed this amendment was Austria. Since the political sanctions imposed on it in early 2000 (see supra note 44 and 45) had been ad hoc and not governed by any substantive or procedural provisions, Austria was keen to secure more detailed provisions for comparable cases in the Treaty which would respect the procedural rights of the member state concerned, cf. Craig/de Búrca, EU Law (supra note 2) 45.
86
In this instance the Council of the European Union or ‘Council of Ministers’.
87
The European Council comprises only the Heads of State and Government of the EU member states.
88
Under Art. 7, the Council and European Council act without taking into account the vote of the member state in question. Abstentions by members present in person or represented do not prevent the adoption of decisions; Cf. Art. 7(5) EU Treaty.
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cation of this Treaty to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council.” The situation here is different from enhanced cooperation and other conventional opt-outs insofar as it is the Union who exits the discourse as to what political measures of a member state may be tolerable within its definition of common or fundamental principles. It does so by imposing the suspension sanction foreseen in Article 7(3) EU Treaty. What is interesting here is that, while exit is an option typically associated with member states action, in the case of Article 7 it is the Union that ‘walks out’ on a member state or perhaps even on a small cluster of member states that do not uphold these common principles. As however the state of suspension under Article 7 is intended as temporary and will result in either the lifting of the suspension or a likely withdrawal of the state from the Union, this form of exit can be characterized as merely ‘transitory’. By employing Article 7, the Union of course does not depart from its own fundamental principles as such, since it is precisely these principles it intends to safeguard through the Article 7-procedure, but it departs from commonality nonetheless. The opening of an Article 7-procedure is proof of the fact that there is a rift in the understanding or application of common values between the respective member state and the Union. After all, did the estrangement not lie in the understanding of the Union’s common values, the member state accused of infringing Article 6 EU Treaty would doubtlessly realign its policies rather than to tolerate the opening of a procedure against it under Article 7. The respective member state, on the other hand, finds itself in a wholly defensive position, as it remains bound by all obligations arising from its membership but possesses no means under EU law to force a suspension to be lifted.89 One way for it to interrupt the Article 7-procedure once it was launched is to bring its policies back into line with the Union’s common understanding of the principles of Article 6 EU Treaty. The other, however less likely, alternative for the member state is to convince the Union that its behaviour is in fact in line with those principles. By doing so, the concept or application of the common fundamental principles of the Union might at the same time be broadened as well as diversified. In other words a broadening of the understanding of the common principles in this rare case would not add to their commonality but would, quite to the contrary, likely water it down. Where therefore a member state managed to attain a lifting of the Article 7-procedure or regime without having had to change its policies, that member state had effectively side-stepped the Union’s previous commonality in the disputed field. In this almost negligible scenario therefore, Article 7 yields a small chance for a way out of common values for member states.
89
Cf. Hintersteininger, 5 ARIEL 59 et seq. (2000) (supra note 46).
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C. Negotiated Withdrawal Another exit scenario introduced along with the increasingly thick pattern of EU fundamental provisions is what will be termed here ‘negotiated withdrawal’. This procedure was introduced by Article I-59 of the Draft Constitution,90 which stipulates: (1) Any Member State may decide to withdraw from the European Union in accordance with its own constitutional requirements. (2) A Member State which decides to withdraw shall notify the European Council of its intention; the European Council shall examine that notification. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be concluded on behalf of the Union by the Council of Ministers, acting by a qualified majority, after obtaining the consent of the European Parliament. […] (3) The Constitution shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, decides to extend this period.
A total withdrawal from the Union is evidently the strongest form of exit. What is more, in contrast with the Article 7-procedure, this form of exit is available to member states only: There is no corresponding possibility for the Union to ‘expel’ dissenters, even though an expulsion of a state that stays out of the circle of the common values would reasonably fit the logic of Article 7. Very significantly also, and although the Constitutional Treaty is not clear on this point, there is nothing in the text requiring a withdrawal to be total. Much rather, the wording “setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union” seems to imply that member states might also be able to withdraw à la carte. In such a case, any member state would be free to reverse the existing acquis communautaire to the extent it considers appropriate at a given time. In other words, it would no longer be necessary for a member state to adjust the state or level of its integration by recourse to opt-outs and loopholes. Instead, that member state could openly fine-tune its involvement in the common venture to just the extent that corresponds to the actual degree of commonality in values between itself and the Union. In doing so, and this is perhaps the
90
Supra note 5; Now Article I-60 of the Constitutional Treaty, supra note 25A.
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most outstanding feature of this new, albeit not yet ratified, provision, the member state can go back behind previous agreements with the Union. A government thus wishing to turn round arrangements of its predecessors would, in doing so, probably be subject only to general limits of international law,91 but not to more specific limits under EU law. The respective member state may therefore remain associated with the EU to the degree that is required by international law and acceptable to all sides. In fact, in view of the great economic and political complications of successful disassociation from the Union, anything but full withdrawal appears the realistic scenario. This exit scenario thus marks a sharp disruption in the conceptual pattern of integration: The doctrine of European integration taught that it was to be regarded as strictly ‘mono-directional’, leading to ‘an ever closer Union’, and that the aqcuis communautaire was untouchable.92 The originators of the European Economic Community—particularly Jean Monnet and Robert Schuman—wanted to see Europe as an irreversible project sponsoring peace through concrete economic and political achievements.93 To Schuman, a Europe organised under a common institutional roof was indispensable to the maintenance of peaceful relations. Given however that
91
Among these, in particular, Arts. 26 (pacta sunt servanda), 35, 36 and 37 (obligations and rights of third states and their revocation) and Parts IV and V (amendment and termination of international agreements) of the Vienna Convention on the Law of Treaties, available at http://www.unog.ch/archives/vienna/vien_69.htm.
92
Affirmed, for example, just recently in the Joint Declaration ‘One Europe’ annexed to the Final Act of the 2003 accession treaties of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia to the Union, [2003] OJ L236/1, 971: “We, the current and acceding Member States, declare our full support for the continuous, inclusive and irreversible enlargement process. […] Our aim is One Europe.”
93
Cf. Declaration of French foreign minister Robert Schuman of 9 May 1950, available at http://europa.eu.int/abc/-symbols/9-may/decl_en.htm: “World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it. The contribution which an organized and living Europe can bring to civilization is indispensable to the maintenance of peaceful relations. […] Franco-German production of coal and steel as a whole [should] be placed under a common High Authority, within the framework of an organization open to the participation of the other countries of Europe. The pooling of coal and steel production should immediately provide for the setting up of common foundations for economic development as a first step in the federation of Europe, and will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims. The solidarity in production thus established will make it plain that any war between France and Germany becomes not merely unthinkable, but materially impossible. The setting up of this powerful productive unit, open to all countries willing to take part and bound ultimately to provide all the member countries with the basic elements of industrial production on the same terms, will lay a true foundation for their economic unification.”
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integration is a dynamic process, how could irreversibility be taken for granted if there is not a method of sorting out the final quality of political integration and the extent and understanding of commonality in Europe? It looks as if under the withdrawal provision, the stage of integration of a state could be reversed to exactly the degree consented to by both sides. Where consensus about the degree and conditions of the withdrawal cannot be reached within two years, the respective state in principle simply falls outside the EU altogether. From the point of view of the usual parallelism of integration and disintegration steps as put forward here, the introduction of negotiated withdrawal introduces a new quality of opt-out to the discourse. To this moment, the side-stepping of common values by single member states usually requires a reworking of the treaties or of primary law. Therefore, along with the recourse to a loophole by one or several member states comes an actual or just formal94 progress in the state of integration of the others. Enhanced cooperation is no exception, although it does not require amendments to primary law. Either way, the side-stepping of commonality currently requires the consent of the European partners in some way or another. Evidently, that changes entirely with the insertion of a provision for negotiated, but in the worst case in fact unilateral, withdrawal. Notwithstanding the very small chance of recourse to this formula under the present circumstances, the potentially harmful character of negotiated withdrawal for the common values basis of the Union can hardly be overestimated.
D. Of the Comfort of Loopholes:95 A Review of Mechanisms The texture of ‘common principles’ and the holes which have been cut into it allow a number of imminent observations: Firstly and obviously, the ‘common principles’ the Union bases itself upon are not that commonly shared, or at least is there concern they may not be. This concern might as much result from the sophistication of the common values at the high level of political integration reached as it may just as well be a response to enlargement-related anxieties and the need to accommodate a range of political and social models of unprecedented diversity. Second and more importantly however, the shown dichotomy of principles and mechanisms demonstrates that there is a multitude of levels of ‘integrationist’ or—correspondingly, at
94
As is the case where member states give in to the integrationist pressure of others by authorizing the generalization or inclusion into EU law of a cooperation formerly limited in scope, such as, for example, in the cases of the Social Protocol (supra note 65) and the Schengen accords (supra note 77).
95
Cf. W. Cowper, The Task (1785, re-published 2002), IV, 88: “‘Tis pleasant, through the loopholes of retreat, / To peep at such a world; to see the stir / Of the great Babel, and not feel the crowd.”
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the other end of the spectrum—‘disintegrationist’ behaviour available to each member state government. In other words, the degrees to which member states are willing to comply with their obligations under EU law or, respectively, the degrees to which they may choose or risk not to, are subtle and manifold. In this respect, enhanced cooperation is likely to be used by governments where a significant matter national policy is permanently unsuccessful in the Council and where thus member states are substantially divided regarding principles of policy. Here, flexibility may either be a true leeway out, or at least a bargaining asset much like the Luxembourg Compromise96 was in the 1980s. The Compromise provided a way out of the ‘empty-chair-policy’97 of France over disagreements in agricultural and budget issues. The Luxemburg Compromise worked in the way that a state invoking the right of veto, which supported by the states in favour of the right of veto who would then let the negotiations continue. It is disputed whether the Compromise is still in force today,98 but the provisions on enhanced cooperation in the EC framework contain a reservation similar to the wording of the Compromise.99 Just like enhanced cooperation, the Compromise took heavy criticism for an alleged negative effect on integration. In fact however it functioned as an instrument of conciliation and consensus-building just because of the constantly looming threat in negotiations of a veto being exercised. Since the threat of a veto produced ongoing negotiations until an arrangement was reached, the Luxemburg Compromise was less of a tool for actual decision-making than a bargaining asset. Similarly, rather than the use of a group’s voting power to push for legislation to pass, consensus today is an established and effective alternative to formal voting in the Council.100 Contrary
96
Declaration of the Council at Luxembourg of 29 January 1966, re-printed in Ch. Zorgbibe (Ed.), Histoire de la construction européenne 86 (1997). The Luxembourg compromise had no formal legal status, but was a political agreement expressed in a ‘communiqué’ referring to disagreements between France and the five other founding member states of the Community.
97
Cf. T. Hartley, The Foundations of European Community Law 23 (2003).
98
Arnull et al., European Union Law (supra note 74) 51. Note however that the Constitutional Treaty, supra note 25A, de facto abolishes the Luxembourg compromise through Articles I22(3) and I-34(1), which make qualified majority-voting the general rule. Any exception to this must be explicitly provided for in the Constitution.
99
Cf. for example Art. 11(2) EC Treaty: “A member of the Council may request that the matter be referred to the European Council. After that matter has been raised before the European Council, the Council may act in accordance with the first subparagraph of this paragraph.”
100
Cf. Arnull et al., European Union Law (supra note 74) 51; Cf. also Article I-21(4) of the Constitutional Treaty, supra note 25A.
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to what was generally feared, enhanced cooperation similarly is more of an instrument encouraging integration initiatives rather than the opposite. At the same time, because of the high level of abstraction in enhanced cooperation decision-making and because the commanded respect for the acquis allows only cooperation initiatives aimed at deepening integration, there is little visible danger for it to be misused by national political actors for their peculiar ends and interests. Instead of bringing about a rift in Union policies, this form of structured flexibility fosters political initiative and facilitates reaching agreements. It allows the integration bicycle to continuously be pedalled in order not to collapse. A similar reasoning may be applied to the suspension of voting rights. Here too, the detail in which the suspension procedure is laid down in law and the wide range of actors involved will quite certainly exclude misuse for political purposes or premature use, if not in fact any use at all. The problem here lies more in the lack of judicial protection for the member state concerned, as court review is only foreseen for ‘purely procedural’ matters.101 That lack of substantial judicial review of the suspension decision is however by itself not, not likely to have any effect on the integration process as it does not affect the nature of the provision as such. Also on a more general level, the suspension regime is not likely to yield a significant impact on integration dynamics because as a transitory procedural regime, it is not designed to alter the state of integration of an actor. Instead, what the suspension mechanism does is to ‘freeze’ the legal relationship between the respective member state and the EU until a decision on the future of integration of that state has been taken. Quite differently, the right to withdrawal can be expected to have far-reaching consequences, in particular as regards the perception of the integration process and the definition and legitimacy of the Union by its actors as well as its citizens are difficult to predict. Whereas the European integration process, as was shown, fundamentally used to be a peace-forging and peace-keeping project, the availability of sudden break-off of this process and its partial reversion by way of agreement between the Union and the respective state apparently alters this quasi-axiomatic presupposition: Where there is not just an opt-out from further integration, but the option of total reversal available, legitimacy of the Union’s existence as a whole is at stake. More than ever before the Union will need to perform satisfactorily to continue providing incentives for adherence: when there is no more net gain of a state’s membership, leaving the Union or reducing the degree of association is a clear option to be considered. The decision to leave will likely not be taken lightly by moderate political parties and is thus a scenario we are likely not going to see for some time. Nonetheless, the threat of initiation of frequent ‘exit-referenda’ from the more radical edges looms over every second policy choice agreed to at Union level. For day-to-
101
Cf. Hintersteininger, 5 ARIEL 72 et seq. (2000) supra (note 46).
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day politics, such referenda would involve high political costs and concessions on the part of the Union vis-à-vis an increasing demand of states for exceptions from the general regime. On the wider scale of the integration process as a whole, the ‘full exit’-option may prove to be a true menace to the deepening of integration or even to the survival of the EU, given that the outcomes of referenda are susceptible to irrational influence and often do not express well-weighted strategic choices of the constituency. That said it seems paradox that the right to withdrawal was included, when enhanced cooperation in its post-Nice form already provided for a viable and integration-friendly framework for ‘soft exit’. A reasonable explanation here appears to be that the definition of ‘common principles’ and their enforcement by way of suspension of voting rights taken together were so far beyond what some member states regarded to be the actual common democratic basis of the EU that they would accept their inclusion only if the loophole of negotiated, à-la-carte reversal of that newly agreed Union acquis would remain open to them. Apart from the desire to permit reversal of the agreed acquis if that agreement turns out as being too far-reaching, the flexibility in the application of EU law afforded by enhanced cooperation already sufficiently allows member states to exit from further integration initiatives. At the same time, enhanced cooperation does not come at the expense of overturning the fundamental doctrine of irreversibility of the integration process and encourages political initiative. Also in view of the fact that—of course—any member state could, as a matter of international law, already leave the Union at any point of its choosing, the merits of expressly providing for withdrawal in the constitutional text remain dubious. Also, withdrawal provisions are commonplace in international organizations but alien to most state-like political systems. Its inclusion is therefore an indication of the Union stepping away from federalism or statehood.
IV. “I Never Think of the Future—It Comes Soon Enough”:102 Conclusion It was shown that the broadening of the EU’s legal foundations and substantial assignments co-relates to a parallel decrease in institutional and organizational coherence. Tracing back the recent milestones of integration reveals that deeper integration in some areas triggers disintegration in other areas. There is, therefore, no such thing as ‘a higher level of integration’ per se, but only a higher level of integration in a given substantive context or organizational setting. This principle is prominently exemplified by the process of gradual identification of common values of the Union. In this respect I submit that weaving ever more fundamentally democratic
102
A. Einstein.
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proclamations into the Union’s legal base was a necessary consequence of bidding farewell to being ‘just’ an economic community at Maastricht. The inclusion of common principles in the treaties, in particular at its latest stage, the European Convention, sparked the debate about the nature and extent of a concept of common values of the Union. That debate gave rise to serious doubts as to whether the declared commonalities are really there, not least fuelled by the activities of member states vis-à-vis increases of commonality. Member states show a marked tendency to side-step the texture of common values when it becomes unacceptably thick in an area close to their concerns of sovereignty or identity. This is mostly done by a prophylactic introduction of opt-outs at the time of agreement to a new level of integration. Only to a lesser degree, such opt-outs are actually exercised. The inclusion of broader policy competences and, before all, the definition of ‘common principles’ and fundamental values could only be attained and sustained at the price of an increase in exit-options for member states and, however oddly, for the Union. All mechanisms for partial exit from the acquis currently contained in the Treaties require the consent of all or most of the other member states and can therefore usually only be employed by way of trade-offs in negotiations over the reform of primary or secondary laws. The Draft Constitutional Treaty however for the first time proposes a provision for the full or partial withdrawal of a member state from the Union. This new mechanism breaks the pattern of parallelism in integration-disintegration movements that have so far marked the integration process by opening up the option of partial reversal of the acquis communautaire, including the common values basis, at the initiative of a member state at any given time. A Union encompassing the express right to withdraw is different from what it was before. It is to be hoped that that one odd thread sticking out of the European gown will not be pulled and bring about the dissolution of the fabric. Much rather, it should be cut it off.
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Procurement Activities of International Organizations—An Attempt of a First Insight in Evolving Legal Principles Bernd-Roland Killmann*
I.
Introduction
Legal research on the internal law of international organizations usually focuses on employment relations. In this respect legal thought is already advancing in extracting the principles of institutional—operational, procedural, internal—law of public international organizations. The emerging body of international organizations’ employment law cuts across organizational institutions and evidences the need for real persons to be able to initiate and prosecute international claims unaided by their own national governments in the area of employment by international organizations. Yet, not only in the employment area of the internal law of international organizations, principles are evolving—the same holds true for financial rules and, more specifically, procurement by international organizations. Procurement rules and procedures applied by international organizations, however, seem not to be in the interest of legal scholars,1 despite the considerable economic importance contracts awarded by international organizations gain2 and the rise in arbitration cases related
*
Mag. iur (Karl-Franzens-Universität Graz, Austria), Dr. iur. (Karl-Franzens-Universität Graz, Austria), M.B.L. (University of St. Gallen, Switzerland). Administrator at the Unit Legislation, Legal Affairs & Relations with other Institutions of the European Anti-Fraud Office (OLAF), Brussels, Belgium. The views expressed are purely those of the author and may not in any circumstances be regarded as stating an official position of the European Commission.
1
See, e.g., the real-life examples listed by K. Wellens, Remedies against International Organisations 12 et seq. (2002), as regards the UN activities, which illustrates the need for remedies against international organizations, none of which mentions a procurement case.
2
The UN alone—headquarters, offices away from headquarters and peacekeeping missions— procured in 1998 goods and services worth 318 million $ and in 1999 worth 468 million $ (Report of the Office of Internal Oversight Services on the Follow-up Audit of the Implementation of Procurement Reform, UN Doc. A/55/746 (2001), at 2).
Austrian Review of International and European Law 8: 277-300, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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to procurement contracts.3 Finance law and procedural laws of conduct of business by international organizations is more and more perceived as an area to explore.4 It is yet, as employment relations, another task of international organizations’ own internal government related to private entities. An attempt is made to look into the basic set of rules related to procurement procedures, awarding and complaint procedures applicable to international organizations—in short, all the issues of public procurement present on state level. The large number of international organizations in the world today does not allow to explain procurement rules in detail, but to outline main common features. Triggering further insight in this newly evolving field of internal law of increasing interest to enterprises aiming to become potential suppliers or service providers of international organizations makes this study already worthwhile, when procurement rules are not yet a possible authoritative part of the institutional law of international organizations. Three intertwined issues should be looked at more closely, namely how come and in which ways international organizations aim at setting up procurement and contracting provisions, to what rules international organizations are bound in setting up and applying procurement rules and what are the legal remedial mechanisms for bidding enterprises to have international organizations respect their own procurement legislation.
II. Nature of Procurement and Contracting Provisions of International Organizations A. Public International Organizations The intertwined relationship between public procurement and public financing already necessitates a restriction in the area to be looked at: Only international organizations that firstly meet an ‘official public purpose’ and are secondly indeed financed by tax payer’s money, mainly indirectly through their member states’ contributions, are of interest. The first criterion limits this study to what is commonly referred to as ‘intergovernmental organization’, ‘inter-state organizations’ or ‘public international organization’, hereinafter simply called ‘international organization’. These international organizations possess a legal personality under international law and, through
3
Wellens, supra note 1, at 157, gives quite impressive examples as regards the UN activities.
4
C. Morrisson, “C. F. Amerasinghe’s Principles of Institutional Law of International Organizations”, 6 The Law and Politics Book Review 11, at 165 (November 1996), available at http://www.unt.edu/lpbr/subpages/reviews/amerasin.htm (last visited 1 July 2003).
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recognition,5 also under domestic law, which allows the organization to conclude contracts with its suppliers. They were created by international agreements, have their own organs and, for the purposes of this study, have to be entrusted to fulfil public tasks. The second aspect, namely that the international organizations under scrutiny need to be publicly and obligatorily financed, implies that the expenditures incurred in the course of their activities are not funded by revenues or any other form of commercial income, as for example it is the case with the World Bank and the IMF. Expenditures of international organizations being of interest are resources coming directly or indirectly from member states’ taxes imposed on their citizens and inserted in some way or the other in the international organizations’ budget. However, the concerned international organizations avail themselves of their distinct legal personality from their member states to have an autonomous say on the funds made available to them. It is in this respect, that public financing is at the heart of the functioning of such international organizations.6 The fundamental law related to the financing of international organizations follows therefore a policy similar to that of any public entity, in particular of states as such. Public financing principles decisively shape international organizations’ procurement provisions.
B. Procurement as Pre-contractual and as Contractual Relationship Ever since the ICJ’s advisory opinion on certain expenses of the UN,7 the distinction between administrative and operational expenditures largely occupies what is written on international organizations’ financial rules—yet, this question is essentially related to the income side of international organizations’ budget and, indeed, of no interest for the procurement, focusing on spending funds. Finding out more about procurement instead implies a completely different approach that follows a time related dichotomy: on the one hand, the procurement procedure, that is the procedure that leads an entity to choose its contractor for performing a specific service or supply, and, on the other hand, the contractual phase, thus the possible fulfilment of a contract awarded. Both stages are essentially distinct: Whereas the procurement is characterised by the international organization acting in order to attract bids of a possible plurality of external natural and legal persons setting out its requirements and the conditions of awarding the best amongst them, the contractual fulfilment concerns usually only one single, namely the awarded, con-
5
M. N. Shaw, International Law 911 et seq. (1997).
6
C. F. Amerasinghe, Principles of Institutional Law of International Organizations 291 (1996).
7
Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, 1961 ICJ Rep. 151.
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tractor, who on his behalf now carries the burden of action, namely to perform the contract. During the procurement, it is usually the international organization that shapes the events and is the active part, the bidders mainly occupied in drawing up their tenders, during the contractual performance, the international organization limits itself to payments to the awarded external actor, now actively performing a service or supplying a good as under the contractual terms. The differences between procurement as pre-contractual stage of choosing the best fit supplier or provider of a service and the actual performance of a contract dictates also the essential difference in the nature of the set of legal rules applicable. For the procurement part is usually subject to what is generally referred to as the ‘internal law’ of international organizations, the afterwards concluded contract instead to the applicable respective domestic law.
C. Procurement as Part of an International Organization’s Internal Procurement Provisions The procurement procedure is linked to the financial rules within an international organization, due to the consideration that sound financial management as imposed on any entity funded by the public8 implies also to aim at a best value for money when contracting supplies and services. The existence of an internal law of international organizations with respect to their internal organization and functioning outside the jurisdiction of domestic law is generally recognised and justified by the need of international organizations to apply a set of rules which are not subject to the laws of member states,9 a situation which would have drawbacks for the organization finding itself thereby under the control of its members. The framework of internal law is justified where interference by member states puts a risk on the good functioning of an international organization. The need for an internal, independent set of law, in particular as regards financial, employment and organizational questions, not subject to political control, was well evidenced by the ICJ’s advisory opinion on the effects of awards of compensation made by the UN’s administrative tribunal,10 when the ICJ decided not to allow the General Assembly to refuse to give effect to an award of
8
Sound financial management is a general requirement for international organizations: International Law Association, London Conference (2000), Accountability of International Organizations, Second report, at 6, point 22 available at http://www.ila-hq.org/pdf/ Accountability/Accountability%202000.pdf (last visited 2 July 2003).
9
P. Cahier, “The Internal Legal Order of International Organizations”, in R.- J. Dupuy (ed.), A Handbook on International Organizations 377, at 378 (1998).
10
Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion of 13 July 1954, 1954 ICJ Rep. 47.
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compensation made by the UN’s administrative tribunal. With a view to ensuring that internal law of international organizations remains a matter apart from domestic law of any state, it is generally considered as part of international law despite its strong resemblance to any domestic set of legislation concerned.11 The provision of facilities and the technical means needed for the functioning as well as the financial resources to cover the related costs form part of the sphere of internal law, aimed at ensuring the indispensable mechanism of an international organization.12 Such as for the internal law governing employment, several practical reasons have led to an independent system of law governing the procurement procedures in international organizations. The provisions related to procurement within the financial rules have become necessary because of the development, expansion and proliferation of international organizations, which no longer could entrust the procurement to the management of one or more member states. Again similar to employment relations, where the desire to provide for an identical set of rules for agents coming from different member states, procurement procedures should in principle allow for identical conditions for potential contractors from all members states of a concerned international organization. The application of domestic law of a particular State would risk resulting in an arbitrary and artificial choice.13 Independence of the international organization in its financial affairs, including the procurement activities, was already referred to, yet, in procurement terms, the specific rules for awarding a contract can also be seen as linking the budgetary power vested in agents at an international organization to procedural rules so as to satisfy the same psychological demand for each civil international servant to comply with the rules as required for employment law.14 Last but not least, to define procurement rules in the international organizations’ internal law is also an expression of their budgetary autonomy towards their contributing member states. Only applying the international organizations’ own procurement standards ensures independence in deciding on financial resource allocation within the organization. Setting up procurement rules in internal law to govern completely the pre-contractual relation between the international organization and the interested enterprises meets the individual and organizational necessities and formulates those rules for conduct with business which will ensure that the
11
See Shaw, supra note 5, at 919, and Cahier, supra note 9, at 382.
12
See Amerasinghe, supra note 6, at 325.
13
See, e.g., the General Assembly’s wish that the supplier roster of the UN becomes representative of the membership in point 13 of the Report of the Secretary-General, Procurement Reform, UN Doc. A/55/127 (2000), at 4.
14
See Amerasinghe, supra note 6, at 329 et seq.
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international organization’s administration will be able to function effectively. For all these reasons, it has come to be generally accepted that it is the internal law of international organizations that govern the procurement procedures to be applied.15
D. Procurement Governed by Domestic Law Before looking into the nature of the internal law related to procurement, the law governing the performance of an awarded contract should be turned to: In fact, the situation is quite different from the procurement phase. In this second phase, the international organization is no longer aiming at finding the contractor providing best value for money, an interest that is generally not covered by domestic law, yet, as any other legal entity, the international organization will attempt to ensure from its contractor the performance at the terms defined at the procurement stage. The risk for the international organization in the contractual phase not to achieve this goal even when applying domestic law is therefore considerably altered in relation to the procurement stage. A domestic law system provides for sufficient guarantees to impose contract performance without resulting in an arbitrary and artificial choice. In short, the performing of a contract is sufficiently guaranteed by what is referred to as private law in a domestic system. Unlike for the procurement phase, no internal law is needed to provide an indispensable set of rules needed by an international organization: supply of office equipment or whatever other item needed under an existing contract is perfectly arranged by a domestic private law system as well as by application of private international law.16 In performing an already awarded contract, financing rules within an international organization remain of relevance, yet, the aim to ensure correct performance as generally pursued by domestic private law related to contractual relations usually coincides with the objectives of the related financial provisions, namely to ensure best value for money when contracting supplies and services even after the procurement phase. This coincidence of goals, not existing during the previous procurement
15
See, e.g., the explicit wording of Art. 5 of the public services Directive 92/50/EEC, OJ 1993 L 209, at 1, Art. 4 of the public supplies Directive 93/36/EEC, OJ 1993 L 199, at 1 and Art. 5 of the public works Directive 93/37/EEC, OJ 1993 L 199, at 54, all three of them stating that it does not apply to public contracts governed by different procedural rules and awarded pursuant to the particular procedure of an international organization.
16
That contractual relations between international organizations and third parties are presently governed by domestic law, is also confirmed by the International Law Association, New Delhi Conference (2002), Accountability of International Organizations, Third Report (New Delhi Conference), consolidated, revised and enlarged version of recommended rules and practices (“RRP-S”), at 10, available at http://www.ila-hq.org/pdf/Accountability/Accoun tability%20Of%20International%20Organisations%202002.pdf (last visited 1 July 2003).
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stage, allows for international organizations to accept the application of domestic law in this regard.17 The distinguishing element of only having to deal with one contractor when it comes to the performance no longer implies the need for identical conditions for potential contractors when putting them into competition, as is done during the procurement stage. The application of domestic law of a particular state hence no longer risks to result in an arbitrary and artificial choice and a possible, additional discrimination of bidders from different states. Finally, being the contractual performance governed by private law—a set of rules set up by any state to concern legal relationships of any ordinary person—interference with the working of an international organization considering itself subject to such rules on the same level as its contractor is to be excluded. Given that the independence of the international organization in its financial affairs and budgetary powers are therefore not endangered by applying a domestic legal system for the contractual stage, the need for a specific internal law vanishes. Instead, specific needs of harmonization required by an international organization can be addressed through standard general conditions drafted by the concerned organization in exploiting the contractual freedom of private law in domestic jurisdictions. In other words, whereas a procurement procedure as such is specific to the functioning of public entities and hence requires a specific set of rules also for international organizations, the conclusion and performance of the contract as commonly regulated in domestic law is possibly acceptable to international organizations without the need to require a specific set of provisions.18
III. Sources of Procurement and Contracting Provisions The result of this first enquiry on procurement by international organizations produced the distinction of the internal law applicable for the procurement and domestic law for the contract performance. The question of sources of the law for the contract performance is essentially depending on the domestic system, so that in this section focus is dedicated to the sources of the internal law of international organizations related to procurement. It is of no interest to outline the different procurement
17
See Wellens, supra note 1, at 90, for assuming the contrary as regards the UN.
18
In particular for regional international organizations, see, e.g., Rule 11.2.1 of the Procurement Contract Rules of the General Secretariat of the Organization of American States, issued July 12, 2000, attached to Executive Order 00-1, available at http://www.oas.org/legal/english/ gensec/EX-OR-00-1.htm (last visited 30 June 2003) and implicitly Art. 288 (ex-Art. 215) EC Treaty.
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procedures due to the difference of procurement rules applicable in different international organizations, instead regard is given to procurement provisions as an emerging body of internal law in international organizations and comparison of the common features. Again, the more advanced legal research in the field of employment law for international civil servants may serve as an inspiration.
A. Written Sources It was exactly for the employment law in international organizations, where the simple drawing of analogies to the sources of public international law was condemned as naïve. Although the internal law of an international organization is believed to be part of public international law, reference to Article 38 (1) of the statute of the ICJ may be at best considered as basis for an analogy concerning internal law, namely that financial regulations or other written legal services correspond to international treaties and the practice of an organization to custom.19 As for any internal law, the constituent instruments of an international organization may be looked at as the highest written law to govern procurement.20 Usually, constituent instruments of international organizations are not very helpful as a source of law, yet, in some organizations the main features of a procurement policy to be pursued are already laid down by the states drafting the treaty setting up the concerned organization.21 International organizations perceive procurement usually as part of the financial rules due to is the overwhelming objective to obtain best value for public money. Consequently, the financial rules established by the main legislative organs of international organizations are a primary source of procurement rules.22 The basic financial rules are established, in most international organizations, by a plenary
19
So for the employment law Amerasinghe, supra note 6, at 335 et seq. and Cahier, supra note 9, at 393.
20
Each international organization is under the obligation to carry out its functions in accordance with its own rules according to the International Law Association, supra note 16, at 5.
21
See, e.g., Art. VII of the 1975 Convention for the Establishment of a European Space Agency, 14 ILM 864 (1975), which as part of the industrial policy to be pursued by the Agency required it to “exploit the advantages of free competitive bidding in all cases, except where this would be incompatible with other defined objectives of industrial policy”, namely where competitive bidding could conflict with granting “preference to the fullest extent possible to industry in all Member States”. Likewise, Annex V of the same Convention sets out rules on procurement by the Agency.
22
See, e.g., the request for a revision of the ‘financial rules relating to procurement’ contained in point 29 of the supra note 13, at 8.
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organ.23 As regards procurement, the basic financial rules outline just the frame of what is expected from the organizations to do in the procurement field. They usually oblige the administration of an international organization to aim at asking for competitive bids based on predefined tender files after some kind of rendering public the intention to award a contract.24 More specific financial rules for procurement or their equivalent, instead, may usually be established by the administration of the organization in the exercise of their powers derived from the constituent instrument or delegated by the legislative organ to the executive organ.25 Given that the provisions in instruments drafted in a legislative intention are not structured in such a way that the consecutive steps of a procurement procedure may be easily followed, if not after some profound studying of the texts, international organizations’ administrations tend to establish procurement manuals, which lay down a simpler step-by-step guideline of the procurement process.26 These manuals, together with complementary circulars and general instructions issued by the administration, have a law-creating character and are often consulted in the first place, even if they may contradict higher ranking instruments such as the financial rules. Most of the manuals state usually themselves not to intend to stipulate binding norms, in particular when conflicting with those of the financial rules. In a specific procurement, the notices published by and the tender files issued by an international organization obtain prime importance for every enterprise addressed and interested in a specific contract. Although these documents only relate to an individual procurement case, they are of relevance as one of the possible written
23
For the UN the General Assembly, see point 20 of Procurement Reform, Report of the Secretary-General, UN Doc. A/57/187 (2000), at 5.
24
See, e.g., UN Financial Reg. 10.5 and Financial Rules 110.16 to 110.24, as explained in Extract from the advance version of the 1999 United Nations Juridical Yearbook, Chapter VI, at 5 (2004) and Art. 101 of the General Standards for the Operation of the General Secretariat of the Organization of American States (available in Spanish at http://www.oas.org/ legal/spanish/normas/espanol/VerDefNorm1Index.htm last visited on 2 July 2003) as well as Art. 89 (2) of the Financial Regulation Applicable to the General Budget of the European Communities, Reg. (EC, Euratom) No. 1605/2002, OJ 2002 L 248, at 1.
25
See, e.g., the General Secretariat of the Organization of American States in the Procurement Contract Rules of the General Secretariat of the Organization of American States, supra note 18, and Arts. 116-159 of the detailed rules for the implementation of the Financial Regulation applicable to the general budget of the European Communities, Reg. (EC, Euratom) No. 2342/2002, OJ 2002 L 357, at 1, adopted by the Commission of the European Communities based on a delegation.
26
See, e.g., the request for a revision of the ‘procurement manual’ contained in point 4 of supra note 13, at 2.
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instruments when looking at the whole set-up of one single procurement procedure launched by an international organization. As under employment law,27 the hierarchy of sources regarding procurement law would be the same for procurement provisions: Among the written instruments, the constituent instrument would be at the top,28 followed by the ‘general’ financial rules, the ‘specific’ financial rules related to procurement and finally the tender notices and files as the lowest level of law. The manuals, instead, form a kind of internal lower level ‘soft law’—to take the term from general public international law. In this context, the obligation of the international organization’s administration to respect the written instruments may be questioned on the grounds that budgetary power would also imply changing the rules based on said budgetary power. However, this argument holds true only in a limited case, if the organ issuing the manual is at the same time the organ issuing the underlying financial provisions, and still is to be contradicted: Firstly, the establishing of financial rules requires a specific procedure that had to be respected by the concerned organ, failing to do so, means not fulfilling the formal requirements of an internal law. Secondly, budgetary power is not absolute29 and therefore imposes a self-binding behaviour to respect once established rules, so that an organ has no alternative but to honour the obligations arising from financial rules. Later, we will also come to the principle of estoppel, which likewise implies that an international organization is bound to its internal law on procurement and may not attempt to remove it by issuing manuals. Possible contradictions between manuals, circulars and financial rules have clearly to be resolved in favour of the latter. Still, interpretation of financial rules by the subsequent manual is a recurrent phenomena in international organizations and bears potential conflict among different organs within the organizations. In particular, the fact that international organizations set up special audit services to control the administration’s handling of the budget leads to distinct views not only on the interpretation of financial rules but also on whether the administration has the authority to interpret rules when issuing manuals and circulars.30 It is not in the realm of this article to explain the procurement rules established by all the different international organizations, yet, it seems worthwhile to shortly sum up whether these rules have not some principles in common. In fact, procurement procedures are generally the more orientated to ensure wider competition the higher the amounts involved. Awarding contracts of an important value implies usually that
27
See for the employment law Amerasinghe, supra note 6, at 347 et seq.
28
See also point 25 of the International Law Association, supra note 8, at 7.
29
See supra note 10.
30
See, e.g., points 19 and 20 in supra note 13, at 12.
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the international organization concerned renders its intention public in order to address an as wide as possible range of potentially interested enterprises. The lower the amounts involved and the shorter the envisaged contract performance the less stringent the rules become. Direct contracting is deemed to be an exception bound to either specific circumstances or authorizations or considerably low amounts.
B. General Principles of of the Procurement Law of International Organizations It appears that no investigation was ever undertaken on whether there are general principles of international procurement law that are binding on international organizations. General principles of law are a source of international law. However, as regards internal law, it is hard to find out whether the general principles taken into account are not only principles of domestic law systems. In the procurement field, one would tend to look at the UNCITRAL Model Law on Procurement of Goods, Construction and Services31 as well as at the WTO’s Agreement on Government Procurement, commonly referred to as GPA.32 Both seem not apt for the purposes of establishing general procurement principles and even less such principles for international organizations. The UNCITRAL Model Law on Procurement of Goods, Construction and Services is merely designed to assist states in reforming and modernizing their laws on procurement procedures and the GPA is not generally recognised.33 The GPA, a so-called plurilateral agreement, is not even signed by all WTO-members, which hence failed agree on the ‘universality’ of its terms. Issues such as non-discrimination and fair competition, well known to procurement lawyers, are not necessarily of importance for procurement at international organizations. International organizations tend to favour enterprises of their member states34 and
31
Available at http://www.uncitral.org/english/texts/procurem/ml-procure.htm (last visited 30 June 2003).
32
Available at http://www.wto.org/english/docs_e/legal_e/gpr-94_e.pdf (last visited 30 June 2003).
33
The only international organization, signatory to the GPA and having declared some of its institutions as ‘government entities’ bound by the GPA, namely the Commission of the European Communities and the Council of the European Union, is the EC.
34
See, e.g., Rule 4.1.1 point 11 of the Procurement Contract Rules of the General Secretariat of the Organization of American States, supra note 18, or Art. II of Annex V of the Convention for the Establishment of a European Space Agency, supra note 21, according to which the Agency shall give preference to industry and organisations of the Member States. As regards the EC, note that no discrimination in favour of EU Member States is possible due to the GPA obligations, which requires that tendering for procurement done by the Council and the Commission—both declared ‘government entities’—is open on equal
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may even pursue a policy of preferential treatment of potential contractors from a specific group of countries, either in order to contribute to their development in general or falling in the sphere of activity of the international organization.35 There remain still general principles of procurement law to be applied to international organizations. Undoubtedly, all international organizations consider themselves subject to the basic requirements of transparency,36 proportionality37— as can be seen from the legislative approach to procurement implying that the higher the amount concerned the more complex the procedure—equal treatment38 and, above all, best value for money.39 Of the mentioned principles, equal treatment merits a short explanation, so as to clarify its distinct characteristics from the principle of non-discrimination: Equal treatment requires international organizations to treat in a procurement procedure same events in the same way, yet, does not hinder them to
terms to enterprises established in a signatory to the GPA, equally admitted to as under Art. 106 of the Financial Regulation applicable to the general budget of the European Communities, Reg. (EC, Euratom) No. 1605/2002, OJ 2002 L 248 at 1. However, as regards procurement in the field of the EC’s external aid policy, Art. 168 of said Financial Regulation foresees to restrict participation to bidders from the EU and to nationals of the beneficiary third countries, unless an agreement on widening the market for procurement of goods or services to which the EC is party applies. 35
See UN Press Release, UN Doc. GA/AB/3394 (2000), and points 9 and 11 in supra note 23, at 3. Note, however, that Art. V GPA allows for special and differential treatment for developing countries, but not as regards awarding contracts to firms established in such countries. Instead, the concerned countries are authorised to impose a different procurement legislation safeguarding their interests. See, e.g., a more elaborate way to differentiate among bidders to ensure a fair geographical distribution in Art. IV and V of Annex V of the Convention for the Establishment of a European Space Agency, supra note 21.
36
Not only as regards the specific publicity requirements of a procurement procedure, see, e.g., the handling of public bid openings proposed in point 10 of supra note 13, at 3, but also access to procurement rules, point 20 in supra note 23, at 5.
37
See the application of the principle of proportionality to a procurement case in order to oblige the request to a bidder for additional information by the Court of First Instance of the European Communities, Case T-211/02, Tideland Signal Ltd. v. Commission, 2002 ECR 2, 3781. Note also that proportionality as a general principle of the functioning of international organizations is to be interpreted and applied in relationship with other relevant principles such as good governance and constitutionality (Point 29 of the International Law Association, supra note 8, at 8).
38
Case T-19/95, Adia Interim SA v. Commission, 1996 ECR 2, 321 and Case T-203/96, Embassy Limousines & Services v. European Parliament, 1998 ECR 2, 4239.
39
See Case T-139/99, Alsace International Car Services (AICS) v. European Parliament, 2000 ECR 2, 2849, para. 53.
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apply discrimination, for instance, in favour of their member states, insofar as foreseen by the applicable rules and provisions. Even if the outlined principles are not especially addressed in the financial rules and manuals, international organizations’ practice demonstrate the importance of these issues in the daily procurement practice. The most important general principles of law as such in procurement procedures of international organizations are probably those of good faith40 and estoppel. Good faith, for example, requires that within its set of rules an international organization aims at not undermining the scope of a procurement procedure,41 thus: 1. obtaining the best value for money, 2. in one specific procurement granting reasonable delays for the submission of comparable bids42 and 3. drafting tender specifications understandable to the enterprises addressed.43 Estoppel, finally, in procurement procedures imposes on an international organization not to deny or contradict what is stated in its tender file and thereby ensures that bidders can trust on the content of the notices published or the documents received,44 yet, it does not at all imply that an international organization may not cancel a procurement procedure once started.45 Likewise, one may consider a certain degree of discretion on behalf of the procuring international organization also to be part of
40
Good faith is one of the principles individualised by the International Law Association to aim at an improved accountability of international organizations, and deemed to imply consistency of treatment in like cases, which may give rise to legitimate expectations (Point 24 of the International Law Association, supra note 8, at 6).
41
E.g. by not ensuring that bidders are not required to violate applicable municipal law (supra note 39, at para. 63).
42
See point 8 of supra note 23, at 3.
43
Note also that procedural regularity is considered to supplement the principle of good faith according to point 30 of the International Law Association, supra note 8, at 8.
44
Even if that would imply not take into account of differences caused by applicable municipal law for bidders (supra note 39, at para. 53). The judging of complaints on their compliance with the content of tender documents, as a general principle, was reiterated by the Court of First Instance of the European Communities, Embassy Limousines & Services v. European Parliament, supra note 38 and Case T-183/00, Strabag Benelux. v. Council, 2003 ECR 2, 135.
45
E.g. in case there is no sufficient number of applications (Case T-169/00, Esedra s.p.r.l. v. Commission, 2002 ECR 2, 609 para. 203), yet, the international organization may be liable for such cancellation if causing a damage in breaching the principle of the protection of legitimate expectations of a bidder (Embassy Limousines & Services v. European Parliament, supra note 38).
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the general principles of law applying to such organization’s administration,46 in particular as regards financial implications of procurement. Discretion exercised by international organizations, however, remains subject to procedural regularity, therefore may not lead to an abuse of discretionary powers, may not be based on errors of fact or law and has to ensure respect for fair treatment.47 In establishing these general principles applicable to procurement procedures by international organizations, the practice of international organizations not to provide for judicial ways of settling disputes regarding the procurement phase makes it particularly difficult, not only to nail down the principles, but also to understand their relation to other sources of law. In fact, in a dispute concerning a contract for the supply of food to military contingents in an UN peacekeeping mission, a contractor undertook amongst others to claim damages arguing that it was allegedly blacklisted by the UN and not allowed to bid on contracts. The arbitration tribunal was hence asked to rule on the transparency and objectivity of the UN’s procurement system, but declared itself rightly not competent to rule on internal matters of an international organization.48 Only the Court of Justice of the European Communities and its Court of First Instance, entrusted with deciding on litigation issues on the procurement phase undertaken by the EC’s institutions allow for a deeper insight into the relation of procurement principles to other sources. The judgement in the case Tideland Signal Ltd. v. Commission49 contains key elements regarding the balance between the principles of transparency, proportionality and equal treatment as well as the limits of discretion of an awarding international organization. In a tender procedure, the Commission announced to allow for extra time for the submission of offers. The plaintiff submitted a tender with the original deadline, which was returned to him unopened at the moment when the extra time was granted. He resubmitted the tender, yet, left the expiry date unchanged in relation to the original deadline. The Commission consequently rejected the second tender as not complying with the terms of reference due to its too short validity. The plaintiff argued that the Commission should have decided to seek clarification on the validity
46
See, e.g., Case 23/76, Luigi Pellegrini v. Commission, 1976 ECR 1, 1807 and Case 56/77, Agence Européenne d’Interims SA v. Commission, 1978 ECR 1, 2215 as well as Case T-4/ 01, Renco Spa. v. Council, 2003 ECR 2, 171 and Case T-40/01, Scan Office Design SA. v. Commission, 2002 ECR 2, 5043.
47
See International Law Association, supra note 16, at 7.
48
Report of the Office of Internal Oversight Services on the Review of Procurement-related Arbitration Cases, UN Doc. A/53/843 (1999), at 10, para. 57.
49
See supra note 37.
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of his tender before rejecting it. The Commission, instead, pointed out that contacting a bidder to correct an error in a tender would contravene procurement rules for reasons of transparency, consistency and equality. The Court found that the Commission enjoys a broad margin of assessment in a procurement procedure and is only bound to respect procedural rules and the limits of manifest error of assessment or misuse of power. In the interest of legal certainty, an ambiguous tender has to be rejected, unless clarification is clearly both practically possible and necessary. Since the principle of equal treatment limits the power of discretion and the principle of proportionality requires the Commission to take appropriate and necessary measures, the Commission had the obligation to clarify an ambiguity that had a simple explanation—such as an error in correcting a date in a tender file. This judgement is of particular relevance, since the Court clearly emphasises the importance of the principles of equal treatment, transparency and proportionality as the primary sources for interpreting tender rules and documents as well as overruling any discretion granted to an awarding authority. As regards the principle of good faith and estoppel, imposing on international organizations not to deny or contradict what is in their tender files and ensuring that bidders can trust in published notices, issued documents as well as any other information received, the judgement of the Court of First Instance in the case Embassy Limousines & Services v. European Parliament50 is of major importance: The European Parliament issued a tender for awarding a contract for passenger transport and a representative of the European Parliament informed the winning company immediately on the award decision. The company, having been told to take over the transport services in a short delay, took measures to prepare the performance of the contract, yet, the European Parliament first delayed and then refused to sign a contract with the company due to rumours of an alleged lack of character of the plaintiff’s executives. The European Parliament finally decided to cancel the procurement procedure and to re-launch a new call for tender. The company sued amongst others the European Parliament for damages arguing that by fuelling its expectations of winning the contract and encouraging it to take the necessary steps to implement the contract, the European Parliament caused a monetary damage. The Court outlined that in the first place economic traders have to bear the economic risks inherent to their activities and hence are expected to take on charge the costs connected with the preparations of a bid, even if the bid fails to lead to an award of a contract. However, if a tenderer is encouraged to make investments that go beyond the risks inherent to the business in consideration, namely by being encouraged to make investments in advance, the organization incurs non-contractual liability.
50
See Embassy Limousines & Services v. European Parliament, supra note 38.
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The arbitrational tribunals of the UN instead do not dwell on issues of procurement procedures. However, seen from retroactive, two decisions of such arbitrational tribunals are of relevance to understand that the principles pertain relevance in the contractual performance. It is due to their importance in the procurement phase that these principles remain guiding lines in the following contractual phase. In this context, an arbitration tribunal set up in the aforementioned dispute concerning a contract for the supply of food to military contingents in an UN peacekeeping mission came to a conclusion similar to the case regarding the EC, since the contractor succeeded in demonstrating that the UN had assured it both orally and in writing that the existing contract would be extended and that therefore the contractor had to invest in warehouses and new supplies.51 Although regarding the performance of a contract, the principle of good faith as regards tender files also extends to the contract concluded on the basis of the information issued by an international organization in the procurement procedure. When the UN entered into a contract for the provision of fuel storage and transportation, the wording of the contract differed from the bid submitted, on specific request of the UN’s responsible. The supplier invoiced amounts according to the contract, yet, the UN argued that the amounts so invoiced where no longer conform with the original bid. The arbitration tribunal rejected said argument and came to the conclusion that, due to the modification agreed upon in the contractual terms, the supplier’s invoices were conform to the contract.52
C. Conflict between Written Sources and General Principles Written sources of law could conflict with the outlined general principles. In procurement, unlike in employment,53 the principles outlined are mainly resulting from a best practice and less from fundamental insights into what the law should be about. In employment, the perception is that general principles are of overwhelming importance to protect the unaided individual against the more—in resources and knowledge—powerful organization,54 n procurement, the current understanding is that an organization dealing with public money has to protect its financial interest against—at least professionally organized—private enterprises.55 Nonetheless, it is 51
Supra note 48, at 10, para. 54.
52
Supra note 48, at 8, para. 43.
53
See for the prevailing of general principles over written sources of law in Amerasinghe, supra note 6, at 350.
54
See Morrisson, supra note 4, at 165.
55
See supra note 37, where the Court of First Instance of the European Communities advocated for a certain prevailing of the principle of proportionality in relation to applying a written source.
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clear that the written sources have to be interpreted in conformity with the established principles. Additionally, a conflict between the different layers of applicable written law may occur, namely since the distinction into two phases deprives internal law of procurement from the source of what is foreseen in the contract to be later concluded. Consequently, the domestic law applicable to the contract as well as the terms of the contract themselves form not a source of the law related to the procurement procedure. However, the terms of the draft contract enclosed to a tender file for bidders’ information may yet not be diverted from the later concluded contract, due to the good faith and estoppel-principle, if not for good reasons by the international organization or if so required to comply with the domestic law chosen.56 Another source of law in procurement could be the practice of the international organization concerned. To impose an obligation, practice must not only be a repeated pattern of behaviour, for example, issuing tender files giving general instructions based on standard drafted models, but also supported by an opinio iuris.57 The requirement of uniform and constant usage in administrative practice of an international organization appears easy to be met in a field so vast as procurement, the conviction of procuring agents to follow a procedure imposed as legally binding outside the written sources, on the contrary, is unlikely. No doubt that practice may help to understand the application of procurement procedures, however, it seems unlikely that practice may contribute seriously to the sources of law in procurement of an international organization. From a point of view of hierarchy of sources of law, practice is of no importance.
IV. Immunities and Remedies in Procurement by International Organizations Having outlined the possible sources of international organizations’ procurement law, the consequences of a breach is to be enquired. The strong link between budgetary and procurement law in an international organization may lead to the assumption that any non compliance with the procurement rules automatically results in the international organization being exempted from honouring the awarded contract. However, it is clear that an international organization may not be excused from performing its obligations just because it did not fulfil its own standards. Again, the distinction between the procurement and the contractual phase may be useful to clarify
56
See supra note 39 and supra note 48, at 8, para. 43.
57
See for employment law Amerasinghe, supra note 6, at 343 et seq.
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the implications. A contract awarded not following a compliant procurement procedure still needs to be fulfilled also on behalf of the international organization, although the obligations thereby put on the international organization may be contrary to the budgetary rules—in fact, the ICJ in its advisory opinion on the effects of awards of compensation made by the UN’s administrative tribunal58 indicates that budgetary power is not absolute: “Where expenditure arises out of obligations, the General Assembly has no alternative to honour these engagements”. In fact, non compliance with the internal procurement rules should not only imply that an international organization adjusts its procurement procedure, but may eventually lead to the invocation of non-contractual liability.59 Although internal control structures within international organizations are also called upon to supervise correct application of procurement provisions, the bidders are the most interested ones to ensure that procurement rules are complied with. In fact, at the occasion of the negotiations of the GPA within the WTO, it is considered to be the main achievement that a clause on the introduction of an obligatory review procedure for companies interested in a tender was introduced.60 However, effective remedies as regards procurement by international organizations still seem to be an exception. Again, an insight into recourse possibilities on procurement aspects concerning international organizations has to start from the basic distinction between the procurement phase and the performance of an awarded contract, since the difference of the legal source also implies a difference of treatment as regards jurisdiction and the international organizations’ willingness to accept alternative dispute settlements. It should also not be forgotten that, unlike in employment cases, the international organizations have a different interest in how to treat their suppliers—for which a substitute may simply be available on the market—than their civil servants, whose loyal services are not so easily substitutable than that of any external provider of goods or services. Another argument is that judicial review as regards aspects concerning an individual human is perceived as an aspect close to human rights,61 and hence to be treated differently of a litigation that may only have an indirect impact on human beings through a concerned bidding enterprise that may much more easily bolster an economic loss. On the other hand, there is no reason to treat
58
See supra note 10.
59
See Wellens, supra note 1, at 8, and see Embassy Limousines & Services v. European Parliament, supra note 38.
60
A. Reich, International Public Procurement Law, The Evolution of International Regimes on Public Purchasing 307 (1999).
61
Morrisson, supra note 4, at 165.
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individuals who are employees differently from individuals, who happen to run an undertaking.62
A. Litigation on the Internal Procurement Law The procurement rules are part of the internal law of the international organization and hence part of the public international law that lies beyond the power of domestic courts.63 Therefore, litigation concerning the procurement phase is outside of the jurisdiction of a domestic court. Lack of jurisdiction is a different concept from the immunity of the international organization, although it may lead to the same result, yet, immunity only is to be considered when jurisdiction is given in the first place.64 The reasoning to exclude jurisdiction on international organizations’ decisions concerns all ‘constitutional’-like litigation concerning internal laws and not only the internal employment law, for which it is argued that as a practical matter domestic judges are not even familiar with international matters in this regard.65 However, this remains a weak argument in a field where litigation has been increasing over the past years. What remains as a more convincing argument is that international organizations act as a legislator when drawing up their internal laws, be it for financial aspects, for procurement or employment, and should at least potentially benefit from considerations similar to that of an act of states-doctrine despite missing territority: A sovereign legislator should be in the first place free to foresee its own structure of judicial review, if at all, for its own legislation. In the wake of this consideration, one would assume that similar to the employment internal law, international organizations should empower their administrative tribunals also to decide on issues related to the procurement procedures. However, the statutes of administrative tribunals are usually limited to staff litigation. Classifying the powers exercised by an international organization in applying its internal procurement laws as being outside the jurisdiction of domestic courts or as falling under the immunity granted to international organizations due to acting in the procurement phase as act iure imperii still leaves space to foresee internal administrative review, which appears still necessary to avoid abuse of discretionary powers, to avoid errors of fact or of law as well as to ensure respect for due process and fair
62
See, e.g., for a general consideration of remedies against international organizations as a human rights issue at Wellens, supra note 1, at 14 et seq.
63
A. Reinisch, International Organizations before National Courts 102 (2000).
64
See Reinisch, supra note 63, at 100.
65
See Reinisch, supra note 63, at 236 et seq.
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treatment.66 Hitherto, only internal audit bodies excluding any external influence67 and complaint procedures68 for bidders in the procurement phase were established, yet, no international organization has so far established an administrative tribunal for reviewing its procurement acts. Only the Court of Justice of the European Communities, and its Court of First Instance, referring to its function as a kind of specialised administrative review court of decisions taken by the organs of the EC under Article 230 (ex-Article 173) EC Treaty have issued verdicts on the EC’s institutions’ procurement activities.69 Different from other international organizations, the EC having signed the GPA, also declared the Commission and the Council as falling under this agreement and are therefore under the obligation to implement a review mechanism according to Article XX GPA, which, in fact, is performed by the Court of Justice and the Court of First Instance.70 66
The International Law Association, supra note 16, at 7, is calling for necessary steps at all levels of an international organization to ensure compliance with these principles.
67
Financial control and monitoring is perceived as one of the mechanisms to reflect the limits of powers of international organizations based on their constitutional provisions, internal law and practice as well as one of the main tools to ensure sound financial management (Point 14 of the International Law Association, supra note 8, at 4).
68
To set up a complaint procedure would be the minimum an international organization must do to ensure the application of the international customary law of a right to remedy according to Wellens, supra note 1, at 17 et seq.
69
Interestingly enough a short statistic of decisions shows that the cases filed at the European Courts against procurement decisions taken by European Institutions amounted to three in the period as of the founding of the EC up to 1995, namely Cases 23/76 (supra note 46), 56/ 77 (supra note 46) and case 135/81, Groupement des Agences de voyages, Asbl. v. Commission of the European Communities, 1982 ECR 1, 3799, and started to soar as of 1995, probably also linked to the establishment of the Court of First Instance as the real generally competent administrative tribunal of the EC. As of 1995, in a period of less than eight years, the following fourteen cases lead to a verdict on procurement by EC’s institutions: Cases T-19/95 (supra note 38), case T-13/96, TEAM Srl v. Commission of the European Communities, 1998 ECR 2, 4073, with its appeal case C-13/99 P, T-203/96 (supra note 38), T-145/98, ADT Projekt Gesellschaft der Arbeitsgemeinschaft Deutscher Tierzüchter mbH v. Commission of the European Communities, 2000 ECR 2, 387, T-5/99, Pantelis Andriotis v Commission of the European Communities and European Centre for the Development of Vocational Training (Cedefop), 2000 ECR 2, 235, T-139/99 (supra note 39), T-169/00 (supra note 45), T-183/00 (supra note 44), T-365/00, Alsace International Car Service SARL (AICS) v. European Parliament, 2002 ECR 2, 2719, T-4/01 (supra note 46), T-40/01 (supra note 46), T-134/01, Hans Fuchs Versandschlachterei KG v. Commission of the European Communities, 2002 ECR 2, 3909, and T-211/02 (supra note 37).
70
A comparison of the powers of the European Courts of Justice as regards the EC’s procurement activities to the requirements of Art. XX GPA can be found in B.- R. Killmann,
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Apart from the exceptional situation of the Court of Justice of the European Communities, only the Administrative Tribunal of the International Labour Organization’s competence may be extended to hear disputes arising out of contracts to which the concerned international organization is a party and which provide for the competence of the Administrative Tribunal in any case of dispute with regard to their execution,71 yet, it appears impossible to empower the Administrative Tribunal’s competence to review procurement decisions of international organizations, which are subject to its statute. In any event, especially the enforcement of procurement rules is heavenly dependant on the availability of adequate means to redress in order to avoid deterrence of potential bidders to submit tenders.72
B. Litigation Concerning the Awarded Contract Litigation occurring during the performance of the contract, however, could perfectly be brought before domestic courts.73 In fact, domestic law is applicable and the issue at stake is one of iure gestionis. Yet, it is assumed that this is an issue covered by international organizations’ immunity, despite that, in a comparable situation, a state could be brought before domestic courts for a dispute arising from such an act and that the independence of an international organization does not appear to be endangered if it, too, had to accept jurisdiction of domestic courts.74 However, hardly ever an international organization75 is ready to accept domestic jurisdiction concerning its procurement contracts. International organizations, keen to ensure immunity from
“Das Nachprüfungsverfahren im Rahmen der Vergabe öffentlicher Aufträge durch die Europäischen Gemeinschaften” in C. Baudenbacher (ed.), Aktuelle Probleme des Europäischen und Internationalen Wirtschaftsrechts 523 (2002). 71
Art. II (4) of the Statute of the Administrative Tribunal of the International Labour Organization, available at http://www.ilo.org/public/english/tribunal/stateng.htm (last visited 30 June 2003).
72
The particular lack of failing implementation of the procurement directives due to missing legal remedies was the prime reason for proposing the so-called Public Remedies Directive No. 89/665/EEC, OJ 1989 L 395, at 33 according to Reich, supra note 60, at 217.
73
See Reinisch, supra note 63, at 385 and Wellens, supra note 1, at 218.
74
E. Gaillard/I. Pingel-Lenuzza, “International Organisations and Immunity from Jurisdiction : To Restrict or to Bypass”, 51 International and Comparative Law Quarterly 1, at 5 (2002).
75
Regional international organizations such as the EC and the Organization of American States may accept jurisdiction of domestic courts situated in their Member States. Art. 238 (ex-Art. 181) EC Treaty implies that recourse to domestic courts for disputes on a contract is foreseen, unless a specific arbitration clause in favour of the European Courts of Justice is included. Rule 11.2.2 and 11.3 of the Procurement Contract Rules of the General Secretariat of the Organization of American States, supra note 18, instead, provides in general for an arbitration
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domestic jurisdiction, are well aware that immunity on its own does not in itself affect substantive rights and obligations, they even perceive it as an obligation to provide for appropriate modes of settlement of contractual disputes.76 International organizations are therefore usually accepting arbitration clauses77 or even the competence of an administrative tribunal, where possible,78 to settle disputes with their service providers and suppliers. The application of such alternative dispute settlement methods79 or fora is an essential element to ensure legal fairness also with regard to international organizations as regards external affairs on a private law level.
C. Administrative Tribunals for Procurement Activities of International Organizations Looking at the result of excluding jurisdiction for the procurement phase and allowing for, at least, alternative dispute settlement for performing an awarded contract appears to imply that international organizations are only ready to institute legal proceedings for contract performance with a view to ensure the ‘good-will’ of their service provider or supplier.80 Although there are conceptual differences between the procurement stage and the contract performance, in particular as regards the source of law, there is no evident point to consider only the contract performance as an issue worth to be subject to litigation according to due process standards. As such, the procurement phase only constitutes the pre-stage of the later awarded contract, so why denying independent and fair review on the procurement as well? Calling for a right of access to courts for ‘civil rights and obligations’ as a human rights standard to be respected
clause, yet, allows exceptionally for accepting a domestic court’s jurisdiction, if in place where the General Secretariat of the Organization of American States has an office. 76
See, e.g., Art. VIII Section 29 (a) of the Convention on the privileges and immunities of the UN as explained in Extract from the advance version of the 2000 United Nations Juridical Yearbook, Chapter VI, at 34 (2004).
77
The acceptance of arbitration clause by the UN in Art. 16 of its general conditions of contract (available at http://www.un.org/Depts/ptd/pdf/gencon.pdf, last visited 22 March 2004) led to 12 cases since 1995 and induced the UN to improve effective contract administration to avoid a possible arbitration case, see supra note 35.
78
E.g. the ones falling under Art. II (4) of the Statute of the Administrative Tribunal of the International Labour Organization, supra note 71.
79
Considering also the possibility of conciliation procedures before arbitration, supra note 35.
80
Even if the incentive of such an arbitration clause is rarely considered to be of a neutral nature according to Wellens, supra note 1, at 94.
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by international organizations81 could perfectly comprise the damage caused to a potential bidder by an international organization because of non-compliance with its own procurement procedures.82 It is, on the one hand, perfectly understandable that any international organization would be reluctant to have a domestic court deciding on a breach of its internal procurement law, yet, it would be, on the other hand, equally possible to entrust administrative tribunals with the review of procurement decisions.83 The mere fact that usually international organizations have not established an administrative tribunal for reviewing procurement acts still leaves scope for advocating in favour of such administrative tribunals.84 The administrative tribunals could, just as for employment relations, verify whether acts taken by the procuring organs of an international organizations are in conformity with the internal procurement law and comply with a fair procurement procedure without infringing on the necessary discretionary powers of the concerned organs.85 Administrative tribunals appear also to be more efficient in this regard due to their regularly having a higher expertise in applying the international organization’s internal law.86 In addition, the administrative tribunal could, at the same time, be the arbitration court competent for litigation as regards the contract performance and thereby allow for a better jurisdictional coordination also as regards the link between procurement and contractual stage. The possible set-up of administrative tribunals for procurement or extending the existing administrative tribunals’ review powers to procurement acts, however, again would bring about that the individual enterprises may challenge acts of international organizations with a serious impact on their budgetary means—causing a conflict, as it was for employment relations in ICJ’s advisory opinion on the effects of awards of
81
See Reinisch, supra note 63, at 312 et seq.
82
Non-compliance with procurement rules and procedures are an admitted problem in international organizations due to the growing field of activities, see supra note 35.
83
Review should be possible due to the obligation to provide reasons for decisions as stated by Point 28 of the International Law Association, London Conference, supra note 8, at 7. Said decisions should set out the principal issues of law and fact for procurement decisions, as any other decision of an international organization with individualised nature according to the International Law Association, supra note 16, at 6.
84
See Wellens, supra note 1, at 25 et seq. deduces from the implied powers of an international organization to perform its duties the obligation to establish remedial mechanisms for third parties other than staff.
85
Based on the so-called ‘corporate approach’ according to which an international organization has jurisdiction in respect of its own acts (See Wellens, supra note 1, at 51).
86
Reinisch, supra note 63, at 384.
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compensation made by the UN’s administrative tribunal,87 between judicial and political powers on budgetary issues. The budgetary impact of any decision of such an administrative tribunal by an international organization does not justify to overlook the unequal position that exists between the organization and the private parties concerned.88
V. Some Thoughts in Conclusion Financial rules and, more specifically, procurement by international organizations is a promising field to look into as an emerging body of law where common features can be found, worked out and spelled out, so as to lead to a better understanding of the working of any such organization. Procurement rules and procedures applied by international organizations should become of interest to legal scholars, inside and outside the international organizations in order to enhance the functioning of such organizations as well as the relations and mutual understanding of the organizations with their providers. If this article could contribute to foster research in this area, the attempt to look into the basic set of rules related to procurement procedures, awarding and complaint procedures applicable to international organizations has achieved its aim in outlining some main common features. The legal remedial mechanisms for bidding enterprises to have international organizations respect their own procurement legislation, however, may be an aspect that has to be tackled on a different scale and would clearly fit into the debate of increasing accountability of international organizations. It is still a long way to go to establish a consciousness that also international organizations should accept judicial review of their procurement procedures—and even if only in the understanding that international organizations such as states have an obligation, to construe their working in a way that a basic human right, such as judicial protection of the rule of law, is respected even with regard to their own administration.
87
Supra note 10.
88
See Wellens, supra note 1, at 25 calls generally for having due regard to this unequal position.
Current Developments
Current Developments
Austrian Review of International and European Law 7: 301-xxx, 2002. ©2004 Martinus Nijhoff Publishers. Printed in the Netherlands.
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Legal Reforms in Bosnia and Herzegovina versus Good Common Sense
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Legal Reforms in Bosnia and Herzegovina versus Good Common Sense Emmanuelle Cerf*
I.
Introduction
Politics has always engendered need for codification and re-codification of laws. After the fall of the Socialist regime, new criminal codes were prepared and voted in Poland (1997), Russia (1997) and Estonia (1998). In Western Europe, more modern criminal codes were also adopted in Portugal (1987), Italy (1989) and France (1994). The Dayton Peace Agreements gave a judicial framework to Bosnia and Herzegovina after the war. Since those Agreements, Bosnia and Herzegovina is composed of two Entities: the Federation of Bosnia and Herzegovina (inhabited by a majority of Bosniaks and Croats) and Republika Srpska (inhabited of majority of Serbs). Each Entity has its own institutions and legal system. The case of Brcko District, which has its own judicial system, will not be dealt with in this paper. Based on the Dayton Agreements, which still justify the presence of international organisations within the country, the international community came up with several judicial reforms over the past eight years. The Federation of Bosnia and Herzegovina adopted a new criminal code and a new criminal procedure code in 1998. The Republika Srpska was using the criminal procedure code of 1977 from the former Yugoslavia to which it added a few amendments. It has adopted its criminal code in 1992, also inspired from the former Yugoslavia, which was reviewed in 2000. In 2003, the Office of the High Representative (OHR) with the aim of harmonisation reviewed the entire criminal legislation. This was the biggest reform ever produced and it has disrupted most of the judicial body wrapped into a civil law tradition. New principles coming from the common law system were introduced into the Bosnian judicial system, which was of strong civil law influence. Notably, the accusatory principle, the principle of equality of arms and reinforced role of the public prosecutor—due to the abolition of the investigative judge—were introduced. This reform has created a State criminal framework with a State criminal code and a State criminal procedure code. In summer 2003, Parliaments of Republika Srpska
*
Former Rule of Law Legal Adviser in Bosnia and Herzegovina.
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and the Federation of Bosnia and Herzegovina amended the State laws and passed their own criminal laws. Although all the three criminal codes and criminal procedure codes were supposed to be harmonised, it came out they were different in many of their provisions, which engendered problems of interpretations. Moreover, in both entities, the new laws were published in the official gazettes a few days after they had come into effect, without any vacatio legis, which made judges and prosecutors angry and the process of new cases introduced at that time uncertain. These legal reforms have been processed without any good common sense. Indeed, at the same time criminal legislations were changed, judges and prosecutors were reappointed and the courts were restructured. These major changes have impacted the judiciary manpower that was left without any guidance from their ministries of justice. The aim of this note is to make the reader understand the latest major changes in the criminal and legal reforms made over summer 2003 in Bosnia-Herzegovina and realise that some new provisions are problematic to apply due to technical and financial difficulties. Indeed, the aims of these changes can be justified and found in the need to improve the protection of human rights and to combat the increasing corruption and major organised crimes. However, these changes were introduced without taking into consideration the mentality of the judiciary, the general lack of means of the country and subsequent lack of support from the local authorities in the implementation of the new laws.
II. Criminal Laws A. The State Court New criminal reforms have created a State Court whose jurisdiction remain ambiguous in light of the provisions mentioned below. In addition, the lack of human resources renders even more problematic the application of the new provisions. Upon article 13 of the Law on Court, adopted by the Office of the High Representative on January 24, 2003, which creates the State Court, this Court has jurisdiction over criminal offences defined in the Criminal code of Bosnia and Herzegovina. Article 18 of the decision adopted the same day by the Office of the High Representative, which creates a State prosecutor’s office, all courts and prosecutor’s offices, in which criminal cases are pending and fall under the jurisdiction of the State Court, in which the indictment is not confirmed or in legal effect before 1st March 2003, shall be bound to inform the Prosecutor’s Office of the cases.1 Consequently, new article 449
1
Both decisions can be seen at the OHR website available at http://www.ohr.int.
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of the criminal procedure code says that all pending cases before other courts prior to coming into force, meaning 1st March 2003, shall be finalised by these courts if the indictment is confirmed or in legal effect in these cases. The State Court may decide ex-officio or upon proposal of the parties or defence attorney, to take such a case, which will be processed under the State criminal code. It is unfortunate that criteria under which the State Court should be competent remain so vague. Indeed, the applicable legal provision changes depending on the court before which the case is processed. In order to illustrate problematic consequences of this overlap of competencies, one can note the existing discrepancy between provisions related to trafficking in human beings. Indeed, the legal provisions contained in the State code and the Entities’ codes are different. Article 186 of the State criminal code defines the crime of trafficking, although it does not refer to the absence of consent of the victim to qualify the offence, as foreseen in the Palermo Protocol ratified by Bosnia and Herzegovina in 20022. Worse, the provisions in the Entities’ codes do not refer at all to the offence of trafficking but to the offence of prostitution.3 The fact that the necessary elements to qualify the offence changes from one court to another make the legal system extremely complex and the proceeding of cases very slow. There is no clear directive in the law or in any regulations as regards to dual applicability between the State and Entities’ provisions. This might leave room for appreciation to judges and different proceedings of cases depending on the courts, since only the State court contains a provision related to trafficking in human beings. Lack of staffing within the State prosecutor’s office—notably due to lack of financial means—predestines the prosecutor’s office will only seize ex-officio a small amount of cases. Some high-ranked person in charge of the criminal reform asserted the poor excuse that the State Codes had come into force in early 2003 to justify the judges should have been aware of the content of the new Entities’ codes. Indeed, although harmonisation of the legislations was expected, contents of the criminal procedure State code and criminal State code were different from the four Entities’ codes. This could have been anticipated given the discussions at the Entities’ Parliaments.
B. Preservation of Evidence Lack of financial means render ineffective the application of the newly introduced provisions to record evidence.
2
The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children, known as the Palermo Protocol, was adopted by the General Assembly in New York on 15th November 2000.
3
New article 198 of the Criminal Code of Republika Srpska and 210 of the Criminal Code of the Federation of Bosnia and Herzegovina.
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The new criminal reform introduces specific provisions related to recording of witnesses at all stages of the proceedings, notably when it is established the witness cannot be examined at the main trial. Entities’ codes also foresee preservation of evidence by the court when the deposition is conducted in accordance with procedures of direct examination and cross-examination newly introduced by the reform. The testimony of witnesses should be taken at a special hearing. A State law on witness protection imposed by the Office of the High Representative, which came into force on 1st March 2003, foresees recording of testimonies (articles 14 and followings). Consequently, testimonies of witnesses in sensitive cases i.e. trade in human beings, can be preserved at a special hearing in order to avoid victims to modify their testimonies when they appear before the court and find themselves under pressure of suspects. However, lack of recording material impedes the effectiveness of such provisions.
III. Restructuring of the Court and Prosecutors Offices The aim of this restructuring is to create a more efficient court system. The Independent Judicial Commission’s Restructuring Department, part of the OHR, dealt with the restructuring of courts. This reform should decrease the number of courts through BiH. In Republika Srpska, the number of basic courts should decrease from 25 to 19 and in the Federation of Bosnia and Herzegovina, from 53 to 27. Prosecutors’ offices should be centralised at cantonal and district levels. All prosecutors’ offices at municipal and basic level should be abolished. It is expected the centralisation shall contribute to a higher specialisation of prosecutors and diminish their exposure to pressure while they are working in small communities, which would increase the efficiency of the judicial system. However, the main reason for restructuring can be seen in the need to save the costs that can be reallocated to other expenditures. So far, lack of uniformity in courts’ practice has impeded any improvement in the legal system. The restructuring might improve the registry situation. Indeed, so far uniformed forms and court registers are not yet produced at central level neither in Republika Srpska nor in the Federation of Bosnia and Herzegovina, which create different practices in developing those documents at courts. This has a catastrophic impact on the recording of cases and exchange of information between courts whose improvement is needed to work properly. Furthermore, due to lack of computers, cases were often registered by hand, especially in Republika Srpska, which did not benefit to as many donations as the Federation of Bosnia-Herzegovina. The restructuring can only improve uniformity of the registration. The restructuring might also lead to a better judicial co-operation between Entities, following the OHR Decision Enacting the Law on Legal Assistance and Official Co-
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operation in Criminal Matters between the Federation of Bosnia and Herzegovina, Republika Srpska and the District of Brcko dated 23 May 2002. Although located in the same country, the other Entity’s police or judicial institution delays some cases due to the fact the information needed for the proceeding of the case is not provided. At most, such a situation might delay the case for months. Compilation of all relevant case laws, necessary to build up a judicial system, might be one day systematised and distributed to courts thanks to this restructuring. So far, the courts receive the official gazettes of their own entity and ignore everything from the decisions rendered by the other entity’s court. If the restructuring might tremendously improve the work of the judiciary in the future, the willingness to process cases equally and impartially will remain in judges and prosecutors’ hands. Only them can build the judicial future of their own country.
IV. Reappointment of Judges and Prosecutors The reappointment process goes parallel with the legal reform and restructuring of courts. It was decided by the High Representative on 4th April 2002. This concerned all judges and prosecutors apart from the ones sitting in highest courts such as the Constitutional Court. Decisions of the High Representative on 23rd May 2002 enacted the three Laws on High Judicial and Prosecutorial Councils (HJPC) of Bosnia and Herzegovina, of the Federation of Bosnia and Herzegovina and of the Republika Srpska. On 6th August 2002, the High Representative issued a new mandate for the Independent Judicial Commission (IJC), to reflect the reinvigorated judicial reform strategy and to support the work of the three High Judicial and Prosecutorial Councils at entities and State level. The IJC was granted its first mandate by the High Representative on 14th March 2001. Under this mandate, it was the lead agency for judicial reform in Bosnia and Herzegovina. These HJPC, composed of prominent local judges, prosecutors or even journalists, screened and reappointed judges and prosecutors. This process aimed to have the most qualified judges and prosecutors with highest moral and professional standards, to notably avoid the corruption. Before the reappointment process was achieved, most of the judges, including the ones who were not reappointed, received basic trainings on the new criminal legislation by local and international associations and organisations, due to the urgent need of having judges and prosecutors capable of implementing the new laws. However, the new appointed judicial staff will have to be trained, which will be again time and money consuming before the legal system runs fully. Although understandable, this reappointment was processed within a bad timing. Some courts, where majority of judges had to be reappointed, have terribly suffered of those simultaneous changes within the judicial system. Moreover, not all reappoin-
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ted judges can be claimed totally uncorrupted and professional. As in all reforms made in post-war countries, available money was getting shorter and time was running.
V. Conclusion It seems that Bosnia and Herzegovina has been a laboratory of experimentation for legal changes since the war was over. The international community had the goal to build the perfect criminal system in light of the European and International human rights standards. The spirit of these changes is good but regrettably too closely dependent on policies of the States’ donors, which are actually building up a new legal system for 3,6 million inhabitants. Considering the current new crisis which came up recently in Afghanistan and Iraq, donations have become scarce and hard to obtain for a country whose Peace Treaty has now been signed for more than eight years.
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Recent Austrian Cases on Questions of Jurisdictional Immunities Stephan Wittich*
Jurisdictional immunities of foreign states are certainly among those areas of international law which are most often litigated before domestic courts. In any digest of international law to be found in the various journals and yearbooks, decisions of municipal courts on questions of state immunity take a prominent place. Austrian courts are no exception in that respect. To the contrary, it would appear that the Austrian judiciary is more prolific than ever in addressing questions of foreign state immunity. Whatever the reasons for this development may be (e.g., the general perception in state practice of a “decline” of state immunity that leads to an increasing limitation of its scope, or a growing willingness of individuals to enforce breaches of their legally protected interests against foreign states by resorting to municipal courts), the rich case law of Austrian courts in recent years warrants a brief analysis. Before discussing the current case law, a short overview of the approach of the Austrian Supreme Court towards the issue of state immunity will be presented. The Austrian Supreme Court rendered a landmark decision in Dralle v. Republic of Czechoslovakia in 19501 in which it reviewed the practice of various states with regard to the question of immunity of foreign states and came to the conclusion that there was consistent and widespread practice in favour of restrictive immunity for acts in the performance of sovereign authority (acta iure imperii), while states were subject to the jurisdiction of municipal courts of other states for private or commercial acts (iure gestionis). Shortly thereafter, the Court adopted the nature of the act—and not its purpose or motive—as the criterion used to distinguish between sovereign and private acts.2 Thus, in determining whether an act is “private”, the Court has emphasised that the decisive criterion is whether the act, according to its nature, can be performed by a private individual. If so, jurisdictional immunity will not apply; if not, the act is considered to be sovereign and therefore covered by immunity. In
*
Executive Editor, Assistant Professor of International Law, University of Vienna.
1
Decision No. 1 Ob 171/50, SZ 23/143, Austrian Supreme Court, 10 May 1950, translated in 17 ILR 155.
2
Decision No. 2 Ob 243/60, 84 Juristische Blätter 43 (1962), Austrian Supreme Court, 10 February 1960, translated in 40 ILR 73. See also Hazel Fox, The Law of State Immunity 284 (2004).
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contrast, with regard to enforcement jurisdiction, the Supreme Court has however reversed its previous practice and now adheres to the purpose-of-the-property test.3 The reason for the more reserved approach to immunity from execution is that enforcement measures are generally considered to constitute a greater interference with a state’s sovereignty and freedom to pursue its public purposes than does the pronouncement of a judgment.4 *** The first decision5 to be analysed concerned a private law suit of an Austrian attorney against the Kingdom of Belgium that related to certain detrimental effects of the socalled “sanctions” against Austria on the occasion of the formation of the Austrian Federal Government in which the rightist Freedom Party (Freiheitliche Partei Österreichs) participated. These “sanctions” consisted i.a. in suspending the bilateral contacts between the member states of the EU and Austria on the political level, not supporting Austrian candidates for international posts, and in keeping the contact with the Austrian ambassadors in the capitals of the EU member states at a minimum, i.e. for purely “technical” reasons only. The plaintiff filed a claim against Belgium arguing that the Belgian Foreign Minister had publicly induced a boycott against the entire Austrian economy. He further contended that the municipal authorities in Brussels induced a “taxi boycott” against Austrian nationals and illegally did not admit Austrian representatives to the tourism fair in Brussels. According to the plaintiff, these measures lead to actual economic damage in Austria which also affected himself since fewer clients would commission legal advice from him. Moreover, he argued that as a “preventive measure” he had to attend a specific seminar in order to learn how to maintain good business relations in difficult situations. In sum he claimed damages amounting to approx. EUR 1,800. With regard to the question of immunity he invoked article 11 of the European Convention on State Immunity which was applicable to the present case. The lower courts dismissed the claim since the respondent enjoyed foreign state immunity.6 The acts complained of by plaintiff all concerned matters of foreign policy and therefore, according to their nature, acts in the exercise of sovereign authority for which the foreign state enjoyed immunity. With regard to the applicability of
3
See Decision No. 3 Ob 38/86, 90 Juristische Blätter 733 (1986), Austrian Supreme Court, 3 April 1986, translated in 77 ILR 489.
4
See Fox, supra note 2, at 373.
5
Decision No. 4 Ob 97/01w, Austrian Supreme Court, 14 May 2001, translated in S. Wittich et al., “Austrian Judicial Decisions Involving Questions of International Law”, 6 ARIEL 281, 288 (2001) [hereinafter “Austrian Judicial Decisions 2001”].
6
Ibid., at 290-293.
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article 11, the Higher Regional Court (Oberlandesgericht) Innsbruck as court of appeal held that since plaintiff claimed compensation for mere financial loss unrelated to injury to the person or damage to tangible property, article 11 was not applicable. The Court added another reason for the inapplicability of article 11, i.e. the absence of the author of the injury in the territory of the forum state at the time when the relevant facts have occurred. This provision was based on the idea that in case of mere domestic matters, the interest of the forum state in exercising (judicial) jurisdiction prevailed over any interest of the foreign state. It was only for this reason that according to article 11 even acta iure imperii were subject to the jurisdiction of the forum state. In such a case, the pertinent court or tribunal had to carry out a comprehensive balancing of interests which must duly consider the relation of the subject matter of the dispute to the forum state. In the present case, plaintiff tried to establish such relationship of Belgium as the “author of the injury or damage” to Austria by asserting that “the embassy” of Belgium in Austria had caused the sanctions by its incorrect information on the current political situation in Austria. The Higher Regional Court however held that even if this assertion were proven it could not be ignored that the essentials of the conduct by Belgium had taken place in its own territory and not in Austrian territory as the forum state. This conduct in particular had consisted of policy decisions of the government. It followed that there was no sufficient link of presence of the author of the injury or damage in Austria. On further appeal, the Supreme Court upheld the decision of the lower courts to dismiss the claim and also approved of the reasoning.7 With regard to article 11 of the European Convention on State Immunity the Court added that the Explanatory Report to the Convention by the Council of Europe made clear that this provision did not apply where there was no personal injury or damage to tangible property, as in the case of loss from unfair competition. This was also substantiated by reference to the preparatory works of the Convention which showed that article 11 had been couched in identical terms to article 10(4) of the Hague Convention of 19667a. This provision shall enable a private person injured by a traffic accident involving a foreign diplomat to bring an action before domestic courts of the country where the injury had been inflicted. Therefore, the Supreme Court concluded, the scope of applicability of article 11 of the European Convention on State Immunity did not extend to compensation for non-material damage, for instance in case of a violation of personal rights.8 With regard to the distinction between private acts and acts in the exercise of sovereign authority, the Supreme Court held that that distinction was irrelevant in
7
Ibid., 294-296.
7a
It could not be ascertained to which Convention the Court was referring.
8
Ibid., at 294.
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the context of the European Convention. Yet, in any event, the acts which according to plaintiff’s submissions caused the damage, that is, the conclusion of bilateral agreements and declarations of the respondent state’s Foreign Minister, were clearly to be considered as activities of the Foreign Ministry which no doubt constituted essential elements of the public authority of any state. Such activities could not be performed by private persons and hence belonged to the sovereign power of each state.9 * Overall there is not much to be added to the reasoning provided by the courts in this case. The application of the European Convention does not pose a problem. The Convention largely upholds state immunity but provides for various exceptions in a very casuistic manner (article 15).10 It is obvious that none of the exceptions in articles 1 to 14 was applicable. In particular, the invocation by plaintiff of article 11 was doomed to fail at the outset, and this was made clear by the reasoning of both the court of appeal and the Supreme Court. On the other hand, while the distinction between private and sovereign acts is generally not easy to make, there can hardly be a clearer example of an act iure imperii than the conduct of foreign policy. That in most cases, however, this distinction is a tricky one is illustrated by the following decisions. *** In two closely related decisions the Supreme Court had to deal with the question as to whether a letter of request for service of process is an act iure imperii or rather iure gestionis. The plaintiff in those cases was an employee at the US embassy in Vienna and claimed reimbursement of certain payroll taxes from the United States before the Vienna Court for Labour and Social Matters (Arbeits- und Sozialgericht). The Labour Court requested the Austrian Federal Ministry of Justice to effect service upon the respondent, the United States of America, of the claim and a summons to appear at a court hearing. The request was however returned because the US authorities invoked immunity and did therefore not effect the service. The court of first instance dismissed the motion for a default judgment because it was not sufficiently established that the competent authority of the United States had properly received the claim and the summons. The plaintiff appealed to the Higher Regional Court Vienna as court of appeal which held that it may well be the case that the letter of request had reached the sphere of the US Department of State, hence a competent authority, so that the
9
Ibid., at 295-296.
10
Article 15 reads: “A Contracting State shall be entitled to immunity from the jurisdiction of the courts of another Contracting State if the proceedings do not fall within Articles 1 to 14”.
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service of process may have been effected.11 However, according to Austrian law,12 in the absence of an international agreement on the matter, service of process abroad has to be effected pursuant to the legal provisions of the state where the service is to be effected. Since the dispute concerned private law issues the Higher Regional Court took the view that it would have been necessary to effect the service of process of the claim and the summons upon the US Department of Justice as the competent authority representing the United States in private law disputes.13 It could however not be verified whether the US Department of Justice indeed had received the service of process. The Higher Regional Court then turned to the question whether the execution of a letter of request is a private or a sovereign act. Based on academic writings,14 plaintiff argued that a letter of request does not constitute an act iure imperii since otherwise a foreign state could always prevent proceedings against itself by refusing to execute the letter of request, even if the claim is one arising out of commercial activities. The Higher Regional Court was not convinced by these concerns and stated that against the background of the distinction between private and sovereign acts being made according to the nature of the act and not its purpose or motive, there was no doubt that service of process in judicial proceedings had to be considered an exercise of state authority because a private person would not be able to carry out a similar act.15 It added that even if in individual cases there might be the fear of abuse, there was no reason to treat service of process upon the requested state itself differently from
11
Decision No. 8 ObA 201/00t, Austrian Supreme Court, 11 June 2001, translated in Austrian Judicial Decisions 2001, supra note 5, at 304, 306 (referring also the decision of the Higher Regional Court).
12
In particular § 11(1) and (2) of the Service of Process Act (Zustellgesetz) which reads as follows (unofficial translation by the author): Special cases of service of process § 11 (1) Service of process abroad has to be carried out according to existing international agreements or, as the case may be, in a manner that is permitted under the laws and other regulations of the state where service is to be effected or under international comity, if necessary with the assistance of the Austrian foreign service. (2) Service of process upon foreigners or international organisations that enjoy privileges and immunities under public international law, has, regardless of their place of residence or seat, to be effected by the medium of the Foreign Ministry of Foreign Affairs.
13
Austrian Judicial Decisions 2001, supra note 5, at 307.
14
In particular C. Schreuer, „Die Durchsetzung zivilrechtlicher Ansprüche gegen ausländische Staaten”, Österreichische Juristen-Zeitung 41-50 (1991).
15
Austrian Judicial Decisions 2001, supra note 5, at 308.
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service of process upon a national of that state. The Supreme Court which was seized of that case on further appeal endorsed the findings of the Higher Regional Court and merely added that according to existing standards under public international law the execution of a letter of request or the refusal to execute a letter of request were independent of the subject-matter of the service of process and therefore were attributable to the sovereign rights of a state.16 It also referred to the fact that pursuant to US domestic law, the United States were represented by the Department of Justice in matters that have to be considered as acta iure imperii.17 For some peculiar procedural reasons the Supreme Court was again seized of the dispute.18 In principle it repeated its earlier decision and further elaborated on the municipal law aspects. In particular it stated that foreign states fall under the term “foreigners or international organisations that enjoy privileges and immunities under public international law” as envisaged in § 11 of the Service of Process Act.19 Therefore it was even more important to clarify the question of state immunity. * The two decisions of the Supreme Court are not entirely convincing.20 First of all, the Court failed to set out the acts for which the United States would enjoy immunity. In particular, it did not adequately distinguish between the original dispute concerning the employment contract and the dispute concerning the service of process in the proceedings arising out of the former. While both aspects in principle certainly concern questions of state immunity, it is well established that depending on the specific act or factual situation the extent of immunity may vary. In the case at hand it would have been necessary to examine whether the United States indeed enjoyed immunity before Austrian courts for the specific labour dispute. The category of disputes arising out of employment contracts takes a distinct position in the law of state immunity. In general, foreign states do not enjoy immunity before domestic courts of another state for labour disputes. Article 11 of the ILC Draft Articles on Jurisdictional Immunities of States and Their Property,21 for instance, provides:
16
Ibid., at 309.
17
Ibid.
18
S. Wittich, “Austrian Judicial Decisions Involving Questions of International Law”, 8 ARIEL 425, 423 (2003) [hereinafter “Austrian Judicial Decisions 2003)”].
19
Ibid., at 426-427. For the text of this provision see supra note 12.
20
For a critique of the earlier judgment see also the case note by M. Hingersteininger, Juristische Blätter 57 (2002).
21
Yearbook of the International Law Commission 1991, volume II, part 2, 13, at 41.
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Unless otherwise agreed between the States, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.
Only if either the specific functions of the employee or the particular subject of the proceeding so require (paragraph 2) the foreign state may invoke immunity. In the present case these particulars of the dispute were not set out by the courts in their decisions so that a definitive assessment cannot be made. The second aspect concerns the question as to whether service of process is an act for which a state may enjoy immunity. Here again, one has to make an important distinction which the Austrian courts have ignored. It will certainly make a difference whether the service of process is effected by “regular” means, that is, pursuant to the relevant procedural rules (e.g., on condition of return receipt), or by letters rogatory. It is certainly true that in the present case, where the respondent in the municipal proceedings was identical to the state which was requested by the forum state to effect service upon itself, that distinction was difficult to make. However, while it is obvious that service of process by a letter of request can, according to its nature, only be performed by a sovereign act, a “regular” service of process may be effected also by private individuals. The Supreme Court’s apodictic statement that “there is no doubt that service of process in judicial proceedings is an act iure imperii and not iure gestionis since a private person would not be able to carry out” a similar act22 may be true according to Austrian law. The question however is according to the law or practice of which state that assessment must be made. In principle, international law refers to the situation prevailing in the forum state,23 but given the fact that the service of process has to be effected in the respondent state it is doubtful whether the practice in that state with regard to the nature of the relevant act may be totally ignored. As is well-known, service of process in civil cases in the United States is frequently— if not regularly—effected by private companies. Therefore, it would have been all the more desirable to examine the question of the nature of the service of process in more detail.
22
Austrian Judicial Decisions 2001, supra note 5, at 309.
23
See, e.g., article 2(2) of the ILC Draft Articles, stating that with regard to the distinction between commercial and sovereign transactions not only the nature of the contract or transaction has to be taken into account but also its purpose “if, in the practice of the State which is a party to it, that purpose is relevant to determining the non-commercial character of the contract or transaction”.
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*** The determination of an act according to its nature was even more complicated in the Decision of the Supreme Court No. 2 Ob 156/03k24 that concerned a lawsuit of the operator of the airport Linz in Austria against the United States for the non-payment by the US Air Force of landing fees and airport user charges between 2000 and 2001. The US airplanes used the airport for intermediate landings in the course of NATO’s humanitarian IFOR/SFOR operations on the Balkans. The sum claimed was confined to commercial services rendered to the aircraft and did not include any taxes, levies or duties. The district court (Bezirksgericht) Linz dismissed the claim for lack of jurisdiction on the basis of state immunity.25 It held that the employment of foreign aircraft was an act of public or governmental authority for which the respondent state could validly invoke state immunity. Upon appeal, the Regional Court (Landesgericht) of Linz upheld the decision of the district court.26 It referred to the settled case law of the Supreme Court with regard to the distinction between acts iure imperii and iure gestionis and stated that this distinction had to be made pursuant to the nature of the act and not its purpose. In applying that distinction, the Regional Court looked at the international legal basis for the landings, i.e. the Dayton Peace Accords and UN Security Council Resolutions 1031 and 1035 (1995), and concluded that such acts could only be performed in the exercise of sovereign or governmental authority. In rejecting plaintiff’s argument that the aircraft had been employed in the context of humanitarian assistance rather than military operations, the Court referred to the case law of the Supreme Court concerning the distinction between governmental and private acts of official state organs for the purpose of domestic law. Accordingly, whenever a particular activity was of a sovereign nature, all other conduct associated with its performance should also be considered sovereign—provided that the conduct in question was integrally connected with the sovereign activity. The entire range of action, whether primary or subsidiary, was to be considered sovereign in character even if individual parts of the overall activity were taken by private persons. The Regional Court extended this analysis to the international realm, holding that subsidiary acts undertaken in the context of a broader, encompassing sovereign activity, especially one serving public interests, would themselves be considered sovereign in nature. In applying this case law to the present case, the Regional Court held that the intermediate landings were an indivisible part of the overall activity. In other words, although the use of a civil
24
Austrian Supreme Court, 28 August 2003, translated in Austrian Judicial Decisions 2003, supra note 20, at 430.
25
Ibid., at 431.
26
Ibid., at 432-434.
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airport, if taken out of context, may well be characterised as a private act, the intermediate landings of the US aircraft had to be seen against the background of the entire IFOR/SFOR operation. Accordingly, the landings were part of the overall sovereign activity for which the United States enjoyed immunity. Upon further appeal, the Supreme Court fully endorsed the decision of the Regional Court.27 It also stated that the military use of a state’s air force was, in any event, a sovereign act and that actions carried out within the scope of an international treaty were likewise sovereign in character, as would acts carried out under binding Security Council resolutions as in the present case. * This case demonstrates that in the context of the distinction between private and sovereign acts several problems almost inevitably occur. First of all, it is generally difficult to determine what the relevant act is for which immunity is being invoked. In practice, many activities do not consist of a single act in relation to which the issue of immunity can be decided; instead, they are often made up of a complex series of acts, some or all of which may be partly sovereign or governmental, and partly private or commercial, in character. The problem here is one of individuation—of identifying the transaction as precisely and narrowly as is reasonably possible and taking into account the factual and legal issues involved.28 In the case at hand, the question remains: What was the relevant act or activity giving rise to the particular claim against the United States? Was it the intermediate landings or, rather, the carrying out of humanitarian operations within the scope of broader operations authorised by the UN Security Council? In applying the test previously developed by the Supreme Court in the context of domestic law, the centrally important conclusion by the Regional Court was that the intermediate landings giving rise to the claim were only auxiliary or subsidiary to, and formed part of, a broader activity that had to be assessed in its entirety. And since the landings would not have been carried out in the absence of the operation authorised by the Security Council, they were so closely linked to that operation that they needed to be treated the same. A second remark concerns the old dispute as to whether the nature or the purpose of the act is the criterion decisive for distinguishing between private and sovereign acts. The Supreme Court is clear in its case law on state immunity, and has repeatedly, almost like a mantra, held that the distinction must be made according to the nature
27
Ibid., at 435-436.
28
Fox, supra note 2, at 286–92; Crawford, “International Law and Foreign Sovereigns: Distinguishing Immune Transactions”, BYIL 75, 94-99 (1983).
29
James Crawford, supra note 28, at 95; C. Schreuer, State Immunity: Some Recent Developments 16 (1988); Fox, supra note 2, at 286.
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of the act. However, it is obvious that the nature of an act often cannot be determined without looking also into the motive behind it.29 In the present case, the Supreme Court had difficulty in reaching a characterisation of the act solely on the basis of the nature-of-the-act test. While fully endorsing the reasoning of the Regional Court, which applied the nature-of-the-act test to determine whether the intermediate landings could be considered as private transactions, the Supreme Court referred to the flights by the US aircraft as having “served sovereign tasks”30 or “sovereign purposes”,31 respectively. Thus, although lip service was paid to the nature of the act, it was ultimately the purpose or the motive of the entire activity that was decisive for the question of state immunity. Finally, the Regional Court and also the Supreme Court contradicted the Supreme Court’s settled practice that any determination whether the conduct was of a private or a sovereign character is to be made “not according to pertinent domestic law but pursuant to international law”.32 The Supreme Court has established the practice that whenever a general task is of a sovereign nature all conduct and activities associated with its performance have also to be considered as falling within the exercise of sovereign authority on condition that the conduct or activity in question is inseparably linked to the sovereign task. The Regional Court transferred this rule, which was initially established by the Supreme Court for the purpose of reviewing the constitutionality of the increasing “outsourcing” of previously sovereign tasks to private companies, to the field of state immunity. Thus, in contradiction to the established case law of the Supreme Court, the decision as to whether the act at issue was one iure imperii or iure gestionis was, in the end, made pursuant to domestic law. *** The last case to be discussed33 concerns head of state immunity and arose out of an action before an Austrian court against the incumbent head of state of Liechtenstein, the Reigning Prince Hans Adam II., as well as against the sister and the two brothers of the Reigning Prince. The plaintiff applied for an order of affiliation because a genetic expert opinion by a medical expert had proved that with a probability of 70 to 80 percent, the father of the respondents was also her own father. According to the Liechtenstein Civil Code, an application for an affiliation order may not only be brought against the presumed father but also against his legal successors. Since the respondent head of state had not waived his immunity, the court of first
30
Austrian Judicial Decisions 2003, supra note 18, at 434.
31
Ibid., at 436.
32
Ibid., at 435.
33
Decision No. 7 Ob 316/00x, Austrian Supreme Court, 14 February 2001, translated in Austrian Judicial Decision 2001, supra note 5, at 351.
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instance dismissed the application on the ground that incumbent heads of state enjoyed immunity before foreign courts also for private matters. The Regional Court Krems as court of appeal upheld that decision and the plaintiff lodged a further appeal with the Supreme Court. The Supreme Court held that under existing customary law, foreign heads of state enjoyed absolute immunity for both their official and their private acts.34 The Court then went on to state that the international community increasingly called for a limitation of that privilege in case of serious violations of international law, in particular fundamental human rights. This tendency was also manifest in the law of international civil procedure. The Court continued by referring to views in doctrine35 to the effect that absolute immunity for private or commercial activities does no longer conform to the necessities prevailing today and stated that such activities included questions of personal, in particular family, status.36 In a marked change of argument, the Supreme Court continued that if the plaintiff pursued her claim outside the state of the respondent (i.e. Liechtenstein), this would be in conflict with the principle of immunity.37 On the other hand, the Court referred to human rights considerations that might warrant such proceedings in Austria. In particular it referred to the right to a fair trial and to the right to respect for family and private life. It stated that the European Court of Human Rights had recognised and affirmed repeatedly that the “illegitimate”, i.e. extra-marital, family fell within the scope of protection of article 8 of the European Convention on Human Rights. Referring to the case law of the European Court of Human Rights,38 the Supreme Court stated that article 8 obliged the member states to elaborate the legal relations concerning family ties in such a way as to enable the persons concerned to live a “normal family life”. This required that in case of dispute, a child must have the possibility to have his or her membership to the family legally clarified and determined, and that such determination have binding force. But in the present case, the Court did not address these human rights considerations in detail because, in the view of the Court, they could not supersede the principle of absolute immunity which enjoyed higher rank. Only if an application for an affiliation order were not possible in the home country of the foreign head of state would the plaintiff be entitled to a judgment on the merits of the case; only then would such a claim based on human rights considerations probably prevail over the provisions on immunity. Since the Court
34
Ibid., at 352.
35
G. Dahm/J. Delbrück/R. Wolfrum, Völkerrecht, volume I/1, 2nd edition, 253 (1988).
36
Austrian Judicial Decision 2001, supra note 5, at 354
37
Ibid.
38
Johnston et al. v. Ireland, European Court of Human Rights, Ser. A, No. 112, 18 December 1986.
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did not discern any evidence that would point to the impossibility of pursuing the claim in the home country of the foreign head of state—the more so as the plaintiff had already instituted proceedings in Liechtenstein—it upheld the absolute immunity of the foreign head of state with regard to the Reigning Prince of Liechtenstein.39 With regard to his brothers and sister, the Court denied immunity because the latter was confined to close family members of the head of state forming part of his household. This, however, was not the case. * Viewed from both the factual and the legal situation this could have been an interesting case. While there is abundant judicial practice in the field of general state immunity, claims against foreign heads of state are rarely made before municipal courts. The conclusions of the Court’s reasoning are overall convincing. Given the fact that the plaintiff had the possibility to bring her case before the courts of Liechtenstein, it would have been inappropriate for Austrian courts to render a decision on the merits. Yet in several respects, the reasoning of the Supreme Court is not satisfying. In the first place, while the Court touched upon the modern tendency to limit the immunity of state organs either for particular crimes under international law or, more generally, for acts that are performed in the private capacity of an organ, it did not take a clear position on the issue. It is somewhat puzzling that after dwelling on the justification of a functional limitation of head of state immunity, the Court—without providing any explanation—in the end adhered to the principle of absolute immunity. It is not clear what the significance of the Court’s previous considerations on the limitation of immunity really is. Furthermore, the Court’s apodictic statement that the norms on absolute immunity enjoyed a higher rank than (general) human rights obligations is doubtful. What the Court probably meant was that the rules on immunity under general international law may, depending on the circumstances of the case, be considered as valid justifications for member states to limit certain human rights—at least to the extent that the individual concerned has alternative remedies or fora to pursue his or her legitimate interests.40 As such an alternative forum obviously existed in Liechtenstein, no real “collision” with Austria’s obligations under the European Convention on Human Rights was at issue. On the other hand, the Court made an interesting dictum by stating that in case that no alternative forum exists for the plaintiff, a claim arising under
39
Ibid., at 355.
40
See, e.g., Waite and Kennedy v. Germany, European Court of Human Rights, Application No. 26083/94, 18 February 1999; Beer and Regan v. Germany, European Court of Human Rights, Application No. 28934/95, 18 February 1999. See A. Reinisch, Waite and Kennedy v. Germany; Beer and Regan v. Germany (case report), 93 AJIL 933 (1999).
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human rights obligations of the state—in particular articles 6 and 8 ECRH—”would […] probably prevail over the provisions on immunity”.41 Thus the Supreme Court appears to path the way for a more restrictive approach to head of state immunity. Finally, the fact that the Court decided to continue the proceedings against the brothers and the sister of the Reigning Prince somehow weakens the validity of the argument on the absolute immunity of the foreign head of state. Any decision on the affiliation of the plaintiff with the brothers and the sister does certainly also affect the Reigning Prince. Thus, at least in case of a positive affiliation order, the Austrian courts would also—even if only indirectly—adjudge upon the personal status of the foreign head of state. Whether this is reconcilable with the principle of absolute immunity is open to debate.
41
Austrian Judicial Decision 2001, supra note 5, at 355.
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Documentation
Documentation
Austrian Review of International and European Law 7: 323-xxx, 2002. ©2004 Martinus Nijhoff Publishers. Printed in the Netherlands.
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Austrian Judicial Decisions Involving Questions of International Law
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Austrian Measure for Victims of National Socialism
Michael Schoiswohl An Overview Austrian Measure for Victims of National Socialism ................................ 327
edited by Michael Schoiswohl Documents on Austrian Measure for Victims of National Socialism—National Fund 1995 ........................................................................................ 343 Federal Act on the National Fund of the Republic of Austria for the Victims of National Socialism (unofficial translation) ..................................................................... 343 Amendment 11/2001 to the National Fund Law—Federal Law amending the Federal Law to Establish the National Fund of the Republic of Austria for Victims of National Socialism ........................................................................................ 346 Agreement between the Austrian Federal Government and the Government of the United States of America concerning the Austrian Fund “Reconciliation, Peace and Cooperation” (Reconciliation Fund) .............................................................. 348 Joint Statement on the Occasion of the Signing Ceremony of the Bilateral Agreements Relating to the Austrian Reconciliation Fund ............................................. 355 Joint Statement on the Occasion of the Signing Ceremony of the Bilateral Agreements Relating to the Austrian Reconciliation Fund ............................................. 359 Federal Law Concerning the Fund for Voluntary Payments by the Republic of Austria to Former Slave Laborers and Forced Laborers of the National Socialist Regime (Reconciliation Fund Law) ................................................................................ 360 Joint Statement (January 17, 2001) ................................................................................ 367 Joint Statement—Annex A ............................................................................................. 370 Joint Statement—Annex B ............................................................................................. 379 Agreement between the Government of the United States of America and the Austrian Federal Government governing matters of compensation and restitution for victims of National Socialism ................................................................... 380 Agreement between the Austrian Federal Government and the Government of the United States of America governing matters of compensation and restitution for victims of National Socialism ................................................................... 381 General Settlement Fund Law—Federal Law on the Establishment of a General Settlement Fund for Victims of National Socialism and on Restitution Measures (General Settlement Fund Law), as well as on an Amendment to the General Social Security Law and the Victims Assistance Act ......................................... 383
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Claims Committee—Rules of Procedure ........................................................................ 397 Arbitration Panel for in rem Restitution—Rules of Procedure ........................................ 403
Austrian Measures for Victims of National Socialism—An Overview
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Austrian Measures for Victims of National Socialism—An Overview Michael Schoiswohl*
I.
Introduction
The issue of compensating victims of National Socialism (NS) re-gained public attention in Austria in the mid-1980s, some 40 years after the defeat of the NS-regime whose genocidal politics continue to haunt Austrian conscience, when former Secretary-General of the United Nations Dr. Kurt Waldheim ran for presidency. The candidacy of Dr. Waldheim, whose role during the terror-reign of the NS-regime was publicly questioned, ignited a general discussion about Austria’s responsibility in the Holocaust, a topic which was previously considered taboo in view of Austria’s long-standing argument that as a State occupied by Nazi Germany it could legally not have incurred any responsibility for the acts of the NS-regime.1 Although Austria’s position as to its responsibility under international law remained unchanged, the national and international debate concerning property losses of victims of National Socialism prompted the Austrian government to consider taking reconciliatory measures and to offer some form of compensation in addition to the measures implemented in the years following the defeat of the NS-regime in 1945.
II. The National Fund of the Republic of Austria In 1995, on the occasion of the 50th anniversary of Austria’s liberation, Austria enacted the “Federal Law to Establish the National Fund of the Republic of Austria
*
Dr. iur, Mag. iur (Vienna University), LL.M. (NYU); former legal officer at the General Settlement Fund; currently with the United Nations Development Programme in Kabul, Afghanistan.
1
E. Sucharipa, “Austria’s Measures of Restitution and Compensation for Holocaust Victims: Recent Negotiations and their Background”, 17 Österreichisches Jahrbuch für Internationale Politik (2000) 75, 90; Cf. B. Simma/H. P. Folz, Restitution und Entschädigung im Völkerrecht. Die Verpflichtung der Republik Österreich nach 1945 im Lichte ihrer außenpolitischen Praxis (2002), available at http://www.historikerkommission.gv.at.
Austrian Review of International and European Law 8: 327-342, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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for Victims of National Socialism” in order to provide benefits to people who were persecuted by the National Socialist Regime on political grounds, on grounds of origin, religion, nationality or sexual orientation, physical or mental handicap, who were accused of so-called asociality, who otherwise became victims of National Socialist wrongdoing or left the country to avoid such persecution.2 The fund, whose motto it is “to help in the quickest, most flexible and unbureaucratic manner possible”,3 provides lump sum payments ranging from 70,000 Austrian Shillings (ATS) to ATS 210,000, which are intended to express Austria’s moral responsibility vis-à-vis victims of National Socialism.4 These payments are not a form of reparation, but merely a symbolic gesture on the part of the Austrian Republic, in recognition of its active role in persecuting a great number of its citizens, and in memory of the terrible tribulations they have had to suffer.5 The National Fund is made up of three bodies: a board of trustees consisting of 21 members including the presidents of the National Assembly, the Chancellor, the vice-chancellor, the Foreign Minister, members of Parliament and other well respected individuals of the public, cultural and scientific spheres, as well as representatives of the affected victims; a deciding committee; and the Fund’s secretariat. To date an estimated total of 27,000 individuals have been paid out by the Fund and incorporated into its databanks.6 The rather symbolic measures envisaged in the National Fund were, however, just the beginning of Austria’s renewed efforts to come to grips with its past. These efforts were largely fuelled by growing international attention concerning uncompensated losses victims of National Socialism had sustained, culminating in a series of class actions brought before US courts against banks and insurance companies in Austria, Germany and Switzerland. Initially, the Austrian government sought to resolve the matter by establishing a Historical Commission in 1998 with the mandate to investigate and report on the whole complex of expropriations in Austria during the Nazi era and on restitution and/or compensation (including other financial or social benefits) after 1945 by the Republic of Austria.7
2
Federal Law of 30 June 1995 to Establish the National Fund of the Republic of Austria for Victims of National Socialism [hereinafter National Fund Law]; Federal Law Gazette, BGBl. Nr. 432/1995.
3
See the homepage of the National Fund at http://www.nationalfonds.org/nf/english/ aufgBeschreibung.htm (visited on 26 June 2003).
4
See § 1(2), National Fund Law, supra note 2.
5
See supra note 3.
6
Ibid.
7
The Historical Commission issued its final report in 2003, available at http://www.historiker kommission.gv.at.
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The growing pressure resulting from the class actions and the exemplary solutions found in Germany and Switzerland, which provided for a general settlement of the issues by creating special funds to compensate victims of National Socialism,8 necessitated the Austrian government to take further steps.9
III. The Austrian Reconciliation Fund Following a preliminary report by the Historical Commission on slave/forced labor, the former President of the Austrian National Bank, Dr. Maria Schaumayer, was appointed Special Representative of the Austrian government in February 2000 to negotiate a comprehensive settlement with the US Special Envoy of the Department of State on Property Restitution in Central and Eastern Europe, Stuart E. Eizenstat.10 The agreement which was finally reached envisaged the establishment of the “Fund for Reconciliation, Peace and Cooperation” (Reconciliation Fund),11 which—endowed with six billion Austrian Shillings—would provide payments to former slave laborers and forced laborers of the Nazi-regime on the territory of present day Austria or their heirs.12 These payments range from ATS 20,000 to ATS 105,000.13 In exchange, the agreement provides for the issuance of a so-called “statement of interest” by the United States administration which encourages US courts to decline jurisdiction over pending and future slave/forced labor class actions.14 The last two remaining lawsuits against Austria and Austrian companies in connection with claims filed by former
8
E.g. German Foundation “Remembrance, Responsibility and Future”, German Federal Law Gazette I, No. 38/2000.
9
See Sucharipa, supra note 1, at 93-94; H. Winkler, “Entschädigung für Sklaven- und Zwangsarbeiter durch Österreich”, in I. Marboe/A. Reinisch/S. Wittich (eds.), Österreichischer Völkerrechtstag 2001, Favorita Papers 02/2002, 12 at 19 (2002).
10
On the negotiations, see M. Eichtinger, “Der Versöhnungsfonds—Österreichs Leistungen an ehemalige Sklaven- und Zwangsarbeiter des NS-Regimes”, Österreichisches Jahrbuch für Politik, (2000) 193-242.
11
Federal Law of 8 August 2000, Concerning the Fund for Voluntary Payments by the Republic of Austria to Former Slave Laborers and Forced Laborers of the National Socialist Regime (Reconciliation Fund Law); Federal Law Gazette, BGBl. I 2000/74; Further information on the Reconciliation Fund may be obtained at http://www.versoehnungsfonds.at.
12
See ibid., Section 1.
13
See ibid., Section 3.
14
Cf. P. Oberhammer/A. Reinisch, “Restitution of Jewish Property in Austria”, 60 ZaöRV (2000)737, 759-760; Winkler, supra note 9, at 25.
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slave and forced laborers of the NS-regime were dismissed by US judge Shirley W. Kram in New York on 25 July 2001.
IV. The Resolution of Issues Concerning the Restitution of Assets to Victims of the Holocaust In contrast to the German settlement, which covers both, compensation for slave/ forced labor and property losses,15 it was agreed upon early in the negotiations with US Special Envoy Eizenstat to separate the resolution of the latter claims from that of the former in order to avoid the difficulties experienced in the German case and, moreover, to satisfy Chancellor Schüssel’s demands, that negotiations concerning compensation of property losses should commence only once the issue of slave/forced labor was resolved.16 In May 2000, the Austrian diplomat Dr. Ernst Sucharipa was appointed Special Envoy for Restitution Issues with the mandate to review existing legislation and practice of restitution and, on the basis of his findings, to negotiate a comprehensive settlement concerning outstanding restitution claims.17 The agenda for the negotiations was specified on 5 October 2000 by a framework agreement in which two broad measures were envisaged: first, that the Austrian Government would make a contribution of US $ 150 million to be distributed on an expedited basis to all Holocaust survivors originating from or living in Austria for losses of apartment and small business leases, household property and personal valuables and effects; second, that further negotiations would address the “potential gaps and deficiencies in prior Austrian restitution and compensation programs” taking into account that cases previously decided under these programs would only be reopened in specifically defined circumstances.18 The subsequent negotiations primarily focused on identifying these gaps and deficiencies and the overall amount of compensation.19 Finally, after 8 rounds of difficult and intense negotiations, the Austrian Federal Government and
15
German Foundation “Remembrance, Responsibility and Future”, German Federal Law Gazette I, No. 38/2000.
16
See Winkler, supra note 9, at 17.
17
Cf. P. Oberhammer/A. Reinisch, supra note 14, at 760.
18
Framework Concerning Austrian Negotiations Regarding Austrian Nazi Era Property/ Aryanization Issues of 5 October 2001, reprinted in Österreichische Aussenpolitische Dokumentation—Sonderdruck: Österreichische Maßnahmen zur Restitution und Entschädigung von Opfern des Nationalsozialismus, at 83 (Document No. 9) (2001); on the negotiation process, see Winkler, supra note 9, at 28; Sucharipa, supra note 1.
19
See Winkler, supra note 9 at 30.
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the US Government as well as the Conference on Jewish Material Claims, the Austrian Jewish Community, representatives of Austrian companies and the attorneys of a large number of plaintiffs signed a Joint Statement in Washington on 17 January 2001. The measures already anticipated in the framework agreement were further specified therein, with a view to obtaining all-embracing and enduring legal peace with respect to all claims that have been or may be asserted against Austria and/or Austrian companies.20 According to the Joint Statement and its Annexes, the Austrian Government committed itself to make a contribution to the National Fund of US $ 150 million as an immediate compensation measure for the losses of leases, household property and personal valuables and effects.21 Moreover, it envisaged the establishment of a voluntary fund providing ex gratia payments to certain applicants, the establishment of an Arbitration Panel for In Rem Restitution of Publicly Owned Property, and additional social benefits to survivors.22 Claims for forced and slave labor, which were already covered by the Austrian Reconciliation Fund,23 and claims for in rem restitution of works of art, where restitution proceedings are conducted under the Austrian Restitution Law,24 were excluded from the agreement. In return, the United States pledged to take appropriate steps to assist Austria and Austrian companies in achieving legal peace for all claims that have been or may be asserted against Austria and/or Austrian companies arising out of or related to the National Socialist era or World War II.25 The Joint Statement and its Annexes were incorporated in an exchange of diplomatic notes between the Austrian Federal Government and the US Government on 23 January 2001 thereby attaining the status of a treaty under international law between the two governments.26 The legislative implementation of the measures stipulated in the Joint Statement and its Annexes was extraordinarily swift: on 31 January 2001, the Austrian Parliament’s lower house unanimously adopted legislation providing for immediate com-
20
Joint Statement and Annexes, Washington, 17 January 2001, [hereinafter Washington Agreement], reprinted in Österreichische Aussenpolitische Dokumentation—Sonderdruck: Österreichische Maßnahmen zur Restitution und Entschädigung von Opfern des Nationalsozialismus, at 86 (Document No. 10) (2001).
21
Ibid., Ann. A, Section 1.
22
See ibid., Ann. A, Sections 2-9.
23
See supra III.
24
Federal Law of 4 December 1998 concerning the Restitution of Works of Art (Kunstrückgabegesetz); Federal Law Gazette, BGBl. I Nr.181/1988.
25
Washington Agreement, supra note 20, at Para. g.
26
See Sucharipa, supra note 1, at 76.
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pensation measures 27 and the establishment of the General Settlement Fund.28 The latter also contained an Amendment to the General Social Security Law and the Victims Assistance Act. The amendment to the National Fund law went into effect on 23 February 2001 and the General Settlement Law was put into force by the Austrian Council of Ministers on 6 June 2001, well ahead of the deadline of June 30 that was provided for in the Joint Statement.
A. Immediate Compensation Measures The amendment to the National Fund Law provides for final compensation for the losses of property in the categories of apartment and small business leases, household property, and personal valuables and effects.29 Eligible for benefits are persons who were persecuted by the National Socialist Regime for political reasons, for reasons of birth, religion, nationality, sexual orientation, because of physical or mental disability, on the basis of accusations of so-called asociality, or who left the country to escape such persecution and who themselves, or whose parents suffered loss of property in one of the above-mentioned categories as a result of, or in connection with events on the territory of present-day Austria between 13 March 1938 and 9 May 1945.30 Additionally, these persons must meet one of the following alternate requirements: possession of Austrian citizenship and residence in Austria on 13 March 1938; domicile in Austria for a period of approximately ten years as of 13 March 1938 or progeny of such persons residing in Austria within that period; loss of citizenship of the Federal Republic of Austria or loss of domicile which they had possessed for approximately ten years before 13 March 1938 because the persons left the country as the march of the German Armed Forces into Austria was imminent; or birth before 9 May 1945 as children of such persons in concentration camps or under comparable circumstances.31 However there is no legal entitlement to the benefits by the Fund.32
27
Federal Law amending the Federal Law to establish the National Fund for the Victims of National Socialism (Federal Law Gazette, BGBl. Nr. 432/1995), Federal Law Gazette, BGBl. I Nr. 11/2001.
28
Federal Law on the Establishment of the General Settlement Fund for Victims of National Socialism and on Restitution Measures [hereinafter “General Settlement Fund Law”], Federal Law Gazette, BGBl. I Nr. 12/2001.
29
§ 2b(2) of the National Fund Law.
30
Ibid., § 2b(3).
31
Ibid., § 2(1)(a).
32
Ibid., § 2b(3).
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B. The General Settlement Fund The General Settlement Fund was established in order to resolve comprehensively open questions of compensation of victims of National Socialism for losses and damages as a result of or in connection with events having occurred on the territory of the present-day Republic of Austria during the National Socialist era.33
Its purpose is to acknowledge, through voluntary payments, the moral responsibility for losses and damages inflicted upon Jewish citizens and other victims of National Socialism as a result of or in connection with the National Socialist Regime.34
The Fund is endowed with US$ 210 million, the disbursement of which according to § 2 General Settlement Fund Law is, however, conditioned by so-called legal closure, i.e. the withdrawal or dismissal of all pertinent class-action law suits against the Republic or Austrian companies that were pending on 30 June 2001. To this end, the United States administration has issued a “statement of interest” according to which the pursuance of these class-action lawsuits would contravene US foreign policy interests.35 According to the General Settlement Fund Law, two types of claims need to be distinguished: claims for compensation of losses in various categories to be decided by the Claims Committee;36 and claims for in rem restitution of publicly owned property, which are handled by the Arbitration Panel established at the General Settlement Fund as a separate quasi-judicial organ.37
1. Claims Committee The Claims Committee decides on applications for monetary compensation for losses in certain categories of property. The Committee consisting of three members, Prof. Rosenstock, Dr. Hoffman and Sir Franklin Berman KCMG QC (Chairman) constituted itself on 12 November 2001; its rules of procedure were passed on 2 July 2002.38 The criteria for eligibility are similar to the ones of the National Fund. Persons who were persecuted by the National Socialist Regime on political grounds, on
33
§ 1(19, General Settlement Fund Law, supra note 28.
34
§ 1(2) General Settlement Fund Law, supra note 28.
35
See Ann. A, Section 10, Washington Agreement, supra note 20.
36
Part I of the General Settlement Fund Law, supra note 28.
37
Part II of the General Settlement Fund Law, supra note 28.
38
The rules of procedure are available at http://www.nationalfonds.org.
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grounds of origin, religion, nationality, sexual orientation, physical or mental handicap or of accusations of so-called anti-social attitude, or who left the country to escape such persecution are eligible to apply for compensation if they suffered losses or damages as a result of or in connection with events having occurred on the territory of the present-day Republic of Austria during the National Socialist era.39 The heirs of such persons are also eligible whereby the appropriate rules of the Austrian General Civil Code apply.40 In addition to natural persons, associations may also claim compensation in the so-called claims-based process and where a defunct association is concerned the Claims Committee determines the legal successor that is entitled to file an application.41 Claims can be brought either under the “claims-based” or the “equity-based” process: In the claims-based process, applications may be filed for payments due to losses or damages in the following categories of property: liquidated businesses, including licenses and other business assets; real property, unless in rem restitution pursuant Part II of the General Settlement Fund Law has been granted; bank accounts, stocks, bonds, mortgages; movable property, unless such property losses are not covered by the Amendment to the Federal Law to establish the National Fund of the Republic of Austria for Victims of National Socialism; and insurance policies.42 For these applications to succeed, claimants need to produce proof or convincing evidence of ownership of property in one of the categories listed above or entitlement based on insurance policies at the time of confiscation/Aryanization/liquidation which must have occurred as a result of or in connection with events having occurred on the territory of the present-day Republic of Austria during the National-Socialist era.43 Additionally, these claims must neither have been subject to a previous decision by Austrian courts or administrative bodies, nor settled by agreement. However, a prior agreement or decision does not constitute an obstacle if it constitutes extreme injustice or the claim was denied by Austrian courts or administrative bodies on the grounds of a failure to produce required evidence which was inaccessible to the claimant at that time, but has since become available.44 Taking into account the difficulties applicants will face in substantiating claims dating back more than 50 years, the General Settlement Fund Law provides for relatively low standards of proof. Accor-
39
§ 6(1) General Settlement Fund -Law, supra note 28.
40
§ 6(2) General Settlement Fund Law, supra note 28.
41
Ibid.
42
§ 14 General Settlement Fund Law, supra note 28.
43
§ 15(1) General Settlement Fund Law, supra note 28.
44
Ibid.
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dingly, if no relevant evidence is available to the claimant, eligibility for payments may also be made credible in some other way.45 This particularly applies to the requirement that the claim has not been subject to a previous decision/settlement or that previously inaccessible evidence has become available. In these cases, if no contradictory evidence is presented, an affidavit, including a plausible explanation for why this claim has never beendecided or settled, or why the necessary evidence was inaccessible to the claimant will be deemed sufficient.46 It should, however, be noted that such an affidavit will not be deemed sufficient to substantiate cases of extreme injustice.47 Should the Claims Committee find that the claimant has produced sufficient evidence to substantiate his/her claim, it will determine the total sum of all approved claims (the so-called “claimed amount”). When establishing the claimed amount, compensation that has been paid on the basis of other measures for the same claim is taken into account. This particularly applies to payments made for household property and personal valuables and effects, payments and measures of the German Foundation “Remembrance, Responsibility, and Future”, indemnifications for insurances,48 and settlement of claims on the basis of the Bank Austria Settlement.49 Claims which the Claims Committee does not consider sufficiently substantiated will still be dealt with in the equity-based process.50 Once all applications have been decided upon, the Claims Committee will award each claimant an amount which has been proportionately reduced (pro rata) on the basis of the established claimed amounts and the funds allocated for the claims-based process (awarded amount). The amount awarded for each application will, according to the General Settlement Fund Law, not exceed 2 million US Dollars.51
45
§ 15(2) General Settlement Fund Law, supra note 28.
46
Ibid.
47
This follows from the wording of § 15(2) General Settlement Fund Law, which explicitly makes reference to cases where no previous decision has been rendered or inaccessible evidence has become accessible, but which does not refer to the cases of extreme injustice.
48
Settlement of claims under the Insurance Reconstruction Act, Federal Law Gazette No. 185/1955, the Insurance Indemnification Act, Federal Law Gazette No. 130/1958, or on the basis of claims settlement procedures of the “International Commission on Holocaust Era Insurance Claims” (ICHEIC).
49
§ 16(2) General Settlement Fund Law, supra note 28.
50
See § 17(2) of the Rules of Procedure of the Claims Committee in conjunction with § 9 General Settlement Fund Law, supra note 28; the Committee’s Rules of Procedure are available at http://www.nationalfonds.org.
51
§ 17(3) of the Rules of Procedure in conjunction with § 16(1) General Settlement Fund Law, supra note 28.
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In cases where the applicant is not able to meet the standards of proof of the claimsbased process in documenting specific claims or making them credible, the Claims Committee may award payments in the equity-based process for losses of the following categories: losses or damages in the categories of property subject to the claimsbased process, occupational or educational losses, and last but not least, any other losses or damages sustained as a result of or in connection with events having occurred during the National Socialist era provided that they are not covered by the Reconciliation Fund or the in rem procedures of the General Settlement Fund Law.52 For payments to be made under the equity-based process, certain preconditions have to be met depending on the categories for which compensation is claimed. In case of claims subject to the claims-based process which do not meet the required standards of proof and have not been subject to prior decisions or settlements, payments may be awarded in the equity-based process if “there is a valid case of loss of property”.53 Where such claims have already been decided by Austrian courts or administrative bodies, or settled by agreement, equity-based payments may be awarded if these prior decisions or settlements are considered “inadequate”.54 In case of claims for occupational or educational losses, equity-based payments can be awarded if no adequate compensation was made through previous measures.55 With regard to the third, and broadest category of “any other losses”, the Claims Committee may award an equity-based payment if the claim is justified.56 Equity-based payments are lump sums determined on a per-household basis.57 Claims can generally be filed under the claims-based or the equity based process. Applications rejected under the claims-based process are still considered under the equity-based process.58 Claims which were initially brought under the equity-based process, but which are sufficiently supported by evidence may be considered under the claims-based process upon notification of the applicant.59
52
§ 19 General Settlement Fund Law, supra note 28.
53
Ibid., § 20(1).
54
Ibid., § 20(1).
55
Ibid., § 20(2).
56
Ibid., § 20(3).
57
See Section 21 of the Rules of Procedure of the Claims Committee in conjunction with § 21 General Settlement Fund Law, supra note 28.
58
§ 9 General Settlement Fund Law, supra note 28.
59
Section 15 of the Rules of Procedure of the Claims Committee, supra note 28.
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2. The Arbitration Panel for In Rem Restitution of Publicly Owned Property According to the mandate stipulated in Part II of the General Settlement Fund Law, the Arbitration Panel for In Rem Restitution examines and decides on applications for in rem restitution of publicly-owned property. In contrast to the Claims Committee, which awards payments to the claimants for losses in certain categories of property, claims asserted with the Arbitration Panel primarily aim at the return of property which was taken from the previous owners during the NS-regime and was eventually acquired by the Austrian State. The Arbitration Panel, which is comprised of Prof. Josef Aicher (chairman), Prof. August Reinisch LL.M. (NYU) and Ambassador Dr.Dr.hc. Erich Kussbach LL.M. (Yale), constituted itself on 5 October 2001, and issued its rules of procedure on 11 April 2002.60 While the criteria for filing an application are virtually identical to the requirements under the claims- and equitybased procedures,61 applications for in rem restitution face further requirements which are inherent in the limited mandate of the Arbitration Panel. In particular, the jurisdiction of the Arbitration Panel is limited to in rem restitution of “publicly-owned property” which, according to the General Settlement Fund Law, is linked to the following four conditions:62 Firstly, only real estate (land) and buildings (superstructures) may in general be subject to in rem proceedings; however, for the purpose of in rem restitution to Jewish communal organizations the Arbitration Panel also examines applications for restitution of tangible movable property, particularly cultural and religious items.63 Secondly, the real estate etc. must have been taken from the previous owners as a consequence of NS persecution on the territory of the present-day Republic of Austria during the National Socialist era.64 Thirdly, the pertinent property must never have been the subject of a claim that was previously decided by an Austrian court or administrative body, or settled by agreement, and for which the claimant or a relative has never otherwise received compensation or other consideration. In exceptional circumstances, however, the Arbitration Panel may determine that such a decision or settlement constituted extreme injustice.65 Fourthly, the real estate or building must have been owned by the Federation (or its legal persons
60
The rules of procedure of the Arbitration Panel are available at the homepage of the National Fund/General Settlement Fund at http://www.nationalfonds.org.
61
See § 27 General Settlement Fund Law, supra note 28.
62
§ 28 General Settlement Fund Law, supra note 28.
63
§ 28(2) General Settlement Fund Law, supra note 28.
64
§ 28(1) no. 1 General Settlement Fund Law, supra note 28.
65
§ 28(1) no. 2 General Settlement Fund Law, supra note 28.
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under public or private law),66 or by Austrian provinces and municipalities that have subscribed to the jurisdiction of the Arbitration Panel on 17 January 2001, the day of the Washington Agreement.67 The requirement of public ownership is subject to verification by the Arbitration Panel in cooperation with the Federal Government.68 The term “Arbitration Panel” already indicates that its nature and function differ considerably from the Claims Committee. In contrast to the latter, the Arbitration Panel bears some resemblance to international arbitration procedures, though it needs to be emphasized that the procedure is tailored to accommodate the specific historical circumstances and the problems in producing evidence which originate in the large amount of time elapsed since the actual takings. In contradistinction to the restitution procedures under the Second and Third Restitution Laws,69 claimants do not face any “opposing party”. The role of the Austrian government is rather limited to the filing of submissions, which—together with the findings of the Austrian Historical Commission and the evidence submitted by the claimants—form the basis for the Panel’s decision.70 Moreover, the procedure is designed in such a way that claimants may file and pursue their applications without recourse to professional legal advisors. The Rules of Procedure of the Arbitration Panel explicitly stipulate that it will support the applicants in providing additional information to complete their applications.71 Moreover, the Arbitration Panel shall take into consideration the known historical circumstances and contexts when evaluating an application. Additionally, its Rules of Procedure provide for an exemplary list of possible means of evidence that the claimant may submit in order to substantiate the application.72
3. General Settlement Fund procedures and Prior Decisions/Settlements The issue whether and to which extent prior compensation and/or restitution measures would preclude any renewed proceedings regarding claims that have previously been decided or settled under these measures has been at the core of the negotiations preceding the Washington Agreement and the establishment of the General Settlement Fund. In general, the Washington Agreement, as expressed in its preamble, aims at
66
§ 28 (1) no. 3 General Settlement Fund Law, supra note 28.
67
§ 38 General Settlement Fund Law, supra note 28.
68
§ 31 General Settlement Fund Law, supra note 28.
69
Second Restitution Act of 1947, Federal Law Gazette No. 53/1947; Third Restitution Act 1947, Federal Law Gazette No. 54/1947.
70
§ 30 General Settlement Fund Law, supra note 28.
71
§ 16(3), Rules of Procedure of the Arbitration Panel, supra note 60.
72
§ 19 Rules of Procedure of the Arbitration Panel, supra note 60.
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accommodating the measures Austria has already taken in the past as well as the need for further compensation by [t]aking into account all measures of restitution, compensation and social welfare benefits for victims of National Socialism that have already been carried out by Austria in the past, while at the same time acknowledging that there were certain gaps and deficiencies in such measures”.73
Moreover, the Annex to the Washington Agreement, which specifies the substantive content of the settlement and its implementation, provides for a balance between on the one hand the need to respect legally binding and final decisions which were rendered by Austrian courts and administrative tribunals more than 40 years ago, and on the other hand the need to rectify decisions and settlements which have been rendered clearly to the detriment of the victims. Accordingly the [Claims] Committee will not have the authority to reopen cases that have been finally decided by an Austrian court or administrative body under Austrian restitution legislation or that have been settled after 1945. However, recognizing that there may have been certain gaps and deficiencies in the prior restitution legislation and further recognizing the ex gratia nature of the General Settlement Fund, the Committee may award payments in the exceptional circumstances where the Committee unanimously determines that such a decision or settlement constituted extreme injustice.74
Previous decisions and settlements may also be reopened in the case that a “claim was denied under prior legislation because of failure to produce required evidence, where such evidence was inaccessible to claimant but has since become available [...].”75 The Annex contains similar provisions with regard to the Arbitration Panel.76 The General Settlement Law, which implements the Washington Agreement and its Annexes, contains provisions along these lines. With regard to the claims-based procedure, § 10(2) provides that “in the exceptional circumstances where the Claims Committee unanimously determines that such decision or settlement constituted extreme injustice, a payment may exceptionally be awarded”.77 Moreover, payments may be awarded despite prior decisions or settlements provided that such property claim was denied by Austrian courts or administrative bodies because of failure to produce required evidence, where such evidence was 73
Washington Agreement, supra note 20.
74
See Ann. A, Section 2(d), Washington Agreement, supra note 20.
75
See Ann. A, Section 2(f), Washington Agreement, supra note 20.
76
See Ann. A, Section 3(f), Washington Agreement, supra note 20.
77
§ 10(2) General Settlement Fund Law, supra note 28.
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inaccessible to the claimant at that time, but has since become available.78
The same exceptions to the principle that previous decisions or settlements should not be reopened or reconsidered applies to claims concerning in rem restitution.79 Whereas the concept of newly accessible evidence that justifies the reopening and reconsideration of previous decisions or settlements is relatively straightforward in legal terms, the notion of “extreme injustice”, while touching upon the very fundamentals of any legal theory, remains ambiguous and requires further specification. The General Settlement Fund Law, however, offers hardly any guidance as to the criteria what actually constitutes extreme injustice and it is left to the decision-making bodies, namely the Claims Committee and the Arbitration Panel, to further develop the concept on a case-by-case basis.80 Given the plethora of measures taken by the Republic of Austria to compensate victims of National Socialism and their losses,81 it may be expected that these bodies will have ample opportunity to deal in detail with issues pertaining to which cases constitute extreme injustice.82 These past measures have not only aimed at the restitution of property, but have also provided for monetary compensation of losses and damages suffered as a result of or in connection with the NS-regime.83
78
§ 15 General Settlement Fund Law, supra note 28.
79
§ 32(2) General Settlement Fund Law, supra note 28.
80
The only hint provided for by the legislator is that any inadequate decision or settlement will, as such, not amount to a case of extreme injustice but rather give rise to an equity-based payment. See § 20 General Settlement Fund Law, supra note 28.
81
For an overview regarding Austrian measures for victims of National Socialism since 1945, see Austrian Historical Commission, Österreichische Rückstellungsgesetze (1945-1998), reprinted in Außenpolitische Dokumentation, supra note 20, at 73. For a description and evaluation of these measures, see, inter alia, Austrian Historical Commission, Vermögensentzug während der NS-Zeit sowie Rückstellungen und Entschädigungen seit 1945 in Österreich—Zusammenfassung und Einschätzungen (Schlussbericht), 210-400 (2003); G. Graf, Die österreichische Rückstellungsgesetzgebung—Eine juristische Analyse, Teilbericht der Historikerkommission (2002); R. Binder-Krieglstein, “Restitution und Entschädigung in Vergangenheit und Gegenwart aus juristischer Sicht”, 52 DAVID (2002) 24-32; E. Sucharipa, supra note 1; P. Oberhammer/A. Reinisch, supra note 14; I. Buffard/A. Reinisch, “Les mesures de restitution de biens juifs en Autriche de 1945 à nos jours”, 34 Revue d’Allemagne et des pays de langue allemande (2002) 175-197.
82
See Professor Graf who has attempted to give some meaning to the notion of extreme injustice in G. Graf, “Arisierung und Restitution—Anmerkungen zum Entschädigungsfonds-Gesetz”, 12 Juristische Blätter (2001)746, 751.
83
See, e.g., the War- and Persecution-Related Material Damage Act: Federal Law of 25 June 1958 concerning the award of compensation for damage to household equipment or occu-
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The mechanism provided for in the General Settlement Fund Law to reconcile prior measures for victims of National Socialism, however, needs to be distinguished from the regime covering recent restitution and compensation measures, which have been established on the national and international plane in parallel to and in partial overlap with the General Settlement Fund. The basic objective in this regard is to “ensure that no claimant [receives] payments for those losses or damages for which compensation has been paid out on the basis of other measures” and thus, to take them into account.84 These “other measures” include payments for losses in leases, household property and personal effects,85 payments and measures of the German Foundation,86 settlements of insurance claims,87 or the settlement of claims on the basis of the Bank Austria Settlement.88
pational utensils incurred as a result of war or political persecution, Federal Law Gazette 1958/127; Compensation Fund Act: Federal Law of 22 March 1961 providing federal funds to the establishment of a fund to compensate property losses of victims of political persecution, Federal Law Gazette 1961/100; Victims Welfare Act: Federal Law of 4 July 1947 concerning the provision of welfare assistance to victims of the struggle for a free and democratic Austria and victims of political persecution, Federal Law Gazette 1947/183. 84
§ 16(2) General Settlement Fund Law, supra note 28.
85
See supra.
86
“Remembrance, Responsibility and Future”, German Federal Law Gazette I, No. 38/2000.
87
Settlement of claims under the Insurance Reconstruction Act, Federal Law Gazette No. 185/1955, the Insurance Indemnification Act, Federal Law Gazette No. 130/1958, or on the basis of claims settlement procedures of the “International Commission on Holocaust Era Insurance Claims” (ICHEIC).
88
§ 16(2) General Settlement Fund Law, supra note 28.
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Documents on Austrian Measures for Victims of National Socialism National Fund 1995 edited by Michael Schoiswohl
Federal Act on the National Fund of the Republic of Austria for the victims of National Socialism (unofficial translation) The National Council has decided as follows: Article I Section 1 (1) A fund for the provision of benefits to the victims of National Socialism shall be established in the context of the National Council. It shall bear the designation “National Fund of the Republic of Austria for the Victims of National Socialism”. (2) It shall be the objective of the Fund to express the particular responsibility towards the victims of National Socialism. (3) The Fund shall be a separate legal entity and shall exclusively serve non profit purposes. It shall be exempt of all taxes and other fiscal charges. Section 2 (1) The Fund shall render benefits to persons 1. who were persecuted by the National Socialist regime for political reasons, for reasons of birth, religion, nationality, sexual orientation, because of physical or mental disability or on the basis of accusations of allegedly antisocial attitudes, or who in other way fell victim to typically National Socialist injustice or left the country to escape such persecution, and 2. who (a) were citizens of the Federal Republic of Austria and were domiciled in Austria on 13 March, 1938, or (b) had been permanently domiciled in Austria for a period of approximately ten years as per 13 March, 1938, or were born as children as such persons in Austria within that period, or (c) lost their status as citizens of the Federal Republic of Austria or their place of residence of at least approximately ten years before 13 March, 1938, because they left the country
Austrian Review of International and European Law 8: 343-408, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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due to the imminent march of the German Armed Forces into Austria, or (d) who were born before 9 May, 1945, as children of such persons in concentration camps or under comparable circumstances in Austria. (2) In particular, benefits shall be rendered to persons who have not received any or only insufficient benefits, who require special assistance, or in whose case assistance appears to be justified on the basis of their situation in life. (3) The Fund may likewise support projects called into life to aid the victims of National Socialism, to contribute to the scientific research of National Socialism and the fate of its victims, to recall National Socialist injustice or to preserve the memory of its victims. (4) The Fund shall render one-time-only or recurrent financial benefits. More detailed regulations concerning these benefits may be promulgated in the guidelines of the Fund. Section 3 (1) The organs of the Fund shall be the Board of Curators (Section 4), the Committee (Section 5) and the Secretary General (Section 6). (2) In its outside dealings, the Fund shall be represented by the Chairman of the Board of Curators. (3) The benefits rendered by the Fund shall be administered in the manner of a private enterprise. (4) (Constitutional provision) The Fund shall be administered under the auspices of the President of the National Council by the Parliamentary Directorate. The President of the National council may also commission officials of the Parliamentary Directorate to administer the Fund. The fund may equally delegate the handling of benefits granted by it to the Federal Minister of Labour and Social Affairs. Section 4 (Constitutional provision) (1) The board of Curators shall be the supreme organ of the Fund. In particular, its tasks shall include: 1. Promulgation of the rules of procedure of the Fund. 2. Promulgation of the guidelines of the Fund concerning the granting of benefits. 3. Adoption of the budget. 4. Definition of the benefits to be decided by the Committee. 5. Decisions concerning benefits inasmuch as these decisions are not delegated to the Committee. 6. Adoption of resolutions concerning the investment of the property of the Fund. 7. Monitoring of the use of the property of the Fund in keeping with its purpose. 8. Approval of the statement of accounts. (2) The Board of Curators shall have the following members: 1. the President of the National Council,
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2. The Federal Chancellor, the Vice-Chancellor, the Federal Minister of Foreign Affairs, the Federal Minister of Labour and Social Affairs, the Federal Minister of Finance and the Federal Minister of Education and Cultural Affairs (or suitably appointed representatives of the individual departments). 3. twelve other members to be elected by the Central Committee of the National Council. (3) The members to be elected by the Central Committee shall be selected from the members of the National Council and the Federal Council including former members of the National Council and the Federal Council, other distinguished personalities of the public, cultural and scientific life of Austria and representatives of the victims concerned; they shall be elected for one legislative period. Their term of office shall last until the election of new members. (4) The President of the National Council shall be the Chairman of the Board of Curators. Acting upon a proposal submitted by the Chairman, the Board of Curators shall elect a Deputy Chairman. The Board of Curators shall pass its resolutions with a two-thirds majority in the presence of at least half of its members. (5) The board of Curators may decide to consult representatives of the victims concerned or other informants for certain decisions. (6) Before adopting the guidelines on the granting of benefits, the Chairman of the Board of Curators shall seek to obtain a statement by the Federal Minister of Finance. (7) The Chairman of the Board of Curators shall submit a report on each business year to the Central Committee of the National Council. Section 5 (Constitutional provision) (1) The members of the Committee shall include the Chairman of the Board of Curators or a representative designated by him in the capacity of Chairman, another member designated by the Board of Curators in the capacity of Deputy Chairman as well as three other members to be appointed by the Chairman of the Board of Curators with the approval of the Central Committee of the National Council. (2) Within the scope of its competences (Section 4, para 1, lit. 4), the Committee shall decide on the granting of benefits. (3) At each meeting of the Board of Curators, the Chairman of the Committee (or his deputy) shall report to the Board of Curators on the decisions taken in the meantime by the Committee. Section 6 (1) The Secretary General shall support the Chairman of the Board of Curators in the administration of the Fund and shall prepare the resolution and decisions of the Board of Curators and the Committee. (2) The Secretary General shall be appointed by the President of the National Council after consultation in the Presidential Conference of the National Council. (3) It shall be a further task of the Secretary General to maintain contacts between Austria and the victims of National Socialism living abroad.
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Section 7 (1) The payments of the Federal Republic to the Fund shall be effected as provided by the annual Federal Finance Act in this context, the President of the National Council shall prepare the preliminary budget on the basis of a joint proposal made by the Chairman and Deputy Chairman of the Board of Curators and shall submit this preliminary budget, together with all appendices and explanatory notes, to the Federal Minister of Finance. The payments shall be remitted to the Fund in partial amounts in keeping with the actual requirements. (2) The following exemptions shall apply: 1. Payments made by the Fund shall be exempt from income tax. 2. Gratuitous transfers made to the Fund shall be exempt from inheritance and gift tax. 3. The legal transactions necessary to discharge the tasks of the Fund shall be exempt from legal charges. Section 8 This Federal Act shall come into force as of 27 April, 1995.
Amendment 11/2001 to the National Fund Law Federal Law amending the Federal Law to Establish the National Fund of the Republic of Austria for Victims of National Socialism (Federal Law Gazette I No. 11/2001) (unofficial translation)
The National Council has resolved: The Federal Law to Establish the National Fund of the Republic of Austria for Victims of National Socialism, Federal Law Gazette No. 432/ 1995, as last amended by the Federal Law, Federal Law Gazette I No. 131/1999, shall be amended as follows: 1. § 2b shall be designated § 2c. 2. The new § 2b shall read as follows: ”§ 2b. (1) Without prejudice to the contributions under § 7, the Federal Government shall contribute to the Fund an amount the total of which shall correspond to the equivalent in Schillings as of 24 October 2000 of 150 million US Dollars and be allocated [to the Fund]. This amount shall be accounted for by the Fund in a special account for benefits paid under Paragraph 2. (2) This amount shall be used for benefits to be paid to victims of National Socialism as defined in Paragraph 3 as a final compensation for the following categories of losses of property: a) apartment and small business leases; b) household property; c) personal valuables and effects.
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d) The present Federal Law shall be without prejudice to the in rem return of works of art according to statutory provisions. (3) Persons as defined in § 2 Paragraph 1 Subparagraph 2 who were persecuted by the National Socialist regime on political grounds, on grounds of origin, religion, nationality, sexual orientation, or of physical or mental handicap, or who left the country to escape such persecution, and who themselves, or whose parents, suffered a loss of property in one of the categories mentioned in Paragraph 2 as a result of, or in connection with, events in the territory of the present-day Republic of Austria between 13 March 1938 and 9 May 1945 shall be entitled to such benefits. There is no legal right to benefits by the Fund. (4) The Fund may, subject to the availability of funds, award equal payments of benefits (Paragraph 6) to persons who, or whose parents, do not meet the requirements set forth in § 2 Paragraph 1 Subparagraphs 2(b) and (c) as to the duration of residence, or in Subparagraph 2(d) as to the place of birth in Austria, provided that all other requirements for entitlement to benefits under Paragraph 3 are met (hardship cases). The details of conditions for awarding such benefits shall be laid down in the Regulations of the Fund (§ 2 Paragraph 4). (5) A prerequisite for payment shall be that the entitlement to benefits under Paragraph 3 is evident from documents in the possession of the Fund when the present Federal Law enters into force, or is substantiated in any other suitable way to the Fund within one year after the entry into force of the present Federal Law. (6) The amount mentioned in Paragraph 1 shall be distributed in equal parts among those entitled to benefits. Payments shall start immediately after the entry into force of the present Federal Law. In order to assure equal payments of benefits to all those entitled, a portion of up to 5 per cent of the amount mentioned in Paragraph 1 may be held in reserve. If this portion of the amount was not, or not fully, used within one year after the entry into force of the present Federal Law, the remaining amount shall also be distributed in equal parts to those entitled to benefits. (7) The condition for the payment of benefits under § 2b of the present Federal Law shall be a statement to be made by the recipient of the benefit that by receiving a benefit under the present Federal Law he/she will for himself/herself and his/her heirs renounce the right to present any claim whatsoever for losses of property in any of the categories mentioned in Paragraph 2 suffered as a result of, or in connection with, events in the territory of the present-day Republic of Austria between 13 March 1938 and 9 May 1945 against the Republic of Austria, Austrian companies as defined in § 5 Paragraph 2 of the Federal Law for the Fund for Voluntary Payments by the Republic of Austria to Former Slave Laborers and Forced Laborers of the National Socialist Regime (Reconciliation Fund Law), Federal Law Gazette I No. 74/2000, (with the exception of claims against the Dorotheum Auktions-, Versatz- und Bank-Gesellschaft m.b.H.) as well as citizens of the Republic of Austria. (8) Should the person entitled to benefits have passed away on or after 24 October 2000, his/ her heirs under the respective national law shall take his/her place.” 3. The present wording of § 8 shall be designated “Paragraph 1”. 4. (Constitutional Provision) To § 8 the following Paragraph 2 shall be added: “(2) (Constitutional Provision) § 2b as amended by the Federal Law, Federal Law Gazette I No. 11/2001, shall come into force as soon as the Government of the United States of
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America and the Austrian Federal Government have agreed that the financial benefits accorded under § 2b of the present Federal Law are to be considered a “suitable potential remedy” as defined in the Agreement between the Austrian Federal Government and the Government of the United States of America concerning the Austrian Fund “Reconciliation, Peace and Cooperation (Reconciliation Fund)” for losses of property in the categories mentioned in Paragraph 2 of the persons entitled to benefits. The Federal Government shall announce the day of the entry into force of the present Federal Law in the Federal Law Gazette I.”
Agreement between the Austrian Federal Government and the Government of the United States of America concerning the Austrian Fund “Reconciliation, Peace and Cooperation” (Reconciliation Fund) The Austrian Federal Government (“Austria”) and the Government of the United States of America (“United States”) Intending to shape relations between their two States in a spirit of friendship and cooperation for the future and to successfully resolve issues stemming from the past, Recognizing that Austria has, by adopting legislation approved by the Allied Forces or building on international agreements to which the United States is a party, and in close cooperation with victims’ associations and interested governments, provided restitution and compensation to victims of National Socialist persecution, Noting that, by means of the Austrian Fund for Reconciliation, Peace, and Cooperation (“Fund”), formed under Austrian federal law as an instrumentality of Austria and funded by contributions from Austria and Austrian companies, Austria and Austrian companies wish to respond to and acknowledge the moral responsibility for all claims involving or related to the use of slave or forced labor during the National Socialist era or World War II, Understanding that this Agreement does not affect Articles 21 and 26 of the 1955 State Treaty for the Re-Establishment of an Independent and Democratic Austria, Recognizing that Austrian companies, having contributed to the Fund should not be asked or expected to contribute again, in court or elsewhere, for any claims asserted involving or related to the use of slave or forced labor during the National Socialist era or World War II, Recognizing as legitimate the interest Austria and Austrian companies have in allembracing and enduring legal peace with respect to all claims asserted involving or related to the use of slave or forced labor during the National Socialist era or World War II, and further recognizing that such interest is fundamental to the contribution of Austrian companies to the Fund, Recognizing that it is in the interests of both Austria and the United States (the “parties”) to have a resolution of these issues that is non-adversarial and non-confrontational, outside of litigation, Recognizing that both parties desire all-embracing and enduring legal peace with respect to all claims asserted against Austria and/or Austrian companies involving or
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related to the use of slave or forced labor during the National Socialist era or World War II, to advance their foreign policy interests, Having worked as partners, in consultation with other interested parties and governments to assist Austria and Austrian companies to achieve wide support for the total amount of funds and the eligibility criteria of the Fund and for the establishment of all-embracing and enduring legal peace, with respect to all claims involving or related to the use of slave or forced labor during the National Socialist era or World War II, Noting that the Fund will assure broad coverage of victims and broad participation by companies, which could not be possible through judicial proceedings, Believing that the Fund will provide as expeditious as possible a mechanism for making fair and speedy payments to now elderly victims, Noting that Austria will conclude Agreements with Central and Eastern European countries representing the majority of victims eligible to receive payments from the Fund to guarantee smooth and efficient operation of the Fund, Noting that Austria has coordinated with the Federal Republic of Germany and its Foundation “Remembrance, Responsibility and the Future” to provide as broad a coverage as possible for any claims involving or related to the use of slave or forced labor during the National Socialist era or World War II, Having in mind, that the Fund covers, and that it would be in the interests of both parties for the Fund to be the exclusive remedy and forum for the resolution of, all claims that have been or may be asserted against Austria and/or Austrian companies involving or related to the use of slave or forced labor during the National Socialist era or World War II and any other claims covered by the Fund, Recognizing that Austria has passed legislation proposed by all political parties represented in the National Council to establish the Fund, Have agreed as follows: Article 1 (1) The parties agree that the Fund covers, and that it would be in their interest for the Fund to be the exclusive remedy and forum for the resolution of, all claims that have been or may be asserted against Austria and/or Austrian companies involving or related to the use of slave or forced labor during the National Socialist era or World War II and any other claims covered by the Fund. (2) Austria agrees to ensure that the Fund shall provide appropriately extensive publicity concerning its existence, its objectives, and the availability of funds. (3) Annex A sets forth the principles that shall govern the operation of the Fund. Austria assures that the Fund will be subject to supervision by an Austrian authority; any person may request that the Austrian authority take measures to ensure compliance with the legal requirements of the Fund. (4) Austria agrees to actively and expeditiously continue to pursue discussions with interested
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parties, based on an agreed upon framework with such parties, concerning potential gaps and deficiencies in the restitution and compensation legislation enacted by Austria after World War II to address aryanization issues during the National Socialist era or World War II on the territory of present-day Austria with a view to creating, in agreement with the United States, suitable potential remedies in the meaning of Article 2 paragraph 2 and Article 3 paragraph 3 hereof. The United States Government will facilitate this process. Article 2 (1) The United States shall, in all cases in which the United States is notified that a claim described in Article 1 (1) has been asserted in a court in the United States, inform its courts through a Statement of Interest, in accordance with Annex B, and consistent therewith, as it otherwise considers appropriate, that it would be in the foreign policy interest of the United States for the Fund to be the exclusive remedy and forum for resolving such claims against Austria and/or Austrian companies as defined in Annex C, and that dismissal of such cases would be in its foreign policy interest. (2) The United States shall also, in all cases in which Austria, in agreement with the United States, establishes a suitable potential remedy for other claims against Austria and/or Austrian companies arising out of the National Socialist era or World War II, file a Statement of Interest, mutatis mutandis, as described in Article 2 (1). (3) The United States, recognizing the importance of the objectives of this agreement, including all-embracing and enduring legal peace, shall, in a timely manner, use its best efforts, in a manner it considers appropriate, to achieve these objectives with state and local governments. Article 3 (1) This agreement is intended to complement the creation of the Fund and to foster allembracing and enduring legal peace for Austria and Austrian companies with respect to any claims involving or related to the use of slave or forced labor during the National Socialist era or World War II and any other claims covered by the Fund. (2) This agreement shall not affect unilateral decisions or bilateral or multilateral agreements that dealt with the consequences of the National Socialist era or World War II. (3) The United States shall take appropriate steps to oppose any challenge to the sovereign immunity of Austria with respect to any claim that may be asserted against the Republic of Austria involving or related to the use of slave or forced labor during the National Socialist era or World War II and any other claims covered by the Fund, and other claims arising out of the National Socialist era or World War II for which Austria and the United States agree that a suitable potential remedy has been provided. Article 4 Annexes A, B, and C shall be an integral part of this Agreement. Article 5 The Agreement shall enter into force on the date on which the parties agree by exchange of
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notes. Done at Vienna, the day of October, 2000, in duplicate in the German and English languages, both texts being equally authentic. For the Austrian Federal For the Government Government of the United States of America Annex A of the Agreement between the Austrian Federal Government and the Government of the United States of America concerning the Austrian Fund “Reconciliation, Peace and Cooperation” Principles Governing the Operation of the Fund Article 1(3) of the Agreement provides that the principles governing the operation of the Fund will be set forth in Annex A. This Annex reflects key elements of the Fund that form a basis for the parties’ mutual commitments in the Agreement. The term “Reconciliation Fund legislation” refers to the Federal Law establishing the “Fund for Reconciliation, Peace and Cooperation (Reconciliation Fund),” the commentary adopted by the Constitutional Committee of the Austrian National Council which were communicated to the United States, and the by-laws to be established and governing the operation of the Fund. 1. The Reconciliation Fund legislation will state that the purpose of the Fund is to provide payments through partner organizations and, where no such partner organization exists, through the Fund itself, to all those who suffered as slave or forced laborers and to certain others who suffered during the National Socialist era or World War II on the territory of present-day Austria. 2. The Reconciliation Fund legislation will provide for a Board of Trustees that consists of an equal number of members appointed by the Austrian Government and Austrian companies and by other governments and victims’ representatives, except that the Chairman shall be the Chancellor of the Republic of Austria. All Fund operations will be transparent and bylaws and similar procedures will be made public. The Board will adopt by-laws by a simple majority vote. The by-laws will include a provision that will state that a purpose of the Fund is to benefit, through projects, the heirs of those who have not survived. 3. The Reconciliation Fund legislation will provide that the Fund and all partner organizations will be audited. 4. The Reconciliation Fund legislation will provide that each person who was forced to work while under detention in a concentration camp or similar place of confinement under inhumane conditions (“slave laborer”) will receive AS 105,000. The Reconciliation Fund legislation will also provide that persons who were transported by force or by deception into work on the territory of the present-day Republic of Austria, or who, after a voluntary stay on the territory of the present-day Republic of Austria, were prevented from returning home and who were subjected to particularly bad living conditions, and either were subject to confinement or some other significant limitation of freedom or were deprived of their personal
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rights or subjected to particularly severe disciplinary measures, and were forced to work (“forced laborers”), will each receive AS 35,000 if they had to perform forced labor in industry, business, construction, power companies and other commercial enterprises, public institutions, rail transportation or postal service, and AS 20,000 if they had to do forced labor exclusively in agriculture or forestry or exclusively performed personal services work. In addition, the Reconciliation Fund legislation will provide that the Fund will make payments of AS 105,000, AS 35,000 or AS 20,000 to natural persons who were residents of the territory of the present-day Republic of Austria and who, because of political motives, reasons of ancestry, religion, nationality, sexual orientation, physical or mental handicap, accusation of supposed anti-social behavior or in connection with medical experiments, were coerced by the National Socialist regime to work on the territory of the present-day Republic of Austria under conditions equivalent to those cited above. The Reconciliation Fund legislation will also provide that persons who were transported as children under the age of 12 with one or both parents, one or both of whom performed slave or forced labor, onto the territory of the present-day Republic of Austria, or who were born during their mother’s period of slave or forced labor on the territory of the present-day Republic of Austria, will receive payments up to the amount that their parent(s) are or would have been eligible to receive, i.e., AS 105,000, AS 35,000 or AS 20,000. The Reconciliation Fund legislation will also provide that persons who suffered demonstrably severe and lasting physical or psychological damage, due to work they had to do while performing forced labor on the territory of the present-day Republic of Austria but do not qualify to receive payments under another category, will be able to receive up to the amount applicable to their categories, i.e., AS 35,000 or AS 20,000 (“special hardship”). The by-laws will provide that a payment of up to AS 105,000, AS 35,000 or AS 20,000, depending on the circumstances, will be made to all others who can make a credible claim that they were forced to work on the territory of the present-day Republic of Austria under conditions similar to those faced by slave or forced laborers as defined in the Reconciliation Fund legislation, who are not otherwise covered by the Reconciliation Fund legislation. The Reconciliation Fund legislation will also provide that a supplementary payment of AS 5,000 will be made to women who, during their time as forced laborers on the territory of the present-day Republic of Austria, gave birth to children in maternity facilities for eastern workers or who were forced to undergo abortions. 5. The Reconciliation Fund legislation will provide that slave or forced laborers will not be able to receive payments for their claims involving or related to their slave or forced labor during the National Socialist era or World War II from both the Fund and the German Foundation, “Remembrance, Responsibility and the Future.” 6. The Reconciliation Fund legislation will provide that the eligibility for the Fund will be limited to survivors, or, if the eligible person has died on or after February 15, 2000, then the heir(s) according to the national law of the person in question. 7. The Reconciliation Fund legislation will provide that all eligibility decisions will be based on relaxed standards of proof. 8. The Reconciliation Fund legislation will make clear that receipt of payment from Fund funds will not affect the recipient’s eligibility for social security or other public benefits. There will be no offsets for any prior compensation payments. 9. The Reconciliation Fund legislation will provide that each applicant for a Fund payment will be required to state that, upon receipt of a payment, he or she will waive any and all
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alleged National Socialist era or World War II claims against the Republic of Austria and/or Austrian companies, as well as against Germany and German companies, involving or related to slave or forced labor. 10. The bilateral agreements will provide that each partner organization will create an internal appeals procedure and the Reconciliation Fund legislation will provide that the Fund will create an internal appeals procedure. 11. The Reconciliation Fund legislation will require that the Fund provide appropriately extensive publicity concerning the benefits that the Fund will offer and how to apply. The Board of Trustees, in cooperation with the partner organizations, will determine the form and content of such publicity. 12. The Reconciliation Fund legislation will allow applications to be made to the partner organizations and to the Fund itself for up to two years after the entry into force of the Federal Law establishing the “Fund for Reconciliation, Peace and Cooperation (Reconciliation Fund).” 13. The Reconciliation Fund legislation will authorize the Fund and its partner organizations to receive information from Austrian Government agencies and other public bodies that is necessary for the fulfillment of their responsibilities, in so far as this is not contrary to particular statutes or regulations or the legitimate interests of the persons concerned. 14. The Reconciliation Fund legislation will encourage Austrian companies to open their archives relating to the National Socialist era and World War II. 15. The Reconciliation Fund legislation will enter into force no later than when the funds of the Fund are made available to it and the bilateral agreements between Austria and the Governments of Belarus, the Czech Republic, Hungary, Poland, Russia, Ukraine, and the United States have been signed. Annex B of the Agreement between the Austrian Federal Government and the Government of the United States of America concerning the Austrian Fund “Reconciliation, Peace and Cooperation” Pursuant to Article 2, Paragraph 1, the United States will timely file a Statement of Interest and accompanying formal foreign policy statement by the Secretary of State and Declaration of Deputy Treasury Secretary Stuart E. Eizenstat in all pending and future cases, regardless of whether the plaintiff(s) consent(s) to dismissal, in which the United States is notified that a claim has been asserted against Austria and/or Austrian companies involving or related to (i) the use of slave or forced labor during the National Socialist era or World War II or (ii) any other claims covered by the Fund. The Statement of Interest will make the following points: 1. As indicated in the correspondence between the President of the United States and the Federal President of the Republic of Austria, the President of the United States has concluded that it would be in the foreign policy interests of the United States for the Fund to be the exclusive forum and remedy for the resolution of all claims asserted against Austria and/or Austrian companies involving or related to the use of slave or forced labor during the National Socialist era or World War II and any other claims covered by the Fund.
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2. Accordingly, the United States believes that all claims identified in paragraph one above should be pursued (or in the event the Fund has been exhausted, should timely have been pursued) through the Fund instead of the courts. 3. As referred to in the above-mentioned correspondence, dismissal of all claims identified in paragraph one above would be in the foreign policy interests of the United States. The United States will recommend dismissal on any valid legal ground, which, under the United States system of jurisprudence, will be for the United States courts to determine. The United States will explain that, in the context of the Fund, it is in the enduring and high interest of the United States to support efforts to achieve dismissal of all claims asserted against Austria and/or Austrian companies involving or related to the use of slave or forced labor during the National Socialist era or World War II and any other claims covered by the Fund. The United States will explain fully its foreign policy interests in achieving dismissal, as set forth below. 4. The United States’ interests include the interest in a fair and prompt resolution of the issues involved in these lawsuits to bring some measure of justice to the victims of the National Socialist era or World War II in their lifetimes; the interest in the furtherance of the close cooperation this country has with the friendly country and trading partner, Austria; the interest in maintaining good relations with Israel and other Western, Central, and Eastern European nations, from which many of those who suffered during the National Socialist era or World War II come; and the interest in achieving legal peace for all claims that have been or may be asserted against Austria and/or Austrian companies involving or related to the use of slave or forced labor during the National Socialist era or World War II and any other claims covered by the Fund. 5. The Fund is an important part of a half-century effort to complete the task of bringing justice to victims of the Holocaust and victims of the National Socialist era. The Fund complements prior compensation, restitution, and pension programs by Austria for acts arising out of the National Socialist era or World War II. 6. The participation in the Fund not only by the Austrian Government and companies that existed on the territory of present-day Austria during the National Socialist era or World War II, but also by companies that did not exist during the National Socialist era or World War II, as well as Austria’s coordination with the Federal Republic of Germany and its Foundation “Remembrance, Responsibility and the Future,” allows comprehensive coverage of the claims of slave or forced laborers and certain other victims. 7. Plaintiffs in these cases face numerous legal hurdles, including, without limitation, foreign sovereign immunity, justiciability, international comity, statutes of limitation, jurisdictional issues, forum non conveniens, difficulties of proof, certification of a class of heirs and legal precedent adverse to their claims. The United States takes no position here on the merits of the legal claims or arguments advanced by plaintiffs or defendants. The United States does not suggest that its policy interests concerning the Fund in themselves provide an independent legal basis for dismissal, but will reinforce the point that U.S. policy interests favor dismissal on any valid legal ground. 8. The Fund is fair and equitable, based on: (a) the advancing age of the plaintiffs, their need for a speedy, non-bureaucratic resolution, and the desirability of expending available funds on victims rather than litigation; (b) the Fund’s level of funding, allocation of its funds,
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payment system, and eligibility criteria; (c) the difficult legal hurdles faced by plaintiffs and the uncertainty of their litigation prospects; (d) the particular difficulties presented by the claims of heirs; and (e) the commitment of the Austrian government to actively and expeditiously continue to pursue discussions with interested parties, based on an agreed upon framework with such parties, concerning potential gaps and deficiencies in the restitution and compensation legislation enacted by Austria after World War II to address aryanization issues during the National Socialist era or World War II on the territory of present-day Austria with a view to creating, in agreement with the United States, suitable potential remedies within the meaning of Article 2 paragraph 2 and Article 3 paragraph 3 hereof. 9. The structure and operation of the Fund will assure (or has assured) swift, impartial, dignified, and enforceable payments; appropriately extensive publicity has been given concerning its existence, its objectives, and the availability of funds; and the Fund’s operation is open and accountable. Annex C of the Agreement between the Austrian Federal Government and the Government of the United States of America concerning the Austrian Fund “Reconciliation, Peace and Cooperation” Definition of “Austrian Companies” “Austrian companies,” as used in this Executive Agreement and the Annexes thereto are defined as in Section 5 (2) of the legislation establishing the Fund “Reconciliation, Peace and Cooperation,” as follows: 1. Enterprises that, at any given time, had or have their headquarters within the borders of the present-day Republic of Austria as well as their parent companies (past or present, direct or indirect), even when the latter had or have their headquarters abroad. 2. Enterprises situated outside the borders of the present-day Republic of Austria in which Austrian enterprises as described in Sentence (1), at any given time, had or have a direct or indirect financial participation of at least 25 percent. The definition of “Austrian companies” in this Executive Agreement and the Reconciliation Fund legislation are meant to be identical (as are the words “company” and “enterprise”) and should be interpreted in an identical manner.
Joint Statement on the Occasion of the Signing Ceremony of the Bilateral Agreements Relating to the Austrian Reconciliation Fund The Governments of the Republic of Belarus, the Czech Republic, the Republic of Hungary, the Republic of Poland, and Ukraine, The Governments of the Republic of Austria (“Austria”) and the United States of America (“United States”), Austrian companies and, As further participants, the undersigned attorneys, Recognizing that dictatorship and intolerance cause xenophobia, slavery, racism, anti- Semitism, war and genocide and that the unprecedented crimes of the National Socialist era are a constant reminder to be vigilant against all forms of totalitarianism,
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Affirming that knowledge of and sensitivity towards the mechanisms and structures of the crimes of the Nazi system be a warning for all future generations, Noting that through the Reconciliation Fund, Austria and Austrian companies acknowledge moral responsibility for and recognize the suffering of all victims of slave or forced labor who worked on the territory of the present-day Republic of Austria and who were exploited to contribute to the economy of that time—the effect of this contribution still being felt today in some cases—and understand that, for the victims, the place where this happened was Austria, which had been incorporated into the German Reich, Noting that, by means of the Austrian Fund for Reconciliation, Peace, and Cooperation (“Reconciliation Fund”) formed under Austrian federal law as an instrumentality of Austria and funded by contributions from Austria and Austrian companies, Austria and Austrian companies wish to respond to and acknowledge moral responsibility and bring a measure of justice to the victims of slave or forced labor during the National Socialist era or World War II, Recalling the speech by President Thomas Klestil in Jerusalem on November 15, 1994 when he referred to the shared moral responsibility of Austria by declaring: “Today we Austrians recognize that an acknowledgment of the full truth was long overdue. We know full well that all too often we have spoken of Austria as the first state to have lost its freedom and independence to National Socialism – and far too seldom of the fact that many of the worst henchmen in the Nazi dictatorship were Austrians. And no word of apology can ever expunge the agony of the Holocaust. In the name of the Republic of Austria, I bow my head before the victims of that time,” Recognizing that Austria has, by adopting legislation approved by the Allied Forces or building on international agreements, and in close cooperation with victims’ associations and concerned governments, provided restitution and compensation to victims of National Socialist era persecution, Acknowledging the role Austria played since World War II in accommodating refugees from the Eastern Bloc, particularly from Hungary in 1956, from the former Czechoslovakia in 1968, and from the former Yugoslavia throughout the 1990s, and in providing safe-haven to and facilitating the secure transit of more than 360,000 Russian Jews on their way to freedom between the years of 1968 and 1989, and that the Reconciliation Fund constitutes a further gesture by Austria and Austrian companies to the peoples of Central and Eastern Europe, Understanding that insofar as the sum of AS 6 billion to be made available by Austria and Austrian companies for the Reconciliation Fund is concerned, that sum is both a ceiling and a final amount and that all payments made towards former slave or forced laborers as well as payments for any other claims covered by the Reconciliation Fund, including payments in connection with wrongs that had taken place on the territory of the present-day Republic of Austria during the time of the National Socialist regime whereby due consideration is to be given to the heirs of those slave or forced laborers who died before February 15, 2000, and all other costs incurred in connection with the Fund shall be financed from this sum, from any contributions from others, and the interest thereon,
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Understanding that additional contributions by others for use by the Reconciliation Fund are welcomed, Recognizing that the Reconciliation Fund will provide dignified payments to some 150,000 survivors who suffered during the National Socialist era or World War II on the territory of the present-day Republic of Austria, Accepting the common objective that Austria and Austrian companies (including parents and subsidiaries as defined in Annex A) receive all-embracing and enduring legal peace for all claims involving or related to the use of slave or forced labor during the National Socialist era or World War II, Welcoming the commitment of Austria to continue to pursue discussions with interested parties, based on an agreed upon framework with such parties, concerning potential gaps and deficiencies in the restitution and compensation legislation enacted by Austria after World War II to address aryanization issues during the National Socialist era or World War II on the territory of the present-day Republic of Austria with a view to creating, in agreement with the United States, suitable potential remedies, Recognizing that it would be in the participants’ interest for the Reconciliation Fund to be the exclusive remedy and forum for the resolution of all claims that have been or may be asserted against Austria and/or Austrian companies involving or related to the use of slave or forced labor during the National Socialist era or World War II and any other claims covered by the Reconciliation Fund, Recognizing that the establishment of the Reconciliation Fund does not create a basis for claims against Austria, Austrian companies, or Austrian nationals, Declare as follows: 1. All participants welcome and support the Reconciliation Fund, and declare their agreement with its elements, including the annexed distribution plan (Annex B). The interests of former slave or forced laborers of the National Socialist regime, certain other victims and heirs have been duly taken into account. Based on the circumstances, all participants consider the overall result and the distribution of the Reconciliation Fund funds to be fair to the victims and their heirs. The Reconciliation Fund opens the prospect of payment being made, even if, 55 years after the end of the war, the wrongdoer can no longer be traced or is no longer in existence. 2. Given the advanced age of the victims concerned, the primary humanitarian objective of the Reconciliation Fund is to show results as soon as possible. All participants will work together in a cooperative, fair and non-bureaucratic manner to ensure that the payments reach the victims quickly. 3. Payments are to be made to applicants on behalf of the Reconciliation Fund irrespective of their race, religion, and nationality. Insofar as the participants themselves distribute funds, they will base their decisions on the criteria of eligibility set out in the Austrian law establishing the Reconciliation Fund and will act justly in this regard. 4. The participating Governments and other participants will proceed as follows: a) Austria and Austrian companies shall together contribute AS 6 billion to the Reconciliation Fund.
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b) Austria and the United States will sign an Executive Agreement. Such agreement contains the obligation undertaken by the United States to assist in achieving all-embracing and enduring legal peace for Austria and Austrian companies for all claims that have been or may be asserted against Austria and/or Austrian companies involving or related to the use of slave or forced labor during the National Socialist era or World War II. c) Austria will conclude agreements with Central and Eastern European States representing the majority of victims eligible to receive payments from the Reconciliation Fund. The Governments of the participating Central and Eastern European States will implement the necessary specific measures within the framework of their national legal systems to achieve all-embracing and enduring legal peace for Austria and Austrian companies for all claims that have been or may be asserted against Austria and/or Austrian companies involving or related to the use of slave or forced labor during the National Socialist era or World War II. d) The AS 6 billion contribution of Austria and Austrian companies shall be due and payable to the Reconciliation Fund and distributions shall begin once the Executive Agreement between the United States and Austria enters into force and all pending claims as of October 24, 2000 against Austria and/or Austrian companies involving or related to the use of slave or forced labor during the National Socialist era or World War II or any other claims covered by the Reconciliation Fund, including those in the lawsuits listed in Annex [C], have been dismissed with prejudice. Austria will make available reasonable advanced funding to provide appropriate publicity of the upcoming availability of Reconciliation Fund benefits. Funds of Austrian companies will be deposited into interest bearing account(s) no later than November 24 (thirty days after the signing of the Executive Agreement). All interest earned on funds in such account(s) will accrue to the Reconciliation Fund. e) The undersigned counsel for plaintiffs will file motions or stipulations to dismiss with prejudice all pending claims they have filed in U.S. courts against Austria and/or Austrian companies involving or related to the use of slave or forced labor during the Nationalist Socialist era or World War II, as well as all other claims covered by the Reconciliation Fund, including those listed in Annex [C]. They will also cooperate in seeking dismissal with prejudice of all other such claims pending in U.S. courts, as of October 24, 2000, including those listed in Annex [D]. f) Austria and the United States will bring into force the Executive Agreement and the United States will thereupon file the Statement of Interest as provided therein. g) Austria will encourage Austrian companies to open their archives relating to the National Socialist era and World War II. For the Government of the Republic of Belarus For the Government of the Czech Republic For the Government of the Republic of Hungary For the Government of the Republic of Poland For the Government of Ukraine For the Government of the United States of America For the Government of the Republic of Austria For the Platform “Humanitarian Action” Lawrence Kill for Anderson, Kill & Olick, P.C.
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Edward Fagan for Fagan & Associates Carey D’Avino Barry Fisher for Fleishman & Fisher Robert Swift for Kohn, Swift & Graf, P.C. Morris A. Ratner for Lieff, Cabraser, Heimann & Bernstein, L.L.P. Martin Mendelsohn for Verner, Liipfert, Bernhard, McPherson & Hand Deborah M. Sturman for Milberg, Weiss, Bershad, Hynes & Lerach, L.L.P. Myroslaw Smorodsky Michael Witti
Joint Statement on the Occasion of the Signing Ceremony of the Bilateral Agreements Relating to the Austrian Reconciliation Fund Annex A Definition of “Austrian Companies” “Austrian companies,” as used in this Executive Agreement and the Annexes thereto are defined as in Section 5 (2) of the legislation establishing the Fund “Reconciliation, Peace and Cooperation,” as follows: 1. Enterprises that, at any given time, had or have their headquarters within the borders of the present-day Republic of Austria as well as their parent companies (past or present, direct or indirect), even when the latter had or have their headquarters abroad. 2. Enterprises situated outside the borders of the present-day Republic of Austria in which Austrian enterprises as described in Sentence (1), at any given time, had or have a direct or indirect financial participation of at least 25 percent. The definition of “Austrian companies” in the Executive Agreement between the Austrian Federal Government and the Government of the United States of America concerning the Austrian Fund “Reconciliation, Peace and Cooperation” (Reconciliation Fund) and the Reconciliation Fund legislation are meant to be identical (as are the words “company” and “enterprise”) and should be interpreted in an identical manner. […]
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Federal Law Concerning the Fund for Voluntary Payments by the Republic of Austria to Former Slave Laborers and Forced Laborers of the National Socialist Regime (Reconciliation Fund Law) Section 1 (1) This federal law establishes a Fund for providing payments to former slave laborers and forced laborers of the Nazi regime on the territory of present day Austria. It bears the name “Fund for Reconciliation, Peace, and Cooperation (Reconciliation Fund).” The Fund has its headquarters in Vienna. (2) The goal of the Fund is to make a contribution toward reconciliation, peace, and cooperation through a voluntary gesture of the Republic of Austria to natural persons who were coerced into slave labor or forced labor by the National Socialist regime on the territory of the present day Republic of Austria. (3) The Fund is an organ of the Republic of Austria, is subject to Austrian law, has the character of a legal person, and serves public or charitable purposes only. Section 2 (1) The Fund makes one-time payments to natural persons who under the Nazi regime 1. were transported by force or by deception into work on the territory of the present day Republic of Austria, or who after a voluntary stay on the territory of present day Republic of Austria were prevented from returning home, were forced to work here, were subjected to particularly bad living conditions and either a) were subject to confinement or some other significant limitation of freedom, or b) were deprived of their personal rights or subjected to particularly severe disciplinary measures (forced laborers or forced labor, as the case may be); or 2. were forced while under detention to do slave labor in a concentration camp or in a similar place of confinement under inhumane conditions on the present day territory of the Republic of Austria (slave laborers or slave labor, as the case may be); or 3. suffered demonstrably severe and lasting physical or psychological damage due to work they had to do under conditions cited in the introductory sentence of Number 1 (special hardship cases); or 4. were transported as children or as minors under the age of 12 with one or both parents (as described in Numbers 1 through 3 of this Section) into the territory of the present day Republic of Austria or who were born here during the mother’s period of forced labor. (2) In addition, the Fund will make one-time financial payments to natural persons who without fulfilling the conditions of the introductory sentence of Section 1, Number 1 but because of political motives, reasons of ancestry, religion, nationality, sexual orientation, physical or mental handicap, accusation of supposed anti-social behavior or in connection with medical experiments were coerced by the National Socialist regime to work on the territory of present day Austria
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under conditions equivalent to those cited in Paragraph 1, Numbers 1 a) or b). (3) Payments are not to be made to former prisoners of war. Section 3 (1) The amounts to be paid are as follows: 1. 105,000 Austrian shillings to persons described in Section 2, Paragraph 1, Number 2 (slave laborers). 2. 35,000 Austrian shillings to persons described in Section 2, Paragraph 1 and Paragraph 2 (forced laborers) who had to perform forced labor in industry, business, construction, power companies and other commercial enterprises, public institutions, rail transportation or postal service. 3. 20,000 Austrian shillings to persons described in Section 2, Paragraph 1, Number 1 and Paragraph 2 (forced laborers) who had to do forced labor exclusively in agriculture or forestry or in the form of personal services (housekeeping, hotel work, etc.). 4. Children and minors as described in Section 2, Paragraph 1, Number 4 are to receive the amount to which the parent is entitled or would be entitled. In the case of a deportation with both parents each of whom is or would be entitled to a different amount, the larger amount is applicable in each case. 5. A supplementary payment of 5000 Austrian shillings may be made to women who during their time as forced laborers gave birth to children in maternity facilities for eastern workers or who were forced to undergo abortions. (2) The hardship cases mentioned in Section 2, Paragraph 1, Number 3 may receive payments up to the amount applicable to their categories (Paragraph 1, Number 2 or 3). (3) Persons who meet the conditions for several categories are to receive the highest amount applicable. Section 4 (1) Articles 21 and 26 of the State Treaty restoring an independent and democratic Austria, Federal Legislative Record No. 152/1955, are not affected by this federal law; this federal law does not confer a legal right to payment. (2) Payments under this federal law are strictly personal and must be applied for as such. They are not to be given or taken as security for a loan. They can be allowed only if the petitioner through documentation or otherwise makes a credible claim to fulfillment of the conditions. If the eligible person has died on or after February 15, 2000, then the heirs according to the national law of the person in question shall succeed. (3) The only applications that can be considered are those received within two years from the effective date of this federal law by the responsible partner organizations or, in the case of persons for whom there is no partner organization, directly by the Fund. The Board of Trustees is permitted to extend the deadline by a maximum of one year. Applications that are to be submitted directly to the Fund can also be brought together and processed by organizations
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that while not listed among the partner organizations cited in Section 7, Paragraph 4 do represent the interests of persons cited in Section 2. In such cases the payments will be made by the Fund directly to the eligible persons. (4) Contributions to the Fund are to be free of all federally-imposed deductions. (5) Persons who could receive payments under Section 2, Paragraph 1, Number 2 from the foundation “Remembrance, Responsibility, and Future” of the Federal Republic of Germany are ineligible for payments under this federal legislation. Persons described in Section 2, Paragraph 1, Number 1 may receive payments under this law only if the majority of their forced labor took place on the territory of present day Austria. The Austrian Fund, therefore, is to take the necessary steps so that applications received by the Fund for whose processing it is not responsible can be accepted and transmitted directly to the processing center of the foundation “Remembrance, Responsibility, and Future.” On the other hand, it must be assured that in the case of payments to forced laborers there not be duplicate payments from the Foundation and the Fund. Section 5 (1) Payment of an award is made under the condition that the recipient make a declaration that with the receipt of an award under this federal law he renounces irrevocably any claim for slave labor or forced labor against the Republic of Austria or against Austrian business. The Fund is to assure that slave laborers and forced laborers covered under Section 2, Paragraph 1, Numbers 2 or 1 who receive payments from the “Remembrance, Responsibility and Future” Foundation of the Federal Republic of Germany also make an irrevocable renunciation of any claims for slave labor and forced labor against the Republic of Austria and Austrian business enterprises. Likewise, slave laborers and forced laborers who receive payments under Section 2, Paragraph 1, Number 2 or 1 of this federal law must in their declaration to the Fund also renounce irrevocably any claims for slave labor or forced labor against the Federal Republic of Germany and German business enterprises. (2) Austrian business enterprises for the purposes of this legislation are defined as all business enterprises that had or now have their headquarters on the territory of the present day Republic of Austria, as well as their parent companies even if they had or now have their headquarters in another country. In addition, Austrian business enterprises are those business enterprises located outside the territory of the present day Republic of Austria in which Austrian business enterprises as defined in Sentence 1 had or now have either directly or indirectly an ownership share of at least 25 per cent. Section 6 (1) The Fund shall have moneys in the amount of 6 billion Austrian shillings to carry out its tasks. This amount will consist of: 1. contributions of the federal government according to the federal financial legislation applicable at that time, 2. contributions of other regional bodies, 3. contributions from all areas of business and industry, and
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4. other contributions. (2) With the overall total cited in Paragraph 1, the Fund is fully capitalized. There is no obligation to make a supplementary payment. (3) Contributions to the Fund are not subject to the inheritance tax nor the gift tax nor to any similar financial impositions having the same purpose or effect. Section 7 (1) The awarding of a payment under Section 3 to persons named in Section 2, Paragraphs 1 and 2 is to be made either through the partner organizations named in Paragraph 4 with whose governments pertinent bilateral agreements exist or directly by the Fund in cases where persons are not covered by the partner organizations named in Paragraph 4. (2) Payments by the Fund are to be made according to administrative principles governing private enterprise. (3) In Austria, payments by the Fund or the partner organizations are not subject to inheritance tax nor gift tax, and the recipient of a payment is not subject to income tax nor capital gains tax. (4) The partner organizations are: - the foundation “Understanding and Reconciliation” in the Republic of Belarus; - the foundation “German-Polish Reconciliation” in the Republic of Poland; - the foundation “Understanding and Reconciliation” in the Russian Federation; - the “Czech Council for the Victims of National Socialism” in the Czech Republic; - the National Foundation “Understanding and Reconciliation” in Ukraine; - the foundation “Jewish Legacy in Hungary” in the Republic of Hungary. (5) Within two months after this federal law comes into effect, the Fund in cooperation with the partner organizations is to give appropriate worldwide publicity to the payments made possible under this federal law. Specifically, this publicity is to contain information about the Fund and the partner organizations, the conditions that need to be fulfilled for awards, application deadlines, and information about the data verification that will be needed in this regard. (6) Additional provisions for the award of payments will be laid out in the guidelines of the Fund and are to be addressed in the contracts to be concluded between the Fund and the partner organizations (Section 8, Paragraph 2). Section 8 (1) Moneys of the Fund will be transferred in the shortest possible time to the partner organizations according to actual need on the basis of lists, which are submitted by each partner organization and spot checked by the responsible organ of the Fund, of persons who according to Section 2, Paragraph 1 were permanent residents on February 15, 2000, of countries named in the bilateral agreements according to Section 7, Paragraph 1 , and will also be given to cover appropriate personnel and material expenses of the partner organizations,
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including the cost of publicity stipulated in Section 7, Paragraph 5. Care must be taken in this respect that the Austrian origin of the money and its purpose be emphasized appropriately to the eligible recipients and to the public in the countries affected. (2) It is intended that agreements be reached with the governments of countries named in Section 12, Paragraph 1, Number 8 stating that these countries will not assert nor advocate or support further claims against the Republic of Austria or against Austrian business enterprises in the category of past slave labor or forced labor. The modalities for making payments will be established through agreements with the countries named in Section 7 as well as through contracts between the Fund and the partner organizations. In so far as partner organizations according to Article 7, Paragraph 4, are established in particular countries, then bilateral agreements should provide that: 1. eligibility for financial awards is to be established through appropriate documentation or other appropriate means, 2. persons whose complete and already examined files concerning the slave labor or forced labor done by them are already in the possession of the partner organization do not have to submit new applications for payment, 3. representatives of the Fund or persons commissioned by the Fund are to be permitted to exercise oversight or otherwise cooperate with regard to work of the partner organizations in so far as this would be related to the implementation of this federal legislation, and 4. financial payments are to be made without any deductions and, in particular, they are not to lead to any reduction of payments made under the social security and health insurance systems. 5. financial payments are to be made only upon submission of the declaration stipulated in Section 5, Paragraph 1 and that this declaration is to be forwarded to the Fund. (3) In the interest of greatest possible transparency, a periodic international business audit is to be conducted at each of the partner organizations, the cost of which is to be paid by the Fund; the selection of the auditing organization is to be made by agreement between each partner organization and the Fund. The decision on the international business audit of the Fund will be made by the Board of Trustees. Section 9 (1) The Fund and the partner organizations are authorized to receive information necessary for carrying out its work from government agencies and other public institutions. Information may be withheld only when its transmission would be contrary to specific legal regulations or if the protection of individual privacy outweighs the legitimate desire of the Fund to have the information. (2) The information received may be used only for carrying out the purposes of this federal law and the personal data of a claimant may be used only for the determination of payments. The use of these data for other purposes is only permitted if the claimant gives explicit permission. Section 10 (1) The organs of the Fund are the Board of Trustees (Section 11), the Committee (Section
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13) and the Secretary General (Section 14). (2) The public representative of the Fund is to be the chairperson of the Board of Trustees. Section 11 (1) The Board of Trustees is the highest organ of the Fund. It has particular responsibility for the following: 1. Release and publication of the Fund’s standard operating procedures. 2. Release of Fund guidelines for making monetary awards. 3. Appointment of the members of the Committee. 4. Decision making on financial procedures. 5. The determination of which awards are to be decided upon by the Committee. 6. The determination of awards that are not transferred to the responsibility of the Committee. 7. Decision-making on the disposition of the Fund’s capital assets. 8. Control over the purposeful expenditure of the Fund’s capital assets. 9. Commissioning and implementing a periodical international business audit. 10. Approval of account balance statements. 11. Decision-making for the semi-annual report to the Federal Government. (2) The Federal Government is to present promptly the report stipulated in Paragraph 1, Number 11 to the Principal Committee of the National Council and see to it that it is published. Section 12 (Constitutional Provision) (1) The Board of Trustees consists of the following: 1. the Federal Chancellor, the Federal Minister of Foreign Affairs, the Federal Minister of Finance, the Federal Minister for Business and Labor, or a representative of one or more of these offices, 2. a member to be sent by each of the parties represented in the National Council, 3. a member to be sent by the Conference of State Governors, 4. three business representatives to be sent by the working group called “Humanitarian Action Platform,” 5. a representative of the Austrian Working Group of Concentration Camp Associations and Resistance Fighters, 6. the Head of the Documentation Center of the Alliance of Jewish Victims of Persecution or his representative, 7. the Head of the Cultural Association of Austrian Roma Peoples or his representative, 8. One representative each of the governments of the Republic of Belarus, the Polish Republic, the Russian Federation, the Czech Republic, Ukraine, the Republic of Hungary, and the United States of America to the extent that these countries choose to send representatives. 9. an attorney to be sent by the government of the United States of America.
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(2) The chairperson of the Board of Trustees is the Federal Chancellor. On the recommendation of the chairperson, the Board of Trustees will elect a deputy chairperson, whose deputy in turn will be the person among the remaining members named in Paragraph 1, Line 1 above who is the oldest. The Board of Trustees will make its decisions on the basis of simple majority, provided that a quorum of at least half the members is present. In case of a tie, the vote will be decided by the chairperson or by the person who is serving in his place. (3) The Board of Trustees may decide for individual agenda items to hear testimony of representatives of persons designated in Section 2, Paragraph 1 and 2, or of other persons having information. (4) Work on the Board of Trustees will be carried out on a “pro bono” basis; necessary expenses will be reimbursed by the Fund. Section 13 (1) Members of the Committee are the chairperson of the Board of Trustees or a substitute named by him as chairperson, an additional member named by the Board of Trustees as deputy chairperson, as well as three additional members named by the Board of Trustees. (2) The Committee decides according to its competencies under Section 11, Number 5 on the awarding of payments. (3) The Committee makes decisions about the spot checking of the lists of persons submitted by the partner organizations in keeping with Section 2, Paragraph 1 and about appropriate measures to be based on this spot checking. (4) The chairperson of the Committee or his deputy is to report to each meeting of the Board of Trustees on decisions made by the Committee since its previous meeting. Section 14 (1) The Secretary General supports the chairperson of the Board of Trustees in the administration of the Fund and prepares the factual documents and the decision documents of the Board of Trustees and of the Committee. (2) The Secretary General is to be appointed by the Board of Trustees on the recommendation of the chairperson. Section 15 (1) Earnings on the capital fund and other income are to be used only in support of the goals of the Fund. This includes personnel and material expenditures. (2) The Fund is to be established for a period of three years. At the end of that time, the Board of Trustees may decide to spend the remaining capital of the Fund for payments in connection with wrongs that had taken place on the territory of the present day Republic of Austria during the time of the National Socialist regime whereby particular consideration is to be given to the heirs of those slave laborers and forced labors who died before the deadline (Section 3, Paragraph 2).
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Section 16 In so far as is relevant, any expressions in this federal law pertaining to persons pertain equally to women and to men. Section 17 (Constitutional Provision) This federal law will take effect as soon as it has been confirmed that all of the funds referred to in Section 6 are available and that the agreements with countries in which partner organizations according to Section 7, Paragraph 4 have been established and the agreement with the United States have been signed. The federal government will publish the effective date of this federal law in Volume I of the Federal Legislative Record. Section 18 The following are charged with the implementation of this federal law: 1. the Federal Minister of Finance with regard to Section 4, Paragraph 4; Section 6, Paragraph 3; and Section 7, Paragraph 3; 2. the relevant federal minister for any matters covered in Section 12 that touch on his responsibilities; 3. the Federal Government for all remaining provisions.
Joint Statement (January 17, 2001) The Governments of the Republic of Austria (“Austria”) and the United States of America (“United States”), Austrian companies, The Conference on Jewish Material Claims (including the Central Committee of Jews from Austria in Israel and the American Council for Equal Compensation of Nazi victims from Austria), The Austrian Jewish Community, As further participants, the undersigned attorneys, Noting that through the General Settlement Fund (providing for a Claims Committee and an Arbitration Panel), to be established under Austrian federal law and funded by contributions from Austria, including Austrian companies, Austria and Austrian companies acknowledge in accordance with the declaration of the Austrian Federal Government of February 3, 2000 the moral responsibility arising out of the tragic history of the 20th century and the horrendous crimes and injustices of the National Socialist era and reaffirming the commitment to a self-critical scrutiny of the National Socialist past, Noting that in the same declaration the Austrian Federal Government committed itself to ensure unreserved clarification, exposure of the structures of injustice, of National Socialism and the transmission of this knowledge to coming generations as a warning for the future, as well as to Austria’s facing up to the light and dark sides of its past and to the deeds of all Austrians, good and evil, as its responsibility, Noting the statement by Federal President, Thomas Klestil of October 24, 2000 at the occasion of the signing of the Agreement to settle the forced and slave labor issue,
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Taking into account all measures of restitution, compensation and social welfare benefits for victims of National Socialism that have already been carried out by Austria in the past, while at the same time acknowledging that there were certain gaps and deficiencies in such measures, Recalling the statement by Federal Chancellor Wolfgang Schuessel, on the occasion of the 55th anniversary of the re-establishment of the Republic of Austria, at the meeting of the Council of Ministers on April 28, 2000, affirming that Austrians stand by the onerous heritage of their country and acknowledging that, when it comes to questions of restitution, compensation, and material reparation, the Second Republic was often too hesitant, Considering Austria’s legal status during the period of occupation by NaziGermany in 1938 and liberation by the Allied Powers in 1945, and further noting all provisions of the 1943 Moscow Declaration by the Allied Powers, Recalling the relevant provisions of the 1955 State Treaty for the Re-establishment of an Independent and Democratic Austria, the 1959 Exchange of Notes Constituting an Agreement between the United States of America and Austria relating to the Settlement of Certain Claims under Article 26 of the Austrian State Treaty of May 15, 1955, With a view to obtaining all-embracing and enduring legal peace with respect to all claims that have been or may be asserted against Austria and/or Austrian companies, as defined in Annex B, arising out of or related to the National Socialist era or World War II, excluding claims covered by the Reconciliation Fund, in respect of which the Agreement between the Austrian Federal Government and the Government of the United States of America concerning the Austrian Fund “Reconciliation, Peace, and Cooperation” (“Agreement”) shall continue to govern, and further excluding in rem claims for works of art, and achieving legal closure of such claims, in accordance with Articles 2(2), 2(3), and 3(3) of the Agreement, Understanding that insofar as the sum of USD 210 million to be made available by Austria and Austrian companies (including the Austrian insurance industry) for the General Settlement Fund is concerned, that sum is both a ceiling and a final amount and that all payments made from, and all costs incurred in connection with the General Settlement Fund shall be financed from that sum and the interest thereon, this with the exception of the administrative costs normally incurred by the National Fund. Determined to secure by measures enumerated in Annex A a final global resolution and closure concerning all Austrian Jewish Communal properties, assets and interests that were seized liquidated or rendered defunct during the National Socialist era and its aftermath, Recognizing that it would be in the participants’ interest for the General Settlement Fund to be the exclusive forum for the resolution of all claims that have been or may be asserted against Austria and/or Austrian companies arising out of or related to the National Socialist era or World War II, excluding claims covered by the Reconciliation Fund, in respect of which the Agreement shall continue to govern, and further excluding in rem claims for works of art, Recognizing that the establishment of the General Settlement Fund does not create
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a basis for claims against Austria and/or Austrian companies, Declare as follows: 1. All participants welcome and support, and declare their agreement with, the provision of immediate compensation for survivors pursuant to Annex A, paragraph 1, the establishment of the General Settlement Fund, established in conformity with the principles set forth in Annex A, paragraphs 2 and 3, and the measures for victims of National Socialism set forth in Annex A, paragraphs 4-9. The interests of those who suffered losses or damages arising out of or related to the National Socialist era or World War II, and their heirs, have been duly taken into account. Based on the circumstances, the participants consider the overall result fair to the victims and their heirs. 2. Given the advanced age of the victims concerned, the primary humanitarian objective of the provision of immediate compensation for survivors pursuant to Annex A, paragraph 1, and the General Settlement Fund, the participants will work to show results as soon as possible. All participants will work together in a cooperative, fair, and non-bureaucratic manner to ensure that the payments reach the victims quickly. 3. The participating Governments and other participants will proceed as follows: a. Austria will propose the necessary legislation to establish the General Settlement Fund in conformity with the principles set forth in Annex A, paragraphs 2 and 3, seek the changes in the laws that address social benefits for victims of National Socialism in conformity with Annex A, paragraph 4, and make good faith progress on the implementation of the additional measures for victims of National Socialism set forth in Annex A, paragraphs 5-9, b. Austria and the United States will exchange notes. Such exchange contains the commitments undertaken by Austria to propose legislation by April 30, 2001 to establish the General Settlement Fund and to make good faith progress on the implementation of additional measures for victims of National Socialism. Such exchange of notes also contains the commitment undertaken by the United States to consider the provision of immediate compensation for survivors pursuant to Annex A, paragraph 1, the General Settlement Fund, established in conformity with the principles set forth in Annex A, paragraphs 2 and 3, the changes in the laws that address social benefits for victims of National Socialism in conformity with Annex A, paragraph 4, and the making of good faith progress on the implementation of the additional measures for victims of National Socialism set forth in Annex A, paragraphs 5-9, to constitute a “suitable potential remedy”, as understood by Articles 2(2) and 3(3) of the Agreement, for all claims that have been or may be asserted against Austria and/or Austrian companies, as defined in Annex B, arising out of or related to the National Socialist era or World War II, excluding claims covered by the Reconciliation Fund, in respect of which the Agreement shall continue to govern, and further excluding in rem claims for works of art. c. Austria and Austrian companies (including the Austrian insurance industry) will contribute to the General Settlement Fund a total amount of US $ 210 million. The amount of US $ 210 million plus interest, as set out below in paragraphe, is in addition to the US $150 million that will be distributed by the Austrian National Fund in accordance with paragraph 1 of Annex A. d. The contribution of US $ 210 million shall be due and payable to the General Settlement
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Fund once (1) the Exchange of Notes enters into force and (2) 30 days have passed since all pending claims against Austria and/or Austrian companies, as of June 30, 2001, arising out of or related to the National Socialist era or World War II, including those lawsuits listed in Annex C, have been dismissed with prejudice, excluding claims covered by the Reconciliation Fund, in respect of which the Agreement shall continue to govern, and further excluding in rem claims for works of art. Once the contribution has been made, distribution will begin in accordance with the procedures laid down in Annex A. e. From the due date of the contribution interest at the Euribor rate shall accrue on the funds available at any given time until the General Settlement Fund has paid all approved claims. Austria will make available reasonable advanced funding to provide appropriate publicity concerning the establishment of the General Settlement Fund. f. The undersigned counsel for plaintiffs will file motions or stipulations to dismiss with prejudice all claims, excluding claims covered by the Reconciliation Fund, in respect of which the Agreement shall continue to govern, and further excluding in rem claims for works of art, they have filed in U.S. courts against Austria and/or Austrian companies arising out of or related to the National Socialist era or World War II, including those listed in Annex C. They will also cooperate in seeking the dismissal with prejudice of all other such claims. g. Austria and the United States will exchange notes and the United States will thereupon take appropriate steps in accordance with Articles 2(2), 2(3) and 3(3) of the Agreement to assist Austria and Austrian companies in achieving legal peace for all claims that have been or may be asserted against Austria and/or Austrian companies arising out of or related to the National Socialist era or World War II, excluding claims covered by the Reconciliation Fund, in respect of which the Agreement shall continue to govern, and further excluding in rem claims for works of art,
[Signatures]
Joint Statement—Annex A The Exchange of Notes between the Government of the United States and the Austrian Federal Government provides that the principles governing the operation of the General Settlement Fund will be set forth in Annex A. The Exchange of Notes also provides that Austria will make good faith progress on the implementation of the additional measures for victims of the National Socialist era set forth in Annex A. This Annex reflects key elements of the General Settlement Fund (“GSF”) (providing for a Claims Committee and an Arbitration Panel) and the additional measures for victims of National Socialism that form the basis for the Exchange of Notes between the United States and Austria. 1. Immediate Compensation for Survivors: The Austrian Government will make a US $150 million contribution to the National Fund, which will be distributed in its entirety on an expedited basis to all Holocaust survivors originating from or living in Austria as defined in the Federal Law amending the Federal Law to Establish the National Fund of the Republic of Austria for Victims of National Socialism which will include a hardship clause. This amount will cover
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1) apartment and small business leases; 2) household property; 3) personal valuables and effects. This amount will not cover potential claims against Dorotheum (which will be covered by the GSF, see infra para. 2) or in rem claims for works of art. This amount will be credited against the final cap for the GSF. The amount of US $150 million will be allocated to the Austrian National Fund according to the Federal Law amending the Federal Law to Establish the National Fund of the Republic of Austria for Victims of National Socialism and the Committee Report thereto. Payments to survivors will begin immediately after entry into force of the Federal Law. Austria will provide such funding as may be required to enable the Austrian National Fund effectively to process applications for and distribute these funds to all approved applicants. 2. Establishment of a General Settlement Fund: The Austrian Federal Government will propose the necessary legislation1 to the National Council by April 30, 2001 to establish a GSF. Austria will undertake its best efforts to ensure that this legislation is passed by June 30, 2001. The legislation will enter into force once all contributions have been made available. The GSF will be a voluntary fund that will provide ex gratia payments to certain applicants. The GSF will include both a “claims-based” and an “equity-based” component. The GSF will be capped at US $210 million plus interest, at the Euribor rate, accruing to it beginning 30 days after all claims, pending as of June 30, 2001, against Austria and/or Austrian companies arising out of or related to the National Socialist era or World War II are dismissed with prejudice, and such interest shall continue to accrue on the funds available at any given time until the GSF has paid all approved claims. The US $210 million contribution by Austria and Austrian companies (including the Austrian insurance industry)+ interest, under the terms described supra, will be in addition to the US $150 million referred to supra in para. 1. The distribution of payments by the GSF will be based on decisions of the independent Claims Committee. a. The GSF legislation will establish an independent three-member Claims Committee (“Committee”) for all property/aryanization claims, and all other claims not covered by the Reconciliation Fund and the Arbitration Panel referred to infra in paragraph 3 that have been or may be asserted against Austria and/or Austrian companies arising out of or related to the National Socialist era or World War II, excluding in rem claims for works of art. The United States and Austria will each appoint one member; these two members will appoint a Chairperson. In the event that the Austrian and the United States designees are unable to agree upon and designate the Chairperson within 60 days after the entry into force of the GSF legislation, the United States and Austria will enter into consultations to name a Chairperson. The Committee will work under the auspices of the Austrian National Fund, which will provide technical and administrative support to the Committee. b. The GSF legislation will provide that 50% of the funds allocated for distribution from the GSF will be reserved for a “claims-based” process and 50% of such funds will be reserved for an “equity-based” process. The GSF legislation will provide that the GSF will distribute the funds allocated for the “claims-based” process on a pro-rata basis and the funds allocated
1
The term legislation as used in this Annex refers to Federal Laws to be passed by the Austrian National Council, the legislative history including all explanatory notes, and any bylaws to be adopted and governing the operation of any bodies established under such Federal Laws.
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for the “equity-based” process on a per-household2 basis. c. The GSF legislation will require the Committee to establish simplified procedures, including simplified and expedited internal appeals for decisions made under the “claims-based” process. Such procedures will permit the attendance of observers to the “claims-based” process under circumstances to be defined and under strict rules of confidentiality. The GSF legislation will provide that decisions made under the “equity-based” process are not appealable. The GSF legislation will provide that the Committee will review all applications using relaxed standards of proof. d. The General Settlement Fund is intended to benefit victims of National Socialism as defined in the Federal Law amending the Federal Law to Establish the National Fund of the Republic of Austria for Victims of National Socialism. The GSF legislation will provide that such persons (including their heirs, as defined infra in paragraph 2(e)) and victims’ communal organizations who/which suffered losses or damages as a result of or in connection with events having occurred on the territory of present-day Austria during the Nazi era or World War II are eligible to receive payment(s) from the GSF, provided that the criteria in infra paragraphs 2(f) or 2(g) are satisfied. The GSF legislation will also provide that the Committee will not have the authority to reopen cases that have been finally decided by an Austrian court or administrative body under Austrian restitution legislation or that have been settled after 1945. However, recognizing that there may have been certain gaps and deficiencies in the prior restitution legislation and further recognizing the ex gratia nature of the GSF, the Committee may award payments in the exceptional circumstances where the Committee unanimously determines that such decision or settlement constituted extreme injustice. e. Definition of “heirs”: The GSF legislation will provide that heirs as defined under the Austrian General Civil Code (ABGB) are eligible for payments. f. “Claims-Based” Process: The GSF legislation will provide that the Committee may receive claims for payment for losses or damages as a result of or in connection with events having occurred on the territory of present-day Austria during the National Socialist era or World War II in the following categories: -
liquidated businesses including licenses and other business assets
-
real property
-
bank accounts, stocks, bonds, mortgages
-
moveable property not covered by the US $150 million referred to in paragraph 1
-
insurance policies (see infra paragraph n)
To be eligible for payment, claimant must show, under relaxed standards of proof (by submission of supporting material; if no relevant evidence is available, the claimant’s eligibility can be made credible in some other way) the following:
2
-
ownership of property at time of confiscation/ aryanization/liquidation and
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claim was never previously decided under prior restitution legislation or settled by
Household on the present-day territory of the Republic of Austria between March 12, 1938 and May 9, 1945.
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agreement (if no contradictory evidence is presented, an affidavit asserting such, including plausible explanation for why claim was never decided or settled will be deemed sufficient), or that such decision or settlement constituted extreme injustice (see supra paragraph d) or -
claim was denied under prior legislation because of failure to produce required evidence, where such evidence was inaccessible to claimant but has since become available (affidavit asserting such, including plausible reason for inaccessibility will be deemed sufficient)
The GSF legislation will provide that the Committee may award a payment of no more than US $2 million for any approved claim. The GSF legislation will provide that in reviewing claims, the Committee will take into account prior restitution and compensation measures, including the US $150 million referred to in paragraph 1, measures under the German Foundation “Remembrance, Responsibility and the Future,” or claims paid under ICHEIC claims-handling procedures, and the Bank Austria Settlement, to ensure that the claimant does not receive a payment under the “claimsbased” process for same property for which compensation was paid under prior measures. The GSF legislation will provide that the Committee may either award claimant pro-rata amount of capped amount allocated for “claims-based process” or, where Committee determines that claimant is unable to satisfy evidentiary requirements, Committee must either reject claim or refer claim to “equity-based process” for per-household payment. The GSF legislation will provide that if any funds remain after all approved claims have been paid, such excess funds will be transferred to the Austrian National Fund to be used for programs to benefit victims of the Holocaust, including Roma. g. “Equity-Based” Process: The GSF legislation will provide that the Committee will make per-household, “equity-based” payments -
for any of the categories covered by supra paragraph 3(f) where claimant is not able to document specific claim(s), even under relaxed standards of proof, but panel has reason to assume that valid case of loss of property or
-
for any of the categories covered by supra paragraph 3(f) where claim was previously decided or settled under prior restitution legislation, but majority of Committee has reason to believe decision or settlement was inadequate or
-
where majority of Committee has reason to believe claimant was not adequately compensated for occupational or educational losses during the Nazi era on the territory of present-day Austria or
-
for any claims arising out of or related to the National Socialist era or World War II not covered by the Reconciliation Fund or the Arbitration Panel
The GSF legislation will provide that “equity-based” payments will be made on a perhousehold basis. The GSF legislation will provide that the Committee will award no more than one payment per household. The GSF legislation will provide that applicants for “equity-based” payments must indicate on their application, to the extent possible, the address or location of the household for which they are seeking a payment, and the members of the household, including the heirs of those who have not survived, who are entitled to share the payment.
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The GSF legislation will provide that “household” shall consist of survivors who lived in the “household” during this period and the heirs, as defined supra in paragraph e, The GSF legislation will provide that if any funds remain after all approved claims have been paid, such excess funds will be transferred to the Austrian National Fund to be used for programs to benefit victims of the Holocaust, including Roma. h. Submission of Claims/Payments: The GSF legislation will provide that a claimant may submit an application to the Committee either under the “claims-based” process, which may include multiple properties, or under the “equity-based” process. If the entire claim is rejected under the “claims-based” process claimant may submit an application under the “equitybased” process. i. Filing Periods: The GSF legislation will allow applications to be made to the GSF for 24 months after the entry into force of the GSF law. j. Waivers: The GSF legislation will provide that each applicant for a GSF payment will be required to state that, upon receipt of a payment from the GSF, he or she will, for him/herself and his/her heirs, waive any and all alleged claims against Austria and/or Austrian companies arising out of or related to the National Socialist era or World War II. Such a waiver will not preclude claimant from bringing an action against Austria and/or Austrian companies for the in rem return of a specifically identified piece of art or an action for in rem restitution for property owned by Austrian provinces and municipalities in accordance with infra para. 10. The GSF and Panel legislation will provide that nothing therein will be deemed to waive any right of Holocaust survivors and heirs in any prior class action settlement reached in courts in the United States. k. Eligibility for Social Security and Other Public Benefits: The GSF legislation will make clear that receipt of payment from GSF funds will not affect the recipient’s eligibility for social security or other public benefits. l. Publicity: The GSF legislation will require that the GSF, in conjunction with the Austrian National Fund, provide appropriately extensive publicity concerning the benefits that the GSF will offer and how to apply. The Austrian National Fund will consult with the United States regarding its proposed publicity plan. In addition, the GSF legislation will authorize and encourage the Austrian National Fund to utilize existing databases of Austrian survivor populations from other sources. m. Costs: The GSF legislation will provide that the administrative costs for the “claimsbased” and “equity-based” processes will be covered from the budget provided for the Austrian National Fund and the GSF. n. Insurance: The GSF legislation will reaffirm the commitment of the Austrian Federal Government to ensure that all insurance claims that come within the scope of claims-handling procedures adopted by the International Commission on Holocaust Era Insurance Claims (including those concerning valuation, standards of proof, and decisions of the Chairman) and are made against Austrian insurance companies not defined as “German companies” within the German Foundation Law, and not otherwise covered under ICHEIC, will be solely decided by the Committee and distributed by the GSF on the basis of such procedures. The Austrian Insurance Association will make the lists of Holocaust era policy holders publicly accessible, to the extent available.
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The GSF legislation will provide that when an insurance claim is approved for payment, the Committee will promptly notify the Austrian National Fund. The Austrian National Fund will authorize the payment of that claim from the GSF funds (at a capped amount of US $ 25 million within the GSF, which amount includes interest on US $ 210 million) allocated for such payments out of the GSF. In the event that the amount allocated for insurance claims under this paragraph is exhausted, and the Claims Committee certifies, in consultation with representatives of the plaintiffs’ attorneys recommended by the United States, an amount of up to US $ 5 million from the amount allocated to the “claims-based” process, as set forth supra in para. 2 (b), may be used to pay insurance claims under this paragraph. All funds used to pay approved insurance claims will be distributed on a pro rata basis. The GSF legislation will provide that if any funds allocated for insurance remain after all approved claims have been paid, such excess funds will be transferred to the Austrian National Fund to be used for programs to benefit victims of the Holocaust, including Roma. 3. Arbitration Panel for In Rem Restitution of Publicly Owned Property: a. Austria will seek to provide, in accordance with the procedures described below, on a case by case basis, in rem restitution of publicly-owned property. Particular attention will be given to the issue of property formerly owned by Jewish communal organizations, taking into account the particular situation of the Austrian Jewish Community. b. In connection with the establishment of the GSF, the Austrian Federal Government will propose the necessary legislation to the Austrian Parliament by April 30, 2001 to establish, fund, and authorize a three-member Arbitration Panel (“Panel”) to address the in rem return of publicly-owned property, including property formerly owned by Jewish communal organizations. Austria will undertake its best efforts to ensure that this legislation is passed by June 30, 2001. c. The implementation of in rem restitution of publicly-owned property will have to be in conformity with Austrian constitutional law and Austria’s international obligations. d. The Panel legislation will provide that the United States, with prior consultation with the Conference on Jewish Material Claims, the Austrian Jewish Community, and attorneys for the victims, and Austria will each appoint one member; these two members will appoint a Chairperson. All members of the three-person panel should be familiar with the relevant regulations both under Austrian and international law (in particular, the European Convention on the Protection of Fundamental Freedoms and Human Rights). In the event that the Austrian and the United States designees are unable to agree upon and designate the Chairperson within 60 days after the entry into force of the Panel legislation, the United States and Austria will enter in to consultations to name a Chairperson. The Panel legislation will provide for an expert to serve as a liaison between the Panel and the Austrian Historical Commission. e. The Panel legislation will provide that the Panel will consider, on a case by case basis, claims for the in rem restitution of publicly-owned property. f. The Panel legislation will provide that the Panel will not have the authority to reopen or reconsider cases that were previously decided under prior restitution legislation, or settled by agreement, or where claimant or relative has otherwise received compensation or other consideration for the property in question, except in the limited circumstances described
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infra in paragraph 3(g). g. For the purposes of restitution in rem, the notion of “publicly-owned property” covers exclusively real estate/ immovable property/buildings which: -
between March 12, 1938 and May 9, 1945 was taken from the previous owners, whether without authorization or on the basis of laws or other orders, on racial, national, or, alternatively, other grounds in connection with the assumption of power by National Socialism; and
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was never subject of a claim that was previously decided by an Austrian court or administrative body under prior restitution legislation or a settlement by agreement, or where claimant or relative has never otherwise received compensation or other consideration for the property in question, except in exceptional circumstances where the Panel unanimously determines that prior settlement constituted an extreme injustice; and
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on January 17, 2001, was exclusively and directly, owned by the Federation (“Bund”) or any legal person, agency, or subsidiary wholly-owned, directly or indirectly, by the Federation
h. The Panel legislation will provide that the Panel will make recommendations on the basis of evidence submitted by the claimant and submissions of the Austrian Federal Government, as well as any relevant findings of the Austrian Historical Commission. A representative of the Austrian Federal Government will ask the Austrian Historical Commission, as a matter of high priority, to examine, identify and report to the Panel such information as it may obtain concerning property and other assets that may be the subject of in rem restitution. i. The Panel legislation will provide that the Panel will make recommendations to the competent Austrian Federal Minister for in rem restitution. The Panel legislation will provide that where in rem restitution, although merited, is not practical or feasible, the Panel may make recommendations that the claimant be awarded a comparable property to be recommended by the Panel, in consultation with the competent Austrian Federal Minister. The Panel legislation will provide that such recommendations will be made publicly available (e.g., on the internet). j. The Austrian Parliament will pass a resolution indicating its expectation that the recommendations will be expected to be approved by the competent Austrian Minister(s). The Austrian Federal Government will support such a resolution. k. The Panel legislation will provide that the Panel will make its determinations within six (6) months of receiving any claim. l. The Panel legislation will provide that the Panel will establish its own rules of procedure. m. The Panel legislation will provide that individual claimants (former owners or their heirs, as defined supra in paragraph 2(e)) are eligible to receive in rem restitution (or another appropriate remedy referred to supra in paragraph 3(h)) provided that the following criteria are satisfied: -
property is currently publicly-owned as defined supra in paragraph 3(g); and
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proof of ownership of property at time of loss; and
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claim was never previously decided or settled under prior restitution legislation or claimants or relative has never otherwise received compensation or other consi-
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deration for the property in question except in the exceptional circumstances where the Panel unanimously determines that prior settlement constituted extreme injustice; or -
claim was denied under prior legislation because of failure to produce required evidence, where such evidence was inaccessible to claimant but has since become accessible
n. The Panel legislation will provide that Jewish communal organizations, including the Israelitische Kultusgemeinde (“IKG”), are eligible to receive restitution in rem (or another appropriate remedy referred to supra in paragraph 3(i)) for losses of immovable and tangible moveable property (e.g. cultural or religious items) provided that the following criteria are satisfied: -
property is currently publicly-owned as defined supra in paragraph 3(g)(i)-(iii); and
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property was owned, at the time of loss, by the Jewish communal organization or in case of defunct Jewish communal organization, its legal predecessor; and
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claim was never previously decided or settled under prior restitution legislation or claimants or relative has never otherwise received compensation or other consideration for the property in question except in the exceptional circumstances where the Panel unanimously determines that prior settlement constituted extreme injustice; or
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claim was denied under prior legislation because of failure to produce required evidence, where such evidence was inaccessible to claimant but has since become accessible.
o. The Panel legislation will allow applications to be made to the Panel for 24 months after the enactment of the Panel legislation or until one year after the date the Austrian Historical commission issues its final report, whichever date is later. p. The Austrian Federal Government will undertake its best efforts to identify publicly owned property as defined supra in paragraph 3(g). q. The Austrian Federal Government will undertake its best efforts to ensure the adoption of similar procedures and processes at the provincial and municipal levels and to secure such restitution at said levels. r. The in rem return of works of art will be excepted from the scope of the Panel legislation. s. The Government of the United States and the Government of Austria will consult on a regular basis concerning the implementation of the Panel recommendations. 4. Additional Social Benefits to Survivors: a. Austria will pass the necessary legislation to allow disbursement of “Pflegegeld” of categories up to 7 to victims of National Socialism living abroad as soon as possible. b. Austria will, as soon as possible, make the following changes in the laws that address social benefits for victims of National Socialism: -
amend the Victims Assistance Act so as to abolish the six years’ age limit provided for in §1(2) lit f of the Victims Assistance Act;
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amend paragraph 11 of the Victims Assistance Act to allow for pensions for persons
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who were Austrian citizens as of March 13, 1938, or who had during the period of 10 years prior to that date their residence on the territory of the Republic of Austria and were not Austrian citizens if they fulfill the other requirements of the Victims Assistance Act. -
amend the definition of “imprisonment” in §1(1) of the Victims Assistance Act to include those who were confined in concentration camp-like facilities, e.g., Sammellager (“Collection Camps);
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amend § 502(6) of the General Pension Law (ASVG) to the effect that all those born on the present-day territory of the Republic of Austria between January 1, 1933 and March 12, 1938 will be eligible to buy into the Austrian pension system under the conditions of § 502(1,4,6).
5. Restitution of Works of Art: Art restitution will proceed on an expedited basis pursuant to the Federal Law of December 4, 1998 concerning the works of art from Austrian Federal Museums and Collections. The Austrian Federal Government will undertake its best efforts to address the issue of the return of works of art from Austrian companies and Austrian public entities not covered by the Federal Law. The Austrian Federal Government will undertake its best efforts to encourage the adoption of similar procedures at the municipal and provincial levels. To this end, the Austrian Federal Chancellor will write a letter to governors and mayors urging them to adopt such measures, recalling the resolution by the Austrian Parliament of 1998 urging provincial and municipal museums to research the provenance of the art works in their possession and to return all such art looted during the National Socialist era to the rightful owners. 6. Hakoah Sports Club: The former Hakoah sports field was a leasehold property of the Hakoah Sport Club located in the Prater in Vienna. The City of Vienna is prepared to offer to lease to the IKG, on a reasonable and mutually acceptable long-term basis similar to that of the original lease, a similar piece of land in the vicinity of the former location. A contribution of US $8 million will be made available for the construction of an appropriate sports facility. This will be the final amount for this purpose. 7. State Archives: Austria will provide additional resources to the Austrian State Archives to allow better access to the files. Austria will do its utmost to ensure that requests to the Austrian State Archives for information are handled in an expedited and non-bureaucratic manner. 8. Jewish Cemeteries: Austria will provide additional support for the restoration and maintenance of Jewish cemeteries, known or unknown, in Austria. 9. Subsidies to the Annual Holocaust Education Program at the Salzburg Seminar: Austria will contribute to such a program. 10. Legal Closure: The establishment of the GSF in conformity with the principles set forth in supra paragraphs 2 and 3, the passage of the legislation necessary to provide victims of National Socialism with the additional benefits referred to supra in paragraph 4, and the good faith progress in the implementation of the commitments referred to supra in paragraphs 5 to 9, confirmed by a diplomatic note from Austria to the United States, will lead to the dismissal with prejudice of all claims arising out of or related to the National Socialist era or World War II that have been or may be asserted against Austria and/or Austrian companies, excluding
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claims covered by the Reconciliation Fund, in respect of which the Agreement shall continue to govern, and further excluding in rem claims for works of art, by the plaintiffs’ attorneys who have signed the Joint Statement and to the United States taking appropriate steps in accordance with Articles 2(2), 2(3) and 3(3) of the Agreement between the Government of the United States of America and the Austrian Federal Government concerning the Austrian Fund “Reconciliation, Peace and Cooperation” (Reconciliation Fund) to assist Austria and Austrian companies in achieving legal closure for all such claims. The term “works of art” is understood to include tangible movable cultural or religious objects. Austrian provinces and municipalities will not benefit from legal closure, as set forth in Article 3(3) of the Agreement, in relation to claims for in rem restitution of publicly-owned property, applying mutatis mutandis, the principles set forth in supra para. 3(g), unless or until the Austrian Federal Government notifies the Government of the United States that such province or municipality has adopted similar procedures for in rem restitution of publicly-owned property or agrees to accept recommendations of the Arbitral Panel established supra in paragraph 3.
Joint Statement—Annex B “Austrian companies” as used in this Joint Statement and the Annexes thereto are defined as follows: 1. Enterprises that, at any given time, had or have their headquarters within the borders of the present-day Republic of Austria as well as their parent companies (past or present, direct or indirect), even when the latter had or have their headquarters abroad. 2. Enterprises situated outside the borders of the present-day Republic of Austria in which Austrian enterprises as described in Sentence (1), at any given time, had or have a direct or indirect financial participation of at least 25 percent. a. An “enterprise” or “company” means any entity, whether organized under public or private law as a corporation, partnership, sole proprietorship, association of business entities, society, community, cooperative, non-profit organization or otherwise as well as any municipality, private or other public law entity. Any enterprise (in the above meaning) incorporated or otherwise organized under Austrian law shall be deemed for all purposes of this definition to have its headquarters in Austria. An enterprise (in the above meaning) includes its successors, predecessors, former parents, assigns, officers, directors, employees, agents attorneys, heirs, executors, administrators, personal representatives, and current or former shareholders. Any branch office, place of business, establishment or place of work of a non-Austrian company or enterprise (in the above meaning) located within the borders of the present-day Republic of Austria shall be deemed to be a company or enterprise (in the above meaning) that had or has its headquarters in Austria, and any such non-Austrian company or enterprise (in the above meaning) shall be deemed to be a parent or former parent as the case may be, with respect to actions or inactions of such branch or place of business. b. A “parent company” means any company that owns or owned a direct or indirect participation of at least 25 percent in any enterprise that had or has its headquarters in the present-day Republic of Austria.
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The definition of “Austrian companies” does not include foreign parent companies with headquarters outside the present-day territory of the Republic of Austria in which the sole alleged claim arising from National Socialist injustice or World War II has no connection with the Austrian affiliate and the latter’s involvement in National Socialist injustice, unless there is a pending discovery request by plaintiff(s), of which the United States is provided by the defendant with copy to plaintiff(s), seeking discovery from or concerning National Socialist or World War II actions of the Austrian affiliate. The definitions in the Exchange of Notes and the Joint Statement are meant to be identical (as are the words “company” and “enterprise”) and should be interpreted in an identical manner. […]
Agreement between the Government of the United States of America and the Austrian Federal Government governing matters of compensation and restitution for victims of National Socialism United States Note Verbal: The Department of State extends its highest compliments to the Embassy of Austria and refers to the Preamble and to Articles 1(4), 2(2), 2(3), and 3(3) of the Agreement between the Government of the United States of America and the Austrian Federal Government concerning the Austrian Fund “Reconciliation, Peace and Cooperation” (Reconciliation Fund) (“Agreement”), signed October 24, 2000. Noting the correspondence between the President of the United States and the Federal President of the Republic of Austria, in connection with the Agreement, Recalling the relevant provisions of the 1955 State Treaty for the Re-establishment of an Independent and Democratic Austria, the 1959 Exchange of Notes Constituting an Agreement between the United States of America and Austria relating to the Settlement of Certain Claims under Article 26 of the Austrian State Treaty of May 15, 1955, as well as the contents of the letter dated December 19, 1961 from Dr.Nahum Goldman, the Chairman of the Committee for Jewish Claims on Austria, to Dr.Josef Klaus, the Austrian Federal Minister of Finance. The United States welcomes the commitment of the Austrian Federal Government to provide immediate compensation for survivors pursuant to Annex A, paragraph 1, to propose legislation to the Austrian Parliament by April 30, 2001 to establish a General Settlement Fund (“GSF”) (providing for a Claims Committee and an Arbitration Panel) in conformity with the principles set forth in Annex A, paragraphs 2 and 3, and to seek changes in the laws that address social benefits for victims of National Socialism in conformity with Annex A, paragraph 4. The United States further welcomes the commitment of the Austrian Federal Government to make good faith progress on the implementation of the additional measures for victims of National Socialism set forth in Annex A, paragraphs 5-9. The United States considers the provision of immediate compensation for survivors pursuant
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to Annex A, paragraph 1, the General Settlement Fund, established in conformity with the principles set forth in Annex A, paragraphs 2 and 3, the changes in the laws that address social benefits for victims of National Socialism in conformity with Annex A, paragraph 4, and the making of good faith progress on the implementation of the additional measures for victims of National Socialism set forth in Annex A, paragraphs 5-9, to constitute a “suitable potential remedy”, as understood by Articles 2(2) and 3(3) of the Agreement, for all claims that have been or may be asserted against Austria and/or Austrian companies, as defined in Annex B, arising out of or related to the National Socialist era or World War II, excluding claims covered by the Reconciliation Fund, in respect of which the Agreement shall continue to govern, and further excluding in rem claims for works of art and, subject to the provisions of Annex A, paragraph 10, claims for in rem restitution of property owned by Austrian provinces and municipalities. Upon fulfillment of the commitments of the Austrian Federal Government referred to above, the United States will support all-embracing and enduring legal peace for the above-mentioned claims, as provided for in the Agreement and herein. The United States agrees that this exchange of notes and the establishment of the GSF shall not affect unilateral decisions or bilateral or multilateral agreements that dealt with the consequences of the National Socialist era or World War II. Austria’s note and this affirmative reply shall constitute an agreement between the United States and Austria, which shall enter into force when Austria notifies the United States, by diplomatic note, that it has implemented its commitments referred to above. The United States agrees that Annexes A and B shall be integral parts of this agreement.
Agreement between the Austrian Federal Government and the Government of the United States of America governing matters of compensation and restitution for victims of National Socialism Austrian Note Verbal [Federal Law Gazette 121/2001]: The Federal Ministry for Foreign Affairs of the Republic of Austria extends its highest compliments to the Embassy of the United States of America and refers to the Preamble and to Articles 1(4), 2(2), 2(3) and 3(3) of the Agreement between the Austrian Federal Government and the Government of the United States of America concerning the Austrian Fund “Reconciliation, Peace and Cooperation” (“Agreement”), signed October 24, 2000. Noting the correspondence between the President of the United States and the Federal President of the Republic of Austria, in connection with the Agreement, Recalling the relevant provisions of the 1955 State Treaty for the Re-establishment of an Independent and Democratic Austria, the 1959 Exchange of Notes Constituting an Agreement between the United States of America and Austria relating to the Settlement of Certain Claims under Article 26 of the Austrian State Treaty of May 15, 1955, as well as the contents of the letter dated December 19, 1961 from Dr.Nahum Goldman, the Chairman of the Committee for Jewish Claims on Austria, to Dr.Josef Klaus, the Austrian Federal Minister of Finance.
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The Austrian Federal Government shall provide immediate compensation for survivors pursuant to Annex A, paragraph 1, propose legislation to the Austrian Parliament by April 30, 2001 to establish a General Settlement Fund (“GSF”) (providing for a Claims Committee and an Arbitration Panel) in conformity with the principles set forth in Annex A, paragraphs 2 and 3, and seek changes in the laws that address social benefits for victims of National Socialism in conformity with Annex A, paragraph 4. The Austrian Federal Government shall make good faith progress on the implementation of the additional measures for victims of National Socialism set forth in Annex A, paragraphs 5-9. The Austrian Federal Government welcomes the commitment of the United States to consider the provision of immediate compensation for survivors pursuant to Annex A, paragraph 1, the General Settlement Fund, established in conformity with the principles set forth in Annex A, paragraphs 2 and 3, the changes in the laws that address social benefits for victims of National Socialism in conformity with Annex A, paragraph 4, and the making of good faith progress on the implementation of the additional measures for victims of National Socialism set forth in Annex A, paragraphs 5-9,to constitute a “suitable potential remedy”, as understood by Articles 2(2) and 3(3) of the Agreement, for all claims that have been or may be asserted against Austria and/or Austrian companies, as defined in Annex B, arising out of or related to the National Socialist era or World War II, excluding claims covered by the Reconciliation Fund, in respect of which the Agreement shall continue to govern, and further excluding in rem claims for works of art and, subject to the provisions of Annex A, paragraph10, claims for in rem restitution of property owned by Austrian provinces and municipalities. The Austrian Federal Government welcomes the commitment of the United States, upon fulfilment of the commitments of the Austrian Federal Government referred to above, to support all-embracing and enduring legal peace for the above-mentioned claims, as provided for in the Agreement and herein. The Austrian Federal Government agrees that this exchange of notes and the establishment of the GSF shall not affect unilateral decisions or bilateral or multilateral agreements that dealt with the consequences of the National Socialist era or World War II. This note and the United State’s affirmative note in reply shall constitute an agreement between Austria and the United States which shall enter into force when Austria notifies the United States, by diplomatic note, that it has implemented its commitments referred to above. Austria agrees that Annexes A and B shall be integral parts of this agreement.
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General Settlement Fund Law Federal Law on the Establishment of a General Settlement Fund for Victims of National Socialism and on Restitution Measures (General Settlement Fund Law), as well as on an Amendment to the General Social Security Law and the Victims Assistance Act(Federal Law Gazette I No. 12/2001) (unofficial translation)
The National Council has resolved: Article 1 Federal Law on the Establishment of a General Settlement Fund for Victims of National Socialism and on Restitution Measures (General Settlement Fund Law) Part 1 General Settlement Fund Title 1 Establishment of the General Settlement Fund Establishment and Purpose of the Fund § 1. (1) In order to comprehensively resolve open questions of compensation of victims of National Socialism for losses and damages as a result of or in connection with events having occurred on the territory of the present-day Republic of Austria during the National Socialist era, the General Settlement Fund (in short: Fund) shall be established. (2) The Fund’s purpose shall be to acknowledge, through voluntary payments, the moral responsibility for losses and damages inflicted upon Jewish citizens and other victims of National Socialism as a result of or in connection with the National Socialist Regime. The return of works of art shall be governed by the special legislation presently in force. (3) The Fund shall be an institution of the Republic of Austria, subject to Austrian law, shall be an independent legal entity, and shall exclusively serve non-profit purposes. The Fund shall have its headquarters in Vienna. It shall be exempt from all federal taxes and duties. The payments provided by the Fund shall be governed by the principles guiding the public administration acting under private law. (4) The Fund shall be regarded as dissolved once its tasks are fully completed. Capital of the Fund § 2. (1) To carry out its tasks, the Fund shall be endowed with an amount of 210 million US Dollars. This amount shall be made available, at the latest, 30 days after all claims in the United States pending as of June 30, 2001 against Austria or Austrian companies arising out of or related to the National Socialist era or World War II have been dismissed. Excepted therefrom are claims covered by the Reconciliation Fund, Federal Law Gazette I, No. 74/ 2000, claims for the return of works of art, as well as claims for in rem restitution against provinces or municipalities, unless or until the latter have availed themselves of the option under § 38. Furthermore, the Fund may dispose of the interest that will accrue at the 3-month Euribor rate from investment by the Fund, starting with the date cited above and continuing
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for the entire duration of the Fund. The endowment of the Fund shall thus be complete. There shall be no obligation for additional funding. (2) Contributions to the Fund shall not be subject to inheritance and gift taxes or similar financial burdens having the same purpose or effect. They may be treated as company expenditures. (3) Yields from the Fund’s capital and other revenues shall be used exclusively for the Fund’s purposes. This includes the necessary costs for personnel, material and administration of the Fund, including the costs of the Claims Committee, in so far as these cannot be covered by the budget of the National Fund. (4) The legal transactions necessary for carrying out the Fund’s tasks shall be exempt from federal legal fees. Organs of the Fund § 3. (constitutional provision) The organs of the Fund shall be the organs of the National Fund of the Republic of Austria for Victims of National Socialism, Federal Law Gazette I, No. 432/1995, as amended, that is, the Board of Trustees and the Secretary General. The Claims Committee specified in § 4 shall take the place of the Committee. Unless the present Federal Law provides otherwise, the administrative tasks of the Fund and its external representation shall be carried out in accordance with the principles of the Federal Law on the National Fund of the Republic of Austria for Victims of National Socialism, Federal Law Gazette No. 432/1995, as amended. Claims Committee § 4. (1) An independent Claims Committee shall be set up to decide on claims for payments from the Fund. The Claims Committee shall take its decisions by a majority vote, unless unanimity is specifically prescribed. (2) (constitutional provision) Members of the Claims Committee shall be: 1. one member to be appointed by the Government of the United States of America; 2. one member to be appointed by the Austrian Federal Government 3. one member to be appointed by the above members as chairperson. (3) In the event that the members appointed according to Subparagraphs. 1 and 2 are unable to agree upon the chairperson within 60 days after the entry into force of the present Federal Law, the Government of the United States of America and the Federal Government [of Austria] will enter into consultations to name a chairperson. (4) The members of the Claims Committee shall serve in an honorary capacity. (5) The National Fund shall provide technical and administrative support to the Claims Committee, making use to the greatest extent possible of its administrative infrastructure. The National Fund shall be reimbursed for the resulting additional costs in accordance with the first sentence of § 2 (3).
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Title 2 General Provisions Distribution of Funds § 5. (1) Of the funds available for payments to entitled persons one half shall be reserved for payments in the claims-based process, and one half for payments in the equity-based process. (2) Of the funds available for payments to entitled persons, the equivalent in Schillings of 25 million US Dollars shall be allocated for payments for insurance policies. In the event that this amount is exhausted, and this is certified by the Claims Committee, in consultation with representatives of the plaintiffs’ attorneys recommended by the Government of the United States, an amount of up to 5 million US Dollars from the amount allocated to the claims-based process may be used to pay insurance claims. (3) After expiration of the filing period, the Board of Trustees shall, following consultation with the Claims Committee, calculate the total amount of funds available for payments to entitled persons after deduction of the Fund’s expenditures. (4) After completion of the tasks of the Fund, any remaining funds shall be transferred to the National Fund of the Republic of Austria for Victims of National Socialism. These funds shall be used for programs to benefit victims of National Socialism, including members of the Roma community. Eligibility § 6. (1) Persons (in the claims-based process also associations), who/ which were persecuted by the National Socialist regime on political grounds, on grounds of origin, religion, nationality, sexual orientation, or of physical or mental handicap or of accusations of so-called asociality, or who left the country to escape such persecution, and who suffered losses or damages as a result of or in connection with events having occurred on the territory of the present-day Republic of Austria during the National Socialist era shall be eligible to file an application. (2) In addition, applying mutatis mutandis the provisions of the [Austrian] General Civil Code, heirs of eligible claimants as defined in Paragraph 1 shall also be eligible to file an application. In case of a defunct association, an association which the Claims Committee regards as the legal successor shall be entitled to file an application as well. General Conditions for Payments § 7. The payments shall be awarded as a final compensation for losses and damages as a result of or in connection with events having occurred on the territory of the present-day Republic of Austria during the National Socialist era. There shall be no legal right to these payments. Filing Period § 8. Applications for payments are to be filed in writing no later than 24 months after the entry into force of the present Federal Law.
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Multiple Applications § 9. Applications for compensation for damages and losses as defined in § 7 may be filed either under the claims-based or the equity-based process. In the respective processes, only one application may be filed, which may include losses and damages in multiple categories (§§ 14 and 19). Simultaneous applications in both processes based on the same loss or damage are, however, inadmissible. If an application is entirely and finally rejected under the claimsbased process, the Claims Committee shall consider the application under the equity-based process. Consideration of Prior Restitution Measures § 10. (1) Unless the present Federal Law provides otherwise, no payments shall be made for claims regarding losses and damages which have been finally decided by an Austrian court or administrative body or which have been settled by agreement. (2) In the exceptional circumstances where the Claims Committee unanimously determines that such decision or settlement constituted an extreme injustice, a payment may exceptionally be awarded. (§ 15, Paragraph 1(2)). Waiver § 11. (1) The condition for a payment from the Fund shall be a statement to be made by the recipient of the payment that upon receipt of a payment he or she will, for him/herself and his/ her heirs, waive any and all claims against Austria and/or Austrian companies arising out of or related the National Socialist era or World War II. (2) Such a waiver shall not preclude the claimant from bringing an action against Austria and/ or Austrian companies for in rem restitution of a specifically identified piece of art or an action for in rem restitution against provinces or municipalities, unless or until the latter have availed themselves of the option under § 38. Such a statement shall not include a waiver of any right in any prior settlement reached in courts in the United States of America. Rules of Procedure and By-Laws § 12. The Claims Committee shall issue and publish rules of procedure and by-laws, in particular regarding: 1. relaxed standards of proof; 2. a simplified and expedited internal appellate procedure in the claims-based process; 3. the attendance of observers at individual procedural stages of the claims-based process under strict rules of confidentiality. Taxes, Fees and Social Benefits § 13. (1) (1) Applications to, and payments from, the Fund shall be exempt from all federal taxes and fees. (2) (constitutional provision) Payments from the Fund shall not affect the recipient’s claims to any Austrian social benefits.
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Title 3 Claims-Based Process Categories of Property § 14. In the claims-based process, applications may be filed for awarding payments for losses or damages in the following categories of property: 1. liquidated businesses, including licenses and other business assets; 2. real property, unless in rem restitution pursuant to Part 2 of the present Federal Law has been granted; 3. bank accounts, stocks, bonds, mortgages; 4. movable property, unless such property losses have been compensated by payments based on the Federal Law amending the Federal Law to Establish the National Fund of the Republic of Austria for Victims of National Socialism, Federal Law Gazette I, No. 11/2001; 5. insurance policies. Conditions for Claims and Standards of Proof § 15. (1) The claimant must show, under relaxed standards of proof according to Paragraph 2, proof or convincing evidence of ownership of property in one of the categories listed in § 14 or entitlement based on insurance policies at the time of confiscation/Aryanization/liquidation as a result of or in connection with events having occurred on the territory of the present-day Republic of Austria during the National Socialist era, and that 4. such property claim was never previously finally decided by Austrian courts or administrative bodies, or settled by agreement, or 5. such a decision or settlement by agreement constituted an extreme injustice, or 6. such property claim was denied by Austrian courts or administrative bodies because of failure to produce required evidence, where such evidence was inaccessible to the claimant at that time, but has since become available. (2) The Claims Committee shall review all applications using relaxed standards of proof. In the claims-based process, claimants must as a rule produce supporting evidence to establish eligibility. If no relevant evidence is available, eligibility for payments may also be made credible in some other way. In cases relating to Paragraph 1, Subparagraphs 1 and 3, if no contradictory evidence is presented, an affidavit, including a plausible explanation for why this claim was never decided or settled, or why the necessary evidence was inaccessible to the claimant, shall be deemed sufficient. Decisions of the Claims Committee § 16. (1) If the Claims Committee determines—in the case of § 15 Paragraph 1, Subparagraph 2 unanimously—that the claimant satisfies the evidentiary requirements mentioned in § 15, the Claims Committee shall establish the total amount of all the claimant’s approved claims (claimed amount). For each application only one claimed amount shall be established. After expiration of the filing period according to § 8 and decision of all applications, the Claims Committee shall award each claimant a proportionately reduced amount (pro rata) on the basis of the established claimed amounts and according to the funds allocated for the claims-based process pursuant to § 5 (awarded amount). The amount awarded for each application may not exceed 2 million US Dollars. More detailed regulations shall be laid down in the by-laws and rules of procedure. (2) In order to ensure that no claimant shall receive payments for those losses or damages for
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which compensation has been paid on the basis of other measures, the Claims Committee, when establishing the claimed amount, shall take particularly into account the following restitution and compensation measures: 1. Payments based on the Federal Law amending the Federal Law to Establish the National Fund of the Republic of Austria for Victims of National Socialism, Federal Law Gazette I, No. 11/2001; 2. Payments and measures of the German Foundation “Remembrance, Responsibility and Future”, German Federal Law Gazette I, No. 38/2000; 3. Settlement of claims under the Insurance Reconstruction Act, Federal Law Gazette No. 185/1955, the Insurance Indemnification Act, Federal Law Gazette No. 130/1958, or on the basis of claims settlement procedures of the “International Commission on Holocaust Era Insurance Claims” (ICHEIC); or 4. Settlement of claims on the basis of the Bank Austria Settlement. Appeal for a New Decision § 17. In the event of a negative decision by the Claims Committee on the claimed amount, the claimant may file an appeal for a new decision. Such an appeal shall specify the reasons why a revised decision would be justified. In particular, such reasons may include references to new circumstances or errors in fact or in law in the decision of the Claims Committee. More detailed regulations shall be laid down in the by-laws and rules of procedure. Insurance Claims § 18. (1) Within the framework of the claims-based process, the Claims Committee shall decide on all insurance claims (§ 14, Subparagraph 5) against Austrian companies, unless these claims are directed at companies which 1. are considered “German companies” under the German Law for the Establishment of the Foundation “Remembrance, Responsibility and Future”, German Federal Law Gazette I No. 38/2000; or 2. are already covered by ICHEIC. (2) In taking decisions on insurance policies (§ 14, Subparagraph 5), the Claims Committee shall apply mutatis mutandis the ICHEIC claims-handling procedures, including those pertaining to valuation, standards of proof, and relevant decisions by the chairperson. In doing so, particularly prior compensation measures shall be taken into account according to § 16 Paragraph 2. (3) If the Claims Committee determines that all conditions for the approval of an insurance claim are met, it shall authorize in accordance with the principles of § 16 Paragraph 1 the disbursement of a payment from the capital of the Fund allocated pursuant to § 5 Paragraph 2. All funds used to pay approved insurance claims shall be distributed on a pro rata basis. (4) The Austrian Insurance Association shall, to the extent available, make the lists of policyholders who are possible victims of National Socialism as defined in § 6, Paragraph 1, publicly accessible.
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Title 4 Equity-Based Process Categories § 19. In case the claimant is not able, under the standards of proof of the claims-based process, to document specific claims or make them credible, applications may be submitted to the Claims Committee in the equity-based process for awarding payments for losses or damages in the following categories: 1. for any of the categories of property mentioned above in § 14; 2. for occupational or educational losses as a result of or in connection with events having occurred on the territory of the present-day Republic of Austria during the National Socialist era; or 3. for any other claims for losses or damages arising as a result of or in connection with events having occurred on the territory of the present-day Republic of Austria during the National-Socialist era, unless those claims are covered by the Federal Law concerning the Fund for Voluntary Payments by the Republic of Austria to Former Slave Laborers and Forced Laborers of the National Socialist Regime, Federal Law Gazette I No. 74/2000, or by the provisions on in rem restitution of publicly-owned property pursuant to Part 2 of the present Federal Law. Special Conditions for Payments § 20. If the Claims Committee has reason to believe that 1. there is a valid case of loss of property in any of the categories of property listed in § 14, or—where such claim was finally decided by Austrian courts or administrative bodies, or settled by agreement—that such a decision or settlement was inadequate; 2. the claimant was not adequately compensated for losses as defined in § 19 Subparagraph 2; or 3. a claim raised pursuant to § 19 Subparagraph 3 is justified, the Claims Committee may award an equity-based payment. Payment per Household § 21. (1) Equity-based payments of the Fund shall be made on a per-household basis. The Claims Committee may not award more than one equity-based payment per household. More detailed regulations shall be laid down in the by-laws and rules of procedure. (2) The term “household”, as used in the present Federal Law, shall mean any household-like shared living quarters on the territory of the present-day Republic of Austria between March 12, 1938 and May 9, 1945. A household consists of survivors who shared living quarters in a household-like fashion at the time, and of heirs of those members of the household who did not survive. (3) Applicants in the equity-based process shall, to the extent possible, indicate the address or location of the household for which they seek an equity-based payment, as well as the other members of the household including the heirs of those who did not survive, who are entitled to share the equity-based payment.
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Exclusion of Appeal § 22. Decisions made by the Claims Committee under the equity-based process cannot be appealed. Part 2 In rem Restitution Title 1 Arbitration Panel for in rem Restitution Establishment of the Arbitration Panel § 23. (1) An Arbitration Panel for the examination of applications for in rem restitution of publicly-owned property shall be established with the Fund. (2) (constitutional provision) Members of the Arbitration Panel shall be: 1. one member to be appointed by the Government of the United States of America; 2. one member to be appointed by the Austrian Federal Government; 3. one member to be appointed by the above members as chairperson. (3) The members should be familiar with the relevant rules and provisions of Austrian and international law, in particular with the European Convention for the Protection of Human Rights and Fundamental Freedoms. (4) In the event that the members appointed according to Paragraph 2, Subparagraphs 1 and 2 are unable to agree upon the chairperson within 60 days after the entry into force of the present Federal Law, the Government of the United States of America and the Federal Government [of Austria] will enter into consultations to name a chairperson. (5) The members of the Arbitration Panel shall serve in an honorary capacity. Any expenses incurred by the members as well as the necessary costs for personnel and material shall be borne by the Federation [Bund], making use to the greatest extent possible of the administrative infrastructure of the Fund. By-Laws and Rules of Procedure § 24. The Arbitration Panel shall establish and publish by-laws and rules of procedure, in particular about requirements for applicants regarding burden of proof and rules of evidence. Liaison with the Historical Commission § 25. The chairperson of the Austrian Historical Commission shall appoint a liaison person to the Arbitration Panel. Title 2 Settlement of Claims Case-by-Case Examination § 26. The Arbitration Panel shall examine applications for in rem restitution of publicly-owned property on a case-by-case basis.
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Eligibility § 27. (1) Persons and associations who/which were persecuted by the National Socialist regime on political grounds, on grounds of origin, religion, nationality, sexual orientation, or of physical or mental handicap, or of accusations of so-called asociality, or who left the country to escape such persecution, and who suffered losses or damages as a result of or in connection with events having occurred on the territory of the present-day Republic of Austria during the National Socialist era shall be eligible to file an application. (2) In addition, applying mutatis mutandis the provisions of the [Austrian] General Civil Code, heirs of eligible claimants as defined in Paragraph 1 shall also be eligible to file an application. In case of a defunct association, an association which the Arbitration Panel regards as the legal successor shall be entitled to file an application as well. Publicly-Owned Property § 28. (1) For the purposes of in rem restitution, the notion of “publicly-owned property” shall cover exclusively real estate (land) and buildings (superstructures) which 1. between March 12, 1938 and May 9, 1945, were taken from the previous owners whether without authorization or on the basis of laws or other orders, on political grounds, on grounds of origin, religion, nationality, sexual orientation, or of physical or mental handicap, or of accusations of so-called asociality, in connection with events having occurred on the territory of the present-day Republic of Austria during the National Socialist era; and 2. were never the subject of a claim that was previously decided by an Austrian court or administrative body, or settled by agreement, and for which the claimant or a relative has never otherwise received compensation or other consideration; except in exceptional circumstances where the Arbitration Panel unanimously determines that such a decision or settlement constituted an extreme injustice; and which 3. on January 17, 2001 were exclusively and directly owned by the Federation [Bund], or any legal person under public or private law wholly-owned, directly or indirectly, by the Federation. (2) For the purposes of in rem restitution to Jewish communal organizations, the notion of “publicly-owned property” shall furthermore cover tangible movable property, particularly cultural and religious items, which 1. between March 12, 1938 and May 9, 1945, was taken from the previous owners whether without authorization or on the basis of laws or other orders, on political grounds, on grounds of origin, religion, nationality, sexual orientation, or of physical or mental handicap, or of accusations of so-called asociality, in connection with events having occurred on the territory of the present-day Republic of Austria during the National Socialist era; and 2. was never the subject of a claim that was previously decided by an Austrian court or administrative body, or settled by agreement, and for which the claimant or a relative has never otherwise received compensation or other consideration; except in exceptional circumstances where the Arbitration Panel unanimously determines that such a decision or settlement constituted an extreme injustice; and which 3. on January 17, 2001 was exclusively and directly owned by the Federation [Bund], or
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any legal person under public or private law wholly-owned, directly or indirectly, by the Federation. Filing Period § 29. Applications to the Arbitration Panel are to be filed in writing no later than 24 months after establishment of the Arbitration Panel or one year after the date the Austrian Historical Commission issues its final report at the latest. Basis of Examination § 30. The Arbitration Panel shall make recommendations on the basis of evidence submitted by the claimant and submissions of the Austrian Federal Government, as well as any relevant findings of the Austrian Historical Commission. Status of Ownership § 31. If the claimant asserts that a property is publicly-owned, the Arbitration Panel shall verify in cooperation with the Federal Government whether this is the case. Prior Measures § 32. (1) As a matter of principle, the Arbitration Panel shall not have the authority to reopen or reconsider cases that were previously decided by Austrian courts or administrative bodies, or settled by agreement. Neither the claimant nor a relative (in the case of an association also its legal predecessor) must have otherwise received compensation or other consideration for the property in question. (2) Excepted therefrom are only cases where 1. the Arbitration Panel unanimously determines that a prior settlement constituted an extreme injustice; or 2. the claim was denied because of failure to produce required evidence, where such evidence was inaccessible to the claimant at the time but has since become accessible. Examination Period § 33. The Arbitration Panel shall issue recommendations and dismissals within six (6) months of the Fund’s receiving an application. Recommendations and Dismissals § 34. After examination of the application, the Arbitration Panel shall make a recommendation to the competent Austrian Federal Minister for in rem restitution, or dismiss the claim. Where in rem restitution, although merited, is not practical or feasible, the Arbitration Panel may recommend, in consultation with the competent Austrian Federal Minister, that the claimant be awarded a comparable property. Taxes and Fees § 35. Applications to the Arbitration Panel and awards based on its recommendations shall be
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exempt from all federal taxes and fees. Obligation to Publish Recommendations § 36. Recommendations by the Arbitration Panel shall be published. Disposition of Federal Property § 37. (1) If the Arbitration Panel recommends in rem restitution or the conveyance of a comparable property, the Federal Minister of Finance shall be authorized, to the extent of the recommendation, to dispose of parts of the immovable or movable federal property irrespective of the estimated value by voluntary conveyance. (2) If a property is exclusively and directly owned by a legal person under public or private law wholly-owned, directly or indirectly, by the Federation (§ 28 Paragraph 1, Subparagraph 3 and Paragraph 2, Subparagraph 3), the executive bodies of such a legal person have to comply with the proprietary instructions of the respective competent Federal Minister, in concert with the Federal Minister of Finance, regarding the voluntary conveyance of such property. (3) Dispositions of property may only be made after expiry of the filing period according to § 29. Provinces and Municipalities § 38. If and as far as provinces and municipalities provide for in rem restitution of publiclyowned property, they may provide for the Panel to examine applications for in rem restitution, applying mutatis mutandis the above provisions. The costs incurred therefrom shall be borne by the re-spective province or municipality. Part 3 Entry into Force and Final Provisions Publicity Measures § 39. Within two months of entry into force of the present Federal Law, the Fund shall assure adequate worldwide publicity of the payments that may be made pursuant to the present Federal Law. Such publication shall, in particular, include information about the Fund, the conditions for payments, filing periods and the necessary examination of data. Provision of Information § 40. (1) The Fund and its organs established according to the present Federal Law shall be authorized to obtain from public authorities and other public institutions all information necessary to fulfill its tasks. Information may only be withheld if prohibited by specific statutory provisions or if the protected interest for secrecy of the affected person outweighs the legitimate interest for information of the Fund and its organs. (2) Any information obtained may only be used for purposes according to the present Federal Law; a claimant’s personal data may only be used for the purpose of payments or awards. The use of these data for other purposes shall be permissible only upon explicit consent of the claimant.
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Gender-Related Terms § 41. The terms used in the present Federal law relating to individuals apply equally to women and men, wherever this is relevant. International Agreements § 42. International Agreements dealing with the consequences of the National Socialist era or World War II, in particular the State Treaty for the Re-establishment of an Independent and Democratic Austria, Federal Law Gazette No. 152/1955, as well as the Exchange of Notes of 1959 between the United States of America and Austria relating to the Settlement of Certain Claims under Article 26 of the Austrian State Treaty, shall not be affected by the present Federal Law. Thus, there shall be no legal right to payments or awards under the present Federal Law. Entry into Force § 43. (constitutional provision) The present Federal Law shall enter into force once it has been ensured that the capital mentioned in § 2 will be available in its entirety. The Federal Government shall announce the day of entry into force of the present Federal Law in the Federal Law Gazette I. Dismissal of Claims § 44. (1) Payments and awards under the present Federal law may be made only after all claims under § 2, Paragraph 1, have been dismissed. The Federal Government shall announce that day in the Federal Law Gazette I. (2) The expression “Austrian companies”, as used in the present Federal Law, is defined in the Annex to this Federal Law. Annex Definition of the Expression “Austrian Companies” The expression “Austrian companies”, as used in the present Federal Law, is defined as follows: 1. Enterprises that, at any given time, had or have their headquarters within the borders of the present-day Republic of Austria as well as their parent companies (past or present, direct or indirect), even when the latter had or have their headquarters abroad. 2. Enterprises situated outside the borders of the present-day Republic of Austria in which Austrian enterprises as described in Sentence (1), at any given time, had or have a direct or indirect financial participation of at least 25 percent. 3. a. An “enterprise” or “company” means any entity, whether organized under public or private law as a corporation, partnership, sole proprietorship, association of business entities, society, community, cooperative, non-profit organization or otherwise as well as any municipality, private or other public law entity. Any enterprise (in the above meaning) incorporated or otherwise organized under Austrian law shall be deemed for all purposes of this definition to have its headquarters in Austria. An company (in the above meaning) includes its successors, predecessors, former parents, assigns, officers, directors, employees, agents attorneys, heirs, executors, administrators, personal representatives, and current or
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former shareholders. Any branch office, place of business, establishment or place of work of a non-Austrian company or company (in the above meaning) located within the borders of the present-day Republic of Austria shall be deemed to be a company or enterprise (in the above meaning) that had or has its headquarters in Austria, and any such non-Austrian company or enterprise (in the above meaning) shall be deemed to be a parent or former parent as the case may be, with respect to actions or inactions of such branch or place of business. b. A “parent company” means any company that owns or owned a direct or indirect participation of at least 25 percent in any enterprise that had or has its headquarters in the present-day Republic of Austria. The definition of “Austrian companies” does not include foreign parent companies with headquarters outside the present-day territory of the Republic of Austria in which the sole alleged claim arising from National Socialist injustice or World War II has no connection with the Austrian affiliate and the latter’s involvement in National Socialist injustice, unless there is a pending discovery request by plaintiff(s), of which the United States is provided by the defendant with copy to plaintiff(s), seeking discovery from or concerning National Socialist or World War II actions of the Austrian affiliate. Article 2 Amendment of the General Social Security Act The General Social Security Act, Federal Law Gazette No. 189/1955, amended last by the Federal Law, Federal Law Gazette I No. 5/2001, shall be amended as follows: 1. In § 502, Paragraph 6, the expression “in calendar year 1938 and earlier has completed six years of age” shall be replaced by the expression “was born on March 12, 1938 at the latest.” 2. Following § 592 the following § 593 shall be added: “Final Provision to Article ... of the Federal Law, Federal Law Gazette I No. 12/2001 § 593. (1) § 502, Paragraph 6, as amended by the Federal Law, Federal Law Gazette I No. 12/2001 shall enter into force on the first day of the month following the day announced by the Federal Government pursuant to § 44 of the General Settlement Fund Law, Federal Law Gazette I No. 12/2001. (2) (constitutional provision) For persons who only on the basis of § 502, Paragraph 6, as amended by the Federal Law, Federal Law Gazette I No. 12/2001, are able to pay retroactive contributions for the time of emigration, § 502, Paragraph 4, shall apply on the understanding that also for the time after March 31, 1959, contributions may be paid retroactively for a maximum of 180 months altogether. (3) Persons who only on the basis of § 502, Paragraph 6, as amended by the Federal Law, Federal Law Gazette I No. 12/2001, are entitled to a pension payment under the present Federal Law, shall receive such payment as of the month of entry into force of the present Federal Law, provided an application is filed within one year of the entry into force of the present Federal Law, otherwise as of the first day of the month following the filing of the application. In case the applicant is still living abroad as a consequence of emigration for the reasons stated in § 500, Paragraph 1, at the time of the filing of the application, the
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eligibility for the entitlement to payments shall, notwithstanding § 223, Paragraph 2, be reviewed at the time of occurrence of the insured event.” Article 3 Amendment of the Victims Assistance Act The Victims Assistance Act, Federal Law Gazette No. 183/1947, last amended by the Federal Law, Federal Law Gazette I No. 16/1999, shall be amended as follows: 1. § 1, Paragraph 1, Item e shall read as follows: “e) have been proven to have been confined for political reasons for a minimum of one year, in cases where the confinement involved particularly severe physical or mental suffering, a minimum of six months, or have suffered a kind of restriction of liberty as defined in § 1, Paragraph 2, Item i of a minimum of one year.” 2. In § 1, Paragraph 2, Item f, the expression “after completion of six years of age” shall be deleted. 3. § 4, Paragraph 6 shall be deleted. 4. § 5a, Paragraph 2, first sentence shall read: “Persons as defined in Subparagraphs 1 to 6 of § 3, Paragraph 1 of the Federal Law on Nursing Allowance (BPGG) who emigrated during the time and for the reasons stated in § 500 of the General Social Security Act (ASVG), Federal Law Gazette No. 189/1955, shall upon application and under the other preconditions set forth in the Federal Law on Nursing Allowance (BPGG) be entitled to a monthly benefit corresponding to the respective amount of a nursing allowance of categories 1 to 7, provided their habitual residence for reasons of such emigration is abroad.” 5. § 11, Paragraph 14 shall read: “(14) The entitlement to a pension shall also exist if the right to being issued an official certificate does not exist or has not existed exclusively for lack of Austrian citizenship after April 27, 1945.” 6. § 18, Paragraph 8 shall read: “(8) Victims identification documents which have been awarded by way of indulgence because the victim had not completed the age of six years at the time of the forced emigration shall be deemed as awarded by way of legal title pursuant to § 1, Paragraph 2, Item f, as of the entry into force of the present Federal Law.” 7. § 18, Paragraph 9 shall read: “(9) Official certificates pursuant to § 4, Paragraph 6 shall be deemed as official certificates pursuant to § 1, Paragraph 1, Item e or § 4, Paragraph 5, as of the entry into force of present Federal Law.” 8. § 18, Paragraph 10 shall read: “(10) If applications for the granting of payments pursuant to § 5a, Paragraph 2 and § 11, Paragraph 14 are being filed within one year of the entry into force of the present Federal Law, payments shall be granted as of the time of fulfillment of all preconditions, however, as of the entry into force of present Federal Law at the earliest. Payments granted for the period prior to the entry into force of the present Federal Law pursuant to § 5a, Paragraph
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2, shall remain unaffected.” 9. The former Paragraph 8 of § 18 shall be renamed Paragraph “(11).” 10. To § 19 the following Paragraph 7shall be added: “(7) § 1, Paragraph 1, Item e, Paragraph 2, Item f, § 5a, Paragraph 2, first sentence, § 11, Paragraphs 14 and 18, Paragraphs 8 to 11, as amended by the Federal Law, Federal Law Gazette I No. 12/2001 as well as the deletion of § 4, Paragraph 6 shall enter into force on the day announced by the Federal Government pursuant to § 44 of the General Settlement Fund Law, Federal Law Gazette I No. 12/2001.”
Claims Committee—Rules of Procedure adopted on July 2, 2002 published in the “Wiener Zeitung” on August 23, 2002 Part I—General Sec. 1 Adoption and Publication of the Rules of Procedure
(1) The Rules of Procedure of the Claims Committee of the General Settlement Fund (“the Rules”) are adopted by the Claims Committee pursuant to Section 12 of the General Settlement Fund Law (“the Law”). The Rules may be amended by decision of the Claims Committee. (2) On adoption, the Rules as well as any amendment to them shall be published in the Amtsblatt zur Wiener Zeitung and simultaneously on the Home Page of the General Settlement Fund. Sec. 2 Use of terms
(1) Terms used have the same meaning in the Rules as in the Law. (2) Personal expressions used in the Rules apply, according to the context, equally to men and to women. Sec. 3 Committee Secretariat
(1) In accordance with Section 4, paragraph 5 of the Law, the National Fund of the Republic of Austria provides the technical and administrative support for the Claims Committee. (2) The Secretary General and the administrative apparatus of the General Settlement Fund shall act as the Secretariat of the Claims Committee. (3) The Secretary General shall appoint a person to be Secretary of the Claims Committee who shall be present at all Sessions of the Committee. The duties of the Secretary shall in particular be: the preparation of Sessions, the distribution of papers and supporting documents to Committee Members, the establishment of the Agenda and the preparation of the Record in accordance with Section 7, paragraph 6. A member of the staff of the National Fund or the General Settlement Fund may substitute for the Secretary in the execution of any of the latter’s duties.
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Sec. 4 Confidentiality
(1) The Members of the Claims Committee, the members of the Secretariat and other persons employed by the General Settlement Fund, as well as all other persons, including experts, observers and witnesses, present at Sessions of the Claims Committee, or engaged in the preparation of such Sessions or in the handling of Applications, shall maintain strict confidentiality of the information that comes to their knowledge in the course of such activities. (2) Observers nominated by the bodies referred to in Section 19 paragraph 1 are obliged to make a written declaration accepting this obligation of confidentiality before they are admitted to any Session of the Claims Committee. (3) The bodies entitled to nominate observers under Section 19 are bound by the obligation of strict confidentiality laid down in Section 12 of the Law and have to make arrangements for handling reports received from their nominated observers which conform to the requirements of that Section. Part II—The Claims Committee Sec. 5 Composition
(1) The Claims Committee is composed of one Member each appointed by the Governments of the United States of America and the Austrian Federal Government, together with a Chairman appointed pursuant to Section 4, paragraph 2 of the Law. (2) A vacancy caused by the incapacity or resignation of a Member shall be filled by applying mutatis mutandis the provisions of Section 4 of the Law. Sec. 6 Status and Functions of the Claims Committee
(1) Functions on the Claims Committee shall be carried out in a personal capacity. (2) The Claims Committee and its Members shall be independent in the exercise of their functions and not bound by any instructions. (3) The Claims Committee shall decide on all matters necessary for the exercise of its functions under the Law. Sec. 7 Sessions of the Claims Committee
(1) In principle, all Sessions of the Claims Committee shall be held at the Seat of the Fund. In exceptional cases, however, where the fulfillment of the Committee’s functions so requires, Sessions may also be held at other places by unanimous decision of the Committee. (2) Sessions of the Claims Committee shall be convened by the Chairman, taking into account in particular the quantity of pending work and the need for its efficient dispatch. A Session shall also be convened by the Chairman upon request of the other two Committee Members. The Secretary General may propose to the Chairman the convening of a Session. (3) A Session of the Claims Committee requires the presence of all three of its Members. (4) The Chairman shall preside over the Sessions of the Claims Committee.
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(5) Sessions of the Claims Committee shall be held in private; neither claimants nor their representatives shall be present. Apart from the Committee Members themselves and the members of the Secretariat, there shall be admitted to the Sessions those persons whose presence is required for the conduct of the business as well as for the technical and administrative support of the proceedings. In accordance with Sections 10, 14 and 19 the Claims Committee may grant other persons admission to particular segments of its proceedings. (6) A Record shall be maintained of each Session of the Claims Committee. The Record shall be signed by the Chairman. Sec. 8 Working Languages
(1) The working languages are English and German. Interpretation shall be provided for all Sessions of the Claims Committee. (2) All communications addressed to the Claims Committee and documents shall be submitted in one of the working languages. If a document is not available in one of the working languages, the Applicant shall furnish a translation. In exceptional cases, the Claims Committee may require a sworn translation. (3) If documents remain untranslated even after an express request to that effect, the Claims Committee may decide to leave those documents out of account in handling the Claim. Sec. 9 Decision-making within the Claims Committee
(1) Except insofar as the Law or the Rules expressly provide for unanimity, the Claims Committee shall take its decisions by simple majority with the participation of all its Members. Each Member of the Committee shall be required to cast a vote. (2) In accordance with Section 10, paragraph 2 and Section 16, paragraph 1, taken together with Section 15, paragraph 1, subparagraph 2 of the Law, unanimity shall be required for a decision by the Claims Committee that a previous decision of an Austrian court or administrative authority constituted an extreme injustice. (3) Decisions of the Claims Committee may be taken through a procedure by correspondence, in which the vote of each Member of the Claims Committee is cast in writing on one or more specific questions. A Record shall be kept of all decisions reached through the correspondence procedure. The Record shall be communicated to all Members of the Claims Committee and shall be signed by the Chairman. Part III—Applications Sec. 10 Eligibility
(1) In accordance with Section 6, paragraph 1 of the Law, persons (and, in the claims-based procedure, associations) shall be eligible to file Applications if they were persecuted by the National Socialist regime on political grounds, on grounds of origin, religion, nationality, sexual orientation, on the ground of physical or mental handicap, or on the ground of an accusation of so-called asociality, or if they left the country to escape such persecution, and suffered loss or damage as a result of or in connection with events having occurred on the
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territory of the present-day Republic of Austria during the National Socialist era. (2) In accordance with Section 6, paragraph 2 of the Law, heirs of persons who would, but for their death, have been eligible claimants pursuant to paragraph 1 shall be eligible to file Applications; for this purpose the provisions of the General Civil Code shall be applied mutatis mutandis. In the case of a dissolved association, an association which the Claims Committee regards as the legal successor shall be entitled to file an Application. Sec. 11 Applicants and their representatives
(1) Applicants may be represented. Representatives of Applicants must produce a power of attorney establishing their status. (2) Applicants and their representatives shall have the right to have access to the file with the exception of records of deliberations and decision-making by the Claims Committee. Sec. 12 Quantification of the loss or damage suffered
(1) It shall lie with the Claims Committee to determine the Claim Value. (2) Claims Values shall be based on the historic value of the loss or damage suffered, uprated to present day values by a factor to be determined by the Claims Committee. (3) Applicants may put forward their own estimate for the historic values but these are not binding on the Claims Committee. Sec. 13 Time limits
(1) Applications must be submitted not later than 28th May 2003. (2) The time limit for Applications shall be regarded as met if either the postcard distributed by the Fund to request Application forms, or a comparable written item, or the Application form itself, has been received by the General Settlement Fund by the date specified in paragraph 1. (3) Applications transferred to the Claims Committee under Section 22 of the Rules of Procedure of the Arbitration Panel will also be considered, provided that they have been received by the General Settlement Fund by the date specified in paragraph 1 and have been transferred to the Claims Committee not later than six months from that date. Part IV—Procedure Sec. 14 Hearings
(1) The Claims Committee may decide to hear evidence from witnesses, including from Applicants or their representatives so far as they are being heard as witnesses. The Claims Committee may also decide to hear experts either on general issues or in relation to particular claims. (2) Witness and other evidence may be given either orally or in writing, as the Claims Committee may decide. (3) If the Claims Committee hears witness evidence or expert evidence on a particular claim,
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the Applicant shall be informed and will have access to the record of the evidence on the file. Sec. 15 Choice of procedure
In accordance with Section 9 of the Law, compensation for loss or damage within the meaning of Section 7 of the Law may be claimed under either the claims-based or the equity-based procedure. Only one Application may be made in either procedure, which may encompass loss and damage falling within several categories. It is however not permissible to make simultaneous Applications under both procedures for one and the same loss or damage. Should there be sufficient evidence, the Claims Committee may consider under the claims-based procedure a claim which has been submitted under the equity-based procedure, after notification of the Applicant. Sec. 16 Evidence and burden of proof
(1) The Applicant is required to produce all of the evidence available to him which tends to establish the credibility of his claim. The Applicant may at any time be requested to furnish further evidentiary material. (2) As provided in the Law, the Claims Committee shall determine individual claims on the basis of the available evidence in accordance with relaxed standards of proof. The Claims Committee shall for that purpose decide what weight to attach to any given item of evidence. The Claims-based Procedure Sec. 17 Claim and Payment Values
(1) (a) If the Claims Committee comes to the conclusion that an Applicant fulfils the conditions laid down in Section 15 of the Law, it shall establish a consolidated sum representing all of the accepted claims put forward by the Applicant (Claim Value). The Applicant shall be so notified. (b) In the event, however, that procedures which have to be taken into account according to Section 16, paragraph 2 of the Law are not yet concluded, the Claims Committee will not for the time being proceed to establish a Claim Value. The Applicant shall be so notified. (2) If the Claims Committee comes to the conclusion that a claim fails on the merits, it shall reject the Application. The Applicant shall be so notified with a statement of the reasons. In accordance with Section 9 of the Law, following complete and final rejection of an Application under the claims-based procedure the Claims Committee will deal with the Application under the equity-based procedure. (3) After expiry of the period for Applications in accordance with Section 8 of the Law and determinations have been reached on all Applications, the Claims Committee shall establish for each Applicant a pro rata reduced sum (Payment Value) on the basis of the total of established Claim Values in relation to the total amount set aside for the claims-based procedure under Section 5 of the Law. (4) In accordance with Section 16 of the Law, no Payment Value may exceed 2 million US Dollars. (5) If new evidence, in particular concerning inheritance, has been produced, the Claims
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Committee may reopen the establishment of a Claim Value at any time before the Payment Values have been established under paragraph 3. The Applicant shall be so notified and shall be given opportunity to comment. Sec. 18 Recourse
(1) An Applicant may, in the event of the rejection of his Application and its transfer to the equity-based procedure, make an Application for a fresh determination. The Applicant may similarly apply if the Claims Committee has assigned a historic value which is lower by more than 20% from the historic value estimated by the Applicant. The Applicant shall put forward the grounds in favour of an alteration of the original determination. Reference to new circumstances or to factual or legal errors in the determination by the Claims Committee shall in particular rank as such grounds. (2) The notice to the Applicant of the determination of his claim by the Claims Committee shall include an explanation of the rights of recourse open to him. The notice shall be signed by the Chairman of the Claims Committee. (3) If the Applicant is resident in Austria, the time limit for the right of recourse shall be 30 days from the delivery of the notice. If the Applicant is resident outside Austria, the time limit for the right of recourse shall be 60 days from delivery of the notice. (4) The Claims Committee will consider all Applications under this section as soon as possible. The Applicant will be notified of the outcome. Sec. 19 Observers
(1) The Claims Committee may decide pursuant to Section 12, paragraph 3 of the Law to invite legal persons who, in accordance with their statutes, represent the interests of the groups of persons specified in Section 6 of the Law to nominate observers to attend designated Sessions of the Committee. Each organisation may nominate one observer only. (2) Observers duly nominated under paragraph 1 shall have the possibility to attend at their own expense those general deliberations designated by the Claims Committee, but not under any circumstances determinations or decisions by the Claims Committee. Observers will be notified of the date of all designated Sessions and the Agenda. (3) Observers shall have no right of access to files. Sec. 20 Decisions in respect of insurance policies
(1) In accordance with Section 18, paragraph 1 of the Law, the Claims Committee shall apply, mutatis mutandis, in respect of insurance policies, the International Commission on Holocaust Era Insurance Claims (ICHEIC) Rules for the decision of claims, including those concerning valuation, the standard of proof and the corresponding decisions of the Chairman; for this purpose, the rules in question shall be those established by ICHEIC as at the time of the adoption of these Rules. (2) Legal succession in respect of insurance policies shall however be determined in accordance with Section 6 paragraph 2 of the Law.
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The Equity-based Procedure Sec. 21 Payments by household
(1) Equitable payments from the Fund will be allocated by household. The Claims Committee may not award more than one equitable payment to any household. Payments will be lump sums at three different levels. The size of these sums will be decided by the Claims Committee taking into account the number of claims in the equity-based procedure. The amount available for the equity-based procedure pursuant to Section 5 of the Law shall be divided by the number of those persons who lived in domestic units between 12th March 1938 and 9th May 1945. Only those domestic units will be taken into account in respect of which a valid Application has been submitted. (2) There shall rank as a household within the meaning of Section 21, paragraph 2 of the Law any freely chosen domestic unit on the territory of the present-day Republic of Austria. Sec. 22 Recourse
There shall be no right of recourse against decisions of the Claims Committee in the equitybased procedure. Part V—Handling of Files and Carrying out of Decisions Sec. 23 Handling of files
The Claims Committee shall lay down an internal division of responsibilities, according to which a Member of the Claims Committee will be designated the Reporting Member for each Application. It shall be the duty of the Reporting Member to submit to the Claims Committee in writing a draft determination. Procedural decisions may be taken either by the Reporting Member or by the responsible member of the staff of the General Settlement Fund to whom the Application has been allocated. Sec. 24 Carrying out of decisions
The Secretary General is responsible for carrying out the decisions and determinations of the Claims Committee. Part VI—Data Protection Sec. 25 Data protection
Personal data relating to persons who have approached the Fund shall be protected in accordance with the applicable legislation, and may only be used within the framework of the fulfillment of functions in the implementation of the Law.
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Part I—Creation and Members Sec. 1 Seat
The Arbitration Panel is established with the General Settlement Fund located in Vienna. Sec. 2 Members
The Arbitration Panel consists of three members, of which one member is appointed by the Government of the United States of America, one member by the Austrian Federal Government, and a chairperson chosen by these two members. Sec. 3 Term of Office
The members shall be appointed for the duration of the activity of the Arbitration Panel. Sec. 4 Freedom from Instructions
The Arbitration Panel and its members shall be independent in the exercise of their function and not bound by any instructions. Sec. 5 Termination of Membership
Membership shall end by resignation, death or permanentinability to participate. Sec. 6 Obligation to Confidentiality
The members of the Arbitration Panel shall be obliged to observe confidentiality, especially with regard to person-related data that come to the members’ attention in the course of their activity. Sec. 7 Bias
If a member states that he may be biased, or if a party involved asserts that a member is biased, the other two members shall decide the matter. If a member of the Arbitration Panel is biased, he shall refrain from his office. Part II—Tasks of the Arbitration Panel Sec. 8 Tasks
(1) The Arbitration Panel shall examine and decide on applications, filed in time (sec. 29 of the General Settlement Fund Law), of persons and associations eligible to submit applications (sec. 27 of the General Settlement Fund Law), in the form of a recommendation for an in rem restitution of publicly-owned property (sec. 28 of the General Settlement Fund Law), or for an award of a comparable property, to the competent Federal Minister, or it shall dismiss the claim (sec. 34 of the General Settlement Fund Law). (2) Reasons shall be given for recommendations and dismissals.
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(3) The Arbitration Panel shall publish its recommendations, together with the reasons given, on the homepage of the General Settlement Fund, set up with the Austrian National Fund. After the filing period has expired (sec. 29 of the General Settlement Fund Law), the Arbitration Panel shall publish these in a separate publication. The data shall be published in an anonymous form, unless the applicant consents to the disclosure of his name. Part III—Voting Procedure and Decisions Sec. 9 Decisions
(1) The Arbitration Panel shall take its decisions by resolutions (recommendations, dismissals, rejections for lack of competence and referrals, as well as other procedural dispositions, unless they are taken by the Chairperson in accordance with sec. 14) (2) Resolutions shall be brought to the attention of the parties involved. Sec. 10 Voting Procedure Used by the Arbitration Panel
(1) Resolutions shall be taken during sessions or, upon agreement, by circulatory procedure. (2) All members must be present if a resolution is to be taken during a session. (3) The Arbitration Panel shall take its resolutions by simple majority, unless the General Settlement Fund Law or the present Rules of Procedure expressly require unanimity. Abstentions shall not be admitted. Concurring or dissenting opinions are not permissible. Part IV—Internal Organization Sec. 11 Secretariat
The Secretary General and the administrative apparatus of the General Settlement Fund shall act as Secretariat of the Arbitration Panel. Sec. 12 General Obligation to Confidentiality
All persons who participate or have participated in some form in the proceedings or parts thereof shall observe confidentiality. Sec. 13 Sessions
The sessions of the Arbitration Panel shall be internal meetings of the Members or hearings. The sessions of the Arbitration Panel shall serve to prepare decisions and to take decisions. They are not open to the public. Minutes shall be drawn up on the internal meetings. The minutes shall be drawn up by a member of the Secretariat attending the meetings. Sec. 14 Tasks of the Chairperson
(1) The Chairperson shall preside over the sessions of the Arbitration Panel. He shall convene the sessions and invite the Members within an appropriate period, indicating the time and venue, as well as a preliminary agenda.
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(2) Every Member may ask for additional items to be put on the agenda. In case of hearings, the parties involved shall be notified in time. (3) The Chairperson shall be responsible for preparing the files for sessions and hearings, in cooperation with the Secretariat. When dealing with applications, he shall act as rapporteur. (4) It is upon the Chairperson to invite the parties involved, the witnesses and the informationproviders. (5) The Chairperson shall obtain any information from authorities and all other public institutions which the Arbitration Panel requires in order to be able to fulfil its tasks. Part V—Procedure Sec. 15 Representation
Persons and associations eligible to submit applications may be represented by any person enjoying their confidence, provided that they present a professional or an authenticated power of attorney. Sec. 16 Initiating a Procedure
(1) A procedure is initiated with the receipt of an application by the Secretariat. The receipt of an application shall be decisive for observing the deadline according to sec. 29 of the General Settlement Fund Law. (2) For the purpose of determining the beginning of the period according to sec. 33 of the General Settlement Fund Law, an application shall be given when a claim is sufficiently precise so that the Arbitration Panel is able to take a decision in the matter concerned. (3) The Arbitration Panel may ask applicants to provide additional information to complete an application, if necessary, and will support them in doing so. Sec. 17 Hearings
(1) Hearings shall be sessions with the parties involved. (2) Participants in a hearing shall be obliged to observe confidentiality. (3) A record shall be drawn up on the course of a hearing. This shall include, in particular: 1. the time, place and subject of the hearing and—in the event of previous sessions on the pertinent matter—a brief outline, if necessary, of the status of the matter; 2. the names of the participating persons; 3. written submissions, if any, as enclosures, of the rapporteur as well as of the parties involved; 4. the motions by the parties involved, which the parties sustain at the time of decisionmaking; 5. all decisions taken, in full text; 6. the signatures of the Chairperson as well as of the record-keeper.
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(4) The record shall be submitted to the Members for reviewing and shall then be brought to the attention of the parties involved. Any objections to the record shall be addressed to the Secretariat in writing and without delay, however, at the latest within one week after the record has been communicated; otherwise, a record shall be deemed to have been approved. (5) The record shall be drawn up by a member of the Secretariat attending the meeting. Part VI—Proof and Evidence Sec. 18 Free Assessment of Evidence
The Arbitration Panel decides on the basis of a free assessment of the evidence. Sec. 19 Proof of Persecution
(1) The applicant must establish a substantiated credible case of the circumstances of his persecution in accordance with sec. 27 para. 1 of the General Settlement Fund Law. The arbitration panel will for that purpose take into consideration the known historical circumstances and contexts. The same applies to proving the linkage between persecution and losses or damages. (2) The following, in particular, may serve as evidence: documents on civil status (e.g. birth certificates, marriage certificates, etc.), excerpts from the land register, court decisions and official orders, documents relating to earlier compensations, witness testimonies and statements by the parties involved, lists of the Jewish Property Declaration Office (Vermögensverkehrsstelle), deeds (purchase and sales agreements, etc.), correspondence, photographs, other documents. Sec. 20 Proof of Status as Heir
(1) Applicants, who are heirs to persons eligible to apply for compensation, shall give evidence for their status as heirs. (2) The following, in particular, may serve as evidence: documents on civil status (e.g. birth certificates, marriage certificates, etc.), wills and contracts documenting the entire hereditary succession, inheritance documents (transfers of estate by court order, certificates of inheritance, probates), marriage contracts, other documents. Sec. 21 Further Themes of Evidence
(1) In the case of sec. 28 para. 1, subpara. 2, 1st sentence, of the General Settlement Fund Law, the applicant must state that the object, for which restitution is claimed, was never the subject of a claim that was previously decided by an Austrian court or administrative body, or settled by agreement, and for which the applicant or a relative has never otherwise received compensation or other consideration. (2) In the event that the property was the object of a claim according to sec. 28 para. 1, subpara. 2, 2nd sentence of the General Settlement Fund Law, and in the event that this claim was rejected for lack of evidence, the applicant shall submit evidence that has become accessible in the meantime.
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(3) If an applicant maintains that a decision or a settlement by agreement constituted an extreme injustice, he shall give the reasons thereof and present circumstances that indicate such an injustice. (4) Applicants shall state that on 17 January 2001 the property item was owned exclusively and directly by the Federation or a legal person under public or private law wholly-owned, directly or indirectly, by the Federation. The Federal Government shall cooperate in the statement concerning the public ownership of the property item. Part VII—Final Provisions Sec. 22 Referral
In the event that the Arbitration Panel has no competence for processing a claim that is received prior to 28 May 2003, it may refer the claim to the Claims Committee, upon reaching agreement thereon with the Claims Committee and giving due consideration to the latter’s By-Laws and Rules of Procedure. Sec. 23 Costs of the Procedure
No reimbursement is made for costs incurred in connection with procedures. Sec. 24 Official Procedural Languages
(1) The official procedural languages shall be German and English. Whenever necessary, an interpreter shall be called in for procedures of the Arbitration Panel. (2) Certified translations shall be produced of documents written in any other than the official procedural languages. Sec. 25 Amendments to the Rules of Procedure
The Rules of Procedure shall be amended by unanimous vote. Sec. 26 Provinces and Municipalities
If and as far as provinces and municipalities provide for in rem restitution of publiclyowned property according to sec. 38 of the General Settlement Fund Law, the provisions of these rules of procedure shall apply mutatis mutandis. Sec. 27 Person—Related Expressions
The terms used in the present Rules of Procedure relating to individuals apply equally to women and men, whenever this is relevant.
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Austrian Practice in International Law (2002/2003) Österreichische Praxis zum Internationalen Recht (2002/2003)
Edited by Gerhard Hafner and Stephan Wittich
Structure ............................................................................................................................ 411
Stephan Wittich Part I: Austrian Judicial Decisions Involving Questions of International Law/ Österreichische Judikatur zum internationalen Recht ......................................... 423
Christina Binder, Isabelle Buffard, Gerhard Hafner & Katrin Hagemann Part II: Austrian Diplomatic and Parliamentary Practice in International Law/ Österreichische diplomatische und parlamentarische Praxis zum internationalen Recht ........................................................................................... 503
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Structure
AA. International law in general/Völkerrecht—allgemein I.
Nature, basis, purpose/Natur, Grundlage, Funktionen 1. In general/Allgemeines 2. Ius cogens 3. Soft law
II.
History/Geschichte
BB. Sources of international law/Völkerrechtsquellen I.
Treaties/Verträge
II.
Custom/Völkergewohnheitsrecht
III. General principles of law/Allgemeine Rechtsgrundsätze IV. Judicial decisions/Gerichtsentscheidungen V.
Opinions of writers/Lehrmeinungen
VI. Equity/Billigkeit VII. Unilateral acts, including acts and decisions of international organisations and conferences/Einseitige Akte, einschließlich der Akte und Beschlüsse von internationalen Organisationen und Konferenzen VIII. Comity/Courtoisie (comitas gentium) IX. Codification and progressive development /Kodifikation und progressive Weiterentwicklung
CC. The law of treaties/Recht der Verträge I.
Conclusion and entry into force of treaties/Abschluß und Inkrafttreten völkerrechtlicher Verträge 1. Conclusion/Abschluß 2. Reservations and declarations/Vorbehalte und Erklärungen 3. Provisional application and entry into force/Vorläufige Anwendung und Inkrafttreten
II.
Observance, application and interpretation of treaties/Einhaltung, Anwendung und Auslegung von Verträgen 1. 2. 3. 4.
Observance of treaties/Einhaltung von Verträgen Application of treaties/Anwendung von Verträgen Interpretation of treaties/Auslegung von Verträgen Treaties and third states/(Verträge und) Drittstaaten
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III. Amendment and modification of treaties/Änderung und Modifikation von Verträgen IV. Invalidity, termination and suspension of operation of treaties/Ungültigkeit, Beendigung und Suspendierung von Verträgen 1. General rules/Allgemeine Bestimmungen 2. Invalidity/Ungültigkeit 3. Termination and suspension of operation including denunciation and withdrawal/ Beendigung und Suspendierung von Verträgen, einschließlich der Kündigung von Verträgen und des Rücktritts vom Vertrag 4. Procedure/Verfahren 5. Consequences of invalidity, termination or suspension of operation/Folgen der Ungültigkeit, Beendigung oder Suspendierung von Verträgen
V.
Depositaries, notifications, corrections and registration/Depositär, Notifikationen, Berichtigungen und Registrierung VI. Consensual arrangements, other than in treaty-form/Willensübereinkünfte in anderer Form
DD. Relationship between international law and internal law/Völkerrecht und innerstaatliches Recht I.
In general/Allgemeines
II.
Application and implementation of international law in internal law/Innerstaatliche Anwendung und Durchführung des Völkerrechts III. Remedies under internal law for violations of international law/Innerstaatliche Rechtsmittel bei Völkerrechtsverletzungen
EE. Subjects of International law/Völkerrechtssubjekte I.
States/Staaten 1. Status and powers/Status und Befugnisse a. b. c. d. e. f. g.
Personality/Rechtspersönlichkeit Sovereignty and independence/Souveränität und Unabhängigkeit Non-intervention/Interventionsverbot Domestic jurisdiction/Vorbehaltener Wirkungsbereich Equality of states/Gleichheit State immunity/Staatenimmunität Other powers, including treaty-making powers/Andere Befugnisse, einschließlich der Vertragsabschlußbefugnis
2. Recognition/Anerkennung a. Recognition of states/Anerkennung von Staaten b. Recognition of governments/Anerkennung von Regierungen c. Types of recognition/Arten der Anerkennung aa. de facto\de jure
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bb. conditional\unconditional/bedingt\unbedingt d. Acts of recognition/Anerkennungsakte aa. implied\express/stillschweigend\ausdrücklich bb. collective\unilateral/kollektiv\einseitig e. Effects of recognition/Wirkungen der Anerkennung f. Non-recognition and its effects/Nicht-Anerkennung und deren Wirkungen g. Withdrawal of recognition/Rücknahme der Anerkennung 3. Types of states/Arten von Staaten a. Unitary states, federal states and confederations/Einheitsstaaten, Bundesstaaten und Staatenbünde b. Personal unions, real unions/Personalunionen, Realunionen c. States under protection/Protektorate 4. Formation, continuity, succession and extinction of states/Entstehung von Staaten, Kontinuität, Staatennachfolge und Untergang von Staaten a. b. c. d.
Conditions for statehood/Elemente der Staatlichkeit Formation/Bildung von Staaten Identity, continuity/Identität, Kontinuität Extinctions/Untergang von Staaten aa. Cases of state succession/Fälle der Staatennachfolge i.
Union, with or without demise of former state/Zusammenschluß unter Auslöschung oder Fortbestand eines bisherigen Staates ii. Separation/Abspaltung iii. Newly independent states bb. Effects of state succession/Rechtliche Folgen der Staatennachfolge i.
Territory and other areas under national jurisdiction/Staatsgebiet und andere der Jurisdiktion unterstehende Gebiete ii. Nationality/Staatsangehörigkeit iii. Succession in respect of treaties/Staatennachfolge in Verträge iv. Archives/Archive v. Debts/Schulden vi. Property/Staatsvermögen vii. Responsibility/Staatenverantwortlichkeit viii. Other rights and obligations/Sonstige Rechte und Pflichten 5. Self-determination/Selbstbestimmung
II. International organisations/Internationale Organisationen 1. In general/Allgemeines a. Status and Powers/Status und Befugnisse aa. Personality/Rechtspersönlichkeit bb. Powers, including treaty-making power/Befugnisse einschließlich der Vertragsabschlußbefugnis
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cc. Privileges and immunities of the organisation/Privilegien und Immunitäten der Organisation b. Participation of states in international organisations and in their activities/ Mitgliedschaft in internationalen Organisationen, Teilnahme an ihren Aktivitäten aa. Admission/Zulassung bb. Suspension, withdrawal, expulsion/Suspension der Mitgliedschaft, Austritt, Ausschluß cc. Obligations of membership/Verpflichtungen aus der Mitgliedschaft dd. Representation of states, including privileges and immunities/Vertretung der Staaten, einschließlich ihrer Privilegien und Immunitäten c. Legal effect of acts of international organisations/Rechtswirkung von Akten internationaler Organisationen d. Personnel of international organisations, including their privileges and immunities/Bedienstete internationaler Organisationen, einschließlich ihrer Privilegien und Immunitäten e. Responsibility of international organisations (see MM.)/Verantwortlichkeit internationaler Organisationen (siehe MM.) f. Succession of international organisations/Nachfolge internationaler Organisationen 2. Particular types/Arten internationaler Organisationen a. Universal organisations/Universelle Organisationen b. Regional organisations/Regionalorganisationen c. Organisations constituting integrated (e.g. economic) communities/Internationale Gemeinschaften (zB wirtschaftlicher Natur) d. Other types of organisations/Andere Arten von Organisationen
III. Other subjects of international law and entities and groups/Andere Völkerrechtssubjekte, Einheiten und Gruppen 1. Insurgents/Insurgenten 2. Belligerents/Kriegsführende 3. The Holy See/Der Heilige Stuhl 4. Mandated and trust territories/Treuhand- und Mandatsgebiete 5. Dependent territories/Abhängige Gebiete 6. Special regimes/Besondere Regime 7. Others (indigenous people, minorities, national liberation movements, etc.)/Sonstige (indigene Völker, Minderheiten, Nationale Befreiungsbewegungen)
FF. The position of the individual (including the corporation) in international law/Die Stellung der Einzelperson (einschließlich der juristischen Person) im Völkerrecht I.
Nationality/Staatsangehörigkeit
II.
Diplomatic and consular protection (see MM.)/Diplomatischer und konsularischer Schutz (siehe MM.)
III. Aliens or non-nationals/Fremde
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IV. Members of minorities/Angehörige von Minderheiten V. Stateless persons/Staatenlose VI. Refugees/Flüchtlinge VII. Immigration and emigration, extradition, expulsion, asylum/Einwanderung und Auswanderung, Auslieferung, Ausweisung, Asyl 1. 2. 3. 4.
Immigration and emigration/Einwanderung, Auswanderung Extradition/Auslieferung Expulsion/Ausweisung Asylum/Asyl
VIII. Human rights and fundamental freedoms/Menschenrechte und Grundfreiheiten IX. Expropriation/Enteignung X.
Crimes under international law/Völkerrechtliche Verbrechen
XI. Criminal responsibility of the individual (see MM.)/Strafrechtliche Verantwortlichkeit des Einzelmenschen (siehe MM.)
GG. Organs of the state and their legal status/Die Staatsorgane und ihr rechtlicher Status I.
Head of state/Das Staatsoberhaupt
II.
Minister/Minister
III. Other organs of the state/Andere Staatsorgane IV. Diplomatic missions and their members/Diplomatische Vertretungen und ihre Mitglieder V.
Consulates and their members/Konsulate und ihre Mitglieder
VI. Special missions/Spezialmissionen VII. Trade delegations, information centres, etc./Handelsvertretungen, Informationseinrichtungen etc. VIII. Armed forces/Streitkräfte IX. Protecting powers/Schutzmächte
HH. Jurisdiction of the state/Jurisdiktion (Hoheitsgewalt) I.
Basic of jurisdiction/Grundlage der Jurisdiktion 1. 2. 3. 4. 5.
II.
Territorial principle/Territorialitätsprinzip Personal principle/Personalitätsprinzip Protective principle/Schutzprinzip Universality principle/Universalitätsprinzip Other principles/Andere Grundlagen
Types of jurisdiction/Arten der Jurisdiktion 1. Jurisdiction to prescribe/Legislative Jurisdiktion 2. Jurisdiction to adjudicate/Urteilsjurisdiktion
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3. Jurisdiction to enforce/Durchsetzungsjurisdiktion
III. Extra-territorial exercise of jurisdiction/Extraterritoriale Ausübung von Hoheitsgewalt 1. General/Im allgemeinen 2. Consular jurisdiction/Konsularjurisdiktion 3. Jurisdiction over military personnel abroad/Jurisdiktion über im Ausland stationiertes Militärpersonal 4. Others (artificial islands, terra nullius, etc.)/Sonstiges (künstliche Inseln, terra nullius etc.)
IV. Limitations upon jurisdiction (servitudes, leases, etc.)/Einschränkungen der Hoheitsgewalt (Servituten, ähnliche Gebrauchsrechte) V.
Concurrent jurisdiction/Konkurrierende Jurisdiktion
II. State territory/Das Staatsgebiet I.
Territory/Das Gebiet 1. Elements of territory/Gebietsteile a. Land, internal waters, rivers, lakes and land-locked seas (see also JJ. and KK.) Land, Binnengewässer, Flüsse, Seen und Binnenmeere (siehe auch JJ. Und KK.) b. Sub-soil/Unterirdisches Gebiet c. Territorial sea (see KK.)/Küstenmeer (siehe KK.) d. Airspace (see LL.)/Luftraum (siehe LL.) 2. Good neighborliness/Gute Nachbarschaft
II.
Boundaries and frontiers/Grenzen 1. Delimitation/Delimitation 2. Demarcation/Demarkation 3. Stability/Stabilität
III. Acquisition and transfer of territory/Gebietserwerb und Gebietsübertragung 1. Acquisition/Gebietserwerb 2. Transfer/Gebietsübertragung
JJ. International watercourses/Internationale Gewässer I.
Rivers and Lakes/Flüsse und Seen 1. 2. 3. 4. 5. 6.
II.
Definiton/Definition Navigation/Schiffahrt Irrigation/Bewässerung Uses for other purposes/Sonstige Nutzungen Protection of the environment/Umweltschutz Institutional aspects/Institutionelle Aspekte
Subterranean waters/Grundwasser
III. Canals/Kanäle
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KK. Seas/Meere I.
Internal waters, including ports and bays/Innere Gewässer, Hafenanlagen, Buchten
II. The territorial sea/Das Küstenmeer III. Straits/Meerengen IV. Archipelagic waters/Archipelagische Gewässer V.
Contiguous zone/Anschlußzone
VI. Exclusive economic zone, exclusive fisheries zone/Ausschließliche Wirtschaftszone, ausschließliche Fischereizone VII. Continental shelf/Festlandsockel VIII. High seas/Die Hohe See 1. 2. 3. 4. 5.
Freedom of the sea/Grundsatz der Meeresfreiheit Hot pursuit/Nachteile Visit and search/Durchsuchung Piracy/Piraterie Conservation of living resources/Bewahrung der lebenden Ressourcen
IX. Islands, rocks and low-tide elevations/Inseln, Felsen, trocken-fallende Erhebungen X.
Enclosed and semi-enclosed seas/Eingeschlossene und halbeingeschlossene Meere
XI. International sea-bed area/Internationaler Meeresboden XII. Land locked and geographically-disadvantaged states/Binnenstaaten und geographisch benachteiligte Staaten XIII. Protection of the maritime environment/Schutz der Meeresumwelt XIV. Maritime scientific research/Wissenschaftliche Meeresforschung XV. Cables and pipelines/Kabel, Rohrleitungen XVI. Artificial islands, installations and structures/Künstliche Inseln, Anlagen und Bauwerke XVII.Tunnels/Tunnels XVIII.Vessels/Schiffe 1. Legal regime/Recht der Schiffahrt a. Warships/Kriegsschiffe b. Public vessels other than warships/Andere Staatsschiffe c. Merchant ships/Handelsschiffe 2. Nationality/Nationalität von Schiffen 3. Jurisdiction over vessels/Jurisdiktion über Schiffe a. b. c. d.
Flagstate/Flaggenstaat Coastal state/Küstenstaat Port state/Hafenstaat Other exercise of jurisdiction/Sonstige Ausübung der Jurisdiktion
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LL. Air Space, outer space and Antarctica/Luftraum, Weltraum, Antarktis I.
Air Space/Luftraum 1. Legal status/Rechtsstellung 2. Uses/Nutzungen 3. Legal regime of aircraft/Rechtlicher Status des Luftfahrzeuges
II.
Outer space/Weltraum 1. Legal status/Rechtsstellung 2. Uses/Nutzungen 3. Legal regime of spacecraft/Rechtlicher Status des Weltraumobjektes
III. Antarctica/Die Antarktis 1. Legal status/Rechtsstellung 2. Uses/Nutzungen
MM. International responsibility/Völkerrechtliche Verantwortlichkeit I.
General conception/Konzept der völkerrechtlichen Verantwortlichkeit
II.
General issues of responsibility/Allgemeines zur völkerrechtlichen Verantwortlichkeit 1. The elements of responsibility (e.g. unlawfulness of the act, attribution to the state)/ Die Elemente der Staatenverantwortlichkeit (zB unerlaubter Akt, Zurechenbarkeit) 2. Circumstances excluding responsibility (self-defence, necessity, reprisals)/ Ausschluß der Verantwortlichkeit (Selbstverteidigung, Notstand, Repressalien) 3. Procedure/Verfahren a. Diplomatic protection/Diplomatischer Schutz aa. Nationality of claims bb. Exhaustion of local remedies/Ausschöpfung der innerstaatlichen Rechtsmittel b. Consular protection/Konsularischer Schutz c. Peaceful settlement (see NN.)/Friedliche Streitbeilegung (siehe NN.) 4. Consequences of responsibility (restitutio in integrum, damages satisfaction, guarantees)/Folgen der völkerrechtlichen Verantwortlichkeit (restitutio in integrum, Schadenersatz, Genugtuung, Sicherheitsleistungen)
III. Responsible entities/Träger der Verantwortlichkeit 1. 2. 3. 4.
States/Staaten International organisations/Internationale Organisationen Entities other than states and international organisations/Andere Einheiten Individuals and groups of individuals, including corporations/Individuen und Gruppen einschließlich juristischer Personen
NN. Pacific settlement of disputes/Friedliche Streitbelegung I.
The concept of an international dispute/Vorliegen eines internationalen Streites
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Means of settlement/Methoden zur Streitbelegung 1. 2. 3. 4. 5. 6.
Negotiations and consultations/Verhandlungen und Konsultationen Good offices/Die Guten Dienste Enquiry and fact-finding/Untersuchung Mediation/Vermittlung Conciliation/Vergleich Arbitration/Schiedsgerichtsbarkeit a. Arbitral tribunals and commissions/Schiedsgerichte und -kommissionen b. Permanent Court of Arbitration/Ständiger Schiedshof
7. Judicial settlement/Gerichtliche Streitbelegung a. International Court of Justice/Der Internationale Gerichtshof b. Courts or tribunals, other than the ICJ/Sonstige Gerichte und Gerichtshöfe 8. Settlement within international organisations/Streitbeilegung innerhalb der internationalen Organisationen a. United Nations/Vereinte Nationen b. Organisations other than the United Nations/Andere Organisationen 9. Other means of settlement/Sonstige Methoden der Streitbelegung
OO. Coercive measures short of the use of force/Zwangsmaßnahmen unter der Schwelle der Gewaltanwendung I.
Unilateral acts/Einseitige Akte 1. 2. 3. 4. 5.
II.
Retorsion/Retorsion Countermeasures/Gegenmaßnahmen Pacific blockade/Friedliche Blockade Intervention (see also EE.)/Intervention (siehe auch EE.) Other unilateral acts/Andere einseitige Akte
Collective measures/Kollektivmaßnahmen 1. United Nations/Vereinte Nationen 2. Collective measures outside the United Nations/Kollektivmaßnahmen außerhalb der Vereinten Nationen
PP. Use of force/Gewaltanwendung I.
Prohibition of use of force/Gewaltverbot
II.
Legitimate use of force/Rechtmäßiger Gewaltgebrauch 1. Self-defense/Selbstverteidigung 2. Collective measures/Kollektivmaßnahmen a. United Nations/Vereinte Nationen b. Outside the United Nations/Außerhalb der Vereinten Nationen 3. Others/Sonstiges
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III. Disarmament and arms control/Abrüstung und Rüstungskontrolle
QQ. The law of armed conflict and international humanitarian law/Recht des bewaffneten Konfliktes und internationales humanitäres Recht I.
International armed conflict/Der internationale bewaffnete Konflikt 1. Definition/Definition 2. The laws of international armed conflict/Das Recht des internationalen bewaffneten Konflikts a. Sources/Rechtsquellen b. The commencement of international armed conflict and its effects (e.g. diplomatic and consular relations, treaties, private property, nationality, trading with the enemy, locus standi personae in judicio)/Der Beginn des internationalen bewaffneten Konfliktes und seine Rechtsfolgen (zB diplomatische und konsularische Beziehungen, Verträge, Privateigentum, Staatsangehörigkeit, Feindhandel, locus standi personae in judicio) c. Land warfare/Landkrieg d. Sea warfare/Seekrieg e. Air warfare/Luftkrieg f. Distinction between combatants and non-combatants/Kombattanten—NichtKombattanten g. International humanitarian law (droit humanitaire international)/Internationales humanitäres Recht h. Belligerent occupation/Kriegerische Besetzung i. Conventional, nuclear, bacteriological and chemical weapons/Konventionelle, nukleare, bakteriologische und chemische Waffen j. Treaty relations between combatants (cartels, armistices etc.)/Vertragliche Beziehungen zwischen den Kombattanten (Absprachen, Waffenstillstände) k. Termination of international armed conflict, treaties of peace/Beendigung des internationalen bewaffneten Konfliktes, Friedensverträge 3. Reparations/Reparationen
II.
Non-international armed conflict/Nicht-internationaler bewaffneter Konflikt
RR. Neutrality, non-belligerency/Neutralität, Nicht-Kriegführung I.
The laws of neutrality/Neutralitätsrecht 1. Land warfare/Landkrieg 2. Sea warfare/Seekrieg 3. Air warfare/Luftkrieg
II.
Permanent neutrality/Dauernde Neutralität
III. Neutrality in the light of the Charter of the United Nations/Neutralität im Licht der Satzung der Vereinten Nationen IV. Policy of neutrality and non-alignment/Neutralitätspolitik, Bündnisfreiheit V. Non-belligerency/Nicht-Kriegführung
Austrian Practice in International Law—Structure
SS. Legal aspects of international relations and cooperation in particular matters/Rechtliche Aspekte der internationalen Beziehungen und Zusammenarbeit in bestimmten Bereichen I.
General economic and financial matters/Wirtschaftliche und Finanzwirtschaftliche Angelegenheiten 1. 2. 3. 4. 5. 6.
II.
Trade/Handel Loans/Kredite Investments/Investitionen Taxes/Steuern Monetary matters/Monetäre Angelegenheiten Development/Entwicklung
Transport and communications/Transport, Kommunikation
III. Environment/Umwelt IV. Natural Resources/Natürliche Ressourcen V.
Technology/Technologie
VI. Social and health matters/Soziale und gesundheitliche Angelegenheiten VII. Cultural matters/Kulturelle Angelegenheiten VIII. Legal matters (eg judicial assistance and crime control etc.)/Rechtliche Angelegenheiten (zB Rechtshilfe und Verbrechensbekämpfung etc.) IX. Military and security matters/Militärische Angelegenheiten, Sicherheitsangelegenheiten
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PART I: Austrian Judicial Decisions Involving Questions of International Law/ Österreichische Judikatur zum internationalen Recht Stephan Wittich*
Index of Judgments and Decisions*** CC. The law of treaties/Das Recht der Verträge II.3.—See FF.IV, FF.VII.4-1., FF.VIII. EE. Subjects of international law/Völkerrechtssubjekte I.1.f.-1—Supreme Court, Decision No. 9 ObA 14/03d, dated 7 May 2003—service of process by letter of request—service of process as sovereign act for which foreign state enjoys immunity ................................. 425 I.1.f.-2—Supreme Court, Decision No. 2 Ob 156/03k, dated 28 August 2003—foreign state immunity—NATO intermediate landings for humanitarian operations in Bosnia—binding decisions of SC under article 25—nature of the act—iure imperii ............................................................ 430 II.1.c.—See EE.I.1.f.-2 III.4.—See FF.VII.4.-1. FF. The position of the individual (including the corporation) in international law/Die Stellung der Einzelperson (einschließlich der juristische Person) im Völkerrecht IV.—Constitutional Court, Judgment No. G 213/01, V 62/01 et al., dated 13 December 2001—article 7(3) of the Austrian State Treaty— rights of Slovene minority—topographical terminology and inscriptions .................................................................................................................... 443 *
Assistant Professor, Department of International Law, University of Vienna; Executive Editor.
**
With two exceptions (Constitutional Court, judgment G 213/01, V 62/01 et al., dated 13 December 2001, and Administrative Court, decision 99/0359, dated 3 May 2000), the digest covers the period from 1 October 2002 until 30 June 2003.
Austrian Review of International and European Law 8: 423-502, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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VII.4.-1—Administrative Court, Judgment No. 99/01/0359, dated 3 May 2000—Kosovo—Geneva Refugee Convention—fundamental change of circumstances for (re)determining refugee status ......................... 461 VII.4.-2—Administrative Court, Judgment No. 2003/01/0059, dated 16 July 2003—Kosovo—”policy of destruction” by Serb forces— article 3 ECHR—conformity of domestic law with ECHR .............................. 470 VIII.—Supreme Court, Decision No. 9 Nc 109/02g, dated 12 May 2003—article 13 ECHR—ordination of domestic court having jurisdiction—article 13 ECHR confined to violations of the ECHR in forum state ......................................................................................................... 478 GG. Organs of the state and their legal status/Die Staatsorgane und ihr rechtlicher Status III.—Constitutional Court, Judgment No. G 121/01 et al., dated 2 October 2003—ban on import of electricity—entity exercising elements of governmental authority—measures of retorsion ............................ 480 HH. Jurisdiction of the state/Jurisdiktion (Hoheitsgewalt) I.—Higher Regional Court Vienna, Decision No. 27 Kt 238/03, dated 11 July 2003—acquisition of company abroad—cartel law—effects doctrine .................................................................................................................... 484 See also FF.VIII. MM. International responsibility/Völkerrechtliche Verantwortlichkeit II.—Arbitration Panel for In Rem Restitution of Publicly Owned Property, Decision No. 3, dated 22 October 2003—victims of National Socialism—extreme injustice—restitution of property ....................... 486 OO. Coercive measures short of the use of force/Zwangsmaßnahmen unter der Schwelle der Gewaltanwendung I.—See GG.III. RR. Neutrality, non-belligerency/Neutralität, Nicht-Kriegführung III.—See EE.I.1.f.-2 SS. Legal aspects of international relations and cooperation in particular matters/Rechtliche Aspekte der internationalen Beziehungen und Zusammenarbeit in bestimmten Bereichen VIII.—See EE.1.f.-1
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EE.
Subjects of international law/Völkerrechtssubjekte
I.
State immunity/Staatenimmunität
1.
Status and powers/Status und Befugnisse
f.
State immunity/Staatenimmunität
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EE.I.1.f.-1
Supreme Court, Decision No. 9 ObA 14/03d, dated 7 May 2003 Oberster Gerichtshof, Beschluss 9 ObA 14/03d vom 7. Mai 2003 Zustellung einer Klage gegen ausländischen Staat durch Rechtshilfe—Zustellung als hoheitlicher Akt, für den der ausländische Staat Immunität genießt Service of process of lawsuit against foreign state by letter of request—service of process as sovereign act for which foreign state enjoys immunity Facts This decision, which was rendered in parallel proceedings to case no. 8 ObA 201/ 00t,1 concerned an employee of the US embassy in Vienna who sued the United States before the Court for Labour and Social Matters in Vienna for reimbursement of certain payroll taxes from the United States. The Austrian court requested the Federal Ministry of Justice to effect service of the claim upon defendant by letter of request. The letter of request was however returned because the United States invoked state immunity in relation to the lawsuit of the employee and therefore refused to comply with the letter of request concerning service of process. The Austrian courts, including the Supreme Court, had taken the view that this refusal to execute the letter of request for service of process was an act in exercise of sovereign authority for which the United States enjoyed state immunity and against which no action was therefore possible before Austrian courts. For peculiar procedural reasons, the Supreme Court was again seized with the matter. Full text of the reasons of the decision (translation): The Decision of the Supreme Court rendered in parallel proceedings (8 ObA 201/ 00t) is known to the parties and need therefore not be repeated here. From this decision it follows in summary that since respondent has invoked its diplomatic [sic] immunity “in any proceedings commenced by plaintiff”, service of the claim can only be effected by diplomatic means because the execution (as well as the refusal) of a letter of request for service of process is, according to its nature, an act in exercise of sovereign authority (acta iure imperii) and not a commercial act (acta iure gestionis), because a private individual cannot act in such a way […]. Plaintiff proceeds on the 1
This decision is reprinted and translated in S. Wittich et al., “Austrian Judicial Decisions involving Questions of International Law”, 6 ARIEL 281, 304 (2001).
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basis of the Decision No. 8 ObA 201/00t and argues that due to the refusal by respondent to execute the letter of request she may request service of the claim under § 121(2), second sentence, second variant, of the Civil Procedure Code.2 It is true that according to § 121(2), first sentence, of the Civil Procedure Code, the applicant party may request service of process by public announcement (§ 25 of the Service of Process Act3) or, as the case may be, by appointing a curator pursuant to § 116 of the Civil Procedure Code, provided that it cannot be verified within reasonable time that the service of process upon a person living abroad has been effected. The same applies to cases where service of process abroad has been to no avail—which is invoked by plaintiff—or the request is futile because of manifest refusal by the foreign authority of the letter of request. This provision, however, is not in support of plaintiff’s claim: § 121 of the Civil Procedure Code is, according to its heading, generally concerned with the service of process “abroad” (i.e., in the territory of a foreign state […]). It can however not be applied to those specific cases of service abroad upon persons or institutions that invoke diplomatic [sic] immunity. The interpretation of § 121(2) of the Civil Procedure Code by plaintiff is too broad because it undermines the diplomatic immunity invoked by respondent. Such a case is governed by special norms: Thus, § 11 of the Service of Process Act, which—according to its heading—governs “special cases of service of process”, provides in para. 1 that service of process abroad has to be carried out according to existing international agreements or, as the case may be, in a manner that is permitted under the laws and other regulations of the state where service is to be effected, or under international comity, if necessary with the assistance of the Austrian foreign service (diplomatic or consular missions). According to para. 2, service of process upon foreigners or international organisations that enjoy privileges and immunities under public international law has, regardless of their place or residence or seat, to be effected by the medium of the Federal Ministry of Foreign Affairs. It is not contested by plaintiff that foreign states also fall under “foreigners or international organisations” within the meaning of § 11(2) of the Service of Process Act, “that enjoy privileges and immunities under public international law” […]; the question whether this is so by direct application or probably per analogiam may be
2
§ 121(2) of the Civil Procedure Code provides as follows (unofficial translation): “If it cannot be verified within reasonable time that the service of process upon a person living abroad has been effected, the applicant party may request service of process by public announcement (§ 25 of the Service of Process Act) or, as the case may be, by appointing a curator pursuant to § 116 of the Civil Procedure Code. The same applies to cases where service of process abroad has been to no avail or the request is futile because of manifest refusal by the foreign authority of the letter of request.”
3
Zustellgesetz—ZustG.
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left unanswered, because not only § 11(2) of the Service of Process Act but also § 32(3) of the Law on Adjudicative Jurisdiction4 provide that judicial orders that concern persons enjoying immunity have to be effected by the medium of the Federal Ministry of Foreign Affairs. It is undoubted that foreign states are “persons” enjoying immunity within the meaning of § 32(3) of the Law on Adjudicative Jurisdiction […]. There exists no treaty between Austria and the respondent concerning execution of service of process with regard to state immunity. In the absence of such a treaty the applicable law is confined to the generally recognised rules of international law (Article 9 of the Federal Constitution5), Article IX of the Introductory Act to the Law on Adjudicative Jurisdiction6 and to the relevant principles established by the courts and by doctrine. Accordingly, it is uncontested that foreign states enjoy immunity in exercise of their sovereign functions, and are therefore exempt from the domestic jurisdiction in this respect […]. Service of process abroad is a sovereign act and, in the absence of a treaty between the states concerned that would regulate this process, this act is an interference with the sovereign rights of the foreign state concerned. Therefore, the intervention of the Federal Ministry of Foreign Affairs is called for in such cases, which maintains close contact to the group of persons in question and whose task it is also to consider the relevant international law aspects […], a fact that has been correctly pointed out by plaintiff. However, the restriction of the service of process to the requirement of intervention by the Federal Ministry of Foreign Affairs is, contrary to plaintiff’s view, not merely recommendatory but according to the wording used in the law mandatory […]; service of process by different means would be contrary to the law […]. In her case note (Juristische Blätter 2002, at 57), Margit Hintersteininger acknowledges that the “restrictive theory of service of process” serves the purpose of preventing “international disagreements” but demands a correction of § 11 of the Law on Service of Process7 by the legislator […]. To date, that provision has not been amended. In addition, it must be noted that the strict treatment of diplomatic immunity is based in the Law on Adjudicative Jurisdiction8. According to the concept of this
4
Jurisdiktionsnorm—JN.
5
Bundes-Verfassungsgesetz—B-VG.
6
Einführungsgesetz zur Jurisdiktionsnorm—EGJN. Article IX of this law provides that the jurisdiction of Austrian courts (inländische Gerichtsbarkeit—domestic jurisdiction) extends to persons who enjoy extraterritoriality according to the principles of international law, if and to the extent they voluntarily submit to the jurisdiction of domestic courts, or if the legal dispute concerns immovable property located in Austria or rights in rem to real estates belonging to other persons but which are located in Austria.
7
Zustellgesetz—ZustG.
8
Jurisdiktionsnorm—JN.
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law the violation of immunity leads to the invalidity of the relevant procedural act which—apart from the possibility of a waiver of immunity—may not be cured by the parties’ own conduct […]. In the present case, the service of process by way of public announcement or appointment of a curator (as requested by plaintiff) is not possible under the general rule in § 121(2) of the Civil Procedure Code, but is an exception thereto and undermines the invocation by the respondent of diplomatic immunity. An application of the aforementioned provision is therefore not permissible in this particular case. On the contrary, […] as the Supreme Court already held in Decision No. 8 ObA 201/00t, the only possible way of serving the claim is via the diplomatic channel. […] German original: Die in einem Parallelprozess der Streitteile zu 8 ObA 201/00t (= JBl 2002, 57 [Hintersteininger]) ergangene Entscheidung des Obersten Gerichtshofes ist den Parteien bekannt und braucht daher nicht nochmals wiederholt werden. Aus ihr folgt zusammengefasst, dass nach Berufung der beklagten Partei auf ihre diplomatische Immunität „in jeder von der Klägerin eingebrachten Rechtssache“ für die Zustellung der Klage—mangels eines diese Frage regelnden Abkommens zwischen Österreich und der beklagten Partei—nur mehr der diplomatische Weg offensteht, da die Durchführung (ebenso wie die Verweigerung) eines Rechtshilfeersuchens um Zustellung zufolge der nach der Natur des Aktes vorzunehmenden Abgrenzung jedenfalls dem Hoheitsbereich eines Staates (acta iure imperii)—und nicht dem Bereich der Privatwirtschaftsverwaltung (acta iure gestionis)—zuzurechnen ist, weil ein Privater keinen Akt gleicher Art setzen kann (so bereits SZ 36/26; vgl dazu auch RV 162 BlgNR XV. GP 10 [zu § 11 ZustG]). Ausgehend von der Entscheidung zu 8 ObA 201/00t argumentiert die Revisionsrekurswerberin nun dahin, dass ihr wegen Verweigerung der Rechtshilfe durch die beklagte Partei der Weg der Zustellung der Klage nach § 121 Abs 2 zweiter Satz, zweiter Fall ZPO eröffnet sei. Richtig ist, dass nach § 121 Abs 2 erster Satz ZPO die betreibende Partei je nach Lage der Sache, wenn die Bestätigung über die erfolgte Zustellung an eine im Ausland befindliche Person binnen einer angemessenen Zeit nicht einlangt, die Zustellung durch öffentliche Bekanntmachung (§ 25 ZustG) oder eine Kuratorbestellung nach § 116 ZPO beantragen kann. Gleiches soll nach § 121 Abs 2 zweiter Satz ZPO auch für den Fall gelten, dass eine Zustellung im Ausland vergeblich versucht worden ist oder—worauf sich die Revisionsrekurswerberin stützt—das Ersuchen wegen offenkundiger Verweigerung der Rechtshilfe durch die ausländische Behörde keinen Erfolg verspricht. Hieraus ist jedoch für den Standpunkt der Revisionsrekurswerberin nichts zu gewinnen: § 121 ZPO regelt zwar nach seiner Überschrift ganz allgemein die Zustellung „im Ausland“ (dh im Staatsgebiet eines fremden Staates [vgl Walter/Mayer, Zustellrecht § 121 ZPO Anm 3]), kann jedoch nicht für jene besonderen Fälle der Zustellung im Ausland herangezogen werden, bei denen an Personen oder Einrichtungen zugestellt werden soll, die sich auf ihre diplomatische Immunität berufen. Die Auslegung des
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§ 121 Abs 2 ZPO durch die Revisionsrekurswerberin geht zu weit, weil sie die von der beklagten Partei geltend gemachte diplomatische Immunität unterläuft. Für einen derartigen Fall gelten spezielle Normen: So ordnet § 11 ZustG, der nach seiner Überschrift „Besondere Fälle der Zustellung“ regelt, in Abs 1 an, dass Zustellungen im Ausland nach den bestehenden internationalen Vereinbarungen oder allenfalls auf dem Weg, den die Gesetze oder sonstigen Rechtsvorschriften des Staates, in dem zugestellt werden soll, oder die internationale Übung zulassen, erforderlichenfalls unter Mitwirkung der österreichischen Vertretungsbehörden, vorzunehmen sind. Nach Abs 2 leg. Cit. ist zur Vornahme von Zustellungen an Ausländer oder internationale Organisationen, denen völkerrechtliche Privilegien und Immunitäten zustehen, unabhängig von ihrem Aufenthaltsort oder Sitz die Vermittlung des Bundesministeriums für Auswärtige Angelegenheiten in Anspruch zu nehmen. Dass auch ausländische Staaten unter „Ausländer oder internationale Organisationen“iSd § 11 Abs 2 ZustG fallen, „denen völkerrechtliche Privilegien und Immunitäten zustehen“ (vgl VAB 1050 BlgNR XV. GP 2; Walter/Mayer aaO § 11 ZustG Anm 12, 14; s auch Walter/Mayer aaO § 121 ZPO Anm 2 zum Begriff „Personen im Ausland“ in § 121 Abs 1 ZPO; JBl 2002, 57 [Hintersteininger]), wird von der Revisionsrekurswerberin nicht weiter in Frage gestellt; ob dies unmittelbar oder allenfalls per analogiam der Fall ist, kann aber letztlich dahingestellt bleiben, weil nicht nur § 11 Abs 2 ZustG, sondern auch § 32 Abs 3 JN anordnet, dass zur Ausführung von gerichtlichen Verfügungen, die Personen betreffen, die Immunität genießen, die Vermittlung des Bundesministeriums für Auswärtige Angelegenheiten in Anspruch zu nehmen ist. Daran, dass ausländische Staaten zu den „Personen“ iSd § 32 Abs 3 JN gehören, die Immunität genießen, besteht kein Zweifel (vgl Ballon in Fasching I² §§ 32, 33 JN Rz 3, der auf Art IX EGJN verweist; Näheres dann bei Matscher in Fasching I² Art IX EGJN Rz 196 ff ua). Hinsichtlich der Handhabung der Zustellung mit Rücksicht auf die Staatenimmunität existiert zwischen Österreich und der beklagten Partei kein Abkommen. Mangels eines solchen hat es bei der Anwendung der allgemein anerkannten Regeln des Völkerrechts (Art 9 B-VG), des Art IX EGJN und der von der Rechtsprechung und Lehre hiezu herausgearbeiteten Grundsätze zu bleiben. Danach genießen ausländische Staaten nach einhelliger Auffassung in Ausübung ihrer hoheitlichen Funktionen Immunität, sind daher insoweit der inländischen Gerichtsbarkeit entzogen (SZ 23/143; Herndl, JBl 1962, 15; JBl 1962, 43; Heß, JBl 1989, 285; ZfRV 1990, 300 [Seidl-Hohenveldern]; Schreuer, ÖJZ 1991, 41; Fischer, NZ 1991, 154; DRdA 1991/ 53 [Simotta]; Neuhold/Hummer/Schreuer, Österreichisches Handbuch des Völkerrechts Bd 1³ Rz 834, 837; Seidl-Hohenveldern, Völkerrecht9 Rz 1462 ff; Matscher aaO Art IX EGJN Rz 2, 115 ff, 196 ff; Mayr in Rechberger, ZPO² Art IX EGJN Rz 3 ff ua). Zustellungen im Ausland bewirken als Hoheitsakte—mangels eines Abkommens der beteiligten Staaten, das diesen Vorgang regelt,—einen Eingriff in die Hoheitsrechte des betroffenen ausländischen Staates. Deshalb ist in derartigen Fällen die Vermittlung des Bundesministeriums für Auswärtige Angelegenheiten gefordert, das mit dem in
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Frage kommenden Personenkreis enge Verbindung unterhält und auch die einfließenden völkerrechtlichen Gesichtspunkte wahrzunehmen berufen ist (RV 162 BlgNR XV. GP 10), worauf auch die Revisionsrekurswerberin zutreffend hinweist. Die Beschränkung auf die Vermittlung des Bundesministeriums für Auswärtige Angelegenheiten hat jedoch entgegen ihrer Auffassung nicht bloß Empfehlungscharakter, sondern ist im Gesetz zwingend vorgesehen (arg „ist“ in § 32 Abs 3 JN bzw § 11 Abs 2 ZustG); eine Zustellung in anderer Weise wäre gesetzwidrig (Walter/Mayer aaO § 11 ZustG Anm 15). Hintersteininger billigt der „restriktiven Zustellungstheorie“ in ihrer Entscheidungsbesprechung zu 8 ObA 201/00t (JBl 2002, 57) zwar zu, zur Hintanhaltung von „internationalen Verstimmungen“ zweckmäßig zu sein, sie fordert jedoch eine gesetzgeberische Korrektur des § 11 ZustG, in dem sie (zumindest in der Anwendung dieser Bestimmung) eine „Selbstfesselung“ erblickt. Bisher blieb eine Reaktion des Gesetzgebers aus. Im Übrigen ist anzumerken, dass die strikte Handhabung der diplomatischen Immunität bereits auf die Jurisdiktionsnorm zurückgeht, nach deren Konzept die Verletzung der Immunität Nichtigkeit des betroffenen Prozessvorganges bewirkt, die (abgesehen von einem Verzicht auf die Immunität) auch nicht durch Parteienverhalten heilbar ist (§ 42 JN; Ballon aaO § 42 JN Rz 3, 14ff; Mayr aaO § 42 JN Rz 2, 7). Die von der Klägerin begehrte Zustellung der Klage an die beklagte Partei im Wege der öffentlichen Bekanntmachung oder durch Kuratorbestellung trifft im vorliegenden Fall entgegen der Auffassung der Revisionsrekurswerberin nicht auf den „klassischen Anwendungsfall“ des § 121 Abs 2 ZPO, sondern auf die Ausnahme und unterläuft die Berufung der beklagten Partei auf die diplomatische Immunität. Ein Vorgehen nach dieser gesetzlichen Bestimmung kommt daher gerade hier nicht in Betracht. Es hat vielmehr—soweit es die gegenständliche Klageführung gegen die beklagte Partei im Inland betrifft—bei der vom Obersten Gerichtshof schon zu 8 ObA 201/00t begründeten Beschränkung auf den diplomatischen Weg zu bleiben. Selbst wenn man der beklagten Partei in konventionskonformer Auslegung der ZPO zwecks Wahrung des Grundsatzes der Waffengleichheit auch beim Streit um die Bestellung eines Kurators die Erhebung einer Revisionsrekursbeantwortung einräumt (vgl ÖJZ 2001, 516 [EGMR]; Rkv 1/01 [Oberste Rückstellungskommission beim OGH]; 6 Ob 281/ 01v; 4 Ob 133/02s ua), so hätte diese—ebenfalls unter Berücksichtigung des Grundsatzes der Waffengleichheit—innerhalb der Frist von 14 Tagen eingebracht werden müssen (§§ 521, 521a ZPO); dem Gegner kann nämlich für die Rechtsmittelbeantwortung keine längere Frist offenstehen als dem Rechtsmittelwerber für die Erhebung des Rechtsmittels (hier: 14 Tage nach § 521 Abs 1 ZPO). Die nach der Zustellung des Rekurses am 7. 1. 2003 erst am 4. 2. 2003 zur Post gegebene, sohin nach Ablauf von 14 Tagen erhobene Revisionsrekursbeantwortung des Kurators ist daher als verspätet zurückzuweisen. EE.I.1.f.-2
Supreme Court, Decision No. 2 Ob 156/03k, dated 28 August 2003 Oberster Gerichtshof, Beschluss 2 Ob 156/03k vom 28. August 2003
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Jurisdictional immunity of foreign state—military forces of the NATO—humanitarian assistance within the framework of IFOR/SFOR—intermediate landings of military aircraft on civil airport in forum state—neutrality—decisions of the UN Security Council under article 25 of the Charter—nature of the act—iure imperii Immunität eines ausländischen Staates von der Gerichtsbarkeit—Militärkräfte der NATO—humanitärer Einsatz im Rahmen der IFOR/SFOR—Zwischenlanduneng von Militärflugzeugen auf Zivilflughafen im Forum-Staat—Neutralität—Entscheidungen des Sicherheitsrates der Vereinten Nationen nach Artikel 25 der Satzung—Natur des Aktes—iure imperii Full text of the reasons of the decision (translation): The plaintiff is the company operating the [civil] airport of Linz-Hörsching. In a suit filed on 22 January 2003 [with the District Court of Linz], plaintiff claimed from respondent [the United States of America] payment of open accounts concerning airport charges for the use of the airport by [military airplanes] of the respondent for the purposes of intermediate landings in the course of humanitarian operations by NATO within the scope of IFOR/SFOR on the Balkans since 1995. It argued that according to the Federal [Civil] Aviation Law, the regulation concerning the civil use of the Linz airport, and the scale of charges and taxes of the airport Linz, the company was entitled to the payment of landing fees by the operating airline or the respective other operator of the aircraft for each landing. The amounts due by the respondent resulted from the period 15 April 2000 until 14 April 2001. The above mentioned scale of charges and taxes also contained a prorogatio fori providing for the jurisdiction ratione loci of the District Court of Linz. The District Court dismissed the claim a limine for the lack of adjudicative jurisdiction of domestic courts. In sum, it held that according to constant case law, foreign states were exempt from the jurisdiction of domestic courts pursuant to international law, i.e. to the extent that the acts concerned were performed in the exercise of sovereign authority pertaining to the foreign state. According to the written submissions it could be concluded that obviously military aircraft of the respondent party had carried out intermediate landings at the airport Linz-Hörsching within the framework of NATO’s IFOR/SFOR operation on the Balkans. According to the nature of the act and in applying general international law, the employment of a state’s airforce had to be seen as an act of public or governmental authority. Therefore, the respondent were exempt from the jurisdiction of domestic courts from allegedly owed landing fees for the landings carried out in the exercise of sovereign functions. Since the respondent had not waived its immunity and since the plaintiff had not argued that the respondent had otherwise submitted to the jurisdiction of domestic courts, the claim had to be dismissed. Plaintiff lodged an appeal with the Regional Court of Linz as Court of Appeal which rejected the appeal and held that a further appeal for revision [to the Supreme Court] were admissible. In the words of the Regional Court:
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“According to the established case law of the Supreme Court (beginning with Decision No. SZ 23/143 = EvBl 1950/3569), foreign states are, pursuant to international law, exempt from the jurisdiction of domestic courts only for acts which they perform in the exercise of the sovereign authority or power due to foreign states. Under domestic law as well, foreign states are subject to the domestic jurisdiction in all legal disputes arising out of private law relations. Apart from rules contained in international treaties, general international law provides for the principle of relative (i.e. restricted) immunity of states, which are exempt from domestic jurisdiction only for the exercise of their sovereign functions (acta iure imperii), but not also for the exercise of private law functions (acta iure gestionis). Hence it has always to be examined whether the activity of a state is a sovereign act or a transaction governed by private law, since a foreign state is granted immunity (i.e., exemption from the domestic jurisdiction) only with regard to the former (principle of restricted or relative immunity […]). In determining whether an act is to be qualified as a sovereign act or a transaction under private law, the prevailing practice does no longer look at the object or purpose of the state conduct (functional approach), but—independently thereof—bases its assessment on the nature of the act: Acts iure gestionis, and hence not covered by immunity, are considered all those acts which a subject of private law could also perform; in that respect, the state acts by resorting to private law instruments […]. In the present circumstances, the qualification of an act according to its ‘nature’ has eventually to be made in light of international law (EvBl 1988/ 118). In the present case, it has to be determined as to whether the landing of military aeroplanes by respondent (a fact which has been accepted by plaintiff in its appeal) at the airport LinzHörsching within the scope of IFOR/SFOR operations of NATO on the Balkans are to be qualified as a sovereign act or as a transaction under private law and whether the claims of plaintiff arising out of this activity of a foreign state can accordingly be invoked in domestic courts or not. At the outset the following has to be clarified: The IFOR and SFOR operations by NATO, respectively, are measures which have been established by the Dayton Peace Treaty and which are based, in terms of international law, on pertinent resolutions of the United Nations (Resolution of the [Security Council] of the United Nations 1031 [1995], Resolution 1035 [1995], Resolution 1088 [1996]); in these instruments, NATO was charged with the task of introducing peace to Bosnia-Herzegovina and to secure peace thereafter (cf. with regard to the history, the structure and the tasks of IFOR/SFOR the internet homepage http://www.nato.int/ifor and http://www.nato.int/sfor). Hence the employment of military forces including airplanes of respondent within the scope of IFOR/ SFOR operations authorized by the United Nations can no doubt be considered a sovereign act both according to its nature as well as in light of international law, an act which was implemented by and based on corresponding international treaties as well as resolutions of the Security Council of the United Nations. When a state has acted within the scope of an international treaty, this act is in any event one of a sovereign nature […]. In the above mentioned resolutions of the United Nations the member states of the United Nations were mandated to cooperate in the implementation of the IFOR/SFOR arrangement. 9
Dralle v. Republic of Czechoslovakia , translated in 17 ILR 155.
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It can be considered as generally recognized that Austria being a member of the United Nations has to accept such resolutions and had to give permission for the transit through air of foreign states within the scope of such measures which are unequivocally based on international law. This may well include the right to intermediate landings on domestic airports. Austria acted accordingly. The argument that the qualification of transit through air and the intermediate landings of foreign military aeroplanes as sovereign acts would mean a grave violation of Austrian neutrality is therefore not convincing. While it is prohibited to interfere with the territorial sovereignty of a foreign state by carrying out sovereign acts without the permission of the territorial state and in the absence of a title under international law […], this was precisely not the case in the present circumstances since, first, the required title under international law was given by the resolutions of the United Nations and because, secondly, it is a generally well-known fact that Austria, within the scope of its cooperation in implementing the IFOR/ SFOR arrangement, permitted the transit through air of airplanes of NATO states. The carrying out of a sovereign act by a foreign state on Austrian territory thus is not excluded in principle provided that it is permitted under international law. The allegation submitted by plaintiff for the first time in its appeal that the airplanes of respondent had been employed not in a military operation but within the framework of humanitarian assistance which would mean that the act was not one of sovereign quality but rather a transaction under private law, is not convincing either. A humanitarian operation too can be carried out by the military. The appellant obviously confuses combat operations with the employment of the military in general. It does therefore not follow that the use of the military in carrying out humanitarian tasks is an act per se of a private law character. While, in the view of the deciding chamber of the appellate court, it is indisputable that the employment of aircraft of respondent within the scope of IFOR/SFOR operations was in principle a sovereign act, it nevertheless remains to be examined whether the intermediate landing at an Austrian civil airport can be qualified as a transaction under private law, for instance because it probably is only a measure assisting in or auxiliary to the performance of a sovereign operation and because—as already elaborated—the distinction between sovereign acts and transactions governed by private law has to be made according to the nature and not the purpose of the act; it therefore has to be determined whether the act could have also be performed by a private law subject. At least with regard to domestic law, established case law [of the Supreme Court] stipulates that whenever a task is of a sovereign nature all conduct in connection with its performance has to be considered as undertaken in executing the laws, provided that they show a sufficiently close internal and external connection with the sovereign task (1 Ob 29/ 02z). This is particularly the case if the activity serves overwhelmingly the protection of the general public and thus public interests. The realm of activity whose subject is to perform sovereign or governmental acts, is to be considered sovereign or governmental in its entirety even if individual parts of this task are carried out in such a way that according to their external manifestation they could also be undertaken by any [private] person (1 Ob 56/98m). In the view of the deciding chamber of the appellate court, these distinguishing criteria, developed by the Supreme Court in the context of domestic law, may also be applied in the context of the similar distinction under international law in delimitating of sovereign acts from transactions governed by private law. Since—as already shown—the employment of the respondent’s aeroplanes within the scope
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of IFOR or SFOR operations, respectively, are sovereign acts based upon international law, the landings of these aeroplanes show such a close internal and external connection with the sovereign task that in light of the cited case law of the Supreme Court one reaches the conclusion that these landings themselves are to be qualified as sovereign acts too forming an indivisible part of the operation which serves sovereign tasks. Thus while the use of a civil airport for an intermediate landing may, if detached from the context and adjudged according to its nature, be qualified as an act of a private law character since this may also be performed by a private law subject, as argued by plaintiff in his claim with reference to legal sources which are to be classified as pertaining to the private law (the regulation concerning the civil use of the airport, and the scale of charges and taxes of the airport), these (intermediate) landings have to be seen against the background and in the context of the entire operation. Therefore the appellate chamber is of the view that these landings of aeroplanes of respondent too formed part of the sovereign activity, hence the claims of plaintiff deriving from this activity may not be decided by a domestic court. Besides, according to the case law of the Supreme Court any activity of a state within the scope of an international treaty must be considered to be sovereign […], and, what is more, any use of military means is a sovereign act, hence claims arising out of such activity do not fall within the domestic jurisdiction […].”
The Court of Appeal declared the ordinary further appeal for revision10 [to the Supreme Court] admissible since there was no case law by the Supreme Court concerning the question at issue (i.e., state immunity with regard to international operations authorized by the United Nations pursuant to international law) and since to date the question had not been decided as to whether the criteria on the distinction between sovereign and private acts established by the Supreme Court in the context of domestic law were applicable also to a comparable case to be decided under international law. The plaintiff’s appeal for revision, based on the argument of incorrect legal assessment11 by the Court of Appeal, is directed against this decision. In his appeal for revision, plaintiff requests that revision be granted to the effect that the dismissal of the claim due to lack of domestic jurisdiction be repealed or, in the alternative, that the decision of the Court of Appeal be revoked and that the case be remanded to the Court of Appeal or the Court of First Instance, respectively, for a new hearing and decision. The appeal for revision is admissible […] but unfounded. Since the decision of the Court of Appeal follows the established case law and reflects detectable and available doctrine (in the field of procedural and international law), the deciding chamber can confine itself to give the following summary opinion, taking into account the submission of plaintiff in his appeal for revision: In his appeal for revision too, the appellant explicitly concedes that the landings on the airport operated by him, which are the subject of the present proceedings, were carried out by military aeroplanes by respondent. He further submitted that since the airport was a civil one, these intermediate landings were to be qualified as
10
Revisionsrekurs.
11
Unrichtige rechtliche Beurteilung.
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transactions under private law and, hence, the fact that the aeroplanes that had landed were military ones was irrelevant; the landings within the scope of the IFOR/SFOR operation could have been undertaken by civil aeroplanes as well. The important fact rather was that the aeroplanes were not used for a military but for a humanitarian operation. The United Nations resolutions cited by the Court of Appeal could not be equated with an international treaty; [and, finally,] Austria, in its transit agreement concluded with NATO, did not waive the claim for compensation which is the subject of the present proceedings. Considering these submissions, the Supreme Court holds the following: According to international law, foreign states are exempt from the jurisdiction of domestic courts only for acts they have performed in the exercise of sovereign authority which is vested in them; also under domestic law, foreign states are only subject to domestic jurisdiction with regard to legal disputes arising out of private law relations […]. This is a corollary of the principle of sovereign equality of states in international law […] including the principle of territorial supremacy derived there from […]. Acts iure imperii are to be distinguished from acts iure gestionis not according to the pertinent domestic law but pursuant to general international law (Schreuer, Die Durchsetzung zivilrechtlicher Ansprüche gegen ausländische Staaten,12 Österreichische Juristenzeitung 1991, page 41, at page 44). The military use of a state’s airforce is in any event a sovereign act […]. If a state has carried out an activity within the scope of an international treaty, this activity likewise is to be considered sovereign […]. This is also valid for those resolutions of the Security Council of the United Nations—Austria being a member to the United Nations since 14 December 1955 (Federal Law Gazette 1956/120)—which are legally binding (Article 25 of the UN Charter: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”; Verdross/Simma, Universelles Völkerrecht, 3rd edition, §§ 98 and 159; see also H. Winkler, “Die einfachgesetzliche Umsetzung der österreichischen Neutralität”, in W. Hummer (Hrsg.), Sicherheit und Terrorismus. Rechtsfragen aus universeller und regionaler europäischer Sicht. Tagungsband zum 27. Österreichischen Völkerrechtstag, Meran 200013, 331, at 338 (2005), who states that “resolutions of the Security Council with reference to chapter VII and in using the terminology of article 25 of the Charter are binding upon all member states of the United Nations and hence prevail over any other obligation pursuant to article 103 of the Charter, including obligations arising out of neutrality”.). In this context, the Court of Appeal
12
Title in English: “The Enforcement of Private Law Claims against Foreign States”.
13
Title in English: H. Winkler, “The Implementation of Austria’s Neutrality by Statutory Law”, in W. Hummer (ed.), Security and Terrorism. Legal Questions from a Universal and a Regional European Perspective. Proceedings of the 27th Meeting of the Austrian Society of International Law, Meran 2000, 321, at 338 (2005).
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has already referred to the relevant resolutions of the Security Council 1031 (1995) and 1088 (1996) […]. But if the flights of the respondent state thus have served sovereign purposes (which has not been contested by the plaintiff himself), not only these “state aircraft” enjoyed full immunity ([…] Seidl-Hohenveldern/Stein, Völkerrecht, 10th edition, marginal notes 1493-1494) but also the foreign state as a subject of international law (and as owner and dispatcher of the aircraft)—irrespective of what those aircraft carried as cargo (as, e.g., relief supplies in the present case). To this extent, the acts concerned were in any case sovereign acts of the state (on the basis of a resolution of the Security Council under chapter VII of the Charter of the United Nations; acta iure imperii: Neuhold/Hummer/Schreuer, Österreichisches Handbuch des Völkerrechts, 3 rd edition, vol. 1, marginal notes 834 et seq.; Ipsen, Völkerrecht, marginal notes 17 et seq.). Even plaintiff does not argue that the landings of military aeroplanes of the United States at an Austrian private airport, which form the subject of the present proceedings, were carried out as a “private” activity and not within the framework of an activity authorized by the United Nations. After all, in its (implementation) agreement with NATO on the transit for the purposes of the multinational peace operation in Bosnia (IFOR), Federal Law Gazette 1995/869— which for present purposes is also applicable to the “multinational stabilization force SFOR” since the latter is the “legal successor of IFOR” and likewise established by the Security Council, Resolution 1088, dated 12 December 1996, section II, para. 18— the Republic of Austria allowed “the unimpeded transit over land, rail, road, water or through air of all personnel and cargo, equipment, goods and material of whatever kind, including ammunition”; Austria moreover agreed that any “aircraft in transit shall not be subject to licensing or registration requirements” and that it “shall take all the measures possible to permit NATO to use airports […] without payment of duties, dues, tolls or charges”. Neither is it possible to claim such payments indirectly via the particular state employing such an aeroplane. The lower courts have thus correctly dismissed the claim a limine due to the lack of domestic jurisdiction. The decision of the Court of Appeal confirming the dismissal was therefore to be upheld, and it was not necessary in this regard to request the Federal Ministry of Justice on a declaration pursuant to article IX (3) of the Introductory Law on Jurisdiction14 on the existence and the extent of the immunity invoked [by plaintiff]. German original: Die klagende Partei ist Betreiberin des Flughafens Linz-Hörsching. Mit der am 22. 1. 2003 eingebrachten Klage begehrt sie von der beklagten Partei die Zahlung des Klagebetrages für offene Rechnungen betreffend Landegebühren durch Flugzeuge
14
Einführungsgesetz zur Jurisdiktionsnorm. Article IX (3) of this Law provides that in case of doubt as to whether a person enjoys immunity before Austrian courts, the court seized of the dispute has to request a declaration on this question from the Federal Ministry of Justice.
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der beklagten Partei bzw Benützung ihres Flughafens im Rahmen des IFOR/SFOREinsatzes der NATO am Balkan seit 1995. Nach den Bestimmungen des Luftfahrtgesetzes, der Zivilen Flugplatzbenützungsbedingungen und ihrer (eigenen) Tarifund Entgeltordnung habe die klagende Partei bei jeder Landung auf dem genannten Flughafen Anspruch auf Bezahlung von Landegebühren durch die Fluglinie bzw den jeweiligen Halter des Flugzeuges. Die von der beklagten Partei geschuldeten Beträge resultierten aus dem Zeitraum 15. 4. 2000 bis 13. 4. 2001. Nach der genannten Tarifund Entgeltordnung gelte überdies eine Gerichtsstandvereinbarung, nach welcher das sachlich zuständige Gericht in Linz und damit das angerufene Erstgericht örtlich zuständig sei. Das Erstgericht wies die Klage a limine wegen mangelnder inländischer Gerichtsbarkeit zurück. Es führte—zusammenfassend—aus, dass nach ständiger Rechtsprechung ausländische Staaten nach Völkerrecht insoweit der Gerichtsbarkeit der inländischen Gerichte entzogen seien, als es sich um Akte handle, die sie in Ausübung der ihnen zustehenden Hoheitsgewalt vorgenommen hätten. Aus dem Klagevorbringen könne geschlossen werden, dass offensichtlich Militärflugzeuge der beklagten Partei im Rahmen des IFOR/SFOR-Einsatzes der NATO am Balkan Zwischenlandungen am Flughafen Linz-Hörsching durchgeführt hätten. Beim Einsatz der Luftwaffe eines Staates handle es sich der Natur nach und bei Abstellen auf das allgemeine Völkerrecht um einen hoheitlichen Staatsakt. Die beklagte Partei sei daher wegen der in Ausübung hoheitlicher Funktionen durchgeführten Landungen hinsichtlich allenfalls geschuldeter Landegebühren der inländischen Gerichtsbarkeit entzogen. Da ein Immunitätsverzicht von Seiten der beklagten Partei bzw eine Unterwerfung unter die inländische Gerichtsbarkeit von der klagenden Partei nicht vorgebracht worden sei, sei die Klage sohin zurückzuweisen. Das von der klagenden Partei angerufene Rekursgericht gab deren Rechtsmittel nicht Folge und sprach weiters aus, dass der ordentliche Revisionsrekurs zulässig sei. Es führte in rechtlicher Hinsicht Folgendes wörtlich aus: „Nach ständiger Rechtsprechung des Obersten Gerichtshofes (beginnend mit Spruchrepertorium Nr 28 = SZ 23/143 = EvBl 1950/356; RIS-Justiz RS0045581 mwN) sind ausländische Staaten nach Völkerrecht nur insoweit der Gerichtsbarkeit der inländischen Gerichte entzogen, als es sich um Akte handelt, die sie in Ausübung der ihnen zustehenden Hoheitsgewalt vorgenommen haben. Auch nach innerstaatlichem Recht sind also ausländische Staaten in allen Rechtsstreitigkeiten aus Privatrechtsverhältnissen der inländischen Gerichtsbarkeit unterworfen. Abgesehen von völkervertragsrechtlichen Regelungen gilt nach herrschendem allgemeinen Völkerrecht der Grundsatz der relativen (beschränkten) Immunität der Staaten, die nur in Ausübung ihrer hoheitlichen Funktionen (acta iure imperii), nicht aber in Ausübung privatrechtlicher Funktionen (acta iure gestionis), der inländischen Gerichtsbarkeit entzogen sind (SZ 68/72). Es ist also stets zu prüfen, ob beim Handeln eines Staates ein Hoheitsakt oder ein privatrechtsgeschäftlicher Akt vorliegt, da einem ausländischen Staat Immunität (Exemtion von der inländischen Gerichtsbarkeit) nur für den erstgenannten Bereich
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zuerkannt wird (Prinzip der eingeschränkten oder relativen Immunität; vgl dazu ausführlich Matscher in Fasching2 I, Rz 203 ff zu Artikel IX EGJN). Zur Beurteilung, ob ein Akt als hoheitlich oder privatrechtsgeschäftlich zu qualifizieren ist, wird heute in erster Linie nicht mehr von der Zweckrichtung des staatlichen Handelns (funktionale Betrachtungsweise), sondern—unabhängig von dieser—von der Natur des Aktes ausgegangen: Als privatrechtsgeschäftlich, und daher als nicht von der Immunität erfasst, sind alle jene Akte anzusehen, die auch ein Privatrechtssubjekt vornehmen könnte; dabei handelt der Staat im Prinzip auch nach den Rechtsformen des Privatrechtes (Matscher aaO, Rz 208 mwN; OGH JBl 1962, 43; vgl auch Schreuer, Die Durchsetzung zivilrechtlicher Ansprüche gegen ausländische Staaten, ÖJZ 1991, 41 [42 ff]). Die Qualifikation eines Aktes nach seiner ‚Natur‘ ist im vorliegenden Zusammenhang letztlich im Lichte des Völkerrechtes vorzunehmen (EvBl 1988/118). Im vorliegenden Fall ist daher nunmehr zu beurteilen, ob eine Landung von Militärflugzeugen (davon geht die klagende Partei in ihrem Rekurs selbst aus) der beklagten Partei auf dem Flughafen Linz-Hörsching im Rahmen des IFOR/SFOREinsatzes der NATO am Balkan als hoheitlicher oder privatrechtsgeschäftlicher Akt zu qualifizieren ist und demnach die von der klagenden Partei aus diesem Handeln eines ausländischen Staates abgeleiteten Ansprüche vor den inländischen Gerichten geltend gemacht werden können oder nicht. Zunächst ist hier Folgendes klarzustellen: Beim IFOR bzw SFOR-Einsatz der NATO handelt es sich um im Friedensvertrag von Dayton installierte, durch entsprechende Resolutionen der Vereinten Nationen (UNO-Resolution 1031 [1995], Resolution 1035 [1995], Resolution 1088 [1996]) völkerrechtlich abgesicherte Maßnahmen, wodurch die NATO die Aufgabe erhielt, in Bosnien-Herzegowina den Frieden einzuführen und danach abzusichern (vgl zur Geschichte, Aufbau und Aufgaben von IFOR/SFOR die Homepage im Internet: http://www.nato.int/ifor bzw sfor). Zweifellos kann es sich deshalb beim Einsatz des Militärs und auch von Flugzeugen der beklagten Partei im Rahmen des von der UNO angeordneten IFOR bzw SFOR-Einsatzes an sich sowohl seiner Natur nach als auch im Lichte des Völkerrechtes nur um einen hoheitlichen Akt handeln, der durch entsprechende völkerrechtliche Verträge bzw durch Resolutionen des UN-Sicherheitsrates implementiert und abgesichert wurde. Hat ein Staat im Rahmen eines völkerrechtlichen Vertrages gehandelt, liegt jedenfalls hoheitliches Handeln vor (SZ 36/26 = EvBl 1963/210; Matscher aaO Rz 204). In den angesprochenen UNO-Resolutionen wurde den Mitgliedstaaten der UNO auch aufgetragen, bei der Verwirklichung des IFOR- bzw SFOR-Planes mitzuwirken. Es kann als allgemein bekannt vorausgesetzt werden, dass Österreich als Mitglied der UNO derartige Resolutionen zu akzeptieren hat und im Rahmen solcher völkerrechtlich einwandfrei abgesicherter Maßnahmen auch Überflugsgenehmigungen für ausländische Staaten, worin wohl auch das Recht zu Zwischenlandungen auf inländischen Flughäfen enthalten ist, zu gewähren hatte und solche auch gewährte. Das Argument, die Qualifizierung des Überfluges und Zwischenlandens ausländischer Militärflugzeuge als Hoheitsakte würde einen gravierenden Verstoß gegen die Neutralität Österreichs bedeuten, ist daher nicht stichhältig. Zwar darf in die Gebiets-
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hoheit eines fremden Staates durch Setzung von Hoheitsakten ohne dessen Einwilligung oder Vorliegen eines anderen völkerrechtlichen Titels nicht eingegriffen werden (vgl SZ 68/81; RIS-Justiz RS0053183), jedoch war dies gerade hier nicht der Fall, weil hier ja zum einen ein entsprechender völkerrechtlicher Titel auf Grund von UN-Resolutionen gegeben war und es eine allgemein bekannte Tatsache ist, dass Österreich im Rahmen der Mitwirkung an der Durchführung dieses IFOR- bzw SFORPlanes die Einwilligung für Überflüge durch Flugzeuge der NATO-Mitgliedsstaaten erteilte. Die Setzung eines Hoheitsaktes durch einen ausländischen Staat im Staatsgebiet von Österreich ist somit nicht grundsätzlich ausgeschlossen, wenn ein solcher dementsprechend völkerrechtlich zulässig ist. Auch die von der Rekurswerberin in ihrem Rechtsmittel erstmals aufgestellte Behauptung, die Flugzeuge der beklagten Partei seien nicht im militärischen Einsatz gewesen, sondern im humanitären Einsatz, sodass ein privatrechtsgeschäftlicher Akt und kein Hoheitsakt vorgelegen sei, ist keineswegs stichhältig. Auch ein humanitärer Einsatz kann durch das Militär erfolgen. Die Rekurswerberin verwechselt hier offensichtlich Kampfeinsatz (Kriegshandlungen) mit dem Einsatz des Militärs an sich. Es ist daher nicht zwingend, dass es sich beim Einsatz des Militärs zur Erfüllung humanitärer Aufgaben per se um privatrechtliche Akte handle. Wenngleich nach Ansicht des Rekurssenates feststeht, dass der Einsatz der Flugzeuge der beklagten Partei im Rahmen des IFOR/SFOR-Einsatzes grundsätzlich einen Hoheitsakt darstellte, bleibt dennoch zu prüfen, ob die Zwischenlandung auf einem österreichischen Zivilflugplatz nicht als privatrechtsgeschäftlicher Akt zu qualifizieren ist, etwa weil es sich möglicherweise nur um eine Begleit- oder Hilfsmaßnahme zur Erfüllung des hoheitlichen Einsatzes handelte, und weil—wie bereits ausgeführt—bei der Unterscheidung zwischen hoheitlichem und privatrechtsgeschäftlichem Handeln auf die Natur des Aktes und nicht auf die Zweckrichtung des Aktes abzustellen ist, also zu fragen ist, ob diesen Akt auch ein Privatrechtssubjekt vornehmen hätte können. Zumindest zum innerstaatlichen Recht entspricht es jedoch ständiger oberstgerichtlicher Rechtsprechung, dass dann, wenn eine Aufgabe ihrem Wesen nach hoheitlicher Natur ist, auch alle mit ihrer Erfüllung verbundenen Verhaltensweisen als in Vollziehung der Gesetze erfolgt anzusehen sind, wenn sie nur einen hinreichend engen inneren und äußeren Zusammenhang mit der hoheitlichen Aufgabe aufweisen (RIS-Justiz RS0049948; zuletzt 1 Ob 29/02z). Das ist insbesondere dann der Fall, wenn die Tätigkeit zum überwiegenden Teil dem Schutz der Allgemeinheit und damit öffentlichen Interessen dient. Der Tätigkeitsbereich, der die Wahrnehmung hoheitlicher Aufgaben zum Gegenstand hat, ist einheitlich als hoheitlich anzusehen, selbst wenn einzelne Teile dieser Aufgabe so erfüllt werden, wie sie für sich genommen nach diesem äußeren Erscheinungsbild von jedermann vorgenommen werden könnten (1 Ob 56/98m). Nach Auffassung des erkennenden Senates sind diese vom Obersten Gerichtshof zum innerstaatlichen Recht entwickelten Abgrenzungskriterien auch im Zusammenhang mit der durchaus vergleichbaren Abgrenzung zwischen hoheitlich oder privatrechtsgeschäftlich im Zusammenhang mit dem Völkerrecht heranzuziehen.
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Da es sich—wie bereits dargelegt wurde—beim Einsatz der Flugzeuge der beklagten Partei im Rahmen des IFOR- bzw SFOR-Einsatzes der NATO um einen völkerrechtlich abgesicherten hoheitlichen Akt handelte, weisen auch die Landungen dieser Flugzeuge auf dem Flughafen der klagenden Partei einen derartigen engen inneren und äußeren Zusammenhang mit der hoheitlichen Aufgabe auf, sodass man im Lichte der zitierten oberstgerichtlichen Judikatur zum Ergebnis gelangt, dass auch diese Landungen selbst als untrennbarer Teil dieses hoheitlichen Aufgaben dienenden Einsatzes als hoheitlich zu beurteilen sind. Mag daher auch—wie dies die Rekurswerberin vermeint—die Benützung eines Zivilflugplatzes für eine Zwischenlandung isoliert betrachtet ihrer Natur nach als privatrechtsgeschäftlich zu qualifizieren sein, da diese auch ein Privatrechtssubjekt vornehmen könnte, und stützt sie sich in ihrer Klage auf zivilrechtlich zu klassifizierende Rechtsgrundlagen (Zivile Flugplatzbenützungsbedingungen, Tarif- und Entgeltordnung), müssen doch diese (Zwischen)Landungen vor dem Hintergrund und im Zusammenhang mit dem Gesamteinsatz betrachtet werden, weshalb der erkennende Senat der Auffassung ist, dass auch diese Landungen der Flugzeuge der beklagten Partei einen Bestandteil des hoheitlichen Handels darstellten und daher über die daraus abgeleiteten Ansprüche der klagenden Partei nicht durch die inländischen ordentlichen Gerichte zu entscheiden ist. Abgesehen davon liegt nach oberstgerichtlicher Rechtsprechung jedenfalls hoheitliches Handeln vor, wenn ein Staat im Rahmen eines völkerrechtlichen Vertrages gehandelt hat (SZ 36/26 = EvBl 1963/210) und ist darüberhinaus auch der Einsatz militärischer Mittel jedenfalls als Hoheitsakt zu beurteilen, weshalb für daraus abgeleitete Ansprüche keine inländische Gerichtsbarkeit besteht (10 Ob 525/94 = SZ 68/72 = IPRax 1996/41).“ Der ordentliche Revisionsrekurs wurde für zulässig erklärt, weil zur hier relevanten Frage (Staatenimmunität bei internationalen, von der UNO völkerrechtlich mandatierten Einsätzen) keine höchstgerichtliche Judikatur vorliege und bisher auch nicht entschieden worden sei, ob die vom Obersten Gerichtshof zum innerstaatlichen Recht entwickelten Kriterien zur Unterscheidung zwischen hoheitlichem und privatrechtlichem Handeln des Staates auch auf einen vergleichbaren nach Völkerrecht zu beurteilenden Fall anzuwenden seien. Gegen diese Entscheidung richtet sich der auf den Rechtsmittelgrund der unrichtigen rechtlichen Beurteilung gestützte Revisionsrekurs der klagenden Partei mit dem Antrag, in Stattgebung des Rechtsmittels die Zurückweisung der Klage wegen mangelnder inländischer Gerichtsbarkeit aufzuheben, in eventu den Beschluss des Rekursgerichtes aufzuheben und die Rechtssache zur Verhandlung und Entscheidung an dieses bzw an das Erstgericht zurückzuverweisen. Der Revisionsrekurs ist zulässig (§ 528 Abs 1 iVm Abs 2 Z 2 zweiter Halbsatz ZPO), jedoch nicht berechtigt. Da die Entscheidung des Rekursgerichtes dem Stand der Rechtsprechung und—soweit überschau- und verfügbar -auch des (verfahrensund völkerrechtlichen) Schrifttums entspricht, kann sich der erkennende Senat—unter Berücksichtigung der Revisionsrekursausführungen—hiebei auf folgende zusammenfassende (§§ 528a iVm 510 Abs 3 ZPO) Stellungnahme beschränken:
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Auch im Revisionsrekurs wird von der Rechtsmittelwerberin ausdrücklich zugestanden, dass die verfahrensgegenständlichen Landungen auf ihrem Flughafen durch Militärflugzeuge der beklagten Partei erfolgten; da es sich hiebei jedoch um einen Zivilflugplatz handle, seien deren Zwischenlandungen als privatrechtsgeschäftlich zu qualifizieren, sodass letztlich dem Umstand, dass es sich um Militärflugzeuge gehandelt habe, keine Bedeutung zukomme; ebensogut hätten die Landungen im Rahmen des IFOR/SFOR-Einsatzes auch durch Zivilflugzeuge erfolgen können. Maßgeblich sei vielmehr, dass sich die Flugzeuge nicht im militärischen, sondern im humanitären Einsatz befunden hätten. Die vom Rekursgericht zitierten UN-Resolutionen seien einem völkerrechtlichen Vertrag nicht gleichzuhalten; Österreich habe im Zuge seines mit der NATO geschlossenen Transitabkommens den verfahrensgegenständlichen Entgeltanspruch auch nicht ausgeschlossen. Hiezu ist Folgendes zu erwidern: Ausländische Staaten sind nach Völkerrecht nur insoweit von der Gerichtsbarkeit der inländischen Gerichte eximiert, als es sich um Akte handelt, die sie in Ausübung der ihnen zustehenden Hoheitsgewalt vorgenommen haben; lediglich in Rechtsstreitigkeiten aus Privatrechtsverhältnissen sind ausländische Staaten auch nach innerstaatlichem Recht der inländischen Gerichtsbarkeit unterworfen (RIS-Justiz RS0045581, RS0032107). Dies folgt aus dem völkerrechtlichen Grundsatz der souveränen Gleichheit aller Staaten (Ipsen, Völkerrecht4 334 Rn 16; Vitzthum, Völkerrecht2 Rn 91 ff unter Hinweis auf Art 2 Z 1 UN-Charta) samt daraus abgeleitetem Grundsatz der Territorialhoheit (RIS-Justiz RS0053183). Akte iure imperii sind hiebei von solchen iure gestionis nicht nach dem jeweiligen innerstaatlichen Recht, sondern nach dem allgemeinen Völkerrecht abzugrenzen (Schreuer, Die Durchsetzung zivilrechtlicher Ansprüche gegen ausländische Staaten, ÖJZ 1991, 41 [44]). Der militärische Einsatz der Luftwaffe eines Staates ist jedenfalls hoheitlicher Staatsakt (10 Ob 525/94, SZ 68/72; RIS-Justiz RS0045472; Matscher in Fasching I2 Rz 206a zu Art IX EGJN). Hat ein Staat im Rahmen eines völkerrechtlichen Vertrages gehandelt, so liegt ebenfalls hoheitliches Handeln vor (Matscher, aaO Rz 204 unter Hinweis auf SZ 36/26). Selbiges muss bei vom Sicherheitsrat der Vereinten Nationen, deren Mitglied Österreich seit 14. 12. 1955 ist (BGBl 1956/120), beschlossenen Resolutionen gelten, denen Rechtsverbindlichkeit zukommt (Art 25 UN-Charta: „Die Mitglieder der Vereinten Nationen kommen überein, die Beschlüsse des Sicherheitsrates gemäß der vorliegenden Satzung anzunehmen und durchzuführen.“; Verdross/Simma, Universelles Völkerrecht3 §§ 98 und 159; vgl auch Winkler, Die einfachgesetzliche Umsetzung der österr Neutralität, In Tagungsband zum 27. Österr Völkerrechtstag, Meran 2000, 1 [16]—im Druck—, wonach „Beschlüsse des Sicherheitsrates unter Berufung auf Kapitel VII und in entsprechender Diktion gemäß Art 25 SVN [Satzung Vereinte Nationen] für alle Mitgliedstaaten der UN= verbindlich sind und deshalb iS von Art 103 SVN allen anderen Verpflichtungen, auch den Verpflichtungen aus der Neutralität, vorgehen“). Das Rekursgericht hat diesbezüglich bereits auf die maßgeblichen Sicherheitsresolutionen 1031 (aus 1995) und 1088 (aus 1996) verwiesen (beide im Volltext in deutscher Sprache auch abrufbar unter www.
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un.org/documents samt Link zu „Documents in German“). Dienten aber die Flüge der beklagten Partei (was von der Klägerin selbst gar nicht in Abrede gestellt wird) solcherart hoheitlichen Zwecken, dann genossen nicht nur diese „Staatsflugzeuge“ volle Immunität (Matscher, aaO Rz 239; Seidl-Hohenveldern/Stein, Völkerrecht10 Rn 1493 f), sondern auch der (als Eigentümer und Entsender) dahinterstehende ausländische Staat als Völkerrechtssubjekt—gleichgültig, mit welchem Transportgut (etwa—wie hier behauptet—Hilfsgüter) diese Maschinen beladen waren. Insoweit lag also in jedem Falle hoheitliches staatliches Handeln (auf Grund eines Beschlusses des Sicherheitsrates gemäß Kapitel VII der Charta der Vereinten Nationen) vor (acta iure imperii: Neuhold/Hummer/Schreuer, Österr. Handbuch des Völkerrechts3, Bd 1 Rz 834 ff; Ipsen, aaO Rn 17 ff), wobei die Klägerin selbst nicht einmal behauptet, dass die verfahrensgegenständlichen Landungen US-amerikanischer Militärflugzeuge auf einem österreichischen Privatflugplatz nicht im Rahmen dieses von der UNO autorisierten, sondern eines bloß „privaten“ Handelns erfolgt wären. Schließlich hat die Republik Österreich im (Durchführungs-)Abkommen mit der NATO über den Transit zum Zweck des multinationalen Friedenseinsatzes in Bosnien (IFOR), BGBl 1995/869—insoweit auch auf die „multinationale Stabilisierungstruppe SFOR“ („multinational stabilization force SFOR”) anzuwenden, handelt es sich doch bei dieser um die ebenfalls sicherheitsratsmäßig eingesetzte „Rechtsnachfolgerin der Friedensumsetzungtruppe IFOR“ (“legal successor of IFOR”, UN-Resolution 1088 vom 12. 12. 1996, Abschn II P 18)—, nicht nur „sämtlichem Personal“ sowie für „Fracht, Ausrüstung, Waren und Material jeglicher Art einschließlich Munition“ den „ungehinderten Transit über Land, Bahn, Straße, Wasser oder in der Luft“ erlaubt, sondern darüber hinaus auch davon betroffene Flugzeuge „beim Transit von sämtlichen Zulassungs- oder Genehmigungsverfahren befreit“ und erklärt, „alle möglichen Maßnahmen (zu treffen), um der NATO den Gebrauch von Flughäfen ... ohne die Bezahlung von Abgaben, Gebühren, Mauten oder Belastungen zu ermöglichen.“ Hiedurch ist es auch nicht möglich, im Umweg über einen einzelnen Entsendestaat eines solchen Flugzeuges derartige Gebühren einbringlich zu machen. Die Vorinstanzen haben somit zutreffend die Klage wegen fehlender inländischer Gerichtsbarkeit a limine zurückgewiesen. Der bestätigende Zurückweisungsbeschluss des Rekursgerichtes war damit zu bestätigen, ohne dass sich diesbezüglich die Notwendigkeit einer Anfrage über Bestand und Ausmaß der relevierten Immunität an das Bundesministerium für Justiz gemäß Art IX Abs 3 EGJN ergibt (vgl Matscher, aaO Rz 190 ff). II.
International organisations/Internationale Organisationen
1.
In general/Allgemeines
c.
Legal effect of acts of international organisations/Rechtswirkung von Akten internationaler Organisationen
See EE.I.1.f.-2
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Other subjects of international law and entities and groups(Andere Völkerrechtssubjekte, Einheiten und Gruppen
4.
Mandated and trust territories/Treuhand- und Mandatsgebiete
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See FF.VII.4.-1.
FF.
The position of the individual (including the corporation) in international law/Die Stellung der Einzelperson (einschließlich der juristischen Person) im Völkerrecht
IV.
Members of minorities/Angehörige von Minderheiten
Constitutional Court, Judgment No. G 213/01, V 62/01 et al., dated 13 December 2001 Verfassungsgerichtshof, Erkenntnis G 213/01, V 62/01 u.a. vom 13. Dezember 2001 Article 7(3) State Treaty of Vienna of Austria—obligation to put up bilingual villages (“topographical terminology members of minority to form “mixed 7(3)—preparatory works
15 May 1955—rights of Slovene minority in sign posts indicating the names of towns and and inscriptions”)—relevant percentage of population”—object and purpose of article
Artikel 7 Abs. 3 des Staatsvertrages von Wien vom 15. Mai 1955—Rechte der slowenischen Minderheit in Österreich—Verpflichtung zur Aufstellung zweisprachiger Ortstafeln („Bezeichnungen und Aufschriften topographischer Natur“)—relevante Prozentzahl der Mitglieder der Minderheit iS einer „gemischten Bevölkerung“—Ziel und Zweck von Artikel 7 Abs. 2—vorbereitende Arbeiten Facts The case arose out of administrative proceedings against a member of the Slovene minority in Carinthia (the complainant) who was fined for exceeding the speed limit within town and village areas. According to § 20 of the Austrian Road Code,15 the speed limit within the boundaries of town and village areas is 50 km/h, the limits of these areas being indicated by signposts showing the name of the town or village. In present case, the signpost indicated the name of that village only in German and not also in the Slovene language because the relevant decree under § 2(1)2 of the Ethnic Groups Act did not consider the region to which that village belongs as inhabited by a relatively high number (i.e. 25%) of members of the Slovene minority. The complainant did not contest the fact that he exceeded the prescribed speed limit but argued that since the name of the village on the sign was only in German and not also
15
Straßenverkehrsordnung—StVO.
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in the Slovene language as required by article 7(3) of the State Treaty of Vienna of 1955 the sign post had not been put up validly and, therefore, he was not obliged to comply with the speed limit. Article 7 of the State Treaty of Vienna of 1955 obliges Austria to provide for specific minority rights to the Slovene and Croat minorities in Austria. Article 7(3), which enjoys constitutional rank, reads as follows: In the administrative and judicial districts of Carinthia, Burgenland and Styria, where there are Slovene, Croat or mixed populations, the Slovene or Croat languages shall be accepted as an official language in addition to German. In such districts topographical terminology and inscriptions shall be in the Slovene and Croat language as well as in German.
In order to implement its minority obligations under the State Treaty, Austria enacted the Ethnic Groups Act in 1976.16 § 2 of that Act provides as follows:17 § 2. (1) The following shall be laid down by decrees18 of the Federal Government in agreement with the Main Committee of the National Council19 after hearing the Provincial Governments concerned: 1. the ethnic groups for which an Ethnic Group Advisory Council20 shall be established as well as the number of its members; 2. the regions in which, because of the relatively high number (one quarter) of the members of the ethnic group resident there, topographical inscriptions shall be in two languages; 3. The public authorities and offices in which in addition to the German official language the use of the language of an ethnic group shall be accepted, with the proviso that the right of using such language may be limited to certain persons or affairs. (2) When issuing the decree provided for in paragraph 1 and in implementing Section III of the present Federal Act, existing obligations under international law must be observed. In addition, the numerical size of the ethnic group, the distribution of its members over the federal territory, the proportion of its size to that of other Austrian citizens in a given region as well as its special needs and interest in maintaining and safeguarding its future existence shall be taken into consideration. Account shall also be taken of the results of official statistical surveys or census.
16
Volksgruppengesetz, Federal Law Gazette 1976/396.
17
Unofficial translation by the author.
18
Verordnungen.
19
Hauptausschuss des Nationalrates. This is the main committee of the lower house of parliament.
20
Volksgruppenbeirat. This Council consists of representatives of the various ethnic minorities in Austria.
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The explanatory report to that provision states: With regard to the topographical inscriptions it must be noted that the draft [which then became the law] proceeds on the assumption that such inscriptions should be indicated in regions in which a relatively high number of members of ethnic groups are resident. This provision conforms in essence to the so called provisions on minority protection that are well known in international law and it also conforms to the needs of the members of the ethnic groups. For the purpose of interpretation of the term “relatively high number” of members of ethnic groups, which, parenthetically, has been taken from article 68 of the State Treaty of Saint Germain, the draft refers to one quarter of the population as an indicator. By inserting this provision, the draft was influenced by the “statuto speciale per le minoranze” that is annexed to the ItalianYugoslav Memorandum of 5 October 1954 and which provides for such topographical inscriptions in article 5(3) for those towns and villages “nei quali gli appartenente al detto gruppo etnico costituiscono un elemento rilevante (almeno un quarto) della popolazione”. The present draft differs from this example in that it does not require that “at least” on quarter (as in the statute just quoted; “almeno”) of the population but “approximately” one quarter of the population must belong to the ethnic group. This distinction aims at avoiding a legal obligation that would require amendments of the topographical inscriptions due to the fact of merely insignificant changes in the structure of the population once those inscriptions will have been put up.
In the course of the present proceedings, the Constitutional Court had to examine, first, the lawfulness of the decree putting up i.a. that specific signpost indicating the name of the village. Secondly, and more importantly, it had to examine whether § 2(1)2 of the Ethnic Groups Act was in conformity with article 7(3) of the State Treaty and thus whether it was unconstitutional. Already in a previous judgment (V 91/99, 4 October 200021) the Court had to deal with certain legislative and administrative measures implementing article 7(3) of the State Treaty. That judgment concerned the right of the Slovene and Croat minorities to use their languages before public authorities and offices as provided for in article 7(3), first sentence, and the Court abrogated a provision in the Slovene Language Decree22 as not being in conformity with the Ethnic Groups Act because it failed to observe existing obligations under international law as required by § 2(2) of that Act. The reason why that decree did not adequately observe international obligations was that it only provided for the use of the minority language before public authorities in areas with members of both ethnic groups, Slovene and German speaking, only on condition that the minority account for at least 25% of the population. Like in the previous judgment, the Court had to address the question as to what the relevant percentage of members of the minority in a given region is in order to grant the specific minority rights provided for in article 7(3) of the State Treaty of Vienna.
21
See S. Wittich/K.G. Bühler/O. Dietrich/M. Schoiswohl, “Austrian Judicial Decisions Involving Questions of International Law”, 6 ARIEL 281, at 317 (2001):
22
See ibid., at 317-318, in note 26.
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The crucial term in that provision which had to be interpreted was “mixed population”. Translation (excerpts): 3.2.1.2. […] As the Court has already ruled in its judgment VfSlg 12.836/1991, “the object and purpose of this provision, that is, article 7(3), second sentence, of the State Treaty is that topographical terminology and inscriptions (in the Slovene and Croat language to notify the general public that there lives an apparent, considerably larger, number of members of the minority” (just as according to the […] Court’s judgment of 4 October 2000, V 91/99, it is the object and purpose of article 7(3), first sentence, of the State Treaty of Vienna to give the minority “the possibility of preserving and cultivating one’s own (minority) language”). In the present case, only topographical inscriptions of towns and villages [in the sense of sign posts indicating the name of the town or village according to the Road Code] are at issue—hence only the terminology of towns and villages […] and not other topographical terminology and inscriptions as provided for in article7(3) of the State Treaty of Vienna are relevant. […] Furthermore it is a fact that both the Slovene and the Croat ethnic group are living in varying concentrations in the relevant towns and villages in Carinthia and Burgenland. Thus, on the basis of the results of the census carried out in 1991, it has turned out to be the case that even in towns and villages where there is indeed a considerable percentage of inhabitants speaking the Slovene or the Croat language there are districts or parts of the village or town where there live no members of the minority at all or where the minority account only for a very insignificant percentage. […] 3.2.2.1. According to the established case law of the Constitutional Court (see, most recently, judgment of 4 December 2000, V 91/99), the term (administrative district with a) “mixed population” within the meaning of article 7(3) of the State Treaty of Vienna is to be understood as to mean a region in which “a larger number of people resident there must belong to the minority” and for this purpose a not “quite insignificant percentage (of the minority)” is required; such assessments are to be “based only on a rough statistical survey”, which e.g. consists in the result of the relevant census. Proceeding on these assumptions, the Constitutional Court stated the following in its judgment of 4 December 2000 V 91/99 in relation to article 7(3), first sentence, of the State Treaty of Vienna: [Basically, the Court stated that “mixed population” in the sense of the first sentence of article 7(3) does not mean a high or considerable number of members of the minority.]23 3.2.2.2. The Constitutional Court takes the view that the term (administrative district
23
Ibid., at 324-325, para. 3.2.3.
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with a) “mixed population” in article 7(3), second sentence, of the State Treaty of Vienna does not assume a meaning that differs from that in the first sentence of this provision. Already the identical wording (arg. “in such districts”, emphasis added) calls for such an interpretation. Above all, however, an interpretation of the term “mixed population” according to the object and purpose of the State Treaty of Vienna (cf. articles 31(1) and 33(4) of the Vienna Convention on the Law of Treaties […]) does—unlike an object and purpose oriented interpretation of the term “administrative district”—not lead to a different result either: The preparatory works of article 7(3) of the State Treaty of Vienna […] undoubtedly show that the limitation [of the relevant minority rights], originally suggested by the United Kingdom in the course of the negotiations on the State Treaty of Vienna, to administrative and judicial districts with a “considerable proportion” of members of the minorities was eventually dropped in favour of the text, proposed by the Soviet Union, which does precisely not require districts with a specific proportion of the minority but only districts “with a mixed population”. The preparatory works moreover reveal that the Austrian negotiators had been prepared to accept that Soviet proposal in order to foster the conclusion of the State Treaty […]. Even if one argues, as the Carinthian Provincial Government does […], that the interpretation according to the preparatory works only leads to the conclusion that “there was a consensus among the Allies to the effect that the relevant percentage may not be assessed too high” and that “the historic interpretation does not allow any further conclusions”, at least one thing is clear: According to international practice, which is of particular importance for an interpretation of the constitutional provision of article 7(3) of the State Treaty of Vienna that conforms to international law, the percentage [of members of the minority] relevant for the granting of minority rights ranges from 5 to 25%, with a maximum percentage of 30% […]. Proceeding from these facts and in view of both the purpose and the negotiating history of [article 7(3) of the State Treaty], which constitutes not only an international legal obligation binding upon Austria but also a reference point of constitutional law, it is impermissible to interpret that provision so as to require a minimum percentage of the minority of 25%, hence on the upper part of the scale mentioned above. […] 3.2.2.3.2. Inasmuch as the Provincial Government of Carinthia invokes the explanatory report to the government proposal concerning the Ethnic Groups Act which has been enacted more than a decade after the conclusion of the State Treaty, the following must be stated: Particularly in view of the fact that the wording of article 68 of the State Treaty of Saint Germain [to which the explanatory report refers] noticeably differs in relevant aspects from article 7(3) of the State Treaty of Vienna (arg.: “considerable proportion of Austrian nationals of other than German speech”), it is not understandable how this provision could be relevant for interpreting article 7(3) of the State Treaty of Vienna. Likewise, the reference in the explanatory report to the “Draft of the ‘statuto speziale per le minoranze’ annexed to the Italian-Yugoslav
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Memorandum of 5 October 1954” is—in view of the specific negotiating history of article 7(3) of the State Treaty of Vienna as just mentioned—without merit […]. 3.2.2.4. The Court therefore takes the view that the term “mixed population” in the context of the second sentence of article 7(3) of the State Treaty of Vienna does not have a different meaning from that in the first sentence […]. […] 4.1. In view of all the aforementioned considerations, § 2(1)2 of the Ethnic Groups Act – to the extent that it limits the positioning of topographical inscriptions to such regions where there live a relatively considerable number, i.e., one quarter, of members of the minority not speaking German, i.e. of the Slovene-speaking minority—contradicts article 7(3), second sentence, of the State Treaty of Vienna which provides for specific rights of Austrian nationals belonging i.a. to the Slovene minority in Carinthia. § 2(1)2 is therefore unconstitutional. [In addition, the Court also set aside as unconstitutional the specific decree based upon that provision of the Ethnic Groups Act and by which the specific sign post indicating the name of the village had been put up.] German original: I. 1. Beim Verfassungsgerichtshof ist zu Zl. B2075/99 das Verfahren über eine auf Art144 B-VG gestützte Beschwerde anhängig, der folgender Sachverhalt zu Grunde liegt: 1.1. Über den in der Gemeinde Eberndorf (Bezirk Völkermarkt) wohnhaften Beschwerdeführer wurde mit Strafverfügung der Bezirkshauptmannschaft Völkermarkt vom 12.10.1994 wegen Überschreitung der zulässigen Höchstgeschwindigkeit im Ortsgebiet von St. Kanzian eine Geldstrafe von ATS 500,- verhängt. Diese Strafverfügung wurde im Wege der Hinterlegung am 20.10.1994 zugestellt. Mit Schreiben vom 27.10.1994 beantragte der Beschwerdeführer die Zustellung der Strafverfügung in slowenischer Sprache, weil er sich im Verfahren seiner Muttersprache bedienen wolle. Daraufhin stellte ihm die Bezirkshauptmannschaft Völkermarkt im Wege der Hinterlegung am 12.12.1994 eine Ausfertigung der Strafverfügung in slowenischer Sprache zu. 1.2. Mit Schriftsatz vom 19.12.1994 (bei der Bezirkshauptmannschaft Völkermarkt eingelangt am 22.12.1994) erhob der Beschwerdeführer in slowenischer Sprache Einspruch gegen diese Strafverfügung, wobei er die ihm zur Last gelegte Geschwindigkeitsüberschreitung zugab, deren Strafbarkeit jedoch unter Hinweis darauf verneinte, dass die zu Grunde liegenden Verordnungen, mit denen der Bereich des Dorfes St. Kanzian als Ortsgebiet bestimmt sei, nicht gehörig kundgemacht worden seien; auf den Hinweiszeichen (Ortstafeln) sei die Ortsbezeichnung nur in Deutsch und nicht—wie Art7 Z3 des Staatsvertrages von Wien 1955 gebiete—auch in Slowenisch angebracht. Daraufhin erließ die Bezirkshauptmannschaft Völkermarkt am 23.3.1995 ein im Spruch mit der Strafverfügung identisches Straferkenntnis, das dem Beschwerdeführer am 2.6.1995 in deutscher und in slowenischer Sprache zugestellt wurde.
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1.3. Gegen dieses Straferkenntnis erhob der Beschwerdeführer Berufung an den Unabhängigen Verwaltungssenat für Kärnten, in der er iW die Ausführungen aus dem Einspruch wiederholte und beantragte, das Straferkenntnis aufzuheben. Mit Bescheid vom 11.7.1996 gab der UVS für Kärnten der Berufung statt und hob das angefochtene Straferkenntnis „infolge Unvereinbarkeit mit der in Rechtskraft erwachsenen Strafverfügung vom 12.10.1994“ auf. 1.4. Gegen diesen Bescheid erhob der Beschwerdeführer eine zu B2611/96 protokollierte, auf Art144 B-VG gestützte Beschwerde an den Verfassungsgerichtshof. In Stattgebung dieser Beschwerde hob der Verfassungsgerichtshof mit Erkenntnis vom 2.10.1999 den Bescheid des UVS für Kärnten vom 11.7.1996 wegen Verletzung des Beschwerdeführers im verfassungsgesetzlich gewährleisteten Recht auf Gleichheit aller Staatsbürger vor dem Gesetz auf. 2.1. Daraufhin wies der UVS für Kärnten mit (Ersatz-)Bescheid vom 27.10.1999 die Berufung des Beschwerdeführers gegen das Straferkenntnis der Bezirkshauptmannschaft Völkermarkt vom 23.3.1995 (vgl. oben Pkt. 1.2.) erneut ab. 2.2. Gegen diesen (Ersatz-)Bescheid richtet sich die oben unter Pkt. 1. erwähnte Beschwerde an den Verfassungsgerichtshof. 3. Der Verfassungsgerichtshof hat aus Anlass dieser Beschwerde am 28.6.2001 beschlossen, gemäß Art139 und 140 B-VG ein Verfahren zur Prüfung der Gesetzbzw. Verfassungsmäßigkeit der im Spruch genannten Verordnungs- und Gesetzesbestimmungen einzuleiten. Die Bundesregierung hat eine Äußerung erstattet und beantragt, der Verfassungsgerichtshof wolle—hinsichtlich der im Spruch unter Pkt. 1. und 2. genannten Bestimmungen—aussprechen, dass sie nicht als verfassungs- bzw. gesetzwidrig aufzuheben sind. Auch die Kärntner Landesregierung hat—vom Verfassungsgerichtshof eingeladen, zu den im Prüfungsbeschluss geäußerten Bedenken Stellung zu nehmen—eine Äußerung erstattet, in der sie beantragt, der Verfassungsgerichtshof wolle aussprechen, dass die in Prüfung gezogenen Gesetzes- und Verordnungsbestimmungen nicht als verfassungs- bzw. gesetzwidrig aufzuheben sind. Ebenso hat die Bezirkshauptmannschaft Völkermarkt als—hinsichtlich der im Pkt. 3. des Spruches genannten Verordnungsbestimmung—verordnungserlassende Behörde eine Äußerung erstattet. Schließlich hat der Beschwerdeführer im eingangs genannten Bescheidprüfungsverfahren zu den Äußerungen der Bundesregierung und der Kärntner Landesregierung Stellung genommen. II. Die für den vorliegenden Fall maßgebliche Rechtslage stellt sich wie folgt dar: 1.1. Die Z3 des im Verfassungsrang stehenden, mit „Rechte der slowenischen und kroatischen Minderheiten“ überschriebenen Art 7 des Staatsvertrages von Wien lautet wie folgt: „3. In den Verwaltungs- und Gerichtsbezirken Kärntens, des Burgenlandes und der Steiermark mit slowenischer, kroatischer oder gemischter Bevölkerung wird die slowenische oder kroatische Sprache zusätzlich zum Deutschen als Amtssprache zugelassen. In solchen Bezirken
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werden die Bezeichnungen und Aufschriften topographischer Natur sowohl in slowenischer oder kroatischer Sprache wie in Deutsch verfaßt.“
1.2.1. Im Abschnitt I „Allgemeine Bestimmungen“ des Volksgruppengesetzes, BGBl. 1976/396, sieht §2 Folgendes vor (die in Prüfung gezogene Wortfolge ist hervorgehoben): „§ 2. (1) Durch Verordnungen der Bundesregierung im Einvernehmen mit dem Hauptausschuß des Nationalrates sind nach Anhörung der in Betracht kommenden Landesregierung festzulegen: 1. Die Volksgruppen, für die ein Volksgruppenbeirat eingerichtet wird, sowie die Zahl der ihm angehörenden Mitglieder. 2. Die Gebietsteile, in denen wegen der verhältnismäßig beträchtlichen Zahl (ein Viertel) der dort wohnhaften Volksgruppenangehörigen topographische Bezeichnungen zweisprachig anzubringen sind. 3. Die Behörden und Dienststellen, bei denen zusätzlich zur deutschen Amtssprache die Verwendung der Sprache einer Volksgruppe zugelassen wird, wobei jedoch das Recht der Verwendung dieser Sprache auf bestimmte Personen oder Angelegenheiten beschränkt werden kann. (2) Bei Erlassung der in Abs1 vorgesehenen Verordnungen sowie bei der Vollziehung des Abschnittes III dieses Bundesgesetzes sind bestehende völkerrechtliche Verpflichtungen zu berücksichtigen. Darüber hinaus ist auf die zahlenmäßige Größe der Volksgruppe, die Verbreitung ihrer Angehörigen im Bundesgebiet, ihr größenordnungsmäßiges Verhältnis zu anderen österreichischen Staatsbürgern in einem bestimmten Gebiet sowie auf ihre besonderen Bedürfnisse und Interessen zur Erhaltung und Sicherung ihres Bestandes Bedacht zu nehmen. Hiebei sind die Ergebnisse amtlicher statistischer Erhebungen mitzuberücksichtigen.“
In den Erläuterungen zur Regierungsvorlage 217 BlgNR 14. GP 9 wird dazu u.a. Folgendes ausgeführt: „Zur Frage der topographischen Bezeichnungen ist zu bemerken, daß der Entwurf davon ausgeht, daß solche Bezeichnungen in Gebietsteilen angebracht werden sollen, in denen eine verhältnismäßig beträchtliche Zahl von Volksgruppenangehörigen wohnhaft (ist). Diese Regelung entspricht im wesentlichen den im Völkerrecht bekannten sogenannten Minderheitenschutzbestimmungen und auch den Bedürfnissen der Volksgruppenangehörigen. Zur Auslegung des Begriffes ‚verhältnismäßig beträchtliche Zahl‘ von Volksgruppenangehörigen, der im übrigen aus Art 68 des Staatsvertrages von St. Germain übernommen wurde, wurde im Entwurf als Indikator ein Viertel der Bevölkerung bezeichnet. Mit dieser Regelung ließ sich der Entwurf von dem dem italienisch-jugoslawischen Memorandum vom 5. Oktober 1954 angeschlossenen ‚statuto speciale per le minoranze‘ vom gleichen Tag leiten, das solche topographischen Bezeichnungen in Punkt 5 Abs 3 in jenen Gemeinden vorsieht ‚nei quali gli appartenente al detto gruppo etnico costituiscono un elemento rilevante (almeno un quarto) della popolazione‘. Abweichend von diesem Beispiel sieht aber der vorliegende Gesetzentwurf vor, daß nicht ‚wenigstens‘ ein Viertel der Bevölkerung (wie in dem zitierten Statut; ‚almeno‘), sondern ‚etwa‘ ein Viertel der Bevölkerung der Volksgruppe zugehören muß. Dadurch soll
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vermieden werden, daß bloß geringfügige Veränderungen in der Bevölkerungsstruktur die gesetzliche Verpflichtung nach sich ziehen, Änderungen in den einmal vorgenommenen topographischen Bezeichnungen durchzuführen.“
1.2.2. § 12 des Volksgruppengesetzes lautet samt Überschrift wie folgt: „ABSCHNITT IV Topographische Bezeichnungen § 12. (1) Im Bereiche der gemäß §2 Abs1 Z. 2 bezeichneten Gebietsteile sind Bezeichnungen und Aufschriften topographischer Natur, die von Gebietskörperschaften oder von sonstigen Körperschaften und Anstalten des öffentlichen Rechts angebracht werden, in deutscher Sprache und in der Sprache von in Betracht kommenden Volksgruppen zu verfassen. Diese Verpflichtung gilt nicht für die Bezeichnung von Örtlichkeiten, die außerhalb des Bereiches solcher Gebietsteile liegen. (2) In der Verordnung nach § 2 Abs 1 Z. 2 sind auch die Örtlichkeiten, die für eine zweisprachige Bezeichnung in Betracht kommen, sowie die topographischen Bezeichnungen in der Sprache der in Betracht kommenden Volksgruppen festzulegen, die neben der deutschsprachigen Bezeichnung anzubringen sind. Hiebei ist auf die örtliche Übung und auf die Ergebnisse wissenschaftlicher Forschung Bedacht zu nehmen. (3) Topographische Bezeichnungen, die nur in der Sprache einer Volksgruppe bestehen, sind von Gebietskörperschaften unverändert zu verwenden.“
In den Erläuterungen zur Regierungsvorlage 217 BlgNR 14. GP 13 wird dazu u.a. Folgendes ausgeführt: „Diese Bestimmung enthält Regelungen in Ausführung des Ar 7 Z. 3 des Staatsvertrages von Wien 1955. Er bezieht sich auf die zweisprachigen topographischen Aufschriften und Bezeichnungen. Die Verpflichtung zur Anbringung solcher zweisprachiger topographischer Bezeichnungen trifft den Staat, weshalb der Entwurf vorsieht, daß nur solche topographische Bezeichnungen zweisprachig anzubringen sind, die von Gebietskörperschaften oder von sonstigen Körperschaften und Anstalten des öffentlichen Rechts angebracht werden. Die Festlegung dieser zweisprachigen topographischen Bezeichnungen hat durch eine Verordnung der Bundesregierung gemäß Abs 2 zu erfolgen, um eine einheitliche Bezeichnung sicherzustellen.“
1.2.3.1. Die Verordnung der Bundesregierung vom 31. Mai 1977 über die Bestimmung von Gebietsteilen, in denen topographische Bezeichnungen in deutscher und slowenischer Sprache anzubringen sind, BGBl. 306, lautet wie folgt (die in Prüfung gezogene Bestimmung ist hervorgehoben): [nicht abgedruckt]
[…] III. Der Verfassungsgerichtshof hat erwogen: 1.1. Was das Vorliegen der Prozessvoraussetzungen anlangt, so ist der Verfassungs-
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gerichtshof in seinem Prüfungsbeschluss—vorläufig—von Folgendem ausgegangen: […]
1.4. Da sämtliche Prozessvoraussetzungen vorliegen, ist das eingeleitete Gesetzesund Verordnungsprüfungsverfahren zulässig. 2.1. Der Verfassungsgerichtshof stützte seine Bedenken, die in Prüfung gezogenen Gesetzes- bzw. Verordnungsbestimmungen könnten verfassungs- bzw. gesetzwidrig sein, auf die folgenden Erwägungen: „(a) In seinem Erkenntnis vom 4.10.2000, V91/99, hat der Verfassungsgerichtshof im Zusammenhang mit der die Zulassung der slowenischen und der kroatischen Sprache als Amtssprache zusätzlich zum Deutschen betreffenden Regelung des Art 7 Z 3 erster Satz des Staatsvertrages von Wien iW die folgende Auffassung vertreten: [nicht abgedruckt]24 (b) Der Verfassungsgerichtshof geht vorläufig davon aus, dass diese Erwägungen auch für die im vorliegenden Fall maßgebliche Bestimmung des Art 7 Z 3 zweiter Satz des Staatsvertrages von Wien zutreffen, der zu Folge in den in Betracht kommenden ‚Bezirken die Bezeichnungen und Aufschriften topographischer Natur sowohl in slowenischer ... Sprache wie in Deutsch’ zu verfassen sind. Somit dürfte auch in dieser Hinsicht auf die maßgeblichen Verhältnisse (arg.: ‚mit ... gemischter Bevölkerung ...’) in der jeweiligen Gemeinde abzustellen sein. Dass § 2 Abs 1 Z 2 VolksgruppenG sowie die Verordnung BGBl. 1977/306 sogar auf ‚Gebietsteile’ bzw. auf das Gebiet ‘ehemaliger Gemeinden’ abstellen, die nunmehr bloße Teile einer (neuen und größeren) Gemeinde darstellen, dürfte damit nicht im Widerspruch stehen. Diese Regelung(stechnik) scheint vielmehr von der Absicht getragen zu sein, nach dem Inkrafttreten des Art 7 Z 3 des Staatsvertrages von Wien eingetretene Änderungen der Gemeindestruktur zu berücksichtigen. Für den hier vorliegenden Zusammenhang scheint dieser Gesichtspunkt freilich ohne Bedeutung, da die Struktur der Gemeinde St. Kanzian (am Klopeiner See) in diesem Zeitraum keine maßgeblichen Änderungen erfahren haben dürfte. […] (c) Im Erkenntnis vom 4.10.2000, V91/99, hat der Verfassungsgerichtshof folgende Auffassung vertreten: [nicht abgedruckt]25 (d) Ausgehend vom (diesbezüglich identischen) Wortlaut des Art 7 Z 3 zweiter Satz des Staatsvertrages von Wien dürfte dem Begriff (des Verwaltungsbezirkes mit) ‚gemischter Bevölkerung‘ im zweiten Satz dieser Bestimmung keine andere Bedeutung zukommen als im ersten Satz. Im Hinblick darauf scheint aber—unter Zugrundelegung der soeben wiedergegebenen Ausführungen in dem in Rede stehenden Erkenntnis—eine Regelung wie die des § 2 Abs1 Z2 VolksgruppenG, der zu Folge zweisprachige topographische Bezeichnungen
24
Ibid., at 329-331, paras. 3.2., 3.2.1.-3.2.2.
25
Ibid., at 331-332, para. 3.2.3.
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(nur) für Gebietsteile vorgesehen sind, in denen eine ‚verhältnismäßig beträchtliche Zahl (ein Viertel)‘ von Volksgruppenangehörigen wohnt, dem Art 7 Z 3 des Staatsvertrages von Wien zu widersprechen (gleichartige Bedenken äußern Marauhn, Die rechtliche Stellung der Minderheiten in Österreich, in: Frowein/Hofmann/Oeter (Hrsg.), Das Minderheitenrecht europäischer Staaten, Teil 1 (1993) 225 (234); Öhlinger, Der Verfassungsschutz ethnischer Gruppen in Österreich, in: FS Koja (1998) 371 (380); Österreichische Rektorenkonferenz (Hrsg.), Lage und Perspektiven der Volksgruppen in Österreich (1989) 157). Daran dürfte—wie der Verfassungsgerichtshof vorläufig annimmt—auch die in seinem Erkenntnis VfSlg. 12.836/1991 vertretene Auffassung nichts ändern, dass deshalb, weil ‚topographische Aufschriften der in Rede stehenden Art nach dem Sinn und Zweck der Norm nicht einzelnen Minderheitsangehörigen Erleichterung bringen, (sondern) der Allgemeinheit Kenntnis geben sollen, daß hier eine ins Auge springende—verhältnismäßig größere—Zahl von Minderheitsangehörigen lebt, ... nach der Wortsinnauslegung (so wie für Art 7 Z 3 zweiter Satz) auch für Art 7 Z 3 erster Satz StV 1955 ein zumindest nicht ganz unbedeutender (Minderheiten-)Prozentsatz gefordert werden‘ müsse. (Dabei ist auch zu berücksichtigen, dass es in dem mit diesem Erkenntnis entschiedenen Fall um die Statutarstadt Eisenstadt ging, die - so der Verfassungsgerichtshof in diesem Erkenntnis weiter – ‚nach den ... als Richtschnur herangezogenen, vom Amt der Burgenländischen Landesregierung (Abteilung IV) herausgegebenen Burgenländischen Statistiken (Neue Folge, Heft 4, Eisenstadt 1985, betreffend die Umgangssprache der Burgenländer) ... unter den Ortschaften mit mindestens 5% kroatisch sprechenden Einwohnern nicht aufscheint und nach dem Ergebnis der Volkszählung (1981) einen Anteil der kroatisch sprechenden österreichischen Wohnbevölkerung von nur 1,9% aufweist, also einen sehr kleinen Bevölkerungsprozentsatz, der noch nicht von einer ‚gemischten Bevölkerung‘ im dargelegten verfassungsrechtlichen Sinn sprechen‘ lasse.) Vielmehr scheint dieses Erkenntnis auf eine diesbezügliche Kongruenz der Regelungen des Art 7 Z 3 erster und zweiter Satz des Staatsvertrages von Wien hinzudeuten (idS auch Sturm, Der Minderheiten- und Volksgruppenschutz, in: Machacek/Pahr/Stadler (Hrsg.), Grundund Menschenrechte in Österreich, Bd. II (1992) 77 (110)). Eine Auslegung, der zu Folge dem in Rede stehenden Begriff in Art 7 Z 3 zweiter Satz des Staatsvertrages von Wien, etwa deshalb, weil es in einem Fall um die Amtssprache, im anderen Fall aber um topographische Bezeichnungen und Aufschriften gehe und hiefür ein jeweils unterschiedlicher Standard des Volksgruppenschutzes zu unterstellen sei, ein anderer Inhalt zukomme als dem gleich lautenden Terminus im ersten Satz dieser Bestimmung und somit für Regelungen betreffend das Anbringen zweisprachiger topographischer Bezeichnungen und Aufschriften ein höherer Minderheitenprozentsatz, nämlich mindestens 25% der Wohnbevölkerung, vorgesehen werden dürfe als für Regelungen über die Amtssprache, scheint im Hinblick darauf geradezu ausgeschlossen zu sein. Auch aus den Erläuterungen zur Regierungsvorlage (217 BlgNR 14. GP 9) dürfte sich für die Verfassungskonformität der in Prüfung gezogenen Regelung nichts gewinnen lassen. Der Verfassungsgerichtshof vermag – jedenfalls vorläufig – schon angesichts des abweichenden Wortlautes des Art 68 des Staatsvertrages von St. Germain (arg.: ‚eine verhältnismäßig beträchtliche Zahl‘) nicht zu sehen, inwiefern diese Bestimmung für die Auslegung des Art 7 Z 3 des Staatsvertrages von Wien Bedeutung haben sollte. Auch der dortige Hinweis auf den Entwurf von dem dem italienisch-jugoslawischen Memorandum vom 5. Oktober 1954 angeschlossenen ‚statuto speziale per le minoranze‘ dürfte angesichts der spezifischen Entstehungs-
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geschichte des Art 7 Z 3 Staatsvertrag von Wien (s. dazu das Erkenntnis VfGH 4.10.2000, V91/99, Pkt. III.3.2.3.) ins Leere gehen (vgl. dazu im Übrigen Veiter, Das neue österreichische Volksgruppenrecht, in: Veiter (Hrsg.), System eines internationalen Volksgruppenrechts, III. Teil, 1978, 300, 335 f, der die Relevanz dieses Hinweises aus anderen Gründen in Zweifel zieht). (e) Sollten die soeben dargelegten Bedenken zutreffen und daher die in Prüfung gezogene Wortfolge in § 2 Abs 1 Z 2 des VolksgruppenG aufzuheben sein, so dürfte - gemessen an der dann bestehenden Gesetzeslage - die in Prüfung gezogene Bestimmung der Verordnung BGBl. 1977/306 aus den selben Erwägungen gegen § 2 Abs 2 VolksgruppenG verstoßen und somit gesetzwidrig sein wie dies für die mit dem Erkenntnis vom 4.10.2000, V91/99, aufgehobene Bestimmung in § 2 Abs 2 Z 3 der Verordnung BGBl. 1977/307 zutraf (vgl. va. Pkt. III.3.3. dieses Erkenntnisses). [...] Für den Fall des Zutreffens auch dieses Bedenkens und der daraus folgenden Aufhebung der in Prüfung gezogenen Bestimmung in § 1 Z 2 der Verordnung BGBl. 1977/306 dürfte aber— gemessen an der dann bestehenden Rechtslage, nämlich der dann (wieder) unmittelbar anwendbaren Bestimmung des Art 7 Z 3 zweiter Satz des Staatsvertrages von Wien (vgl. in eben diesem Sinne VfGH 4.10.2000, V91/99, Pkt. III.3.4.)—auf Grund der soeben angestellten Erwägungen auch die in Prüfung gezogene Bestimmung in der Verordnung der Bezirkshauptmannschaft Völkermarkt als dem Art 7 Z 3 zweiter Satz des Staatsvertrages von Wien widersprechend rechtswidrig sein.“
2.2.1. Die Kärntner Landesregierung führt dazu in ihrer Äußerung Folgendes aus: [nicht abgedruckt]
2.2.2. Die Bundesregierung äußert sich in ihrer Stellungnahme zum Prüfungsbeschluss des Verfassungsgerichtshofes iW wie folgt: [nicht abgedruckt]
3. Das Gesetzes- und Verordnungsprüfungsverfahren hat nichts ergeben, was die im Prüfungsbeschluss geäußerten Bedenken entkräften könnte. 3.1. Das „Anbringen“ der Hinweiszeichen „Ortstafel“ und „Ortsende“ iSd. § 53 Abs 1 Z 17a und 17 b StVO, die der Kundmachung straßenverkehrspolizeilicher Verordnungen dienen (vgl. § 43 Abs 1 StVO), unterfällt – wie übrigens auch die Kärntner Landesregierung in ihrer Äußerung zum Prüfungsbeschluss ausdrücklich einräumt—geradezu typischer Weise dem Tatbestand des Verfassens von „Bezeichnungen und Aufschriften ... topographischer Natur“ iSd. Art 7 Z 3 zweiter Satz des Staatsvertrages von Wien (vgl. dazu auch 517 BlgNR 7. GP 3). 3.2.1.1. Der Verfassungsgerichtshof hat in seinem Erkenntnis VfGH 4.10.2000 V91/ 99 die Auffassung vertreten, dass unter dem Begriff „Verwaltungsbezirk“ iSd. Art 7 Z 3 erster Satz des Staatsvertrages von Wien neben den politischen Bezirken auch die Gemeinden zu verstehen sind. Im Einzelnen wurde diese Rechtsauffassung wie folgt begründet: „Der Verfassungsgerichtshof geht davon aus, dass ... die in diesem Zusammenhang in den
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verschiedenen authentischen Texten des Staatsvertrages von Wien (vgl. dessen Art 38 Z 1) verwendeten Begriffe sehr allgemein und unbestimmt gehalten und in verschiedene Richtungen hin deutbar sind (s. dazu insbesondere den umfassenden Hinweis auf die einschlägige Literatur bei Kolonovits, Sprachenrecht in Österreich, Wien 1999, S 138-145). Im Hinblick darauf erscheint eine an ‚Ziel und Zweck‘ (vgl. Art 31 Abs 1 und Art 33 Abs 4 des Übereinkommens über das Recht der Verträge, BGBl. 1980/40) dieser staatsvertraglichen Regelung—das ist die Möglichkeit der Bewahrung und Pflege der eigenen (Minderheiten)Sprache (s. dazu va. VfSlg. 9801/1983, S 147)—orientierte Auslegung geboten. Dabei ist aber Folgendes zu berücksichtigen: Sowohl die slowenische als auch die kroatische Volksgruppe siedeln in den in Betracht kommenden Bundesländern in unterschiedlicher Dichte, in räumlicher Verzahnung mit der deutschen Volksgruppe und größtenteils in Streulage (idS—für die slowenische Volksgruppe—schon VfSlg. 9224/1981). So erweist sich unter Zugrundelegung der Ergebnisse der Volkszählungen 1951 bis 1991 insbesondere, dass selbst in politischen Bezirken, in denen der Anteil der slowenisch (bzw. kroatisch) sprechenden Einwohner bezirksweit einen durchaus bedeutenden Prozentsatz ausmacht, in einer Reihe von Gemeinden entweder überhaupt keine Minderheitenangehörigen leben oder die Minderheit doch nur einen ganz unbedeutenden Prozentsatz ausmacht. Demgemäß ist dem Begriff ‚Verwaltungsbezirk‘ gemäß Art 7 Z 3 erster Satz des Staatsvertrages von Wien ein Verständnis beizulegen, das sich an den tatsächlichen, dh. gemeindebezogenen, Siedlungsschwerpunkten dieser Volksgruppen orientiert. Darüber hinaus gebietet diese staatsvertragliche Regelung aber auch die Zulassung des Slowenischen (bzw. Kroatischen) als Amtssprache zusätzlich zum Deutschen vor den Bezirksverwaltungsbehörden, in deren Sprengel die jeweilige Minderheit—bezirksweit—einen nicht ganz unbedeutenden Prozentsatz ausmacht.“
3.2.1.2. Die Bundesregierung und die Kärntner Landesregierung meinen nun, dass sich diese Erwägungen im normativen Zusammenhang des—das Verfassen von Bezeichnungen und Aufschriften topographischer Natur sowohl in slowenischer oder kroatischer Sprache wie in Deutsch betreffenden—Art 7 Z 3 zweiter Satz des Staatsvertrages von Wien auch auf „die unter der Gemeindeebene bestehenden lokalen Siedlungszentren“ bzw. auf „räumliche Untergliederungen innerhalb der Gemeinde“ übertragen ließen und solcherart „auch ein ortschaftsbezogener Topographieregelungsansatz mit Art 7 Z 3 des Staatsvertrages von Wien vereinbar“ wäre. Dem ist auf Grund der folgenden Überlegungen im Ergebnis Recht zu geben: Bei einer an „Ziel und Zweck“ des Art 7 Z 3 zweiter Satz des Staatsvertrages von Wien orientierten Auslegung ist—wie der Verfassungsgerichtshof schon in seinem Erkenntnis VfSlg. 12.836/1991 ausgesprochen hat—davon auszugehen, dass „Bezeichnungen und Aufschriften topographischer Natur (in slowenischer oder kroatischer Sprache) nach dem Sinn und Zweck dieser (Staatsvertrags-)Norm ... der Allgemeinheit Kenntnis geben sollen, dass hier eine ins Auge springende—verhältnismäßig größere—Zahl von Minderheitsangehörigen lebt“ (so wie es nach dem oben wiedergegebenen Erkenntnis VfGH 4.10.2000 V91/99 Sinn und Zweck des Art 7 Z 3 erster Satz des Staatsvertrages von Wien ist, der Minderheit als solcher „die Möglichkeit der Bewahrung und Pflege der eigenen (Minderheiten-)Sprache“ zu geben). Im vorliegenden Fall geht es dabei allein um topographische (Orts-) Bezeichnungen in Hinweiszeichen gemäß § 53 Abs 1 Z 17a und 17b StVO („Ortstafel“, „Ortsende“),
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somit um die Bezeichnung des „Ortsgebietes“ iSd. § 2 Abs 1 Z 15 StVO, nicht aber um andere Bezeichnungen und Aufschriften topographischer Natur iSd. Art 7 Z 3 des Staatsvertrages von Wien. […] Weiters trifft es zu, dass sowohl die slowenische als auch die kroatische Volksgruppe innerhalb der dafür in Betracht kommenden Gemeinden Kärntens und des Burgenlandes in unterschiedlicher Dichte siedelt. So erweist sich etwa unter Zugrundelegung der Ergebnisse der Volkszählung 1991, dass selbst in Gemeinden, in denen der Anteil der slowenisch—bzw. kroatischsprechenden Einwohner gemeindeweit einen durchaus bedeutenden Prozentsatz ausmacht, in einzelnen Ortschaften bzw. Gemeindeverwaltungsteilen entweder überhaupt keine Minderheitenangehörigen leben oder die Minderheit doch nur einen ganz unbedeutenden Prozentsatz ausmacht. […] Mit Blick auf den hier vorliegenden Fall ist schließlich auch noch Folgendes zu bedenken: Es geht um das „Anbringen“ der Hinweiszeichen „Ortstafel“ und „Ortsende“ iSd. § 53 Abs 1 Z 17a und 17b StVO, die der Kundmachung straßenverkehrspolizeilicher Verordnungen (§ 43 Abs 1 StVO), im Besonderen der normativen Festlegung des Ortsgebietes iSd. § 2 Abs 1 Z 15 iVm. § 20 Abs 2 StVO, dienen. Wie oben erwähnt unterfällt das Anbringen solcher Hinweiszeichen in geradezu typischer Weise dem Tatbestand des Verfassens von „Bezeichnungen und Aufschriften ... topographischer Natur“ iSd. Art 7 Z 3 zweiter Satz des Staatsvertrages von Wien. Nun besteht aber zwischen den soeben genannten Bestimmungen der StVO und den oben erwähnten gemeinderechtlichen Regelungen über die (Unter-) Gliederung des Gemeindegebietes in Ortschaften bzw. Gemeindeverwaltungsteile folgender normativer Zusammenhang: Gemäß § 53 Abs 1 Z 17a StVO hat das Hinweiszeichen „den Namen des Ortes“ anzugeben. Dabei handelt es sich um den „amtlichen Namen“ des jeweiligen Ortes, der „nicht identisch sein (muss) mit dem Namen der ... Gemeinde“ (Messiner, Straßenverkehrsordnung10, 988). Damit ist aber—gegebenenfalls—nichts anderes gemeint als die Bezeichnung der jeweiligen (Unter-)Gliederung des Gemeindegebietes, die sich auf Grund der oben genannten gemeinderechtlichen Vorschriften ergibt. Auch der Umstand, dass das damit bezeichnete Gebiet der Ortschaft bzw. des Gemeindeverwaltungsteiles im gemeinderechtlichen Sinn nicht notwendiger Weise kongruent mit dem in derselben Weise bezeichneten „Ortsgebiet“ im straßenverkehrsrechtlichen Sinn ist, ändert an diesem normativen Zusammenhang nichts. Von all dem ausgehend ist dem Begriff „Verwaltungsbezirk“ gemäß Art 7 Z 3 zweiter Satz des Staatsvertrages von Wien, insoweit es um das Verfassen von „Bezeichnungen und Aufschriften ... topographischer Natur“ in Form der in Rede stehenden straßenverkehrsrechtlichen Hinweiszeichen geht, aber ein Verständnis beizulegen, das sich an den tatsächlichen, dh.—gegebenenfalls—ortschafts-bezogenen, Siedlungsschwerpunkten der betreffenden Volksgruppe orientiert. Demgemäß sind unter dem Begriff „Verwaltungsbezirk“ in diesem normativen Zusammenhang auch
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„Ortschaften“ oder „Gemeindeverwaltungsteile“ im mehrfach erwähnten gemeinderechtlichen Sinn zu verstehen. 3.2.2.1. Nach ständiger Rechtsprechung des Verfassungsgerichtshofes (vgl. dazu zuletzt VfGH 4.10.2000 V91/99) ist unter dem Begriff (des Verwaltungsbezirkes mit) „gemischte(r) Bevölkerung“ iSd. Art 7 Z 3 des Staatsvertrages von Wien ein Gebiet zu verstehen, in dem „eine größere Zahl der dort wohnenden Personen zur Minderheit gehören müsse“ bzw. für das ein „nicht ganz unbedeutender (Minderheiten) Prozentsatz“ vorliege, wobei den diesbezüglichen Feststellungen „bloß eine vergröberte statistische Erfassung zugrundezulegen“ sei, wie sie sich va. aus den einschlägigen statistischen Erhebungen im Rahmen der Volkszählungen ergebe. Ausgehend davon hat der Verfassungsgerichtshof in seinem Erkenntnis VfGH 4.10.2000 V91/99 mit Bezug auf Art 7 Z 3 erster Satz des Staatsvertrages von Wien Folgendes ausgesprochen: [nicht abgedruckt]26 3.2.2.2. Der Verfassungsgerichtshof ist der Auffassung, dass dem Begriff (des Verwaltungsbezirkes mit) „gemischte(r) Bevölkerung“ in Art 7 Z 3 zweiter Satz des Staatsvertrages von Wien keine andere Bedeutung zukommt als im ersten Satz dieser Bestimmung. Schon der diesbezüglich identische Wortlaut (arg.: „In solchen Bezirken ...“ (Hervorhebung nicht im Original)) legt diese Auslegung nahe. Vor allem aber führt in dieser (das Tatbestandselement: „gemischte Bevölkerung“ betreffenden) Hinsicht (anders als bei der Auslegung des Begriffes „Verwaltungsbezirk“) auch eine an „Ziel und Zweck“ des Staatsvertrages von Wien orientierte Auslegung (vgl. Art 31 Abs 1 und Art 33 Abs 4 des Wiener Übereinkommens über das Recht der Verträge, BGBl. 1980/40) zu keinem anderen Ergebnis: Aus der Entstehungsgeschichte des Art 7 Z 3 des Staatsvertrages von Wien (s. dazu auch die von der Kärntner Landesregierung diesbezüglich vorgelegte Darstellung, die sich ebenso wie der Verfassungsgerichtshof im oben zitierten Erkenntnis VfGH 4.10.2000 V91/99 auf Stourzh, Einheit, stützt) ergibt sich nämlich unbestrittener Maßen, dass die im Zuge der Verhandlungen über den Staatsvertrag von Wien ursprünglich— seitens des Vereinigten Königreiches—ventilierte Beschränkung auf Verwaltungsund Gerichtsbezirke mit einem „beträchtlichen Anteil“ (“considerable proportion”) von Angehörigen der Minderheiten letztlich zu Gunsten des—gerade nicht in dieser Weise spezifizierenden—sowjetischen Textvorschlages: „(Verwaltungs- und Gerichtsbezirke) mit gemischter Bevölkerung“ fallen gelassen wurde und dass die österreichische Seite bereit war, diesen sowjetischen Vorschlag zu akzeptieren, um den Abschluss des Staatsvertrages zu fördern (eingehend dazu Stourzh, Einheit, 159f.). Auch wenn man nun—ganz im Sinne der von der Kärntner Landesregierung in ihrer Äußerung (unter Berufung auf Matscher, Art 7 des Österreichischen Staatsvertrages 1955 und die slowenische Minderheit in Kärnten, Europa Ethnica 1976, 116 (120))
26
Ibid.
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vertretenen Argumentation—meint, daraus ließe sich bloß der Schluss ziehen, „bei den Alliierten habe Konsens darüber bestanden, dass der maßgebende Prozentsatz nicht zu hoch angesetzt werden dürfe, mehr gebe diese historische Interpretation nicht her“, wird daraus doch zumindest eines deutlich: In der internationalen Praxis hat sich—was für die völkerrechtskonforme Auslegung der im Verfassungsrang stehenden Bestimmung des Art 7 Z 3 des Staatsvertrages von Wien von besonderer Bedeutung ist—für die Einräumung von Minderheitenrechten ein relevanter Prozentsatz von 5 bis 25% (vgl. etwa Beilage II S 2 zum Schlussbericht der Studienkommission für Probleme der slowenischen Volksgruppe in Kärnten, Bundeskanzleramt—GZ 601.167/43-VI/1/75), äußerstenfalls von 30% herausgebildet (so der Vertreter der Bundesregierung in der mündlichen Verhandlung unter Berufung auf Hilpold, Modernes Minderheitenrecht, 2001, 281 f.; vgl. dazu insb. auch Matscher, Die slowenische und die kroatische Volksgruppe in Österreich, in: Bundeskanzleramt (Hrsg.), Die rechtliche Stellung der Volksgruppen in Österreich, 1977, 7, 13; dagegen jedoch („nirgendwo in der Staatenpraxis kommt ein so hoher Prozentsatz wie 30% vor“) Veiter, Das neue österreichische Volksgruppenrecht, in: Veiter, System eines internationalen Volksgruppenrechts, 3. Bd., 1978, 300, 335). Ausgehend davon ist es aber angesichts der Zwecksetzung und der Entstehungsgeschichte der in Rede stehenden staatsvertraglichen Regelung, die nicht nur eine völ errechtliche Verpflichtung Österreichs konstituiert, sondern auch einen Maßstab des Verfassungsrechtes bildet, ausgeschlossen, diese Vorschrift im Sinne des Erfordernisses eines Minderheitenprozentsatzes von wenigstens 25%—somit im obersten Bereich des erwähnten Rahmens—zu deuten. 3.2.2.3.1. Das von der Kärntner Landesregierung vertretene „differenzierte Verständnis des Begriffes ‚gemischte Bevölkerung im Art 7 Z 3 erster und zweiter Satz des Staatsvertrages von Wien“ lässt sich auch nicht auf das Erkenntnis VfSlg. 12.836/ 1991 stützen. Darin hat der Verfassungsgerichtshof nämlich ua. Folgendes ausgeführt: „Der Verfassungsgerichtshof ging bereits im Erkenntnis VfSlg. 11.585/1987 davon aus, daß in einem Gebiet mit ‚gemischter Bevölkerung‘ eine größere Zahl der dort wohnenden Personen zur Minderheit gehören müsse, und daß dieser Feststellung bloß eine ‚vergröberte statistische Erfassung zugrundezulegen‘ sei (S 751). Demnach ist ein ‚Verwaltungsbezirk‘ , in dem lediglich sehr wenige Kroaten wohnen, grundsätzlich noch kein Bezirk mit ‚gemischter Bevölkerung‘ . Zu diesem Normverständnis führt vor allem auch Art 7 Z 3 zweiter Satz StV 1955, der vorschreibt, daß ‚in solchen Bezirken‘ , dh. in Verwaltungs- und Gerichtsbezirken mit kroatischer oder gemischter Bevölkerung iSd Art 7 Z 3 erster Satz StV 1955, die Bezeichnungen und Aufschriften topographischer Natur in kroatischer Sprache und in Deutsch verfaßt werden. Da topographische Aufschriften der in Rede stehenden Art nach dem Sinn und Zweck der Norm nicht einzelnen Minderheitsangehörigen Erleichterung bringen, vielmehr der Allgemeinheit Kenntnis geben sollen, daß hier eine ins Auge springende—verhältnismäßig größere—Zahl von Minderheitsangehörigen lebt, muß nach der Wortsinnauslegung auch für Art 7 Z 3 erster Satz StV 1955 ein zumindest nicht ganz unbedeutender (Minderheiten-) Prozentsatz gefordert werden; eine Auslegung, die durch die in VfSlg. 9801/1983 (S 147)
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enthaltene Aussage gestützt wird, daß nicht etwa nur die Unverständlichkeit der Staatssprache für die Minderheit, sondern die Möglichkeit der Bewahrung und Pflege der eigenen (Minderheiten-)Sprache Grund für die Zulassung des Kroatischen als Amtssprache sei. Diese Kriterien einer ‚gemischten Bevölkerung‘ , wie sie Art 7 Z 3 StV 1955 insgesamt statuiert, sind für Eisenstadt und damit im Fall des Beschwerdeführers nicht erfüllt; denn in diesem Zusammenhang ist zu bedenken, daß nach den schon im Erkenntnis VfSlg. 11.585/ 1987 (S 752) als Richtschnur herangezogenen, vom Amt der Burgenländischen Landesregierung (Abteilung IV) herausgegebenen Burgenländischen Statistiken (Neue Folge, Heft 4, Eisenstadt 1985, betreffend die Umgangssprache der Burgenländer) die Statutarstadt Eisenstadt unter den Ortschaften mit mindestens 5% kroatisch sprechenden Einwohnern nicht aufscheint und nach dem Ergebnis der Volkszählung (1981) einen Anteil der kroatisch sprechenden österreichischen Wohnbevölkerung von nur 1,9% aufweist, also einen sehr kleinen Bevölkerungsprozentsatz, der noch nicht von einer ‚gemischten Bevölkerung‘ im dargelegten verfassungsrechtlichen Sinn sprechen läßt. (Bezöge man Art7 Z3 StV 1955 auf die—damals letzte—Volkszählung (1951), würde dies am Ergebnis nichts ändern: damals betrug der in Rede stehende Anteil nämlich nur 0,63%.)“
Anders als die Kärntner Landesregierung meint, ergibt sich daraus kein Hinweis darauf, dass der Verfassungsgerichtshof den Begriff (des Verwaltungsbezirkes mit) „gemischte(r) Bevölkerung“ in Art 7 Z 3 zweiter Satz des Staatsvertrages im Verhältnis zu jenem im ersten Satz dieser Bestimmung „differenziert“ gesehen hätte. Im Gegenteil: Das einheitliche Verständnis dieses Begriffes in beiden Bestimmungen wird geradezu aus Art 7 Z 3 zweiter Satz des Staatsvertrages von Wien entwickelt und—ausgehend davon—auf den ersten Satz dieser Bestimmung übertragen, und zwar auf Grund der Überlegung, dass es in beiden Bestimmungen nicht (nur) darum geht, einzelnen Minderheitsangehörigen Erleichterungen zu bringen, sondern—in Bezug auf den zweiten Satz—der Allgemeinheit Kenntnis zu geben, dass hier eine größere Zahl von Minderheitsangehörigen lebt bzw.—in Bezug auf den ersten Satz—einer solchen Gruppe von Minderheitsangehörigen die Bewahrung und Pflege der eigenen (Minderheiten-)Sprache zu ermöglichen. Dabei ist—mit Blick auf den hier vorliegenden Fall— besonders hervorzuheben, dass der Verfassungsgerichtshof in dem in Rede stehenden Erkenntnis der Statutarstadt Eisenstadt das Vorliegen des Tatbestandselementes „gemischte Bevölkerung“ , wie es—so wörtlich—Art 7 Z 3 des Staatsvertrages „insgesamt statuiert“, iW deshalb ausgeschlossen hat, weil diese Gemeinde nach den als maßgeblich erachteten Ergebnissen der einschlägigen sta-tistischen Erhebungen im Rahmen der Volkszählung „unter den Ortschaften mit mindestens 5% kroatisch sprechenden Einwohnern“ nicht aufscheint und „einen Anteil der kroatisch sprechenden österreichischen Wohnbevölkerung von nur 1,9% aufweist“. 3.2.2.3.2. Insoweit die Kärntner Landesregierung bei der Auslegung des Art 7 Z 3 des Staatsvertrages von Wien aber auf die Erläuterungen zur Regierungsvorlage des— mehr als ein Jahrzehnt nach dem Abschluss dieses Staatsvertrages erlassene—Volksgruppengesetzes (217 BlgNR 14. GP 9; s. dazu oben Pkt. II.1.2.1.) abstellt, ist insbesondere auf Folgendes hinzuweisen: Gerade angesichts des von Art 7 Z 3 des Staatsvertrages von Wien in der hier maßgeblichen Hinsicht deutlich abweichenden
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Wortlautes des Art 68 des Staatsvertrages von St. Germain (arg.: „... eine verhältnismäßig beträchtliche Zahl anderssprachiger als deutscher österreichischer Staatsangehöriger ...“ ) ist nicht zu sehen, inwiefern ausgerechnet diese Bestimmung für die Auslegung des Art 7 Z 3 des Staatsvertrages von Wien Bedeutung haben sollte. Auch der Hinweis in den erwähnten Erläuterungen auf den „Entwurf von dem dem italienisch-jugoslawischen Memorandum vom 5. Oktober 1954 angeschlossenen ‚statuto speziale per le minoranze‘“ geht angesichts der—wie soeben erwähnt—spezifischen Entstehungsgeschichte des Art 7 Z 3 des Staatsvertrages von Wien völlig ins Leere (vgl. dazu im Übrigen Veiter, Das neue vsterreichische Volksgruppenrecht, in: Veiter (Hrsg.), System eines internationalen Volksgruppenrechts, III. Teil, 1978, 300, 335f., der die Relevanz dieses Hinweises auch aus anderen Gründen in Zweifel zieht). 3.2.2.4. Der Gerichtshof ist daher der Auffassung, dass dem Begriff „gemischte Bevölkerung“ im Zusammenhang mit dem zweiten Satz des Art 7 Z 3 des Staatsvertrages von Wien keine andere Deutung gegeben werden kann als im ersten Satz (so schon Kolonovits, Einige Überlegungen zum aktuellen Erkenntnis des Verfassungsgerichtshofes zur Amtssprache, JBl. 2001, 356 (361)), hier allerdings auf Grund der oben angestellten Überlegungen im Sinne der Äußerungen der Kärntner Landesregierung und der Bundesregierung auf „Ortschaften“ bezogen. 3.2.3. Der Verfassungsgerichtshof sieht sich aber auch nicht veranlasst, von seiner ständigen Rechtsprechung abzugehen, der zu Folge bei Beurteilung der Frage, ob in einem bestimmten Gebiet eine größere Anzahl der dort wohnenden Personen zur Minderheit gehört, va. von einschlägigen statistischen Erhebungen auszugehen sei, die sich im Rahmen der Volkszählungen ergeben. Die diesbezüglichen Ausführungen in der Äußerung der Kärntner Landesregierung laufen letztlich darauf hinaus, dass die—von wem auch immer angestellten—Schätzungen über die Zahl der Volksgruppenangehörigen einerseits und die Volkszählungsergebnisse andererseits „auseinanderklaffen“ . Damit wird aber—und darauf kommt es in diesem Zusammenhang allein an—nicht dargetan, dass und aus welchem Grund die einschlägigen statistischen Erhebungen, die sich im Rahmen der Volkszählungen ergeben, nicht geeignet wären, das Vorliegen „gemischter Bevölkerung“ iSd. Art 7 Z 3 des Staatsvertrages von Wien für ein bestimmtes Gebiet zu ermitteln. (Im Übrigen wird darauf hingewiesen, dass jedenfalls nach dem von der Kärntner Landesregierung—offenbar als maßgeblich— zitierten „Grundlagenbericht der Bundesregierung über die Lage der Volksgruppen in Österreich“ (1991) für die hier in Rede stehende slowenische Volksgruppe in Kärnten das einschlägige Ergebnis der Volkszählung 1981—16.552—und das Ergebnis der Schätzung von amtlicher österreichischer Seite „auf derzeit (1980) 15.000 bis 18.000“ ohnedies gar nicht nennenswert differieren.) 4.1. Im Hinblick auf all diese Erwägungen erweist sich aber § 2 Abs 1 Z 2 Volksgruppengesetz, insoweit danach das Anbringen zweisprachiger topographischer Bezeichnungen auf Gebiet(steil)e beschränkt wird, in denen eine verhältnismäßig beträchtliche Zahl, nämlich ein Viertel, von nicht deutschsprachigen—hier also slowenischsprachigen—Volksgruppenangehörigen wohnhaft ist, als dem Art 7 Z 3 zweiter Satz des Staatsvertrages von Wien, der für österreichische Staatsangehörige
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u.a. der slowenischen Minderheit in Kärnten besondere Rechte statuiert, widersprechend und somit verfassungswidrig (in diesem Sinne auch Marauhn, Die rechtliche Stellung der Minderheiten in Österreich, in: Frowein/Hofmann/Oeter (Hrsg.), Das Minderheitenrecht europäischer Staaten, Teil 1 (1993) 225 (234); Öhlinger, Der Verfassungsschutz ethnischer Gruppen in Österreich, in: FS Koja (1998) 371 (380); Österreichische Rektorenkonferenz (Hrsg.), Lage und Perspektiven der Volksgruppen in Österreich (1989) 157). 4.2. Gemessen an der im Hinblick auf diese Aufhebung bestehenden Gesetzeslage verstößt aber die in Prüfung gezogene Bestimmung der Verordnung BGBl. 1977/306 aus den selben Erwägungen gegen § 2 Abs 2 Volksgruppengesetz wie dies für die mit dem Erkenntnis vom 4.10.2000 V91/99 (vgl. v.a. Pkt. III.3.3.) aufgehobene Bestimmung in § 2 Abs 2 Z 3 der Verordnung BGBl. 1977/307 zutraf. [...] Der Verfassungsgerichtshof bleibt—wie oben unter Pkt. III.3.2.2.4. ausgeführt— auch im hier vorliegenden Fall—in dem freilich auf Grund der oben angestellten Überlegungen im Sinne der Äußerungen der Kärntner Landesregierung und der Bundesregierung auf „Ortschaften“ abzustellen ist—bei dieser Rechtsprechung. Im Hinblick darauf ist auch noch eine Ortschaft, die wie die Ortschaft St. Kanzian am Klopeiner See in der gleichnamigen Gemeinde, über einen längeren Zeitraum betrachtet, einen Minderheitenprozentsatz von mehr als 10% aufweist, als Verwaltungsbezirk mit gemischter Bevölkerung iSd. Art 7 Z 3 zweiter Satz des Staatsvertrages von Wien zu qualifizieren. [...] 5. Die in Prüfung gezogenen Gesetzes- und Verordnungsbestimmungen waren somit im bezeichneten Umfang als verfassungs- bzw. gesetzwidrig aufzuheben. VII.
Immigration and emigration, extradition, expulsion, asylum/Einwanderung und Auswanderung, Auslieferung, Ausweisung, Asyl
4. Asylum/Asyl FF.VII.4.-1.
Administrative Court, Judgment No. 99/01/0359, dated 3 May 2000 Verwaltungsgerichtshof, Erkenntnis 99/01/0359 vom 3. Mai 2000 Kosovo—Geneva Convention Relating to the Status of Refugees—Articles 1 A.(2) and 1 C.(5)—persecution—fundamental change of circumstances for (re)determining refugee status by the presence of international authority (UNMIK) Kosovo—Genfer Konvention über die Rechtsstellung der Flüchtlinge—Artikel 1 A.(2) und 1 C.(5)—Verfolgung—wesentlich Änderung der Umstände für die (Wieder)Beurteilung des Flüchtlingsstatus durch internationale Präsenz (UNMIK) Facts The applicant in that case applied for asylum status which was denied by the Federal
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Asylum Authority27 in 1995. Upon appeal, the Federal Asylum Tribunal28 reversed the decision of the lower authority and granted asylum arguing that it was a wellknown fact that members of the Albanian ethnic group had to fear persecution for ethnic reasons. The threat of persecution and the effects of persecution were extremely serious and evoked a well-founded fear of persecution within the meaning of the 1951 Geneva Convention relating to the Status of Refugees. The Minister of the Interior filed a complaint with the Administrative Court on ground of illegality of the decision on appeal.29 Translation (full text of the reasons) As a preliminary matter it must be stated that it is uncontested between the litigating parties that […] as of mid-March 1999 any member of the Albanian ethnic group in Kosovo had to fear persecution by the Federal Republic of Yugoslavia merely for the reason of being a member of this ethnic group. It is however contested whether and when the prevailing circumstances have fundamentally changed due to the presence of the international authority in Kosovo so as to exclude any form of persecution relevant for asylum proceedings. 1. General considerations with regard to the effects of the administration mandated by the United Nations: In the present case, an administration by organs of the United Nations (UNMIK, supported by KFOR) was set up which exercises jurisdiction over the entire Kosovo as partial territory of the Federal Republic of Yugoslavia (see paras. 5, 10 and 19 of the United Nations Security Council Resolution 1244 of 10 June 1999). By concluding the military agreement of 9 June 1999 and the adoption of Resolution 1244 of 10 June 1999 by the UN Security Council, the Yugoslav or Serbian government, respectively, has acknowledged that it can no longer continue to persecute members of the Albanian ethnic group in Kosovo (partial loss of sovereignty). While the Kosovo province still is de iure part of the Federal Republic of Yugoslavia and its inhabitants still are Yugoslav nationals, the Yugoslav state lacks governmental control within the meaning of effective sovereign supremacy over this part of its territory. The Geneva Convention Relating to the Status of Refugees aims at providing effective protection against persecution in particular cases that are described in more detail in Article 1A(2). This is evidenced in particular by those provisions of the Geneva Convention which exclude its applicability to persons that are protected by
27
Bundesayslamt.
28
Bundesasylsenat.
29
§ 38(5) of the Asylum Law (Asylgesetz—AsylG) decisions of the Federal Asylum Tribunal are subject to further appeal to the Administrative Court. The Federal Minister of the Interior may lodge a complaint against a decision of the Tribunal, either in favour or against the applicant, on the ground that the decision of the Tribunal does not conform to the law.
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organs or authorities other than those of their countries of nationality (cf. Article 1D and E). The [Austrian] Asylum Law30 too builds on this concept of refugee status. It conforms to this protective purpose of the Geneva Convention if an administration is set up on the basis of a United Nations mandate in parts of the territory of a state which exercises effective control not just temporarily but on a medium-term basis. The existence of a state-like authority with effective control within the meaning of sovereign supremacy over a specific territory and which has in principle the ability to persecute somebody, is an indispensable requirement for determining whether and to what extent acts of persecution that would warrant the granting of asylum take place in that territory. The requirement that persecution must be carried out by some form of authority therefore means the abuse of authority that follows from the effective control over territory for the purpose of persecution or—in case of acts of persecution carried out by private individuals—the non-exercise of that effective control that would be required to protect persons from persecution (in this sense see also the decision of the German Federal Administrative Tribunal in NVwZ-RR 1995, page 54, at page 55, and in NVwZ 1990, at page 151). According to this understanding [of the concept of persecution], it must be examined in the following whether applicant still had to fear persecution in Kosovo that would warrant the granting of asylum at the time of the issuance of the challenged individual decision [in which he was granted asylum]. For that purpose the view of the authority [having granted asylum] must be addressed according to which the “degree of future autonomy” of the Kosovo province is to be examined. In case of exercise of administration by an international protection unit on behalf of the United Nations in the territorially limited area of the Kosovo province it is only relevant whether the applicant actually no longer has to fear persecution in the future; in contrast the future status of this territory according to international law is immaterial. In such case, it is not the legal restriction upon the sovereignty of the Federal Republic of Yugoslavia that is important but solely the type and scope of administration that is actually being exercised in the Kosovo province. 2. As to the change of the circumstances after 9 June 1999: The lower authority is correct in assuming that fundamental political changes in the state from which the asylum seeker has fled because of alleged well-founded fear of persecution on the grounds contained in the Geneva Convention may well warrant the assumption that the motive for the fear of persecution does no longer exist. However, a mere—and probably only temporary—change of circumstances that were, among other reasons, the concomitant cause for the refugee’s fear but that did not substantially change those circumstances that rendered the asylum seeker a refugee within the meaning of Article 1A(2) of the Geneva Convention does not justify the assumption that the asylum seeker does no longer meet the criteria for refugee status […]
30
Asylgesetz—AsylG.
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The Federal Republic of Yugoslavia and NATO concluded a military agreement on 9 June 1999, which provided for the withdrawal of all Serb soldiers, special police forces, anti-terror as well as paramilitary forces [from Kosovo] within eleven days. Along similar lines, by resolution 1244 of the United Nations Security Council of 10 June 1999, the Council decided on the deployment, under United Nations auspices, of international civil and security units to Kosovo and welcomed the acceptance thereof by the Federal Republic of Yugoslavia. The military enforcement was undertaken by KFOR. This resolution i.a. also authorised the Secretary-General of the United Nations to establish an international interim administration for Kosovo. This was done by setting up the “United Nations Interim Administration Mission in Kosovo”—UNMIK—which gradually took up its work in June/July 1999. According to para. 19 of resolution 1244 of the UN Security Council, dated 10 June 1999, the international civil and security presence were established for an initial period of 12 months, to continue thereafter unless the Security Council decides otherwise. The Administrative Court considers the wake of the military agreement of 9 June 1999, the UN Security Council Resolution 1244 following thereupon, the commencing withdrawal of the Serb forces and the successive deployment of KFOR units as a change of circumstances for the benefit of the members of the Albanian ethnic group in Kosovo, even if this change has not yet risen to the level of being fundamental. […] However, the Administrative Court concludes that as of 20 June 1999, these changes have amounted to fundamental ones for the following reasons: As reported in the media, the Kosovo Liberation Army (KLA) immediately deployed their forces in those areas of the Federal Republic of Yugoslavia deserted by the official Yugoslav authorities. Therefore, the entity having previously been responsible for persecution (“Serbia” or the Federal Republic of Yugoslavia, respectively) did no longer possess effective authority and control in the province of Kosovo. The completed withdrawal of the Serb forces, together with the military presence of KFOR and the period of the mandate by the UN Security Council render it in fact very unlikely that as of 20 June 1999 members of the ethnic Albanian group in Kosovo will in the near future have to fear persecution within the meaning of the Geneva Convention by “Serbia” or the Federal Republic of Yugoslavia, respectively. Consequently the circumstances that have warranted the granting of refugee status in accordance with Article 1A(2) of the Geneva Convention in the past do no longer persist. 3. […] 4. With regard to the relationship between Article 1A(2) and Article 1C(5) of the Geneva Convention and with regard to the question whether Article 1C(5) of the Geneva Convention contains a provision on reasonableness: In the present case the fear of persecution of the applicant emanated from his country of nationality—i.e., in terms of international law the Federal Republic of Yugoslavia—at a point in time where Yugoslavia still possessed effective control
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over Kosovo. The current authority having control in Kosovo is the administration having been established by a mandate of the United Nations. In view of the divergence […] between the (former) persecutor Federal Republic of Yugoslavia and the (current) authority mandated by the United Nations on the one hand, and given the structure of the population in Kosovo (i.e., the overwhelming majority of inhabitants being ethnic Albanians) on the other hand, it is neither necessary to dwell on the relationship […] between Article 1A(2) and Article 1C(5) of the Geneva Convention nor to settle the question whether Article 1C(5) of the Geneva Convention contains a provision of reasonableness also in relation to persons who (previously) fell under Article 1A(2) of the Convention, the more so as this question is only relevant in cases to which Article 1C(5) is applicable at all. Even if one were to accept in principle the applicability of Article 1C(5) of the Convention to persons who were to be considered in substance as refugees after they had left their country of nationality and, further, even if one were to consider that this provision entailed a requirement of reasonableness that were also applicable to refugees according to Article 1A(2) of the Convention, this would have no bearing on the specific situation in Kosovo, neither before it has fundamentally changed as examined in point 2. supra, nor after such change. The reason for this conclusion is that before the occurrence of a fundamental change of circumstances the refugee status is, in its substance, to be recognised. After the occurrence of a fundamental change the question is not relevant as to whether it is reasonable for a person to avail himself of the protection of the Federal Republic of Yugoslavia as the state that has (previously) persecuted him because in the specific circumstances of the present case, there is no identity (under international law) between the (former) persecutor and the (current) authority and since the examination of reasonableness refers to the previous persecution—which follows from the wording of Article 1C(5), second sentence, of the Convention: “invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of origin”—and since it was only the authorities of the Federal Republic of Yugoslavia and not the majority population of ethnic Albanians that were responsible for this previous persecution. For these reasons the individual decision granting asylum was flawed and therefore to be abrogated […]. German original (full text of the decision) Mit dem in der öffentlichen mündlichen Verhandlung vom 23. Juni 1999 verkündeten Bescheid gab die belangte Behörde der Berufung des Mitbeteiligten gegen den Bescheid des Bundesasylamtes vom 6. Dezember 1995 statt und gewährte ihm gemäß § 7 Asylgesetz 1997 idF BGBl. I Nr. 4/1999 – AsylG, Asyl. Sie stellte gemäß § 12 AsylG fest, dass dem Mitbeteiligten damit kraft Gesetzes die Flüchtlingseigenschaft zukomme. Der Mitbeteiligte sei Staatsangehöriger der Bundesrepublik Jugoslawien, stamme aus dem Kosovo und gehöre der albanischen Volksgruppe an. Gestützt auf „notorische Tatsachen“ stehe „zunächst fest, dass für Angehörige der albanischen
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Minderheit im Kosovo eine insbesondere aus ethnischen Gründen verursachte Verfolgungsgefahr besteht bzw. bestanden hat und die Folgen dieser Verfolgungsgefahr derzeit noch nicht beseitigt sind. ... Die Verfolgungsgefahren bzw. Deren Auswirkungen sind bzw. waren von außergewöhnlicher Intensität und Schwere; sie sind bzw. waren sohin regelmäßig geeignet, für den Betroffenen eine wohlbegründete Furcht vor Verfolgung hervorzurufen“. Die belangte Behörde setzte fort: „Aus den Medien allgemein bekannt sind auch die mit dem Friedensabkommen, mit dem Einmarsch der NATO-Verbände und dem Rückzug des serbischen Militärs (ansatzweise beginnend ab dem 10.6.1999; siehe z.B. Der Standard, 10.6.1999; Die Weltwoche, 10.6.1999; Der Standard, 11.6.1999; Der Standard, 14.6.1999; NZZ, 14.6.1999; Die Presse, 15.6.1999; NZZ, 15.6.1999; SZ, 15.6.1999; Die Welt, 16.6.1999; siehe weiters Der Standard vom 21.6.1999, ‚Serbische Soldaten aus Kosovo abgezogen‘; NZZ vom 21.6.1999, ‚Alle serbischen Truppen aus Kosovo abgezogen‘) und der serbischen Polizeiverbände eingetretenen Änderungen der Lage im Kosovo; dennoch bleibt die Nachhaltigkeit und das endgültige Ausmaß der Änderung der Lage im Kosovo zum gegenwärtigen Zeitpunkt in vieler Hinsicht unklar. Derzeit kann nicht gesagt werden, ob und inwieweit die NATO die Lage im Kosovo tatsächlich unter Kontrolle bringt (siehe dazu etwa SZ, 16.6.1999; Standard vom 26./27.6.1999, ‚Mord, Brand und Plünderung‘), ob sie etwa die—häufig auch in Zivil agierenden— serbischen Milizen, soweit sie sich teilweise noch immer im Kosovo befinden, tatsächlich und auf Dauer davon abhalten kann, weitere Gräueltaten zu begehen, oder ob sie serbische Einheiten tatsächlich und effektiv davon abhalten kann, über die Grenzen zur Bundesrepublik Jugoslawien in den Kosovo zu infiltrieren. Zudem sind in Zukunft Racheakte an der serbischen Bevölkerung im Kosovo und an (albanischstämmigen) ‚Kollaborateuren‘ nicht auszuschließen (siehe z.B. Standard vom 21.6.1999, ‚Mit Terror vertreibt die UCK die Serben aus ihren Dörfern‘; NZZ vom 21.6.1999, ‚Alle serbischen Truppen aus Kosovo abgezogen. Umkehr der ethnischen Säuberungen—Schlüsselrolle der UCK‘; Standard vom 19./20.6.1999, ‚Übergriffe der UCK. 50.000 Serben geflohen‘). Völlig ungewiss ist derzeit, wie die Verwaltung (insbesondere die Polizeiverwaltung) und die Gerichtsbarkeit im Kosovo gestaltet sein wird (siehe z.B. Standard vom 26./27.6.1999, ‚Mord, Brand und Plünderung‘) und ob bzw. inwieweit sich hier ein Einfluss der Bundesrepublik Jugoslawien herausbilden wird (vgl. Wiener Zeitung vom 25.6.1999, ‚Kosovo ohne Serben undenkbar‘). Im Lichte des gegenständlichen Falles ist hervorzuheben, dass der Entscheidung jener maßgebende Sachverhalt zu Grunde zu legen war, wie er sich am 23.6.1999 zum Zeitpunkt der Bescheidverkündung dargestellt hat (siehe dazu § 76g AVG); zu diesem Zeitpunkt war der Abzug der serbischen Einheiten—dieser verbunden mit weiteren schweren Menschenrechtsverletzungen (vgl. z.B. Der Standard, 14.6.1999; NZZ, 14.6.1999)—offiziell schon abgeschlossen, doch führten internationale Organisationen zu diesem Zeitpunkt auf Grund der unsicheren Lage keine—auch nur eingeschränkte - Rückführungsmaßnahmen betreffend Flüchtlinge aus dem Kosovo durch.“ In rechtlicher Sicht kam die belangte Behörde zum Ergebnis, dass es sich bei der Situation im Kosovo jedenfalls bis zum 9. Juni 1999 um eine systematische Verfolgung
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aller Angehörigen der Volksgruppe der Albaner im Kosovo durch die Bundesrepublik Jugoslawien handelte. Zum Zeitpunkt der Entscheidung stehe die Nachhaltigkeit der Änderungen im Kosovo seit dem 9. Juni 1999 nicht fest. Ungewiss seien die Ausgestaltung der Verwaltung und der Gerichtsbarkeit sowie der zukünftige „Aktionsradius“ serbischer Verbände im Kosovo, aber auch der Grad der zukünftigen Autonomie des Kosovo. Eine „wohlbegründete Furcht vor Verfolgung“ albanisch-stämmiger Staatsbürger der Bundesrepublik Jugoslawien sei deshalb „nicht von vornherein von der Hand zu weisen“. Auch eine inländische Fluchtalternative im gesamten Gebiet der Bundesrepublik Jugoslawien stehe nicht zur Verfügung. Des Weiteren liege auch keiner der in Art. 1 Abschnitt C der Genfer Flüchtlingskonvention—GFK—enthaltenen Endigungstatbestände vor. Gegen diesen Bescheid richtet sich die gemäß § 38 Abs. 5 AsylG erhobene Amtsbeschwerde des Bundesministers für Inneres. Im Ergebnis ist der Beschwerdeführer der Ansicht, dass auf Grund der seit dem 9. Juni 1999 eingetretenen Änderungen im Kosovo dem Mitbeteiligten nicht hätte Asyl gewährt werden dürfen. Der Verwaltungsgerichtshof hat erwogen: Vorauszuschicken ist, dass zwischen den Verfahrensparteien nicht strittig ist, dass— wie auch der Verwaltungsgerichtshof wiederholt (z.B. im hg. Erkenntnis vom 12. Mai 1999, Zl. 98/01/0300) ausgesprochen hat—ab Mitte März 1999 jedem Angehörigen der albanischen Volksgruppe im Kosovo allein wegen seiner Zugehörigkeit zu dieser Volksgruppe Verfolgung durch die Bundesrepublik Jugoslawien drohte. Strittig ist hingegen, ob und wann sich auf Grund der internationalen Präsenz im Kosovo eine wesentliche Änderung der Umstände ergab, sodass nicht mehr vom Vorliegen einer asylrelevanten Verfolgung ausgegangen werden könne. 1) Grundsätzliches zur Auswirkung einer Verwaltung im Auftrag der Vereinten Nationen: Im gegenständlichen Fall wurde für das gesamte Teilgebiet Kosovo der Bundesrepublik Jugoslawien eine die Gebietshoheit umfassende Verwaltung durch Organe der Vereinten Nationen (UNMIK, unterstützt durch KFOR) eingerichtet (vgl. insbesondere Punkt 5, 10 und 19 der Resolution 1244 des Sicherheitsrates der Vereinten Nationen vom 10. Juni 1999). Mit Abschluss des Militärabkommens vom 9. Juni 1999 und der Akzeptanz der Resolution des UN-Sicherheitsrates Nr. 1244 vom 10. Juni 1999 hat die jugoslawische bzw. serbische Regierung hingenommen, dass ihre Möglichkeiten für eine andauernde Verfolgung von Angehörigen der albanischen Volksgruppe im Kosovo beseitigt werde (Teilverlust der Souveränität). Die Provinz Kosovo gehört zwar de iure nach wie vor der Bundesrepublik Jugoslawien an. Ihre Einwohner sind auch jugoslawische Staatsbürger. Dem jugoslawischen Staat fehlt aber für diesen Teil seines Territoriums nunmehr die Staatsgewalt im Sinne wirksamer hoheitlicher Überlegenheit. Die GFK bezweckt den effektiven Schutz vor Verfolgung in näher umschriebenen Fällen (Art. 1 Abschnitt A Z. 2 GFK). Dies zeigt sich insbesondere in jenen Bestimmungen der GFK, welche die Anwendung der GFK auf solche Personen
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ausschließen, die durch andere Organe oder Behörden als jene ihrer Heimat geschützt sind (vgl. Art. 1 Abschnitt D und E GFK). Auf diesem inhaltlichen Begriff der Flüchtlingseigenschaft baut auch das AsylG auf. Diesem Schutzzweck der GFK wird es jedenfalls gerecht, wenn in einem Teilgebiet eines Staates ein auf Grund eines Auftrages der Vereinten Nationen eingerichteter Machtapparat die tatsächliche Ordnungsgewalt effektiv und nicht nur vorübergehend ausübt. Denn das Bestehen einer (quasi)staatlichen Herrschaftsmacht mit effektiver Gebietsgewalt im Sinne hoheitlicher Überlegenheit in einem bestimmten Gebiet, die überhaupt in der Lage ist, Verfolgung auszuüben, ist notwendige Voraussetzung für die Beurteilung, ob und inwieweit in diesem Gebiet asylrelevante Verfolgung besteht. „Staatlichkeit“ der Verfolgung bedeutet sohin den Missbrauch einer aus der Gebietshoheit folgenden Herrschaftsmacht zum Zwecke der Verfolgung oder, bei Vornahme von Verfolgungshandlungen durch Private, die Nichtausübung der Gebietshoheit zum Schutz vor Verfolgung (in diesem Sinne auch das deutsche Bundesverwaltungsgericht, NVwZRR 1995, 54 (55), bzw. das deutsche Bundesverfassungsgericht NVwZ 1990, 151). Im Sinne dieses Verständnisses ist in der Folge zu prüfen, ob dem Mitbeteiligten zum Zeitpunkt der Erlassung des angefochtenen Bescheides am 23. Juni 1999 noch weiterhin asylrelevante Verfolgung im Kosovo drohte. Hiebei ist zunächst auf die Ansicht der belangten Behörde einzugehen, es müsse der „Grad der zukünftigen Autonomie“ der Provinz Kosovo geprüft werden. Im Falle der Ausübung der Verwaltung durch eine internationale Schutztruppe im Auftrag der UNO im räumlich abgegrenzten Gebiet der Provinz Kosovo kommt es lediglich darauf an, ob in einer nachhaltigen Weise für die weitere Zukunft die Verfolgung des Mitbeteiligten nicht mehr zu erwarten ist, jedoch nicht auf den zukünftigen völkerrechtlichen Status dieses Gebietes. In diesem Fall ist nicht die rechtliche Einschränkung der Souveränität der Bundesrepublik Jugoslawien maßgeblich, sondern allein Art und Umfang der tatsächlichen Ausübung der Verwaltung in der Provinz Kosovo. 2) zur Änderung der Situation nach dem 9. Juni 1999: Dem Beschwerdeführer ist beizupflichten, dass grundlegende politische Veränderungen in dem Staat, aus dem der Asylwerber aus wohlbegründeter Furcht vor asylrelevanter Verfolgung geflüchtet zu sein behauptet, die Annahme begründen können, dass der Anlass für die Furcht vor Verfolgung nicht (mehr) länger bestehe. Allerdings reicht eine bloße—möglicherweise vorübergehende—Veränderung der Umstände, die für die Furcht des betreffenden Flüchtlings vor Verfolgung mitbestimmend waren, jedoch keine wesentliche Veränderung der Umstände mit sich brachten, die zur Ansehung des Asylwerbers als Flüchtling im Sinne des Art. A Abschnitt 1 Z. 2 GFK führten, nicht aus, um nicht mehr von der Flüchtlingseigenschaft des Asylwerbers zum Beurteilungszeitpunkt auszugehen (vgl. z.B. das hg. Erkenntnis vom 21. Jänner 1999, Zl. 98/20/0399). Zwischen der NATO und der Bundesrepublik Jugoslawien wurde am 9. Juni 1999 ein Militärabkommen abgeschlossen, das u.a. den Abzug aller serbischen Soldaten, Sonderpolizisten, Anti-Terror-Einheiten und Paramilitärs innerhalb von elf Tagen vorsah. Mit der daran anknüpfenden Resolution Nr. 1244 des UN-Sicherheitsrates vom 10. Juni 1999 wurde für den Kosovo unter Aufsicht der United Nations die
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Einrichtung einer internationalen Zivil- und Sicherheitspräsenz („international civil and security presences“) beschlossen, die Zustimmung der Bundesrepublik Jugoslawien hiezu wurde begrüßt („... welcomes the agreement...“). Die militärische Durchsetzung erfolgte durch die KFOR. In der Resolution wurde u.a. auch der UN-Generalsekretär ermächtigt, im Kosovo eine internationale provisorische Zivilverwaltung einzurichten. Diese „United Nations Interim Administration Mission in Kosovo“— UNMIK—nahm ihre Tätigkeit im Zeitraum Juni/Juli 1999 schrittweise auf. Gemäß Punkt 19 der Resolution 1244 des UN-Sicherheitsrates vom 10. Juni 1999 werden die „civil and security presences“ zunächst für eine Dauer von zwölf Monaten („for an initial period“) eingerichtet, wobei sich dieser Zeitraum automatisch verlängert, sofern der Sicherheitsrat nicht Abweichendes beschließt. Der Verwaltungsgerichtshof sieht im Gefolge des Militärabkommens vom 9. Juni 1999, der daran anknüpfenden Resolution Nr. 1244 des UN-Sicherheitsrates vom 10. Juni 1999, dem beginnenden Rückzug der serbischen Truppen und dem Nachrücken der Verbände der KFOR eine—zunächst noch nicht wesentliche—Veränderung der Umstände zu Gunsten der Angehörigen der Volksgruppe der Albaner im Kosovo als gegeben an. Zur Situation bis zum 20. Juni 1999 verweist der Verwaltungsgerichtshof gemäß § 43 Abs. 2 VwGG auf die hg. Erkenntnisse vom 24. November 1999, Zl. 99/ 01/0344, und vom 19. Jänner 2000, Zl. 99/01/0345. Der Verwaltungsgerichtshof kommt jedoch aus folgenden Gründen zum Ergebnis, dass ab 20. Juni 1999 diese Änderung zu einer wesentlichen Änderung wurde: Wie in den Medien berichtet, rückte die UCK sofort in die von den Einheiten der Bundesrepublik Jugoslawien verlassenen Gebiete nach. Der Einmarsch der internationalen Schutztruppe schritt voran. Der Rückzug der serbischen Verbände war am 20. Juni 1999 abgeschlossen. Somit steht dem vormaligen Verfolger („Serbien“ bzw. Bundesrepublik Jugoslawien) in der Provinz Kosovo kein effektiver Machtapparat mehr zu Verfügung. Der vollständige Abzug der serbischen Verbände im Zusammenwirken mit der militärischen Präsenz der KFOR und der Zeitdauer des UN-Sicherheitsratsmandates lassen ab dem Zeitpunkt 20. Juni 1999 eine weitere asylrelevante Verfolgung von Angehörigen der albanischen Volksgruppe im Kosovo durch „Serbien“ bzw. die Bundesrepublik Jugoslawien als nachhaltig unwahrscheinlich erscheinen. Damit bestehen die für die Ansehung als Flüchtling im Sinne des Art. 1 Abschnitt A Z. 2 GFK in der Vergangenheit vorgelegenen Umstände nicht mehr. 3) zur „inländischen Fluchtalternative“: Insoweit die belangte Behörde argumentiert, es stehe dem Mitbeteiligten keine inländische Fluchtalternative zur Verfügung, erübrigt es sich aus der Sicht des Beschwerdefalles im Hinblick auf Punkt 2) näher darauf einzugehen. 4) zur Prüfung des Verhältnisses zwischen Art. 1 Abschnitt A Z. 2 GFK zu Art. 1 Abschnitt C Z. 5 GFK sowie der Frage, ob Art. 1 Abschnitt C Z. 5 GFK eine Zumutbarkeitsklausel enthält: Im gegenständlichen Fall ging die Verfolgungsgefahr vom (völkerrechtlichen) Heimatland des Mitbeteiligten, der Bundesrepublik Jugoslawien, zu einem Zeitpunkt aus, als dieses im Kosovo noch über die tatsächliche Macht verfügte. Der nunmehrige
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Machthaber ist aber die im Auftrag der Vereinten Nationen errichtete Verwaltung. Bei dem in der gegenständlichen Situation anzutreffenden Auseinanderklaffen zwischen (ehemaligem) Verfolger Bundesrepublik Jugoslawien und (nunmehrigem) Machthaber im Auftrag der UNO einerseits und der Bevölkerungsstruktur im Kosovo (überwiegend albanisch-stämmige Bewohner) andererseits braucht weder das von der belangten Behörde ausgeführte, vom Beschwerdeführer bekämpfte Zusammenspiel zwischen Art. 1 Abschnitt A Z. 2 und Art. 1 Abschnitt C Z. 5 GFK noch die—nur im Fall der Anwendbarkeit des Art. 1 Abschnitt C Z. 5 GFK relevante—Frage rechtlich geklärt werden, ob diese Bestimmung eine Zumutbarkeitsklausel auch für Personen, die (früher) unter Art. 1 Abschnitt A Z. 2 GFK fielen, enthält oder nicht. Selbst wenn man die grundsätzliche Anwendbarkeit des Art. 1 Abschnitt C Z. 5 GFK auf Personen bejahte, die nach dem Verlassen ihrer Heimat materiell als Flüchtlinge anzusehen waren, und in der letztgenannten Bestimmung eine Zumutbarkeitsprüfung enthalten sähe, die auch auf Flüchtlinge gemäß Art. 1 Abschnitt A Z. 2 GFK anzuwenden ist, hätte dies bei der konkreten Situation im Kosovo weder auf den Fall einer Situation vor Eintritt einer wesentlichen Änderung im Sinne des Punktes 2) noch auf den Fall nach Eintritt einer solchen Änderung Auswirkungen. Denn vor Eintritt einer wesentlichen Änderung ist die materielle Flüchtlingseigenschaft weiter zu bejahen. Nach Eintritt der wesentlichen Änderung stellt sich die Frage der Zumutbarkeit der Inanspruchnahme des Schutzes durch den (vormaligen) Verfolgerstaat Bundesrepublik Jugoslawien im konkreten Zusammenhang mangels (völkerrechtlicher) Identität zwischen (früherem) Verfolger und (jetzigem) Machthaber gar nicht, weil sich die Prüfung der Zumutbarkeit auf die frühere Verfolgung bezieht (arg. aus Art. 1 Abschnitt C Z. 5 zweiter Absatz: „... des Schutzes durch ihr Heimatland aus triftigen Gründen, die auf frühere Verfolgung zurückgehen...“) und diese ausschließlich auf die Behörden der Bundesrepublik Jugoslawien und nicht auf die albanisch-stämmige Bevölkerungsmehrheit im Kosovo zurückging. Der angefochtene Bescheid erweist sich daher mit Rechtswidrigkeit seines Inhaltes belastet, weshalb er gemäß § 42 Abs. 2 Z. 1 VwGG aufzuheben war. FF.VII.4.-2.
Administrative Court, Decision No. 2003/01/0059, dated 16 July 2003 Verwaltungsgerichtshof, Erkenntnis 2003/01/0059 vom 16. Juli 2003 Kosovo—“policy of destruction” by Serb forces—economic and social conditions in home country —article 3 ECHR —amendment of domestic law to implement judgment of ECtHR Kosovo—„Zerstörungspolitik“ der Serbischen Einheiten—wirtschaftliche und soziale Bedingungen im Heimatstaat—Artikel 3 EMRK—innerstaatliche Gesetzesänderung zur Umsetzung eines EGMR-Urteiles
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Facts The complainant in this case was a national of the former Federal Republic of Yugoslavia and belonged to the ethnic Albanian group in Kosovo. Upon his entry in Austria he filed an application for asylum based on the deplorable economic and social situation in Kosovo in general and the complainant’s individual situation in particular. Due to the destruction of their house during the war in former Yugoslavia, the family had to live in a makeshift tent, and they were completely dependent on food supplies. The complainant argued that his deportation to Kosovo would violate Article 3 of the European Convention on Human Rights (ECHR) given the complete lack of means of subsistence upon his return to Kosovo. The lower authorities rejected the application on the grounds that the complainant neither belonged to any group of persons recognised by the Office of the United Nations High Commissioner for Refugees as being in particular need of protection nor had he submitted any facts that would indicate that he would suffer any threat against his person. A general situation in the country of origin that is characterised by inferior economic and social conditions would not suffice of itself to justify the granting of asylum status. Finally, a deportation of the complainant back to Kosovo would not breach Article 3 ECHR as he would not lack any means of subsistence upon his return, notwithstanding the poor living conditions caused by the war. The Administrative Court held (excerpt): 1. […] It may well be true that the general conditions [in Kosovo] have worsened since mid-1999 as emphasised in the complaint. However, as regards the reasons for the demonstrated situation of economic distress, the Administrative Court is unable to acknowledge that—concerning the “destruction by Serbian authorities” that were invoked by complainant—the situation has worsened. On the one hand, it cannot be discerned that “Serbia” or, for that matter, the (former) Federal Republic of Yugoslavia has continued to carry out acts of destruction or devastation; on the other hand, the complainant has not contested the determination of facts by the lower authorities that, for instance, the minesweeping [in the area] had been successfully concluded in 2001 which showed that at least partially the immediate aftermath of the “policy of destruction by the Serbian-nationalist regime of the Yugoslav state in Kosovo”—as submitted by complainant—had been eliminated. The conditions, on which the decision of the Administrative Court no. 99/01/0359 (dated 3 May 2000)31 is based, continue to exist, in particular if one keeps in mind the already mentioned “policy of destruction”. The Court can therefore proceed on its previous decision to this effect […]. It must be added that the UN administration would also be responsible for the economic state of necessity as a consequence of the “policy of destruction” inasmuch as—on condition that the allegations of the complainant are correct—it would have 31
See supra VII.4.-1.
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to be assumed that appropriate measures to remedy or mitigate this state of emergency have been omitted since the instalment of UNMIK. That this fact was based on grounds relevant for the granting of asylum [such as persecution for ethnic reasons] cannot be reasonably maintained. 2. [The relevant legal provision applicable in the present case was § 57 of the Law on Aliens32 that had been amended in 2002 and which now provides as follows:] “The return or deportation of aliens to a state is not permitted if this violated articles 2 or 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms or Protocol no. 6 thereto concerning the Abolition of the Death Penalty.”
According to the explanatory report to the amendment of the Law of Aliens […], the object of the new wording of § 57 was to implement the judgment of the European Court of Human Rights in Ahmed v. Austria.33 The amendment of the law conformed to the intentions of the European Court of Human Rights. It would thus be made clear that the return or deportation of aliens to a state is impermissible if there are sound reasons to assume that the persons affected run the risk of being subject to inhuman treatment or punishment or to the death penalty in that country or if the return or deportation is otherwise an inhuman treatment. The new wording, in accordance with the explanatory report just reproduced, codifies an understanding of the law […] that has been adopted by the Administrative Court already in its previous case law […]. […] Pursuant to th[e] case law of the European Court of Human Rights [with regard to the permissibility of deportation of aliens under article 3 ECHR] it is essential whether the deportation would put the person concerned in “inhuman conditions”. In view of the fact that recommendations of international organisations to refrain from deporting particular groups of persons in a specific territory have evidential value […], it is obvious that in the case at hand it is necessary to scrutinise meticulously the situation of those persons who are described as “vulnerable individuals” in the UNHCR Position on the Continued Protection Needs of Individuals from Kosovo,34 a document invoked by the respondent authority. [L]ack of accommodation and/or undernourishment will impede for instance the deportation of mothers of infants. This consideration may also be applied to sick or older persons depending on the particular circumstances. Such a consideration does however not permit the reverse argument that (healthy) adults may generally be deported in conformity with article 3 ECHR given the humanitarian conditions in the country of destination. In the present case, however, the Administrative Court shares the view of the
32
Fremdengesetz = FrG.
33
Judgment of the European Court of Human Rights, 17 December 1996, Application no. 25964/94.
34
April 2002, available at http://www.unhcr.ch/cgi-bin/texis/vtx/home/opendoc.pdf?tbl= SUBSITES&id=3cd1590d7
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respondent authority that the 19 years old complainant, who is obviously healthy, may be deported to Kosovo without article 3 ECHR being violated. In his complaint the complainant admits that he (and his family) do not suffer from food shortage. According to the factual assessment by the asylum authority in the challenged individual administrative decision35 [in which the complainant was denied asylum status] this is due to the support by friends and relatives. Likewise, the conditions as reported in the UNHCR position mentioned above do not indicate any existential problems of the Albanian majority population in Kosovo with regard to food supplies – unless there are any special needs. As regards housing, the situation of the complainant is no doubt precarious. However, given the fact that the complainant has heating facilities the threshold of article 3 ECHR appears not to have been reached in the specific case. On the whole, the Court has also to take into account the existing family ties [in Kosovo] and his relatively short presence in Austria which means that he does not face the problem of being “uprooted” in Kosovo. Finally, it must be pointed out that the complainant does not belong to a group of persons which, according to the UNHCR (see the paper mentioned above), are in need of special protection in view of the conditions in Kosovo. German original (full text of the decision): Der Beschwerdeführer, ein Staatsangehöriger der (ehemaligen) Bundesrepublik Jugoslawien, stammt aus dem Kosovo und gehört der albanischen Volksgruppe an. Er reiste am 26. August 2002 in das Bundesgebiet ein und stellte in der Folge einen Asylantrag. Dieser wurde vom Bundesasylamt, welches unter einem aussprach, dass die Zurückweisung, Zurückschiebung oder Abschiebung des Beschwerdeführers „nach der Bundesrepublik Jugoslawien, Provinz Kosovo” gemäß § 8 AsylG zulässig sei, gemäß § 7 AsylG abgewiesen. Der dagegen erhobenen Berufung gab der unabhängige Bundesasylsenat mit dem angefochtenen Bescheid „gemäß §§ 7, 8 AsylG“ keine Folge. In der Begründung ihrer Entscheidung traf die belangte Behörde Feststellungen zur allgemeinen Lage im Kosovo. [...] [...] Zusammenfassend führte die belangte Behörde—ua. unter Berufung auf die „UNHCR-Position zur fortdauernden Schutzbedürftigkeit von Personen aus dem Kosovo, April 2002“—aus, dass Kosovo-Albaner aus Orten im Kosovo, in denen die Angehörigen ihrer Volksgruppe die Mehrheit bildeten, ohne individuelle Schutzprobleme zurückkehren könnten; für sie sei die frühere Situation der systematischen Diskriminierung, Schikanierung und Verfolgung nicht mehr gegeben. Insgesamt ergebe sich, dass die aktuelle wirtschaftliche Situation angesichts hoher Arbeitslosigkeit sehr schlecht sei. Angesichts der Hilfe der internationalen Organisationen sei jedoch nicht zweifelhaft, dass zumindest die lebensnotwendigste Grundversorgung,
35
Bescheid.
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Unterkunft, Verpflegung und medizinische Mindestversorgung gewährleistet seien. Der Beschwerdeführer—so die belangte Behörde weiter—gehöre der albanischen Volksgruppe an, sei Moslem und habe Familienangehörige im Kosovo, nämlich seine Mutter, seinen Großvater, zwei Onkeln und zwei Tanten sowie drei Brüder im Alter von 10, 15 und 18 Jahren. Sein Vater sei im Krieg ums Leben gekommen. Das Elternhaus sei größtenteils zerstört, weswegen der Beschwerdeführer vor seiner Ausreise mit seiner Mutter und den drei Brüdern, fallweise auch mit seinem Großvater, in einem notdürftig errichteten Zelt neben dem zerstörten Haus gelebt habe. Nahrungsmittel in gerade noch ausreichendem Maß sowie Holz zum Kochen und für die Heizung seien der Familie von Freunden und Verwandten zur Verfügung gestellt bzw. sei Holz zusätzlich durch eigenes Sammeln zusammengetragen worden. Obzwar die Lebensverhältnisse des Beschwerdeführers im Kosovo kriegsbedingt äußerst schwierig und bescheiden seien, sei davon auszugehen, dass im Falle einer Rückkehr zumindest eine bescheidenste Existenzgrundlage gesichert wäre. Er gehöre keiner von UNHCR angeführten besonders schutzbedürftigen Personengruppe an und habe keine persönliche Bedrohung vorgebracht. In rechtlicher Hinsicht vertrat die belangte Behörde die Ansicht, dass alleine in allgemeinen schlechten wirtschaftlichen und sozialen Bedingungen keine staatliche Verfolgung gesehen werden könne, weshalb die Gewährung von Asyl nicht in Betracht komme. Auch eine Gefährdung im Sinne des § 57 Abs. 1 und/oder Abs. 2 FrG liege nicht vor. Soweit sich der Beschwerdeführer der Sache nach auf die schlechte wirtschaftliche Situation im Kosovo berufe, sei auszuführen, dass derart exzeptionelle Umstände, die eine Rückführung im Hinblick auf außerhalb staatlicher Verantwortlichkeit liegende Gegebenheiten im Zielstaat im Widerspruch zu Art. 3 EMRK erscheinen lassen könnten, im Fall des Beschwerdeführers „nicht anzuerkennen“ seien. Vor dem Hintergrund der Feststellungen sei nämlich trotz der ärmlichen kriegs- und nachkriegsbedingten Lebensumstände des Beschwerdeführers nicht davon auszugehen, dass ihm bei einer Rückführung in den Kosovo jegliche Lebensgrundlage fehlen würde und er in Ansehung existentieller Grundbedürfnisse (wie etwa Nahrung, Unterkunft) einer lebensbedrohenden Situation ausgesetzt wäre. Über die gegen diesen Bescheid erhobene Beschwerde hat der Verwaltungsgerichtshof erwogen: Die Beschwerde beschreibt zunächst die individuelle Situation des Beschwerdeführers im Kosovo. Dabei bestätigt sie die dazu getroffenen behördlichen Feststellungen, denen sie ergänzend anfügt, dass das dem Beschwerdeführer gemeinsam mit der Mutter und den drei Brüdern im Kosovo als „Wohnmöglichkeit“ zur Verfügung stehende Zelt etwa 9 m2 groß und mit Stroh ausgelegt sei; ein alter Ofen diene als Heizung und als Herd. Zum täglichen Überleben seien der Beschwerdeführer und seine Familie gezwungen gewesen, sich bei Bekannten Geld auszuleihen. Die Suche nach einer Beschäftigung sei ergebnislos verlaufen, vom Roten Kreuz habe der Beschwerdeführer keine finanzielle Unterstützung erhalten. Weil von vornherein klar gewesen sei, dass er keine finanzielle Unterstützung bekommen würde, habe er beim „Zentrum für Sozialarbeit“ keinen Antrag gestellt. Die Familie des Beschwerdeführers leide derzeit keinen Hunger, sie habe jedoch auch nicht „genügend“ zum Essen.
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Auf diese Beschreibung der individuellen Situation folgt eine umfangreiche, auf Berichte der Informationsstelle der Deutschen Caritas und Diakonie in Pristina zurückgreifende Darstellung der „allgemeinen, humanitären und wirtschaftlichen Lage im Kosovo“, in der vor allem darauf hingewiesen wird, – dass—anders als unmittelbar nach dem Abzug der Serben und der Installierung der UNMIK-Verwaltung Mitte 1999—die Grundversorgung der Bevölkerung, insbesondere der „Rückkehrer“, „mit den allerelementarsten Lebensgütern und die Befriedigung der allerelementarsten Bedürfnisse der Bevölkerung in weiten Teilen nicht mehr sichergestellt“ werden könne, weil Ersparnisse aufgebraucht, Spendengelder sowie Finanzhilfe für den Kosovo zurückgegangen seien und die Nahrungsmittelhilfe einen drastischen Rückgang erfahren habe; – dass die katastrophale wirtschaftliche Lage des Kosovo von näher genannten politischen Problemen begleitet werde;—dass ca. 12% der Kosovaren als „extrem arm“ (das bedeute insbesondere kein Einkommen, keine Ersparnisse, nur qualitativ minderwertige Ernährung, Abhängigkeit von Almosen der Nachbarn oder humanitärer Hilfe, keine Medikamente im Krankheitsfall) einzustufen seien. [...] Die Beschwerde führt schließlich aus, dass die dargestellte wirtschaftliche Notsituation eine zwangsläufige kausale Folge der völkerrechtswidrigen Repressions-, Vertreibungs- und Zerstörungspolitik des serbisch-nationalistischen jugoslawischen Staatsregimes im Kosovo unter dem damaligen Präsidenten Milosevic sei und von ihren Auswirkungen für „extrem arme“ Kosovaren her als asylrelevante Verfolgung betrachtet werden müsse. Diese Menschen seien außerstande, in ihrer Heimat ein menschenwürdiges Leben zu führen. [...] Jedenfalls verstoße eine Abschiebung solcher Personen in den Kosovo gegen Art. 3 EMRK, weshalb die belangte Behörde hinsichtlich des Beschwerdeführers zu einem anderen Ergebnis hätte gelangen müssen. Zu diesem Beschwerdevorbringen ist wie folgt Stellung zu nehmen: 1. Die asylrechtlichen Überlegungen der Beschwerde fußen darauf, dass sich die aktuelle Situation im Kosovo gegenüber jener, die dem hg. Erkenntnis vom 3. Mai 2000, Zl. 99/01/0359, zu Grunde lag—in dem besagten Erkenntnis war davon ausgegangen worden, dass eine weitere asylrelevante Verfolgung von Angehörigen der albanischen Volksgruppe im Kosovo durch „Serbien“ bzw. die Bundesrepublik Jugoslawien als nachhaltig unwahrscheinlich anzusehen sei—, geändert habe. Es mag zutreffen, dass sich die in der Beschwerde in den Vordergrund gerückte Versorgungssituation seit Mitte 1999 verschlechtert hat. Was aber die Ursachen der dargestellten wirtschaftlichen Notlage anlangt, so kann der Verwaltungsgerichtshof nicht erkennen, dass sich—insoweit es die geltend gemachten „serbischen Zerstörungen“ betrifft—eine Änderung zum Negativen ergeben hätte. Einerseits ist nicht zu sehen, dass weitere Zerstörungen oder Devastierungshandlungen durch „Serbien“ bzw. die (ehemalige) Bundesrepublik Jugoslawien gesetzt worden seien, andererseits zeigen etwa die unbekämpft gebliebenen Feststellungen der belangten Behörde über die mit Ende 2001 abgeschlossene Minenräumung, dass es jedenfalls partiell zu einer Beseitigung der unmittelbaren Nachwirkungen der von der Beschwerde ins Treffen
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geführten „Zerstörungspolitik des serbisch- nationalistischen jugoslawischen Staatsregimes im Kosovo“ gekommen ist. Die dem Erkenntnis vom 3. Mai 2000 zu Grunde liegenden Verhältnisse bestehen daher, auch unter Beachtung der angesprochenen „Zerstörungspolitik“, weiterhin fort, weshalb nach wie vor an dieses Erkenntnis bzw. an die hiezu ergangenen Folgeerkenntnisse (vgl. etwa jenes vom 4. April 2001, Zl. 2000/01/0362, in dem bereits auf die widrigen Lebensumstände im Kosovo eingegangen worden ist) angeknüpft werden kann. Ergänzend sei hinzugefügt, dass die als Folge der „Zerstörungspolitik“ eingetretene wirtschaftliche Notlage nunmehr insoweit auch von der eingerichteten UN-Verwaltung (UNMIK) zu verantworten wäre, als—bei Zutreffen der Beschwerdebehauptungen—davon ausgegangen werden müsste, dass geeignete Maßnahmen zur Beseitigung/Linderung dieser Notlage seit Einsetzung der UNMIK unterblieben sind. Dass dies auf asylrelevanten Gründen beruhte, kann nicht ernsthaft vertreten werden. 2. § 8 AsylG verweist auf § 57 FrG. Abs. 1 dieser Bestimmung wurde durch das insoweit am 1. Jänner 2003 in Kraft getretene Bundesgesetz BGBl. I Nr. 126/2002 neu gefasst und lautet nun wie folgt: „Die Zurückweisung, Zurückschiebung oder Abschiebung Fremder in einen Staat ist unzulässig, wenn dadurch Art. 2 EMRK, Art. 3 EMRK oder das Protokoll Nr. 6 zur Konvention zum Schutze der Menschenrechte und Grundfreiheiten über die Abschaffung der Todesstrafe verletzt würde.“ Gemäß den ErläutRV (1172 BlgNR 21. GP 35) soll die Neuformulierung dem Erkenntnis des Europäischen Gerichtshofes für Menschenrechte (EGMR) in der Causa Ahmed versus Österreich Rechnung tragen und der Umsetzung dieses Erkenntnisses dienen; die Neufassung entspreche den Intentionen des Gerichtshofes. Es sei somit klargestellt, dass die Zurückweisung, Zurückschiebung oder Abschiebung Fremder in einen Staat unzulässig ist, wenn stichhaltige Gründe für die Annahme bestehen, dass die Betroffenen Gefahr laufen, dort unmenschlicher Behandlung oder Strafe oder der Todesstrafe unterworfen zu werden oder dies sonst eine unmenschliche Behandlung sei. Der neue Gesetzeswortlaut, in Übereinstimmung mit den eben wiedergegebenen Erläuterungen, schreibt jenes Verständnis, welches § 57 Abs. 1 FrG schon in seiner Stammfassung—bezogen auf Art. 3 EMRK—in der Judikatur des Verwaltungsgerichtshofes erfahren hat, fest (vgl. etwa das hg. Erkenntnis vom 21. August 2001, Zl. 2000/01/0443). Es kann daher kein Zweifel bestehen, dass insoweit die bisherige Judikatur—mit der nachfolgenden Einschränkung—fortzuführen und in deren Sinn im gegebenen Zusammenhang jeweils zu prüfen ist, ob Österreich im Fall der Außerlandesschaffung eines Fremden in einen bestimmten Staat gegen Art. 3 EMRK verstoßen würde. Lediglich das aus dem Wortlaut des „alten“ § 57 Abs. 1 FrG abgeleitete Erfordernis, es müssten „stichhaltige Gründe“ für eine entsprechende Annahme bestehen (vgl. zuletzt etwa das hg. Erkenntnis vom 15. Mai 2003, Zl. 2002/ 01/0556), ist nicht aufrechtzuerhalten, wobei allerdings klarzustellen ist, dass es sich dabei schon bislang nur um eine zwar am Gesetzeswortlaut orientierte, in Wahrheit jedoch entbehrliche Wiederholung bezüglich des am Boden der dazu ergangenen Rechtsprechung des EGMR (vgl. dazu zusammenfassend Mayer, B-VG3 (2002) Art. 3
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MRK IV.) ohnehin unmittelbar im Rahmen des Art. 3 EMRK anzulegenden Prüfungsmaßstabes handelte. In dem schon erwähnten Erkenntnis vom 21. August 2001, auf das insoweit gemäß § 43 Abs. 2 VwGG verwiesen wird, wurde die hier maßgebliche Judikatur des EGMR dargestellt (siehe nunmehr auch die Entscheidung vom 19. März 2002, Beschwerde Nr. 65538/01, Javanmardi and Ahmadi against Sweden). Vor dem Hintergrund dieser Judikatur kommt es unter dem hier interessierenden Aspekt darauf an, ob die Abschiebung die betreffende Person in eine „unmenschliche Lage“ versetzen würde. In Anbetracht der Indizwirkung, die Empfehlungen internationaler Organisationen, von der Abschiebung bestimmter Personengruppen in ein bestimmtes Gebiet Abstand zu nehmen, zukommt (vgl. dazu das hg. Erkenntnis vom 13. November 2001, Zl. 2000/ 01/0453), liegt es nahe, in concreto die Situation jener Personen, die in dem von der belangten Behörde herangezogenen UNHCR-Papier (UNHCR-Position zur fortdauernden Schutzbedürftigkeit von Personen aus dem Kosovo—April 2002; das der Beschwerde beigelegte aktuellere UNHCR-Papier—Januar 2003 verweist insoweit ausdrücklich darauf) als „verwundbare Personen“ definiert werden, einer besonders aufmerksamen Prüfung zu unterziehen. Wie schon im hg. Erkenntnis vom 9. Juli 2002, Zl. 2001/01/0164, ausgeführt, wird mangelnde Unterbringung und/oder Mangelernährung etwa auch einer Abschiebung von Müttern mit Kleinkindern im Wege stehen. Das lässt sich je nach Situation auf kranke oder alte Menschen übertragen, ohne dass damit freilich per Umkehrschluss die allgemein gültige Folgerung zu ziehen wäre, (gesunde) Erwachsene könnten jedenfalls—unter dem hier in Frage stehenden Aspekt der humanitären Verhältnisse im Zielstaat—in Übereinstimmung mit Art. 3 EMRK abgeschoben werden. Im vorliegenden Fall allerdings teilt der Verwaltungsgerichtshof die Einschätzung der belangten Behörde, dass der—offenkundig gesunde— 19-jährige Beschwerdeführer ohne Verstoß gegen Art. 3 EMRK in den Kosovo abgeschoben werden könnte. Die Beschwerde räumt ein, dass der Beschwerdeführer (seine Familie)—gemäß den Feststellungen des bekämpften Bescheides infolge Unterstützung durch Freunde und Verwandte—keinen Hunger leide. Auch die oben dargestellte Berichtslage lässt bezüglich der albanischen Mehrheitsbevölkerung im Kosovo, soweit kein Sonderbedarf besteht, in Bezug auf Versorgung mit Nahrung keine existentiellen Probleme erkennen. Was die Unterkunftssituation anlangt, so stellt sich diese bezüglich des Beschwerdeführers zweifelsohne als prekär dar. Im Hinblick auf die bestehende Heizmöglichkeit scheint allerdings im speziellen Fall die Schwelle des Art. 3 EMRK noch nicht erreicht. Gesamt betrachtet sind auch die bestehenden familiären Anknüpfungspunkte und die nur relativ kurze Aufenthaltsdauer in Österreich—weshalb sich bezüglich des Beschwerdeführers nicht das Problem einer „Entwurzelung“ im Kosovo stellt—mit in Erwägung zu ziehen. Zur Abrundung ist schließlich darauf hinzuweisen, dass der Beschwerdeführer auch nicht einer Personengruppe angehört, die nach Ansicht des UNHCR (siehe dazu das oben erwähnte UNHCR-Papier) vor dem Hintergrund der Verhältnisse im Kosovo eines besonderen Schutzes bedürfte. Zusammenfassend ergibt sich, dass gegenständlich auch die Entscheidung nach § 8 AsylG mit dem Gesetz in Einklang steht, weshalb die Beschwerde zur Gänze gemäß
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§ 42 Abs. 1 VwGG als unbegründet abzuweisen war. VIII. Human rights and fundamental freedoms/Menschenrechte und Grundfreiheiten
Supreme Court, Decision No. 9 Nc 109/02g, dated 12 May 2003 Oberster Gerichtshof, Beschluss 9 Nc 109/02g vom 12. Mai 2003 Artikel 13 EMRK—Ordination eines zuständigen innerstaatlichen Gerichtes—Artikel 13 beschränkt auf Verletzungen der EMRK im Forumstaat Article 13 ECHR—ordination of domestic court having jurisdiction—Article 13 confined to violations of the ECHR in forum state Facts In this case, 50 petitioners requested the Supreme Court to ordain a domestic court in Austria to have jurisdiction to hear their cases which all concerned claims against the Slovenian banks Ljubljanska Banka and Nova Ljubljanska Banka for measures of unlawful expropriation. The petitioners all had concluded saving contracts in foreign currency with the Ljubljanska Banka (registered in Slovenia) before the outbreak of the war in former Yugoslavia and had deposited their assets with the main subsidiary of the very same bank in in Sarajevo. They argued that by various constitutional amendments, the Republic of Slovenia had de facto expropriated these assets. In particular, all assets of the Ljubljanska Banka had been transferred to the newly founded Nova Ljubljanksa Banka whereas the debts of the Ljubljanska Banka towards depositors that had deposited their assets in subsidiaries of the bank outside Slovenia remained with the ‘old’ bank which, however, had no assets to settle the debts. The petitioners furthermore argued that it was futile to lodge claims against the main subsidiary in Sarajevo as the main subsidiary had never been properly liquidated. In any event, since the Ljubljanska Banka had no assets, any claim would have been unsuccessful. In their request for ordination by the Supreme Court, the petitioners invoked i.a. § 28(1) no.1 of the Austrian Law on Adjudicative Jurisdiction,36 according to which the Austrian Supreme Court has to ordain a domestic court as having jurisdiction over a claim if no domestic court has jurisdiction ratione loci over the dispute provided that Austria is obliged under an international treaty to exercise jurisdiction in the case. The Supreme Court, however, rejected the request on the following grounds: Translation (excerpt): According to this provision, the Supreme Court has to ordain a court to possess jurisdiction if Austria is obliged pursuant to an international treaty to exercise
36
Jurisdiktionsnorm—JN.
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jurisdiction. The petitioners argue that such an obligation may derive from Article 13 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) because the “famishment” of the Ljubljanska Banka and the unenforceability of the petitioners’ claims against the first and second respondent in Slovenia amount to an expropriation without compensation within the meaning of Article 1 of Additional Protocol No. 1 to the ECHR. They further argue that in order to enable petitioners to take hold of assets owned by respondents and located in Austria, Austria is obliged under Article 13 ECHR to provide a remedy in Austria. The Supreme Court cannot endorse these considerations. Article 13 obliges the member states of the ECHR merely to provide a remedy by which a violation of the Convention may be determined in domestic law. Municipal law must accordingly oblige [the competent authorities] to comply with the substantive guarantees of the Convention […]. Article 13 is, like Article 5(2) or Article 6 ECHR, a fundamental freedom containing a procedural guarantee that ensures the right to legal protection in municipal law. In particular, Article 13 obliges and entitles member states to remedy a breach of the Convention on the domestic level […]. Since Article 13 emphasises the domestic aspect of the remedy it is clear that it does not impose an obligation to offer a forum or remedy also for those alleged violations of the Convention that have their source in other member or even non-member states. It is therefore not surprising that neither in the parliamentary materials to § 28(1) no. 1 of the Law on Adjudicative Jurisdiction nor in the most recent scholarly commentary thereto […] the ECHR is mentioned as “international treaty” within the meaning of § 28(1) no. 1 of the said law. It follows that the ECHR does not offer an appropriate basis for an ordination and that the further considerations by petitioners on the alleged violation of Article 1 of Additional Protocol No. 1 to the ECHR need not be addressed by the Supreme Court. German original Zu einer Ordination gemäß § 28 Abs 1 Z 1 JN: Nach dieser Bestimmung hat der Oberste Gerichtshof eine Ordination dann vorzunehmen, wenn Österreich auf Grund eines völkerrechtlichen Vertrages zur Ausübung von Gerichtsbarkeit verpflichtet ist. Die Antragsteller vermeinen nun, dass sich eine solche Verpflichtung aus Art 13 EMRK ableiten ließe, weil die „Aushungerung“ der Ljubljanska Banka d.d. und die mangelnde Durchsetzbarkeit der Ansprüche der Antragsteller in Slowenien gegenüber der 1. und/oder 2.-Antragsgegnerin einer entschädigungslosen Enteignung iSd Art 1 des ersten Zusatzprotokolles zur EMRK gleichkomme. Um den Antragstellern die Möglichkeit des Zugriffes auf in Österreich gelegenes Vermögen der Antragsgegnerinnen zu ermöglichen, treffe die Republik Österreich eine Verpflichtung nach Art 13 EMRK, ein Forum im Inland zur Verfügung zu stellen. Diesen Erwägungen ist nicht beizupflichten. Art 13 EMRK verpflichtet die Konventionsstaaten nur, einen Rechtsbehelf zur Verfügung zu stellen, mit dem im innerstaatlichen Recht eine Konventionsverletzung festgestellt werden kann. Das innerstaatliche Recht muss also dazu verpflichten, die materiellen Konventionsgarantien zu beachten (Meyer-Ladewig, Handkommentar zur Konvention
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zum Schutz der Menschenrechte und Grundfreiheiten Rz 8 zu Art 13). Art 13 EMRK ist, wie Art 5 Abs 2 oder 6 EMRK, eine als Grundrecht ausgestaltete Verfahrensgarantie der EMRK, welche das Recht auf nationalen Rechtsschutz gewährleistet. Insbesondere verpflichtet bzw berechtigt Art 13 EMRK die Mitgliedstaaten, eine Konventionsverletzung innerstaatlich wieder gutzumachen (Schweizer in Karl, Internationaler Kommentar zur europäischen Menschenrechtskonvention Rz 9 zu Art 13 EMRK). Aus der Betonung der Innerstaatlichkeit des Rechtsbehelfes ergibt sich ganz deutlich, dass Art 13 EMRK keine Verpflichtung auferlegt, innerstaatlich ein Forum auch für solche angebliche Konventionsverletzungen zu bieten, die in anderen Konventionsoder Nichtkonventionsstaaten ihre Ursache haben. Demgemäß verwundert es auch nicht, dass die EMRK weder in den Materialien (669 der BlgNR 15. GP) noch in der derzeit aktuellsten Kommentierung (Matscher aaO Rz 32 f) als „völkerrechtlicher Vertrag“ im Sinne des § 28 Abs 1 Z 1 JN Erwähnung findet. Auch die EMRK bietet somit keine taugliche Grundlage für eine Ordination, sodass weitere Erwägungen zu der von den Antragstellern behaupteten Verletzung des Art 1 des ersten Zusatzprotokolles zur EMRK auf sich beruhen können.
GG.
Organs of the state and their legal status/Die Staatsorgane und ihr rechtlicher Status
III.
Other organs of the state/Andere Staatsorgane
GG.III.
Constitutional Court, Judgment No. G 121/01 et al., dated 2 October 2003 Verfassungsgerichtshof, Erkenntnis G 121/01 u.a. vom 2. Oktober 2003 Verbot des Bezuges elektrischer Energie aus bestimmten Staaten—Hoheitsverwaltung durch ausgegliederten Rechtsträger—Retorsionsmaßnahmen völkerrechtliche Materie Ban on import of electricity from specific countries—entity exercising elements of governmental legal authority—measures of retorsion are governed by international law Facts § 13(1) of the Austrian Law on the Organisation of the Supply of Electricity37 provided for a prohibition of contracts concerning the import of electric power from foreign countries which produce electricity in facilities that do not conform to the standard of best available technology or that pose a danger to the environment. Furthermore it bans the import or electricity from countries which do not account for proper disposal
37
Elektrizitätswirtschafts- und –organisationsgesetz—ElWOG.
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of wastes produced as a result of the generation of electric power. § 13(2) of the cited law provides that the Elektrizitäts-Control GmbH (later EnergieControl GmbH), a limited liability company established by law and owned by the state, may, by issuing legally binding regulations (Verordnung),38 specify the countries that meet the above mentioned criteria. The Constitutional Court was requested to repeal a regulation issued under § 13(2) of the said law, and in the course of this procedure, the Constitutional Court ex officio reviewed whether § 13(2) was compatible with the Constitution. The problem with this provision was that it appeared to empower a private company (i.e., the EnergieControl GmbH) to exercise governmental authority without proper authorisation by the Constitution. According to the established case law of the Constitutional Court, private, non-governmental entities and companies may not be empowered to exercise core elements of governmental authority. Among these core elements that are determined by the Federal Constitution are functions of significant importance in the field of foreign policy. In its preliminary decision to commence review proceedings the Court stated that it was apprehensive of the fact that the delegation of the power to issue a regulation of the kind defined in § 13 of the Law on the Organisation of the Supply of Electricity may have conferred not transferable core functions of the state upon a limited liability company, because in issuing a regulation according to § 13 important considerations of foreign policy may be unavoidable. After reviewing the legal situation, the Constitutional Court repealed the provision as unconstitutional. Translation: II. 3. a) In the case at hand, the Court was apprehensive of the fact that the authorisation in § 13 of the cited law to issue regulations exceeds the constitutional limits of conferring (governmental) functions to non-governmental entities: [Quote from the decision to review:] 3. By issuing a regulation on the basis of the authorisation in § 13, the Energie-Control GmbH decides on a list of those states with which no contracts on the import of electricity to Austria may be concluded. Yet, such a decision, which eventually amounts to a boycott against states with regard to the supply of electric energy, is of a significant importance in the field of foreign policy. Although the Federal Minister of Economy and Labour may intervene in exercise of its power to give instructions, such a broad authorisation of a nongovernmental entity to issue regulations appears questionable from the perspective of the Constitution. III. 3. b) […] [T]he sanction [embodied in the provision under review] consists in an import embargo for electric energy from one or several states. Such import bans against an entire state, however, amount to a measure of retorsion under international law aimed at inducing the foreign state to carry out a specific conduct (cf. Seidl-Hohenveldern,
38
Such regulations are generally binding and have, in principle, the force of laws.
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Völkerrecht, 10th edition, 2000, paras. 1775-1781); a decision on such measures under international law pertains to the domain of foreign policy and hence to the core elements of governmental functions. The organs in charge of foreign policy cannot evade their responsibility for such measures by leaving their imposition eventually to a limited liability company as a non-governmental entity. […] In summary the following may be stated: In its decision VfSlg. 14.473/1996 (“Austro-Control GmbH”), the Constitutional Court has opined that only individual sovereign functions of the state may be transferred to non-governmental entities. It further balanced those functions that had been transferred to non-governmental companies against those that remained with official organs of the state and concluded that [in the specific circumstances of the case] the transfer was permissible under constitutional law because it did not concern core functions and, all things considered, the essential functions remained with state organs. It was particularly important that […] the relevant powers concerning the issuance of regulations remained with the competent Federal Minister. It follows that the transfer of the power to issue generally binding norms to a nongovernmental entity is, viewed from the perspective of constitutional law, a sensitive matter. Nevertheless the Constitution […] does not plainly rule out the possibility of such transfer. But if such transfer of functions concerns core elements of sovereign activity, such as the foreign relations with other states, it exceeds the constitutional limits. The authorisation in § 13 of the said law to issue generally binding regulations would allow for the imposition of an import ban of electric energy from foreign states. Such an import ban is a measure under international law that may lead to serious adverse effects in Austria’s relations with a foreign state. The transfer of the authorisation to issue regulations of such kind to a non-governmental legal entity exceeds the limits set by the Constitution and was therefore to be repealed. German original: II. 3. a) In der Sache hegte der Gerichtshof das Bedenken, dass die Verordnungsermächtigung des § 13 Abs 2 ElWOG den Rahmen zulässiger Aufgabenübertragung an ausgegliederte Rechtsträger überschreitet: […]. Mit der Erlassung einer Verordnung auf Grund der Verordnungsermächtigung des § 13 Abs 2 ElWOG legt die Energie-Control GmbH eine Liste jener Staaten fest, mit denen keine Stromlieferungsverträge über den Import von Strom nach Österreich abgeschlossen werden dürfen. Solch einer Entscheidung, die im Ergebnis einem Boykott von Staaten bei der Lieferung von elektrischer Energie gleichkommt, kommt aber wesentliche außenpolitische Bedeutung zu. Wenngleich der Bundesminister für Wirtschaft und Arbeit durch Ausübung des Weisungsrechtes eingreifen kann, scheint dem Verfassungsgerichtshof vorläufig eine derart weitreichende Verordnungsermächtigung an einen ausgegliederten Rechtsträger verfassungsrechtlich bedenklich zu sein.
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III. 3. b) […] Selbst wenn es—entgegen der Annahme des Verfassungsgerichtshofes im Prüfungsbeschluss—zuträfe, dass Abs 1 bloß technische Kriterien aufzählt, so besteht die Sanktion jedenfalls in einer Einfuhrsperre für elektrische Energie aus einem oder mehreren Staaten. Solche Einfuhrsperren gegen einen ganzen Staat laufen aber auf eine völkerrechtliche Retorsionsmaßnahme hinaus, die darauf gerichtet ist, den ausländischen Staat zu einem bestimmten Verhalten zu veranlassen (vgl. SeidlHohenveldern, Völkerrecht, 10. Auflage (2000), Rz 1775 bis 1781); eine Entscheidung über derartige völkerrechtliche Maßnahmen ist ein Teil der Außenpolitik und zählt daher zum Kernbereich der Staatsaufgaben. Die für Außenpolitik zuständigen Organe können sich der Verantwortung für solche Maßnahmen nicht dadurch entziehen, dass sie deren Verhängung im Ergebnis einer ausgegliederten Gesellschaft mit beschränkter Haftung überlassen. […] d) Zusammenfassend ergibt sich daher Folgendes: Der Verfassungsgerichtshof hat in seinem Erkenntnis VfSlg. 14.473/1996 („AustroControl GmbH“) ausgeführt, dass bloß „vereinzelte Aufgaben“ zur hoheitlichen Besorgung an ausgegliederte Rechtsträger übertragen werden dürfen. Er hat dann jene Aufgaben, die dem ausgegliederten Unternehmen übertragen wurden und jene, die bei den staatlichen Organen verblieben sind, gegeneinander abgewogen und kam zu dem Schluss, dass die Ausgliederung verfassungsrechtlich zulässig war, weil keine Kernaufgaben übertragen wurden und bei Gesamtbetrachtung gewichtige Aufgaben bei den staatlichen Organen verblieben sind. Hiebei war von besonderem Gewicht, dass „vor allem auch alle im LFG [Luftfahrtgesetz] vorgesehenen Verordnungserlassungskompetenzen beim zuständigen Bundesminister“ verblieben. Daraus folgt, dass die Übertragung der Befugnis zur Erlassung genereller Normen an einen Beliehenen verfassungsrechtlich besonders sensibel ist. Dennoch hat die Verfassung—wie oben dargetan—die Übertragung der Verordnungserlassung an einen Beliehenen nicht schlechthin ausgeschlossen. Bewegt sich eine solche Übertragung der Aufgaben jedoch in einem Kerngebiet der Staatsaufgaben, wie den außenpolitischen Beziehungen zu anderen Staaten, so ist dies verfassungsrechtlich nicht mehr gedeckt. Die in §13 Abs 2 ElWOG vorgesehene Verordnungsermächtigung erlaubt im Ergebnis die Verhängung einer Einfuhrsperre für elektrische Energie aus anderen Staaten. Eine solche Einfuhrsperre stellt eine völkerrechtliche Maßnahme dar, die zu schwerwiegenden Beeinträchtigungen der Beziehungen Österreichs zu einem Drittstaat führen kann. Eine Ermächtigung zur Erlassung von Verordnungen solchen Inhalts an einen ausgegliederten Rechtsträger übersteigt den verfassungsrechtlich zulässigen Rahmen und war daher aufzuheben.
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HH.
Jurisdiction of the state/Jurisdiktion (Hoheitsgewalt)
I.
Basis of jurisdiction/Grundlage der Jurisdiktion
5.
Other principles/Andere Grundlagen
See also FF.VIII.
Higher Regional Court Vienna, Decision No. 27 Kt 238/03, dated 11 July 2003 Oberlandesgericht Wien, Beschluss 27 Kt 238/03 vom 11. Juli 2003 Aquisition eines Unternehmens im Ausland—Kartellgesetz—Auswirkungsprinzip Acquisition of a company abroad—cartel law—effects doctrine Facts This case concerned the acquisition of the entire shares of a company having its seat in Sarajevo and doing business exclusively in Bosnia-Herzegovina. According to § 41 of the Cartel Act39 provides i.a. that acquisitions of shares of a company in the event of achieving or exceeding a stake of 25% or more of a company40 must be registered with the Cartel Court.41 § 6 of the Cartel Act contains the extended territorial principle (effects doctrine) as it provides that the territorial scope of the law extends
39 40
Kartellgesetz—KartG. See § 41(1) of the Cartel Act: Definition § 41. (1) Within the meaning of this Federal Act, the following shall be deemed concentrations: 1. the acquisition of an enterprise, in whole or in substantial part, by an entrepreneur, in particular through merger or transformation, 2. the acquisition by an entrepreneur of a right to the operational facility of another entrepreneur through company surrender agreements or business management agreements, 3. the direct or indirect acquisition of shares of a company that is an entrepreneur, by another entrepreneur, both in the event of achieving or exceeding a stake of 25%, and in the event of achieving or exceeding a stake of 50%, 4. if at least half of the members of the management bodies or the supervisory boards of two or several companies that are entrepreneurs are caused to be identical, 5. any other combination of enterprises, on the basis of which an entrepreneur can directly or indirectly exercise a dominating influence on another enterprise.
41
Kartellgericht.
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to facts and situations that occur abroad but have effects on the domestic market.42 The Higher Regional Court Vienna as Cartel Court held: § 6(1) of the Cartel Act is not directly applicable to [the case at hand]. Nevertheless, this provision is based on the so-called effects doctrine which is also recognised in international law and which is relevant [for present purposes]. Subject to notification with the Cartel Court are those concentrations—as the present one—that are carried out abroad if, on the one hand, they meet the conditions set forth in § 42a of the Cartel Act43 (as is the case here), and on the other hand, the concentration not only has or will have effects abroad but also within Austria […]. It is sufficient that the concentration entails the abstract possibility of effects or potential adverse effects on the conditions of the competition within the territory […]. An effect on the domestic market by the planned acquisition cannot be discerned because the Bosnian enterprise affected by the acquisition has not been engaged on the domestic market, since such an engagement is not envisaged for the future and nor are any resources being acquired by the concentration that would (significantly) increase the market share of the acquiring enterprise in Austria. German original: § 6 Abs 1 KartG findet zwar auf die in Abschnitt V dieses Gesetzes geregelte Zusammenschlusskontrolle keine direkte Anwendung. Gleichwohl ist das dieser Bestimmung zugrundeliegende sogenannte Wirkungsprinzip, das auch im Völkerrecht anerkannt ist, aufgrund der genannten Bestimmung, bei der negativen Abgrenzung des räumlichen Anwendungsbereiches der Zusammen-
42
§ 6 reads as follows (unofficial translation): Territorial scope of application § 6. (1) This Federal Act shall similarly be applied to any facts and situations pursuant to chapters II to IV that occur abroad, provided that they have effects on the domestic market. (2) Save as provided in Section 7, this Federal Act shall not be applied to any circumstances where they affect the foreign market.
43
§ 42a(1) reads as follows (unofficial translation): Concentrations subject to notification § 42a. (1) Concentrations shall be subject to notification of the Cartel Court, if the entrepreneurs or enterprises involved, in the last financial year preceding the concentration, have achieved at least the following turnover: 1. a total of EUR 300 million worldwide, 2. a total of EUR 15 million domestically, 3. at least two entrepreneurs or enterprises worldwide, EUR 2 million each.
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schlusskontrolle nach dem Kartellgesetz maßgeblich (vgl. KOG, ÖBl 1997, 185; 25 Kt 52/00, 27 Kt 358, 359/00, 27 Kt 421/02 jeweils des Kartellgerichtes). Anmeldebedürftig sind Zusammenschlüsse, die—wie im vorliegenden Fall—im Ausland vollzogen werden, dann, wenn einerseits die Kriterien des § 42a KartG— wie hier—erfüllt sind und andererseits sich der Zusammenschluss nicht bloß im Ausland, sondern auch in Österreich auswirkt oder auswirken kann (27 Kt 230/00, 27 Kt 421/02 u.a.; Feyl, Räumliche Geltung der Zusammenschlusskontrolle nach der Kartellgesetznovelle 1993, ecolex 1995, 340 ff; Wessely, Das Recht der Fusionskontrolle und Medienfusionskontrolle 29 ff). Es genügt die abstrakte Möglichkeit einer Auswirkung bzw. eine potentielle Beeinträchtigung der Wettbewerbsvoraussetzungen im Inland (27 Kt 230/00, 27 Kt 421/02 u.a.; vgl. Jungbluth in Langen/ Bunte, Kommentar zum deutschen und europäischen Kartellrecht8, § 98 Abs 2 GWB, Rz 166 mwN). Eine Inlandsauswirkung des vorliegenden, geplanten Zusammenschlusses ist nicht erkennbar, weil das vom Erwerb betroffene bosnische Unternehmen auf dem inländischen Markt keine Leistungen erbrachte und derartiges auch nicht vorgesehen ist und auch sonst keine Ressourcen erworben werden, die den Marktanteil des erwerbenden Unternehmens in Österreich (spürbar) erhöhen könnten (vgl. Rebinder in Immenga-Mestmäcker, Kommentar zum dGWB², § 98 Abs 2, Rz 179 ff). Mangels einer hinreichenden Inlandsauswirkung des Zusammenschlusses ist dieser im Inland im konkreten Einzelfall nicht anzumelden und war daher dem Antrag der Anmelderin die Anmeldung des nicht anmeldebedürftigen Zusammenschlusses zurückzuweisen, stattzugeben.
MM. International Responsibility/Völkerrechtliche Verantwortlichkeit II.
General issues of responsibility/Allgemeines zur völkerrechtlichen Verantwortlichkeit
3.
Consequences of responsibility (cessation, guarantees of non-repetition, restitutio in integrum, compensation, satisfaction)/Folgen der völkerrechtlichen Verantwortlichkeit (Beendigung der Rechtswidrigkeit, Nichtwiederholungsgarantien, Schadenersatz, Genugtuung)
Arbitration Panel for In Rem Restitution of Publicly Owned Property, Decision No. 3, dated 22 October 2003, available at www.nationalfonds.org*
*
The English version of this decision is based on an unofficial translation by the General Settlement Fund and was edited by Michael Schoiswohl (Programme Officer for Governance with the United Nations Development Programme in Kabul, Afghanistan). The editors are grateful for the kind permission of the Arbitration Panel to reproduce the decision. For an overview of the underlying legal situation under current Austrian law as well as the relevant documents see M. Schoiswohl, Austrian Measures for Victims of National Socialism, 8 ARIEL 327 and 343 (2003).
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Schiedsinstanz für Naturalrestitution, Entscheidung Nr. 3 vom 22 Oktober 2003, abrufbar unter www.nationalfonds.org Opfer des Nationalsozialismus—extreme Ungerechtigkeit—Allgemeiner Entschädigungsfonds—Schiedsinstanz für Naturalrestitution—Rückgabe von Liegenschaften—frühere Entschädigungsmaßnahmen—einvernehmliche Regelungen—res iudicata Victims of National Socialism—Extreme injustice—General Settlement Fund— Arbitration Panel—restitution of property—prior compensation measures—agreed settlements—res iudicata Summary of Facts (as determined by the Arbitration Panel): This case concerned real estate property that was located in Vienna and that, by a purchase and sale agreement dated 13 June 1938, was sold for a price of 250,000 Reichsmark under coercive conditions based on the Nationalsocialist measures of persecution of Jewish citizens. The contract was executed by a legal representative on the part of the sellers and by the Property Transactions Office (Vermögensverkehrsstelle). The German Reich, i.e. the Institute for the Placement of Employees and Unemployment Insurance in Berlin-Charlottenburg, was the buyer. The entire purchase price was paid into an account with Österreichische CreditanstaltWiener Bankverein, with disposals being admissible only with the permission of the Property Transactions Office. The proceeds were used to cover various costs in connection with the transaction as well as to (partially) satisfy outstanding obligations pertaining to the property items owned by the family and linked to the estate. Furthermore, the proceeds were used to cover the Jewish property tax (Judenvermögensabgabe) amounting to 18,760 Reichsmark, the Reich flight tax (Reichsfluchtsteuer) amounting to 28,600 Reichsmark, as well as other charges amounting to of 2,530 Reichsmark were withheld on behalf of one of the sellers. The remaining amount, which was put into a blocked account, was withdrawn from any dispositions by the seller. The application for restitution, requesting restitution of the real-estate property against return of the purchase price of ATS 250,000, was filed on 19 January 1948 by (legal) representatives of the family. The German Reich was the adverse party in the application for restitution. The amount in dispute was indicated to be the price of the purchase agreement, i.e. ATS 250,000. The application was based on the Nullity Act (Federal Law of 15 May 1946 declaring null and void the legal transactions and other legal acts undertaken during the German occupation of Austria; Federal Law Gazette No. 106/1946), as well as on the Third Restitution Act (Federal law of 6 February 1947 on the nullity of property seizures; Federal Law Gazette No. 54/1947). On 31 December 1948, a rent agreement was signed between the Federal Ministry for Securing Property and Economic Planning, as the administrator of the German Reich, appointed by law, and the Republic of Austria, represented by the Vienna Regional Labour Exchange, as lessee of the real-estate property. The rent agreement indicated that the agreement was signed with retro-active effect and dated 27 April
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1945. ATS 11,845 were agreed to be the annual rent. The rent amount was calculated on the basis of the rent amount for the year 1914, i.e. 35,572 crowns (Friedenskronen) 35,562. This rent amount was, in fact, paid into a check account set up specifically for that purpose with the Postal Savings Bank. The rent was not transferred to Germany; it is, however, no longer possible to determine the actual money flows. In the years 1955 to 1957 the legal representatives of the applicants for restitution and the Republic of Austria, represented by the Financial Procurator and the Federal Ministry for Trade and Reconstruction, conducted negotiations regarding a settlement. In January 1956 the applicants for restitution requested a purchase price of ATS 850,000 as an amount of the settlement, plus a back payment for rent in the amount of ATS 291,230, thus a total sum of ATS 1,141,230. The initially paid purchase price, however, would have had to be deducted from this amount. For official purposes, the Federal Buildings Administration drew up valuation findings and an expert opinion concerning the market value of the real-estate property, which indicated that the market value was about ATS 970,000 for the real-estate property. With a view to this expert opinion, the Federal Ministry for Trade and Reconstruction judged the purchase price of ATS 850,000 to be “extremely low”. On 8 May 1957, the Federal Ministry for Trade and Reconstruction agreed to enter into a restitution settlement for the amount of ATS 618,000. The original amount of ATS 600,000 was increased by ATS 18,000, on account of 9% interest for those four additional months, in the course of which it had been impossible to reach the settlement, on account of objections by the Financial Procurator. The Financial Procurator commented on this increase that “the otherwise obviously very favourable commercial transaction” should not be frustrated due this increase. In the hearing on 25 June 1957, a settlement was reached between the Republic of Austria, represented by the Financial Procurator, and representatives of the remaining applicants for restitution who had taken up residence outside of Austria during and after WW II. The substance of the settlement was that the Republic of Austria committed itself to paying an amount of ATS 618,000 and, on the other hand, that the then applicants for restitution would waive all rights under the restitution proceedings and the property transfers and/or possible property seizures resulting from the present restitution proceedings. The ownership title of the Republic of Austria (Federal Buildings Administration) was incorporated on 6 March 1957, on the basis of the provisions of Article 22 of the State Treaty and § 11 (1) of the 1st Implementing Act for the State Treaty. On 17 January 2001 the Labour Market Service Austria (Arbeitsmarkt Service Österreich = AMS) was the owner of the real-estate property. In the year 1994 the AMS was divested by means of legislation (Federal law on the Labour Market Service; Labour Market Service Act – AMSG, Federal Law Gazette No. 313/1994). With their applications to the General Settlement Fund of 22 March 2002, 25 April 2002, 21 February 2003, 26 February 2003 and 20 February 2003 the applicants asked for the restitution of the real-estate property. The applicants, descendants of the original owners of the estate in question, claimed that the previous settlement, entered into in 1957, constituted an extreme injustice and therefore demanded
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restitution of the estate pursuant to § 28 and § 32 of the General Settlement Law. The Arbitration Panel held (English translation):
According to § 27 of the General Settlement Fund Act, those persons and their heirs are entitled to file applications, if one of the listed reasons for persecution applies, namely persecution on political grounds, on grounds of origin, religion, nationality, sexual orientation, on account of a physical or mental handicap or on account of the accusations of so-called asociality, or if they left the country to escape such persecution. Flora S. and the heirs of Heinrich S. [the initial owners of the real-estate] were persecuted both for reasons of race and religion, since they were all considered as Jews pursuant to the Nuremberg laws of 15 September 1935. […] Pursuant to § 28 (1) 1 of the General Settlement Fund Act the real-estate property must have been withdrawn from the previous owner for the aforementioned reasons for persecution between 12 March 1938 and 9 May 1945. When the real-estate property, was sold, there was such a seizure. The entire family, with the exception of Flora S., left the country, in order to escape a possible further persecution. The sale was handled by Dr. G. and with the approval of the Property Transactions Office. The approval of Gustav S., the building manager, of Viktor S., the heir by probate-court decision, and by Flora S., the owner of the other 50% share, both regarding the sale and the partial payment for encumbrances on the 50% share of Heinrich S. from the proceeds of the sale of the 50% share of Flora S. was only given on account of the Aryanization practices of the National Socialists prevailing in 1938. The fact that part of the real-estate property was over-indebted does not prevent the presence of a seizure. It was the case law of the Restitution Commission to assume that an overindebtedness would only warrant the assumption that the property would also have been transferred without the power take-over by National Socialism, if it appeared to be without perspective that the financial difficulties could have been overcome, given the prevailing circumstances. That prerequisite would be missing if the creditors had remained passive prior to the “Annexation” (Anschluss) (Restitution Commission 158/48). It can therefore be stated that the entire building—and not only the half belonging to Flora S.—was seized from the injured owners. The building was therefore sold on account of the National Socialist Aryanization practice. Pursuant to § 28 (1) 3 of the General Settlement Fund Act the concept of “public property” includes real-estate properties which were owned on 17 January 2001 exclusively and directly by the Federation (Bund) or any legal person under public or private law wholly-owned, directly or indirectly, by the Federation. The Labour Market Service (Arbeitsmarkt Service = AMS) has been the sole owner of the realestate property EZ Y, land register (Grundbuch) of the 1st district of Vienna, since 1996. The AMS was divested by means of legislation in 1994 from the federal administrative authorities. There can be no ownership in the traditional sense in a legal person under public law, and one must therefore determine when and in what form the Federation can have sole ownership of a legal person under public law. In
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case of legal persons under public law, the emphasis must be on how the power of disposition regarding the legal person has been designed, i. e. whether the Federation set up the legal person and who should be held responsible for any acts of this legal person. The AMS Act defines in § 1 (1) that the AMS is a “service undertaking under public law having its own legal personality” and “a federal organization”. The precondition for sole ownership on the part of the Federal Government is therefore met, since the Federation divested the AMS by means of legislation and set it up as an independent legal person under public law and thus has direct as well as exclusive power of disposition regarding the AMS (i. e. sole competence to dispose of it by law). Another aspect of the prerequisites for claims under § 28 of the General Settlement Fund Act is that the real-estate property was never the subject of a claim that was previously decided by an Austrian court or administrative body, or settled by agreement, and for which the claimant/applicant or a relative has never otherwise received compensation or other consideration, unless such a decision or settlement constituted an extreme injustice. § 28 (1) 2 of the General Settlement Fund Act and again § 32 (1) of the General Settlement Fund Act then define that, as a matter of principle, the Arbitration Panel shall not have authority to decide on claims that were previously decided or settled. It is only in exceptional circumstances that the existence of an earlier decision or settlement does not run contrary to a recommendation under the General Settlement Fund Act. In these cases, the Arbitration Panel must consider the earlier decision or settlement to have been an extreme injustice. The exceptional character of a “reopening” of a previous decision can already be taken from the Agreement between the Austrian Federal Government and the Government of the United States of America, which states in its annex—in almost the same words as in the law—that the Arbitration Panel shall not be entitled to reopen or re-deliberate cases, unless the earlier solution/ decision constituted an extreme injustice. The text of the law is based on an evaluation of an extreme injustice in a specific case. The presence of an extreme injustice in case of a settlement or decision therefore refers to a specific case and cannot be measured by means of the general statutory situation or case law. The Arbitration Panel regards a previous decision by an Austrian court or an Austrian administrative body as an extreme injustice, especially when the decision was reached in a way that indicates that the statutory basis for the decision was applied in an objectively inadmissible manner to the detriment of the damaged party and that, as a result, the damaged party thus suffered a gross disadvantage with regard to his/her restitution or compensation claims. The same applies to settlements, if these do not comply with the main principles of the statutory basis that is to be applied to the facts, so that one must therefore assume that a decision-making body would have reached a decision much more in favour of the damaged party if it had applied the statutory provisions. Under Austrian private law it is the essence of a settlement that a consensual new determination regarding disputed or doubtful rights is reached, with the support of the autonomous parties and with concessions made by both sides (§ 1380 of the
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Austrian General Civil Law Code—Allgemeines Bürgerliches Gesetzbuch). As a rule, this is associated with a discrepancy between the claimed amounts (in this case the restitution of the real-estate property, i.e. the true value of the real estate) and the amount of the settlement. In contrast to other legal transaction, a settlement cannot be contested for laesio enormis (avoidance of more than one half) (§ 1386 of the Austrian General Civil Law Code). The stipulations of the Austrian General Civil Law Code already lead to the conclusion that, typically, all settlements must reflect a discrepancy in value between the true value of the real estate and the amount of the settlement. From the provisions of §§ 28 and 32 of the General Settlement Fund Act, referring to exceptional circumstances, as well as the provision of § 20 of the General Settlement Fund Act, which explicitly calls for a compensation of inadequate compensations, it can be concluded that the discrepancy in value between the true value of a real-estate property and the amount of the settlement alone does not suffice as a ground for the presence of an extremely unjust settlement. If the amount of an earlier compensation was inadequate, this alone therefore does not constitute a case of extreme injustice. A decision and/or a settlement by agreement that was inadequate as to the amount may, however, be an indication for an extreme injustice, if the amount of the compensation indicates that the statutory basis was interpreted and applied in a manner that cannot be justified in objective terms, as well as to the detriment of the damaged party. In 1957 the value of the real-estate property EZ Y, land register of Vienna, 1st district, was a multiple of the amount of the settlement that was agreed between the then restitution applicants and the Republic of Austria. However, the discrepancy in value alone is not sufficient to constitute the presence of an extremely unjust settlement. Other prerequisites must also be met. However, the amount of the settlement sum, i.e. ATS 618,000, may indicate that the statutory basis for the decision was interpreted to the detriment of the then restitution applicants in a manner that cannot be justified in objective terms. One must therefore examine the question to what extent the law was actually interpreted in an objectively unjustified manner. […] The applicants argued that this is a case of extreme injustice, since “physical restitution was denied”, although the mutual simultaneous return of the purchase price was offered. However, the fact that the Restitution Commission, in the proceedings pursuant to the 3rd Restitution Act, did not issue a decision, and that the case was ultimately ended by a settlement pursuant to the 2nd Restitution Act cannot be equated to a “denial”. This submission does not per se give an indication that disadvantageous circumstances, as mentioned above, prevailed. However, the excessively long duration of the proceedings, which the applicants also assert, may also be considered as constituting a gross discrimination in connection with reaching a settlement. From the filing of the application for restitution on 31 January 1948 until the settlement was reached on 25 June 1957, the proceedings took up 9 years and 5 months. At a first glance, this period appears to be a very long time for proceedings; their reasonableness, though, must now be examined. The established duration of the proceedings is due, among other things, to the fact
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that the real-estate property EZ Y, land register of the 1st district of Vienna, was owned by the German Reich and was located in the international zone, so that pursuant to Articles 1 and 5 (4) of he 2nd Control Agreement the approval of the Allied Council had to be obtained for a restitution. The court can therefore not be reproached with having applied tactics to delay the proceedings, when it required the legal representative of the then applicants for restitution to obtain the approval of the Allied Council. One must recall, in particular, that even if a partial decision had been taken, it would have been possible to execute it only with the approval of the Allied Council. As a matter of principle, delays did occur in connection with applications for the restitution of “German Property”. The reports by the Historical Commission prove that the length of proceedings correlated with the “occupied zone” concerned and thus with the “occupying power”: “The USSR, though, never granted a general authorization and—to the extent that this can be established at present—did not issue any approvals regarding individual restitution proceedings. It was therefore the rule that proceedings relating to ‘German Property’ were suspended in the area of the Restitution Commission for Vienna that belonged to the Soviet occupation zone, and that it was possible to continue these proceedings only after the State Treaty in 1955.” (Franz-Stefan Meissel et al, Die Verfahren vor den österreichischen Rückstellungskommissionen. Untersuchungen zur Praxis der Verfahren vor den Rückstellungskommissionen, Teil 2 [transl.: Proceedings before the Austrian Restitution Commissions. Studies on the Practice Applied in Proceedings before the Restitution Commission, Part 2] Vienna 2002, page 85). Similarly to the comments by Meissel et al., Georg Graf writes in this partial report that “a further problem resulted from the fact that the 2nd Control Agreement contained provisions requiring authorizations for German Property. However, the four Allied Powers applied this authorization requirement in connection with restitution in a very different way. The British were most restitution-friendly, as they said in their letter of 2 July 1947 that files regarding restitutions in the British zone and in the British sector of Vienna were not subject to the restrictions applying to German Property otherwise. The Soviets were most restrictive in their approach, since they did not allow any restitution proceedings regarding German Property. This was also in line with their approach not to recognize the arrangements of the Nullity Act. The reason for their attitude was due to the fact that the Soviet occupying power basically claimed all German Property as its own”. (Georg Graf, Die österreichische Rückstellungsgesetzgebung. Eine juristische Analyse [transl.: Austrian Restitution Legislation. A Legal Analysis] Vienna 2002, page 112). The long duration of the proceedings can therefore be explained by the consistently restrictive attitude of the Soviet representatives in the Allied Council, which can therefore not be regarded as an extreme injustice. A major indication for a deviation from the statutory basis in a specific case in the sense of an extremely unjust settlement by agreement is the question whether the rent income was taken into consideration when determining the amount of the settlement. One must also examine to what extent unjustified debt redemptions were included in the determination of the amount of the settlement, and whether the purchase price of 1938 can be regarded as having been freely disposable.
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As to whether interest on rent was taken into account, there are the following basic premises: According to § 1 (4) of the 2nd Restitution Act “the property […] has to be restituted in that condition in which it is. In this connection, also that income must be delivered that has accrued in the meantime and is still available in Austria”. The 3rd Restitution Act provides for a different solution with regard to the restitution of income, namely: “If otherwise the rules of honest dealings were observed in the seizure of property, the acquirer must return the seized property, he/she is only obliged to provide compensation in the event of fault. Otherwise, the civil-law provisions on honest owners shall apply to the acquirer. § 338 of the Austrian General Civil Law Code shall be applied in analogy. The acquirer may offset against the income: 1. a reasonable remuneration of his/her activity, 2. charges of any kind, which he/she paid, that were due on the seized property and its income, 3. all other expenses linked to orderly management and maintenance. Whenever the restitution of the income is an inequitable hardship for the acquirer liable to restitution, the Restitution Commission (§ 15)—taking account of all circumstances of the case—may determine the amount of the income to be restituted at its fair discretion.” (§ 5, paragraphs 2, 3 and 4 of the 3rd Restitution Act). One may therefore conclude that pursuant to the 3rd Restitution Act, there was an obligation to deliver the actually obtained income. In keeping with § 1 (2) of the 3rd Restitution Act, the provisions of the 3rd Restitution Act apply to the extent that the 2nd Restitution Act does not contain any deviating provisions. The 3rd Restitution Act can therefore only not be applied in those cases where the 2nd Restitution Act contains special provisions. The Arbitration Panel therefore states that a decision of the Restitution Commission—when applying the cited statutory provision in a correct and objectively justified manner—should also have included the delivery of the income earned by renting out the real-estate property, when restituting the real-estate property EZ Y, land register of the 1st district of Vienna. Pursuant to § 5 (3) of the 3rd Restitution Act, the expenses incurred by the Republic of Austria in the amount of ATS 92,961.43 could have been offset against the income. An amount of ATS 200,000 would have remained, which the Republic of Austria would have had to pay as compensation for the rent income. The documents found indicate that in the course of the settlement negotiations, the amount of the settlement of ATS 600,000 was already fixed in May 1956. The claimed rent income had not yet been included in this amount, since there is evidence that the compensation for the rent income was still being negotiated with the applicants for restitution at that time. The Arbitration Panel therefore states that the rent income was not taken into consideration when ultimately fixing the amount of the settlement. The Arbitration Panel therefore assumes that the settlement that was reached by consensus does not comply with the main principles of the restitution laws. It can be expected that a decision-making body, when applying § 1 (4) of the 2nd Restitution Act, would have arrived at a much more favourable decision and would have granted compensation for rent income in the amount of about ATS 700,000. The Arbitration Panel therefore states that the statutory basis regarding the restitution of income was interpreted and applied in a manner that cannot be justified in objective terms and that constituted a gross disadvantage for the applicants for restitution.
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By the same token, the applicants for restitution would have had to return the freely disposable share of the purchase price paid in 1938, pursuant to § 6 of the 3rd Restitution Act. On account of the sum of the amount of the settlement and according to the memos of the Federal Ministry of Trade and Reconstruction from the years 1956 and 1957 it can be assumed that the entire proceeds from the sale dated 13 June 1938 in the amount of RM 250,000 were attributed to the applicants for restitution as having been “freely disposable”. It need not be taken into consideration here that the applicants for restitution offered to return the payment of the entire purchase price of RM 250,000, as can be gathered from the files, that they were not paid RM 80,000 (consisting of RM 27,000 in favour of Futuritwerk AG and RM 47,360 for discriminating charges), and that according to the practice applied by the Restitution Commission the applicants for restitution actually only had to pay that amount that was, in fact, at their free disposal. When reaching its decision, the Restitution Commission attributed the payment for uncontested debts of the owner to the sphere of the applicants (Restitution Commission 88/49, ÖJZ [Austrian Lawyers’ Journal] 1949, p. 602). In the settlement in question, the parties seem to have erroneously taken as a basis that almost the entire purchase price—including also that part due on the share belonging to Flora S.—was used in the interest of the damaged party and was thus “freely disposable”. This assumption seems to be due to the fact that paying off the liabilities in the amount of RM 27,000 to Boschanyer Lederwerke in favor of Futuritwerke AG was considered to be debt redemption. In this case, however, paying off the debt was not in the interest of Flora S., because these liabilities did not exist vis-à-vis her at the relevant date. One cannot logically explain today either, for what reason she agreed to this payment. By the same token, the discriminating charges in the total amount of RM 47,360 were paid from the proceeds from the purchase due on the 50% share in the real-estate property belonging to Flora S., which the Restitution Commission would not have considered as being “freely disposable”. The Arbitration Panel therefore considers that, notwithstanding the offered return of the purchase price, the basis for the settlement was a legal opinion that deviated from the restitution practice. If a decision-making body had applied § 6 of the 3rd Restitution Act, it would have reached a decision that would have been much more to the benefit of the damaged parties, and it would neither have considered the RM 27,000 regarding Boschanyer Lederwerke, nor the discriminating charges as having been “freely disposable”. The Arbitration Panel therefore stated that the statutory basis was interpreted and applied in a manner that cannot be justified in objective terms and constituted a gross disadvantage for the restitution applicants. From a legal perspective, the discrepancy in value between the amount of the settlement and the real-estate value indicates that the consensual arrangement was partly due to an objectively not justifiable application of the statutory basis for a decision. This applies, in particular, to the failure to take account of the rent income, as well as the inclusion of the debt redemption by Flora S. regarding Boschanyer Lederwerke and of the 1938 purchase price, respectively, as having been freely disposable, when calculating the amount of the settlement. As a result, the Restitution
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Commission, when applying the customary restitution practice, would have reached a solution that would have been of greater benefit to the applicants for restitution, namely the restitution of the real-estate property EZ Y, land register of the 1st district of Vienna, as well as compensation for the rent income. The real-estate property would have had to be restituted, as it had been seized from the original owners. The Arbitration Panel therefore arrives unanimously at the opinion that the settlement between the then applicants for restitution and the Republic of Austria constituted an extreme injustice. The presence of an extreme injustice can therefore be affirmed, and the restitution in rem of the real-estate property EZ Y, land register of the 1st district of Vienna, is therefore recommended. German original: Gemäß § 27 Entschädigungsfondsgesetz (EF-G) sind Personen und deren Erben antragsberechtigt, wenn einer der aufgelisteten Verfolgungsgründe, nämlich Verfolgung aus politischen Gründen, aus Gründen der Abstammung, Religion, Nationalität, sexuellen Orientierung, aufgrund einer körperlichen oder geistigen Behinderung oder aufgrund des Vorwurfes der sogenannten Asozialität, vorliegt bzw. diese das Land verlassen haben, um einer solchen Verfolgung zu entgehen. Flora S. sowie die Erben nach Heinrich S. waren sowohl aus rassischen als auch aus religiösen Gründen verfolgt, da alle gemäß den Nürnberger Gesetzen vom 15. September 1935 als Juden galten. [...] Gemäß § 28 Abs. 1 Zif. 1 EF-G muss die Liegenschaft zwischen 12. März 1938 und 9. Mai 1945 dem früheren Eigentümer aus oben genannten Verfolgungsgründen entzogen worden sein. Beim Verkauf der Liegenschaft EZ Y GB Innere Stadt lag ein solcher Entzug vor. Die gesamte Familie, bis auf Flora S., hatte das Land verlassen, um einer weiteren Verfolgung zu entgehen. Die Abwicklung des Verkaufes wurde durch Dr. Gödl und mittels Genehmigung durch die Vermögensverkehrsstelle vorgenommen. Die Zustimmung durch den Verwalter Gustav S., den eingeantworteten Erben Viktor S. und der Hälfteeigentümerin Flora S. sowohl zum Verkauf als auch zur Begleichung von Teilen der Belastungen der Liegenschaftshälfte des Heinrich S. aus dem Erlös der Hälfte der Flora S. wurde lediglich aufgrund der im Jahr 1938 herrschenden nationalsozialistischen Arisierungspraxis abgegeben. Dass ein Teil der Liegenschaft überschuldet gewesen sein könnte, hindert das Vorliegen eines Entzuges nicht. Die Rechtsprechung der Rückstellungskommissionen ging davon aus, dass eine Überschuldung nur dann die Annahme begründete, dass es auch ohne Machtergreifung des Nationalsozialismus zu einer Vermögensübertragung gekommen wäre, wenn unter den gegebenen Verhältnissen die Überwindung der finanziellen Schwierigkeiten aussichtslos war. Diese Voraussetzung würde dann fehlen, wenn sich vor dem „Anschluss“ die Gläubiger passiv verhalten hätten (Rkv 158/48). Es kann daher festgehalten werden, dass das gesamte Haus und nicht nur die der Flora S. gehörige Hälfte den geschädigten Eigentümern entzogen worden ist. Der Verkauf des Hauses erfolgte somit aufgrund der nationalsozialistischen Arisierungspraxis.
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Gemäß § 28 Abs. 1 Zif. 3 EF-G umfasst der Begriff „öffentliches Vermögen“. Liegenschaften, welche sich am 17. Jänner 2001 ausschließlich und unmittelbar im Eigentum des Bundes oder einer unmittelbar oder mittelbar im Alleineigentum des Bundes stehenden juristischen Person des öffentlichen oder privaten Rechts befanden. Das Arbeitsmarkt Service (AMS) ist seit 1996 alleinige Eigentümerin der Liegenschaft EZ Y GB Innere Stadt. Das AMS wurde mittels Gesetz im Jahre 1994 aus der Bundesverwaltung ausgegliedert. Eigentum im herkömmlichen Sinn an juristischen Personen öffentlichen Rechtes kann es nicht geben, und es ist daher festzustellen, wann und in welcher Form der Bund Alleineigentum an einer juristischen Person öffentlichen Rechts haben kann. Bei juristischen Personen öffentlichen Rechts ist darauf abzustellen, wie die Verfügungsbefugnis über die juristische Person ausgestaltet ist, d.h. ob der Bund die juristische Person eingerichtet hat und wem Akte dieser juristischen Person zuzurechnen sind. Das AMS Gesetz definiert in § 1 Abs. 1, dass das AMS ein Dienstleistungsunternehmen des öffentlichen Rechts mit eigener Rechtspersönlichkeit und eine Bundesorganisation ist. Die Vorbedingung des Alleineigentums des Bundes ist daher erfüllt, da der Bund das AMS per Gesetz ausgegliedert und als eigene juristische Person öffentlichen Rechts eingerichtet, und somit unmittelbare sowie ausschließliche Verfügungsbefugnis über das AMS hat (d.h. ausschließliche Kompetenz, darüber gesetzlich zu verfügen). Ein weiterer Teil der Anspruchsvoraussetzungen im § 28 EF-G ist, dass die Liegenschaft niemals Gegenstand einer Forderung war, die bereits zuvor durch österreichische Gerichte oder Verwaltungsbehörden entschieden oder einvernehmlich geregelt wurde, und für die weder der Antragsteller noch ein Verwandter auf eine andere Weise eine Entschädigung oder sonstige Gegenleistung erhalten hat, es sei denn, eine solche Entscheidung oder einvernehmliche Regelung habe eine extreme Ungerechtigkeit dargestellt. In § 28 Abs 1 Zif. 2 EF-G und nochmals wiederholt in § 32 Abs. 1 EF-G wird somit geregelt, dass die Schiedsinstanz grundsätzlich nicht über bereits entschiedene oder verglichene Forderungen zu entscheiden hat. Nur ausnahmsweise in besonderen Fällen steht das Vorliegen einer früheren Entscheidung oder einvernehmlichen Regelung einer Empfehlung nach dem EF-G nicht entgegen. Die frühere Entscheidung oder einvernehmliche Regelung muss in diesen Fällen von der Schiedsinstanz als extrem ungerecht befunden werden. Der Ausnahmecharakter dieser .Wiederaufnahme. einer früheren Entscheidung lässt sich auch schon dem Abkommen zwischen der österreichischen Bundesregierung und der Regierung der Vereinigten Staaten von Amerika entnehmen, in dessen Anhang fast wortgleich zum Gesetz festgehalten wurde, dass die Schiedsinstanz nicht berechtigt sein werde, Fälle wieder aufzunehmen oder neuerlich zu beraten, außer wenn die frühere Regelung/Entscheidung eine extreme Ungerechtigkeit dargestellt hat. Der Gesetzestext geht demnach von der Beurteilung einer extremen Ungerechtigkeit im Einzelfall aus. Das Vorliegen einer extremen Ungerechtigkeit bei einer einvernehmlichen Regelung oder Entscheidung ist daher jedenfalls im Einzelfall und nicht anhand der allgemeinen Gesetzeslage und Rechtsprechung zu messen. Eine frühere Entscheidung eines österreichischen Gerichts oder einer österreichi-
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schen Verwaltungsbehörde wird von der Schiedsinstanz insbesondere dann als extrem ungerecht angesehen, wenn sie auf einer Entscheidungsfindung beruht, die darauf hindeutet, dass gesetzliche Entscheidungsgrundlagen objektiv unvertretbar zu Lasten des Geschädigten angewendet worden sind und der Geschädigte dadurch im Ergebnis hinsichtlich seiner Rückstellungs- oder Entschädigungsansprüche grob benachteiligt worden ist. Selbiges gilt für einvernehmliche Regelungen, soweit diese nicht mit den wesentlichen Grundsätzen der sachlich anwendbaren Gesetzesgrundlagen übereinstimmen und dementsprechend davon auszugehen ist, dass ein Entscheidungsorgan in Anwendung der Gesetzesbestimmungen zu einer für den Geschädigten wesentlich günstigeren Entscheidung gelangt wäre. Im österreichischen Privatrecht liegt das Wesen eines Vergleiches darin, dass, von der Parteienautonomie getragen, unter beiderseitigem Nachgeben, eine einverständliche neue Festlegung strittiger oder zweifelhafter Rechte erfolgt (§ 1380 ABGB). Regelmäßig ist damit eine Diskrepanz zwischen der eingeklagten Summe (in diesem Fall wäre dies die Rückstellung der Liegenschaft, d.h. der wahre Wert der Liegenschaft) und der Vergleichssumme verbunden. Die Bekämpfung eines Vergleiches wegen laesio enormis (Verkürzung über die Hälfte) ist im Gegensatz zu anderen Rechtsgeschäften gesetzlich ausgeschlossen (§ 1386 ABGB). Allein aus den Vorgaben des ABGB kann geschlossen werden, dass typischerweise sämtliche Vergleiche eine Wertdiskrepanz zwischen dem wahren Wert der Liegenschaft und der Vergleichssumme aufweisen müssen. Aus dem Ausnahmecharakter der Regelungen der §§ 28 und 32 EF-G und der Bestimmung des § 20 EFG, in welcher explizit eine Entschädigung für unzureichende Entschädigungen vorgesehen ist, kann abgeleitet werden, dass ein Wertmissverhältnis zwischen dem wahren Wert der Liegenschaft und der Vergleichssumme allein nicht zur Begründung des Vorliegens eines extrem ungerechten Vergleiches ausreicht. Eine der Höhe nach unzureichende frühere Entschädigung stellt daher für sich alleine keinen Fall der extremen Ungerechtigkeit dar. Eine Entscheidung bzw. einvernehmliche Regelung, die der Höhe nach unzureichend war, kann jedoch eine extreme Ungerechtigkeit indizieren, wenn die Höhe der Entschädigung darauf hindeutet, dass gesetzliche Grundlagen objektiv unvertretbar zu Lasten des Geschädigten ausgelegt und angewendet worden sind. 1957 betrug der Wert der Liegenschaft EZ Y GB Innere Stadt ein Vielfaches der Vergleichssumme, welche zwischen den damaligen RückstellungswerberInnen mit der Republik Österreich vereinbart wurde. Diese Wertdiskrepanz für sich allein ist jedoch nicht ausreichend, um das Vorliegen eines extrem ungerechten Vergleiches zu begründen. Dazu müssen noch weitere Voraussetzungen vorliegen. Die Höhe der Vergleichssumme von ATS 618.000,—könnte aber darauf hindeuten, dass gesetzliche Entscheidungsgrundlagen objektiv unvertretbar zu Lasten der damaligen AntragstellerInnen ausgelegt wurden. Es muss nunmehr überprüft werden, inwieweit tatsächlich objektiv unvertretbare Gesetzesauslegungen erfolgt sind. [...] Von den AntragstellerInnen wurde die Verwehrung der physischen Rückstellung, obwohl die Rückerstattung des Kaufpreises Zug um Zug angeboten worden war, als Argument für das Vorliegen einer extremen Ungerechtigkeit vorgebracht. Die Tatsache jedoch, dass die Rückstellungskommission im Verfahren nach dem 3.
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Rückstellungsgesetz kein Erkenntnis aussprach und der Fall schließlich mit einem Vergleich nach dem 2. Rückstellungsgesetz beendet worden war, kann nicht mit einer „Verwehrung“ gleichgesetzt werden. Dieses Vorbringen bietet somit für sich keinen Hinweis für das Vorliegen nachteiliger Umstände im obigen Sinne. Eine grobe Benachteiligung im Bezug auf das Zustandekommen des Vergleiches könnte jedoch auch in der von den AntragstellerInnen geltend gemachten überaus langen Verfahrensdauer gelegen haben. Das Rückstellungsverfahren dauerte, von der Einbringung des Rückstellungsantrages am 31. Jänner 1948 bis zum Abschluss des Vergleichs am 25. Juni 1957, 9 Jahre und 5 Monate. Eine solche Zeitspanne stellt eine auf den ersten Blick sehr lange Verfahrensdauer dar, deren Angemessenheit nun geprüft werden muss. Die festgestellte Dauer des Verfahrens beruht unter anderem darauf, dass die Liegenschaft EZ Y GB Innere Stadt im Eigentum des Deutschen Reiches stand und in der Internationalen Zone lag, sodass entsprechend den Art. 1 und 5 (4) des 2. Kontrollabkommens für eine Rückstellung eine Zustimmung des Alliierten Rates einzuholen war. Somit war die Vorgehensweise des Gerichtes, dem Rechtsvertreter der damaligen RückstellungswerberInnen aufzutragen, eine Zustimmung des Alliierten Rates vorzulegen, keine vorwerfbare Verfahrensverzögerungstaktik. Man muss sich insbesondere vor Augen halten, dass, selbst wenn ein Teilerkenntnis gefällt worden wäre, dies erst mit der Zustimmung des Alliierten Rates hätte vollzogen werden können. Grundsätzlich ist es bei Anträgen auf Rückstellung von „Deutschem Eigentum“ durchaus zu Verzögerungen gekommen, wobei die Berichte der Historikerkommission nachweisen, dass das Ausmaß der Verfahrensdauer mit der jeweils betroffenen „Besatzungszone“ und damit „Besatzungsmacht“ zusammenhing: „Die UdSSR erteilte dagegen nie eine generelle Ermächtigung und dürfte“ soweit bisher feststellbar „auch keine individuellen Genehmigungen für Rückstellungsverfahren erlassen haben; in dem zur sowjetischen Besatzungszone gehörigen Bereich der Rückstellungskommission Wien wurden Deutsches Eigentum betreffende Verfahren somit regelmäßig unterbrochen und konnten dann erst nach dem Staatsvertrag 1955 fortgesetzt werden“ (Franz-Stefan Meissel et al., Die Verfahren vor den österreichischen Rückstellungskommissionen. Untersuchungen zur Praxis der Verfahren vor den Rückstellungskommissionen, Teil 2. Wien 2002, S. 85.). So wie Meissel et al. ausführen, schreibt auch Georg Graf in seinem Teilbericht, dass „ein weiteres Problem sich daraus ergab, dass das 2. Kontrollabkommen Verfügungen über Deutsches Vermögen einer Bewilligungspflicht unterwarf. Diese Bewilligungspflicht mit Bezug auf Rückstellungen wurde von den vier alliierten Mächten allerdings unterschiedlich gehandhabt. Am rückstellungsfreundlichsten waren die Briten, die mit Schreiben vom 2. Juli 1947 erklärten, dass Akte der Rückstellung in der britischen Zone und im britischen Sektor Wiens nicht den Beschränkungen unterlagen, denen das Deutsche Eigentum sonst unterworfen war. Am restriktivsten verhielten sich die Sowjets, die bezüglich Deutschen Eigentums keinerlei Rückstellungsverfahren zuließen. Dies entsprach auch ihrer Linie, die Regelung des Nichtigkeitsgesetzes nicht anzuerkennen. Der Grund für diese Haltung lag darin, dass die sowjetische Besatzungsmacht das Deutsche Eigentum grundsätzlich für sich beanspruchte“ (Georg Graf, Die österreichische Rückstellungsgesetzgebung. Eine juristische Analyse. Wien
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2002, S. 112.). Die lange Verfahrensdauer erklärt sich daher aus der konsequent restriktiven Haltung der sowjetischen Vertreter im Alliierten Rat und kann deshalb nicht als extreme Ungerechtigkeit betrachtet werden. Ein wesentlicher Anknüpfungspunkt, der ein Abweichen von der gesetzlichen Grundlage im Einzelfall im Sinne einer extrem ungerechten einvernehmlichen Regelung darstellen könnte, ist die Frage der Berücksichtigung der Mieterträgnisse bei der Bestimmung der Vergleichssumme. Es muss auch geprüft werden, inwiefern eine Einrechnung von ungerechtfertigten Schuldentilgungen in die Bestimmung der Vergleichssumme eingeflossen ist und ob der Kaufpreis von 1938 als zur freien Verfügung zugekommen angesehen wurde. Zur Berücksichtigung von Mietzinsen stehen die folgenden grundsätzlichen Ansätze fest: Es waren nach dem 2. Rückstellungsgesetz gemäß § 1 Abs. 4 „die Vermögen [...] in dem Zustande zurückzustellen, in dem sie sich befinden; hierbei sind auch jene Erträgnisse auszufolgen, die in der Zwischenzeit aufgelaufen und noch im Inlande vorhanden sind“. Das 3. Rückstellungsgesetz sieht eine andere Lösung für die Rückstellung der Erträgnisse vor, nämlich: „Wurden bei einer Vermögensentziehung im Übrigen die Regeln des redlichen Verkehrs eingehalten, so hat der Erwerber zwar das entzogene Vermögen zurückzustellen, zur Leistung von Ersatz ist er jedoch nur bei Verschulden verpflichtet. Im Übrigen finden auf ihn die Bestimmungen des bürgerlichen Rechtes über den redlichen Besitzer Anwendung. § 338 ABGB ist sinngemäß anzuwenden. Gegen die Erträgnisse kann der Erwerber aufrechnen: 1. Eine angemessene Vergütung seiner Tätigkeit, 2. die von ihm bezahlten, auf das entzogene Vermögen und dessen Erträgnisse entfallenden Abgaben aller Art. 3. alle sonstigen mit der ordentlichen Bewirtschaftung und Erhaltung verbundenen Auslagen. Wenn die Rückstellung von Erträgnissen eine unbillige Härte für den rückstellungspflichtigen Erwerber bedeutet, kann die Rückstellungskommission (§ 15) in Berücksichtigung aller Umstände des Falles die Höhe der rückzustellenden Erträgnisse nach billigem Ermessen festsetzen.“ (§ 5 Abs. 2, 3 und 4 3. Rückstellungsgesetz.) Als Ergebnis lässt sich demnach festhalten, dass nach dem 3. Rückstellungsgesetz ein Herausgabeanspruch jedenfalls für tatsächlich gezogene Erträgnisse bestand. Die Bestimmungen des 3. Rückstellungsgesetzes gelten gemäß § 1 Abs. 2 3. Rückstellungsgesetz insoweit, als in dem 2. Rückstellungsgesetz keine abweichenden Bestimmungen getroffen sind. Das Dritte Rückstellungsgesetz ist demnach nur dann nicht anzuwenden, wenn das 2. Rückstellungsgesetz Sonderbestimmungen enthält. Die Schiedsinstanz hält daher fest, dass eine Entscheidung der Rückstellungskommission in korrekter und objektiv vertretbarer Anwendung der zitierten Gesetzesbestimmung bei einer Rückstellung der Liegenschaft EZ Y GB Innere Stadt auch die Herausgabe der durch die Vermietung der Liegenschaft erzielten Erträgnisse verfügen hätte müssen. Gemäß § 5 Abs. 3 3. Rückstellungsgesetz hätten Aufwendungen durch die Republik Österreich in einer Höhe von ATS 92.961,43 gegen die Erträgnisse aufgerechnet werden können. Es wäre daher ein Betrag von ca. ATS 200.000,- bestehen geblieben, den die Republik Österreich für Mieterträgnisse zu ersetzen gehabt hätte. Aus den aufgefundenen Dokumenten ergibt sich, dass im Zuge der Vergleichsverhandlungen bereits im Mai 1956 die Vergleichssumme von ATS 600.000,- feststand. Die geforderten Mieterträgnisse waren in diesem Betrag noch
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nicht einberechnet, denn zu diesem Zeitpunkt wurden nachgewiesenermaßen mit den RückstellungswerberInnen noch Verhandlungen bezüglich der Mietertragsrückstellungen geführt. Die Schiedsinstanz stellt daher fest, dass bei der endgültigen Bemessung der Vergleichssumme auf die Mieterträgnisse kein Bedacht genommen wurde. Somit geht die Schiedsinstanz davon aus, dass die einvernehmlich getroffene Regelung nicht mit den wesentlichen Grundsätzen der Rückstellungsgesetze übereinstimmt. Es ist davon auszugehen, dass ein Entscheidungsorgan in Anwendung des § 1 Abs. 4 des 2. Rückstellungsgesetzes zu einer für die Geschädigten wesentlich günstigeren Entscheidung gelangt wäre und den Ersatz von Mieterträgnissen in der Höhe von ca. ATS 200.000,- zugesprochen hätte. Die Schiedsinstanz stellt daher fest, dass gesetzliche Grundlagen hinsichtlich der Rückstellung von Erträgnissen objektiv unvertretbar und zum groben Nachteil der RückstellungswerberInnen ausgelegt und angewendet worden sind. Ebenso hätten gemäß dem anzuwendenden § 6 des 3. Rückstellungsgesetzes die damaligen RückstellungswerberInnen nur den ihnen zur freien Verfügung stehenden Teil des 1938 bezahlten Kaufpreises herausgeben müssen. Aufgrund der Höhe der Vergleichssumme und laut den Aktenvermerken des Bundesministeriums für Handel und Wiederaufbau aus den Jahren 1956 bis 1957 kann davon ausgegangen werden, dass der gesamte Kauferlös vom 13. Juni 1938 in Höhe von RM 250.000,- den RückstellungswerberInnen als zur „freien Verfügung“ stehend zugerechnet wurde. Es kann hier unberücksichtigt bleiben, dass die RückstellungswerberInnen die Rückstellung der Zahlung des gesamten Kaufpreises von RM 250.000,- angeboten haben, da sich aus den Akten ergibt, dass ihnen ca. RM 80.000,(bestehend aus RM 27.000,- zugunsten der der Futuritwerk AG, und RM 47.360,- für diskriminierende Abgaben) nicht zugeflossen sind und nach der Praxis der Rückstellungskommission von den RückstellungswerberInnen nur das zurückgezahlt werden musste, was tatsächlich zur ihrer freien Verfügung stand. Die Zahlung unbestrittener Schulden des Eigentümers wurde in der Rechtsprechung der Rückstellungskommissionen der Sphäre der Antragsteller zugerechnet (Rkv 88/49, ÖJZ 1949, S.602). Im gegenständlichen Vergleich scheinen die Parteien fälschlicherweise davon ausgegangen zu sein, dass fast der gesamte Kaufpreis, eben auch jener Teil für die der Flora S. gehörige Hälfte, im Interesse des Geschädigten verwendet worden sei und somit zur freien Verfügung. stand. Diese Annahme dürfte darauf beruhen, dass die Bezahlung der Verbindlichkeiten in Höhe von RM 27.000,- gegenüber den Boschanyer Lederwerken zugunsten der der Futuritwerk AG als Schuldentilgung angesehen wurde. In diesem Fall lag die Bezahlung der Schulden allerdings nicht im Interesse der Flora S., weil diese Verbindlichkeiten zum relevanten Zeitpunkt ihr gegenüber gar nicht bestanden hatten. Es ist auch heute nicht nachvollziehbar, aus welchen Gründen sie dieser Zahlung zugestimmt hat. Ebenso wurden aus dem Kauferlös von jener der Flora S. gehörigen Hälfte der Liegenschaft diskriminierende Abgaben in der Höhe von insgesamt RM 47.360,- bezahlt, welche keinesfalls als zur „freien Verfügung“ durch die Rückstellungskommission angesehen worden wären. Die Schiedsinstanz geht daher davon aus, dass ungeachtet der in Aussicht gestellten Rückzahlung des Kaufpreises, eine von der Rückstellungspraxis abweichende Rechtsansicht die Grundlage des Vergleiches bildete. Ein Entscheidungsorgan wäre in
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Anwendung des § 6 des 3. Rückstellungsgesetzes zu einer für den Geschädigten wesentlich günstigeren Entscheidung gelangt und hätte sowohl die RM 27.000,betreffend die Boschanyer Lederwerke, als auch die diskriminierenden Abgaben als nicht zur „freien Verfügung“ gezahlt angesehen. Die Schiedsinstanz stellt daher fest, dass gesetzliche Grundlagen objektiv unvertretbar und zum groben Nachteil der RückstellungswerberInnen ausgelegt und angewendet worden sind. In rechtlicher Hinsicht indiziert die Wertdiskrepanz zwischen der Vergleichssumme und dem Liegenschaftswert, dass die einvernehmliche Regelung zum Teil auf einer objektiv unvertretbaren Anwendung der gesetzlichen Entscheidungsgrundlagen beruhte. Dies trifft insbesondere auf die Nichtberücksichtigung der Mieterträgnisse, sowie die Einrechnung von Schuldentilgungen durch Flora S. hinsichtlich der Boschanyer Lederwerke bzw. des Kaufpreises 1938 als zur freien Verfügung zugekommen bei der Berechnung der Vergleichssumme zu. Daraus folgt, dass die Rückstellungskommission aufgrund der üblichen Rückstellungspraxis eine für die RückstellungswerberInnen wesentlich günstigere Regelung verfügt hätte, nämlich die Rückstellung der Liegenschaft EZ Y GB Innere Stadt und den Ersatz der Mieterträgnisse. Die Rückstellung der Liegenschaft hätte erfolgen müssen, da diese den ursprünglichen Eigentümern entzogen worden war. Die Schiedsinstanz gelangt daher einstimmig zu der Ansicht, dass der Vergleich zwischen den damaligen RückstellungswerberInnen und der Republik Österreich extrem ungerecht war. Das Vorliegen einer extremen Ungerechtigkeit war damit zu bejahen und die Naturalrestitution der Liegenschaft EZ Y GB Innere Stadt zu empfehlen. 6.
Ex gratia measures/Ex gratia-Maßnahmen
See MM.II.4.
OO.
Coercive measures short of the use of force/Zwangsmaßnahmen unter der Schwelle der Gewaltanwendung
I.
Unilateral acts/Einseitige Akte
1.
Retorsion/Retorsion
See GG.III.
RR.
Neutrality, non-belligerency/Neutralität, Nicht-Kriegführung
III.
Neutrality in the light of the Charter of the United Nations/Neutralität im Lichte der Satzung der Vereinten Nationen See EE.I.1.f.-2
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Legal aspects of international relations and cooperation in particular matters/Rechtliche Aspekte der internationalen Beziehungen und Zusammenarbeit in bestimmten Bereichen
VIII. Legal matters (e.g. judicial assistance)/Rechtliche Angelegenheiten (zB Rechtshilfe) See EE.I.1.f.-1
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PART II Austrian Diplomatic and Parliamentary Practice in International Law/ Österreichische Diplomatische und Parlamentarische Praxis zum Internationalen Recht Christina Binder, Gerhard Hafner, Katrin Hagemann & Ursula Kriebaum1
Index of Documents** BB. Sources of international law/Völkerrechtsquellen See SS.I.1 and SS.I.6.-1 CC. The law of treaties/Recht der Verträge CC.I.2 — Austrian interpretative declaration and Explanatory Memorandum to the Agreement for the implementation of the provisions of the 1982 United Nations Convention on the Law of the Sea relating to the conservation and management of straddling fish stocks and highly migratory fish stocks—Declarations .......................... 507 See EE.II.1a.cc, SS.I.1 and SS.I.6.-1 CC.II.3—Austrian Explanatory Memorandum to the Agreement on the interpretation of Art. 12 para. 2 of the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality .......................................................................... 511 DD. Relationship between international law and internal law/Völkerrecht und innerstaatliches Recht DD.II.-1—Constitutional law and Austrian Explanatory Memoran1
Dr. Christina Binder, E.MA and Dr. Ursula Kriebaum are assistant professors and Dr. Gerhard Hafner is professor at the Department for European, International and Comparative Law, Section for International Law and International Relations, Universitätsstr. 2, A- 1090 Vienna, Austria; Katrin Hagemann is B.A. (Wellesley C.), M.S. (Cornell), MAIS (Diplomatic Academy Vienna); desk officer, European Department, German Federal Foreign Office.
**
The digest covers the period from 1 July 2002 until 31 December 2003.
Austrian Review of International and European Law 8: 503-568, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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dum on the conclusion of the treaty concerning the accession of the of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union ........................................................................................................................ 515 DD.II.-2—Austrian Explanatory Memorandum to the Amendment to Article 10.2 of the Statute of the European System of Central Banks and of the European Central Bank ........................................................................... 518 D.III—Response of the Federal Chancellor to a parliamentary request concerning infringement proceedings against Austria for failure to fulfil its obligations under the TEC due to a non-observance of environmental directives by the federal Laender ......................................... 521 See also DD.III and EE.II.2.c.-2 EE. Subjects of International law/Völkerrechtssubjekte EE.II.1.a.cc—Austrian Declaration and Austrian Explanatory Memorandum to the Agreement on the Privileges and Immunities of the International Criminal Court .......................................................................... 524 EE.II.1.b.cc—Response of the Federal Minister for Defence to a parliamentary request concerning an Austrian participation in the EU-forces deployed in Macedonia ...................................................................... 528 EE.II.1.b.dd—Austrian Statement on the Equitable Representation and on Increase in the Membership of the Security Council .......................... 529 EE.II.2.c.-1—Austrian Explanatory Memorandum to the Treaty concerning the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union ........................................................................................... 531 EE.II.2.c.-2—Austrian Explanatory Memorandum to the Decision of the Representatives of the Governments of the Member States, meeting within the Council, of 27 February 2002 on the financial consequences of the expiry of the ECSC Treaty and on the research fund for coal and steel ........................................................................................... 533 See also DD.II.-1., DD.II.-2., EE.II.2.a, MM.III.2, and SS.VIII
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FF. The position of the individual (including the corporation) in international law/Die Stellung der Einzelperson (einschließlich der juristischen Person) im Völkerrecht FF.VIII.-1—Response of the Federal Minister for Justice to a parliamentary request regarding the worldwide US-surveillance project “Information Awareness Office” (IAO) ............................................................. 536 FF.VIII.-2—Response of the Federal Minister for Transport, Information and Technology to a parliamentary request regarding USaccess to data of air passengers on European Airlines .................................... 539 FF.VIII.-3—Austrian statement concerning 10 Years World Conference on Human Rights ......................................................................................... 540 See also SS.IX KK. Seas/Meere See CC.I.2 MM. International responsibility/Völkerrechtliche Verantwortlichkeit MM.III.2—Austrian Statement on the Responsibility of International Organizations ......................................................................................................... 542 NN. Pacific settlement of disputes/Friedliche Streitbelegung NN.II.6.a—Austrian Explanatory Memorandum to the Dispute Settlement Protocol of the Alpine Convention ....................................................... 545 PP. Use of force/Gewaltanwendung PP.II.2.a—Austrian Explanatory Memorandum to the Agreement Among the States Participating in the Multinational Stand-By High Readiness Brigade for UN Operations Regarding the Status of Their Forces ....................................................................................................................... 548 RR. Neutrality, non-belligerency/Neutralität, Nicht-Kriegführung See EE.II.1.b.cc SS. Legal aspects of international relations and cooperation in particular matters/Rechtliche Aspekte der internationalen Beziehungen und Zusammenarbeit in bestimmten Bereichen SS.I.1—Response of the Federal Minister for Economy and Labour
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to a parliamentary request regarding the agricultural negotiations in the WTO .............................................................................................................. 552 SS.I.6.-1—Response of the Federal Minister for Agriculture, Forestry, Environment and Water to a parliamentary request regarding the agricultural negotiations in the WTO ........................................ 554 SS.I.6.-2—Amendment of the Federal Law on Development Cooperation .................................................................................................................. 555 SS.III.-1—Response of the Federal Minister for Agriculture, Forestry, Environment and Water to a parliamentary request regarding the implementation of the road map agreed upon in the “Process of Melk” ....................................................................................................................... 556 SS.III.-2—Response of the Federal Minister for Agriculture, Forestry, Environment and Water to a parliamentary request regarding the Austrian anti-atomic policy ........................................................................... 558 SS.III.-3—Response of the Federal Minister for Agriculture, Forestry, Environment and Water to a parliamentary request concerning the institution of a transboundary environmental impact assessment (EIA) ........................................................................................................................ 561 SS.III.-4—Austrian Explanatory Memorandum to the Cartagena Protocol on Biosafety to the Convention on Biological Diversity ....................... 562 SS.VII—Response of the Federal Minister for Economy and Labour to a parliamentary request regarding the role of art and culture in the GATS-negotiations .......................................................................................... 564 SS.VIII—Austrian Statement on the United Nations Role concerning Justice and the Rule of Law .................................................................................. 565 SS.IX—Austrian Statement regarding its policy concerning small arms and light weapons ......................................................................................... 566 See also DD.III, EE.II.1.b.cc and PP.II.2.a
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Sources of international law/Völkerrechtsquellen
I.
Treaties/Verträge
507
See SS.I.1 and SS.I.6.1
CC.
The law of treaties/Recht der Verträge
I.
Conclusion and entry into force of treaties/Abschluss und Inkrafttreten völkerrechtlicher Verträge
2.
Reservations and declarations/Vorbehalte und Erklärungen
See also EE.II.1a.cc CC.I.2
Agreement for the implementation of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks—Declarations/Übereinkommen zur Durchführung der Bestimmungen des Seerechtsübereinkommens der Vereinten Nationen vom 10. Dezember 1982 über die Erhaltung und Bewirtschaftung gebietsübergreifender Fischbestände und weit wandernder Fischbestände—Erklärungen The objective of the Agreement for the Implementation of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks is to ensure long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks, aiming at, inter alia, strengthening of international fisheries organisations and international cooperation regarding these stocks. Under its Articles 1(2), 38 and 47, the Agreement is open to ratification by the European Community in accordance with Annex IX to the Convention on the Law of the Sea. Since both, the Community and its Member States, possess competence in the areas covered by the Agreement it is therefore necessary for the Community and its Member States simultaneously to become Contracting Parties in order to carry out jointly the obligations laid down in the Agreement and exercise jointly the rights the Agreement confers in cases of shared competence so that the uniform application of the Agreement in the context of the common fisheries policy could be ensured. Any Member State of the EC shall, simultaneously with its ratification of this Agreement, make a declaration specifying the matters governed by this Agreement in respect of which it has transferred competence to the organization. Thus Austria issued the following interpretative declaration upon ratification: The relevant interpretative declaration of Austria reads as follows: Interpretative Declarations by the Republic of Austria with regard to the Agreement on the implementation of the provisions of the United Nations Convention on the Law of the Sea of
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10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks: 1. The Republic of Austria understands that the terms ‘geographical particularities’, ‘specific characteristics of the sub-region or region’, ‘socioeconomic geo-graphical and environmental factors’, ‘natural characteristics of that sea’ or any other similar terms employed in reference to a geographical region do not prejudice the rights and duties of States under international law. 2. The Republic of Austria understands that no provision of this Agreement may be interpreted in such a way as to conflict with the principle of freedom of the high seas, recognised by international law. 3. The Republic of Austria understands that the term ‘States whose nationals fish on the high seas’ shall not provide any new grounds for jurisdiction based on the nationality of persons involved in fishing on the high seas rather than on the principle of flag State jurisdiction. 4. The Agreement does not grant any State the right to maintain or apply unilateral measures during the transitional period as referred to in Article 21(3). Thereafter, if no agreement has been reached, States shall act only in accordance with the provisions provided for in Articles 21 and 22 of the Agreement. 5. Regarding the application of Article 21, the Republic of Austria understands that, when a flag State declares that it intends to exercise its authority, in accordance with the provisions in Article 19, over a fishing vessel flying its flag, the authorities of the inspecting State shall not purport to exercise any further authority under the provisions of Article 21 over such a vessel. Any dispute related to this issue shall be settled in accordance with the procedures provided for in Part VIII of the Agreement. No State may invoke this type of dispute to remain in control of a vessel which does not fly its flag. In addition, the Republic of Austria considers that the word ‘unlawful’ in Article 21(18) of the Agreement should be interpreted in the light of the whole Agreement, and in particular, Articles 4 and 35 thereof. 6. The Republic of Austria reiterates that all States shall refrain in their relations from the threat or use of force in accordance with general principles of international law, the United Nations Charter and the United Nations Convention on the Law of the Sea. In addition, the Republic of Austria underlines that the use of force as referred to in Article 22 constitutes an exceptional measure which must be based on the strictest compliance with the principle of proportionality and that any abuse thereof shall imply the international liability of the inspecting State. Any case of non-compliance shall be resolved by peaceful means and in accordance with the applicable dispute-settlement procedures. Furthermore, the Republic of Austria considers that the relevant terms and conditions for boarding and inspection should be further elaborated in accordance with the relevant principles of international law in the framework of the appropriate regional and subregional fisheries management organisations and arrangements. 7. The Republic of Austria understands that in the application of the provisions of Article
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21(6), (7) and (8), the flag State may rely on the requirements of its legal system under which the prosecuting authorities enjoy a discretion to decide whether or not to prosecute in the light of all the facts of a case. Decisions of the flag State based on such requirements shall not be interpreted as failure to respond or to take action.
The Explanatory Memorandum submitted by the Government to the National Assembly in the course of the ratification procedure explains: General Part […] Whereas the Community and its Member States have competence in the areas covered by the Agreement, it was decided by Council Decision 98/414/EG of 8 June 1998 (OJ. Nr. L 189 of 3 July 1998) that the Community and its Member States simultaneously become Contracting Parties in order to carry out together the obligations laid down in the Agreement. This shall ensure the uniform application of the agreement in the context of the common fisheries policy. According to Article 2 paragraph 2 of the Council Decision 98/414/EC the instruments of ratification of all the Member States shall be deposited simultaneously with the instrument of ratification of the Community. […] Article 47 of the Agreement, which regulates the participation of International Organizations as the EC, stipulates in conjunction with Article 5 Paragraph 1 Annex IX Convention on the Law of the Sea that an International Organization shall make a declaration specifying the matters governed by this Convention in respect of which competence has been transferred to the organization by its member States. The wording of the declaration of competence of the EC was adopted as Annex B to the Council Decision 98/414/EC of 8 June 1998 in the framework of the European Community (OJ. No. L 189 of 3 July 1998 p. 39). Likewise, Austria as Member State of the EC shall, according to Article 5 Paragraph 2 of Annex IX of the Convention on the Law of the Sea at the moment of its ratification of this Agreement, make a declaration specifying the matters governed by this Agreement in respect of which it has transferred competence to the organization. Furthermore, interpretative declarations of the EC and its Member States were elaborated in the framework of the EU, which were also adopted by Council Decision 98/414/EC of 8 June 1998 (Annex C of Council Decision 98/414/EC, OJ. No. L 189 of 3 July 1998 p. 41). The interpretations contained therein concern matters which are within the competence of the EC as well as matters where the Member States possess the competence. […] In consultations carried out in the meantime within the EU and with the UN-Secretariat it was clarified that on the occasion of the envisaged simultaneous ratification of the agreement by the EC and its Member States Austria has to make the following declarations: The already mentioned declaration specifying the matters governed by the Agreement in respect of which it has transferred competence to the EC, The declarations regarding the interpretation already mentioned above, A confirmation of the declaration of the EC, specifying the matters governed by this Agreement in respect of which competence has been transferred to the organization by its
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Member States and the declaration on the interpretation by the EC.
The German original reads of follows: Erläuterungen Allgemeiner Teil […] Da sowohl die Europäische Gemeinschaft als auch ihre Mitgliedstaaten jeweils über Zuständigkeiten in Bereichen verfügen, die Gegenstand des Übereinkommens sind, wurde mit Ratsbeschluss 98/414/EG vom 8. Juni 1998 (ABl. Nr. L 189 vom 3.07.1998) entschieden, dass die Gemeinschaft und ihre Mitgliedstaaten gleichzeitig Vertragsparteien werden müssen, um ihre Verpflichtungen aus dem Übereinkommen gemeinsam erfüllen zu können. Damit soll eine einheitliche Anwendung des Übereinkommens im Rahmen der Gemeinsamen Fischereipolitik sichergestellt werden. Gemäß Art. 2 Abs. 2 des Ratsbeschlusses 98/414/EG müssen die Ratifikationsurkunden aller Mitgliedstaaten gemeinsam mit jener der Gemeinschaft hinterlegt werden. […] Art. 47 des Übereinkommens, der die Teilnahme internationaler Organisationen wie der EG regelt, bestimmt in Verbindung mit Art. 5 Abs. 1 von Anhang IX des Seerechtsübereinkommens, dass eine internationale Organisation anlässlich der Hinterlegung ihrer Ratifikationsurkunde eine Erklärung abgeben muss, die jene Bereiche des Übereinkommens bezeichnet, in denen ihr die Zuständigkeit von ihren Mitgliedstaaten übertragen wurde. Der Wortlaut der Zuständigkeitserklärung der EG wurde als Anhang B des Ratsbeschlusses 98/414/EG vom 8. Juni 1998 im Rahmen der Gemeinschaft angenommen (ABl. Nr. L 189 vom 3.07.1998 S. 39). Ebenso muss gemäß Art. 5 Abs. 2 des Anhangs IX des Seerechtsübereinkommens Österreich als Mitgliedstaat der EG anlässlich seiner Ratifikation des Übereinkommens eine Erklärung abgeben, die jene Bereiche des Übereinkommens bezeichnet, in denen die Zuständigkeit an die internationale Organisation übertragen wurde. Weiters wurden im Rahmen der EU Auslegungserklärungen der EG und ihrer Mitgliedstaaten zum Übereinkommen ausgearbeitet, die ebenfalls mit Ratsbeschluss 98/414/EG vom 8. Juni 1998 im Rahmen der Gemeinschaft angenommen wurden (Anlage C des Ratsbeschlusses 98/ 414/EG, ABl. Nr. L 189 vom 3.07.1998 S. 41). Die darin enthaltenen Auslegungen beziehen sich sowohl auf solche Bereiche des Übereinkommens, die in den Zuständigkeitsbereich der EG fallen, als auch auf solche Bereiche, die in den Zuständigkeitsbereich der Mitgliedstaaten fallen. […] In seither durchgeführten Konsultationen im Rahmen der EU und mit dem UN-Sekretariat wurde klargestellt, dass anlässlich der beabsichtigten gleichzeitigen Ratifikation des Übereinkommens durch die EG und ihre Mitgliedstaaten Österreich folgende Erklärungen abzugeben hat:
–
die bereits erwähnte Erklärung, die jene Bereiche des Übereinkommens bezeichnet, in denen die Zuständigkeit an die EG übertragen wurde,
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die ebenfalls bereits erwähnten Auslegungserklärungen, eine Bestätigung der Erklärung der EG, die jene Bereiche des Übereinkommens bezeichnet, in denen ihr die Zuständigkeit von ihren Mitgliedstaaten übertragen wurde, und der Auslegungserklärungen der EG.
II.
Observance, application and interpretation of treaties/Einhaltung, Anwendung und Auslegung von Verträgen
2.
Application of treaties/Anwendung von Verträgen
See SS.I.1 and SS.I.6.-1 3.
Interpretation of treaties/Auslegung von Verträgen
See also SS.I.1 CC.II.3
Agreement on the interpretation of Art. 12 para. 2 of the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality/Übereinkunft über die Auslegung von Art. 12 Abs. 2 des Übereinkommens über die Verminderung der Fälle mehrfacher Staatsangehörigkeit und über die Militärdienstpflicht in Fällen mehrfacher Staatsangehörigkeit The Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality1 does not provide the possibility to denounce only its Chapter I. In order to provide such a possibility as requested by several States Parties, the Secretary General of the Council of Europe suggested reaching an agreement on the interpretation of Article 12, paragraph 2, of the 1963 Convention2, through written procedure. Austria agreed to such a procedure. The Explanatory Memorandum submitted by the Austrian Government to the Austrian National Assembly explained this procedure: General Part It [the agreement] is not of a political nature and is accessible to the direct application of internal regime, so that enacting implementing laws according to Art. 50 Paragraph 2 B-VG is not necessary. […] The Agreement on the interpretation of Art. 12 para. 2 of the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality (BGBl.
1
Federal Law Gazette, BGBl. 471/1975.
2
Art. 12 para. 2: Any Contracting Party may, in so far as it is concerned, denounce this Convention by means of a notification addressed to the Secretary General of the Council of Europe.
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Nr. 471/1975) remains in force for an unlimited period of time according to its Art. 12 paragraph 1. The Convention provides in Art. 12 para. 2 that each State Party may denounce the Convention by means of a notification addressed to the Secretary General of the Council of Europe in so far as the State itself is concerned. The possibility of a partial denouncement is not provided for. Some of the Contracting Parties declared that they no longer wish to be bound by Chapter I of the Convention because their domestic legislation being no longer in conformity with the provisions contained therein. Austria does not intend to denounce Chapter I. The Secretary General of the Council of Europe suggested in a letter of 5 March 2003 to conclude an Agreement on the interpretation of Art. 12 para. 2 of the 1963 Convention within the meaning of Article 31, paragraph 3, sub-paragraph a, of the Vienna Convention on the Law of Treaties, BGBl. Nr. 40/1980 providing for the possibility of denunciation of Chapter I of the Convention. All States Parties shall affirm that any Contracting Party, insofar as it is concerned, may at any time denounce Chapter I of this Convention by means of a notification addressed to the Secretary General of the Council of Europe. Such a denunciation shall take effect one year after the date of receipt by the Secretary General of such notification. The provisions of Article 7, paragraph 2, of the Convention shall apply as amended by the 1977 Protocol on the Amendment of the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality. Austria has not acceded to that protocol. The creation of a possibility to denounce a Chapter of the Convention is an Agreement by which the States Parties to the Convention determine a uniform—authentic—interpretation of Art. 12 paragraph 2. Such an agreement requires the approval of the National Assembly according to Art. 50 B-VG (Federal Constitution). Austria therefore informed the Secretary General that the approval of the creation of the possibility to denounce Chapter I of the Convention was only possible after the completion of the internal approval procedure. Special Part Through Article 3 of the 1977 Protocol on the Amendment of the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality the provisions of Article 7 of the Convention were amended […]. Austria has not acceded to the 1977 Protocol. Article 7, paragraph 1 of the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality as amended by the 1977 Protocol determines that each Contracting Party shall apply Chapters I and II. Each Contracting Party may, however, at the time of ratification, acceptance or accession, declare that it will apply the provisions of Chapter I or Chapter II only. Each Contracting Party may, at any subsequent time, notify the Secretary General of the Council of Europe that it is applying all the provisions of Chapter I and Chapter II. This notification shall become effective as from the date of its receipt. According to Article 7 paragraph 2 of the Convention as amended by the 1977 Protocol, Chapters I and II are only applicable between Parties which apply the relevant Chapter.
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By applying Article 7 paragraph 2 of the Convention as amended by the 1977 Protocol also after the creation of the possibility to denounce Chapter I of the Convention only Chapter II is applicable in regard to Austria for a Contracting Party which denounces Chapter I. This corresponds to the situation according to the current legal position, if a Contracting Party declares upon ratification that it will only apply Chapter II. Austria applies Chapter I and Chapter II as amended by the 1977 Protocol.
The German original of the relevant part of the Government’s Explanatory Memorandum reads as follows: Erläuterungen Allgemeiner Teil […] Sie [die Übereinkunft] hat nicht politischen Charakter und ist der unmittelbaren Anwendung im innerstaatlichen Bereich zugänglich, so dass eine Erlassung von Gesetzen gemäß Art. 50 Abs. 2 B-VG nicht erforderlich ist. […] Das Übereinkommen über die Verminderung der Fälle mehrfacher Staatsangehörigkeit und über die Militärdienstpflicht in Fällen mehrfacher Staatsangehörigkeit (BGBl. Nr. 471/1975) bleibt gemäß seinem Art. 12 Abs. 1 auf unbegrenzte Zeit in Kraft. Das Übereinkommen sieht in Art. 12 Abs. 2 vor, dass jede Vertragspartei dieses Übereinkommen durch eine an den Generalsekretär des Europarates gerichtete Notifikation kündigen kann, soweit es sie selbst betrifft. Die Möglichkeit einer teilweisen Kündigung des Übereinkommens ist nicht vorgesehen. Einige der Vertragsparteien haben erklärt, dass sie nicht mehr an Kapitel I des Übereinkommens gebunden sein wollen, da ihre nationale Gesetzgebung nicht mehr den im Übereinkommen enthaltenen Bestimmungen entspricht. Von Österreich ist eine Kündigung des Kapitel I nicht beabsichtigt. Der Generalsekretär des Europarates hat in einer Note vom 5. März 2003 nun vorgeschlagen, eine Übereinkunft über die Auslegung von Art. 12 Abs. 2 des Übereinkommens aus 1963 im Sinne von Art. 31 Abs. 3 lit. a des Wiener Übereinkommens über das Recht der Verträge, BGBl. Nr. 40/1980, abzuschließen, mit der die Möglichkeit der Kündigung des Kapitels I des Übereinkommens geschaffen werden soll. Alle Vertragsparteien sollen dem Generalsekretär bestätigen, dass jede Vertragspartei, soweit sie betroffen ist, jederzeit das Kapitel I dieses Übereinkommens durch eine an den Generalsekretär des Europarates gerichtete Notifikation kündigen kann, diese Kündigung ein Jahr nach dem Datum des Erhalts einer solchen Notifikation durch den Generalsekretär wirksam wird und die Bestimmungen des Art. 7 Abs. 2 des Übereinkommens in der durch das Protokoll von 1977 zur Änderung des Übereinkommens über die Verminderung der Fälle mehrfacher Staatsangehörigkeit und über die Militärdienstpflicht in Fällen mehrfacher Staatsangehörigkeit geänderten Form gelten. Österreich ist diesem Protokoll nicht beigetreten. Die Schaffung der Möglichkeit der Kündigung eines Kapitels des Übereinkommens stellt eine Übereinkunft dar, mit der die Vertragsparteien des Übereinkommmens eine einheitliche— authentische—Interpretation des Art. 12 Abs. 2 festlegen. Diese Übereinkunft bedarf gemäß Art. 50 B-VG der Genehmigung des Nationalrats. Österreich hat daher zunächst gegenüber dem Generalsekretär mitgeteilt, dass die Zustimmung zur Schaffung der Möglichkeit, das
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Kapitel I des Übereinkommens zu kündigen, nur nach Abschluss des innerstaatlichen Genehmigungsverfahrens möglich ist. Besonderer Teil Durch Art. 3 des Protokolls von 1977 zur Änderung des Übereinkommens über die Verminderung der Fälle mehrfacher Staatsangehörigkeit und über die Militärdienstpflicht in Fällen mehrfacher Staatsangehörigkeit wurde Art. 7 des Übereinkommens geändert […]. Österreich ist dem Protokoll von Jahr 1977 nicht beigetreten. Artikel 7 Abs. 1 des Übereinkommens über die Verminderung der Fälle mehrfacher Staatsangehörigkeit und über die Militärdienstpflicht in Fällen mehrfacher Staatsangehörigkeit in der durch das Protokoll von 1977 geänderten Form bestimmt, dass jede Vertragspartei die Kapitel I und II anwendet. Jede Vertragspartei kann jedoch bei der Unterzeichnung oder bei der Hinterlegung ihrer Ratifikations-, Annahme- oder Beitrittsurkunde erklären, dass sie lediglich das Kapitel I oder das Kapitel II anwenden wird. Jede Vertragspartei kann in der Folge gegenüber dem Generalsekretär des Europarats mitteilen, dass sie alle Bestimmungen der Kapitel I und Kapitel II anwenden wird. Diese Notifikation wird mit dem Tag ihres Einlangens wirksam. Nach Artikel 7 Abs. 2 des Übereinkommens in der durch das Protokoll von 1977 geänderten Form gelten die Kapitel I und II nur zwischen den Vertragsparteien, die die jeweiligen Kapitel anwenden. Auch mit Anwendung des Art. 7 Abs. 2 des Übereinkommens in der durch das Protokoll von 1977 geänderten Form kommt nach Schaffung der Möglichkeit, Kapitel I des Übereinkommens zu kündigen, für eine Vertragspartei, die Kapitel I kündigt, gegenüber Österreich nur Kapitel II zur Anwendung. Dies entspricht dem Fall nach derzeitiger Rechtslage, wenn eine Vertragspartei bei Ratifikation des Übereinkommens die Erklärung abgibt, dass sie lediglich das Kapitel II anwenden wird. Österreich wendet Kapitel I und Kapitel II des Übereinkommens in Form vor Änderung durch das Protokoll von 1977 an. Anhang Protokoll, Art. 3 (deutsche Übersetzung) Protokoll zur Änderung des Übereinkommens über die Verminderung der Fälle mehrfacher Staatsangehörigkeit und über die Militärdienstpflicht in Fällen mehrfacher Staatsangehörigkeit “Artikel 3: Artikel 7 des Übereinkommens wird wie folgt geändert: (1) ... (2) Die Kapitel I und II gelten nur zwischen den Vertragsparteien, die das jeweilige Kapitel anwenden …”
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Amendment and modification of treaties/Änderung und Modifikation von Verträgen See SS.I.6.-1
DD.
Relationship between international law and internal law/Völkerrecht und innerstaatliches Recht
II.
Application and implementation of international law in internal law/ Innerstaatliche Anwendung und Durchführung des Völkerrechts See also DD.III and EE.II.2.c.-2
DD.II.-1
Constitutional law on the conclusion of the treaty concerning the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union/Bundesverfassungsgesetz über den Abschluss des Vertrages über den Beitritt der Tschechischen Republik, der Republik Estland, der Republik Zypern, der Republik Lettland, der Republik Litauen, der Republik Ungarn, der Republik Malta, der Republik Polen, der Republik Slowenien und der Slowakischen Republik zur Europäischen Union The Austrian accession treaty3, the treaty of Amsterdam4 and the Treaty of Nice5 were ratified by Austria on the basis of a special constitutional law instead of Article 50 of the Austrian Constitution. This special procedure regarding the primary law of the European Union was necessary because of the problems of the incorporation of communitarian law within the Austrian legal hierarchy. As to the treaty on the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union, which also changes the primary law of the European Union, the same legal problems that had arisen at the occasion of the accession of Austria to the European Union and the conclusion of the treaties of Amsterdam and Nice did arise again so that the same legal procedure was applied and a separate constitutional law was enacted: Constitutional Law on the Conclusion of the Treaty on the Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic
3
Federal Law Gazette, BGBl. 45/1995.
4
Federal Law Gazette, BGBl. III 83/1999.
5
Federal Law Gazette, BGBl. III 4/2003.
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of Slovenia and the Slovak Republic to the European Union The National Assembly [Nationalrat] decides: Article 1 (1) The treaty on the accession treaty of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union which was signed on 16 April 2003 may only be concluded with the approval of the National Assembly. The decision on the approval can only be taken in presence of at least half of the Members and a majority of two thirds of the votes; provisions of the treaty, which amend constitutional law or supplement it, need not be indicated as “amending the constitution” [“verfassungsändernd”]. (2) The treaty furthermore requires the assent of the Federal Council [Bundesrat]. The decision of the Federal Council can only be taken in presence of at least half of the Members and a majority of two thirds of the votes. (3) As far as Paragraphs 1 and 2 do not provide anything differently, the norms of the constitution regarding international treaties are applicable.
The German original reads as follows: Bundesverfassungsgesetz über den Abschluss des Vertrages über den Beitritt der Tschechischen Republik, der Republik Estland, der Republik Zypern, der Republik Lettland, der Republik Litauen, der Republik Ungarn, der Republik Malta, der Republik Polen, der Republik Slowenien und der Slowakischen Republik zur Europäischen Union Der Nationalrat hat beschlossen: Artikel 1 (1) Der am 16. April 2003 unterzeichnete Vertrag über den Beitritt der Tschechischen Republik, der Republik Estland, der Republik Zypern, der Republik Lettland, der Republik Litauen, der Republik Ungarn, der Republik Malta, der Republik Polen, der Republik Slowenien und der Slowakischen Republik zur Europäischen Union darf nur mit Genehmigung des Nationalrates abgeschlossen werden. Der Genehmigungsbeschluss kann vom Nationalrat nur in Anwesenheit von mindestens der Hälfte der Mitglieder und mit einer Mehrheit von zwei Dritteln der abgegebenen Stimmen gefasst werden; Bestimmungen des Vertrages, durch die Verfassungsrecht geändert oder ergänzt wird, brauchen darin nicht als “verfassungsändernd” bezeichnet werden. (2) Der Vertrag bedarf überdies der Zustimmung des Bundesrates. Der Beschluss kann vom Bundesrat nur in Anwesenheit von mindestens der Hälfte der Mitglieder und mit einer Mehrheit von zwei Dritteln der abgegebenen Stimmen gefasst werden. (3) Soweit in den Abs. 1 und 2 nicht anderes bestimmt ist, sind auf den Vertrag die Bestimmungen des Bundes-Verfassungsgesetzes über Staatsverträge anzuwenden.
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Artikel 2 Mit der Vollziehung dieses Bundesverfassungsgesetzes ist die Bundesregierung betraut.
The Explanatory Memorandum submitted by the Government to the National Assembly explains this procedure: General Part Legal basis: Concerning competences the draft constitutional law is based on Article 10 Paragraph 1 Subparagraph 1 B-VG (federal constitution). Special Part The conclusion of the treaty on the accession of Austria to the European Union took place on the basis of a special authorization contained in a federal constitutional law, Article I of the constitutional law on the accession of Austria to the European Union, BGBl. Nr. 744/1994. Because of the special norm contained in Article II of the constitutional law the designation of the whole accession treaty or individual norms thereof as “amending the constitution” [“verfassungsändernd”] became redundant. Analoguous provisions are contained in the constitutional law on the conclusion of the treaty of Amsterdam, BGBl. I Nr. 76/1998, and the constitutional law on the conclusion of the treaty of Nice, BGBl. I No. 120/2001. The primary law contained in the Austrian accession treaty, the treaty of Amsterdam and the Treaty of Nice has not been incorporated in the legal hierarchy with regard to its rank through the decision on the National Assembly on the approval of the aforementioned treaties. As the treaty on the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union also amend primary law of the Community, the same legal problems which arose at the occasion of the accession of Austria to the European Union and the conclusion of the treaties of Amsterdam and Nice arise again. Thus the conclusion of the EU accession treaty shall be based on a special federal constitutional authorization and the indication the whole treaty or parts of it as “changing the constitution” [“verfassungsändernd”] shall be suppressed. The wording of the draft largely follows the federal constitutional law on the conclusion of the treaty of Nice. Article 1 Paragraph 3 specifies that Paragraphs 1 and 2 are special norms with regard to the federal constitutional law on State Treaties; as far as Article 1 Paragraphs 1 and 2 do not provide anything differently these norms (as e.g. Article 49 Paragraph 1 B-VG) remain applicable.
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The German original of the Explanatory Memorandum reads as follows: Erläuterungen Allgemeiner Teil Kompetenzgrundlage: In kompetenzrechtlicher Hinsicht stützt sich das im Entwurf vorliegende Bundesverfassungsgesetz auf Art. 10 Abs. 1 Z 1 B-VG (“Bundesverfassung”). Besonderer Teil Der Abschluss des Staatsvertrages über den Beitritt Österreichs zur Europäischen Union erfolgte auf Grund einer besonderen bundesverfassungsgesetzlichen Ermächtigung, des Art. I des Bundesverfassungsgesetzes über den Beitritt Österreichs zur Europäischen Union, BGBl. Nr. 744/1994. Auf Grund der Sonderbestimmung des Art. II dieses Bundesverfassungsgesetzes erübrigte sich eine ausdrückliche Bezeichnung des Beitrittsvertrages oder einzelner seiner Bestimmungen als “verfassungsändernd”. Analoge Regelungen enthalten das Bundesverfassungsgesetz über den Abschluß des Vertrages von Amsterdam, BGBl. I Nr. 76/1998, und das Bundesverfassungsgesetz über den Abschluss des Vertrages von Nizza, BGBl. I Nr. 120/ 2001. Durch die Beschlüsse des Nationalrates über die Genehmigung des Beitritts Österreichs zur Europäischen Union, des Vertrages von Amsterdam und des Vertrages von Nizza ist das den Gegenstand dieser Verträge bildende gemeinschaftliche Primärrecht nicht rangmäßig in das österreichische Rechtsquellensystem eingeordnet worden. Da auch durch den Vertrag über den Beitritt der Tschechischen Republik, der Republik Estland, der Republik Zypern, der Republik Lettland, der Republik Litauen, der Republik Ungarn, der Republik Malta, der Republik Polen, der Republik Slowenien und der Slowakischen Republik zur Europäischen Union gemeinschaftliches Primärrecht geändert werden soll, ergeben sich die gleichen rechtstechnische Probleme, wie sie sich bereits aus Anlass des Beitritts Österreichs zur Europäischen Union und des Abschlusses der Verträge von Amsterdam und von Nizza ergeben haben. Es soll daher auch der Abschluss des EU Beitrittsvertrages auf Grund einer besonderen bundesverfassungsgesetzlichen Ermächtigung erfolgen und von einer ausdrücklichen Bezeichnung des Vertrages oder einzelner seiner Bestimmungen als “verfassungsändernd” abgesehen werden. Die Formulierung des Entwurfes folgt im Wesentlichen der des Bundesverfassungsgesetzes über den Abschluss des Vertrages von Nizza. Art. 1 Abs. 3 stellt klar, dass die Abs. 1 und 2 Sonderbestimmungen zu den Bestimmungen des Bundes-Verfassungsgesetzes über Staatsverträge sind; soweit in Art. 1 Abs. 1 und 2 nicht anderes bestimmt ist, bleiben diese Bestimmungen (wie z.B. Art. 49 Abs. 1 B VG) jedoch anwendbar. DD.II.-2
Amendment to Article 10.2 of the Statute of the European System of Central Banks and of the European Central Bank according to a Decision of the Council, meeting in the composition of the heads of State or Government of 21 March 2003/Änderung des Artikels 10.2 der Satzung des Europäischen Systems der Zentralbanken und der
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Europäischen Zentralbank gemäß einem Beschluss des Rates in der Zusammensetzung der Staats- und Regierungschefs vom 21. März 2003 The enlargement of the European Union required an adjustment of the provisions on the voting rights of the Governors of the national central banks within the Governing Council of the European Central Bank. A three group rotation system with 15 rotating votes shall be established. The purpose of these changes is to ensure that the Governing Council can continue to work effectively after EU enlargement and the entry of new Member States into the Euro Zone. The Explanatory Memorandum submitted by the Government to the National Assembly in the course of the procedure of ratification of this amendment reads as follows (excerpts): The decision of the Council in the composition of the heads of State or Government of 21 March 2003 (2003/223/EG) on an amendment to Article 10.2 of the Statute of the European System of Central Banks and of the European Central Bank requires the approval of the National Assembly according to Art. 50 B-VG (Federal Constitution). The decision does not contain provisions that change or supplement the Constitution and it is not of a political nature. Since through this decision no matters concerning the independent sphere of action of the federal Laender (Länder) are regulated, the assent of the Federal Council (Bundesrat) is not required according to Art. 50 Paragraph 1 last sentence B-VG. The decision is accessible to the direct application within the internal legal order, so that enacting laws according to Art. 50 Paragraph 2 B-VG is not necessary. For the purpose of the enlargement of the European Union, the following Article 6 was added to Article 10 of the Statute of the European System of Central Banks and of the European Central Bank by means of the Treaty of Nice: “Article 10.2 [of the Statute] may be amended by the Council meeting in the composition of the Heads of State or Government, acting unanimously either on a recommendation from the ECB and after consulting the European Parliament and the Commission, or on a recommendation from the Commission and after consulting the European Parliament and the ECB. The Council shall recommend such amendments to the Member States for adoption. These amendments shall enter into force after having been ratified by all the Member States in accordance with their respective constitutional requirements. A recommendation made by the ECB under this paragraph shall require a decision by the Governing Council acting unanimously.” […] Following constant Austrian practice in constitutional matters the ratification of legal acts which require the ratification by the member states in accordance with their constitution provisions is performed in accordance with Art. 65 para. 1 together with Art. 50 B-VG (Federal Constitution). Concerning the classification of the act within the Austrian legal system it is decisive, whether a national legal act of the same content as the relevant act under consideration would, according to its content, have to be created as a simple law or as constitutional law, respectively whether its content is in conflict with a simple law or a constitutional law in force
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or is supplementing a simple law or a constitutional law. Article 10.2. of the Statute of the European System of Central Banks and of the European Central Bank would, already in its original version, have been accessible to an approval as a simple law on the basis of Article 50 B-VG.
The German original of the relevant part of the Government’s Explanatory Memorandum reads as follows: Erläuterungen Der Beschluss des Rates in der Zusammensetzung der Staats- und Regierungschefs vom 21. März 2003 (2003/223/EG) über eine Änderung des Artikels 10.2 der Satzung des Europäischen Systems der Zentralbanken und der Europäischen Zentralbank bedarf der Genehmigung des Nationalrates gemäß Art. 50 Abs. 1 B-VG. Er hat nicht politischen Charakter und enthält keine verfassungsändernden oder verfassungsergänzenden Bestimmungen. Er bedarf nicht der Zustimmung des Bundesrates nach Art. 50 Abs. 1 letzter Satz B-VG, da er keine Angelegenheiten des selbständigen Wirkungsbereichs der Länder regelt. Der Beschluss ist einer unmittelbaren Anwendbarkeit im innerstaatlichen Rechtsbereich zugänglich, sodass die Erlassung von Gesetzen gem. Art. 50 Abs. 2 B-VG als nicht erforderlich erscheint. Durch den Vertrag von Nizza wurde im Hinblick auf die Erweiterung der Europäischen Union dem Artikel 10 der Satzung des Europäischen Systems der Zentralbanken und der Europäischen Zentralbank folgender Absatz 6 angefügt: “Artikel 10.2 (der Satzung) kann vom Rat in der Zusammensetzung der Staats- und Regierungschefs entweder auf Empfehlung der EZB nach Anhörung des Europäischen Parlaments und der Kommission oder auf Empfehlung der Kommission nach Anhörung des Europäischen Parlaments und der EZB einstimmig geändert werden. Der Rat empfiehlt den Mitgliedstaaten, diese Änderungen anzunehmen. Diese Änderungen treten in Kraft, nachdem sie von allen Mitgliedstaaten gemäß ihren verfassungsrechtlichen Vorschriften ratifiziert worden sind. Für eine Empfehlung der EZB nach diesem Absatz ist ein einstimmiger Beschluss des EZB-Rates erforderlich.” […] Nach ständiger österreichischer Verfassungspraxis erfolgt die Ratifikation von Rechtsakten, die von den Mitgliedstaaten gemäß ihren verfassungsrechtlichen Vorschriften anzunehmen sind, gemäß Art. 65 Abs. 1 iVm Art. 50 B-VG. Für die Einordnung in das System der österreichischen Rechtsordnung ist entscheidend, ob der Inhalt des konkreten Rechtsaktes seinem Inhalt nach auf einfachgesetzlicher Ebene oder als Verfassungsrecht zu erzeugen wäre bzw. ob sein Inhalt im Widerspruch zu geltenden einfachgesetzlichen oder verfassungsrechtlichen Vorschriften steht bzw. diese ergänzt. Artikel 10.2 der Satzung des Europäischen Systems der Zentralbanken und der Europäischen Zentralbank wäre bereits in seiner ursprünglichen Fassung einer einfachgesetzlichen Genehmigung auf Grundlage von Artikel 50 Abs. 1 B-VG zugänglich gewesen.
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Remedies under internal law for violations of international law/Innerstaatliche Rechtsmittel bei Völkerrechtsverletzungen
DD.III
Non-observance of EU-environmental directives by the federal Laender (Länder)— infringement proceedings against Austria for failure to fulfil its obligations under the Treaty establishing the European Community (TEC)—possibility of the Federation (Bund) to object to laws and regulations of the federal Laender according to Art 98(2) BVG (Federal Constitution)—possibility of the Federation to claim redress in case of lump-sum or penalty payments /Missachtung von EU-Umweltrichtlinien durch die Bundesländer—Vertragsverletzungsverfahren gegen Österreich—Einspruchmöglichkeit des Bundes bei Landesgesetzen u. -verordnungen im Rahmen des Art 98(2) BVG—Regressmöglichkeit des Bundes bei Pauschalbetrags- oder Zwangsgeldzahlungen In July 2002, a parliamentary request was addressed to the Federal Chancellor asking him about the infringement proceedings against Austria for failure to fulfil its obligations under the TEC (“Vertragsverletzungsverfahren”) due to a non-observance of environmental directives by the Austrian federal Laender (Länder).6 The Federal Chancellor was asked whether the federal level had ever urged the federal Laender to comply with the EU directives (especially regarding proceedings concerning a failure to fulfil their obligations under the TEC); whether a monitoring mechanism regarding the implementation of EU-law (similar to the one of the European Commission), which would also comprise the federal Laender, would be established; whether a detailed list of complaint procedures and infringement proceedings against Austria would be posted on the web as well as passed on to the Parliament and whether the EU conformity of draft laws or regulations of the federal Laender was verified when surveying the drafts of the federal Laender. In his response, the Federal Chancellor explained that the status of the implementation of EC-directives in the area of environmental matters—just as the status of the implementation of other EC-directives—was recorded by the Federal Chancellery and the Federal Ministry for Foreign Affairs. The relevant ministries as well as the federal Laender were informed about the implementation duties that concerned them, and that the Government was periodically informed via reports on the implementation deficits. […] Regarding the question, whether the Federation (Bund) examined the EU conformity of drafts of laws or regulations of the federal Laender, the Chancellor stated that this was done during the survey of the draft by the competent Ministry. The German original reads as follows: Der Stand der Umsetzung von EG-Richtlinien im Bereich der Umweltangelegenheiten wird—
6
Parliamentary Materials 4195/J (XXI. GP), 4196/AB (XXI. GP).
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wie auch der Stand der Umsetzung aller anderen EG-Richtlinien—vom Bundeskanzleramt und vom Bundesministerium für auswärtige Angelegenheiten evident gehalten. Die jeweils betroffenen Bundesministerien sowie auch die Länder werden über die sie treffenden Umsetzungsverpflichtungen informiert, und es wird auch in regelmäßigen Abständen in der Form von Berichten an den Ministerrat auf bestehende Umsetzungsdefizite hingewiesen. […] Im Rahmen der Begutachtung von Gesetzes- und Verordnungsentwürfen der Länder durch die zuständigen Bundesministerien werden vom jeweils zuständigen Bundesministerium auch Fragen der Übereinstimmung mit dem Recht der Europäischen Union wahrgenommen.
As to the question, whether the Federation had ever used its right to object to laws of the federal Laender according to Art 98 para 2 B-VG because of jeopardizing federal interests and if not, why not, the Chancellor explained that Art 98 para 2 B-VG declared the jeopardy of federal interests a ground for an objection. However, such an objection could of course only be launched when the existing concerns had not been stated in a comment on the underlying draft prior to the commencement of the legislative procedure. If the opportunity for such a comment had been given, then the objection could only be founded on an alleged encroachment on the Federation’s competence. In that way the possibility of raising an objection was to a great extent reduced. Whether the Federal Government made use of its right to object, gave its assent to an early publication (Kundmachung) of the law or let the eight week objection period elapse unused, was completely in the unfettered, in that sense also political, discretion of the Federal Government. The Federal Government was under no circumstances required to object or to give its assent to an early publication of the law. The Federal Government had used its right to object according to Art 98 para 2 BVG with great restraint. From 1995 until today only six objections were raised. None of them was based on the jeopardy of Federal interests as a consequence of a breach of Community law. However, if in the case of proceedings according to Art 98 B-VG a law of a federal Land was found to be contrary to Community law, the Governor of the federal Land concerned (Landeshauptmann) was notified, in order that he/she could immediately remedy that defect through a further legislative act. The German original reads as follows: Art. 98 Abs. 2 B-VG statuiert die Gefährdung von Bundesinteressen als Einspruchsgrund, wobei dieser freilich nur geltend gemacht werden kann, wenn die bestehenden Bedenken nicht bereits vor Einleitung der Gesetzgebungsverfahrens im Rahmen einer Stellungnahme zum zugrunde liegenden Entwurf releviert werden konnten. Ist zuvor Gelegenheit zu einer solchen Stellungnahme gegeben worden, so darf sich der Einspruch nur auf einen behaupteten Eingriff in die Zuständigkeit des Bundes gründen. Hiedurch wird die Möglichkeit einer Einspruchserhebung weitgehend reduziert. Ob die Bundesregierung von ihrem Einspruchsrecht Gebrauch macht, die Zustimmung zur vorzeitigen Kundmachung des Gesetzesbeschlusses erteilt oder die achtwöchige Einspruchsfrist ungenützt verstreichen lässt, ist eine Frage des der Bundesregierung zustehenden gänzlich freien, und in diesem Sinne auch politischen, Ermessens. Die Bundesregierung ist unter keinen Voraussetzungen verpflichtet, einen Einspruch zu erheben oder auch die Zustimmung zur
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vorzeitigen Kundmachung des Gesetzesbeschlusses zu erteilen. Die Bundesregierung übt das ihr gemäß Art. 98 Abs. 2 B-VG zustehende Einspruchsrecht mit großer Zurückhaltung aus. Vom Jahr 1995 bis heute wurden nur sechs Einsprüche erhoben. Keiner davon wurde auf die Gefährdung von Bundesinteressen durch Verstoß gegen Gemeinschaftsrecht gestützt. Es wird jedoch bei einer im Verfahren nach Art. 98 B-VG erkannten Belastung eines Gesetzesbeschlusses mit Gemeinschaftsrechtswidrigkeit dem Landeshauptmann des betreffenden Bundeslandes hievon Mitteilung gemacht, um die unverzügliche Behebung dieses Mangels im Wege eines weiteren Gesetzgebungsaktes zu ermöglichen.
As to the questions, whether in the case of a lump sum or penalty payments according to Art 228 para 2 TEC a redress was possible against the federal Laender which had breached the treaty and whether he considered a reform of the Constitution necessary in order to react more rapidly to delayed or incorrect implementations of directives or take regress against the respective federal Laender, the Federal Chancellor replied that according to Section 2 of the Finance-Constitutional Law 1948, BGBl. (Federal Law Gazette) 45 and unless the legislation concerned did not determine otherwise, the Federation and the other territorial authorities bore the expenses caused by the management of their affairs. Section 3 para 2 of the Financial Adjustment Law 2001, BGBl. I No. 3/2001 elaborated further that the federal Laender concerned were required to bear the expenses which resulted for the Republic of Austria from proceedings before the Court of Justice of the European Communities because of a conduct of the federal Laender contrary to EC-law. If a federal Land had thus breached its duties under Art. 23d para 5 B-VG and had not taken those measures which would have been required of it within its autonomous sphere of competences for the implementation of laws within the framework of European integration, the Federation can take redress against that federal Land according to the provisions named above. […] The German original reads as follows: Nach § 2 des Finanz-Verfassungsgesetzes 1948, BGBI. 45, tragen der Bund und die übrigen Gebietskörperschaften, sofern die zuständige Gesetzgebung nichts anderes bestimmt, den Aufwand, der sich aus der Besorgung ihrer Aufgaben ergibt. § 3 Abs. 2 des Finanzausgleichsgesetzes 2001, BGBI. I Nr. 3/2001, führt näher aus, dass die jeweils betroffenen Länder zur Tragung jener Kosten verpflichtet sind, die der Republik Österreich Im Zusammenhang mit Verfahren vor dem Gerichtshof der Europäischen Gemeinschaften wegen eines EG-rechtswidrigen Verhaltens der Länder erwachsen. Hat somit ein Land gegen seine Verpflichtung nach Art. 23d Abs. 5 B-VG verstoßen und jene Maßnahmen nicht getroffen, die in seinem selbständigen Wirkungsbereich zur Durchführung von Rechtsakten im Rahmen der europäischen Integration erforderlich gewesen wären, so kann der Bund bei jenem Land gemäß den genannten Bestimmungen Regress nehmen. […]
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EE.
Subjects of International law/ Völkerrechtssubjekte
II.
International organisation/Internationale Organisationen
1.
In general/Allgemeines
a.
Status and Powers/Status und Befugnisse
bb.
Powers, including treaty-making power/Befugnisse einschließlich der Vertragsabschlußbefugnis
See SS.VIII cc.
Privileges and immunities of the organisation/Privilegien und Immunitäten der Organisation
EE.II.1.a.cc
Agreement on the Privileges and Immunities of the International Criminal Court— Austrian Declaration/Übereinkommen über die Privilegien und Immunitäten des Internationalen Strafgerichtshofs—Österreichische Erklärung The privileges and immunities of the International Criminal Court have only fragmentarily been dealt with in the Rome Statute on the International Criminal Court7. Article 48 paragraphs 3 and 4 explicitly refer to an agreement on privileges and immunities of the Court. On 10 September 2002, the Assembly of States Parties accordingly adopted the Agreement on the Privileges and Immunities of the International Criminal Court (APIC)8, which regulates among other things the legal position of parties to the criminal proceedings (legal advisers, experts, witnesses, victims) and the staff of the Court in detail. The Explanatory Memorandum submitted by the Austrian Government to the National Assembly in the course of the ratification procedure concerning this agreement reads as follows (excerpts): General Part The Rome Statute contains in its Article 48 only general rules on privileges and immunities of the Court and its organs as well as the parties to the criminal proceedings. The present agreement that was elaborated by the “Preparatory Committee for the Court” and was adopted by the Assembly of States Parties to the Statute on 10 September 2002 in New York, regulates the privileges and immunities of the Court, its organs and the parties to the criminal proceedings (legal advisers, experts, witnesses, victims) in detail. This is necessary to ensure the operability of the Court in all Contracting Parties. […]
7
2187 UNTS 3.
8
ICC-ASP/1/3 available at http://www.icc-cpi.int/officialjournal/internationaltreaties.html.
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The main features of the agreement are: the Court is granted legal personality, its premises and archives are inviolable. The Court enjoys immunity from national Courts’ jurisdiction. Furthermore are defined the privileges and immunities of the State representatives taking part in the assembly of States Parties and its auxiliary organs, the organs of the Court as well as other persons and states taking part in the criminal proceedings. The persons taking part in the proceedings before the Court (legal advisers, witnesses, victims and experts) as well as surplace personnel enjoy only functional immunity. The travel documents issued for organs of the Court are accepted as valid travel documents. In accordance with Austrian practice, it is intended to make a declaration upon ratification of the agreement in accordance with Article 23 of the agreement to restrict the extent of the privileges and immunities of Austrian citizens and persons with permanent residency in Austria within the territory of the Republic of Austria. Special part […] To Article 2 The regulation on legal personality corresponds with Article I Section 1 (in the following Art. I/1) APIC, Article II Section 3 of the Convention on the privileges and immunities of Specialised Agencies of the United Nations, BGBl. 248/1950, in the following “Art. II/3 PISO” as well as Article 2 of the Agreement on the Privileges and Immunities of the International Tribunal for the Law of the Sea, BGBl. III 51/ 2002, in the following “Art. 2 SGH”. Article 2 APIC grants the ICC international legal personality as well as the capacity to undertake certain legal transactions and legal acts. The capacity to enter into contracts applies to the field of civil law. Article 2 is no limitative enumeration, on the one hand given the implied powers doctrine, on the other hand also because other norms of the Agreement provide for regulations going beyond the scope of Article 2, which can be agreed among the Criminal Court and individual States (compare Article 12). […] To Article 23 This Article grants Contracting States the possibility by means of a declaration to restrict the privileges and immunities of persons mentioned in the Article, who are citizens of the Contracting Party or have their permanent residency in the Contracting State Party. Austria will use this possibility. […]
The German original of the Explanatory Report submitted by the Austrian Government to the National Assembly in the course of the ratification procedure concerning this agreement reads as follows (excepts): Erläuterungen Allgemeiner Teil …
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Das Römische Statut enthält in seinem Art. 48 bloß allgemeine Regelungen über die Privilegien und Immunitäten des Gerichtshofs, seiner Organe sowie der Prozessteilnehmer. Das vorliegende Übereinkommen, das vom Vorbereitungsausschuss für den Gerichtshof ausgearbeitet und von der Versammlung der Vertragsstaaten des Römischen Statuts am 10. September 2002 in New York angenommen wurde, regelt daher die Vorrechte und Immunitäten des Gerichtshofs, seiner Organe, sowie der sonstigen am Verfahren vor dem Gerichtshof beteiligten Personen (Berater, Zeugen, Opfer, Sachverständige) im Detail. Dies ist erforderlich, um die Funktionsfähigkeit des Gerichtshofs in allen Vertragsstaaten sicherzustellen. […] Wesentliche Grundzüge des Übereinkommens sind: Dem Gerichtshof wird Rechtspersönlichkeit eingeräumt, seine Amtsräume und Archive sind unverletzlich. Der Gerichtshof genießt Immunität von der staatlichen Gerichtsbarkeit. Weiters werden die Privilegien und Immunitäten der an der Versammlung der Vertragsstaaten und ihren Nebenorganen teilnehmenden Staatenvertreter, der Organe des Gerichtshofs sowie der sonstigen am Verfahren beteiligten Personen und Staaten geregelt. Die am Verfahren vor dem Gerichtshof beteiligten Personen (Berater, Zeugen, Opfer und Sachverständige) sowie das sur-place Personal genießen bloß funktionelle Immunität. Die für die Organe des Gerichtshofs ausgestellten Reisedokumente werden als gültige Reisedokumente anerkannt. Entsprechend der österreichischen Praxis, im Gebiet der Republik Österreich den Umfang von Privilegien und Immunitäten von österreichischen Staatsbürgern und Personen mit ständigem Aufenthalt in Österreich einzuschränken, ist beabsichtigt, anlässlich der Ratifikation des Übereinkommens eine Erklärung gemäß Art. 23 des Übereinkommens abzugeben. Besonderer Teil … Zu Artikel 2 Die Regelung der Rechtspersönlichkeit entspricht Art. I Abschnitt 1 (im folgenden Art. I/1) PIVN, Art. II Abschnitt 3 des Übereinkommens über die Privilegien und Immunitäten der Spezialorganisationen, BGBl. Nr. 248/1950, im folgenden “Art. II/3 PISO” sowie Art. 2 des Übereinkommens über die Vorrechte und Immunitäten des Internationalen Seegerichtshofs, BGBl. III Nr. 51/2002, im folgenden “Art. 2 SGH”. Art. 2 verleiht dem Gerichtshof Rechtspersönlichkeit sowie ausdrücklich auch die Fähigkeit zur Vornahme bestimmter Rechtsgeschäfte und -handlungen. Die Fähigkeit, Verträge zu schließen, bezieht sich auf den privatrechtlichen Bereich. Art. 2 ist keine abschließende Regelung, einerseits im Lichte der implied powers-Lehre, andererseits auch deshalb, weil andere Bestimmungen des Übereinkommens über Art. 2 hinausgehende Regelungen vorsehen, die zwischen dem Strafgerichtshof und einzelnen Staaten vereinbart werden können (vgl. Art. 12). …
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Zu Artikel 23 Dieser Artikel räumt den Vertragsstaaten die Möglichkeit ein, durch die Abgabe einer Erklärung die Privilegien und Immunitäten der in ihm bezeichneten Personen, die Staatsbürger des jeweiligen Vertragsstaates sind oder in dessen Gebiet ihren ständigen Aufenthalt haben, einzuschränken. Österreich wird von dieser Möglichkeit […] Gebrauch machen. […]
Text of the treaty: Article 2 Legal status and juridical personality of the Court The Court shall have international legal personality and shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. It shall, in particular, have the capacity to contract, to acquire and to dispose of immovable and movable property and to participate in legal proceedings. […] Article 23 Nationals and permanent residents At the time of signature, ratification, acceptance, approval or accession, any State may declare that: (a) Without prejudice to paragraph 6 of article 15 and paragraph 1 (d) of article 16, a person referred to in articles 15, 16, 18, 19 and 21 shall, in the territory of the State Party of which he or she is a national or permanent resident, enjoy only the following privileges and immunities to the extent necessary for the independent performance of his or her functions or his or her appearance or testimony before the Court: (i) Immunity from personal arrest and detention; (ii) Immunity from legal process of every kind in respect of words spoken or written and all acts performed by that person in the performance of his or her functions for the Court or in the course of his or her appearance or testimony, which immunity shall continue to be accorded even after the person has ceased to exercise his or her functions for the Court or his or her appearance or testimony before it; (iii) Inviolability of papers and documents in whatever form and materials relating to the exercise of his or her functions for the Court or his or her appearance or testimony before it; (iv) For the purposes of their communications with the Court and for a person referred to in article 19, with his or her counsel in connection with his or her testimony, the right to receive and send papers in whatever form. (b) A person referred to in articles 20 and 22 shall, in the territory of the State Party of which he or she is a national or permanent resident, enjoy only the following privileges and immunities to the extent necessary for his or her appearance before the Court: (i) Immunity from personal arrest and detention;
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(ii) Immunity from legal process in respect of words spoken or written and all acts performed by that person in the course of his or her appearance before the Court, which immunity shall continue to be accorded even after his or her appearance before the Court.
Austrian Declaration: In accordance with Article 23 of the Agreement, the Republic of Austria declares that persons referred to in this article, who are Austrian nationals or permanent residents of Austria shall, in the territory of the Republic of Austria, enjoy only the privileges and immunities referred to in this article. b.
Participation of States in international organisations and in their activities/ Mitgliedschaft in internationalen Organisationen, Teilnahme an ihren Aktivitäten
aa.
Admission/Zulassung
See EE.II.2.c.-1 cc.
Obligations of membership/Verpflichtungen aus der Mitgliedschaft
EE.II.1.b.cc
Austrian participation in the EU-forces deployed in Macedonia—EU-army—Austria’s assistance obligation/Österreichische Beteiligung beim Einsatz von EU-Truppen in Mazedonien—EU-Armee—Beistandsverpflichtung Österreichs In February 2003, a parliamentary request regarding an Austrian participation in the EU-forces deployed in Macedonia was addressed to the Federal Minister for Defence.9 First, the Federal Minister for Defence explained that currently nine soldiers were deployed in Macedonia. As to the question, which measures were necessary in order to enable Austria to comply with its obligation to provide 2000 soldiers for the EUforces in times of crisis, the Federal Minister for Defence stated that within the framework of the European Council of Helsinki in 1999, the Member States of the European Union had decided to provide troops for EU-led operations within the framework of voluntary cooperation. There existed neither an obligation to provide soldiers, nor could one speak of a EU-army. Austria had volunteered a contribution of 1500 soldiers maximum. […] Regarding Austria’s obligation of assistance (Beistandspflicht) in case of an attack against an EU Member State, the Minister stated that the Federal Government stood for an active and engaged participation in all essential areas of the development of EU-cooperation, including in the area of security and defence policy. This also included a support of the efforts to flesh out the possibility of a common defence as contained in Art 17 Treaty on European Union (TEU), as well as an active participation and cooperation of Austria in a future obligation of assistance within the framework of the European Union and an inclusion of a solidarity clause to deal with terrorist
9
Parliamentary Materials 106/J (XXII. GP), 113/AB (XXII. GP).
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threats within the framework of the EU. The German original reads as follows: Die Mitgliedstaaten der Europäischen Union haben im Rahmen des Europäischen Rates von Helsinki 1999 festgelegt, im Rahmen der freiwilligen Zusammenarbeit Truppen für EU-geführte Operationen bereitzustellen. Es besteht weder eine Verpflichtung zur Abstellung von Soldaten noch kann von einer EU-Armee gesprochen werden. Von Österreich wurde ein Beitrag von maximal 1500 Soldaten eingemeldet. Die Bundesregierung tritt dafür ein, in allen zentralen Kernbereichen an den Entwicklungen der EU-Zusammenarbeit, einschließlich der Sicherheits- und Verteidigungspolitik, initiativ und aktiv mitzuarbeiten. Dies umfasst auch eine Unterstützung der Bemühungen zur Verwirklichung der in Art. 17 des EU-Vertrags aufgezeigten Möglichkeit einer gemeinsamen Verteidigung sowie eine aktive Mitwirkung und Mitarbeit Österreichs an einer zukünftigen Beistandsgarantie im Rahmen der Europäischen Union und an einer Aufnahme einer Solidaritätsklausel zur Bewältigung von terroristischen Bedrohungen im Rahmen der EU. […]
In February 2003, a similar request was also addressed to the Austrian Federal Chancellor.10 When questioned about Austria’s assistance obligation in the case of an attack against an EU- Member State, the Austrian Federal Chancellor answered that he firmly supported a further development of a European peace and defence community within the discussions in the EU Convention. Austria should participate fully and with solidarity in a European security system including a future obligation of assistance. The German original reads as follows: Ich trete daher konsequent für eine Weiterentwicklung einer europäischen Friedens- und Verteidigungsgemeinschaft im Rahmen der Diskussionen im EU-Konvent ein. Österreich sollte sich an einem europäischen Sicherheitssystem einschließlich einer künftigen Beistandsgarantie umfassend und solidarisch beteiligen. dd.
Representation of States, including privileges and immunities/Vertretung der Staaten, einschließlich ihrer Privilegien und Immunitäten
See also EE.II.2.a EE.II.1.b.dd
Question of Equitable Representation and on Increase in the Membership of the Security Council and Related Matters/Sitzverteilung und Erhöhung der Mitgliederzahl des Sicherheitsrates On 14 October 2003, the Permanent Representative of Austria to the United Nations,
10
Parliamentary Materials 108/J (XXII. GP), 110/AB (XXII. GP).
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H.E. Ambassador Gerhard Pfanzelter, delivered the following Statement to the Security Council of the United Nations concerning the equitable representation and the increase in the membership of the Security Council:11 Mr. President, My delegation is very grateful to you for your strong leadership in the reform process of the United Nations. Austria fully supports your efforts to advance the reform agenda, especially of the General Assembly. The year 2003 has been a very difficult year for our organisation. The urgent call for reform by the Secretary General has to be taken up by all Member States. Austria, hosting one of the headquarters of the United Nations, shares a strong sense of responsibility for the effective and efficient functioning of the organisation. We therefore welcome the initiative of the Secretary-General to establish a High-Level Panel of Eminent Personalities, which will submit reform proposals in time for consideration by the next General Assembly. The Millennium Declaration laid out a vision for peace, security and sustainable development in our century. We need a fair and consistent collective security system based on a common understanding of what the major threats of today’s world are and what our common responses should be. It is of critical importance that we put the plight of human beings right in the centre of our debate. It is Austria’s strong belief that the strengthening of the main organs of the United Nations— and in particular the Security Council—will provide a framework for achieving the goals of the Millennium Declaration. Mr. President, The Security Council is at odds with the geopolitical reality of the 21st century. It neither reflects the growing number of UN members nor the regional balance. As a result, some question the legitimacy of the Council’s decision-making process. Enlarging and balancing its membership, as well as increasing its transparency is essential. We welcome recent efforts of the Security Council to increase the transparency in its working methods by conducting more open debates. But more needs to be done. Progress in the Open-ended Working Group cannot be limited to reform of working methods. The deadlock in the deliberations on membership and veto needs to be overcome. As a first step, it might help to eliminate extreme positions which don’t enjoy wide support. This could reduce the plethora of different options in the report of the Working Group. The maintenance of efficiency as well as the utmost possible degree of transparency and legitimacy must remain equally important goals that should be guiding our reform efforts. The reform debate of the Security Council has lasted more than 10 years without producing tangible results. Progress can only be achieved, if the underlying political impasse is overcome
11
Available at http://www.aussenministerium.at/newyorkov/.
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by a reconsideration of positions in the major capitals of the world. All sides must be prepared to accept compromises. Thank you, Mr. President e.
Responsibility of international organisations (see MM.)/Verantwortlichkeit internationaler Organisationen (siehe MM.)
See MM.III.2 2.
Particular types/Arten internationaler Organisationen
a.
Universal organisations/Universelle Organisationen
See MM.III.2 and SS.VIII c.
Organisations constituting integrated (e.g. economic) communities/Internationale Gemeinschaften (z.B. wirtschaftlicher Natur)
See also DD.II.-1 and DD.II.-2 EE.II.2.c.-1
Treaty concerning the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union/Vertrag über den Beitritt der Tschechischen Republik, der Republik Estland, der Republik Zypern, der Republik Lettland, der Republik Litauen, der Republik Ungarn, der Republik Malta, der Republik Polen, der Republik Slowenien und der Slowakischen Republik zur Europäischen Union The Explanatory Memorandum submitted by the Government to the National Assembly in the course of the ratification procedure comments upon the structure of the Accession treaty in the following manner: 2. Structure of the treaty […] Final Act The text of the Final Act follows largely the structure of the Final Acts of the previous accession treaties. […] From a formal point of view, the Final Act is not part of the accession treaty. The declarations contained therein (see in the following) are of political but also of legal importance, as they were adopted by the authorised representatives of the 25 Contracting Parties at the occasion of the signing ceremony and thus have to be regarded as agreements for the purpose of interpretation according to Article 31 Paragraph 2 Subparagraph a of the Vienna Convention
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on the Law of Treaties. […] 3) Legal Aspects 3.2. Procedure of approval of the accession treaty In this context it has to be pointed out that future changes of primary law (which comprises the present accession treaty)—if no special regulation for the parliamentary approval procedure exists—are subject to Article 50 B-VG (federal constitution). Other than the treaty on the accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the European Union the present accession treaty does not require supplementing amendments to the federal constitution.
The German original of the relevant part of the Government’s Explanatory Memorandum reads as follows: 2. Struktur des Vertragswerkes … Schlussakte Der Text der Schlussakte zum Beitrittsvertrag folgt weitgehend dem Schema der Schlussakte zu den bisherigen Beitrittsverträgen. […] Die Schlussakte ist formalrechtlich nicht Bestandteil des Beitrittsvertrags. Den in ihr aufgenommenen Erklärungen (siehe folgend) kommt politische, aber auch rechtliche Bedeutung zu, da sie von den Bevollmächtigten der 25 Vertragsparteien im Rahmen der Unterzeichnungszeremonie angenommen wurden und deshalb als Übereinkünfte für die Auslegung im Sinne des Art. 31 Abs. 2 lit. a) des Wiener Übereinkommens über das Recht der Verträge anzusehen sind. […] 3) Rechtliche Gesichtspunkte 3.2 Genehmigungsverfahren des Beitrittsvertrages […] In diesem Zusammenhang ist darauf hinzuweisen, dass künftige Änderungen des Primärrechts (dies umfasst auch den vorliegenden Beitrittsvertrag)—sofern keine Sonderregelung für das parlamentarische Genehmigungsverfahren geschaffen wird—Art. 50 B-VG unterliegen. Anders als der Vertrag über den Beitritt des Königreichs Norwegen, der Republik Österreich, der Republik Finnland und des Königreichs Schwedens zur Europäischen Union bedarf der vorliegende Beitrittsvertrag keiner flankierenden Änderungen des B-VG.
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EE.II.2.c.-2
Decision of the Representatives of the Governments of the Member States, meeting within the Council, of 27 February 2002 on the financial consequences of the expiry of the ECSC Treaty and on the research fund for coal and steel—legal implementation by Austria/ Beschluss der im Rat vereinigten Vertreter der Regierungen der Mitgliedstaaten vom 27. Februar 2002 über die finanziellen Folgen des Ablaufs der Geltungsdauer des EGKS-Vertrags und über den Forschungsfonds für Kohle und Stahl— österreichische Umsetzung According to its Article 97, the ECSC Treaty expired on 23 July 2002. The Protocol on the financial consequences of the expiry of the ECSC Treaty and on the research fund for coal and steel annexed to the Treaty of Nice provides that all assets and liabilities of the ECSC, as they existed on 23 July 2002, shall be transferred to the European Community on 24 July 2002. It was foreseeable that due to the delays in the ratification process in some member states the Treaty of Nice would not enter into force in due time which would have as a consequence a “legal vacuum” with regard to the administration of the ECSC assets after 24 July 2002. This Decision is a so called “act of the representatives”, which was not taken by the Community organ “Council” but by the representatives of the governments of the members states meeting within the Council. Such decisions are not created according to communitarian law creation procedures but according to public international law. […] The Decision confers the competence to take binding decisions to the Commission. […] It [the Decision] is accessible to the direct application within the internal regime, so that enacting laws according to Art. 50 Paragraph 2 B-VG is not necessary. […] In the Protocol annexed to the Treaty of Nice on the financial consequences of the expiry of the ECSC Treaty and on the Research Fund for Coal and Steel, the States Parties decided that all assets and liabilities of the ECSC, as they exist on 23 July 2002, shall be transferred to the European Community on 24 July 2002. Due to the delays in the ratification process in some member states it is foreseeable that the Treaty of Nice will not enter into force in due time which would have as a consequence a “legal vacuum” with regard to the administration of the ECSC assets after 24 July 2002. Thus the representatives of the member states adopted a “Decision on the financial consequences of the expiry of the ECSC Treaty and on the research fund for coal and steel”. The decision provides for an interim management of ECSC assets as from 24 July 2002 by the Commission on behalf of the Member States until the Treaty of Nice enters into force. The Decision adopts largely the text as it stands of the Protocol annexed to the Treaty of Nice on the financial consequences of the expiry of the ECSC Treaty and on the Research Fund for Coal and Steel, which provides that all assets of the ECSC, shall be transferred to the European Community on 24 July 2002. Contrary to the protocol of Nice which only creates the legal foundation for implementation provisions, the present decisions contains, in its annexes I to III, the so called “Ternell-Package”, the provisions relevant for the implementation of this
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decision, including the essential principles and decision-making procedures, perennial financial guidelines for the administration of the assets of the research fund for coal and steel as well as technical guidelines for the research program of the fund. The German original of the relevant part of the Government’s Explanatory Memorandum reads as follows: Erläuterungen Es handelt sich bei diesem Beschluss um einen so genannten “uneigentlichen Ratsbeschluss”, der nicht vom Gemeinschaftsorgan “Rat”, sondern von den im Rat vereinigten Vertretern der Regierungen der Mitgliedstaaten gefasst wurde. Solche Beschlüsse kommen nicht nach den Rechtsetzungsnormen des Gemeinschaftsrechts, sondern nach dem allgemeinen Völkerrecht zustande. […] Mit dem Beschluss wird der Kommission die Befugnis übertragen, bindende Beschlüsse zu fassen. […] Er [der Beschluss] ist der unmittelbaren Anwendbarkeit im innerstaatlichen Rechtsbereich zugänglich, so dass die Erlassung von Gesetzen gemäß Art. 50 Abs. 2 B-VG nicht erforderlich ist. […] Im Protokoll zum Vertrag von Nizza über die finanziellen Folgen des Auslaufens des EGKSVertrags und über die Einrichtung und Verwaltung des Forschungsfonds für Kohle und Stahl haben die Vertragsparteien beschlossen, dass das gesamte Vermögen und alle Verbindlichkeiten der EGKS nach dem Stand vom 23. Juli 2002 am 24. Juli 2004 auf die Europäische Gemeinschaft übergehen. […] Auf Grund von Ratifizierungsverzögerungen in anderen Mitgliedstaaten ist absehbar, dass der Vertrag von Nizza nicht rechtzeitig in Kraft treten wird, was einen “rechtsfreien Raum” für die Verwaltung der EGKS-Mittel in der Zeit zwischen dem 24. Juli 2002 und dem Datum des In-Kraft-Tretens des Vertrags von Nizza zur Folge hätte. Deshalb wurde von den Vertretern der Mitgliedstaaten der “Beschluss über die finanziellen Folgen des Ablaufs der Geltungsdauer des EGKS-Vertrags und über den Forschungsfonds für Kohle und Stahl” angenommen. Der Beschluss sieht eine vorläufige Verwaltung der EGKSMittel ab dem 24. Juli 2002 durch die europäische Kommission im Namen der Mitgliedstaaten bis zum In-Kraft-Treten des Vertrags von Nizza vor. Der Beschluss übernimmt weitgehend den Text des dem Vertrag von Nizza beigefügten Protokolls über den Ablauf des EGKSVertrags, in dem der Übergang des gesamten EGKS-Vermögens auf die EG ab dem 24. Juli 2002 vorgesehen wurde. Im Gegensatz zum Protokoll von Nizza, das nur die Rechtsgrundlage für die Durchführungsbestimmungen schafft, enthält der vorliegende Beschluss in den Anhängen I bis III, dem so genannten “Ternell-Paket”, die zur Durchführung dieses Beschlusses erforderlichen Bestimmungen, einschließlich der wesentlichen Grundsätze und Beschlussfassungsverfahren, mehrjährige Finanzleitlinien für die Verwaltung des Vermögens des Forschungsfonds für Kohle und Stahl sowie technische Leitlinien für das Forschungsprogramm des Fonds.
DECISION OF THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES, MEETING WITHIN THE COUNCIL, of 27 February 2002 on the financial consequences of the expiry of the ECSC Treaty and on the research fund for coal and steel
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THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES OF THE EUROPEAN COMMUNITIES, MEETING WITHIN THE COUNCIL, […] HAVE DECIDED AS FOLLOWS: Article 1 1. All assets and liabilities of the ECSC, as they exist on 23 July 2002, shall, as from 24 July 2002, be managed by the Commission on behalf of the Member States. 2. The net worth of these assets and liabilities, as they appear in the balance sheet of the ECSC of 23 July 2002, subject to any increase or decrease which may occur as a result of the liquidation operations, shall be considered as assets intended for research in the sectors related to the coal and steel industry, referred to as the “ECSC in liquidation”. On completion of the liquidation they shall be referred to as the “Assets of the Research Fund for Coal and Steel”. 3. The revenue from these assets, referred to as the “Research Fund for Coal and Steel”, shall be used exclusively for research in the sectors related to the coal and steel industry in accordance with the provisions of this Decision and of acts adopted on the basis hereof. Article 2 The provisions in Annexes I, II and III form an integral part of this Decision. Article 3 Except as otherwise provided in this Decision, the provisions of the Treaty establishing the European Community shall apply mutatis mutandis to the activities carried out in compliance with this Decision by the Commission. Article 4 This Decision shall apply from 24 July 2002 and shall cease to apply on the date on which the assets and liabilities of the ECSC funds have been transferred to the European Community. This Decision shall be published in the Official Journal of the European Communities. Done at Brussels, 27 February 2002. The President F. J. Conde de Saro
FF.
The position of the individual (including the corporation) in international law/Die Stellung der Einzelperson (einschließlich der juristischen Person) im Völkerrecht
VIII. Human rights and fundamental freedoms/Menschenrechte und Grundfreiheiten See also SS.IX
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FF.VIII.-1
Worldwide US-surveillance project “Information Awareness Office” (IAO)—legal protection—EUROJUST- data transmission to third states/Weltweites US-Überwachungsprojekt “Information Awareness Office” (IAO)—gesetzlicher Schutz— EUROJUST—Übermittlung von Daten an Drittstaaten In April 2003, a parliamentary request regarding the US- surveillance project “Information Awareness Office” (IAO) was addressed to the Federal Minister for Justice.12 According to newspaper reports, the United States (US) were planning the most complete surveillance system in history. It was a response to the terror attacks of September 11 and came into being at the beginning of 2002. A number of activities were undertaken by the IAO with the aim of connecting, not only in the USA but worldwide, all data on citizens that were somehow accessible. The request inquired which European and national regulations would be infringed if Austria adopted or participated in such a system. In his response, the Federal Minister for Justice stated that due to a lack of official information regarding the supervisory project mentioned in the request, he could answer the question only in a very general way. He stated that the Directive 2002/58/ EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), Official Journal No. L 201/37 from July 31, 2002, was of importance in that context. Its Article 5 required Member States to ensure the confidentiality of communications and the related traffic data by means of a public communications network and publicly available electronic communications services through national legislation. The Directive prohibited in particular listening, tapping and storage or other kinds of interception or surveillance of communications and the related traffic data by persons other than users, without the consent of the users concerned. Concerning the Constitution, one should refer to Art 10a StGG (Staatsgrundgesetz, Austrian Basic Law of 1867) where the telecommunications secrecy was constitutionally enshrined. Art 10a StGG was further protected under criminal law through Section 119 of the Austrian Criminal Code. The telecommunications secrecy could only be infringed by reason of a judicial warrant order (Sections 149a et seqq. of the Code of Criminal Procedure). In simple law the telecommunications secrecy was regulated in Section 87 of the Telecommunications Law, which furthermore clarified that it was concerned with transmission data. The Minister finally referred to the fundamental right to data protection enshrined in Section 1 of the Data Protection Law 2000 and in Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The admissibility of the transmission of personal data to security organisations or foreign authorities was regulated in Section 8 of the Austrian Law on Police Co-
12
Parliamentary Materials 350/J (XXII. GP), 330/AB (XXII. GP).
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operation; the application of that law, however, fell into the area of competence of the Federal Interior Ministry. This also applied to the data protection regulation of the EUROPOL Convention and of the Schengen Implementing Convention. For both areas one could note in general that each party to the Convention had taken on the obligation under its national legislation, by the time of entry into force of the respective Convention at the latest, to take the necessary measures in relation to the processing of personal data in data files in the framework of the respective Convention, to ensure a standard of data protection which at least corresponded to the standard resulting from the implementation of the principles of the Council of Europe Convention of 28 January 1981, and, in doing so, to take account of Recommendation R(87) 15 of the Committee of Ministers of the Council of Europe of 17 September 1987 concerning the use of personal data in the police sector (cf. for example Art 14 para 1 of the EUROPOL Convention). For the Justice Ministry therefore the surveillance of communications required a judicial warrant according to Sections 149a et seq. of the Code of Criminal Procedure. With regard to the substance, general tapping measures would also violate the penal provisions of Sections 118a (“Unlawful access to a computer system”), 119 (“Violation of the telecommunications secret”) and 119a (“Improper use of the interception of data) or 120 (“Improper use of recording or tapping devices”) of the Criminal Code. The German original reads as follows: Von Bedeutung ist im gegebenen Zusammenhang die Richtlinie 2002/58/EG des Europäischen Parlaments und des Rates vom 12. Juli 2002 über die Verarbeitung personenbezogener Daten und den Schutz der Privatsphäre in der elektronischen Kommunikation (Datenschutzrichtlinie für elektronische Kommunikation), ABl. Nr. L 201/37 vom 31.7.2002. Deren Artikel 5 verpflichtet die Mitgliedstaaten dazu, die Vertraulichkeit der mit öffentlichen Kommunikationsnetzen und öffentlich zugänglichen Kommunikationsdiensten übertragenen Nachrichten und der damit verbundenen Verkehrsdaten durch innerstaatliche Vorschriften sicherzustellen. Insbesondere untersagen sie das Mithören, Abhören und Speichern sowie andere Arten des Abfangens oder Überwachens von Nachrichten und der damit verbundenen Verkehrsdaten durch andere Personen als die Nutzer, wenn keine Einwilligung der betroffenen Nutzer vorliegt. In grundrechtlicher Hinsicht wäre auf Art. 10a StGG [Staatsgrundgesetz] zu verweisen, wonach das Fernmeldegeheimnis verfassungsmäßig verankert und durch § 119 StGB [Strafgesetzbuch] auch strafrechtlich geschützt ist. Es kann nur auf Grund einer gerichtlichen Anordnung durchbrochen werden (§ 149a ff. STPO [Strafprozessordnung]). Einfachgesetzlich ist das Fernmeldegeheimnis in § 87 TKG [Telekommunikationsgesetz] geregelt, wodurch auch klargestellt wird, dass es sich auf Vermittlungsdaten bezieht. Zum Grundrecht auf Datenschutz verweise ich auf § 1 DSG 2000 [Datenschutzgesetz 2000] und auf Art. 8 EMRK [Europäische Menschenrechtskonvention]. Die Zulässigkeit der Übermittlung personenbezogener Daten an Sicherheitsorganisationen oder ausländische Sicherheitsbehörden wird in § 8 des Polizeikooperationsgesetzes geregelt; dessen Anwendung fällt wiederum in den Vollzugsbereich des Bundesministeriums für Inneres. Gleiches gilt im Übrigen für die Datenschutzregelung des Europolübereinkommens und des Schengener Durchführungsübereinkommens. Für beide Bereiche kann allgemein bemerkt
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werden, dass jede Vertragspartei die Verpflichtung übernommen hat, spätestens bis zum jeweiligen Inkrafttreten der Übereinkommen in ihrem nationalem Recht in Bezug auf die Verarbeitung personenbezogener Daten in Dateien im Rahmen der Anwendung der Übereinkommen die erforderlichen Maßnahmen zur Gewährleistung eines Datenschutzstandards zu treffen, der zumindest dem entspricht, der sich aus der Verwirklichung der Grundsätze des Übereinkommens des Europarates vom 28. Januar 1981 ergibt, und dabei die Empfehlung R(87) 15 des Ministerkomitees des Europarates vom 17. September 1987 über die Nutzung personenbezogener Daten im Polizeibereich zu beachten (siehe z.B. Art. 14 Abs. 1 des EuropolÜbereinkommens). Für den Bereich des Justizressorts setzt daher die Überwachung der Kommunikation eine gerichtliche Anordnung nach den §§ 149a ff. StPO voraus. In materieller Hinsicht würden generelle Abhörmaßnahmen auch den Strafbestimmungen der §§ 118a (“Widerrechtlicher Zugriff auf ein Computersystem”), 119 (“Verletzung des Telekommunikationsgeheimnisses”) und 119a (“Missbräuchliches Abfangen von Daten”) bzw. 120 (“Missbrauch von Tonaufnahme- oder Abhörgeräten”) StGB zuwiderlaufen.
The request continued to inquire whether the US received data from EUROJUST and therefore also data from Austria, and if so, which data, under which conditions and according to which regulations. In this respect, the Federal Minister of Justice replied that EUROJUST had been established by the Council Decision of 28 February 2002, Official Journal L 063 of March 6, 2002. Art 27 of that Decision regulated the relationship between EUROJUST and the authorities in third countries which were competent for investigations and prosecutions. For the cooperation with third countries, EUROJUST could conclude cooperation agreements, which had to be approved by the Council. If those agreements contained provisions concerning the exchange of personal data, EUROJUST would then have to consult the Joint Supervisory Body. Before EUROJUST exchanged any information with third states, the national member of the Member State which had submitted the information had to give his consent to the transfer of that information. In addition, EUROJUST could only transmit personal data to authorities in third states which were not subject to the Council of Europe Convention of 28 January 1981 if an adequate level of data protection was ensured. The compliance of that rule was also monitored by the Joint Supervisory Body. With regard to the exchange of information involving personal data in the case of imminent serious danger threatening a person or public security, special provisions existed under the responsibility of the national member. The Minister explained that the Decision setting up EUROJUST regulated in detail the adherence to an adequate level of data protection in the event of the exchange of information of personal data with third states. If no personal data were transmitted to third states, cooperation with authorities of third states could then take place even without a previous agreement between EUROJUST and the third state. The German Original reads as follows: EUROJUST wurde mit Beschluss des Rates vom 28. Februar 2002, ABl L 063 vom 6. 3. 2002, gegründet. Art 27 dieses Beschlusses regelt die Beziehungen von EUROJUST zu den
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für Ermittlungen und Strafverfolgungsmaßnahmen zuständigen Behörden von Drittstaaten. Für die Zusammenarbeit mit Drittstaaten kann EUROJUST Vereinbarungen über die Zusammenarbeit abschließen, die vom Rat gebilligt werden müssen. Enthalten diese Vereinbarungen Bestimmungen über den Austausch personenbezogener Daten, ist die gemeinsame Kontrollinstanz von EUROJUST zu hören. Bevor EUROJUST Informationen mit Drittstaaten austauscht, ist die Genehmigung des nationalen Mitglieds jenes Mitgliedsstaates einzuholen, der die Informationen vorgelegt hat. Überdies darf EUROJUST personenbezogene Daten an Behörden von Drittstaaten, die nicht Mitgliedsstaaten des Übereinkommens des Europarats vom 28. Jänner 1981 sind, nur weiterleiten, wenn ein vergleichbares angemessenes Datenschutzniveau gewährleistet ist. Auch die Einhaltung dieser Vorschrift ist von der Gemeinsamen Kontrollinstanz zu überwachen. Für eine Übermittlung von personenbezogenen Daten bei unmittelbar drohender ernster Gefahr für eine Person oder die öffentliche Sicherheit bestehen in der Verantwortlichkeit des nationalen Mitglieds Sondervorschriften. Die Übermittlung personenbezogener Daten an Drittstaaten wird durch den Beschluss zur Schaffung von EUROJUST ausführlich im Hinblick auf die Einhaltung eines angemessenen Datenschutzniveaus durch Drittstaaten geregelt. Werden keine personenbezogenen Daten an Drittstaaten weitergeleitet, kann eine Zusammenarbeit mit Behörden von Drittstaaten auch eine ohne vorherige Vereinbarung zwischen EUROJUST und dem Drittstaat stattfinden. FF.VIII.-2
US-access to data of air passengers on European Airlines—data protection/USZugriff auf Fluggastdaten—Datenschutz In June 2003 a parliamentary request regarding the US access to data of air passengers on European Airlines was addressed to the Federal Minister for Transport, Information and Technology.13 The request referred to newspaper reports stating that the US had demanded full and direct access to passenger records of the European Airlines and that personal data of the passengers of all transatlantic flights were in advance communicated to the US-authorities. Against this background, the request inquired, which European and national provisions would be violated if electronic data were given to the US, under which conditions and according to which provisions of the Law on Data Protection or of the EU Directive on data protection such electronic data were usually transmitted to the US. The Minister replied in that respect that both the EU Directive on Personal Data Protection 95/46 (Art. 7 lit. b) and the Law on Data Protection 2000 (Sec. 8 para. 3 lit. 4) contained a provision stating that the transfer of data was permissible to third states as well, if that was necessary in order to fulfil an agreement entered into with that third state. If airline companies were required by the US Bureau of Customs and
13
Parliamentary Materials 531/J (XXII. GP), 545/AB (XXII. GP).
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Border Protection (CBP) to transmit PNR [Passenger Name Record]-data, then a transportation contract between the airline passenger and the airline company concerning a transport into the USA could currently not be carried out unless certain data were transferred to the US (CBP). Without prejudicing the decision of the independent courts, one could see in the provisions of the Directive and the Law on Data Protection 2000 a legal basis for that transfer of data. Nevertheless, difficulties could arise concerning the transfer of sensitive data that were addressed neither by Art. 7 of the Directive nor by Section 8 of the Law on Data Protection 2000. However, Austrian airlines currently transferred no PNR-data to the US. The German Original reads as follows: Sowohl die EU- Datenschutz-Richtlinie 95/46 (Art. 7 lit. b) als auch das DSG [Datenschutzgesetz] 2000 (§ 8 Abs. 3 Z 4) enthalten die Bestimmung, dass die Weitergabe von Daten (auch ins Ausland) zulässig ist, wenn dies zur Erfüllung eines mit dem Betroffenen abgeschlossenen Vertrages notwendig ist. Soweit Fluggesellschaften von US-CBP [Bureau of Customs and Border Protection] verpflichtet wurden, PNR [Passenger Name Record]Daten zu übermitteln, kann derzeit ein Beförderungsvertrag zwischen Flugpassagier und Fluggesellschaft über einen Transport in die USA nicht erfüllt werden, ohne dass bestimmte Daten an die USA (CBP) weitergegeben werden. Darin könnte—unvorgreiflich der Rechtsprechung der unabhängigen Gerichte—in diesen Bestimmungen der Richtlinie und des DSG 2000 eine Rechtsgrundlage für die gegenständlichen Datenübermittlungen erblickt werden. Probleme könnten allerdings hinsichtlich der Weitergabe von sensiblen Daten bestehen, da sich weder Art. 7 der RL noch § 8 DSG 2000 auf diese beziehen. Doch werden derzeit überhaupt keine PNR-Daten von österreichischen Airlines an die USA weitergegeben. FF.VIII.-3
10 Years World Conference on Human Rights/10 Jahre Weltkonferenz über die Menschenrechte On 10 December 2003, the Permanent Representative of Austria to the United Nations, H.E. Ambassador Gerhard Pfanzelter, delivered the following statement concerning 10 years of the World Conference on Human Rights:14 Mr. President! I have the honour to take the floor on the item “Comprehensive implementation of and followup to the Vienna Declaration and Program of Action” as representative of the country that hosted the World Conference on Human Rights in 1993. It goes without saying that my delegation fully associates itself with the statement of the Representative of Italy, who has spoken on behalf of the European Union. Let us remember today that the Vienna Declaration and Programme of Action, which was adopted ten years ago, truly outlined a vision for global action for human rights. Recognizing
14
Available at http://www.aussenministerium.at/newyorkov/.
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the principles of universality, indivisibility, interdependence and inter-relatedness, it marked the beginning of a new era of international, regional, and national cooperation aimed at strengthening and implementing the body of human rights instruments that had been constructed on the foundation of the Universal Declaration of Human Rights since 1948. I am proud that Vienna hosted this crucial conference. The validity and pertinence of the Vienna Declaration and Programme of Action remain undiminished. We are grateful that the General Assembly decided last year to devote today’s plenary meeting also to the commemoration of the tenth anniversary of the adoption of the Vienna Declaration and Programme of Action. In its decision the General Assembly invited member states to provide specific contributions on this occasion. I would therefore like to inform you about the results of an international Symposium on the “Role of Judges in the Promotion and Protection of Human Rights and Fundamental Freedoms—strengthening interagency cooperation” that was held in Vienna on 24 November. The event was organised upon the initiative of Austrian Minister for Foreign Affairs, Ms Benita Ferrero-Waldner, and the UN High Commissioner for Human Rights in cooperation with the UN Office on Drugs and Crime. The Symposium was chaired by the Acting High Commissioner for Human Rights, Mr Bertrand Ramcharan, and attended by high-ranking representatives of governmental and non-governmental organisations as well as eminent judges and experts. The Symposium adopted a “Vienna Declaration on the Role of Judges in the Promotion and Protection of Human Rights and Fundamental Freedoms”, which contains specific recommendations for governments, international organisations and NGOs as well as a number of concrete proposals with regard to conflict and post-conflict situations. This document has been published as a document of the General Assembly and the Security Council. Participants at the Symposium concluded that training is an important tool to assist judges in fulfilling their role as human rights defenders. We must ensure that all members of the judiciary receive comprehensive and continuing training on international and regional human rights standards and humanitarian law, including specialized gender and child rights training. We also need to ensure a transparent and independent process for selection and promotion of judges at all levels without discrimination of any kind, based on objective criteria and that all courts and members of the judiciary are provided with adequate resources to exercise their functions in a professional, objective, conscientious and impartial manner. A specific and new recommendation emanating from the Symposium is the establishment of two appropriate consolidated international data-bases: one containing case law and court rulings relevant to human rights law and a second that aims at facilitating the exchange of information on projects and concrete action undertaken in this field. In this context let me recall that the Vienna Declaration and Programme of Action had already clearly identified in paragraph 27 that “an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non-discriminatory realization of human rights and indispensable to the processes of democracy and sustainable development”. Judges are front-line actors in the protection of human rights. Indeed, the more precarious the human rights situation in a country, the more exposed and vulnerable judges are. The international community must therefore
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give full support to judges so that they can maintain their integrity, impartiality and independence. Thank You!
KK.
Seas/Meere See CC.I.2.-1
MM. International responsibility/Völkerrechtliche Verantwortlichkeit III.
Responsible entities/Träger der Verantwortlichkeit
2.
International organisations/Internationale Organisationen
MM.III.2
Responsibility of International Organizations and Other Issues/Völkerrechtliche Verantwortlichkeit Internationaler Organisationen On 27 October 2003, the Legal Adviser of the Austrian Ministry for Foreign Affairs, Ambassador Hans Winkler, delivered the following Statement to the Sixth Committee regarding the responsibility of International Organizations and other issues:15 Mr. Chairman, Since this is the first time I am taking the floor, let me express my personal pleasure to see you presiding over this year’s session of our Committee. I would also like to request the current Chairman of the International Law Commission, Ambassador Enrique Candioti, to convey to the Members of the Commission Austria’s appreciation for the fruitful work of the Commission at this year’s session. Mr. Chairman, As you know, Austria and Sweden have taken the initiative this year to try to revitalize the debate in the Sixth Committee on the Report of the International Law Commission. We have suggested a number of measures intended to make our discussions more interactive and intellectually stimulating. We would like to express our sincere appreciation to you, Mr. Chairman, and the other Members of the Bureau for having taken up these suggestions and to the other delegations for having been so supportive to enable us to try them out. Austria is particularly pleased to note that—in addition to the formal debate—we will have the opportunity tomorrow, Tuesday, at 11:30 a.m., to participate in an informal interactive discussion
15
Available at http://www.aussenministerium.at/newyorkov/.
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on the issue of Responsibility of International Organizations. On Thursday, also at 11:30, we will discuss Reservations, Liability and Diplomatic Protection. Austria and Sweden are convinced that these discussions will be both instructive and helpful for all delegations wishing to engage in a more informal manner on the issues. We are confident that also the ILC will benefit from the exchange of views. I hope, therefore, that many colleagues will actively participate in the informal consultations on Tuesday and Thursday. Mr. Chairman, For the formal debate, the Austro-Swedish initiative contains proposals to make short and focused interventions and adhere strictly to the program of work. Today we have scheduled “Responsibility of International Organizations” and the general work under “Other Decisions” (Chapters I, II, III, XI) and I will now briefly address these issues.
1. Responsibility of International Organizations (Chapter IV) Mr. Chairman, Permit me, firstly, to thank Special Rapporteur Giorgio Gaja for his thought-provoking work on the issue of responsibility of international organizations. For the sake of brevity and conciseness I will limit my comments to the following central question of this topic: Which entities are to be considered “international organizations” for the purposes of the Draft Articles on the responsibility of international organizations? Although Draft Article 2 refrains from expressly “defining” international organizations it includes a “use of terms” which raises some questions: First, it would be interesting to know, whether entities that are created by international treaties but are rather embryonic in nature, such as treaty organs or secretariats, would fall under the scope of the Draft Articles. If such entities conclude headquarters agreements and fail to comply with them, who should assume responsibility? Among the vast number of pertinent examples I would only like to mention the most recent establishment of a permanent secretariat of the Alpine Convention in Innsbruck, Austria. Second, the separate and additional requirement of “possessing its own international legal personality” appears problematic: Rather than being a precondition for being considered an international organization, “possessing international legal personality” seems to be a legal consequence of being an organization. There are diverging views among scholars on this question. The Commentary itself and, in particular, the ICJ Cases referred to in paras. 8, 9, and 11, however, seem to support the view that international organizations possess international legal personality as a result of being such organizations. This is corroborated by the preamble of the 1986 Vienna Convention on the Law of Treaties of International Organizations, which notes “that international organizations possess the capacity to conclude treaties, which is necessary for the exercise of their functions and the fulfilment of their purposes”. Third, as a host to several international organizations, Austria has closely examined practical examples. The most pertinent one is the case of the OSCE: The Special Rapporteur seems to acknowledge the nature of the OSCE as an international organization and, consequently, as an international legal entity. Although there are some authors defending the nature of the
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OSCE as an international organization, negotiations in the OSCE to convert it into a formal international organization endowed with legal personality over the past years have so far only demonstrated a divergence of opinion. Finally, a further issue is the status of the European Union as distinct from that of the European Community. The EU-Presidency will address this issue in detail. While the international legal status of the Community, albeit of a particular nature, is not questioned, the legal status of the Union is still under discussion and, in view of the ongoing negotiations in the Intergovernmental Conference it will remain so for quite a while. Given the active role of the EU in global relations, we will see whether the commentary on Draft Article 2 will not have to address this issue at some point. Mr. Chairman, This brings me now to the questions raised by the ILC on this issue in Chapter III of its Report: As to Question a), regarding the need for a general rule on attribution of conduct to international organizations to contain a reference to the “rules of the organization”, my delegation believes that the Draft Articles could (and should) also refer the rules of the organizations, possibly in a separate paragraph. This would mirror the approach adopted in the context of State responsibility. Question b), Austria could, as of now, accept the definition of “ rules of the organization” as it appears in Art. 2 para. 1 (j) of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. We should bear in mind, however, that the definition of the “rules of the organization” caused vivid discussions during the Vienna Conference in 1986 and that the final formulation was a difficult compromise. As regards Question c), on the extent that the conduct of peace-keeping forces is attributable to the contributing State and to the UN, my delegation wonders whether singling out this issue is really wise. The various peace-keeping missions and their activities differ to very significant degrees. It would be extremely difficult to foresee generally applicable provisions. Even if forces are considered subsidiary organs of the UN, some of their activities could not be attributable to the Organization. The discussions on the scope of protection of the “UN Convention for the Safety of UN- and associated personnel” reveal the complexity of this issue. The ILC would be better advised to stick to elaborating general criteria for the definition of organs of an international organization, on the basis of which it could be decided on a case by case basis to which entity the activities of the peace-keeping-forces are attributable.
2. Other Issues (Chapters I, II, III and XI) Mr. Chairman, you have also invited us to comment today on Chapters I, II, III and XI of the Report. Austria would like to make three short remarks in this regard: In order to permit States in the Sixth Committee to contribute to the progress of the Commission, Austria urges the ILC to substantiate Chapters II and III of its Report. The inclusion of these Chapters since 1997 is a significant step in the direction of a more user-friendly Report. Currently, however, Chapter II contains merely a brief summary of procedural decisions adopted at the
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session. Although it would clearly be impossible to include a summary of all substantial issues— the Report itself is a summary of the substance of the session—more information on substance would make this Chapter more useful. For States, but also for the Commission, Chapter III should be a central part of the Report. This Chapter identifies the issues on which the Commission requests the views of States. It is regrettable, that the Commission, in the past years, seems to have devoted little interest to it. Though there are exceptions—including some in this year’s report, the questions are often general and vague. Austria fully supports the Commissions proposal in Para 446 of the Report, which would require the Special Rapporteurs to become significantly more involved. We also encourage the ILC as a whole to devote more time and attention to this Chapter. If the questions are better, maybe the responses will be so too. Finally, at the opening of the General Assembly this year, Secretary General Kofi Annan has emphasized the need for a thorough reform of the structures and working methods of the United Nations. We, the Member States, are currently discussing ways and means to revitalize the General Assembly and ECOSOC and reform the Security Council. The need for reform does not end there. We also need to address the question, whether the current structure of the ILC and its current working methods are still appropriate today. This must be an honest, open debate with no taboos. We will explore with other delegations the possibilities in this respect and hope that the Members of the ILC will participate actively in ensuring that the Commission will continue to play a relevant role in today’s world. Mr. Chairman, This concludes the comments of Austria to Chapters I—III, IV, and XI of the ILC Report. My delegation will take the floor on the other Chapters of the ILC-Report according to the work program. Thank you.
NN.
Pacific settlement of disputes/Friedliche Streitbelegung
I.
The concept of an international dispute/Vorliegen eines internationalen Streites
1.
Negotiations and consultations/Verhandlungen und Konsultationen
See NN.II.6.a II.
Means of settlement/Methoden zur Streitbelegung
6.
Arbitration/Schiedsgerichtsbarkeit
a.
Arbitral tribunals and commissions/Schiedsgerichte und –kommissionen
NN.II.6.a
Alpine Convention—Dispute Settlement Protocol of the Alpine Convention/Alpenkonvention—Streitbeilegungsprotokoll im Rahmen der Alpenkonvention
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Austria is a State Party to the Alpine Convention of 199115a. On the occasion of the 6th ministerial conference of the Alpine Conference on October 30, 31 2000 in Luzern the Protocol on Transport as well as the Protocol to implement the Alpine Convention of 1991 on dispute settlement were adopted and signed by a majority of the States Parties. Austria also signed this Protocol on the occasion of the 6th ministerial conference. The origin of the Protocol goes back to discussions conducted in connection with the Protocol on Transport and to the approach developed there to address the problem of Alpine transit also under the aspect of enforcement and dispute settlement. This prompted the appointment of an ad-hoc working group under Austrian chairmanship for the elaboration of a procedure for consultation and dispute settlement. Already at this moment, it was agreed that the protocol should not be drawn up only with respect to the Protocol on Transport. Thus the Alpine Convention as such has been supplemented with a Protocol on dispute settlement. This protocol closes a gap of the Alpine Convention existing for years. The Protocol to implement the Alpine Convention of 1991 on the settlement of disputes provides the following: Article 1 In case of a dispute among the States Parties concerning the interpretation or application of the Alpine Convention or one of its protocols the parties endeavour to settle the dispute first through consultations. Article 2 If the parties concerned cannot settle the dispute within six months following the first written request to commence consultations, the dispute may be submitted to arbitration by the written request of one of the parties to the other party and the chairmanship of the Alpine Convention in accordance with the following provisions. The chairmanship informs immediately all other parties about it. Article 3 For the performance of the arbitral procedure pursuant to Article 2 an arbitral tribunal consisting of three members shall be constituted as follows: … Article 4 (1) Each Contracting Party has the right to communicate its views on the dispute to the tribunal. (2) If a Contracting Party is of the opinion that it has a legal interest which can be affected by the decision on the dispute, it can make an application to the tribunal to be permitted to intervene in the proceedings.
15a
Federal Law Gazette, BGBl. 477/1995 idF BGBl. III 18/1999.
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Article 10 Absence or failure of a Party to give an opinion on the issue is no obstacle for the proceedings. Before the tribunal decides, it shall satisfy itself that the claim is well founded in fact and in law. Article 11 The tribunal takes its decisions within six months from the date on which it has been constituted; if it deems necessary to extend this delay, the delay shall not exceed further six months.
The German original reads as follows: Protokoll zur Durchführung der Alpenkonvention von 1991 über die Beilegung von Streitigkeiten Artikel 1 Im Falle einer Streitigkeit zwischen Vertragsparteien über die Auslegung oder Anwendung der Alpenkonvention oder eines ihrer Protokolle bemühen sich die Vertragsparteien vorrangig um eine Beilegung im Konsultationsweg. Artikel 2 Ist eine Streitigkeit innerhalb von sechs Monaten nach schriftlichem Antrag einer der beteiligten Vertragsparteien auf Konsultationen nicht beigelegt, kann eine beteiligte Partei durch schriftliche Mitteilung an die andere Partei und den Vorsitz der Alpenkonferenz ein Schiedsverfahren zur Streitbeilegung nach den folgenden Bestimmungen einleiten. Der Vorsitz informiert unverzüglich alle Vertragsparteien darüber. Artikel 3 Zur Durchführung eines Schiedsverfahrens im Sinne von Artikel 2 wird ein Schiedsgericht bestehend aus drei Mitgliedern wie folgt gebildet: […] Artikel 4 (1) Jede Vertragspartei ist berechtigt, dem Schiedsgericht ihre Auffassung über die Streitigkeit zur Kenntnis zu bringen. (2) Ist eine Vertragspartei der Meinung, dass sie ein Interesse rechtlicher Natur hat, das durch die Entscheidung in diesem Streitfall berührt werden könnte, so kann sie einen Antrag an das Schiedsgericht stellen, zur Intervention ermächtigt zu werden. Artikel 10 Abwesenheit oder Versäumnis einer Streitpartei, sich zur Sache zu äußern, stellt kein Hindernis für das Verfahren dar. Bevor das Schiedsgericht seine endgültige Entscheidung fällt, muss es sich vergewissern, dass das Begehren in tatsächlicher und rechtlicher Hinsicht begründet ist. Artikel 11 Das Schiedsgericht fällt seine endgültige Entscheidung innerhalb von sechs Monaten nach
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dem Zeitpunkt, zu dem es vollständig gebildet wurde; hält es jedoch eine Verlängerung dieser Frist für notwendig, so darf diese weitere sechs Monate nicht überschreiten.
The Explanatory Memorandum submitted by the Government to the National Assembly in the course of the ratification procedure gives the following explanations (excepts): To Article 4—assistance and third party intervention: Article 4 first describes the possibility of assistance and collaboration in the establishment of the relevant facts. Each Contracting Party, i.e. each party which has signed and ratified the Alpine Convention, has a right to inform the tribunal about its position on the dispute. If a Contracting Party is of the opinion that it has a legal interest, which can be affected by a decision on the dispute, it can make an application to be authorized to make an intervention (third party intervention).
The German original of the Explanatory Report reads as follows (excepts): Erläuterungen Zu Artikel 4—Mithilfe und Nebenintervention: Art. 4 beschreibt zunächst die Möglichkeit der Mithilfe und Mitarbeit an der Feststellung des maßgeblichen Sachverhalts. So ist jede Vertragspartei, d.h. jede Partei, welche die Alpenkonvention unterzeichnet und ratifiziert hat, dazu berechtigt, dem Schiedsgericht ihre Auffassung über die Streitigkeit zur Kenntnis zu bringen. Ist eine Vertragspartei der Meinung, dass sie ein Interesse rechtlicher Natur hat, das durch die Entscheidung in diesem Streitfall berührt werden könnte, so kann sie einen Antrag an das Schiedsgericht stellen, zur Intervention ermächtigt zu werden (Nebenintervention).
PP.
Use of force/Gewaltanwendung
II.
Legitimate use of force/Rechtmäßiger Gewaltgebrauch
2.
Collective measures/Kollektivmaßnahmen
a.
United Nations/Vereinte Nationen
PP.II.2.a
Agreement Among the States Participating in the Multinational Stand-By High Readiness Brigade for UN Operations Regarding the Status of Their Forces/Übereinkommen zwischen den an der multinationalen Brigade aus Eingreiftruppen hoher Bereitschaft für Operationen der Vereinten Nationen teilnehmenden Staaten über die Rechtsstellung ihrer Truppen Austria actively participated in the preparatory works for a “Multinational Stand-By High Readiness Brigade for UN Operations”—SHIRBRIG. SHIRBRIG is a multinational brigade-sized force created to provide a rapid deployment capability of up to six months. SHIRBRIG is designed to undertake peacekeeping operations mandated by the United Nations Security Council under Chapter VI of the UN Charter. For the
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establishment and preparation of the deployment of SHIRBRIG a “Planning Element” has been established which is located in Denmark. The status of the Planning Element was originally governed by bilateral agreements between Denmark and the states participating in SHIRBRIG. 16 The multilateral agreement among the States Participating in the Multinational Stand-By High Readiness Brigade for UN Operations Regarding the Status of Their Forces replaces these bilateral agreements and provides for a uniform and comprehensive regulation of the matter. The Explanatory Memorandum submitted by the Austrian Government to the Austrian National Assembly explained this procedure: General Part Since the peacekeeping measures of the United Nations showed that the old system of ad-hoc allocation of troops no longer met demands, the General Secretary of the United Nations in January 1995 recommended the formation of an international deployment force, which should train already before a possible deployment. The working group established thereupon developed a possible structure for a multinational stand-by high readiness brigade for UN Operations (SHIRBRIG). SHIRBRIG should be independent of national structures and should be deployable for peace keeping or humanitarian missions within the framework of the United Nations within 15 to 30 days from the assignment. Special Part 17
Concerning Article II
Paragraph 1 lit. A declares applicable (by analogy) for SHIRBRIG activities the provisions of the Agreement between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces (NATO-SOFA, BGBl. III 135/1998) and the Agreement Among the States Parties to the North Atlantic Treaty and the Other States Participating in the Partnership for Peace Regarding the Status of Their Forces, including its Additional Protocol (BGBl. III 136/1998 and BGBl. III 137/1998, PfP-SOFA). On the occasion of the ratification of this later treaty Austria made two declarations, which are also relevant for the application of the agreement at hand. 16
For Austria: Agreement between Government of the Republic of Austria and the Government of Denmark on the status of the Planning Element of the Multinational Stand-By High Readiness Brigade for UN Operations—SHIRBRIG—in Denmark, Federal Law Gazette III 22/1999/Abkommen zwischen der Regierung der Republik Österreich und der Regierung von Dänemark über den Status des Planungselements der Multinationalen Brigade der Vereinten Nationen aus Eingreiftruppen hoher Bereitschaft—SHIRBRIG—in Dänemark geregelt, BGBl. III 22/1999).
17
Article II: Applicable Documents 1. Except as otherwise provided for in the present Agreement, the states Parties to the present Agreement:
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The application of Paragraph 2 of the Paris Protocol is limited exclusively to the Planning Element, which has its seat in Denmark, and applies only to the relations of the Planning Element and its employees in relation to Denmark. The Paris Protocol in turn refers to the NATO-SOFA Agreement and regulates the status of military headquarters of NATO as well as its employees on the territory of the parties. It contains for example provisions on tax exemptions, grants the respective “supreme headquarters” legal personality and provides for the inviolability of the headquarters as well as their archives. As an indirect part of the agreement at hand and for reasons of publicity on the basis of §2 Para. 5 Z 5 BGBlG 1996, the Paris Protocol will be published as an appendix to the agreement at hand in Part III of the Bundesgesetzblatt. No obligations arise from of this reference for the Republic of Austria; only the Austrian representative assigned to the Planning Element will benefit, while he is in Denmark, from the privileges and immunities regulated in the Paris Protocol. Since states that are not members of NATO cannot send representatives to its organs and therefore cannot be bound by decisions of these organs, the provisions of NATO-SOFA, that contain a reference for example to the North Atlantic Council (cf. for instance Art. XVII concerning the revision of the NATO-SOFA or Art. VIII Para. 2 lit. B), have to be interpreted a) Regarding the SHIRBRIG activities which take place in the territory of a State Party, shall apply mutatis mutandis the provisions of: i. the Agreement between the Parties to the North Atlantic treaty regarding the Status of their Forces, done in London on the 19th of June 1951, hereinafter referred to as the NATO SOFA and ii. the Agreement among the States Parties to the North Atlantic Treaty and the other States Participating in the Partnership for Peace regarding the Status of their Forces, done in Brussels on the 19th of June 1995, hereinafter referred to as the PfP SOFA, and the Additional Protocol to the PfP SOFA, done in Brussels on the 19th of June 1995, hereinafter referred to as the PfP Additional Protocol having regard to reservations and statements made by State Parties to these agreements. b) Regarding the activities of the SHIRBRIG Planning Element while on the territory of Denmark shall, in addition to the provisions mentioned in paragraph 1 (a) of this Article, apply mutatis mutandis the provisions of the agreements referred to in paragraph 1 the following interpretations shall apply: a) With respect to matters in the NATO SOFA that provide for requests to be submitted to, or differences to be referred to the North Atlantic Council, the Chairman of the North Atlantic Council deputies or an arbitrator, these provisions of the NATO SOFA shall be construed to require the State Parties concerned to settle the matter by resort to Article V of the present Agreement; b) “Party/Parties to the North Atlantic Treaty” referred to in the applicable documents, means the States Parties to the present Agreement; c) “North Atlantic Treaty area” referred to in the applicable documents, means the territories of the States Parties to the present Agreement; d) “Allied Headquarters” referred to in the applicable documents, means the Planning Element of SHIRBRIG.
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in such a way that they contain an obligation to treat this matter according to Art. V of this convention, i.e. through negotiation of the parties concerned (Para. 2 lit. a). Lit. b. and c. adapt the respective terms of the NATO-SOFA Agreement to the circumstances of the convention at hand. Lit. d. contains no such declarations for the Planning Element.
The German original of the relevant part of the Government’s Explanatory Memorandum reads as follows: Erläuterungen Allgemeiner Teil Nachdem sich im Bereich der friedenserhaltenden Maßnahmen der Vereinten Nationen gezeigt hatte, dass das alte System der ad hoc-Bereitstellung von Truppen nicht mehr den Anforderungen genügt, empfahl der Generalsekretär der Vereinten Nationen im Jänner 1995 die Aufstellung einer internationalen Eingreiftruppe, die bereits im Vorfeld eines möglichen Einsatzes üben solle. Die daraufhin eingesetzte Arbeitsgruppe hat eine mögliche Struktur für eine “Multinationale Brigade aus Eingreiftruppen hoher Bereitschaft für Operationen der Vereinten Nationen” (Multinational Stand-By High Readiness Brigade for UN Operations, SHIRBRIG) erarbeitet, die unabhängig von nationalen Strukturen für friedenserhaltende oder humanitäre Einsätze im Rahmen der Vereinten Nationen innerhalb von 15 bis 30 Tagen ab Auftragserteilung einsatzbereit sein soll. Besonderer Teil Zu Artikel II Abs. 1 lit. A erklärt für SHIRBRIG Aktivitäten die Bestimmungen des Abkommens zwischen den Parteien des Nordatlantikvertrags über die Rechtsstellung ihrer Truppen (NATO-SOFA, BGBl. III Nr. 135/1998) und des Übereinkommens zwischen den Vertragsstaaten des Nordatlantikvertrags und den anderen an der Partnerschaft für den Frieden teilnehmenden Staaten über die Rechtsstellung ihrer Truppen samt Zusatzprotokoll (BGBl. III 136/1998 und BGBl. III Nr. 137/1998, PfP-SOFA) sinngemäß für anwendbar. Österreich hat anlässlich der Ratifikation des letztgenannten Übereinkommens zwei Erklärungen abgegeben, die auch für die Anwendung des vorliegenden Übereinkommens maßgeblich sind. Die Anwendung des Pariser Protokolls nach Abs. 2 beschränkt sich ausschließlich auf das Planungselement, das seinen Sitz in Dänemark hat, und gilt nur für die Beziehungen des Planungselements und seiner Bediensteten im Verhältnis zu Dänemark. Das Pariser Protokoll verweist seinerseits auf das NATO-SOFA und regelt den Status der militärischen Hauptquartiere der NATO sowie deren Bediensteter auf dem Gebiet der Vertragsstaaten. Es beinhaltet u. a. Regelungen über Steuerbefreiungen, räumt den jeweiligen “Supreme Headquarters” Rechtspersönlichkeit ein und sieht die Unverletzlichkeit der Hauptquartiere sowie deren Archive vor. Das Pariser Protokoll wird als mittelbarer Vertragsbestandteil des vorliegenden Übereinkommens als Anhang zum vorliegenden Übereinkommen aus Gründen der Publizität auf Grund §2 Abs. 5 Z 5 BGBlG 1996 im Teil III des Bundesgesetzblattes verlautbart. Der Republik Österreich erwachsen durch diesen Verweis keine Verpflichtungen, lediglich der dem Planungs-
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element zugeteilte österreichische Vertreter kommt, solange er sich in Dänemark befindet, in den Genuss der im Pariser Protokoll geregelten Befreiungen und Vorrechte. Da Staaten, die nicht Mitglied der NATO sind, keine Vertreter in ihre Organe entsenden können und dem gemäß nicht an Beschlüsse dieser Organe gebunden sind, sind Bestimmungen des NATO-SOFA, die einen Verweis z.B. auf den Nordatlantikrat (vgl. etwa Art. XVII betreffend die Revision des NATO-SOFA oder Art. VIII Abs. 2 lit. B) enthalten, so zu verstehen, dass sie eine Verpflichtung beinhalten, diese Angelegenheit entsprechen Art. V diese Übereinkommens, d.h. durch Verhandlungen der Streitparteien zu behandeln (Abs. 2 lit. a). Lit. b. und c. passen die jeweiligen begriffe des NATO-SOFA den Gegebenheiten des vorliegenden Übereinkommens an. Lit. d. enthält keine derartige Klarstellung für das Planungselement.
RR.
Neutrality, non-belligerency/Neutralität, Nicht-Kriegführung
II.
Permanent neutrality/Dauernde Neutralität See EE.II.1.b.cc
III.
Neutrality in the light of the Charter of the United Nations/Neutralität im Licht der Satzung der Vereinten Nationen See EE.II.1.b.cc
SS.
Legal aspects of international relations and cooperation in particular matters/Rechtliche Aspekte der internationalen Beziehungen und Zusammenarbeit in bestimmten Bereichen
I.
General economic and financial matters/Wirtschaftliche und finanzwirtschaftliche Angelegenheiten
1.
Trade/Handel
See also SS.I.6.-1 and SS.VII SS.I.1.
WTO-negotiations on agriculture—relationship (hierarchy) between WTO-law and multilateral environmental agreements—mandate for trade negotiations—prior involvement of the Austrian Parliament/Agrarverhandlungen der WTO—Verhältnis/ Rangordnung des WTO-Rechts zu multilateralen Umweltschutzabkommen—Mandat für Handelsverhandlungen—vorausgehende Einbindung des Parlaments In April 2003, a parliamentary request regarding the agricultural negotiations in the
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WTO was addressed to the Federal Minister for Economy and Labour.18 Asked, whether he supported the demand to reconcile the WTO-regulations with the provisions of multilateral environmental agreements and to anchor them in the WTO treaties and if so, which concrete proposals were made by Austria, and if not, why not, the Austrian Federal Minister for Economy and Labour replied the following. Austria had always supported that there was no hierarchy between WTO-regulations and the relevant rules of multilateral environmental agreements, and had therefore been very interested in a clarification of the relationship between the WTO and multilateral environmental agreements. Pressure by the EU also succeeded in adding that topic (between WTO-members that were parties to a multilateral environmental agreement) to the agenda of the Doha Ministerial Declaration for negotiation in the new WTO round (Para. 31 (1) of the Ministerial Declaration). The EU had submitted contributions on that topic in the WTO negotiations concerning trade and environment. However, the EU remained rather isolated within the WTO in the search for a solution to that question. The German original reads as follows: Österreich hat sich immer für eine Gleichrangigkeit von WTO-Vorschriften und den relevanten Bestimmungen der multilateralen Umweltabkommen eingesetzt und war daher an einer Klarstellung des Verhältnisses zwischen WTO und multilateralen Umweltabkommen sehr interessiert. Auf Grund des Drucks der EU ist es auch gelungen, diese Thematik (zwischen WTO-Mitgliedern, die Parteien eines MEAs sind) als Verhandlungsauftrag in der neuen WTORunde in der Doha- Ministererklärung festzulegen (Abs. 31 (1) der Ministererklärung). Die EU hat zu diesem Thema in den WTO-Verhandlungen betreffend Handel und Umwelt Beiträge vorgelegt. Die EU bleibt aber bei der Suche nach einer Lösung in dieser Frage in der WTO weiterhin ziemlich isoliert.
As to the question, whether he would support a prior clarification with the Austrian Parliament regarding the mandate to negotiate the totality of the trade agreements and if so, which measures were planned in that regard, the Minister stated that in order to answer that question one could point at the current procedure, in which the Parliament was already involved prior to trade agreements. Furthermore, within the framework of the EU-information procedure (Art. 23e B-VG [Federal Constitution]), the Parliament has constantly been kept informed about the trade policy issues discussed in the EU-Council Article 133 Working Group being relevant for trade policy (and thus also informed about the “trade agreements” in preparation). It was up to the Parliament to react to those reports in an appropriate way. The status of the WTO negotiations for example was discussed in the EU-Subcommittee on February 26, 2002 and in the Economic Committee on March 19, 2003. The Minister continued that representatives of the Parliamentary Parties (Clubs) were regularly invited by the Federal Ministry for Economy and Labour to infor18
Parliamentary Materials, 345/J (XXII. GP), 375/AB (XXII. GP).
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mational meetings on trade policy. Prior to important conferences in the area of trade policy (for example prior to the WTO Ministerial Conferences in Seattle and Doha) the Government discussed the issues, in order to lay down the Austrian position for the further consultations on the EU-level. Eventually, the EU-internal final positioning took place in the General Affairs and External Relations Council. The German Original reads as follows: Zur Beantwortung dieser Frage darf auf die aktuelle Vorgangsweise hingewiesen werden, wo bereits eine Einbeziehung des Parlaments im Vorfeld von Handelsvereinbarungen erfolgt. Über die in der für die Handelspolitik relevanten EU- Ratsarbeitsgruppe “Art. 133” beratenen handelspolitischen Themen (damit auch über die in Vorbereitung befindlichen “Handelsvereinbarungen”) wird das Parlament laufend im Rahmen des EU-Informationsverfahrens (Art. 23e B-VG) informiert. Es obliegt dem Parlament, auf diese Berichte in der ihm angemessen erscheinenden Weise zu reagieren. Der Stand der WTO-Verhandlungen wurde z.B. im EUUnterausschuss am 26. Februar 2002 und im Wirtschaftsausschuss am 19. März 2003 erörtert. Vertreter der Parlamentsklubs werden regelmäßig vom Bundesministerium für Wirtschaft und Arbeit zu Informationssitzungen über die Handelspolitik eingeladen. Vor wesentlichen Tagungen im Bereich der Handelspolitik (z.B. vor den WTO-Ministerkonferenzen in Seattle und Doha) wird der Ministerrat befasst, womit die österreichische Position für die weiteren Beratungen auf EU-Ebene festgelegt wird. Die EU-interne abschließende Positionierung erfolgt letztlich im Rat “Allgemeine Angelegenheiten und Außenbeziehungen”. 6.
Development/Entwicklung
SS.I.6.-1
WTO-agricultural negotiations—export subsidies—market access for products from developing countries/WTO-Agrarverhandlungen—Exportsubventionen—Marktzugang für Produkte aus Entwicklungsländern In April 2004, a parliamentary request regarding the agriculture negotiations in the WTO was addressed to the Federal Minister for Agriculture, Forestry, Environment and Water.19 Asked about Austria’s position regarding export subsidies, the Federal Minister answered that export refunds should cover the difference between the domestic price and the world market price. Phasing out such refunds could not be supported as long as not all forms of export competition (for example export credits in the US) received equal treatment. Otherwise it would be difficult for European states to remain competitive in the world market, and at the same time this would not help developing countries. As to the question, which proposals Austria had made in the negotiations to open the markets of the industrialized countries to the agricultural products from the South, the Minister replied that, concerning market access for products from developing
19
Parliamentary Materials 344/J (XXII. GP), 358/AB (XXII. GP).
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countries, he would like to point out that the EU already allowed duty-free imports from the least-developed countries through its initiative “everything but arms”. A more fare-reaching suggestion, namely to make half of the imports from developing countries duty-free, was contained in the modality paper of the EU and had been supported by Austria. The German Original reads as follows: Exporterstattungen sollen die Differenz zwischen Inlandspreis und dem Weltmarktpreis abdecken. Das Auslaufen der Erstattungen kann aber nicht befürwortet werden, solange nicht alle Formen des Exportwettbewerbs (z.B. Exportkredite der USA) gleich behandelt werden. Für die europäischen Staaten würde es schwierig sein, am Weltmarkt wettbewerbsfähig zu bleiben und den Entwicklungsländern würde dadurch nicht geholfen. […] Was den Marktzugang für Produkte aus Entwicklungsländern anlangt, darf ich darauf hinweisen, dass die EU mit ihrer Initiative “everything but arms” bereits zollfreie Importe aus den am wenigsten entwickelten Ländern erlaubt. Ein weitergehender Vorschlag, nämlich die Hälfte der Importe aus Entwicklungsländern zollfrei zu stellen, ist im Modalitätenpapier der EU enthalten und wurde von Österreich mitgetragen. SS.I.6.-2
Federal Law which changes the Federal Law on Development Co-operation/Bundesgesetz, mit dem das Bundesgesetz über die Entwicklungszusammenarbeit geändert wird To increase the implementation capacities of the Austrian Development Co-operation against the background of point 13 of the conclusion of the presidency of the European Council of Barcelona of 16 March 2002 which provide that all Member States of the European Union will strive for spending at least 0,33% of their GNP for public development aid a new agency was created. It shall provide a better cooperation between Austrian development activities and Austrian economy and shall create efficient structures for the implementation of EU-financed projects. The main gist of the law is as follows: Tasks of the ADA (Austrian Development Agency) §8 (1) The task of the ADA is to elaborate and manage measures of development co-operation with a special focus on the efficiency in the developing countries. ADA performs its activities in co-operation with other institutions that also have development policy tasks. ADA has in particular the following functions: 1. Preparation of programs and projects and conclusion of treaties on measures of development co-operation in the framework of the three-annual program (§23) as well as their implementation; 2. assistance of sustainable economic, social and ecologically sound development in developing country by using Austrian potential;
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3. contribution to projects of multilateral development co-operation in the framework of the European Community and other international Organisations, especially by acquisition of international means and co-financing, as well as by facilitating the participation of enterprises and development-organizations in development projects; 4. assistance of the deployment of Austrian development aid workers and experts, especially in the framework of international organisations and institutions; 5. advising the Federal Ministry for Foreign Affairs in all development political questions of principle, especially concerning the development of the three-annual program.
The German original of the law reads as follows: Aufgaben der ADA § 8. (1) Aufgabe der ADA ist die Erarbeitung und die Abwicklung von Maßnahmen der Entwicklungszusammenarbeit, wobei insbesondere auf deren Wirksamkeit in den Entwicklungsländern zu achten ist. Die ADA führt ihre Aufgaben in Abstimmung mit anderen Einrichtungen, die ebenfalls entwicklungspolitische Maßnahmen setzen, durch. Die ADA hat dabei insbesondere folgende Aufgaben: 1. Vorbereitung von Programmen und Projekten und Abschluss von Verträgen über Maßnahmen der Entwicklungszusammenarbeit im Rahmen des Dreijahresprogramms (§ 23) sowie deren Abwicklung; 2. Unterstützung der nachhaltigen wirtschaftlichen, sozialen und umweltgerechten Entwicklung in den Entwicklungsländern unter Nutzung des österreichischen Potenzials; 3. Mitwirkung an Projekten der multilateralen Entwicklungszusammenarbeit im Rahmen der Europäischen Gemeinschaft und anderer internationaler Organisationen, insbesondere durch Akquisition internationaler Mittel und Kofinanzierungen sowie die Vermittlung der Beteiligung von Unternehmen und Entwicklungsorganisationen an Entwicklungsprojekten; 4. Unterstützung des Einsatzes österreichischer Entwicklungshelfer und Experten, insbesondere im Rahmen internationaler Organisationen und Einrichtungen; 5. Beratung des Bundesministers für auswärtige Angelegenheiten in allen entwicklungspolitischen Grundsatzfragen, insbesondere bei der Erstellung des Dreijahresprogramms. III.
Environment/Umwelt See also DD.III and SS.I.1
SS.III.-1
Temelin decisions – implementation of the road-map agreed upon in the “process of Melk”—exit from atomic energy—“ zero option “/Temelin Beschlüsse—Umsetzung der im Rahmen des Melker Prozesses vereinbarten Roadmap—Ausstieg aus der Atomenergie—”Nullvariante” In September 2002 a parliamentary request was addressed to the Federal Minister for
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Agriculture, Forestry, Environment and Water,20 asking, inter alia, whether he intended to offer exit-options in the course of further negotiations with the Czech Republic. In his response, the Federal Minister affirmed that the Czech Republic clearly continued to endorse the “process of Melk and the Brussels Agreement”. [...] The “road map” defined an outline of dates concerning the implementation of the “Agreement of Brussels”. He pointed out that as yet, all steps for the implementation of the “road map” had been taken. […] He underlined that the “road map” did not prescribe concrete measures such as for example the installing of a separating wall for the high-energy pipelines on the 28.8 meter platform. It was the matter of the operator or the inspection authorities to present an appropriate solution. […] Concerning the “zero option” he reminded that the so-called “zero option” was a component of the “process of Melk”, the inclusion of which Austria vigorously had insisted on. However, it should be born in mind that decisions on national energy policy were, to a very large part, a matter of national sovereignty. Austria itself had insisted on a written incorporation of that principle in the form of a common declaration in its accession treaty to the EU. Exit scenarios could therefore only be developed together with the state concerned—its government and its (energy) firms. […] [There were] no indications whatsoever that the Czech Republic was in any way prepared to consider concrete exit strategies. The German Original reads as follows: Eingangs halte ich fest, dass die Tschechische Regierung sich weiterhin klar zum “Melker Prozess und zum Abkommen von Brüssel” bekennt. […] Die “Road-Map” definiert ein Termingerüst betreffend Umsetzung der “Vereinbarung von Brüssel”. Ich halte fest, dass bislang alle vereinbarten Schritte zur Umsetzung der “Road Map” erfolgt sind. […] Ich halte an dieser Stelle ganz klar fest, dass die “Road Map” keine konkrete Lösung wie zum Beispiel die Errichtung einer Trennwand für die hochenergetischen Rohrleitungen auf der 28,8 m Bühne vorschreibt. Es ist Sache des Betreibers bzw. der Aufsichtsbehörde, eine entsprechende Lösung zu präsentieren. […] Betreffend die “Nullvariante” sei daran erinnert, dass die sogenannte “Null-Option” ein von Österreich mit Nachdruck eingebrachter Bestandteil des “Melker Prozesses” war. Zu beachten ist aber, dass Entscheidungen über die nationale Energiepolitik weitestgehend der nationalen Souveränität unterliegen. Österreich selbst hat sich die schriftliche Verankerung dieses Grundsatzes in Form einer gemeinsamen Erklärung in seinem Beitrittsvertrag zur EU ausbedungen. Ausstiegsszenarien können somit nur gemeinsam mit dem betroffenen Staat—dessen Regierung und dessen Unternehmen—entwickelt werden. […] [es gibt] keinerlei Hinweise, dass die Tschechische Republik in irgendeiner Weise bereit wäre, sich mit konkreten Ausstiegsangeboten zu beschäftigen.
20
Parliamentary Materials, 4416/J (XXI. GP), 4265/AB (XXI. GP).
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SS.III.-2
Temelin—implementation of the agreement reached in Melk—Austrian nuclear policy at EU-level—Treaty establishing the European Atomic Energy Community (EURATOM)/Temelin—Umsetzung des Melker-Abkommens—Österreichische Atompolitik auf EU-Ebene—EURATOM-Vertrag In May 2003, a request was addressed to the Federal Minister for Agriculture, Forestry, Environment and Water regarding—among other things—the implementation of the agreement reached in Melk (between Austria and the Czech Republic21) against the background of the disturbances in the Hungarian nuclear power plant Paks and the Czech power plant in Temelin.22 The Federal Minister replied that the Agreement of Brussels of November 29, 2001 [Concluding Statement of the Agreement reached in Melk between Austria and the Czech Republic] as well as the “Road Map” of December 10, 2001 defined an extensive working programme, the implementation of which had immediately commenced. The implementation schedule according to the “road map”, however, extended to the end of 2004, so that they could take stock only at the beginning of 2005. As yet, all steps agreed upon to implement the “road map” both on the Czech as well as the Austrian side had been taken. The results were encouraging, but not satisfactory in all areas. […] He had therefore transmitted the interim reports to the Foreign Minister and VicePremier of the Czech Republic, Svoboda, with the request to continue the efforts to improve the security of the nuclear power plant Temelin as well as the bilateral exchange of information on a technical level—in particular with respect to the questions raised by the report. In addition to the regular contacts flanking the European Ministerial Conferences he would also discuss open questions on a bilateral level in due course, as provided in the “Agreement of Brussels”. The German Original reads as follows: Mit der Vereinbarung von Brüssel vom 29. November 2001 [Concluding Statement of the Agreement reached in Melk between Austria and the Czech Republic] sowie der “Road Map” vom 10. Dezember 2001 wurde ein umfangreiches Arbeitsprogramm definiert und mit dessen Umsetzung umgehend begonnen. Der “Fahrplan” der Umsetzung erstreckt sich jedoch bis Ende 2004, sodass erst Anfang 2005 Bilanz gezogen werden kann. Bislang sind sowohl von tschechischer als auch österreichischer Seite alle vereinbarten Schritte zur Umsetzung der “Road Map” erfolgt. Die bisherigen Ergebnisse sind ermutigend, aber nicht in allen Bereichen zufriedenstellend. […] Ich habe daher die Zwischenberichte an den Außenminister und Vizepremier der Tschechischen Republik, SVOBODA, mit dem Ersuchen übermittelt, die Bemühungen zur Verbesserung
21
See ARIEL 7.
22
Parliamentary Materials 467/J (XXII. GP), 484/AB (XXII. GP).
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der Sicherheit des AKW Temelin ebenso, wie den bilateralen Informationsaustausch auf technischer Ebene—vor allem zu den in den Berichten aufgeworfenen Fragen—fortzusetzen. In Ergänzung zu regelmäßigen Kontakten am Rande europäischer Ministertagungen werde ich offene Fragen zu gegebener Zeit, wie in der “Vereinbarung von Brüssel” vorgesehen, auch auf bilateraler Ebene erörtern.
Asked about his initiatives at the EU-level to fight against the prevailing “pro-atomiccourse”, the Minister stated that, concerning the sustainability of the supply with energy services, they supported measures to improve the efficiency of the use of energy as well as the promotion of renewable sources of energy also on the European level. In these fields, Austria possessed specific experience and specific know-how, which they would actively promote on the European level as well. For example, in order to eliminate distortions in competition and to create fair conditions of competition on the European energy markets, he vigorously supported the inclusion of nuclear energy in communitarian regulations regarding environmental liability, a reform of the EURATOM Treaty, and furthermore strongly opposed the EURATOM loans in the current and currently planned form. Concerning the security of nuclear energy plants, the creation of common European security standards on the highest security level were a top priority. As to the question on his opinion on how the EURATOM treaty was dealt with in the EU-Constitution, the Minister replied that the efforts of the Austrian delegates to the Convention to integrate the EURATOM Treaty in a modern form into a future European Constitution were actively supported by the Federal Government. Their main interest was focused on the strengthening of the objective of protection and the elimination of the objective of promotion. […] On the occasion of the meeting of the Praesidium on March 13, 2003, the Praesidium of the Convention had agreed to present to the Convention a document (CONV 621/ 03) with a single recommendation (no options). According to this recommendation, the EURATOM Community as a legal entity should be merged with the Union. The EURATOM Treaty, on the other hand, would continue to exist as a separate treaty, which would be adjusted only marginally (in particular in institutional and financial areas) in a Protocol added to the Constitutional Treaty. According to the Minister, that recommendation—only marginal changes, in particular in the institutional and financial area, without the realisation of the long overdue elimination of the anachronisms of the EURATOM Treaty—was insufficient from a point of view of nuclear policy. […] The Minister affirmed that he would do his utmost to assure that this topic continued to be pursued in the Governmental Conference following the Convention. A modification of the EURATOM Treaty or its termination required however the assent of all Member States of the European Union, as it constituted a modification of primary law. Asked, whether Austria would agree to the intended increase of the EURATOM credit line from 4 to 6 billion Euro, the Federal Minister stated that Austria was in principle critical towards the instrument of the EURATOM loan, since it was essentially a support of the nuclear industry, which distorted the competition. […] Austria rejected
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the granting of EURATOM loans, made possible by these proposals, for the construction of new reactors or nuclear power plants already under construction as well as for measures towards the extension of the lifetime of plants and the increase in efficiency. In that context the Minister recalled the common declaration of Austria, Belgium and Germany on the occasion of the Environment Council of December 9, 2002 and once more endorsed its content. In addition, he considered it as being the duty of the operator and the surveying authorities concerning refitting nuclear power plants in order to meet authorization requirements and in order to keep pace with a high level of nuclear safety. Therefore, any communitarian support should be combined with a clear and enforceable obligation to an earlier shutdown in return. He considered the efforts of the Presidency to limit the use of funds to measures that increase the safety of nuclear plants, to the decommissioning of unsafe plants and to the storage and treatment of nuclear waste, as well as the suggestions to lower the maximum limit of a loan and finally to combine the two previous proposals by the Commission on the basis of Art 203 EACT to be a constructive basis for discussion. He added that the Austrian position was to be represented by the Federal Minister of Finance, who acted on the matter in close co-ordination with himself and the (Federal) Chancellor. The German original reads as follows: Hinsichtlich der Nachhaltigkeit der Versorgung mit Energiedienstleistungen treten wir auch auf europäischer Ebene für Maßnahmen zur Steigerung der Effizienz der Energienutzung sowie zur Förderung erneuerbarer Energieträger ein. In diesen Bereichen verfügt Österreich über spezifische Erfahrungen und spezifisches Know-How, das wir offensiv auch auf europäischer Ebene einbringen. Um Wettbewerbsverzerrungen zu beseitigen und faire Wettbewerbsbedingungen auf den europäischen Energiemärkten zu schaffen, trete ich beispielsweise mit allem Nachdruck für die Berücksichtigung der Kernenergie in gemeinschaftlichen Regelungen zur Umwelthaftung, für eine Reform des EURATOM-Vertrages […] sowie gegen EURATOM-Kredite in der derzeitigen bzw. derzeit geplanten Form […] ein. Bezüglich der Sicherheit kerntechnischer Anlagen steht die Schaffung einheitlicher europäischer Sicherheitsstandards auf höchstem Niveau im Vordergrund. […] Die Bemühungen der österreichischen Konventsdelegierten, den EURATOM-Vertrag in einer zeitgemäßen Form in eine künftige europäische Verfassung zu integrieren, werden von der Bundesregierung aktiv unterstützt. Eine Stärkung des Schutzzweckes und eine Eliminierung des Förderzweckes stehen dabei im Vordergrund des Interesses. […] Anlässlich der Präsidiumssitzung vom 13. März 2003 kam das Präsidium des Konvents überein, dem Konvent ein Papier (CONV 621/03) mit einer einzigen Empfehlung (keine Optionen) vorzulegen. Demnach soll die Atomgemeinschaft als juristische Person mit der Union fusioniert werden. Der EURATOM-Vertrag würde hingegen als separater Vertrag bestehen bleiben, der in einem dem Verfassungsvertrag beigefügten Protokoll lediglich geringfügig, v.a. im institutionellen und finanziellen Bereich, angepasst wird. Diese Empfehlung—lediglich geringfügige Änderungen, v.a. im institutionellen und finanziellen Bereich ohne Durchführung der längst notwendigen Streichung von Anachronismen des EURATOM-Vertrages ist aus nuklearpolitischer Sicht als unzureichend anzusehen. […] Ich werde mich dafür einsetzen,
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dieses Thema auch in der dem Konvent folgenden Regierungskonferenz weiterhin mit Nachdruck zu verfolgen. Eine Änderung des EURATOM-Vertrages bzw. dessen Außerkrafttreten erfordert als Primärrechtsänderung allerdings die Zustimmung aller Mitgliedstaaten der Europäischen Union. […] Österreich steht dem Instrument der EURATOM-Anleihe grundsätzlich kritisch gegenüber, da es im Wesentlichen eine wettbewerbsverzerrende Förderung der Nuklearindustrie darstellt. […] Österreich lehnt die durch diese Vorschläge mögliche Gewährung von EURATOMKrediten für den Bau neuer Reaktoren bzw. für bereits in Bau befindliche Kernanlagen sowie für Maßnahmen der Laufzeitverlängerung und Effizienzsteigerung ab. Ich erinnere in diesem Zusammenhang an die gemeinsame Erklärung von Österreich, Belgien und Deutschland anlässlich des Umweltministerrates am 9. Dezember 2002 und bekräftige nochmals deren Inhalt. Darüber hinaus erachte ich die Nachrüstung von Kernanlagen, um Genehmigungsvoraussetzungen zu erfüllen und um mit einem hohen Niveau nuklearer Sicherheit Schritt halten zu können, als eine Aufgabe des Betreibers und der zuständigen Aufsichtsbehörde. Jeder gemeinschaftlichen Unterstützung müsste folglich eine klare und durchsetzbare Verpflichtung zu einer früheren Schließung im Gegenzug gegenüberstehen. Ich halte deshalb die Bemühungen der Präsidentschaft, eine Beschränkung der Mittelverwendung auf Maßnahmen zur Erhöhung der Sicherheit existierender Kernanlagen, auf Dekommissionierung unsicherer Anlagen und auf die Lagerung sowie Behandlung nuklearer Abfälle herbeizuführen sowie den Anleihenhöchstbetrag niedriger anzusetzen und schließlich die beiden bisherigen Kommissionsvorschläge auf Grundlage des Art 203 EAG-V zusammenzulegen, für eine konstruktive Diskussionsgrundlage. Ich füge hinzu, dass die österreichische Position vom Bundesminister für Finanzen zu vertreten ist, der hier in enger Abstimmung mit mir und dem Herrn Bundeskanzler agiert. SS.III.-3
Transboundary Environmental Impact Assessment—Austria—Czech Republic— Espoo-Convention—Implementation/grenzüberschreitendes Umweltverträglichkeitsprüfungsverfahren Österreich—Tschechien—Espoo-Konvention—Umsetzung In July 2003, a parliamentary request concerning the institution of a transboundary environmental impact assessment (EIA) regarding the theme park at the AustrianCzech border crossing in Klainhaugsdorf/Hate was addressed to the Federal Minister for Agriculture, Forestry, Environment and Water.23 The request inquired furthermore, how the Austrian Government intended to protect human beings, the environment as well as the economy prior to the conclusion of such an EIA and asked about intended EIAs with other neighbouring states. The Federal Minister replied that theme parks were not listed in Appendix I of the Espoo-Convention [Convention on Environmental Impact Assessment in a Transboundary Context]. Therefore, according to Art. 2 para. 5 of the Convention, an agreement
23
Parliamentary Materials 711/J (XXII. GP), 718/AB (XXII. GP).
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with the Czech Republic was needed in order to extend the scope of the Convention to further types of projects. He continued that they had been negotiating with the Czech Republic for a long time for such an agreement. A transboundary EIA for the aforementioned project was reasonable and necessary in order to minimize possible negative consequences on the environment and the population. The Minister stated that—in that context—he had already repeatedly expressed his views favouring the rapid conclusion of a bilateral agreement concerning the implementation of the Espoo-Convention towards Minister Ambrozek, so that in the future possible problems concerning projects near the border requiring an EIA could be resolved in an objective manner according to suitable rules of the game. In addition, he had personally written to Minister Ambrozek on July 10, 2003 in order to request a notification of the project mentioned according to the Espoo-Convention. The Espoo-Convention provided that in the case of a transboundary EIA, the states concerned carried out consultations. In these consultations the concerns of the Austrian side could be explained once again and a solution satisfactory to both sides could be worked out. […] Such bilateral agreements with all neighbouring states were envisaged, in particular with the Slovak Republic, and detailed negotiations on this issue had already taken place. The German original reads as follows: Themenparks sind nicht in Anhang I der Espoo-Konvention [Übereinkommen über die Umweltverträglichkeitsprüfung im grenzüberschreitenden Rahmen] enthalten und es bedarf daher einer Vereinbarung mit Tschechien, um gem. Art. 2 Abs. 5 der Konvention auch weitere Vorhabenstypen in den Geltungsbereich der Konvention einzubeziehen. Über eine derartige Vereinbarung wird seit Jahren mit Tschechien verhandelt. Eine grenzüberschreitende UVP für das genannte Vorhaben ist sinnvoll und notwendig, um allfällige negative Auswirkungen auf die Umwelt und die Bevölkerung hintan zu halten. In diesem Zusammenhang habe ich mich gegenüber Minister Ambrozek auch bereits wiederholt für einen möglichst raschen Abschluss eines bilateralen Abkommens zur Umsetzung der EspooKonvention ausgesprochen, damit in Zukunft etwa auftretende Probleme in Bezug auf grenznahe UVP-pflichtige Vorhaben ohne Reibungsverluste nach tauglichen Spielregeln in sachlicher Art und Weise gelöst werden können. Zusätzlich habe ich mich am 10. Juli 2003 mit einem persönlichen Schreiben an Minister Ambrozek gewandt, in dem ich um Notifizierung des angesprochenen Vorhabens nach der Espoo-Konvention ersucht habe. Die Espoo-Konvention sieht vor, dass im Fall einer grenzüberschreitenden UVP zwischen den betroffenen Staaten Konsultationen geführt werden. Dabei können die Bedenken aus österreichischer Sicht nochmals erläutert und für beide Seiten befriedigende Lösungen erarbeitet werden. […] Derartige bilaterale Abkommen werden mit allen Nachbarstaaten, insbesondere mit der Slowakei, angestrebt und es haben dazu bereits eingehende Verhandlungen stattgefunden. SS.III.-4
Cartagena Protocol on Biosafety to the Convention on Biological Diversity/Protokoll von Cartagena über die biologische Sicherheit zum Übereinkommen über die
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biologische Vielfalt samt Anlagen The Cartagena Protocol24 creates an international legal basis to ensure an information exchange regarding transboundary delivery of genetically modified organisms. Austria was so far not party to any international binding instrument concerning Bio safety, in particular to those providing for the exchange of information on transboundary delivery of genetically manipulated organisms. The Austrian law on genetic engineering provides for an international exchange of information. But its norms are restricted to the EU area and are not sufficiently specified. This gap was closed with the ratification of the Cartagena Protocol. Cartagena Protocol on Biosafety to the Convention on Biological Diversity The Parties to this Protocol, ... Have agreed as follows: Article 1 Objective In accordance with the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements. The Explanatory Memorandum submitted by the Government to the National Assembly reads a follows (excepts): To Article 1—objective: In Article 1 it is pointed out that, in accordance with the precautionary principle, a contribution to the prevention of adverse effects of living modified organisms on biological diversity as well as human health should be made. The main focus is on transboundary movements.
The German original of the relevant part of the Government’s Explanatory Memorandum reads as follows: Erläuterungen: Zu Artikel 1—Ziel: In Artikel 1 wird darauf hingewiesen, dass im Einklang mit dem Vorsorgeprinzip dazu beigetragen werden soll, nachteilige Auswirkungen von lebenden veränderten Organismen auf die biologische Vielfalt sowie die menschliche Gesundheit zu vermeiden. Der Schwerpunkt 24
Federal Law Gazette, BGBl. III 94/2003.
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liegt auf der grenzüberschreitenden Verbringung. VII.
Cultural matters/Kulturelle Angelegenheiten
SS.VII
Role of art and culture in the GATS-negotiations—public subsidies—obligation of equal treatment of foreign and national providers/Rolle von Kunst und Kultur bei den GATS-Verhandlungen—öffentliche Subventionen—Gleichbehandlungspflicht ausländischer und heimischer Anbieter In March 2003, a parliamentary request regarding the role of art and culture in the GATS-negotiations was addressed to the Federal Minister for Economy and Labour.25 The request inquired whether providers of services in the area of entertainment (theatre, live-bands, circus, libraries, archives, museums or other cultural services) of other WTO-Member States could ask for public subsidies. In his response, the Federal Minister for Economy and Labour stated that according to the EU-draft offer for the new round of GATS negotiations in services, the entitlement to subsidies of the EC or its Member States could be limited to legal persons that had their seat in the territory or parts of the territory of a Member State. No limitations existed regarding subsidies for research and development nor regarding any kind of subsidies for natural persons. He continued that the grant of subsidies regarding services in the public domain did not establish a right of foreign providers to claim equal treatment. In addition, the financing, for example of the Austrian federal theatres, was not considered a subsidy but rather public funding; public funding was—because of the exception stated in Art 1 para 3 lit c—not covered by the GATS. The GATS and its equal treatment rule applied exclusively to purely economic subsidies. The German original reads as follows: Laut EU-Angebotsentwurf für die neue Dienstleistungsrunde kann die Anspruchsberechtigung für Subventionen von der EG oder ihrer Mitgliedstaaten auf juristische Personen beschränkt werden, die auf dem Gebiet oder Teilgebiet eines Mitgliedstaates niedergelassen sind. Keine Bindung besteht hinsichtlich von Subventionen für Forschung und Entwicklung sowie generell der Subventionierung natürlicher Personen. Die Subventionierung einer Dienstleistung im öffentlichen Bereich begründet keinen Anspruch auf Gleichbehandlung für ausländische Anbieter. Im Übrigen ist die Finanzierung etwa der österreichischen Bundestheater nicht als Subventionierung sondern als öffentliche Finanzierung zu betrachten; diese sind aufgrund der Ausnahme des Art. 1 Abs. 3 lit. c nicht vom GATS erfasst. Das GATS und dessen Gleichbehandlungsgebot bezieht sich nur auf reine Wirtschaftsförderungen.
25
Parliamentary Materials, 281/J (XXII. GP), 267/AB (XXII. GP).
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VIII. Legal matters (e.g. judicial assistance and crime control etc.)/Rechtliche Angelegenheiten (z.B. Rechtshilfe und Verbrechensbekämpfung etc.) SS.VIII
Justice and the Rule of Law: the United Nations Role/Recht und Rechtsstaat: die Rolle der Vereinten Nationen On 30 September 2003, the Permanent Representative of Austria to the United Nations, H.E. Ambassador Gerhard Pfanzelter, issued the following Statement to the Security Council of the United Nations on the United Nations role regarding justice and the rule of law:26 Mr President, Austria fully endorses the statement by the Italian Presidency on behalf of the European Union and would like to elaborate on four aspects:
26
1.
Justice and the rule of law are the very foundation of our international system, and of the United Nations. International norms are the standards by which we assess right and wrong in international affairs. The statements on 24 September and today give hope that this discourse will continue and lead to a renewed understanding and strengthening of justice and the rule of law in the United Nations.
2.
Justice and the rule of law are the cornerstones of peace, security and stability of States especially in post-conflict situations. Austria has contributed substantially to the training of local police, state border and justice officials in Bosnia and Hercegovina and in Kosovo. As a Member of the Human Security Network, Austria is a strong advocate of the rights of civilians, in particular children, in armed conflicts. Training for police and the judiciary, the establishment of child protection units, as well as raising awareness among combatants are important in this regard. The recent mandate establishing the multidimensional United Nations Mission in Liberia is a positive example.
3.
For societies ravaged by war or internal conflict it is a priority to ensure that perpetrators of the gravest war crimes and crimes against humanity are brought to justice. The Security Council has devoted increasing attention to this issue. Austria fully supported the creation of international criminal tribunals for Yugoslavia, Rwanda, Sierra Leone and Cambodia. For financial, political and practical reasons, however, the Security Council is not able to deal with all situations in which grave crimes have been committed. Austria therefore fully supported the establishment of the International Criminal Court, which by means of its subsidiary jurisdiction is designed to ensure that national authorities devote serious attention to their obligations to investigate and prosecute such crimes. The ICC thereby contributes to the efforts of the Security Council to ensure the respect of international law. Austria is confident that the United Nations and the International Criminal Court will cooperate successfully to achieve their common goal of strengthening the rule of law and justice in international relations.
Available at http://www.aussenministerium.at/newyorkov/.
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4.
The United Nations has among its foremost duties to ensure and enforce abidance by international norms. The Security Council has a special responsibility in this regard. A Council dedicated to the resolute implementation of international law is the best incentive for the implementation of law on a national and local level.
In conclusion, I would like to thank the UK Presidency for this excellent initiative and for the opportunity to debate the crucial issues of justice and the rule of law in the Security Council. We are looking forward to the follow-up of this process you have so ably initiated. Thank you Mr. President. IX.
Military and security matters/Militärische Angelegenheiten, Sicherheitsangelegenheiten See also EE.II.1.b.cc and PP.II.2.a
SS.IX
Austria’s Policy and Priorities on Small Arms and Light Weapons/Österreichs Politik und Prioritäten bezüglich Handfeuerwaffen und leichter Waffen On 8 July 2003, Ambassador Wernfried Köffler delivered the following Statement concerning Austria’s policy and priorities concerning small arms and light weapons:27 Madam President, distinguished delegates, First of all, allow me to thank you, Madam President, on behalf of my delegation, for the groundwork that you have laid for the benefit of this conference and for chairing it in such an efficient manner. I would also like to thank UN DDA for the organization and States and NGOs for their statements, briefings and discussions. Austria wishes to associate itself with the statement made by Italy on behalf of the EU. In addition I would like to make some remarks in my national capacity. The Conference in 2001 succeeded in placing the issue on the international agenda. Governments have taken a variety of steps to fulfil the mandate of the Programme of Action. They were encouraged and supported by international, regional and non-governmental organisations. We are all well aware of the consequences that the illicit trade of SALW brings upon the civilian population, preventing sustainable development, prospects for democracy and the observance of human rights. No region of the world is being spared. Yet this global threat is almost only known to experts and academia. The media and the public need to be more involved. At the national level, Austria has a robust system of laws and regulations on small arms and light weapons. More detailed information may be obtained from our national report.
27
Available at http://www.aussenministerium.at/newyorkov/.
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At the regional level, Austria contributed to the Joint Action of the European Union and the Union’s Common Position on brokering. We take part in the initiatives of the European Union in Cambodia, Latin America and the Caribbean and in South-Eastern Europe. We will support the practical measures of SEESAC (South Eastern Europe Clearinghouse for the Control of SALW) in the framework of OSCE and the Stability Pact for South-Eastern Europe. The OSCE can be justifiably proud of the work in progress in this organisation. Highest common standards on all elements of the Programme of Action have been developed. Twelve member countries have taken an active role to establish in-house expertise and know how. The eight OSCE Best-Practice Guides represent a practical tool to governments, international organisations and NGOs and serve as a guide for national policy making. We encourage the OSCE to expand its assistance programme for participating states. Member States of the Wassenaar Arrangement are complementing these activities. They have adopted in December 2002 practical guidelines regarding the export of SALW and a “Statement of Understanding” on arms brokering. This work in progress by OSCE and Wassenaar is not intended, in our appreciation, to tell governments what to do. It is a compilation of information to be used in very practical terms to provide advice and concrete assistance on a national, regional and global level. It would be interesting to assess to what extent these specialised resources could be pooled and coordinated. During Austria’s presidency of the Human Security Network until May of this year focus was on children in armed conflicts including child soldiers. In this context small arms and light weapons are an essential element in activities of the HSN in advancing a people-centred approach to implement the PoA. The HSN has underlined in its “Medium-Term Work Plan 2003-2005” the significance of international humanitarian and human rights law to protect children from small arms violence. Equally the implementation of the UN Basic Principles on the Use of Force and Firearms was acknowledged. As the present presidency of the network, the distinguished representative of Mali, has stated the HSN will sponsor a workshop on the humanitarian consequences of small arms in the margins of the 2003 Red Cross and Red Crescent Conference. My delegation will be studying with great interest and appreciation the publications made available to our conference like “Putting People First”, “The Small Arms Survey”, the progress report produced by “Biting the Bullet”. In conclusion, we join those who recommend the urgent need for coordinated and comprehensive financial and technical assistance for affected States. Coordination and cooperation amongst donors on small arms projects is important. We join the call “No arms for atrocities”. In a forward looking approach it may be worthwhile already at this stage to consider ways on
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which we might amend or improve the Programme of Action having the 2006 Conference as a goal in mind. Thank you for your attention.
Book Reviews
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Book Reviews
William E. Butler, Russian Law. Second Edition, Oxord University Press, New York, 2003, ISBN 0-19-925-400-1, 761 pp., USD 250.00 The author of this book, W. E. Butler, has long experience in the field of Soviet/ Russian law, having worked in this area since 1970. In the second edition of “Russian Law”, he has taken into account the reform measures and new enactments in the Russian legal order since 1998. In the first part he starts off with the position of Russian law in comparative legal studies. He admits that historically the Russian law system has been classified as being part of the civil law family, but underlines that the Russian science of comparative law nowadays—“although at a fledgling stage”—is of the view that Russian law remains outside the Romano-Germanic legal family. “Rather, Russian law in its perception falls into the category of ‘transitional’ legal systems whose ultimate destination, for comparative law classification purposes, remains undetermined” (p. 5). Chapter 2 covers the history of Russian law starting in the 10th century. Chapter 3 presents the development of Russian legal theory from the 11th century until post-soviet times, including, most interestingly, the lack of a profound legal theory in the society concept of Marx and Engels. The second and third part of the book deal with Russian internal law. The second part is called “The Legal System” and opens by a presentation of the sources of law in chapter 4. The author describes the confusing variety of types of Russian legislative enactments and their unclear hierachical relationship—more than 40 denominations are used for enactments, such as zakon, polozhenie, kodeks, osnovy, obrashchenie, deklaracija, poslanie, ukaz, rasporjazhenie etc. He discusses in detail the existence of judicial precedents and the stare decisis principle in Russian judicial practice and— contrary to Russian legal doctrine—finds indications for their existence. One subchapter on the publication of legislative acts and their entry into force inter alia presents the publication gazettes and their structure, which helps western lawyers to orientate themselves in Russian legislation. Chapter 5 deals with legal profession and legal education in Russia. The author examines in detail the professions of jurisconsult and advokat, because in contrast to other legal professions they most closely approximate the anglo-american concept of a lawyer, solicitor or barrister. After a description of the legal education which includes some references to the teaching methods there follow two subchapters confined to quantitative aspects of legal research and legal publishing. Chapter 6 presents the “Administration of Legality” in describing State and non-Sate bodies directly concerned with the application and enforcement of law, like the ministry of justice, the court system, the procuracy, the notariat and the Registry for Acts of Civil Status as well as law enforcement agencies or preliminary investigation agencies. The author addresses
Austrian Review of International and European Law 8: 569-592, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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history, structure and competences of the said bodies, giving the reader an interesting overview of the Russian administrative and court system. Sometimes, however, the selection of the presented facts seems contestable: The author reports that judges wear gowns when the constitutional court is in session, but leaves out a reference to the legal consequences and practical impact of the constitutional court’s decisions, e. g. in the case of the examination of a federal law. Chapter 7 is devoted to civil, arbitrazh and criminal procedure. Part II presents the substantive law of the Russian Federation in ten chapters: constitutional and administrative law (chapter 8), civil law (chapter 9), family law (chapter 10), entrepreneurial law (chapter 11), securities regulations (chapter 12), banking law (chapter 13), taxation (chapter 14), natural resources and the environment (chapter 15), labour law (chapter 16) and criminal law (chapter 17). Understandably, a presentation of all substantial law areas on 300 pages only must remain superficial. The author describes the main structures of the Russian legal order in contrast to the anglo-american legal system. The civil law chapter, for example, contains a number of general explanations like the following: “It is particularly important for the AngloAmerican lawyer to comprehend that the Russian Civil Code is not merely a compilation of particular rules. It rests upon principles and definitions developed in the science or doctrine of Russian civil law and qua Code constitutes a system of interrelated norms. The arrangement of the code can be of decisive importance in understanding how the rules contained in the Code should be applied” (p. 363). All legal concepts are described in their historical context and with attention to their change in parallel to Russia’s transition to market economie. Part IV looks at “The law and foreign relations”, which inter alia includes the sphere most popular among western lawyers—the foreign investment and trade law. Part V is of particular interest, because it lists resource material on Russian law. Starting with a bibliography, a list of dictionaries and foreign language journals, it goes on to official gazettes, principal laws and codes, court reports, law reviews, and, most important, legal databases. The annex contains an English version of the Russian constitution. The book is completed by a comprehensive subject index. As regards the language proficiency of the reader, no knowledge of Russian is presumed, although the knowledge of the cyrillic alphabet might be helpful. All in all, this book provides a general overview of the legal system of the Russian Federation from an anglo-american viewpoint which might serve as an introduction to history and structure of the Russian legal order. Ulrike Köhler University of Vienna
Book Reviews
571
Andreas O’Shea, Amnesty for Crime in International Law and Practice. Kluwer Law International, The Hague/London/New York, 2002, ISBN 90-411-1759-8, xxxiii+376 pp., USD 92.00 The certainly timely and thought-provoking study by Andreas O’Shea is dedicated to shed—in a systematic and doctrinally sound fashion—light on the relationship between amnesty laws and the international legal framework. As stated in the introductory chapter, it aims at defining the legitimate parameters of amnesty in terms of international law and reconciling the national practice with the initiatives of the international community of states. The rift between national amnesty laws adopted in furtherance of peace and reconciliation in the aftermath of conflict on the one hand, and the international community’s efforts to end impunity for crimes against international law on the other, poses a continuous thread throughout the book, which is structured along 12 Chapters. After introducing the topic (Chapter I, pp. 1-5), the book undertakes to unfold the foundations of amnesty laws in a national context, i.e. the “Practice of Amnesty: Its Emergence, Development and Rational” (Chapter 2, pp. 5-33), and retains the focus on national practice in the subsequent Chapter 3 (National Amnesty Laws, pp. 34-72), to then briefly dwell on the “Rationale of Legal Liability and Amnesty” in Chapter 4 (pp. 72-94). Shifting to the international tendency towards the prosecution of crimes punishable under international law, he introduces his views on “Opting for Prosecution or Amnesty in a System of General Relativity” (Chapter 5, pp. 95-133), before outlining existing obligations under international humanitarian law treaties (Chapter 6, pp. 134-159) as well as human rights treaties and related instruments (Chapter 7, pp. 160-196). Subsequently, he addresses the “Parameters and Criteria for a General Norm against Impunity” (Chapter 8, pp. 197-227) and corroborates his preliminary findings on the basis of state practice in conjunction with opinio iuris concerning the duty to prosecute (Chapter 9, pp. 228-266). After a brief excursus to “Amnesty and Civil Liability” (Chapter 10, pp. 267-293), he provides a doctrinal framework to reconcile municipal amnesties with international law and argues in favour of the adoption of an international instrument, such as a protocol to the Rome Statue, in furtherance of legal clarification in the matter (Chapter 11, pp. 294-319). Finally, the study concludes with an overview of the key findings presented as principles for the limitation of municipal amnesty laws (Chapter 12, pp. 320-329). The Appendix (pp. 330-336) contains a Draft Protocol incorporating O’Shea’s main observations. Following the tradition of legal scholarship, O’Shea commences his journey to the jungle located between the (sovereign) right of states to enact amnesty laws as a matter of domestic jurisdiction and the international community’s reinforced efforts to end impunity by properly defining the object of his (empirical) study: He defines amnesty as “immunity in law from either criminal or civil legal consequences, or from both, for wrongs committed in the past in a political context” and distinguishes it from the concept of impunity “which is a broader notion that incorporates amnesty and does not necessarily depend on legal authority” (pp. 1-2). He emphasizes that
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amnesties have had their purpose in promoting peace and reconciliation as opposed to pardons, which though entailing similar effects have provided a discretionary mechanism for sidestepping the courts, usually for individual purposes. (pp. 2-3) After having briefly outlined the history of amnesties (in the context of inter- as well as intra-state conflicts), he turns to modern practice and notes that amnesties have become a “less obvious option for those negotiating modern peace settlements following international wars” (p. 21), whereas in internal strive the utility of amnesties has received wide recognition, such as exemplified in El Salvador, Cambodia, Columbia, Sierra Leone and the Serbian Republic of Yugoslavia (p. 22). The author even identifies evidence of a revival of amnesty clauses in peace treaties ending an internal conflict as a result of developments endowing rebels with limited status under international law and the increasing involvement of third states as well as international organisations in their resolution (p. 22-23). Focusing on the models chosen in the cases of South Africa and Latin America, he identifies five principal justifications for amnesty: transition, peace, reconciliation, forgiveness and truth (p. 23). According to O’Shea, the underlaying assumption is that in a particular context, amnesty is a more appropriate means of achieving the goal of peaceful coexistence of human kind, as the ultimate goal of humanity, than punishment (p. 23). In an enlightening paragraph he further develops this rationale behind amnesties: “Achieving a better society may involve a process of transition from a state of war to a state of peace, or from one type of government to another. To facilitate such transition, it is often necessary or expedient to obtain the co-operation of the key figures in the maintenance of the former state of affairs, be it government officials, military personnel or agitators. Amnesty provides an incentive to such role players to co-operate in a process of transition. Peace or the establishment of a new government may only be possible with the consent of these former players.” (p. 23-24). Thus, addressing the cases of South Africa and Latin America, “whatever incidental functions the amnesty provision may serve, it was a component in a political settlement for the handing over of the reigns of power, which some would perceive as a necessary evil to ensure transition to democracy” (p. 24). In making an argument in favour of amnesties for the benefit of lasting peace, O’Shea asserts that “wars ended by compromise and forgiveness may be said to foster peace more effectively than those followed by recounting scores and revenge” (pp. 24s). Therefore, “it is difficult to conceptualise a meaningful peace without reconciliation. As long as former enemies continue to be hostile to each other, the root causes of war continue to foreshadow the peace settlement and peace itself is fragile, assailable and ultimately ephemeral. Reconciliation is therefore a catalyst for lasting peace. As a gesture of atonement for past wrongs, amnesty—by implication if not expressly—always, inter alia, serves the function of reconciliation” (pp. 25s). As a minor criticism regarding O’Shea’s elaborations concerning the value of amnesties as a means for reconciliation through “forgiveness”, the atheist reader may on few occasions deplore the heavy references
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to theological reasoning (pp. 27-30). While the notion of reconciliation is often linked to and discussed within a spiritual, i.e. religious, context, it would seem—to the reviewer’s mind—more appropriate to retain a spiritually impartial viewpoint by sticking to the “psycho-political” aspects of the human condition, which often is translated into religious doctrines, such as the Christian catch-phrase of “forgiveness”. It may have been more adequate and necessary, in fact needed, to further explore the “psychological” aspects of amnesties, rather than shifting the discussion from one doctrine (law) to another (theology). In conclusion of Chapter 2, Andreas O’Shea formulates the paradox that currently haunts international (human rights) law: “[Amnesty] is a mechanism that is increasingly employed as an alternative means of transitional justice to punishment, in a world that increasingly demands the punishment of individuals that commit international crimes” (p. 33). Chapter 3 is dedicated to an examination of National Amnesty Laws (pp. 34-71), as one of the four mechanisms to effectuate political transition to peace next to prosecution, non-criminal sanctions against the former elite and impunity (without formal guarantee of amnesty; pp. 34s). In introducing the subject, he notes, that “examples of amnesty laws are few” while adding his expectation that amnesty laws will become more prevalent in the future “owing to the increased global emphasis on democratic process as well as to the extensive interest in the Latin American and South African processes” (pp. 35s). What follows is a cursory discussion of the most “prominent” amnesty laws in Africa, i.e. the case of Uganda (pp. 39-42) and South Africa (pp. 42-56), and South America, i.e. the cases of Argentina (pp. 56-58), Chile (pp. 58-61), El Salvador (pp. 61-62), and Uruguay (pp. 63-64). With regard to the South-African precedent, O’Shea broadly discusses the controversial decision of the Constitutional Court in Azanian People’s Organzation (AZAPO) and others v. President of South Africa and others (1996) in which the constitutionality of the Promotion of National Unity and Reconciliation Act forming the basis for the Truth and Reconciliation Commission as well as its powers to grant amnesties was contested (pp. 47-55). He rightly observes that the Court in South Africa rather superficially addressed the relationship between international law, in particular jus cogens and customary international law, and constitutional provisions (pp. 54-55). In contrast to South African and other (national) jurisprudence, he highlights that regional (international) jurisprudence with regard to human rights violations committed in Latin America and subject to national amnesty laws, have consistently been regarded as violations of treaty obligations (pp. 64-68). The author’s closing remarks of Chapter 3 capture these opposing trends: “While there is a developing practice of amnesty on a national level, there is also a developing practice of prosecution on a global level, and a developing practice of extradition on the inter-state level” (p. 71). In briefly explaining the rationales behind amnesties on the national levels, O’Shea poses in the reviewer’s view too much emphasis on “the perceptions of what is best for society”, instead on the need to find a balance of power between the society and its former offenders. In fact, current contexts in which the issue of transitional justice is being discussed, foremost the case of Afghanistan, demonstrate fairly clearly the constraints
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that mechanisms of transitional justice face in situations in which perpetrators of serious crimes are found throughout key governmental positions and continue to exert considerable political influence. The various justifications of punishment and amnesty need to be weighed on a case-by-case basis. While, as elaborated by the author, there are various theoretical arguments which need to be weighed in favour of prosecution or amnesty (pp. 82-87), the political situation on the ground— particularly in a post-conflict situation—may not give any leeway for a choice, but rather dictate one solution over the other, despite popular sentiments or legal reasons to the contrary. In Afghanistan, for example, there is a strong feeling among the population that so-called “warlords” need to be removed from governmental positions and prosecuted for their (past) crimes. At the same time, however, a majority of the population would doubt that national courts would provide for “justice” at this point and therefore prefer to postpone addressing the past in order not to upset the fragile balance, which currently ensures political stability and peace. Contrary to the author’s proposition, that “a distinction will usually need to be made between crimes under domestic law and crimes in the international arena” (pp. 86-87), there is little leeway for the application of such a theoretical distinction in practice. The same concerns, to the reviewer’s mind, apply to O’Shea’s discussion of whether amnesty would and should also cover civil liability (pp. 87-93). While arguing against such an extension, the author does not address one key element, namely that in a post-conflict situation the judiciary’s capacity to absorb civil actions may simply be non-existent and predispose years of reform and reconstruction. Similar criticism applies to his analysis of problems associated with prosecution of international crimes before national courts (pp. 96-104). In outlining the advantages of prosecuting international crimes before national courts, O’Shea mentions that “the national tribunal has a financial advantage in terms of having a pre-existing system of courts, judges and lawyers” and that “national prosecution has the obvious advantage of an established law enforcement agency and prison system” (p. 103). Recent post-conflict situations in which the issue whether to opt for amnesty or prosecution with regard to (international) crimes arose, such as Rwanda and Afghanistan, demonstrate that the judicial system may neither properly be equipped nor perceived as having the necessary impartiality after the conflict in order to prosecute key (political) actors in furtherance of transitional justice. While one will certainly agree with the author that international tribunals have major advantages, particularly in cases where states have granted (national) amnesties, they are dependent, in practical terms, on the cooperation of that very national state to surrender criminals absent any international law enforcement mechanism. In looking at the most recent and forceful precedents for the case of prosecution of international crimes through international tribunals, namely the ad hoc tribunals set up for the former Yugoslavia and Rwanda, O’Shea argues that neither amnesty nor trials before national courts were perceived as feasible options (pp. 109-115). With regard to the former, however, he argues that the ICTY in particular could theoretically give effect to a national amnesty law upon conviction (pp. 119-120). This interpretation of the Statute of the ICTY concerning the granting of pardon or
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commutation of sentence by the State in which the convicted person is imprisoned,1 would seem somewhat broad, particularly given the language of the Statute, which employs “pardon” and “commutation”, both well established terms in national legal systems, thus hinting to the requirement of an individual act by the Head of State or judicial organs and not legislative measures (amnesty laws) applicable ex ante to a range of addressees. Having dealt with the ad hoc tribunals, O’Shea examines the Statute of the International Criminal Court and its relation to the granting of amnesty (pp. 121-130). As rightly anticipated by the author, Article 16 of the ICC Statute,2 which allows for the temporal barring of investigations or prosecutions by the ICC upon the adoption of a Security Council Resolution to that effect, has proven to bear the potential to effectuate amnesties and impunity as demonstrated by Security Council Resolutions concerning the immunity of multilateral peace-keeping troops.3 Of course, the invocation of Article 16 of the ICC Statute to provide for ex ante impunity of peace-keeping forces has met considerable resistance by international law scholars.4 In his concluding remarks of Chapter 5, O’Shea argues for the need for a holistic approach concerning the relationship between (national) amnesties and the international legal order (pp. 131-133). He observes that “international and national laws on transitional justice are currently swirling in undefined and sometimes opposite directions” and argues for the need for harmonization (p. 132). Assessing the interface between the national and international legal order as the focus of O’Shea’s attempt to harmonize diverging tendencies respectively, Chapter 6 seeks to address the formal legal limits that are defined under humanitarian law, human rights treaties and customary international law with regard to transitional justice. He commences by investigating into the rights and obligation to prosecute war crimes, in both international and non-international armed conflicts. With regard to the latter, he skilfully outlines the various interpretations of the 1949 Geneva Conventions concerning the extension of the grave breaches regime, including the duty to prosecute prescribed therein, to Common Article 3 (pp. 143-151). In arguing in favour of interpreting the Convention and its grave breaches regime to encompass violations of Common Article 3, the author invokes the well-established means of interpretation provided for in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (p. 148-149). However, in drawing upon subsequent agreements and practice in the application of treaties, he seems to light-heartedly step over one decisive “subsequent agreement”, which would bear the potential to support an interpretation 1
Art. 28, ICTY Statute, UN-SC Res. 827 (1993), as amended.
2
Art. 16, Rome Statute of the International Criminal Court, 17 July 1998, 37 ILM 999 (1998), UN-Doc. A/CONF.183/9.
3
UN-SC. Res. 1422 (2002); UN-SC. Res. 1497 (2003).
4
See for example Mokhtar, The fine art of arm-twisting: The US, Resolution 1422 and Security Council deferral power under the Rome Statute, 3 International Criminal Law Review 295344 (2003).
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against the application of the grave breaches regime to non-international conflicts: Article 6, para. 5 of the 1977 Protocol II to the Geneva Conventions, relating to armed conflicts within the territory of one state, which encourages the granting of amnesties and thus mitigating against the duty to prosecute. The author furthermore bases his argument against the compatibility of amnesties in the context of international as well as internal armed conflict on recent developments with regard to the establishment of the ICC and concludes, in the reviewer’s view too hastily, that there is an “emerging if not emergent customary obligation to prosecute serious violations of the laws of war in internal conflict derived from recent state practice accompanied by opinio juris” (p. 151). He then proceeds with a reiteration of his major observations concerning the Azanian People’s Organization case before the Constitutional Court of South Africa, most of which would appear repetitive vis-à-vis the previous section in the monograph concerning examples of state practice (pp. 151-158). Despite the repetitiveness, the section finally includes a discussion of Article 6 para. 5 of 1977 Protocol II, where he argues that the Protocol did not enjoy wide ratification and also that that this could reflect the State Party’s intention to deviate from the customary obligation to prosecute (pp. 154-155). To say the least, it is highly doubtful whether 152 State Parties to the 1977 Protocol II could be considered as anything else than wide ratification, particularly taking into account the criteria for the emergence of customary law (out of treaty obligations) developed and applied by the ICJ in the North Sea Continental Shelf Cases. Moreover, there is some support in state practice and doctrine that there is no constant and uniform usage of prosecuting war criminals in the aftermath of civil wars, as indicated by the various amnesties granted in over 32 nations, including Sierra Leone, El Salvador, Haiti and South Africa.5 The lack of opinio iuris may be seen as evidenced by Article 6 paragraph 5 of Protocol II to the Geneva Conventions and confirmed by international law scholarship arguing that the duty to prosecute does not extend to internal strife.6 According to some wellestablished scholars in the field of transitional justice, when it aids in furthering the reconciliation process and restoring political balance after a civil war, the granting
5
Stahn, United Nations Peace-Building, Amnesties and Alternative Forms of Justice: A Change in Practice?, 845 IRRC 191, 193s (March 2002); Berat, South Africa: Negotiating Change in Impunity and Human Rights in International Law and Practice, 267, 271 (N. Roth-Arriaza ed., 1995); Peace Agreements Between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone, Nov. 30, 1996, UNDoc.S/1996/1034, http://www.usip.org/library/pa/sl/sierra_leone_10301996.html.
6
Simma & Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, 93 AJIL 302, 311 (1999); Meron, International Criminalization of Internal Atrocities, 89 AJIL 554, 559, 569 (1995); Greenwood, International Humanitarian Law and the Tadic Case, 7 EJIL 265, 276 (1996).
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of amnesty to all combatants is given priority over systematic prosecutions.7 In short, O’Shea’s reasoning remains subject to doubt. Chapter 7 continues with an analysis of the (il)legality of amnesties by “Addressing Impunity Through Human Rights Treaties and Related Instruments” (pp. 160-196). There he raises the fundamental question whether an amnesty law in itself amounts to a failure to observe human rights by violating a specific human right to judicial protection or a remedy (p. 165). In this regard, he argues that for example the South African model of conditional amnesty, properly implemented, would be largely consistent with the obligation to promote human rights provided that its purposes serves the overall objective of furthering a human rights culture by disclosing the crimes of the past (pp. 165-166). While amnesties may be consistent with the duty to promote human rights, O’Shea observes, on the basis of numerous decisions by human rights treaty bodies, that “the need to penalise serious violations of human rights is implicit in the notion of securing or ensuring their protection” (p. 167). However, he proposes that a “refined and limited amnesty law that contributed significantly to establishing democracy, excluded from its purview serious human rights violation and was accompanied by a thorough investigation of human rights violations, might be consistent with the provisions of international human rights instruments” (p. 171). While—viewed from the perspective of the obligation to provide an effective remedy—”impunity for serious human rights violations will normally lead to a breach of the obligation to judicial protection as derived from the ‘ensure and respect’ or ‘secure’ provision of a treaty” (p. 176), O’Shea argues in favour of construing an “implied term in all the general human rights treaties [which] envisages that rights or obligations in terms of the treaty may be limited for the preservation of the democratic order that forms the basis of the political and civil rights of all individuals within a society” (pp. 180-181). Naturally, such an implied term would be interpreted restrictively by having regard to the design of the amnesty provisions, in particular whether they aimed at securing the recognition and respect of the rights of victims by obtaining the truth through full disclosure of a perpetrator who has no fear of criminal retribution, as well as whether they served the general welfare in a democratic society by virtue of their effect in reconciling a nation which was previously torn apart (p. 181). Moreover, he (convincingly) argues that states possess a degree of discretion “in determining whether and the extent to which a limitation on a right and its incidental protection is justified in that it is necessary for the preservation of the democratic order” (p. 182). It follows that, “an amnesty law and the domestic decision implementing it must be judged on whether they are proportional to the legitimate
7
Roth-Arriaza, Conclusion: Combating Impunity in in Impunity and Human Rights in International Law and Practice, 296 (N. Roth-Arriaza ed., 1995); Stahn, United Nations Peace-Building, Amnesties and Alternative Forms of Justice: A Change in Practice?, 845 IRRC 191, 193 (March 2002); Lloret, Impunity in Cases of Serious Human Rights Violations: Argentina and Chile, 3 SpanishYIL 4, 6 (1993/4).
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aim of preserving democratic order [and] one should have regard to the importance of the right infringed and demanding judicial protection, and the consequences of providing effective judicial protection of the right for the preservation of the democratic order” (p. 183). Hence, O’Shea unfolds the core of his doctrinal approach to reconcile amnesties with international human rights by concluding that, “There is a general obligation to provide effective judicial protection for rights recognized in terms of human rights treaties. This obligation is a necessary corollary to the rights themselves. The state may decide how best to comply with this obligation providing that judicial protection is meaningful and effective. This will usually not be the case with respect to serious violations of human rights without some form of criminal sanction. An amnesty law may be valid despite this general obligation to ensure the protection of human rights if it is necessary for the preservation of the democratic order. This derives from an implied term in every general human rights treaty. The state has a margin of discretion in determining its needs in this respect, but this is subject to close international supervision to ensure that the law only extends to what is strictly required for the legitimate aim pursued.” (pp. 183-184) As rightly observed by O’Shea, treaties expressly requiring the prosecution or extradition of an individual accused of a human rights violation, a national law that facilitates impunity for that type of violation would be in breach of the treaty. (p. 184) This particularly applies to the Genocide Convention, the Apartheid Convention, and the Torture Convention, as well as the prohibition of Slavery (pp. 184-187). However, it would not necessarily apply to the prohibition of racial discrimination, “if it would be shown that [an amnesty law] contributed to, rather than inhibited the elimination of racial discrimination” (p. 188). After assessing additional treaties that deal specifically with the punishment of violations, such as treaties on terrorism, offences against diplomatic agents, drug offences, theft of nuclear material, money laundering, fraud, corruption and insider dealing (pp. 189–195), O’Shea proposes a set of guidelines for states concerning the relationship between amnesty laws and international treaty obligations based on his earlier (preliminary conclusions): “Generally speaking amnesty laws are not compatible with international obligations in terms of human rights treaties, and related instruments on specific international crimes. However, amnesty laws are not necessarily irreconcilable with these obligations. In order to be reconcilable with the treaty framework they should exclude from their purview serious violations of human rights, acts of transnational terrorism, crimes in relation to nuclear material and crimes against diplomatic agents, as defined in the relevant treaties. They should also exclude international human rights violations in toto, subject to limited exceptions. The exceptions would remain where it can be shown that amnesty for certain less serious violations of human rights violations is essential to the preservation of the democratic order and the scope of the amnesty is proportional to that legitimate aims” (pp. 195-196)
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Having assessed the compatibility of amnesty laws with human rights treaty obligations, the author sets out to define the “Parameters and Criteria for a General Norm Against Impunity”. (Chapter 8, pp. 197-228) In arguing that state practice is moving towards a customary right to claim jurisdiction based on the universality principle, the author makes brief reference to the principle of erga omnes as defined in the ICJ’s ruling in the Barcelona Traction Case. However, whether the nature of the latter principle, meaning that the obligation is owed to all states by virtue that all states have a legal interest in its adherence, may serve as corroboration of a customary rule of the obligation as such (the primary norm, to stick with the distinction adopted by the ILC in connection with its Articles on State Responsibility) remains, to the reviewer’s mind, doubtful given that the underlying (primary) obligation may still be based on other sources of international law, such as treaty instruments (the question being which states are entitled to invoke any violation). Unfortunately, in assessing whether a customary rule obliging states to prosecute international crimes exists, the author does not pay sufficient tribute to the distinction between customary rules evolving as a matter of state practice corroborated by opinio iuris and customary rules evolving on the basis of treaties, the latter forming a potentially important element in support of the former. Moreover, the author first argues that “it is in fact questionable whether the exercise of universal jurisdiction over international crimes does require a customary rule permitting it” (p. 202) and draws upon the infamous Lotus principles as spelled out by the Permanent Court of Justice in 1927, to then—in the reviewer’s opinion—rightly qualify the upholding of this principle in view of substantive doctrinal criticism. He resolves this dilemma by rejecting the Lotus principle with regard to domestic offences while upholding it in the context of crimes against international law (p. 204). To the reviewer’s mind, such a doctrinal distinction may stretch the dictum too far, particularly in view of the evolution of the concept of international crimes in the almost 80 years after the rendering of the judgment. Continuing his search for legal foundations giving rise to an obligation to prosecute, O’Shea briefly re-examines the rules on the responsibility of states for internationally wrongful conduct (pp. 209-213). The issues pertaining to the law of state responsibility and the failure to prosecute human rights violations vis-à-vis citizens of that state or aliens may have deserved more elaboration, particularly with regard to the distinction between violations of international obligations (the primary norms) and the rights to invoke such obligations on the basis of their erga omnes character. With regard to the value of municipal law criminalizing certain acts for purposes of identifying (their origin in) rules of customary international law, the author provides an overview of the various doctrinal attempts to explain the content of opinio iuris (pp. 219-226). He rightly adopts the modern understanding of opinio iuris as a manifestation of a sense of legal obligation, regardless of its origin (p. 224). However, this would not justify the assertion that the mere fact of domestic legislation or practice, for that matter, would automatically trigger the equation that the States actually felt obliged (opinio iuris) as a matter of international law. The author essentially asks the question to which extent municipal provisions, i.e. law punishing crimes, are caused by customary obligations. He concludes that “the most significant
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area of national practice for determining state practice accompanied by opinio juris involves those crimes under international law that have been introduced into domestic law as crimes which are distinct from ordinary domestic crimes. Opinio juris might be implied from the name of the offence, the time of the introduction of the penalty into domestic law or any link to international law expressed in the law itself or in the history of its introduction as found in parliamentary debates, explanations of international bodies etc” (p. 219). In evaluating the value of municipal law penalizing crimes under international law, the author enters the complex terrain of the relationship between treaty and customary obligations. In particular, he discusses the indicative value of municipal law enacted in discharge of treaty obligations as an expression of opinio iuris (pp. 219-226). As elaborated by O’Shea, depending on the interpretation of the concept of opinio iuris, one may either tend towards rejecting any role of municipal law enacted for the implementation of treaty obligations in the formation of custom as evidence of opinio iuris, or view it as an expression of States that a norm should become binding as international custom, which to the reviewer’s mind would require further evidence to that effect, such as indications in the travaux preparatoire etc. accompanying the enactment of that particular piece of domestic legislation. While the reviewer would find it difficult to interpret legislation adopted for the implementation of treaty obligations as a simultaneous expression of the customary nature of the norms enshrined in it, the fact that states enter into the specific treaty obligations in the first place may be seen as indicative of the state’s conviction that they are meant to form part of the corpus of customary international law. In contradistinction to O’Shea, the reviewer would claim that domestic legislation may be seen as indicative of state practice and opinio iuris in circumstances where the state has not ratified corresponding treaty instruments. In other words, the fact that states parties to treaty instruments have enacted domestic legislation should not easily be interpreted as opinio iuris for the (current or intended) existence of a rule of customary law, but rather one would need to inquire as to the intentions of the states when ratifying the treaty instruments in the first place in conjunction with the requirements expressed by the World Court in the North Continental Shelf cases. Having outlined his conceptual understanding of customary international law and its requirements, O’Shea proceeds with an analysis of ‘State Practice, Opinio Iuris and a Duty to Prosecute’ in Chapter 9 (pp. 228-266). In assessing the customary nature of the prohibition of torture (pp. 229-238) the author firstly examines the status of relevant treaty instruments and secondly corresponding domestic practice of states. He provides a comprehensive and scientifically valuable account of the status of relevant treaties and domestic legislation and confirms current the current doctrinal perception that “there is […] a very widespread state practice and opinio juris for a rule imposing a duty to prosecute alleged tortures” (p. 238). Similarly with regard the prohibition of genocide (pp. 238-242), in the case of which, according to O’Shea, “there is sufficient state practice and opinio juris to declare that the international community has collectively assented to the duty to punish genocide, and that this rule is of customary status” (p. 242). Concerning crimes against humanity, the author encounters more difficulties in establishing a corresponding customary
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rule to prosecute offences, but notes that “state practice and opinio juris […] evidenced an emerging customary duty to prosecute war crimes, crimes against peace and crimes against humanity” (p. 251). Shifting the focus on whether there exists a “broader obligation to prosecute or extradite all systematic and very serious violations of human rights” (pp. 255-259), O’Shea derives authority for opinio iuris and state practice from the Statute of the International Criminal Court to the effect that “at least a general obligation to prosecute the perpetrators of the most serious violations of human dignity in the eyes of the international community has emerged” as codified in the Statute (p. 257). Although he acknowledges that this obligation does not extend to controversial crimes under international law, such as the crimes of terrorism and aggression, it is unfortunate that the author to some extent seems to have abandoned his own doctrinal emphasis of basing conclusions on empirical analysis of state practice and opinio iuris in this regard. Moreover, the notion of “systematic and very serious violations of human rights” may be criticized as imprecise as it blurs the distinction between crimes under international law for which individuals may be held criminally responsible and human rights obligations, which are being owed primarily by the state to the people under its authority. The method of casting all categories of crimes punishable under international law into a general obligation to prosecute systematic and very serious violations of human rights apparently serves O’Shea well in disregarding the practice of amnesties as a potential indicator of inconsistent state practice and thus against the emergence of customary rules respectively. For example, while acknowledging that some prominent voices in doctrine have argued that the practice of amnesties would work against a customary rule of prosecuting crimes against humanity, the author argues that “the more broadly based rule derived from state practice in the form of widely representative treaties and a clear opinio juris, or the specific rules on torture and genocide […], may withstand the nature and degree of inconsistency created by municipal amnesties” (p. 260). To the reviewer’s mind, this line of reasoning displays its own weakness by brushing over the inevitable link between state practice and opinio iuris vis-à-vis specific categories of crimes against international law. An inductive approach, picking and choosing state practice and opinio iuris here and there would not seem, in doctrinal terms, to give adequate credit to the requirement of specificity. This is probably where he leaves the empirical ground to depart into the spheres into ends-driven argumentation. It becomes even more evident when he briefly re-addresses the issue of Protocol II of the Geneva Convention, where he states that its has been “erroneously interpreted as a call on states to give amnesty for international crimes committed in internal conflicts. The provision was intended to promote reconciliation through amnesty within the limits of international law and amnesty for grave breaches of humanitarian law would be inconsistent with the spirit of the Geneva Conventions. It is highly unlikely that the parties intended this clause to constitute a licence to immunize such crimes” (p. 261, emphasis added by the reviewer). One is left with the tempting question of what was then the intention of the drafters of the Protocol II? And more importantly, are the
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crimes covered by the Geneva Conventions not international crimes? In other words, would the clause not lose its entire sense if one followed this logic? The examples discussed by O’Shea in Chapter 3 and on pages 262-263, particularly the discussion of the South African case (AZAPO), would provide examples to the contrary. He simply attributes less significance to them by asserting that “some [of these laws and decisions] do not in fact constitute evidence of a belief on the part of these states that there is no maturing or existing obligation to prosecute international crimes” and that “they were concluded in circumstances where the state really had no other alternative” (p. 262). Provided that the latter were true, would that not signify that states are not prepared to concede their right to grant amnesties even for international crimes and therefore reject a general obligations to prosecute in such circumstances? One may just wonder how many exceptions and exceptional circumstances in which, as O’Shea puts it, the “rule of law was in political suspension” (p. 262), can be tolerated to operate against such a general rule. The logical flaw in such an approach lays in the sequencing of the emergence of such a norm: while his reasoning would seem coherent in a context in which the general rule had firmly arisen and subsequently became subject to certain exceptions, we are faced with a situation in which the general rule is being formed on the basis of a doctrinal consensus that the prosecution of international crimes should not be overridden by national amnesties amid frequent practice to actually pursue that very aim. Stating that “the older customary right to agree on amnesty [in the case of peace treaties] may not be viewed as inconsistent practice, but as surviving exception to the new customary duty in the particular moment in time of a society emerging from conflict or oppression” (p. 264) does not only serve as an splendid example of such retroactive reasoning, but also leaves the reader with the question of what if such exceptional circumstances are always invoked in these instances. Of course, one may always pull out the rabbit from the magical hat by referring to the Rome Statute as the cleansing manifestation of state practice and opinio iuris (p. 263). This, however, may leave the critical reader somewhat dissatisfied, particularly when bearing in mind that the Rome Statute has yet to demonstrate its implementability in practice. Of course, it is relatively simple to be critical in an area of international law, which remains subject to a somewhat divergence between international commitment and national practice. In view of recent, quite forceful, statements by the Secretary General relevant to the topic, such as the Secretary General’s report on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies,8 would at least strongly point towards the reinforced commitment to the prosecution of crimes punishable under international law and the emergence of a customary rule accordingly. But, at this point in time, to speak of the existence of such a rule may not adequately reflect current realities, nor satisfy the
8
The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies—Report of the Secretary General, UN-Doc. S/2004/616 (3 August 2004).
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need in post-conflict situations, such as the case of Afghanistan, in which the need for reconciliation and thus the need to accommodate political realities on the ground may prove to become the overriding objectives. Be it as it may, O’Shea concludes that, “in the current climate of state practice and opinio iuris, the current obligations to prosecute or extradite cover the most serious and systematic violations of human rights and humanitarian law” (p. 265). Interestingly, he adds that, “the duty to punish extra-judicial executions and customary crimes other than torture and genocide, while emergent, may be avoided through the negotiation of a peace treaty between states. This would also apply to crimes against humanity and serious violations of human rights. In the case of purely civil wars, an amnesty covering these crimes would need to be negotiated between the state and the international community as a whole, possibly through the agency of the UN.” (p. 265) In other words, the duty to prosecute for crimes other than torture and genocide would be negotiable despite the customary nature of the obligation—a compromise, which may certainly reflect the political needs and reality, but barely withholds the author’s previous findings as to the customary nature of these obligations. After dealing with the core questions as to the compatibility of domestic legislation providing for amnesties in relation to crimes punishable under international law and breaches of human rights obligations, O’Shea shifts the focus to the civil liability dimensions of amnesties in relation to the alleged duty to prosecute arising with regard to the former (Chapter 10, pp. 267-293). Recognizing that “there is no general international civil law which directly binds the individual and allows an international civil claim to be brought against an individual for his wrongs”, he assesses the issue of civil liability vis-à-vis from the perspective of international human rights law, “which requires that a victim of human rights violations receive reparations wither through national courts or directly from the state, otherwise having judicial competence” (p. 267). Accordingly, he sets out to analyze the “international normative limits on the extension of amnesty to civil liability and the corresponding state obligation to provide reparations” (p. 267). In this regard, he notes the value of reparation of victims for human rights violations in furtherance of reconciliation and transitional justice (p. 270). In fact, in cases in which crimes of the past have been addressed only decades after they actually had been committed, such as Austria and Germany, reparations become the primary vehicle for reconciliation for the immediateness to the crimes may have been lost over the years and financial measures may combine the need for official acknowledgement with a sometimes rather symbolic gesture to correct the wrong done in monetary terms. However, given the inadequacy of judicial institutions to deal with civil liability on a mass claims basis in furtherance of reconciliation, alternative means, such as compensation funds, may be preferable over lengthy and costly civil law suits. O’Shea’s assessment of whether there is a customary rule in favour of a right to compensation is that “there is a general obligation on the state to ensure that victims receive reparation for wrongs done to them deriving from the obligation to ensure rights in conjunction with the rights to fair trial and effective remedy. Nonetheless, the state does appear to have some latitude in the execution of this obligation” (p.
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277). In addressing the question, whether amnesties may fall within this latitude, he argues that, “there can be little doubt that amnesty from civil liability for human rights violations can only be reconciled with the exigencies of international law in so far as the state has furnished some mechanism of investigation and some form of reparations” (p. 278). He adds that, “in circumstances of radical transformation to democracy or emergence from all-consuming conflict, the role of law in facilitating the transition may require a reasonable limitation on the right of access to court providing that this is proportional to the legitimate aim pursued” (p. 284). While this approach would seem reasonable, also in light of recent compensation measures for wrongs committed in the past, his proposition that “an international tribunal would have to assess whether the extent of the measures is proportional to the legitimate aim pursued” and that “this would appear to be the position in terms of customary or treaty law” (p. 292), is not sustainable in the reviewer’s view. Neither O’Shea’s elaborations nor state practice would seem to actually support such a requirement. In the penultimate Chapter 11, O’Shea attempts to reconcile municipal amnesties with the international legal requirements based on the findings of the previous chapters acknowledging that “somehow, the requirements of national peace and reconciliation in particular conflicts and the radical solutions adopted need to be reconciled with the long-term requirements of international peace and justice” (p. 294). This tension cannot be overemphasized in practice, as manifested by numerous post-conflict situations where a balance needs to be struck between addressing the past and moving forward on the state-building agenda as a means of conflict prevention and reconciliation. O’Shea rightly observes that “there has been on one side a perceptible growth in the use of amnesty laws in the context of transition, and on the other an increasingly sophisticated criminal justice system to cater for a progressively inter-connected world” and argues that the South African model has given hope that “these two divergent developments might not in fact be irreconcilable” (p. 301, footnotes omitted). He sees the key to such reconciliation in “the creative development of amnesty jurisprudence by state organs” (p. 301), in particular through recourse to the link between the offences and the conflict, which—according to O’Shea—”is expressed in terms of the concept of the political offence, which is sufficiently central to the notion of amnesty and adequately flexible in meaning to serve as a useful basis for such attempts at reconciliation by national judicial structures” (p. 302). Referring to the South African model, he thus proposes that the notion of ‘political offence’ would exclude the most serious crimes against international law by applying the principle of proportionality, in particular with regard to the relationship between the act and the political objective pursued (p. 305). However, this attempt while desirable de lege ferenda predisposes that municipal legislator incorporate the mechanism of ‘political offence’ and shape it in a manner reconcilable with international standards, i.e. mindful of the obligations to prosecute serious crimes against international law. At the same time—as repeatedly stressed by O’Shea—individuals falling within the purview of municipal amnesties are not exempted from international ‘jurisdiction’ for their crimes (pp. 307-310). The latter aspect naturally entails the risk of diminishing the value of national amnesties as a tool to promote peace and reconciliation for
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societies in transition, given that individuals willing to exchange the truth for national immunity may still be open to international prosecution (p. 310). O’Shea accordingly assesses whether a case can be made for international recognition of amnesties based on state practice and the practice of international criminal tribunals to find that both would rather lean towards developing the law in a direction excluding impunity for crimes against international law (p. 312 and pp. 314-315). Similarly, he argues against construing Article 53 of the ICC Statute, which grants the Prosecutor some discretion to abstain from initiating investigations if there are substantial reasons to believe that such an investigation would not serve the interests of justice, in a broad manner that would accommodate the recognition of national amnesties (p. 318). According to O’Shea, the solution to resolve the intricate tensions between the need for amnesties in furtherance of national peace and reconciliation on the one hand and the international demand to end the culture of impunity on the other, is to be found in the international community’s endorsement of amnesties through special international agreements on a case by case basis (p. 319). Such endorsements would preserve the imperatives of global justice, while taking into consideration the need for amnesties within the context of transitory societies (p. 319). In furtherance of such agreements, he proposes that, “a set of guidelines should set out the conditions under which the international community could consider the prospect of the international recognition of an amnesty and the mechanism for ensuring legitimate representation of the interests of the international community as a whole” (p. 319). Spinning it further, he argues in favour of incorporating these guidelines in a Protocol to the Rome Statute (p. 319), which to the reviewer’s mind may be desirable, but quite hypothetical in terms of actual impact given the limitations it would impose on the states’ ability to provide for amnesties as a matter of their domestic jurisdiction. The substantive part of the book concludes with a summary of key principles aiming at the reconciliation of the needs served by amnesties with developments in international criminal law (Chapter 12, pp. 320-329). Based on his findings in previous chapters, O’Shea re-iterates his argument that “for an amnesty laws to comply with existing international law it should exclude from its scope a category of the most serious crimes against international law” and clarifies that “offences covered by the aut dedere aut iudicare principle, as well as those simply covered by an obligation to prosecute, should be exempted from the purview of the amnesty law” (p. 322). To the list of offences falling within the latter framework (genocide, crimes against humanity, etc.), he adds that, “offences should [also] be excluded where there is an emerging customary practice requiring such prosecution or because such offences are covered by the jurisdiction of the future International criminal Court. Here one should include gross violations of human rights not falling under any of the previous categories” (p. 323). Thus, “in broad terms, […] amnesty laws in principle should exclude all serious crimes against international law” (p. 323). However, based on his previous elaborations, O’Shea envisages that “there may be cases where the state can convincingly show that national prosecution of offenders who have committed serious international crimes would seriously jeopardize peace or national reconciliation” and thus argues that “it should be possible in such cases for an agreement to be reached between the
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parties to the conflict or former conflict and the legitimate representatives of the international community to exempt the state from its duty to prosecute the offenders” (p. 324). The United Nations, according to O’Shea, would be such a ‘legitimate representative’ with treaty making capacity (p. 324). To the reviewer’s mind, however, it is highly questionable whether such an agreement could and would be entered into by the United Nations organization. In particular, it would raise challenging issues in relation to the UN’s mandate and its reinforced efforts towards the ending of impunity. Moreover, one may conceive of possible (legal) complexities in cases in which the Security Council, the General Assembly and the Security Council may disagree on whether an amnesty would be appropriate. In the Appendix, O’Shea presents a “Draft Protocol to the Statute of the International Criminal Court on the Proper Limitations to Municipal Amnesties Promulgates in Times of Transition”, which reflects his key findings (p. 330-336). Overall, the author is to be congratulated for the comprehensive and analytical treatment of a subject, which unquestionably has proven to be the source for increasing tensions between the growing framework of international human rights as well as criminal law on the one hand, and national practice following armed conflict on the other. Despite minor criticisms, any practitioner or scholar interested in the topic will appreciate O’Shea’s effort to doctrinally analyze the controversial relationship between international law and municipal amnesties. His emphasis on the practice of states as well as the theoretical underpinnings in relation to amnesty laws, juxtaposing both to the applicable international legal framework, is in itself a valuable contribution, which bears potential to further promote an informed dialogue on the challenges that remain. While the author may, at times, be criticised for rushing ahead on the path of progressive development (criticism which anyone attempting to develop the ‘law’ will inevitably face), he offers an important doctrinal framework within which both, current attempts to end impunity for crimes against international law and the need for reconciliation may be reconciled. Unfortunately, it may be expected that the dynamics of human interaction will continue to fuel scholarship with cases of conflict and transitional (in-) justice. It is to be hoped, that academic contributions, such as the study of “Amnesty for Crime in International Law and Practice”, will form the doctrinal basis on which a comprehensive international legal regime in deterrence of serious violations of international law could be built. Michael Schoiswohl Programme Officer and Legal Advisor UNDP Afghanistan, Kabul
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Hans Rudolf Trüeb, Umweltrecht in der WTO. Staatliche Regulierungen im Kontext des internationalen Handelsrechts. Schulthess Juristische Medien AG, Zürich, 2001, xlix+540 pp., ISBN 3 7255 4245 7, CHF 148.00 The relationship between the world trading system and efforts to protect the environment has attracted a significant amount of public and scholarly attention in recent years. But despite the vast number of studies published on this topic over the last decade, there are still relatively few works that provide an analysis that is both comprehensive and thorough. One exception is Hans Rudolf Trüeb’s Habilitationsschrift, which examines several of these questions in considerable detail. Trüeb divides his thesis into eight chapters. After a brief introduction (Chapter 1, pp. 3-19), he addresses the relative importance attributed to environmental protection within the institutional setting of the WTO and the WTO agreements (Chapter 2, pp. 21-44). Having set the stage, Trüeb next gives a detailed account of the state of play regarding the application of central GATT provisions (Articles III, XI and XX) in relevant dispute settlement decisions under the “old” GATT 1947 and the WTO. This overview includes decisions until the 2000 panel report in EC—Asbestos, but unfortunately not important and much-discussed Appellate Body decision in this case.9 Nevertheless, this concise overview constitutes a good introduction for any scholar interested in this topic (Chapter 3, pp. 45-74). In Chapter 4, which can be regarded as a first central part of his book, Trüeb critically reviews this dispute settlement practice, touching upon pertinent procedural issues, the interpretative approach of panels and the Appellate Body, and questions of substantive law. Among the many issues discussed by the author in this Chapter, one should in particular draw attention to his conclusions regarding extraterritorial regulations and the discussion of production and processing methods (PPMs) in WTO law: Unlike several commentators, Trüeb rightly submits that following the Appellate Body decision in US-Shrimp, the dispute regarding the permissibility of measures by which a WTO-Member seeks to protect resources which are located outside any state’s territory has become obsolete (p. 100); this reading of the judgment has meanwhile been confirmed by the Appellate Body’s second ruling in this case which was handed down after the publication of Trüeb’s book.10 Moreover, Trüeb takes the position that different production measures may affect the determination of the likeness of products under Article III of the GATT (p. 120). As this conclusion arguably
9
WTO Appellate Body Report, European Communities—Measures Concerning Asbestos and Asbestos-Containing Products, WT/DS/135/AB/R, adopted 5 April 2001; on this case see e.g. R. Howse and E. Türk, The WTO Impact on Internal Regulations—A Case Study of the Canada—EC Asbestos Dispute, in de Burca and Scott (eds.), The EU and the WTO. Legal and Constitutional Issues 283 (2001).
10
WTO Appellate Body Report, US—Shrimp, WT/DS58/AB/RW, adopted 21 November 2001, para. 138.
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presupposes that greater weight is given to consumer preferences in determining whether two products are like, it is worth emphasizing, on the one hand, that a later judgment of the Appellate Body has in fact underlined that consumer preferences may be pivotal in decisions on likeness, 11 but also that this case did not concern process-based measures, so that the issue was at that stage not really settled. Trüeb for his part quite convincingly concludes that process-based and product-based trade measures should be treated in the same manner under WTO law (117 ff; see also 361 ff). Chapter 5, which provides an—easily comprehensible—economic analysis of environmental regulations, distinguishes this work from many other legal publications in the “trade and environment” field. The author challenges various assumptions that partly underlie WTO dispute settlement practice, such as, in particular, the priority given to multilateral approaches to environmental protection over unilateral efforts (134 ff, 144, 162), and the ranking of environmental measures, as has arguably been established in WTO practice. He argues that prohibitions, taxes and certificates are, inter alia, more efficient and transparent than measures such as labelling (194 ff). In his next step, Trüeb analyses the points of contact between international trade law and international environmental law. He begins with some brief remarks on the problem of how to deal with conflicts between multilateral treaties, emphasizing that while most writers deal superficially with this issue, considerations of conflicts of norms can be dispensed with whenever state measures are non-discriminatory (pp. 222-224). This leads him to consider in more detail how the interface between the international trade and environment regimes can be harmonized through interpretation. In this context, Trüeb devotes considerable attention to Article 31(3)(c) VCLT, according to which an interpreter shall take into account “any relevant rules of international law applicable between the parties to the dispute”. The author warns that this method may incur a risk of judicial activism (“Inversion” in the sense of Ph. Heck), since a panel may be tempted to choose from the “everflowing fund” of international instruments those which best suit the intended interpretative “result” (p. 227). In remarkable affinity to other recent studies on the temporal and personal scope of Article 31(3)(c) VCLT in WTO dispute settlement,12 Trüeb argues that WTO law should be interpreted in the light of international law norms that are in force at the time of a concrete dispute, but also that only such rules may be taken into account that are binding on all or at least the vast majority of WTO-Members (pp. 250, 252). Trüeb concludes this part of his treatise by examining the principles of international environmental law that might inform trade rules. He submits that concepts such as “common concern”, “common heritage of mankind”, the prohibition of significant transboundary harm, “sustainable development” and the like generally only give little
11
Appellate Body report, EC-Asbestos (precited), para. 87 ff.
12
J. Pauwelyn, Conflicts of Norms in Public International Law. How WTO Law Relates to other Rules of International Law 260-268 (2003).
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guidance on how to interpret WTO disciplines (pp. 253-309). Trüeb then attempts to provide a synthesis of his findings in the form of a comprehensive scheme according to which domestic environmental measures can be assessed in terms of their WTO conformity (chapter 7, pp. 313-395). At risk of doing injustice to the complete picture, three main points may be addressed. First, the author deals rather briefly with the problem of likeness and barely with the issue of “less favourable treatment”, i.e. the second criterion under Article III(4), although these issues have continued to engage WTO experts (pp 341 ff).13 This may be due to the fact that Trüeb presents himself as an advocate of the “aims and effects” test, which he seeks to justify on teleological grounds (345, 346 ff; see also 111-115). In order to avoid misunderstandings, one has to point out, first, that there is no commonly accepted version of the aims and effects test. Second, according to this test, as it was originally applied in two GATT 1947 panel reports, two products were deemed to be unlike if a regulatory measure which imposed different treatment on these products pursued a non-economic aim. Thus, this test risked mixing up the issues of determining likeness, identifying less favourable treatment and deciding on the justification of a measure which pursues non-protectionist goals. It must be emphasized that Trüeb quite obviously does not have this problematic “original” version of the test in mind when he advocates an examination of “aims and effects”. Trüeb in fact submits that Article XX, the general exception clause of the GATT, should be read as a guide to the interpretation of other GATT provisions, not as a self-standing norm of justification (“Rechtfertigungsgrund”, p. 350). While one can indeed speculate about different ways to introduce a rule of reason into WTO disciplines, it must be stressed that WTO jurisprudence has so far consistently rejected attempts to revive the aims and effects test, and treats Articles III and XX as distinct norms. Finally, while Trüeb briefly addresses the TBT Agreement in various instances, one would have welcomed a more extensive treatment of the intricate issues involved in the relationship between GATT and this agreement, which is of particular interest in the “trade and environment” area.14 On the other hand, one must concede that such additional analyses might have overloaded this treatise. Trüeb concludes his study by examining a series of domestic regulations in the light of WTO law. Although this final chapter is devoted to Swiss law, the author’s
13
Cf e.g. the much debated ruling of the Appellate Body in EC-Asbestos (above) concerning likeness and less favourable treatment in paragraphs 87 ff and 100; on this cf e.g. L. Ehring, “De Facto Discrimination in World Trade Law. National and Most-Favoured-Nation Treatment—or Equal Treatment?”, 36(5) Journal of World Trade 921 (2002) with further references.
14
For a discussion see G. Marceau and J. P. Trachtman, “The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade : a map of the World Trade Organization law of domestic regulation of goods”, 36 Journal of World Trade 811 (2002).
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considerations can also provide useful guidance for researchers and policy makers in other countries regarding the problems that domestic regulations might cause from the viewpoint of the international trading system (chapter 8, pp. 397-514). Trüeb’s study is completed by succinct summaries of fourteen relevant dispute settlement reports in an annex (pp. 515-540). In sum, this book constitutes a very extensive and detailed study of several pivotal problems stemming from the interplay of world trade law, international environmental law and domestic efforts to protect the environment. The work does not appear to have been much influenced by conventional (often problematic) “GATT wisdom” and presents instead a refreshing variety of quite convincing self-reliant theses. In several regards, this book has not been outdated, but actually confirmed by recent developments in WTO dispute settlement. One may therefore hope that this study, although it is written in German, will receive the attention that it merits. Erich Vranes Vienna University of Economics and Business Administration
Erika de Wet & André Nollkaemper (eds.), Review of the Security Council by Member States. Intersentia, Antwerp / Oxford / New York, 2003, ISBN 90-5095307-7, xvi+159 pp., EUR 34.00 This book is the remarkable result of a Round Table on Judicial Review of the Security Council by Member States after 11 September 2001 organized by the Amsterdam Center for International Law in autumn 2002. It contains a collection of very interesting and—to the benefit of the reader—sometimes highly controversially discussed issues. While Erika de Wet starts out with a “principled view” on the limiting role of human rights on the enforcement powers of the Security Council, Anthony Aust replies with a “practitioner’s view” diminishing the hopes of those who seek to promote legal constraints to the Security Council’s broad powers. In order to prepare the groundwork for judicial review, Erika de Wet argues that the Security Council is bound by basic human rights obligations as a result of UN Charter obligations (Article 1 para. 3 and Article 2 para. 2 UN Charter) and of a concept of equitable estoppel. Interestingly, she does not discuss customary international law or general principles as alternative grounds for human rights obligations of the Security Council. This absence is even more surprising, given the fact that she continues to discuss a potential jus cogens status of the right to a fair hearing—one of the most relevant human rights in the post-September 11 era, considering the fact the Security Council has taken a host of targeted sanctions depriving individuals of their financial means through the freezing of assets. De Wet rightfully criticizes the absence of any review mechanism vis-à-vis Security Council imposed freezing orders. In her view, the measure of last resort to correct potentially ensuing human rights violations lies in a refusal to
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implement such Security Council decisions on the part of the member states. She bases her argument on one of the two possible—and highly controversial—readings of Article 25 UN Charter, siding with those who prefer to regard the phrase “in accordance with the present Charter” as limiting the members’ obligation to carry out Security Council decision to those decisions which have been adopted in conformity with the Charter. Anthony Aust rejects such a decentralized review of Security Council decisions by member states, which would undermine the collective security arrangement of Chapter VII of the UN Charter, as “without legal basis”. He also questions the asserted jus cogens character of the right to a fair hearing and doubts whether there would be any legal restrictions for the Security Council to depart from international law. In his view, the checks and balances within the Security Council exercised through its heterogeneous membership are the most important safeguard against abusive practices. With regard to the anti-terrorism measures adopted by the Security Council Aust notes that the amended resolutions now provide for humanitarian exceptions and for a challenge procedure according to which persons listed as terrorists may be delisted again. Pieter-Jan Kuijper highlights the role of the EU/EC in implementing Security Council resolutions. He provides an overview of the history of Community measures which has finally led to Articles 301 and 60 EC Treaty. But he also draws attention to numerous remaining problems, ranging from the question whether individual travel bans can be based on Article 301 to the member state practice of duplicating EC legislation. P.J.G. Kapteyn concludes the EU/EC chapter by looking at the role of the ECJ in implementing Security Council resolutions, or rather the limited role of the Court in protecting against human rights violations by the Security Council. Though he pleads for a right of UN members to disregard Security Council resolutions in violation of human rights, he is aware of the difficult search for the appropriate standard to apply in such review. Vera Gowlland-Debbas next looks at the domestic implementation of UN sanctions, focusing already on judicial review of national implementation measures—a topic which is broadened by Matthias Herdegen in his contribution on national court review of Security Council resolutions. Herdegen is clearly inspired by the German Constitutional Court’s Solange approach to ensuring human rights control of acts of international organizations. The following chapters move the discussion into more specific areas dealing with concrete examples of review of UN measures. Per Cramér starts to discuss the Swedish experience with targeted sanctions, in particular the Taliban sanctions, which affected a number of Swedish nationals of African origin whose assets were frozen as a consequence of Security Council resolutions. Their challenge to the EC implementing legislation is still pending before the ECJ and the practical solution of de-listing some of the affected persons has not proven very satisfactory. Johan G. Lammers provides a short overview of the Dutch court proceedings concerning a challenge to the legality of the ICTY brought by Slobodan Milosevic. Though the Dutch national court did not abstain from hearing this action in principle, it followed closely the
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deferential reasoning of the ICTY’s Tadic decision on jurisdiction. Finally, Joseph Marko briefly outlines the restrictive constitutional review practice of the Constitutional Court of Bosnia and Herzegovina, in particular vis-à-vis acts of the UN High Representative. The final chapter of this book contains Jose E. Alvarez’ thoughtful essay on problems and policy options of the Security Council’s war on terrorism. He paints the broader picture, underlining the Security Council’s turn to law-making in its counter-terrorism resolutions, and devoting considerable space to the question of the Security Council’s powers. He shows skepticism with regard to possible human rights limitations on the Security Council and seems to accept that the Council may override customary international law. On the issue of judicial review Alvarez surveys a number of strategies that could be employed by national courts when faced with a challenge to the legality of UN Security Council resolutions. He argues that courts could use different standards of review and that alternatives to judicial review might produce equally useful outcomes. In sum, this collection of Round Table papers serves as a highly topical contribution to the ongoing debate about the Security Council’s powers in the war against terrorism, in particular from a human rights perspective. It is clear that many of the problems addressed in this book will find one or the other answer in actual judicial practice in the future. It was a worthy undertaking to try to provide some guidance in this respect on such a high level of scholarship. August Reinisch University of Vienna
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Book Notes
Patrick Capps/Malcolm Evans & Stratos Konstantinidis (eds.), Asserting Jurisdiction. International and European Legal Perspectives. Hart Publishing, Oxford & Portland, Oregon, 2003, ISBN 1-84113-305-1, xxix+313pp., GBP 48.00 This book results from a symposium held at the School of Law at the University of Bristol. It collects a range of different essays loosely held together by the overarching theme of asserting jurisdiction. Contrary to what one might expect, this is not a book devoted solely to the question of limits to the assertion of jurisdiction, in particular, to the exercise of extraterritorial jurisdiction. Rather, it comprises diverse international and European legal perspectives on very different aspects of jurisdiction, as the subtitle to this volumes suggests. It starts with theoretical reflections by Sir Franklin Berman and Iain Scobbie on the public international law side and continues with Jonathan Hill’s essay on the exercise of jurisdiction in private international law. This introductory part is followed by a set of contributions broadening the jurisdictional issues by focusing on the approaches to the assertion of jurisdiction by political bodies. Under this heading, Trevor Hartley looks at the relationship between national law, international law and EU law and Stephen Hyett at the member states’ competence and jurisdiction under the EU/EC Treaties. It is followed by a mixed order of Brenda Sufrin discussing the potential of a multilateral regulation of competition, Colin Warbrick elaborating on the (legislative) jurisdiction of the UN Security Council and Christopher Greenwood reflecting on the different jurisdictions dealing with NATO’s military action in the Kosovo. It is only the final set of essays that deal with the assertion of jurisdiction by adjudicative bodies: Hazel Fox on the approaches of domestic, Judge Abdul Koroma on the ICJ, Dominic McGoldrick on the Human Rights Committee, Alan Boyle on the Law of the Sea Tribunal, Stephen Weatherill and John Usher on the ECJ. Despite the rather random selection, this book provides fascinating insights into the various problems resulting from a clear tendency to reduce obstacles to the assertion of jurisdiction, both on the international level where the “proliferation” of courts and tribunals has contributed to increased international adjudication as well as on the national level where hindrances to the exercise of jurisdiction in the form of immunity and various non-justiciability doctrines have been considerably reduced. This makes the present volume a worthy addition to the existing scholarly writings on procedural issues. August Reinisch University of Vienna
Austrian Review of International and European Law 8: 593-596, 2003. ©2005 Koninklijke Brill NV. Printed in the Netherlands.
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Nina H.B. Jørgensen, The Responsibility of States for International Crimes, Oxford 2000 (hardcover), 2003 (paperback), ISBN 0-19-925800-7, 331 p. This book was mainly inspired by Chapter III of the Articles on State responsibility as drawn up by the ILC and taken note of by the General Assembly. This chapter was a successor to famous article 19 of the first reading text on State responsibility regarding international crimes. The final text dropped this expression and replaced it by serious breach of an obligation arising under a peremptory norm of general international law. The author starts from a historical perspective of the concept of “State Responsibility” since the end of WW I and juxtaposes it to the development of individual responsibility. In her view until WW II the idea of collective responsibility prevailed whereas after WW II this concept was considered rather unworkable and replaced by individual responsibility. She concentrates on the development of State responsibility for crimes such as genocide, apartheid and those addressed by first reading text of draft article 19 of the ILC on State responsibility. The next parts reveals her basic consideration, namely to attempt to derive State responsibility from some sort of collective responsibility or responsibility of organizations such as spelled out by the Nuremberg trials and judgments. The discussion of the legal nature of such crimes proceeds from the notion of ius cogens. However, the conclusion that international crimes are conceptually at the pinnacle of the hierarchy of norms (p. 92) is certainly a sign of bona voluntas, but can hardly be derived from the existing system of international law, although her further conclusion that human rights and humanitarian law originate from elementary considerations of humanity are to be supported. The further deliberations on the possibility and intricacies of State crimes (obviously still under the influence of draft article 19 of the first reading text of the ILC on international crimes although she discusses also the final version of these articles) deal in particular with the problems and modalities of punishing a State, including the problem of punitive damages. As to this intensively discussed issue she rightly concludes that under present circumstances punitive damages can hardly be identified. Despite the difficulties to elaborate the ramifications the author then concentrates on criminal responsibility of States and examines the possible institutional mechanisms to impose such responsibility on States, including judicial as well as political organs. According to her view, the concept of State responsibility “is an emergent principle of international law”, is crystallizing in particular in the imposition of the crime of genocide on States in some recent international judgments. Although the intentions of the author are to be appraised, the conclusions reached by her are not very convincing. The reader misses in particular a discussion of basic issues of criminal law and its particular features in application to States. One should also distinguish between the questions of whether States can be held responsible for a breach of the prohibition of genocide or of aggression and of whether such a breach amounts to an international crime. It seems that the author, during her work, was surprised by the fact that the ILC dropped the term “international crime” so that she
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was obliged to adjust her work to the new terminology. Nevertheless, this treatise merits a reading due to its thorough and scholarly elaboration and discussion of an issue that will still attract the interest of international practice and theory. Gerhard Hafner University of Vienna
Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals. Oxford University Press, Oxford, 2003 (hardback), 2004 (paperback), ISBN 019-925857-0 (hardback), 0-19-927428-2 (paperback), 418 pp., GBP 67.50 (hardback), 25.00 (paperback) With this first book in the new Oxford International Courts and Tribunals Series Yuval Shany has written a most timely treatise on one of the acute problems of international dispute settlement. With the “proliferation” of international courts and tribunals the likelihood not only of jurisdictional overlap, but also of conflicting outcomes increases. In his well-balanced and finely reasoned PhD thesis Yuval Shany addresses both aspects with an admirable in-depth scrutiny and accuracy. He first provides a detailed account of the potential of jurisdictional overlap between general and specialized as well as between universal and regional dispute settlement mechanisms, focusing on courts and tribunals but including human rights organs such as the UN Human Rights Committee. His very thorough analysis of existing the case-law reveals that jurisdictional overlap is not only a potential but has already materialized in various cases such as the Swordfish dispute, simultaneously pending before a WTO Dispute Settlement Panel and the ITLOS, or the British-Irish MOX dispute, before two different Permanent Court of Arbitration panels and the ECJ. In a highly theoretical section Shany then addresses the conceptual underpinnings of when we may correctly speak of competing jurisdictions. He finds them in the assertion that the various dispute settlement mechanisms available do not constitute separate, “self-contained” regimes but rather form part of a larger more or less coherent system of international courts and tribunals. On this basis Shany sets out to investigate the policy issues surrounding forum shopping, parallel and consecutive proceedings. He basically argues that, despite its negative connotation, forum shopping may not be an inadequate expression of sovereign autonomy as long as it is not abusively practiced, does not lead to a “race to the courthouse”, and does not remove jurisdiction from a highly specialized, exclusive forum. With regard to a multiplication of proceedings Shany strongly supports the use of avoidance doctrines such as lis pendens and res judicata – which in his view embody already general principles of law. In the next section the international lex lata and lex ferenda of jurisdictional overlap is discussed. The author first thoroughly reviews the existing “competition-regulating norms” contained in treaties and others instruments governing the jurisdiction of international courts and tribunals. In this context he discusses exclusive jurisdiction
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provisions such as those found in the EC Treaties (with regard to the ECJ) or in the WTO Dispute Settlement Understanding (with regard to WTO Panels and Appellate Body) and more flexible ones such as those governing the jurisdiction of the European Court of Human Rights. These are compared with other provisions offering nonexclusive (e.g. the ICJ) or even just residual (e.g. ITLOS) jurisdiction. In general, such jurisdiction regulating norms are far more frequent than provisions aimed at reducing the likelihood of multiple proceedings. Few instruments contain express lis pendens and/or res judicata clauses while some human rights instruments provide for electa una via, according to which once a procedural avenue has been chosen alternative ones are excluded. Shany demonstrates that the scarcity of express norms in the latter field may be compensated for by judicial reliance on unwritten lis pendens and res judicata rules. In particular, the latter has been identified by many international courts and tribunals as a general principle of law applicable in international dispute settlement. The author concludes his study with the policy recommendation that with the increase of potential overlap measures aimed at mitigating the multiplicity of proceedings should be adopted in order to protect the legitimacy of the international legal system. This book deserves attention not only because of the timeliness the topic but also on account of the excellent academic treatment of the subject. Shany analyses the existing international law and the policy issues involved with thoroughness and precision. The result is an impressive work of legal scholarship. August Reinisch University of Vienna
