Max Planck Yearbook of United Nations Law Volume 4 2000
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Max Planck Yearbook of United Nations Law Volume 4 2000 Editors Jochen A. Frowein Riidiger Wolfrum Assistant Editor Christiana E. Philipp
Max-Planck-Institut fur auslandisches offentliches Recht und Volkerrecht
K L U W E R LAW INTERNATIONAL THE HAGUE • LONDON • BOSTON
A C.I.P. Catalogue record for this book is available from the Library of Congress
Series ISBN 90-411-0730-4 ISBN 90-411-1403-3
Published by Kluwer Law International, P.O. Box 85889, 2508 CNThe Hague,The Netherlands. Sold and distributed in North, Central and South America by Kluwer Law International, 675 Massachusetts Avenue, Cambridge, MA 02139, U.S.A. In all other countries, sold and distributed by Kluwer Law International, Distribution Centre, P.O. Box 322, 3300 AH Dordrecht,The Netherlands.
This book should be cited as follows: Max Planck UNYB
Printed on acid-free paper
All Rights Reserved © 2000 Kluwer Law International / First published 2000 Kluwer Law International incorporates the publishing programmes of Graham &Trotman Ltd, Kluwer Law and Taxation Publishers, and Martinus Nijhoff Publishers. No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner. Printed in the Netherlands.
Contents List of Contributors Abbreviations Zemanek, Karl, New Trends in the Enforcement of erga omnes Obligations
VII XI
1
Eitel, To no, The UN Security Council and its Future Contribution in the Field of International Law
53
Neuhold, Hanspeter, Collective Security After "Operation Allied Force"
73
Francioni, Francesco, Of War, Humanity and Justice: International Law After Kosovo
107
Lyman, Princeton N., Saving the UN Security Council — A Challenge for the United States
127
Charnovitz, Steve, The International Labour Organization in its Second Century .... 147 Yee, Sienho, The Time Limit for the Ratification of Proposed Amendments to the Constitutions of International Organizations
185
VI
Max Planck UNYB 4 (2000)
Treves, Tullio, Advisory Opinions of the International Court of Justice on Questions Raised by Other International Tribunals
215
Bank, Roland, Cooperation with the International Criminal Tribunal for the Former Yugoslavia in the Production of Evidence
233
van Boven, Theo, The Petition System under the International Convention on the Elimination of All Forms of Racial Discrimination
271
Rudolf, Beate, The Thematic Rapporteurs and Working Groups of the United Nations Commission on Human Rights
289
Gautier, Philippe, The Reparation for Injuries Case Revisited: The Personality of the European Union
331
Roben, Volker, Institutional Developments under Modern International Environmental Agreements
363
Wolfram, Riidiger/Afate, Nele, The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity
445
Vigni, Patrizia, The Interaction between the Antarctic Treaty System and the Other Relevant Conventions Applicable to the Antarctic Area.... 481 Khan, Rahmatullah, United Nations Peace-keeping in Internal Conflicts
543
Book Reviews
583
List of Contributors Bank, Roland Dr. iur., Fellow at the Max Planck Institute for Comparative Public Law and International Law van Boven, Theo Professor of International Law, University of Maastricht; Member of the Committee on the Elimination of Racial Discrimination until 1999 Charnovitz, Steve Attorney, Wilmer, Cutler & Pickering, Washington, D.C.; before joining the firm in 1998, Director of the Global Environment & Trade Study at Yale University. From 1991-1995 Policy Director of the U.S. Competitiveness Policy Council Eitel, Tono Ambassador (ret.); Professor of Public International and European Law; External Scientific Member of the Institute Francioni, Francesco Dr. iur. (Florence); LL.M. (Harvard); Professor of International Law and Vice-Rector (University of Siena); Visiting Professor (Oxford University) Gatitier, Philippe Deputy Registrar, International Tribunal for the Law of the Sea; Visiting Professor, Catholic University of Louvain (Louvain-la-Neuve)
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Khan, Rahmatullah Formerly Professor and Rector Jawaharlal Nehru University, New Delhi; Editor-in-Chief, Indian Journal of International Law; Guest Fellow at the Institute Lyman, Princeton N. Currently Senior Fellow, United States Institute of Peace. Formerly United States Assistant Secretary of State for International Organization Affairs, 1996-1998. In this respect involved in the negotiations concerning the restructuring of the Security Council from mid 1996 to the end of 1998. Earlier positions include United States Ambassador to South Africa 1992-1995; Director of US Refugee Programs 1992-1995 and Ambassador to Nigeria 1989-1992 Matz, Nele Ph.D. candidate at the Faculty of Law, University of Heidelberg Neuhold, Hanspeter Professor of International Law and International Relations, University of Vienna Roben, Volker Dr. iur., Fellow at the Max Planck Institute for Comparative Public Law and International Law Rudolf, Beate, Dr. iur., Researcher at the Law Faculty of the Heinrich-Heine University Diisseldorf; Lise-Meitner Fellow of the Land of North-Rhine Westphalia Treves, Tullio, Professor of International Law, University of Milan; Judge at the International Tribunal for the Law of the Sea, Hamburg
List of Contributors
IX
Vigni, Patrizia Ph.D. in International Law (University of Siena); Magister Juris (University of Oxford) Wolfrum, Riidiger Dr. iur., Professor of Public Law, University of Heidelberg; Director at the Max Planck Institute for Comparative Public Law and International Law; Judge at the International Tribunal for the Law of the Sea, Hamburg Yee, Sienho Visiting Assistant Professor of Law, Northwestern University School of Law, Chicago, and Hong Kong Oxford Scholar, St. Hugh's College, Oxford Zemanek, Karl Emeritus, Professor of International Law and International Organizations, University of Vienna; Member of the Institut de Droit International
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Abbreviations AD A.F.D.I. AJDA AJIL Am. U. J. Int'l L. & Pol'y
Am. U. L. Rev. Ami. Der. Internac. Arch, de Philos. du Droit Aus Pol. & Zeitgesch. Austrian J. Publ. Int. Law Austr. Yb. Int'l L.
AYR Brook. J. Int'l L. B. U. Int'l L. J. BVerfGE BYIL Cal. W. Int'l L. J.
Gal. W. L. Rev. Case W. Res. J. Int'l L.
Annual Digest of Public International Law Cases Annuaire Frangais de Droit International Actualite Juridique-Droit Administratif American Journal of International Law American University Journal of International Law and Policy American University Law Review Anuario de Derecho International Archives de Philosophic du Droit Aus Politik und Zeitgeschichte Austrian Journal of Public International Law Australian Yearbook of International Law Archiv des Volkerrechts Brooklyn Journal of International Law Boston University International Law Journal Decisions of the German Federal Constitutional Court British Yearbook of International Law California Western International Law Journal California Western Law Review Case Western Reserve Journal of International Law
XII
Max Planck UNYB 4 (2000)
CLJ Cambridge Law Journal Common Market Law Review CML Rev. Colo. J. Int'l Envtl. L. & Pol'y Colorado Journal of International Environmental Law and Policy Colum. Hum. Rts. L. Rev. Columbia Human Rights Law Review Colum. J. Transnat'l L. Columbia Journal of Transnational Law Colum. L. Rev. Columbia Law Review Comunita Internaz. La Comunita Internazionale Conn. J. Int'l L. Connecticut Journal of International Law Cornell International Law Journal Cornell Int'l L. J. CYIL Canadian Yearbook of International Law Denver Journal of International Law Den. J. Int'l. L. & Pol'y and Policy German Society of Public International DGVR Law Dick. J. Int'l L. Dickinson Journal of International Law Duke Journal of Comparative and InDuke J. Comp. & Int'l L. ternational Law EA Europa-Archiv Economic and Social Council ECOSOC editor ed. eds editors European Free Trade Association EFTA exempli gratia e.g. European Journal of International Law EJIL Environmental Law Reports Envtl. L. Rep. EPIL Encyclopedia of Public International Law et alii et al. et sequentes et seq. et cetera etc. EuGRZ Europaische Grundrecbte Zeitschrift Food and Agriculture Organization FAO
Abbreviations
XIII
Fordham International Law Journal Foreign Affairs Foreign Policy Georgia Journal of International and Comparative Law Georgetown International EnvironGeo. Int'l Envtl. L. Rev. mental Law Review Geo. L. J. Georgetown Law Journal Geo. Wash. J. Int'l L. & Econ. George Washington Journal of International Law and Economics Geo. Wash. L. Rev. George Washington Law Review GYIL German Yearbook of International Law Harv. Int'l L. J. Harvard International Law Journal Harv. L. Rev. Harvard Law Review Hastings Int'l & Comp. L. Rev. Hastings International and Comparative Law Review HRLJ Human Rights Law Journal HRQ Human Rights Quarterly HuV-I Humanitdres Volkerrecht - Informationsschrift IAEA International Atomic Energy Agency ibid. ibidem; in the same place IBRD International Bank for Reconstruction and Development ICAO International Civil Aviation Organisation International Court of Justice ICJ ICLQ International and Comparative Law Quarterly idem; the same id. i.e. id est; that is to say IFAD International Fund for Agricultural Development IJIL Indian Journal of International Law ILA International Law Association Fordham Int'l L. J. Foreign Aff. Foreign Pol'y Ga. J. Int'l & Comp. L.
XIV
ILC ILCYB ILM ILO ILR ILSAJ. Int'lL.
IMF IMO Ind. J. Global Legal Stud. Int'l Aff. Int'l Law. Int'l Rev. of the Red Cross Iowa L. Rev. IP Isr. L. R. Isr. Y.B. Hum. Rts. J. Int'l Aff. JPR JWT LJIL LNTS McGillL.J. Mich. J. Int'l L. Mich. L. Rev. Mil. L. Rev. NAFTA NATO NILR NJCL Nord. J. Int'l L.
Max Planck UNYB 4 (2000)
International Law Commission Yearbook of the International Law Commission International Legal Materials International Labour Organization International Law Reports ILSA Journal of International Law (International Law Students Association) International Monetary Fund International Maritime Organization Indian Journal of Global Legal Studies International Affairs The International Lawyer International Review of the Red Cross Iowa Law Review Die Internationale Politik Israel Law Review Israel Yearbook on Human Rights Journal of International Aff airs Jahrbuch fur internationals Recht Journal of Peace Research Journal of World Trade Leiden Journal of International Law League of Nations Treaty Series McGill Law Journal Michigan Journal of International Law Michigan Law Review Military Law Review North American Free Trade Area North Atlantic Treaty Organization Netherlands International Law Review National Journal of Constitutional Law Nordic Journal of International Law
Abbreviations
XV
NQHR
Netherlands Quarterly of Human Rights
NYIL
Netherlands Yearbook of International Law New York University Journal of International Law and Politics New York University Law Review
N.Y. U.J. Int'lL. &Pol. N. Y. U. L. Rev.
Ocean & Coastal L. J. ODILA
Ocean and Coastal Law Journal Ocean Development and International Law
OZ6RV
Osterreichische "Zeitschrift fiir offentliches Recht und Volkerrecht Official Journal of the European Communities
OJEC Pace Int'l Law Rev. PCIJ
Pace International Law Review Permanent Court of International Justice
Pol. Sci.
Political Science
RADIO
Revue Africaine de Droit International et Compare Revue Beige de Droit International
RBDI RdC
Recueil des Cours de I'Academic de Droit International
RDI
Revue de Droit International, de Sciences Diplomatiques et Politiques
RECIEL
Review of European Community and International Environmental Law
REDI
Revista Espanola de Derecho Internacional
Rev. Dr. Mil. Dr. Guerre
Revue de Droit Militaire et de Droit de la Guerre
Rev. ICR
Revue Internationale de la Croix Rouge
RGDIP
Revue Generale de Droit International Public
Riv. Dir. Int.
Rivista di Diritto Internazionale Revue Trimestrielle de Droit Europeen
RTDE
XVI
RUDH San Diego L. Rev. Stanford J. Int'l L. SZIER/RSDIE
Temp. Int'l & Comp. L. J. Tex. Int'l L.J. Tex. L. Rev. Transnat'l. L. & Contemp. Probs Tul. Envtl. L. J. Tul. J. Int'l & Comp. L. UCLAJ. Envtl. L.&Pol'y
UCLA J. Int'l L.& Foreign Aff. UCLA Pac. Basin L. J. UNCIO UNCITRAL UNCTAD UNDP UNEP
UNESCO
Max Planck UNYB 4 (2000)
Revue Universelle des Droits de L'homme San Diego Law Review Stanford Journal of International Law Schweizerische Zeitschrift fiir internationales und europaisches Recht/Revue Suisse de Droit International et de Droit Europeen Temple International and Comparative Law Journal Texas International Law Journal Texas Law Review Transnational Law and Contemporary Problems Tulane Environmental Law Journal Tulane Journal of International and Comparative Law University of California Los Angeles Journal of Environmental Law and Policy University of California Los Angeles Journal of International Law and Foreign Affairs University of California Los Angeles Pacific Basin Law Journal United Nations Conference on International Organization United Nations Commission on International Trade Law United Nations Conference on Trade and Development United Nations Development Programme United Nations Environment Programme United Nations Educational, Scientific and Cultural Organization
Abbreviations
UNFPA UNHCR UNICEF UNIDO UNITAR UNJYB UNOSOM UNPROFOR UNRWA
UNTS UNU UNYB UPU Va.J. Int'lL. Va. L. Rev. Vand. J. Transnat'l L Vol. VRU W. Comp. Wash. L. Rev. WFP WIPO WMO WTO Yale Hum. Rts. Dev. L. J.
YaleL.J.
XVII
United Nations Population Fund United Nations High Commissioner for Refugees United Nations Children's Fund United Nations Industrial Development Organization United Nations Institute for Training and Research United Nations Juridical Yearbook United Nations Operation in Somalia United Nations Protection Force in (former) Yugoslavia United Nations Relief and Works Agency for Palestine Refugees in the Near East United Nations Treaty Series United Nations University Yearbook of the United Nations Universal Postal Union Virginia Journal of International Law Virginia Law Review Vanderbilt Journal of Transnational Law Volume Verfassung und Recbt in Ubersee World Competition Washington Law Review World Food Programme World Intellectual Property Organization World Meteorological Organization World Trade Organization Yale Human Rights & Development Law Journal Yale Law Journal
XVIII
ZaoRV ZRP Z. vgl. R. Wiss.
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Zeitschrift fiir auslandisches offentliches Recht und Volkerrecht Zeitschrift fiir Rechtspolitik Zeitschrift fiir die vergleichende Rechtswissenschaft
New Trends in the Enforcement of erga omnes Obligations Karl Zemanek
I.
The Emergence of erga omnes Obligations 1. Human Rights Under the UN Charter a. The Programme b. The Implementation 2. The Establishment of erga, omnes obligations in Other fields a. Conventional Creation b. Jus cogens 3. Ensuring Compliance with erga omnes Obligations a. The Growing Awareness of their Different Character b. The Tortuous Implementation of the Idea in Practice II. Can the Existing Community Mechanisms Ensure Enforcement? 1. The Conceptual Question 2. The Relevant Functions of International Organs a. Reporting Systems b. Inspection, Verification and Investigation Systems c. Complaints Procedures d. (Limited) Non-Violent Sanctions 3. Conclusions III. Individual Criminal Responsibility 1. The Evolution of the Concept a. The Way to Nuremberg, Tokyo and Other Prosecutions after World War II b. The Geneva Conventions of 1949 and their Additional Protocols 2. The influence of the International Criminal Tribunals Established by the Security Council a. Jurisdictional Innovation b. The Subject-Matter Jurisdiction of the Tribunals 3. The International Criminal Court (ICC) a. Jurisdiction and its Implementation b. Subject-Matter Jurisdiction J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, © 2000 Kluwer Law International. Printed in the Netherlands.
1-52.
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4. Evaluation State responsibility 1. The Present State of the ILC Draft 2. Determining the Injured State a. The Context of the Draft b. Injured States and States with a Legal Interest 3. The state of Necessity a. The Context of the Draft b. Necessity V. Humanitarian intervention 1. The Concept a. An Aacademic Rediscovery b. Conditions 2. Its Justification a. Article 2 para. 4 of the Charter b. Moral Philosophy c. Has the Law of the Charter Changed? VI. Perspective of the Future 1. A Conflict of Laws Regulation a. The Lack of Consensus on the Hierarchy of Basic Values b. The Need for a Conflict of Norms Regime 2. Improving Community Action a. Reforming the Security Council b. Increasing the Supervisory Functions of Other Organs 3. Greater Use of Individual Enforcement? a. Should States be Encouraged to Make Use of Universal Criminal Jurisdiction? b. Has Humanitarian Intervention a Future? IV.
I. The Emergence of erga omnes Obligations 1. Human Rights Under the UN Charter a. The Programme Articles 55 and 56 of the Charter proclaimed the promotion of universal respect for, and observance of, human rights and fundamental freedoms as a programme of the United Nations. By referring in Article 56 to the items of that programme as "purposes", the Charter links them to Article 1 which lists the purposes of the organization, and among them, in para. 3 the promotion and encouragement of respect for human rights and for fundamental freedoms for all.
Zemanek, New Trends in the Enforcement of erga omnes Obligations
3
Until then international law had been focussed on the sovereignty of states and dealt with the relations between them. The Charter now established the human person as a second focal point, proposing to make it the subject of international rights and to impose on states corresponding obligations under international law for the benefit of persons under their jurisdiction. In the absence of special research it is unclear1 whether the founders of the United Nations realized that they were profoundly changing the parameters of traditional international law with that programme. Hence it does not come as a surprise that they failed to prescribe the manner in which these new type of obligations should be fitted into the traditional framework of international law. Moreover, by listing the maintenance of international peace and security, sovereignty, justice, and respect for human rights as purposes and putting them on the same footing, without indicating which of them should prevail in case of conflict, the Charter laid the foundation of a philosophical debate which is, until today, without issue. b. The Implementation With the exception of the Universal Declaration of Human Rights of 10 December 19482, the United Nations have chosen multilateral conventions as vehicles for implementing the programme of the Charter. These are, to mention the most important ones: The Convention on the Prevention and Punishment of the Crime of Genocide (1948); the International Convention on the Elimination of All Forms of Racial Discrimination (1965); the International Covenant on Economic, Social and Cultural Rights and that on Civil and Political Rights (both 1966); the Convention on the Elimination of All Forms of Discrimination Against Women (1979); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984); and the Convention on the Rights of the Child (1989). This is suggested by the absence of any consideration regarding this in such basic papers as Sh. Oda, "The Individual in International Law", in: M. S0rensen (ed.), Manual of Public International Law, 1968, 470 et seq., (498); I. Szabo, "Historical Foundations of Human Rights and Subsequent Developments", in: K. Vasak (ed.), The International Dimension of Human Rights, 1982, 11 et seq., (21-22); and F. Capotorti, "Human Rights: The Hard Road Towards Universality", in: R.St.J. Macdonald/D.M. Johnston (eds), The Structure and Process of International Law, 1983, 977 et seq., (981-982). A/RES/217A (III) of 10 December 1948.
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By choosing multilateral conventions as instruments for implementing their programme, the United Nations took a double risk: that of non-ratification and that of across-the-board reservations. The risk of non-ratification proved to be lower than in respect of other multilateral treaties adopted under the auspices of the United Nations, notably codification conventions3, because becoming a party to human rights treaties was and is considered one of the indispensable marks of a civilized state and is thus coveted all the more by illiberal regimes. These make use of another device to minimize the impact of the conventions on their manner of governing: They attach across-theboard reservations to their ratifications or accessions. Already correct reservations cause a lot of problems in the application of conventions, but across-the-board reservations endanger the very purpose of them. They come in two forms: either reserving the supremacy of domestic law or the supremacy of Sharia, the Islamic religious law. Both have been combined in the reservation of Iran to the Convention on the Elimination of All Forms of Discrimination Against Women which reads as follows: "The Government of the Islamic Republic of Iran reserves the right not to apply any provision or articles of the Convention that are incompatible with Islamic laws and the internal legislation in effect." Such reservations impair the purpose of human rights conventions to establish a common and uniform standard of rights of individuals for implementation in the respective domestic legal order, because they create a disturbing legal uncertainty. First, only the author of the reservation can determine its scope. Secondly, other parties sometimes raise objections, asserting the incompatibility of the reservation with the object and purpose of the convention and declaring it thus implicitly null and void. Hence it becomes doubtful which obligations the reserving state has accepted erga omnes, and in respect of which contracting parties relations under the convention exist.4 Cf. K. Zemanek, "Does Codification Lead to Wider Acceptance?", in: International Law as a Language for International Relations, Proceedings of the United Nations Congress on International Law New York 1995, 1996, 224-229. Cf. generally B. Clark, "The Vienna Convention Reservation Regime and the Convention on Discrimination Against Women", AJIL 85 (1991), 281 et seq.; and L. Lijnzaad, Reservations to UN-Human Rights Treaties. Ratify and Ruin?, 1995, 298 et seq. The way in which the matter is treated by
Zemanek) New Trends in the Enforcement of erga omnes Obligations
5
In spite of the risks involved, regional organizations have also chosen multilateral treaties as instruments for their human rights regimes. Examples are the European Convention on Human Rights and Fundamental Freedoms (1950), the American Convention on Human Rights (1969), and the African Charter on Human and Peoples Rights (Charter of Banjul) (1981). Only reservations against the European Convention are more strictly controlled than on the universal level, because the European Court of Human Rights has assumed jurisdiction in this respect5.
2. The Establishment of erga omnes Obligations in Other Fields a. Conventional Creation Multilateral treaties have also been used in other fields for creating general standards of conduct in the achievement of a common purpose. Thus common article 1 of the Four Geneva Conventions of 1949 states: "The High Contracting Parties undertake to respect and to ensure respect6 for the present Convention in all circumstances." This language is repeated in article 1 para. 1 of the First Additional Protocol of 1977. Even if the words "to ensure respect" should initially have been meant as reference to the obligation of the parties to ensure that their armed forces and public authorities were made aware of their duties under the Conventions, i.e. as obligation to instruct7, they are today understood not only as a right but as a duty to claim performance by the other contracting states of the erga omnes obligations established by the Conventions and the Additional Protocol8.
5
6 7 8
the Special Rapporteur of the ILC is critized by K. Zemanek, "Allain Pellet's Definition of a Reservation", Austrian Review of International and European Law 3 (1998), 295 et seq. See R.St.J. Macdonald, "Reservations Under the European Convention on Human Rights", RBDI21 (1988), 429 et seq. Italics added. Cf. e.g. article 144 of the Fourth Convention or article 83 of Protocol I. See G. Barile, "Obligationes erga omnes e individui nel diritto internazionale umanitario", Riv. Dir. Int. 68 (1985), 1 et seq.; J.A. Frowein, "Reaction by Not Directly Affected States to Breaches of Public International Law",
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Standard-setting is also the characteristic of conventions with the aim of protecting the global environment, such as the Montreal Protocol on Substances that Deplete the Ozone Layer (1987; with amendments); or the Framework Convention on Climate Change (Rio Convention, 1992; and Kyoto Protocol 1997). They, too, establish obligations which have to be implemented in domestic law or by administrative measures and are not created for the benefit of individual contracting parties but in the interest of all of them, as a community9. An infringement of the conventions' obligations by one party does not hurt a specific other contracting party (although this may incidentally be the case), but the common purpose and thus all other contracting states. Arms control and disarmament treaties are in some way similar, because they do not establish reciprocal rights and obligations between the parties. However, they do not require formal transformation into domestic law for their implementation because the latter is a matter of governmental security policy. Instruments such as the Non-Proliferation Treaty (NPT, 1968), the Biological Weapons Convention (1972), the Chemical Weapons Convention (CWC, 1993), or the Comprehensive Nuclear Test-Ban Treaty (CTBT, 1996) are salient examples of this particular type of erga omnes obligations. b. Jus cogens The most advanced type of this kind of obligation derives from peremptory norms of international law (jus cogens). They differ from ordinary erga omnes obligations insofar as they do not protect common values or interests of a random group of states but the basic values on which the international community as a whole is built. Thus, all peremptory norms create obligations erga omnes, but not all erga omnes obligations derive from peremptory norms.
RdC248 (1994), 353 et seq., (395-397); and D. Schindler, "Die erga omnesWirkung des humanitaren Volkerrechts", in: U. Beyerlin et al. (eds), Recht zwischen Umbruch und Bewakrung, Festschrift fur R. Bernhardt, 1995, 199 et seq. Cf. M.E. O'Connell, "Enforcing the New International Law of the Environment", GYIL 35 (1992), 293 et seq., Ph. Sands, "Enforcing Environmental Security: The Challenges of Compliance with International Obligations", Int'l. Aff. 46 (1993), 367 et seq.; and R. Wolfrum, "Means of Ensuring Compliance with and Enforcement of International Environmental Law", RdC 272 (1998), 25 et seq., (56-57).
Zemanek, New Trends in the Enforcement of erga omnes Obligations
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In a pioneering paper10 Bruno Simma seems, at first view, to limit the erga omnes character of obligations to those deriving from peremptory norms, when he writes: "... jus cogens and obligations erga omnes are but two sides of one and the same coin."11 But he later qualifies that view, when he states in respect of human rights treaties: "If I am permitted to vary the meaning of a well-known concept for a moment, the obligations arising from such treaties can be considered obligations erga omnes — the omnes, however, limited in our present context to the circle of the other contracting parties."12 This coincides with the opinion expressed above. The idea that some norms of international law may have a peremptory character was first suggested by Alfred Verdross in an article in the American Journal of International Law in 193713. The concept is reflected in positive law by arts 53 and 64 of the Vienna Convention on the Law of Treaties of 1969. Their adoption was preceded and followed by a vivid academic debate14. Notwithstanding the persistent objection of France to the idea as such, the existence of jus cogens in international law is nowadays undisputed, although no consensus exists on its substance, beyond a tiny core of principles and rules, such as the prohibition of the use of force15. This is due to the fact that no procedure to identify peremptory norms of international law is indicated in the tautological definition in
10
11 12 13
14
15
B. Simma, "From Bilateralism to Community Interest in International Law", RdC 250 (1994), 229 et seq. Ibid., 300. Ibid., 370. A. Verdross, "Forbidden Treaties in International Law", AJIL 31 (1937), 571 et seq. Cf. e.g. G. Schwarzenberger, "International Jus Cogens?", Tex. L. Rev. 43 (1965), 455 et seq.; A. Verdross, "Jus Dispositivum and Jus Cogens in International Law", AJIL 60 (1966), 55 et seq.; E. Suy, "The Concept of Jus Cogens in Public International Law", in: Carnegie Endowment for International Peace (ed.), The Concept of Jus Cogens in International Law, 1967, 17etseq. During the Vienna Conference on the Law of Treaties initiatives were taken to establish a list of peremptory norms of international law which should have been annexed to the Convention and subjected to periodic review. The initiatives failed because, as the discussion revealed, views were too divided; see J. Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties, 1974,119-123.
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the Vienna Convention16. The peremptory character of a rule of international law rather results from the substantive importance of the interests protected by the rule and of the universal recognition that the underlying value or values are not at the disposal of individual states17. Since, however, values in the international community emanate from a plurality of sources, they are sometimes incompatible or even mutually exclusive. Hence it is not surprising that the scope of globally shared values is rather modest and nothing indicates a substantive increase in the near future; rather the contrary must be feared18. This explains the narrow scope of undisputed jus cogens.
3. Ensuring Compliance with erga omnes Obligations a. The Growing Awareness of their Different Character Traditional international law has a bilateral performance structure19. Rights and obligations under it arise between two specific states. This is even so when they derive from a multilateral treaty. Thus under the Vienna Convention on Diplomatic Relations a specific receiving state is obliged to grant diplomatic immunity to the representatives of a specific sending state and the latter has a claim to performance against that specific receiving state. Standard-setting conventions have a different performance structure. They prescribe a conduct which is unrelated to any specific right of the other contracting parties under the convention. That has been recog16
17
18
19
The relevant part of article 53 of the Vienna Convention on the Law of Treaties reads: "For the purpose of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." Simma, see note 10, 288, 292. Cf. also Ch. Tomuschat, "Obligations Arising For States Without or Against Their Will", RdC 241 (1993), 209 et seq., (306-307). See K. Zemanek, "The Legal Foundations of the International System. General Course in Public International Law", RdC 266 (1997), 23 et seq., (32-36). For a profound general discussion cf. B. Simma, Das Reziprozitdtselement in der Entstehung von Volkergewohnbeitsrecht, 1970; and id., Das Reziprozitatselement im Zustandekommen volkerrechtlicher Vertra'ge, 1972.
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nized by the ICJ in its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, when it stated: "In such a convention the contracting States do not have an interest of their own; they merely have, one and all, a common interest, namely the accomplishment of those high purposes which are the raison d'etre of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between the rights and duties."20 Thus, a standard-setting convention creates only the right of a contracting party to request fulfilment of its commitments by all other contracting parties. A party does not have substantive rights under the convention in relation to other individual parties, such as it has under the Vienna Convention on Diplomatic Relations or under the Vienna Convention on the Law of Treaties. The obligation of a party to conduct itself in accordance with the prescribed standard exists towards all other contracting parties21, and is, therefore, an obligation erga omnes22. This characteristic performance structure is bound to cause clashes with the principle of non-intervention, which derives from the sovereignty of states and thus from the very foundation of traditional international law. When a party to a standard-setting convention complains about (non) performance to another contracting party, the former will more often than not be accused of intervention23. In traditional international law this argument does make sense; the manner in which states design their domestic laws to allow them the implementation of inter-
20 21
22
23
ICJ Reports 1951, 15 et seq., (23). Whether they are interested in actually requesting the performance of the obligation is another matter; see B. Simma, "Consent: Strains in the Treaty System", in: Macdonald/Johnston, see note 1, 483 et seq., (500). See J.A. Frowein, "Die Verpflichtungen erga omnes im Volkerrecht und ihre Durchsetzung", in: R. Bernhardt et al. (eds), Volkerrecht als Recbtsordnung — Internationale Gericktsbarkeit — Menschenrechte, Festschrift fur H. Mosler, 1983, 241 et seq., C. Annacker, "The Legal Regime of erga omnes Obligations in International Law", Austrian J. Publ. Int. Law 46 (1994), 131 et seq. Cf. O. Gotten, Droit d'ingerence OH obligation de reaction? Les possibilites d'action visant a assurer le respect des droits de la personne face an prindpe de non-intervention, 1992; and H.-J. Blanke, "Menschenrechte als volkerrechtlicher Interventionstitel", AYR 36 (1998), 257 et seq.
10
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state obligations is indeed a matter "within their domestic jurisdiction". But the argument fails in respect of standard-setting conventions; if valid, it would reduce such instruments to purely hortatory proclamations. Or, as Bruno Simma has put it: "When human rights are violated there simply exists no directly injured State because international human rights law does not protect States but rather human beings or groups directly. Consequently, the substantive obligations flowing from international human rights law are to be performed above all within the State bound by it, and not vis-a-vis other States. In such instances to adhere to the traditional bilateral paradigm and not to give other States or the organized international community the capacity to react to violations would lead to the result that these obligations remain unenforceable under general international law."24 The crucial aspect of erga omnes obligations is, therefore, the manner in which they may eventually be enforced. The examination of this problem and, in particular, of recent trends to deal with it, are the purpose of this article. b. The Tortuous Implementation of the Idea in Practice In spite of its early recognition of the specific character of standardsetting conventions in the Genocide Convention Opinion25, the ICJ has not really admitted the consequences of erga omnes obligations in cases where they were at issue. In an often quoted statement in the Barcelona Traction Case the Court recognized the existence of erga omnes obligations: "... an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-a-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes."26
24 25 26
Simma, see note 10, 296-297. See the quotation at note 20. ICJ Reports 1970, 3 et seq., (32, para. 33).
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This position has been reaffirmed in a number of cases27, most recently in the East Timor Case2^ and in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide^. However, in all relevant cases the Court found a way to avoid giving force to the claims based on the erga omnes character of an obligation, in spite of having recognized them in principle. In the South West Africa Case it did so straightforwardly by declaring an actio popularis incompatible with existing international law30. In the Barcelona Traction Case it misconstrued the nature of erga omnes obligations by making claims depend on nationality31. In the Nicaragua Case it evaded the consequences of a violation of erga omnes obligations by treating human rights conventions erroneously as self-contained regimes32. In the East Timor Case, finally, it denied jurisdiction on the ground that Indonesia was an "indispensable third party" to the proceedings but had not accepted jurisdiction33. While one observes thus a certain evolution in the thinking of the Court in respect of erga omnes obligations, this evolution has not yet reached a point where the Court could be relied on to accept claims to performance by parties which have a specific legal interest but are not directly affected. Speculatively, one may imagine that this reluctance is
27
28
29
30
31
32
33
See C. Annacker, Die Durchsetzung von erga omnes Verpflichtungen vor dem International Gerichtsbof, 1994, 1 et seq. Portugal v. Australia. ICJ Reports 1995, 90 et seq., (102, para. 29): "Portugal's assertion that the right of peoples to self-determination ... has an erga omnes character, is irreproachable." Bosnia Herzegovina v. Yugoslavia, Preliminary Objections. ICJ Reports 1996, 595 et seq., (616). Ethiopia v. South Africa; Liberia v. South Africa, Second Phase, ICJ Reports 1966, 6 et seq., (32 and 47). Source note 26, 48, para. 91: "... the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality." Nicaragua v. United States of America, Merits, ICJ Reports 1986, 14 et seq., (134, para. 267): "However, where human rights are protected by international conventions, that protection takes the form of such arrangements for monitoring or ensuring respect for human rights as are provided for in the conventions themselves." Source in note 28, 105.
12
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due rather to the procedural problems34 which the admission of consequences might entail35 than to misgivings about the existence of erga omnes obligations, which owe their recognitions in no small degree to the Court. However, judging by the attitude of the Court, neither it nor arbitral tribunals which would presumably follow its lead, can — for the time being — be considered reliable instances for the enforcement of ergo, omnes obligations.
II. Can the Existing Community Mechanisms Ensure Enforcement? 1. The Conceptual Question Erga omnes obligations are, by their very nature, owed to a community of states, be it the international community as a whole (jus cogens) or a specific community created by a multilateral convention. Enforcement of the deriving obligations, should it eventually become necessary, should thus ideally be undertaken by the respective community. One must therefore enquire whether the conventions provide for that possibility. In its Nicaragua Judgement the ICJ made such provision the condition for enforcing human rights conventions by restricting measures to the "arrangements ... provided for in the conventions themselves"36, treating such conventions thus as self-contained regimes37.
34
35 36 37
This refers to arts 62 and 63 of the Court's Statute. Cf. also J.M. Ruda, "Intervention Before the International Court of Justice", in: V. Lowe/M. Fitzmaurice (eds), Fifty Years of the International Court of Justice, Essays in Honour of Sir Robert Jennings, 1996, 487 et seq.; and S. Torres Bernardez, "The New Theory of 'Indispensible Parties' Under the Statute of the International Court of Justice", in: K. Wellens (ed.), International Law: Theory and Practice, Essays in Honour of E. Suy, 1998, 737 et seq. These are thoroughly discussed by Annacker, see note 27, 89 et seq. Source in note 32. This concept was "discovered" by the ICJ in the Case Concerning U.S. Diplomatic and Consular Staff in Teheran, ICJ Reports 1980, 3 et seq., (40, para. 86). B.Simma, "Self-contained Regimes", NYIL 16 (1985), 111 et seq., argues that human rights treaties belong to this group, (129-135); this view is not generally shared.
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This focuses the enquiry on the means with which international organizations are empowered to enforce erga omnes obligations.
2. The Relevant Functions of International Organs a. Reporting Systems They are now fairly common in all international regimes which establish erga omnes obligations. An example with a long history is the reporting system of the ILO38, but now reporting systems also exist in human rights regimes, e.g. the UN Human Rights Covenant on Economic, Social and Cultural Rights, or in environmental protection regimes, like the Rio Convention39. If reporting systems are to induce noncompliant states to mend their ways, their effect depends to a large extent on the existence of democratic control in the state concerned. In the absence of that condition the report may be manipulated with impunity. And even if world public opinion reacts to the report, the government concerned may deflect the impact by withholding the information from its population or by presenting it as hostile propaganda. Hence the method does not seem particularly helpful in respect of those states where an occasional disregard of international obligations is most likely to happen. b. Inspection, Verification and Investigation Systems They are a speciality of weapons conventions and extremely rare in other contexts40. They appear, in various forms, e.g. in the NonProliferation Treaty, the Chemical Weapons Convention, and the Com-
38
Cf. N. Valticos, What Respect is More Effective Honour of H.G.
39
Cf. I. Freudenschuss-Reichl, "Die Umsetzung der 'Rio Commitments' fiinf Jahre nach der Konferenz fur Umwelt und Entwicklung von Rio de Janeiro", in: H.F. Kock (ed.), Rechtsfragen an der Jahrtausendwende, Akten des 22. Osterreichischen Volkerrechtstages, 1998, 83 et seq., (86).
40
Cf. S. Oeter, "Inspection in International Law. Monitoring Compliance and the Problem of Implementation in International Law", NYIL 28 (1997), 101 etseq.
"Once More About the ILO System of Supervision: In it Still a Model", in: N. Blokker/S. Muller (eds), Towards Supervision by International Organizations, Essays in Schermers, Vol. I, 1994, 99 et seq.
14
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prehensive Nuclear Test-Ban Treaty. The reason for this singularity was recently explained in the following terms: "These regimes demonstrate that States, in order to enter into regimes that provide for preventive measures, will insist on extensive procedures for verification. For such limited but important purposes many nations seem willing to accept an evolving definition of their sovereignty provided that the procedures are implemented either by an international organization with a trackrecord of impartiality (such as IAEA41), or by a specialist institution created expressly to verify compliance (such as OPC42)."43 It seems, however, that such willingness does not, or only exceptionally, extends to areas other than disarmament or arms control. Two instances in the field of human rights need, nevertheless, be mentioned. One is the European Convention Against Torture which, by setting up the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)44, established the only effective organ for monitoring compliance outside the arms control and disarmament area. The other is the procedure under ECOSOC Resolution 1235 (XLII)of 6 June 1967 and that under ECOSOC Resolution 1503 (XLVIII)of 27 May 1970. Neither, however, is a true inspection system. The former authorizes the Commission on Human Rights and its Sub-Commission on the Promotion and Protection of Human Rights (former Sub-Commission on Prevention of Discrimination and Protection of Minorities) "to examine information relevant to gross violations of human rights and fundamental freedoms". The latter resolution provides for a confidential procedure to examine communications "which appear to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms". Neither "examination" relies, however, on inspection in the field. And although para. 6 of Resolution 1503 authorizes the establishment of an
41
42
43
44
This refers to the NPT, where verification of compliance is administered under safeguard agreements with the respective contracting party by the IAEA. This is a reference to the "Organization for the Prohibition of Chemical Weapons" (OPC), established by the CWC. L. Sucharipa-Behrmann/T. Franck, "Preventive Measures", N.Y.U. J. Int'l L. & Pol. 30 (1998), 485 et seq., (524). Cf. A. Cassese, "The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Comes of Age", in: Blokker/Muller, see note 38,115 et seq.
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ad hoc committee to investigate allegations, on the condition that the state concerned agrees, none has ever been appointed45. In the field of environmental law only the Montreal Protocol allows its Implementation Committee (10 states) to carry out on-site inspections in a state suspected of non-compliance — provided the latter consents46. c. Complaints Procedures The term "complaints procedure" can be understood in two senses: Either as the right to initiate an institutional process of verification or investigation, as mentioned above e.g. in the case of the Montreal Protocol. Or as the right to initiate a process in which the alleged violation is adjudicated and the accused state bound to abide by the decision. Only procedures of the second type are mentioned in this section. Instances of a right to complain do not exist outside the field of human rights protection. However, only the jurisdictions of the InterAmerican Court of Human Rights and of the European Court of Human Rights fulfil the conditions just mentioned47. The right of states to complain under the Optional Protocol to the International Covenant on Civil and Political Rights is optional and requires reciprocity. An eventual report of the Human Rights Committee, which meets in private, may not make an authoritative statement on the violation, nor is it published. Individual complaints are only admissible if the state concerned has ratified the Optional Protocol. Resulting "views" of the Human Rights Committee may establish violations but are not formally binding, although they must be accepted bona fide by
45
46
47
See M. Novak, "Country-Oriented Human Rights Protection by the UN Commission on Human Rights and its Sub-Commission", NYIL 22 (1991), 39 et seq., (53). Cf. M. Koskenniemi, "Breach of a Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol", Yearbook of International Environmental Law 3 (1992), 123 et seq.; and W. Lang, "L'Enquete et Pinspection", in: C. Imperiali (ed.), L'effectivite du droit international de I'environnement; controle de la mise en oeuvre des conventions internationales, 1998, 137-145, (143). Cf. A.G. Mower Jr., Regional Human Rights: A Comparative Study of the West-European and Inter-American Systems, 1991.
16
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the respective state and implemented in their essence — which is habitually done48. d. (Limited) Non-Violent Sanctions In the relatively few instances which provide for sanctions in case of persistent non-compliance with treaty obligations or non-cooperation in a verification procedure, publication of an otherwise confidential report of the findings is nearly always the only available means. This sanction supposes thus that the state concerned will wish to avoid publication and possible embarrassment. Or, if publication should take place, that it will stir up world public opinion enough to induce the state to mend its ways. As has been argued above, this sanction works only under certain circumstances. Only the Montreal Protocol goes a step further. That is made possible by the Protocol's provision for certain rights and privileges related to trade, transfer of technology and financial assistance in favour of contracting parties, and thus for incentives that may be withheld. The Implementation Committee, which monitors compliance on the basis of periodic reports by the parties, submits severe shortcomings to the Meeting of the Parties which may then issue warnings and suspend rights and privileges under the Protocol.
3. Conclusions The foregoing short survey shows conclusively that, with one exception, the institutional mechanisms in the examined fields, whether of human rights law, environmental law or arms control and disarmament law, although they may indirectly encourage compliance, are not effective means for enforcing the erga omnes obligations deriving from these regimes.
48
That is to no small degree due to the "Follow-Up Procedures" adopted by the Human Rights Committee in 1990; see K. Herndl, "Zur Frage des rechtlichen Status der Entscheidungen eines Staatengemeinschaftsorgans: die "views" des Menschenrechtsausschusses", in: K. Ginther et al. (eds), Volkerrecht zwischen normativem Anspruch und politischer Realitat, Festschrift fur K. Zemanek, 1994, 203 et seq., (217-218). Cf. in general Y.K. Tyagi, The Law and Practice of the UN Human Rights Committee, 1993.
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This is not really surprising. In view of the limited powers which states are willing to grant to international institutions and of the feeble resources which they are eventually prepared to put at their disposal for enforcement measures, institutional law is necessarily concerned with prevention49, not enforcement. This confirms that the opinion of the ICJ, as expressed in the Nicaragua Judgement^, "that protection takes the form of such arrangements for monitoring or ensuring respect for human rights as are provided for in the conventions themselves", if taken literally and applied to all areas in which obligations erga omnes exist, would render them unenforceable. If the ICJ's conclusion was justified, then the whole idea of erga omnes obligations, to which the Court referred in a number of cases, would be but a chimera.
III. Individual Criminal Responsibility 1. The Evolution of the Concept a. The Way to Nuremberg, Tokyo, and Other Prosecutions After World War II There is — at least in one respect — reason for optimism. Starting from very special circumstances, namely the prevention of war crimes, the institutional enforcement of violations of erga omnes obligations in the humanitarian field has recently been significantly developed and includes today gross human rights violations when they are perpetrated in international or civil wars. Already in the second half of the 19th century military manuals of several states prescribed that prisoners of war were answerable indi-
49
50
See Sucharipa-Behrmann/Franck, see note 43; U. Kriebaum, "Prevention of Human Rights Violations", Austrian Review of International and European Law 2 (1997), 155 et seq.; and J. Vessey, "The Principle of Prevention in International Law", Austrian Review of International and European Law3(l99S), 181 et seq. Source in note 32.
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vidually for war crimes against the captor's army or population for which they had not been punished by their own authorities51. The Peace Treaties after World War I provided for the surrender of persons charged with war crimes to the Allied and Associated Powers upon request. Germany and the other defeated states were made to recognize in the treaties the right of the Powers to prosecute them, which implies that the right was not newly created but, at least in the opinion of the Allies, already existing52. It seems therefore reasonable to assume that on the eve of World War II individual criminal responsibility for serious violations of the laws of war was firmly established in international law. Jurisdiction rested, however, with the culprit's own state and, in the case of a prisoner of war, with the detaining power. It was exercised by domestic tribunals53. Nuremberg and Tokyo were an exception to this pattern. Not only were they international Tribunals, but their Statutes added two more crimes to the list: crimes against peace and crimes against humanity54, the latter being evidence of a beginning trend to include fundamental human rights in the protection. Furthermore, they extended individual criminal responsibility to the political and military leadership of a country should they have ordered the crimes to be committed. In addition to these international prosecutions, German and Japanese prisoners of war were tried for war crimes by military tribunals of individual Allied Powers. The events after World War II demonstrate anew the weakness of a system of individual criminal responsibility which has to rely for its implementation primarily on domestic tribunals: Most states are reluctant to prosecute their nationals55. Thus, neither the bombing of Dresden nor the bombing of Hiroshima and Nagasaki have been the subject of judicial examination.
51
52 53
54 55
See A. Verdross, Die volkerrecbtswidrige Kriegsbandlung und der Strafanspruch derStaaten, 1920,16-19. Ibid., 84-87. Cf. G.A. Finch, "Jurisdiction of Local Courts to Try Enemy Persons for War Crimes", AJIL 14 (1920), 218-223. Cf. J. Graven, "Les crimes centre 1'humanite", RdC 76 (1950), 427 et seq. Cf. A. Marschik, "The Politics of Prosecution: European National Approaches to War Crimes", in: T.L.H. McCormack/G.J. Simpson (eds), The Law of War Crimes, 1997, 65 et seq., (100).
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b. The Geneva Conventions of 1949 and their Additional Protocols The next step in the development of the law were the Four Geneva Conventions of 1949 and, later, the two Additional Protocols of 1977. Before these instruments came into force, the prosecution of war crimes had been a right of every state. Now, each of the Four Conventions and Protocol I enumerates "grave breaches"56 of their rules, such as wilful killing, torture, unlawful transfer or deportation, taking of hostages, which the parties to the Conventions undertake to make punishable under their domestic laws. They are further obliged to prosecute such crimes regardless of the nationality of the perpetrator57, which means prisoners of war as well as their own soldiers. But jurisdiction remains with domestic tribunals, therefore prosecution of a state's own military personnel is rare; My Lai58 was an exception, due to the pressure of American public opinion.
2. The Influence of the International Criminal Tribunals Established by the Security Council a. Jurisdictional Innovation Responding to specific situations, the Security Council has established two international tribunals: with Resolution 827 (1993) of 25 May 1993 the "International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 "59 (henceforth Yugoslavia Tribunal) and, upon request by the Government of Rwanda, 56
57
58
59
Convention I, article 50; Convention II, article 51; Convention III, article 130; Convention IV, article 147; Protocol I, article 85, para. 3. Convention I, article 49; Convention II, article 50; Convention III, article 129; Convention IV, article 146; Protocol I, article 85, para. 1. Cf. also C. Pilloud, "La protection penale des conventions humanitaires internationales", Rev. ICR 35 (1953), 842 et seq. See St. Paulson/J. Banta, "The Killings at My Lai: 'Grave Breaches' under the Geneva Conventions and the Question of Military Jurisdiction", Harv. Int'l L. J. 12 (1971), 345 et seq. In S/RES/808 (1993)of 22 February 1993 the Security Council decided to establish the Tribunal and requested the Secretary-General to submit a draft statute, which he did in his Report Doc. S/25704 (reprinted in: ILM 32 (1993), 1191 et seq.) together with a commentary.
20
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with Resolution 955 (1994) of 8 November 199460 the "International Tribunal for Rwanda". The controversial question whether the Security Council had the necessary powers under the Charter to establish such tribunals61 is not dealt with in this context where it is irrelevant. This was the first time since Nuremberg and Tokyo that international tribunals were given jurisdiction to prosecute war crimes and related crimes. However, the countries in whose territory the events had taken place were not subjugated as Germany and Japan had been. Hence, the Tribunals, particularly the Yugoslavia Tribunal, have no direct access to suspects. For this reason article 29 of the Statute of the Yugoslavia Tribunal establishes the duty of states to cooperate in investigations and to surrender suspects to the Tribunal upon request. The commentary62 argues that "an order by a Trial Chamber for the surrender or transfer of persons to the custody of the International Tribunal shall be considered to be an application of an enforcement measure under Chapter VII of the Charter". That formulation neatly bypasses the troublesome question whether the Security Council may delegate its powers, by stating it as a fact. Although "surrender and transfer" are not the same as "extradition", states which adhere to the rule of law had nevertheless some difficulty to incorporate the obligation into their domestic laws63, especially as regards the eventual surrender of their own nationals. b. The Subject-Matter Jurisdiction of the Tribunals The Statute of the Yugoslavia Tribunal is rather conservative when indicating genocide (article 4), violations of the laws or customs of war (ar60
61
62 63
Rwanda, a non-permanent member of the Security Council at the time, voted against the Resolution, because it did i.a. not agree with the limitation in time put on the Tribunal's jurisdiction, to prosecute only violations having occurred between 1 January and 31 December 1994. For an overview of the problem and of the relevant literature see K. Zemanek, "Is the Security Council the Sole Judge of its Own Legality?", in: E Yakpo/T. Boumedra (eds), Liber Amicorum Judge Mohammed Bedjaoui, 1999, 629 et seq., particularly 637-640. Source in note 59, paras 125 and 126. See for Austria, R. Regner/A. Reinisch, "Zur Umsetzung der osterreichischen Verpflichtungen gegeniiber dem Jugoslawien Tribunal der Vereinten Nationen", Osterreichische Juristenzeitung 50 (1995), 543 et seq.; and for the United Kingdom H. Fox, "The Obligations to Transfer of Criminal Jurisdiction to the UN Tribunal", 7CLQ 46 (1997), 434-442.
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tide 3), and grave breaches of the Geneva Conventions of 1949 (article 2) as punishable crimes. It is, however, more enterprising in respect of the crimes against humanity (article 5), and that in two ways. First, it penalizes these crimes when directed against the civilian population irrespective of whether the acts are committed in an international or an internal armed conflict. Secondly, by listing as punishable crimes murder, extermination, enslavement, deportation, imprisonment, torture, rape, and persecution on political, racial and religious grounds, and other inhumane acts. It makes explicit that "crimes against humanity" is, in fact, another term for gross violations of human rights. The Statute of the Rwanda Tribunal follows this pattern when it identifies genocide (article 2) and crimes against humanity (article 3) as punishable crimes. Since the Tribunal was established to adjudicate crimes in a civil war, war crimes are missing from the list. However, the provision in article 4, which subjects serious violations of article 3 common to the Geneva Conventions of 1949 and of Additional Protocol II of 197764 to individual criminal responsibility, had an immense influence on the development of the law since it gives an unequivocal answer to pre-existing doubts about the applicability of the "grave breaches" provisions of the Geneva Conventions to situations covered by common article 3. The factual situation with which the Yugoslavia Tribunal had to deal was more complex. As the Appeals Chamber found in a landmark decision in The Prosecutor v. Dusko Tadic a/k/a "Dule"65: "... when the Statute was drafted, the conflict in the former Yugoslavia could have been characterized as both internal and international, or alternatively, as an internal conflict alongside an international one, or as an international conflict that had subsequently been replaced by one or more internal conflicts, or some combination thereof."66 There was, therefore, a strong component of a non-international armed conflict involved, but the Statute contained no provision comparable to article 4 of the Statute of the Rwanda Tribunal. Looking for a solution, the Appeals Chamber had recourse to international custom. It held that "a number of rules and principles govern64 65
66
Rwanda is a party to all of them. Case No. IT-94-1-AR 72 of 2 October 1995. For an evaluation see M. Sassoli, "La premiere decision de la Chambre d'appel du Tribunal Penal International pour 1'ex-Yougoslavie: Tadic (competence)", RGDIP 100 (1996), 101 etseq. Judgement, para. 7.
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ing international armed conflicts have gradually been extended to internal conflicts", but observed cautiously that "this extension has not taken place in the form of a full and mechanical transplant of these rules to internal conflicts; rather, the general essence of these rules, and not the detailed regulation they may contain, has become applicable to internal conflicts."67 In respect of common article 3 it held that "customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife."68 If one reads these two passages together, one realizes that the Tribunal had made a courageous decision. Without invoking any serious evidence, it had discovered customary law, first to supplement the law applicable to non-international armed conflicts69, and then for subjecting violations of it and of common article 3 to individual criminal responsibility. It does not seem farfetched to imagine that the adoption of the Statute of the Rwanda Tribunal on 8 November 1994 had an influence on the decision of the Appeals Chamber on 20 October 1995. The latter provoked a lively academic debate70 in which defenders and critics were taking part. Finally, however, as will be shown below, the law as stated by the Appeals Chamber was incorporated into the Statute of the International Criminal Court.
67 68 69
70
Ibid., paras 125 and 126. Ibid., para. 134. It followed therein F. Kalshoven, "Applicability of Customary International Law in Non-International Armed Conflicts", in: A Cassese (ed.), Current Problems of International Law, 1975, 267 et seq. Cf. e.g. Ch. Meindersma, "Violations of Common Article 3 of the Geneva Conventions as Violations of the Laws and Customs of War Under Article 3 of the Statute of the International Criminal Tribunal for the Former Yugoslavia", NILR 42 (1995), 375 et seq.; Th. Meron, "International Crimmalization of Internal Atrocities", AJIL 89 (1995), 554 et seq.; id., "The Continuing Role of Custom in the Formation of International Humanitarian Law", AJIL 90 (1996), 238-249; and Sassoli, see note 65, 117118.
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3. The International Criminal Court (ICC) a. Jurisdiction and its Implementation The Statute of the International Criminal Court71, which was adopted in Rome on 17 July 1998 by 120 against 7 votes (including China, India, Israel and the United States) and 21 abstentions, is a multilateral treaty. Consequently, it applies only to those states which ratify it or adhere to it, or to states which accept the jurisdiction ad hoc (article 12 para. 3). A special role is reserved for the Security Council: Acting under Chapter VII, it may refer "a situation in which one or more of such crimes appear to have been committed ...", to the prosecutor, irrespective of whether the state or states involved are parties to the Statute or have accepted the jurisdiction of the Court ad hoc (article 13 lit.(b)). By invoking Chapter VII it may also request the Court to defer an investigation or prosecution for a period of 12 months, a request that is renewable (article 16). This power to interfere with the functions of the Court dissatisfied some states which expressed that in their vote (e.g. India). Since the Statute is a multilateral treaty its success and the effective functioning of the Court depend on the number of states which will ratify it or adhere to it; more particularly, on the ratification by states whose policies suggest a potential for crimes within the jurisdiction of the ICC. An equally important factor will be the way in which the Security Council will make use of its considerable powers. A further consequence of the Statute's character as a treaty is the necessity of provisions concerning the cooperation of states with the Court (arts 86 and 87), specifically the surrender and transfer of persons sought by the Court (article 89). While these are generally duties of the States Parties only, the Court may invite any state to provide assistance on the basis of an ad hoc arrangement (article 87 para. 5). If a State Party fails to comply with a request, the Court may make a finding to that effect and refer the matter to the Assembly of the States Parties or to the Security Council if it had referred the situation to the Court (article 87 para. 7). Except in the latter case, no community procedure to enforce the obligations under the Statute is provided. Thus, it would be the law of state responsibility which would come into play in case of default. 71
Doc. A/CONF.183/9; source: http://www.un.org/index.htm Cf. also A. Zimmermann, "The Creation of a Permanent International Criminal Court", Max Planck UNYB 2 (1998), 169 et seq.
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b. Subject-Matter Jurisdiction The subject-matter jurisdiction of the ICC is regulated in a rather complicated manner. Crimes within the jurisdiction of the Court are enumerated in article 5 of the Statute. They are: genocide; crimes against humanity; war crimes; crime of aggression. The crime of aggression is not defined in the Statute. A provision to that effect has yet to be adopted by the States Parties, either by making use of the amendment procedure (article 121) or during a review of the Statute (article 123). The eventual provision must be consistent with the relevant provisions of the Charter (article 5 para. 2). The apparent reasons for this lacuna, are the same difficulties which troubled the definition of aggression by the General Assembly 25 years ago72: How to square it with the discretionary power of the Security Council under Article 39 of the Charter to determine the existence of an act of aggression. In the General Assembly's definition the problem was solved by a saving clause73. To repeat that in the present context would hardly satisfy the maxim nullum crimen sine lege. The other three crimes are defined in considerable detail. Genocide in article 6, crimes against humanity in article 7, and, in even greater detail, war crimes in article 8. Nevertheless, "elements of crimes", which shall assist the Court in the application of the provisions defining crimes, will supplement the statutory provisions; they have to be adopted by a two thirds majority of the members of the Assembly of States Parties (article 9 para. 1). The Preparatory Commission is presently working on the "elements" of war crimes; it has already finished work on the "elements" of genocide. In a noteworthy step the development of the law initiated by the two Tribunals established by the Security Council has been incorporated in the definition of war crimes in the Statute: article 8 para. 2 lit.(c) includes among "war crimes" serious violations of common article 3 of the Geneva Conventions of 1949, and in para. 2 lit.(e) "other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law." Twelve separate crimes are specifically enumerated under this heading. The Statute confirms thus the appeals judgement in the 72 73
Annex to A/RES/3314 (XXIX) of 14 December 1974. Ibid., article 4: "The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter."
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Tadic Case74 which held that the "essence" of the rules applicable in international armed conflicts applied also in internal conflicts. Consequently infringements qualify as war crimes for which the perpetrators are individually responsible. The wide support for the Statute of the ICC, expressed in the affirmative votes for its adoption, suggests that the definition of crimes reflects a general opinio juris, albeit with a few dissenters.
4. Evaluation The institutionalization of international criminal responsibility is a valuable addition to those institutional mechanisms which ensure compliance with erga omnes obligations but, because of its specificness, it improves the possibility of their enforcement only marginally. On the one hand, its jurisdiction is limited to international humanitarian law and includes other human rights violations only indirectly, via the crimes against humanity. On the other hand, and leaving aside the ad hoc jurisdiction of the Tribunals established by the Security Council, it makes the enforcement of erga omnes obligations subject to the ratification of a separate international instrument, the Statute of the ICC. The scope of its application will thus have important gaps, at least in the near future. It is, even potentially, no substitute of other, more comprehensive institutionalized procedures for the enforcement of erga omnes obligations. That steers the examination towards the question as to whether other means, outside the institutional framework, may be used for such enforcement.
IV. State Responsibility 1. The Present State of the ILC Draft The ILC has worked since 195375, with several interruptions and new Special Rapporteurs, on the codification of the law of State responsibil-
74 75
See text at notes 67 and 68. A/RES/799 (VIII) of 7 December 1953.
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ity. A draft was finally completed on first reading in 199676. After that, a newly elected Commission and a new Special Rapporteur (James Crawford) began in 1998 with the second, and hopefully final, reading. It should be recalled that the Commission distinguishes between "primary" rules of international law, i.e. rules which impose specific substantive obligations on states, and "secondary" rules which determine the legal consequences of a failure to fulfil the obligations established by primary rules77. The draft deals only with these secondary rules. It is divided into three parts. Part One (35 articles) concerns "the origin of international responsibility", while Part Two (18 articles), on "the content, forms and degrees of international responsibility", regulates the consequences of responsibility (reparation, etc.) and countermeasures. Part Three on "implementation of international responsibility, and the settlement of disputes" treats in fact only the latter. The second reading of Part One is, more or less78, finished; no fundamental changes have so far been made. Part Two is still in the course of second reading; some important changes have been made. Two topics in the draft, as it now stands, are of importance to the subject under consideration: one is the question whether all states which are injured by the violation of "primary" obligations of an erga omnes character are entitled to demand fulfilment of the "secondary" obligations and, in case of non-compliance, to apply countermeasures. The second is the question whether one of the circumstances precluding wrongfulness, the state of necessity, legitimizes forceful humanitarian intervention. Both topics are examined more closely below.
76
77
78
The articles as adopted on first reading are reproduced in the Report of the International Law Commission on the Work of its 48th S'ess.(1996), UN GAOR 51st Sess., Doc. A/51/10, 125-151. The commentaries to the articles appear in successive Reports of the ILC, from 1973 onwards, according to the session in which they were adopted. For a short history see C. Annacker, "Part Two of the International Law Commission's Draft Articles on State Responsibility", GYIL 37 (1994), 206 et seq., (207-209). See J. Combacau/D. Alland, "Primary and Secondary Rules in the Law of State Responsibility: Categorizing International Obligations", NYIL 16 (1985), 81 et seq. The question whether "international crimes" should be maintained in the draft is to be decided in the context of Part Two.
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2. Determining the Injured State a. The Context of the Draft In order to present the problem, a short survey of the context in which it arises in the draft is useful. If a breach of a "primary" international obligation occurs, the following secondary obligations arise for the author state in respect of the injured state79: Cessation is the obligation to end the violation of the primary norm. While it may be theoretically questionable whether this is a true secondary obligation, since the duty to perform the obligation under the primary norm is inherent in the latter, one must nevertheless concur with the Commission that, on systematic grounds, the provision has its place in the draft. Reparation is the obligation to wipe out the effects of the violation of the "primary" obligation. It may take four different forms, which may be claimed singly or in combination, depending on the nature of the violation: Restitution in kind requires the re-establishment of the situation as it existed before the wrongful act was committed. Compensation may be claimed if and to the extent that material damage is not made good by restitution in kind. Satisfaction is the appropriate form of reparation for immaterial damage, in particular moral damage, and takes mainly the form of an apology80. Where appropriate, the injured state may also request assurances or guarantees of non-repetition of the wrongful act. If a demand for cessation and, eventually, for reparation in one or the other forms is rejected, because the alleged wrongdoer either denies the facts or the existence of the legal obligation which it is supposed to have violated, or disputes the allegation that its conduct constituted a violation of the asserted obligation, then an international dispute ex79 80
Arts 41 to 46 of the draft; source see note 76. On the insistence of the then Special Rapporteur the Commission included also punitive damages in the prescription (article 45, para. 2 lit.(b) and (c). For a critique see S. Wittich, "Awe of the Gods and Fear of the Priests: Punitive Damages and the Law of State Responsibility", Austrian Review of International and European Law 3 (1998), 101 et seq.
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ists81 which, when unresolved, entitles the injured state to take countermeasures82. There are certain limits to countermeasures. Some norms may not be infringed, such as norms of jus cogens, in particular those prohibiting the threat or use of force, or norms protecting basic human rights or diplomatic and consular inviolability83. Moreover, countermeasures must be proportionate84. While this is a time-honoured principle85, it is not easy to measure proportionality in practice86. That may be even more difficult when more than one state take countermeasures against the author of the same breach of an erga omnes obligation. b. Injured States and States with a Legal Interest If state responsibility is to be the modus operandi for the individual enforcement of erga omnes obligations, the definition of the injured state in the ILC draft becomes the essential point. If all partners of the universal system (jus cogens} or of a particular sub-system established by treaty (conventional regime) are designated as injured states, they dispose, collectively as well as individually, of the whole range of "secondary" rights which arise from the breach of any "primary" obligation which the system partners owe erga omnes under the system. This would have been the consequence of the determination in article 40 as it was adopted on first reading87. The relevant part reads: "(e) if the right infringed by the act of a State arises from a multilateral treaty or from a rule of customary international law, any other
81
82 83 84 85
86
87
As the ICJ stated in the South West Africa, Case (Preliminary Objections), a dispute arises when "the claim of one party is positively opposed by the other": ICJ Reports 1962, 319 et seq., (328). Arts 47 and 48 of the draft; source see note 76. Article 50, ibid. Article 49, ibid. It was invoked and explained in the Naulilaa Arbitration, 1928; Report of International Arbitral Awards, Vol. 1, 1013 et seq., (1028, para. c/2). See Case Concerning the Air Service Agreement of 27 March 1946 Between the United States of America and France, 1978; Report of International Arbitral Awards, Vol. 18, 417 et seq., (443, para. 83): "... judging the 'proportionality' of countermeasures is not an easy task and can at best be accomplished by approximation." Source see note 76.
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State party to the multilateral treaty or bound by the relevant rule of customary international law, if it is established that: (iii) the right has been created or is established for the protection of human rights and fundamental freedoms; (f) if the right infringed by the act of a State arises from a multilateral treaty, any other State party to the multilateral treaty, if it is established that the right has been expressly stipulated in that treaty for the protection of the collective interests of the States parties thereto." The commentary to that article made it clear, that the quoted provisions refer to erga omnes obligations. Fair as this solution appears to be, it is not really satisfactory. If one imagines a case in which a human rights violation has resulted in material damage, who is to claim reparation? Except in the case where the victim has the nationality of the claimant, no other state is directly affected. Should that entitle all other contracting parties of the respective human rights treaty to claim reparation of the material damage from the state which had violated its obligation? If restitution in kind is not possible and compensation is to take its place, would satisfying one claimant state extinguish the parallel claims of other contracting parties? What would be the relationship between the state whose claim has been satisfied and the person or persons who are the victims of the human rights violation, if they do not have the nationality of the claimant state? These and many other doubts which could be added to the list tend to indicate that the proposed solution does not take the nature of erga omnes obligations sufficiently into account. As has been explained above, a convention establishing erga omnes obligations creates, as between the contracting states, the right of each of them to request fulfilment of their commitments by the others. Hence a violation of that commitment causes only immaterial, moral damage to the other contracting parties, for which the consequentially arising "secondary" rights are limited to requesting cessation, assurances or guarantees of non-repetition, and, where appropriate, satisfaction. In order to make this difference explicit, it is suggested that instead of the uniform use of "injured State", a different term for designating the state or states affected by the violation of an erga omnes obligation should be introduced. The expression used by the ICJ in the Barcelona Traction Case., of "States can be held to have a legal interest in their [i.e.
30
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substantive rights] protection"88 might offer itself for that purpose. The second reading of the draft has not yet reached the relevant article, but it seems that the Special Rapporteur is leaning towards a similar solution. However, there exists a second problem which the differentiation between "injured State" and "State with a legal interest" does not solve. That is the question of the proportionality of countermeasures. In his Second Report89 the Special Rapporteur justly points out: "The Draft articles, however, contain no provision dealing with the possible consequences of many States taking countermeasures in response to a wrongful act ... It appears that proportionality under article 48 is judged on a bilateral basis, as between the injured State and the target State, so that there is no mechanism for assessing the overall proportionality of conduct taken by way of 'collective countermeasures'. This is, however, a broader consequence of the width of the definition of "injured State", and of the fact that all injured states are treated by article 40 in the same way, whether the internationally wrongful act specifically concerns them or whether they are reacting, as it were in the public interest, to a grave breach of international law or of human rights."90 The Special Rapporteur proposes to resolve the difficulty91 but that is not easy. Since a truly collective organization of countermeasures will only happen sporadically, if at all, the only option would be a separate regime for countermeasures taken in response to the infringement of erga omnes obligations, probably by limiting the means that may be employed. But would that be appropriate in a case of systematic and massive violations of human rights? Be that as it may, the foregoing analysis leads to the submission that the law of state responsibility needs further development before it can be relied upon for the enforcement of erga omnes obligations.
88 89 90 91
See quotation at note 26. Doc. A/CN.4/498/Add.4 ,1999. Ibid, para. 15. Ibid, para. 33: "But these can be resolved in the framework of the consideration of Pan 2, and in the case of "collective" responses to breaches of obligations erga omnes, which have to be addressed in any event, in the context of article 40 and the incidence of obligations erga omnes."
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3. The State of Necessity a. The Context of the Draft Criminal as well as civil laws recognize that circumstances which make it either objectively impossible to fulfil an obligation or subjectively unavoidable to violate an obligation preclude either responsibility or wrongfulness. Since the ILC draft has eliminated fault from the constituent elements of an internationally wrongful act, it does not distinguish between responsibility and wrongfulness92 and lists as "circumstances precluding wrongfulness": consent, compliance with peremptory norms, self-defence, countermeasures, force majeure, distress, and state of necessity93. It is the state of necessity which is of interest in the present context, because it has been invoked by some writers as justification of humanitarian intervention94. b. Necessity The text of article 33 of the draft as adopted on first reading has been redrafted in order to take better account of erga omnes obligations. The former text had required that the act for which necessity was invoked was "the only means of safeguarding an essential interest of the State against a grave and imminent peril". Although the Special Rapporteur had not proposed a change in that formulation, the words "of the State" were nevertheless deleted during redrafting95. The new text suggests that necessity may be invoked by a state which is not directly affected, if it reacts against a violation of an erga omnes obligation which objec-
92
93
94 95
However, the Special Rapporteur apparently intended to propose such a distinction (Second Report, Doc. A/CN.4/498/Add.2, paras 341-347; repeated in the oral presentation, in: Report of the International Law Commission on the Work of its 51st Sess., 1999, UN GAOR 54th Sess., Doc. A/54/10, paras. 302-403. The Commission, however, did not follow his suggestion (ibid., paras 406-409). See the text of the articles adopted on second reading in Doc. A/CN.4/L.574 and Corr. 1, 2, 3. See under, V. 2. a. Cf. the Second Report of the Special Rapporteur (source in note 92), para. 290; and the Report of the ILC (source ibid.), paras 374, 379 and 383. The source for the new text quoted above and below is indicated in note 93.
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tively causes a grave and imminent peril. Provided, however, that no force is used, as is indicated by the following part of article 33: "(2) In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if: (a) The international obligation in question arises from a peremptory norm of general international law;" It was the commentary to that article as adopted on first reading which apparently gave rise to some misunderstandings concerning the extent to which the defence of necessity was precluded in respect of the prohibition of the use of force. Para. 23 of the commentary stated i.a.: "... the question might arise whether a state of necessity could be invoked to justify an act of the State not in conformity with an obligation of that kind [jus cogensj. The Commission is referring in particular to certain actions by States in the territory of another State which, although they may sometimes be of a coercive nature, serve only limited intentions and purposes bearing no relation to the purposes characteristic of a true act of aggression ... The common feature of these cases is, first, the existence of a great and imminent danger ... to people — a danger which the territory of the foreign State is either the theater or the place of origin, and which the foreign State has a duty to avert by its own action, but which its unwillingness or inability to act allows to continue. Another common feature is the limited character of the actions in question, as regards both duration and the means employed, in keeping with the purpose, which is restricted to eliminate the perceived danger ... The problem is reduced to knowing whether the Charter, by Article 2 para. 4, is or is not intended to impose an obligation which cannot be avoided by invoking a state of necessity."96 It is evident that what the Commission had in mind at the time when it adopted the commentary were limited incursions like the events in Entebbe. However, it did not give an answer to the question it had raised; it simply remarked: "The Commission considered that it was not called upon to take a position on this question. The task of interpreting the provisions of the Charter devolves on other organs of the United Nations."97 96
97
Report of the International Law Commission on the Work of its 32nd Sess., 1980, UN GAOR 35th Sess., Doc. A/35/10; commentary to article 33, para. 23. Ibid., para. 24.
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Whether it was intended or not, the commentary raised doubts about the absolute prohibition of the use of force and facilitated the academic arguments in favour of humanitarian intervention. As the present Special Rapporteur observed: "Thus it could be argued that article 33, while purporting not to take a position on the exception of humanitarian intervention, in fact does so, since such an exception cannot stand with the exclusion of obligations under peremptory norms. The commentary appears to suggest that this difficulty can be avoided by differentiating between the peremptory status of some aspects of the rules relating to the use of force (e.g., the prohibition of aggression) and the nonperemptory status of other aspects (e.g., the injunction against the use of force even when carried out for limited humanitarian purposes). By implication, therefore, necessity can excuse the wrongfulness of genuine humanitarian action, even if it involves the use of force, since such action does not, at any rate, violate a peremptory norm. »Qfi ™ Since the Kosovo intervention took place during the session of the ILC, the real-world events influenced the discussions. The Special Rapporteur had suggested in his Report: "This construction raises complex questions about the 'differentiated' character of peremptory norms which go well beyond the scope of the draft articles. For present purposes it seems enough to say that either modern State practice and opinio juris licenses humanitarian action abroad in certain limited circumstances, or they do not. If they do, then such action would appear to be lawful in those circumstances, and cannot be considered as violating the peremptory norm reflected in Article 2 (4) of the Charter. If they do not, there is no reason to treat them differently than any other aspect of the rules relating to the use of force. In either case, it seems than (sic) the question of humanitarian intervention abroad is not one which is regulated, primarily or at all, by article 33. For these reasons, it is suggested that the exception in article 33 for obligations of a peremptory character should be maintained."99 The Commission, alarmed by the danger of abusive reliance on the concept of humanitarian intervention, agreed with the suggestion of the
Second Report on State Responsibility, 1999, Doc. A/CN.4/498/Add.2, para. 286. Ibid., para. 287.
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Special Rapporteur and requested that the point be made in the commentary, to ensure that the state of necessity was not improperly invoked. It is thus absolutely clear that in the opinion of the ILC the lawfulness or unlawfulness of humanitarian intervention has to be established by interpreting the primary norm in Article 2 para. 4 of the Charter and not by invoking the state of necessity.
V. Humanitarian Intervention 1. The Concept a. An Academic Rediscovery As has been shown, institutionalized community procedures are either insufficiently developed or inefficient in preventing or stopping infringements of ergo, omnes obligations, especially massive violations of human rights. This leads sometimes to particularly unpleasant situations, when media reporting of systematic and massive human rights violations puts governments under public pressure to take decisive action towards ending them, while the community mechanisms which they could use are either powerless or unwilling to act. This dilemma prompted some academics to rediscover the concept of humanitarian intervention, which was in great political favour throughout the 19th century and until World War I, sometimes as a cover for imperialistic designs. It is therefore necessary to clarify the term before its present use can be studied. The term is fluid and used in political language for a broad range of phenomena. Non-violent forms include intercession, diplomatic representation, protests, economic pressure, embargoes. Military forms range from quasi-surgical incursions of short duration and limited purposes (e.g. Entebbe) to temporary invasions with large-scale, sustained military combat operations (e.g. Yugoslavia/Kosovo)100. The term was also borrowed to describe peace-keeping and peace-making operations (e.g. Congo 1960) of the United Nations101. Considering 100
101
Cf. Th. Schilling, "Zur Rechtfertigung der einseitigen gewaltsamen humanitaren Intervention als Repressalie oder als Nothilfe", AYR 35 (1997), 430 et seq., (430-431). The most recent decisions of the Security Council involving violations of human rights concerned the security areas in Iraq (1991), Liberia (1992),
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them all together under a single heading is misleading because different rules of international law apply to them. Leaving aside UN action, which will be considered later102, it seems reasonable to distinguish between "humanitarian intercession" which would be anything below the level of force, and "humanitarian intervention". Only the latter is examined here. Humanitarian intervention is thus understood as a forceful military incursion into foreign territory for the purpose of preventing or ending grave and systematic violations of human rights, perpetrated either against the entire population or against a minority. b. Conditions The concept of humanitarian intervention was mainly rediscovered during the last decades in the Western world, particularly by some legal schools in the United States. It is also part of the vocabulary of big powers. For many states, on the other hand, particularly for those in Africa and Latin America, humanitarian intervention, because of its previous misuse, is a spectre. And for many European legal scholars belief in the UN system it is an article of faith, after the experience of two World Wars on the continent. Views on the legality and even legitimacy of humanitarian intervention are, therefore, divided among states as well as among scholars103. To dispel any misgivings, the academic pro-
102 103
Somalia (1992) and the Former Yugoslavia (1992). On the issue cf. Y. Kerbrat, La, reference an Chapitre VII de la Charte des Nations Unies dans les resolutions a caractere humanitaire du Conseil de Securite, 1995; H. Gading, Der Schutz grundlegender Menschenrechte durch militdrische Maftnahmen des Sicherheitsrates — Das Ende staatlicher Souverdnitat?, 1996; M. Lailach, Die Wahrung des Weltfriedens und der internationalen Sicherheit als Aufgabe des Sicherheitsrates der Vereinten Nationen, 1998, 183 et seq. Critical M. Koskenniemi, "The Police in the Temple: Order, Justice and the UN: A Dialectical View", EJIL 6 (1995), 325 et seq. Below, Part VI. 2. a. The contradiction inherent in the use of force for humanitarian purposes is exposed by A. Roberts, "Humanitarian War: Military Intervention and Human Rights", Int'l Aff. 69 (1993), 429 et seq.; and by Ch. Schreuer, "Comment", in: J. Delbriick (ed.), The Future of International Law Enforcement. New Scenarios — New Law?, 1993, 147-153, (150): "... military humanitarism is a contradiction in itself."
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ponents of humanitarian intervention104 propose to put certain limitations on the freedom of action of future intervenors. The following conditions seem to be common ground among them: — There should be no (overriding) selfish interest involved on the side of the intervenor, so that the abuse of humanitarian intervention as an excuse for selfish political or economic motives would be excluded105. That request discloses the naivety of the authors as far as motives of states are concerned: No state acts solely out of moral indignation. -
The magnitude of the military involvement should be proportionate to the gravity of the human rights violations and should not cause more human loss and tragedy that it purports to prevent or eliminate. Moreover, the intervention should not, by itself, constitute a threat to international peace and security106. It is not disclosed how the strategic and tactical requirements of a large-scale military operation may be squared with these conditions, nor how a military invasion may avoid being regarded as a threat to international peace and security, especially when the target state defends itself. - Recently the request has been added that the intervenor must painstakingly observe international humanitarian law107. Not all authors agree on the point in time when humanitarian intervention becomes legitimate in their view. The majority argues that since
104
105 106 107
Even before NATO's intervention in Yugoslavia the legal literature on humanitarian intervention was so extensive that it is not possible to deal with each view in the present context. However, W.D. Verwey, "Humanitarian Intervention and International Law", NILR 32 (1985), 357 et seq., is a carefully researched summary of the different schools of thought in well balanced form; for this reason references below are to that paper, unless a very special attitude requires reference to the original work. For a good overview of the trends in the United States and of their critics cf. particularly the contributions of Baxter, Brownlie, Falk, Fonteyne, Franck and Goldie in: R.B. Lillich (ed.), Humanitarian Intervention and the Charter of the United Nations, 1973; and D.J. Scheffer/R.N. Gardner/G.B. Helman, Post-Gulf War Challenges of the UN Collective Security System: Three Views on the Issue of Humanitarian Intervention, 1992. Verwey, see above, 371. Ibid., 418. J.A. Frowein, "Der Schutz des Menschen ist zentral", Neue Ziircher Zeitung, Nr. 163 of 17/18 July 1999, 62.
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humanitarian intervention is a protective and not a punitive measure, it may be undertaken to prevent grave violations, such as genocide, if they are imminent108. The judgement of the ICJ in the Case concerning the Gabcikovo-Nagymaros Project1^, which addresses the same basic problem, although in the context of environmental protection, lends support to that proposition — provided the intervention is otherwise legal.
2. Its Justification a. Article 2 para. 4 of the Charter The legality of a forceful humanitarian intervention by individual states without a mandate of the Security Council depends, as the discussion in the ILC, referred to above110, indicates, on the interpretation of Article 2 para. 4 of the Charter111. The state of necessity, on which some writers112 rely as a justification, is irrelevant in the context since it may not be invoked against a rule of jus cogews113 which the prohibition of the use of force undoubtedly is. The advocates of the legality of humanitarian intervention interpret Article 2 para. 4 restrictively. Their main argument is that such intervention was not directed against the territorial integrity or political independence of the target state. They argue further that humanitarian intervention was not inconsistent with the purposes of the United Nations since the protection of human rights is also one of the main purposes, on the same footing with the maintenance of international peace
108 109
110 111 112
113
Verwey, see note 104, 370. Hungary/Slovakia, ICJ Reports 1997, 7 et seq., (42, para. 54): "That does not exclude, in the view of the Court, that a 'peril' appearing in the long term might be held to be 'imminent' as soon as it is established, at the relevant point in time, that the realization of that peril, however far off it might be, is not thereby any less certain and inevitable." See above, Part IV. 3. b. For the following summary cf. Verwey, see note 104, 378-398. E.g. Verwey, see note 104, 417—418; or, implicitly, Th. Franck, "Fairness in the International Legal and Institutional System", General Course in Public International Law, RdC 240 (1993), 23 et seq., (256-257). Critically Schilling, see note 100, 438^44. See above, Part IV. 3. b.
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and security. In a concrete situation the latter must be weighted against other main purposes, like "justice" (Article 1 para. 1) or "respect for human rights" (Article 1 para. 3). It is interesting to note that during the decolonization period states and authors from the non-aligned group also argued that the purpose of "peace" was not superior to the purpose of "justice". Some defenders of humanitarian intervention refer also to the inefficiency of the United Nations: Since the Security Council made no or only insufficient use of its powers under the Charter to protect human rights, the rights of states under traditional customary international law, including the right to intervene for humanitarian purposes, were restored. The critics rely on an extensive interpretation of Article 2 para. 4 and reject these arguments. They maintain that the expression "territorial integrity" in Article 2 para. 4 included the inviolability of the territory: The drafting history of the provision proved that no limitation of the comprehensive prohibition of the use of force was intended by the drafters. The reference to the "other purposes of the United Nations" would, moreover, close any existing gap. The maintenance of international peace and security was the main purpose of the United Nations and for the sake of that purpose "justice" must sometimes give way. In sum, the letter and spirit of the Charter prohibited the individual use of force independently of the motive, except in self-defence. Nor could the claimed inefficiency of the United Nations be a justification for humanitarian intervention. The ICJ had already held in the Corfu Channel Case in 1949, that a right to forceful intervention had no place in international law, "whatever be the present defects in international organization"114. On balance, and considering the object and purpose of the system of the United Nations, the arguments in favour of an extensive interpretation of Article 2 para. 4 of the Charter are more persuasive than those proposing a restrictive construction — at least as long as it cannot be convincingly demonstrated that emerging customary international law had modified the respective provision.
114
ICJ Reports 1949, 4 et seq., (35).
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b. Moral Philosophy It should by now be obvious that the legal debate on the interpretation of Article 2 para. 4 of the Charter conceals a underlying difference of values and interests. As far as interests are concerned, it is not surprising that mainly big powers, like the United States or, formerly, the Soviet Union, defend the right to intervene in foreign states under certain circumstances, and that authors from these states are prominent in the defence of its legality. After all, great powers do have the necessary means and, according to Talleyrand's definition, universal interests. The disparity of values is a more complex problem. The Charter provides no procedure for and does not indicate how conflicts between different purposes enunciated in Arts 1 and 2 of the Charter are to be resolved. Whether peace and justice, or sovereignty and human rights are equal values, or whether one should prevail over the other, cannot be answered on the basis of existing positive law. This is why some defenders of humanitarian intervention have recourse to pre-positive moral systems in support of their proposition115. This way of arguing has two weaknesses: First, having recourse to morality makes it difficult to explain why comparable situations are treated differently, humanitarian intervention taking place in some, but not in others (e.g. in Turkey protecting the Kurds, or in Tibet and Chechnya). Secondly, moral imperatives do not invalidate rules of law, however much an actor may feel justified by the former to disregard the latter, unless they develop into a general opinio juris and are confirmed by state practice, a proposition that will be examined below. c. Was the Law of the Charter Changed? In its judgement in the Nicaragua Case the ICJ held that the prohibition of the use of force had been transformed from a Charter obligation into an obligation under customary international law116. If that is the case, the customary formation of an exception of humanitarian intervention or, at least, of the exclusion of wrongfulness, is possible, if the modification fulfils the conditions of jus cogens, i.e. it is "a subsequent
115
116
See e.g. F.R. Teson, Humanitarian Intervention: An Inquiry into Law and Morality, 1988; probably the most stringently argued thesis of this kind. Source in note 32, paras 181 and 190.
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norm of general international law having the same character"117. The maxim ex injuria jus non oritur would not apply in this case since the first act in the process of modifying customary international law will always appear as a violation of the existing norm. If, however, other states accept the new conduct, either by emulation or connivance, the originally illegal act becomes the origin of new custom. Since 1945 individual states or groups of states have intervened militarily in other states on a number of occasions and under various pretexts, sometimes by claiming humanitarian purposes. Without attempting completeness, the following targets may be mentioned: Hungary (Warsaw Pact, 1956), Congo (Belgium, 1960), Dominican Republic (USA, 1965), CSSR (Warsaw Pact, 1968), East Pakistan (India, 1971), East Timor (Indonesia, 1975), Angola (South Africa, 1975), Cambodia/ Kampuchea (Vietnam, 1979), Uganda (Tanzania, 1979), Central African Republic (France, 1979), Grenada (USA and members of the Organization of East-Caribbean States, 1983), Panama (USA, 1989), Liberia (ECOWAS, 1990-1992). Have these interventions and the responses thereto — none provoked Security Council measures under Chapter VII of the Charter against the intervenor — changed the law? The evidence is not yet convincing118. A recent survey by EK. Abiew119 comes to contradictory conclusions. On the one hand, the author claims that "[t]he advent of the UN Charter suggests that the customary institution of humanitarian intervention still exists, and is not inconsistent with the purposes of the UN. Thus, in the event of failure of collective action under the Charter, there is a revival of forcible self-help measures to protect human rights. This is buttressed by the doctrinal writing."120. It is not clear whether this is intended as a statement of fact or one of law, because the author admits, on the other hand: "It is apparent that although support for humanitarian intervention is gaining currency, there are still various actors opposed to its use. In order to get closer to an 117 118
119
120
Article 53 of the Vienna Convention on the Law of Treaties. See Roberts, see note 103, 448. The UK Foreign and Commonwealth Office Foreign Policy Document No. 148, reprinted in: BYIL 57 (1986), 614 et seq., came to the conclusion that "the overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention ...". F. Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention, 1999. Ibid., 132; see also 222 and 246.
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international consensus, a clearer articulation of principle is necessary to further enhance the legitimacy of humanitarian intervention."121 This latter statement argues against a modification of the norm of jus cogens concerning the use of force having taken place, since that requires acceptance by the international community as a whole. This makes it necessary to enquire whether NATO's intervention in Yugoslavia has finally dipped the balance and changed the law. Before that question can be answered, one has to settle the preliminary question whether the operation was in fact a humanitarian intervention122. The operation was not officially labelled a humanitarian intervention, but its presentation in the media implied it tacitly. And it had, indeed, some features of a humanitarian intervention, yet it failed to fulfil conditions which the academic proponents had considered essential123. If it is the aim of humanitarian intervention to prevent or stop atrocities, then the manner in which the operation was undertaken did not achieve this. The persecution of ethnic Albanians increased during the intervention and lasted for six weeks124. It seems an inevitable conclusion that with the means which states are in fact prepared to use in such cases and the manner in which they want them used ("no loss of soldiers"), the conceptive aim of humanitarian intervention cannot be achieved under similar circumstances. Although the interests involved may not have been "overridingly selfish", interests there were, even if they were not in the narrow sense "selfish". The danger of the conflict spilling over to neighbouring states and the need to prevent "Greater Serbian" ambitions to destabilize the whole Balkans were presumably as relevant as the suffering of the ethnic Albanians. Proportionality of means is difficult to assess. Much of the military action seems to have been less designed to aid the victims directly than 121
Ibid., 256.
122
It provoked a lively discussion among scholars which is too extensive to be documented in full. Cf. e.g. B. Simma, "NATO, the UN and the Use of Force — Legal Aspects"; A Cassese, "Ex injuria jus oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?"; and K. Ambros, "Comment", all in: £//L10(1999),No.l. See above, Part V.I.b. Cf. Ch. Schreuer, "Is there a Legal Basis for the NATO Intervention in Kosovo?", International Law Forum du droit international 1 (1999), 151154, (153).
123 124
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to put pressure on the leadership and population of Serbia125. Without confusing cause and effect, it is nevertheless true that the suffering of the ethnic Albanians increased during the operation and new suffering was inflicted on the population of Yugoslavia (Serbia) through the bombardments. As far as the "painstaking observance of international humanitarian law" is concerned, it may be doubted that the choice of some targets and the use of some weapons conformed to that requirement126. Attacking installations which supply the civilian population with water or electricity, destroying bridges over the Danube far away from Kosovo, are actions which are causing doubts. In conclusion it is submitted that the intervention of NATO in Yugoslavia did not conform to the model -which the academic supporters of humanitarian intervention have put forward as legitimate. It has thus not contributed to forming a customary exception to the prohibition of the use of force in favour of humanitarian intervention. On the contrary, it raises the question whether the idea of humanitarian intervention should be maintained in the light of the experience, even as an academic proposition.
VI. Perspective of the Future 1. A Conflict of Laws Regulation a. The Lack of Consensus on the Hierarchy of Basic Values Norms with an erga omnes character do not have the purpose of safeguarding rights and interests of one state vis-a-vis another. They are the expression of the international community's concern with basic values that underlie the international system, or of the intention of a community established by a treaty to realize a programme based on the members' common values or interests. When two or more norms of this character apply in a given situation and the conduct required by one contradicts the other, a conceptual conflict arises. This is particularly true when a value underlying traditional international law, like sover-
125
Ibid.
126
See text at notes 6 and 107.
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eignty, conflicts with a value underlying a more recent addition to that body of law127. Non-intervention and the protection of human rights are a wellknown instance of such a conflict128. For decades the United Nations have been the forum of acrimonious debate on which of the two was to have precedence over the other. Among the Member States of the OSCE (formerly CSCE) the issue was resolved when the Moscow Meeting of the Conference on the Human Dimension recognized in 1991 that compliance "with the obligations which they had accepted in this field "was not an exclusive matter of the State concerned"129. But on the global level the "Vienna Declaration" of the World Conference on Human Rights (1993) admits only by implication that compliance with human rights obligations is a matter of international concern. Objectively one may say that while it is no longer a generally shared view that compliance with human rights obligations is a matter exclusively within the domestic jurisdiction of every state, there exists, on the other hand, probably no consensus within the international community as a whole in this sense, or on the relation between human rights and sovereignty or peace in general130. There are other examples of such conflicts, for instance between the uti possidetis juris principle131 and the right to self-determination and,
127
128
129
130
131
For an interesting discussion of the dilemma in respect of humanitarian intervention see H. McCoubrey/N.D. White, International Organizations and Civil Wars, 1955, 14-15, who see a possible justification of humanitarian intervention by force, which objectively violates the jus cogens norm banning the use of force, in the breach of the other peremptory norm of international law prohibiting genocide. But they also argue strongly that "humanitarian intervention cannot be justified within the terms of the UN Charter, except as collective right authorized by the Security Council", 15. Cf. U. Beyerlin, "Menschenrechte und Intervention", in: B. Simma/E. Blenk-Knocke (eds), Zwiscben Intervention und Zusammenarbeit, 1979, 157 et seq.; and the Resolution of the Institut de droit International on "The Protection of Human Rights and the Principle of Non-intervention", Annuaire de I'Institut de droit international 63-11 (1990), 338-345. See S. Pollinger, Der KSZE/OSZE Prozess, Laxenburger Internationale Studien 12,1998, 110. Cf. V. Dimitrijevic, "Human Rights and Peace", in: J. Symonides (ed.), Human Rights: New Dimensions and Challenges, 1998, 47 et seq. Cf. S. Torres Bernardez, "The 'Uti Possidetis Juris Principle' in Historical Perspective", in: Ginther, see note 48, 417 et seq.; and E.K.M. Yakpo, "The
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what is perhaps even more disturbing, these conflicts invade positive law when its rules are the expression of such values. Thus, diplomatic immunity from the jurisdiction of the receiving state, as formulated in article 31 para. 1 of the Vienna Convention on Diplomatic Relations^ conflicts with the human right of equality before courts and tribunals and with the human right to have a legal claim judged, both of which are guaranteed by the Universal Declaration (arts 7, 8 and 10 as well as by the UN Covenant on Civil and Political Rights (arts 14 para. 1 and 17 para. 2)132. b. The Need for a Conflict of Norms Regime Up to now, new rules which are created in the course of developing international law are simply added to its body even if there exist doubts about their conformity with already existing rules, in the pious hope that concordance will pragmatically evolve in the course of time. Occasionally this pragmatism is rewarded when judges or other decisionmakers express a preference in the guise of interpretation. The ICJ, for instance, stated in its Advisory Opinion on Certain Expenses of the United Nations: "The primary place ascribed to international peace and security is natural, since the fulfilment of the other purposes will be dependent upon the attainment of that basic condition"133. This statement stands as a judicial pronouncement134, but is misleading in its generality. It gives the impression of having been reached by rational reasoning. In fact, however, it is the result of a value judgement made in a specific situation. The Court's choice, to give preference to peace over other purposes of the United Nations, is not necessarily generally shared or applicable in all circumstances. This shows clearly what would be needed: A rational, legal procedure in the form of a conflict of values/rules regime by which priority
132
133 134
African Concept of uti possidetis — Need for Change?", in: Yakpo/Boumedra, see note 61, 271 et seq. For another, but similar example see I. Seidl-Hohenveldern, "Functional Immunity of International Organizations and Human Rights", in: W. Benedek et al. (eds), Development and Developing International and European Law, Essays in Honour of K. Ginther, 1999, 137-149. ICJ Reports 1962, 151 et seq., (168). Approving M. Bedjaoui, "On the Efficacy of International Organizations: Some Variations on an Inexhaustible Theme ...", in: Blokker/Muller, see note 38, 7 et seq.
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could be determined without recourse to intuitive interpretation. It should permit an objective determination of the priority in a given group of values or between the norms derived from them; in other words: which of them should prevail in a given situation. That need is even greater in regard to the conflict of rules of positive international law. We witness an ever growing application of such rules by domestic courts and tribunals135 and their judges are not always familiar with the particularity of international law; they need firmer guidance than they receive today if a relatively uniform application of international law is wanted. Otherwise, this trend will fracture international law even further than is already the case, into 190 or so "international laws as applied by ..."
2. Improving Community Action a. Reforming the Security Council It is a complete misreading of the actual situation to suppose that an increase in the membership of the Security Council and the nomination of additional permanent members would make the Council more operational or bring about a change in its attitude towards enforcing the protection of human rights or of other erga omnes obligations, for instance in the field of environmental protection. It is the nature of the powers vested in the Security Council and the manner in which the Charter regulates their use which causes the problem; the Council's composition is of secondary concern. The Security Council is a political organ, a fact which is often ignored. It may enforce but is not obliged to do so. Experience shows that it acts only when it is in the collective interest of its members. If such a collective interest does not exist spontaneously, only one permanent member, the United States, may in the current situation rally support for its own interest or what it perceives as community interest, and build up a corresponding consensus among the other members — although it sometimes fails. As the Secretary-General of the United Na-
135
Cf. J.A. Frowein, "The Implementation and Promotion of International Law Through National Courts", in: International Law as a Language For International Relations, see note 3, 85 et seq. and Th. Franck/G.H. Fox (eds), International Law Decisions in National Courts, 1996.
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tions, Kofi Annan, stated in his Annual Report on the Work of the Organization in 1999: "The past decade has been a period of tension and difficulty for the United Nations as it has sought to fulfil its collective security mandate. Earlier this year, the Security Council was precluded from intervening in the Kosovo crisis by profound disagreement between Council members over whether such an intervention was legitimate. Differences within the Council reflected the lack of consensus in the wider international community. Defenders of traditional interpretations of international law stressed the inviolability of State sovereignty; others stressed the moral imperative to act forcefully in the face of gross violations of human rights. The moral rights and wrongs of this complex and contentious issue will be the subject of debate for years to come, but what is clear is that enforcement actions without Security Council authorization threaten the very core of the international security system founded on the Charter of the United Nations. Only the Charter provides a universally accepted legal basis for the use of force."136 Although the members of the Security Council are bound, like all other members of the United Nations, by Article 56 of the Charter "to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55", which include "universal respect for, and observance of, human rights and fundamental freedoms "(Article 55 lit.(c)), no remedy exists if they do not observe that obligation in their decision-making in the Council. In a few recent instances the Council adopted measures against violations of human rights137. The security zones in Iraq (1991), Liberia (1992), Somalia (1992) and Bosnia (1992) are examples thereof. But the pattern of decisions is inconsistent, and massive human rights violations are only occasionally considered as constituting per se a threat to international peace, without necessarily requiring a danger to the security of other states138. No consensus has yet emerged on the questions why
136 Preventing War and Disaster. A Growing Global Challenge, 1999, para. 66. See the literature cited in note 101. 138 Cf. H. Freudenschuss, "Article 39 of the Charter Revisited: Threats to the Peace and the Recent Practice of the UN Security Council", Austrian J. Publ. Int. Law 46 (1993), 1 et seq. 137
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and when the United Nations should intervene in a civil war, either among states or in the academic community139. It does not seem that reforming the membership of the Council would affect these basic conditions. It would be delusive to expect an improvement of the record in the near future. Even if a reform were to happen, the Security Council's lack of means of enforcement — other than those which states will provide voluntarily, which they usually do only when their interests are affected — would leave it basically impotent. It is again the Secretary-General of the United Nations who put this succinctly: "Disagreements about sovereignty are not the only impediments to Security Council action in the face of complex humanitarian emergencies. Confronted by gross violations of human rights in Rwanda and elsewhere, the failure to intervene was driven more by the reluctance of Member States to pay the human and other costs of intervention, and by doubts that the use of force would be successful, than by concerns about sovereignty."140 b. Increasing the Supervisory Functions of Other Organs As the survey of these functions141 has shown, they are primarily directed towards prevention. Their development may, hopefully, reduce the probability of enforcement measures becoming necessary. It would thus be desirable that all conventions which establish erga omnes obligations would also establish supervisory organs and give them adequate powers to exercise supervision. Reporting systems alone, valuable as they may be under certain circumstances, will not suffice. Some element of verification should be added to reduce the temptation to fudge the reports. Yet, in view of the general unwillingness of states to accept verification in fields in which their own direct interests do not require it, as they do in the context of disarmament and arms reduction, chances for such an evolution in the near future must be considered slim. 139
140 141
Cf. L. Fissler Damrosch (ed.), Enforcing Restraint: Collective Intervention in Internal Conflicts, 1993; and E. Mortimer, "Under What Circumstances Should the UN Intervene Militarily in a 'Domestic Crisis'?", in: International Peace Academy, Peacemaking and Peacekeeping for the Next Century, Report of the 25th Vienna Seminar, 1995, 33-34. Kofi Annan, see note 136, para. 67. Part II. 2.
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Nor is there a realistic prospect of improved enforcement powers of international organs. This is not only due to the reluctance of states to submit to an independent evaluation of their compliance with international obligations, although they have voluntarily accepted them. More relevant is the fact that means of enforcement are only exceptionally available to international organs. The withdrawal of incentives provided for in the Montreal Protocol142 is made possible by the existence of such incentives under the Protocol in the first place, a feature which is difficult to duplicate in other areas, such as human rights or humanitarian law. Yet the idea of including incentives, which can be withheld as sanction, should be considered for inclusion in future environmental protection treaties and for the eventual revision of existing ones.
3. Greater Use of Individual Enforcement? a. Should States Be Encouraged to Make Use of Universal Criminal Jurisdiction? The Pinochet Case143 suggests still another mode in which erga omnes obligations, at least in the field of human rights law or humanitarian law, may be enforced. For the present purpose it is not necessary to enter into the discussion on whether the right to prosecute derives directly from international law, as in the case of war crimes under customary law144, or requires implementing domestic law, enacted in consequence of an enabling rule of customary or conventional international law, as do most other delicta juris gentium145. Whether, e.g. piracy is an international crime, or is rather a matter of international concern as to which international law accepts the jurisdiction of all states, does not make an important difference, except in one respect: In the first case it may be argued that it is a duty to prosecute, whereas in the second case prosecution is a right or freedom, not an obligation. 142 143
144 145
See above Part II. 2. d. The final decision of the House of Lords can be found in the internet: http://www.lemonde.fr/actu/international/chili/pinochet/jugem2403/ jugeml.htm Cf. Marschik, see note 55. See R. Wolfrum, "The Decentralized Prosecution of International Offences Through National Courts", in: Y. Dinstein/M. Tabory (eds), War Crimes in International Law, 1996, 233 et seq.
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Surprisingly, however, few conventions establish such a duty; examples are: The Geneva Conventions of 1949 and Additional Protocol I146, the Genocide Convention (arts IV and V), and the Convention Against Torture (arts 4 and 5). If one follows the opinion of the US Restatement that "a state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern"147, which entails the jurisdiction to enforce such criminal laws through its courts148, "recognition" of the concern by a multilateral treaty offers a clear-cut case but is not indispensable. "Universal concern" could also be expressed in other ways, for instance in a relevant opinio juris. It would thus become necessary to develop such an opinio juris in respect of grave violations of human rights or of environmental protection laws, perhaps with the help of relevant NGOs. The Pinochet Case has yet another aspect, which is the immunity of Heads of State under international law in foreign countries149. The Lords, especially Lord Goff, distinguished nicely between immunity ratione personae of a serving Head of State and immunity ratione materiae which continues after he leaves office. The majority of the Lords, and this is best expressed by Lord Saville, found that — at least since the entry into force of the Torture Convention (26 June 1987) — an exception or qualification of the general rule of immunity ratione materiae exists in consequence of the Convention's language. This tends to show that a general opinio juris permitting the exercise of universal jurisdiction in respect of grave violations of human rights, which derive from a convention that does not contain an explicit provision about the criminalization of its violations, would not permit prosecution abroad when the incriminated acts were committed or ordered by Heads of State or other officials with a claim to immunity ratione materiae. This argues in favour of not relying on the eventual development of custom. The right and duty to prosecute should be spelled out
146 147
148 149
See above, Part III. 1. b. Restatement of the Law Third, The Foreign Relations Law of the United States, 1987, §404. Ibid., §423. For the following see G. Handl, "The Pinochet Case, Foreign State Immunity and the Changing Constitution of the International Community", in: Benedek, see note 132, 59 et seq. Cf. also P.J.I.M. de Waart, "Pinochet: To Be or not to Be Immune", ibid., 185-199.
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in future human rights conventions and should be an item in the eventual revision of existing ones. b. Has Humanitarian Intervention a Future? The foregoing study of humanitarian intervention confirmed the view that the law of the Charter has not changed, in spite of numerous transgressions. In other words: the use of force for humanitarian purposes, without authorization by the Security Council, remains highly controversial. Arguments against a restrictive interpretation of the prohibition of the use of force appear, on balance, to be more persuasive than those in favour of it. Does that mean that military interventions by individual states, groups of states, or regional organizations, for humanitarian or other purposes, will not occur in the future? That does not appear likely; there are, rather, indications to the contrary. The new Strategic Concept of NATO, approved by the Heads of State and Government in Washington on 24 April 1999150 states i.a.: "31 ... NATO will seek, in cooperation with other organizations, to prevent conflict, or, should a crisis arise, to contribute to its effective management, consistent with international law, including through the possibility of conducting non-Article 5 crisis response operations". In a similar vein the European Council concluded in December 1999 in Helsinki151: "26. In accordance with the principles of the Charter of the United Nations, the Union will make its contribution to international peace and security. The Union recognizes the primary responsibility of the Security Council of the United Nations for the maintenance of international security. 27. The European Council affirms its determination to put the Union in a position to take autonomous decisions ... for initiating and implementing EU-led military operations in reaction to international crises."
150 151
Source http://www.nato.int/docu/pr/1999/p99-065e.htm Schluftfolgerungen des Vorsitzes, Helsinki, 10 und 11 Dezember 1999; II. Gemeinsame Europaische Sicherheits- und Verteidigungspolitik. Translation by the author.
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It is significant that the document refers to the "principles" of the UN Charter rather than to its provisions, and recognizes the "primary" responsibility of the Security Council, in a language reminiscent of the "Uniting for Peace" Resolution of the General Assembly of the United Nations. A variety of arguments have been developed for buttressing this position. Sometimes it is argued that NATO, or the EU, could claim the status of a "regional arrangement" under Chapter VIII of the Charter. These arguments seem to overlook that according to Article 53 para. 1 of the Charter, enforcement actions by regional arrangements need the authorization of the Security Council, although it is not entirely clear whether that authorization may not eventually be expressed subsequently or even by implication152. Moreover, such enforcement actions may not be undertaken against a non-member, unless requested by the Security Council153. Yet, that will perhaps spark off the argument that "crisis response operations" in the form of "humanitarian intervention" are not "enforcement actions". In a recent article in NATO Review154 Ove Bring argues in favour of NATO's formulating a doctrine on humanitarian intervention. He stipulates a number of conditions for such intervention, which are nearly identical with the conditions that emerged from the academic discussion155, except for two additions. Namely that "the Security Council must be unable or unwilling to stop the crimes against humanity" and that "the government of the state where the atrocities take place must be unable or unwilling to rectify the situation". He further recommends "using the 'Uniting for Peace' precedent to seek approval by the General Assembly as soon as possible; or the decision could be taken directly by a two-thirds majority in the General Assembly in accordance with the 'Uniting for Peace' procedure".
152
153
154
155
See Ch. Walter, Vereinte Nationen und Regionalorganisationen, Beitrage zum auslandischen offentlichen Recht und Volkerrecht, Bd.124, 1995, 289 et seq. Id., 310-317; cf. also J.A. Frowein, "Legal Consequences for International Law Enforcement in Case of Security Council Inaction", in: Delbruck, see note 103, 111 et seq., (122). O. Bring, "Should NATO Take the Lead in Formulating a Doctrine on Humanitarian Intervention?", NATO Review, On-line Library, http://www.nato.int/docu/review/1999/9903-o7.htm See above, Part V.l.b. Bring agrees i.a. that the intervention must be "in accordance with international humanitarian law of armed conflict".
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These are expressions of a growing unilateralism in international relations, typical signs of a hegemonial tendency. Presently, the international community, which was organized as a balance of power system in the Security Council, tends — after the decline of Russia — towards a hegemony by the United States which is, at least temporarily, supported by European NATO Members as junior partners. The new Russian doctrine of a multi-polar world (in fact a three-polar world, with Russia and China), is, for the time being, illusory. Unilateralism has a longstanding tradition in the United States156 and the tendency has now, apparently, infected Europe. Thus, circumstances permitting, we must reckon with further interventions in the future — if and when they are in the interest of the intervenors. But, as the latest example demonstrates, they will be a far cry from the academic model of humanitarian intervention.
156
Expressed e.g. in the wide claim of extraterritorial jurisdiction.
The UN Security Council and its Future Contribution in the Field of International Law What may we expect?1 Tono Eitel I. II.
Introduction The Security Council 1. Structure 2. Working Methods III. The Council's Future Contributions to International Law 1. The Council as a Political Organ 2. "Council Law" 3. Future "Council Law" a. Inactivity b. Possible Developments IV. Dangers to the Council's Role
I. Introduction When reading international law treatises, one sometimes can get the impression that the UN Security Council is a natural, unquestionable source of revelation-like decisions, which in turn, are open to interpretation but not to questioning. Yet that does not mean that implementation is guaranteed. Those who fail to implement Security Council
1
This article is based on a report given on 2 September 1999 to the German Commission on "Common Security and the Future of the Bundeswehr", chaired by the former President of the Federal Republic of Germany Richard von Weizsacker. The views expressed are mine. 53
J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, 53-71. © 2000 Kluwer Law International. Printed in the Netherlands.
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Resolutions may be either "Rogue States" or states that rely on the distinction between self-executing and non-self-executing resolutions. The foregoing is to say that the Council, when conceived, was meant to become a Holy Alliance of Oligarchs whose decisions would be taken in consequence of a multilateral parallelogram of forces; the veto given to the most powerful members of that alliance was to safeguard only the vital interests of the major powers and not, e.g. the interests of client states. However, history has not bypassed this oligarchy. What we now have is a sort of Pantheon with the U.S. as the mightiest, not yet almighty head god surrounded by the four other Veto Powers as equal immortals who then together allow 10 mortals to sit at their table for 2 years (Article 23).2 This Mount Olympus suffers from deficiencies and disappointments, from thwarted good intentions and unexpected frustrations, from intrigues and power play, sometimes building up to a small palace rebellion, but never to a really revolutionary upheaval. If the need for improvements of structure and procedure is evident, any reform, which would deserve that name, would have to amend the UN Charter and would for this reason need, among other things, the ratification by the five Veto Powers' parliaments (Article 108). This is an almost insurmountable threshold. For the foreseeable future we shall therefore have to live with what we have got. In the following I will try to predict what we may or may not expect from the Council over the next years in those fields that have repercussions in international law. I shall begin by a couple of points regarding structure and procedures of the Council which may be of relevance in this context.
II. The Security Council 1. Structure The outside view of the Council is well-known. We see the 10 nonpermanent members that are elected by the General Assembly according to an agreed geographical distribution for a two years' term. Thus Germany, for the first time after reunification, was a member for the years 1995/1996. We then see the all too well-known five permanent Any article cited without further indications comes from the UN Charter.
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members that owe their seat to Article 23, and, as is sometimes pointedly said, not to elections. It may be questioned whether all or any of the permanent members would be elected today, but one has to admit that Article 23 together with the rest of the Charter has been adopted, if under some pressure, unanimously. Permanent democratic legitimacy of the Permanent Five was not intended and deficiencies in that respect were foreseen and therefore remedied by (Charter) legislation, giving them permanence of membership and the veto. Since we no longer very often hear of a veto actually being cast, one could, at any given moment, expect to find a body of 15 members of rather equal status whose decisions are taken according to a structure based on political, social and/or geographical affinities. This is, however, not how the Council presents itself to an, even temporary, insider. To begin with the veto, the insider will find that it plays its principal role not when cast but throughout the deliberations when the Council is looking for and negotiating a decision. If a nonpermanent member expresses opinions and concerns, these are weighed against the other members' interests and, rather often, neglected. If, however, the identical concerns are expressed by one of the Permanent Five, they are taken seriously and, in one way or the other, accommodated, if necessary by dropping the entire draft, as it was done with the planned authorisation of an intervention in former Yugoslavia for the sake of the Kosovars which never reached the Council. There are cases, yet, where the proponents are content to demonstrate to the world who is for and who is against a certain action or solution. A recent case in point was the draft resolution submitted by Belarus, India, and the Russian Federation demanding the cessation of the use of force (by NATO) against the Federal Republic of Yugoslavia for which only China, Namibia and Russia voted.3 Usually, the Permanent Five, or "P 5" in shorthand, discuss among themselves any action foreseen by or happening in the Council and, to a certain extent, also outside it, e.g. elections in the UN System (with the aim to vote for each other) or reform proposals regarding the Council that are discussed in the General Assembly. By doing so they, at the outset, set the stage for the Council deliberations, in most cases narrowing the field of possible Council action down to the sector comprising their own intentions. It is rare, therefore, that the non-permanent members, commanding after all a twothirds majority, are free in their choice of options. More often than not Doc. S/1999/328 of 26 March 1999, in: UN Press Release SC/6659 of 26 March 1999.
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the first statements of permanent members indicate already the corridor within which the respective permanent member is prepared to operate. Complaints against a permanent member like the one of Sudan about the U.S. bombing of a pharmaceutical factory in Khartoum or questions about the Russian campaign in Chechnya have therefore little chance to get further than being touched upon in the informal consultations under "Other Matters." Also within the group of the P 5 there are still recognisable class distinctions: Most obvious is the one between the sole world power left, the U.S., on the one side and the other four permanent members on the other. No other power can be as efficient as the U.S. in underpinning its interests in the Council by bilateral representations in the capitals involved. Using stick and carrot from its impressive military and/or economic arsenals, the U.S. almost every time manages to bring around reticent or opposing delegations. The global presence and involvement of the U.S. gives it a simply unique leverage. No other permanent member can match this. At the other end of the scale we find China. Not only does China not command a comparable arsenal of compelling arguments, the Chinese do not show the same national interest in every event and agenda item. There is clearly one domain, in which they are vitally interested and that is the one-China Policy and its sometimes far flung derivates. There are other areas where the Chinese interest is evident, e.g. questions concerning the developing countries as a group (of which China considers itself a leader) or the rebuttal of too westernised ideas on human rights and intercessions, if not interventions on their behalf. On many questions, however, the Chinese delegation pronounces itself in more general terms and stays aloof of details. Different from China, Russia takes interest in every detail everywhere. This may be a habit kept from the days of the Soviet Union, when it was involved either geo-strategically or ideologically in any part of the globe. The Russian delegation still represents a giant, but this giant is temporarily and partially incapacitated. The Russians, therefore, avoid trouble if they can; they may criticise American neglect of rules, but leave it at that, satisfied to have made the point, as was done when CIA staffers who had no clearance for the Council room explained to the Council, presided over by the American delegate, the circumstances of the Cuban shooting down of two US civilian aircraft in 1996. The UK delegation clearly maintains the well-known special relationship with the U.S., whose immediate neighbour they are in the
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Council (as long as the United Republic of Tanzania is not a member of the Council separating the two due to the English alphabet). To the American power the British add their refined diplomacy. Since English has become the main working language in the Council, it is the British, who in close consultation with the Americans dominate the drafting process of most papers that leave the Council, adding polish and their own nuances when reworking drafts from other delegations whose English is less perfect. The British normally argue and vote with the U.S., the only recent example of a different vote that comes to mind being the vote on a second term for the Secretary-General BoutrosGhali in December 1996 when the U.S. was the only one to vote against while the UK, together with the other 13 members voted for a second term for Boutros-Ghali. In the following — informal — indicative votes this was not repeated any more. Together with the U.S. and the UK the French make up the group of the three western permanent members, or the "P 3". The French point of view coincides less often than the British views with those of the Americans. They have their "departements et territoires d'outre-mer" to look after, and the cohesion of the Communaute Fran$aise, i.e. what is left of the former colonial empire is to be maintained. Until recently, it was French troops that kept certain African governments in power, although, for a couple of years now, non-interventionism has been the mot d'ordre. What seems to come effortlessly to the two Anglo-Saxon states, the world wide interest in their language, has to be striven for by France; the "Francophonie" is seen as a mortar of the Communaute and as almost a sufficient reason to take sides. And, last but not least, there is, at least since Charles de Gaulle, a strain of political independence in Frenchmen — certainly in the "grands commis d'Etat" — so impressively impersonated by the inhabitants of a little Gallic village in Roman times. At present, the French position vis a vis Iraq, for example, is closer to the Russian than to the American position. Regarding the above mentioned re-election of the then Secretary-General BoutrosGhali at the end of 1996, the French were adamantly opposed to the American (and subsequently British) ousting of the incumbent, but finally gave in. In spite of these and other incidences of divergence, the P 5 are and will remain a group apart, conscious of their elevated rank, of the irritation and the bad will it is constantly creating, and of their interest to defend its status, if possible in harmony with each other. And then, there is a sixth permanent member of the Council that is hardly noticed from the outside, at least not in this function: The Sec-
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retary-General. He and/or his deputy from the Secretariat has, like the Permanent Five, been present since the beginning. He (normally a member of his staff) draws up the provisional agenda for each meeting of the Council (Rule 7 of its Provisional Rules of Procedure - PRP - ), acts as Secretariat for the Council (Rule 21 PRP), writes and keeps the records of the meetings and may make statements to the Council concerning any question under consideration (Rule 22 PRP). He is a living memory of the Council — a role of great importance in an environment where precedents carry enormous weight. But, the Secretary-General's influence in the Council derives even more from the habit of the Council to ask for a report from the Secretary-General for any major agenda item. These reports describe the factual situation as could be ascertained by the UN's world-wide networks of permanent or ad hoc "Rapporteurs" and, even more influential, in a final chapter "Observations" make an assessment of the situation, followed by suggestions and proposals how best to cope with it. Thus, the Secretary-General not only sets the stage for the Council's discussion, but even foreshadows its decisions, for, exceptions aside, the Council likes to follow the — neutral — Secretary-General's recommendations even if he has no vote. I personally rate his influence as at least as great as that of a Permanent Member. This explains why the politically interested member states lobby so vigorously for their nationals being hired by the Secretary-General for positions in the Secretariat. And, since the Secretary-General's reports carry this weight, interested delegations, of course, try to have their views reflected in the reports and sometimes bring heavy pressure to bear on the drafters of the respective report and on the Secretary-General himself. I have witnessed this on various occasions, and the former Secretary-General BoutrosGhali has described it in his memoirs.4
2. Working Methods According to my experience a Council decision (Resolution or Presidential Statement) is, in most cases, prepared through the following steps, the sequence of which may change: a. Kick off by the U.S. or in many other cases with the support of the U.S.; 4
Boutros Boutros-Ghali, Unvanquished, New York 1999, at 256 and 262 et seq.
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b. Preparation by the Secretary-General in a report (often in consultation with one or all of the P 5 and, of course, principally interested other members); c. Harmonising among the P 5; d. Lobbying with reluctant Council members by the proponents and the U.S. (or the U.S alone); e. Taking of the decision in the Council. A particular procedure is followed with problems that have a national or at least geographically defined dimension, e.g. the former Yugoslavia; for several of them some states with interest in the region have organised themselves in semi-official groups like the so-called "ContactGroup" for the former Yugoslavia (in New York called "Consultative and Drafting Group") or the "Friends of the Secretary-General for Haiti" (Canada, France, the U.S. and Venezuela) or the "Troika" (Portugal, Russia and the U.S.) for Angola. The Council normally leaves to these groups not only the initiative of raising a matter in the respective field of interest but also the drafting of a the decision itself. For this reason the NATO plan of intervening in Serbia and Montenegro on behalf of the Kosovars never reached the Council. Russia had it already rejected in the Contact Group. The above mentioned draft condemning NATO's intervention had by-passed the Contact Group and was nothing but a demonstration of helpless protest. A grave change of procedure has been introduced in the eighties: whereas the Council was meant to meet in public "unless it decides otherwise" (Rule 48 PRP) it is now the other way around: the Council meets daily in so-called "Informal Consultations" behind closed doors in a room especially arranged for these meetings. After the meeting, the President briefly informs the press. Only decisions (resolutions or presidential statements) that have been agreed upon to the last comma are taken to the well-known "Security Council Chamber" and are there publicly adopted, and only there interested members of the UN that are not members of the Council have a chance to address the Council — of course too late to change anything. This procedure does not violate the letter of any Charter Article or Rule of Procedure; Council members must be free to meet informally. The complete loss, however, of transparency and of the right of the concerned parties, e.g. Iraq, to address the Council in corpore while it is still in the process of deliberation can not, in my view, be reconciled with what the Charter calls "the principle of the sovereign equality of all its (the organisations) Members" (Article 2 para. 1). After all, many Council decisions "condemn" or
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"invite" etc. Member States and even institute harsh sanctions against them. Their right of a fair treatment and of what in Court procedures is called "due process" has been completely lost. The private meetings (Rule 48 PRP) that are now being held once in a while cannot make up for that. Here, as elsewhere, reform is urgently needed.
III. The Council's Future Contributions to International Law After this brief recapitulation of some of the Council's salient features I shall now turn to the question of what we may and may not expect from this important UN organ in the field of, or having repercussions for international law.
1. The Council as a Political Organ Given the Council's influence on the development of international law, e.g. the regime of sanctions or of the use of force, one could expect its members to indulge, in the appropriate situation, in juridical arguments. Yet, that would be a misconception. References to international law in the Council's informal consultations carry relatively little weight. "We are not at Court", or "where does this lead us to?" could be the reaction. For the sake of a solution behind which all Council members can rally, legal inadequacies are tolerated. It makes little sense therefore to look for legal logic in Council decisions: the Council is not a juridical, but a highly political organ.
2. "Council Law" All the same the Council's decisions claim validity in a global purview (Article 25). This is more than any legislator or court can hope for; the decisions of the ICJ, for example, have no binding force except between the parties (Article 59 of its Statute). Recommendations of the Council, e.g. under Chapter VI of the Charter, therefore will have at least to be weighed carefully and in good faith by the addressees; requests, e.g. under Chapter VII, will have to be implemented. For these binding requests one has to look in the operative parts of Council resolutions, not
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in their preambles which are there for explicative and interpretative comments, not in "Presidential Statements" which despite the unanimity on which they rest (the President does not speak for a majority) are there for opinions and expectations of the Council, and certainly not in the remarks of the President to the Press which are there to simply report on activities of the Council. The media normally attribute all these different statements of the Council or its President simply to "the Security Council" without heeding these decisive differences. Since the end of the cold war the Council produces resolutions in an ever-increasing frequency. I consider an annual number of about 50 resolutions a conservative estimate for the next years to come. The part of these resolutions that can claim binding force I would like to call "Council Law" and to put it into the same class as "Treaty Law" and "Court Law", the latter being the decisions of international courts of justice or arbitration. Council Law in this sense ranks higher than any other secondary law due to the all-encompassing nature of the UN Charter and the Security Council's vast competences. Council Law is not "soft law" but, comparable to decisions of the ICJ (Article 59 of its Statute), it is to be executed by the addressees and with respect to the material object of the Council's decision. Council Law is multifaceted. It comprises rules on interventions as in the cases of Somalia or Bosnia and Herzegovina, on economic and financial sanctions as in the case of Iraq, on the drawing of borderlines as in Palestine, or between Iraq and Kuwait, on the creation of subsidiary organs (Article 29) as in the case of Sanctions Committees or, an excursion into the field of the judiciary, the two regional penal tribunals (for the former Yugoslavia and for Rwanda), on police matters, as with the UN support mission in Haiti (1996) — in short on all aspects of international security and peace keeping, and this everywhere in the world from Cambodia to Guatemala. The most important contribution of the Security Council to the future development of international law will therefore be the addition of further case law to the already existing corpus of "Council Law".
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3. Future "Council Law" a. Inactivity I shall now venture a few forecasts on the future "Council Law", beginning with what the Council may not do (and what may not be done to the Council). aa) The Council will continue to live with its "provisional" rules of procedure, adopted at its first meeting and amended many times since, but never overhauled with a view to lifting them out of their provisionalism. Such overhaul would, without any doubt, do away with some features dear to the P 5 and would have to incorporate or to abandon the relatively recent practice of the "informal consultations". It will therefore remain untouched. bb) An improvement of the unjust and unfair status of nonmembers of the Council, especially those who are concerned by decisions (or inertia) of the Council, would probably need an amendment of Arts 31 and 32, would, as such, fall under the ratification requirement of Article 108 and stand a chance only as part of a larger package. To tie up such a package has been tried in vain by the General Assembly over a long time. The chances for such a package remain dim.5 Thus, a veto reform and an enlargement of the Council will have to wait, until pursued with more energy by those who are interested. cc) Also the Military Staff Committee (Article 47) will continue to hold its regular lunches without ever "advis(ing) and assist(ing) the Security Council on all questions relating to the Security Council's military requirements..." It may, though, advise the P 5, since the members of this Committee are staff officers of the P 5 which, perhaps gives their regular meals some sense as effortless meetings in times of tension. dd) There will continue not to be any "special agreements" as were foreseen in Article 43 between the UN and Member States because no Member State will "undertake to make available to the Security Council on its call and in accordance with (such) a special agreement or agreements, armed forces, assistance and facilities..." It is again primarily the P 5, and first of all the U.S., that are recalcitrant; they do not wish to grant the Council the freedom of manoeuvre which would make it less dependent on its (permanent) members. Troops will continue to be 5
See the well documented Article by I. Winkelmann, "Bringing the Security Council into a New Era", Max Planck UNYB 1 (1997), 35 et seq.
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contributed only ad hoc and after detailed consultations. The Secretariat, however, has been trying to do at least what is feasible and has been working on getting officers at least earmarked for a core headquarter for any peace-keeping operation to be decided. ee) I do not see the Council looking into environmental catastrophes as was recently suggested in an interesting academic thesis.6 Such situations, horrible as they may be, are a far cry from "the maintenance of international peace and security" (Article 24). ff) Finally, the Charter will continue to contain obsolete articles like the superseded names of two permanent members (China, Russia) in Article 23, and like the enemy state clauses (Arts 53 para. 2 and 107) dealing with World War II and the years immediately afterwards, and like Arts 82 and 83 on the Security Council's functions with respect to "a strategic area" which, together with the rest of the Chapters on Trusteeship (Chapters XI, XII, XIII), have lost their field of application after the emancipation of the last "strategic area" (Palau). As I have already said above, any charter revision will be brought about only as part of a package in the tying up of which, at present, there does not seem to be the necessary interest. b. Possible Developments I shall now turn to activities of the Council which I deem likely to happen in a not too distant future. aa) When "maintain(ing) or restor(ing) international peace and security" by armed forces (Article 42) — the so-called "Peace Enforcement" under Chapter VII of the Charter — the bad experiences made with the "double-key-approach",7 where certain competences in Bosnia were divided between the UN and NATO in such a way that they needed each other for action, will prevail. The reserve regarding a military UNCommand has grown and will prompt the Council to look for agents who, upon an authorisation by the Council, will act independently. If the Council will decide an armed intervention at all for which decision there may be little inclination, it will probably do so according to the Iraqi precedent, authorising a coalition of the willing. In Europe and the European glacis, that coalition could then consist of the members of
6
7
B. Fassbender, UN Security Council Reform and the Right of Veto, 1998, 210. Boutros-Ghali, see note 4, 146, 232-247.
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NATO. Already in the early nineties when monitoring the YugoslaviaEmbargo,8 the members of NATO had acted as immediate agents of the Council, using NATO as an instrument of co-ordination, rather than making NATO the Council's agent who in turn would put them to work. NATO has reservations about becoming a regional arrangement according to Chapter VIII of the Charter, not least because of the obligation to report to the Council (Article 54), as in general it does not like being a subordinate to any other international body.9 Other regional organisations in Africa, America or Asia do not seem to have similar difficulties. NATO's bombardment of Serbia and Montenegro for the sake of the Kosovars has taken place, to put it mildly, not under the auspices of the Security Council, and outside the UN Charter.10 It is hard to see why this emancipation from the Council should not encourage other organisations or even individual states to follow suit. NATO's insistence, that its bombardment should not be considered a possible precedent, points to the problem but does not solve it. The obvious weakening of the Council will, at any rate, make it much more difficult for it to preserve its authority. Its monopoly of armed intervention (as distinguished from self-defence, Article 51) has been openly broken and it will be very hard, indeed, to restore it. bb) The Council will, of course, continue to intervene selectively, at its discretion. The criteria will remain not the urgency of an intervention or action, e.g. the extent, the cruelty or the violence of a conflict, but the success in finding states that are ready to contribute what is needed for a complete operation, i.e. troops, equipment, logistics and 8
9
10
As encouraged by S/RES/713 (1991) of 25 September 1991 and the following resolutions on the former Yugoslavia. See e.g. the article by the US Under-Secretary of State Talbott, "Das neue Europa und die neue NATO", in: the German newspaper "Frankfurter Allgemeine Zeitung" of 5 February 1999, where this is explicitly stated. For a discussion of the legality see K. Ipsen, V. Rittberger, Ch. Tomuschat with articles under the heading "Der Kosovo-Konflikt" and T. Eitel, "Bewahrungsproben fur den Sicherheitsrat der Vereinten Nationen", Die Friedenswarte 74 (1999), 19 et seq. and 126 et seq., (137/138); J. A. Frowein, in: "Neue Zxircher Zeitung" of 17/18 July 1999 and L. Henkin, R. Wedgwood, J.I. Charney, Chr.M. Chinkin, R.A. Falk, Th.M. Franck and W.M. Reismann, Editorial Comments: "NATO's Kosovo Intervention", AJIL 93 (1999), 824 et seq.; G. Nolte, "Kosovo und Konstitutionalisierung: Zur humanitaren Intervention der NATO Staaten", ZaoRV 59 (1999), 941 et seq.; see also in this Volume the articles by Francioni and Neuhold.
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money. At least part of this normally comes from industrialised states, but they hesitate more and more to engage themselves, if the U.S. does not take the lead. This is why in the foreseeable future UN interventions, i.e. operations implying the use of force, will depend above all on the participation of the U.S. I assume that it will be more difficult to obtain such American lead in Africa than for example in the Middle East. Peace enforcement will be dispensed according to the political and financial rather than humanitarian or human rights interests. This is to be regretted, but with a highly political and politicised organ like the Security Council, this does not violate the Charter, and even less, general international law. There is no obligation under international law of an automatic mechanism or a right to equal treatment in this field. Article 42, as do the two preceding articles, leaves the Council free to act or not to act ("it may take such action...", "... may include...", etc). Thus intervention is one of several options given by the Charter to the Council, another option being simply to do nothing. To make the option of intervention a "monopoly" of the Council — in Germany this option is often and wrongly (cf. Article 51) described as "monopoly for the use of force" — seems to have been considered balanced, because the Council was expected to make use of its policing power of intervention on a more equitable basis. If the Council continues to shun intervention in the face of flagrant violations of peace, international security and human rights, as in the African Great Lakes District, if it continues to fight inertia by verbosity, then the temptation for interested parties to act as vigilante may become irresistible. Kosovo is a case in point. And it may be a positive consequence of NATO's Kosovo intervention to remind Council members of this extra-Charter alternative. cc) As illustrated by the Kosovo case where no attempt was made to turn the matter over to the General Assembly under the 1950 "Uniting for Peace" Resolution (A/RES/377 (V) of 3 November 1950), that resolution will, in my view, remain unused unless we go back to a cold war situation. Under present circumstances the coherence among the permanent members is too developed to allow for such a relapse. dd) Almost as unpopular as interventions by force has become another measure decided upon by the Council: the levying of more or less comprehensive sanctions, i.e. the prohibition of all or certain economic contact with a country and its nationals. Sanctions are no punishment but an effort to bend a state's behaviour into the desired direction (Article 41). Therefore the sanction has to be lifted upon compliance. The Council prefers sanctions to military interventions because most of it
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can be implemented from the writing desk and the only troops needed are those who would have to monitor or enforce it, a much less demanding task than fighting. The most comprehensive regime of sanctions ever implemented by the UN is the one decided against Iraq, beginning with Security Council Resolution 661 (1990) immediately after Iraq's invasion of Kuwait. The sanctions regime has been modified several times, but has basically remained in place for about ten years now. While the Iraqi government and administration appear totally unbent, even unimpressed, the population suffers to an extent hard to imagine for the want of food, medical supplies and other humanitarian goods. I personally doubt that the upholding of these sanctions is still justifiable under general international law: the means have proven their complete inefficiency and the collateral humanitarian damage is therefore grossly out of proportion. This missing of the Baghdad mark has almost entirely "iraqicized" the discussion on the suitability of comprehensive sanctions. An awareness has been growing that not in all cases and not under all circumstances could a population be expected to topple a totalitarian regime and be held accountable (by harsh sanctions) for not doing so. Thus, Haiti was invaded in 1994 by an UN Force (S/RES/940 (1994) of 31 July 1994) that ousted the military junta, after economic sanctions had not worked. Also the North Koreans are being helped with food in their struggle with the famine that ravages their ill-led country without anybody blaming them for their regime, considered by some dangerous as a so-called "Rogue-Regime". One consequence of this growing awareness will be that the majority of Council members will not levy comprehensive or partial sanctions anymore without having made provisions for the quasi automatic termination, as was for the first time done in S/RES/1298 of 17 May 2000 with respect to the arms embargo established regarding Ethiopia and Eritrea. The majority of UN and of the Council members does not wish a repetition of the Iraqi situation where the U.S. rejection, armed by the veto, keeps the Council majority from partly or totally lifting the sanctions. Altogether, future decisions on sanctions will reflect much more than before humanitarian considerations. Another consequence of the Iraqi experience is the effort to focus sanctions more on the political and military elites that are leading the country at which the Council aims. In co-operation with the UN Secretariat, Switzerland has from 1997 to 1999 organised the so-called
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"Interlaken Process on targeting UN Financial Sanctions";11 Germany, again in co-operation with the UN Secretariat, is at present (2000 to 2001) following suit with a "Bonn-Berlin Process on Smart Sanctions the next step; Arms Embargos and Travel Sanctions." ee) If interventions under Chapter VII of the Charter are enforcement measures without consent or even against the declared opposition of a certain state's sovereign, then there is below this threshold the wide field of "Peace-Keeping", in which the Security Council acts with the consent, even on request and invitation, of one or more states or parties of the conflict. When a need for peace-keeping was discovered,12 it was organised as a holding, a preserving operation, aiming above all at keeping at bay, at separating, hostile armies, as UNFICYP in Cyprus or UNIFIL in Southern Lebanon. Upon the experience made in the field this helpful intercession has over the last years been considerably enlarged into what is called "Peace Building". Necessarily it is less the military, the "Blue Helmets", that are needed in this context, but civil administrators (as in Eastern Slavonia or now in the Kosovo and East Timor),13 organisers and monitors of elections (as in Cambodia and in Bosnia), and an efficient and persuasive police force (as again in Bosnia and the Kosovo). It is easy to predict that this kind of rehabilitation or development assistance will remain an instrument in the Council's arsenal that will be highly in demand, also an instrument that the Council will prefer to combat troops. Under international law this "loan of (state) organs" does not create problems; in the individual case, though, the fitting of these interim artificial organs into the weakened state body and their later removal may create considerable difficulties. ff) The levying of sanctions is followed by the establishment of at least one subsidiary organ (Article 29): the Sanctions Committee. It is a committee of the whole (Security Council) and customarily chaired by 11
12
13
See the 2 Volumes edited by the Swiss Federal Office for Foreign Economic Affairs in Bern "Expert Seminar on Targeting UN Financial Sanctions, March 17-19, 1998, Interlaken" and "2nd Interlaken Seminar on Targeting United Nations Financial Sanctions, 29-31 March 1999". See e.g. K. Rudolph, "Peace-Keeping Forces", in: R. Wolfrum (ed.), United Nations: Law, Policies and Practice, 957 et seq., (962). S/RES/1037 (1996) of 15 January 1996 established the UNTAES-United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium; S/RES/1244 (1999) of 10 June 1999 established UNMIK-United Nations Interim Administration Mission in Kosovo; S/RES/1272 (1999) of 25 October 1999 established UNTAET-United Nations Transitional Administration in East Timor.
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a non-permanent member. There are at present 9 sanctions committees, so that almost every non-permanent member has its committee. While the rotating presidency of the Council allows only one month of heightened profile at a time, the chairmanship of a sanctions committee lasts for the full two years' term (unless the sanctions are initiated later or terminated earlier). But, normally, sanctions, once decided, remain in place for several years. Whereas in earlier years the Sanctions Committees limited their activities to a sometimes rather passive monitoring of the sanctions' implementation and to a granting of some individual exceptions for mostly humanitarian reasons, more recently some Chairmen have not shunned a higher profile and have become considerably more active, travelling to the region and mustering support against sanctions-busting in all parts of the globe. At the same time, they have assessed the collateral damage inflicted on helpless, maybe even innocent, parts of the population and on states that find themselves "confronted with special economic problems arising from the carrying out of those sanctions," as envisaged in Article 50. We may expect an increase of this activity by Committee chairmen which may not always be to the liking of each permanent member but which has found the general support of the Council.14 Thus, the sanctions committees will gradually emancipate themselves somewhat from their mother institution and forge a proper role for themselves, becoming less hesitant to interact with the outside world. They will certainly work towards more consideration being given to humanitarian problems, as is evidenced by the presidential note cited above. This higher profile has, from the outset, been shown by a kind of subsidiary organ of the Council of which we shall probably see moreInternational Criminal Tribunals with a jurisdiction limited in time and space such as the Tribunal for the Former Yugoslavia, established by Security Council Resolutions 808 and 827 of 22 February 1993 and 25 May 1993 to prosecute serious violations of international humanitarian law committed there since 1991, and the one for Rwanda, established by Security Council Resolution 955 (1994) of 8 November 1994 for the prosecution of genocide and other crimes against humanity committed in the region during 1994. The well-known opposition of the U.S. to the Permanent International Criminal Court under its presently drafted statute may lead it to a compensating pressure for particular tribunals (with limited jurisdiction) where it sees a need for this, and, most im14
See the note by the President of the Security Council: Work of the Sanctions Committees, of 29 January 1999.
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portantly, where American nationals are not likely to be prosecuted. Some time ago, such a tribunal was under discussion for Eastern Timor to deal with the horrible crimes committed there around the time of the referendum in 1999; at present it is discussed for Sierra Leone. The competence of the Security Council for such excursions into the field of administration of justice should not be taken for granted; it has though not been really disputed and I personally have no difficulties with it, as long as there is no other UN organ whose competence is encroached upon (the ICJ has no criminal jurisdiction) and to the extent that these tribunals are seen as a means of general prevention, i.e. to show the world that there is no longer impunity for such crimes. gg) A real step forward, away from the conventional circumscription of the Council's competences has been made in the last years by the Council in re-interpreting Article 2 para. 7: The reservation of "domestic jurisdiction" had allowed despots like "Papa Doc" in Haiti, Idi Amin in Uganda or Pol Pot in Cambodia to massacre their own people at will, as long as this did not lead to international conflicts. The crusade for the advancement of human rights, led untiringly by the U.S. and its allies as well as by some NGOs, has brought about an awareness that manifest and continuous gross violations of these rights cannot anymore be regarded as "matters which are essentially within the domestic jurisdiction of any state..." (Article 2 para. 7) and that they are a threat to or breach of "international peace and security" (Arts 24 et seq., Arts. 39 et seq.). As was said by the UN Secretary-General Kofi Annan in his Hague Address on 18 May 1999: "This is the core challenge of the Security Council and the United Nations as a whole in the next century: to unite behind the principle that massive and systematic violations of human rights conducted against an entire people cannot be allowed to stand...the last right of States cannot and must not be the right to enslave, persecute or torture their own citizens."15 The principle of non-intervention has therefore been cut back and the realm of "international peace and security" been extended so as to allow the Council to intervene in such cases. The despatch of a military force to Haiti by Security Council Resolution 975 (1995) of 30 January 1995 is a case in point, since its mission was completely inner-Haitian: i.e. the reinstatement of the legitimate president Aristide who had been ousted by a military coup. We shall see more of this and of a tendency to consider democracy an essential and possibly the only guarantor of human rights, so that any coup against a democratically elected gov15
Press Release SG/SM/6997 of 18 May 1999.
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ernment will be a potential candidate for correction by the Security Council. If we try to qualify this new attitude of the Council legally, then we have to assume an obligation to respect human rights (and eventually a democratic form of government) as an obligation under the UN Charter whose violation entitles the Council to re-establish the lawful situation. If we extrapolate this line further (this dangerous step to my knowledge has not been made as yet) then there may develop an opinio iuris which would qualify such obligations as owed erga omnes. The violation of such an obligation would then have to amount to an armed attack entitling states (or alliances) to "individual or collective self-defence" (Article 51). What we may safely assume, however, is the Council's firm conviction that Article 2 para. 7 is no longer any protection for despots and continuous violators of human rights. hh) A further task that the Charter has assigned to the Council is the "regulation of armaments" (Arts 26, 47 para. 1) and "possible disarmament" (Article 47 para. 1). The Council has, however, not devoted much effort to this general aim, apart from establishing and dissolving a subsidiary body.16 Thus, disarmament in a more generalised form has almost exclusively been left to the Geneva disarmament fora.17 But the Council has taken an enormous interest in one individual case, the destruction of all A-, B- and C-weapons, including ballistic missiles for their delivery, owned or being acquired or built by Iraq. The Council had established the Special Commission (UNSCOM) as one of its subsidiary organs by S/RES/687 (1991) of 3 April 1991 (later on UNMOCIV was established by S/RES/1284 (1999) of 17 December 1999) to oversee the elimination of Iraq's weapons of mass destruction after the liberation of Kuwait and it has instituted the above-mentioned comprehensive sanctions in the Commission's support. It is easy to predict that the Council will continue to work on the control of this kind of Iraq weapons. It has, though, become more difficult with some two or three permanent members lending some support to Iraq's demands to terminate controls and sanctions. I assume that the U.S., and to a lesser degree the UK, will still need some time before agreeing (by not casting a veto) to such a termination. Other countries that are known to have developed or acquired A-, B- or C-weapons have not yet been and in my view will not be brought under a similar regime of sanctions. Rather the U.S., with some support 16 17
Commission on Conventional Armaments (CCA), 1947-1952. In July 1996, under German presidency, it has, however, adopted a Presidential Statement on Anti-Personnel-Mines.
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from other permanent members, will try to deal with them bilaterally in recognition of the fact that there will hardly again be unanimity among the P 5 for a repetition of the Iraq exercise. The (selective) interest of the Council in individual disarmament cases, however, will almost certainly grow and with it its reflection in international law — Council law first, more general rules, hopefully, later.
IV. Dangers to the Council's Role The contribution of the Security Council to the further development of international law outlined here will only be possible if the Council is allowed to survive at least in its present, damaged, form. This survival is endangered from two sides: First, there is the drainage, so to speak, from the inside, of its members and the UN members altogether. This occurs through the refusal of the means the Council needs for the exercise of its functions: soldiers, equipment, money, policemen, administrators and all the other helpers under and beside the blue helmet. This danger is a real one, if one considers the decreasing readiness of Member States to contribute personnel and/or money to the implementation of Council decisions. Second, the Council's survival is endangered, so to speak, from the outside, through the arrogation of its exclusive right of intervention (by force and outside the realm of self-defence) by states or coalitions that consider themselves above the Charter and, at least, independent from the Council's prerogatives. For some time already the U.S. has ascribed to itself such a lofty station, but other nations vie with the U.S. in this field, e.g. the UK in Iraq (enforcement of no-fly-zones etc.), numerous African states in neighbouring countries, and Canada and the European members of NATO regarding Kosovo. UN Secretary-General Kofi Annan saw the writing on the wall: "For this much is clear: unless the Security Council is restored to its pre-eminent position as the sole source of legitimacy on the use of force, we are on a dangerous path to anarchy."18 The Security Council is in a deep crisis, the end of which is not in sight; this crisis will heavily influence the Council's role as creator and reconfirmer of international law. 18
See note 15.
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Collective Security After "Operation Allied Force" Hanspeter Neuhold I. Introduction II. The Basic Orientation of the United Nations III. The Concept of Collective Security IV. The United Nations System of Collective Security Before the End of the East-West-Conflict V. The New Political Environment After the End of the East-West-Conflict VI. Increased Security Council Activism in the Post-Cold War Era 1. Authorization of the Use of Armed Force by the Security Council 2. Non-Military Sanctions 3. "Second-Generation" Peace-Keeping Operations 4. "Enforcement by Consent" 5. "Humanitarian Intervention" by the Security Council 6. The International Criminal Tribunals for the Former Yugoslavia and Rwanda VII. Resort to Armed Force Without Authorization by the Security Council 1. Unilateral Western Enforcement of Humanitarian and Disarmament Obligations Against Iraq 2. "Operation Allied Force": A Negative Turning Point for Collective Security? a. The Evolution of the Kosovo Crisis in 1998/99 b. The Legal Dimension VIII. Conclusions
I. Introduction With the collapse of the communist regimes in eastern Europe and in the Soviet Union and the resulting end of the East-West conflict after 1989, the principal cause of the paralysis of the collective security sys73 J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, 73-106. © 2000 Kluwer Law International. Printed in the Netherlands.
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tern of the United Nations disappeared, quickly and practically without bloodshed. Optimism concerning the effectiveness of the system as conceived in 1945 seemed therefore justified. However, these hopes have not yet come to real fruition, as was most emphatically demonstrated in the Kosovo crisis in 1999. In any event, enough time seems to have elapsed for attempting to evaluate the progress and shortcomings of the United Nations as a global security organization in the first decade of what many had hoped would be a new, more peaceful era. Such an assessment requires at least a quick glance at the performance of the United Nations during the Cold War period.
II. The Basic Orientation of the United Nations Against the backdrop of the horrors of World War II which had just ended, the victorious powers created a new international organization, the United Nations, which came into existence on 24 October 1945. The very first paragraph of the UN Charter spells out the determination of the peoples of the United Nations "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind". Among the purposes of the organization listed in Article 1 of its constituent treaty, the maintenance of international peace and security is therefore mentioned first. This goal is to be achieved by two means set forth in the same paragraph: "effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace ..." and the peaceful settlement of disputes as the preferable alternative.1
III. The Concept of Collective Security In contradistinction to collective self-defense, a system of collective security provides for joint sanctions by the other Member States against aggressors who also belong to the system.2 For a recent discussion of this dimension, see H. Neuhold, "Das System friedlicher Streitbeilegung der Vereinten Nationen", in: F. Cede/L. Sucharipa-Behrmann (eds), Die Vereinten Nationen. Recht und Praxis, 1999, 57 et seq. It is a half-way house between the traditional "primitive" self-help system and a world state in which central authorities hold a quasi-monopoly on
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The functioning of collective security requires the fulfillment of a number of prerequisites that are not easily met.3 At the military level, the system must have a sufficient deterrence potential at its disposal. As a result, potential aggressors ought to reckon with such crushing collective sanctions that they refrain from actually attacking other members, even those they can expect to defeat easily in a bilateral confrontation. In a global collective security organization, this precondition implies quasi-universality of membership, i.e., that as many states as possible, above all the great powers, belong to it. Among these major actors, a rough balance of power should prevail, so that no hegemon is in a position to impose its will on the other members. With respect to the legal foundations of a system of collective security, a clear-cut prohibition of the individual, non-defensive use of force and an equally unambiguous obligation to take enforcement action in clearly defined situations, the "casus securitatis communis", are required. Otherwise members could argue that they are resorting to force that is still permissible, although its results in fact endanger the security of another Member State. In the absence of a "watertight" duty to participate in collective sanctions, members may attempt to avoid the resulting costs by claiming that they are exempted from them or that a given situation is not one requiring enforcement action. Security is a public good; if somebody provides it, others benefit free of charge, hence the temptation to become a "free rider".4 These problems are more likely to arise in a decentralized system in which each Member State decides for itself whether an act of aggression armed force. The members of a system of collective security maintain national control over their armed forces; they agree, however, not to resort to these forces for offensive purposes but only to use them in order to promote and protect vital common values and interests in accordance with specific rules. I.L. Claude, Swords Into Plowshares, 3rd edition, 1964; see also J. Delbriick, "Collective Security", EPIL I (1992), 646 et seq.; T. M. Menk, Gewalt fiir den Frieden. Die Idee der kollektiven Sicherbeit und die Pathognomie des Krieges im 20. Jahrhundert, 1992; H. Neuhold, "Kooperative Sicherheit — kollektive Sicherheit — kollektive Verteidigung. Eine Bestandsaufnahme aus europaischer Sicht", Osterreichisches Jahrbuch fiir internationale Sicberheitspolitik 1997 (1998), 79 et seq.; H. Freudenschuft, "Kollektive Sicherheit", in: Cede/Sucharipa-Behrmann, see note 1, 57 et seq. J. Joffe, "Collective Security and the Future of Europe", Survival 34 (Spring 1992), 36 et seq.
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has been committed and, consequently, that sanctions are called for. At the organizational level, centralized collective security is therefore preferable. An organ on which only a few members, including the major powers, are represented, ought to decide (a) whether armed aggression or another act prohibited under the system has been perpetrated, (b) against which member(s) (c) which type of enforcement action (military or non-military) (d) by which Member States (all or merely some of them) is to be taken. These decisions made by the body with limited membership must be binding on all states members of the system. Genuine international solidarity is the critical political requirement for collective security. All members of a global system must regard world peace as indivisible: They must feel directly affected by any illegal resort to force, regardless of where and between which parties it occurs. Consequently, they have to be ready to take part in sanctions, even if this entails considerable costs for them, possibly even the loss of human lives in case of military action. The principle of anonymity means that states belonging to a system of collective security must have no a priori friends nor foes if the system has to be activated. They must be impartial in the sense that they are also willing to take enforcement action against another Member State, with which they traditionally have good and close relations, and assist another member, with which they are not on good terms, should the former attack the latter.
IV. The United Nations System of Collective Security Before the End of the East-West-Conflict In contradistinction to its de facto predecessor, the League of Nations, the United Nations fulfills these preconditions to a high, and for uninformed observers at times surprising, degree — unfortunately, with one decisive exception, which continues to stymie its system of collective security. Practically all states of the world (except Switzerland and the special case of Taiwan) belong to the organization. Article 2 para. 4 of the UN Charter outlaws the threat or use of force. Article 2 para. 5 and Article 25 oblige Member States to assist the organization in any action in accordance with its Charter, in particular to carry out the decisions of the Security Council. Thus the abovementioned legal backdoors are closed.
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In the centralized UN system, the Security Council, composed of only 15 out of presently 188 Member States, has been given the power to take the four decisions referred to above. Under Article 39 of the Charter, the collective security system may already be activated if the Council determines the existence of a mere threat to the peace; it does not have to wait for a conflict to escalate to a breach of the peace or act of aggression. In accordance with Arts 41 and 42, the Security Council may choose between measures not involving the use of armed force and military enforcement action. The Council also decides against which state(s) such sanctions are to be applied. Finally, under Article 48, it determines whether its decisions for the maintenance of international peace and security shall be carried out by all UN members or only some of them. As already pointed out, all these decisions of the UN sanctions body are binding on all members of the organization. Whereas the UN system of collective security thus meets the objective criteria for its effective functioning, its main problem has always been the lack of the fourth prerequisite listed above, genuine international solidarity, above all among the five permanent members of the Security Council. The system is in fact built on the continuing cohesion of the main powers of the anti-Axis coalition in World War II. This coalition was, however, only held together by the need to join forces against otherwise too powerful enemies. Once this single shared objective, the defeat of the common adversaries, was attained, the fundamental conflicts between the Western powers and the Soviet Union, which had only been shelved temporarily but not solved, moved to the forefront again. The result came to be known as the Cold War. One of its consequences was the inability of the main antagonists of the EastWest conflict, who were granted a privileged position in the Security Council as the five permanent members endowed with the "veto" power, to reach the necessary agreement for making collective security work.5
However, the realistic choice in 1945 was not between the imperfect system created by the UN Charter and a superior variant not burdened by the "veto", but rather between the actual system or no universal system of collective security at all. The right to obstruct non-procedural decisions of the Council single-handedly was the condition sine qua non posed by the Soviet Union for its consent to join the United Nations. Stalin had drawn the obvious lesson from his country's expulsion from the League of Nations after the Soviet attack on Finland in 1939. Whereas a "veto" in a narrow sense signifies the right to block a decision made by somebody else,
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During the East-West conflict, the Security Council only managed to resort to Chapter VII enforcement action on three atypical occasions. A tactical error committed by the Soviet Union enabled the Council to take decisions in the Korean crisis of 1950. In order to protest the non-recognition by most other United Nations members of the People's Republic of China's claim to represent China in the UN, the USSR boycotted the meetings of the Security Council at the time. This did not prevent the other Member States of the Council from adopting resolutions on the Korean issue, disregarding Article 27 para. 3 of the Charter; according to this provision, the concurring affirmative votes of the permanent members are required for decisions on non-procedural matters. After North Korean forces had launched a large-scale invasion of South Korea across the demarcation line separating the two parts of the country on 25 June 1950, the Security Council declared the attack a threat to the peace and called for the immediate cessation of hostilities and the withdrawal of the North Korean forces across the 38th parallel on the same day.6 Since this demand fell on deaf ears, the Council recommended that the UN members furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area on 27 June 1950.7 Ten days later, the Security Council recommended that all Member States place their forces and other assistance under a unified U.S. command.8 Moreover, it authorized this unified command to use the UN flag in the course of operations against North Korea.9 The subsequent attempt by the West, after the Soviet Union had returned to the Security Council, to "upgrade" the General Assembly, where Western Member States held a comfortable majority at the time, had little practical relevance.10 According to the "Uniting for Peace
6 7 8
9
10
objection by a permanent member of the Security Council prevents the taking of a decision alltogether. In S/RES/82 (1950) of 25 June 1950. In S/RES/83 (1950) of 27 June 1950. In S/RES/84 (1950) of 7 July 1950; J.L. Kunz, "Legality of the Security Council Resolutions of June 25 and 27, 1950", AJIL 45 (1951), 137 et seq. Italics added. The Security Council thus did not enact binding armed enforcement measures under Article 42 of the Charter, but merely enhanced the legitimacy of action taken by what today would be called a "coalition of the able and willing." See below, 84 et seq. A few Emergency Special Sessions of the General Assembly provided for in the "Uniting for Peace Resolution" were held.
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Resolution",11 the Assembly was to step in if the Security Council was blocked due to the lack of unanimity of its permanent members. In any event, all the General Assembly could have done by virtue of this resolution was to merely recommend collective action by Member States, including resort to armed force in the event of a breach of the peace or act of aggression. Furthermore, after the unilateral declaration of independence by a racist regime in the British colony Southern Rhodesia in 1965, the Security Council determined that the situation there constituted a threat to international peace and security. Therefore, the Council imposed compulsory — first limited and later on comprehensive — embargoes against Southern Rhodesia in 1966 and 1968, respectively.12 The Security Council even called on Great Britain to use force, if necessary, to prevent the arrival at Beira (a port city in Mozambique) of vessels reasonably believed to be carrying oil destined for Southern Rhodesia.13 Acting again under Chapter VII of the Charter, the Security Council regarded the acquisition of war material by South Africa as a threat to the maintenance of international peace and security and consequently voted a mandatory embargo on arms and related material against this state in 1977.14 Whereas North Korea and Southern Rhodesia were not members of the United Nations, the embargo against South Africa was
11
12
13 14
A/RES/377 (V) of 3 November 1950. On the legality of this resolution, see H. Kelsen, Recent Trends in the Law of the United Nations, 1951, 953 et seq.; L.H. Woolsey, "The Uniting for Peace Resolution of the United Nations", AJIL 45 (1951), 129 et seq.; F.A. Vallat, "The General Assembly and the Security Council of the United Nations", BYIL 29 (1952), 63 et seq.; J. Andrassy, "Uniting for Peace", AJIL 50 (1956), 563 et seq.; E. Jimenez de Arechaga, Derecho Constitucional de las Naciones Unidas (Comentario teorico-practico de la Carta), 1958, 197 et seq.; H. Neuhold, Internationale Konflikte — verbotene und erlaubte Mittel ihrer Austragung, 1977, 117 et seq. In S/RES/217 (1965) of 20 November 1965; S/RES/221 (1966) of 9 April 1966; S/RES/232 (1966) of 16 December 1966 and S/RES/253 (1968) of 29 May 1968; J. L. Cefkin, "The Rhodesian Question at the United Nations", International Organization 22 (1968), 649 et seq.; L. C. Green, "Southern Rhodesian Independence", AYR 14 (1968/1970), 155 et seq.; M. S. McDougal and W. M. Reisman, "Rhodesia and the United Nations: The Lawfulness of International Concern", AJIL 62 (1968), 1 et seq. In S/RES/221 (1966) of 9 April 1966. In S/RES/418 (1977) of 4 November 1977.
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the first enforcement measure adopted against a Member State of the organization. What the two cases of non-military sanctions had in common was the fact that they were directed against apartheid regimes. Racial discrimination was unacceptable to all major camps in the post-World War II international system, the West, the "socialist" bloc and, of course, the "Third World". Southern Rhodesia and South Africa were the equivalents of today's "rogue states."15 When it came to taking enforcement action against South Africa, however, the West was not ready to go beyond an arms embargo against an anti-communist state with which it had important economic relations. In addition, the United Nations developed an activity that contributed to the maintenance or restoration of peace but was not provided for in the Charter.16 However, these peace-keeping operations — at least their "first generation" variant — may even be considered the opposite of compulsory military sanctions under Article 42, since they essentially are cooperative and not collective security activities.17 In fact, such missions are not meant to assist the victim(s) of armed attack against the aggressor(s). Instead, they are designed to help all conflicting parties involved to stabilize a precarious settlement on which they have previously agreed, usually a cease-fire. Whereas military enforcement action is inevitably characterized by extreme partiality in favor of the assisted victim of aggression, peace-keeping forces must observe strict objectivity. Moreover, mandatory military enforcement action is solely based on a decision by the Security Council; the consent of the states on which the Council calls for participation, let alone that of the target state(s) of the sanctions, is not needed. By contrast, a peace-keeping mission not only requires a mandate from the Security Council but also the agreement of all the parties to the dispute as well as of the states requested to take part in it. Furthermore, armed sanctions under Article 42 would consist in the use of massive non-defensive force, whereas peace-keepers — who, as a rule, are "underarmed" as compared with
15 16
17
See below, 83. It may be justified, however, by the "implied powers" theory or the functional interpretation of the UN Charter and later on, with sufficient practice and the development of opinio juris, on the basis of customary international law. L. Sucharipa-Behrmann, "Die friedenserhaltenden Operationen der Vereinten Nationen", in: Cede/Sucharipa-Behrmann, see note 1, 85 et seq., and the literature cited there.
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the conflicting parties — may only use their weapons in self-defense. Finally, if military collective security action is to be effective, the great powers would normally have to bear the brunt of the operation. In contrast, the permanent members of the Security Council were not supposed to participate in peace-keeping missions in order to better isolate the conflict at hand from the rivalries between the great powers.18 All in all, the record of the United Nations with regard to the accomplishment of its principal purpose, the maintenance of international peace and security, was disappointing in the era of the East-West conflict. As pointed out above, the main reason for the failure of collective security was, clearly, the fundamental disagreement between the Cold War blocs. This led to the frequent exercise of the "veto" by the permanent members of the Security Council, almost 300 times altogether.19
V. The New Political Environment After the End of the East-West-Conflict Recent progress achieved by the United Nations as a security institution as well as the organization's continuing deficiencies can only be fully understood against the backdrop of the changes that have occurred in international relations in the wake of the end of the East-West conflict; only those of particular relevance to the topic under discussion can be mentioned here. At the structural level, the bipolar system has given way to a trend toward unipolarity. The United States remains the only superpower that clearly dominates in the military and economic fields as well as in the equally important realm of "soft power", setting trends in the media, fashion, entertainment and lifestyle in general.20
18
19 20
This is not to say that all these rules where strictly complied with in all peace-keeping operations prior to the end of the East-West conflict. For instance, UNTEA (United Nations Temporary Executive Authority) in West Irian was charged with extensive non-military tasks; the Security Council authorized ONUC (Operation des Nations Unies au Congo) to resort to non-defensive force; Great Britain took part in UNFICYP (United Nations Peace-Keeping Force in Cyprus). Freudenschufi, see note 3, 74. R.N. Haass, "What to Do With American Primacy?, Foreign Aff. 78 (September/October 1999), 37 et seq.; S. Huntington, "The Lonely Superpow-
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The new military situation is characterized by positive and negative developments. On the one hand, the specter of all-out nuclear war that could annihilate mankind as a whole has receded into the background. Headway has been made in the areas of nuclear and conventional disarmament through the conclusion of the START and CFE (Conventional Armed Forces in Europe) treaties and agreements. On the other hand, the two major nuclear powers, the United States and the Russian Federation, will still possess "overkill capabilities" even after the entry into force of the START Treaties. Moreover, the proliferation of weapons of mass destruction rightly causes growing concern.21 Conventional disarmament has been limited to Europe. In addition, we have witnessed the return of conventional war as a "practicable" continuation of politics by other means, above all in Europe. Political leaders may again, as in the pre-nuclear age, resort to armed force without having to fear the almost automatic, lethal escalation of military hostilities across the nuclear threshold. The end of the comprehensive and global East-West conflict between two irreconcilable ideological systems did facilitate subsequent cooperation between the parties involved. As a result, the common value platform of the international community has been enhanced beyond physical survival. More and more states are embracing pluralistic democracy, Western-type human rights, the rule of law and the principles of market economy.22 Yet growing ideological commonalties do not exclude further conflicts between states.23 Nor do all states accept Western political values. On the contrary, one author even predicted that a "clash of civilizations" would become the principal conflict pattern after the Cold War.24 Even though this development may not be a foregone conclusion, there er", Foreign Aff. 78 (March/April 1999), 35 et seq.; W.C. Wohlforth, "The Stability of a Unipolar World", Survival 24 ( Summer 1999), 5 et seq. 21
R.K. Betts, "The New Threat of Mass Destruction", Foreign Aff. 77 (January/February 1998), 26 et seq.
22
These shared basic community values are reflected in international law in the concepts of jus cogens, obligations erga omnes and international crimes as defined by the ILC. See below, 100.
23
This is particularly true of the great powers in their pursuit of the goals of traditional power politics. Relations among the permanent members of the Security Council have in fact cooled in recent years after the initial euphoria at the end of the Cold War.
24
S.P. Huntington, The Clash of Civilizations and the Remaking of World Order, 1997.
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is no denying that religious and political fundamentalists, with weapons of mass destruction more and more easily within their reach and their resort to "cyberwarfare" looming large, pose an increasingly serious threat. To make matters worse, conflict potential abounds in today's world. Claims that communism and "socialist internationalism" had eliminated the root causes of intrastate and international conflicts have turned out ill-founded. Ethnic, religious and territorial disputes have broken out again with renewed vigor in eastern Europe; their origins frequently date back to past centuries. They are exacerbated by political instability and economic difficulties in the countries concerned. In Africa, a bloody prize has often to be paid for the application of the uti possidetis rule in the decolonization process, i.e., the acquisition of statehood within the former colonial boundaries that had frequently been drawn arbitrarily by the colonial powers. Ethnic/tribal violence has erupted within heterogeneous populations in young states that "inherited" such artificial borders. Another disturbing development has been the growing number of "rogue states". Their governments brazenly disregard the very principles of the international legal order and are ready to face sanctions for the illegal resort to force against other states or for large-scale atrocities.25 In "failed states", equally massive violations of basic human rights may occur because the central and local authorities have lost control over the country.26 As a result of the above-mentioned developments, internal conflicts often fought with almost boundless brutality27are replacing international disputes as the main security challenge. Another factor relevant to the topic under discussion is the growing impact of public opinion, which is increasingly sensitive to human rights issues, on political decisions, at least in multi-party democracies. Public opinion is, in turn, shaped by the media, in particular television. Shocking pictures of atrocities or starving refugees lead to outcries for swift action. However, if the first casualties — even when professional soldiers are involved — are reported and the first body bags are shown,
26
27
As pointed out above, such states are not a novel phenomenon, however. The apartheid regimes in South Africa and Southern Rhodesia already fell into this category. See above, 79 et seq. D. Thiirer/M. Herdegen/G. Hohloch, "Der Wegfall effektiver Staatsgewalt (The Failed State)", DGVR 34 (1996), 9 et seq. As, for example, in the former Yugoslavia and Rwanda.
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the public emphatically demands that a military operation be stopped immediately.28 An actor that plays a more and more important role in this context is the NGO, in particular in the areas of human rights and the protection of the environment. Although the material resources of these organizations may be negligible, even the governments of great powers and mighty transnational corporations ignore NGOs like Amnesty International or Greenpeace at their peril.
VI. Increased Security Council Activism in the Post-Cold War Era 1. Authorization of the Use of Armed Force by the Security Council Although the East-West conflict characterized by diametrically opposed ideological and Realpolitik positions of the political camps involved has come to a close, military collective security continues to remain a dead letter in the UN context. The Security Council has failed to take any action by air, sea or land forces under the strategic direction of the Military Staff Committee composed of the Chiefs of Staff of the Council's permanent members as provided for in Arts 42 and 47 of the Charter, although the need for such measures has arisen on more than one occasion in the 1990s. No agreements between the Security Council and Member States under Article 43 have been entered into. These agreements on the armed forces, assistance and facilities to be made available by UN members are necessary to enable the Council to take military enforcement measures of its own. The conclusion of these agreements appears even less likely today than right after the 1989/90 political watershed because of the above-mentioned strains on great power relations. The Council has resorted, however, to the then atypical Korean precedent of 1950 several times. Instead of taking action itself, it authorized Member State(s) able and willing to do so to use armed force in international as well as internal conflicts. The most spectacular example of such a "franchise operation" for the restoration of international 28
Especially in the United States, the loss of American human lives in military missions abroad is deemed unacceptable. Hence, superior technology, in particular bomber attacks and long-range missiles, is to assure victory, whereas ground forces should only be used as a means of last resort.
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peace and security was furnished by Council Resolution 678 of 29 November 1990 in the Gulf conflict that was caused by the invasion of Kuwait by Iraqi forces in 1990. Acting under Chapter VII of the Charter, the Security Council authorized Member States cooperating with the government of Kuwait to use all necessary means to uphold and implement Resolution 660 of 2 August 1990 and all subsequent relevant resolutions and to restore international peace and security in the area. All (other) states were requested to provide appropriate support for what was named "Operation Desert Storm" under the leadership of the United States.29 Other examples include the conflicts in the former Yugoslavia, Somalia, Haiti and Rwanda.30
2. Non-Military Sanctions The Security Council has adopted non-military sanctions much more frequently than in the past. Such measures were applied against "rogue states", such as Iraq, Somalia, the Federal Republic of Yugoslavia (FRY), Haiti, Rwanda and Sierra Leone. The most recent recourse to such enforcement action at the time of writing was Security Council Resolution 29
Opinions are divided on the legal basis of this type of military action. Some authors regard it as the exercise of the right of collective self-defense under Article 51 of the Charter expressly restated by the Security Council. Others wonder why resort to this "inherent" right needs to be authorized. Instead, these writers refer to a functional interpretation of the Charter and point to its Article 48: Since, by virtue of this provision, the Security Council may determine that all or just some Member States shall carry out its decisions for the maintenance of international peace and security, it must a maiore ad minus also be deemed to have the lesser power of a mere authorization. K. Zemanek, "The Legal Foundations of the International System: General Course in Public International Law", RDC 266 (1997), 23 et seq., (299 et seq.), and the works quoted there. For the purposes of the present discussion, there is no need to decide whether military operations conducted by a single state or a coalition that is able and willing to embark on them are an exercise in self-defense, "indirect collective security" or based by now on customary law. What counts is the fact that the legality of such forcible action is generally accepted.
30
For a brief description of these and other operations, see Freudenschufi, see note 3, 79 et seq.; for a more detailed analysis, see A.F. Bauer, Effektivitat und Legitimitdt. Die Entwicklung der Friedenssicberung durch Zwang nach Kapitel VII der Charter der Vereinten Nationen unter besonderer Beriicksicbtigung der neueren Praxis des Sicherheitsrats, 1996,113 et seq.
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1267 of 15 October 1999 against the Taliban in Afghanistan for their refusal to extradite Usama bin Laden who had been indicted for the bombings of the U.S. embassies in Nairobi and Dar es Salaam in 1998. The Council imposed a flight boycott on Taliban aircraft and froze Taliban financial assets. The application of economic sanctions gives rise to a familiar dilemma.31 On the one hand, the international community should not limit its response to major breaches of international law to verbal condemnations and then return to "business as usual" sooner or later. On the other hand, economic enforcement measures tend to hurt those whom they are meant to help, namely the population as a whole that usually has no say in the decision to violate their state's international legal obligations. If such sanctions are effective, they are likely to result in mass poverty, unemployment and declining health standards, especially among women and children and the old. By contrast, the political elites responsible for their country's illegal conduct hardly suffer at all, although they may resent travel restrictions or the freezing of their bank accounts abroad. Their domestic position might even be strengthened, because international pressure could make it easier for them to denounce political opponents as traitors. Moreover, non-military measures are frequently slow in producing their intended effects; more often than not, loopholes and possibilities of circumvention exist and are exploited, be it for political reasons or the financial profits involved.32
3. "Second-Generation" Peace-Keeping Operations The post-Cold War era has witnessed the launching by the United Nations of so-called second-generation peace-keeping operations — missions with broader mandates and involving higher numbers of military as well as civilian personnel than traditional "first-generation" peace-
31
32
M. Miyagawa, Do Economic Sanctions Work? 1994; J. Stremlau, Sharpening International Sanctions: Towards a Stronger Role for the United Nations, 1996; M. Doxey, United Nations; Sanctions: Current Policy Issues, 1997; H.K. Ress, Das Handelsembargo, 2000. The above-mentioned cases of recent UN sanctions, in particular those adopted against Iraq and the FRY, furnish ample evidence of these problems. In addition, economic enforcement measures may also cause damage to the states that apply them.
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keeping.33 These forces were charged with military tasks beyond direct self-defense, such as keeping supply routes open, the enforcement of no-fly zones or the protection of "safe areas". In addition, they were entrusted with non-military, political-administrative responsibilities. These functions included assistance in the process of democratic "nation building", above all the organization and supervision of free and fair elections, the maintenance of law and order by police forces and farreaching contributions to the administrative, legislative and judicial reorganization of a state. Moreover, such missions also provided humanitarian aid. Second-generation peace-keeping operations were not always backed by the consent of all parties to the conflict. This handicap confronted them with a dilemma: If they wished to preserve their crucial credibility, they had to resort to non-defensive force, thereby losing their equally essential impartiality in the eyes of those against whom they took military action. Unlike in "classical" peace-keeping, the great powers also participated in this new type of mission. The three major operations of this kind which took place on three different continents — UNPROFOR (United Nations Protection Force) in Europe, UNOSOM (United Nations Operation in Somalia)/ UNITAF (Unified Task Force) in Africa and UNTAC (United Nations Transitional Authority in Cambodia) in Asia34 — have shown the weaknesses and limits of peace-keeping: the shortcomings of the UN infrastructure, the lack of personnel with adequate training for their specific tasks and the reluctance of Member States to provide the necessary funds. The most serious problem, however, were ambitious mandates conferred by the Security Council on peace-keeping forces that lacked the means to carry them out. The most dramatic illustration of the inability of underarmed peace-keepers to fulfill their assigned tasks was the failure of UNPROFOR to prevent the conquest of safe areas in Bosnia and the subsequent massacers by Serb forces there.35
33
34
35
F.-E. Hufnagel, UN-Friedensoperationen der zweiten Generation. Vom Puffer zur Neuen Treuband, 1996. J. Mayall (ed.), The new interuentionism: United Nations experience in Cambodia, former Yugoslavia and Somalia, 1996. Another innovation was the preventive deployment of a peace-keeping force with the stationing of UNPREDEP (United Nations Preventive Deployment Force) in Macedonia (FYROM) by virtue of S/RES/795 (1992) of 11 December 1992. Such an operation may have a particular stabilizing effect by dissuading the conflicting parties from resorting to force and as a
88
Max Planck UNYB 4 (2000)
4. "Enforcement by Consent" The introduction of "enforcement by consent" remedied this deficiency. Such operations are different in principle36 both from military measures in the context of collective security and peace-keeping missions. They are designed to assure compliance by conflicting parties with a settlement which these parties have reached, including its military terms. Sufficiently numerous and well-armed forces are deployed that should prevent, for instance, the breach of an armistice or the reintroduction of troops into areas from which they had to withdraw. Such operations are thus similar to effective military sanctions in that they can also successfully overcome armed resistance; they are different from such measures and resemble peace-keeping missions by being based on the specific consent of the parties to the conflict. A case in point was IFOR (Implementation Force) which was established by Security Council Resolution 1031 of 15 December 1995 in the context of the peaceful solution to the conflict in and over Bosnia and Herzegovina brought about by the Dayton/Paris Peace Agreements of 1995. Determining that the situation in the region continued to constitute a threat to international peace and security and acting under Chapter VII of the UN Charter, the Council authorized the Member States acting through or in cooperation with NATO37 to establish a multinational implementation force under unified command and control. Its task was to fulfill the role specified in Annex 1-A and Annex 2 of the Peace Agreement.38 The first instrument dealt with the Military Aspects of the Peace Settlement (above all, the cessation of hostilities, the withdrawal of foreign forces from and the redeployment of forces in Bosnia and Herzegovina), the second with the Inter-Entity Boundary Line (in particular the delineation, marking, description and adjustment of the line39 in which IFOR was to participate).40 Resolution 1031 also
36
37
38 39
special confidence-building measure. Sucharipa-Behrmann, see note 17, 90 et seq. In practice, the lines between these different types of operations may be blurred. The Atlantic Alliance was not mentioned by name but as "the organization referred to in Annex 1-A of the Peace Agreement". In general, Resolution 1031 can hardly be called a model of simple and elegant drafting. Para. 14. It may be recalled that the territory of the Republic of Bosnia and Herzegovina was divided between the Federation of Bosnia and Herzegovina (it-
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authorized the Member States taking part in IFOR to take all necessary measures to effect the implementation of and to ensure compliance with Annex 1-A, stressed that the parties shall be subject to such enforcement action by IFOR as may be necessary to ensure implementation of that Annex and the protection of IFOR, and took note that the parties had consented to IFOR's taking such measures.41 The Security Council also recognized even more explicitly that the parties had authorized IFOR to take such actions as required, including the use of necessary force, to ensure compliance with Annex 1 -A.42 With some 60,000 troops and also equipped with heavy weapons, IFOR, which initially was to be deployed for just approximately one year,43 had the necessary clout to deter the parties from violating the obligations they had undertaken. IFOR, which replaced the ill-fated UNPROFOR, was in term succeeded by SFOR (Stabilization Force), whose numerical strength was approximately half of IFOR's, for an indefinite period.44
5. "Humanitarian Intervention" by the Security Council Another noteworthy extension of the Security Council's activities has been its growing involvement in internal crises that apparently do not entail the risk of leading sooner or later to an interstate armed conflict. The UN system of collective security as designed in 1945 right after the most horrible war that had ever afflicted mankind focused on peace un-
40 41 42 43 44
self a Bosnian/Croat construct) and the Republika Srpska according to a 51/49 territorial ratio. Texts in ILM 30 (1996), 91 et seq., and 111 et seq. Para. 15. Para. 5. Para. 13. Whereas the military part of the peace plan for Bosnia and Herzegovina has, on balance, been successfully implemented, some of the civilian aspects still leave a great deal to be desired. This is particularly true of the return to a multi-ethnic and multi-cultural society through the return of refugees and economic recovery. H. Riegler, Einmal Dayton und zuriick. Perspektiven einer Nachkriegsordnung im ehemaligen Jugoslawien, 1999.
90
Max Planck UNYB 4 (2000)
derstood as the absence of armed violence.45 This orientation does not prevent the Council, however, from also taking action in domestic conflicts. For Article 2 para. 7 of the Charter exempts the application of enforcement measures under Chapter VII from the principle of non-intervention by the United Nations in matters which are essentially within the domestic jurisdiction of any state. As was noted above, the typical conflict of the 1990s has been internal and not international. Moreover, the international community is more determined than previously to try stopping large-scale violations of human rights within states which the media regularly bring to its attention in shocking detail — not that action is taken, however, in each and every such case. The Security Council declared that massive violations of humanitarian law such as "ethnic cleansing" constituted threats to the peace, although the only actual or possible transboundary spillover, if any such extension was to be feared at all, was the flow of refugees seeking shelter abroad and not the spread of armed hostilities to other, in particular neighboring, countries.46 Examples include the humanitarian catastrophes in Bosnia, Somalia and Rwanda.47 The Security Council did not always bother to mention explicitly its goal to maintain or restore international peace and security.
6. The International Criminal Tribunals for the Former Yugoslavia and Rwanda The Security Council also ventured into uncharted legal territory by setting up, in 1993, the International Tribunal for the Prosecution of 45
46
47
Defined as "negative peace" by "critical" peace research. J. Galtung, "Gewalt, Frieden und Friedensforschung", in: D. Senghaas (ed.), Kritische Friedensforschung, 1971, 55 et seq. H. Gading, Der Schutz grundlegender Menschenrechte durch militdrische Maftnahmen des Sicherheitsrates — das Ende staatlicher Souverdnitdt? 1996. This development was not a complete novelty, however. The Council had already set a precedent in the 1960s when it resorted to sanctions against Southern Rhodesia. By contrast, international ramifications were referred to in S/RES/418 of 4 November 1977 in which the Security Council imposed an arms embargo against South Africa. In the second preambular paragraph, the Council recognized that the military build-up by South Africa and its persistent acts of aggression against the neighboring states seriously disturbed the security of those states.
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Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia48 and, in 1994, the International Tribunal for Rwanda.49 The establishment of these tribunals raised questions regarding the limits of the powers of the Security Council.50 In particular, were these measures adequate to deal with the threat to international peace and security posed by the situation in those two countries? One may indeed wonder whether individual criminal responsibility for grave breaches of international humanitarian law was relevant to collective security as defined in this article. However, since no Member State of the UN officially objected that the Council had acted ultra vires, differences of opinion on this issue are primarily of academic interest. Yet it is worth noting that there were misgivings about an excessively powerful Security Council, whose permanent members would form a directorate governing the world.
VII. Resort to Armed Force Without Authorization by the Security Council On the one hand, the past decade has thus seen an increasingly active and dynamic Security Council that has engaged in new activities and areas in its efforts to cope with challenges to peace and security. This was made possible by a broader platform of common values and interests within the Council, above all among its permanent members. On the other hand, a negative trend — at least with respect to the UN system of collective security — must also be noted. If and when the Security Council could not agree to take or authorize action in a crisis situation, Western states took the law — or what they considered the law — into their own hands and used armed force against "rogue states" without an unambiguous mandate from the Council.
48
S/RES/827 (1993) of 25 May 1993.
49
S/RES/955 (1994) of 8 November 1994.
50
E. David, "Le Tribunal international penal pour 1'ex-Yougoslavie", RBDI 25 (1992), 565 et seq.; A. Pellet, "Le Tribunal criminel international pour Pex-Yougoslavie", RGDIP 98 (1994), 7 et seq; D. Shraga and R. Zacklin, "The International Tribunal for the Former Yugoslvavia", EJIL 5 (1994), 360 et seq.; Zemanek, see note 29, 204 et seq.; C. Greenwood, "The Development of International Humanitarian Law by the International Criminal Tribunal for the Former Yugoslavia", Max Planck UNYB 2 (1998), 97 et seq.
92
Max Planck UNYB 4 (2000)
1. Unilateral Western Enforcement of Humanitarian and Disarmament Obligations Against Iraq The first case in point was provided by the establishment of no-fly zones in Iraq in 1991 and 1992.51 They were designed to protect the Kurds in the north and the Shiites in the south of the country from attacks by the Iraqi air force. Compliance with this prohibition was verified by U.S., British and initially also by French military aircraft. When Iraq failed to respect the zones and its air-defense artillery fired at Western patrol planes, the latter opened fire in turn. By mid-August 1999, U.S. and British planes had launched more than 1,100 missiles against Iraqi targets, about two thirds of the sum total of these weapons used during the entire "Operation Allied Force" against Yugoslavia in 1999.52 The three Western powers failed to produce a consistent and detailed legal justification for enforcing the no-fly zones over Iraq, understandable and acceptable as their actions against a dictator slaughtering his own population may have been from a moral and political point of view. The legal basis most frequently invoked was Security Council Resolution 688 of 5 April 1991. In this resolution, however, the Council had condemned the repression of Iraqi civilians but had not granted any authorization to any state(s) to resort to armed force in general nor to set up no-fly zones in particular. Quite significantly, the Western powers argued that they were acting in support of Resolution 688, pursuant to Security Council resolutions or in accordance with the spirit of Resolution 688.53 Other reasons they relied on included recourse to Security Council Resolution 67854 which was said to permit action to enforce Resolution 688 as a "subsequent" resolution within the meaning of the former resolution. Moreover, Great Britain pointed to an extreme humanitarian need and an overwhelming humanitarian necessity that were supposed to legalize the resort to military force even in the absence of a UN resolution to this effect. The United States also referred to its containment policy against Iraq.
51
52 53
54
P. Malanczuk, "The Kurdish Crisis and Allied Intervention in the Aftermath of the Second Gulf War", EJIL 2 (1991), 114 et seq. International Herald Tribune of 14/15 August 1999. On the following, see N. Krisch, "Unilateral Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council", Max Planck UNYB 3 (1999), 61 et seq., (75 et seq.), and the sources quoted there. See above, 84 et seq.
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The basic problem with these justifications is that de lege lata only two exceptions to the prohibition in Article 2 para. 4 of the UN Charter are recognized: Force may be used legally in the exercise of the right to individual or collective self-defense under Article 51 or pursuant to a decision or authorization by the Security Council within the framework of Chapters VII or VIII. Neither exception obtained in the case of the no-fly zones. The legality of "humanitarian intervention" without authorization by the Security Council has no sufficient foundation in existing international law.55 The invocation of Resolution 678 is pointless because the subsequent resolutions mentioned therein are those following Resolution 660 and not Resolution 678 itself.56 It should also be noted that numerous states, including two permanent members of the Security Council, namely China and the Russian Federation, as well as the Non-Aligned Movement as a whole, objected to Western air attacks on Iraq.57 The United States and the United Kingdom nevertheless launched "Operation Desert Fox", also against Iraq, but this time because of the refusal of Saddam Hussein's regime to abide by its disarmament obligations, in late December 1998. The crisis was triggered by Iraq's objections to the inspection of some of its strategic sites by members of UNSCOM as required by Security Council Resolution 687 of 3 April 1991. A peaceful solution seemed to have been achieved in February 1998 through an agreement reached with Iraq by UN Secretary-General Kofi Annan backed up by US threats to resort to force. After further Iraqi tergiversations and American and British threats, the two Western powers eventually ordered air strikes on targets in Iraq on 16 December 1998 without involving the Security Council. 55 56
57
See below, 99 et seq. The key para. 2 of Resolution 678 reads as follows: "The Security Council ... Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, 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". See para. 235 of the Final Document of the 12th Summit of the NonAligned Movement in Durban from 29 August to 3 September 1998: "The Heads of State or Government deplored the imposition and continued military enforcement of 'No-Fly Zones' on Iraq by individual countries without any authorisation from the UN Security Council or General Assembly (sic!)".
94
Max Planck UNYB 4 (2000)
Apart from the failure of the raids to achieve their military and political goals,58 the United States and the United Kingdom again skated on thin legal ice.59 They argued that since Iraq had violated its disarmament-related obligations under Resolution 687 that had declared a cease-fire, the authorization to use force granted in Resolution 678 had revived. The United States and Great Britain also relied on Resolution 1154 of 2 March 1998 and Resolution 1205 of 5 November 1998, respectively. In the first resolution, the Council had announced the severest consequences if Iraq did not live up to its duties to permit verification by UNSCOM and the IAEA, whereas in the second it found that Iraq had flagrantly violated these obligations. The principal difficulty with these justifications once again is the silence of those resolutions on any authorization of any Member State(s) to use force in order to make Iraq abide by its duties. On the contrary, in the final paragraph of Resolution 687 the Security Council decided to remain seized of the matter and "to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region". In a similar vein, in Resolution 1154 the Council made it clear that it would remain concerned with the matter and ensure itself the implementation of the resolution. In Resolution 1205, it decided to remain actively seized of the matter. It is one thing for the Security Council to determine the existence of one of the situations listed in Article 39 of the UN Charter; it is quite another thing to agree what, if any, forcible action to deal with the situation is to be taken by whom at which point in time. The debates in the Council that preceded the adoption of the three above-mentioned resolutions confirm this view. 58
59
To reduce Iraq's capability to threaten neighboring countries and the world with weapons of mass destruction by imposing controls and to oust Saddam Hussein. After the departure of UNSCOM, UN inspectors have yet to return to Iraq. "Operation Desert Fox" apparently even strengthened Sadam Hussein's regime internally and weakened whatever opposition to it existed. A "Legal" Assault: Experts Cite UN and U.S. Resolutions, International Herald Tribune of 18 December 1998. In favor of the legality of the operation R. Wedgwood, "The Enforcement of Security Council Resolution 687: The Threat of Force against Iraq's Weapons of Mass Destruction", AJIL 92 (1998), 724 et seq.; against it J. Lobel and M. Ratner, "Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-fires and the Iraqi Inspection Regime", AJIL 93 (1999), 124 et seq.; Krisch, see note 53, 64 et seq.
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It should also be borne in mind that the majority of the international community, led once more by China and Russia, opposed "Operation Desert Fox" as clearly illegal.
2. "Operation Allied Force": A Negative Turning Point for Collective Security? a. The Evolution of the Kosovo Crisis in 1998/99 The most spectacular and controversial resort by Western states to armed force considered by them as law enforcement against a "rogue state" without authorization by the Security Council was "Operation Allied Force" against the FRY in the spring of 1999. The regime of President Slobodan Milosevic embarked on the systematic repression of the Albanian minority in the FRY; at the same time, these Albanians constituted the overwhelming — approximately 90 % — majority of the population in the Yugoslav Province of Kosovo whose autonomy Milosevic had abolished in 1989. Little international attention was paid to the peaceful and passive resistance of the Kosovo Albanians under the leadership of Ibrahim Rugova. It was only when the Kosovo Liberation Army (KLA) launched its armed struggle, which was met by increased brutality on the Serb side, that the international community, in particular also the Security Council, became involved in the Kosovo conflict. In its Resolution 1160 of 31 March 1998, the Security Council, acting under Chapter VII of the UN Charter, called upon the FRY and the leadership of the Kosovar Albanian community to achieve a political solution through a meaningful dialogue and imposed an arms embargo on the FRY, including Kosovo.60 The Council also emphasized that failure to make constructive progress towards the peaceful resolution of the situation in Kosovo would lead to the consideration of additional measures.61 As armed hostilities nevertheless spread almost to the entire territory of Kosovo and the flow of refugees swelled dramatically from about 25,000 in the spring of 1998 to approximately 265,000 by mid-Septem-
60
61
The ban included the arming and training for terrorist activities (para. 8 of Resolution 1160). Para. 19 of Resolution 1160.
96
Max Planck UNYB 4 (2000)
her of the same year, NATO prepared for military action by conducting air maneuvers over neighboring Albania and Macedonia.62 On 23 September 1998, the Security Council voted Resolution 1199 in which it affirmed that the situation in Kosovo constituted a threat to peace and security in the region.63 Acting under Chapter VII, the Council demanded the immediate cessation of hostilities and the withdrawal of Yugoslav security units used for civilian repression. It also decided, should the concrete measures demanded in this resolution and Resolution 1160 not be taken, to consider further action and additional measures to maintain or restore peace and stability in the region.64 Under the threat of NATO's Activation Order of 12 October that set the stage for air attacks by the alliance, U.S. Special Envoy Richard Holbrooke persuaded President Milosevic, on the following day, to agree to end offensive operations and to reduce Yugoslav security forces in Kosovo. Compliance with these pledges was to be monitored by a NATO and an OSCE mission, respectively. The Security Council called for the full implementation of the FRY's commitments and endorsed the verification agreements in its Resolution 1203 of 24 October 1998.65 As in the Iraqi crisis earlier on in February, it looked as if brinkmanship had succeeded and a military showdown had been averted at the very last moment. In both cases, however, hopes that agreements reached 62
63
64
65
P. Jurekovic, "Die politische Dimension des Krieges im Kosovo und in der BR Jugoslawien: Konfliktentwicklung, politische Initiativen der Staatengemeinschaft, Auswirkungen auf das Umfeld", in: E. Reiter (ed.), Der Krieg urn das Kosovo 1998/99, 1999, 39 et seq., (49). Although the Kosovo conflict was essentially an internal Yugoslav issue, it did have international implications due to transborder refugee movements to Albania and Macedonia and KLA operations from there. The strong response to the Kosovo crisis by Western governments was guided in part by their reluctance to admit large numbers of Kosovar refugees to their own countries and concern over regional destabilization as a result of the inflow of refugees and fighters from Kosovo into these two economically weak and politically unstable neighboring countries. Para. 16 of Resolution 1199. Quite significantly, the paragraphs in Resolutions 1160 and 1199 in which the Security Council refers to measures it may consider in the event of non-compliance are not mentioned by R. Wedgwood who is rather sympathetic to "Operation Allied Force." R. Wedgwood, "NATO's Campaign in Yugoslavia", AJIL 93 (1999), 828 et seq. The Council again affirmed that the unresolved situation in Kosovo constituted a continuing threat to peace and security in the region.
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under the threat of armed force were dashed, since both Saddam Hussein and Slobodan Milosevic later on reneged on their commitments and decided to "call the bluff". The initial withdrawal of part of the Serb forces in accordance with the Holbrooke-Milosevic agreement permitted the KLA to strengthen its position and to extend its armed activities. This led to new Serb offensives which culminated in "Operation Horseshoe" directed not only against KLA fighters but also including the systematic expulsion of Kosovar civilians. In particular, news of a massacer of Kosovars by Serb forces in the village of Racak on 15 January 1999 shocked Western public opinion. Negotiations at Rambouillet and in Paris in February and March 1999 failed to bring about the FRY's consent to the peace plan submitted by the so-called Contact Group on Yugoslavia66 that was eventually accepted by the delegation of the Kosovo Albanians. This time, a last-minute effort by Mr. Holbrooke to persuade President Milosevic to give in fell on deaf ears. Thereupon NATO began its air attacks on the FRY on 24 March 1999, again without previously raising the matter in the Security Council. A draft resolution condemning the air raids tabled in the Council two days later obtained only three votes in favor (China, Namibia, Russia). "Operation Allied Force" ended on 10 June after the FRY had at last accepted a peace scheme that was based on the principles agreed on by the foreign ministers of the G-867 on 6 May at the Petersberg Center near Bonn. In Resolution 1244 of 10 June 1999, the Security Council welcomed the acceptance by Yugoslavia of this plan and decided that it shall provide the foundation for a political solution to the Kosovo crisis. In particular, the Council decided on the deployment in Kosovo, under UN auspices, of "international civil and security presences, with appropriate equipment and personnel as required".68 In other words, the Council authorized the establishment of KFOR (Kosovo Force), another "enforcement by consent" operation.69 66
67
68 69
The major powers whose interests are particularly affected by the Balkan conflicts: France, Germany, Italy, the Russian Federation, the United Kingdom and the United States. The seven major Western industrial powers Canada, France, Germany, Italy, Japan, United Kingdom and the United States, as well as the Russian Federation. Para. 5. It was charged, inter alia, with deterring hostilities, maintaining and where necessary enforcing a cease-fire, and ensuring the withdrawal and prevent-
98
Max Planck UNYB 4 (2000)
"Operation Allied Force" epitomized the above-mentioned postCold War political realities: A "rogue state" that had already been involved in previous armed conflicts increasingly characterized by atrocities (Slovenia, Croatia, Bosnia and Herzegovina) was again committing massive violations of human rights, this time those of its own population. Extensive media, especially television, coverage of the growing humanitarian disaster in Kosovo mobilized Western public opinion. The governments of NATO states felt that they could not ignore demands to take effective action in order to enforce political values on whose universal validity the West insisted. The members of the Atlantic Alliance also believed that they could exploit their military superiority without having to worry about an escalation of the conflict as a result of other states, in particular major powers, providing military assistance, above all troops, to the FRY. Since it was a foregone conclusion that China and Russia would oppose an authorization of "Operation Allied Force", the Security Council was bypassed. b. The Legal Dimension In the public debate on NATO air raids against the FRY, the legal aspects were again neglected.70 The two key arguments advanced to jus-
70
ing the return into Kosovo of Yugoslav forces, as well as demilitarizing the KLA and other armed Kosovo Albanian groups (para. 9 (a) and (b) of S/RES/1244). By contrast, the issue of the legality of NATO air attacks on the FRY has given rise to extensive discussions among numerous international lawyers, whose opinions, at least in the West, are divided. See A. Cassese, "Ex iniuria ins oritur. Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?", EJIL 10 (1999), 23 et seq.; J.I. Charney, "Anticipatory Humanitarian Intervention in Kosovo", AJIL 93 (1999), 834 et seq.; C.M. Chinkin, "Kosovo: A "Good" or "Bad" War?", ibid., 841 et seq.; J. Delbriick, "Effektivitat des UN-Gewaltverbots. Bedarf es einer Modifikation der Reichweite des Art. 2 (4) UN-Charta?", Die Friedens-Warte 74 (1999), 139 et seq.; R.A. Falk, "Kosovo, World Order, and the Future of International Law", AJIL 93 (1999), 847 et seq.; P. Fischer, "Der gerechte Krieg im Kosovo", Die Universitdt (publication of the University of Vienna), June 1999, 15; T.M. Franck, "Lessons of Kosovo", AJIL 93 (1999), 857 et seq.; C. Guicherd, "International Law and the War in Kosovo", Survival 41 (1999), 19 et seq.; L. Henkin, "Kosovo and the Law of "Humanitarian Intervention", AJIL 93 (1999), 824 et seq.; P. Hilpold, "Auf der Suche nach Instrumenten zur Losung des Kosovo-Konfliktes: Die trugerische Faszination von Sezession
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tify "Operation Allied Force" were the enforcement of the abovementioned Security Council resolutions threatening unspecified sanctions in case of non-compliance and the prevention of a humanitarian disaster, reviving the discussion about the lawfulness of the so-called humanitarian intervention. Neither argument, however, is convincing. As pointed out above, the general application of Chapter VII by the Security Council and the determination of a threat to the peace by it71 does not empower individual members to take what they regard as the necessary measures to deal with the situation; they are not allowed to act as substitutes for the Council if the latter does not agree on concrete enforcement action. This remains true although in Resolution 1203 the Security Council welcomed agreements concluded by the FRY under the threat of force by NATO. Nor does it make a legally relevant difference that in this last resolution preceding "Operation Allied Force" the Council did not mention the consideration of further action and additional measures as it had in Resolutions 1160 and 1199.72 The refusal of a clear majority of the Council members to condemn NATO's bombing campaign did not signify approval of "Operation Allied Force" by the Security Council, all the more so because two permanent members voted for the draft resolution that denounced the
71 72
und humanitarer Intervention", in: J. Marko (ed.), Gordischer Knoten Kosovo/a: Durckscklagen oder entwirren?, 1999, 157 et seq.; K. Ipsen, "Der Kosovo-Einsatz - Illegal? Gerechtfertigt? Entschuldbar?", Die FriedensWarte 74 (1999), 19 et seq.; H.F. Kock, "Legalitat und Legitimitat der Anwendung militarischer Gewalt. Betrachtungen zum Gewaltmonopol der Vereinten Nationen und seiner Grenzen", Zeitschrift fiir offentliches Recht 54 (1999), 133 et seq.; Krisch, see note 53, 79 et seq.; H. Neuhold, "Die "Operation Allied Force" der NATO: rechtma£ige humanitare Intervention oder politisch vertretbarer Rechtsbruch?", in: Reiter, see note 62, 193 et seq.; W.M. Reisman, "Kosovo's Antinomies", AJIL 93 (1999), 860 et seq.; A. Roberts, "NATO's Humanitarian War", Survival 41 (1999), 102 et seq.; C. Schreuer, "Is there a Legal Basis for the NATO Intervention in Kosovo?", International Law FORUM du droit international 1 (1999), 151 et seq.; B. Simma, "NATO, the UN and the Use of Force: Legal Aspects", EJIL 10 (1999), 1 et seq.; S. Stadlmeier, "Volkerrechtliche Aspekte des Kosovo-Konflikts", Osterreichische Militarische Zeitschrift 37 (1999), 567 et seq.; C. Tomuschat, "Volkerrechtliche Aspekte des Kosovo-Konflikts", Die Friedens-Warte 74 (1999), 33 et seq.; Wedgwood, see note 64. As in S/RES/1199 (1998) and S/RES/1203, see above, 96. See above, 95. Moreover, the Council decided to remain seized of the matter not only in S/RES/1160 and S/RES/1199 but also S/RES/1203.
100
Max Planck UNYB 4 (2000)
air raids. Moreover, the negative vote of some Member States of the Council was not due to their support for the operation but rather to the lop-sided wording of the draft that failed to mention the violation of Security Council resolutions by the FRY.73 Especially if one assumes that the Security Council may authorize the resort to force also implicitly and after the event, the question arises whether Resolution 1244 may have provided such an indirect and subsequent authorization. However, in this Resolution the Council merely welcomed the solution brought about by NATO's air strikes but did not pronounce on their legality on which opinions remained sharply divided. The controversies about humanitarian intervention highlight one of the central dilemmas of international law: a conflict between two of its most important principles that have attained equal superior rank and both reflect fundamental values of the international community.74 That the prohibition of the threat or use of force belongs to these basic rules is stating the obvious. In the age of weapons of mass destruction, a breach of this prohibition may even entail the annihilation of mankind as a whole. Another achievement of modern international law of similar importance is the respect for human rights and fundamental freedoms. States are not free any more to treat individuals, above all their own nationals, as they deem fit.75 It is only appropriate that both principles are generally regarded as jus cogens and as having erga omnes effects and that they have been included by the ILC in the category of norms whose violation constitutes an international crime and entails special consequences for the perpetrator.76 However, which of the two principles is to prevail if resort to armed force not covered by the two exceptions to the prohibition of the use of force in Article 2 para. 4 of the UN Charter seems to be the only means to prevent a state from committing massive violations of basic human rights? It seems morally and politically unacceptable that the international community should have to sit idly by while a ruthless dictator engages 73 74
75
76
Krisch, see note 53, 84 et seq. B. Simma, "From Bilateralism to Community Interest in International Law", RDC25Q (1994), 229 et seq. Aliens enjoyed a minimum of rights also under traditional international law. R. Arnold, "Aliens", EPIL I (1992), 102 et seq. For further details see H. Neuhold, "The Foreign-Policy 'Cost-Benefit Analysis' Revisited", GYIL, forthcoming, and the literature quoted there.
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in the "ethnic cleansing" of part of his country's population. The legal dilemma could be solved if existing international law recognized the lawfulness of "humanitarian intervention", i.e., the use of force to protect the nationals of another state at least against large-scale atrocities by their own authorities.77 It is submitted, however, that no such third exception to the ban on force exists. Those who consider humanitarian intervention permissible de lege lata under very strict conditions cannot point to any treaty supporting their view. Nor can they prove sufficient practice and opinio juris to establish a foundation under customary international law. The few precedents in recent decades — like the military interference by India in East Pakistan in 1971, by Vietnam in Cambodia in 1978 and by Tanzania in Uganda 1979 — met with widespread protests and were, moreover, mainly justified as exercises of the right of self-defense. Humanitarian interventions by European great powers in the colonial period, for instance in Syria in 1860/61, are even less relevant to modern international law after the entry into force of the prohibition in Article 2 para. 4 of the Charter. Moreover, as recently as 1986, a document of the British Foreign and Commonwealth Office contested the legality of humanitarian intervention — Great Britain thus radically changed its mind after the end of the East-West conflict!78 Also in 1986, the ICJ rejected the 77
78
On this issue in general, see U. Beyerlin, "Humanitarian Intervention", EPIL 3 (1982), 926 et seq.; W.D. Verwey, "Humanitarian Intervention and International Law", NILR 32 (1985), 357 et seq.; M. Bothe, "The Legitimacy of the Use of Force to Protect Peoples and Minorities", in: C. Brolmann/R. Lefeber/M. Zieck (eds), Peoples and Minorities in International Law, 1993, 290 et seq.; C. Greenwood, "Gibt es ein Recht auf humanitare Intervention?", EA 48 (1993), 93 et seq.; P. Malanczuk, Humanitarian Intervention and the Legitimacy of the Use of Force, 1993; H.-J. Blanke, "Menschenrechte als volkerrechtlicher Interventionstitel", AYR 36 (1998), 257 et seq.; K. Doehring, Volkerrecht. Ein Lehrbuch, 1998, 431 et seq.; D. Kritsiotis, "Reappraising Policy Objections to Humanitarian Intervention", Mich.J.Int'l L. 19 (1998), 1005 et seq.; F. R. Teson, Humanitarian Intervention: An Inquiry into Law and Morality, 1998; F. Kofi Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention, 1999; Danish Institute of International Affairs, Humanitarian Intervention: Legal and Political Aspects, 1999; K. Zemanek, "Hat die humanitare Intervention Zukunft?", in: E. Reiter (ed.), Jahrbuch fur internationale Sicherheitspolitik 2000 (2000), 183 et seq. "But the overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention, for three main reasons; first, the UN Charter and the corpus of modern inter-
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use of force by the United States to ensure the respect for human rights in Nicaragua.79 It is also highly doubtful whether a right to humanitarian intervention will emerge in the future, even if very restrictive conditions are attached to it, such as its availability as a means of last resort, compliance with the principle of proportionality, its exercise by a group of states and not a single state and support for a concrete operation by a majority of the international community.80 It should be borne in mind that "Operation Allied Force" was widely and vehemently criticized outside the Euro-Atlantic region — were it only because the human rights records of many states, including China and the Russian Federation, are not beyond reproach. This writer believes that on balance priority should still be given to the ban on force and that "Operation Allied Force" was not in conformity with international law — yet morally tenable and politically inevitable.81 There may indeed be situations in which notions of justice are at odds with existing law. If one does not regard law as an end in itself and as a supreme value, one can live with such discrepancies if they remain sporadic. Moreover, to open the Pandora's box of declaring humanitar-
79
80 81
national law do not seem to specifically incorporate such a right; secondly, state practice in the past two centuries, and especially since 1945, at best provides only a handful of genuine cases of humanitarian intervention, and, on most assessments, none at all; and finally, on prudential grounds, that the scope for abusing such a right argues strongly against its creation." Foreign and Commonwealth Office, Foreign Policy Document No. 148, BYIL 57 (1986), 614 et seq., (619). "In any event, while the United States might form its own appraisal of the situation as to the respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect." ICJ Reports 1986, 14 et seq., (134). Cassese, see note 70. Other arguments in favor of the lawfulness of "Operation Allied Force", for instance on the basis of a general principle of law or an analogy extending the right of self-defense that Article 51 of the UN Charter grants to states to assistance to repressed peoples or minorities also lack a sufficient foundation de lege lata. Neuhold, see note 70, 201 et seq. Furthermore, since NATO does not want, for various reasons, the Kosovo Albanians to form a state of their own, it did not invoke the controversial right to provide military aid to them in the exercise of their right to selfdetermination as a people.
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ian intervention legal may entail consequences that are undesirable from a political point of view. It increases the risk of similar action by other states in situations where those supporting the air raids in the Kosovo crisis may hardly welcome the resort to force.
VIII. Conclusions The post-Cold War record of the UN system of collective security and the Security Council as its central institution is thus rather mixed. On the one hand, the system has been activated much more frequently in the 1990s than in previous decades in the area of non-military sanctions. However, this type of enforcement action was slow to produce the intended results, if it was effective at all. The Security Council was innovative in the field of peace-keeping, although "second-generation" operations ran into difficulties because the means at their disposal did not match their ambitious mandates. Military enforcement measures taken by the Council itself still remain a dead letter. The Council has tried to remedy this deficiency by authorizing states able and willing to do so to resort to military force in order to maintain and restore peace. "Enforcement by consent" is an interesting new variant in this context. The Security Council has also developed an increasingly broad notion of threats to the peace. There even have been concerns about the transformation of the Council into a world government. On the other hand, the system and the Council are in the throes of a double crisis. The legitimacy of the Security Council is increasingly contested.82 The composition of this body, in particular the privileged position of its permanent members, endowed with the "veto" power, reflects the political realities of more than half a century ago and is widely criticized as out of tune with the needs of today's world. A reform of the Council appears rather unlikely, however, since all the permanent members would have to agree to any amendment or revision of the Charter83 and do not seem ready to see their domination eroded.
82
D.D. Caron, "The Legitimacy of the Collective Authority of the Security Council", AJIL 87 (1993), 552 et seq.
83
Arts 108 and 109 of the Charter. W. Karl/B. Mxitzelburg, "On Article 108" and, "On Article 109", in: B. Simma et al. (eds), The Charter of the United Nations: A Commentary, 1995, 1163 et seq.; see also in this respect I. Winkelmann, "Bringing the Security Council into a New Era", Max Planck UNYB 1(1997), 35 et seq.
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The Council is also accused of applying a double standard in its practice of resorting to sanctions. Moreover, Western air raids against Iraq and, above all, "Operation Allied Force" have dealt severe blows to the Security Council's authority. Efforts at justifying these armed attacks on the basis of previous Council resolutions without an additional, specific authorization were hardly convincing. The Security Council was ostentatiously bypassed in all three cases mentioned above. In the Kosovo crisis, it was eventually used to sanction a solution which the FRY accepted after President Milosevic realized that his apparent strategy to wait for an early end to the bombings due to dissent within NATO and for Russian assistance had failed. It is not yet clear whether NATO Member States will rely on "Operation Allied Force" as a precedent for similar action on behalf of Western values and/or interests in the future or whether it will remain an atypical episode. In particular, will the Atlantic Alliance consider the backing of military operations, above all its ill-defined "crisis response operations", by the Security Council, if not in advance, then at least afterwards, as essential or merely as desirable, but not indispensable? The ambiguous formulations concerning this issue in the new Strategic Concept adopted at the NATO summit in Washington on 23/24 April 1999 while "Operation Allied Force" was in progress84 and conflicting statements by leading politicians and the chief administrative officer of the alliance at that meeting do not permit a definitive answer to this question.85
84
85
See, in particular, point 15 of this Concept, which in part restates Article 24 of the UN Charter: "The United Nations Security Council has the primary responsibility for the maintenance of international peace and security and, as such, plays a crucial role in contributing to security and stability in the Euro-Atlantic area" (italics added). This wording may reopen the debate to which the "Uniting for Peace" resolution adopted by the UN General Assembly in 1950 , gave rise: Does the "primary" responsibility of the Council leave room for a "secondary" role, this time not for the General Assembly but for the Atlantic Alliance or individual Member States beyond individual or collective self-defense, if the Security Council fails to take the necessary action to cope with a threat to the peace? See above, 78 et seq. French President Jacques Chirac regarded authorization by the Security Council as necessary, for German Federal Chancellor Gerhard Schroder it was needed "as a rule", whereas NATO Secretary-General Javier Solana denied this requirement. Die Presse of 26 April 1999.
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In this context, it may also be pointed out that in the abovementioned cases the use of military force was not totally independent of the Security Council. The Council had brought Chapter VII into play, had agreed on the existence of a threat to the peace and had also envisaged subsequent measures against the state responsible for the threat. Hence the Western powers did not "go all the way" in the direction of unilateral enforcement, since the direction had indeed been indicated by the sanctions organ of the UN. The Security Council also reappeared on the scene after "Operation Allied Force" had achieved its objectives and accepted the settlement agreed on by the parties. The damage to the Council's authority was thus limited to a certain extent; it remained severe enough, however, because of the challenge to the Council's monopoly on enforcement action under the UN Charter. Another question mark concerns NATO's ambitions to act as a "global policeman". Whereas the Washington Strategic Concept focuses on security in the Euro-Atlantic area, reference is made to the need to also take account of the global context.86 This does not mean that the Security Council has been completely sidelined after the Kosovo crisis. As has already been mentioned, it adopted non-military sanctions against the Taliban later in 1999.87 Moreover, it launched another "enforcement by consent operation" in East Timor to which the Indonesian government had eventually agreed.88 The Council authorized the states participating in the operation to take all necessary measures to fulfill its mandate that included the restoration of peace and security in East Timor.89 This multinational force was to be replaced as soon as possible by a UN peace-keeping operation.90
86 87 88
89 90
Point 24 of the Strategic Concept. See above, 85 et seq. By then, pro-Indonesian militias, in addition to killing thousands, had expelled or deported about half of the East Timorese population of approximately 800,000, after an overwhelming majority of some 80 % had voted in favor of independence in a referendum on 30 August 1999. Para. 3 of S/RES/1264 (1999) of 15 September 1999. Para. 10 of S/RES/1264 (1999). The Security Council thereby clearly distinguished between these two types of operations. The peace-keeping force was established as the military component (with a strength of up to 8,950 troops and up to 200 military observers) of UNTAET (United Nations Transitional Administration in East Timor) by S/RES/1272 (1999) of 25 October 1999.
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On balance, the system of collective security of the UN, despite some progress since the end of the Cold War, still leaves a great deal to be desired and has even suffered resounding setbacks in recent years. Conflicts continue to pit UN Member States, in particular also major powers, against one another. It must unfortunately be doubted whether the permanent members of the Security Council as the key actors will find it easier to act jointly in the near future. Russia is at present riding on the crest of anti-Western and nationalistic feelings in the wake of the Kosovo crisis and the armed conflict in Chechnya. China, still not a democracy by any stretch of the imagination, is looking for an independent great power role in world politics and is at odds with its Western counterparts over a number of issues. Even the Western states have reasons to worry about the state of transatlantic relations. It will therefore remain difficult to reach the necessary agreement within the Security Council in a concrete crisis on a common assessment of the situation and the measures that ought to be taken to deal with it. If the Council is paralyzed, it is difficult to predict whether Western powers will resist the temptation to go it alone — at least as long as their present superiority will last into the 21st century.
Of War, Humanity and Justice: International Law After Kosovo Francesco Francioni
I. Introduction When, in 1945, the founding fathers of the United Nations laid down the Charter rules governing the use of force, their paramount concern was the prevention of inter-state violence, acts of aggression and armed invasions which had been the cause of World War II. This is made clear in the language of Article 2 para. 4 ("All Members shall refrain in their international relations from the threat or use of force ..."), by the focus on self-defence as the sole exception to the unilateral use of force, and, more cogently, by the collective security system embodied in Chapter VII of the Charter. This system is controlled by the veto power of the five permanent members of the Security Council. Whether or not today this system is adequate for maintaining order in a world that has undergone profound transformations since 1945. It is clear that at its inception it was not intended for it to cope with crisis involving large scale violations for human rights within a given state's boundaries. For this type of situation, the Charter does not provide an explicit exception to the general prohibition of armed force. It recognizes "domestic jurisdiction" (Article 2 para. 7) as a shield against intervention in internal affairs by the Organization, with the sole exception of Chapter VII enforcement measures. It also recognizes the obligation to promote human rights (Arts 1 para. 3 and 55 lit.(c)) as a matter of duty to cooperate individually or collectively with the Organization
107 J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, 107-126. © 2000 Kluwer Law International. Printed in the Netherlands.
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(Article 56) and not as a counter norm authorizing military intervention. Much water has passed under the bridge since the adoption of these Charter provisions. Human rights have now become a fundamental concern of the international community and the source of inspiration for a wide range of United Nations operations including peace-keeping. The state-friendly shield of domestic jurisdiction has undergone severe erosion as a consequence of the general consolidation of the power of international institutions to investigate, supervise and condemn grave violations of human rights committed by a state against its own subjects. The right of self-determination of peoples has led to a radical change in the composition of the world community by permitting access to self-government for a myriad of peoples formerly under colonial rule or foreign domination. International criminal justice has taken great strides toward a system of individual accountability for international crimes, whose prosecution is now possible before international criminal tribunals. But are these transformations capable of altering the balance between the two sets of fundamental Charter values: maintenance of peace — recognized by the IJC as the object of a fundamental norm of customary law1 — and the protection of human rights? More precisely, has such balance been tilted in favour of the latter value so as to permit unilateral military action to prevent or stop grave violations of human rights even at the risk of breaking the peace and regardless of Security Council authorization?
II. The Epistemology of Legal Assessment These questions have divided international lawyers as well as political commentators in the wake of the NATO armed intervention in order to stop persecution of ethnic Albanians by Yugoslavia in Kosovo2. This intervention was decided by NATO countries after the failure to reach a negotiated settlement on the long standing questions of Kosovo's autonomy. By the end of 1998, the issue had become dramatically urMilitary and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 14 et seq. See for further details of the conflict, N. Krisch, "Unilateral Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council", Max Planck UNYB 3 (1999), 59 et seq.
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gent because of the extent and brutality of the violations of human rights committed by the Yugoslav military and para-military forces against ethnic Albanians, who, in turn, had rapidly increased control over a substantial part of the territory of Kosovo. Today, the reality of such violations is well documented by the Organization for Security and Cooperation in Europe (OSCE). The OSCE reports covering the period before and after the 1999 war3 present a grim picture of mass deportation, sexual abuses, house-burning, expulsion and killings. All this leaves little doubt that these acts amounted to crimes against humanity since they were systematic acts of repression conducted by the Serb and armed forces against the Kosovo population. Also beyond doubt is that acts of intimidation, expulsion, discrimination and murder, although on a smaller scale, have been committed before and after the war by elements of the Kosovar Albanian population against Kosovo Serbs, Romas and Muslim Slavs4, thus perpetuating a vicious spiral of ethnic hatred. If the commission of extensive violations of international human rights is beyond question, the problem that remains with us after the Balkan war in 1999 is whether such violations of human rights justify resort to armed attack of the scale and intensity of the NATO aerial bombardments of March-June 1999. The problem is made more complex because of the lack of specific Security Council authorisation of the use of force and because of the "collateral" effects that the armed attack produced on the civilian population of the target country. This problem is now pending before the ICJ as a consequence of Yugoslavia filing a complaint against ten of the NATO countries which participated in the armed intervention. Unless the case ends with a finding of lack of jurisdiction, the Court will have, with this dispute, an opportunity to provide clarification and development of the law in this area. In fact, although the court dismissed the suit for lack of prima fade jurisdiction with respect to the United States and Spain, nevertheless in all the other cases it reserved the subsequent procedure for adjudication of the issue of jurisdiction. Moreover in all the ten orders issued on the request for provisional measures, the Court did not miss the opportunity to express its concern with the use of force. With identical OSCE Report, Kosovo/Kosovo, — As Seen, As Told, issued by the OSCE Secretariat, Vienna, 6 December 1999, circulated on internet website: http://www.osce.org See Part II of the OSCE Report covering the period 14 June - 31 October 1999.
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language used in the pre-ambular paragraphs of the orders, the Court stated that it is "profoundly concerned with the use of force in Yugoslavia ... under the present circumstances such use raises serious issues of international law"5.The Court went on to suggest that the action of all parties to the dispute were bound to be scrutinized under the law of the Charter, international law, including humanitarian law. In legal doctrine, on the other hand, an intense debate has already taken place among international lawyers and, basically, it has led to four different positions. The first considers the intervention as lawful because of the overarching importance of human rights in contemporary international law and of the obsolescence of the United Nations monopoly on the authorization of force with the attendant blocking power of the veto by one of the five permanent members6. The second, view is that the armed intervention is destitute of any legal justification in the law of the Charter and in customary international law, thus amounting to an act of aggression7. The third view is more equivocal. While it recognizes that the Kosovo armed intervention constituted a breach of international law, particularly the law of the Charter, it concludes that compelling moral and humanitarian justifications make it a case of only "minor" use of force involving no breach of jus cogens and, certainly, no case of aggression8. Finally, a. fourth view holds that the NATO air campaign in Kosovo was an international wrongful act under traditional rules of in-
Documents pertaining to this dispute, including the ICJ Orders denying interim measures are reprinted in: ILM 38 (1999), 950 et seq. E.g. M. Glennon, "The New Interventionism. The search for a Just International Law", Foreign Aff. 78 (1999), 2-7; R. Wedgwood, "NATO's Campaign in Yugoslavia", AJIL 93 (1999), 828 et seq. The same issue of the AJIL contains other contributions on the Kososvo intervention by Henkin, Charney, Chinkin, Falk, Franck, Reisman. A. Bernardini, "Una guerra contro i popoli e contro il diritto", / diritti dell' uomo 9 (1998), 33 et seq.; U. Villani, La guerra del Kosovo: una guerra umanitaria o un crimine internazionale?, Volontari e terzo mondo, 1999, 26 et seq.; V. Starace, "L'intervento della NATO in Jugoslavia", Sud IN-EUROPA, No. 3, 1999, 1 et seq.; N. Chomsky, The New Military Humanism: Lessons from Kosovo, 1999. For a nuanced and balanced critique of the justification for NATO's intervention, C. Chinkin, "A 'Good' or 'Bad' War", AJIL 93 (1999), 841 et seq. B. Simma, "NATO, the UN and the Use of Force", EJIL 10 (1999), 1 et seq.; N.Ronzitti, "Raids aerei contro la Repubblica Federale di lugoslavia e Carta delle Nazioni Unite", Riv. Dir. Int. 82 (1999), 476 et seq.
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ternational law on the use of force, but maintains that such traditional rules are undergoing progressive erosion in order to accommodate the emerging view requiring "positive" action to stop extensive violations of human rights that shock the conscience of humankind9. All these views contain some truth but, at the same time, are unsatisfactory in view of a long term response to the complex transformations occurring in this area of international law and relations. The first view, in declaring the obsolescence of the Charter scheme on control of military force, would open the flood gates to unilateral interventions, thus making the well intended objective of justice and human rights depend on the policy decision of a handful of powerful states. The second view, although technically correct, rests too much on the status quo and on the comfortable cold war notion that non-defensive use of force is always impermissible without Security Council authorization. It does not matter how arbitrary and blind to ongoing atrocities the withholding of such authorization might be owing to possible use of the veto power. The third view, based on a reductionist approach to the gravity of the breach caused by the humanitarian intervention, presents the advantage of separating the Kosovo case from the case of aggression, thus delinking "necessitated" humanitarian intervention from the possible breach of jus cogens. However, can one reasonably maintain that the NATO onslaught on Yugoslavia was a "minor" breach of the norm prohibiting the use of force? Certainly it was not a case of a swift raid to save the life of hostages, of the kind we have seen in the past, as the celebrated Israeli Entebbe rescue or the failed US mission in Iran in 198010. Kosovo was a full scale war that lasted more than two months. It was carried out with relentless aerial bombardment not seen in Europe since World War II. It was intended to continue until the capitulation of the Belgrade government and its withdrawal from Kosovo in order to permit the deployment of an international military force. If words still have a function in identifying legal concepts, frankly, I do not see how we can use the term "minor" to describe such massive use of force and its impact on the law of the Charter and customary international law.
9
10
A. Cassese, "Ex iniuria ins oritur. Are We Moving toward International Legitimation of Forcible Humanitarian Countermeasures in the World Community?", EJIL 10 (1999), 23 et seq. For extensive analysis of these cases, see N. Ronzitti, Rescuing Nationals Abroad through Military Coercion and Intervention on Grounds of Humanity, 1985.
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Finally, the fourth view has the merit of focusing on the dynamic trends of international law. It recognizes that even norms of the highest order, such as the prohibition of the use of force11, may undergo a process of transformation as a consequence of their breach in order to uphold a competing or even higher value such as the prevention of extensive killings and atrocities. However, I believe that this opinion too quickly translates the exigencies of justice into positive exceptions to the UN Charter system of collective enforcement and too readily relies on the ex post legalization by the community of states of the otherwise unlawful act of armed intervention in breach of the UN Charter12. It may be risky to re-invent an idea of international justice that is opposed to the Charter and to anchor its future development to such a shaky spot as the Kosovo crisis. In any case it is too early to draw conclusions in terms of ex post legalization of the intervention. There is no evidence yet of a widespread acceptance of its legality by the international community as a whole13.
III. Rethinking the Paradigm A different way to look at the NATO war for Kosovo is to separate the issue of its legality under existing international law from the issue of its 11
12
13
T. Bruha, "Use of Force, Prohibition of", in: R. Wolf rum (ed.), United Nations: Law, Policies and Practice, Vol. 2, 1995, 1387 et seq. Also in legal doctrine the admissibility of the use of military force for intervention on grounds of humanity is far from being accepted uniformly. For an early debate on the subject, see the exchange between Lillich and Brownlie in: J. Moore, Law and Civil War in the Modern World, 1974. Besides the unambiguous dictum of the ICJ contrary to humanitarian intervention in the Nicaragua Case (see note 1, 134-135, paras 268, 269) and opposition of countries such as China, India, and Russia, which make up a large portion of the world population, the debates going on in the General Assembly at the time of this writing show an extremely cautious attitude of the great majority of the UN members with regard to the admissibility of military force on humanitarian grounds and without UN mandate. Even countries that have participated in the NATO bombing have underscored the exceptional character of the Kosovo situation (Germany) and warned against the risks of abuses and of delegitimation of the UN System. For a timely review of this practise, see N. Ronzitti, Uso della forza e intervento di umanita, unpublished paper presented at a workshop in Rome on NATO, the Kosovo Conflict and the Italian Constitution, University LUISS Guido Carli, 13 December 1999.
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possible legitimacy in the context of broader notions of international public policy and justice. This dual perspective makes it is possible to avoid confusion between lex lata and lex ferenda. Also, it spares us the risk of strained interpretations of the law in order to reach a subjectively desired outcome, an attitude that today generates so much cynicism about the law, both international and national.
1. The Charter Scheme The UN Charter provides a wide variety of norms and institutions to cope with crises that endanger international peace and security. First and foremost it proscribes "the threat or use of force against the territorial integrity or political independence of any state" (Article 2 para. 4). This prohibition is unqualified and unconditional. It has been held to reflect a norm of customary international law by the ICJ in the Nicaragua Case (1986)14 and is considered as a norm of jus cogens by authoritative commentators.15 The exceptions to this fundamental norm are very narrow and consist of - a.) self-defence against armed attack, as provided in Article 51 of the Charter; b.) use of force or authorization of the use of force by the Security Council under the Chapter VII centralized security system for the maintenance of peace; c.) decentralized "enforcement action" by regional organizations as contemplated by Article 53. If we leave out the case of self-defence, for which no plausible argument can be made to justify the Kosovo intervention, the grounds on which the NATO use of force could be justified remain exceptions b.) and c.). With regard to exception b.) the fact that Kosovo was an "internal" situation within the Federal Republic of Yugoslavia in principle would not prevent the United Nations from taking action with respect to such situation. Article 2 para. 7, which contains the notorious clause on "domestic jurisdiction", does not apply to enforcement action under Chapter VII. Even outside the scope of the Chapter VII exception, the weight of authority and the practise of the United Nations recognizes that the Organization has a competence to deal with "domestic" situations involving extensive violations of human rights in violation of the 14 15
See note 1. B. Conforti, Diritto Internazionale, 1997, 185; I. Brownlie, Principles of Public International Law, 5th edition, 1998, 517.
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Charter.16 Although such competence is primarily vested in the Security Council when violations of human rights amount to a threat to the peace, it may be exercised also by the General Assembly within the general scope of Article 10 and subject only to the "primacy" clause of Article 12 para. I17. Within this general framework, the practise developed in the United Nation with regard to enforcement action for the maintenance of peace has departed from the letter of Arts 42 and following. From the Korean war in 1950 to the Gulf war of 1991, and other interventions in Somalia, Bosnia, Haiti, East-Timor — to mention only the most important cases — the Security Council, rather than to undertake military operations under Chapter VII directly, has delegated or "authorized" the use force by coalitions of "willing" states. In the case of Kosovo, there was no express authorization of force by the Security Council to NATO because of the clear opposition of China and Russia. However, the issue has been raised as to whether recognition by the Security Council of the Kosovo situation in 1998 as a threat to the peace would amount to implied authorization of the use of military force. I shall address this issue in the following section of this article and in light of the specific content of Security Council Resolutions. If we consider exception c.), concerning enforcement action by regional arrangements or agencies under Chapter VIII, in principle there is no reason for denying NATO a role as an agent for regional security in cooperation with the United Nations. NATO is an alliance almost entirely of democratic countries with a record of defensive policy and respect for the rule of law. The 1999 Report by the Secretary-General to the 54th Sess. of the General Assembly stresses the importance of decentralized enforcement action by regional organizations.18 Further, the NATO Treaty itself contemplates links with the UN System. However, even if, in principle, one could conceive a legitimate role for NATO in Kosovo, in practise, the issue remains as to whether such role may be independent of a UN mandate and whether it is consistent with the purely defensive nature of the constitutive instrument.
16
17
18
For extensive review of the practise, see B. Conforti, The Law and Practice of the United Nations, 1996, 133-151. Article 12 para. 1 reads: "While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests". Report of the Secretary-General on the work of the Organization, 54th Sess., Doc.A/54/1.
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In the following, I shall address only the former question, since the later raises delicate issues of constitutional law which, understandably, fall outside the scope of this paper.
2. The Legality of NATO's Intervention under the Law of the Charter Given the above Charter framework, let us now address the question as to whether the use of force by NATO has any legal basis in the Charter. At the outset, the answer would appear to be a negative one. The aerial bombardment was not in self-defence and it was not authorized by the Security Council within the framework of Article 42. As to whether the use of force was justified under the narrow exceptions described in Section III.l., the answer depends on a careful examination of the specific circumstances of the case as well as of the context in which the evolving humanitarian situation in Kosovo in 1998 and 1999 came to interact with the UN initiatives aimed at coping with the crisis. As early as 31 March 1998 the Security Council had addressed the escalation of violence between Serbs and ethnic Albanians in Kosovo by adopting Resolution 1160. The most important features of this resolution were 1.) the Security Council's declaration that it was acting under Chapter VII; 2.) the condemnation of acts of violence by Yugoslav forces and by the Albanian liberation army as well; 3.) the decision to impose an arms embargo on Yugoslavia, "including Kosovo". The Security Council adopted other resolutions, very similar in content to Resolution 1160, respectively on 23 September and on 24 October 1998. Although these resolutions declare that the situation in Kosovo constitutes a threat to peace and security in the region. However, in no way did they authorize either explicitly or implicitly recourse to military force as a means to bring an end to the humanitarian crisis19. The only reference to possible coercive action is the one contained in Resolution 1203 of 24 October 1998 which was adopted in the wake of the acceptance by Yugoslavia of the ultimatum issued by NATO in order to compel Yugoslavia to permit the deployment in Kosovo of an OSCE monitoring mission of 2000 unarmed observers and to consent to a NATO overflight of Kosovo to monitor compliance with the mission's mandate. Para. 9 of the Resolution makes reference to possible 19
S/RES/1160 (1998) of 31 March 1998; S/RES/1199 (1998) of 23 September 1998; S/RES/1203 (1998) of 24 October 1998.
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"action" in order to evacuate the members of the mission in case of emergency. The very careful language used to contemplate such limited use of force, consisting of an eventual rescue mission to transfer the OSCE observers out of the territory of Yugoslavia, further proves that in no way can we read in the above mentioned Security Council resolutions a general mandate to resort to force to settle the overall Kosovo crisis. As for the role of the General Assembly, Resolution 53/164, in which the Assembly condemned the violent repression by Serbian forces as well as the acts of violence and terrorism committed by Albanian military and paramilitary groups, was adopted on 9 December 1998. However, also in this resolution there is nothing that can be interpreted as a recommendation to resort to military force to resolve the conflict in Kosovo. On 10 June 1999, the Security Council passed Resolution 1244, defining the Council's stance in the aftermath of the NATO intervention.20 The resolution initially chastises the Member States for not being in "full compliance with the requirements of these resolutions" (i.e. the lack of authorization to use force).The Security Council accepts the current situation and purports to contribute to the peaceful settlement of the conflict. In no way does this Resolution legitimize ex post the actions of NATO, at least not directly. By accepting the current situation, including the negotiated cease fire agreement with the Serbs, the Security Council is simply acknowledging the fait accompli which was put before it following NATO's unilateral bombing initiative, which in the very words of the Security Council are not in compliance with its prior resolutions. Given the absence of either express or implied authorization by the Security Council, can the NATO intervention be justified as enforcement action by a regional organization under Article 53 of the Charter? Even admitting, as I have done above under Section III.l, that NATO may qualify as a "regional organization", this question must be answered negatively. The text of Article 53 is clear: No enforcement action shall be undertaken pursuant to a regional agreement or by a regional agency without Security Council authorization. Further, the same article requires that the Security Council directs and supervises the enforcement action, thus contemplating the regional agreement or agency as a sort of agent of the United Nations for peace enforcement
20
S/RES/1244 (1999) of 10 June 1999.
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purposes. These requirements have been confirmed by way of authoritative interpretation given by the General Assembly to Article 5321. Since neither prior authorization nor effective supervision by the Security Council can be shown in the case of Kosovo, NATO armed intervention does not meet the essential requirements set by Article 53 for the use of military force. Short of these requirements, NATO's resort to force would have been lawful under the Charter only if it could be qualified as "collective self-defence" to respond to an armed attack. An author22 has attempted to construe Kosovo's claim to autonomy as a ground for the exercise of collective self-defence. However, this thesis is manifestly unfounded since, despite the tragic plight of Kosovars, at no time in the unfolding of the situation was there an armed attack against NATO members, nor could a "collective" bond be construed between the ethnic Albanians of Kosovo and NATO countries for the purpose of triggering NATO intervention.
3. The Legality of NATO's Intervention under International Law If NATO's military campaign in Yugoslavia does not find a credible legal basis in the UN Charter, can it be justified under other norms or principles of customary international law? Today, as indicated above, the Article 2 para. 4 prohibition of the use of force has become a norm of customary international law. There is consensus that such norm prohibits not only acts of aggression and armed attacks against the territorial integrity and political independence of other states but also lesser instances of force such as armed reprisals or unilateral forms of armed intervention to induce compliance with international obligations.23 In this context an argument has been put forward in legal literature24 and in state practise25 that the rule on the
21 22 23
24
A/RES/49/57 of 9 December 1994. F. Kirgis, American Society of International Law, Insight, March 1999. A. Randelzhofer, "On Article 2 (4)", in: B. Simma (ed.), The Charter of the United Nations. A Commentary, 1994, 106 et seq. F. Teson, Humanitarian Intervention: An Inquiry into Law and Morality, 1988; Lillich, see note 12; M. Reisman, Unilateral Action and-the Transformation of the World constitutive Process: The Special Problem of Humanitarian Intervention, Paper presented at a Conference on "The Role and
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prohibition of force should yield to the principle of humanitarian intervention in another state to save the lives of innocent victims of ruthless violence. In principle, I share the moral and philosophical concerns that underpin this thesis. In an increasingly interdependent world there should be no "privacy" privilege for states to carry out atrocities within their jurisdiction, especially in an epoch when such atrocities cannot be covered by the veil of ignorance because of global communications and the media. However, humanitarian intervention without authorization by the Security Council, no matter how well intended, does not yet rest on a general consensus of the international community. Only a few western powers have supported this doctrine but only in one direction, e.g. in the sense of claiming a right to intervene abroad but never accepting the symmetrical obligation to tolerate other states intervention in their own jurisdiction. At least one of the present supporters, the United Kingdom, has not too long ago theorised quite the opposite in official statements denying the legal basis of humanitarian intervention in international law26. Furthermore, the fundamental obstacle to the finding of a new customary norm permitting humanitarian intervention is represented by the lack of definitional contours of the concept of humanitarian intervention. Practise provides numerous examples in which professed humanitarian considerations were inextricably entangled with the pursuit of national interests and geopolitical motives. Suffice it to mention here India's 1970 intervention in what is now Bangladesh, the 1979 Vietnamese intervention in Cambodia, the US interventions in Grenada in 1983 and in Panama in 1989. Of course, NATO's intervention in Kosovo may be a case of a genuinely motivated humanitarian action for the unselfish reason only of saving lives of innocent victims of violence. But even if this was universally accepted, one such case would not make instant international law and, at best, it could be taken only as the beginning of a new practise that, in due course, could give rise to a new exception to the general prohibition of the use of force. But this leads us to the considerations de lege ferenda which belong to the following section of this article.
25 26
Limits of Unilateralism: A US-Europe Symposium", Ann Arbor, 23-25 September 1999. See the United Kingdom's statement in: BYIL 63 (1992), 827. Foreign and Commonwealth Office, Foreign Policy Document No. 148, in: BYIL 57 (1986), 614 et seq. See in this respect note 78 of the article of Neuhold in this Volume.
Frandoni, Of War, Humanity and Justice: International Law After Kosovo 119
IV. The "Legitimacy" of NATO's Intervention During and after the Kosovo conflict, many voices have been heard which have denounced the rigidity of the Charter rules and the apparent impotence of international law when faced with humanitarian emergencies that cry for help to stop the murderous hand. Some of these voices belong to enlightened international lawyers whose distinguished careers has permitted them to deal with the law not only from the podium of the classroom but also from the bench of a tribunal called upon to judge some of the most heinous crimes against humanity. Cassese is one of them and, as mentioned above, he believes that the sense of legitimacy of the Kosovo intervention is so intense and vast as to signal a change already in progress with regard to the admissibility of humanitarian intervention as a measure of last resort27. Others, more radically, have put forward the view that international law should simply be ignored or set aside when it is an impediment to achieve the goals of justice and humanity. Glennon expresses this view in the following passage: "The death of the restrictive old rules on peacekeeping and peacemaking — under which most bloody conflicts were simply ignored as "domestic matters" — should not be mourned. Events since the end of the Cold War starkly show that the anti interventionist regime has fallen out of sync (sic) with modern notions of justice. The crisis in Kosovo illustrates this disjunction and America's new willingness to do what it thinks right — international law notwithstanding"28. Glennon's view is that of a disillusioned international lawyer who, when faced with perceived inadequacies of the law, seems to prefer to replace established norms of law with ad hoc diplomacy and "justice" in the individual case. This view has the merit of avoiding the hypocrisy of just pretending to comply with the law by resorting to strained and often untenable interpretations of it. Such interpretations or reinterpretations often serve to give an improbable legal justification to clearly unlawful acts. Honesty is to be appreciated in this case. However, this type of approach ends up with linking the "legitimacy" of what is a technically unlawful armed intervention to the "subjective" instinct and sense of justice of those who are considering intervention in the instant case. But, is this sense of justice able to operate only in 27 28
See note 9. See note 6.
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cases of extensive violations of human rights? How do we set the threshold? Could it legitimize transborder armed attacks to punish acts of terrorism on the grounds that terrorists are enemies of humankind? Should it lead to armed interventions against states which continue to practise the death penalty under the justification that a large segment of the civilized world today feels profound repugnance toward this method of crime control? These are only some of the questions troubling the approach based on the "instinct" of justice. In our view, if we are prepared to free humanitarian intervention from the moorings of international law and base it on the idea of international justice, we must be sure that the intervention enjoys a widely shared sense of legitimacy. If it is not to become pure expression of power politics, the idea of international justice premised on the interventionist agenda, must be perceived as part of a sustainable system of justice that operates either centrally — through approved institutions — or informally through individual states acting uti universi in the interest of the overarching common value of human life and dignity. Obviously, it is not easy to ascertain in every particular case whether humanitarian intervention rests on such notion of legitimacy. Nevertheless, it is the responsibility of any honest international lawyer to try to discern the situations in which forcible intervention is legitimized by compelling considerations of humanity from the situations in which power and "Realpolitik" are the controlling factors. Only such a discerning approach can guarantee that the transformation of international law in the field of humanitarian intervention, as advocated by Cassese, will eventually occur and will stay with us beyond the ephemeral support generated in a single episode. In the case of Kosovo, I regret to say that, despite all the good intentions, the military intervention by NATO fails to meet the test of legitimacy. This is so because of the lack of some essential elements that on moral and political grounds are to be considered as conditions sine qua non for a valid claim of humanitarian use of force. Let us briefly examine these elements in the context of the available information about the Kosovo crisis. Imperative Necessity: humanitarian intervention short of Security Council authorisation could possibly be considered legitimate only in the case of absolute necessity and in the absence of other non violent available options. Was the situation at the eve of the NATO attack such as to disclose a complete break down of diplomatic or political channels and thus legitimize the "last resort" remedy of unilateral use of force? To answer this question we must consider that the terms set in the no-
Francioni, Of War, Humanity and Justice: International Law After Kosovo 121
torious Rambouillet Agreements were so harsh for Yugoslavia as to raise the question whether they were meant to meet certain rejection by the Belgrade Government. They called for complete military occupation of Kosovo by NATO and allowed access and occupation of other parts of Yugoslavia at NATO's will. They assigned final and binding power of interpretation of provisions relating to the implementation of the Agreements to the NATO commander. Furthermore, the Agreement provided that "three years after the entry into force ... an international meeting shall be convened to determine a mechanism for a final settlement of Kosovo" opening the way for an interpretation favorable to a referendum on independence. It is hard to imagine how any state could accede to such conditions outside of the hypothesis of total debellatio and unconditional surrender. This notwithstanding, the record shows that following the ultimatum and threat of bombing issued by NATO against Yugoslavia, the Serbian Parliament, although reiterating its opposition to foreign military occupation of Kosovo, adopted a Resolution on 23 March which condemned the withdrawal of the OSCE verification mission, ordered on 19 March in preparation of the NATO attack, and called for further negotiations in view of "a political agreement on a wide ranging autonomy for Kosovo". Even if one were to question the good will of the Yugoslav authorities, the Kosovo Peace Accord signed on 3 June at the end of the hostilities indicates that the parties were able to reach a compromise which largely follows the lines contained in the parliamentary Resolution of 23 March: NATO dropped the demand of unlimited access to Yugoslavia's territory outside of Kosovo; reference to referendum on self-determination contained in the Rambouillet wording was avoided; and the international force endorsed also by Security Council Resolution 124429 included forces outside NATO, notably the Russian contingent operating outside NATO command. Could such compromise have been reached before or without the bombing? The answer can only be speculative, but certainly the sequence of events and the final outcome of the crisis casts a cloud of uncertainty over the so-called unavoidable necessity of resorting to bombing. Consistency: since the rationale for humanitarian intervention ultimately rests on the moral imperative of saving lives of innocent people, a good argument exists for holding the proponents of such a moral tenet to practise it consistently in different situations and different parts of the world. A quality of moral principles is that they should be prac29
S/RES/1244 (1999) of 10 June 1999.
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tised also when they do not conveniently fit the interest of the actor and should be applied without arbitrary discrimination. Contrary to this view, a respectable argument has been made that, since it is impossible to resort to humanitarian intervention in all parts of the world where atrocities are committed, consistency should not discourage humanitarian action in those limited cases in which a state or a group of willing states is ready to extend a helping hand. President Clinton has been a proponent of this view. In his speech of 1 April at Norfolk Air Station he stated: "there are times when looking away simply is not an option ... we can't respond to every tragedy in every corner of the world" but that does not mean that "we should do nothing for no one"30. Clinton's view is correct, since even the most altruistic government could not even dream of taking care of all the tragedies of the world. Besides, we are discussing the foundation of the right to resort to humanitarian intervention and not an implausible obligation to undertake it. However, the requirement of consistency I refer to is not to be understood as uniformity of conduct at different times in different parts of the world. It refers rather to consistency in terms of non-self-contradiction of those who claim the moral authority of humanitarian necessity to resort to armed force. In this sense, consistency is absent when the interventionist state permits in its own territory, or facilitates or abets abroad, extensive violations of the same rights for whose defence armed force is advocated or practised somewhere else. In the case of NATO, despite the prevailing democratic nature of the Member States , it is impossible to hide that Turkey has committed for years documented violations of human rights of the Kurds on a scale and with methods that greatly exceed the gravity of the Yugoslav repression in Kosovo before the NATO bombing. Also, there is no hiding the fact that other NATO members, notably the United States and some European allies, have provided decisive political support and military supply essential to the enforcement of the policy of violent suppression of the claim to Kurdish autonomy, including the policy of forced eviction of innocent peoples from their villages and their homes. It is true that we cannot intervene everywhere to solve every tragedy of the world. But should not the moral imperative so loftily proclaimed by the new interventionists require at least abstention from benevolent support of the perpetrators of such tragedies? Should not it also require active cooperation to provide minimal financial support to organize a contingent of peace-keepers under UN 30
Speech reprinted in: New York Times of 2 April 1999.
Francioni, Of War, Humanity and Justice: International Law After Kosovo 123
auspices when there is a coalition of the willing ready to act? The tragedies of Sierra Leone and the Republic of Congo, both the scene of huge atrocities in Africa in the nineteen-nineties, prove that preventive action by the United Nations was possible, but was opposed by the United States on financial grounds involving sometimes less than the annual salary of a UN employee31. Reference to these precedents is not meant to put into question the prevailing humanitarian motivations of NATO in the case of Kosovo. In fact, different NATO members may have had different motivations and different degrees of humanitarian commitment, as it can be inferred from the variety of governmental positions and of national public opinions that have emerged during the conflict. What this reference is meant to reveal is that with the present record, it is difficult to build a new credible notion of humanitarian intervention when the overall pattern of intervention remains tainted by a double standard and by intentional ignorance of some of the worst humanitarian catastrophes in the world. Proportionality: even if we are to concede that in case of extreme necessity force is legitimate for superior humanitarian ends, then there is no doubt that its use must remain subject to the principle of proportionality. This principle entails that the method, intensity and duration of force be determined so as to cause no more harm than is strictly necessary to achieve the humanitarian end sought by the use of force. In the case of Kosovo, the articulated humanitarian end was to save the lives of Kosovo Albanians, preventing destruction of their homes and villages with the consequent flow of refugees fleeing from the violence of the Yugoslav army and police forces. Under the principle of proportionality, the first obligation incumbent upon the intervening NATO countries would have been to plan the military action so as to stop or minimize the humanitarian catastrophe unfolding in Kosovo. Another obligation would have been to foresee and mitigate the inevitable plight of refugees fleeing the double evil of Serb persecution and NATO bombing. Unfortunately the record shows that neither evil was adequately averted. The preparation of the bombing and the actual onslaught of the NATO air campaign triggered the vicious response of the Yugoslav armed forces against Kosovar Albanians. It exacerbated the inter-ethnic conflict thus accelerating mass expulsion of Kosovo Albanians and murderous violence against civilians. The Yugoslav army and 31
See report in: Boston Globe of 19 February 1999 and Chomsky, see note 7, 66.
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police forces retain the sole responsibility for these crimes. However, we cannot hide that NATO could have better anticipated the reaction of the attacked country. A truly humanitarian commitment would have required a use of force primarily aimed at stopping slaughter and devastation rather than at crippling the military and logistic system of Serbia. It would have required prompt response action to assist the thousands of helpless refugees suddenly discharged on the neighbouring countries, especially Macedonia and Albania. Doubts about the proportionality of the NATO use of force arise also in connection with the excessive collateral casualties, deliberate destruction of bridges, bombing of television centers and other civilian objectives for which open dissent among NATO allies emerged during the air campaign.32 Another question related to proportionality is that of collateral damage caused by the bombing to the natural and human environment. When such damage reaches the level of "widespread, long term and severe damage to the natural environment", it constitutes a breach of humanitarian law as codified in the Geneva Protocol I.33 During the conflict, NATO reports hardly covered the environmental impact of the bombing. A detailed account is given in the application presented by Yugoslavia to the ICJ, which of course may not be the most objective source of information. However, after the war, a comprehensive evaluation of the environmental impact of the bombing was carried out by an international task force headed by UNEP, the Balkan Task Force (BTF). The factual finding of BTF make clear that the bombing of industrial facilities, especially the large Pancevo Plant near Belgrade, the massive pollution of rivers and soil, including the adverse affects of the use of deplete uranium shells, constitute grave and long term damage to the natural and human environment.34 Independently of whether such damage reaches the threshold of "widespread, long term, and severe" so as to constitute a breach of Protocol I, it seems highly questionable that 32
33
34
See, for instance, the condemnation by Italian foreign minister L. Dini of the NATO attack on the headquarters of the Yugoslav national television, reprinted in: La Repubblica of 24 April 1999. Arts. 35 para. 3 and 55 para. 1 of the Additional Protocol No. I to the Geneva Conventions of 1949, opened for signature 1977, ILM 16 (1977), 1391 et seq. The Report of the BTF is available at http://www.grid.unep.ch/btf- for a comprehensive discussion of the environmental implication of the Kosovo war, C.E. Bruch/J.E. Austin, "The Kosovo Conflict: unresolved issues in addressing the environmental consequences of war", Envtl. L. Rep. 30 (2000), 1 et seq.
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the method and amount of force employed to cause such harm may be considered proportionate to the humanitarian goal of alleviating the plight of Kosovars.
V. Conclusions The above analysis is only a preliminary attempt at addressing two fundamental questions raised by the Kosovo war: whether that war was a lawful use of force under the UN Charter and under international law, and, if not, whether it could be considered a just or legitimate war constituting a precedent for a constructive transformation of the Chartercentered international order into a new order more flexible and responsive to human rights violations. With regard to the first question, even if we are ready to accept the obsolescence of the centralized Charter system, and especially of the unchallengeable veto right of permanent members, it is impossible to find a legal basis in international law for the massive use of force by NATO countries against Yugoslavia. The second question is more complex. Although in principle a breach of the law may be necessary and useful for the progressive development of new norms, the analysis of the facts, diplomatic record and international practise reveals many ambiguities that undermine the legitimacy of NATO's claim to be the enforcer of a new and more just international order. These ambiguities especially concern the unavoidable necessity to resort to force, the integrity and consistency of the commitment to humanitarian values, (often the object of intentional ignorance by some of the same NATO countries that were so fervently active in Kosovo), and, finally, the respect of proportionality in the actual conduct of military operations. When we look at the Kosovo situation at the end of 1999 beginning of 2000, doubts about the legitimacy of the NATO interventionist claim tend to increase. It is true that the persecuted Albanians were able to return to their land. However, now we witness a new wave of reverse ethnic cleansing, this time by violent elements of the Kosovar Albanians against Serbs and Romas, that cast doubts even on the long term effectiveness of the military intervention. The most serious doubt, however, remains whether, in the final balance, the questionable advance marked by the Kosovo war in the quest for a more just and human order will be able to offset the unquestionable serious damage caused by the NATO unilateralism to the authority
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and prestige of the United Nations, the only institution still truly representative of the international community as a whole.
Saving the UN Security Council A Challenge for the United States Princeton N. Lyman
I. A Deepening Crisis There is a lingering problem hovering over the United Nations, and it is one that must be addressed in a new and innovative manner. This problem is the declining credibility and authority of the UN Security Council. It may be convenient, as in the early stages of the Kosovo crisis, for the United States to bypass the Council. But over the longer term, a Council that lacks both legitimacy and authority will cost the United States dearly. That, unfortunately, is the direction the Council is moving. The United States is always of two minds about the Security Council. When the Security Council passes a resolution the United States likes, e.g., authorizing the Gulf War against Iraq, Americans, and especially the Administration of the day, are quick to beam on the solidarity and effectiveness of the international community's most authoritative body. When the Council appears to flub its responsibility, in Bosnia or Iraq, the United States is just as quick to condemn the Council as pusillanimous, hypocritical, or at best — as the New York Times wrote not long ago — irrelevant.1
1
"Security Council Relegated to Sidelines," New York Times of 14 March 1999, 14. 127
J.A. Frowein andR. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, 127-146. © 2000 Kluwer Law International. Printed in the Netherlands.
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The Council is sometimes one, and sometimes the other. But the real problem is that the truly valuable use of the Council for American foreign policy objectives is fading for reasons that go beyond today's or tomorrow's crisis. For much of the world, the Security Council is seen as unrepresentative, biased, and increasingly ineffective in areas of concern for much of the world. The result is that more and more countries are willing to ignore Council-mandated sanctions, cease-fires, and even the safety and sanctity of UN peace-keepers. Recent evidence of this growing antipathy was in the UN General Assembly's reaction to the Security Council's decision to undertake a major UN operation in Kosovo, a decision basic to US policy in the province.2 Delegates from the G-77 were quick to point out the discrepancy with the Security Council's past actions on conflicts in Africa. This was in reaction to the fact that the United States was asking the UN to undertake in Kosovo, exactly the type of "nation-building" the United States had systematically opposed for the United Nations in every crisis since Somalia, notably those in Africa.3 The United States was also asking for extraordinary increases in the UN budget whereas it had systematically opposed increases in every other crisis over the past seven years. At an open meeting of the Security Council later in the year, several countries accused the Council of a double standard.4 The United States was able to garner the necessary support for Kosovo only when it agreed to significant new peace-keeping operations in Sierra Leone and East Timor and indicated a readiness to consider one in the Democratic Republic of the Congo.5 The General Assembly, in finally approving the budget for the Kosovo operation, inserted a provision emphasizing that "all future and existing peacekeepS/RES/1244 (1999) of 10 June 1999. For the breadth of this mandate, well beyond anything contemplated even in Somalia, see Report of the Secretary-General to the Security Council, Doc. S/l999/779 of 12 July 1999. African reaction is reported in Press Release GA/AB/3304 of 20 July 1999. The debate, which took place November 29-30, 1999, is summarized in Doc. SC/6784 of 18 January 2000. A 6,000 person force for Sierra Leone UNAMSIL was approved by the Council in S/RES/1270 (1999) of 22 October 1999-see in this respect also S/RES/1289 (2000) of 7 February 2000-the strength was lifted up to 11.000. The UN mission to East Timor was approved in S/RES/1264 (1999) of 15 September 1999. See also, "More Deployments in UN's Future", Washington Post of 13 August 1999; "U.S. to Support Sending U.N. Troops to Congo", Washington Post of 28 January 2000, A16.
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ing missions shall be given equal and non-discriminatory treatment in respect of financial and administrative arrangements."6 But the problem goes deeper and well beyond the G-77. Evidence was in the broad-based antipathy toward the Council exhibited during the 1998 negotiations in Rome for a new International Criminal Court.7 The United States went into those negotiations with an unrealistic if not entirely implausible position that referrals to this Court should come through the Security Council. The proposal had lots of things wrong with it, most notably that it was a rather transparent effort (pushed by the Pentagon) to protect Americans from ever being subjected to the Court's jurisdiction. But what was striking at Rome was the deep-seated objection to give the Security Council almost any authority vis-a-vis the Court. Countries as close to the United States as Canada, as well as almost all others, were pointed in wanting to keep the Court as far from the influence of the Security Council as possible. The treaty that was agreed upon — with the US voting against — goes so far as to give the new Court a share in one of the most important responsibilities granted exclusively to the Council in the UN Charter, i.e. the right to determine an act of aggression. By giving the Court the same right, the vast majority of countries repudiated one of the fundamental articles of faith and confidence in the UN's security structure.8
II. Should the United States Care? Before bemoaning this developing trend, Americans have to ask whether the United States should care. It is obvious from the current crisis in Kosovo, if not before, that the United States maintains the right to act in defense of its interests, including employing the use of force, whether or not such action has been authorized by the Security Council. That is a sore point with many other countries, including America's
A/RES/53/241 of 28 July 1999. See overview of relevant literature by M. Cherif Bassiouni (ed.), The International Criminal Court: Observations and Issues before the 1997-98 Preparatory Committee - and Administrative and Financial Implications, 1997, 33 et seq. R. Wedgwood, "Fiddling in Rome," Foreign Aff. 77 (1998), 20-24; A. Zimmermann, "The Creation of a Permanent International Criminal Court", Max Planck UNYB 2 (1998), 169 et seq.
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European allies, who feel much more comfortable with the political cover of a UN mandate even when they agree that force is merited. Witness the attitude of the United Kingdom toward intensification of the no-fly zone over Iraq and general European desire for such a mandate in Kosovo that delayed NATO resolve for several months.9 But the United States will surely maintain this independence. It is an element of its perceived responsibility as the one superpower. It is also a practical recognition that Russia or China could veto such UN approval if the United States had asked for it. In sum, the United States values Security Council authorization for the international legitimization and sometimes material support it sometimes brings, but the United States does not feel beholden to it. Yet the United States should not be too cavalier about bypassing the Security Council. Opinion polls consistently show the American public has a preference for the U.S. taking military action in consonance with the United Nations. Over the longer term of any military engagement, the legitimacy of UN authorization often becomes even more important to Americans.10 Nor should the U.S. accept as inevitable the clash of interests with Russia, with the sidelining of the Security Council as a result. The relationship with Russia has enormous ramifications that go beyond this article, but there are more than a few occasions when the Security Council has provided a valuable vehicle for US-Russia cooperation. Russia and China, despite their aversion to sanctions in general, joined the United States in imposing sanctions against the Taliban regime in Afghanistan.11 For other reasons, the value of the Security Council as an instrument of United States policy is too important to be ceded. There are things of
9
10
11
The Washington Post of 24 March 1999, A23. R Hunter, "Maximizing NATO," Foreign Aff. 78 (1999), 199-201. J. Tepperman, "Kosovo Dilemma: NATO Alone, Without a UN Backing?" International Herald Tribune of 22 March 1999,10. See S. Kull (ed.), Americans on U.N Peace-keeping: A Study of U.S. Public Attitudes, College Park, MD, Center for the Study of Public Attitudes, 1995 and subsequent polls; J. Rielly (ed.), Chicago Council on Foreign Relations Poll, 1995, 1999. S/RES/1267 (1999) of 15 October 1999. The chinese representative stated "Sanctions must be used only as a last resort..." but it had participated in the negotiations and "requested that the text be limited to the issue of combating international terrorism." News Press Doc. 1999/1015 and Press Release SC/6739.
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critical importance to the U.S. that only the Security Council can provide. The Security Council is unique in that it can mandate actions that bind all the UN Member States.12 It not only can legitimize the use of force, it can mandate sanctions that are worldwide. Sanctions, as the United States has learned from Iran to Cuba, that are not universal are often not very effective. Furthermore, despite all the criticisms about the Council's failures or obstacles, the United States has in the past ten years won support for nearly every major issue it brought before it. Out of more than 600 resolutions since 1991, the United States has only exercised its veto four times, three to prevent censure of Israel and once to block a second term for then Secretary-General Boutros Boutros Ghali.13 The US prevailed in having the United Nations take over Haiti peace-keeping from US troops, despite reservations of other members whether the situation was really a "threat to international peace and security" rather than a threat of immigration to Florida's shores.14 For six straight years the United States won strong condemnation of Iraq's efforts to flout UNSCOM, until a trio of other permanent members, not a general majority, undermined the policy.15
12
13
14
15
J. Delbruck, "On Art. 25", in: B. Simma et al., The Charter of the United Nations. A Commentary, 1994, 407 et seq. Information provided to the author by the United Kingdom Mission to the United Nations in New York, FCO Research Office. S/RES/1141(1997) of 28 November 1997 stated that thereafter such assistance should be provided by UN specialized agencies and other non-peacekeeping authorities. When the mission was nevertheless extended the following year, Russia and China abstained, S/RES/1212 (1998) of 25 November 1998. This later resolution affirmed once again that future assistance should be provided outside of peace-keeping. But in 1999, the US was again able to have the UN mission extended, S/RES/1277 (1999) of 30 November 1999. S/RES/687 (1991) of 3 April 1991 established UNSCOM with one vote against (Cuba) and one abstention (Yemen). S/RES/699 (1991) of 17 June 1991 unanimously confirmed IAEA's inspection authority. S/RES/707 (1991) of 15 August 1991, S/RES/715 (1991) of 11 October 1991, and S/RES/1060 (1996) of 12 June 1996, and S/RES/1115 (1997) of 21 June 1997 all unanimously condemned Iraqi interference with UNSCOM. S/RES/1134 (1997) of 23 October 1997 drew five abstentions: Russia, China, France, Kenya, and Egypt. Opinion on the Council remained divided over the issue until a new inspection regime was approved by
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Sanctions applied against Libya for the downing of an American plane over Lockerbie16 represented the first time the Security Council had sanctioned a country over a criminal offense before the courts. In the wake of the Clinton Administration's own reevaluation of peacekeeping policy after the Bosnia and Somalia disasters, the U.S. was able to reshape United Nations peace-keeping policy for much of the remaining decade, curtailing operations for the most part but obtaining UN peace-keepers for both Bosnia and Haiti. Finally, the 11-3 vote in March 1999 defeating the Russian condemnation of NATO bombing of Kosovo was not, as some described it, an example of the Council's irrelevance, but a resounding vote of support for NATO action.17 This string of important international victories — mobilizing broad support for United States objectives, isolating rogue regimes, enforcing sanctions, and deploying peace-keepers to places the United States either did not wish to go or to reduce its own involvement— these are the jewels in the crown, if you will, for the U.S. in the Security Council. But it is precisely this value that is threatened by the erosion of the Council's legitimacy.
III. The Erosion of Security Council Credibility The UN Security Council's failure to maintain the authority, and ultimately even the continued presence of the arms inspection regime it had established in Iraq, UNSCOM,18 was a vivid example of its eroding capacity. Iraq continues to defy the Council's efforts to establish a successor regime. But there have been many more, less publicized instances. For ten years, the United States and the United Kingdom had maintained UN mandated sanctions against Libya for not turning over the suspects in the Pan Am explosion over Lockerbie. But support began to erode in 1997 and fall apart in 1998. First the Arab League threatened to stop abiding by these sanctions, then the entire membership of the Organization of African Unity threatened not to continue to respect these
16
17
18
S/RES/1284 (1999) of 17 December 1999 . However, Iraq has yet to accept this resolution. S/RES/748 (1992) of 31 March 1992. See further R.J. Zedalis, "Dealing with the Weapons Inspection Crisis in Iraq", ZaoRV 59 (1999), 37 et seq. For the Kosovo question see i.a. L. Henkin, R. Wedgwood, T. Franck, C. Chinkin et al. in: AJIL 93 (1999), 824 et seq. S/RES/687 (1991) of 3 April 1991.
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sanctions after December 1998 unless the impasse over the Lockerbie incident were negotiated. The Non-Aligned Movement made the same threat in May 1998.19 Indeed Qadhafi had already been able to break the sanctions against air travel, arriving in full pomp and ceremony in several African capitals.20 That led the United States and the United Kingdom to agree to what they had long opposed, moving the trial of the suspected terrorists to a neutral third country. Sanctions in general are losing their appeal for many reasons, especially when they remain in place for long periods without seeming to resolve the issue that prompted them.21 Arab countries find it harder and harder to support continuing sanctions against Iraq, certainly with regard to the procedures for the Hajj, but also beyond. One former diplomat in New York remarked recently that no country besides the United States believes any more in the value of the sanctions against Iraq, and only America's veto power sustains them. So strong is the resistance to further sanctions, in particular against Arab countries, that Egypt refused to support the United States effort to strengthen sanctions on Sudan for the attack there on Egypt's own President.22 Difficulty in utilizing this important weapon — the most potent short of the use of force — will surely hamper United States objectives in the future.
19
The OAU decision was announced at the conclusion of the OAU Summit in Ouagadougu in June 1998, The Guardian (London) of 10 June 1998, 14; Communique, Ministerial Meeting of the Coordinating Bureau of the Non-Aligned Movement, Cartagenas de Indias, Colombia, 19-20 May 1998, para. 176, http://www.nam.gov.za/cartagena 98/html
20
Qadhafi had traveled to Chad and Niger, and sent pilgrims by Libyan plane to the Hajj in both 1997 and 1998. In April 1998 a group of Italians flew to Libya in violation of the sanctions, and on 9 July 1998, Egyptian President Mubarak did so. BBC News, "The Trail to Trial," 5 December 1998, ews.bbc.co.uk/hil/english/special_report/1998/08/lockerbie/newsid_ 156000/56144.stm
21
A. Bos, "United Nations sanctions as a tool of peaceful settlement of disputes", in: International Law as a Language for International Relations, 1996, 443 et seq.; D.J. Halliday, "The Impact of the U.N. sanctions on the people of Iraq", Journal of Palestine Studies 28 (1999), 29 et seq.; E. Hoskin, "The humanitarian impacts of economic sanctions and war in Iraq", in: T. Weiss, Political Gain and Civilian Pain, 1997, 91 et seq.
22
The official Egyptian position was conveyed to the author, then US Assistant Secretary of State, by the Egyptian Permanent Representative to the UN, in New York on 21 February 1998.
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The Council is also seeing its writ ignored in one conflict situation after another. In Angola, one of the largest UN peace-keeping forces in recent years (UNAVEM I, II, III), enlisted in support of a UN-brokered peace plan, failed to stem a renewal of civil war. The UN had to withdraw rather than stand by, as in Bosnia, watching helplessly as fighting resumed. Both sides in this war came to the conclusion that they could ignore the repeated Security Council resolutions, which exhorted each of them to adhere to the plan. The rebel side, UNITA, easily circumvented sanctions imposed on it with the clear connivance of both surrounding countries and European and Asian arms dealers.23 Security Council arms embargoes against Liberia and Sierra Leone were constantly violated, and the Security Council resolutions in the latter situation were often irrelevant to actions on the ground.24 Even with a peace agreement in Sierra Leone put together by neighboring states, the supporting UN peace-keeping operation, deployed in October 1999 (UNAMSIL), is finding it difficult to enforce its mandate against the actions of rebel and government troops.25 UN peace-keepers are no longer sacrosanct when they are deployed. Thus they are no longer able, at modest levels, to provide a symbolic presence to represent international resolve. For years, relatively small UN peace-keeping forces operated in Cyprus, the Middle East, and on the India-Pakistan border with little danger and as a source of stability.26 But now security for UN peace-keepers is a major preoccupation. They have been killed in Lebanon, Georgia, Tajikistan, Bosnia, and Angola, not in most cases by accident but targeted. In Georgia, the United
23
24
25
26
S/RES/976 (1995) of 8 February 1995; S/RES/1118 (1997) of 30 June 1997. See also The Humanitarian Times of 8 April 1999. See also in this respect Report of the Panel of Experts-Doc. S/2000/203 of 10 March 2000. S/RES/1132 (1997) of 8 Octoberl997, imposed an arms embargo on all parts of Sierra Leone. For an account of the war before and after the Security Council resolution, see J. Cilliers/P. Mason (eds), Peace, Profit or Plunder, 1999, 188-195. See also the Reports of the Secretary-General Doc. S/1999/1223 of 6 December 1999 and Doc. S/2000/13 of 11 January 2000. The Secretary-General has been forced to consider increasing the UN force from 6.000 to 11.000, see note 5, this in a country far smaller than the Congo where a far larger crisis is occurring. The Washington Post of 22 January 2000, 20. M. Bothe, "Peacekeeping", in: Simma, see note 12, 565 et seq.
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Nations contemplated a security contingent for its military observers several times the number of the observer force itself.27 The decline in Security Council credibility affects the UN's capability for conflict resolution more broadly. The Secretary-General's special envoys to Congo (Brazzaville) in 1997 and Sierra Leone throughout 1996-98, backed by supportive Security Council resolutions, were largely powerless diplomats, flying around to capitals and working internally in search of solutions against the tide of strong regional participation, and outside indifference to those civil wars. In the war in the Democratic Republic of the Congo, involving no less than six other African countries as well as a civil uprising, the UN has been almost sidelined. The antipathy toward the United Nations by the current government of Rwanda, because of the UN's failure to stem the genocide of 1994, and by the Congo government of Laurent Kabila as a result of the UN's (unsuccessful) effort to investigate human rights violations in that country, has eroded United Nations effectiveness. But if the Security Council, the UN forces it deploys, and its negotiating standing are ineffective in these conflict situations, what is the result for the United States? These are for the most part regions to which neither the United States nor European armies are prepared to go. The answer then is more chaos, a scale of human rights violations that easily rival and indeed out distance those in Kosovo, and billions of dollars in humanitarian relief programs that stretch on for years. U.S. humanitarian aid to Angola over the last six years alone approaches US$ 500 million. For Sierra Leone in the same period, the figure is US$ 300 million. All international aid in the wake of the Rwanda genocide totaled US$ 4 billion, eight times the amount spent on a woefully inadequate peacekeeping mission beforehand. The U.S. share of that aid has been more than US$ 1 billion.28 27
28
S/RES/858 (1993) of 24 August 1993 authorizes an unarmed observer force (UNOMIG-United Nations Observer Mission in Georgia) of up to 136, but the actual force fell as low as 81 in July 1998 due to security conditions. In response, the UN Department of Peace-keeping Operations considered adding a 294 person armed force to protect the observers, Doc. S/1998/375 of 11 May 1998, paras 26 and 27, and Annex. The Financial Tracking Database for Complex Emergencies, UN Office of the Coordination of Humanitarian Affairs; US Overseas Loans and Grants, Statistical Annex I to the Annual Development Coordination Committee Report to Congress, Fiscal Year 1997; later Angola figures provided by the Agency for International Development, Office of Foreign Disaster Assistance; "Peace in Sierra Leone", The Washington Post of 22 January 2000,
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IV. The Heart of the Matter What is at the heart of this loss of credibility and respect for the Security Council? The reasons are many but boil down to these: It is seen as decidedly unrepresentative. Its membership has only been expanded once, in 1965, from eleven to fifteen members, while the UN has grown from an original 51 in 1945 to 188 (and in case Tuvalu will be admitted even 189, see S/RES/1290 (2000) of 17 February 2000). Major population centers like India, Indonesia, and Brazil are regularly excluded. The Council's five permanent members, with veto power, were supposed to represent the world's power centers. But there are other power centers today not so represented. The permanent members are thus perceived to be there solely by their possession of nuclear weapons, a point cited frequently by India as one (if slightly specious) rationale for crashing into the nuclear club.29 Other countries, like Japan, Germany, Italy and Canada, are keenly aware that they provide more financial support to the United Nations than the permanent members Russia, China or (except for Canada) the United Kingdom. These countries either resent their exclusion from permanent membership (Germany and Japan) or oppose continuation of the veto (Canada). Other allies have also attacked the veto, with Belgium leading a particularly strong attack on it in June 1998.30 The Council is seen as dominated by Western interests, and relatively indifferent to crises elsewhere. Contrast the Security's Council's actions, for example in sending peace-keepers to the former Yugoslavia (even post-Dayton) to its reactions to civil war in Liberia, Sierra Leone, the Congo, or the Central African Republic. UN peace-keeping operations since 1995 to help enforce the Dayton peace plan, over and above
29
30
22. For Rwanda, see M. Brown/R. Rosecrance, The Costs of Conflict, published by the Carnegie Commission on Preventing Deadly Conflict, 1999, 72-73. S. Talbott, "Dealing With the Bomb in South Asia," Foreign Aff. 78 (1999), 116. "Proposals on decision-making in the Security Council, including the veto," submitted to the Open-ended Working Group on Matters Related to the Security Council, 25 June 1998. Belgium was joined by Austria, Australia, Bulgaria, the Czech Republic, Estonia, Hungary, Ireland, Portugal and Slovenia. Doc. A/AC.247/1998/CRP.17, Annex XVI to GAOR 52nd Sess. Suppl. No. 47.
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the NATO presence, total more than US$ 600 million. The UN estimates its Kosovo program will cost US$ 456 million annually.31 Peace-keeping in all the African crises mentioned above, by contrast, totaled only US$ 180 million, largely for unarmed military observers in Liberia and Sierra Leone, until the turnaround on African crises, after Kosovo, mentioned above. No UN peace-keepers or other forceful action has been authorized for the civil war in Sudan. Only in Angola, where the United States and Russia had a large stake, and where the peace negotiations began before the Rwanda and Somalia debacles, did the United Nations dispatch a sizeable force in Africa in the six years after the Somalia debacle. The United States is seen as particularly responsible for this bias, by pursuing a tight rein on UN peace-keeping (outside of Europe) since the policy reevaluation in 1993. Indeed, Congress refused to fund the U.S. share, just US$ 12 million, for a small peace-keeping operation in the Central African Republic authorized in 1998.32 But even if the United States now, in the wake of the United Nations General Assembly "revolt" over Kosovo expenditures, demonstrates more sensitivity to African crises, it will not heal the more fundamental problems of the Council. These go to its basically outmoded structure.
V. What Are the Options for Change? Reform of the Security Council has been debated for decades. There are more studies, working groups, commission reports, and recommendations than one can count. But they all founder on one basis or another. Current efforts are completely deadlocked, despite strong pressure from Germany and Japan, and the efforts of an Open-ended (aptly named) Working Group on the subject in the General Assembly which has been deadlocked for more than six years.33 It will remain deadlocked unless a wholly new approach is taken. Reform is difficult because each proposal so far runs up against one or another fundamental interest of some key party or parties. The United States is prepared to support an expansion of the Council, to en-
31 32
33
Press Release GA/AB/3348 of 6 December 1999. Department of State, Bureau of International Organization Affairs, Round the World Briefings, Reports to Congress, June 1998 et seq. Press Release GA/9693 of 20 December 1999.
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able Germany and Japan to become permanent members. The United States recognizes that realistically this would have to be accompanied by adding members from the Third World as well, to avoid the Council becoming in Secretary Albright's words "too industrio-centric." But the United States fears expanding the Council by more than five or six, lest it become a debating society unable to take firm decisions in a timely manner.34 The concern is understandable. Coming to closure on critical resolutions — those dealing with serious crises and moving toward either sanctions or the use of force — is already an agonizingly slow and often tendentious process. Negotiations over resolutions dealing with the Iraq crises of 1997-98 involved in almost every case weeks of negotiations including wordsmithing back and forth among foreign ministers themselves as well as their representatives in New York. The stakes are high. The United States has had another concern. At present, the United States can count on eight votes in any significant situation (assuming P5 unity, and thus no veto, plus the votes of the two non-permanent members from the Western Europe and Other Group, and one vote from the non-permanent Eastern Europe group). It thus needs but one vote from Third World countries to secure a majority of nine. Expanding the Council to 21, with the addition of Germany, Japan and presumably a Central European country on one side, and a permanent representative each from Africa, Asia and Latin America, on the other, would preserve the same balance. But moving beyond that, to numbers strongly advocated by Third World members, up to 24 (two each from Asia, Africa and Latin America) or even 26, would result in needing more Third World votes. The U.S. fears being put in a position of defending its interests in the Security Council more by vetoing unfriendly resolutions than by being able to mobilize majority support. The Council would in such a situation become immobilized as in the Cold War period. However sound the logic behind it, the United States position has come to be seen as the principal obstacle to reform. That is because other regions cannot accommodate their claims within the numbers upon which the United States insists.
34
The U.S. official position was put forward at a meeting of the Open-ended Working Group, 17 July 1997, by United States Permanent Representative Bill Richardson. For a fuller discussion of U.S. views and concerns, see J. Laurenti, Reforming the Security Council: What American Interests? UNAUSA, 1997.
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Not one of the regions mentioned can agree on one candidate to be its new permanent representative on the Council.35 For Asia, India demands the right by dint of its population, its economy, and now its nuclear weapons. But Pakistan would never agree, nor do Indonesia or Bangladesh readily concede India's leadership. In Latin America, Brazil's ambitions are strongly opposed by Mexico, Venezuela and Argentina. Africa recoils from having to choose between Nigeria, South Africa, Kenya or Egypt. The response therefore from these regions has been to argue for greater enlargement, up to 24 or 26, to meet these competing demands. The American counter-proposal, to allow new "permanent" seats to be rotated among two or three members from each region, has not met with enthusiasm, except in Africa where this is the official position — provided Africa gets two such seats! Nor is Europe united. Italy has made its opposition to Germany's attaining permanent membership one of its principal foreign policy objectives. Italy has campaigned around the world on this issue. It has mobilized Third World opposition to what came to be called the "quick fix" (Germany, Japan and three or four other new members), skillfully blocked forward movement in the UN General Assembly, and generally kept the issue from resolution in Germany's favor. Italy argues that Germany's ascension would produce three Western European permanent members, excluding Italy which has contributed more peacekeepers than any other country, and which has a larger economy and makes a greater contribution to the United Nations than the United Kingdom. Italy, it is argued, would then, when not serving as a nonpermanent member, be relegated to "fourth class" status, behind the present P-5 with their veto power, the new permanent members, and the non-permanent members. This runs contrary to its role and status in Europe and the world. If agreement cannot be reached on adding new permanent members, the fallback the Non-Aligned (and Italy) advocate is more nonpermanent members. This proposal is completely anathema to the United States. It only reinforces the likelihood of the Council becoming an unwieldy debating society. "Heaven forbid," remarked one senior American official, "that the Security Council would become another ECOSOC."
35
For detailed presentations of the various regional and individual country positions on the Security Council reform, see GAOR 51st Sess., Suppl. 47 of 8 August 1997; Press Release GA/9693 of 20 December 1999; Laurenti, see above.
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Finally, there is the veto question. Eliminating, or at least greatly reducing the use of, the veto has been a mantra of the majority of countries for a long time. It is in all Non-Aligned Movement positions on the subject, and as noted has been picked by some Western countries as well. But just as firmly, and the one issue on which P-5 unity is rock solid, the present permanent members refuse to concede it. They have offered some self-developed limitations on its use, but these do not get at the heart of the opposition, which at best would want it restricted solely to resolutions authorizing the use of force or sanctions. The other veto question is whether it should be accorded to new permanent members. Even though the majority of members are on record against the veto, new permanent members might bristle at being accorded second-class states by having it denied to them. The United States has not taken a formal position on this matter. But logic works against it. Increasing the number of vetoes to ten would surely be a prescription for paralysis. And giving the veto to countries like India or Nigeria might scuttle any chances of Senate ratification of a Council reform amendment. Not by chance, this issue has been pushed to the "end game" of most reform plans.
VI. A Way Forward Not all of the Council's problems lie in the need for reform. Some are inherent in the world's changing power structure, the conflicts that will arise among the P-5, and the reluctance to give the United Nations too much control over sovereign decisions. The United Nations will always be a selective instrument for US policy, with other instruments — unilateral, NATO, ad hoc groupings — being utilized when American interests demand. But the United States, as it recognized in the aftermath of the Kosovo bombing campaign, and earlier in Haiti, will need to look again to the United Nations and particularly to the Security Council, to undertake the complex, long term peace-building tasks following the initial military action. The United States will also need the Council to command the international support needed in those situations where neither unilateral action nor regional institutions suffice, as well as those that fall outside America's own "strategic" focus but which demand action nevertheless. For these reasons, the United States should have a vision of a future Council that can command respect and exert its authority. There will be no early reform of the Council for reasons that will be explained below.
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But the groundwork for eventual reform should begin to be laid now. That groundwork must start from a different premise from those guiding current proposals. It will also require some courageous US statesmanship. The trouble with the current proposals, aside from the conflict of interests, is that they have little logic or rationale for them, other than satisfying some geographic balance and the political needs of some individual countries. Without an overall logic, they fall prey to competing interests and eventually cancel themselves out. A European Foreign Minister once quietly put forward a proposal for a more logical framework, but for domestic political reasons he could never carry it forward. In essence he suggested that the Council, to be representative of the modern world, should encompass both the bulk of the world's wealth and power on the one hand, and the majority of its population on the other. In other words, it would include both the G-7 and such countries as China, India, Indonesia, Brazil, etc. Could such a framework be applied to the special concerns of the United States. In fact one could construct a Council membership along these lines which addressed both major US concerns — effectiveness and voting power. The Council would have to be larger than the United States presently insists upon, i.e. a maximum of 21. This US position lacks support and credibility across the board. No one believes agreement can be reached at less than 24. France and the United Kingdom have already abandoned the United States on this point, and Russia only barely supports it.36 But at 24, the above criteria can be met. The new Council could be constructed along the following lines. There would be the current P-5: United States, Russia, China, France, and the United Kingdom. Added from the G-7 would be Germany and Japan. Italy and Canada would rotate a remaining G-7 seat. There would be two additional permanent seats from each of the other regions: Asia, Africa and Latin America. India would have one of the two Asian seats, or perhaps rotate with one of the other major countries in the region like Indonesia, Bangladesh or Pakistan. The other regions 36
Position paper prepared by the United States, the United Kingdom, France, Germany and Japan, on reform of the Security Council, September 1998. This was the product of six months negotiations beginning in Berlin June 1998, extending to New York in September 1998 and thereafter. The paper was presented as an informal discussion document to Russia and China, the other P-5 members, in late 1998.
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could choose to select two such members, or, as Africa prefers, rotate their two seats among three or four major states. Smaller countries would have the benefit of greater access to non-permanent membership as a result of this concentration of major countries on the permanent seats. The resulting Council would thus constitute, on a continuing basis, representatives of 75 per cent of the world's GDP and the majority of its population. This would be a formidable international body. With India on the Council, the percentage of the world's population represented would run between 57 per cent and 63 per cent, depending on other members selected. Even should India rotate off for a couple of years, the percentage would be around 43 per cent. Compare this to the Council's membership in 2000 which reflects only 35 per cent of the world's population and which omits three of the world's largest industrial economies. It is true that in this configuration, the votes the United States could normally count on (assuming again P-5 unity) would be 11. To obtain a majority of 13, the US would now need two votes from Third World members, not one. The value of this type of analysis is questionable, however. The recent history of the Security Council shows that the problem for the United States has not been Non-Aligned members. Of the more than 600 Security Council resolutions passed since 1991, more than 80 per cent have been unanimous, and on the others there were never more than three dissenting votes.37 In practice, once the P-5 agree, it is rare that the Non-Aligned take a stand against them. If the problem is within the P-5, as has been the case with both Iraq and Kosovo, the number of Non-Aligned votes is largely irrelevant. Nor are the NonAligned monolithic. Latin American members have supported United States positions on the Council more than two times out of three; Africa, with the worst voting record on issues important to the United States, supports the US nearly half the time. 38 If this issue does become paramount for the United States, nevertheless, one could argue for a Council of 25, with an additional seat for Central Europe (as in the present US proposal). Members from this re37
38
Index to Proceedings of the Security Council 1991-1997 ST/LIB/SER.B/ S.28-34, United Nations. New York. For 1998 and 1999 data, Department of State, Bureau of International Organization Affairs. Department of State, United States Participation in the United Nations, 1998.
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gion vote with the United States even more than do its Western European allies. The United States would be back to needing but one Third World vote for a majority. Effectiveness is a more serious. Here again, some of the worries may be exaggerated. As the above numbers on votes in the Council suggest, most non-permanent members take their responsibilities quite seriously. They have voted in favor of strong resolutions regarding sanctions, the use of force, and condemnations, including against many countries in the Third World. There is no history of these members shirking from the hard decisions. However, a Council as structured above, with 24 or 25 members, will be a different Council than today's. Its new permanent members will want to demonstrate their influence and undoubtedly shift some of the Council's attention to crises elsewhere than Europe or other areas of greatest concern to the US. No doubt the United States will have to be willing to support more UN efforts in African-like crisis situations, allow the UN to take more risks with them, and not demand retreat from them at the first sign of setbacks or failure. The United States would have to invest more diplomatically in such situations to strengthen the United Nations' effectiveness.39 Reaching agreement on resolutions may well take more time than today, demanding even greater diplomatic skill and balancing of interests. The United States may indeed face some more majority votes against it, with Russia and China occasionally lining up with some Third World members to do so. But such a more representative Council will at the same time speak with more authority on the issues on which it is agreed. It will be in a better position to enforce its mandates. In the long run, it will be an even stronger instrument for United States objectives, which by and large stand for the kind of peace and security to which the other members, if history is any guide, come to be dedicated.
VII. Adding Responsibility Nevertheless, no addition of permanent members should take place without some fundamental understandings about the responsibilities such status confers. Countries which aspire to these positions must show themselves prepared to take the hard decisions on peace and war, 39
P. Lyman, "Perspective on Africa: A Special Twist to Peacekeeping", Los Angeles Times of 21 January 2000, A17.
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on gross human rights violations that merit war crimes prosecution, and on other matters that come before the Council. One way to demonstrate such responsibility is to be prepared to share the cost. Presently, UN assessments are so skewed to the wealthier countries that a vast majority of members make almost no contribution to the financing of the United Nations. Under the scale of assessments adopted in 1997, the 128 members of the G-77, the UN's organizational body of the Non-Aligned, together pay only 7.9 per cent of the UN's budget. By contrast, three countries alone — the United States, Japan, and Germany — pay 53 per cent. An aspirant to permanent status like India pays only 0.31 per cent.40 This scale may be equitable for general operations of the UN, but it should not govern those who argue for world power status. Today, the P-5 pay a premium for peace-keeping operations (e.g. the United States assessed 31 per cent for peace-keeping, over Congress' objections, whereas its general assessment is 25 per cent). New permanent members should be ready to shoulder no less than three per cent of general costs and a premium for peace-keeping. This should apply to Russia and China as well, each of which now pay less than two per cent. Not only will such change symbolize responsibility, it will curtail somewhat the tendency, should it exist, to saddle the wealthier countries with the costs for a plethora of peace-keeping operations of doubtful merit. There is another even more important indication of responsibility. The Charter says that members of the Security Council should be able to contribute to the maintenance of international peace and security and to other purposes of the UN.41 Critics point out that states have been elected in the past which not only were in no position to make such contributions but in some cases posed a threat to peace and security. One could make the same argument about some of the P-5. Nevertheless, this criterion becomes even more important when considering new permanent members. No enlargement will pass muster, especially the
40
41
Internal Memorandum from D. Leis, Bureau of International Organization Affairs (IO/S), to J. Sprott (IO/S), UN Resolutions on Budget and Scales of 2 January 1998. The memorandum analyzes the new scales approved by the UN at the end of 1997 for the 1998-2000 period; United Nations Handbook 1999, New Zealand Ministry of Foreign Affairs & Trade (ed.), 340342. Article 23 para. 1 UN Charter.
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rigors of ratification, if states that flout international norms are on the list. The issue is most pertinent with regard to India and Pakistan in the wake of their nuclear weapons tests in May 1998. Intensive negotiations with both countries by the United States have produced only limited progress in containing the threat to the non-proliferation regime that these tests posed. India's and Pakistan's missile tests indicate that neither country is yet willing to accept all the demands of the Security Council in its resolution responding to the tests, in particular the call for avoiding weaponization and deployment. The recent fighting over Kashmir increases concern over the situation. Thus no early movement on Council reform can proceed until these countries have been brought back into some acceptable framework in support of non-proliferation. India, with all its legitimate claims for permanent membership in terms of population, economy, and influence, cannot be allowed to blast its way on to the Council. Contrary to its own claims, the tests have set back not advanced its candidacy for membership. Nevertheless, precisely when reform is inevitably well in the future, the foundation for such reform should be laid. Otherwise, the Council will drift, its credibility will remain in doubt, and its authority open to challenge. India will continue to lobby for entrance with no framework for adjudicating its claim. Germany and Japan will increasingly resent shouldering so large a share of the UN's costs — Japan's assessment will exceed 20 per cent in the year 2000. The United States will be seen as "profiting" from the deadlock by being able to keep the Council just as it is. This will only harden attitudes against the Council itself and by extension against US interests within it. The United States has already conceded that the G-7, bringing in Germany and Japan, represents an indispensable partner in any major international undertaking, even in the Council. The G-8 in essence drafted the UN Security Council resolution establishing the UN's postconflict program in Kosovo. Indeed the G-8 statement is appended to the formal resolution.42 But that recognizes only one part of the problem, and as such will only increase resentment from the majority of members.
42
S/RES/1244 (1999) of 10 June 1999.
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VIII. A Bold but Realistic United States Initiative The US can instead go the next step and set forward a framework that holds out the promise of reform and greater legitimization. Doing so will encounter opposition from those in the Congress and elsewhere who prefer the present cozy situation and are appalled at the prospect of countries like India being nearly permanently on the Council. But it is precisely this type of bold initiative, looking to the longer term future, that will restore both United States leadership and the legitimacy of the Council. The framework should be realistic. There will be no change in the formal authority of the veto; no P-5 member will ratify such an amendment. New permanent members will not get the veto. But a proposal for a larger Council, raising the number to 24 or 25, based on a logical framework of representation as described above, would have credibility. Countries like India could see their aspirations supported, even as a final decision must await greater agreement on the nuclear issue. The split within Europe over German membership could likely be healed. Japan's frustrations can be assuaged. A sizable majority could thus likely be put together around such a proposal. The conditions placed within this proposal would take time to fall into place — the cost-sharing perhaps one of the most difficult. But by setting forth this framework, responsive to the aspirations of many other countries, the United States can remove itself from being seen as the principal obstacle to Security Council reform, with all the opprobrium that attaches to that. Thus even in the interim, the Council as an institution would regain respect, and United States objectives could be pursued within it with greater likelihood of success.
The International Labour Organization in its Second Century Steve Cbarnovitz' I. II.
Introduction Survey of Recent Developments 1. Copenhagen Summit 2. Promoting Fundamental Standards 3. Forced Labor in Myanmar 4. Child Labor 5. Labor Standards and the Trading System 6. WTO Seattle Ministerial 7. Other Developments III. Mission of the ILO 1. Rationale for International Labor Standards 2. Contemporary Challenges IV. Improving the ILO's Performance 1. Structure of the ILO 2. Rethinking ILO Instruments 3. Using Market-Oriented Tools 4. Improving Enforcement 5. Increasing Civil Society Participation V. ILO's Role Among International Institutions 1. The ILO and Other International Agencies 2. Review of International Economic Policies 3. Improving International Agency Coordination 4. New Challenges for the ILO VI. Conclusions
*
The author wishes to thank Francesca Bignami of Duke University School of Law for sharing keen insights about labor unions and for critiquing the manuscript. Thanks also to Francis Maupain for his wise counsel. 147
J.A. Frowein and R. Wolfrum (eds.), MaxPlanck Yearbook of United Nations Law, 147-184. © 2000 Kluwer Law International. Printed in the Netherlands.
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I. Introduction In April 1998, at the annual meeting of the American Society of International Law, a plenary panel held a discussion regarding non-state actors in international law. After one panelist alluded to the experience of the International Labour Organization (ILO), Jessica Tuchman Mathews, President of the Carnegie Endowment for International Peace, and also a panelist, responded by declaring that the ILO "has indeed been around forever, but it also has done nothing forever, so it is not terribly interesting".1 The few ILO hands in the hall were shocked. How could someone so knowledgeable about global affairs make such a preposterous statement? Without a doubt, the ILO has achieved a great deal. Founded in 1919 as part of the Treaty of Versailles, the ILO was one of the earliest multilateral organizations and the first permanent organization to draft treaties on a regular basis. It was also the first intergovernmental organization to provide for full participation by non-governmental organizations (NGOs) which, alongside government representatives, have voting rights in the ILO (in what is known as "tripartism", government, worker, and employer representatives exercise an equal role in the ILO). As of March 2000, the ILO had crafted 182 labor treaties (called conventions) and 190 non-binding Recommendations covering a broad range of subjects. The labor laws of every country have been influenced to some extent by the ILO. But the ILO is not focused solely on the labor market. Throughout its history, the ILO has advocated higher labor standards not just to promote economic growth, but to pursue social justice and peace. Although peace has often been broken since 1919, the ILO's efforts to protect vulnerable workers, to combat unemployment, and to promote freedom of association are generally recognized as having contributed to democratization and social stability. In 1969, the ILO won the Nobel Peace Prize. The example of the ILO was an important inspiration to the human rights movement. At its first meeting in 1919, the ILO approved two conventions on child labor, thereby showing that more broadly conceived human rights treaties were possible. According to Rene Cassin, principal author of the Universal Declaration of Human Rights, the
"The Challenge of Non-State Actors", ASIL Proceedings 92 (1998), 20 et seq., (35).
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Constitution of the ILO demonstrated that fundamental individual freedoms could be given a contractual foundation among states.2 The ILO also showed the possibility of establishing procedures to investigate derogations from freedom of association by governments. As Judge Nicolas Valticos (of the European Court of Human Rights) has noted, ILO inquiries contributed to resolving high-profile disputes in places as diverse as Japan, Spain, Chile, and Poland.3 The importance of the ILO in giving a social dimension to the global economy has been recognized by leading jurists. For example, in a collection of tributes in honor of the ILO's 75th anniversary,4 Judge Mohammed Bedjaoui of the ICJ declared that "one can only rejoice at the immense amount of work that has been accomplished by the ILO since 1919, and ... realize the extent to which it has developed international legislation for the protection of workers ... ."5 In the same volume, Judge Stephen M. Schwebel of the ICJ remarked that "it is clear that, if the ILO did not exist, it would have to be invented".6 He also called attention to political scientist Ernest B. Haas' landmark study of the ILO which concluded that the ILO had "a record of which any international agency can be intensely proud".7 In 1995, the Commission on Global Governance made an accurate prediction that with the increasing openness of global markets and greater labor mobility, the ILO "will only grow in relevance".8 Following six years without high-level attention to the ILO by his Administration, U.S. President Bill Clinton attended the ILO's annual conference in June 1999. Declaring that there is "no organization whose mission is more vital for today and tomorrow", Clinton commended
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N. Valticos, "International Labour Standards and Human Rights: Approaching the Year 2000", International Labour Review 137 (1998), 135 et seq. Valticos, see above, 135 et seq., (144). Visions of the Future of Social Justice, Essays on the Occasion of the ILO's 75th Anniversary, International Labour Office (ed.), 1994. M. Bedjaoui, "For a World Charter of Human Labour and Social Justice", in: Visions of the Future of Social Justice., see above, 25 et seq., (26). S. Schwebel, "The Prescience and Pertinence of the ILO", in: Visions of the Future of Social Justice, see note 4, 257 et seq. Id., 258 quoting E.B. Haas, Beyond the nation-State: Functionalism and International Organization, 1964. Our Global Neighborhood, Report of the Commission on Global Governance, 1995, 269.
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the ILO for its efforts on child labor and promised to seek greater funding for it from the U.S. Congress.9 He also suggested that the IMF, the World Bank, and the World Trade Organization (WTO) "should work more closely with the ILO, and this Organization must be willing and able to assume more responsibility". Other national leaders have given the ILO strong endorsements. Ruth Dreifuss, the President of the Swiss Confederation, characterized the ILO as the "world's social conscience", and called it one of the "three pillars of international economic culture" along with the WTO and the Bretton Woods institutions.10 President Ernesto Zedillo of Mexico emphasized to the World Economic Forum in January 2000 that "national governments as well as multilateral institutions such as the ILO should promote the rights of workers with fair and modern legislation, good agreements, and better enforcement". The purpose of this article is to explore the evolving concept of international labor law and the changing relationships between the ILO and other international organizations. The article, following the introduction, has four parts. Part II presents a short survey of recent developments regarding the ILO and international labor standards. Part III steps back and considers the rationale for international labor standards and the ILO. Lastly, Parts IV and V come full circle to respond to the criticism of the ILO voiced by Jessica Mathews and shared by many.11 Part IV discusses internal ILO improvements. Part V addresses the ILO's relationship with other international organizations.
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"Remarks to the International Labour Organization Conference", Weekly Compilation of Presidential Documents 35 (1999), 1117. See S. Greenhouse, "Clinton to Seek Big Increase in Funds to Fight Child Labor Abroad", New York Times of 7 February 2000, A 4; B. Stokes, "Bring on the Carrots", National Journal of 25 March 2000, 982. "President Dreifuss: If You Want Peace, Seek Justice", World of Work, July 1999, 8. For example, R. Wright, a Washington journalist, recently wrote: "The ILO has been in existence for 81 years and, lacking the force of sanction, has been unable to do much of anything". R. Wright, "Continental Drift", The New Republic of 17 January 2000,18.
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II. Survey of Recent Developments There is no perfect point in time to begin a survey of recent developments in the ILO. In all organizations, new initiatives reflect, to some extent, those that have gone on before, and this is especially true for the ILO which was established to address perennial social problems.
1. Copenhagen Summit The best place to start is the first top-level intergovernmental assembly on human and social development — the UN's World Summit for Social Development of 1995. The chairman of the Summit's preparatory committee was Juan Somavia, Chile's Permanent Representative to the United Nations, who was later to become the ILO Director-General. No treaties emerged from the Social Summit, but approval was given to a Copenhagen Declaration that sought to improve national and international social policy. The governments agreed to "place people at the centre of development and direct our economies to meet human needs more effectively".12 One key element in the Copenhagen Declaration was the commitment to fundamental labor standards. Although the terms "fundamental" or "core" were not used, the Declaration committed governments to "safeguard the basic rights and interests of workers and to this end, freely promote respect for relevant International Labour Organization conventions, including those on the prohibition of forced and child labor, the freedom of association, the right to organize and bargain collectively, and the principle of non-discrimination".13 By pointing to this set of ILO conventions, the governments underlined their centrality as compared to scores of others that had been negotiated over the past decades. The idea that some labor standards might be core or foundational had long been under discussion, but the ILO had been unable to delineate such standards.14 12
13 14
Copenhagen Declaration on Social Development, para. 26 lit.(a), reprinted in: United Nations (ed.), The Copenhagen Declaration and Programme of Action 1995, DPI/1707-9515294-August 1995, also available at www.webonly.com/socdev/wssd.htm Id., Commitment 3 lit.(i). A core standard is a very important one; it can also be foundational when it is a precondition for the attainment and enjoyment of other labor rights.
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The Programme of Action approved by the Social Summit pushed further the new appreciation for core standards. Specifically, the Copenhagen Programme suggested that even when states are not parties to key ILO conventions, they should be "... taking into account the principles embodied in those conventions".15 This attention to non-parties was a significant achievement for those seeking to recast fundamental labor standards into a universal responsibility of all governments, not just the governments that had expressly consented through ratification of the relevant ILO conventions.
2. Promoting Fundamental Standards A year before the Social Summit, the ILO Governing Body had established a Working Party on the Social Dimensions of the Liberalization of International Trade. The Governing Body took this action following discussion of then-ILO Director-General Michel Hansenne's annual report wherein he had declared that "an unbridled liberalization of trade can work against the social objectives of the ILO".16 Hansenne called on the ILO to become a party to the debate being held within the General Agreement on Tariffs and Trade (GATT) on the linkage between trade and labor standards. At the GATT Marrakesh Ministerial in April 1994 which founded the WTO, many trade ministers had addressed the connection between trade and labor, and had stated that improving labor standards was the responsibility of the ILO and should not be brought into the WTO.17 Within the ILO Working Party, an early consensus emerged on the need to consider the ILO's institutional capacity within this new economic context and in the wake of the Social Summit.18 Ongoing discus-
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Programme of Action, para. 54 lit.(b), in: Copenhagen Declaration, see note 12. ILO, Defending Values, Promoting Change, Report of the DirectorGeneral, 1994, 58. For example, Thai minister Supachai Panitchpakdi stated that his government shared the view of many countries that workers' rights was not an issue over which the GATT had competence and that it would be more properly addressed in other organizations such as the ILO. GATT Doc. MTN.TNC/MIN(94)/ST/15 of 12 April 1994. ILO Working Party on the Social Dimensions of the Liberalization of International Trade, Future of the Working Party, ILO Doc. GB.276/14/1,
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sions in the Working Party and in other ILO committees led to the idea of drafting a new ILO declaration that would categorize certain ILO principles as fundamental and find a way to improve the ILO's oversight over national implementation. These efforts reached fruition in June 1998 when the ILO Conference approved a new Declaration on Fundamental Principles and Rights at Work.19 The use of the term "Declaration" was meant to recall the ILO's "Declaration of Philadelphia" of 1944 which was later incorporated into the ILO's Constitution.20 The new Declaration is not a treaty, and is not part of the ILO Constitution, but may in the future be viewed as part of the organic law of the ILO. The Declaration lays down a set of obligations that are binding upon all member governments. Even when they have not ratified the listed Conventions, governments "have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions".21 These fundamental principles include: (1) freedom of association and the recognition of the right of collective bargaining, (2) elimination of all forms of forced or compulsory labor, (3) the effective abolition of child labor, and (4) the elimination of employment and occupation discrimination. The Declaration's Annex provides for two types of follow-up, both of which are promotional rather than supervisory. For each of the fundamental principles, non-ratifying governments are required to submit reports every year on changes in their related law and practice. These reports will then be reviewed by the ILO Governing Body. The other follow-up is for the ILO Director-General to write a report as to provide a "dynamic global picture" each year on one of the four fundamental principles. This report is then to be discussed in both the annual
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para. 5, 1999. In March 2000 the name was changed to the Working Party on the Social Dimensions of Globalization. ILO Declaration on Fundamental Principles and Rights at Work, ILM 37 (1998), 1237 et seq. H. Kellerson, "The ILO Declaration of 1998 on Fundamental Principles and Rights: A Challenge for the Future", International Labour Review 137 (1998), 223 et seq. (noting that the only other ILO Declaration regarded apartheid). ILO Declaration on Fundamental Principles and Rights at Work, see note 19, para. 2 (emphasis added).
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ILO Conference and the Governing Body. The first global report, on freedom of association, will be considered at the June 2000 Conference. The Declaration provides an answer to two critiques that have been leveled at the ILO. One is that the ILO failed to prioritize among the different rights and standards that had been legislated in previous conventions. The Declaration remedies this by focusing on four fundamental rights. The other critique was that the ILO made it too easy for countries to enjoy membership while incurring few substantive obligations regarding the treatment of workers. Although the ILO had, as early as 1951, set up a special procedure to review complaints about the violation of freedom of association by governments that had not ratified the relevant ILO conventions, this procedure was not applied to other fundamental rights.22 Of course, it is not typical in international law for a non-party of a convention to be expected to follow it. So this complaint about the ILO was somewhat misplaced. Nevertheless, to its credit, the ILO rose to the challenge and carefully crafted language in which governments acknowledged that ILO membership entails obligations regarding core labor principles. Francis Maupain, the former ILO Legal Adviser who was a key drafter of the Declaration, observed in a recent speech that this acknowledgement "represents in itself a very significant, if not revolutionary, step in international constitutional law."23
3. Forced Labor in Myanmar Another important recent development is the greater willingness of the ILO to respond to gross violations of treaty commitments. In 1999, the ILO took the unprecedented step of condemning Myanmar for persistent violations of the Forced Labor Convention (No. 29) and for failure to respond to repeated recommendations by ILO supervisory bodies.24 The ILO is punishing Myanmar by withdrawing invitations to meetings and opportunities to receive ILO technical assistance (other than 22
23
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L. Swepston, "Human Rights Law and Freedom of Association: Development through ILO Supervision", International Labour Review 137 (1998), 169etseq., (175). F. Maupain, "Worker Rights and Multilateral Trade", Vienna Symposium on the WTO after the Seattle Ministerial Conference, Vienna 8-9 December 1999. ILM 38 (1999), 1215 et seq.
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technical assistance to eliminate forced labor).25 In June 2000, the annual ILO Conference may impose further sanctions pursuant to the provision in the ILO Constitution that authorizes the Conference to consider action that it may deem wise and expedient to secure compliance.26
4. Child Labor The problem of child labor has always been on the ILO's agenda. But the ILO's efforts were denigrated by many economists who tended to consider child labor abuses as an inherent and irremediable feature of underdevelopment. The tide began to turn in 1994 when Jan Tinbergen, a Nobel prize winner in economics, circulated an open letter of Nobel winners calling for stronger action against child labor. Research and advocacy by the UNICEF has also been a very positive factor. In 1992, the ILO strengthened its efforts by initiating the International Programme on the Elimination of Child Labor (IPEC). By 1999, IPEC had become an alliance between 19 donor countries, 67 participating countries, and the ILO.27 Many of these projects are working well, and IPEC has attracted more funding from governments in each two-year budget cycle. IPEC has experimented with new approaches to eliminate child labor and seeks to replicate policy successes elsewhere. The successful programs include better education and training for children, alternative income opportunities for families, and more effective monitoring systems. One important lesson has been that countries need to have in place accountable institutions that invite broad public involvement. In 1998, the ILO began consideration of a new convention on child labor. Although a growing number of governments were ratifying the leading ILO Convention on child labor No. 138 — the Convention concerning Minimum Age for Admission to Employment —, many governments and experts came to favor a new convention focusing on 25
26
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F. Williams, "ILO Bars Burma over Forced Labour", Financial Times of 18 June 1999, 4. At that time, the ILO was not engaged in any technical assistance projects in Myanmar. Constitution of the International Labour Organization [hereinafter ILO Constitution], article 33. See also International Labour Press Release ILO/00/9 of 29 March 2000. International Labour Office, IPEC Action Against Child Labor, 1999, 4.
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the elimination of the worst forms of child labor. When the ILO Conference began its first discussion of this new Convention, it opened its doors to the activists in the Global March Against Child Labor that had traveled from five continents to the Palais des Nations.28 The world's children, symbolically, were coming to the ILO to demand a treaty. The new Convention No. 182 was approved unanimously by the ILO in June 1999. Among its key points, the Convention directs governments: (a) to prevent the engagement of children in the worst forms of child labor, (b) to provide assistance for removal of children from the worst forms of child labor and for their rehabilitation and social integration, and (c) to ensure access to free basic education, and wherever possible vocational training, to children removed from child labor.29 The Convention defines the worst forms of child labor as encompassing slavery; debt bondage; forced labor; use, procuring or offering of a child for prostitution or pornography; or production and trafficking of drugs, and other work likely to harm the health, safety or morals of children.30 In December 1999, the United States became the third country to ratify the new child labor convention. This is significant because the United States has a very weak ratification record on ILO conventions, a record that has undermined U.S. efforts to encourage other countries to ratify and adhere to ILO conventions. In ratifying the Convention, however, the U.S. government continued its quaint practice of joining ILO conventions only when they do not require any improvement in U.S. law. For example, the U.S. Fair Labor Standards Act does not cover work by children on family farms.31 In support of its contention that this exemption may be maintained consistent with the new ILO treaty, the U.S. Senate resolution of ratification contains an "Understanding" stating that Convention No. 182 does not apply to family farms and is not intended to lead to any change in the Fair Labor Stan-
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"Child Labour Takes Center Stage at 86th International Labour Conference, Global Marchers Received by ILO", ILO Press Release 98/24 of 2 June 1998. Convention concerning the Prohibition and Immediate Elimination of the Worst Forms of Child Labor (No. 182) of 17 June 1999, article 7, in: ILM 38 (1999), 1207 et seq.; M.J. Dennis, "The ILO Convention on the Worst Forms of Child Labor", AJIL 93 (1999), 943-948. Convention concerning the Prohibition and Immediate Elimination of the Worst Forms of Child Labor, article 3. U.S. Senate Treaty Doc. 106-5, at 37-38, 55.
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dards Act.32 The same reluctance to upgrade U.S. law is the reason that the United States has failed to ratify the ILO Convention on Freedom of Association and Protection of the Right to Organize (No. 87).33
5. Labor Standards and the Trading System Labor standards and trade have been linked throughout the 20th century.34 This linkage was apparent even in the earliest multilateral treaties on labor and trade. The first multilateral labor treaty, adopted in 1906, prohibited the manufacture, sale, and importation of matches containing white phosphorus, a highly toxic chemical.35 The first multilateral trade treaty, the International Convention for the Abolition of Import and Export Prohibitions and Restrictions, provided that its disciplines against import bans would not apply to prison-made goods.36 The linkage between labor and trade was given new emphasis in 1994 when the United States and France raised this issue during the preparation for the Marrakesh GATT trade ministerial conference that year. The labor issue was hotly debated at Marrakesh. While most of the governments opposed putting labor standards on the WTO's agenda, several governments offered their support. For example, Austria stated that "we believe that the WTO should not hesitate to look into questions such as child exploitation, forced labor, or the denial to workers of free speech or free association, and their interrelationship
32 33
34
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U.S. Congressional Record of 5 November 1999, at SI426. See C. Coxson, "The 1998 ILO Declaration on Fundamental Principles and Rights at Work: Promoting Labor Law Reforms Through the ILO as an Alternative to Imposing Coercive Trade Sanctions", Dickinson Journal of International Law 17 (1999), 469 et seq., (485-491). S. Charnovitz, "The Influence of International Labour Standards on the World Trading Regime," International Labour Review 126 (1987), 565 et seq.; G. Caire, "Labour Standards and International Trade", in: W. Sengenberger/D. Campbell (eds), International Labour Standards and Economic Interdependence, 1994, 297 et seq. Convention respecting the Prohibition of the Use of White (Yellow) Phosphorus in the Manufacture of Matches of 26 September 1906, article 1, reprinted in: 203 Consol. T.S. 12. International Convention for the Abolition of Import and Export Prohibitions and Restrictions of 8 November 1927, LNTS Vol. 96 No. 2238, Protocol, Section VI. The treaty did not enter into force.
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with trade".37 In the end, however, the Ministerial took no action on labor rights. The issue arose again, with greater intensity, at the next global trade meeting, the Singapore Ministerial conference of December 1996. WTO members were polarized. A few governments proposed that the WTO take some organizational action on labor rights, but a much larger group insisted that the WTO avoid the issue entirely.38 The WTO members compromised by agreeing to place in the WTO Singapore Declaration a very carefully worded paragraph on labor standards. It contained these key points: "We renew our commitment to the observance of internationally recognized core labor standards. The International Labour Organization (ILO) is the competent body to set and deal with these standards, and we affirm our support for its work in promoting them ... We reject the use of labor standards for protectionist purposes, and agree that the comparative advantage of countries, particularly lowwage developing countries, must in no way be put into question. In this regard, we note that the WTO and ILO Secretariats will continue their existing collaboration."39 Although the opponents of recognizing labor rights as a trade issue intended this paragraph to kill that debate, it failed to do so. As seen below, the issue came back to haunt the WTO Seattle Ministerial three years later. In the intervening years, the WTO and ILO Secretariats did continue their "existing collaboration". The collaboration was virtually non-existent in 1996 and remained so through 1999. The attention to labor issues in the 1994 and 1996 trade ministerials, together with the UN Social Summit, generated momentum within the ILO for the Declaration on Fundamental Principles and Rights at Work. At the time that WTO member governments took action in Singapore to "renew" their commitment to core labor standards, the ILO had not yet determined what the core standards are. The Singapore Declaration spurred these efforts. In addition, when the WTO pointed to the ILO as the competent body to set labor standards, this had the surprising effect of boosting the ILO's prestige and morale. Although it 37
38
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Statement of W. Schiissel, GATT Doc. MTN.TNC/MIN(94)/ST/93 of 14 April 1994. S. Charnovitz, "Trade, Employment and Labour Standards: The OECD Study and Recent Developments in the Trade and Labor Standards Debate", Temp. Int'l & Comp. L.J. (1997), 131 et seq., (154-158). Singapore Ministerial Declaration, in: ILM 36 (1997), 220 et seq., para. 4.
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is difficult to imagine how the two-year-old WTO could enhance the standing of the 77-year old ILO, that is indeed what happened! Because the WTO treaty of 1994 had catapulted the WTO to the top ranks of powerful international organizations, the Singapore Declaration's recitation of the obvious had the strangely anointing effect of increasing the ILO's self-confidence about its role. Before turning to the WTO Seattle Ministerial, it will be useful to summarize the important developments in the ILO during the 1990s. One key initiative was the new ILO Declaration which denotes a basket of labor rights as "fundamental" and declares that all member governments have an obligation to promote these principles. Considerable impetus for this initiative came from within the ILO, but both the UN Copenhagen Summit and the WTO Singapore conference should be credited for stimulating the ILO to act. Indeed, the WTO has been willing to accept this credit. In an October 1998 speech, WTO Director-General Renato Ruggiero stated that the consensus the WTO had reached in Singapore "has opened the door for the International Labour Organization and its Declaration to make real progress on the issue of the social clause".40 The other key ILO initiatives were IPEC and the new Convention to counter egregious child labor practices. These successes were facilitated by growing public concern about child labor abuses, particularly abuses linked to products destined for export.
6. WTO Seattle Ministerial The WTO Ministerial Conference commencing in Seattle in November/December 1999 was supposed to launch a new trade round but that did not happen. The governments could not agree on the agenda of the new round. The negotiations in Seattle were complicated by police barricades, tear gas, and nightly curfews that resulted from the large citizen protests against the WTO. One of the many areas of disagreement was what, if anything, the WTO and the new trade round should do to promote fundamental worker rights. At one end of the spectrum were the unions, which had been pushing for a "social clause" in trade rules for decades. This was
40
R. Ruggiero, "A Global System for the Next Fifty Years", Speech at Chatham House, 30 October 1998, available at www.wto.org/wto/speeches
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not just American and European unions.41 The International Confederation of Free Trade Unions (ICFTU) has been a longtime advocate of such action. In a publication prepared for Seattle, the ICFTU called on the WTO to start an examination of how to incorporate labor standards into WTO mechanisms and processes and to provide a full role for the ILO in those discussions.42 On the other side were vocal developing countries. In mid-1998, Julius Nyerere, former President of Tanzania, gave a thoughtful speech explaining why the South opposed taking trade-related social standards in the WTO and preferred that this issue be kept in the ILO. "For compared with the WTO", Nyerere declared, "the ILO is democratic in structure, and does not seek to usurp the national sovereignty of any state".43 A year later, following a meeting of G-15 countries, the Chairman's Summary stated that "The delegations rejected any linkage between trade and core labour standards. They recalled that this issue had been finally settled in the Singapore Ministerial Declaration. They decided to resolutely oppose any renewed attempt to raise this issue in the WTO."44 Looking for middle ground were many industrial country governments. In June 1999, the G-8 Cologne Summit stressed "the importance of effective cooperation between the WTO and the ILO on the social
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44
J. Mazur, "Labor's New Internationalism", Foreign Aff. 79 (2000), 79 et seq. "Union Leaders from 145 Countries Seek Enforceable Labor Standards in Trade Pacts", BNA Daily Report for Executives of 11 April 2000, A-14. International Confederation of Free Trade Unions, Building Workers' Human Rights into the Global Trading System, 1999, 75-76; "Labor Unions Urge WTO to Set Procedures for Handling Worker Rights in Trade Talks", BNA Daily Report for Executives of 30 November 1999, AA-5. J. Nyerere, Excerpts from "Are Universal Social Standards Possible?", Bridges, October-November 1999, 11, available at http://www.ictsd.org "G-15 Communique on WTO Ministerial", para. 21, Inside U.S. Trade of 10 September 1999, 9. The G-77 made a similar statement. See also "Moves to Link Trade, Labor Could Scuttle Seattle Round, Developing Countries Warn", BNA Daily Report for Executives of 9 November 1999, A-10. For a critical perspective, see C. McCrudden/A. Davies, "A Perspective on Trade and Labor Rights", Journal of International Economic Law 3 (2000), 43 et seq., (61) (asking how far should we accept that when a government opposes the linkage of trade and labor issues it is representing the interests of the country as a whole, or the interests of a small elite within the country).
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dimensions of globalization and trade liberalization".45 In October 1999, the European Commission called for the ILO and WTO to organize a joint ILO/WTO Standing Working Forum on trade, globalization, and labor issues.46 The Commission further proposed a ministerial-level meeting in 2001 to examine this work. In November 1999, the U.S. government suggested a WTO Working Group on Trade and Labor.47 Its initial assignment would be to produce a report for the next WTO Ministerial Conference, and in drafting the report the WTO Working Group was to have consulted the ILO, UNCTAD, and international financial institutions. Charlene Barshefsky, the U.S. Trade Representative, explained that her proposal was "fully consistent with the Singapore consensus".48 It was unfortunate that the European Commission and the U.S. government were unable to agree upon a joint proposal. This lack of agreement may suggest that the individual proposals were being advanced solely for internal political purposes and did not represent a genuine effort to attain practical results. Moreover, neither the U.S. Administration nor the Commission were willing to devote much political capital toward building developing country support.49 At Seattle, the campaign to secure WTO action suffered a setback when President Clinton revealed in an interview that he wanted to see "core labor standards ... be a part of every trade agreement," and that he favored "a system in which sanctions would come for violating any provision of a trade agreement," but that these results had to be attained "in steps".50 Already fearful of the slippery slope that would follow 45
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48 49
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G-8 Summit Communique, para. 26, available at www.state.gov/www/issues/economic/summit/99communique.html European Communities, "Proposal for a Joint ILO/WTO Standing Working Forum", WTO Doc. WT/GC/W383 of 5 November 1999. "Lamy on EU's Approach to Trade and Labor Issues", Inside U.S. Trade of 3 December 1999, Special-5. "U.S. Proposal on Labor Rights", Inside U.S. Trade of 1 November 1999, 1. A month earlier, Canada had proposed a WTO working group on international economic policy coherence. WTO Doc. WT/GC/W/360. U.S. Proposal on Labor Rights, see above, 2. See "U.S., EU Labor Proposals Get No Backing; Unions Press for More", Inside U.S. Trade of 12 November 1999, 10. Telephone Interview, Weekly Compilation of Presidential Documents 35 (1999), 2485; G. de Jonquieres "Clinton's Demands Threaten Turmoil at WTO Summit", Financial Times of 2 December 1999, 1; "Clinton Strongly Criticized by EU, Others on Use of Sanctions to Enforce Labor Rules",
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from any discussion of labor within the WTO, the developing countries saw the President's candid statement as a vindication of their hard-line opposition. The developing countries did not want labor standards to come into the WTO immediately, or in steps. Even as the Seattle Ministerial ended in disarray, notable support had coalesced around a proposal that governments establish a Forum on Trade, Globalization, Development, and Labor Issues to be comprised of relevant international organizations, such as the WTO, ILO, World Bank, and UNCTAD.51 The Forum was not intended to be in the WTO or to be established by the WTO. It was to be established by governments. Therefore leading supporters of the Forum such as Canada can continue to pursue it outside the WTO. Although the WTO has not established a cooperative status for the ILO as it has for many other international organizations, the International Labor Office (i.e., the ILO Secretariat) was invited to send observers to Seattle. This invitation was taken up by Director-General Somavia who submitted a paper to the WTO Ministerial and maintained an active presence in Seattle.52 Somavia's paper gave the WTO credit for promoting worker rights. It explained that the Copenhagen Social Summit identified seven basic ILO Conventions as "the social floor of the emerging global economy".53 Then Somavia stated: "The WTO was one of the first to grasp the significance of this, when trade ministers meeting in Singapore in 1996 renewed their governments' commitment to the observance of internationally recognized core labour standards, and affirmed their support for the ILO's work in promoting them." Somavia's account demonstrates the increasing interpenetration of international organizations. In 1996, the WTO declared that it wished to
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52
53
BNA Daily Report for Executives of 3 December 1999, AA-3. In a press conference held at Davos in January 2000, Gene Sperling, an assistant to President Clinton, claimed that Clinton had "never mentioned trade sanctions" in the interview. White House Press Release of 29 January 2000. "U.S., EU Back Off from Modest Proposals for Labor Rights-Trade Link", Inside U.S. Trade of 10 December 1999, 1 et seq., (19). See ILO, "ILO Calls for New Multilateral Initiative to Address Social Implications of Globalization" of 1 December 1999. "Decent Work for All in the Global Economy: An ILO Perspective", para. 13, Submission by Juan Somavia, available at www.ilo.org/public/english/ bureau/dgo/speeches/somavia/1999/seattle.htm
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keep out of the ILO's business. Three years later, however, the new head of the ILO praised the WTO for boosting the ILO's work.
7. Other Developments In closing, Part II takes brief note of other important developments regarding the ILO. Perhaps the most significant was the selection of Somavia to be Director-General, effective in 1999. Somavia, the first person from a developing country to head the ILO, is superbly qualified for this task, both from his longtime leadership in the United Nations and his previous leadership positions in civil society.54 In his first Director-General report, Somavia pointed to two central problems for the Organization. One was the lack of a clear set of priorities within the ILO. The other was that the end of the Cold War had weakened the sense of common purpose among worker and employer groups. In an effort to refocus the ILO, Somavia initiated an administrative reorganization to sharpen the ILO efforts toward achieving four strategic objectives.55 They are: (1) implementation of the Declaration on Fundamental Principles, (2) employment promotion, (3) social protection, and (4) improving the social dialogue among labor, management and government.56 This is a set of objectives that can be explained to the public. Somavia's familiarity with the UN System will be of enormous help to the ILO in handling its complex relationship with the UN for example, the ILO has been concerned about an idea being considered in ongoing UN reform efforts — that is, to separate "normative" from "operational" responsibilities.57 Normative work would remain a responsibility of specialized agencies (like the ILO) while operational activities (e.g., technical assistance) would become more centralized. Although ILO officials recognize the program and efficiency benefits of better coordinated UN technical assistance, they are concerned that such a change would undermine the unity of the ILO's mission.
54
55 56
57
See generally J. Somavia, People's Security. Globalizing Social Progress, 1999. ILO, Decent Work. Report of the Director-General, 1999, 2-3. Somavia, see note 53. Somavia uses the theme "decent work" to summarize the ILO mission. "UN Reform: Implications for the ILO", ILO Doc. GB.271/8/2, March 1998, paras 26-30.
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Since the Social Summit, the UN System has devoted more attention to labor rights. In January 1999, UN Secretary-General Kofi Annan proposed a "Global Compact" with "world business" regarding human rights, labor standards, and environment.58 In August 1999, a SubCommission of the UN Commission on Human Rights adopted a resolution regarding "Trade liberalization and its impact on human rights".59 The resolution calls on "governments and international economic policy forums" to undertake comprehensive and systematic studies of the human rights and social impacts of economic liberalization programs, policies, and laws.60 National legislators have also been increasing their international cooperation on multilateral social issues. In May 1999, the ILO signed a cooperation agreement with the Inter-Parliamentary Union (IPU).61 The IPU, founded in 1889, will work to secure ratification of ILO conventions in each country. In February 2000, the IPU cosponsored a meeting of parliamentarians in conjunction with the UNCTAD X conference in Bangkok. The parliamentarians declared that "mechanisms are needed to ensure that globalization and liberalization effectively lead to improvements in labour and environmental standards, the protection of children and, generally, respect for human rights."62 Finally, it should be noted that labor issues are receiving a more prominent place in the policy agendas of the World Bank and the IMF. Until the 1990s, the World Bank and the IMF seemed to have little sympathy for labor rights or social protection. This changed following years of criticism of the adverse human impact of IMF lending conditions and following a better understanding of the role of democracy and social capital in promoting economic growth. (The appointment of James D. Wolfensohn as president of the Bank in 1995 was also a key factor). When considering labor issues, the Bank and IMF now invite input from the ILO. In 1994, the ILO was invited to be an observer to 58
59
60 61
62
See www.unglobalcompact.org. The Global Compact has been endorsed by the International Chamber of Commerce and the ICFTU, among others. "Trade liberalization and its impact on human rights", Resolution 1999/30, Sub-Commission on the Promotion and Protection of Human Rights of 26 August 1999. Id. para. 5. Cooperation Agreement between the International Labor Organization and the Inter-Parliamentary Union of 27 May 1999. Final Declaration of the Parliamentary Meeting on the Occasion of UNCTAD X of 11 February 2000, available at www.unctad-10.org
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the Bank-Fund annual meetings. In 1999, the ILO was given observer status at the IMF's Interim Committee (now the International Monetary and Financial Committee). This year, the International Development Association (IDA) is requiring the Bank's country assistance strategies to consider core labor standards.63 This concludes the survey of recent developments. Before discussing ways to improve the ILO, it will be useful to take a step back to reflect on the ILO's raison d'etre.
III. Mission of the ILO Part III examines the case for the ILO. The first section discusses the rationale for a government role in labor standards and for international cooperation. The second section positions the ILO in contemporary debates about globalization. This Part concludes that world society can benefit from a well-functioning ILO.
1. Rationale for International Labor Standards In 1919, when the ILO was founded, the rationale for international labor standards was self-evident. Heavily influenced by the trade union movement and the socialist party politics of the time, the founding fathers believed that enlightened regulation of the workplace would protect workers and prevent social unrest. These ideas triumphed to a large extent and spread throughout the world. Today, there is considerable skepticism about the efficacy of labor regulation. Moreover, trade unions are often smaller and less influential in major industrial countries than they were a generation ago. The different contemporary political and economic context provokes the question of whether international labor standards are needed. And, more basically, should government regulate the labor market at the national level? The main reason that governments impose labor standards and provide subsidies is to correct market failure. Left unsupervised, a labor market will not achieve an optimal level of workplace safety, employ63
"ILO Relations with Bretton Wood Institutions", ILO Doc. GB.276/ ESP/5 of November 1999.
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ment security, and skills training. This will leave workers and society worse off than they could be. Of course, not all workers need the intervention of government; many workers can bargain for themselves. But the typical worker might not have command of the necessary information or the ability to bear the transaction costs that would ensue in an unregulated environment. Government-set labor standards are justified for one additional reason — namely, to defend the human dignity of each individual. This is the basis for policies to combat discrimination, prevent exploitation, and provide employment opportunities. In his 1991 Encyclical Centesimus Annus, Pope John Paul II explained that "The obligation to earn one's bread by the sweat of one's brow also presumes the right to do so. A society in which this right is systematically denied ... cannot be justified from an ethical point of view, nor can that society attain social peace".64 A century earlier, Pope Leo XIII in Rerum Novarum had extolled worker associations as a way for workers to engage in self-help that seeks to rebalance the asymmetries of power between the employer and the solitary individual.65 This influential encyclical led governments to tolerate and nurture labor unions. Later it was recognized that the process of collective bargaining requires governments to establish a responsive labor law framework. These concerns justify national labor laws, but why have international standards. Why should one country care about labor law beyond its border? Governments coordinate labor policy for the same reason they coordinate other policy areas, namely, to influence other governments and to achieve cooperation. In general, there are three reasons why Country A might want to influence Country B. First, activities in Country B may cause economic harm in Country A — for example, currency instability, expropriation, or tariff discrimination. Second, activities in Country B may cause physical harm in Country A — for example, missiles, disease, or pollution. Third, activities in Country B may cause mental harm66 in Coun64 65
66
Centesimus Annus, para. 43, available at www.vatican.va/holy_father Rerum Novarum, available at www.osjspm.org/cst/rn.htm - The Pope preferred Christian associations. He posed the timeless question: "[WJhat would it profit a worker to secure through an association an abundance of goods, if his soul through lack of its proper food should run the risk of perishing?". Id., para. 77. See C.C. Hyde, "The Influence of Mental Reactions on the Development of International Law", AJIL 24 (1930), 357-359.
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try A — for example, distress from the practice of slavery, tyranny, or genocide. The ILO was motivated by all three rationales for intergovernmental coordination. These rationales continue to undergird the ILO today. The economic rationale was stated clearly in the initial ILO Constitution (i.e., the Treaty of Versailles) which declared that "the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries".67 Experience suggests that the "obstacle" is not so formidable because good labor standards engender net economic benefits. Occasionally the benefits have vastly exceeded initial expectations. For example in 1921, the ILO enacted an occupational health convention to restrict the use of lead paint.68 Years later, lead paint was recognized as an important public health problem. Countries that had ratified and implemented the ILO standard faced far lower remediation costs. The physical security rationale for the ILO is embodied in the statement in the ILO Constitution that "universal peace ... can be established only if it is based on social justice."69 Today the ILO is not perceived as a primary peacemaking agency. But labor policies do sometimes have physical transborder implications. For example, high unemployment and government oppression can lead to immigration pressures. The mental harm rationale for the ILO was that international law could be used to promote universal values. For example, the drafters of the ILO Constitution stated their recognition that "the well-being, physical, moral and intellectual, of industrial wage-earners is of supreme international importance ..." and highlighted the need for "the abolition of child labour" and the "continuation of their education ..."70 Today, key ILO standards are part of a large body of international human rights law. Although the case for international cooperation on labor is solid, it should be kept in perspective. Cooperation is dictated on the environment because ecosystems ignore national borders. Cooperation is dic67 68
69 70
Treaty of Versailles, Part XIII Preamble. Convention concerning the Use of White Lead in Painting (No. 13) of 19 November 1921, British and Foreign State Papers, 135 et seq., (397). Treaty of Versailles, Part XIII Preamble. Id. article 427.
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tated on banking because financial markets cross national borders. Yet the same is not true for labor markets which often stay within borders.71 Although multinational enterprises engage in global production, a global labor market has not yet arisen. Thus, many labor issues will not need to be decided internationally or to be inscribed in international labor law.
2. Contemporary Challenges The Treaty of Versailles established the postwar labor agenda. This included: prevention of unemployment; protection of the worker against sickness, disease, and injury; recognition of the principle of freedom of association; the organization of vocational and technical education, abolition of child labor; and the principle that men and women should receive equal remuneration for work of equal value.72 These goals do not look very different from a progressive agenda today. A cynic could view this persistent agenda as demonstrating that the ILO has done nothing forever, but that is far from the truth. The ILO has responded constructively to these goals during its eight decades of operation. But employment, labor, and social problems are not permanently solvable in the same way that, say, smallpox has been stamped out by the World Health Organization. Rapid technological change, international competition, population growth, political upheavals, and many other factors will make labor problems a tough challenge for each generation. During the past few years, a growing consensus has emerged that major international institutions — such as the IMF, the World Bank, and the WTO — are not adequately advancing economic growth in low-income countries and are not keeping up with the social problems engendered by economic globalization. The collapse of negotiations for a Multilateral Agreement on Investment and the failed launch of the new trade round in Seattle are the most visible result of the tensions between North and South. And more such failures may lie ahead. 71
72
There are exceptions such as transborder migrant workers, the preservation of social security rights accrued in more than one country, and labor regulation for seafarers. The ILO has conventions on these issues. Recently, the ILO and IMO have established a joint working group. "Seafarers call 'Mayday'", World of Work, December 1999, 22-23. Treaty of Versailles, Part XIII Preamble and article 427.
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The new shibboleth calls for "putting a human face on the global economy", but this popular metaphor is inapt. Facelessness is not the problem. Indeed, the impersonality of the capitalist economy helps make it so successful (and more so in the internet economy). A faceless economy is likely to be more meritocratic than an economy associated with family, village, and traditional hierarchies. The human face, alone, is no guarantee that power will be exercised benignly. The global economy does not need more personality; it needs better law. The sharp edges of the global economy need to be softened. Yet this is a task not for the compassionate face, but rather for elected decisionmakers working with business and civil society. In an age of economic and cultural globalization, international law must further define and safeguard individual rights. This was the task given to the ILO when it was established in 1919 and is a task no less urgent today. The increased integration and interdependence of the world economy has reinforced the ILO's importance. The ILO can be part of the solution to the current backlash against economic globalization in both rich and poor countries. Even though international trade delivers enormous benefits, open markets and WTO rules are being challenged as inimical to individuals, families, communities, and popular selfgovernment. Although there may be a kernel of validity to these concerns, the solution is not a retreat to nationalism and autarchy. Rather, governments and civil society must strengthen the social dimension of international economic law.
IV. Improving the ILO's Performance There is a great deal of public concern about the violation of fundamental worker rights. Governments that engage in forced labor or deny freedom of association draw great scorn. Based on the belief that the ILO lacks the "teeth" to stop these violations, many people would like to empower the WTO to enforce core labor rights.73 Columnist Wil73
For a discussion of proposals, see R. Bhala, "Clarifying the Trade-Labor Link", Colum. J. Transnat'l L. 37 (1998), 11 et seq.; C. O'Neal Taylor, "Linkage and Rule-Making: Observations on Trade and Investment and Trade and Labor", University of Pennsylvania Journal of International Economic Law 19 (1998), 639 et seq.; R. Howse, "The World Trade Organization and the Protection of Workers' Rights", Journal of Small 6Emerging Business Law 3 (1999), 131 et seq.
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Ham Safire wrote recently that "International trade that does not use its leverage to encourage personal freedom does not deserve the name of free trade".7* The use of trade sanctions to promote freedom may not be an effective course. For one thing, it is self-contradictory to deny the individual's freedom to trade in order to promote other freedoms. Moreover, such sanctions will reduce the amount of trade, thus making everyone worse off.75 Asking the WTO to restrict trade in products made by child labor is even more problematic.76 These abuses are heinous, but are carried out by employers, not by governments. Empathetic citizens in rich countries have a much more direct way to curtail child labor than to enlist the WTO: they can send money to children in poor countries (or to NGOs helping the children). Certainly, any attempt to assign labor standards to the WTO would be resisted by developing countries. If it was not clear beforehand, Seattle showed the futility of Clinton's vision of achieving WTO enforcement of labor standards "in steps". Instead, governments and stakeholders need to work together to improve the ILO. Part IV of this article describes the operation of the ILO and then offers some specific suggestions for making the ILO more effective. With a dynamic leader (Somavia) at the helm — who may be the most activist Director-General since Albert Thomas — the ILO is wellpositioned to capitalize on the heightened public concern for worker rights in order to push ahead with needed institutional improvements.
1. Structure of the ILO The ILO was the first international organization that looked beyond states as monads.77 States are the members of the ILO, but unlike typi-
74
75
76
77
W. Safire, "The Clinton Round", New York Times of 6 December 1999, A31. D. Brown/A. Deardorff/R. Stern, "Trade and Labor Standards", Open Economies Review 9 (1998), 171-180. For example, see CUTS Centre for International Trade, Economics & Environment, Eradicating Child-Labour while Saving the Child, 1999. See W.M. Reisman, "The United States and International Institutions", Survival 41 (1999-2000), 62 et seq., (75).
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cal international organizations, states are not represented merely by their executive power. Each Member State sends four delegates to the annual ILO General Conference — two from government, one employer, and one worker. Each has one vote. The non-government delegates are chosen in agreement with employer and worker organizations which are "the most representative" in their respective countries.78 The ILO also has a Governing Body comprised of 28 governments, 14 persons chosen by the worker delegates, and 14 persons chosen by the employer delegates. As a rule, the Governing Body meets three times a year. ILO conventions are treaties. Enacting an ILO convention requires a two-thirds vote of the Conference delegates. After a convention is approved, every member government is obligated to bring it before the competent authorities in its country (e.g., a national parliament). But authorities are under no duty to ratify the convention. The use of the treaty form was an effort to establish binding legal obligations and to lock in commitments by ratifying governments. The drafters of the ILO were not under any illusion that governments would always honor their legal commitments. In order to enforce conventions, a complaint procedure is available to the ILO Governing Body, a worker or employer delegate, or to co-parties of a particular convention. The Governing Body may appoint a Commission of Inquiry to consider the complaint and the Commission then reports its findings and recommendations. If a government disagrees with the recommendation of the Commission, it may refer the matter to the ICJ for a final decision. In the event that a government fails to carry out the recommendations of the Commission or ICJ, "the Governing Body may recommend to the Conference such action as it may deem wise and expedient to secure compliance forthwith".79 As of the end of 1999, no dispute had reached a stage where the ILO Conference took such action. Early in its history, the ILO made the conscious choice to rely on a so-called "voluntary" approach to compliance rather than test the coercive mechanisms available to it. The Treaty of Versailles provided the possibility for recommending "measures of an economic character"80 against scofflaw governments, but this road was never taken. Threatening action against renegade states ran contrary to the philosophy that 78 79 80
ILO Constitution, article 3 para. 5. Id., article 33. Treaty of Versailles, article 419.
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countries should ratify and respect conventions because, in doing so, they would improve their own welfare. The key to securing acceptance of ILO standards by states was thought to be through "the confidence of the peoples [and] the support of public opinion ... ,"81 If the ILO was to succeed, it would do so not by flashing its teeth, but by extending its hand in partnership. Technical assistance was given to countries to implement ILO conventions and to draft labor codes. The ILO also sought to use transparency to establish compliance incentives. Governments that failed to ratify a convention were required to report at regular intervals on the state of their law and practice, and on the difficulties that were preventing or delaying ratification.
2. Rethinking ILO Instruments The ILO Constitution provides for two instruments — conventions and recommendations — but offers little guidance in selecting one over the other.82 In its early practice, the ILO frequently employed recommendations alone, separate from conventions. But in post-World War II practice, the tendency has been to double-up conventions with recommendations.83 The growing number of conventions and the lack of criteria as to when an issue merits a convention, have led sophisticated observers to complain about an "overproduction" of ILO conventions and a loss of organizational focus.84 A Constitutional amendment approved in 1997 (and now awaiting ratification) would enable the ILO to abrogate outdated conventions.85 Because conventions are international law, they should be reserved for those few issues on which legally enforceable guarantees are
81 82 83
84
85
A. Thomas, International Social Policy, 1948, 16. See ILO Constitution, article 19 para. 1. ILO, International Labor Conventions and Recommendations, 1996, Vol. 3, iii-xl. This critique of the ILO goes back many years. E. Cordova, "Some Reflections on the Overproduction of International Labour Standards", Comparative Labor Law 14 (1993), 138 et seq. "Informational note on the progress of work and decisions taken concerning the revision of standards", ILO Doc. GB.276/LILS/WP/PRS/1, of November 1999.
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needed.86 Recent conventions on home work (passed in 1996) and private employment agencies (passed in 1997) do not qualify as such issues. Indeed, many of the ILO's 182 conventions should not have been enacted in treaty form. When conventions are used, there is authorization in the ILO Constitution to provide flexibility for developing countries.87 The Treaty of Versailles further stated that the parties "recognise that differences in climate, habits, and customs, of economic opportunity and industrial traditions, make strict uniformity in the conditions of labour difficult of immediate attainment".88 This recognition was demonstrated from the beginning. One of the ILO conventions on child labor, enacted in 1919, provided more flexible rules for Japan and India than for other countries.89 Indeed, it can be said that the idea of differentiated responsibility for developing countries emerged from ILO practice. "Strict uniformity" in conditions of labor is not only difficult to attain, it is not a desirable long-term goal. ILO Conventions generally do not seek such uniformity however. They set minimum standards.90 But if minimum standards are set too high for some countries, then following them could worsen the economy in those countries rather than better it. There has been some tendency in the ILO to believe that the more regulations imposed on employer the better. The problem of excessive regulation arose early in ILO history when international women's NGOs complained about the ILO convention restricting night work by women.91 But the ILO has never systematically looked at whether national labor regulations or payroll taxes might be so excessive as to undermine the goal of preventing unemployment. The ILO should do so. 86
The same point applies outside the ILO. The environment regime also has an overproduction of treaties.
87
ILO Constitution, article 19 para. 3.
88
Treaty of Versailles, article 427. Convention Fixing the Minimum Age for Admission of Children to Industrial Employment (No. 5) of 28 November 1919, arts. 5-6, British and Foreign State Papers 134 et seq., (514). Article 19 para. 8 of the ILO Constitution provides that the adoption of a convention or recommendation will not be deemed to affect any law, award, custom or agreement which assures more favorable conditions to workers than those provided for in the convention or recommendation.
89
90
91
L. Rupp, Worlds of Women, 1997,144-145.
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A de-emphasis on writing new conventions could enable the ILO to devote more time to communicating information to member countries on how to conduct more effective labor and employment programs. This could be done via the "Recommendation" or something more updateable. The ILO has provided technical assistance for decades, but is not generally perceived as a "center of excellence" where anyone can learn about the best practices on key labor issues. Even if the Home Work Convention and Recommendation embodied best practices in 1996, they could soon be out of date in light of the Internet.
3. Using Market-Oriented Tools The ILO should do more to promote market-oriented tools such as product labels and corporate codes of conduct.92 In truly global markets, the decisions of consumers, banks, insurers, tourists, and the media will be more influential than review processes in Geneva. Informational tools like social labels (e.g., Rugmark-see for further information under, www.rugmark.org/about/index.html) can enable individual economic actors to consider performance of the producer as well as the performance of the product. Business codes of conduct provide standards for socially minded corporations and serve as a benchmark by which investors and consumers can evaluate corporate social performance. There is resistance to such market-oriented tools by employers and developing country governments. If poorly designed, social labels may lead to unjustified discrimination against certain products. Furthermore, such disparate systems can diverge from ILO conventions, and thus send conflicting signals to the marketplace.93 Some observers have suggested that the ILO update its Declaration of Principles concerning Multinational Enterprises, approved in 1977. This would be a very difficult exercise and is probably not needed given 92
93
K. van Wezel Stone, "To the Yukon and Beyond: Local Laborers in a Global Market", Journal of Small & Emerging Business Law 3 (1999), 93 et seq.; Friends World Committee for Consultation, Sharing Responsibilities for Labour Standards and Trade Liberalisation, 1997. See K. Hagen, "Issues Involving Codes of Conduct from an ILO Perspective", ASIL Proceedings 92 (1998), 267 et seq., (274); "Further examination of questions concerning private initiatives, including codes of conduct", ILO Doc. GB.274/WP/SDL/1 of March 1999.
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the plethora of codes of conduct written by private organizations. But the ILO could provide funding for an internet-based clearinghouse for such codes. It is interesting to note that the Organization for Economic Cooperation and Development (OECD) is now revising its Guidelines for Multinational Enterprises. The new section on Employment and Industrial Relations will include provisions regarding child labor, forced labor, and occupational health and safety. These issues are not covered in the current OECD Guidelines promulgated in 1976.94 One final suggestion: The time is right to sponsor an initiative to rank countries by the quality of their labor and human resource policies. The ILO could not do this, for obvious reasons, but a private group could. In early 2000, the World Economic Forum started an Environmental Sustainability Index modeled after its longtime national competitiveness rankings.95 There are already indications that some of the countries at the bottom have suffered embarrassment and may take steps to improve their environmental policies. The same favorable ("race to the top") dynamic could be attempted in the labor field.
4. Improving Enforcement Rule-setting international organizations need a strategy for enforcing their rules. Enforcement does not require troops or economic sanctions however. Public opinion can be a potent source of enforcement. This point was well made in an Open Letter from "Third World Intellectuals and NGOs Against Linkage" promulgated in September 1999 in the run-up to the WTO Seattle Ministerial. The Open Letter, spearheaded by Columbia University economist Jagdish Bhagwati, states that: "Today, if we are serious, we can open the ILO's mouth and give it a new set of teeth. ... Do not underestimate the value of information and exposure as long as it is impartial between nations".96
94
"OECD Revising Guidelines for Multinationals; Employment, Labor Standards Prominent", BNA Daily Report for Executives, of 2 February 2000, C-l.
95
See S. Charnovitz, "Environmental Sustainability Index Likely to Become Important Management Tool", International Environment Reporter 23 (2000), 174-176.
96
"Challenging Linkages of Trade to Non-Trade Issues", Economiquity, November 1999, 2-4.
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As designed in 1919 and modified in 1946, the ILO has a very sophisticated enforcement system providing for investigation and recommendation by an independent Commission of Inquiry, possible recourse to the ICJ, and possible action by the ILO Governing Body and Conference. In a recent study of these procedures, Francis Maupain pointed out that current ILO rules provide "a remarkable diversity and richness of institutional possibilities" for promoting compliance, some of which have "not been fully explored".97 It is time to do so. The first opportunity will occur in 2000 when the ILO takes up the case of Myanmar. Several options exist. The ILO could ask member governments to refer the matter to the UN Security Council. The ILO could officially notify other UN specialized agencies and ask them to consider ways of addressing this problem. Another option would be for the ILO to ask its member governments to bar Myanmar imports made using forced labor. Any of these actions would require a recommendation by the Governing Body and action by the Conference, both by majority vote. Although the ILO has never called for economic measures against scofflaw governments, it did consider the use of a trade measure during the drafting of the Abolition of Forced Labor Convention in 19561957. The U.S. government proposed an amendment to prohibit trade in goods produced by forced labor.98 (This was not a sanction for noncompliance, but rather a measure to implement the Convention). In the end, this amendment was not accepted. Another institutional possibility is placing greater emphasis on enforcement of ILO conventions through national courts. This approach would not apply to Myanmar, of course, but would be feasible for countries that have an independent judiciary and allow individuals to enforce rights under a treaty. This strategy would require writing ILO conventions with clear rights for individuals. In many countries, there would need to be treaty implementing legislation to give individuals a private right of action against their own government. For various reasons, there was little travel down this road during the 20th century.99
97
98 99
F. Maupain, "The Settlement of Disputes within the International Labour Organization", Journal of International Economic Law 2 (1999), 273 et seq., (285, 293). Charnovitz, note 38,162. See generally V. Leary, International Labour Conventions and National Law, 1982.
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Yet a greater role for national courts would strengthen the ILO's supervisory system. A last suggestion for promoting better implementation would be for the ILO to act more like the IMF and the World Bank in conditioning assistance on explicit policy commitments by recipient governments. The new Declaration directs the ILO to offer governments technical cooperation and advisory services to promote the ratification and implementation of fundamental Conventions.100 The feasibility of this approach depends on providing greater funding to the ILO to utilize for providing technical assistance.
5. Increasing Civil Society Participation A final recommendation is that the ILO should become more open to NGO input.101 This may sound strange given that the ILO is the only international organization to give NGOs and governments equal voting rights. Yet the ILO accords full participation rights only to selected worker and employer organizations, which reflect only a narrow swath of civil society. Groups that promote consumers, business, human rights, environmental protection, development, education, and women's issues, have only limited opportunities to contribute. Providing more participatory opportunities for them would improve the quality of the ILO's work and afford the ILO greater public support.
V. ILO's Role Among International Institutions Part V addresses the ILO's relationship with other international agencies. The first section provides a brief historical review. The second section looks at the ILO's efforts to examine international economic policies. The third section makes recommendations regarding coordination. The final section proposes new labor policy initiatives.
100
101
ILO Declaration on Fundamental Principles and Rights at Work, see note 19, para. 3 lit.(a). See P. Alston, "Post-post-modernism and International Labour Standards: The Quest for a New Complexity", Sengenberger, see note 34, 95 et seq., (102); see ILO, see note 55, 76-77.
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1. The ILO and Other International Agencies Under the visionary leadership of Albert Thomas, the first ILO Director (1920-1932), the ILO collaborated with other international agencies in order to achieve its mission. In its first decade, the ILO sent a delegation to the Genoa Economic Conference, the war reparations discussions at Spa (Belgium), and to the World Economic Conference in Geneva. The ILO also participated in various organs of the League of Nations.102 Following the end of World War II, the ILO attended the conference that adopted the GATT and the Charter of the International Trade Organization (ITO). At this conference, the issue of fair labor standards was debated, and an article committing each government to take appropriate and feasible action to eliminate "unfair labor conditions" within its territory was included in the Charter.103 This article directed the ITO to cooperate with the ILO on any complaints regarding labor standards. Because of this provision and other ITO provisions relating to labor, the ILO and ITO Interim Commission prepared a formal cooperation Agreement in 1948.104 The Agreement provided that representatives of each organization would be invited to attend the meetings of the other organization. The ITO Charter, however, never came into force and the GATT made no effort to revive the cooperative agreement. The ILO in recent decades has not exerted significant influence on other international agencies. World Bank and IMF policies regarding employment and labor have improved, but only a little credit is due to the International Labor Office, which underperforms both in its analytical capacity and in its implementation of technical assistance. The ILO has had even less impact on the WTO which seems unwilling to enter into any cooperative arrangement with the ILO — despite the fact that the ancestral International Trade Organization of 1948 was eager to do so.
102 103 104
E.J. Phelan, Yes and Albert Thomas, 1949, 53-54. Charter of the International Trade Organization, article 7.1. S. Charnovitz, "Strengthening the International Employment Regime", Inter economics 30 (1995), 221 et seq., (225); "Relations of the International Trade Organization with Other Inter-Governmental Organizations", ICITO/EC.2/2Add.5 of 13 July 1948, at 2. ITO Chapter II (arts 2 to 7) concerned Employment and Economic Activity.
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2. Review of International Economic Policies In their planning for the United Nations, governments recognized the need for better coordination of international economic and social policies. The separate committees within the League of Nations to address economic and social problems were replaced by the ECOSOC. In that same vein, the ILO took action in the Declaration of Philadelphia (1944) to link economic and the social concerns. Among its provisions, the Declaration stated that "... (a) all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity; ... (c) all national and international policies and measures, in particular those of an economic and financial character, should be judged in this light and accepted only in so far as they may be held to promote and not to hinder the achievement of this fundamental objective; ... (d) it is a responsibility of the International Labour Organization to examine and consider all international economic and financial policies and measures in the light of this fundamental objective;...".105 Later in the Declaration, the ILO Conference declared: "Confident that the fuller and broader utilisation of the world's productive resources ... can be secured by effective international and national action ... the Conference pledges the full cooperation of the International Labour Organization with such international bodies as may be entrusted with a share of the responsibility for this great task...".106 The ILO has not been very successful in fulfilling this mandate to examine and consider international economic and financial policies in light of fundamental ILO objectives. Some action along these lines was taken at the tripartite World Employment Conference of 1976. For example, the Conference recommended better financing for commodity exports from developing countries, greater market access for manufactured goods from developing countries, and reduction of developing country debt. But the Employers' group and a number of industrial 105 106
ILO Constitution, Annex, Section II. Id. Section IV.
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country governments objected on the grounds that these recommendations were "outside the proper competence of the ILO".107 When split down the middle, the ILO cannot go forward. In 1994, the trade issue resurfaced in the ILO with the establishment of the Working Party on the Social Dimensions of the Liberalization of International Trade. The Working Party collected information and served as a forum where "trade and labor" linkage issues could be discussed. But the Working Party did not (nor was it intended to) equip the ILO to examine and consider all international economic and financial policies in the light of its fundamental constitutional objectives. In its most recent report, the Working Party stated that it seems more necessary than ever before to have some kind of institutional interface to enable the ILO to make a tripartite contribution to other international organizations—for example, to the new International Development Architecture proposed by the World Bank.108 The ILO should try again to gain the consensus of workers, employers, and governments to strengthen the ILO's role in examining global economic and financial policies in light of fundamental labor standards. Peter Prove of the Lutheran World Federation has suggested that "the process of trade policy formulation should distinguish from the outset policies which will protect and foster dignified employment and those which may undermine existing achievements and the progressive realization of the right to work".109 The WTO has no plans for this type of a study. But such work could be carried out by the ILO in order to inform the planning for future trade negotiations.
3. Improving International Agency Coordination Although agency specialization brings significant benefits, coordination among international agencies is needed. As economist Jan Tinbergen explained, international organs "ought not to act independently and 107 aDeclaration of Principles and Programme of Action" reprinted in: ILO, Employment, Growth and Basic Needs, A One-World Problem, 1976, 179 et seq., (187-188). 108 Working Party on the Social Dimensions of the Liberalization of International Trade, see note 18, para. 15. 109 p Prove, "Human Rights at the World Trade Organization?", in: M. Mehra (ed.), Human Rights and Economic Globalisation: Directions for the WTO, 1999, 23 et seq., (34).
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therefore at a given moment perhaps in conflict with each other; their decisions must not be incompatible".110 Most, if not all, international agencies have the authority to cooperate with other agencies. Indeed Wilfred Jenks (a legal scholar and former ILO Director-General) once contended that there was a "constitutional responsibility" of the concerned international organizations to cooperate in promoting full employment.111 The activities of the ILO, WTO, IMF, and World Bank should be mutually supportive. If all countries adhered to ILO conventions regarding freedom of association and child labor, one persistent obstacle to public acceptance of trade liberation would be removed. If industrial countries opened their markets to products from developing countries, economic growth and improvement in working conditions within developing countries would proceed more rapidly. Just as policy instruments are expected to be complementary at the national level, so too they should be at the international level. The IMF and the World Bank should not recommend national policies that undermine fundamental labor rights. By the same token, the ILO should not recommend policies that hinder long-term economic growth. Some policymakers, frustrated by lack of coordination among specialized international organizations, have suggested more G-"x" meetings where heads of governments or ministers can confer. Like-minded governments should certainly meet when needed. But this conference method is inadequate to address North-South challenges and is inferior to using international institutions to help governments formulate their policies. Although the G-7 meetings on finance have been productive, it is unclear how this method could be fruitfully applied to employment, development, environment, and social problems.112
4. New Challenges for the ILO If the ILO seeks greater engagement with other international agencies, it might consider two issues on which it has done little work in the past — immigration and worker adjustment to economic dislocation.
110 111 112
J. Tinbergen, International Economic Co-operation, 1945, 169. C. Wilfred Jenks, The Common Law of Mankind, 1958, 229. To give one example, in June 1999, the G-7 promulgated a "Charter on Lifelong Learning". It is basically a string of homilies.
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The need for international action to promote freer immigration has often been noted. For example in 1927, Albert Thomas discussed the possibility of a Supreme Council on Migration and pointed out that the free flow of workers could be considered in the same way as the free flow of goods.113 Yet the ILO itself has not tackled this problem except for a vague, long-forgotten, Recommendation made in 1949 to facilitate the movement of manpower from countries which have a surplus to those that have a deficiency.114 This issue has not been addressed by the WTO either. The WTO Services Agreement promotes commitments to facilitate the entry of individuals providing services, but the Agreement excludes aliens "seeking access to the employment market".115 The inadequacy of current national policies is demonstrated by the example of the United States which has a shortage of skilled technical personnel and a tight labor market overall. Rather than increase immigration, however, authorities are unimaginatively responding by raising interest rates to dampen demand. Another potential initiative is the facilitation of worker adjustment to economic change.116 Although the ILO has a number of conventions relating to domestic employment policy, vocational training, and unemployment benefits, there is nothing that commits nations that are prosperous to help those in distress. The ILO should work with the IMF, the World Bank, and the UNDP to offer "social safety net insurance" to developing countries that ratify and enforce key ILO conventions and yet find their economies overwhelmed by economic forces outside their control (e.g., currency and trade flows). One opportunity for considering this idea will be the World Employment Forum that the ILO will held in 2001.
113
114
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Thomas, see note 81, 109-111. Thomas spoke at an NGO forum in Geneva. Recommendation concerning Migration for Employment (No. 86), para. 4 (1), in: ILO, see note 83. General Agreement on Trade in Services, Annex on Movement of Natural Persons Supplying Services under the Agreement. See D. Lea, "International Adjustment Assistance", in: C.F. Bergsten (ed.), Toward a New World Trade Policy: The Maidenhead Papers, 1975, 307.
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VI. Conclusions The ILO idea now begins its second century. In 1900, the International Association for Labor Legislation commenced as a semi-official organization composed of government agencies, NGOs, academics, and parliamentarians.117 After the war, a tripartite ILO was created in the Treaty of Versailles, and it is the only institution dating from this treaty that operates today. The ILO serves two key purposes. By recommending good labor market policies and practices, the ILO promotes economic growth in every country. By prescribing certain minimum standards for workers as legal rights, the ILO protects the individual from coercion by government or from abuse within the market. The combination of economic growth and worker rights provides the best opportunity for securing social justice. Some people say that the ILO is outdated in its "corporative" orientation and "command-and-control" culture. There is a grain of truth in these complaints. Some improvements are well underway, but more corrective action is needed. With the election of Somavia as Director-General and the enactment of the new ILO Declaration, there is an opportunity for revitalization of the organization. The social problems of the world economy call for greater analysis and directed action. Recent high-level governmental statements made inside and outside the ILO have reinforced the ILO's mandate to safeguard fundamental worker rights and to promote good governance. Looking back and looking ahead, this study concludes that the ILO experiment will continue to be important.118 Internationally-set labor standards can help every country make better decisions on employment policy. Furthermore, the technique of the ILO Constitution, the positivist idea that states and civil society should formally work together to draft international rules and to put them into practice, has increasing implications for global governance. No one could seriously deny that during the 20th century, the ILO helped to propel the progressive de-
117 118
G.A. Johnston, International Social Progress, 1924, 27. See E. Olson, "I.L.O., Long in Eclipse, Regains Some Prominence", New York Times of 23 March 2000, C4.
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velopment of international human rights law.119 As the ILO enters the 21st century, a key task will be to similarly influence the progressive development of international economic law. The Declaration of Philadelphia stated that it was a responsibility of the ILO to examine and consider all international economic and financial policies in light of the ILO's fundamental objectives. It is time for the ILO to rise to that challenge. Indeed, the ILO is uniquely positioned to do so as the only international organization comprising not just governments, but also individuals and their free associations.
119
The Impact of International Labour Conventions and Recommendations, International Labour Office, Geneva, 1976.
The Time Limit for the Ratification of Proposed Amendments to the Constitutions of International Organizations Sienho Yee
I. Introduction The constitutions1 of many international organizations generally contain some provisions on the amendment process, but they seldom contain an explicit time limit for the ratification or acceptance of a proposed amendment.2 Such a situation, on the one hand, may promote the
1
2
I am grateful to Ian Brownlie, Tony D'Amato, Ross Garland, Todd Lloyd, Vaughan Lowe and the editors of this Yearbook for comments and encouragement, and to Dean David Van Zandt and the Northwestern Law Faculty for the great visiting experience. For the sake of simplicity, the term "constitution" is used to describe the constituent instrument or instruments of an international organization, although I understand that there is some disagreement as to whether it is appropriate to use the term "constitution" to describe them. Such constituent instruments are unique because they are at once "conventional" and "institutional" and thus present problems of interpretation, see Legality of the Use by a State of Nuclear Weapons in Armed Conflict, ICJ Reports 1996, 66 et seq., (74-75, para. 19), some of which are explored herein. See also generally P. Dupuy, "The Constitutional Dimension of the Charter of the United Nations Revisited", Max Planck UNYB 1 (1997), 1 et seq.; A. Ross, Constitution of the United Nations, 1950. E.g., UN Charter, Arts 108-109; Articles of Agreement of the International Monetary Fund, UNTS Vol. 2 No. 20, art. XXVIII (originally art. XVII). 185
J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, 185-213. © 2000 Kluwer Law International. Printed in the Netherlands.
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deliberativeness of the amendment process by giving the Member States all the time they deem necessary to consider and debate a proposal. On the other hand, it leaves the entry into force of a proposed amendment to the mercy of the Member States and thus results in considerable, if not inordinate, delay3 and uncertainty. This naturally leads one to ask whether there is an implied time limit, whether the organ of the organization that is responsible for proposing an amendment (the proposing organ) may impose a time limit, whether in the absence of such a prespecified deadline, the proposing organ may withdraw a proposed amendment from consideration and ratification by Member States, whether a proposed amendment may simply lapse, and, finally, what constitutes a reasonable time limit if such a limit is applicable. The United Nations and several other international organizations are considering making amendments to their constitutions. Therefore it may be fitting at this time to revisit the issues raised above.4 This article
The discussion herein with respect to the amendment process under the constitutions of international organizations also applies, in principle, to the amendment process under other international agreements. In this article, the terms "ratification" and "acceptance" are treated as interchangeable. Although there may be slight differences between the two, such differences appear to be immaterial. The ILC commented that "on the international plane, 'acceptance' is an innovation "which is more one of terminology than of method." ILCYB (1966(11)), 198 (comment 10 to article 11 of the Draft Articles on the Law of Treaties). See H. Schermers/N. Blokker, International Institutional Law, 3rd edition, 1995, 730 ("The 1965, 1978 and 1986 amendments to the WHO Constitution have not yet entered into force. The important 1986 amendments to the ILO constitution still lack a substantial number of ratifications required before their entry into force (86 ratifications obtained as of 1 March 1994)"). In 1968 another scholar gave the following "summary of the experiences of six agencies, with the time from approval to entry into force of their sixteen amendments: I.A.E.A. - one amendment, 15 months; I.B.R.D. - one amendment, 16 months; W.H.O. - two amendments, one in 17 months, the other not yet in effect; I.M.C.O. - two amendments, each in approximately 37 months; I.L.O. - five amendments, the first two in 11 months each, with three not yet in effect; and I.C.A.O. - five amendments, the first in 13 years and 10 months, the second, 47 months, the third, 30 months, the fourth, 13 months, and the fifth not yet in force". L. Phillips, "Constitutional Revision in the Specialized Agencies", AJIL 62 (1968), 654 et seq., (670) (footnotes omitted). Various authors have discussed some aspects of these issues, see E. Schwelb, "The Amending Procedure of Constitutions of International Or-
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will outline the debates on these questions in international law and in the constitutional law of the United States and discuss various positions. My discussion and analysis will focus on the text, context and drafting history, where possible, of the constitutions, the practices of international organizations, and the opinions of scholars addressing the particular issues. In so doing I will take as examples only the United Nations and the International Monetary Fund (the Fund) because a comprehensive survey is beyond the scope of this short article and is unnecessary for the purposes of analyzing these issues, although in general the more examples the better. The analysis will also be informed by general principles of international law not directly applicable and, to a considerable extent, by an analogy to the constitutional experience of the United States. While other states may also have dealt with these issues, I will discuss the constitutional experience of the United States because the question of time limits for the ratification of proposed constitutional amendments has figured more prominently in the judicial decisions and scholarly debates in the United States than in other states. As recently as in 1992, the United States had to struggle with the question whether the 27th Amendment5 to the Constitution was validly ratified, because it took more than 202 years to obtain the necessary ratifying majority. To the extent that international law is not clear, having recourse to national constitutional experiences should afford some comfort if not strong support, although there has been an ongoing debate as to the value of analo-
ganizations", BYIL 31 (1954), 49 et seq., (90-91); id., "The Question of a Time Limit for the Ratification of Amendments to the Charter of the United Nations", 7CLQ 4 (1955), 475 et seq., (477); id., "Charter Review and Charter Amendment - Recent Developments", ICLQ 8 (1958), 303 et seq., (325-326); Phillips, see note 3; L. Goodrich/E. Hambro/A. Simons, Charter of the United Nations: Commentary and Documents, 3rd edition, 1969, 639-640; J.N. Saxena, Amending Procedures of the Constituent Instruments of International Organizations, 1972, 171; J. Dehaussy, "Article 108", in: J. Cot/A. Pellet (eds), La Charte des Nations Unies, 1985, 1421; W. Karl/B. Mutzelburg, "Amendments", in: B. Simma (ed.), The Charter of the United Nations: A Commentary, 1994, 1169-1170. See also generally J. Frowein, "Are There Limits to the Amendment Procedures in Treaties Constituting International Organizations?", in: G. Hafner et al. (eds), Liber Amicorum Professor Ignaz Seidl-Hohenveldern, 1998, 201 et seq.; R. Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies, 1968. This amendment provides: "No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened."
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gies to private or municipal law.6 I do not wish to venture into this controversy except to quote the following: "In a stage of international law which is characterized by the increased role played by international organizations, the assistance given by private law to the interpretation and application of general international law can be paralleled in the province of the constitutional law of international organizations by national constitutional law. When interpreting an international treaty, which is the constitution of an international organization, it is therefore admissible to have recourse to the experience and to the jurisprudence of a national legal system which has been facing and which has solved analogous relations obtaining between the federation and its constituent units."7 Part I has provided glimpses of the issues which I will discuss and of my analytical approach to discussing these issues. Part II will discuss whether there is an explicit or implied time limit for the ratification of the amendments under the constitutions of various international organizations. Part III will address whether the proposing organ of an international organization may have the power to impose a time limit. Part IV will analyse whether the proposing organ has the power to withdraw a proposed amendment before the necessary ratifying majority has been obtained. Part V will discuss whether and under what circumstances a proposed amendment may simply lapse. Part VI will finally take up the issue of what constitutes a reasonable time. Some conclusions will then follow in Part VII.
II. The Existence of a Time Limit under the Constitutions The first question to consider is whether the constitution of an international organization provides a specific time limit for the ratification or acceptance of a proposed amendment. This depends on the particular language, context and history of that constitution. If there is a specific See generally H. Lauterpacht, Private Law Sources and Analogies of International Law, 1927; M. Shahabuddeen, "Municipal Law Reasoning in International Law", in: V. Lowe/M. Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings, 1996, 90 et seq. Schwelb, see note 4 (1955), 477.
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constitutional provision providing for a time limit, that will be the end of the inquiry. For whatever reason, however, normally no such explicit time limit is provided. This holds true with respect to the constitutions of many international organizations including the United Nations Charter8 and the Articles of Agreement of the International Monetary Fund (the Fund Articles).9 This is also true with the United States Constitution, although Congress, the proposing organ, is granted the power
8
9
The UN Charter provides in part: Article 108 Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two-thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two-thirds of the Members of the United Nations, including all the permanent members of the Security Council. Article 109 1. A General Conference of the Members of the Untied Nations for the purpose of reviewing the present Charter may be held at a date and place to be fixed by a two-thirds vote of the members of the General Assembly and by a vote of any nine members of the Security Council. 2. Any alteration of the present Charter recommended by a two-thirds vote of the conference shall take effect when ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations including all the permanent members of the Security Council. 3. If such a conference has not been held before the tenth annual session of the General Assembly following the coming into force of the present Charter, the proposal to call such a conference shall be placed on the agenda of that session of the General Assembly and the conference shall be held if so decided by a majority vote of the members of the General Assembly and a vote of any seven members of the Security Council. See the Fund Articles, article XXVIII, which provides in part: "(a) ... If the proposed amendment is approved by the Board of Governors, the Fund shall, by circular letter or telegram, ask all members whether they accept the proposed amendment. When three-fifths of the members, having eighty-five percent of the total voting power, have accepted the proposed amendment, the Fund shall certify the fact by a formal communication addressed to all members. ... (c) Amendments shall enter into force for all members three months after the date of the formal communication unless a shorter period is specified in the circular letter or telegram."
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to propose a mode of ratification in addition to the text of the amendments.10 There is some controversy as to whether such a constitution should be read as implying a time limit, i.e., "a reasonable time." If there is such an implied time limit and if it can be ascertained, it might be argued that the proposing organ need not set any time limit on its own. The context of the relevant provisions normally does not support reading such an implied time limit into the text. This is because it appears that the drafters of the constitutions of international organizations would have provided for a time period for ratification if they had one in mind. For example, Article 109 para. 3 of the United Nations Charter specifically provides that if a general conference to consider amendments to the United Nations Charter "has not been held before the tenth annual session of the General Assembly", then a certain course of action would be taken. The fact that "the tenth annual session", which appears to represent the lapse of a reasonable period of time, was expressly provided in Article 109, but no time limit for the ratification of a proposed amendment was provided either in this article or in the adjacent Article 108 respecting the same subject matter may be considered to be evidence that the drafters did not intend to provide for one. If one sees any ambiguity in the text, that ambiguity would seem to be eliminated by the drafting history11 of Arts 108 and 109. That history counsels against reading a time limit into the text. The drafters took note of the unsatisfactory experience of the League of Nations in amending the Covenant,12 mostly because of inertia, and gave some thought to including a time limit within which the necessary ratifications would have to take place, but left the issue unresolved.13 This history cannot be considered as support 10
11
12
13
See U.S. Constitution, art. V, which provides in part: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress ....". Writers such as Schwelb, see note 4 (1955), 475-476; Zacklin, see note 4, 104-110, did not seem to inquire into the drafting history. For a description of this experience, see text accompanying notes 104-109 below. Goodrich/Hambro/Simons, see note 4.
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for an implied time limit. Therefore, the time to ratify a proposed amendment to the United Nations Charter would be whatever time it takes to obtain the necessary ratifications of two-thirds of the members of the United Nations, including all the permanent members of the Security Council. Carried to its logical extreme, this position will lead one to conclude that there is an indefinite time for acceptance, which is not very comforting. This does not, however, in itself destroy the legitimacy of this position as an interpretation of Article 108, if that is what the treaty-makers intended. The same is also true with the Fund Articles, which is the Fund's constitution. The textual context of the Fund Articles does not appear to lend any support to the argument that a reasonable time may be read into the provision relating to amending the Fund Articles. Article XXVIII merely sets forth the requirements for the acceptance of a proposed amendment and, therefore, may support the position that the time for acceptance is whatever time it takes to fulfil those requirements. On the other hand, if the time element was of essence for the founders of the Fund, they could have addressed it expressly. For instance, article XXVIII lit.(c) expressly provides that "[ajmendments shall enter into force for all members three months after the date of the formal communication [regarding the fact that enough members have accepted the proposed amendment] unless a shorter period is specified in the circular letter or telegram." This language specifying three months, indicates that where the founding fathers of the Fund wanted to have a time limit they had expressly provided for one and, therefore, where they did not so provide, no time limit was intended. Nor does the legislative history support the argument that an implied time limit has been built in. The travaux preparatoires reveal that the United Kingdom Delegation proposed a mechanism for making "urgent amendments". Under this proposal, a proposed urgent amendment would go into effect immediately upon adoption by the Executive Directors and remain in force unless the Board of Governors would not accept it or, if accepted by the Board of Governors, a certain number of members or members with a certain percentage of voting power would object to it within a certain number of days.14 This proposal did not become part of the final text of the Fund Articles. If anything, that rejection militates against the argument for an implied time limit.
14
See Addition Proposed by the UK Delegation, Document 344, Cl/DC/4, Proceedings and Documents of the United Nations Monetary & Financial Conference, Vol. 1 (1948), 576-577.
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The practices of international organizations do not support but rather go against reading into the text an implied time limit. Certain international organizations and/or their committees in charge of studying amendment proposals had voiced complaints about the undesirability of allowing an indefinite time for ratification.15 They proposed, however, that a time limit be specified in each proposed amendment16 or that the amendment clauses in various international agreements be amended to include such a limit,17 rather than arguing that there was already an implied time limit built in. The League of Nations proposed to amend the amendment provision of the League Covenant by adding a time limit of twenty-two months for the ratification of proposed amendments in the future.18 Scholarly opinion on this particular issue also weighs against the argument for an implied time limit. Manley O. Hudson noted that as of 1 April 1924 the proposed amendment to the Covenant had not come into effect and opined that "[sjhort of some amendment, ... it seems possible that no limit whatever exists, and that a ratification long after a proposal of amendment had been generally forgotten might have the effect of putting it into force."19 Similarly, Saxena stated in 1972 that
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16 17
18
19
See, e.g., League of Nations Committee on Amendments to the Covenant (League of Nations Committee), Second Report of the Committee to the Council, A. 24(1), 1921, V, 9; Intergovernmental Maritime Consultative Organization (IMCO), Amendment Procedures for Conventions for which IMCO is the Depositary, IMCO Doc. A. VIII/11, 20 September 1973. In 1982, the IMCO changed its name to International Maritime Organization (IMO). See http://www.imo.org/imo/introd.htm, footnote 1 therein. League of Nations Committee, ibid. IMCO, see note 15, especially Annex II (Draft Provisions on Tacit Amendment Procedure). See also A. Adede, "Amendment Procedures for Conventions with Technical Annexes: The IMCO Experience", Va. J. Int'l L. 17 (1977), 201 et seq. This tacit amendment procedure has been successfully implemented in various treaties administered by the IMCO. See Lei Shi, "Successful Use of the Tacit Acceptance Procedure to Effectuate Progress in International Maritime Law", University of San Francisco Maritime Law Journal \\ (1998-1999), 299 et seq. Letter from the Secretary-General Transmitting Copies of the Protocols of Ratification, 24 November 1921, and Annexes thereto, C.L. 100, 1921, V, reprinted in: League of Nations, Official Journal, January 1922, 6-8. M. Hudson, "Amendment of the Covenant of the League of Nations", Harv. L. Rev. 38 (1924), 903 et seq., (914).
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where the constitution does not address the question, "[i]t was long supposed that the proposed amendments would be pending indefinitely and that states could ratify them at any time without regard to the date of their submission by the organization."20 Under such circumstances, one might ask whether there exist any general principles of international law which, although not directly saying so, nonetheless favour such an implied time limit. The answer would seem to be negative. No doubt the temptation to imply such a term in a provision of a treaty is strong and, in some circumstances, is supportable. For example, where no time period is specified for the termination of a treaty, a reasonable time is implied under the principle of good faith, as the ICJ stated in the Nicaragua Case.21 This does not seem to carry over to the entry into force of an international undertaking. The ICJ itself has resisted the strong arguments mounted by India22 in 1957 and by Nigeria23 in 1998 for implying a reasonable time period for an Optional Clause declaration made under Article 36 para. 2 of the Statute to take effect, preferring to stick to the view that such a declaration takes effect immediately upon notification to the Secretary-General of the United Nations. It thus would seem that international law does not favour multiplying the requirements for an undertaking to take effect, albeit not vice versa. While one is tempted to say that the ICJ is trying to have it both ways, one may also draw the lesson that international law appears to favour the prompt and unhindered entry into force as well as the stability of an international undertaking. No doubt this is a reasonable rule of law. Thus, the weight of authority in international law goes against the argument that there is always an implied time limit for the ratification of a proposed amendment to the constitution of an international organization, although that constitution does not expressly provide for one. This view is consistent with what appears to be the prevailing view on the United States Constitution. While in the past the view in favour of such an implied limit appeared to have some currency, it has now fallen out of favour. In Dillon v. Gloss, the United States Supreme Court held that Congress may set such a time limit as part of a proposed 20 21 22
23
Saxena, see note 4, 171. ICJ Reports 1984, 392 et seq., (419/420, para. 63). Right of Passage over Indian Territory, ICJ Reports 1957, 125 et seq., (145147). Land and Maritime Boundary Case, ICJ Reports 1998, 275 et seq., (290300).
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amendment and intimated that the ratifications of constitutional amendments by the constituent states must take place within a reasonable time after the proposal is made so as to assure a sufficiently "contemporaneous" consensus on the question.24 Certain scholars supported this view, treating the Constitution as a compact and drawing upon contract law principles providing for a reasonable time for offer (i.e., a proposed amendment) and acceptance (i.e., ratification) where no such time is expressly provided.25 This contract model does not seem to pay sufficient attention to the special nature of a constitution. Embodying more than a bilateral relationship, a constitution constitutes a community and creates a public order. This is true with both a national constitution and the constitution of an international organization.26 Moreover, the offer and acceptance analogy is not a perfect one, as a true offer should come from the people of one state to those of another, rather than from Congress to the people. Similarly, a true offer to amend the constitution of an international organization should be made by one or more Member States rather than by the proposing organ of the organization. In any event, it is worth noting that this implied term contract model has not meaningfully influenced the debates in international law, if not completely rejected therein,27 as international law tends to emphasize the intent of states and shuns presumptions. The Office of Legal Counsel of the United States Department of Justice28 as well as certain scholars29 consider the Supreme Court's musings on an implied time limit as obiter dicta. Based on the text and context of the United States Constitution, the Office of Legal Counsel argues that proposed amendments are open for ratification for an unlimited time unless Congress specifies otherwise, and that the 27th Amendment to the Constitution was valid although it took more than
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25
26 27 28
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256 U.S. 368, 374-375 (1921); accord, Coleman v. Miller, 307 U.S. 433 (1939). See, e.g., S. Dalzell/E. Beste, "Is the Twenty-seventh Amendment 200 Years Too Late?", Geo. Wash. L. Rev. 62 (1994), 501. See note 1. See text accompanying notes 19 and 20, and Part V below. Memorandum for C. Boyden Gray, Counsel to the President, Office of Legal Counsel, 2 November 1992, Opinions of the Office of Legal Counsel 16 (1992) (preliminary print), 102 et seq., (111-119). E.g., Hudson, see note 19, 914.
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202 years for ratification.30 Although not completely free from doubt, this appears to be the stronger position. The 27th Amendment has been accepted as a valid amendment by Congress,31 the Archivist of the United States,32 and many scholars,33 although not without its detractors.34 The view that there is no implied time limit appears to have the upper hand at present and will be further strengthened by the 27th Amendment as a relevant precedent.35 In summary, where the constitution of an international organization, properly interpreted, does not provide for a time limit for ratifying a proposed amendment, the practices of international organizations, scholarly opinion addressing this particular issue, general principles of international law that apply specifically to this issue, and the teachings from the United States constitutional experience all militate against the argument for an implied time limit.
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33
34 35
Office of Legal Counsel, see note 28. The memorandum specifically notes that other language in article V and other parts of the Constitution expressly provide for specific time limits for certain matters. Ibid., 105-107. See Senate Concurrent Res. 120, 102d Cong., 2d Sess. (20 May 1992); House Concurrent Res. 320, 102d Cong., 2d Sess. (20 May 1992). See "Certification of Amendment to the Constitution of the United States relating to Compensation of Members of Congress", Federal Register 57 (19 May 1992), 21187. See, e.g., M. Kalfus, "Time Limits on the Ratification of Constitutional Amendments Violate Article V", University of Chicago Law Review 66 (1999), 437 et seq.; M. Paulsen, "A General Theory of Article V: The Constitutional Lessons of Twenty-seventh Amendment", Yale L. ]. 103 (1993), 677 et seq.; R. Bernstein, "The Sleeper Wakes: The History and Legacy of the Twenty-seventh Amendment", Fordham Law Review 61 (1992), 497 et seq. See, e.g., Dalzell/Beste, see note 25, 542-543. The special characteristics of the 27th Amendment, see note 5, and the view of Congress suggest that probably there will be no challenge as to its validity before the courts. Cf. Boebner v. Anderson, 30 F.3d 156 (D.C. Cir. 1994).
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III. The Imposition of a Time Limit by the Proposing Organ The constitutions of the international organizations usually do not appear to provide for a power to set a time limit for the ratification of a proposed amendment. A question that naturally arises is whether the proposing organ may impose such a limit. As far as international practice is concerned, there does not appear to be any hard evidence proving that the proposing organ of any international organization has, in fact, imposed such a time limit. Writing in 1968, Phillips stated that "no time limitations have been imposed, whether by constitutions, rules of procedure, or resolutions of adoption."36 The League of Nations Committee on Amendments to the Covenants proposed in 1921 that a time limit be added to each proposed amendment.37 The Assembly of the League did not adopt this advice but proposed to amend the amendment provision in the League Covenant to provide for a time limit.38 The IMCO (now called IMO) also proposed to amend the amendment provision of various treaties to provide for a tacit amendment regime under which proposed amendments would go into effect unless a certain number of parties raised objections within a specified time limit, rather than arguing that the proposing organ may impose a time limit. This proposal has been successfully implemented in some treaties.39 The General Assembly of the United Nations is the only international proposing organ that has done something remotely resembling the "imposition" of a time limit. In the proposing resolution, the General Assembly adopted the proposed amendments to the Charter of the United Nations relating to the enlargement of the Security Council, and then proceeded to "[c]all [ ]upon all Member States to ratify the above amendments ... by 1 September 1965."40 One should be careful not to treat this as a mandatory "imposition" of a time limit. First of all, the General Assembly itself did not use mandatory language. Second, the General Assembly has no binding power except with respect to certain internal matters not relevant here. The United Nations Charter did not grant the General Assembly the power to impose a time limit; therefore,
36 37 38 39 40
Phillips, see note 3, 671. League of Nations Committee, see note 15, 9. Letter from the Secretary-General, Annex 13, see note 18, 28. See note 17. A/RES/1991A (XVIII) of 17 December 1963.
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when it took the liberty of calling upon the Member States of the United Nations to ratify the proposed amendments within a certain time it was doing nothing more than merely issuing a recommendation.41 It so happened that the proposed amendments were ratified by the necessary majority on 31 August 1965.42 Thus there was no occasion to test the legal effect of the General Assembly's "recommendation." On two other occasions when the General Assembly adopted proposed amendments to the United Nations Charter, it either "call[edj upon" all members to ratify the proposed amendment "at the earliest possible date"43 or "urge[dj" all members to ratify the proposed amendment "as soon as possible."44 This history thus is too tenuous to support the conclusion that the United Nations General Assembly has imposed a time limit for the ratification of amendments to the United Nations Charter. As far as scholarly opinion is concerned, some commentators have voiced some doubt as to the competence of the General Assembly to set a time limit.45 Others make a distinction between making the time limit a substantive part of the proposed amendment itself and setting a time limit by a resolution of the proposing organ, either in the same resolution adopting the proposed amendment but separate from it or in a separate resolution. For example, the League of Nations Committee recommended making the time limit part of a proposed amendment.46 Writing before the General Assembly resolution was passed in 1963, Schwelb explicitly argued that under the United Nations Charter, it is "possible for the General Assembly or the General Conference to provide, as a substantive part of a proposed amendment, that the amendment will come into force only if it is ratified in accordance with Articles 108 or 109 within a given period."47 The basis for this argument, Schwelb asserted, is the "amending power" of the United Nations: 41
UN Charter, Arts 108 and 109. See also Dehaussy, see note 4, 1421; Karl/Miitzelburg, see note 4.
42
See Saxena, see note 4, 173.
43
A/RES/2101 (XX) of 20 December 1965.
44
A/RES/2847 (XXVI) of 20 December 1971.
45
Cf. Dehaussy, see note 4, 1421; text accompanying note 13; J. Robinson, "The General Review Conference", International Organization 8 (1954), 319 (noting two hypotheses, pro and con, with respect to the problem with the time limit); H. Kelsen, The Law of the United Nations, 1951, 822; Ross, see note 1, 39—40 (noting the lack of a time limit as a defect).
46
See note 15 and the accompanying text.
47
Schwelb, see note 4 (1955), 476.
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"If the 'amending power' of the United Nations, i.e., the General Assembly or the General Conference plus the ratifying authorities of two-thirds of the Member States, including the permanent members of the Security Council, has the capacity to amend or, for that matter, not to amend, the Charter, there is no reason why it should not have the capacity to decide upon conditional Charter amendments. In making a determination of this kind, in providing that an amendment shall come into force only if ratified within a certain reasonable time, the General Assembly, or the General Conference, would not interfere with the rights of Member States or impose upon them new obligations."48 In 1963 the General Assembly did not make the time limit a substantive part of the proposed amendment and therefore did not follow Schwelb's argument. As discussed above, however, the "precedential" value of the 1963 resolution as embodying an imposition of a time limit is minimal. Schwelb's view may also be open to two objections. First, there might be limits to the amending power. For example, Frowein forcefully argued that the normal amendment procedure cannot be employed to effect fundamental changes to the structure and function of an international organization.49 Assuming that Frowein's argument is correct, it still does not affect the power to specify a time limit within the text of the proposed amendment for ratification, because such a limit can hardly be said to affect the fundamental structure and function of an international organization. Secondly, it has been argued that since the effect of a binding time limit would be to stop the process of amendment, it is not possible to deduce its legal validity from an amendment itself, and that it would be more logical to view the failure to obtain the necessary ratifications within the specified time as "a condition subsequent that nullifies the underlying amendment resolution".50 The first part of this second argument appears to lose sight of the fact that in essence an amendment to a treaty is itself a treaty and that a treaty can contain a valid provision stating that the treaty has no effect unless it is ratified within a certain time. This provision would have the force of law invalidating the whole treaty (amendment), if after the expiration of the time specified the treaty (amendment) were ratified (if such ratifica-
48
49 50
Ibid, 476-477. Schwelb, see note 4 (1954), 90-91, expressed the same view a year earlier and repeated it 1958, see note 4 (1958), 325-326. Saxena, see note 4, 172-173, concurred in this view. Frowein, see note 4. Karl/Miitzelburg, see note 4 , 1170 and note 52 therein.
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tion could be done).51 The second part of the argument gives the power to propose an amendment a broader scope than normally understood, in effect granting the proposing organ the power to withdraw a proposed amendment, (which is rejected below in Part IV). Accordingly, these objections do not detract from the force of Schwelb's argument. Implicit in Schwelb's argument is the view that the constitution of an international organization is a plan of distributing power among the different players: the various organs established under the constitution and the Member States. General international law regards international organizations as creatures of limited delegated power and reserves all other powers to the Member States.52 Thus, when the original treaty is silent on the ratification or entry into force of a proposed amendment, the Vienna Convention on the Law of Treaties (Vienna Convention) leaves it to the parties to a subsequent treaty intended to amend the original one to specify that process.53 This leads one to conclude that if a constitution does not grant the proposing organ the power to set a time limit, its power is that of a proposer, and it is up to the ratifying authorities to dispose of its proposals. This analysis favours the proposing organ's placing of a time limit for ratifying a proposed amendment in its substantive text to be considered and ratified by the Member States; such a course of action accords with the plan of power distribution, as it leaves it to the Member States to decide whether they would approve of the time limit as part of the proposed amendment. On the other hand, the imposition by the proposing organ of a time limit either in the proposing resolution setting forth the text of a proposed amendment but in a section separate from the text of the proposed amendment or in a completely separate resolution would seem to disturb the plan of power distribution as reflected in the constitution, as such a course of action would give the proposing organ a power that is not granted thereunder, that is, to limit the rights of the Member States to ratify the proposed amendment. Moreover, the current state of international law and the special nature of the act of amending a constitution would seem also to militate 51 52
53
See text accompanying notes 61-62 below. See, e.g., E. Lauterpacht, "Judicial Review of the Acts of International Organizations", in: L. Boisson de Chazournes/P. Sands (eds), International Law, the International Court of Justice and Nuclear Weapons, 1999, 92. See Vienna Convention, UNTS Vol. 1155 No. 18232, arts 39 and 40 (amendment) and arts 11, 24 (means of expressing consent; entry into force).
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against the argument for an implied power of the proposing organ to set a time limit under the holding of Reparation for Injuries (Advisory Opinion)?* a power which no proposing organ seems to have asserted. Such an implied power is not necessary for any organ of the organization to perform its functions under the existing constitution. This removes the basis for any attempt to rely upon Reparation.^ The constitutional experience of the United States indicates that as applied to the United States Constitution, the above view that a proposing organ may place a time limit in the text of the proposed amendment itself is a safe one, although there is some uncertainty as to whether it is the only correct one. It is generally accepted that the United States Congress may set a time limit for the ratification of proposed amendments for the reason that the Constitution grants Congress the power to specify a mode of ratification.56 The distinction between making the time limit a substantive part of the proposed amendment and placing it somewhere else did not appear to figure importantly in the minds of the Supreme Court justices when they decided Dillon v. Gloss.57 There the Court rejected the defendant's challenge against the power of Congress to set a time limit for the ratification of what had become the 18th Amendment. The time limit in question was a substantive part of the proposed amendment, but the Supreme Court might have had in mind a time limit separate from the text of the proposed amendment when it stated that "[wjhether a definite period for ratification shall be fixed ... is ... a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification."58 For this reason, this decision has been criticised.59 The Office of Legal Counsel did not appear to dwell upon the distinction,60 although Walter Dellinger was of the view that "[a]n exami54 55 56 57 58 59
60
ICJ Reports 1949, 174 et seq. Ibid., 178-179. Contra Kalfus, see note 33. 256 U.S. 368 (1921). Ibid., 376. R. Hajdu/B. Rosenblum, "The Process of Constitutional Amendment", Colum. L. Rev. 79 (1979), 106 et seq., (126 n.75). Office of Legal Counsel, see note 28, 112 n.13 ("if the absence of a time limit introduces a danger into the Article V amendment process, the solution is in Congress's hands, and is now in routine use: Congress may specify a time limit, either in the text of the amendment or the proposing resolution.").
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nation of the theoretical basis of congressional power to place time limits in an amendment's text suggests that a textual time limit may stand on a firmer foundation than one merely included in the proposing resolution."61 A textual time limit, he argued, makes the proposed amendment self-destruct if enough states ratify it after the time limit expires (assuming that this can be done pursuant to the position of those opposing time limits), because when such an amendment has been ratified, the part providing that it would be inoperative unless ratified within a certain time has the force of law.62 Moreover, it appears that the amending power appears to be unlimited as to the content and substance of each amendment,63 and therefore, a time limit placed within the text of the proposed amendment would be on safer ground. On the other hand, a time limit imposed by a separate resolution is more vulnerable to attack, although the time limit so placed may be amenable to easy change or extension by Congress and would not clutter up the text of the constitution after the proposed amendment has been ratified. The distinction between a textual time limit and a time limit separate from the text of the proposed amendment, however, may still be alive and well in United States constitutional law. When proposing the equal rights amendment, Congress placed a time limit for ratification in the proposing resolution but separate from the text of the proposed amendment, contrary to its usual practice.64 When that time expired, Congress attempted to extend the time limitation by a separate resolution,65 causing a serious controversy. Although one may draw a distinction between setting a time limit in the proposing resolution and setting a new time limit in a separate resolution, one may argue that the ultimate issue is the same: what is the scope of the power of Congress. Many scholars considered the extension unconstitutional66 and a de-
61
62 63 64 65 66
W. Dellinger, "The Legitimacy of Constitutional Change: Rethinking the Amendment Process", Harv. L. Rev. 97 (1983), 386 et seq., (406). Ibid., 409. Cf. text accompanying notes 48-49 above. See House Joint Res. 208, 92d Cong., 2nd Sess., 86 Stat. 1523 (1972). See House Joint Res. 638, 95th Cong., 2nd Sess., 92 Stat. 3799 (1978). E.g., G. Rees III, "Throwing Away the Key: The Unconstitutionality of the Equal Rights Amendment Extension", Tex. L. Rev. 58 (1980), 875 et seq.
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claratory judgement was obtained in a federal district court to annul it.67 The proposed amendment was not ratified even upon the expiration of that extension and, as a result, the showdown before the Supreme Court on the legitimacy of the extension of time was avoided.68 Even if Dillon v. Gloss is correct in holding that Congress may set a time limit without making it part of the proposed amendment, it might not support the argument that either the General Assembly of the United Nations or perhaps the Board of Governors of the Fund may set a time limit separate from the text of the proposed amendment itself. Dillon treats congressional power to do so as incidental to its power to designate the mode of ratification, an express authority under the United States Constitution. Neither the General Assembly of the United Nations nor the Board of Governors of the International Monetary Fund has the power under the respective constitutive instruments to designate the mode of ratification. The mode of ratification has already been mentioned in these instruments, neither of which gives the proposing organ any meaningful power that remotely resembles a power to specify a time limit.69 As a result, the broad dictum in Dillon does not apply to a constitution of an international organization such as the International Monetary Fund and the United Nations.70 The narrower position that Congress may place a time limit on the ratification of a proposed amendment in its substantive text itself and leave it to the states to decide whether or not to approve it also finds support in the received view that the United States Constitution is a plan of power distribution among the three branches of the federal government and the constituent states.71 As Congress's power to specify a mode of ratification does not seem to encompass setting a time limit that would derogate from the rights of the states to ratify the proposed amendment at their leisure and with due deliberation, placing the limit in a separate section of the proposing resolution or in a completely 67
68
69 70
71
Idaho v. Freeman, 529 F. Supp. 1107, 1150-1153 (D. Idaho 1981), vacated as moot sub nom. National Organization For Women, Inc. v. Idaho, 103 S. Ct. 22 (1982). See L. Tribe, "A Constitution We Are Amending: In Defense of a Restrained Judicial Role", Harv. L. Rev. 97 (1983), 433 et seq., (437-438 and note 20 therein). See notes 8 and 9. Schwelb, see note 4 (1955), 482. But he also said this distinction might not be dispositive. Cf. text accompanying notes 52-55.
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separate resolution would seem to conflict with this received view of the Constitution. Indeed, one commentator argues against any time limit at all because it would disturb the balance of power between Congress and the states as ordained in the Constitution.72 In summary, where the constitution of an international organization, properly interpreted, does not grant the proposing organ of that organization the power to set a time limit, it is difficult to argue that there is such an implied power. There is no solid evidence that any proposing organ has ever attempted to impose such a time limit. Nevertheless, it is reasonable to conclude that a proposing organ may place a time limit for ratifying a proposed amendment in its substantive text itself, leaving it to the Member States to decide whether or not to approve it. This finds support in the amending power in general and in an analogy to the United States constitutional experience, and does no violence to the scheme of power distribution as laid down in the constitution of an international organization.
IV. The Withdrawal of a Proposed Amendment by the Proposing Organ Similarly, the constitutions of the international organizations do not appear to address the issue of whether the proposing organ may withdraw a proposed amendment. There is no evidence in the practices of international organizations that any proposing organ has ever attempted such a withdrawal. However, Saxena concluded, from two resolutions of the Assembly of the League of Nations, that the practice of the Assembly shows that it had the power to "cut off the possibility of further ratification, by attempting to withdraw a proposal of amendment."73 One of the resolutions stated that "The Assembly begs the Council to notify the Members of the League of Nations that it is no longer necessary to continue the ratifications of the Amendments number 2 and 3 to
72
73
See Kalfus, see note 33. Kalfus' excessively broad argument against even a time limit placed in the substantive text of the proposed amendment is unwarranted and cannot be reconciled with the main basis for his position, that is, the balance of power as laid down in the Constitution. Placing a time limit in such a manner does not upset this balance but promotes the exercise of state power within this scheme of power sharing. Saxena, see note 4, 174.
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Article 6 of the Covenant ...."74 The second resolution stated that "The Assembly, noting that the amendment to Article 16, paragraph 1, of the Covenant, ... has not entered into force and appears to be open to objections which seem to render its entry into force impossible, and considering accordingly that it is no longer opportune for further Members of the League to ratify the said amendment, adopts in place thereof [a new] amendment, which it recommends should be ratified."75 After quoting these two resolutions, Saxena proceeded to state that "[a]t present there seems to be no such possibility of eradicating the amendments once adopted by the General Body."76 It is not clear whether this last statement by Saxena is wholly consistent with his view that the practice of the Assembly shows that it had the power to "cut off the possibility of further ratification". In any event, his view about the League Assembly's power to cut off further ratifications is not solid. The language used in the League Assembly resolutions was not mandatory but recommendatory. It, therefore, did not indicate the exercise of a power but merely conveyed certain admonitions and wishes of the League Assembly. At the national level, the United States Congress does not appear to have attempted to withdraw any of its proposals. The Supreme Court in Coleman v. Miller77 intimated that Congress alone has the final control over the ratification process. Carried to the logical extreme, this position might support the argument that Congress need not withdraw any proposed amendments; it need only declare that certain amendments cannot be validly ratified. That case was decided without a clear majority and has been widely criticized. Commentators78 as well as the Office of Legal Counsel79 have argued that Congress has no role to play after enough states have ratified the proposed amendments. Only Michael Paulsen appears to have explicitly argued that Congress has the power to withdraw or repeal a proposed amendment any74
75
76 77 78
79
League of Nations, Records of Third Assembly, 1922, 381, quoted in Saxena, see note 4, 174-175. League of Nations, Records of Fifth Assembly, 1924, 180, quoted in Saxena, see note 4, 175. Saxena, see note 4, 175. 307 U.S. 433, 447-457 (1939). E.g., B. McAllister, "Across Two Centuries, A Founder Updates the Constitution", Washington Post of 14 May 1992, Al (quoting Laurence Tribe and Walter Dellinger). Office of Legal Counsel, see note 28, 118-126.
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time before the necessary ratifications have been obtained.80 This argument has no support in the text or history of the Constitution, but is merely based on what he called the "concurrent legislation model" for rationalizing the amendment process. This model essentially states that the amendment process is an ordinary legislative process involving "the combined, but separate, legislative enactments of specified supermajorities of Congress, and of state legislatures, resulting in their concurrent approval of an identical proposal."81 An amendment results whenever there concurrently exists a valid, un-repealed enactment of Congress and the valid, un-repealed enactments of the requisite number of states ratifying the proposal.82 This will lead to the result that where there is no time limit specified by Congress, an amendment proposal can last forever. A corollary of the requirement of concurrent approval of ordinary legislative acts, Paulsen argued, is that Congress may also repeal an amendment proposal anytime before a ratifying majority is obtained.83 It is hard to predict whether this theory will be accepted. One may venture to say that the basic premise, from which Paulsen derived his corollary, that the amendment process is simply an ordinary legislative process, is flawed. The Supreme Court itself has ruled that amendment proposals are not ordinary legislative enactments (which as a rule need to be presented to the President for his signature), and, as a result, the President has no role in the amendment process.84 Paulsen's answer was that the Supreme Court is simply wrong.85 In his own words, the "better approach, however, would be that such congressional proposals be presented to the President."86 This argument is based on personal preferences as to what constitutes a "better approach", rather than on what is constitutional. One should be slow to treat personal preferences as sufficient ground for saying that a particular viewpoint is constitutional or not. Moreover, while it is true that constitution-making shares some features of the ordinary legislative process, we should not for this reason alone say that it is therefore an ordinary legislative process. Constitution80 81 82 83 84
85 86
Paulsen, see note 33, 724-732. Ibid., 722. Ibid. Ibid, 722-724. Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798). Accord, Hawke v. Smith, 253 U.S. 221 (1920); National Prohibition Cases, 253 U.S. 386 (1920). Paulsen, see note 33, 731. Ibid.
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making (including amending a constitution) comes in many forms,87 but generally it is not a simple affair calling for an ordinary legislative procedure. It is normally an extraordinary event in which the proposing organ is acting in its proposing mode, not law-making mode. If the proposing organ believes that a proposed amendment is no longer appropriate, it can propose a new one that would have the effect of removing the previous one. It would then be up to the ratifying authorities to decide which one to ratify. In addition, Paulsen would have a difficult time reconciling his argument with the received view that the Constitution is a plan of power distribution, as discussed above.88 In general, the power to withdraw a proposed amendment is a strong one and should not be usurped when it is not provided for in the Constitution. There is no basis for asserting that the proposing organ has an implied power to withdraw a proposed amendment, as such a withdrawal can hardly be said to be necessary for the performance of a function under the existing Constitution. This applies to the United States Constitution as well as to the constitution of an international organization. In short, where the constitution of an international organization does not grant the proposing organ the power to withdraw a proposed amendment, it does not have such a power. There is no support for such a power in the practices of international organizations or general principles of international law. Nor does the United States constitutional experience lend any credence to the argument for such a power. The limited scholarly opinion to the contrary is ill founded.
V. The Lapse of a Proposed Amendment Even if the proposing organ has no power to withdraw a proposed amendment, it may become obsolete because of a fundamental change of circumstances which defeats the very purpose that the proposed amendment is to serve or renders impossible the performance of the obligations contemplated by the proposed amendment. Such a change may afford a ground for terminating or withdrawing from a treaty then
87
Cf., e.g., S. Yee, "The New Constitution of Bosnia and Herzegovina", E//Z, 7 (1996), 176etseq.
88
See notes 52, 71-72 above.
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in force. This is uncontroversial under international law.89 By analogy, such a change of circumstances should be sufficient to moot a proposed amendment yet to take effect. It does not matter whether such a proposal is withdrawn or not, as its subsequent ratification will simply be an exercise in futility. It is not the purpose of this paper to discuss in general what constitutes a fundamental change of circumstances; it suffices to note that the mere passage of a long time is not listed as such a change in the Vienna Convention.90 One may ask whether a proposed amendment may nevertheless lapse simply because an extraordinarily long period of time has passed, even if there is no fundamental change of circumstances. The answer would seem to be negative. The mere passage of a long time is not a basis for terminating a treaty91 and, by analogy, should not have the effect of mooting a proposed amendment to the constitution of an international organization. When the passage of a long time is coupled with the "discontinuance of the use of, and resort to, a treaty or acquiescence in such discontinuance",92 the treaty is said to have fallen into "desuetude".93 Nevertheless, as pointed out in the joint dissenting opinion in Nuclear Tests, "Desuetude is not mentioned in the Vienna Convention on the Law of Treaties as one of the grounds for termination of treaties, and this omis89
90 91
92 93
See Vienna Convention, arts. 61 ("Supervening Impossibility of Performance") and 62 ("Fundamental Change of Circumstances"). Article 62 provides in part: A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. See also ILCYB (1966(11)), 256-260 (ILC commentaries to the draft article that became article 62). Ibid. See A.D. McNair, The Law of Treaties, 1961, 516 ("That mere lapse of time does not bring about the termination of a treaty is patent upon a consideration of the ancient treaties which the United Kingdom Government and other Governments regard as being still in force"). Ibid. Ibid.
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Max Planck UNYB 4 (2000)
sion was deliberate."94 The ILC explained that "While 'obsolescence' or 'desuetude' may be a factual cause of the termination of a treaty, the legal basis of such termination, when it occurs, is the consent of the parties to abandon the treaty, which is to be implied from their conduct in relation to the treaty."95 Accordingly, the answer is to be found in whether there is a continuing existence of consent to be bound on the part of the parties to the treaty. It is not clear whether this position can be applied by analogy to the process of amending the constitution of an international organization, as in such a situation it is impossible to speak of consent to abandon a treaty or, more accurately, a future treaty, yet to be formed. That is, it is difficult to speak of the consent of the parties to abandon a proposed amendment when it is still open for ratification.96 It would seem that as long as a proposed amendment is being considered or debated by some Member States, the possibility exists for the establishment of a consensual bond between the Member States with respect to that proposed amendment. As a result, desuetude probably does not have any application in this context. Although limited, the practices of international organizations confirm that neither the mere passage of a long time nor the state of desuetude, if ever there is one, has been treated as a ground for mooting a proposed amendment. It has been noted that "there has been no instance of an amendment being killed for lack of ratification."97 Commentators seem to be content with this state of the law. In their view, a proposed amendment does not cease to be one because it has been proposed a long time ago or because it has been generally forgotten.98 This view finds support in the United States constitutional experience. Although desuetude normally is a ground for not performing certain obligations, it does not seem to be a ground for mooting a proposed amendment. The debut of the 27th Amendment more than 200 years after it was proposed by Congress, and its general acceptance as a valid amendment would seem to prove this point. Walter Dellinger has the misfortune of being the most confident proponent of the view that "[a] court troubled by the existence of amendment proposed over a hundred years ago could invoke a doctrine of desuetude and declare the 94
95 96 97 98
ICJ Reports 1974, 253 et seq., (Joint Diss. Opinion by Onyeama, Dillard, Jimenez de Arechaga and Waldock, 337, 338). ILCYB (1966 (II)), 237. See, e.g., Kelsen, see note 45, 822. Phillips, see note 3, 671. See text accompanying notes 19 and 20.
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amendments dead. No such need, however, is likely to arise."99 In the face of the 27th Amendment, such confident prophecy has been treated derisively.100 This disregard of the doctrine of desuetude may be disquieting. The idea that a proposed amendment may be floating out there for an unlimited period of time is not attractive. However, one can take solace in the fact that this position promotes deliberation in the ratifying process and thus improves the quality of the exercise of the ratifying power by the Member States. Furthermore, even in a worst case scenario, such a state of affairs does no harm to anyone.101 In the light of the above analysis, one may conclude that a fundamental change of circumstances which renders a proposed amendment without object or renders impossible the performance of the obligations contemplated by the proposed amendment has the effect of mooting it. However, the mere passage of a long time does not have such an effect. The related doctrine of desuetude does not appear to apply to a proposed amendment. In any event, the state of desuetude has not been treated as sufficient to moot such a proposed amendment either in practice or by international law commentators. Furthermore, the constitutional experience of the United States also seems to reject the idea of desuetude.
VI. What Constitutes a Reasonable Time The idea of a reasonable102 time has an impact on the issues discussed in this article. The argument that there exists an implied time limit on the 99
Dellinger, see note 61, 425. Paulsen, see note 33, 694. 101 Since the proposed amendments floating out there have no binding effect, they do not exert any costs on society, in contrast to legally binding instruments. Thus, the arguments for the "sunsetting" of statutes, as forcefully put forward by G. Calabresi, A Common Law for the Age of Statutes, 1982, 59-65, do not apply to the proposed amendments. 102 fkg notion of reasonableness is a protean one. It is said that the notion "is both definable and undefinable, both within law and outside law". O. Corten, "The Notion of 'Reasonable' in International Law: Legal Discourse, Reason and Contradictions", ICLQ 48 (1999), 613 et seq., (614). I will not go into the theoretical speculations on this issue, which Corten has explored in his article. 100
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ratification of a proposed amendment necessarily has a built-in component that such a limit must be a reasonable one. The power of a proposing organ to impose a time limit, if at all, must mean the imposition of a reasonable time limit. The argument that the proposing organ may withdraw a proposed amendment would seem to be premised on the condition that the proposing organ should wait until a reasonable time has passed before it attempts to do so. Otherwise, Member States would not have a reasonable opportunity to assess the propriety of the proposed amendment. An essential component of the desuetude argument is that an unreasonably long period of time has passed. Accordingly the determination of what constitutes a reasonable time, if applicable, is of importance. International law does not provide for an a, priori answer to this question of what constitutes a reasonable time, either in general or in particular with respect to the issues under discussion in this paper. The circumstances from which the question arises must inform its answer.103 With respect to the time period for ratification of a proposed amendment to the constitution of an international organization, the key is to find the right period of time which will permit sufficient deliberation on the proposal and which will not cause undue delay, taking into account the realities of international relations, in bringing the proposed amendment to life. If this can be ascertained, all other issues become unimportant from the perspective of policy considerations. On the other hand, if the period specified is too short, deliberation will suffer and more administrative inconveniences will result if attempts are made to resurrect a proposed amendment. If the period is too long, delay and uncertainty will plague the amendment process. It would seem that the answer to this question should be informed by two considerations. The first is the characteristics of the ratification process and the political and social conditions surrounding this process such as the number of the Member States that will participate in the ratification process, the nature of the ratification process under municipal law and the availability of technological facilities. There are some experiences and discussion on this issue. At the international level, in 1921 the League of Nations Committee on Amendments to the Covenant apparently believed two years would be reasonable.104 The League
103
104
Cf. Certain Phosphate Lands in Nauru , 1C] Reports 1992, 240 et seq., (253-255). League of Nations Committee, see note 15, 9.
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Assembly proposed to cut it to twenty-two months.105 The United Nations General Assembly urged all the members to ratify the first set of amendments within twenty-two months and it succeeded.106 Such a short time is probably insufficient. Egon Schwelb was of the opinion that the 1921 statesmen were overly optimistic.107 The League of Nations had little success in procuring ratifications within this time. He reported that it took three to five years to ratify even the minor amendments to the League Covenant, seven years to ratify the 1929 amendment to the Statute of the Permanent Court of International Justice, and twelve years to ratify the 1922 amendment to the Constitution of the ILO.108 Subsequent surveys of the experiences of international organizations painted the same picture.109 At the national level, the United States Supreme Court held in one case that the decision on how much time should be reasonable involves "an appraisal of a great variety of relevant conditions, political, social and economic" and should be left to the political branches of the government.110 In an earlier case, it held that seven years is a reasonable time for the ratification of a proposed amendment to the United States Constitution.111 This has been generally accepted, and Congress has provided for a seven-year time limit several times.112 An international ratification process is messier than that in the United States and could militate against adopting such a fixed limit of seven years. In sum, the consideration of the characteristics of the ratification process eliminates any illusion of arriving at a fixed time limit for all occasions. We can only hope that the relevant authorities may arrive at a reasonable time limit on a case-by-case basis. The second, and perhaps the more important, consideration is that the nature of the proposed amendment itself should be taken into account in order to arrive at what a reasonable time is for ratification. If a proposed amendment relates to a matter which has eternal value such as, for example, how to promote equality between the rich and the poor,
105 106 107 108
109 110
Letter from the Secretary-General, Annex 13, see note 18, 28. See notes 40-44 and the accompanying text. Schwelb, see note 4 (1954), 91; Saxena, see note 4, 172. Schwelb, ibid. See also note 3. See note 3. Coleman v. Miller, 307 U.S. 433, 453-454 (1939).
111
See Dillon v. Gloss, 256 U.S. 368, 376 (1921).
112
See U.S. Const., amds. XVIII, § 3; XX, § 6; XXI, § 3; XXII, § 2.
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then perhaps the Member States should have unlimited time to ratify it. For example, the 27th Amendment to the United States Constitution provides for a check on the self-interest of the members of Congress, a matter which, undoubtedly though unfortunately, has eternal value, and is certainly worth the 200 years' wait. With respect to such a proposed amendment, no time limit appears appropriate. If a proposed amendment relates to a situation that probably will exist for the next fifty years, then a period of several years may be reasonable. If a proposed amendment deals with an urgent situation, perhaps the time should be much shorter.113 Otherwise, the amendment process would be an exercise in futility. In short, there does not appear to be a prefixed "reasonable time", if applicable, for the ratification of a proposed amendment to the constitution of an international organization. What constitutes such a reasonable time should be decided upon two considerations: (1) the characteristics of the ratification process and the political and social conditions surrounding this process, and (2) the nature of the proposed amendment itself.
VII. Conclusions The preceding discussion has led me to the following conclusions: First, where the constitution of an international organization, properly interpreted, does not provide for a time limit for ratifying a proposed amendment, the practices of international organizations, scholarly opinion addressing this particular issue, general principles of international law that are not specific on this issue, and the teachings from the United States constitutional experience all militate against the argument for an implied time limit. Second, where the constitution of an international organization, properly interpreted, does not grant the proposal organ of that organization the power to set a time limit, it is difficult to argue that there is such an implied power. There is no solid evidence that any proposing organ has ever attempted to impose such a time limit. Nevertheless, it is reasonable to conclude that a proposing organ may place a time limit for ratifying a proposed amendment in its substantive text itself, leaving it
113
Cf. The British proposal for "urgent" amendments to the Fund Articles, described in text accompanying note 14.
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to the Member States to decide whether or not to approve it. This finds support in the amending power in general and in an analogy to the United States constitutional experience, and does no violence to the scheme of power distribution as laid down in the constitution of an international organization. Third, where the constitution of an international organization does not grant the proposing organ the power to withdraw a proposed amendment, it does not have such a power. There is no support for such a power in the practices of international organizations or general principles of international law. Nor does the United States constitutional experience lend any credence to the argument for such a power. The limited scholarly opinion to the contrary is ill founded. Fourth, a fundamental change of circumstances which renders a proposed amendment without object or renders impossible the performance of the obligations contemplated by the proposed amendment has the effect of mooting it. However, the mere passage of a long time does not have such an effect. The related doctrine of desuetude does not appear to apply to a proposed amendment. In any event, the state of desuetude has not been treated as sufficient to moot such a proposed amendment either in practice or by international law commentators. Furthermore, the constitutional experience of the United States also seems to reject the idea of desuetude. Finally, there does not appear to be a prefixed "reasonable time", if applicable, for the ratification of a proposed amendment to the constitution of an international organization. What constitutes such a reasonable time should be decided upon two considerations: (1) the characteristics of the ratification process and the political and social conditions surrounding this process, and (2) the nature of the proposed amendment itself.
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Advisory Opinions of the International Court of Justice on Questions Raised by Other International Tribunals Ttillio Treves
I. President SchwebePs Proposal of 26 October 1999 In his address to the United Nations General Assembly on 26 October 19991, Stephen Schwebel considered the much discussed subject of the "proliferation" of international courts and tribunals, concentrating on its consequences for the ICJ. President Schwebel maintained the balanced attitude taken in his address to the General Assembly in 19982
1
2
Available on the Court's website http://www.icj-cij.org This was Judge SchwebePs last address to the General Assembly as President of the ICJ. Available on the Court's website. In that speech President Schwebel had stated, in particular: "It is inevitable that other international tribunals will apply the law whose content has been influenced by the Court, and that the Court will apply the law as may be influenced by other international tribunals. At the same time, it is possible that various courts may arrive at different interpretations of the law. Proliferation risks conflict. But the risk should not be exaggerated. While in principle there is a single system of international law, in practice there are various views on issues of the law, and not only between international tribunals and among other authoritative interpreters of the law. There are differences within the International Court of Justice itself. This is marked not only by separate and dissenting opinions, but in adjustments of the holdings of the Court over the years. In practice international courts may be expected to demonstrate due respect 215
J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, 215-231. © 2000 Kluwer Law International. Printed in the Netherlands.
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stating, in particular, that: "A greater range of international legal fora is likely to mean that more disputes are submitted to international judicial settlement. The more international adjudication there is, the more there is likely to be; the "judicial habit" may stimulate healthy imitation". However, in President's Schwebel view , "in order to minimize such possibility as may occur of significant conflicting interpretations of international law, there might be virtue in enabling other international tribunals to request advisory opinions of the International Court of Justice on issues of international law that arise in cases before those tribunals that are of importance for the unity of international law". As regards the legal feasibility of this idea, President Schwebel states: "In respect of international tribunals that are organs of the United Nations, i.e. the international tribunals for the prosecution of war crimes in the former Yugoslavia and Rwanda, no jurisdictional problem in their requesting the Security Council to request advisory opinions on their behalf appears, should they wish to do so. The Security Council is authorized by the Charter to request the Court to give an advisory opinion "on any legal question"; and nothing in the Statutes of the war crimes tribunals debars them from asking the Security Council to exercise that authority on their behalf. Nor do the Administrative Tribunals of the United Nations system lack the competence to request the General Assembly or comparable organs of the Specialized Agencies to request opinions on their behalf. There is room for the argument that even international tribunals that are not United Nations organs, such as the International Tribunal for the Law of the Sea, or the International Criminal Court when established, might, if they so decide, request the General Assembly — perhaps through the medium of a special committee established for the purpose — to request advisory opinions of the Court." The proposal set out in the speech by President Schwebel, who had already discussed the topic in a learned paper of 19883, has a history be-
for the opinions of other international courts. The International Court of Justice looks forward to working harmoniously with other international tribunals. But the fabric of international law is, it is believed, resilient enough to sustain such occasional differences as may arise". S. Schwebel, "Preliminary Rulings by the International Court of Justice at the Instance of National Courts", Va. J. Int'l L. 28 (1988), 495 et seq., reprinted in: id., Justice in International Law, 1994, 84. On this essay, see S. Rosenne, "Preliminary Rulings by the International Court of Justice at the Instance of National Courts: a Reply", Va. J. Int'l L. 29 (1989), 401 et seq.
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hind it. What is new is the combination of the considerations supporting its legal feasibility with the context of the so-called "proliferation" of international courts and tribunals.
II. An Old Idea in a New Context The basic idea that a role could and should be entrusted to the Hague Court in order to safeguard the unity of international law, which divergent pronouncements of the variety of courts applying it may jeopardize, is not new. Already in 1905 Dionisio Anzilotti envisaged that domestic courts could suspend proceedings in order to submit incidental questions of international law to an international tribunal4 for a ruling. Hersch Lauterpacht put forward a similar idea in 1929 as regards the PCIJ5 and C. Wilfred Jenks came back to it in 19646. Both authors proposed that domestic courts, when encountering certain questions of international law, could submit them to the Hague Court. According to Lauterpacht this could be done through "a formal application emanating from the highest judicial authorities of the country and addressed to the Permanent Court". According to Jenks, who was concerned to ensure that the result could be obtained without amending the Statute of the Court, domestic courts could submit a question of international law to the Hague Court for an advisory opinion through a special committee to be set up by the General Assembly for the purpose. The model he had in mind were the advisory opinions requested in the proceedings
D. Anzilotti, // diritto internazionale nei giudizi intemi, 1905, 139 note 1, reprinted in: Anzilotti, Scritti di diritto internazionale pubblico, Vol. I, 1956, 281 et seq., (436, note 41). H. Lauterpacht, "Decisions of Municipal Courts as a Source of International Law", BYIL 10 (1929), 65 et seq., (94-95). Lauterpacht mentions the opinion of Anzilotti and a paper by W.R. Bisschop, "Immunity of State in Maritime Law", BYIL 3 (1922-23), 159 et seq., (166), (which was followed by another study of the same author "International Interpretation of National Case Law", BYIL 4 (1923-24), 131-137) which discusses a similar proposal made by Bisschop at a meeting of the Comite Maritime International held in London in 1922 on the question of immunity of State-owned ships. W.C. Jenks, The Prospects of International Adjudication, 1964,160-161.
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for review of decisions of the Administrative Tribunals of the United Nations and of the ILO7. The idea was further discussed in the seventies and early eighties, especially in the context of the United Nations and in the United States8. The House of Representatives supported it, in a form similar to that put forward by Jenks, in a resolution of 1982 urging the President to "explore the appropriateness" of the proposal9. As put forward by Hersch Lauterpacht and also, it would seem, by C. Wilfred Jenks, these proposals were motivated by the need to ensure the guidance of the World Court in light of the developing, and not always entirely satisfactory, case law of domestic courts on matters of international law. Concern for possible dangers for the unity of international law arising from decisions of international arbitral tribunals, or other international tribunals, such as the "mixed arbitral tribunals" or, more recently the European Court of Human Rights, were not at the forefront. As late as in 1988, the need to overcome the variable "knowledgeability of national courts about international law" and the possibility that in the judgements of these courts "national and parochial perspectives may come into play" were the main reasons put forward by Judge Schwebel to advocate the idea of preliminary rulings of the Hague Court on questions of international law10.
7
8
9
10
As regards the United Nations Administrative Tribunal, this possibility of requesting an advisory opinion of the International Court (introduced in 1955) has been abolished by A/Res/50/54 of 11 December 1995, see further S. Rosenne, The Law and Practice of the International Court, 1920—1996, 1997,1028-1038. H. Golsong, "Role and Functioning of the International Court of Justice", ZaoRV 31 (1971), 673 et seq., with a summary of the proposals made in the context of the United Nations; L. Gross, "The International Court of Justice: Consideration of Requirements for Enhancing its Role in the International Legal Order", AJIL 65 (1971), 253 et seq., (308-313); P. Szasz, "Enhancing the Advisory Competence of the World Court", in: L. Gross (ed.), The Future of the International Court of Justice, II, 1976, 499 et seq., (524531); L. Caflisch, "Reference Procedures and the International Court of Justice", in: id., 372 et seq.; L.B. Sohn, "Broadening the Advisory Jurisdiction of the International Court of Justice", AJIL 77 (1983), 124-129. H.R. Con. Res. 86, as revised, of 17 December 1982, quoted in Sohn, see above, 129, note 23. Schwebel, "Preliminary Rulings ...", see note 3, 499-500; in: Schwebel, Justice ..., see note 3, 87.
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The revival of the discussion during the seventies was probably encouraged by the success of the system of prejudicial questions which domestic courts of the Member States of the European Community may, or must, as the case may be, submit to the Court of Justice of the European Communities for a ruling on the interpretation of Community Treaties and subordinate legislation11. This revival of the discussion was, however, triggered by the fact that the Court had very few cases on its list. The proposal that the Hague Court would be entitled to play a role in the consideration of issues of international law brought before domestic courts was a part of the broader discussion on how to make the Court busier, a discussion from which came, in particular, the changes in the Rules of the Court aimed at encouraging states to submit cases to Chambers of the Court, and which, at least for some years, have enjoyed remarkable success. More recently the Court has been particularly busy12. The need for more cases does not seem to be as vital any more. The concern for obtaining the means necessary to cope swiftly enough with a growing list of cases is now at the forefront. This explains why proposals for entrusting to the Court a task in solving problems of international law arising before domestic courts have been almost forgotten. Current proposals — among which that put forward by President Schwebel in 1999 is probably the most elaborate — aim at granting the ICJ a position of supremacy as regards decisions on at least some questions of international law arising before other international tribunals. The idea of the ICJ as the "supreme court of the international community" has
11
12
Article 177 (now 234) of the Treaty of Rome establishing the European Economic Community. It is significant that, in discussing proposals for applying similar procedures to the ICJ, Gross, see note 8, 309-311, and Caflisch, see note 8, 577-588, devote detailed developments to this provision and the practice it originated. This point is made at the beginning of President Schwebel's speech of 26 October 1999. For a study of the reasons of the difficulties the Court encounters in dealing with an increased list of cases, and of the ways to remedy them, see the "Report of the Study Group (composed of Professors Bowett and Crawford and Sir Ian Sinclair and Sir Arthur Watts) established by the British Institute of International and Comparative Law as a Contribution to the UN Decade of International Law" , in: D. Bowett et al., The International Court of Justice, Process, Practice and Procedure, 1997, 27-84. For a short survey of the levels of activity of the Court since its establishment, I. Sinclair, "The Court as an Institution: Its Role and Position in International Society", in: Bowett, see above, 21 et seq., (22-3).
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been mentioned by one of its former Presidents, Sir Robert Jennings13. Its present President, Gilbert Guillaume, writing in 1995, envisaged the possibility of transposing to international law questions arising before international courts and tribunals, the mechanism set out in article 177 of the Treaty of Rome establishing the European Economic Community. He stated: "This would mean that, if any international court or international tribunal were to encounter serious difficulties in a question of public international law, and if it were to consider that a decision of that question was necessary to enable it to render judgment, the International Court could be requested to make a ruling"14.
III. Divergent Interpretations of International Law by Different International Tribunals The concern that the growing number of international tribunals may endanger the unity of international law would seem at least premature, in light of detailed studies of the decisions of international tribunals which differ from the ICJ15. To the contrary, references to the judgements of the ICJ, are not infrequent , for instance, in decisions of the Appellate Body of the World Trade Organization16, of the International 13
14
15
16
R. Jennings, "The International Court of Justice after Fifty Years", AJIL 89 (1995), 493 et seq., (504); reprinted in: The Collected Writings of Sir Robert Jennings, 1998, 588 et seq., (607). In his speech of 27 October 1998, quoted above at note 2, President Schwebel had remarked : "As domestic legal systems have a supreme court, the international community has its principal judicial organ. But the International Court of Justice is not, or at any rate is not now, a supreme court of appeal from other international judicial bodies, and still less a court of appeal from national courts". G.Guillaume, "The Future of International Judicial Institutions", ICLQ 44 (1995), 848 et seq., (862); and id., "La Cour international de Justice: quelques propositions concretes a Poccasion du cinquantenaire", RGDIP 100 (1996), 323 et seq., (332-333). See in particular J. Charney, "Is international law threatened by multiple international tribunals?" RdC 271 (1998), lOlet seq. See, for instance: Report of 5 January 1998 on EC measures concerning Meat and Meat Products (Hormones) Doc.WT/DS26/AB/R-WT/DS48/ AB/R, note 93, quoting the Judgement of the ICJ in the GabcikovoNagymaros Project case (ICJ Reports 1997, 4 et seq., (64 et seq., paras 111114 and page 74, para. 140)) to support the point made in para. 123 that "the precautionary principle, at least outside the field of international envi-
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Tribunal for the Law of the Sea17, and also of the Court of Justice of the European Communities18. In all such references these Courts and Tribunal rely on the authority of the ICJ. Of course, it is impossible to predict whether the possibility "of significant divergent interpretations of international law", to use President Schwebel's words, will in fact occur, leaving aside the discussion as to whether such development would be dangerous for international law19. What seems to have prompted the concern of the ICJ, or at least of those of its members, or former members, which have made public their views, are a few decisions of other international courts which have been perceived as overt challenges to the authority of the Court.
17
18
19
ronmental law, still awaits authoritative formulation"; and note 154 quoting two Judgements of the Court in support of the interpretative principle in dubio mitius followed in para. 165. And also: Report of 12 October 1998 on United States - Import Prohibition of Certain Shrimp and Shrimp Products AB-199 8-4, Doc. WT/DS58/AB/R (reprinted in:. ILM 38 (1999), 118 et seq.), note 109 quoting the ICJ Advisory Opinion in the Namibia case ICJ Reports 1971, 16 et seq., (31) and the ICJ Judgement in the Aegean Sea Continental Shelf case in ICJ Reports 1978, 3 et seq., to support the point made in para. 130 that the meaning of a term is "by definition evolutionary"; and note 136 quoting three Judgements of the ICJ in supporting the reference made in para. 158 to the principle of good faith. Judgement in The M/V "Saiga" (No. 2) case of 1 July 1999 (ILM 38 (1999), 1323): in para. 120 the Tribunal quotes the PCIJ Judgement on the Case concerning certain German interests in Polish Upper Silesia (PCIJ Ser. A, No. 7, 19) to support a point made as to the competence of the Tribunal to examine the domestic law of Guinea; in paras 133-134 the Tribunal refers to the ICJ Gabcikovo-Nagymaros Project Judgement (ICJ Reports 1997, 40^41) to support the position taken on the requirements of the defence of state of necessity; in para. 170 the Tribunal quotes the PCIJ Judgement on the Factory at Chorzow (merits) in PCIJ Ser. A, No. 17, 47, as an illustration of the general international law rule on reparation of damage resulting from an international wrongful act. In its Judgement of 16 June 1998, A Racke GmbH v. Hauptzollamt Mainz, ECR, 1998, I, 3655, at para. 50 the Court quotes the Gabcikovo-Nagymaros Project Judgement of the ICJ to support the point made that a fundamental change of circumstances may be invoked only in exceptional cases. On this aspect, also for further references, see T. Treves, Le controversie intemazionali, Nuove tendenze, nuovi tribunali, 1999, 59-67; and id., "Recent trends in the settlement of international disputes", in: Bancaja Euromediterranean Courses of International Law, I, 1997, 305 et seq., (431436).
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One such instance is the Loizidou case decided in 1995 by the European Court of Human Rights20. In this Judgement the Court examined a reservation by Turkey to its acceptance of the jurisdiction of the Court and of the European Commission of Human Rights. Such acceptance was based on arts 25 and 46 of the European Convention on Human Rights. These provisions, as stated in the Judgement, were "modelled on Article 36 of the Statute" of the ICJ21. The Strasbourg Court held that from the fact that restrictions are possible under article 36 of the Statute of the Hague Court "it does not follow that such restrictions to the acceptance of the jurisdiction of the Commission and Court must also be permissible under the Convention"22. The Court emphasized the different context in which the Hague and the Strasbourg courts operate23 and concluded that: "Such fundamental difference in the role and purpose of the respective tribunals, coupled with the existence of a practice of unconditional acceptance under Articles 25 and 46, provides a compelling basis for distinguishing Convention practice from that of the International Court"24. Consequently, the territorial restriction to Turkey's acceptance of the jurisdiction of the European Human Rights Commission and Court was considered invalid, even though a different conclusion would probably have been reached in the context of the Statute of the Hague Court25. In commenting this Judgement of the European Court of Human Rights, Sir Robert Jennings, former President of the Hague Court, stated: "I feel bound to say that I find this insistence on separateness disturbing; and wonder whether this is what the parties to the treaty intended when they took over the wording of the International Court of Justice Statute"26. This statement does not contend that this decision of the European Court of Human Rights is inconsistent with general
20
21 22 23 24 25 26
Loizidou v. Turkey (preliminary objections), Judgement of 23 February 1995, ILR 103 (1996), 622 et seq. Ibid., para. 83. Ibid., para. 83. Ibid., para. 84. Ibid., para. 85. Ibid., para. 89. R. Jennings, "The Judiciary, International and National, and the Development of International Law", in: Collected Writings, see note 13, 796 et seq., (802); (also in ILR 102 (1996), IX-XXIII, (XIV), and ICLQ 45 (1996), 1 et seq., (5-6).
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international law — a contention far from being beyond doubt27 in light of the rule according to which a treaty must be interpreted in context and "in the light of its object and purpose"28. What seems remarkable in it is the adjective "disturbing" and the reference to "insistence on separateness". In commenting on the Loizidou Judgement in a less formally published address made a few weeks after that Judgement was handed down by the Strasbourg Court, the same eminent author was even more explicit when he stressed that the above quoted passage of the Judgement "indicates the tendency of particular tribunals to regard themselves as different, as separate little empires which must as far as possible be augmented"29. A second instance is the Judgement of the Appeals Chamber of the International Tribunal for the Former Yugoslavia in the Tadic case, rendered on 15 July 1999, just three months before the address of President Schwebel to the United Nations General Assembly30. In this Judgement the Appeals Chamber had to determine whether the armed conflict in Bosnia and Herzegovina between the Bosnian Serbs of the Republika Srpska and the central authorities of Bosnia and Herzegovina could be classified as an international armed conflict after 19 May 1992, the day when the Yugoslav National Army withdrew from Bosnia and Herzegovina. The Appeals Chamber considered that in order to determine whether the armed forces of the Bosnian Serbs "belonged" to the Federal Republic of Yugoslavia, making the armed conflict international according to the terms of article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949, a "test of control" had to be applied31. The test of control established by the ICJ in the Nicaragua Judgement of 198632 for determining whether the United 27
Charney, see note 15, 160-163.
28
Vienna Convention on the Law of Treaties of 23 May 1969, article 31 para. 1.
29
R. Jennings, "The Proliferation of Adjudicatory Bodies: Dangers and Possible Answers", in: ASIL Bulletin No. 9, November 1995;the author mentions the Loizidou case as "the ideal case" to illustrate the danger of fragmentation of international law due to proliferation of international tribunals (ibidem). This paper is not included in the Collected Writings of Sir Robert Jennings quoted above at note 13.
30
Prosecutor v. Tadic, ILM 38 (1999), 1518 et seq.; Riv. Dir. Int. 82 (1999), 1072 et seq.
31
Ibid., para. 95 .
32
Case concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 14 et seq.
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States was responsible for the violations of international humanitarian law committed by the contras was considered as not persuasive by the Appeals Chamber33. According to the Appeals Chamber, such test required a control extending not only to the military or paramilitary group in general but also to the specific operation in the course of which breaches may have been committed. The Judgement of the Appeals Chamber comes to this conclusion, after interpreting the Hague Court's Judgement, which "admittedly ... did not always follow a straight line of reasoning" and stating that the Judgement made distinctions that "at first sight seem somewhat unclear"34. The criticism of the test of control accepted by the Court in the Nicaragua Judgement is developed arguing at length that "it may be held as unconvincing" in light of "the logic of the law of State responsibility"35 and of its being "at variance with judicial and State practice"36. There is no need for the purposes of this paper to express a view as to whether the criticism of the Nicaragua Judgement is well founded. It seems significant, however, to mention a reaction from an eminent Judge whose contribution to the work of the ICJ is well known. This reaction is demonstrated in the separate opinion of the presiding judge of the Appeals Chamber, Mohamed Shahabuddeen, a former member of the ICJ (although he was not in that position at the time of the Nicaragua Judgement)37. While agreeing with the general direction of the Judgement, Judge Shahabuddeen states: "I am unclear about the necessity to challenge Nicaragua ... I am not certain whether it is being said that that much debated case does not show that there was an international conflict in that case. I think it does, and that on this point it was both right and adequate"38. Later, after observing that "it may be that there is room for reviewing" the Nicaragua Judgement as regards "its holding on the subject of the responsibility of a state for the delictual acts of a foreign military force", he states: "I am not persuaded that it is necessary to set out on that inquiry for the purposes of this case, no issue being involved of state responsibility for another's breaches of international humanitarian law"39. 33 34 35 36 37 38 39
Tadic Judgement, see note 30, paras 115-145. Tadic Judgement quoted above, paras 108 and 114. Ibid, paras 116-123. Ibid., paras 124-145. ILM 38 (1999), 1611. Ibid., para. 5. Ibid., para. 20.
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It seems clear that Judge Shahabuddeen would have found it preferable that the Appeals Chamber had reached its conclusions without coming explicitly at odds with a Judgement of the ICJ, especially as, in his view, this was not necessary.
IV. Difficulties of a General Character Raised by the Proposal It is not essential to determine whether the proposal of President Schwebel was prompted by a few perhaps unpleasant, although not very far-reaching, challenges to the authority of the ICJ, or by the need to prevent further and more far-reaching "conflicting interpretations of international law". In light of the high authority of the proponent, it seems important to assess whether, in the form President Schwebel has introduced his ideas, they are realistic enough to overcome difficulties of a political and legal nature, or whether they must be seen as yet unripe proposals to be kept in mind should the need arise in the future. It would seem far from certain that, in the present circumstances, states share the perception of a need to avoid the possible "fragmentation" of international law by taking the step proposed by President Schwebel towards replacing the present haphazard co-existence of different international courts and tribunals with a hierarchically ordered "judicial system". It is a fact that all the existing courts and tribunals have been established by states and correspond to a need of these states. States establish courts and tribunals in most cases directly by treaty. As regards the ad hoc criminal Tribunals for the Former Yugoslavia and Rwanda, they have done so through a decision of the Security Council. Apart from the ad hoc criminal tribunals, all the others have specific constituencies. This is obvious as regards regional courts and tribunals, but it is also true as regards adjudicating bodies, such as the International Tribunal for the Law of the Sea and the future International Criminal Court, which have been conceived as universal, but which, in fact, are treaty bodies elected and financed only by the States parties to their constitutive instruments. There is wisdom in the distinction proposed by President Schwebel between courts and tribunals which are and those which are not organs of the United Nations. In fact, there is an important objection against President SchwebePs proposal which does not apply to the case of the tribunals that are organs of the United Nations, such as the above men-
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tioned ad hoc criminal Tribunals. This is the objection which States parties to the constitutive instruments of the relevant court or tribunal could raise against allowing states that are not parties to those instruments to play a role which may have relevant consequences for the decision of a pending dispute, be that as members of the Security Council, of the General Assembly or of a possible screening committee set up for filtering requests for advisory opinions. A similar objection might be raised by the States parties to the constitutive instrument of the relevant court or tribunal also against entrusting a role to the ICJ, as the composition of the Court corresponds to a constituency and to a mode of election different from those on which the composition of the court or tribunal before which the case is pending is based. Obviously, this kind of objection is inconceivable as regards the possibility of the ad hoc criminal Tribunals requesting the Security Council to request an advisory opinion of the ICJ. There is, however, an objection which applies both to the requests for advisory opinions originating from courts and tribunals that are and to those that are not organs of the United Nations. This objection may be raised in light of the fact that, in order to comply with Article 96 of the United Nations Charter, the request for an advisory opinion has to go through the Security Council or the General Assembly, or another authorized United Nations organ or Specialized Agency. In other words, the request would come before a political body. The intervention of a political body in a case pending before a court or tribunal may introduce elements which are not consonant with the decision of a case according to international law. A direct reference from a court or tribunal to the ICJ for an advisory opinion, or even for a ruling in the form of a prejudicial question, would avoid this objection, but would require amendments to the Statute of the Court. Such reference would, in any case, require also a provision to that effect in the instruments regulating the court or tribunal which could request the opinion of the ICJ. This aspect has been taken into consideration by the President of France, in addressing the ICJ during a visit on 29 February 2000. He stated: "...perhaps we should see to it that treaties containing dispute-settlement mechanisms ought to establish an explicit linkage to the Court. When treaties or conventions set up a new jurisdiction, would it not be desirable for that juris-
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diction to be able to refer questions to the Court for preliminary ruling, for guidance on points of law of general interest?"40
V. Specific Difficulties as Regards the International Tribunal for the Law of the Sea The above considerations apply in general to the courts or tribunals different from the ICJ. It seems interesting to add further observations as regards the specific problems arising for the possible application of President Schwebel's proposal to the ad hoc criminal Tribunals and to the International Tribunal for the Law of the Sea. They are the main examples of existing tribunals not having a regional or bilateral character being, in one case, and not being, in the other case, an organ of the United Nations. As regards the ad hoc criminal Tribunals, it certainly can be argued (and this seems to be the basis of President SchwebePs argument) that, as they have been established by a resolution of the Security Council, the same Security Council may, if requested by one of the Tribunals, request an advisory opinion of the ICJ on an issue of international law arising in a case before such Tribunal. One may agree that this would require no change to Article 96 of the Charter or to Article 65 of the Statute of the ICJ. The difficulty would seem to lie in that the proceedings for the purpose of which the advisory opinion would be requested are criminal proceedings in which the accused enjoys certain rights. In the proceedings for an advisory opinion before the Court (which would be incidental to the criminal proceedings before the ad hoc Tribunal) the position of the accused would be weaker that it is before the ad hoc criminal Tribunal. Differently from what would happen were the proceedings kept entirely within the ad hoc criminal Tribunal, the accused, unless Article 34 para. 1, of the Statute were suitably amended, would not be allowed to appear before the ICJ. He would thus not be allowed to present arguments in support of his views on the question of international law submitted for the consultative opinion, even though his personal freedom may ultimately depend on this question. Moreover, the possibility, given by Article 66 of the Statute to all states entitled to appear 40
Speech by President Chirac of 29 February 2000 available on the ICJ website quoted in note 1.
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before the Court, to present written and oral statements makes the position of the accused even weaker as he cannot reply to these statements. As regards the International Tribunal for the Law of the Sea, it must be emphasized that President Schwebel, in saying that "there is room for the argument" requesting the General Assembly "perhaps through the medium of a special committee established for the purpose" to request an advisory opinion to the Hague Court, addresses the question in a more hesitant manner than he does as regards Tribunals that are organs of the United Nations. Indeed, while this proposal might not require amendments to the Charter and Statute, it seems incompatible with the United Nations Convention on the Law of the Sea (with, perhaps, marginal exceptions) in each of the different cases in which the jurisdiction of the Tribunal may be established41. One may consider, first, the exercise by the International Tribunal for the Law of the Sea of compulsory jurisdiction in a contentious case. Such jurisdiction depends, under article 287 of the Law of the Sea Convention, on a declaration of choice of the Tribunal made by both parties to the dispute42. According to para. 4 of the said article, in this case the dispute may be submitted "only" to the Tribunal. It does not seem that the Tribunal would be within its powers under the Convention (or that an amendment of the Convention for that purpose would be compatible with the system of article 287) if it decided to request an opinion from the ICJ, a court excluded by the concordant choices of the parties
41
42
These cases are analyzed in T. Treves, "The Jurisdiction of the International Tribunal for the Law of the Sea", IJIL 37 (1997), 396 et seq. and id., Le controversie intemazionali etc., see note 19, 107 et seq. In the M/V "Saiga" (No. 2) case, the Tribunal's jurisdiction was based on article 287 in a peculiar way. The plaintiff State (Saint Vincent and the Grenadines) had brought the case before an arbitral tribunal. As neither the plaintiff nor the defendant State (Guinea) had made a declaration under article 287, compulsory jurisdiction belonged to an arbitral tribunal according to paras 3 and 4 of article 287. Since, however, the parties had agreed on 20 February 1998 (the 1998 Agreement) that the "dispute shall be deemed to have been submitted to the International Tribunal for the Law of the Sea" as from the date it had been submitted to the arbitral tribunal, the Tribunal considered that "the basis of its jurisdiction in this case was the 1998 Agreement, which transferred the dispute to the Tribunal, together with articles 286, 287 and 288 of the Convention" (Judgement of 1 July 1999, para. 43, see note 17).
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to the dispute, and which, had they so wished, they could have indicated as their preferred procedure43. Secondly, one may mention the cases in which the jurisdiction of the Tribunal is both compulsory and exclusive. These include proceedings for the prompt release of vessels44, proceedings for provisional measures pending the establishment of a competent arbitral tribunal45, and the various proceedings before the Sea-Bed Disputes Chamber46. The involvement of the ICJ, even for a consultative opinion would, in my view, be inconsistent with the Convention as in these cases the Convention has chosen the International Tribunal for the Law of the Sea to the exclusion of other courts and tribunals. As regards proceedings for prompt release of vessels and crews and for provisional measures, a request of a consultative opinion of the ICJ would also be hardly compatible with the urgency and expeditiousness which are essential characteristics of these proceedings. In proceedings before the Sea-Bed Disputes Chamber further difficulties might derive from the fact that in these proceedings physical and juridical persons may be parties, while they may not appear before the Hague Court. Thirdly, the jurisdiction of the Tribunal may be based on a special agreement of the parties. In this case it cannot be ruled out — although it seems highly unlikely — that the parties could authorize the Tribunal to request an advisory opinion of the Hague Court. Still, it might be questioned whether this would be wholly consistent with the rights of the other parties to the Law of the Sea Convention.
43
Some doubts might be raised about this conclusion if both States parties to the case before the Law of the Sea Tribunal have expressed their preference, under article 287 of the Law of the Sea Convention, for the ICJ together with the Tribunal. This is the case of Belgium, Finland, Italy and Oman.
44
Article 292 of the Convention. See the Judgements of the Tribunal of 4 December 1997 in the M/V "Saiga"(No. 1) case, reprinted in: ILM 37 (1998), 360 et seq. and in Max Planck UNYB 2 (1998), 429 et seq.; and of 7 February 2000 in the "Camouco" case (Panama v. France) available in the U.N. website http://www.un.org
45
Article 290 para. 5, of the Convention. See the Order of the Tribunal of 27 August 1999 in the Southern Bluefin Tuna cases (request for provisional measures, New Zealand v. Japan; and Australia v. Japan) reprinted in: ILM 38 (1999), 1624 et seq.
46
Article 187 of the Convention.
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VI. Conclusions Almost a century has elapsed since Anzilotti mentioned the idea of granting an international Court the power to make rulings on questions of international law submitted to it by domestic courts. Undoubtedly, there have been important changes since then. Now there is an International Court of general competence to which all states are parties, while, when Anzilotti wrote, the Permanent Court had yet to come. Now domestic courts are confronted much more often with questions of international law. Now many new international courts and tribunals, regional or specialized, have been established and produce a flow of judgements. In light of this, the idea can no longer be dismissed as a "flight of fancy" (un volo di fantasia) as Anzilotti did almost a century ago after having envisaged it as part of an imaginary situation47. It seems important that these kinds of proposals are made and continue to be discussed. It would be misleading to think that they are the mere product of competition between courts and tribunals or of a feeling of uneasiness of the ICJ. They are an appropriate subject for serious discussion in view of concerns which cannot be set aside lightly. The time for transforming these proposals into reality does not seem, however, to have come as yet. The present unstructured coexistence of international courts and tribunals is the product of the will of states. Divergent decisions seem, for the time being, very limited and hardly causing the fragmentation of international law. Even as regards the possible increase of divergent views between international tribunals in the future, there is room for arguing that the drawbacks of such situation would be more than offset by the advantages of the more vigorous growth of international law which the availability of an increased number of possibilities of adjudication could entail48. This makes it difficult to presume that states today would accept a general restructuring of international adjudication by which a hierarchically ordered judicial system replaced the present coexistence of uncoordinated sets of selfcontained systems49. 47 48 49
Anzilotti, see note 4. I have developed this argument in the writings quoted above at note 19. The speech of the President of France quoted above (note 40) seems, however, very significant. It probably is the first instance of attention paid by a Head of State to the problem of coherence of the international legal system. It is noteworthy that President Chirac sees this problem as arising not only
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Even proposals presented as not requiring radical changes, such as those put forward by President Schwebel, have their difficulties. They would require some amendments to existing treaties. Such amendments would not perhaps concern the Charter, but, at least as regards Courts and Tribunals that are not organs of the United Nations, they would concern their constitutive instruments. In the form proposed by President Schwebel, involving a request to the Security Council or the General Assembly to request an advisory opinion of the ICJ, the involvement of political bodies in the disposal of a concrete dispute pending before a court or a tribunal adds to the difficulty.
from the "proliferation" of dispute-settlement bodies but also from the proliferation of "institutions and treaties that has accompanied globalization, embracing an ever broader diversity of fields". In his view the consultative jurisdiction of the Hague Court could and should be utilized to reconcile conflict between the different "international laws" (les droits internationaux, in the original, not rendered clearly in the English translation) emerging in fields such as the environment, trade, and labour standards.
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Cooperation with the International Criminal Tribunal for the Former Yugoslavia in the Production of Evidence* Roland Bank I. II.
III.
IV.
V. VI.
*
Introduction State Sources of Evidence 1. Power to Issue Binding Orders to States for the Production of Documents a. Requirement to Seek Voluntary Cooperation First b. Right of the Addressee of a Binding Order to be Notified and Heard in Advance? c. Requirements as to the Content of a Binding Order 2. State Officials as Addressees 3. Sanctions for Non-Compliance 4. National Security Exception Private Individuals as Sources of Evidence 1. "Acting in Private Capacity" 2. Power to Issue Orders directly to Private Individuals rather than via States 3. National Security Exception International Organisations 1. International Military Forces a. Power to Issue Binding Orders b. National Security Concerns 2. UN Organs and Other International Organisations a. Power to Issue Binding Orders b. Exemptions from Obligations Employees and Delegates of the ICRC Concluding Remarks
I wish to thank my colleagues Vladimir Djeric and Andreas Zimmermann for their valuable comments on a draft of this article. 233
J.A. Frowein and R. Woljrum (eds.), Max Planck Yearbook of United Nations Law, 233-269. © 2000 Kluwer Law International. Printed in the Netherlands.
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I. Introduction The trials of Nuremberg and Tokyo were able to profit from the unconditional surrender of Germany and Japan after full military victory and the occupation of the territories by the allied powers which were also responsible for establishing the war crimes Tribunals. Consequently, these Tribunals had direct access to witnesses, documentary and real evidence. In contrast to that, the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (hereinafter: the Tribunal) is depending heavily on external cooperation with a view to carrying out investigations, arresting suspects and producing evidence in court. The Tribunal's practice provides a vivid picture of this dependence. The first years of the Tribunal's existence where dominated by the fear that the entire idea would remain an empty threat due to the absence of arrests and surrender of accused persons. These fears proved unfounded since a number of accused persons have been detained including high ranking politicians such as the Bosnian Serb Krajisnik. Such arrests have partly been carried out with the help of international military forces present in the territory of the former Yugoslavia and these forces have indeed demonstrated a growing commitment to contributing to the Tribunal's work. However, an unknown number of indicted persons including the notorious main culprits are still at large and this constitutes a permanent reminder of the Tribunal's dependence on external cooperation, in particular with the authorities of states.1 The same observation applies to investigations by the Office of the Prosecutor. The Tribunal's annual report regularly contains complaints by the Office about a lack of cooperation by states especially regarding on-site investigations.2 Moreover, as has been demonstrated by a review 1
2
For a discussion of the problem of arrest and surrender of accused persons cf., for instance, P. Gaeta, "Is NATO authorized or obliged to arrest persons indicted by the International Criminal Tribunal for the Former Yugoslavia?", EJIL 9 (1998), 174 et seq.; G. Sluiter, "To Cooperate or not to Cooperate?: The Case of the Failed Transfer of Ntakirutimana to the Rwanda Tribunal", LJIL 11 (1998), 383 et seq. This observation fully applies to proceedings concerning atrocities committed in Bosnia-Herzegovina and Croatia, but also in Kosovo before the deployment of KFOR. In particular, the Prosecutor was refused travel documents for an investigative mission to Kosovo in autumn 1998. The situation seems considerably better regarding crimes under the jurisdiction
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of domestic legislation implementing the Tribunal's Statute, the right of the Prosecutor to question suspects, victims and witnesses, to collect evidence and to carry out on-site investigations (article 18 para. 2 of the Statute) is not comprehensively honoured. Most states rather rely on the traditional system of judicial assistance afforded from one state to another instead of acknowledging the right of the Prosecutor to act independently.3 An important role for the collection of evidence is played by the international security presence of SFOR, for instance by providing assistance in exhumations projects or allowing the Office of the Prosecutor to search its databases (International Police Task Force). Regarding the collection of evidence in Kosovo, the situation is dramatically better due to the presence of KFOR and the cooperation with the United Nations Mission in Kosovo (UNMIK). Security Council Resolution 1244 (1999) of 10 June 1999 specifically demanded full cooperation by all concerned, including the international security presence, with the Tribunal, and the Secretary-General's first report on UNMIK reiterated that position.4 This article will concentrate on an analysis of the practice and the rules applying to the cooperation with the Tribunal in the production of evidence in the course of the trials. The powers of the Tribunal with a view to obtaining documents from states have been the subject of a landmark ruling by the Appeals Chamber in the Blaskic Case. Although the ruling originally was concerned with the Tribunal's powers to issue subpoena duces tecum it also addressed questions pertaining to the Tribunal's powers to summon witnesses (subpoena, ad testificandum) be it as private individuals or as public officials. The Judgement also draws on the limitations to the Tribunal's powers and respectively on states' obligations to cooperate, in particular with a view to security concerns. The principles established in the Blaskic Case have been further developed and elaborated in the subsequent practice of the Tribunal and therefore deserve a fresh look. Due to its fundamental importance, the
of the Tribunal committed in Kosovo since the practical access of the Prosecutor to on-site investigations is guaranteed by KFOR, cf. Cf. 1999 Annual Report of the ICTY, General Assembly, 54th Sess., Docs A/54/187, S/1998/846, para. 134. G. Hafner, "Limits to the Procedural Powers of the International Tribunal for the Former Yugoslavia", in: K. Wellens (ed.), International Law: Theory and Practice, 1998, 651 et seq., (666 et seq.). Cf. 1999 Annual Report of the ICTY, paras 134,137.
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Blaskic subpoena, decision will provide a starting point for analysis and be reviewed in the light of new developments. Moreover, new questions have arisen in the practice of the Tribunal regarding the cooperation by other international organisations or organs of the United Nations or the International Committee of the Red Cross. What are the powers of the Tribunal in this respect and how do they have to be related to legitimate concerns of the organisation in question to withhold information in the interest of its own mandate?
II. State Sources of Evidence The question of the Tribunal's powers with a view to evidence to be requested from states lay at the heart of a dispute about an order of subpoena duces tecum to the Republic of Croatia in the Case of Tihomir Blaskic. On 15 January 1997, pursuant to an ex pane request by the Prosecution, Judge McDonald issued subpoenae duces tecum to Croatia and its Defence Minister, Mr. Susak.5 The subpoena to Croatia requested for Blaskic's notes and writings sent to the Croatian Minister of Defence and the Ministry of Defence of the Croatian Community Herceg Bosna, all military and other orders, communications and directives somehow attributed to or received by Blaskic, communications between the Croatian Ministry of Defence and representatives of Herceg Bosna, files on national investigations into the attack on and the killing of civilians in Ahmici and other villages in the Lasva Valley, records of the Croatian Ministry of Defence on the provision or supply of military material and personnel to the Bosnian Croat Forces.6 The Republic of Croatia contested the Tribunal's power to issue subpoenas duces tecum claiming that first, Croatia as a sovereign state cannot be ordered to perform a particular act, in particular not under the threat of sanctions; second, Croatia had discretion in choosing the means with a view to fulfilment of international obligations; and third, Croatia could withhold information on grounds of national security. Although Croatia provided some of the requested documents it chalAnother subpoena, was issued to Bosnia and Herzegovina and the Custodian of the Records of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna. This order was accepted by the Bosnian government. See Prosecutor v. Tihomir Blaskic, Decision by Judge McDonald of 15 January 1997.
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lenged the authority of the Tribunal to issue the full subpoena. The matter was referred to the Tribunal's Trial Chamber II which — after having considered a number of amicus curiae briefs7 — upheld and reinstated the subpoena duces tecum on 18 July 1997.8 The Republic of Croatia then sought review by the Appeals Chamber which on 2 October 1997 reversed in part and affirmed in part9 the decision of the Trial Chamber again after having discussed a number of briefs by the parties, amid, and several governments.10
7
8
9
10
See, for instance, Investigating Powers of the International Criminal Tribunal for the Former Yugoslavia vis-a-vis States and High Government Officials, Amicus Curiae Brief submitted by the Max Planck Institute for Comparative Public Law and International Law to the International Criminal Tribunal for the Former Yugoslavia in the Case of The Prosecutor v. Tihomir Blaskic by JA. Frowein/G. Nolte/K. Oellers-Frahm/A. Zimmermann, Max Planck UNYB 1 (1997), 349 et seq. Prosecutor v. Tihomir Blaskic, Decision on the Objection of the Republic of Croatia to the Issuance of subpoena duces tecum, Case No. I-95-14-PT, Trial Chamber II, 18 July 1997 (hereinafter: Blaskic subpoena Trial Chamber Decision). Prosecutor v. Tihomir Blaskic, Judgement on the Request of the Rebublic of Croatia for the Review of the Decision of the Trial Camber II of 18 July 1997, Appeals Chamber Judgement of 2 October 1997, Case No. IT-95-14AR108 bis, A (hereinafter: Blaskic subpoena Appeals Chamber Judgement). The Judgement has attracted broad attention in the literature, cf. for instance R. Wedgwood, "International Criminal Tribunals and State Sources of Proof: The Case of Tihomir Blaskic", LJIL 11 (1998), 635 et seq.; D. Sarooshi, "The Powers of the United Nations International Criminal Tribunals", Max Planck UNYB 2 (1998), 141 et seq.; J.A. Carrillo Salcedo, "The inherent powers of the International Criminal Tribunal for the former Yugoslavia to issue "subpoena duces tecum" to a sovereign State", in: R.-J. Dupuy (ed.), Melanges en I'honneur de Nicolas Valticos, 1999, 269 et seq.; P. Malanczuk, "The International Criminal Tribunal's power to issue subpoena duces tecum", in: E. Denters (ed.), Reflections on International Law from the Low Countries in Honour of Paul de Waart, 1998, 260 et seq. The disposition of the Appeals Chamber expressly quashes the subpoena decision: "(...) the Appeals Chamber: (...) (5) Unanimously decides to quash the subpoena duces tecum issued by Judge McDonald and reinstated by Trial Chamber II (...)". However, at the same time, the Appeals Chamber hints at the fact that the Prosecutor may submit a request for a binding order addressed to Croatia alone, cf. Blaskic subpoena Appeals Chamber Judgement, III. It therefore seems justified to say that the previous decision of the Trial Chamber was affirmed in part.
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To put the whole matter in a nutshell, the Appeals Chamber ruled that the Tribunal is empowered to issue binding orders to states and individuals acting in a private capacity but not to state officials, and that states may not withhold evidence on the claim of national security interests although a Trial Chamber may make arrangements for respecting legitimate and bona fide concerns of states. Regarding the sanctions for non-compliance, the Appeals Chamber ruled that orders can be enforced by the threat of penalty only against individuals acting in their private capacity but not against states. Since then, the Tribunal has the opportunity to address questions of interpretation of the Appeals Chamber's Blaskic subpoena Judgement on different occasions. As will be shown it has adopted a rather flexible approach, often favourable to the exigencies of the trial instead of emphasising the viewpoint of national sovereignty.
1. Power to Issue Binding Orders to States for the Production of Documents According to the decision of the Appeals Chamber, the Tribunal has the power to issue binding orders to states under article 29 of the Statute.11 By virtue of that provision all Member States of the United Nations are under an obligation to lend cooperation and judicial assistance to the Tribunal. This conclusion is based on the clear wording of article 29 of the Statute. The binding force is derived from the provisions of Chapter VII and Article 25 of the United Nations Charter and from Security Council Resolution 827 (1993) of 25 May 1993 adopted pursuant to those provisions.12 The power to issue binding orders has been made subject to certain requirements by the Appeals Chamber. In the following paragraphs, these requirements will be reviewed in the light of the Tribunal's more recent practice.
11
12
Member States of the United Nations are directly bound by the Statute, non-Member States may expressly acccept in writing the obligation of Article 29 UN Charter, as was done by Switzerland. Blaskic subpoena Appeals Chamber Judgement, paras 26 et seq. In this context, the Appeals Chamber also emphasises that its primacy jurisdiction under article 9 para. 2 of the Statute may not only be exercised vis-a-vis the states of the former Yugoslavia but extends to any state, cf. ibid., para. 29.
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a. Requirement to Seek Voluntary Cooperation First In considering the Prosecutor's contentions on a distinction between cooperative and mandatory compliance with states' obligations under article 29 of the Statute, the Appeals Chamber emphasises that voluntary cooperation should be sought by the prosecution or the defence before applying for a binding order. Although this could be regarded as a procedural precondition for the issuing of a binding order by the Tribunal, it is not clearly formulated as a legal requirement but as a matter of "sound policy" in the Judgement: "It is therefore to be regarded as sound policy for the Prosecutor, as well as defence counsel, first to seek, through cooperative means, the assistance of States, and only if they decline to lend support, then to request a Judge or a Trial Chamber to have recourse to the mandatory action provided for in Article 29."13 The Tribunal's practice since then is not consistent. In some cases, the practice clearly points in the direction of an interpretation as a legal requirement. An application for a binding order to the Republika Srpska for the production of documents was partly rejected by Judge Jorda in the Krstic Case since the Prosecution had not first requested the voluntary production of certain documents.14 The same reasoning was applied in the case of Delalic and others when the defence requested to issue an order to a government which had not first been addressed for voluntary cooperation.15 A factor taken into account by the Tribunal in assessing the requirement to seek voluntary cooperation first is the general performance of the state concerned in cooperating with the Tribunal. This was made clear by the Trial Chamber in a ruling on a request by the defence
13 14
15
Ibid., para. 31. Cf. Prosecutor v. Radislav Krstic, Case No. IT-98-33-PT, "Binding Order to the Republika Srpska for the Production of Documents", Judge Jorda, Presiding Judge of Trial Chamber I of 12 March 1999, summary published under http://www.un.org/icty/Supplement/supp3-e/krstic.htm Prosecutor v. Zejnil Delalic, Zdravko Mucic also known as "Pavo", Hazim Delic, Esad Landzo also known as "Zenga", Decision on the alternative request for renewed consideration of Delalic's motion for an adjournement until 22 June or request for issue of subpoenas to individuals and requests for assistance to the government of Bosnia and Herzegovina, Trial Chamber, Decision of 22 June 1998, para. 52.
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for issuing an order to the Government of Bosnia and Herzegovina for assistance in the case of Delalic and others: "The Government of Bosnia and Herzegovina has officially indicated its willingness and readiness to co-operate with the International Tribunal in the service of process and has in some cases practically demonstrated its willingness to do so. The Motion has not shown any previous efforts made by Counsel to seek assistance from the Government of Bosnia and Herzegovina that has been refused, or that there has been inordinate delay in answering a request already made. The Trial Chamber does not consider it ripe in this circumstance to issue an order to a sovereign Government which is known to be willing to co-operate without such an order."16 This ruling does not take a stance on the consequences of a poor record of cooperation. Two interpretations are possible: one is that in cases of consistently poor cooperation the requirement to seek voluntary cooperation first does not apply; the other is that the negative record of performance would only be taken into account in assessing whether an attempt to obtain documents etc. through voluntary cooperation has failed. In that regard, a clear line has yet to be established. The second alternative of interpretation suggested above points to another question. If there was an attempt on part of the Prosecutor or defence to obtain documents through voluntary cooperation, criteria are required in order to assess whether the attempt has failed. Such criteria should leave states willing to cooperate voluntarily sufficient time for producing the requested documents. On the other hand, it is essential that states are not allowed to misuse the requirement to seek voluntary cooperation first and protract proceedings by merely paying lipservice to their readiness for cooperation. These considerations obviously underpin the reasoning of Judge Jorda in the Krstic Case when he ordered a binding order for the production of certain documents which had been requested despite the declared willingness of the authorities concerned to deliver them voluntarily. In particular, he took into account the lengthy period of correspondence between the prosecution and the state concerned without tangible results which led to the conclusion that voluntary cooperation had been sought unsuccessfully.17 Whereas all the examples referred to above seem to give considerable weight to the view that the requirement to seek voluntary cooperation 16
Ibid.
17
Prosecutor v. Krstic, Binding Order to the Republika Srpska for the Production of Documents of 12 March 1999.
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first is mandatory in principle, there are also examples where this criterion has been completely ignored. In particular, in orders to Croatia and to Bosnia and Herzegovina for the production of documents in the Case of Kordic and (Jerkez, the question of previous attempts to obtain the documents by voluntary cooperation has not been taken into consideration as one of the "mandatory and cumulative" conditions for a binding order by the Trial Chamber in issuing the orders to both states18 or the Appeals Chamber when reviewing the order issued to Croatia.19 Summing up, the requirement examined here seems to be used in a flexible way. It seems that it is used as a criterion taken into account by the Tribunal when exercising discretion whether or not to issue a binding order rather than as a legal condition. This seems sensible since it is a matter varying from case to case whether asking for voluntary cooperation first increases the chances of obtaining the evidence needed for the conduct of the trial. b. Right of the Addressee of a Binding Order to be Notified and Heard in Advance? A possible requirement for issuing a binding order which was not mentioned in the Blaskic subpoena decisions was raised in the Kordic and Cerkez Case. Croatia sought review on the ground that it had not been heard prior to the issuance of the binding order to produce certain documents. The Appeals Chamber agreed that according to the principles of due process a state not party to the proceedings but addressed by an order is entitled to be "heard at a meaningful time and in a meaningful manner" but ruled that the opportunity to seek review of the order by the Appeals Chamber under Rule 108 bis was sufficient for that purpose. Stressing that the issuance of a binding order does not constitute a finding of a violation of the addressed state's obligations under article 29 of the Statute, the Appeals Chamber stated that the ex parte nature of the request excluded the claimed right to a prior hearing. 18
19
Prosecutor v. Dario Kordic and Mario Cerkez, Order to the Federation of Bosnia and Herzegovina for the Production of Documents, Trial Chamber Order of 4 Febuary 1999; Order to the Republic of Croatia for the Production of Documents, Trial Chamber Order of 4 Febuary 1999. Prosecutor v. Dario Kordic and Mario Cerkez, Decision on the Request of the Republic of Croatia for Review of a Binding Order, Appeals Chamber, Decision of 9 September 1999.
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However, conditions for submitting a request ex parte are set out quite vaguely: it is said that such orders may become necessary "whenever cooperation is found to be inadequate for the purpose of obtaining such documents as are required for the conduct of a trial".20 The decision adds to the impression that the Tribunal exercises broad discretion in issuing orders. Moreover, had the requirement to seek voluntary cooperation first, as has been discussed above, been a strict legal requirement rather than a factor taken into account when exercising discretion, this may have implied the right to a hearing prior to the issuance of an order. c. Requirements as to the Content of a Binding Order The Appeals Chamber enumerated in the subpoena Judgement in the Blaskic Case four criteria which must be fulfilled: the order must - identify specific documents and not broad categories; - set out the relevance of such documents to the trial; - not be unduly onerous; and - give the state sufficient time for compliance.21 A first reading of the requirements as set out in the above mentioned Judgement may have suggested that the power to issue binding orders to states for the production of documents was significantly limited. However, a restrictive interpretation which is protective of state's interests has been ruled out by the Appeals Chamber in a decision on the request of Croatia for review of a binding order in the Kordic and Cerkez Case. The most problematic issue is that of specificity of the documents requested. While it is clear — as the Trial Chamber has pointed out — that an order must not be issued for a mere "fishing expedition"22 it is also evident that it may sometimes be difficult to specify a certain document by providing data such as an exact title, date and author. This problem has been acknowledged by the Appeals Chamber in the Blaskic subpoena Judgement by allowing to omit such details if the requesting
20 21 22
Ibid., para. 17 et seq. Blaskic subpoena Appeals Chamber Judgement, para. 32. Blaskic subpoena Trial Chamber Decision, para. 99.
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party is acting bona fide, has no means of providing them, and provides an identification of specific documents "in some appropriate manner".23 The wording of this requirement in the Appeals Chamber's Judgement leaves room for interpretation and subsequently has given rise to a dispute over its interpretation. In particular, it was a matter for discussion whether a request can be made for the production of documents which are only identified by category. The Blaskic subpoena Judgement could have been read as to restrict the possibilities for requesting documents which are not identified by title, date and author to very exceptional cases: it requires an explanation by the requesting party for the omission and states that documents requested must be limited in number.24 However, the Appeals Chamber adopted a teleological interpretation in a review decision in the Kordic and Cerkez Case which emphasises the functioning of the Tribunal rather than the limitations of states' obligations. According to this decision the purpose of the specificity requirement is to "allow a State, in complying with its obligation to assist the Tribunal in the collection of evidence, to be able to identify the requested documents for the purpose of turning them over to the requesting party."25 On this basis, the Appeals Chamber concludes that only the use of broad categories is prohibited but not the use of categories as such.26 However, a requested category has to be "defined with sufficient clarity to enable ready identification".27 In the absence of criteria of what constitutes the borderline between a "broad category" and a, category enabling "ready identification" the decision opens wide discretion for the Tribunal. Moreover, it shifts the burden of identifying the individual documents to the state addressed by the order, whereas the requesting party only has to submit the criteria for identification. According to the second criterion, the relevance of the requested documents for the trial must be set out in the request. The decision on whether a requested document is indeed relevant or not falls squarely to the discretion of the Trial Chamber according to the Appeals Chamber's decision in the Kordic and Cerkez Case. The requested state does not
23 24 25
26 27
Blaskic subpoena Appeals Chamber Judgement, para. 32. Ibid. Kordic and Cerkez, Appeals Chamber Decision on Croatia's request for review of a binding order, para. 38. Ibid. Ibid., para. 39.
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even have locus standi to challenge the relevance of the documents by way of appeal against a respective order.28 Regarding the question as to what is to be understood by the third requirement that a request not be unduly onerous, the Appeals Chamber's subpoena Judgement in the Blaskic Case seemed to indicate that the volume of documents requested was limited by saying that "a party cannot request hundreds of documents".29 However, in the review decision in the Kordic and Cerkez Case the Appeals Chamber expressly recognised that — contrary to the wording of the Blaskic subpoena Judgement — a request involving the production of hundreds of documents was not ruled out by this criterion. The Appeals Chamber underlined that the criterion aims at striking a balance between the need for the Tribunal to obtain the cooperation of states in the collection of evidence and the need to ensure that state's obligations in this respect do not turn out to be "unfairly burdensome".30 That means that the question is not whether the request implies an onerous task or not but whether the task is unduly onerous, "taking into account mainly whether the difficulty of producing the evidence is, not disproportionate to the extent that process is, strictly justified by the exigencies of the trial".31 Consequently, the Tribunal has to weigh the burden to be imposed on a state against the potential importance of the evidence for the trial. Given the seriousness of the crimes in question and the potential severity of sentences it is difficult to imagine any situation in which the proportionality test would tilt in favour of relieving the state of its burdens if the evidence may be crucial for proving either the guilt or innocence of the accused. In the case of evidence relevant for the innocence of the accused this is all the more evident in view of the exigencies of the fair trial principle. Moreover, having in mind the requirement to specify the documents by concrete criteria the burden imposed on the state cannot stem from comprehensive and circumstantial research required for the identification of the documents. Therefore, the criterion that the task be not unduly onerous may only come into play where a bigger number of documents with small evidential value has been requested.
28 29 30
31
Ibid., para. 40. Blaskic subpoena Appeals Chamber Judgement, para. 32. Kordic and Cerkez, Appeals Chamber Decision on Croatia's request for review of a binding order, para. 41. Ibid.
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Finally, the fourth criterion includes the possibility of deadlines delimiting the time sufficient for compliance with an order. Whether or not to set a deadline was left to the discretion of the Trial Chamber. Before a deadline was set, a hearing of the requested state seemed to be mandatory according to the wording of the Blaskic subpoena Judgement.32 After the Tribunal had ruled out the general requirement of a hearing prior to the issuance of a binding order in the Kordic and Cerkez Case33 it came as no surprise that it also allowed the setting of a deadline without a prior consultation of the state concerned at least in a case of an ex parte request; the state concerned may still submit a request for review (Rule 108 bis) in order to obtain an extension of time for compliance.34
2. State Officials as Addressees The Appeals Chamber in the Blaskic Case ruled that both under customary international law and its own Statute, the Tribunal is not empowered to issue binding orders to state officials and that therefore it was not possible to address an order directly to the Croatian Minister of Defence. The basic observation underpinning this conclusion is that the Tribunal does not constitute the judicial branch of a state but an international court in a community of sovereign states and therefore does not necessarily possess the same powers as national courts with a view to the organs of their state. Under customary international law, the internal organisation and the designation of individuals acting as state organs is left to the discretion of each state. Exceptions from sovereign equality of all states are limited to infringements of international criminal law.35 As a result, in fulfilling their obligations under article 29 of the Tribunal's Statute, specified by an order of the Tribunal states have the choice in identifying the personnel responsible for its fulfilment.36 In principle, this conclusion applies to all kinds of state officials whose 32
33 34
35 36
Blaskic subpoena Appeals Chamber Judgement, para. 32: "Reasonable and workable deadlines could be set by the Trial Chamber after consulting the . requested State." See above, Il.l.b. Kordic and Cerkez, Appeals Chamber Decision on Croatia's request for review of a binding order, para. 43. Blaskic subpoena Appeals Chamber Judgement, para. 41. Ibid., para. 43.
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testimony on their performance of official functions may be required, be they document custodians required for testifying on issues pertaining to the accurateness or completeness of certain documents or be they eyewitnesses.37 The Appeals Chamber's approach has been attacked with the argument that the "act of State" rule underpinning this result would not apply in international humanitarian law as is demonstrated by the criminal responsibility of individuals for violations of humanitarian law irrespective of the "act of State" nature of their deeds.38 However, the conclusion from an individual criminal responsibility for atrocities violating international humanitarian law to the assumption of a responsibility of state officials to testify is not compelling. While there is a rule compelling individual state officials not to commit war crimes there is no such rule compelling individual state officials to testify. It has to be admitted though that to allow states to choose whom they may wish to appoint for testifying on document related issues may have negative practical repercussions on the quality of evidence.39 However, even if the Tribunal in principle allows states to choose the person to be sent to the Tribunal as a witness, it must be emphasised that this does not provide states with unlimited discretion. States cannot fulfil their obligations to cooperate with the Tribunal in such cases by sending someone who is incompetent for testifying about the documents in question. The choice can only be limited to such persons who have a certain knowledge about the documents and the way they have been collected and kept. This observation is even more evident if the Tribunal needs a public official as an eyewitness. For instance, in the Appeals Chamber's notorious example of the colonel who upon exercising his monitoring functions overhears a general issuing order infringing international humanitarian law, how should the state ordered to cooperate with the Tribunal through sending a witness for this event fulfil its duties in any other way than by sending the colonel as a witness? The main problem of the Appeals Chamber's conclusion that no orders may be issued to state officials therefore rather pertains to the question of sanctions for non-compliance. As will be seen, powers to impose sanctions only extend to individuals, not to states. 37
38 39
Although the category of eyewitnesses was not at issue in the Blaskic Case the Appeals Chamber pronounced itself on it. Ibid., para. 50. Wedgwood, see note 9, 650. Ibid.
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3. Sanctions for Non-Compliance According to the Appeals Chamber in the subpoena Judgement in the Blaskic Case, the Tribunal is not vested with any enforcement or sanctionary powers vis-a-vis states. The central argument is that the Statute would contain express provisions had the drafters of the Statute intended to vest it with such enforcement powers.40 An inherent power of the Tribunal to such an end was therefore rejected. The powers of the Tribunals remain limited to establishing whether a state has breached its international obligation to cooperate with the Tribunal and reporting the matter to the Security Council (Rule 7 bis] without, however, making any recommendations or suggestions as to possible measures to be adopted.41 In its practice, acting through its President, the Tribunal has addressed the Security Council with notifications about non-compliance on several occasions.42 The Security Council has adopted one resolution specifically dealing with the continued failure to comply with obligations for cooperation on part of the Federal Republic of Yugoslavia.43 As was reported in an annual report of the Tribunal, neither this nor any of the statements by the President of the Security Council or the Peace Implementation Council acting under the Dayton Agreement have led to any concrete improvement in the performance of the state addressed.
4. National Security Exception Documents or witness statements requested by the Tribunal may impinge on legitimate national security concerns. On the other hand, allowing states to withhold information for national security reasons may open sweeping opportunities for refusing cooperation with the Tribunal. After Croatia had raised national security concerns as a justification for the non-disclosure of documents the question had to be addressed in the Blaskic Case.
40 41 42 43
Blaskic subpoena Appeals Chamber Judgement, para. 25. Ibid., paras 33-36. Cf. 1999 Annual Report of the ICTY, paras 90-106. S/RES/1207 (1998) of 17 November 1998.
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The central result of the Appeals Chamber's ruling in its subpoena Judgement is that national security concerns in principle may not relieve the state addressed by a binding order of the Tribunal from the obligation for cooperation under article 29 of the Statute. Therefore, documents requested by the Tribunal through a binding order must be submitted in due course. Moreover, the Tribunal will always have the last say whether a document will not be used in the proceedings on grounds of national security. On the other hand, the Appeals Chamber recognised the possibility of special arrangements in order to deal with legitimate security concerns. Accordingly, a state raising security concerns may submit documents to scrutiny by one judge44 of the Trial Chamber in camera who will then decide whether the documents submitted will be used in the trial proceedings despite the security concerns. The judge in question may return documents to the state if he or she considers them irrelevant to the proceedings or the document's relevance to be "outweighed (...) by the need to safeguard national security concerns".45 Although this has not been said by the Tribunal, it is clear that the judge will have to take into account the degree of secrecy of the respective information when assessing national security concerns: if certain information is known to a sufficient number of private individuals national security concerns do not apply anymore.46 In order to balance the exigencies of the trial with states' interests of national security, the Appeals Chamber hinted at the possibility that states may be allowed to edit parts of other documents in case of legitimate security concerns, for instance, by blacking out certain parts. Such editing requires an explanation by the state in an affidavit.47 The Judgement allows for exceptions from the principle that documents have to be submitted to scrutiny for claimed security reasons if 44
45 46
47
This possibility is objected to by Judge Karibi-Whyte who argues that the Trial Chamber is the only body vested with jurisdiction and therefore "every issue constitutive of the ultimate decision in the trial of a matter before it must involve the participation of all the members of the Trial Chamber." Blaskic subpoena Appeals Chamber Judgement, Separate Opinion of Judge Adolphus G. Karibi-Whyte, para. 14. Blaskic subpoena Appeals Chamber Judgement, para. 68. This was also the line of argument of the European Court of Human Rights when assessing security concerns in the Spycatcher Case, Observer and Guardian Newspapers v. UK, Series A 216 (1992), para. 69. Blaskic subpoena Appeals Chamber Judgement, para. 68.
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the security concerns are highly delicate and at the same time the documents in question are "of scant relevance to the trial proceedings".48 In this case, the state may instead submit a signed affidavit by the responsible minister comprising a detailed reasoning for the failure to submit the documents, in particular, with regard to the claimed irrelevance and security concerns. If the judge is not convinced of the validity of the states reasons, a judicial finding of non-compliance may be made by the Trial Chamber. The possibility to claim that a document is of "scant relevance" to the proceedings introduces an opportunity for states to withhold documents which stands in clear contradiction to the general outline of proceedings. The question whether a document is of relevance to the proceedings or not has already been examined by the Trial Chamber when issuing the order. As has been outlined above, the Appeals Chamber has emphasised in a later case that the question of relevance of documents falls into the full discretion of the Trial Chamber and the state subjected to an order cannot challenge the order on this ground.49 It is not quite clear whether the national security exemption allowing states to withhold documents of allegedly "scant relevance" would still apply after this clear statement that the sole competence for assessing the relevance of a document rests with the Tribunal. If it still does, the only possible interpretation would be to shift the emphasis of the state's argument to the delicacy of the documents which then would have to be weighed by the Trial Chamber against the relevance of the respective documents for the trial when deciding on a finding of non-compliance. However, it is clear that it will be difficult for the Trial Chamber to reassess its findings on the relevance of a document when issuing the order without having seen the documents. All these considerations demonstrate that it is very problematic to allow that states may withhold documents under certain circumstances since it deprives the Tribunal of the power to verify the legitimacy of the concerns and to properly balance the interests. Moreover, since the screening procedure suggested in the Blaskic subpoena, Judgement provides the opportunity to respect state security interests, it is highly doubtful whether it was necessary at all to allow for any possibility for states to withhold documents. When scrutinising the documents and evaluating the bona, fide character of the alleged security concerns the judge will take into account 48 49
Ibid. Kordic and Cerkez, Appeals Chamber Decision on Croatia's request for review of a binding order, para. 38.
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the general performance of the respective state in cooperating with the Tribunal.50 This remark of the Appeals Chamber suggests that the Tribunal will assess the claims for security concerns made by states with a generally positive record of cooperation more generously than those of a state with a record of reluctance. Such an interpretation could go as far as to enable states to enter into a trade-off on certain acts of clear cooperation in exchange for a respect for alleged security concerns regarding another request.51 The character of the deliberations of the Appeals Chamber on proceedings for scrutinising national security claims as practical suggestions rather than binding rules is reflected in the more recent practice of the Trial Chamber in the Blaskic Case. After Croatia had reacted to an order for the production of documents with the claim that it was unable to produce certain documents for national security reasons the Trial Chamber did not insist on the procedure suggested by the Appeals Chamber which would have meant either to screen submitted documents or to decide on the basis of an affidavit. Instead, in accordance with a proposal on part of Croatia, the Trial Chamber ordered that a high-ranking military officer nominated by Croatia be heard as a witness on the reasons for withholding documents on national security grounds in an ex parte hearing by the full Trial Chamber. Moreover, it allowed for a qualified representative of Croatia to be present at the hearing and make a statement. The hearing was to be closed to the public at the request of the witness or Croatia's representative.52 When in the same case another military officer was allowed by an order to appear as a witness on the security considerations in an ex parte hearing, the Trial Chamber specified that the hearing would be closed only on request of the parties. As regards the ex parte character of the hearing, the Prosecutor was allowed to be present at least until her ar-
50
51 52
"The degree of bona fide cooperation and assistance lent by the relevant State to the International Tribunal, as well as the general attitude of the State vis-a-vis the International Tribunal (whether it is opposed to the fulfilment of its functions or instead consistently supports and assists the International Tribunal), are no doubt factors the International Tribunal may wish to take into account throughout the whole process of scrutinising the documents which allegedly raise security concerns." Blaskic subpoena Appeals Chamber Judgement, para. 68. Wedgwood, see note 9, 646. The Prosecutor v. Tihomir Blaskic, Trial Chamber, Order for a Witness to Appear of 5 November 1998.
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guments had been presented and debated. At the request of the witness or Croatia's representative, the Trial Chamber might decide later on to continue the hearing in the absence of the Prosecutor.53 It is important to note that these departures from the line suggested in the Appeals Chamber's subpoena Judgement leave unfettered the final say of the Tribunal on the use of documents in its proceedings despite national security concerns. Similar problems may arise if the Tribunal wishes to question a witness on matters impinging on national security concerns. In national systems, the testimony of a witness who is a public official may depend on the express permission by the superior official which possibly may be refused for national security reasons — subject to full judicial scrutiny.54 On the level of the International Tribunal, the core elements of the Appeals Chamber's Judgement may also be applied to this situation. Therefore, the request for the appearance of a state official as witness in The Hague may not be refused on national security concerns but similar practical provisions may be made in order to assess whether significant national security concerns apply and whether they outweigh the exigencies of the trial.
III. Private Individuals as Sources of Evidence The power to issue binding orders including subpoenas to individuals acting in their private capacity is founded upon the observation that individuals are "within the ancillary (or incidental) criminal jurisdiction of the International Tribunal". Consequently, individuals are "duty-bound to comply with its orders, requests and summonses."55 This power has not been put into question in the Blaskic Case and was endorsed by the 53
54
55
The Prosecutor v. Tihomir Blaskic, Trial Chamber, Second Additional Order for a Witness to Appear of 12 March 1999. In Germany, for instance, permission for testifying in court may be refused if the testimony would negatively affect the well-being of the federal state or one of the Lander or imperil the fulfilment of public tasks, cf. article 62 para.l Federal Law on Civil Servants (Bundesbeamtengesetz), BGBl. 1985 I, 479. A refusal of a permission may only be issued by the highest competent authority. This refusal may be challenged in court, cf. U. Battis, Bundesbeamtengesetz mit Erlduterungen, 2nd edition, 1997, 513 et seq., (article 62, para. 7). Cf. Blaskic subpoena Appeals Chamber Judgement, para. 56.
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Appeals Chamber. The question raised by the Appeals Chamber by way of an obiter dictum^ in the Blasklc subpoena Judgement was rather what was to be understood by "acting in private capacity". As will be shown, the Tribunal adopted a broad interpretation of this term which may, to a certain extent, have aimed at balancing the limitations imposed on the Tribunal due to the interpretations of powers vis-a-vis states and their officials while carrying out their duties.
1. "Acting in Private Capacity" The Appeals Chamber made clear that public officials were not generally immune from being summoned by the Tribunal as witnesses but may be compelled to testify about their perceptions in private capacity. It is self-evident that the concept of "private capacity" extends to everything the person in question has observed before he or she took office. The other situation subsumed under the term "acting in private capacity" by the Appeals Chamber is certainly — to say the least — less obvious: according to that interpretation a public official is turned into a private person if he or she perceives anything about another person's crime while exercising public functions if monitoring the situation was not his official function.57 Occasional and fortuitous perception of events relevant for proceedings of the Tribunal will therefore only be made by a public official if making such perceptions was exactly his task. Otherwise, he will have perceived the information in his private capacity. This highly artificial approach leads to the surprising result that most persons witnessing criminal acts within the material jurisdiction of the Tribunal who are not criminally liable themselves will have become a witness in their private capacity. Superiors carrying out monitoring functions who learn something (in their official function) about criminal acts planned or having occurred must intervene or else are to be held responsible according to article 7 para. 3 of the Statute. It is not very likely in any army that a subordinate person is endowed with the task to monitor superiors as it seems to be suggested by the Appeals Chamber. A similar observation applies to ordinary soldiers. If they are involved in the crime they are criminally responsible themselves. If they 56
57
The question before the Appeals Chamber related to subpoenas duces tecum but not subpoenas ad testificandum. Cf. Blaskic subpoena Appeals Chamber Judgement, para. 50.
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overhear orders or happen to see evidence of international crimes, in most possible cases this will only happen on the occasion of carrying out their official function. It will rarely be the function of a soldier to see evidence of atrocities if he is not part of something like an investigation unit. Consequently, ordinary soldiers will normally witness events in their private capacity according to the Tribunal's concept. In contrast, those persons investigating a crime which has occurred, for instance civil or military police, will gather their information in exercise of their official function so that the respective rules for public officials will be applied to them. At the same time, they will not be criminally responsible themselves. The Appeals Chamber has also extended the concept of "acting in a private capacity" to public officials declining to follow the instructions of their state although that state has agreed to cooperate by submitting the requested documents. He or she may then be subpoenaed to appear in court and, in case of failure to appear in court, subjected to proceedings for contempt of the Tribunal.58 Due to this extensive interpretation of the concept of "private capacity" the rules for "public officials" will mainly apply in situations where a non-police public official is requested to testify on background information such as the veracity of documents, the way they have been drawn up, command structures, etc.
2. Power to Issue Orders directly to Private Individuals rather than via States The Tribunal has emphasised that individuals may be contacted directly in the course of investigations in the former belligerent states or entities of ex-Yugoslavia in order not to hamper the performance of the Tribunal's functions. In all other cases the Tribunal usually has to seek the cooperation of the state concerned; only if the legislation of that state so allows or the state or entity concerned prevents the Tribunal from exercising its functions, individuals may be ordered directly to appear as a witness or to hand over documentary evidence.59 With a view to evidence to be used in court, the question arises whether the Tribunal has to seek the cooperation of the Yugoslav 58 59
Ibid., para. 51. Ibid., para. 53.
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authorities in the production of evidence. Kosovo still forms part of the Federal Republic of Yugoslavia although the authorities in Belgrade do not exercise any de facto power. As long as the Federal Republic of Yugoslavia fulfils the criterion of preventing the Tribunal from exercising its functions, the Tribunal may issue orders directly to the individuals. If this reasoning ceases to be valid one day, but Yugoslav authorities are still not exercising any power in Kosovo, it would still make no sense to order the appearance of witnesses via the Yugoslav State since there would be no chance of enforcement. Therefore it would be appropriate to add another exception to the rule that private individuals have to be summoned before the Tribunal individually in cases where the state does not exercise de facto power. If a subpoenaed individual fails to comply with an order of the Tribunal, in principle the Tribunal should turn to the national authorities to seek enforcement if the resort to national remedies does not prove unworkable.60 In such cases, the Tribunal may initiate proceedings for contempt of the International Tribunal based on the inherent contempt power in general or as specified with regard to certain particular forms of interference with the administration of justice in Rule 77. The inherent power of the Tribunal to sanction contempt has existed since its creation and is not dependent on reference being made to it in the Rules of Procedure and Evidence.61 A clarifying paragraph setting out that nothing in the Rules affects the inherent power of the Tribunal to hold in contempt those who interfere with its administration of justice was only inserted to the Rule 77 in November 1997. However, this amendment was merely of a declaratory character.
60 61
Ibid., para. 58. Prosecutor v. Dusko Tadic, Judgement of allegations of contempt against prior counsel, Milan Vujin, Appeals Chamber of 31 January 2000, para. 28. In this recent Judgement a former defence counsel of the accused Dusko Tadic was sentenced for contempt of the Tribunal with a fine. The severity of the fine was based — among other aspects — on the fact that the respondent's conduct was against the interest of the client. While the counsel was held in contempt for influencing witnesses a similar procedure could be applied to individuals not complying with the Tribunal's orders to appear in court or refusing to testify. Cf. ibid., paras 167, 174.
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3. National Security Exception The question arises in how far national security exceptions as outlined above also apply to individuals acting in their private capacity. It is difficult to imagine that a state could submit witness information or documents kept by a purely private individual for the screening procedure as it has been outlined in the Blaskic Subpoena Appeals Chamber Judgement. However, it may well be possible that a public official who becomes a witness of relevant incidents or information outside his mandate is asked to provide information impinging on security interests of his state. Would the respective state be allowed to raise its security concerns and have the evidence screened for that purpose by the in camera procedure? The question is all the more difficult bearing in mind the possibility that private individuals may be approached directly by the Tribunal in certain cases as has been outlined above. This situation shows that the broad interpretation of "acting in private capacity" adopted by the Tribunal is not without problems. If the same borderline is adopted regarding the possibility of raising security concerns the result would be that public officials gaining relevant information fortuitously on the occasion of performing their official functions would have to testify on that without any limitations. This would be an odd result. If one accepts the possibility of raising security concerns the concept must equally apply to all officials who are summoned to appear in court as witnesses irrespective of whether the information was obtained in exercising the official functions or only occasionally and fortuitously when exercising these functions and therefore in private capacity, according to the concept of the Tribunal. Regarding cases where witnesses who are public officials are directly contacted in their private capacity by the Tribunal and ordered to appear as a witness the respective state should be informed of the order early enough to make representations as to security concerns involved. Again the final say on the relevance of the concerns would remain with the Tribunal.
IV. International Organisations Almost throughout the conflict in the former Yugoslavia a significant number of people from international organisations were present in the territory of the Federal Yugoslavia and neighbouring states either as members of international peace-keeping forces or as delegates from a
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variety of organisations providing humanitarian assistance or carrying out monitoring functions. Due to their field presence members of international peace-keeping forces and delegates of international organisations often have first hand information of potentially high importance for the Tribunal's work. What are the Tribunal's powers with regard to members of international forces and delegates of international organisations? And, can any limitation on the eventual powers be derived from the mandate of the organisation or the kind of know-how used?
1. International Military Forces a. Power to Issue Binding Orders After the Appeals Chamber had determined that regarding public officials it had neither the possibility to address individual state officials directly nor the power to impose sanctions on state officials or states for non-compliance with orders of the Tribunal, it narrowed the consequences of this approach by an extensive interpretation of the term "acting in a private capacity" by virtue of which, public officials would be treated by the Tribunal as private individuals under conditions which have been outlined above. This concept was surprisingly extended to members of international peace-keeping or peace-enforcement forces such as UNPROFOR,62 IFOR, or SFOR. According to an obiter dictum in the Appeals Chamber subpoena Judgement the members of these forces will always be treated by the Tribunal "qua an individual."63 The Appeals Chamber argued that the personnel of international military missions were not present in the former Yugoslavia as members of the military of the home country but as members of an international armed force on the basis of a resolution of the Security Council. Since their mandate stems from the same source as that of the Tribunal they must testify (subpoena ad testificandum}.M The argument is flawed. It is not convincing to say that members of armed forces participating in an international mission would act in their private capacity. Military personnel involved in international peace62
63 64
For a detailed analysis of the history of UNPROFOR cf. M. Weller, "Peace-Keeping and Peace-Enforcement in the Republic of Bosnia and Herzegovina", ZaoRV 56 (1996), 70 et seq. Blaskic subpoena Appeals Chamber Judgement, para. 50. Ibid.
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keeping or peace-enforcement operations will either exercise their functions as public officials of the sending state or as public officials of the United Nations or a regional organisation in charge of the mission. In so far as peace-keeping personnel would have to be regarded as officials of the UN, the first question is whether the tribunal would be in a position to issue binding orders to other organs of the UN. At first sight, it is not compelling to argue that the Tribunal has the power to order members of international forces to testify since both the Tribunal and the international forces originate from the same source of mandate: why should the identity of the source of mandate grant primacy to the Tribunal over peace-keeping troops? However, it may be argued that the Tribunal has been vested with the mandate to try the international crimes committed in the former Yugoslavia effectively, which was regarded as necessary in the interest of international peace and security. The Security Council has delegated its powers with regard to maintaining or restoring peace and security in this respect to the International Tribunal. The Security Council itself is vested with a power to issue binding orders to other organs or sub-organs of the UN. This power has been delegated implicitly when transferring the power to try international crimes. Therefore, the Tribunal may request the cooperation of any other UN organ or sub-organ including UN forces under UN command which has at its disposal any material or information relevant to the proceedings. The more complicated question remains, however, whether members of international peace-keeping forces are to be regarded as UN officials for the purposes of the Tribunal or rather as public officials of their home state. In order to regard the members of national contingencies as exercising functions of a UN organ, the contingencies have to be removed from the structures of their home state and integrated into the structures of the UN. Such transfer must be legally founded in the relationship between the UN and the sending states and bear fruit in the outer legal sphere in a way that the UN would be accountable for any acts or omissions on the part of the troops.65 The relationship between the sending state and the UN depends among others on factors such as regulations adopted for the working of the peace-keeping troops, treaties concluded between the sending state and the UN, and the national law adopted by the state with a view to providing forces for UN missions. These factors cannot be examined in detail here. The central factor, also with regard to the legal effects vis-a65
M. Bothe, Streitkrafte internationaler Organisationen, 1968, 37 et seq.
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vis other subjects under international law, remains the command structure established for a force. In particular, responsibility for wrongful acts committed by members of a peace-keeping mission is established under international law on part of the UN if supreme power is vested in the organisation.66 This may vary from one peace-keeping force to the other. Whereas UNPROFOR was explicitly subjected to the authority of the Security Council67 and the civilian and military heads of the mission were appointed by the UN68, IFOR and SFOR consisted of national forces authorised by the Security Council to fulfil the mandate under a unified command.69 Also regarding KFOR, Member States and in this case additionally "relevant international organisations", in par-
66
67 68
69
Cf. M. Hirsch, The responsibility of International Organisations Toward Third Parties, 1995, 66 et seq., who suggests that the exercise of effective control is the criterion for the establishment of which the formal assignment of control is only an indication. This principle was disputed by the British House of Lords in the Nissan Case regarding acts of the UN Force in Cyprus (UNFICYP). The House concluded that "though national contingents were under the authority of the United Nations and subject to the instructions of the commander, the troops as members of the force remained in their national service. The British forces continued, therefore, to be soldiers of Her Majesty." Attorney General v. Nissan, All England Law Reports 1 (1969), 629 et seq., (649) (per Lord Morris). S/RES/743 (1992) of 21 February 1992, para. 2. O. Ramsbotham/T. Woodhouse, Encyclopedia of International Peacekeeping Operations, 1999, 278. S/RES/1031 (1995) of 15 December 1995: "The Security Council (...) 14. Authorizes the Member States acting through or in cooperation with the organization referred to in Annex 1-A of the Peace Agreement to establish a multinational implementation force (IFOR) under unified command and control in order to fulfil the role specified in Annex 1-A and Annex 2 of the Peace Agreement". Regarding SFOR, cf. S/RES/1088 (1996) of 12 December 1996: "The Security Council (...) 18. Authorizes the Member States acting through or in cooperation with the organization referred to in Annex 1-A of the Peace Agreement to establish for a planned period of 18 months a multinational stabilization force (SFOR) as the legal successor to IFOR under unified command and control in order to fulfil the role specified in Annex 1-A and Annex 2 of the Peace Agreement". "Full command" remains with the national contingencies while "operational command" is transferred to the head of the mission, cf. E. Vad, "Auslandseinsatze deutscher Streitkrafte — Erfahrungen bei der Implementierung von Friedensvereinbarungen am Beispiel IFOR/SFOR", Humanitdres Volkerrecht 10 (1997), 74 et seq., (78).
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ticular NATO, were authorised to establish an international security presence.70 Accordingly, without prejudice to a profound analysis of all relevant factors, it seems possible that at least members of UNPROFOR have been present in the former Yugoslavia as officials of the UN. However, it may be doubted whether the same principles really apply to the position of members of international peace-keeping forces vis-a-vis the Tribunal. Since the personnel dispatched to international military operations remains subjected to the command and disciplinary structure of their national contingency and their home forces, they cannot be completely detached from their position as public officials of their home state. The operational military command, which is that aspect of command which is usually vested in the UN if any, would not extend to order military personnel of the national contingencies to appear before an international court to testify on what was witnessed in the course of the mission since this is not an aspect of the military operation. Such an order would be up to the home state. Therefore, for the purposes of the International Tribunal the soldiers taking part in an international peace-keeping mission are to be regarded as officials of their home state. This latter observation does not apply to personnel of a UN military mission which in fact are completely detached from the home state and appointed as UN officials who are paid by and receive orders from the UN. This will usually be the case, if the commander of a force is appointed by the UN as, for instance, the commander of UNPROFOR. As long as the person in question holds this position, orders to appear before the Tribunal would have to go through the UN. If the person's term has expired and he no longer is an official of the UN, for practical reasons, an order to summon him or her before the Tribunal would have
70
Cf. S/RES/1244 (1999) of 10 June 1999: "The Security Council (...) 7. Authorizes Member States and relevant international organizations to establish the international security presence in Kosovo as set out in point 4 of annex 2 with all necessary means to fulfil its responsibilities under paragraph 9 below; Annex 2: Agreement should be reached on the following principles to move towards a resolution of the Kosovo crisis: (...) 4. The international security presence with substantial North Atlantic Treaty Organization participation must be deployed under unified command and control and authorized to establish a safe environment for all people in Kosovo and to facilitate the safe return to their homes of all displaced persons and refugees (...)."
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to go through the state in which he or she is present since only this state has the means to enforce his appearance before the Tribunal.71 b. National Security Concerns It may be asked whether members of the above mentioned forces may be compelled to testify without any restrictions arising from national security concerns of their home state. As has been argued above, the position as a private individual does not rule out the possibility that a state may raise legitimate security interests against the testimony to be provided by a witness who is or was employed as a public official. However, by linking the private capacity of peace-keepers to a resolution of the Security Council the Appeals Chamber accords to them a special position which does not leave any room for an official capacity linked to the home state and therefore excludes national security concerns. This result provides a further argument that the approach which has already been criticised is highly problematic. Military personnel serving in peace-keeping forces could well make use of intelligence information provided by services from its home state. It therefore seems quite possible that the home state has an interest in limiting the access to evidence impinging on intelligence information provided to members of its own forces for use in the course of an international military operation. If it is generally acknowledged that security concerns may be raised with regard to the testimony of public officials there is no reason why this privilege should not apply to states which have provided military personnel to UN peace-keeping or peace-enforcement missions.
2. UN Organs and Other International Organisations a. Power to Issue Binding Orders As has been discussed above, it may well be argued that a power to issue binding orders to organs or sub-organs of the UN is implied in the 71
The Prosecutor v. Tihomir Blaskic, Decision of Trial Chamber I in respect of the Appearance of General Philippe Morillon, Order of 25 March 1999 (summary at http://www.un.org/icty/Supplement/supp3-e/blaskic.htm). According to the summary, Morillon was UNPROFOR commander and the order to appear as a witness before the Tribunal was issued through France, not the UN.
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mandate accorded to the Tribunal by the Security Council and derived from the Security Council's power to do so. The Tribunal seemed to assume that it is vested with such power when it provisionally declined a defence motion to issue a subpoena to the United Nations Secretariat not as a matter of principle but because the defence had not first approached the Secretariat for obtaining the documents in question voluntarily.72 This power extends to other UN organs and dependent bodies without an own legal personality such as the UNHCR73 which are clearly within the hierarchy of the UN. It is doubtful, however, that the power would extend to the Specialized Agencies within the UN System since they have an own legal personality and partly also refuse to acknowledge any superior position of the principal UN institutions. However, Specialized Agencies often have entered into bilateral agreements with the UN pursuant to Article 63 para. 1 of the UN Charter. These bilateral agreements usually contain clauses obliging the agency to render "such assistance to the Security Council as that Council may request including assistance in carrying out decisions of the Security Council for the maintenance or restoration of international peace and security."74 Since the mandate of the Tribunal is derived from the Security Council acting under Chapter VII of the Charter it may be concluded that due to such bilateral agreements Specialized Agencies may be subjected to orders of the Tribunal. As far as other organisations outside the UN System are concerned, a power of the Tribunal to issue binding orders to them normally cannot be based on the argument of an identical source of mandate. Only if the organisation in question has been authorised to act by a resolution of the Security Council under Chapter VII or VIII, binding orders on part of the Tribunal seem possible. But this observation only applies if the Security Council retains the authority over the mission. This is not the case, for instance, regarding the OSCE mission in Kosovo which has been authorised by the Security Council but apart from that is only acting in a way as may be decided under Chapter VII of the UN Char72
73
74
Prosecutor v. Milan Kovacevic, Decision on defence motion to issue subpoena to United Nations Secretariat, Trial Chamber of 1 July 1998. I. Seidl-Hohenfeldern/G. Loibl, Das Recht der Internationalen Organisationen einschliefilick der Supranationalen Gemeinschaften, 6th edition, 1996, 98 (para. 0814a). Quoted after W. G. Vitzthum, "On Article 2 (6)", in: B. Simma (ed.), The Charter of the United Nations — A Commentary, 1994, para. 17.
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ter and under the "auspices" but not the "authority" of the UN.75 However, regarding Kosovo, the Security Council has obliged "all concerned" including the international security presence which consists of contributions by Member States and international organisations to fully cooperate with the Tribunal.76 It may therefore be argued that if an international organisation has decided to take part in the mission in Kosovo it has subjected itself to the obligation to cooperate with the Tribunal. More generally, the question arises in how far the Tribunal is empowered to issue binding orders to other international organisations and its employees. However, there is no ranking among international organisations; in turn this would mean that according to the general principle par inparem non habet imperium the Tribunal would not have any power to issue orders to other international organisations. Moreover, an analogous application of Article 2 para. 6 of the UN Charter to other international organisations could not provide an argument in favour of a power of the Tribunal to issue binding orders to them since it is already impossible to deduce binding effects from this provision of the Charter in direct application to non-Member States.77 Also the fact that the Tribunal derives its powers from a measure adopted by the Security Council under Chapter VII does not lead to the conclusion that it could issue binding orders to other international or75
76
77
Cf. Security Council Resolution 1244 (1999): "The Security Council (...) 10. Authorizes the Secretary-General, with the assistance of relevant international organizations, to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo; (...) Annex 2: Agreement should be reached on the following principles to move towards a resolution of the Kosovo crisis: (...) 3. Deployment in Kosovo under United Nations auspices of effective international civil and security presences, acting as may be decided under Chapter VII of the Charter, capable of guaranteeing the achievement of common objectives." Ibid.: "The Security Council (...) 14. Demands full cooperation by all concerned, including the international security presence, with the International Tribunal for the Former Yugoslavia". As a treaty the Charter cannot impose legal obligations on non-Member States, cf. Vitzthum, see note 74, 20.
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ganisations. Although the powers of the Security Council under that Chapter have been accorded an elevated position this only applies to the UN System and does not extend to other international organisations. In principle, this rule seems to have been acknowledged by the Tribunal when it rejected a motion to issue a subpoena, to the OSCE78 on the grounds that the Tribunal has no authority to issue a subpoena, to an international organisation.79 This would entail the personnel carrying out the functions of the respective international organisation as well. International organisations have their own legal personality under international law and therefore the employees acting on behalf of the organisation cannot be considered as anything else than officials of that organisation. Of course, careful differentiation has to be made whether the person in question is really acting on behalf of an international organisation. For instance, the Head of the European Community Monitoring Mission who recently has been summoned as a witness in the Blaskic Case was not acting on behalf of the European Community at the time. The Monitoring Mission had been created on the basis of the intergovernmental cooperation in the European Policy Cooperation which was situated outside the EC institutional framework by the Single European Act. Therefore, the head of mission was acting on behalf of the Member States and remained an official of his home country. It was therefore necessary to issue an order to France for summoning the former head of mission to appear as a witness.80 78
79
80
For a discussion of the problems pertaining to the status of the OSCE as an international organisation, cf. I. Seidl-Hohenveldern, "Internationale Organisationen aufgrund von soft law", in: U. Beyerlin et al. (eds), Recht zwischen Umbruck und Bewahrung, 1995, 229. Prosecutor v. Milan Kovacevic, Decision refusing defence motion for subpoena, Trial Chamber of 23 June 1998. It is important to note that the Tribunal has not assumed a power to issue binding orders to non-Member States of the UN. In particular, when it ordered to transmit arrest warrants for Slobodan Milosevic and others to Switzerland (Prosecutor v. Slobodan Milosevic, Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic and Vlajko Stojilkovic, Decision on review of indictment and application for consequential orders, Judge Hunt of 24 May 1999, para. 38), it did so based on the voluntary submission on the part of Switzerland to cooperation with the Tribunal. Prosecutor v. Tihomir Blaskic, Decision of Trial Chamber I in respect of the Appearance of Mr. Jean-Pierre Thebault of 25 March 1999 (summary at http://www.un.org/icty/Supplement/supp3-e/blaskic.htm).
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Due to the absence of hierarchy between independent international organisations it is therefore not possible for the Tribunal to issue binding orders to international organisations outside the UN System. However, it is clear that an international organisation remains bound indirectly via its Member States. States' obligations imposed under Chapter VII are not limited to implementing Security Council Resolutions on the national level but extend to their position in international organisations. Accordingly, states are obliged to perform their position in international organisations in a way that ensures compliance with orders of the Security Council. b. Exemptions from Obligations In so far as the Tribunal is indeed empowered to issue binding orders to other international organisations or organs of the UN, the question arises whether there may be any exemptions to this rule, similar to national security concerns which may be raised by states. In certain cases, international organisations may have an interest to withhold information requested by the Tribunal either in documentary form or as testimony by an employee or delegate of the organisation. Such concerns may stem from the mandate or from concerns about the security of personnel still present in the former belligerent area. According to a decision of a Trial Chamber in a similar context, not any sort of interest may be relevant but only legally recognised interests which entitle the organisation to a non-disclosure of information gathered in the fulfilment of its functions. If there was such a rule recognising a legal interest to non-disclosure it would have to be determined whether the interest is absolute or may be weighed against the exigencies of the trial and whether any alternative process may be applied similar to that suggested by the Appeals Chamber in the Blaskic subpoena Judgement for screening documents with regard to national security concerns.81
81
This is the three step procedure proposed by the Trial Chamber in its decision on the request of the ICRC that it may prevent disclosure of information by a former employee. In that case, the three steps were examined to the end, since the ICRC's entitlement to non-disclosure was regarded as being conclusive. Cf. Prosecutor v. Blagoje Simic, Milan Simic, Miroslav Tadic, Stevan Todorovic, Simo Zaric, Decision on the Prosecution motion under Rule 73 for a ruling concerning the testimony of a witness, Trial Chamber of 27 July 1999, para. 44.
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The sub-organisation most likely to dispose of information of great relevance for the trials due to its immense field presence and access to first hand reports from refugees throughout the crisis is the UNHCR. At the same time the High Commissioner is bound by neutrality which is fundamental to the fulfilment of the humanitarian mandate. However, it is not evident that neutrality would require the High Commissioner to withhold information requested by an international court which itself is committed to neutrality and objectivity. The bigger problem would be confidentiality: UNHCR personnel may have received information from refugees and displaced persons on a confidential basis since otherwise they would see their security endangered.82 According to Rule 70 it is possible to pass information to the Prosecutor on a confidential basis in order to allow for generating new evidence. In this case the Trial Chamber would be prevented from ordering the confidential information to be disclosed (Rule 70 (C)). However, in case of the defence, calling a witness for information which had been given confidentially or the information to be used as proper evidence in the proceedings this Rule does not help. But there is no reason why the Tribunal may not weigh the confidentiality interest in such a case against the exigencies of the trial.
V. Employees and Delegates of the ICRC A special position has been accorded to the International Committee of the Red Cross (ICRC). The Tribunal had to decide on a Prosecution Motion under Rule 73 whether a former employee of the ICRC may be called to give evidence on facts that came to his knowledge by virtue of his work for the ICRC as an interpreter.83 The potential witness had accompanied ICRC delegates during their visits to places of detention and during an exchange of civilians under ICRC supervision. The concrete question was whether under conventional or customary international law there is a recognition that the ICRC has a confidentiality interest
82
83
Cf. F. Hampson, "The International Criminal Tribunal for the Former Yugoslavia and the Reluctant Witness", ICLQ 47 (1998), 50 et seq., (67). Cf. Prosecutor v. Blagoje Simic, Milan Simic, Miroslav Tadic, Stevan Todorovic, Simo Zaric, Decision on the Prosecution motion under Rule 73 for a ruling concerning the testimony of a witness, Trial Chamber of 27 July 1999.
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such that it is entitled to non-disclosure of the former employee's testimony. The Trial Chamber found that the ICRC has both a conventional and a customary right to insist on the non-disclosure of information. It argued that the ICRC has been accorded a unique role with a view to assuring the observance of the minimum humanitarian standards established by the Geneva Conventions and their Protocols. It acknowledged that the right to non-disclosure of information relating to the ICRC's work is necessary for the effective discharge of the Committee's functions. Therefore, a conventional right of the ICRC under the Geneva Conventions to assure non-disclosure of information was established.84 Moreover, the quasi-universal ratification of the Geneva Conventions was regarded as an expression of the opinio iuris of Member States which together with the consistent practice of confidentiality constitutes a rule under customary international law to non-disclosure of information.85 This right to non-disclosure was regarded as absolute and not open to a balancing with interests of justice. This result was not undisputed in the Trial Chamber. Judge Hunt argued in his separate opinion that there was no evidence that the protection against disclosure has been accepted by states as absolute with regard to international criminal courts which are supposed to try international crimes including grave breaches of the same Geneva Conventions.86 Judge Hunt suggests that there should be a balancing of competing public interests according appropriate weight to the Tribunal's task to ensure a fair trial. He refers to two situations in which the ICRC's protection against disclosure may be outweighed by the exigencies of a fair trial subject to the particular circumstances of each case: where the evidence of an employee of the ICRC is vital to establish the innocence of the accused and where it is vital to establish the guilt of the accused in a trial of "transcendental importance".87 The problem with this argument, however, is that the sheer possibility of disclosing, in criminal proceedings, information gained in the course of exercising its functions would seriously undermine the rule of 84 85 86
87
Ibid., para. 73. Ibid., para. 74. Prosecutor v. Blagoje Simic, Milan Simic, Miroslav Tadic, Stevan Todorovic, Simo Zaric, Separate Opinion of Judge David Hunt on Prosecutor's motion for a ruling concerning the testimony of a witness, Trial Chamber Decision of 27 July 1999, para. 23. Ibid., paras 29 et seq.
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confidentiality. The ICRC operates in extremely difficult and sensitive environments and depends on the invitation or acceptance by the state or entity in question in order to carry out inspection visits. It would be much more difficult to obtain such invitations if the possibility was in the air that information gathered could be used in criminal proceedings. Moreover, there can be no doubt that the ICRC will frequently obtain information of potentially high relevance to the prosecution of war crimes. Therefore, it will be difficult to limit the access to ICRC's information to highly important cases. Regarding the fair trial principle, there may be situations where the ICRC has at its disposal information demonstrating the innocence of the accused. It may be assumed that a disclosure of such information in certain cases would not or only slightly impinge on the confidentiality interest of the state in question. It is possible that under such circumstances the interests of justice weigh more than the confidentiality requirement. But, due to better knowledge of the facts, this can better be judged by the organisation than by the Tribunal. Moreover, it should be subject to a waiver of confidentiality by the state concerned in order not to disrupt the principle of confidentiality and the atmosphere of trust.88
VI. Concluding Remarks The practice of the International Criminal Tribunal for the Former Yugoslavia has undergone some remarkable readjustments since the adoption of the landmark ruling in the Blaskic subpoena, Judgement by the Appeals Chamber. Mostly, these readjustments seem to have ruled out the fear that the Tribunal's powers vis-a-vis states would be interpreted too restrictively. Instead, the exigencies of the Tribunal's funcThe argument in favour of non-disclosure of information in the case of the ICRC cannot be transferred to humanitarian NGOs such as Medicins Sans Frontieres (MSF) or human rights NGOs although they may be interested in deciding themselves which information to disclose and which not. But even if they had acted on the basis of confidentiality — which usually will not be the case — their position would not be protected by international law. However, in certain cases it may be necessary to take into consideration the position of their clients which may give rise to security concerns and therefore require the adoption of protective measures such as concealing their identity. Cf. Hampson, see note 82, 65, 68. More generally on the position of NGOs see S. Hobe, "Der Rechtsstatus der Nichtregierungsorganisationen nach gegenwartigem Volkerrecht", AVR 37 (1999), 152 et seq.
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tioning and international justice have been emphasised. This observation particularly applies to the requirements for issuing a binding order to states. With regard to certain other aspects such as states' discretion in choosing the officials for testifying before the Tribunal, it has been argued here that the standards outlined in the Blaskic subpoena Judgement need some complementary interpretation limiting states' discretion in complying with orders of the Tribunal. One might speculate as to whether the concept of "public officials acting in a private capacity" which has been interpreted by the Appeals Chamber in the Blaskic subpoena Judgement in an extremely broad manner was aimed at limiting the consequences of a strong position accorded to states in other respects. The broad interpretation is artificial and leads to inconsistencies regarding national security concerns of states. Interestingly enough, this approach has been abandoned by a Trial Chamber in a different context: in a decision pertaining to the position of ICRC employees it was emphasised that these persons were only present in the belligerent area due to their function as an employee of the ICRC, had obtained the information in the course of their function, and that therefore they could not be regarded as anything other than an official of the organisation. A distinction whether a certain act is within or beyond the functions assigned to the person in question was not made, in contrast to the concept applied so far to state officials.89 The same approach should also be adopted mutatis mutandis with a view to state officials. Another area where the broad concept of "acting in private capacity" shows its weakness is the assumption that members of international peace-keeping forces would always have been present in the territory of the former Yugoslavia in their private capacity. The intricate distinction to be drawn is rather whether personnel of peace-keeping troops are to be regarded as public officials of the sending state or of the UN. It is clear that in both cases the Tribunal has the power to issue binding orders. However, since most of the personnel will remain subjected to the disciplinary and command structure of their home state and the operational command possibly vested in the UN will not extend to order appearance before the Tribunal, orders to summon such personnel for tes-
89
Prosecutor v. Blagoje Simic, Milan Simic, Miroslav Tadic, Stevan Todorovic, Simo Zaric, Decision on the Prosecution motion under Rule 73 for a ruling concerning the testimony of a witness, Trial Chamber of 27 July 1999, para. 36 et seq.
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tifying before the Tribunal will usually have to be issued to the home state. Also personnel of international organisations present for humanitarian or civilian purposes is of potentially high relevance as a source of evidence. Whereas the Tribunal has the power to address other organs and sub-organs of the UN with binding orders, it is only possible to issue binding orders to independent international organisations if the international organisation in question has subjected itself to the power of the Tribunal. If this is the case, exemptions from an obligation to cooperate with the Tribunal may be deduced from the mandate of the organisation in question. However, similar to national security concerns, such exemptions can only apply to a very limited extent and only after a careful weighing of interests by the Tribunal. Only in the case of the ICRC, can a general exemption from testifying before the Tribunal be acknowledged due to the special position accorded to the ICRC under international law. Throughout its practice the Tribunal has demonstrated its openness towards particular concerns of subjects under international law which may give rise to limitations of the Tribunal's powers. It remains one of the fundamental challenges to secure cooperation with the Tribunal by showing respect for such concerns without hindering the exercise of the Tribunal's functions. This seems all the more important given the absence of enforcement powers on the part of the Tribunal and the Security Council's reluctance to adopt more forceful measures to compel states to fulfil their obligations to cooperate unequivocally with the Tribunal.
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The Petition System under the International Convention on the Elimination of All Forms of Racial Discrimination A Sobering Balance-sheet Theo van Boven
I. Introduction The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted by the United Nations General Assembly in 1965,1 was the first human rights treaty approved by the United Nations to be equipped with its own mechanism of international supervision. It established in article 8 para.l a Committee on the Elimination of Racial Discrimination (CERD) with the following tasks: to consider periodic reports submitted by the States parties (article 9), to receive state to state complaints (arts 11-13, a procedure not resorted to as yet), and to receive and consider communications from individuals or groups of individuals (article 14). It is this communications procedure, set forth in article 14 of the Convention which is the subject matter of this article. Article 14 of ICERD was the outcome of lengthy and complex negotiations in the UN General Assembly in 1965.2 Its inclu1
A/RES/2106 A (XX) of 21 December 1965.
2
Article 14 as an optional clause was adopted in the Third Committee of the UN General Assembly by 66 votes in favour, none against and 19 abstentions (East European countries, some Afro-Asian states and France). See Th.C. van Boven, "The Convention on the Elimination of All Forms of 271
J.A. Frowein and R. Wolfrum (eds.). Max. Planck Yearbook of United Nations Law, 271-287. © 2000 Kluwer Law International. Printed in the Netherlands.
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sion in the Convention was made possible because of its optional character: States parties are only bound by the communications procedure after they have made an explicit declaration in which they recognize the competence of CERD to receive and consider communications.3 Article 14 of ICERD served as a precedent for similar provisions to be included in later years in other legal international instruments, notably the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR),4 article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment5 (CAT), and most recently the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).6 It should be noted that article 14 did more to serve as a breakthrough and a precedent in connection with other international legal instruments than as an international recourse procedure for victims of racial discrimination. As will be pointed out, article 14 is one of the most under-utilized provisions of ICERD. In this respect it is quite telling that a monograph of some 350 pages written by a long-standing member of the Committee who reviewed and appraised the work the Committee performed until 1995, devoted fewer than three pages to article 14 issues.7 This article will try to uncover some of the largely hidden features of article 14 but it certainly cannot transform a dwarf into a giant. Why did article 14 of ICERD remain a provision of minor significance (up to now there have been just seventeen communications, compared to the several hundreds of the Human Rights Committee) while other treaty-based communications procedures have taken on much more significance.8 What prevented article 14 from gaining breadth and vitality. Answers to these questions will be more tentative than conclusive.
3 4 5 6 7
8
Racial Discrimination", International Spectator 20 (1966), 655 et seq., (665666). The text of article 14 is reproduced in an Annex to this paper. A/RES/2200 A (XXI) of 16 December 1966. A/RES/39/46 of 10 December 1984. A/RES/54/4 of 10 December 1999. Michael Banton, International Action Against Racial Discrimination, 1996, 156-158. See in this respect note 24.
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II. Origins of Article 14 Article 14 gives the Committee the power, once it has declared a communication admissible, to consider such communication in the light of all information made available to it by the State party concerned and by the petitioner (para. 7 lit.(a)) and to forward its suggestions and recommendations, if any, to the State party concerned and to the petitioner (para. 7 lit.(b)). This implies that the Committee has substantive duties in examining communications and formulating its views which may include suggestions and recommendations. These powers of CERD are considerably stronger than those envisaged in earlier proposals put forward during the drafting stage in the UN General Assembly. Such earlier proposals would have given the Committee no more than a sort of letterbox-function to the effect that it would merely forward the communications to States parties concerned without the requirement of any further action.9 In fact, to make a stronger version of article 14 more widely acceptable, the compromise solution was reached that the communications procedure would be optional. This means that the procedure only applies to those States parties which have made the declaration that they recognize the competence of the Committee to receive and consider communications from individuals or groups of individuals within their jurisdiction who claim to be victims of a violation by those States parties of any of the rights set forth in the Convention (article 14 para. 1). Another feature of article 14 intended to accommodate those who had reservations against an international right of petition, was the inclusion of a rather complicated provision with a view to making — also on an optional basis — a national body the competent organ to receive and consider petitions before the matter could be referred to CERD (article 14 paras 2-5).10 A notable political factor that facilitated the inclusion of a communication procedure in the Convention was the wish of many AfroAsian countries to make the Convention an effective instrument in the struggle against colonialism and apartheid, taking into account the clear
9 10
Van Boven, see note 2, 665. See also T. Meron, "The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination", AJIL 79 (1985), 283 et seq. As Meron quite rightly argues (at pp. 313-314) and as been confirmed by actual practice, the indication and existence of an internal body is optional and not a precondition for setting into motion the procedure to seize the international body (CERD).
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connection that existed between racism and colonialism. In fact, the right of petition was regarded as an important device in the international trusteeship system and in decolonization procedures11 and it was against this background that this device found its logical place in the Convention. Similar considerations and the same background led to the inclusion of article 15 dealing with petitions from the inhabitants of Trust and Non-Self-Governing Territories and all other territories to which General Assembly Resolution 1514 (XV) of 14 December 1960 — the Declaration on the Granting of Independence to Colonial Countries and Peoples — applies. In fact, article 15 has now lost most of its significance since only a few Non-Self-Governing Territories are left, the majority of which are small. Moreover, the Committee has for many years not received any copies of petitions pursuant to article 15 para. 2 lit.(a).12
III. Some Significant Aspects of Article 14 The communications procedures provided for in article 14 of ICERD, in the Optional Protocol to ICCPR, in article 22 of CAT and in the Optional Protocol to CEDAW contain many similar features, in particular as regards the admissibility requirements set out in these legal instruments and elaborated in the Rules of Procedure. These have been amply discussed and reviewed elsewhere.13 For present purposes three distinct aspects of article 14 will be highlighted. The first pertains to the authors of the communications. Article 14 ICERD refers to "individuals or groups of individuals" claiming to be victims of a violation, whereas article 1 of the Optional Protocol to ICCPR and article 22 CAT make reference to "individuals" only.14 Consequently, article 14 CERD explicitly provides for the possibility that groups initiate a procedure alleging violation of any of the rights of the Convention.
11
12
13
14
See A/RES/1514 (XV) of 14 December 1960 and 1654 (XVI) of 27 November 1961. See the Committee's Annual Reports for 1998 and 1999 (Doc. A/53/18 para. 489 and Doc. A/54/18, para. 555). See, inter alia, M. O'Flaherty, Human Rights and the UN Practice Before the Treaty Bodies, 1996, in particular Chapter IV, 7 concerning the communications procedure of CERD, (104-109). But the Optional Protocol to CEDAW also refers to "individuals or groups of individuals" (article 2).
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A second distinct aspect of article 14 is that CERD is not prevented from considering communications which are being or have been examined under another procedure of international investigation or settlement.15 A third significant aspect is that CERD may forward, at the end of the examination of the merits of the communication, its "suggestions and recommendations" to the State party concerned and to the petitioner^) rather than merely its "views" as is provided for in the Optional Protocol to ICCPR (article 5 para. 4) and CAT (article 22 para.7).16 Although the respective treaty bodies (Human Rights Committee and Committee against Torture), have interpreted the term "views" in a broad sense, so as to include requests for reparations and follow-up measures, CERD has, as will be shown, a wider discretion and may indicate to the State party concerned such suggestions and recommendations which would go beyond the question whether the Convention has been violated in the individual case, with broader policy implications.
IV. The Dismal Record of Article 14 Article 14 para. 9 provides that CERD shall only be competent to exercise its functions under this article when at least ten States parties to the Convention have made the declaration in accordance with para. 1 of the article.17 While the Convention itself entered into force as early as 4 January 1969 (which was the thirtieth day after the deposit of the twenty-seventh instrument of ratification pursuant to article 19 para. 1 ICERD), it was only on 3 December 1982 that a tenth State party (Senegal) made the declaration under article 14 para. 1 and thus opened up the possibility to utilize the communications procedure against any of the ten States parties which had made the declaration. Finally, CERD began its work under article 14 at its 13th Sess., in 1984. The pace of acceptance of the article 14 procedure is slow and disappointing. As pointed out, more than thirteen years passed after the entry into force 15
16
17
See in this respect article 5 para. 2 lit.(a) Optional Protocol; article 22 para. 4 lit.(a) CAT and article 4 para. 2 lit.(a) CEDAW. It is significant to note that the Optional Protocol to CEDAW uses in this respect the terms "views together with its recommendations" (article 7 para. 3). See in this respect article 22 para. 8 CAT where the number is five; article 16 CEDAW and article 9 Optional Protocol both require ten instruments.
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of ICERD before the crucial number of ten acceptances was reached in 1982. It took another twelve before, in 1994, the twentieth State party (Chile) made the declaration, and on 31 December 1999 only 29 out of 155 States parties had accepted the article 14 procedure. These 29 states are geographically distributed as follows: Africa 3, Asia 2, Latin America 5, Western Europe and Others 12, Eastern Europe 7.18 Equally disappointing is the modest number of communications received and considered under article 14. At the time of writing only seventeen communications have been or are under consideration by the Committee.19 Seven cases have been concluded with an opinion on the merits.20 Three cases have been declared inadmissible.21 Two cases have been declared admissible and have been transmitted to the State party concerned for comments on the merits22 and five cases are still in the pre-admissibility stage.23 On the positive side it should be noted that 18
19 20
21
22 23
Africa: Algeria, Senegal, South Africa; Asia: Cyprus, Republic of Korea; Latin America: Chile, Costa Rica, Ecuador, Peru, Uruguay; Western Europe and Others: Australia, Denmark, Finland, France, Iceland, Italy, Luxembourg, Malta, Netherlands, Norway, Spain, Sweden; Eastern Europe: Bulgaria, Hungary, Macedonia, Poland, Russian Federation, Slovakia, Ukraine. See the Committee's Annual Report for 1999 (Doc. A/54/18, Chapter IV). Communication No. 1/1984 (Yilmaz-Dogan v. The Netherlands), see the Committee's Annual Report for 1988 (Doc. A/43/18, Annex IV); Communication No. 2/1989 (Demba Talibe Diop v. France), see the Committee's Annual Report for 1991 (Doc. A/46/18, Annex VIII); Communication No. 3/1991 (Michel L.N. Narrainen v. Norway), see the Committee's Annual Report for 1994 (Doc. A/49/18, Annex IV); Communication No. 4 /1991 (L.K. v. Netherlands], see the Committee's Annual Report for 1993 (Doc. A/48/18, Annex IV); Communication No. 6/1995 (2.U.B.S. v. Australia}, see the Committee's Annual Report for 1999 (Doc. A/54/18, Annex III); Communication No. 8/1996 (B.M.S. v. Australia), see the Committee's Annual Report for 1999 (Doc. A/54/18, Annex III); Communication No. 10/1997 (Ziad Ben Ahmed Habassi v. Denmark), see the Committee's Annual Report for 1999 (Doc. A/54/18, Annex III). Communication No. 5/1994 (C.P. v. Denmark), see the Committee's Annual Report for 1995 (Doc. A/50/18 Annex VIII); Communication No. 7/1995 (Barbaro v. Australia), see the Committee's Annual Report for 1997 (Doc. A/52/18 Annex III); Communication No. 9/1997 (D.S. v. Sweden), see the Committee's Annual Report for 1998 (Doc. A/53/18, Annex III). Communications No. 11/1998 and No. 13/1998. Communications No. 12/1995; No. 14/1998; No. 15/1998; No. 16/1999; No. 17/1999.
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there is a certain increase in the frequency of communications addressed to CERD (see notes 20-23). However, these facts and figures do not offer an impressive picture, in particular when they are compared with corresponding data concerning the optional communications procedures under other international human rights treaties.24 This unfavourable state of affairs will require some explanation or assessment which will be attempted in the final remarks of this paper. Finally, in the context of facts and figures, attention must be drawn to the fact that from among the 29 States parties which have made the declaration under article 14, only two states i.e. Luxembourg and South Africa, have indicated a national body to receive and consider communications pursuant to article 14 paras 2-5. In Luxembourg it is the ad hoc Standing Committee against Discrimination set up in May 1996 under article 24 of the Act of 27 July 1993 on the integration of aliens.25 When asked about the implications of the declaration made under article 14 para. 2 in relation to the declaration made under article 14 para. 1, and in particular whether petitioners should first have resort to the national body before referring their claims to CERD, the representative of Luxembourg replied that in making the declaration under para. 2, there had been no intention to limit the access of persons under Luxembourg jurisdiction to CERD. He would welcome further feedback and would keep the Committee informed of subsequent developments.26 When South Africa ratified the Convention on 10 December 1998 it made both declarations under article 14 para. 1 and 2 and this State party indicated that the South African Human Rights Commission is the body which shall be competent to receive and consider petitions. Pending the 24
25
26
According to - its Annual Report to the 54th Sess. of the UN General Assembly (1999) the Human Rights Committee has received as from the start of its work under the Optional Protocol - 873 registered communications. Of these 873 communications 328 were concluded by Views of the Committee, 267 were declared inadmissible, 129 were discontinued or withdrawn, 149 are not yet concluded of which 38 have been declared admissible (Doc. A/54/40, para. 385). The Committee against Torture has received 133 registered communications. Of these communications 34 were concluded by Views of the Committee, 28 were declared inadmissible, 38 were discontinued, 33 are pending at the pre-admissibility stage (Annual Report of the Committee against Torture to the 54th Sess. of the UN General Assembly (1999), (Doc. A/54/44, para. 238). 9th Periodic Report of Luxembourg, Doc. CERD/C/277/Add. 2, para. 110. Doc. CERD/C/SR.1194, paras 20 and 32.
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submission and consideration of South Africa's initial report pursuant to article 9 para. 1 of the Convention, no further information is as yet available about the operation of the national procedure.
V. CERD's Attitude towards Article 14 Since CERD agreed in 1991, like other treaty bodies, to adopt after the consideration of each report of a State party a collective statement in the form of "concluding observations", it developed a practice of including in the concluding observations some reference to article 14. When a State party has made the declaration under para. 1, the Committee may express its satisfaction and when a State party indicates its willingness to consider making the declaration, the State party would be encouraged to take the necessary steps. In other instances, when a State party leaves it open whether it would accept the right of petition under article 14, the Committee occasionally recommends or suggests that the State party considers making the declaration. Since some members of the Committee made efforts that such recommendations or suggestions be included more consistently in the concluding observations with regard to each State party that had not made the declaration under article 14 para. 1, this issue led time and again to controversies between these members and a few other members who opposed such inclusion with the argument that the provision of article 14 was deliberately made optional and that states need not be reminded of this provision. Given the fact that the concluding observations reflect the collective opinion of the Committee and that they are adopted by consensus, a standard formula was finally worked out in order to accommodate the conflicting views. This standard formula, reflecting conspicuously the discord that exists among members, is now included in the concluding observations relating to many States parties. It reads: "It is noted that the State Party has not made the declaration provided for in Article 14 of the Convention and some (emphasis added) members of the Committee requested that the possibility of such declaration be considered."27
27
See for instance the Report of CERD to the 54th Sess. of the General Assembly (1999), Doc. A/54/18, para. 44 (Austria); para. 105 (Portugal); para. 182 (Syrian Arab Republic); para. 227 (Kuwait); para. 250 (Mongolia); para.
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It is genuinely regrettable that CERD as a custodian of the Convention is unable to take a common and solid stand on this issue. It is an anomaly that the body whose task it is to monitor the implementation of the Convention devaluates a strategic, though optional, provision of the Convention whilst the UN General Assembly in its annual resolutions on the work of CERD and the status of the Convention expresses itself in an undivided manner: "Requests States Parties to the Convention that have not yet done so to consider the possibility of making the declaration provided for in Article 14 of the Convention."28 Some States parties which have not made the declaration under article 14 announce their positive intentions and many others prefer to remain uncommitted or silent on the matter. However, a few States parties clearly state their intention not to accept the communications procedure under article 14. A clear illustration of this is the position of the United Kingdom. This State party argued in its 14th periodic report (22 August 1996): "... it does not believe that the making of such a declaration, which is optional under the Convention, would significantly enhance the nature of the existing legal framework for protecting the individual from racial discrimination in the United Kingdom. The overall effect of the various remedies, which include compensation, available within the United Kingdom under both domestic and international law, including through the right of individual petition under the European Convention on Human Rights, is already considerable."29 The reference to the right to petition under the European Convention on Human Rights — an argument also invoked by some other European countries which have not made the Declaration under article 14 — is not convincing. It is true that the European Convention, equipped with a fully-fledged Court, provides strong protection in many respects, but the protection against discrimination has always been one of the weaker aspects of the European Convention: the non-
28
29
270 (Haiti); para. 312 (Islamic Republic of Iran); para. 334 (Mauritania); para. 360 (Iraq); para. 413 (Latvia); para. 452 (Kyrgyzstan); para. 480 (Colombia); para. 502 (Azerbaijan); para. 521 (Dominican Republic); para. 543 (Guinea). See for instance A/RES/53/131 of 9 December 1998, para. 21, adopted without a vote. 14th Periodic Report of the United Kingdom of Great Britain and Northern Ireland, Doc. CERD/C/299/Add. 9, para.112.
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discrimination clause of the European Convention has no autonomous meaning and, as distinct from ICERD, the European Convention on Human Rights does not cover economic and social rights. Therefore, as a non-discrimination instrument ICERD is much more pervasive and wider in scope than the European Convention and the right of petition under ICERD is in no way overridden by the right of petition under the European Convention.30
VI. Article 14 in Operation As noted earlier, up till its 55th. Session (August 1999) only seventeen communications have reached CERD under the article 14 procedure. As mentioned above seven cases have been concluded with an Opinion on the merits; three cases have been declared inadmissible; two cases were declared admissible and transmitted for comments on the merits; five further cases are still in the pre-admissibility stage.31 The ten cases which have been concluded with an Opinion on the merits or with a Decision on the admissibility issue — these Opinions and Decisions were published in annual reports of the Committee in accordance with article 14 para. 8 — reveal some interesting aspects.
1. Foreign Origin First, the type of persons who made use of the communications procedure: a Turkish national residing in the Netherlands (Yilmaz-Dogan), a Senegalese citizen residing in Monaco-France (Demba Talibe Diop), a Moroccan citizen residing in the Netherlands (L.K.), a Norwegian citizen of Tamil origin and born in Mauritius (Michel L.N. Narrainen), an American citizen of African origin living in Denmark (C.P.), an Australian citizen of Italian origin residing in Australia (Barbara), other Australian citizens of respectively Pakistani and Indian origin residing in Australia (Z. U.B.S. and B.M.S.), a Swedish citizen of Czechoslovak ori30
31
It should be noted, however, that preparations leading to an additional protocol to the European Convention and providing for a general protection non-discrimination clause (Protocol No. 12) are now very advanced. Approval and entry into force of this protocol would considerably strengthen the non-discrimination thrust of the European Convention. See notes 20-23 above.
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gin residing in Sweden (D.S.), and a Tunisian citizen residing in Denmark (Ziad Ben Ahmed Habassi) all these persons whether or not citizens of the state against which they directed their complaints, were of foreign national or ethnic origin and as such were disposed to rely on the protection of ICERD and the procedure of article 14.
2. Economic and Social Rights Another notable aspect is that in the majority of the cases the complaints allege in substance violations of equality and non-discrimination in the area of economic and social rights (article 5 lit.(e)), in particular the right to work and access to employment (article 5 lit.(e) (i)) (Yilmaz-Dogan, Diop, C.P. case, Barbara, D.S. case, Z.U.B.S. case) and the right to housing (article 5 lit.(e) (iii)) (L.K. case). Further, alleged violation on racial grounds of the right to equal treatment before the tribunals (article 5 lit.(a)) and of the right to effective protection and remedies (article 6) was a central issue (Narrainen, L.K. case and Ziad Ben Ahmed Habassi respectively). While the limited number of cases do not warrant the drawing of general conclusions, they nevertheless appear to confirm the pattern that in daily life practices of racial discrimination affect the enjoyment of economic and social rights more directly than the enjoyment of civil and political rights. Equally, the cases also tend to show that states often fail to prohibit or bring to an end acts and practices of racial discrimination carried out by any persons, group or organisation, contrary to the prescription of article 2 para. 1 lit.(d) of the Convention.
3. Follow-up A further important aspect is the follow-up given to the Committee's Opinions in the light of the Committee's suggestions and recommendations pursuant to article 14 para. 7 lit.(b). In accordance with Rule 95, para. 5, of the Committee's rules of procedure the State party is invited to inform the Committee in due course of the action it takes in conformity with the Committee's Opinion. Thus, with regard to the YilmazDogan case where the Committee held that the petitioner was not afforded adequate protection in respect of her right to work and recommended that the State party ascertain whether the petitioner was again gainfully employed and provide her with such relief as may be consid-
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ered equitable, the Netherlands in its 9th periodic report informed the Committee that it had established that, after her dismissal, the petitioner had been either employed or received social security benefits, with the exception of a brief period. In respect of the period of unemployment, the Netherlands Government had agreed to provide for an ex gratia payment.32 In the L.K. case the Committee found that the police and judicial proceedings in the Netherlands did not afford the petitioner effective protection and remedies within the meaning of article 6 and recommended that the State party reviews its policy and procedures concerning the decision to prosecute in cases of alleged racial discrimination in the light of its obligations under article 4 of the Convention. Furthermore the Committee recommended that the State party provide the petitioner with relief commensurate with the moral damage he had suffered. In its 13th periodic report to the Committee, the Netherlands Government provided elaborate information on new and more strict anti-discrimination guidelines for the police and the public prosecutions department and it added that, in issuing these new guidelines, it believed that it had also complied with the relevant recommendation of the Committee in the L.K. case. Moreover, the Netherlands Government stated that, in consultation with the applicant's counsel and the applicant, it had provided reasonable compensation (8500 Dutch florins).33 In the Narrainen case the Committee did not conclude that a breach of the Convention had occurred but it felt nevertheless duty bound to recommend to the State party that every effort be made to prevent any form of racial bias from entering into judicial proceedings which might result in adversely affecting the administration of justice on the basis of equality and non-discrimination. The Committee therefore recommended that in criminal cases like the one it had examined due attention should be given to the impartiality of juries, in line with the principles underlying article 5 lit.(a) of the Convention. In its 13th periodic report to the Committee the Government of Norway did not explicitly refer to the Committee's recommendation in the Narrainen case but it may be assumed that the Government was mindful of this recommendation when it reported in connection with article 5 lit.(a) that the Ministry of Justice had issued a directive to all municipalities regarding the selection 32
33
9th Periodic Report of the Netherlands, Doc. CERD/C/182/Add. 4, para. 37. 13th Periodic Report of the Netherlands, Doc. CERD/C/319/Add. 2, para. 51.
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of jury members, emphasizing that it was of the utmost importance that the list from which jury members were selected, reflected the Norwegian population and that persons of different ethnic origins should appear on the list and also be selected for jury service.34 Equally, in two cases filed against Australia (B.M.S. and Z.U.B.S. cases) the Committee did not conclude that a violation of the Convention occurred but the Committee recommended, pursuant to para. 7 lit.(b) of article 14, that the State party take all necessary measures and give transparency to the applicable domestic procedures so that the system would in no way be discriminatory towards persons of foreign origin irrespective of their race or national or ethnic origin. The Committee also suggested that the State party simplify the procedures to deal with complaints of racial discrimination, in particular those in which more than one recourse measure is available, and avoid any delay in the consideration of such complaints. It would be most welcome, in terms of follow-up action, if Australia in its next periodic report would inform the Committee what actions it had taken in the light of the Committee's recommendations. In the case of Ziad Ben Ahmed Habassi v Denmark the State party responded quite expeditiously, two months after the Committee had formulated its suggestions and recommendations, to the Committee's invitation, pursuant to Rule 95, para. 5, of the rules, to receive information "as appropriate and in due course" on any relevant measures taken. In its note verbale the State party stated, inter alia, that the police and prosecution authorities involved in the case had been informed of the Committee's opinion and that arrangements had been made for it to be transmitted to relevant financial institutions. Furthermore, Denmark informed the Committee that it would provide compensation for reasonable and specified expenses for judicial assistance to the author of the communication. The Committee acknowledged this follow-up information which raised the issue of just and adequate reparation or satisfaction referred to in article 6 of the Convention. The Committee stated in this regard that it expected to examine this issue both in general and in connection with the forthcoming consideration of the next periodic report of Denmark.35 It is interesting to note that in cases where the Committee found that the State party had not provided the petitioner with adequate pro34 35
13th Periodic Report of Norway, Doc. CERD/C/281/Add. 2, para. 135. See the Committee's Annual Report for 1999 (Doc. A/54/18, paras 551552).
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tection under the Convention, it recommended that relief measures be taken as a means of reparation to the petitioner (Yilmaz-Dogan, L.K. case and the Habassi case], but it also recommended, as appropriate, that structural measures of a policy nature be taken, going beyond the individual case (L.K. case). Remarkably enough, the Committee recommended such further structural measures even where it had not established a breach of the Convention in the relevant individual cases (Narrainen, B.M.S. and 2.U.B.S. cases). These examples, still limited in numbers, show that communication procedures may have wider implications and effects than individual cases would suggest. Since there is a tendency and an expectation that the flow of communications under article 14 of the Convention will increase, CERD would be well advised to introduce a closer and more coherent system to monitor the follow-up of its suggestions and recommendations pursuant to para. 7 lit.(b) of article 14. In this respect, the experience gained by the Human Rights Committee would be instructive. For some ten years the Human Rights Committee has established and refined its monitoring of the follow-up given to the Views it adopted on communications received and considered under the Optional Protocol. For the follow-up of its Views it created the mandate of a Special Rapporteur, being one of the members of the Committee.36 A similar course of action by CERD would undoubtedly strengthen the meaning and impact of the communication's procedure of article 14.
VII. Final Remarks The overall picture regarding article 14 is not satisfactory. The balancesheet is very modest. While there are indications of slight progress, the overall statistics as regards acceptances of the petition procedure by States parties and the number of communications submitted under this procedure speak for themselves. The question arises why article 14 so far failed to gain impact and vitality, particularly taking into account that petition procedures under other human rights treaties, their optional character notwithstanding, 36
See in detail the Annual Report of the Human Rights Committee for 1999, Doc. A/54/40, Chapter VII (Follow-up Activities under the Optional Protocol).
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are progressively growing in reach and relevance. There are no easy answers to this question. One explanation might be that many states have always considered ICERD more a (foreign) policy instrument than a (domestic) rights document. This was at least the predominant perception about ICERD in the early years and has a continuing effect. The same perception influenced the role and the composition of CERD which, more than any of the other treaty bodies, has strong roots in international diplomacy. This background may also provide some indication why the Committee is divisive about the practical value of the petition procedure as an effective means to combat racial discrimination and why it fails to take a firm stand so as to impress upon States parties to make the declaration under article 14. Although the circumstances just described may offer some clue as to why only a limited number of States parties have made the declaration under article 14, they appear to be less relevant as an explanation why so few persons have resorted to the petition procedure vis-a-vis the States parties that have made the declaration. Here it would seem that the sheer lack of knowledge and information about the existence of article 14 as a possible recourse is a major impediment. While there is an increasing awareness among human rights lawyers and other interested people about the availability and the accessibility of petition procedures under other worldwide and regional human rights treaties, article 14 of ICERD is generally overlooked as a possible avenue of redress. It is a positive sign, however, that in recent years some important nongovernmental institutions, possessing a good deal of expertise on ICERD, have taken an active interest in article 14 and started to encourage and to assist the utilization of this communications procedure.37 In their dialogues with representatives of States parties which have made the declaration under article 14, members of CERD have raised this issue and the Committee, in its concluding observations pertaining to such States parties, has in several instances recommended that the public should be better informed about the remedies available under article 14 of the Convention.38 The need for publicity and information regarding the potential of article 14 must be emphasized consistently. With this purpose in mind 37
38
The Documentation and Advisory Centre on Racial Discrimination in Copenhagen; the Danish Centre for Human Rights; the European Roma Rights Centre in Budapest. See for instance the Annual Report of CERD for 1998, Doc. A/53/18, para. 50 (Russian Federation); para. 155 (Ukraine); para. 345 (Cyprus).
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States parties, CERD itself, human rights organizations and institutes, the legal profession and many constituencies combating racial discrimination must engage themselves in more vigorous and persistent action.
Annex Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination reads as follows: 1. A State Party may at any time declare that it recognizes the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State Party of any of the rights set forth in this Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. 2. Any State Party which makes a declaration as provided for in paragraph 1 of this article may establish or indicate a body within its national legal order which shall be competent to receive and consider petitions from individuals and groups of individuals within its jurisdiction who claim to be victims of a violation of any of the rights set forth in this Convention and who have exhausted other available local remedies. 3. A declaration made in accordance with paragraph 1 of this article and the name of any body established or indicated in accordance with paragraph 2 of this article shall be deposited by the State Party concerned with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the SecretaryGeneral, but such a withdrawal shall not affect communications pending before the Committee. 4. A register of petitions shall be kept by the body established or indicated in accordance with paragraph 2 of this article, and certified copies of the register shall be filed annually through appropriate channels with the Secretary-General on the understanding that the contents shall not be publicly disclosed. 5. In the event of failure to obtain satisfaction from the body established or indicated in accordance with paragraph 2 of this article, the petitioner shall have the right to communicate the matter to the Committee within six months.
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6. (a) The Committee shall confidentially bring any communication referred to it to the attention of the State Party alleged to be violating any provision of this Convention, but the identity of the individual or groups of individuals concerned shall not be revealed without his or their express consent. The Committee shall not receive anonymous communications; (b) Within three months, the receiving state shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State. 7. (a) The Committee shall consider communications in the light of all information made available to it by the State Party concerned and by the petitioner. The Committee shall not consider any communication from a petitioner unless it has ascertained that the petitioner has exhausted all available domestic remedies. However, this shall not be the rule where the application of the remedies is unreasonably prolonged; (b) The Committee shall forward its suggestions and recommendations, if any, to the State Party concerned and to the petitioner. 8. The Committee shall include in its annual report a summary of such communications and, where appropriate, a summary of the explanations and statements of the States Parties concerned and of its own suggestions and recommendations. 9. The Committee shall be competent to exercise the functions provided for in this article only when at least ten States Parties to this Convention are bound by declarations in accordance with paragraph 1 of this article.
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The Thematic Rapporteurs and Working Groups of the United Nations Commission on Human Rights Beate Rudolf I. II. III.
Introduction Development of the Thematic Mechanisms Legal Status of the Rapporteurs and Working Groups and its Significance for Customary Human Rights IV. Case Study No. 1: The Working Group on Enforced or Involuntary Disappearances 1. Origins and Procedure a. Public Character of the Procedure b. The Power to Deal with Individual Cases and the Applicable Procedure c. Further Procedural Achievements 2. Applicable Legal Standards 3. On-site-missions 4. Evaluation V. Case Study No. 2: The Working Group on Arbitrary Detention 1. Origins and Procedure a. Extent of the Mandate b. "Adversary" Character of the Procedure? c. The Procedure for Examining Individual Cases 2. Applicable Legal Standards 3. On-site-missions 4. Evaluation VI. Case Study No. 3: The Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance 1. Origins and Procedure 2. Applicable Legal Standards 3. On-site-missions 4. Evaluation VII. Conclusion 289 J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, 289-329. © 2000 Kluwer Law International. Printed in the Netherlands.
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I. Introduction Among the public procedures of the United Nations Commission on Human Rights (the "Commission") its so-called "thematic mechanisms" hold an important place. This term comprises Special Rapporteurs and Working Groups which deal with specific types of human rights violations and have a mandate that is not limited to a single country or geographical region. In contrast to mere "Study Rapporteurs", their task is not only to study a specific problem on a theoretical level, but also to examine individual cases of alleged violations of human rights falling within their specific subject area and to respond to them.1 The Commission first adopted this "thematic" approach of monitoring the implementation of human rights in 1980 to counter the criticism that the establishment of "Country Rapporteurs" is politically biased because it singles out certain states and disregards the human rights violations committed by others. Today, the "thematic mechanisms" constitute an accepted means of international monitoring of human rights on a worldwide level and outside the framework of special human rights treaties. The mandates of the thematic mechanisms are manifold; they cover all fundamental rights of the human person, e.g. life, liberty, the prohibition of torture, freedom of religion, freedom of opinion, and the prohibition of racial discrimination. In addition, there are thematic mechanisms on especially vulnerable groups, such as women, children, mi-
1
The scope of the term varies even within the United Nations system. The High Commissioner for Human Rights, e.g., lists indiscriminately Rapporteurs having the task of examining individual cases, Study Rapporteurs, and mandates entrusted to the Secretary-General or the High Commissioner, see http://www.unhchr.en/html/menu2/7/b/tm.htm-Earlier publications only mentioned the first category, see UN Action in the field of human rights (Doc. ST/HR/2/Rev.4), 1994, 20-22. The first CHR Resolution using the term was even more restrictive, see CHR/RES/1988/30 of 8 March 1988, ESCOR 1988, Suppl. 2, 85. The definition used in this article is shared by P. Alston, "The UN Commission on Human Rights", in: id. (ed.), The United Nations and Human Rights, 1992, 126 et seq., (160); T. van Boven, "'Political' and 'Legal' Control Mechanisms - Their Competition and Coexistence", in: A. Eide/B. Hagtred (eds), Human Rights in Perspective, 1992, 36 et seq., (44-45); M. Nowak, "Country-oriented Human Rights Protection by the UN Commission on Human Rights", NYIL 32 (1991), 39 et seq., (44); F. Newman/D. Weissbrodt, International Human Rights, 1990, 145.
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grants and internally displaced persons. Other thematic mechanisms pertain to a "third-generation right", the right to self-determination, and to a principle of municipal constitutional law, the independence of the judiciary. The success of the thematic mechanisms as a legal institution of the Commission is reflected in the fact that in UN parlance new procedures concerning economic, social and cultural rights are labelled "thematic" although they cannot be qualified as thematic mechanisms strictu sensu. They differ from earlier thematic mechanisms in that they do not monitor violations, but focus on the "progressive realization" of a right2 or on specific obstacles to the realization of so called "secondgeneration" human rights.3 The creation and naming of these procedures are due to the interest of developing countries in having recognized the equal importance of economic, social and cultural rights as compared to that of civil and political rights. For the international lawyer, the thematic mechanisms are of interest because they act as an independent intermediary between states and nongovernmental organizations (NGOs) or human rights activists in individual cases of alleged human rights violations. So far, however, the focus has mainly been on the actions of NGOs. When they provide relevant information to the thematic mechanisms and comment upon the responses of states, NGOs act on the international plane, and do so to an ever increasing extent. By these actions and by their participation in the debate on the reports of the thematic mechanisms within the Commission, NGOs also substantially influence the understanding of the applicable human rights norms. The role of such non-state actors in the formation and application of international law has gained recognition in recent years, but its legal significance remains difficult to assess.4 As is the case for the Special Rapporteur on the Right to Education, established by CHR/RES/1998/33 of 17 April 1998, para. 6(a)(l). The Commission chairman appointed Katarina Tomasevski (Croatia). For her latest report see Doc. E/CN.4/2000/6 and Add.l. As is the case for the Special Rapporteur on Effects of Foreign Debt on the Full Enjoyment of Economic, Social and Cultural Rights, established by CHR/RES/1998/24 of 17 April 1998, para. 9(a). The post is held by Reinaldo Figueredo Planchart (Venezuela). His first report is published in Doc. E/CN.4/2000/51 (as a joint report with the independent expert on structural adjustment policies). See, e.g., S. Hobe, "Global Challenges to Statehood: The Increasingly Important Role of Nongovernmental Organizations", Ind. J. Global Legal Stud. 5 (1997), 191 et seq.; id., "Der Rechtsstatus der Nichtregierungsorganisationen nach gegenwartigem Volkerrecht", AVR 37 (1999), 152 et seq.;
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In contrast, the activities of the Thematic Rapporteurs and Working Groups and their legal significance have not provoked similar interest.5 Despite the diversity of the thematic mechanisms established so far, two central questions arise for each of them: how do they collect and process the information they receive, and what standards do they use when evaluating information? The first question relates to the procedural rules to be applied by the Thematic Rapporteurs and Working Groups, and the second to the substantive law applicable. A comparison of the answers to the first question reveals a common minimum standard, a kind of procedural acquis onusien, and shows room for further development. The answer to the second question leads to the conclusion that the thematic mechanisms can contribute to the development or concretization of human rights under customary international law. To illustrate these two points, three thematic mechanisms will be compared in the following discussion. This analysis is preceded by a short history of the thematic mechanisms, their legal status and its significance for the development of customary human rights.
II. Development of the Thematic Mechanisms Like the Country Rapporteurs, the thematic mechanisms are "extraconventional mechanisms" of the Commission on Human Rights because they are created outside the framework of a special treaty for the protection of human rights. The legal basis for all of these "special procedures" is the power of the Commission, established by ECOSOC, to submit proposals, recommendations, and reports concerning all ques-
K. Hiifner, "Non-Governmental Organizations (NGOs) im System der Vereinten Nationen", Friedens-Warte 2 (1996), 115 et seq.; D. Otto, "Nongovernmental Organizations in the United Nations System: The Emerging Role of International Civil Society", HRQ 18 (1996), 107 et seq.; J. Smith/R. Pagnucco/G.A. Lopez, "Globalizing Human Rights: The Work of Transnational Human Rights NGOs in the 1990s", HRQ 20 (1998), 379 et seq. For a recent in-depth-study of thematic mechanisms see B. Rudolf, Die thematischen Bericbterstatter und Arbeitsgruppen der UN-Menschenrechtskommission, Beitrage zum auslandischen offentlichen Recht und Volkerrecht, Bd.142, 2000. For a study on the procedural aspects of their work see O. de Frouville, Les procedures thematiques: une contribution efficace des Nations Unies a la protection des droits de I'homme, 1996.
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tions of human rights.6 When the Commission was enlarged in 1966 to respond to the increased number of UN Member States after decolonization, it abandoned its doctrine according to which it had "no power to act" on individual communications alleging human rights violations.7 This change of heart was ratified by ECOSOC through the adoption of Resolution 1235 (XLII) of 6 June 1967, which instituted an initial, albeit weak, procedure to deal with information on alleged violations of human rights, including individual cases.8 By enabling the Commission to deal with the human rights situation in a specific country in an open debate, ECOSOC limited the states' reserved domain to an important extent. However, individual cases of human rights violations could not be dealt with in this procedure, but only in the confidential procedure established by ECOSOC Resolution 1503 (XLVIII) in 1970.9 The apparent lacuna of these two procedures was that only states that were politically isolated at the time became the object of public debate, such as South Africa, Israel, and Chile. In the 1970s, NGO pressure in Western countries led to an increased recognition of the realization of human rights as a foreign policy objective. On the level of the UN, the first tangible result of this position was the institution of Country Rapporteurs.10 But as the decision to set up a country mechanism depended on a majority in the Commission on Human Rights and in ECOSOC, a number of states escaped such monitoring either because they enjoyed the support of their political allies or because they could hide behind a misconceived understanding of regional solidarity. Consequently, this
6
7
8
9 10
E/RES/5 (I) of 16 February 1946, as amended on 18 February 1946, ESCOR 1946, Verbatim and Summary Records, Annex 8, 163 (para. 1), and E/RES/9 (II) of 21 June 1946, ibid., page 400 (para. 1). For this doctrine see Commission on Human Rights, Report to the ECOSOC on the 1st Sess. of the Commission, ESCOR 1947, Suppl. 3 (Doc. E/259), para. 22, approved by E/RES/75 (V) of 5 August 1947, ESCOR 1947, Resolutions, 20 (Doc. E/573). For the background of the change see: T. Gonzales, "The Political Sources of Procedural Debates in the United Nations: Structural Impediments to Implementation of Human Rights", N.Y.U.J.Int'lL.<& Po/.13 (1981), 427 et seq., (450). For further background see, e.g., H. Tolley jr., "The Concealed Crack in the Citadel: The United Nations Commission on Human Rights' Response to Confidential Communications", HRQ 6 (1984), 420 et seq. Of 27 May 1970, ESCOR 1970, Suppl.l A, 8. For a list of them see Alston, see note 1, 62.
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type of special procedure was easily criticized for applying a double standard.11 This consideration was used by the Argentine government to rally support for its resistance to the creation of a Country Rapporteur to investigate the massive cases of disappearances in its country after the military coup, and it led to the creation of the first thematic mechanism in 1980, the "Working Group on Enforced or Involuntary Disappearances"12. Since then, three main phases can be distinguished in the development of the thematic mechanisms: a first "probationary" phase which lasted until 1985. During this time, only two further thematic mechanisms were created (the "Special Rapporteur on Mass Exoduses" in 1981, who was abolished a year later,13 and the "Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions" in 198214), and the Commission reacted harshly to attempts of criticism, in particular to the fact that reports named states as having violated human rights.15 A second phase of consolidation followed in the years between 1985 and 1987. Not only were three more thematic mechanisms instituted (on torture,16 religious intolerance,17 and on mercenaries18), but the Com-
11
12
13
14
15
16
T.M. Franck, "Of Gnats and Camels: Is there a Double Standard at the United Nations?", AJIL 78 (1984), 811 et seq., (821-825); H. Boeckle, "Western States, the UN Commission on Human Rights, and the '1235Procedure': The Question of Bias Revisited", NQHR 13 (1995), 367 et seq. See under IV. Its present members are Ivan Tosevski (ChairmanRapporteur, the former Yugoslav Republic of Macedonia), Agha Hilaly (Pakistan), Jonas K.D. Foli (Ghana), Diego Garcia-Sayan (Peru) and Manfred Nowak (Austria). Their latest report is contained in: Doc. E/CN.4/2000/64 and Add. 1. Established by CHR/RES 29 (XXXVII) of 11 March 1981, ESCOR 1981, Suppl. 5, 230, and abolished by CHR/RES/1982/32 of 11 March 1982, ESCOR 1982, Suppl. 2, 150. Established by CHR/RES/1982/29 of 11 March 1982, ESCOR 1982, Suppl. 2, 2 and 147. Presently, the post is held by Asma Jahangir (Pakistan). Her last report is contained in: Doc. E/CN.4/2000/3 and Add. 1-3. M.Bossuyt, "The Development of Special Procedures of the United Nations Commission on Human Rights", HRLJ 6 (1985), 179 et seq., (196197). Special Rapporteur on the Question of Torture, established by CHR/RES/1985/33 of 13 March 1985, ESCOR 1985, Suppl. 2, 71. Presently, the post is held by Sir Nigel Rodley (UK). For his last report see Doc. E/CN.4/2000/9 and Add. 1-3.
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mission came to regard the existence of such mechanisms as an established type of special procedure and gradually tolerated clear language of the reports. However, the third phase, in which new and diverse thematic mechanisms were created, did not begin until 1990, after the UN's financial crisis at that time had been overcome. Since then, nine new thematic mechanisms were set up, sometimes two at a time. Among these mechanisms were the "Working Group on Arbitrary Detention"19, a Special Rapporteur on the sale of children,20 on internally displaced persons,21 on freedom of opinion,22 on racial discrimination,23 on violence against women,24 on the independence of the judiciary,25
17
18
19
20
21
22
23
24
Special Rapporteur on the Question of Religious Intolerance, established by CHR/RES/1986/20 of 10 March 1986, ESCOR 1986, Suppl. 2, 66. The present holder of the post is Abdelfattah Amor (Tunisia). His last report is contained in: Doc. E/CN.4/2000/65. Special Rapporteur on the Use of Mercenaries as a Means of Impeding the Exercise of the Right of Peoples to Self-Determination, established by CHR/RES/1987/16 of 9 March 1987, ESCOR 1987, Suppl. 5, 58. The post has been held continuously by Enrique Bernales-Ballesteros (Peru). For his last report see Doc. E/CN.4/2000/14 and Corr. 1. See under V. Its members are Kapil Sibal (Chairman, India), Louis Joinet (Vice-Chairman, France), Roberto Garreton, (Chile), Laity Kama (Senegal) and Petr Uhl (Czech Republic). Their latest report is contained in Doc. E/CN.4/2000/4 and Add. 1-2. Special Rapporteur on Sale of Children, Child Prostitution and Child Pornography, established by CHR/RES/1990/68 of 7 March 1990, ESCOR 1990, Suppl. 2, 145. Presently, the post is held by Ofelia Calcetas-Santos (Philippines). Her last report is contained in Doc. E/CN.4/2000/73 and Add.1-3. Representative of the Secretary-General on Internally Displaced Persons, established by CHR/RES/1991/25 of 5 March 1991, ESCOR 1991, Suppl. 2, 69. Since the beginning, the holder of the post has been Francis Deng (Sudan). For his last report see Doc. E/CN.4/2000/83 and Add. 1-2. Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, established by CHR/RES/1993/45 of 5 March 1993, ESCOR 1993, Suppl. 3,154. The post is held by Abid Hussain (India). His last report is published in: Doc.E/CN.4/2000/63 and Add. 1-4. See under VI. The post is held by Maurice Glele-Ahanhanzo (Benin). For his last report see Doc. E/CN.4/2000/16 and Add. 1. Special Rapporteur on Violence against Women, its Causes and Consequences, established by CHR/RES/1994/45 of 4 March 1994, ESCOR 1994, Suppl. 4, 26 and 140. The post is held by Radhika Coomaraswamy
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and on the effects of illicit dumping of toxic products on the enjoyment of human rights26. In 1998, after a temporary standstill, the most recent Special Rapporteur was instituted, dealing with the rights of migrants.27
III. Legal Status of the Rapporteurs and Working Groups and its Significance for Customary Human Rights The Special Rapporteurs and members of Working Groups are subsidiary bodies of the UN.28 They are appointed as independent experts in their personal capacity and are thus only subject to the directions of the Commission on Human Rights.29 As "experts on mission" they enjoy the privileges and immunities that are provided for by the Convention on the Privileges and Immunities of the United Nations,30 in particular immunity from legal proceedings for any acts committed "in the course
25
26
27
28
29
30
(Sri Lanka). Her last report is published in: Doc. E/CN.4/2000/68 and Add. 1-2. Special Rapporteur on the Independence and Impartiality of the Judiciary, Jurors and Assessors, and on the Independence of Judges and Lawyers, established by CHR/RES/1994/41 of 4 March 1994, ESCOR 1994, Suppl. 4, 25 and 135 (in 1995 abbreviated as "Special Rapporteur on the Independence of Judges and Lawyers", CHR/RES/1995/36 of March 1995, ESCOR 1995, Suppl. 4, 118). The post is held by Dato' Param Cumaraswamy (Malaysia). His last report is published in: Doc. E/CN.4/2000/61 and Add. 1. Special Rapporteur on the Adverse Effects of the Illicit Movement and Dumping of Toxic and Dangerous Products and Wastes on the Enjoyment of Human Rights, established by CHR/RES/1995/81 of 8 March 1995, ESCOR 1995, Suppl. 4, 241. The post is held by Fatma Zohra Ksentini (Algeria). For her last report see Doc. E/CN.4/2000/50 and Add. 1. CHR/RES/1999/44 of 27 April 1999. The Commission chairman appointed Gabriela Rodriguez Pizarro (Costa Rica). Her preliminary report is contained in: Doc. E/CN.4/2000/82. G. Jaenicke, "On Article 7", 195 et seq.; Mn. 9 and 15, in: B. Simma (ed.), Charter of the United Nations. A Commentary, 1994. See generally: Office of Legal Affairs of the Secretary-General, "Practice of the United Nations, the Specialized Agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: supplementary study prepared by the Secretariat", ILCYB 1985 II-1, 145-210, (180, para. 10). Of 3 February 1946, UNTS Vol. 1 No. 4 .
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of the performance of the mission."31 Recently, the need for such immunity became apparent when the courts of Malaysia denied the Special Rapporteur on the Independence of the Judiciary immunity in defamation actions for a statement he made during a press conference.32 In its Advisory Opinion on extent of such immunity, the ICJ rightly held that article VI Sect. 22 of the Convention has to be understood as encompassing all acts that are related to the mission, including public statements, and is not limited to acts by which the mandate is fulfilled.33 The Court did not have to answer the question of who decides on whether a contested act falls within this provision, and only referred to the "pivotal role" of the Secretary-General.34 The Secretary-General holds the view that he has the exclusive authority to make this determination.35 However, his decision does not have legally binding force, as can be concluded from article VIII Sec. 29 and 30 of the Convention, which provide for compulsory dispute settlement, including the power of the ICJ to give binding Advisory Opinions in disputes about the interpretation or application of the Convention. As a consequence, a UN Member State has to resort to these means of dispute settlement if its government or its courts disagree with the legal opinion expressed by the Secretary-General. The status of the thematic mechanisms as subsidiary organs of the UN is of legal importance because their actions are attributable to the UN. Consequently, acts performed within the discharge of the mandate must be regarded as the practice of an international organization. If accompanied by an opinio iuris, they are, therefore, capable of contributing to the development of customary international law. Both the lan31
See also CHR/RES/1991/33 of 5 March 1991, ESCOR 1991, Suppl. 2, 86, para. 1.
32
He now faces judgements for damages totalling US$ 112 Mio., see the written statement of the Secretary-General of 2 October 1998 submitted to the ICJ, paras 16, 21 and 23 (http://www.icj-cij.org/icjwww/idocket/ inuma/inumaframe.htm, last visited on 3 December 1999).
33
ICJ - Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion of 29 April 1999, paras 53-55.
34
Id., see note 33, para. 50.
35
As expressed, e.g., in his statement to the ICJ, see note 32, paras 38-49, and generally in the study of the UN Secretariat, The Practice of the United Nations, the Specialized Agencies and the IAEA concerning their Status, Privileges and Immunities, Doc. A/CN.4/L.383/Add.l, para. 57; M. Gerster, "On Article 105", 1137 et seq., Mn. 24, in: Simma, see note 28.
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guage of Article 38 para. 1 lit.(b) of the Statute of the ICJ, which refers to "general practice", and not merely to "state practice", and the case law of the Court reflect the understanding that not only states, but all subjects of international law, participate in forming customary law.36 Although this possibility has been widely accepted as a theoretical possibility,37 it is rarely tested in practice. In the field of human rights, this finding assumes particular relevance because the activities of the Thematic Rapporteurs and Working Groups can participate in shaping the contents of the human rights they are to monitor. A necessary prerequisite for their practice to be conductive to customary international law is that the Commission approves of the acts performed by them and thus does not express an opinio iuris to the contrary. A further necessary prerequisite for this hypothesis is that the mechanisms act on the international plane, i.e., in an interaction with a subject of international law. This precondition is fulfilled if a Special Rapporteur or Working Group engages in a dialogue with a state concerning an alleged violation of human rights and reaches a finding on the existence vel non of a violation in a specific case. In this case, the actions of the thematic mechanism as an organ of the UN do not differ from the actions of states in their international relations, which are re36
37
See, e.g., Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, 15 et seq., (25) and the joint Dissenting Opinion of judges McNair, Read and Hsu Mo, ibid., 31 et seq., (35); Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Judgement, ICJ Reports 1974, 3 et seq., (26); Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Judgement, ICJ Reports 1996, 595 et seq., (611, para. 20). See, e.g., the report of the ILC to the General Assembly, ILCYB 1950 II, 364 et seq., (372); M. Akehurst, "Custom as a Source of International Law", BYIL 47 (1974/75), 1 et seq., (11); C.H. Alexandrowicz, The LawMaking Function of the Specialized Agencies of the United Nations, 1973, 2 (expressly on the UN and its specialized agencies); J.A. Barberis," Reflexions sur la coutume Internationale", A.F.D.I 36 (1990), 9 et seq., (33/34); G. Dahm/J. Delbriick/R. Wolfram, Volkerrecht, Vol.I/1, 1989, 56; G. Danilenko, "The Theory of International Customary Law", GYIL 31 (1988), 9 et seq., (20 et seq.); L.F. Bravo, "Methodes de recherche de la coutume Internationale dans la pratique des Etats", RdC 192 (1985), 233 et seq., (298); Sir R. Jenning/Sir A. Watts, Oppenheim's International Law, Vol.I/1, 1992, 47; Nguyen Quoc Dinh/P. Daillier/A. Pellet, Droit International Public, 1994, 318 et seq.; K. Wolfke, Custom in Present International Law, 1993, 81-83 and 152.
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garded as conductive to the development of customary law. Such a conclusion is, however, not possible if other states contradict the opinio iuris expressed by the thematic mechanism.
IV. Case Study No. 1: The Working Group on Enforced or Involuntary Disappearances 1. Origins and Procedure The difficult and tortuous negotiations that led to the establishment of the Working Group on Enforced or Involuntary Disappearances in 1980 were successful only because some of the central questions were left open, namely the definition of disappearances and the power of the Group to deal with individual cases of alleged violations.38 The text adopted defined the task of the Working Group as "to examine questions relevant to enforced or involuntary disappearances",39 and thus neither referred to "cases", as proposed by the United States, nor did it refer to "urgent situations", as had been the counter-proposal of the non-aligned states.40 When the Argentine delegation declared after the adoption of the resolution that the Working Group had to respect ECOSOC Resolution 1503 (XLVIII),41 the tone was set for the future resistance to the work of the Working Group. This position aimed at limiting the Working Group to finding whether a "consistent pattern of gross and reliably attested violations" exists, to confidentiality of its procedure, and to the requirement of the exhaustion of local remedies. a. Public Character of the Procedure If the request for confidentiality had been successful, the Working Group would have been deprived of its only possibility to sanction non-compliance with international law, that of exerting public pressure.
38
39
40 41
For its present membership, see note 12. For a detailed account of the negotiations see D. Kramer/D. Weissbrodt, "The 1980 U.N. Commission on Human Rights and the Disappeared", HRQ 3 (1981), 18 et seq. CHR/RES/20 (XXXVI) of 29 February 1980, ESCOR 1980, Suppl. 3, 180, para. 1. For a detailed analysis of the text see Rudolf, see note 5, 62-63. ESCOR 1980, Suppl. 3A, Annex IX, 143.
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For this reason, the Group spent much effort in its initial years on establishing its power to name the countries to which it transmitted information of alleged disappearances42 and to publish the replies of governments.43 In its resolution on the first report submitted by the Working Group, the Commission seemed to heed the call for such confidentiality, when it reminded the Working Group of its obligation "to discharge its mandate with discretion, so as, inter alia, to protect persons providing information or to limit the dissemination of information provided by Governments."44 This reminder, however, proved to have been mere lip-service to the principle of discretion because the Commission did not take any further action when the Working Group continued to publish the information it had transmitted and the governmental replies thereto. The Working Group even changed the presentation of information in its reports so as to increase public pressure: from 1984, it gave an account of the alleged violations, of governmental replies and of NGO comments on a country-by-country basis. Although the Working Group refrained from taking a stand on the accuracy of either position, this juxtaposition at last permits a reader to read between the lines and thus to get a more truthful picture of the situation in a given country. Furthermore, this approach put an end to the former practice of reproducing governmental replies verbatim in an official document, which had created the wrong impression of them being accepted by the organization. Finally, in 1995, the Working Group began to add its own "observations" to the government and NGO information on a specific country and thus started to evaluate openly the information before it.45 This positive development, however, came to a standstill because of the severely limited financial resources available to the Working Group.46 A further means of using public pressure is that the Working Group reminds states of yet unresolved cases that it transmitted in the past. In addition, until 1994 it concluded a section on a state by a statistical list 42
43
44
45 46
For this criticism see, e.g., the statement of Algeria (Doc. E/CN.4/SR.1606, paras 20-21) and Brasil (Doc. E/CN.4/SR.1605, paras.40-41), and the account of the debate in: ESCOR 1981, Suppl. 5, para. 203. For criticism, see, e.g., the statement of Argentina, Doc. E/CN.4/1435, Annex IX, 2-3. CHR/RES/10 (XXXVII) of 26 February 1981, para. 4, ESCOR 1981, Suppl. 5, 209. Doc. E/CN.4/1995/36. Doc. E/CN.4/1999/62, para. 7.
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of resolved and unresolved cases. Although human rights groups criticized this method as "dehumanizing" the problem of disappearances,47 it at least serves as an additional reminder of outstanding cases, and thus puts additional public pressure on the state concerned. While the Commission on Human Rights repeats its approval of the Group's working methods every year and calls upon the states to cooperate with the mechanism, it has never taken any specific action to increase significantly the pressure on states by, e.g., singling out the most uncooperative states. The general approval and the absence of specific criticism at least permit the conclusion that the acts of the Working Group are attributable to the Commission and thus are relevant for determining the contents of the customary human rights in question. b. The Power to Deal with Individual Cases and the Applicable Procedure As already mentioned, the question of whether the Working Group was empowered to deal with individual cases of alleged disappearances was left unresolved.48 However, the text of the mandating resolution provided a strong indication for such power by providing that the group should "respond effectively to information that comes before it".49 This conclusion is warranted by a comparison with the interpretation of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and other Arabs of the Occupied Territories established by the General Assembly that its power "to investigate" and "to report" excluded the "power to make an effective response to the numerous appeals made to it."50 It is noteworthy that the Commission's resolution on the first report did not even call into question this part of the work carried out by the Working Group. Western states had made it clear during the debate that they supported the Group, and the General Assembly had called for its continuation.51 The states opposing such power, most notably Argentina, therefore realized that at47 48 49 50
51
Doc. E/CN.4/1984/21, para. 16. See under I V.I. CHR/RES/20 (XXXVI), see note 39, para. 6. Doc. A/8089, para. 44 (emphasis added). See also: E.G. Ramcharan, "Introduction", in: id. (ed.), International Law and Fact-finding in the Field of Human Rights, 1982,1 et seq., (5). GA/RES/35/193 of 15 December 1980, GAOR 35th Sess., Suppl. 48 (Doc. A/35/48), 206 et seq., para. 2.
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tempts to restrict the mandate to consistent patterns of reliably attested violations, as provided for in ECOSOC Resolution 1503 (XLVIII), were futile,52 and chose another approach. The opponents of the mechanism put forward that the admissibility conditions for information on an individual case were identical to those contained in Resolution 1503 (XLVIII), i.e. that the local remedies had to be exhausted, before the Working Group could take up the examination of that individual case.53 This interpretation did not win the support of the Commission's majority, as can be concluded from the oblique reference in the considerations of its Resolution in 1981 to "the need to observe United Nations standards and practice regarding the receipt of communications, their transmittal to Governments concerned and their evaluation".54 The Working Group paid lip-service to this requirement,55 but continued without substantive changes. The fact that the Commission did not adopt a more precise clause subsequently but moved it into the operative part of its resolutions, and its general approval of the work carried out must be regarded as an implicit approval of that practice.56 This also explains why the attempt failed to transfer the local remedies rule as codified in the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) to the practice of the Working Group.57 When rejecting this approach, the Group pointed to the humanitarian character of its task and the Commission's approval of its practice.58 The self-conception of the Working Group as being a purely "humanitarian" mechanism is a recurrent theme and explains why the procedure of dealing with individual communications has not reached a high level of sophistication. Its purpose is to clarify the fate of a victim of an alleged enforced disappearance, and not to make a finding on the responsibility of a state. This objective and the large number of cases 52
53
54 55 56
57 58
But see the statement of the USSR and Ethiopia (Doc. E/CN.4/1982/SR.38, paras 125 and 142, respectively). Doc'. E/CN.4/1435, paras 74-76, and Annex IX (Argentina), repeated in 1981 (Doc. E/CN.4/1492, para. 51), and Doc. E/CN.4/1982/SR.38, para. 125 (USSR). CHR/RES/10 (XXXVII), see note 44, 5th consideration. Doc. E/CN.4/1984/21, para. 5. See CHR/RES/1984/23 of 6 March 1984, ESCOR 1984, Suppl. 4, 57, para. 5. As was the position of Colombia, cf. Doc. E/CN.4/1986/18, para. 6. Doc. E/CN.4/1986/18,para. 26.
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dealt with59 cause the Group to summarize the information transmitted to a government in general terms, describing typical groups of victims and circumstances of disappearances. The reports do not contain detailed accounts of how the Working Group evaluated allegations of violations that it received, nor do they identify the cases that the government replied to. The major achievement of the Working Group is having established the principle of equality of arms between the sources of alleged violations and the states by obliging the latter to respond to the allegations and by permitting the former to comment on the response.60 The procedure begins with the receipt of information on an alleged case of disappearance by the Working Group. It must at least contain the name of the alleged victim, the time, place and circumstances of his or her disappearance, or information about the detention center in which the victim was last seen, and the measures taken to investigate the case. The Group examines whether this information is plausible by comparing it with other information on the state in question, namely the circumstances of an enforced disappearance or the details given on the detention center in question. If the question of plausibility is answered in the affirmative, the information is transmitted to the government for investigation and conclusive clarification. If the governmental reply contains information that the Working Group regards as definitely clarifying the fate of the victim, it lists the case as being resolved. If however, as is true for a larger number of cases, the government cannot give information on the present whereabouts of a person or is unwilling to do so, or if it refutes the allegations in an unsubstantiated way, the Group asks the source of the initial information for a comment. If that comment contradicts the reply "on reasonable grounds", the case remains on file and the government is requested again to respond. Even in the absence of a comment by the source, the Working Group reserves the right to request supplementary information from the state if it is not satisfied by its reply.61 However, it did not set up a time limit for such replies.
59
60
61
As of 1999, the Working Group has transmitted a total of 48.770 cases to 79 governments. 2.926 of them have been clarified, while 45.825 cases are still outstanding, see Doc. E/CN.4/1999/62, para. 334. A summary of the working methods is contained in the 9th Report of the Working Group (Doc. E/CN.4/1988/19, paras 20-30). For initial criticism see, e.g., the statement of Ethiopia (Doc. E/CN.4/1982/ SR.38, paras 142-143) and of Nicaragua (ibid., para. 155).
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The quest for clarifying a case conclusively limits the possibilities for the Working Group to sanction uncooperative states. This explains why it did not feel in a position to follow the proposal to resort to the presumption of truthfulness of an allegation if a state does not contradict in a substantiated way.62 The purpose of the procedure also explains the large number of unresolved cases on file with the Group. Without the power and means of the Working Group to undertake investigations on site, the crucial factor for clarifying cases is the willingness of a government to investigate seriously. Public pressure is of itself not enough to spur cooperation if a state uses enforced disappearances in a systematic way or if civil strife seriously limits its possibilities for investigation. c. Further Procedural Achievements During the debate on the creation of a mechanism on disappearances, human rights organizations already pointed to the need for the Working Group to react quickly once it receives information on a case of enforced disappearance.63 Their experience showed the crucial role of protective action for a victim in the first days after his or her arrest. For this reason, the Working Group decided in its first year to create an "urgent action" procedure permitting its chairman to act between the Group's sessions.64 Typically, he contacts the government of the state in question and requests it to investigate into the allegations, and to ensure the safety of the alleged victim. The legal basis for this procedure is the reference in the mandating resolution to the need "to respond effectively to information that comes before it".65 Some states criticized this procedure as an act ultra vires because it did not concern massive and flagrant violations.66 As this view was based on a wrong equation of the
62
63
64 65 66
Subcommission/RES 15 (XXXIV) of 10 September 1981, para. 6b), Doc. E/CN.4/1512, 88, see also N. Rodley, "U.N. Action Procedures Against "Disappearances", Summary or Arbitrary Executions, and Torture", HRQ (1986), 700 et seq., (715); Amnesty International (ed.), "Disappearances" and Political Killings, 1994, 203. This approach stands in stark contrast to that of other human rights bodies, see note 110. See the joint statement of several NGOs, reprinted in: Newman/Weissbrodt, see note 1, 132-156. Doc. E/CN.4/1435, para. 30. CHR/RES/20 (XXXVI), see note 39, para. 6. As did the USSR in 1981, (Doc. E/CN.4/SR.1605, para. 12) and Ethiopia in 1982 (Doc. E/CN.4/1982/SR.38, para. 142).
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thematic mechanism with Resolution 1503 (XLVIII), the Commission was right in not sharing it. The reference to the need to protect persons providing information to the Working Group that the Commission made in its resolution on the first report67 constituted another major achievement of the mechanism. Without this recognition, it would not have been in a position to keep the identity of its sources confidential,68 and would have endangered human rights activists and thus would have jeopardized its own work. To improve the protection of its sources, the Working Group instituted a "prompt intervention" procedure.69 Under this procedure, the Group contacts a state immediately when it receives information on threats against, or the disappearance of, persons who have cooperated with it in the past. By these two procedures, the latter also being applied to witnesses or relatives of a disappeared person, the Working Group created a set of procedures to render its work effective. They have served as an example for all thematic mechanisms established subsequently.
2. Applicable Legal Standards For the purpose of defining its own mandate, the Working Group had to define the term "enforced or involuntary disappearance". It understands it as denoting an arrest, detention or abduction of a person by personnel established as, or believed to be, an organ of the government, or to be controlled by it, or in case of overt or latent governmental complicity.70 A further precondition is that the government in question denies its responsibility or does not account for these actions. In case of doubt as to the government involvement, the Working Group deals with the case. Because of the immense obstacles it faced in the beginning, the Working Group played down the legal impact of its work by insisting on the "humanitarian character" of its work. As a consequence of its non-judgmental approach, the Group closes a file when a person reappears alive; if, however, the victim is found dead, it will continue to investigate the case, provided his or her fate is unaccounted for some time between the arrest and the time of death. 67 68 69 70
See under IV. 1. a. As was criticized by Argentina (Doc. E/CN.4/1435, paras 74-76). Doc. E/CN.4/1991/20, para. 26 and Doc. E/CN.4/1992/18, para. 34. Doc. E/CN.4/1435, paras 3-4.
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The identification of the human rights violated in the case of a disappearance contained in its initial reports remained rather superficial and was not used as a yardstick in the examination of information in subsequent years. The Working Group lists, inter alia, the victim's right to liberty and security, in particular the prohibition of arbitrary arrest, and the right to a fair trial.71 By doing so, it adopts a more extensive approach than the Inter-American Commission on Human Rights or the Human Rights Committee, which only consider the violation of the right to liberty.72 Furthermore, it points to the rights of the victim's family, such as the right to family life, and the right to an appropriate standard of living and to education. In the view of the Working Group, the latter three rights are infringed upon by the psychological and financial consequences of a disappearance.73 This understanding reveals an extensive interpretation of the scope of application of human rights that also encompasses indirect consequences of an act of the state. This approach is correct, as these consequences are not only foreseeable, but are also intended because they serve as a means of intimidating the family and general public. Against this background, the Working Group would only be consequential to share the view of the Human Rights Committee and the Inter-American Commission according to which the psychological suffering of the victim's family amount to a violation of the prohibition of inhuman treatment.74 The humanitarian approach, and more specifically the lack of concern for the attributability of an enforced disappearance to the state, excluded any relevance of the Group's work in respect of the concretization of the customary human rights during that period. In contrast, in 71
72
73 74
Doc. E/CN.4/1435, paras 184-187; it also lists the rights that typically, but not necessarily, are infringed upon, such as the right to humane detention conditions, the prohibition of torture, and the right to life, see Doc. E/CN.4/1983/14, para. 131. For the former see, e.g., Resolution 17/82 (Case No.7821) and Resolution 18/82 (Case No.8722), OAS, Annual Report of the Inter-American Commission on Human Rights 1981-1982 (OEA/Ser.L/V/II.57, Doc.6 Rev.I), 87 and 89; for the latter see, e.g., the case of Elena Quinteros Almeida and Maria del Carmen Quinteros v. Uruguay, Decision of 21 July 1983, Communication No.107/1981, Yearbook of the Human Rights Committee 19831984, Vol.11 (CCPR/4/Add.l), 523 et seq, para. 13. Doc. E/CN.4/1435, paras 184-187. See the Case of Quinteros v. Uruguay, see note 72, para. 14, and OAS, Annual Report of the Inter-American Commission on Human Rights 19821983 (OEA/Ser.L/V/II.61, Doc. 22, Rev. I), 31.
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its observations on country situation made since 1995, the Working Group uses the 1993 UN-Declaration on the Protection of All Persons from Enforced Disappearance75 as a yardstick for its evaluation. It thus started to express an opinio iuris through its observations. Given the relatively low number of instances in which the Group unequivocally concluded that a state does not meet these international standards, its reports have not yet become an important source for the concretization of the customary human rights at issue. At least, however, the work of the Group did contribute to creating an opinio necessitate of codifying legal rules to outlaw disappearances, as was done by the adoption of the 1993 UN Declaration, which may become the catalyst for the development of customary law rules. The way in which the Group handles individual cases and communicates with governments reveals at least one clear opinio iuris, e.g., the conviction that a state is obliged to investigate alleged cases of disappearances. The Working Group derives this obligation from the states' "responsibility for what happens within their borders".76 Despite its misleading wording, the Working Group does not understand this term as being a rule of imputability that also covers private acts. This conclusion must be drawn from its refusal to deal with cases of disappearances that were, according to the information submitted by the source, allegedly committed by terrorist groups.77 In addition, the Working Group found the legal basis of the states' obligation to investigate cases of disappearances in their obligation to punish the persons responsible for a disappearance, and on the right of the victims' relatives to know about the fate of the disappeared person.78 Based on these considerations, the Group did not accept the argument that abuses were committed by a past regime79, and it rejected the attempts of states to end the investiga75
76
77
78 79
A/RES/47/133 of 18 December 1993, GAOR 47th Sess., Suppl. 49 Vol.1 (Doc. A/47/49), 207. This was already stressed during the debate on the establishment of the mechanism, see ESCOR 1980, Suppl. 3, para. 215. E.g. by Tamil guerrilleros (Doc. E/CN.4/1992/Add.l, paras 104 and 186) and kidnapping in the former Yugoslavia with the aim of extorting ransom (Doc. E/CN.4/1994/26/Add.l, para. 49). Doc. E/CN.4/1435, paras 7-9, and Doc. E/CN.4/1988/19, para. 19. This argument was put forward by Nicaragua after the overthrow of the regime of Somoza by the Sandinistas, Doc. E/CN.4/SR.1605, para. 18, and contradicted by the Working Group in: Doc. E/CN.4/1988/19, para. 30. Since 1992, Nicaragua no longer challenges its obligation to investigate these cases, see Doc. E/CN.4/1992/SR.26, para. 28.
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tion of past abuses by enacting laws to that end.80 It is noteworthy that it was upon the recommendation of the Working Group that this unrestricted obligation to investigate was inserted into the 1993 UN Declaration on Enforced Disappearance (para. 13).81
3. On-site-missions The last achievement of the Working Group to be mentioned here is perhaps its most significant contribution to the institution of thematic mechanisms: already in its first report, the Working Group suggested that it be invited to carry out missions into Member States to deal with the problem of disappearances on site, and it even named possible candidates for such visits.82 The legal basis for this proposal was the power of the Group "to seek and receive information". However, the first mission undertaken ended as an "embarrassing failure"83 because the chairman of the Working Group, Viscount Colville of Culross, agreed not to mention Mexico in future reports in exchange for the promise that 43 outstanding cases were clarified.84 The hope that this agreement would buy the willingness of the Mexican government to cooperate seriously was in vain, and after five years of unsubstantiated denials the Working Group listed Mexico again. The missions to Peru undertaken in 1985 and 1986 brought about a significant change. In its reports, the Working Group abandoned its traditional non-judgmental approach in favour of clear evaluations and findings of violations and responsibility for them. They are a valuable source of information both as to the extent of disappearances in a specific state and as to the conditions facilitating them. The major problems identified by the Working Group were the lack of democratic control of 80
Doc. E/CN.4/1984/21, paras 35 and 42 (Argentinean law establishing a legal presumption of death).
81
The recommendation is contained in Doc. E/CN.4/1990/13, paras 31-38; for the draft Declaration see the report of the Subcommission on its 42nd Sess. (Doc. E/CN.4/1991/2 -Doc. E/CN.4/Sub.2/l990/59).
82
Doc. E/CN.4/1435, para. 8 (Uruguay). See also Doc. E/CN.4/1989/18, para. 11 (EL Salvador, Iran, Iraq, Philippines, Sri Lanka) and Doc. E/CN.4/1996/38, para. 31 (India, Iraq, Turkey).
83
M.T. Kamminga, "The Thematic Procedures of the UN Commission on Human Rights", NILR 34 (1987), 299 et seq., (312).
84
This can be concluded from Doc. E/CN.4/1983/14, para. 80.
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the military, impunity for human rights violations, and the weakness of the judiciary. The outspokenness of the Group85 was a reaction to the inviting state's interest to rally international support for its effort to investigate past human rights abuses after the demise of a military regime. Another example is the report on the visit to the Philippines, which has been characterized as "perhaps the most insightful report on a country situation" as compared to Country Rapporteurs of the Commission.86 It contains a critical analysis of the caselaw of the High Court, which in the eyes of the Group rendered habeas corpus proceedings ineffective.87 Moreover, the Working Group clearly rejected the attempts of the Philippine government to blame the Guerrilla organization New People's Army (NPA) for its internal situation; instead, it criticized the existence of "civil defense forces", which fosters the occurrence of disappearances, and the practice of "red-labelling" human rights organizations as sympathizing with terrorist groups, which exposes these organizations to violence by paramilitary groups.88
4. Evaluation The firm establishment of the Working Group as a special procedure of the UN Commission on Human Rights permits the conclusion that the time has come to intensify the follow-up procedures and to adopt a more judgmental approach in its examination of individual communications. So far, the Group's report on the implementation of its recommendations both as regards its examination of individual cases and after a mission to a Member State occur only haphazardly. Regular information on this question would increase the political pressure on the states, which is the Group's only means of sanctioning non-compliance. Furthermore, the examination of individual communications should follow a stricter procedure, notably by the introduction of strict time limits for governmental responses and by regular reminders sent to uncooperative states. Finally, the Group should consider adopting a finding of a violation based on the information provided to it by the source in case of 85
86
87 88
See, e.g., Doc. E/CN.4/1986/18/Add.l, paras 106-107; Doc. E/CN.4/1987/ 15, Add.l, paras 17 and 47-48. N.N., "The UN Commission on Human Rights and the New Working Group on Arbitrary Detention", Rev. ICR 46 (1991), 23 et seq., (25). Doc. E/CN.4/1991/20/Add.l, especially paras 91-97 and 104-107. Doc. E/CN.4/1991/20/Add.l, paras 18, 20, 32 and 137-139.
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persistent non-response by the state in question. If the state concerned retains the possibility of disproving a violation that is attributable to it, this approach would exert additional public pressure without being counterproductive to the humanitarian objective of the mechanism. Lastly, a more direct support for these activities by the Commission on Human Rights is desirable, but most probably will not materialize because of the Commission's preference for consensus when adopting resolutions.
V. Case Study No. 2: The Working Group on Arbitrary Detention 1. Origins and Procedure Arbitrary detention has always been used by oppressive regimes to silence opposition. Although the need to fight this widespread practice has long been obvious — as is reflected in the creation of NGOs such as Amnesty International — it was only in 1991 that the joint effort of France, Peru, the United States, and human rights organizations culminated in the creation of a thematic mechanism for this question, the Working Group on Arbitrary Detention.89 The ground for this development had been prepared by a study on administrative detention90 submitted to the Sub-Commission on Prevention of Discrimination and Protection of Minorities91 and by the fact that the term "political prisoners," which had been an obstacle to earlier efforts to create a monitoring mechanism, was left out of the resolution adopted.92 The Working Group, which consists of five independent experts93, was entrusted with "the task of investigating cases of detention imposed 89
90
91
92 93
P. Parker/D.Weissbrodt, "Major Developments at the UN Commission on Human Rights in 1991", HRQ 13 (1991), 573 et seq., (600); R. Brody, "The United Nations Creates a Working Group on Arbitrary Detention", AJIL 85 (1991), 709 et seq. Doc. E/CN.4/Sub.2/1990/29 and Add.l (report by Louis Joinet, France, who later became the first chairman of the Working Group on Arbitrary Detention). In 1999 renamed as "Sub Commission on the Promotion and Protection of Human Rights". For the drafting history see Rudolf, see note 5, 202-203. For its membership, see note 19.
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arbitrarily or otherwise inconsistently with the relevant international standards set forth in the Universal Declaration of Human Rights or in the relevant international legal instruments accepted by the States concerned."94 Thus, the question of whether only administrative detention or also criminal detention fell within the Group's mandate was not unequivocally resolved. As in the case of the Working Group on Enforced Disappearances, the substantive delimitation of its mandate was thus left to the mechanism itself. a. Extent of the Mandate While the debate about the scope of the mandate of the Working Group on Enforced or Involuntary Disappearance only touched the periphery, i.e. notably disappearances caused by nonstate actors, in the case of the Working Group on Arbitrary Detention, the dispute over the scope of its mandate concerned the very heart of the subject. The central question was whether imprisonment after a criminal conviction was covered by the mandate. A number of states of the Western group favoured the inclusion of criminal detention, whereas developing countries and some Western states warned against the danger that the Working Group would be turned into an appellate body.95 Although this warning cannot lightly be dispensed with, the restriction to administrative or pre-trial detention harbours the danger that states use sham trials to exempt victims from the protection offered by the Working Group. For this reason, the Working Group used its first report to establish a categorization of arbitrary detention making clear that it would also look into imprisonment imposed after a criminal procedure.96 The Group defended this position with extensive legal reasoning and repeated its position upon the request of the Commission97 that was caused by the persistent efforts of Cuba, later joined by the People's Republic of China, to restrict its mandate to administrative detention.98 The Group's conclusion that the term "detention" also covers post-trial 94 95 96 97
98
CHR/RES/1991/42 of 5 March 1991, ESCOR 1991, Suppl. 2, 103, para. 2. Brody, see note 89, 711. Doc. E/CN.4/1992/20, Annex I, 10-13. See Deliberation 03 (Doc. E/CN.4/1993/24, 14-20) and Doc. E/CN.4/ 1997/4, paras 50-94. For the position of Cuba see, e.g., Doc. E/CN.4/1993/SR.33, para. 24, and Doc. E/CN.4/1995/SR.32, paras 22-23. For the position of the People's Republic of China see Doc. E/CN.4/1995/SR.27, paras 41-42.
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imprisonment is correct because it is based on the drafting history of the mandating resolution, the terminology used in other UN documents, and the identity of the rights applicable in both situation." Moreover, the Commission tolerated the practice of the Working Group, and continued to do so even when it adopted a seemingly more restrictive wording in its Resolution 1997/50.10° Although the text excludes "cases in which domestic courts have taken a final decision", this exception is limited to judgements in conformity with, inter alia, international law. This requirement necessitates a prior determination by the Working Group of whether it is fulfilled in a specific case. For this reason, the Group is correct in assuming that it still could examine cases of criminal detention.101 In the future, however, states supporting the Working Group should beware such textual compromises in the Commission because they cast doubt on the extent of the mandate and thus endanger the effectiveness of human rights protection through this thematic mechanism. b. "Adversary" Character of the Procedure? As concerns the procedural aspects of the mandate of the Working Group, it is worded in a unique way because the Group is entrusted with the task "to investigate cases",102 and not "to examine questions" — as was the case of other thematic mechanisms existing at the relevant time. The Working Group understands this term as conferring an "adversarial nature" upon the examination of individual cases of alleged violations.103 Although the Commission repeatedly acknowledged the "very special character" of the mandate,104 it took up the term "adver-
99 100
101 102 103 104
For a more detailed analysis see Rudolf, see note 5, 243-244. Of 15 April 1997, ESCOR 1997, Suppl. 3, 164. Para. 1 refers to the task "of investigating cases of deprivation of liberty imposed arbitrarily, provided that no final decision has been taken in such cases by domestic courts in conformity with domestic law, with the relevant international standards set forth in the Universal Declaration of Human Rights and with the relevant international instruments accepted by the States concerned." Doc. E/CN.4/1999/63, para. 59. CHR/RES/1991/42, see note 94, para. 2. Doc. E/CN.4/1992/20, para. 13, No. 2. First in CHR/RES/1993/36 of 5 March 1993, ESCOR 1993, Suppl. 3, 136, para. 2, and last in CHR/RES/1997/50, see note 100, para. 2(c). The term is not used in the 1998 and 1999 resolutions (CHR/RES/1998/41 of 17 April
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sarial" only once.105 Since 1994, however, it has replaced it by a reference to the "importance of respecting the dialogue with States,"106 which in 1999 was reduced to being merely mentioned.107 This change and the fact that thematic mechanisms established after 1991 also contain the term "to investigate" or the comparable term "to inquire"108 warrant the conclusion that the procedure applied by the Working Group is not linked to the specificities of the mandate and could, therefore, be copied by other thematic mechanisms. c. The Procedure for Examining Individual Cases A characteristic feature of the examination of alleged arbitrary detention is the quasi-}udici^\ approach taken by the Working Group on Arbitrary Detention. It is reflected in strict time limits for governmental replies (90 days) to information transmitted, the right of the sources to comment on them, the governments' right to reply, and the formal "decision" which concludes the consideration of the case.109 In these decisions, which since 1997 carry the more harmless label "opinion", the Group either states whether a detainee has been released in the meantime, or it determines whether a detention was arbitrary or otherwise inconsistent with the applicable international standards vel non, or it concludes that the information available was not sufficient to make such determination. In an attempt not to reward uncooperative states, the Group limited the scope of application of the last category considerably by applying rules of evidence including the presumption of truthfulness so as to arrive at a sufficient factual basis for a decision. This approach is compa-
105 106
107
108
109
1998, ESCOR 1998, Suppl. 3, 144 and CHR/RES/1999/37 of 8 April 1999, ESCOR 1999, Suppl. 3, 138). CHR/RES/1993/36, see above, para. 1. First in CHR/RES/1994/32 of 4 March 1994, ESCOR 1994, Suppl. 4, 112, para. 1, and last in CHR/RES/1997/50, see note 104, para. 1. CHR/RES/1999/37, see note 104, para. 1 simply takes note of the dialogue established by the Working Group with states. CHR/RES/1995/81 of 8 March 1995, ESCOR 1995, Suppl. 4, 241, paras 7(a) and (b) (Special Rapporteur on Toxic Waste), and CHR/RES/1994/41 of 6 March 1994, ESCOR 1994, Suppl. 4, 135, para. 3(a) (Special Rapporteur on the Independence of the Judiciary), respectively. The working methods are reprinted in: Doc. E/CN.4/1998/44, Annex I, para. 18.
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rable to that taken by the Human Rights Committee, which also renders decisions by default, i.e. based on the facts alleged, if the state in question does either not cooperate at all or simply contradicts the allegations in general terms.110 A necessary prerequisite for such determination is that the information submitted by the source is sufficient, but the Working Group requests supplementary information from the source before deciding that the factual basis is insufficient111 and uses other UN human rights mechanisms, such as the Special Rapporteur on Torture, or the Special Rapporteur on Cuba.112 Although the Working Group does not indicate the legal basis for its procedure, the comparison with the practice of the Human Rights Committee reveals that it is to be found in the obligation of the states to cooperate with the mechanism. Whereas this obligation under the First Optional Protocol to the ICCPR derives from article 4 para. 2, it is the general obligation of the UN Member States to cooperate with the UN bodies that serves as the legal foundation in the case of the Working Group. Thus, the provision of Article 56 of the Charter, usually limited in scope and effect,113 assumes a particular importance in the context of human rights.
110
111
112
113
See, e.g., Mojica v. Dominican Republic, Communication No. 449/1991 view of 15 July 1994, HRLJ 17 (1996), 18 et seq., para. 5.2; Mukong v. Cameroon, Communication No.458/1991 view of 21 July 1994, RUDH 6 (1994), 457 et seq., para. 9.2; generally: C. Tomuschat, "Weitere Entwicklung der Beweisregeln fur das Individualbeschwerdeverfahren vor dem Menschenrechtsausschuft", EuGRZ 7 (1980), 317; M. Nowak, "On Article 5 of the First Optional Protocol", 690 et seq., Mn. 4, in: M. Nowak (ed.), Covenant on Civil and Political Rights. Commentary, 1993. On the comparable approach of the Inter-American Commission on Human Rights see J. Kokott, Das Interamerikanische System zum Schutz der Menschenrechte, Beitrage zum auslandischen offentlichen Recht und Volkerrecht, Bd.92, 1986, 79-81. See, e.g., Decision 16/1995 concerning Peru (Doc. E/CN.4/1996/40/ Add.l), para. 5(d)-(f) and para. 6; Decision 33/1995 concerning Turkey (ibid.), para. 11 (a). See generally, Decision 7/1992 concerning Peru, ibid. para. 5; Doc. E/ CN.4/1993/24, para. 7 and Decision 11/1992 concerning Cuba (ibid.), para. 6(d); Decision 12/1993 concerning Cuba (Doc. E/CN.4/1994/27), para. 6(c). For this characterization see R. Wolfrum, "On Article 56", 793 et seq., Mn. 2 and 5, in: Simma, see note 28.
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When evaluating contradicting evidence, the Group uses a medium standard of evidence, that of "convincing evidence"114 as opposed to evidence beyond a reasonable doubt. By lowering the standard of evidence, the Working Group follows the example of the Inter-American Court of Human Rights in the Velasques Rodriguez Case.115 In conjunction with the practice of rendering opinions comparable to default judgements, the procedural rules of the Working Group considerably ease the objective burden of proof resting upon the source, and thus strengthen the position of the individual represented before the Working Group. The application of these procedural rules also bears witness to the Group's self-image as a quasi-judicial body. It even goes beyond the practice of the Human Rights Committee in that when its opinions conclude the existence of a violation, they also contain the request that the state take "the necessary steps to remedy the situation in order to bring it into conformity" with the applicable international human right norms. The Working Group considers the release of the victim as fulfilling this request.116 This practice can be explained by the legal concept of deprivation of liberty as a continuing violation. Consequently, it can be terminated only by releasing the victim.117 The procedural achievements analyzed so far are not equalled by a development of enforcement machinery. In this respect, the opinions of the Working Group suffer from the same weakness as do the views of the Human Rights Committee — they lack legally binding force.118 It is 114
115
116 117
118
See, e.g., Decisions 9, 10 and 14/1992 concerning Cuba (Doc. E/CN.4/1993/24), para. 6(h); Decision 36/1996 concerning Indonesia (Doc. E/CN.4/1997/4/Add.l), para. 19; Decision 10/1995 concerning Peru (Doc. E/CN.4/1996/40/Add.l), para. 6. Manfredo Velasquez Rodriguez v. Honduras, Judgement of 29 July 1988, Series C No.4; J. Kokott, Beweislast- und Prognoseentscheidungen bei der Inanspruchnahme von Grund- und Menschenrechten, 1993, 400 and footnote 1230. The position of the European Court of Human Rights was doubtful, see B. Rudolf, "Beweisprobleme in Verfahren wegen Verletzung von Art. 3 EMRK", EuGRZ 23 (1996), 497 et seq. (498-499); but was clarified to be "evidence beyond reasonable doubt", see Aydin v. Turkey, Judgement of 25 September 1997, Report of Judgements and Decisions 1997-IV, 1888-89, para. 70. Doc. E/CN.4/1994/27, para.29(a), Doc. E/CN.4/1995/31, para. 31. See generally arts 41 and 43 (1) of the ILC Draft on State Responsibility, Report of the ILC on the work of its 48th Sess., Doc. A/51/10, 141 et seq. On the Human Rights Committee see Nowak, see note 110, 690 et seq., Mn. 33.
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regrettable that, due to political considerations, the Commission on Human Rights has not been able to engage in a real follow-up to ensure the implementation of the Group's opinions. It would be unrealistic to hope for a change to the better in the near future, given the fact that the Human Rights Committee shares the same fate. The Working Group should, therefore, at the very least introduce regular reminders to be sent to states that have not yet reported any action taken upon its recommendation.
2. Applicable Legal Standards According to the mandating resolution, the Working Group shall investigate "cases of detention imposed arbitrarily or otherwise inconsistently with the relevant international standards set forth in the Universal Declaration of Human Rights or in the relevant international legal instruments accepted by the States concerned."119 When identifying these standards, the Working Group pointed to the UN Body of Principles for the Protection of Detained or Imprisoned Persons120 which it considered to have codified pre-existing customary law.121 Furthermore, the Group referred to the ICCPR as being a "declaratory instrument" whose substantive rules are also applicable to states not parties. Despite the legal flaws of this reasoning,122 it is of utmost relevance, because the Group thus characterizes the standards it uses to assess the arbitrary character of a deprivation of liberty as being customary international law. For this reason, its decisions can be regarded as the relevant prac119 120
121
122
CHR/RES/1991/42, see note 944, para. 2. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, A/RES/43/173 of 9 December 1988, Annex (Doc. A/43/49), 297 et seq. Doc. E/CN.4/1993/24, Deliberation 02, paras 20 and 25-26. This view is also held by T. Treves, "The UN Body of Principles for the Protection of Detained or Imprisoned Persons", AJIL 84 (1990), 578 et seq., (585). But see J. Toman, "The Treatment of Prisoners: Development of Legal Instruments and Quasi-legal Standards", in: G. Alfredsson/P. Macalister-Smith (eds), The Living Law of Nations, Essays in Memory of Atle GrablMadsen, 1996, 421 et seq., (437-438.), according to whom the Body of Principles is a 'quasi-legal standard' that may only serve as a means of interpreting binding norms. Critically: J.-Y. Morin, "L'Etat de Droit", RdC 254 (1995) , 9 et seq., (360) and Rudolf, see note 5, 251-252.
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tice of an international organization based on an opinio mris and thus contribute to the concretization of the prohibition of arbitrary detention. The request, in 1996, of the Commission that the Working Group should apply human rights treaties only to their States parties 123did not alter the relevance of the practice of the Working Group because it only concerned the pacta tertiis rule, but remained silent as to the customary law applicable. For this reason, there was no contradiction when the Working Group announced that it would follow this order,124 while continuing to find violations of the Universal Declaration.125 By doing so, it upheld its opinion that the applicable rules are binding as customary law. In dealing with cases of alleged arbitrary detention, the Working Group has developed a rich and diverse case law. It identified three categories of arbitrary deprivation of liberty - detention or imprisonment (1) imposed without any legal basis, (2) imposed because of the exercise of human rights, and (3) imposed in violation of the principle of fair trial.126 Of these categories, the last covers the greatest variety of situations. The Group has used it to denounce arrest without a specified arrest warrant, incommunicado detention (without giving any indication as to the maximum length of such detention), unfair habeas corpus procedures, excessively long pre-trial detention, cases of torture in detention, decisions by courts that were not competent under national law, by courts established ex post facto, or by courts that were either not independent or not impartial. It has found violations of fair trial by judgements that were rendered after a secret procedure or in violation of the right to have defense witnesses examined, or judgements that were based on a confession obtained through torture, or violations of the principle of ne bis in idem. For the most part, the decisions taken by the Working Group conform with the case law of other international supervisory bodies. This fact and the general approval of its work expressed by the Commission permit the conclusion that the case law of the Group helped to concretize the content of the customary law pro123 124 125
126
CHR/RES/1996/28 of 19 April 1996, ESCOR 1996, Suppl. 3, 109, para. 5. Doc. E/CN.4/1997/4, para. 9. See, as the most recent examples, Opinion 1/1998 (concerning Cuba), Doc. E/CN.4/1999/63/Add.l, para. 15, and Opinion 2/1998 (concerning the United Arab Emirates), ibid., para. 16. For a critical analysis of the standards applied, see Rudolf, see note 5, 240310.
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hibition of arbitrary detention as encompassing these types of detention.
3. On-site-missions The Working Group also established its power to evaluate internal legislation for compatibility with international standards. It uses this power occasionally in the examination of individual cases127 and regularly in missions undertaken in UN Member States. In its missions undertaken before 1998, the Group also laid the foundation for the minimum requirements for its on-site missions. In particular, it has the right to visit places of detention and to confer in private with detainees freely chosen by itself and using its own interpreters.128 Perhaps most surprising about the missions undertaken by members of the Working Group is that they include such visits because the conditions in detention only exceptionally fall within the mandate of the Group. As in the case of the Working Group on Enforced Disappearances, the lack of support by the Commission weakens the follow-up of such missions. However, these missions constitute a rich source of information on the situation within a given country129 and can provide veritable advisory services if a state is willing to implement the recommendations addressed to it by the Working Group.130
127
128
129
130
See, e.g., Decision 11/1993 (concerning Syria), Doc. E/CN.4/1994/27, para. 5(d); Decision 67/1993 (concerning Nigeria), Doc. E/CN.4/1995/31/Add.l, para. 8. As was only agreed upon during the first mission to Vietnam, see Doc. E/CN.4/1995/31/Add.4, paras 2, 8-9 and 47. See also Doc. E/CN.4/1997/4/ Add.3, para. 58 (mission to Bhutan); Doc. E/CN.4/1997/4/Add.4, para. 4 (mission to Nepal) and Doc. E/CN.4/1997/4/, para. 32 (preparatory visit to the People's Republic of China). For the subsequent application of these principles see the report on the mission to People's Republic of China in: Doc. E/CN.4/1998/44/Add.2, paras 9-10. See, e.g., the highly critical report on the situation in Peru, Doc. E/CN.4/ 1999/63/Add.l, especially the serious flaws of the criminal law and the court system. The mission to Bhutan is exemplary in this respect, see Doc. E/CN.4/ 1995/31/Add.3 and the report on the follow-up mission in: Doc. E/CN.4/ 1997/4/Add.3.
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4. Evaluation The Working Group has established itself as a pioneer thematic mechanism, both as regards the fairness of its procedure to investigate individual cases of alleged violations and as regards the unequivocal evaluation of such cases. It has become a full-fledged supervisory mechanism outside the specific human rights treaties,131 although it rests solely on a consensus of the Commission on Human Rights and the obligation of the UN Member States to cooperate with the organs of the organization. To a large extent, the Group's activist approach is probably due to its composition — its five members were not diplomats, but either legal practitioners, law professors, or former human rights activists. However, developments within the Commission in 1997 have shown that the consensus is not permanent but that some states intend to weaken this mechanism and to question the results achieved so far.
VI. Case Study No. 3: The Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance 1. Origins and Procedure The mandate of a Special Rapporteur on "contemporary forms of racism, racial discrimination, xenophobia and related intolerance" was established in 1993 responding to a need identified by African and Asian states. Their concern had been caused by the rise in industrialized states of violent incidents having a racist or xenophobic motivation. Although most Western states agreed upon this need in principle, they supported the draft resolution only after agreement had been reached that it would be a quid pro quo for the establishment of a Special Rapporteur on Freedom of Opinion and Expression.132 They also insisted that the restriction to racism in Europe and North America be eliminated,133 which would have made this thematic mechanism the first to
131
132
133
See also Morin, see note 122, 361; F. Sudre, Droit international et droit europeen des droits de I'homme, 1997, 393, (para. 298). As expressed by the United States of America, Doc. E/CN.4/1993/SR.33, para. 12. See the draft resolution, reprinted in: ESCOR 1993, Suppl. 3, para. 631.
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deal exclusively with violations in certain regions of the world. Moreover, the Western group demanded that the terms "racial discrimination, xenophobia and related intolerance" be included in the text, and they insisted on a clear distinction between private and state actions.134 The resolution adopted reflects these changes.135 Although it contains no explicit reference to the power to examine individual cases of alleged violations, there was common understanding that the new mechanism was to be a thematic one, and that it should, therefore, possess this power.136 From a procedural perspective, the activities of the Special Rapporteur meet with considerable criticism. In the beginning, he published allegations of violations without having given the states concerned the opportunity to reply to them.137 His explanation that he lacked sufficient financial support to act otherwise138 cannot justify this blatant violation of a fair procedure before an international body. Later, the information he transmitted to states and published in his reports was a mix of individual cases of alleged violations and allegations of a general nature.139 Thus, not only does it remain unclear what kind of response he expected to the latter, but it also creates the impression of truthfulness of such accusations if read together with his general conclusions and recommendation. This approach is all the more dangerous as states use this thematic mechanism to reproach other states with human rights violations. Thus, states turn the thematic mechanism into a propaganda forum for their political objectives, a deplorable fact aggravated by the sometimes sloppy drafting of the reports, which does not clearly distinguish between positions held by states and those held by the Special Rappor134
135 136
137
138 139
See, e.g., the statements of Denmark and Austria, Doc. E/CN.4/1993/ SR.48, paras 8 and 6, respectively. CHR/RES/1993/20 of 2 March 1993, ESCOR 1993, Suppl. 3,102. See the two drafts ESCOR 1993, Suppl. 3, paras 631 and 632. Therefore, the contrary view expressed by de Frouville, see note 5, 44, is incompatible with the drafting history, and cannot be reconciled with the subsequent practice of the Special Rapporteur, see Rudolf, see note 5, 400, footnote 21. See his first three reports to the Commission (Docs E/CN.4/1994766, E/CN.4/1995/78, E/CN.4/1996/72). Doc. A/50/476, para. 17 and Doc.A/51/301, para. 4. See, e.g., Doc. E/CN.4/1997/71, paras 47-49 and 78-79 (systematic discrimination of the Australian aborigines, and political situation in Quebec in 1995 after the failed referendum on secession).
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teur.140 This negligence has led to the dangerous precedent that the Commission on Human Rights asked the Special Rapporteur to correct his report on the point in question.141 Instead of clearly marking that he merely reprinted the position of a government, the Special Rapporteur chose to ask that state whether it upheld its position, thus abdicating the responsibility for his own reports.142 In 1997, the Special Rapporteur began to conclude the information on specific states and their replies with his own observations, but these were limited to expressing the hope that the state would resolve the case with due regard to the human rights in question, or to requiring information as to the outcome of legal proceedings.143 He did not, however, institute any kind of follow up. As a result, the impact of the reports is low. In 1999 he changed his approach again by announcing that he would not include in the report any allegations to which the government in question replied within a reasonable time and if the Special Rapporteur finds that the allegations are not justified.144 This procedure may have been prompted by a hope that states consider it an incentive to cooperate with the mechanism. However, this approach conflicts with the public character of the work of the thematic mechanisms and should therefore be abandoned in the future. The same criticism applies to the fact that the Special Rapporteur yielded to the request of the United States of America not to publish its reply to the report on the Special Rapporteur's mission to that state.145
140
141 142 143 144 145
The disputed text reprinted the position taken by the Israeli government according to which "[t]he use of Christian and secular European antiSemitism motifs (sic) in Muslim publications is on the rise, yet at the same time Muslim extremists are turning to their own religious sources, first and foremost the Qur'an, as a primary anti-Jewish source", Doc. E/CN.4/ 1997/71, para. 27, No.l. CHR/DEC/1997/125 of 18 April 1997, ESCOR 1997, Suppl. 3, 283 et seq. See Doc. A/52/471, para. 7. Doc. E/CN.4/1997/71 (fourth report to the Commission). Doc. E/CN.4/1999/15, para. 101. Doc.E/CN.4/1997/71, para. 14.
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2. Applicable Legal Standards In his reports, the Special Rapporteur neither bases the explanation of his understanding of the terms "racism, racial discrimination, xenophobia and related intolerance" on legal texts nor elaborates on the question of the circumstances under which a state is obliged to take actions to prevent or punish private activities of this kind. In particular, he simply lists provisions prohibiting discrimination, but does not clearly distinguish between racial discrimination and xenophobia.146 He neither reveals his understanding of article 1 of the Convention on the Elimination of all Forms of Racial Discrimination147, nor takes into account the work of the Committee on the Elimination of Racial Discrimination. Such approach, however, would have been necessary, since so far the term "xenophobia" has not been used in international instruments for the protection of human rights. As a consequence, it cannot be determined whether his actions are based on an opinio iuris, and can not therefore contribute to concretizing the customary international law rules in question. For the states concerned it remains unclear whether they are reproached with a violation of international rules in force for them. Moreover, the absence of clear distinctions between state and private actions leads to undifferentiated conclusions as to the obligations of states. In particular, the Special Rapporteur presumes a general responsibility of the state for discrimination from whatever source and consequently postulates a comprehensive obligation of the state to wipe out any consequences arising out of past discrimination.148 By doing so, he disregards the wide margin of appreciation granted to states by international instruments to eliminate discrimination.149 Furthermore, some of the views he expressed reveal that he works on the widely contested assumption that the prohibition of racial discrimination is of higher value than freedom of opinion.150 As he does not base his position on sound 146
Doc. E/CN.4/1994/66, para. 10-12. 147 UNTS Vol. 660 No. 9464. 148 See, in particular, his indiscriminate use of the term "structural discrimination", Doc. E/CN.4/1996/72/Add.l, paras 31 and 40. 149 For a more detailed discussion of this problem see Rudolf, see note 5, 424426. 150 See, e.g., Doc. E/CN.4/1995/87/Add.l, paras 104-107 (mission to the United States) and Doc. A/49/677, para. 144 and Doc. E/CN.4/1997/717 Add.l, para. 68(b) (mission to Colombia).
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legal reasoning that would take into account the declarations to the contrary made by states upon their ratification of the Convention on the Elimination of all Forms of Racial Discrimination,151 or the case law of international human rights bodies,152 his views remain purely subjective, thus depriving them of the authority that a legal foundation — even if contested — would give them.
3. On-site-missions Like other thematic mechanisms, the Special Rapporteur on Racism has undertaken missions in UN Member States, most importantly in industrialized states such as the United States of America, France, Germany, and the United Kingdom.153 However, most of the reports lack informational value either because of their brevity or because the substantive areas covered are too vast. The only exception is the report on the mission to the United States that he undertook in 1994. However, despite the unusual length of both the visit and the report the Special Rapporteur did not succeed in making convincing recommendations because they lack either a sufficient factual or legal basis. For example, he calls for affirmative action programs and criticizes, in general terms, the US Supreme Court as having lead the attack on such programs.154 Yet he does not even consider the widespread counter-argument according to which such programs backfire, nor does he examine the case law of the Court. His criticism of the electoral system155 displays the same superficiality because he neither asks whether international human rights re-
151
152
153
154 155
Such declarations were made at that time, inter alia, by France, the United Kingdom and the United States, see Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1995, 102 (Doc. ST/LEG/ SER.E/14). In particular the Judgement in Jersild v. Denmark of 23 September 1994, Series A No. 298, paras 30-35 and the view of the Human Rights Committee in Faurisson v. France, Communication No. 550/1993 of 8 November 1996 (CCPR/C/58/D/550/1993). See Doc. E/CN.4/1995/78/Add.l; Doc. E/CN.4/1996/72/Add.3, Add. 2 and Add.4, respectively. Doc. E/CN.4/1995/78/Add.l, para. 56. Doc. E/CN.4/1995/78/Add.l, para. 57.
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quire a proportionate system,156 nor does he mention the strict conditions for delimiting electoral precincts set up by the Supreme Court.157 A positive feature of the reports is their outspokenness, which includes critical remarks on the highest state organs.158 However, the reports do not contain sufficiently specified recommendations, which deprive them of their power of persuasion and render a follow-up of them highly difficult. Furthermore, all too often, the Special Rapporteur does not distinguish between recommendations based on purely political considerations and those based on legal obligations of the state concerned. A change for the better can be observed in the two missions undertaken in 1996, in which the Special Rapporteur limited the questions examined and based his evaluation on the legal commitments of the states visited.159
4. Evaluation Admittedly the Special Rapporteur's task is complicated by the vastness of the subject — a right to equality that pervades every aspect of human and societal life. For this reason, in future he should limit his consideration of individual communications to a specific type of violation and announce the (changing) topic every year in advance. Thus, he would not only publicize his criteria for choosing the allegations he transmits to governments, but he would also be able to take advantage of the expertise of NGOs working in that field. Such self-limitation would permit him to analyze the legal standards applicable and to make useful and well-founded recommendations to States.
156
157
158
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The European Court of Human Rights, e.g., rejects such conclusion, see the analysis of J. Frowein, "Commentary on Article 3 of the First Additional Protocol", in: J.Frowein/H. Peukert, EMRK. Kommentar, 1996. See, e.g., Shaw et al. v. Reno, Attorney General, 113 S.Ct. 2816 (2824) (1993). See, e.g., Doc. E/CN.4/1996/1996/72/Add.2, para. 45, criticizing the statement of the German government according to which Germany is no immigration country. Doc. E/CN.4/1997/71/Add.l (Colombia) and Add. 2 (Kuwait). The former mission concerned the realization of the land rights of the black and the indigenous population; the latter mission was undertaken to investigate the situation of foreign houseworkers in Kuwait.
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VII. Conclusion The diversity of the practice of the thematic mechanisms examined here illustrates the flexibility of this type of special procedure available to the Commission on Human Rights. A common feature is the examination of individual cases, which does not depend on the specific wording of the enabling resolution, but rather on the self-image and courage of the person or persons entrusted with a mandate. The Working Group on Enforced Disappearances (as well as the Special Rapporteur on Religious Intolerance and the Special Rapporteurs on Extrajudicial Executions and on Torture, who could not be treated here) have prepared the ground for such actions, so that the newer thematic mechanism no longer had to struggle for the acceptance of their activities in this respect. The establishment of such extra-conventional complaints procedures constitutes a major breakthrough for the international protection of human rights as it submits states to international control irrespective of their ratification of specific human rights instruments and their control mechanisms. The existence of the thematic mechanisms reflects the universality of the human rights which are their subject and to whose concretization they contribute. Nevertheless, there are considerable differences in the way of dealing with allegations of human rights violations. They range from merely reprinting the information submitted and governmental replies to a quasijudicial procedure that is equivalent to that of the Human Rights Committee. In fulfilling their task of "examining cases", the Special Rapporteurs and members of Working Groups are faced with the difficult decision of whether a diplomatic or a judgmental approach is more promising. The experience of the Working Group on Enforced Disappearance shows the limits of a careful and diplomatic approach: It did not further the cooperativeness of states which had a particularly serious human rights record in the specific field. At the same time, by not reminding uncooperative states regularly, let alone by naming them publicly, and by not clearly attributing human rights violations to them, the Working Group deprived itself of one of the few means of exerting public pressure. In contrast, the Working Group on Arbitrary Detention has applied a judgmental approach firmly and consistently without provoking a higher rate of unresponsiveness. On the contrary, it has even succeeded in carrying out on-site missions to countries such as the People's Republic of China or Indonesia, which are among the states most reluctant to accept international monitoring of human rights.
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From a procedural perspective, it is noteworthy that the Commission on Human Rights expects the thematic mechanisms to allow states to comment on allegations before their publication and that it calls upon the Rapporteurs and Working Groups to make observations on the cases before them. Thus, it asks for a minimum standard of procedural fairness and generally accepts their quasi-judicial role, and there is no reason why some thematic mechanisms fail to fulfill these requests. However, the authority of their observations depends on their factual basis and on a careful determination of the substance of the human rights applicable. With regard to the investigation of the truthfulness of allegations, all thematic mechanisms are confronted with the inherent limits of their powers, namely the lack of powers to investigate in situ without the consent of the state concerned. For this reason, the clarification of an individual case depends largely on the cooperation of the states concerned, and the thematic mechanisms have to develop a method to evaluate the truthfulness of a governmental reply. Here, again, the thematic mechanisms differ considerably: While some content themselves with reprinting the allegations and replies, others request a comment from the source of the initial information. In view of the Commission's call upon the thematic mechanisms to make observations, the former approach falls short of the respective mandate. The difficulties encountered in clarifying cases are increased by the high number of individual cases transmitted to the thematic mechanisms. Given the insufficient financial resources of the Office of the UN High Commissioner for Human Rights and the unwillingness of UN Member States to improve the situation despite the lip-service repeatedly paid to this objective,160 the only workable solution may be that a Working Group or Special Rapporteur announces a main topic that will constitute the annual centre of interest. Moreover, further support may be gained by resorting to independent academic research institutions, provided that the Working Group or Special Rapporteur remains in control of the evaluation of facts. A further weak point in all thematic mechanisms examined here is the follow-up of their recommendations. In this respect, they share the fate of other UN bodies, such as the Human Rights Committee and other treaty monitoring bodies. As the Commission is not willing to name states, however uncooperative they may be, the thematic mechanisms have tried a number of ways to develop a flexible scale of increasing public pressure. Yet, all of them are too reluctant to denounce,
160
See, e.g., CHR/RES/1999/54 of 27 April 1999, ESCOR 1999, Suppl. 3, 185.
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on a regular basis, non-compliant states for their violation of their obligation as a UN Member State to cooperate with UN bodies. In addition to resorting to this means of public pressure, the thematic mechanisms should copy the practice of the Working Group on Arbitrary Detention to take "default decisions," i.e. to evaluate alleged facts on the basis of credible information before it if the state in question does not provide substantiated information to the contrary. As the comparison of the activities of the thematic mechanisms shows, this power is inherent in the competence of a thematic mechanism and is based on the obligation of the UN Member States to cooperate with UN bodies and, therefore, is not unique to the Working Group on Arbitrary Detention. Although the thematic mechanisms were designed to monitor respect for human rights on a world-wide level, their approach of singling out countries with particularly serious implementation deficit has gained acceptance. In a number of cases, the reports on missions undertaken by the thematic mechanisms examined here amount to de facto country reports, sometimes more outspoken than those made by Country Rapporteurs. The reason for this development may be found in the fact that some of the governments that invited a thematic mechanism did so in order to rally international support for their attempts to deal with human rights abuses committed by a past regime. In these cases, the governments did not view the mission of thematic mechanisms as an affront to their country, and therefore were willing to support a mission actively. In contrast, the establishment of a country mechanisms is a highly politicized decision, which in most cases constitutes the ultimate resort for the Commission in cases of massive, widespread, and systematic human rights violations committed by a government. For this reason, visits carried out by a thematic mechanism may face less obstacles, although both kinds of on-site missions depend on the consent of the state concerned. Despite the less confrontative character of a visit undertaken by a thematic mechanism, their follow-up is weak. Only in a few cases follow-up missions were undertaken, and subsequent reports do not regularly remind states of their obligation to report on the measures they have taken pursuant to the recommendations made at the end of a visit. A positive result of on-site missions is that the thematic mechanisms established their power to evaluate internal legislation as to their conformity with international standards. Moreover, they permit the Working Group or Special Rapporteur to contact local human rights organizations, and the information thus gathered is helpful in the evaluation of individual complaints. For these reasons, the Commission on Human Rights is equipped with a useful tool to monitor the implementation of
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international human rights, but there remains potential for improvement. As regards the concretization of human rights under customary international law, the practice of the Working Group on Arbitrary Detention is by far the most fruitful. Its rich case law and the lack of substantial opposition to its interpretation has furthered not only the development of the concept of the right to a fair trial, but also the understanding that detention imposed after an unfair procedure is in itself illegal. The contribution of the Working Group on Enforced Disappearances is less significant, albeit still noteworthy, because their practice was less extensive and because it was not based clearly on an opinio iuris as the Group only recently started to evaluate facts on the basis of the 1993 UN Declaration on Enforced Disappearance. In contrast, the Special Rapporteur on Racism and Racial Discrimination had no impact on the concretization of customary human rights because his practice of dealing with individual complaints is not based on legal considerations. Generally speaking, the contribution of a thematic mechanism to the concretization of a human right under customary law depends on a clear identification of the rules applicable and an unequivocal evaluation of the facts transmitted to it. The work of the Working Group on Arbitrary Detention is exemplary in this respect: In its first report, the Group categorized the cases of arbitrary detention, and it referred to human rights instruments on which it based its categorization. Moreover, it clearly stated that it considered the prohibition of arbitrary detention as being binding upon states even outside specific human rights treaties. By clearly identifying the legal yardstick to be applied, the Working Group enabled states to engage in a debate on the contents of the right to liberty, an interaction that is a necessary precondition for the concretization of customary human rights. The fact that other thematic mechanisms are less outspoken can in part be explained by the historical development, namely the need to gain acceptance for a mechanism. Today, however, such self-restraint is no longer warranted for thematic mechanisms if they were established by consensus. On the contrary, the lack of a clear identification of the legal principles underlying the work of a thematic mechanism deprives it of authority because its conclusions and recommendations remain purely subjective. The present comparison between three thematic mechanisms has shown the potential for improved protection of human rights through this type of extra-conventional procedure. Whether this potential will be used in the future depends on the persons entrusted with the mandates and on the reaction of the Commission on Human Rights. The
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search for consensus within the Commission should not lure states that are seriously interested in furthering human rights into accepting compromises that restrict this potential or even endanger the significant achievements made so far. Although the thematic mechanisms constitute an accepted means for monitoring the respect for human rights on a world-wide level, this acquis onusien has to be defended during every session of the Commission.
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The Reparation for Injuries Case Revisited: The Personality of the European Union Philippe Gautier
I.
II.
Introduction 1. Organizations and International Personality 2. Sources of the Personality of International Organizations 3. The Reparation Case 4. The Legal Personality of the European Union a. "Administrative Unions" and the European Union b. The Provisions of the Treaty on European Union aa. Structure bb. Objectives cc. Institutions and Membership dd. Common Foreign and Security Policy ee. Police and Judicial Cooperation in Criminal Matters c. The Legal Personality of the European Union and the Reparation Case aa. Preparatory Work and Lack of Express Provision Recognizing the Personality of the Union bb. (Non) Existence of a Legal Capacity to Act at International Level cc. Treaty Making Power of the Union dd. The Practice of the Union ee. Union and Communities Conclusions
I. Introduction The advisory opinion given by the International Court of Justice in 1949 and concerning the "Reparation for Injuries Suffered in the Service of the United Nations" (hereinafter "the Reparation Case") undoubt331 J.A. Frowein andR. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, 331-361. © 2000 Kluwer Law International. Printed in the Netherlands.
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edly constitutes a leading case on the legal personality of international organizations. In its decision, the Court considered that the functions and rights conferred to the United Nations by its constituent instrument were such that they necessarily implied the attribution of international personality to the organization. This case, dealt with by the ICJ 50 years ago, has certainly not lost its relevance. It is therefore not by accident that the Reparation Case is frequently referred to in writings1 devoted to the current legal issue relating to the legal status of the European Union. The establishment of the European Union by the Treaty of Maastricht of 7 February 1992, as modified by the Treaty of Amsterdam signed on 2 October 1997, has indeed been the subject of a number of articles which address the question of the international personality of this entity. Although the Treaty on European Union does not expressly recognize the personality of the Union, it contains provisions which reinforce the identity, if not the personality, of the European Union. It seems therefore appropriate to explore this question in the light of the learning which may be derived from the Reparation Case, keeping in mind that the issue exceeds the European level and has to be addressed in a broader context relating to the personality of intergovernmental organizations.
1. Organizations and International Personality Today, it is stating the obvious to say that international organizations are subjects of international law. This assertion, whose accuracy is genSee J. Klabbers, "Presumptive Personality: The European Union in International Law", in: M. Koskenniemi (ed.), International Law Aspects of the European Union, 1998, 231 et seq., (233); D. Vignes, "L*absence de personnalite juridique de 1'Union europeenne: Amsterdam persiste et signe", Liber Amicorum Seidl-Hohenveldern, 1998, 757 et seq., (769); A. Dashwood, "External Relations Provisions of the Amsterdam Treaty", CML Rev. 35 (1998), 1019 et seq., (1040); J.-C. Gautron et L. Grard, "Le droit international dans la construction de 1'Union europeenne", Written presentation (to be published) made at the Symposium of the SFDI, 1999, 26-27; A. Pliakos, "La nature juridique de 1'Union europeenne", RTDE 29 (1993), 187 et seq., (211); P. Des Nerviens, "Les relations exterieures", RTDE 33 (1997), 801 et seq., (806); G. Maganza, "Reflexions sur le Traite d'Amsterdam; contexte general et quelques aspects particuliers", A.F.D.I. 43 (1997), 657 et seq., (669).
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erally accepted, does not, however, disclose what is an international organization. In this respect, no definition of the term "international organization" is to be found in a treaty2. Legal writings may nevertheless offer some guidance and it is useful to refer to the definitions given by G. Fitzmaurice: "a collectivity of States established by treaty, with a constitution and common organs, having a personality distinct from that of its member-States, and being a subject of international law with treaty-making capacity"3; or, more recently, by P. Reuter and J. Combacau: "an entity which has been set up by means of a treaty concluded by States to engage in co-operation in a particular field and which has its own organs that are responsible for engaging in independent activities"4. By using the common denominator of these definitions, an international organization may be described as an autonomous entity, set up by a constituent instrument, which expresses its independent will through common organs and has a capacity to act on an international plane. If we accept that capacity to operate on an international level is part of the definition of any international organization, and that such capacity does equate with international personality (a view taken by the Court in the Reparation Case5), it is legitimate to maintain that international personality is a necessary attribute of an international organization6. This does not at all imply some fetishist attraction for the concept of international personality. Legal personality simply reflects the autonomy of the organization and its ability to act on its own. That explains why it is possible to draw a line between international organizations and other bodies or fora set up by states, which are not entrusted with tasks they fulfil independently through their own organs. Usually, a meeting of states parties to a treaty or a conference of states constitute examples of such fora which may be characterized as a mere juxtaposition of organs of states, acting only in the capacity of agents of the
2
3 4
5 6
The 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations took a minimalist approach on the subject. See article 2 para. 1 lit.(i): "For the purposes of the present Convention...(i) 'international organization' means an intergovernmental organization". Report on the Law of Treaties, ILCYB (1956 II), 108. Institutions et relations Internationales, 3rd edition, 1985, 278, as quoted in ILCYB (1985 II), 106. See below, 338. R. Jennings and A. Watts (eds), Oppenheim's International Law, 1992, 19, footnote No. 20.
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states concerned. But it is unwise to generalize in this matter. A particular entity may evolve and develop into a real organization, as may be illustrated by discussions on and developments relating to the legal status of entities such as the former GATT7 or the OSCE8. Likewise, there is no obstacle to the establishment of a small organization whose task it is to assist the implementation of a treaty9 and it is also possible to set up a conference with precise and independent functions, even for a limited period of time10.
2. Sources of the Personality of International Organizations An international organization is not the result of a spontaneous generation. It is created by other subjects of international law, mostly by states11, and normally by means of a treaty12. It is therefore necessary to examine the constituent treaty establishing a new entity to verify whether the founding states actually wanted to set up an organization possessing an international personality distinct from the member states. The constituent act may thus be considered as the source of the international personality of the organization. However, this generally accepted approach is not unanimously shared13. F. Seyersted opts for an 7 8
9
10
11
12
13
J. Jackson, World Trade and the Law of GATT, 1969,119 et seq. H. Schermers and N. Blokker, International Institutional Law, 3rd edition, 1995,21. P. Szasz, "The Complexification of the United Nations System", Max Planck UNYB 3 (1999), 1 et seq., who notes that "if a body created by a treaty has a full set of organs and its own international personality then it should be characterized as an IGO" (page 17). Ibid., 50-51 (referring to Preparatory Commissions established to ease the birth of a new intergovernmental organization) : "Prepcoms can be established by a treaty ... When so established, they are potentially full-fledged though temporary IGOs, having legal personality, privileges and immunities, their own secretariat, etc." Its is however not excluded that an organization might be set up by other subjects of international law. See F. Rousseau, "Joint Vienna Institute'Breves remarques relatives a la creation de 1'Institut commun de Vienne", RGDIP 99 (1995), 639 et seq. See however the case of the OSCE whose legal foundations cannot be found in a treaty. See K. Zemanek, "The Legal Foundations of the International System", RdC 266 (1997), 23 et seq., (88-89).
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objective test to be made from the viewpoint of general international law. According to this author, an international convention is not "the crucial test ... of international personality. Intergovernmental organizations, like States, come into being on the basis of general international law when certain criteria exist, and these necessary criteria do not include a convention"14. Those criteria are met when international organs are created which may assume obligations on their own. The two views just expressed appear prima facie to be opposed. In fact, they may, or rather should, be reconciled. On the one hand, the Members States are the founding fathers of the institution. It means that their will, as expressed in the constituent treaty, cannot be easily disregarded. But the treaties establishing international organizations are often prudent on the question of personality and, except in a few instances15, are silent or limit themselves to the recognition of a capacity in the municipal law of Member States. In this context, it is necessary to scrutinize the content of the constituent treaty to assess whether an international personality may be substantiated by, or deducted from, actual rights and obligations conferred to the organization. To this extent, we may subscribe to the statement according to which the "constitutive instrument setting up an organization, and containing its constitution, must be the primary source of any conclusions as to the status, capacities and powers of the organization concerned"16. By saying that, we do not endorse a subjective approach based solely on the will of the drafters of the treaty. On the contrary, an assessment based on the provisions of the constituent treaty may also be described as an objective test. Once the treaty is concluded, it leads its own life. States are not free to lay down the law; their acts and conduct do not escape the conse14
15
16
F. Seyersted, "International Personality of Intergovernmental Organizations. Do their Capacities really depend upon their Constitutions ?", IJIL 4 (1964), 1 et seq., (53). See e.g.: Section 13 of the Agreement of 27 September 1945 concerning the establishment of an European Central Inland Transport Organisation ("Every member Government shall recognise the international personality and legal capacity which the Organisation possesses"), UNTS Vol. 5 No. 35; article 176 of the United Nations Convention on the Law of the Sea of 1982 ("The Authority shall have international legal personality and such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes"). Statement by Mr. Fitzmaurice, representative of the UK Government, in the oral proceedings relating to the Reparation Case: Pleadings, Oral arguments, Documents, 1949, 116.
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quences to be drawn from them by international law. For example, the drafters of a treaty establishing an organization vested with a real competence to act at international level, would with great difficulty, avoid that international personality be granted to it. As P. Reuter put it: "quand une organisation a rec,u un minimum d'autonomie et une vocation assez stable et assez large pour pretendre a une action propre, il est normal de considerer, sauf stipulation contraire clairement indiquee par ses fondateurs, que ces derniers ont voulu 1'habiliter a prendre part a la vie internationale"17. This also means that the insertion, in the constituent treaty, of a mere provision affirming the international personality of the organization concerned has a declaratory effect. While such provision would certainly not be easily disregarded, it would not be sufficient per se to guarantee the recognition of such personality if it is not supported by a minimum of rights conferred to it. Legal personality is a "thoroughly formal concept"18; or, to express this idea by using the existentialist "leitmotiv" quoted by R.J. Dupuy as regards international organizations "1'existence precede 1'essence"19, and the mere assertion of their personality is like an empty shell20. The key factor controlling the international
17
18
19
20
P. Reuter, La Communaute europeenne du Charbon et de I'Acier, 1953,118, as quoted by M. De So to, "Les relations Internationales de la Communaute europeenne du charbon et de 1'acier", RdC 90 (1956), 29 et seq., (39) (unofficial translation of the quoted extract: "Whenever an organization has been granted a minimum of autonomy and has been assigned goals stable and large enough to let it expect to act on its own, it is logical to assume, except if otherwise clearly expressed by its founding members, that these had the intention to entrust it to be a full member of the international community"). H. Kelsen, General Theory of Law and State, 1946 (translation), 250. "La notion de personnalite juridique a un caractere purement formel": Id., "Theorie du droit international public", RdC 84 (1953), 6 et seq., (101). See also, Klabbers, see note 1, 244. R.J. Dupuy, "Le droit des relations entre les organisations Internationales", RdC 100 (1960), 457 et seq., (532). According to Dupuy, "1'on ne peut tirer nulle consequence d'une personnalite affirmee a 1'avance. (...) la capacite reelle, concrete, dont une organisation est investie par un traite, est la mesure de sa personnalite", ibid., 532-533. See H. Hahn, "Euratom: The Conception of an International Personality", Harv. L Rev. 6 (1956-1957), 1001 et seq., (1045-1046).
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personality of organizations is the actual rights and competences given to them21.
3. The Reparation Case We may turn now to the Reparation Case and examine the reasoning developed by the ICJ. At this stage two preliminary remarks will be made: — In this case, the international personality of the United Nations was not the subject of the question addressed to the Court. The legal questions which the General Assembly decided to submit to the Court22, following a proposal of the representative of Belgium, concerned the capacity of the United Nations to bring an international claim against the responsible government of a non Member State, with a view to enabling the Secretary-General to obtain reparation for injuries suffered by agents of the organization23. In fact neither the personality of the organization nor, to a certain extent24, its capacity to bring a claim were really disputed. This was even regretted by the representative of the United Kingdom in his statement before the Court25. -
The personality of the United Nations was nevertheless addressed in the written and oral statements made by some governments in the form of a preliminary question, a rather doctrinal one, to be logically answered before considering the capacity of the organization. On this matter, reference was made to the absence of an express provi-
21
"The proof of the presence of an international personality then appears to be identical with the proof of international rights and obligations incumbent on the entity", see Hahn, above, 1045. See ICJ Reports 1949, 174 et seq., (175). For the context and historical background of the case, see the statement of Mr. I. Kerno (United Nations) in the oral proceedings relating to the Reparation Case, Pleadings, Oral arguments, Documents, 1949, 50 et seq. While the capacity to bring a claim in respect of the damage caused to the United Nations was unanimously recognized by the Court, four Judges voted against the decision of the Court to recognize such capacity in respect of damage caused to the victim or to a person entitled through him. "It is in one sense regrettable that the Court has not had before it someone to argue that the United Nations does not possess the capacities which we are discussing", Statement of Mr. Fitzmaurice, ibid., 111.
22 23
24
25
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sion to this effect in the Charter. A proposal had, however, been made at the San Francisco Conference with a view to recognizing the international personality of the United Nations26 but it was not retained. According to the report of the Subcommittee IV/2/A on "The Juridical status of the Organization": "As regards the question of international juridical personality, the Subcommittee has considered it superfluous to make this the subject of a text. In effect, it will be determined implicitly from the provisions of the Charter taken as a whole"27. It is interesting to note that on this particular point, the report of the Chairman of the United States delegation to the San Francisco Conference gives another light. While the Subcommittee made reference to the provisions of the Charter "taken as a whole", the report of the United States delegation took a more pragmatic approach mainly focused on "practice". The report stated that article 43 of the Charter, dealing with the conclusion of agreement by the Security Council, gives an answer "so far as the power to enter into agreements with States is concerned", and added: "International practice, while limited, supports the idea of such body being a party to agreements. No other issue of 'international personality' requires mention in the Charter. Practice will bring about the evolution of appropriate rules so far as necessary"28. In its advisory opinion of 1949, the Court stated that before answering the question of the capacity of the United Nations to bring an international claim, it had to enquire "whether the Charter has given the organization such a position that it possesses, in regard to its Members, rights which it is entitled to ask them to respect. In other words, does the organization possess international personality?"29. International personality is thus identified with the possession of rights and has first to be recognized in relation to Member States. These are the subjects of international law primarily concerned with the personality of the organization. After having made its statement according to which the
26
27
28
29
The proposal made by the delegation of Belgium reads as follows: "L'Organisation possede la personnalite Internationale avec les droits qui en decoulent": Statement of Mr. Kaeckenbeeck (Belgium) in the oral proceedings relating to the Reparation Case, ibid., 96. XIII Documents of the UNCIO, San Francisco, 1945 ,817, quoted in: Digest of International Law, prepared by M. Whiteman, 13 (1968), 12. Statement of Mr. Fitzmaurice in the oral proceedings relating to the Reparation Case, ibid.,118. See also Digest of International Law, see above, 12. ICJ Reports 1949,174 et seq., (178).
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subjects of law "are not identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community", the Court referred to the principles and purposes of the United Nations as contained in the Charter and stated: "but to achieve these ends the attribution of international personality is indispensable". In a sense, this statement could have been sufficient for the purposes of the case. Most certainly, this would have been a short statement. But usually the existence of powers or the capacity of an organization, and not the issue of its personality, is the controlling consideration in cases involving international organizations30 and international tribunals may satisfy themselves with the assumption that the organization concerned possesses personality without devoting long discussion to it. However, the Court did not only state that international personality of the United Nations was necessary to achieve the objectives assigned to the organization; it also found evidence of this in the Charter by mentioning the following relevant factors: existence of organs and tasks; obligation for members to give assistance to the organization in action undertaken by it and to respect decisions taken; recognition of legal capacity and privileges in municipal systems of members; conclusion of international agreements. In fact, the Court confirmed the view of the Subcommittee IV/2/A of the Conference of San Francisco. It would indeed have been superfluous to insert in the Charter an article on the international juridical personality of the United Nations; such determination could be made on the basis of the provisions of the Charter taken as a whole. 30
See E. Lauterpacht, "The Development of the Law of International Organization by the Decisions of International Tribunals", RdC 152 (1976), 377 et seq., (403-413), who refers inter alia to the ERTA Case (ECJ, Case 22/70 of 31 March 1971) where the Court of Justice of the European Communities, on the basis of article 210 of the European Treaty, declared that this provisions "means that in its external relations the Community enjoys the capacity to establish contractual links with non-Member States over the whole extent of the field of objectives defined in Part One of the Treaty", ILR 47 (1974), 278 et seq., (304). See also The Case concerning the Jurisdiction of the European Commission of the Danube, Advisory Opinion, 1927, PCIJ, Series B, No.14, where the Court observed (page 63) that: "Although the European Commission exercises its functions 'in complete independence of the territorial authorities and although it has independent means of action and prerogatives and privileges which are generally withheld from international organizations, it is not an organization possessing exclusive territorial sovereignty"; and later (page 64) mentioned: "As the European Commission is not a State, but an international institution with a special purpose...".
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The Court found confirmation of its conclusion in the practice of the United Nations, "in particular the conclusion of conventions to which the organization is a party". In its view, it would be difficult to see how an agreement such as the Convention on the Privileges and Immunities of the United Nations of 1946, creating rights and duties between each of the signatories and the organization, "could operate except upon the international plane and as between parties possessing international personality". The importance of practice, which also was underlined in the report of the Chairman of the United States delegation to the San Francisco Conference, is easily understandable. Given the fact that international personality reflects a capacity to act at international level, it is preferable to receive confirmation that this capacity has actually been exercised, especially when the rights conferred upon an organization are not clearly spelled out. This may for example, concern the rules governing the treaty-making power of the organization, when they are not clearly defined in the constituent instrument. On this issue, the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations recognizes the input of the practice. According to its article 6, the capacity of an organization to conclude a treaty is governed by the rules of that organization, these "rules" being defined in article 2 para. 1 lit.(j), as referring to "the constituent instruments, decisions and resolutions adopted in accordance with them, and established practice of the organization". This cannot be understood as suggesting that a rule may be based on a practice contra legem. This is certainly not the intention of the Vienna Convention which, in its preamble, states that the practice of organization "should be in accordance with their constituent instruments". The practice is useful to confirm a capacity to act, but it cannot replace it. To justify a capacity to act, instead of referring to the practice, it is preferable to make use of implied powers, which seem admitted by the Vienna Convention in its preamble: "Noting that international organizations possess the capacity to conclude treaties which is necessary for the exercise of their functions and the fulfilment of their purposes". In concluding its development on the question of personality, the Court admitted that the organization "was intended to enjoy, and is in fact exercising and enjoying rights which can only be explained on the basis of the possession ... of international personality". Therefore "it must be acknowledged that its Members, by entrusting certain functions to it, ..., have clothed it with the competence required to enable those functions to be effectively discharged". As we may observe, the attention drawn by the Court to the exact intention of the drafters of the
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Charter is not particularly developed in its reasoning. When the will of the states is taken into account, it is a reasonable, objective one, logically deduced from, or presumed on the basis of, an examination of the Charter and confirmed by the practice of the organization.
4. The Legal Personality of the European Union a. "Administrative Unions" and the European Union The concept of "Union" is not unknown in the law of international organizations. The term was used to designate the first institutions set up by states, i.e. the so-called "administrative unions"31. The establishment of those unions, described as international entities possessing international organs32, together with the creation of river commissions, led to the development of the law of international organizations33. At the time those entities were set up, their international personality was disputed. Some authors took the view that they did not constitute an entity distinct from the participating states but a "fiction"34, an expression used for designating the common exercise by states of certain rights35. It is only in the twentieth century that the international personality of intergovernmental organizations was recognized, at least in most of the legal writings. The creation of the League of Nations, the predecessor of the
31
32
33
34
35
On this subject, see R. Wolfrum, "International Administrative Unions", EPIL Instalment II (1995), 1041 et seq. "Entite internationale pourvue d'organes internationaux": A. RapisardiMirabelli, "Theorie generate des Unions", RdC 7 (1925), 340 et seq., (361). The term "Union" was sometimes used in the doctrine as a generic expression designating all forms of associations of states: administrative unions, river commissions, confederations of states, unions of states and the League of Nations, see Rapisardi-Mirabelli, see above, 363 et seq. It is difficult to deny that, in some cases, this approach was justified on the basis of international practice. See for example the wording contained in article 17 of Annex 16 B (dated 24 Mars 1815) to the Closing Act of the Vienna Congress of 9 June 1815, concerning the members of the Central Commission for the river Rhine: "... les membres devant etre regardes comme des agents des Etats riverains charges de se concerter sur leurs interets communs, ..." (Les Actes du Rhin, Strasbourg, 1957, 8). See e.g. J. Basdevant, "La conference de Rio-de-Janeiro de 1906", RGDIP 15 (1908), 209 et seq., (221).
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United Nations and the first universal political organization, contributed largely to it36. The administrative unions were instituted in the nineteenth century to fulfil technical, non-political aims37. Their goals are far removed from the objectives assigned to the European Union by the Amsterdam Treaty38. In fact, the European Union and the entities which qualify to be described as administrative unions39 are poles apart, except in the common use of the word "union". The political dimensions of the European Union even seem to exceed the range of functions one would expect an organization to fulfil. In other words, its nature would be closer to a confederation40, a federation or a union of states, than to an international organization. Indeed, given the federalist project on which it is based, at least at its origin, the European Union could be regarded as part of an evolutionary process possibly leading to a form of (con)federation of states. However, as noted by the German Federal Constitutional Court in its decision of 12 October 199341, this process is not yet completed. Furthermore, it is wise to be prudent in this matter and not to follow too easily our natural inclination, faced with unknown or new forms of organizations, to have recourse to the model of the state, the primary subject of international law. As an illustration of 36
37
38 39
40
41
The international legal personality of the League of Nations was expressly recognized in the modus vivendi of 1926 concluded between the League and Switzerland. See M. Dendias, "Les principaux services internationaux administratifs", RdC 63 (1938), 242 et seq., (271). See article 2 of the Treaty on European Union. On the usefulness of the concept of the administrative union to characterize current existing technical organizations (such as the International River Commission, Fishery Commission, International Commodity Agreements, United Nations Specialized Institutions or the Sea-Bed Authority), see Wolf rum, see note 31. See A. Pliakos, see note 1, 189 et seq.; P. Reuter, " 'Confederation et federation': 'Vetera et nova'", Melanges Rousseau, 1974,199 et seq. For the text of the decision in English, see ILM 33 (1994), 388 et seq., in particular page 424: "The term "European Union" may indeed suggest that the direction ultimately to be taken by the process of European integration after further amendments to the Treaty is one which will lead towards integration, but in fact the actual intention expressed does not confirm this... In any case, there is no intention at the moment to establish a "United States of Europe" comparable in structure to the United States of America".
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this inclination, it is interesting to note that, due to its ambitious political role, which went beyond the functions normally carried out at that time by any other organization, the League of Nations, was considered by some authors to be a confederation of states42. b. The Provisions of the Treaty on European Union aa. Structure The European Union, established by the Treaty of Maastricht of 199243, is "founded on the European Communities, supplemented by the policies and forms of cooperation established by [the] Treaty [on European Union]"44. Its creation was initiated45 by the Single European Act of 1986 which gave shape to the European Political Cooperation, an intergovernmental mechanism operating outside the community institutions. In 1997, the Treaty of Amsterdam did not really innovate; rather it followed the structure put in place by the Treaty of Maastricht and built on three so-called "pillars": the first is based on the institutional and legislative framework set up by the Treaties of Rome and the Treaty of Paris establishing the European Communities (consisting of three international organizations: the European Community, the European Coal and Steel Community and the European Atomic Energy Community); the second pillar is constituted by the provisions on Common Foreign and Security Policy; the third pillar refers to the Police and Judicial Cooperation in Criminal matters. While the first pillar represents the normal functioning of the European Communities, the two others have recourse to a separate set of provisions to which the Community rules are not applicable, except when otherwise provided.
42 43
44 45
See Dendias, see note 37, 323-324. "...the high Contracting Parties establish among themselves a European Union" (article 1). Article 1. One of the objectives of the Contracting Parties to the Single European Act was "to transform relations as a whole among their States into a European Union": preamble, 1st paragraph; see also article 1: "The European Communities and European Political Cooperation shall have as their objective to contribute together to making concrete progress towards European unity."
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bb. Objectives According to article 2, the Union has four objectives "to promote economic and social progress", "to assert its identity on the international scene", "to strengthen the protection of the rights and interests of the nationals of its Member States" and "to maintain and develop the Union as an area of freedom, security and justice". The Treaty on European Union also lays down substantial obligations protecting principles common to the Member States, which belong to the competence of the Union proper. As provided in article 6 para. 1, the "Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of laws". A breach by a Member State of those principles may lead to the suspension of "certain of the rights deriving from the application of [the] Treaty"46. Pursuant to article 46, the Court of Justice has jurisdiction to control the respect of those fundamental rights by the European institutions. cc. Institutions and Membership In accordance with article 3, the Union is "served by a single institutional framework". The European Council is a proper organ of the Union. It is composed of Heads of State or government and the President of the Commission, and is entrusted with the task of defining the general policy of the Union. Apart from this organ, the Union makes use of the institutions set up by the Community treaties (European Parliament, Council, Commission, European Court of Justice, Court of Auditors) under the conditions provided for in the Treaty47. As regards membership, article 49 provides that "any European State... may apply to become a member of the Union", admission to the European Communities now being only possible through the Union. dd. Common Foreign and Security Policy The Common Foreign and Security Policy (Title V) is the core function given to the Union. Its main objectives are to safeguard the common values, interests, independence and integrity of the Union, to preserve peace, strengthen international security and security of the Union, and 46 47
Article 7. Article 5.
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to promote international cooperation48. It also includes the possible setting up of a common defence, subject to the decision of the European Council. While carrying out its functions under the provisions on CFSP, the Union has at its disposal various legal instruments: common strategies49, defined by the European Council and implemented by the Council, joint actions50 (where specific situations require an operational action by the Union), and common positions (defining the position of the Union as regards a particular question "of a geographical or thematic nature"51). Joint actions and common positions are adopted by the Council and the Members States are bound to conform their actions accordingly52. In this respect, the Amsterdam Treaty53 introduced a qualified majority voting in the decision making process within the Council for certain decisions54. A Member State may, however, oppose such voting "for important reasons of national policy". For decisions to be taken unanimously, a mechanism of "constructive abstention" is provided according to which a Member State abstaining in a vote "shall not be obliged to apply the decision, but shall accept that the decision commits the Union"55. In the implementation of the CFSP, the conclusion of agreements with states or international organizations is expressly contemplated by article 24 of the Treaty. In this case, the Presidency may be authorized to open negotiations by the Council and the agreement is concluded by the Council, in both cases acting unanimously. As regards matters falling within the CFSP, the Union is represented by the Presidency which is responsible for the implementation of decisions taken and expresses the position of the Union in the international 48
Article 11.
49
Article 13. Article 14. Article 15. Arts 14 para. 2, and 15. For an overview of the changes brought by the Amsterdam Treaty to the provisions on CFSP, see e.g. Dashwood, see note 1, 1028 et seq.; F. Dehousse, "After Amsterdam: A Report on the Common Foreign and Security Policy of the European Union", EJIL 9 (1998), 526 et seq.; J. Charpentier, "L'amelioration des mecanismes de la PESC", in: Le Traite d'Amsterdam: Realties et perspectives, 1999,117 et seq. It concerns decisions relating to the implementation of a common strategy, joint action or common position (article 23 para. 2). Article 23 para. 1.
50 51 52 53
54
55
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area. The Presidency is assisted by the High Representative of the CFSP, a function exercised by the Secretary-General of the Council56. In principle, expenditures relating to CFSP are charged to the budget of the European Communities, except for operational expenditures arising from operations having military or defence implications, which are charged to the Member States. When expenditures are charged to the budget of the European Communities, they are subject to the budgetary rules and procedure set by the Treaty establishing the European Community. ee. Police and Judicial Cooperation in Criminal Matters The provisions on Police and Judicial Cooperation (Title VI) intend to promote the objective of the Union "to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States". In these matters, the Council, acting unanimously, may choose between different instruments: common positions ("defining the approach of the Union to a particular matter"57); framework decisions for the purpose of approximation of the laws and regulations of Members States and decisions for any other purpose (both decisions are binding but do not possess direct effect); and conventions, the adoption of which is recommended to the Member States.58 Certain provisions on the CFSP are also applicable to Title VI, such as article 18 relating to the role of the Presidency in representing the Union59, and article 24 concerning the conclusion of agreements60.
56 57 58
59 60
Article 18. Article 34 para. 2 (a). It may be noted that Title VI attaches more importance to the development of the cooperation between competent authorities of Member States, directly or through the European Police Office (Europol), than to an action of the Union itself. The Union is less present in the third pillar than in the provisions relating to the CFSP. The term "Union" appears 32 times in Title V and 6 times in Title VI. Article 37. Article 24.
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Some components of the former third pillar have been moved into the Community area by the Treaty of Amsterdam. This proximity61 between Title VI of the Treaty on European Union and matters falling within the competence of the European Community also explains why the Court of Justice exercises increased jurisdiction in matters relating to the third pillar62. It may review the legality of decisions adopted by the Council or rule on disputes between Member States relating to acts adopted by the Council. The Court may also have jurisdiction to give preliminary rulings on questions relating to acts adopted under this Title, raised in a case pending before a municipal court of a Member State, subject to a declaration accepting its jurisdiction, to be made by the Member State concerned63. As far as expenditures are concerned, those are charged to the budget of the Communities, except if the Council decides otherwise. c. The Legal Personality of the European Union and the Reparation Case Opposing doctrinal views have been expressed concerning the existence of the Union as a juridical entity. For some authors, the Union is an intergovernmental mechanism ensuring common political action among the Member States and it does not possess international capacity64. The legal personality of the Union is recognized by others, with a variable intensity (from implicit personality65 to a "softer" personality designated by such terms as "presumptive personality"66 or "personnalite
61
62
63 64 65
66
In this respect, it is also worthwhile to note that, according to article 42, the Council may decide that action in areas covered by the third pillar "shall fall under Title IV of the Treaty establishing the European Community". See A. Albors-Llorens, "Changes in the Jurisdiction of the European Court of Justice under the Treaty of Amsterdam", CML Rev. 35 (1998), 1273 et seq. Article 35. See Pliakos, see note 1,211, Vignes, see note 1. See Charpentier, see note 53; P. Des Nerviens, see note 1, 807; Maganza, see note 1, 669; G. Hafner, "The Amsterdam Treaty and the Treaty-Making Power of the European Union. Some critical comments", Liber amicorum, see note 1, 257 et seq., (283). See Klabbers, see note 1, 249-252.
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virtuelle"67), or is cautiously left in abeyance while awaiting an answer which would be given by future practice68. In this context, the relevance of the Reparation Case to the European institutions should not pose any problem. These institutions were created by treaties concluded under international law and their status is defined by this legal order. It is therefore legitimate to confront the European Union with the leading case dealing with the international personality of organizations. It may also be added that this approach is not new. The Reparation Case has already been referred to in the past, when questions were raised concerning the legal personality and external powers of the European Coal and Steel Community and of the European Community69. aa. Preparatory Work and Lack of Express Provision Recognizing the Personality of the Union In the proceedings relating to the Reparation Case, reference was made to the lack of a provision in the Charter granting international personality to the United Nations and to the discussions held on this subject during the San Francisco Conference. As regards the European Union, it is common knowledge that the issue of the personality of the Union was discussed in the negotiations, in particular during those leading to the Amsterdam Treaty. Prior to the signature of the Amsterdam Treaty, proposals were made respectively by the Irish Presidency and later by the Dutch presidency. While, under the Irish proposal, the Union would have been granted international and internal legal capacity in addition to those of the three Communities, the proposal of the Dutch Presidency, following the approach of the Commission, proposed to set up a "single legal personality for the Union" which would have replaced and succeeded the existing personalities of the three Communities. The fact that these proposals were not retained is sometimes70 considered as constituting a clear indication that the intention of the drafters was not to accept the personality of the Union. In this respect, it is also noted that, when the Council decided, in its Decision 93/591 of 8 November 67 68 69
70
See Gautron et Grard, see note 1, 67. See Dashwood, see note 1,1038 et seq. See e.g. P. Pescatore, "Les relations exterieures des Communautes europeennes", RdC 103 (1961), 29 et seq.; De Soto, see note 17, 36 et seq. See: "Intervention de D. Vignes", in: Le Traite d'Amsterdam, see note 53, 125; Klabbers, see note 1, 238.
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199371, to change its name into the "Council of the European Union" and that political declarations adopted under the CFSP would be "made in the name of 'the European Union"', it also recorded a declaration stating that the European Union had no legal personality at international level72. However, the absence in the Treaty on European Union of a provision recognizing expressly the personality of the Union is generally not considered as constituting per se an obstacle to the existence of such personality. The main argument73 invoked in support of this assertion is that the international personality of organizations is rarely expressed in their constitutive instruments74 and that the absence of such provision in the United Nations Charter did not prevent the ICJ in its opinion of 1949 from affirming the personality of the United Nations75. Opinions nevertheless differ on the existence of a legal capacity which the Union would actually possess. bb. (Non) Existence of a Legal Capacity to Act at International Level If we apply the method followed by the ICJ in the Reparation Case to the European Union, we may find that the Union has been assigned goals, purposes (article 2) and principles (article 6); that it is equipped with functions, organs, and necessary means (common strategies, joint actions, common positions ...); that the position of Member States in relation to the Union requires them to conform their actions to decisions taken by the Union, sanctions being expressly contemplated in
71
72
73
74 75
Decision "concerning the name to be given to the Council following the entry into force of the Treaty on European Union" (it means after the Maastricht Treaty but before the Treaty of Amsterdam), OJEC No. L 281 of 16 November 1993, page 18. "Ce changement ne modifie nullement la situation juridique actuelle, a savoir que 1'Union europeenne ne jouit pas de la personnalite juridique sur le plan international. II n'affecte pas non plus la designation des parties signataires d'un instrument international produisant des effets juridiques, question qui devra etre tranchee cas par cas": Text of the declaration quoted in Vignes, see note 1, 759, footnote No. 4. See Hafner, see note 65, 267, who also argues that the insertion of an express provision could not be a decisive factor since it would only have a declaratory effect. Pliakos, see note 1,211. See Vignes, see note 1, 769; Gautron and Grard, see note 1, 73.
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case of breach of the common principles defined in article 6; that membership of third states is provided for (article 49) and that the conclusion of agreement is contemplated (arts 24 and 38). Following an approach similar to the one contained in the written statement of the government of the United Kingdom in the Reparation Case, it is also tenable to maintain that the language used in the Treaty on European Union does not seem to be consistent with the characterisation of this institution as "a mere assemblage, a sort of association, of States and the rights and duties of the [Union under the Treaty] as vesting in the individual Members jointly and severally"76. Several extracts of the treaty may be quoted in this respect: "The Union shall set itself the following objectives", and among them: "to assert its identity on the international scene" (article 2); the Union "shall be served by a single institutional framework" and "shall ... ensure the consistency of its external activities" (article 3); "The Union shall respect fundamental rights" and "shall provide itself with the means necessary to attain its objectives" (article 6); "The Union shall define and implement a common foreign and security policy" (article II)77; "The Union shall ... foster closer institutional relations with the WEU" (article 17); "the Presidency shall represent the Union" (article 18). On the basis of the provisions of the treaty, the Union appears therefore as an institution "in detachment from its members", entrusted with a capacity to act on international level. The lack of personality of the Union has also been invoked on the basis of the limited institutional autonomy it enjoys under the Treaty. The Union is served by an institutional framework that does not belong properly to it but rather to the European Communities. The same may be said about the budget. There is no budget as such of the Union since expenses are charged to the Community budget or to the Member States78. However, the use by the Union of the institutions of the Community is not per se a reason to deny its autonomy. In this regard,
76 77
78
Pleadings, Oral arguments, Documents, 1949 (Reparation Case), 30. In this respect, it has been observed that, in article 11, para. 1, of the Treaty ("The Union shall define and implement a CFSP..."), the words "and its members States" (contained in the Treaty of Maastricht) have been deleted by the Treaty of Amsterdam, what underlines the autonomy of the Union. See Dashwood, see note 1, 1029, who adds: "When acting within the framework of Title V TEU, the Member States do not have an identity separate from the Union". Vignes, see note 1, 757.
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we may refer to the example of the Treaty of 8 April 1965, which merged the European institutions without resulting in a merger of the three Communities. The same applies to the fact that expenses are normally charged to the budget of the European Communities. As regards the possible appropriation of expenses of the Union to its Member States, we may simply note that this does not really depart from the practice of international organizations. The analogy between the Reparation Case and the situation of the Union must probably be handled cautiously. The personality of the United Nations in 1949 was largely admitted. On the contrary, the personality of the Union is disputed. The intention of the drafters of the Treaty on European Union was not clearly expressed and some doubts have been expressed in this respect. However, the absence of a clear intention does not seem to be an obstacle to international personality if the entity concerned actually exercises functions on an international plane. An enlightening example of this is given by the Organization for Security and Cooperation in Europe. The OSCE, formerly the Conference on Security and Cooperation in Europe, has not been set up by a treaty but by a political instrument. In 1994 when its name was changed from "Conference" to "Organization", it was expressly mentioned in the Declaration of Budapest that this modification did not affect the legal nature of the institution. However, the OSCE has been recognized within the United Nations as a regional arrangement under Chapter VIII of the Charter79, has been granted the status of observer in the General Assembly of the United Nations80 and its international personality now seems commonly accepted. cc. Treaty Making Power of the Union If the personality of the Union seems tenable, its capacity to conclude international agreements raises difficulties. Article 24 does not mention the Union as a party to agreements concluded and addresses only the question of their binding effect on Member States. Furthermore, if we consider the context of this provision, we may note that the conclusion
79
80
In its Resolution A/RES/47/10 of 28 October 1992, the General Assembly took note of the declaration of the Participating States of the CSCE according to which this constituted a regional arrangement under Chapter VIII of the Charter. The CSCE has been granted the status of observer in 1993 by Resolution A/RES/48/5 of 13 October 1993.
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of agreements is not referred to in article 12 listing the means given to the Union to pursue its objectives. The lack of capacity of the Union in this matter would also be confirmed by the declaration appended to the Final Act of the Amsterdam Treaty according to which: "the provisions of articles J. 14 [now article 24] and K. 10F [now article 38] and any agreements resulting from them shall not imply any transfer of competence from the Member States to the Union"81. On the other hand, it has been argued that this provision would serve no purpose if the agreement concluded did not bind the Union82. In this regard, it may be noted that article 24 is placed in Title V entrusting the Union with the task of defining and implementing its common foreign and security policy and that it would not be in line with the principle of effectiveness to confer upon the Union this task and, at the same time, to provide for the conclusion of agreements on behalf of Member States in this precise area of competence. Article 24 also envisages agreement with international organizations and the provision may be read together with article 17, which contemplates "closer institutional relations" between the Union and the WEU. This is confirmed by the Protocol in article J. 7 (now 17) annexed to the Amsterdam Treaty which reads as follows: "The European Union shall draw up, together with the Western European Union, arrangements for enhanced cooperation between them, within a year from the entry into force of the Treaty of Amsterdam". The last sentence of article 24 reads as follows : "No agreement shall be binding on a Member State whose representative in the Council states that it has to comply with the requirements of its own constitutional procedure; the other members of the Council may agree that the agreement shall apply provisionally to them". This provision has to be read, keeping in mind the particularities of the European legal system, as illustrated by article 300 para. 7 of the European Community Treaty according to which agreements concluded by the European Community are binding upon the institutions and the Member States. This latter provision does not mean that the Member States are contracting parties to agreements concluded by the Community but rather that, within the
81
82
See Hafner, see note 65, 270. In support of this position, which identifies the Union as a mere agent of the Member States, article 20 of the European Community Treaty, is also quoted. This provision, relating to the assistance the citizens of the Union may expect abroad, refers only to the Member States. See Pliakos, see note 1, 212. Charpentier, see note 53; see also Hafner, see note 65, 283.
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European legal order, they have the obligation to respect it. If we assume that agreements under article 24 would be concluded by the Union, it would mean that the Member States are not, as regards third parties, "parties" to the conventions and that Member States making the declaration provided for under article 24 would not be accountable in the European internal legal order. As noted by G. Hafner, such situation could lead to problems in cases where the Union would be bound by an agreement but, due to its non binding effect upon some Member States, would not be able to implement it83. The above mentioned explanation is plausible but leaves two issues unexplained, i.e. the reference to the requirements of constitutional procedure in the last sentence of article 24 of the European Union Treaty, and the declaration attached to the Amsterdam Treaty according to which arts 24 and 38 and "any agreements resulting from them shall not imply any transfer of competence from the Member States to the Union". The expression used in the last sentence of article 24 gives the impression that, contrary to agreements concluded under article 300 of the European Community Treaty, agreements under article 24 of the European Union Treaty have to be submitted by Member States to their internal constitutional procedures relating to the conclusion of treaties. If this is the case, it would imply that the Member States would be actually parties to the agreements. The same reasoning applies to the provision stating that other Member States "may agree that the agreement shall apply provisionally to them". The provisional application has a precise meaning in international law. According to article 25 of the 1969 Vienna Convention on the Law of Treaties a treaty "is applied provisionally pending its entry into force" with respect to the State concerned. In order to preserve a treaty making power of the Union, another interpretation could be suggested according to which the last sentence of article 24 would be considered as an exception to the normal rule, drafted for cases where an agreement would touch upon sensitive matters on which the capacity of the Union is not clearly established under the terms of the treaty. The French wording of this sentence could support this explanation since it does not refer to the requirements of a constitutional procedure but to "les regies constitutionnelles" (Constitutional provisions); an expression which could be understood as addressing substantive questions rather than procedural ones. An example of such sensitive matters is given in article 17 con83
See Hafner, see note 65, 275.
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cerning the development of institutional relations with the WEU "with a view to the possibility of the integration of the WEU into the Union". Pursuant to this provision, a decision in favour of such integration has to be recommended by the European Council to the Member States for adoption, "in accordance with their respective constitutional requirements". As regards the declaration annexed to the Amsterdam Treaty, this could be understood as depriving the Union of the competence to conclude any agreement on its behalf. Another approach, more respectful towards the legal personality of the Union, would be that the purpose of the declaration is to underline that article 24 is a formal provision which cannot be in itself the basis of a competence to conclude an agreement. It has to be used to implement existing substantive competence and no extension of competence could be based on it or on the agreements concluded pursuant to it84. dd. The Practice of the Union Before concluding on those points, it is important to consider the practice of the Union and see if it may furnish any confirmation or invalidation as regards the existence of international rights to the benefit of the Union. Since its creation, the Union has certainly affirmed its identity and visibility on the international area. The expression "Union" is commonly used, e.g. in the numerous political statements and declarations which are expressly made "on behalf of the Union" in various fora and international organizations. A further evidence of the recognition of the Union may be seen in article 1 (f) of Annex 10 (Agreement on Civilian Implementation) to the General Framework Agreement for Peace in Bosnia and Herzegovina, signed in Paris on 14 December 1995, which refers to the "tasks set forth to ... European Union"85. Likewise, Representatives of States are accredited to the Union rather than to the Communities86. So far, this does not affect the legal position of the European Community as party to multilateral agreements or member of organizations.87 But this complex situation may lead to confusion. As an illustration, we may note that the 1999 report of the Secretary84
85 86 87
Id., 272. 7LAf35(1996), 87. Dashwood, see note 1,1040. For example, in the United Nations, the European Community possesses an observer status.
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General of the United Nations88 on the recent developments on the (socalled) Straddling Fish Stocks Agreement of 1996 refers to the European Community as a party to the United Nations Convention on the Law of the Sea of 1982 and to nine regional fishery organizations. The decision of the Council of the European Union of 8 June 1998 to ratify the Straddling Fish Stocks Agreement is also mentioned but reference is made twice to the "ratification" of this agreement "by the European Union"89. In fact, the main area of activity of the Union is devoted to the CFSP and Police and Judicial Cooperation. As regards the CFSP, according to information available on the website of the Council90, about a hundred common positions have been adopted from 1993 to 1999 and the figure is approximately the same for joint actions. These cover a wide range of topics, from sanctions, actions of the Union in the Balkans, disarmament, crisis concerning third countries. In 1999, two common strategies were adopted concerning, respectively, Russia and the Ukraine. As far as Police and Judicial Cooperation is concerned, about thirty joint actions have been adopted. Apart from those decisions, a number of instruments called "declaration", "recommendation", "resolution", "programme", "conclusions", "report", "action plan" have also been adopted. If we consider the contents of the common positions and joint actions adopted, it is manifest that those instruments are not only relevant to the Member States within the European system but also address the relations between the Union and the outside world, for example by defining the policy of the Union towards third countries91 and by tak-
88 89
90
91
See Doc. A/54/461 of 15 October 1999, paras 61 and 62. The Decision 98/414 of the Council refers to an "instrument of ratification" deposited "on behalf of the European Community" (OJEC L 189 of 3 July 1998). See also: F. Fink-Hooijer, "The Common Foreign and Security Policy of the European Union", EJIL 5 (1994), 171 et seq., (179-184); Dashwood, see note 1, 1030 et seq.; Koskenniemi, see note 1, 30-39; Klabbers, see note 1, 250-251. For example, the common position on Rwanda of 12 July 1999 or on Afghanistan of 25 January 1999, where the Union defines its policy in its dialogue with the government of the states concerned; the joint action of 28 November 1997 on anti-personnel landmines: "The Union is committed to the goal of total elimination of anti-personnel landmines worldwide..."(art. 1); "The Union shall seek to promote, in all appropriate fora ... all efforts likely to contribute" to those objectives and "shall focus attention on those
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ing some commitments in this respect, or by cooperating with other international organizations92. As regards the treaty-making power of the Union, the practice gives so far no conclusive evidence. Before the inclusion of article 24 in the European Union Treaty, on 5 July 1994, the Memorandum of Understanding on the European Union Admistration of Mostar93 was signed by the Presidency of the European Union, for the "Member States of the European Union acting within the framework of the Union in full association with the European Commission". This expression would seem to reflect a commitment taken on behalf of the states rather than on behalf of the Union. But the provisions of the agreement designate clearly the European Union as the entity responsible for the administration of the city of Mostar. This uncertainty surrounding the modalities of signature concerning the Union may also be explained by the novelty of this institution. In 1954, when an association agreement between the ECSC and the United Kingdom was concluded, it was first negotiated by the High Authority acting as a common proxy of the Member States and signed by the High Authority and the six member states94. At that time, Member States were under the impression that external relations were still within their competence. Reference may also be made to the exchange of letters between the European Union and Norway, Austria, Finland and Sweden on information and consultation procedure during the period preceding accession, which accompanied the treaty, signed on 26 July 1994, between the Member States of the European Union and those four states, concerning their accession to the European Union95. For the rest, the Union has adopted political instruments such as: a Joint Declaration between the
92
93 94 95
third countries which continue the irresponsible supply and indiscriminate use of anti-personnel landmines" (article 3). For example, the decision of 22 November 1996 on the implementation of the joint action on the Great Lakes Region, whereby the European Union "requests the WEU to examine as a matter of urgency how it can, for its part, contribute to the optimum use of the operational resources available"; the common position on Rwanda of 12 July 1999 which states that "in implementing this Common Position, the European Union will cooperate closely with the UN, OAU and other interested organizations"; the Common Position on Afghanistan of 25 January 1999 which records the commitment of the Union to support the action of the United Nations. Tractatenblad, 1994, No. 183. See De Soto, see note 17, 59 and 70-72; Dupuy, see note 19, 550-553. OJEC C 241 of 29 August 1994, page 399.
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European Union and Australia signed on 26 June 199796; a Joint Declaration on Political Dialogue between the European Union and Mercosur of December 199597; a Joint Statement between the European Union and Canada on Small Arms and Anti-personnel Mines of 17 December 1998 followed by a Statement of 2 September 1999 on Small Arms and Light Weapons9899. The relations between the Union and the WEU have seen some recent developments. Pursuant to article 17 of the Treaty on European Union and the Protocol relating to this article, the European Union and the WEU have drawn up the "Arrangements for enhanced cooperation between the European Union and the Western European Union". Surprisingly, those arrangements were not adopted in the form of an agreement between the two organizations but received a parallel but separate approval within both institutions in May 1999.100 In a declaration adopted at the European Council held in Cologne on 3 and 4 June 1999, the members of the Council declared that they were "resolved that the European Union shall play its full role on the international stage" and that they were intending "to give the European Union the necessary means and capabilities to assume its responsibilities regarding
96
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98 99
100
The Joint Declaration has been signed on 26 June 1997, for Australia, by the Minister for Foreign Affairs of Australia and, for the European Union, by the President of the Council and Minister for Foreign Affairs of the Netherlands. It concerns economic matters, the multilateral trade system, human rights and the fight against crime (Bulletin EU, June 1997, 1.4.103). The Joint Declaration was made at the occasion of the conclusion of the Interregional Framework Cooperation Agreement between the European Community and its Member States, on the one side, and the Southern Common Market and its Party States, of the other side, opened for signature in Madrid between 15 and 31 December 1995. OJEC No.L 69 of 19 March 1996. See website of the European Union (Europa): http://ue.eu.int/pesc A press release HR/4265 of 9 January 1996, issued by the UNHCR, also refers to the signature of the same day in Geneva of a financing agreement for deployment of human rights observers in Burundi between the UNHCR and the European Union. In their Bremen Declaration, on 11 May 1999, the WEU Council of Ministers "endorsed the present set of arrangements which had been elaborated in WEU and EU". Within the European Union, the arrangements were approved by a decision of the Council of 10 May 1999.
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a common European policy on security and defence"101. At the European Council of Helsinki, on 10 and 11 December 1999, the Presidency reported on steps taken to strengthen European policy on security and defence and stated that the measures to be taken "will reinforce and extend the Union's comprehensive external role" and that, in contributing to international peace and security, "the Union will cooperate with the UN, the OSCE, the Council of Europe and other international organizations".102 After this overview of the provisions of the European Union treaty and the practice relating thereto, the international personality of the Union seems to be sufficiently evidenced. This personality may firstly be deducted from the articles of the Amsterdam Treaty, which equip the Union with organs and tasks. The relations between the Union and its Member States are defined and, to use the language of the Court in the Reparation Case, the Union "occupies a position... in detachment from its Members". The Union has the capacity to operate on the international plane and has in fact exercised it, principally by taking common positions and joint actions. Those decisions are not only adopted for the internal use of the Union; they may contain commitments towards third states and in this respect are to be considered as unilateral acts. However, this personality is limited, not yet mature, since the competence of the Union to conclude international agreements remains challenged. The treaty-making power of the Union would be consistent with the principle of effectiveness, but the wording of its constituent treaty clearly leaves room for interpretation. The practice is also largely103 inconclusive and manifests some timidity, or certain would call it "reluctance", to use the potentialities of article 24 of the Union Treaty. ee. Union and Communities A further difference between the circumstances of the case dealt with by the ICJ in 1949 and the position of the Union is the existence of the personalities of the three European Communities. Instead of being confronted with the classical hypothesis of the (non) existence of one or101
102 103
See Annex III to the Conclusions of the Presidency. This was welcomed in a WEU Ministerial Declaration issued on 23 November 1999. See Annex IV to the Conclusions of the Presidency. Except in the case of accession of new states to the Union if we consider the exchange of letters between the European Union and Norway, Austria, Finland and Sweden of 1994 (see above, 356).
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ganization, we are now faced, taking into account the emerging personality of the Union, with a system consisting of various institutions. In international law, there are cases where organs possess an international personality distinct from the personality of the organization to which they belong. According to the United Nations Convention on the Law of the Sea, the Enterprise, an organ of the International Seabed Authority, has "such legal capacity as is necessary for the exercise of its functions"104, enjoys privileges and immunities and may enter into agreements with states. This abundance of personalities is not unknown in the European Communities. The European Investment Bank has a legal personality (European Community Treaty, article 266) and the same applies to the European Central Bank105 (European Community Treaty, article 107). However, the position of the Union is different from this phenomenon of a plurality of personalities within a single organization. In the present case, it is even an opposite situation, i.e. a coexistence of institutions served by a single institutional framework. Since the European Communities already exist and retain their personalities under their respective constituent instruments, one could think that the specific area of the Union is constituted by the policies and forms of cooperation (CFSP and Police and Judicial Cooperation) supplementing the treaties of Rome and Paris, as modified. This assertion may be true but it is certainly not complete because it overlooks the fact that the Union cannot be easily separated from the European Communities. The Union, as a personality, is not simply juxtaposed to the Communities. On the contrary, the Union superposes itself on the Communities to form an intricate system, whose analogy with the United Nations System would deserve further study106. The reality of a system is evidenced by several elements. Firstly, the Community institutions are not absent from the provisions relating to policies and forms of cooperation set up by the Treaty on European Union. This is underlined by the treaty itself which expressly refers to the existence of a single institutional framework. Secondly, the Union is a global entity. This cannot be ignored when dealing with the question of admission of new 104 105
106
See article 13 para. 2 of Annex IV to the Convention. According to the Protocol No. 3 to the Maastricht Treaty, the Bank enjoys privileges and immunities and may participate in international monetary institutions. On the notion of "system" or "families" of international organizations (including the European Union), see Schermers and Blokker, see note 8, 10561065.
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Member States, since membership of the Union implies admission to the treaties establishing the European Communities. Furthermore, certain Community rules and procedures are applicable to the Union, for example in budgetary matters or in matters relating to the third pillar where the Court of Justice may exercise a limited jurisdiction. Likewise, the system supposes a necessary cooperation between its various components. There is no functional separation107 between the three pillars and this implies synergy. It also may raise issues of border zones and grey areas. For example, the influence of decisions taken under the CFSP may have impact on commercial matters, as it is expressly regulated under article 301 of the European Community Treaty in the case of sanctions. In such a system, there is a need to develop rules to safeguard the areas of competence allocated to the different institutions. In this respect, article 47 of the European Union Treaty expressly states that the provisions of the Treaty (except those modifying the constituent treaties of the Communities and the final provisions) shall not affect the treaties establishing the European Communities. By virtue of article 46 of the Treaty, this enables the European Court of Justice "to ensure that acts which, according to the Council, fall within the scope ... of the Treaty on European Union do not encroach upon the powers conferred by the EC Treaty on the Community"108. That being said, the Union, as an institution distinct from the Communities, probably has a transitory nature. It reflects the stage reached in the European architecture which could be described as a "federation of institutions" rather than a "Federal Europe". The system is complex, especially for the third states. Those states are not necessarily familiar with the subtleties of the system and may find artificial the division of European institutions in three "pillars". If the Union increases its identity on the international arena, which represents one of its objectives, it would be logical to presume that its personality would absorb the other personalities on which it is, at least partially, founded109. It would simply mean that the complex system put in place would be mainly rele107
108
109
See Gautron and Grard, see note 1, 70-71, who e.g. mention the initiatives taken by the Union, in the framework of the CFSP, concerning the reconstruction process in Ex-Yugoslavia and observe that the implementation of these actions was followed up under Community Law. See para. 16 of the Judgement of the European Court of Justice of 12 May 1998 in Case C-170/96. See e.g. A. von Bogdandy, "The Legal Case for Unity: the European Union as a Single Organization with a single Legal System", CML Rev. 36 (1999), 887 et seq.
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vant within the European legal order and that, on an international plane, this system would have a single personality or identity: the European Union.
II. Conclusions The Treaty on European Union established the Union under international law. The question of the international personality of this new entity has to be addressed within this legal order. If we follow the test adopted by the ICJ in the Reparation Case, the Union, under the provisions of its constituent treaty, has received tasks and may adopt legal decisions binding upon its Member States. This implies that it possesses a personality distinct from them. In practice, decisions adopted by the Union also concern third states or other organizations. This reinforces the credibility of its personality on an international level. However, at this stage, the competence of the Union to conclude treaties cannot be sufficiently demonstrated on the basis of the provisions of the treaty or confirmed by the practice. The personality of the Union presents the particularity of being part of a system consisting of different institutions. This system is in evolution and may lead to the absorption of the Communities into a single entity under the chapeau of the Union. That would constitute a logical result but such evolution will depend on the will of the Member States and the attitude of the international community. However, in the present circumstances, it is more likely that the present system will survive for a while. It would at least present an interest for the law of international organizations, in particular as regards the functioning of a complex system consisting of a plurality of international personalities.
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Institutional Developments under Modern International Environmental Agreements Volker Roben I. II.
Organisational Design of Modern International Environmental Agreements Meetings of Parties 1. Organisation 2. Legislative Function a. Power of Normative Decision-Making aa. Externally Binding Normative Decisions bb. Explicit and Implicit Binding Effect of Normative Decisions cc. Structure of Normative Decisions b. Competencies aa. Progressive Development of the Agreement aaa. Adapting the Regulatory Action bbb. Modifying the Regulatory Approach bb. Implementing the Agreement aaa. Mechanisms for Transactions and Cooperation bbb. Compliance Mechanisms cc. Setting Standards for National Laws and Policies dd. Progressive Development and Revision of the Treaty c. Procedure aa. Preparation of Decision-Making aaa. Institutionalising Expertise bbb. Power of Proposal bb. Voting Requirements cc. Deliberation at the Sessions of the Meetings of Parties 3. Executive Function a. Internal and External Administration of the Treaty b. Competencies aa. Administering the Regulatory Approach bb. Administering Implementing Mechanisms cc. Administering Compliance Mechanisms 363
J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, 363-443. © 2000 Kluwer Law International. Printed in the Netherlands.
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dd. Direct and Indirect Administration of International Environmental Agreements c. Procedure 4. Quasi-Judicial Function a. Jurisdiction aa. Compliance bb. Interpretation of Agreement b. Institutional Issues c. Factual Assessment and Legal Evaluation d. (Non-)compliance Response e. Procedure 5. Policy-Making Function III. Secretariats 1. Organisation 2. Legislative Function a. Organisational Preparation of Decision-Making by Meetings of Parties b. Initiating Decision-Making by Meetings of Parties 3. Executive Function a. Administering the Agreement b. Relations with Third Institutions 4. Quasi-Judicial Function a. Enforcement b. Interpretation of Agreement IV. International Commissions 1. Organisation 2. Legislative Function 3. Judicial Function a. Enforcement b. Interpretation and Application of the Treaty V. Conclusions The international community responds to the international environmental problematique1 through an institutional innovation. Operating under a treaty-based standard organisational design (Part I.), Meetings of Parties (Part II.), Secretariats (Part III.) and International Commissions (Part IV.) exercise powers and competencies that amount to legislative, executive, quasi-judicial and policy setting functions. This institutional development of allocating functions to a specific organisational design takes place across the board of international environmental law. It establishes a process of making and enforcing law whose effectiveness
The terminology is that of L. Guruswamy/G. Palmer/B. Weston, International Environmental Law and World Order, 1994, 218.
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and legitimacy creates a strong pull-effect towards universalising the treaty regimes (Part V.).
I. Organisational Design of Modern International Environmental Agreements States Parties provide for a standard organisational design of modern international environmental agreements.2 There is a plenary organ, the Conference of the Parties in the case of a framework convention or the Meeting of the Parties in the case of protocols, which has at its disposition auxiliary organs, a Secretariat, and often a financial mechanism. The design holds a higher degree of organisational structure and differentiation than is the case with intergovernmental negotiating conferences complemented by subsequent review conferences. The trend for thus institutionalising international environmental agreements began following the United Nations Conference on the Human Environment (UNCHE), held in Stockholm in 1972, which led to the so-called second generation ozone and transboundary waste regimes. The third generation agreements adopted at the United Nations Conference on Environment and Development (UNCED) in 1992 on Climate Change3 and Biodiversity4 as well as those concluded pursuant to an UNCED negotiating mandate, i.e. the Anti-Desertification Convention and the United Nations Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea Relating to
The term, as understood here, refers to multilateral treaties whose primary object is the protection of a natural resource. For an account of the Convention's negotiating history see J. Barrett, "The Negotiating and Drafting of the Climate Change Convention", in: R Churchill/D. Freestone (eds), International Law and Global Climate Change, 1991, 183 et seq.; S. Oberthiir, Politik im Treibhaus. Die Entstehung des internationalen Klimaregimes, 1993; I. Mintzer/A. Leonhard (eds), Negotiating Climate Change. The Inside Story of the Rio Convention, 1994; R. Loske, Klimapolitik im Spannungsfeld von Kurzzeitinteressen und Langzeiterfordernissen, 1996; H. Ott, "Das internationale Regime zum Schutz des Klimas", in: Th. Gehring/S. Oberthiir (eds), Internationale Umweltregime. Umweltschutz durch Verhandlungen und Vertrage, 1997. F. Burhenne/S. Casey-Lefkowitz, "The Convention on Biological Diversity: A Hard won Global Achievement", Yearbook of International Environmental Law 3 (1992), 43 et seq.
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the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement),5 have continued this trend of institutionalisation in the field of international environmental law. Thus institutionalised international environmental agreements now cover most aspects of the global environmental problematique:6 The 1973 Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)7 establishes a Conference of Parties and a Secretariat, the latter to be provided by the Executive Director of UNEP.8 The 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals9 establishes a Conference of Parties, the Standing Committee, a Scientific Council of Experts, and a Secretariat under the auspices of UNEP located in Bonn. The 1992 Convention on Biological Diversity10 establishes a Conference of Parties, a Subsidiary Body on Scientific, Technical and Technological Advice, and a Secretariat, for which UNEP has established a special Secretariat unit in Montreal.11 The 1979 Convention on Long-Range Transboundary Air Pollution,12 adopted under the auspices of the Economic Commission for Europe (ECE), establishes an Executive Body of States Parties representatives to be constituted within the framework of the Senior Advisers to ECE Governments on Environmental Problems, and assigns to 5
6
7
8
9 10 11 12
United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, 6th Sess., 24 July - 4 August 1995, Doc. A/CONF.164/37 of 8 September 1995, ILM 34 (1995), 1542 et seq. Guruswamy/Palmer/Weston, see note 1, understand the global environmental problematique to concern the 'atmosphere', 'biosphere', 'aquasphere' and 'lithosphere' as "conceptually divisible components of our otherwise indivisible environment". UNTS Vol. 993 No. 14537, ILM 12 (1973), 1088 et seq., as amended in 1979 and 1983. A special UNEP unit was established in Geneva, the UNEP Executive Director appoints the Secretary-General of CITES, who in turn appoints, in consultation with UNEP, further staff. UNTS Vol. 1651 No. 28395, ILM 19 (1980), 15 et seq. UNTS Vol. 1760 No. 30619, ILM 31 (1992), 818 et seq. Doc. UNEP/CBD/COP/1/L 7. UNTS Vol. 1302 No. 21623, ILM 18 (1979), 1442 et seq.; there are two protocols (of 1985 and 1988) to this convention (reprinted in: ILM 27 (1988), 707 et seq., and ILM 28 (1989), 214 et seq., respectively).
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the Executive Secretary of ECE the task of carrying out specified Secretariat functions. The 1985 Vienna Convention for the Protection of the Ozone Layer establishes a Conference of Parties and a Secretariat to be provided by UNEP.13 The Montreal Protocol to that Convention established a Meeting of States Parties and a Multilateral Fund, which is governed by an Executive Committee and has a separate Secretariat. The 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal14 establishes a Conference of Parties and provides for a Secretariat, which was then established as a special Secretariat unit in Geneva. The 1992 Framework Convention on Climate Change (FCCC)15 establishes a Conference of Parties, subsidiary bodies of expert governmental representatives for scientific and technological advice and for implementation, and a Secretariat. The Convention also provides for a financial mechanism. In 1997, the Kyoto Protocol was signed.16 According to article 13 para. 1 the "Conference of the Parties, the supreme body of the Convention, shall serve as the Meeting of the Parties to this Protocol". The 1971 Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat17 assigns the duties of the Secretariat to the International Union for the Conservation of Nature (IUCN). The 1994 Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, especially in Africa,18 established a Conference of Parties, a Committee on Science and Technology composed of governmental representatives with relevant expertise, and a Secretariat. An interim Secretariat has been appointed by the UN Secretary-General, the staff members are UN staff and are located in Geneva. The Convention also provides for a financial mechanism. The 1998 UNEP/FAO Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and
13 14 15 16
17 18
UNTS Vol. 1513 No. 26164, ILM 26 (1987), 1529 et seq. UNTS Vol. 1673 No. 28911, ILM 28 (1989), 675 et seq. UNTS Vol. 1771 No. 30822, ILM 31 (1992), 849 et seq. The Protocol was adopted by consensus on 11 December 1997 in Kyoto, Japan, by the Meeting of Parties at its third session pursuant to the Berlin Mandate (Decision 1/CP.l), Doc. FCCC/CP/1997/L.7/Add.l. As of 13 January 2000, 84 Parties (including the European Community) have signed the agreement and 8 states have ratified it. UNTS Vol. 996 No. 14583, ILM 11 (1972), 969 et seq. UNTS Vol. 1954 No. 33480, ILM 33 (1994), 1328 et seq.
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Pesticides in International Trade (Rotterdam Convention)19 established a Conference of Parties, a Secretariat, which at least initially is to be provided jointly by the UNEP Executive Director and the FAO Director-General, and a Chemicals Review Committee. The oceans were seemingly left out of the international environmental agreements with a global reach that were concluded at UNCED. However, Chapter 17 of Agenda 2120 called on the international community to address the question of the overfishing of highly migratory and straddling fish stocks, which led to the 1995 Fish Stocks Agreement.21 The Agreement provides in article 36 for a review conference to be serviced by the UN Secretary- General.22 Under the umbrella of the UN Convention of the Law of the Sea (UNCLOS),23 as implemented by further agreements, protection of the marine environment is furthermore the object of international environmental agreements establishing so-called Commissions. Their analysis will offer possible solutions to questions that arise under the agreements providing for a Meeting of Parties.24 Only the Secretariats have a permanent seat. The Meetings of Parties and their auxiliary organs are itinerant. It is up to each State Party to offer to host a meeting and to bear the considerable administrative expenses incurred by hosting the event.
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Doc. UNEP/FAO/PIC/CONF.2 of 11 September 1998, ILM 38 (1999), 1 et seq. Agenda 21, adopted by the UN Conference on Environment and Development, Doc. A/CONF. 151/26. As of 13 January 2000, 25 states out of 30 required have ratified the treaty, which therefore has not yet entered into force. Nor has any state or entity undertaken to apply it provisionally, as allowed under the Agreement. The Code of Conduct for Responsible Fisheries, adopted by the FAO Conference in 1995, and the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (the Compliance Agreement) also need to be acceded to or applied with immediate effect; while the Code itself is voluntary, the Compliance Agreement is binding. This conference shall assess the effectiveness of the Agreement and, if necessary, propose means of strengthening the substance and methods of the Agreement's provisions. UNTS Vol. 1833 No. 31363. See under IV.
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II. Meetings of Parties Position, powers and competencies of the Meeting of Parties are typically couched in the following general terms: "The Conference of the Parties, as the supreme body of this Convention, shall keep under regular review the implementation of the Convention and any related legal instruments that the Conference of the Parties may adopt, and shall make, within its mandate, the decisions necessary to promote the effective implementation of the Convention."25 It is thus through the plenary body of modern international environmental agreements that States Parties primarily exercise legislative, executive, and quasi-judicial branch functions.
1. Organisation The institutional centrepiece of international environmental agreements, its "supreme body", is the plenary organ called Conference of Parties in the case of framework conventions and Meeting of Parties in the case of protocols. In international environmental law states prefer a "convention-cum-protocol approach"26 under which the mother convention spells out objectives as well as general obligations which are then concreted in separate treaties (protocols). Membership to either treaty may be different. While the earlier instruments such as the Vienna Convention and the Montreal Protocol of the ozone regime maintain an organisational separation between the two organs, the more recent treaties such as the climate and biodiversity regimes are more interested in efficiency, declaring that the Conference of Parties of the mother convention "serves as the Meeting of the Parties" to the protocol.27 It is thus
25
26
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Article 7 para. 2 FCCC (emphasis added); see furthermore arts 23 para. 4 CBD, 6 para. 4 Vienna Convention, XI para. 3 CITES. Certain agreements such as CITES choose the term recommendations while in practice, the Meeting of Parties also makes "decisions": article XI para. 3: "At meetings [...] the Parties shall review the implementation of the present Convention and may: [...] (e) where appropriate, make recommendations for improving the effectiveness of the present Convention." The term was coined by P. Sand, Marine Environmental Law> 1989, 1 et seq. See article 13 Kyoto Protocol; this construction is consequently extended to the other organs of the Convention, see arts 14 for the Secretariat and 15
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the plenary of the States Parties which, albeit in changing composition, acts based on the respective treaty. Therefore, in the following, Meeting of Parties shall be used as the generic term for the plenary of the Parties to an international environmental agreement. The Meeting of Parties is increasingly turned into a permanent institution through "open-ended working groups" under the ozone regime or formal "Standing Committees" as in the case of the Bonn Convention, that meet intersessionally.28 The plenary organ is supported by a variety of subsidiary bodies with a functionally limited mandate. Membership may mirror that of the plenary organ, but there are also limited membership bodies. Furthermore there are informal mechanisms.29 The Meetings of Parties are UN treaty organs.30 This concept establishes functional links between the general organisation and the law of
28
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for the subsidiary bodies; Cartagena Protocol on Biosafety, article 27 (Conference of the Parties serving as the Meeting of the Parties). See furthermore Intersessional Meeting on the Operations of the Convention on Biological Diversity, 21-30 June 1999. The Annex I Group is an example of an informal mechanism that provides technical and analytical assistance to a group of Parties. The Group's activities include full participation of all countries listed in Annex I of the FCCC, but it is wholly funded by Annex II Parties. The financial support for this activity is provided by Annex II Parties through the OECD. The Annex I Expert Group provides a mechanism for all Annex I countries to discuss problems related to implementation of their obligations and to propose solutions to the Conference of Parties. It may be seen also as an informal mechanism to share experiences and to provide assistance to some of the Annex I countries. In his presentation to the ICJ in the Mazilu Case, the UN Legal Counsel indicated that the United Nations had in the past considered numerous treaty bodies, such as the International Narcotics Control Board, the Human Rights Committee, the Committee on the Elimination of Racial Discrimination, and the Committee on the Elimination of All Forms of Discrimination against Women, as covered by article VI, section 22, of the General Convention (ICJ Pleadings, Applicability of article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Written Statement submitted on behalf of the Secretary-General of the United Nations, Annex I, Part A, 195-196). The UN Legal Counsel has arrived at the conclusion that the Commission on the Delimitation of the Continental Shelf is a treaty organ, see CLCS/5 of 11 March 1998, Legal Opinion on the applicability of the Convention on the Privileges and Immunities of the United Nations to the members of the Commission. Corre-
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the United Nations and the organs of a treaty regime. The concept requires proximity between the UN and the treaty regime in question. The purpose of the international environmental agreements is to advance certain principles of the Charter of the United Nations as interpreted by the UN General Assembly. Furthermore, the UN has addressed the treaty organs of international environmental agreements requesting specific action. The most important cases are the resolutions adopted by the Commission on Sustainable Development and by the General Assembly, particularly Chapter 38 of Agenda 21 and para. 118 of the Overall Review and Appraisal of the Implementation of Agenda 21 taken at the 19th Special Sess. of the UN General Assembly to Review the Implementation of Agenda 21. Practical consequences flowing from the concept of UN treaty organs are, i.e., the organisational support of the UN Secretariat and the applicability of UN organisational law to the status of State Party representatives at meetings of treaty organs.
2. Legislative Function The legislative function of modern international environmental agreements results from the Meetings of Parties' power to make binding decisions of a particular normative structure, based on competencies on a range of policy issues and adopted pursuant to a formalised procedure. a. Power of Normative Decision-Making All the Meetings of Parties have the power to "make decisions."31 The agreements use "decision" as a generic term for the institution's instru-
31
spondingly, under the Climate Change Convention, the Convention on the Privileges and Immunities of the United Nations is applied to the representatives of the parties and observers attending meetings organised by the Conventions Secretariat and officials of the Convention Secretariat and other staff of the UN performing functions for the Secretariat. In addition, the travel of staff of the Convention Secretariat on mission is covered by the issuance of the UN Laissez-Passer. The Meeting of Parties to the Ramsar Convention, which originally was provided with consultative powers only, now disposes of decision-making competencies.
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ment of action.32 The Meetings of Parties of modern international environmental agreements in principle have the power to adopt externally binding normative decisions; it is a matter of interpretation to determine whether and to what extent a given decision is meant to be binding. Such decisions vary in their structure. aa. Externally Binding Normative Decisions It is well established in the law of international organisations that the competent decision-making organ may adopt measures that are binding internally, i.e. for the organisation's organs. The test of its legislative power lies in whether it may adopt measures that are binding externally.33 A measure may deploy externally binding effects vis-a-vis States Parties, private entities, or third institutions. Regarding the effect of a Meeting of Parties' decision, the relevant question is whether the decision as such is binding on the States Parties or whether each state has to formally express its consent to be bound, e.g., through ratification. As will be argued in the following, Conferences of Parties of modern international environmental agreements increasingly have the power to adopt binding decisions as opposed to recommendations.34 bb. Explicit and Implicit Binding Effect of Normative Decisions The binding nature of a decision may derive from an explicit provision in the international environmental agreement that the Meeting of Parties acts under or it may be a quality implicit in the individual decision 32
33
34
An exception is OSPAR, see under IV., which distinguishes decisions and recommendations, defining the first as a binding and the second as a nonbinding instrument of action for the COP. Under CITES, the COP may make recommendations for improving the effectiveness of the present Convention, article XI para. 3 lit.(e), which in practice includes decisions and resolutions. See J. Frowein, "The Internal and External Effects of Resolutions by International Organisations", ZaoRV49 (1989), 778 et seq., (778). See CITES Decision 'Regarding entry into force of Resolutions and Decisions of the Conference of the Parties' "10.13: The recommendations contained in Resolutions and Decisions adopted by the Conference of the Parties shall be effective from the date on which they are sent by Notification to the Parties at the latest, unless otherwise specified in the recommendation concerned. 10.14 Their implementation by the individual Parties is subject to the procedures required under their national legislation".
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taken. The Montreal Protocol provides illustrations of explicitly and implicitly binding decision-making of a legislative nature. Under article 2 para. 9, the Meeting of Parties adjusts Parties' control obligations with regard to a number of parameters in general terms under the treaty.35 Article 2 para. 9 lit.(a) provides that the Parties may decide whether: (i.) adjustments to the ozone depleting potentials specified in Annex A, Annex B, Annex C and/or Annex E should be made and, if so, what the adjustments should be; and (ii.) further adjustments and reductions of production or consumption of the controlled substances ... should be undertaken and, if so, what the scope, amount and timing of any such adjustments and reductions should be. Article 2 para. 9 lit.(d) prescribes that the decisions, "... which shall be binding on all Parties ... 36, shall forthwith be communicated to the Parties by the Depository. Unless otherwise provided in the decisions, they shall enter into force on the expiry of six months from the date of the circulation of the communication by the Depository". Thus, each State Party is bound by the decision. No individual expression of consent to being bound is required. This is true regardless of whether a State Party has voted for the decision or not.37 Thus, the decision-making power of the Meeting of Parties bears the characteristics of a genuine legislative function, which can enact norms, the binding effect of which does not depend on the individual consent of the addressee. Such explicit provision for the binding nature of Meeting of Parties decision-making is rare in international environmental agreements.38 In most cases, the intended binding effect has to be inferred from the decision itself. Equally binding yet without a formal prescription to that effect in the treaty is the decision by which the Meeting of Parties
35
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The 2nd, 4th, 7th and 9th Mtgs of the parties to the Montreal Protocol decided, on the basis of assessments made pursuant to article 6 of the Protocol, to adopt adjustments and reductions of production and consumption of the controlled substances in Annexes A, B, C and E to the Protocol. Emphasis added. On voting requirements see under II. C. On the specific negotiating history of the Montreal Protocol see D. Caron, "Protection of the Stratospheric Ozone Layer and the Structure of International Environmental Lawmaking", Hastings Int'l & Comp. L. Rev. 14 (1991), 755 et seq.; J.M. Kaufman, "Domestic and international linkages in global environmental politics: a case-study of the Montreal Protocol", in: M. Schreurs/E. Economy (eds), The Internationalisation of Environmental Protection, 1998, 74.
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adopted a non-compliance procedure under the Montreal Protocol.39 By way of its decision on compliance control, the Meeting of Parties redefined the legal situation of States Parties which from now on had to submit to a certain procedure40 entailing a list of measures that might be taken in respect of non-compliance, set out in Annex V to the report of the fourth Meeting of the Parties.41 The clear intention of the decision is that the States Parties be bound by the procedure and any executive decisions taken pursuant to it.42 Careful analysis of the wording and objective of a decision is called for in determining whether and to what extent it is meant to be binding.43 It is another question whether the Meeting of Parties was competent to take a binding decision on the issue in question.
39 40
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Decision IV/5. Non-compliance procedure. To adopt the non-compliance procedure, as set out in Annex IV to the report of the 4th Mtg of the Parties; Annex IV, Non-compliance procedure "The following procedure has been formulated pursuant to Article 8 of the Montreal Protocol. It shall apply without prejudice to the operation of the settlement of disputes procedure laid down in Article 11 of the Vienna Convention. [...]"Annex V Indicative List of Measures that Might Be Taken by a Meeting of the Parties in Respect of Non-Compliance with the Protocol, "A. Appropriate assistance, including assistance for the collection and reporting of data, technical assistance, technology transfer and financial assistance, information transfer and training. B. Issuing cautions. C. Suspension, in accordance with the applicable rules of international law concerning the suspension of the operation of a treaty, of specific rights and privileges under the Protocol, whether or not subject to time limits, including those concerned with industrial rationalization, production, consumption, trade, transfer of technology, financial mechanism and institutional arrangements." On the regulatory details and actual working compliance mechanism see under b. bb. cc. Such is the case even in the presence of a generic decision Regarding entry into force of Resolutions and Decisions of the Conference of the Parties as adopted by the Meeting of Parties to CITES and worded as follows: "10.13 The recommendations contained in Resolutions and Decisions adopted by the Conference of the Parties shall be effective from the date on which they are sent by Notification to the Parties at the latest, unless otherwise specified in the recommendation concerned. 10.14 Their implementation by the individual Parties is subject to the procedures required under their national legislation".
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cc. Structure of Normative Decisions Normative decisions by the Meetings of Parties vary in their structure. They may be fully formulated and unconditional to be applied by the States Parties, or they be less normatively dense, spelling out objectives to be attained while leaving to the States Parties discretion as to ways and means. The first type of norm compares to regulations, the second to directives in the terminology of the EC treaty. A self-executing decision is to be applied by the national executive and judiciary branches, otherwise the national legislator will have to act accordingly.44 b. Competencies Pursuant to a principle of attributed competencies, international environmental agreements spell out the subject-matter on which the Meeting of Parties may adopt normative decisions. The proviso to make "necessary" decisions, contained in the provisions on the Meetings of Parties, does not confer an unlimited competence on that treaty organ. A better analogy would be the "necessary and proper" clause of the US Constitution, a provision presupposing substantive competence. The Meeting of Parties' competencies in implementing the treaty are enumerated throughout each agreement. Modern international environmental agreements vest the Meetings of Parties with the competence progressively to develop the agreement, to implement the agreement, and to set standards for national policies and laws. aa. Progressive Development of the Agreement The competence of the Meetings of Parties progressively to develop the agreement comprises adapting the regulatory action to factual changes and modifying the regulatory approach to implement new policy choices. Such competencies, which mostly concern controlled substances and species, empower the Meetings of Parties to revise the agreement. This raises the question of where to draw the line between Meetings of Parties' legislation and the formal amendment procedure.
44
C/. R. Wolfrum, "The Convention on Biological Diversity: Using State Jurisdiction as a Means of Ensuring Compliance", in: id. (ed.), Enforcing Environmental Standards: Economic Mechanisms as Viable Means, 1996, 373 et seq.
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aaa. Adapting the Regulatory Action International environmental agreements provide Meetings of Parties with the competence to adapt technical requirements in conformity with the treaty's regulatory approach to take account of relevant factual changes. States Parties have to implement changes ruled as binding by the Meetings of Parties in the national legal orders. The Montreal Protocol anticipates that continued revision may be necessary, and calls on the Parties periodically to assess the adequacy of the measures taken in the Protocol.45 The Protocol explicitly authorises the Meeting of Parties to make binding decisions to adjust States Parties' obligations regarding controlled substances, article 2 para. 9. Such adjustments may concern the ozone depleting potential of controlled substances46 and the scope, amount and timing of production or consumption of the controlled substances. The Meeting of Parties has made frequent use of that competence.47 The basic approach of the Montreal Protocol in 1987 was to require the Parties to the Protocol to reduce their production and consumption of five CFCs (Chloro-FluoroCarbons) specified in Group I to Annex A of the Protocol. The London Adjustments to the Protocol accelerated this timetable and deepened the cuts by requiring the Parties to phase out production and consumption entirely by the year 2000.48 Further adjustments were made at the Copenhagen Meeting of Parties.49 However, the London Meeting of
45 46 47
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Article 6, which is basically unaltered in the Protocol as amended. Specified in Annexes A, B, C and/or E. In 1987, the Montreal Protocol required the parties to the Protocol to reduce their production and consumption of five CFCs specified in Group I to Annex A of the Protocol. The London Adjustments to the Protocol accelerated this timetable and deepened the cuts by requiring the parties to phase out production and consumption entirely by the year 2000. The 4th Mtg of the Parties at Copenhagen in 1993 adopted further adjustments pursuant to article 2 para. 9 lit.(d) of the Protocol, ILM 32 (1993), 874 et seq., and so did the llth Mtg of the Parties at Beijing in 1999. The Beijing Adjustments will enter into force on 28 July 2000. The London adjustments are a direct consequence of the fact that even as States Parties adopted the Montreal Protocol in September 1987, a major concern was that findings regarding the Antarctic ozone hole, officially confirmed only after the meeting in Montreal, had not been taken fully into account in the Protocol. See Caron, see note 38, (761). Adjustments and Amendments to the Montreal Protocol, see note 47.
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Parties had to resort to the amendment procedure to add new chemicals to the regulatory scheme, specifying them in a new Annex B.50 Thus, the Meeting of Parties to the Montreal Protocol may make adjustments to the substances already designated as controlled but inclusion of a new substance requires an amendment to the protocol.51 Conversely, the Meeting of Parties is not competent to legislate on this matter. The different modes of legislation via amendments for the introduction of a further ozone-depleting substance into the Protocol's ambit and via adjustment of Annexes for the tightening of States Parties' obligations regarding the already controlled ozone-depleting substances appears somewhat arbitrary. In fact, the Montreal Protocol represents the States Parties' agreement on a specific regulatory approach to the problem of ozone depletion and, substantively, both the widening and the deepening of the Protocol could and should be regarded as implementation of that regulatory approach.52 A proposal by the EC for
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A phaseout by the year 2000 is required for other fully halogenated CFCs and for carbon tetrachloride, while a phaseout of methyl chloroform is required by the year 2005. The amendment procedure set forth in article 2 para. 10 provides as follows: "Based on the assessments made pursuant to Article 6 of this Protocol and in accordance with the procedure set out in Article 9 of the Convention, the Parties may decide: (i) whether any substances, and if so which, should be added to or removed from any annex to this Protocol, and (ii) the mechanism, scope and timing of the control measures that should apply to those substances". Doc. UNEP/Ozl.Pro/Wg.1/19/4, Open-Ended Working Group of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, 19th Mtg, 15-18 June 1999, Consideration of Proposed Adjustments and Amendments to the Montreal Protocol and Establishment of the Legal Drafting Group to Consolidate the Adjustments and Amendments Proposed and to Consider the Options Available Under the Montreal Protocol to Introduce Controls on New Ozone-Depleting Substances. Proposal by the European Community - Section c new ozone depleting substances-: "The community remains concerned that the addition of any new ozonedepleting substance to the Montreal Protocol requires an amendment to the protocol. This means that bringing a new substance under control is very slow and requires that each Party ratify a new amendment. The Community believes that, by ratifying the Montreal Protocol, each Party has declared its intent to phase out the production and consumption of ozone-depleting substances. A full amendment and ratification procedure should therefore not be necessary to extend existing controls to new substances, provided Parties have agreed that they pose a threat to the ozone
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changes to the Montreal Protocol with respect to hydrofluorocarbon (HFC) production, consumption and trade with non-Parties, quarantine and pre-shipment uses of methyl bromide, new ozone-depleting substances, and continued CFC production for basic domestic needs, suggests adoption in toto through the adjustment procedure.53 Following their consideration by the Legal Drafting Group,54 the Working Group agreed that the proposed adjustments and amendment would require serious reflection and further debate.55 At the same time, the Meetings of Parties may adapt any implementing mechanisms created. This is the case with the Multilateral Fund that the London Meeting of the Parties had established. Since this measure clearly extended the basic regulatory approach of the Protocol it was adopted via the amendment procedure. However, the Meeting of Parties may adapt the implementing mechanisms created by way of a decision. Consequently, the Meeting of Parties continues to adapt the Fund, having recently extended it to a substance newly recognised as ozone-depleting,56 to non-critical uses,57 and to emergency use.58
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layer. The Community would like to see a 'lighter' procedure, involving a decision of the Parties and/or adjustment of the Protocol, by which control measures necessary to protect the ozone layer could, by consensus, quickly be extended to new substances. Subject to the advice to be received from the Legal Drafting Group under Decision X/8 paragraph 6, the Community proposes an amendment to article 2 along the following lines: Proposed Amendment C 1. The Parties shall list in Group II of Annex E to the Protocol, substances not listed in Annexes A, B, C and Group 1 of Annex E but which, in light of advice from the Scientific Assessment Panel, the Technology and Economic Assessment Panel or any other relevant information, the Parties have decided pose a threat to the stratospheric ozone layer. 2. The Parties shall, as necessary, decide [by consensus] on any control measures, including control measures on production and consumption, which should apply to the substances in Group II of Annex E, taking account of the special situation of Parties operating under paragraph 1 of Article 5." Doc. UNEP/OzL.Pro/WG. 1/97/7, paras 55-99. Doc.UNEP/OzL.Pro.11/3. Doc. UNEP/OzL.Pro/WG.1/19/7, para. 102. See, e.g., Decision IX/5 -Conditions for control measures on Annex E substance in article 5 Parties "\. That, in the fulfilment of the control schedule set out in paragraph 8 ter (d) of Article 5 of the Protocol, the following conditions shall be met: a. The Multilateral Fund shall meet, on a grant basis, all agreed incremental costs of Parties operating under paragraph 1 of
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The Kyoto Protocol may require similar adjustment in the light of new scientific evidence of global warming.59 The Meetings of Parties may wish to react to factual changes in third countries relevant to the agreement. The Montreal Protocol provides for a trading ban on controlled substances. The ban can be adjusted to take account of a policy change on the part of a state not party to the Protocol. Article 4 para. 8 states that "[notwithstanding the provisions of this Article, imports referred to in [this Article] and exports referred to in [this Article] may be permitted from, or to, any State not party to this Protocol, if that State is determined, by a Meeting of the Parties, to be in full compliance with Article 2, Articles 2A to 2E and this Article, and have submitted data to that effect as specified in Article 7". This provision has served as the basis for the Parties making more general exceptions to the trading prohibitions such as that contained in Decision IV/17C adopted at the 4th Meeting of Parties. The Decision provided for a temporary exemption from the ban on exports to non-Parties from January 1993 until the 5th Meeting of Parties for countries which met certain conditions. The Basel, CITES and Rotterdam Conventions aim to protect the environment by controlling trade in certain substances (Basel, Rotterdam), and species (CITES). This regulatory approach is predicated on a listing of the objects controlled.
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Article 5 to enable their compliance with the control measures on methyl bromide [...]". Decision IX/6 Critical-use exemptions for methyl bromide "1. To apply the following criteria and procedure in assessing a critical methyl bromide use for the purposes of control measures in Article 2 of the Protocol. 2. To request the Technology and Economic Assessment Panel to review nominations and make recommendations based on the criteria established in paragraphs 1 (a) (ii) and 1 (b) of the present decision". Decision IX/7 Emergency methyl-bromide use "To allow a Party, upon notification to the Secretariat, to use, in response to an emergency event, consumption of quantities not exceeding 20 tonnes of methyl bromide. The Secretariat and the Technology and Economic Assessment Panel will evaluate the use according to the "critical methyl bromide use" criteria and present this information to the next meeting of the Parties for review and appropriate guidance on future such emergencies, including whether or not the figure of 20 tonnes is appropriate. The EU representative called at the first Plenary Mtg at COP-5 for stepping up the commitments undertaken by Annex I countries in the Protocol (Earth Negotiations Bulletin of 3 November 1999, 2).
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The agreements allow for adapting their technical requirements by providing for a simplified (annex/appendix) amendment procedure.60 The need to react yet more flexibly to factual changes has arisen in the case of CITES where the Meeting of Parties circumvented the amendment procedure by laying down a legal regime for the trade in ivory. Currently 144 States Parties61 act by banning commercial international trade in an agreed list of endangered species (Appendix I) and by regulating and monitoring trade in others that might become endangered (Appendix II).62 The Meeting of Parties to this agreement has adapted that regulatory approach to factual changes in the controlled species. By spelling out the technical conditions under which trade in a listed species may be resumed in a decision,63 the Meeting of Parties to
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E.g., article XI Bonn Convention para. 4: "Amendments shall be adopted by a two-thirds majority of Parties present and voting"; para. 5: "An amendment to the Appendices shall enter into force for all Parties ninety days after the meeting of the Conference of the Parties at which it was adopted, except for those Parties which make a reservation in accordance with paragraph 6 of this Article". Similar article 30 para. 2 for the adoption of Annexes to the Biodiversity Convention. As of 16 December 1999. CITES aims are major components of caring for the Earth, a Strategy for Sustainable Living, launched in 1991 by UNEP, IUCN and WWF. See, e.g., Decision 10.1 Conditions for the resumption of trade in African elephant ivory from populations transferred to Appendix II at the 10th Mtg of the Conference of the Parties. Part A: "Trade in raw ivory shall not resume unless: a) deficiencies identified by the CITES Panel of Experts (established pursuant to Resolution CONF. 7.9, replaced by Resolution CONF. 10.9) in enforcement and control measures have been remedied; b) the fulfilment of the conditions in this Decision has been verified by the CITES Secretariat in consultation with the African regional representatives on the Standing Committee, their alternates and other experts as appropriate; c) the Standing Committee has agreed that all of the conditions in this Decision have been met; d) the reservations entered by the range States with regard to the transfer of the African elephant to Appendix I were withdrawn by these range States prior to the entry into force of the transfer to Appendix II; e) the relevant range States support and commit themselves to international co-operation in law enforcement through such mechanisms as the Lusaka Agreement; f) the relevant range States have strengthened and/or established mechanisms to reinvest trade revenues into elephant conservation; g) the Standing Committee has agreed to a mechanism to halt trade and immediately re-transfer to Appendix I populations that have been transferred to Appendix II, in the event of non-compliance with the
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CITES assumes the power of adopting normative decisions. Such decisions are implicitly binding as States Parties are prevented from trading in the species unless they fulfil the specified conditions. The most recent international environmental agreement of this group, the Rotterdam Convention, empowers the Meeting of Parties to adapt the list of controlled chemicals through legislative action. Article 22 para. 5 lit.(a) requires approval of adoption of the amendment to Annex III by the Meeting of Parties according to article 21 para. 2 only, but not ratification, acceptance or approval by each State Party. Article 7 prescribes that the Meeting of Parties may decide on listing new chemicals in Annex III of the Convention on the basis of a 'draft decision guidance document' prepared by the Chemicals Review Committee. Article 22 para. 5 lit.(c) provides that an amendment to Annex III shall enter into force for all Parties on a date to be specified in the decision. bbb. Modifying the Regulatory Approach Decisions of the Meetings of Parties may concern a tenet of the treaty's regulatory approach to tackling the environmental issue if this approach proves to be flawed. The Montreal Protocol's original attempt to regulate ozone depleting substances not just as a product but also as an ingredient of industrial production processes of other products64 has been
64
conditions in this Decision or of the escalation of illegal hunting of elephants and/or trade in elephant products owing to the resumption of legal trade; h) all other precautionary undertakings by the relevant range States in the supporting statements to the proposals adopted at the 10th Mtg of the Conference of the Parties have been complied with; and i) the relevant range States, the CITES Secretariat, TRAFFIC International and any other approved party agree to: (i) an international system for reporting and monitoring legal and illegal international trade, through an international database in the CITES Secretariat and TRAFFIC International; and (ii) an international system for reporting and monitoring illegal trade and illegal hunting within or between elephant range States, through an international database in the CITES Secretariat, with support from TRAFFIC International and institutions such as the IUCN/SSC African Elephant Specialist Group and the Lusaka Agreement. [...]". F. Orrego Vicuna, "Trade and Environment, New Issues under International Law", in: V. Gotz et al. (eds), Liber Amicorum G. Jaenicke, 1998, 701 et seq., (709).
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suspended by a decision of the Meeting of Parties.65 Both of these decisions are binding on all States Parties and normative in nature. A similar development has taken place under the Basel Convention. Finding that the control procedure did not work as hoped, the Meeting of Parties adopted a decision to essentially ban exports from OECD countries to non-OCED countries.66 Only after doubts about the legally binding force of that decision arose did the Meeting of Parties reframe the contents of Decision 11/12 as an amendment to the Convention.67 bb. Implementing the Agreement Modern international environmental agreements contain concepts designated to ensure effective and efficient compliance with the treaty obligations. Such is the case with regard to mechanisms for transactions and cooperation and compliance assistance and control. These concepts are not operational as couched in the treaty but need to be implemented through normative decisions by the Meetings of Parties. Decisions by the Meetings of Parties' that design the mechanisms as operable are of a self-executing nature; otherwise the international action has to be complemented by national legislative action. aaa. Mechanisms for Transactions and Cooperation Modern international environmental agreements such as climate change and biodiversity conventions provide for legal mechanisms by which private initiative for achieving the agreement's environmental objectives can be harnessed. Such mechanisms are designated for cross-border implementation of an international environmental agreement. The agreements render Meetings of Parties competent to implement the treaty concepts.
65
66 67
Montreal Protocol, Decision V/17, see W. Lang, "Trade Restrictions as a Means of Enforcing Compliance with International Environmental Law: Montreal Protocol on Substances that Deplete the Ozone Layer", in: Wolfrum (ed.), see note 44,199, 265 et seq. Decision 11/12. Decision III/l.
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The Kyoto Protocol foresees the following mechanisms: Joint implementation,68 Clean Development Mechanism69 and Emissions trading.70 Under the Kyoto Protocol the competence for the Meeting of Parties to take such decisions is to be found in the relevant provisions of the agreement (arts 6, 8, 12) charging the Meeting of Parties with "implementing" each of the mechanisms.71 The Meeting of Parties shall define the relevant principles, modalities, rules and guidelines, in particular for verification, reporting and accountability for emissions trading. The implementing legislation will be ground-breaking in several respects. For example, the rules that are required for making the Clean Develop-
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Annex I parties may implement their commitments by entering into a formal agreement to undertake their obligations jointly, to transfer emission reduction units from projects undertaken within their jurisdiction, article 6. A form of joint implementation between Annex I and non-Annex I Parties using a "clean development mechanism" was defined in the Protocol, article 12. Under the "clean development mechanism" Annex I Parties have to invest in projects in developing countries which achieve sustainable development and contribute to the ultimate objectives of the Convention, and to use the certified emissions reductions accruing from such investment projects to contribute to compliance with "part of" their quantified emission limitation and reduction commitments (QELRCs). See J. Werksman, "The Clean Development Mechanism: Unwrapping the 'Kyoto Surprise'", Review of European Community & International Environmental Law 7 (1998), 147 et seq., (147). What the exact size of this "part" will be has been left to the Meeting of Parties to decide, see G. Verhoosel, "Beyond the Unsustainable Rhetoric Of Sustainable Development: Transferring Environmentally Sound Technologies", Geo. Int'l Envtl L. Rev. 11 (1999), 49 et seq., (69). An international "emissions trading" regime will allow industrialised countries to buy and sell emissions credits among themselves, article 17. This mechanism is not as new as it appears, since under the Montreal Protocol, any party may transfer to another party any portion of its calculated level of production, so long as such transfers do not cause the parties involved to exceed collectively the production limit applicable to them as a group, see "CFC Trading under the Montreal Protocol: How Does it Work?", Global Envtl Change Report 21 December 1990, at 1. Under the Buenos Aires Plan of Action, see under II. 5, States Parties committed themselves to deadlines for taking decisions on six key issues that will make the Kyoto Protocol operational, including the three Kyoto mechanisms.
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ment Mechanism work will be relevant not only for States Parties that have undertaken the reduction commitments (Annex I countries) but also for non-Annex I countries. Furthermore, the Kyoto mechanisms address cross-border transactions between private entities.72 The Meeting of Parties will have to keep its implementing legislation under continuous review,73 as it has been doing in the case of 'activities implemented jointly'.74 Similar implementing legislation by the Meeting of Parties will be required under the Biodiversity Convention. This agreement contains provisions on transactions on genetic resources, based on access to such resources and the sharing of benefits arising out of their use in article 15 (access to genetic resources), article 16 para. 3 (access to and transfer of technology that makes use of genetic resources), and articles 19 para. 1 (participation in biotechnological research on genetic resources) and 19 para. 2 (access to results and benefits from biotechnology). These provisions address both users and providers of genetic resources.75 They are not operable as such but need implementing legislation by the Meeting of Parties. The Meeting of Parties has been moving to prepare a decision on the requisite cross-border implementing institutions, which would allow private actors and government agencies to bargain for the terms of access.76
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74
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F. Missfeldt, "Flexibility Mechanism: Which Path to take after Kyoto", Review of European Community 6- International Environmental Law 7 (1998), 128 et seq., (129). Doc. FCCC/CP/1998/2, COP-4, Buenos Aires, item 4 (f) of the provisional agenda: Review of the Implementation of Commitments and of Other Provisions of the Convention Activities Implemented Jointly: Review of Progress Under the Pilot Phase (Decision 5/CP.l). The Decision (Doc. FCCC/CP/1999/L.13), La., concludes the review process, continues the AIJ pilot phase begun at COP-1 beyond the end of the present decade, without prejudice to future decisions, and requires Parties to provide proposals to improve the draft revised uniform reporting format. The Meeting of Parties to the Biodiversity Convention considered access and benefit-sharing at its second, third and fourth meetings. See Consolidated draft report of the Experts Panel (Doc. UNEP/CBD/EPABS/L.5/Rev.l). The conclusions state that: contractual arrangements are the main mechanism for concluding access agreements and implementing benefit-sharing, and Mutually Agreed Terms (MAT) are central to the contracting process; the negotiation of MAT must respect the provider country's legal policy and administrative arrangements; MAT should include
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There are, furthermore, a variety of innovative institutions designated to facilitating transactions such the Clearing-House mechanism under the Biodiversity Convention.77 Apart from institutional developments,78 the Meetings of Parties have, as yet, not adopted decisions that go beyond persuasive language.79 bbb. Compliance Mechanisms The Meetings of Parties have, generally speaking, the competence to set forth self-executing compliance procedures and mechanisms.80 Under the Montreal Protocol, the non-compliance procedure, a crucial element of the Protocol's regulatory approach to achieving its objectives, has been developed through decisions adopted by the Meeting of the Parties, pursuant to article 8 of the Protocol.81 The Meeting of Parties decided not to expedite the amendment procedure but rather to
provisions on user obligations; and legislative, administrative and policy measures that provide the basis for MAT should seek to minimise transaction costs. They identify the most critical capacity-building needs as: assessment and inventory of biological resources; contract negotiation skills; legal drafting skills; and development of sui generis regimes for the protection of traditional knowledge associated with genetic resources. 77
Article 18 para. 3 of the Biodiversity Convention is the basis for the implementation of the clearing-house mechanism aimed at promoting and facilitating technical and scientific cooperation among Contracting Parties and partners. The 1st Mtg of Parties decided to implement the provisions of article 18 para. 3, of the Convention for the establishment of a clearinghouse mechanism (CHM) to promote and facilitate technical and scientific cooperation (Decision 1/3). See, for further developments Report on the implementation of the pilot phase of the clearing-house mechanism in facilitating and promoting technical and scientific co-operation (note by the Secretariat), Doc. UNEP/CBD/SBSTTA/3/3 of 15 June 1997.
78
African-Eurasian Waterbird Agreement, concluded pursuant to article IV Bonn Convention. Resolution 1.5 (AEWA/Res.l.5/Rev.l) establishes an international project register to facilitate training and technical and financial cooperation among parties and to coordinate measures to maintain a favorable conservation status for migratory waterbirds species.
79
COP-5 of the Climate Convention decided, however, that financial and technical support for capacity building in developing countries should be provided through the financial mechanism (Doc. FCCC/CP/1999/L.19).
80
See under II. 4.
81
Decision II/2 and Annex III; Decision IV/5 and Annex IV.
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adopt a normative decision.82 In so doing, it endorsed the view of the Legal Expert Group that had regarded article 8 of the Protocol as providing the requisite competence for the Meeting of Parties' decision on the non-compliance procedure.83 States Parties comply with this objective legal institution.84 The Meeting of Parties will progressively develop the operation of an institutionalised compliance system even after the initial set-up.85 Under the Climate regime, the Meetings of Parties may follow the example of the Montreal Protocol and institute the non-compliance procedure via a normative decision, dispensing with the amendment procedure. Legislative action by the Meeting of Parties under the Climate Convention, which set up a process for in-depth review of Annex I Parties national communications,86 was endorsed and expanded upon in arts 7, 8 of the subsequently concluded Kyoto-Protocol. Article 13 of the Climate Convention calls for a Multilateral Consultative Process, which the Meeting of Parties has established.87 Arts 17, 18 Kyoto-
82
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Decision IV/5 Non-compliance procedure para. 4: "To accept the recommendation that there is no need to expedite the amendment procedure under Article 9 of the Vienna Convention for the Protection of the Ozone Layer". This view seems to be correct, see above. See under II. 4 a. aa. Most recently, Decision X/10 Review of the non-compliance procedure "Recalling decision IV/5 on a non-compliance procedure of the Montreal Protocol adopted by the 4th Mtg of the Parties, Recalling also Decision IX/35 on review of the non-compliance procedure adopted by the 9th Mtg Noting the report of the Ad Hoc Working Group of Legal and Technical Experts on Non-Compliance established by Decision IX/35 (Doc. UNEP/OzL.Pro/WG.4/1/3) and, in particular, its conclusion that in general the non-compliance procedure has functioned satisfactorily but that further clarification was desirable and that some additional practices should be developed to streamline the procedure, [...] 2. To agree on the following changes in the text with a view to clarifying particular paragraphs of the non-compliance procedure:" Doc. UNEP/OzL.Pro.10/9. Decision 2/CP.l; Doc. FCCC/CP/1995/Add.l. According to article 13, the Meeting of Parties "shall consider the establishment of a multilateral consultative process, available to Parties on their request, for the resolution of questions regarding the implementation of the Convention", see Decision 9/CP.5 Multilateral consultative process with Annex II to the report of the Ad Hoc Group on article 13 of its 6th Sess.
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Protocol call for the setting-up of a compliance system through the Meeting of Parties. According to article 17, the Meeting of Parties shall, at its first session, approve appropriate and effective procedures and mechanisms to determine and to address cases of non-compliance with the provisions of the Protocol, including through the development of an indicative list of consequences, taking into account the cause, type, degree and frequency of non-compliance.88 The Protocol, however, limits the Meeting of Parties' competence in this field by providing, in article 18 2nd sentence, that for the system to entail binding consequences an amendment to the Protocol will be required.89 Meetings of Parties may, furthermore, link up with independent institutional bodies turning them into agencies for ensuring compliance with the international environmental agreement's objectives. The Meetings of Parties issue policy guidance of a normative nature to ensure that the third institutions implement the treaty according to Meetings of Parties' decisions. Such a third institution is the Global Environment Facility (GEF).90 The GEF receives normative policy guidance from the Meetings of Parties to the Montreal Protocol, Biodiversity91 88
89 90
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The system will in a all likelihood cover the main elements of a modern compliance system. It will deal with fact finding, eligibility to trigger the mechanism, a compliance body, and differentiated response instruments calibrated to facilitation, on the one hand, and enforcement, on the other. See Report of the Joint Working Group on Compliance and Decision by the Conference of the Parties, Doc. FCCC/CP/1999/L.21. The requisite decision is scheduled to be taken at COP-6 in The Hague, Netherlands. Report of the Joint Working Group on Compliance, ibid. The GEF is a mechanism for international cooperation for the purpose of providing new, and additional, grant and concessional funding to meet the agreed incremental costs of measures to achieve agreed global environmental benefits in the areas of biological diversity, climate change, international waters, and ozone layer depletion. Land degradation issues, primarily desertification and deforestation, as they relate to the four focal areas will also be addressed. See L. Boisson de Chazournes, "Le fonds pour I'environnement mondial: Recherche et conquete de son identite", AFDI 41 (1995) 612 et seq.; M. Ehrmann, "Die Globale Umweltfazilitat (GEF)", ZaoRV 57 (1997), 565 et seq. Decision IV/13 Additional guidance to the financial mechanism "The Global Environment Facility should: 1. Provide adequate and timely support for country-driven projects at national, regional and subregional levels addressing the issue of alien species in accordance with decision IV/1 C; 2. Provide financial resources for country-driven activities within the context of its operation programmes to participate in the Global Taxonomy Initia-
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and Climate92 Conventions.93 Executive agreements, so-called memoranda of understanding concluded between the Meeting of Parties and the Governing Council of the GEF,94 render the guidance legally binding on the latter. The resulting rulemaking by the Meetings of Parties has analogies in national legal orders regarding legislative guidance for delegated rulemaking by agencies. The guidance thus is an element in the development of an executive branch function and its control by the body of highest legitimacy, i.e. the Meeting of Parties through legislation.
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tive which take into account as appropriate, elements of the Suggestions for Action contained in the Annex to Decision IV/1 D; 3. Within the context of implementing national biological diversity strategies and action plans, provide adequate and timely support to eligible projects which help parties to develop and implement national, sectoral and cross-sectoral plans for the conservation and sustainable use of biological diversity of inland water ecosystems in accordance with decision IV/4; [...]". Decision 11/CP.l (Doc. FCCC/CP/1995/7/Add.l) Initial guidance on policies, programme priorities and eligibility criteria to the operating entity or entities of the financial mechanism; Decision 12/CP.l (Doc. FCCC/CP/1995/7/Add.l) Report of the GEF to the COP on the development of an operational strategy and on initial activities in the area of climate change; Decision 10/CP.2 (Doc. FCCC/CP/1996/15/Add.l) Communications from the Parties not included in Annex I to the Convention: guidelines, facilitation and process for consideration; Decision 11/CP.2 (Doc. FCCC/CP/1996/15/Add.l) Guidance to the GEF; Decision 2/CP.4 (Doc. FCCC/CP/1998/16/Add.l) Additional guidance to the operating entity of the financial mechanism. In addition, COP-4 adopted two other related Decisions: Decision 3/CP.4 Review of the financial mechanism and Decision 12/CP.4 Initial national communications from parties not included in Annex I to the convention. The GEF acts through the 32-member Council, an Assembly, its Secretariat and the three Implementing Agencies UNDP, UNEP and the World Bank. While it was a mere credit window of the World Bank during its pilot phase, the GEF has been made more independent by its restructuring, even though its legal nature remains undecided. See W. P. Ofosu-Amaah/B. J. Lausche, "World Bank", Yearbook of International Environmental Law 1 (1990), 330 et seq., (334). The fund was replenished in a process that ended in March 1994. See Decision 12/CP.3 "Decides to approve the annex to the Memorandum of Understanding concluded with the Council of the GEF, thereby bringing it into force".
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cc. Setting Standards for National Laws and Policies Modern international environmental agreements often rely on standards for how States Parties should treat the environmental problem under consideration thereby harmonising national policies, laws and regulations. Decisions of the Meetings of Parties will set emissions, technical and economic standards. It is a matter for each treaty whether and to what extent it provides the Meetings of Parties with the competence to promulgate such standards as binding law. The competence of the Meeting of Parties to the Montreal Protocol to make binding decisions on ozone depleting standards and production and consumption standards allows it to set standards that States Parties have to implement in their national legal order. Under the Kyoto Protocol, there is general agreement that, for flexibility mechanisms to work uniform standards for methodology etc. are indispensable. Pursuant to provisions in the Climate Convention equivalent to the Kyoto Protocol arts 5 (methodology), 7 (communication) and 8 (review of information), that call for their implementation, the Meeting of Parties adopted guidelines whose objective it is, i.a., to promote consistency in the review of annual Greenhouse Gas inventories of Annex I countries and to establish a process for a thorough and comprehensive technical assessment of inventories using mandatory language in part.95 Since the technical review process to be established under the Protocol will base itself on the guidelines, the decision adopting them is de facto a mandatory standardisation of the national procedure in this field.96 The Meeting of Parties to the Climate Con95
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Decision 4/CP.5 Guidelines for the preparation of national communications by Parties included in Annex I to the Convention, Part II: UNFCCC reporting guidelines on national communications "The Conference of the Parties pursuant to arts 4, 6, 7 para. 2, 9 para. 2 lit.(b), 10 para. 2, and 12 para. 1. Adopts the guidelines for the preparation of national communications by parties included in Annex I to the Convention, Part II: UNFCCC reporting guidelines on national communications, contained in Doc. FCCC/CP/1999/L.3/Add.l; 2. Decides that Annex I Parties should use Part II of the UNFCCC reporting guidelines for the preparation of their third national communications due by 30 November 2001, in accordance with Decision 11/CP.4". See, OECD Environment Directorate, Monitoring, Reporting and Review of National Performance under the Kyoto Protocol, ENV/EPOC(99)20/Final. Decision 6/CP.5 Guidelines for the technical review of greenhouse gas inventories from Parties included in Annex I to the Convention "The Con-
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vention has therefore decided that States Parties must make their greenhouse gas inventories and their national communications conform to the standards elaborated by the Intergovernmental Panel on Climate Control (IPCC).97 A specific form of legally binding standardisation takes place if a national action taken by one State Party is capable of triggering a uniform legal regime applicable to all States Parties. This is the case under the Rotterdam Convention where a State Party may submit a chemical with regard to which it has taken "final regulatory action" for listing. If the chemical is listed, that chemical cannot be exported to any State Party without the importer State's explicit consent. Under modern international environmental agreements that are primarily concerned with the protection of the environment within States Parties, decisions by the Meeting of Parties setting certain standards are generally most detailed and thus apt to be self-executing. Yet the treaties stop short of providing for hard rules, rather using persuasive language, instead. Typical is article III para. 6 of the Bonn Convention according to which "The Conferences of the Parties may recommend to the Parties that are Range States of a migratory species listed in Appendix I that they take further measures considered appropriate to benefit the species."98 The Wetlands (Ramsar) Convention in its article 4 spells out obligations of States Parties to promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands. The Meeting of Parties may make "general or specific recommendations to the Contracting Parties regarding the conservation, management and wise use of wetlands and their flora and fauna", article 6 para. 2 lit.(d).
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ference of the Parties, [...] 1. Adopts for a trial period covering inventory submissions due in 2000 and 2001 the guidelines for the technical review of greenhouse gas inventories of Annex I Parties; [...]". Doc. FCCC/CP5/1999/L.13. At the 1st Mtg of parties to the African-Eurasian Waterbird Agreement implementing the Convention on Migratory Species, an aspect of biodiversity conservation draft Conservation Guidelines developed by Wetlands International were introduced with support from the governments of Switzerland and the Netherlands (AEWA/MOP 1.8). The EU welcomed the guidelines but emphasised that parties are not obligated to strictly abide by them (Earth Negotiations Bulletin of 8 November 1999, 1).
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The Biodiversity Convention is concerned, i.a., with in-situ conservation, i.e. the legal and other protection of biological diversity within States Parties." Article 8 of the Convention sets forth the obligations of the States Parties in this respect. Basing itself on the competence to implement the treaty, the Meeting of Parties to the Biodiversity Convention adopted a number of "recommendations" that lay out in very specific terms what legislative and executive action is required of States Parties in their domestic legal orders to ensure in situ conservation.100 Adopting such recommendations is the functional equivalent of the European Community organs passing (binding) directives which set forth objectives while leaving Member States the choice as to the means to achieve them. However, the Meeting of Parties has framed the standards in "recommendations" using persuasive rather than mandatory language. The Meeting of Parties obviously feels that it does not have the competence to adopt binding decisions in this field. dd. Progressive Development and Revision of the Treaty The Meetings of Parties' legislative competencies to progressively develop the agreement amount to powers of formal revision of the treaty. The competencies to implement the treaty and to set standards also create new law. This raises the issue of any limits to the mandate of the Meetings of Parties' to legislate on the treaty regime. Obviously, the Meetings of Parties may not legislate whenever the law-making requires ratification by the States Parties and thus most often involves the national legislatures. States Parties may either amend the original treaty or work out an implementing treaty, often called a protocol, which then may be amended in turn. The ozone regime, which consists of the Vi-
99 100
See Wolfram, see note 44, (375 et seq.). Decision IV/10 Measures for implementing the Convention on Biological Diversity "A. Incentive measures: consideration of measures for the implementation of Article 11. The Conference of the Parties Encourages Parties, Governments and relevant organisations: (a) To promote the design and implementation of appropriate incentive measures, taking fully into account the ecosystem approach and the various conditions of the Parties and employing the precautionary approach of Principle 15 of the Rio Declaration on Environment and Development, in order to facilitate achieving the implementation of the objectives of the Convention and to integrate biological diversity concerns in sectoral policies, instruments and projects".
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enna Convention and the Montreal Protocol as amended,101 illustrates this type of progressive development of international law. Also, under the Biodiversity Convention, the need was felt to negotiate a separate protocol to ensure that transboundary movement in living modified organisms did not have an adverse effect on human health or biodiversity (Cartagena Biosafety Protocol).102 Modern international environmental agreements thus provide for two alternative routes for progressively developing the treaty regime. They do not, however, indicate in particular instances which route should be taken. It comes down to interpreting the provisions conferring competencies to legislate on the Meetings of Parties. A typical competence for legislative action by the Meeting of Parties is thus a treaty provision calling for its implementation.103 The general international law rule of effet utile is to be observed in interpreting the treaty provisions conferring competencies on treaty organs.104 However, the above analysed practice under modern international treaties allows us to draw a clear line that will be of help in defining the limits to Meetings of Parties' legislation under any given competence. Such a line would hold the Meeting of Parties competent to take action in conformity with the 101
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The 1987 Montreal Protocol as adjusted and amended by the second Mtg of the Parties (London 27-29 June 1990) and by the 4th Mtg of the Parties (Copenhagen 23-25 November 1992) and further adjusted by the 7th Mtg of the Parties (Vienna 5-7 December 1995) and further adjusted and amended by the 9th Mtg of the Parties (Montreal 15-17 September 1997) and further adjusted and amended by the llth Mtg of the Parties (Beijing 27 November-3 December 1999). The Beijing Adjustments will enter into force on 28 July 2000 while the Beijing Amendment will enter into force on 1 January 2001 provided that at least 20 instruments of ratification of the Amendment have been deposited. No state or regional economic integration organisation may deposit such an instrument unless it has previously, or simultaneously, deposited such an instrument to the previous Amendments. With regard to ratifications, the Executive Director reported to the llth Mtg of the Parties, Beijing, Doc. UNEP/OzL.Pro.10/9 of 3 December 1999, that the total number of parties to the Vienna Convention is 173, the Montreal Protocol 172, the London Amendment 137, the Copenhagen Amendment 103, and the Montreal Amendment 33 parties. Unless otherwise indicated citations are to the Protocol as amended and adjusted. Conference of the Parties to the Convention on Biological Diversity, First extraordinary meeting (resumed session), Montreal 24-28 January 2000, Doc. UNEP/CBD/ExCOP/l/L.5. See, e.g., arts 18 para. 3, 21 para. 1 phrase 4,2, 3 Kyoto Protocol. C. Rousseau, Droit international public, Vol. 1,1971, para. 240.
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policy approach underlying the international environmental agreement. It may not, however, impose substantial new obligations on States Parties. This view seems reflected in the eventual decision of the Meeting of Parties to the Basel Convention to express the ban on exports of hazardous wastes to non-OECD countries as an amendment rather than as a legislative decision, as had been the case originally. An argument in support of this view may be taken from article 18 2nd sentence Kyoto Protocol, which explicitly precludes the Meeting of Parties from including binding consequences in the compliance mechanism which it is otherwise competent to set forth. Also, the fact that, under the Montreal Protocol, the Meeting of Parties adopted the compliance procedure through a decision and not through an amendment confirms the distinction drawn here. When adopted through an amendment, a compliance mechanism serves to enforce, to deepen the substantive obligations incurred by States Parties and stays within the regulatory approach endorsed by the treaty, rather than setting forth new substantive obligations for States Parties. The line between such revision of an international environmental agreement which can be performed by way of legislative decisionmaking of the Meetings of Parties and such which requires a formal amendment of the treaty, i.e. an entirely new protocol, is however subject to interpretation in each specific instance. This is illustrated by the discussion about using the adjustment procedure for adding substances under the Montreal Protocol.105 c. Procedure In making normative decisions the Meetings of Parties follow a procedure marked by the three elements: preparation; voting requirements; and conditions of deliberation.
105
The 10th Mtg of Parties addressed two new substances with ozonedepletion potential which were being marketed as ozone-safe products but not controlled under the Montreal Protocol. Measures to be taken shall be decided on at the next meeting. See Decision X/8 para. 6: "To request the legal drafting group which the Open-ended Working Group may establish to consider and report back to the Eleventh Meeting of the Parties through the Open-ended Working Group on the options available under the Montreal Protocol to introduce controls on new ozone-depleting substances".
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aa. Preparation of Decision-Making An indispensable element of the decision-making procedure of Meetings of Parties to modern international environmental agreements is their receiving quality scientific advice. Agreements therefore institutionalise expertise whose advice may amount to a powerful proposal for decision-making by the Meeting of Parties. aaa. Institutionalising Expertise In order to assist States Parties to make complex trade-offs between scientific uncertainties and political judgments, many international environmental agreements have established a subsidiary body on scientific, technological and technical advice. Such bodies may be established either by the international environmental agreement or ad hoc by the Meeting of Parties of the international environmental agreement as in the case of the Vienna Convention's Working Group for Scientific and Technological Advice.106 The Meetings of Parties maintain control over the modus operandi of the bodies.107 The subsidiary bodies of the Conferences of Parties provide input on specific issues to the benefit of both the Conference of Parties and the subsequent Meeting of Parties. The Meeting of Parties to a Protocol also may begin implementing the treaty before its entry into force provided for by the mother convention.108 The structure and mandate of each of these bodies reflect the degree to which Parties have decided to allow the discipline of scientific or other expertise to direct political action. The institutional structure and mandate of the Climate Change Subsidiary Body for Scientific and Technological Advice (SBSTA) is designed to retain the political character and influence of the Meeting of Parties. Neither the size nor the qualifications for membership of the SBSTA is selective, as it is "open to participation by all parties". In 106
107
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CBD, Decision IV/15: "11. Adopts the modus operandi of the Subsidiary Body on Scientific, Technical and Technological Advice as set out in annex I to the present decision." CBD, Decision IV/15: "11. Adopts the modus operandi of the Subsidiary Body on Scientific, Technical and Technological Advice as set out in annex I to the present decision." E.g., 1st Mtg of Parties to the African-Eurasian Waterbird Agreement and remarks by the Executive Secretary of the Bonn Convention at COP-6 (Earth Negotiations Bulletin 18 of 8 November 1999, 2).
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practice, SBSTA has proved a highly politicised forum which is virtually indistinguishable in its membership or its negotiation dynamic from the Convention's policy bodies.109 As the pressure for efficacy has grown, smaller working groups have been formed such as the Joint Working Group on Compliance. A Committee on Science and Technology (CST) advises and meets simultaneously with the Meeting of Parties to the Desertification Convention. The Ramsar Convention has a Scientific and Technical Review Panel composed of experts from States Parties. The panel provides guidance on keys issues related to the application of the agreement.110 The Montreal Protocol has an ad hoc Working Group of Legal and Technical Experts, which held two sessions in 1998 to review the non-compliance procedure under the Montreal Protocol.111 Under the Basel Convention, States Parties, through the Technical Working Group, are in the process of devising criteria for the environmentally sound management of hazardous and other wastes. More objective, authoritative and influential scientific advice is provided by the Intergovernmental Panel on Climate Change (IPCC), a body of experts which is supported by the World Meteorological Organisation and UNEP, and is wholly independent from the Convention.112 The IPCC released its Second Assessment Report in 1995113 and continues to produce Technical Papers and develop methodologies (e.g. national greenhouse gas inventories) for use by Parties to the Climate Change Convention. The IPCC has had important impact on how 109 110
111
112
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Werksman, see note 69, (59). The composition of the Ramsar Convention's Scientific and Technical Review Panel was a point of contention at the 7th Mtg of Parties (10-18 May 1999). In Resolution Doc. 15.2 the COP decides to introduce modifications to the STRP composition and modus operandi. Convened pursuant to Decision IX/35 of the 9th Mtg of Parties to the Montreal Protocol. See Doc. UNEP/OzL.Pro/WG.4/1/3, Report on the Work of the Ad Hoc Working Group of Legal and Technical Experts on Non-Compliance with the Montreal Protocol. The Intergovernmental Panel on Climate Change (IPCC) was established in 1988 by the World Meteorological Organisation and UNEP to assess the available scientific, technical, and socio-economic information in the field of climate change. The IPCC is organised into three working groups: Working Group I concentrates on the climate system, Working Group II on impacts and response options, and Working Group III on economic and social dimensions. International Environment Reporter (BNA), Current Reports 19 (1996), 3. The Third Assessment Report will be completed around the year 2000.
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countries have perceived the imminence of global climate change. Its first report in 1992 helped create the momentum for the Convention to be adopted at UNCED, just as the second report contributed to States Parties' assuming target and timetable reduction obligations through the Kyoto Protocol.114 Under the Montreal Protocol, the international community has reached a considerable level of agreement on the political and economic costs of reducing production and consumption of ozone-depleting substances. As a result, the Protocol's Parties have allowed its scientific advisory panels to consist of members who are selected on the basis of internationally recognised experts,115 and may even be drawn from non-Parties, i.e. representatives of the relevant inter-governmental organisations.116 This criterion is qualified only by assurances that selection will strive for the widest possible geographical balance of representation. On marine environmental matters, the International Council for the Exploration of the Sea (ICES) will provide independent advice.117 The role of such advisory bodies is strengthened considerably if international environmental agreements endorse the precautionary princi-
114
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116 117
Following consideration by SBSTA, during which delegates debated the GEF's funding role in relation to the IPCC, the COP adopted a decision on co-operation with the IPCC (Doc. FCCC/CP/1999/L.18) on 4 November 1999. The decision expresses the COP's appreciation to the IPCC for its high quality work, notes with concern the IPCC's urgent appeal for additional resources, urges parties and other organisations to contribute financial support to enable the IPCC to complete its report, and invites SBI12 to consider the matter of support for the IPCC, in the context of recommending additional guidance to the GEF. The Parties to the Protocol have established four such panels, on Scientific Assessment, Environmental Assessment, Technical Assessment and Economic Assessment. Report of the Parties to the Montreal Protocol on the Work of their First Session, Doc. UNEP/OzL Pro 1/5; Decision 1/3, Annexes IV and V. Ibid. Protocol to the Convention for the International Council for the Exploration of the Sea, Done at Copenhagen 13 August 1970. The Governments of the States Parties to the Convention for the International Council for the Exploration of the Sea, signed at Copenhagen on the twelfth day of September 1964, to amend article 14 of the Convention shall be amended to read as follows: "(2) the Council shall by a majority vote of all the Contracting Parties approve an annual budget of the Council".
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pie.118 The strength of the advice given still depend, of course, on whether there is a consensus among the scientific community.119 In the case of the Montreal Protocol, where scientific consensus existed, parties have strengthened their commitments three times since 1987.120 bbb. Power of Proposal A move in the direction of allocating power of proposal to the institutionalized expertise can be found in the Rotterdam Convention. The Chemical Review Committee shall, i.a., recommend a chemical for listing in Annex III, which triggers the PIC procedure (article 7). The Rotterdam Convention covers two main categories of substances: (1) "banned" and "severely restricted" industrial chemicals121 and (2) "severely hazardous"122 pesticide formulations. Annex III lists those chemicals subject to the PIC procedures.123 The procedure for expanding the list of chemicals differs for those two categories.124 Yet in each 118
119
120 121
122
123
124
Montreal Protocol, preamble, 5th and 6th tirets FCCC, article 3 para. 3; the Berlin Mandate Working Group's task was also to be carried out in the light of the best scientific information and assessment, Werksman, see note 69, (59). E. A. Parson/O. Green, "The Complex Chemistry of the International Ozone Agreements", Environment 37 (1995), 2 et seq., (20). See Parson/Green, above. Article 2 lit. (b) defines Banned Chemicals "as a chemical all uses of which within one or more categories have been prohibited by final regulatory action, in order to protect human health or the environment". According to article 2 lit.(c) Severely restricted Chemical "means a chemical virtually all use of which within one or more categories has been prohibited by final regulatory action in order to protect human health or the environment, but for which certain specific uses remain allowed". A Severely hazardous pesticide formulation is defined as "a chemical formulated for pesticidal use that produces severe health or environmental effects observable within a short period of time after single or multiple exposure, under conditions of use", Article 2 lit.(d). The initial list incorporates 17 pesticides, five industrial chemicals, and five acutely hazardous pesticide formulations. If at least one country in two PIC regions notifies the Convention Secretariat of an action to ban or severely restrict a chemical, and such notification meets the information requirements of Annex I, the Secretariat forwards that chemical nomination to the Chemical Review Committee. This Committee decides whether to recommend to the Conference of Parties
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case the Chemicals Review Committee needs to make a recommendation before the Meeting of Parties may make a new listing. The recommendation appears to be a condition for the Meeting of Parties to take a decision on amending Annex III in the procedure provided for in article 22 para. 5 upon proposal by a State Party. Thus, the Committee has a negative monopoly of proposal under this Convention. It may take its decisions at a two-thirds majority, article 18 para. 6 lit.(c). Under the Bonn Convention, the functions of the Scientific Council include making recommendations to the Meeting of Parties as to the migratory species to be included in Appendices I and II, together with an indication of the range of such migratory species.125 bb. Voting Requirements International environmental agreements may provide for voting requirements for normative decision-making or leave it to the Meeting of Parties to decide on the question.
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that the chemical be included in Annex III based on verification that the final regulatory action has been taken to protect human health and the environment; that a risk evaluation has been completed according to scientifically recognised principles; and that the action provides a sufficiently broad basis to merit listing. The Chemical Committee must also prepare and submit to the Conference of Parties for approval, a draft decision guidance document for every chemical it recommends for listing, article 7. Once approved, the decision guidance document becomes a major informational source for importing countries in determining whether to consent to imports of PIC-listed chemicals, arts 7, 10 para. 2. For severely hazardous pesticide formulations, a developing country or country with an economy in transition must make the initial proposal for inclusion in Annex III. The Convention Secretariat is then responsible for collecting additional information such as whether handling and applicator restrictions exist in other countries, incidents in other countries, and risk and hazard evaluations where available. These are forwarded to the Chemical Review Committee, which decides whether to make a recommendation to the Conference of Parties that the severely hazardous pesticide formulation be listed in Annex III. Article VIII para. 5; any State Party remains free to propose an amendment to the Appendices, article XI para. 2 Bonn Convention.
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Adjustments under the Montreal Protocol may be decided by a weighted majority of States Parties.126 The Protocol provides for a majority vote if the parties are unable to reach agreement on such adjustments. The vote required is both formally and materially qualified, as only a two-thirds majority adoption of adjustments shall be binding on all Parties to the Protocol,127 whereas this two-thirds majority must also represent 50% of the total consumption of the controlled substances by the Parties. In the Protocol as amended, this weighted voting requirement of a two-thirds majority now has to encompass both a majority of those states whose special situation as developing countries is recognised under the Protocol as amended128 and a majority of those states that do not fit within this category. The London Amendment thus ensures that the interests of the States Parties currently consuming CFCs and those that forego such consumption are represented in the majority vote.129 The Rotterdam Convention provides for listing of chemicals on the basis of consensus by the Meeting of Parties, article 22 para. 5 lit.(b). This is in contrast to the voluntary regime which required that only five or more states take regulatory action to ban or severely restrict a chemical, or that an Expert Group recommend acutely hazardous formulations for listing. However, international environmental agreements are in general silent on the point of how the Meetings of Parties are to proceed in exercising the subject-specific decision-making competencies conferred upon it by the conventions, leaving it for the Meetings of Parties to make the necessary arrangements in Rules of Procedure.130 The Meetings of Parties may determine the quorum for its decision-making.131
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Article 2 para. 9 lit.(c). See 1990 London Amendment, H. article 2 para. 9 lit.(c): "The following words shall be deleted from paragraph 9 of Article 2 of the Protocol: representing at least fifty per cent of the total consumption of the controlled substances of the Parties" and replaced by: "representing a majority of the Parties operating under paragraph 1 of Article 5 present and voting and a majority of the Parties not so operating present and voting". Article 2 para. 9 Montreal Protocol. Article 5 para. 1 bis London Amendment. Caron, see note 38, (767 n. 53). Rule 42, para. 1. Delegates at the MOP-1 of AEWA agreed to change the rules of procedure to require a quorum of one half, Earth Negotiations Bulletin of 8 November 1991, 1.
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The generic rules of procedure for Meetings of Parties to international environmental agreements stipulates accordingly: "[t]he Conference of the Parties shall, at its first session, adopt its own rules of procedure as well as those of the subsidiary bodies established by the Convention, which shall include decision-making procedures for matters not already covered by decision-making procedures stipulated in the Convention. Such procedures may include specified majorities required for the adoption of particular decisions."132 The Climate Change and Biodiversity Conventions, the parties to which have yet to adopt relevant Rules of Procedure, anticipate that "procedures may include specified majorities required for the adoption of particular decisions."133 An indication of the growing importance of the decision-making power of the Conferences of Parties on the implementation of the treaty regime is the intensive and contentious negotiations within the Conferences of Parties under both agreements on the voting part of the Rules of Procedure of the two conventions. In fact, under both conventions elaborate proposals on qualified majority voting have been put forward in several drafts by the Secretariats and the Meeting of Parties presidents, as yet to no avail.134 Both the Confer132 133 134
Article 7 para. 3 FCCC (emphasis added). Article 7 para. 3 FCCC, article 22 para. 3 CCD. Report by the President to the 2nd Mtg of Parties to the Climate Change Convention: "The main outstanding issue concerns the majorities required for the adoption of specific types of decisions on matters of substance (rule 42, para. 1). Views are widely divergent on this issue. ... The following positions regarding voting majorities were discerned by the President as a result of consultations before COP-2: (a) Consensus or general agreement on all matters of substance (including the adoption of a protocol); (b) Threefourths majority on all matters of substance (including the adoption of a protocol); (c) Two-thirds majority on all matters of substance (including the adoption of a protocol); (d) Double majority (Annex I and non-Annex I Parties) on all matters of substance (including the adoption of a protocol); (e) Consensus on matters relating to the financial mechanism and at least a two-thirds majority on all other matters of substance (including the adoption of a protocol); (f) Double three-fourths majority (Annex I and nonAnnex I Parties) on matters relating to the financial mechanism; (g) Seveneighths on all matters of substance (consensus required for a protocol); and (h) Three-fourths majority on all matters of substance, including the adoption of a protocol, and a simple double majority on matters relating to the financial mechanism. The following general conclusions were drawn by the President, as a basis for a possible agreement on procedures on taking decisions on matters of substance: (a) Parties should aim at reaching consensus
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ences of Parties of the ozone regime135 and CITES have, however, adopted their Rules of Procedure, which provide for majority voting. Specific provisions of a protocol may require specific majorities.136 All States Parties to the mother convention may attend the Meeting of Parties to the protocol, yet only States Parties to the Protocol have the right to vote on matters concerning the Protocol.137 cc. Deliberation at the Sessions of the Meetings of Parties The Meetings of Parties may act as the Committee of the Whole of the States Parties to an international environmental agreement. Meetings are attended not only by the representatives of the State Parties but also by representatives of concerned States non-Party and intergovernmental and non-governmental organisations. Traditionally, countries form groupings to develop common positions. New and more innovative approaches may be called for, such as
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on all such matters; (b) Consensus does not mean unanimity; and (c) Wherever it is not possible to reach decisions by consensus, the Parties may resort to voting. The President of COP 2 wishes to advance the following options on substantive decision-making for consideration by the Conference of the Parties: (a) Option 1: Three-fourths majority for all decisions on matters of substance, including the adoption of a protocol and decisions regarding the financial mechanism. This is the same voting majority as that established by article 15 of the Convention for the adoption of amendments, if the Parties are unable to reach agreement by consensus, (b) Option 2: Seven-eighths majority for all decisions on matters of substance, including the adoption of a protocol and decisions regarding the financial mechanism." Typical for international environmental agreements is Rule 40 Vienna Convention/Montreal Protocol: "I. Unless otherwise provided by the Convention, decisions of a meeting on all matters of substance shall be taken by a two-thirds majority vote of the Parties present and voting, except as otherwise provided in the Terms of Reference for the administration of the Trust Fund. 2. Decisions of a meeting on matters of procedure shall be taken by a simple majority vote of the Parties present and voting." Questionnaire circulated by G77/China at the 10th Sess. of FCCC SBI (reported in: Earth Negotiations Bulletin of 8 November 1999, 1). Article 13 para. 2 Kyoto-Protocol.
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introducing a facilitator appointed by the president of the Meeting of Parties.138 An innovative feature pioneered under the Climate Convention has been to split up the Meeting of Parties in a technical and a 'high level' segment. The latter reunites the competent ministers from the governments of States Parties. Deliberations at the Meeting of Parties thus gain a substantive political quality. At this phase, smaller informal negotiating circles tend to proliferate leaving little meaningful discussion at the plenary meetings.139 The strong presence of non-governmental actors both non-profit and for-profit, provides an element of democratic legitimacy to the decision-making process.140 Following the lead of the UN,141 international 138
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On the discussion at FCCC COP-5 in view of the objective of the entry into force of the Kyoto Protocol by 2002, see Earth Negotiations Bulletin of 8 November 1999,13. Following consultations with the COP Bureau, the UNFCCC Secretariat has offered the following suggestions for consideration by the SBI at its 10th Sess. (Doc. FCCC/SBI/1999/2, 7): "(a) It is difficult to apply a strict formula for constituting a closed negotiating or contact group, owing to the lack of a formal constituency structure. The chairperson should, however, strive for a composition that reflects all interests at stake. It would help the Secretariat if informal constituencies provided up-to-date information of their membership; (b) The possibility of informal consultations being limited to a selected group but conducted in full view of all interested Parties may be explored; (c) If a subsidiary body reports back to the COP that a contact group at the official (technical) level has been unable to arrive at a conclusion, the level of subsequent consultations should be raised, e.g. a minister could be asked to take over the consultations, possibly accompanied by an official; (d) The Secretariat will explore practical ways to make negotiation processes more transparent to those not involved, in particular by informing them of the state of play and of the anticipated schedule for plenary meetings. Situations in which non-participants in negotiations wait overnight for a result should be avoided; (e) Sessions should be concluded within the scheduled period. Final negotiations should end, at the latest, in the early hours of the scheduled last day of a session, permitting an orderly conclusion in a plenary meeting in the afternoon, with translation and full documentation." See J. Delbriick, "Laws in the Public Interest — Some Observations on the Foundations and Identification of erga omnes Norms in International Law", in: Liber amicorum, see note 64,17 et seq. E/RES/1996/31 of 25 July 1996, Consultative relationship between the United Nations and non-governmental organizations.
Rohen, Institutional Developments environmental agreements decide on the criteria for NGO dance.142
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3. Executive Function The Meetings of Parties of modern international environmental agreements also perform an executive function. Acting directly or through agencies, they have the power to adopt binding decisions in individual cases based on legal authority and assessment of facts. a. Internal and External Administration of the Treaty Administrative and financial as well as organisational143 matters are considered and definitely decided by the Meetings of Parties. In accordance with the law of international organisation, such "internal" decisions are binding for the treaty organs. The Meetings of Parties discharge them through the bureaux of the Meeting of Parties, whose composition is based on the principle of equitable geographic distribution. External application refers to decisions by the Meetings of Parties or an agency of it that immediately apply the treaty to states or international organisations thereby changing their legal situation. Such decisions take the form of individual acts and of administrative rulemaking. The latter concerns rules that direct how the Meeting of Parties — or its implementing agencies — are to proceed in applying the agreement. Importantly, the Meetings of Parties may serve themselves of separate entities and organisations acting as agencies in making routine decisions.
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Such criteria are normally contained in the Rules of Procedure. Unusually, article XI para. 6 and 7 of the CITES Convention set out the criteria for attendance. The literature on the role of NGOs in international environmental governance is vast, see e.g. R. Falk, "Environmental protection in an era of globalization", Yearbook of International Environmental Law 6 (1995), 3 et seq. Article VIII para. 5 Bonn Convention: "The Conference of the Parties shall determine the functions of the Scientific Council, which may include: [...]". Otherwise the Meeting of Parties decide on establishment of the permanent Secretariat, establishment of any subsidiary bodies, see, most recently, MOP-1 of the AEWA (AEWA/Res.l.l/Rev.l and AEWA/Res.1.8/ Rev.2); Earth Negotiations Bulletin of 10 November 1999, 3.
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b. Competencies There are three main competencies for the Meetings of Parties to act in an executive function: The Meetings of Parties administer adjustments, financial mechanisms and any implementing mechanisms decided on by the Meetings of Parties. aa. Administering the Regulatory Approach The Meetings of Parties may respond to changes in the factual situation by administrative adjustments of the treaty's regulatory approach. Such is the case with the trading ban under the Montreal Protocol. In order to prevent relocation of the production of ozone-depleting substances in non-Party States, the Montreal Protocol provides for a ban on trading in the substances controlled. However, the Montreal Protocol authorizes the Meeting of Parties to suspend the general trading ban with non-Parties in individual cases.144 The Meeting of Parties correspondingly has allowed exports to non-Parties which have shown compliance with the control measures in the Protocol. bb. Administering Implementing Mechanisms The sophisticated efficiency-oriented mechanisms under certain agreements145 require direct administration by the Meetings of Parties. These act through operational entities, models for which may be found in the limited membership bodies, the expert bodies or the bureaux of the conferences. Such is the case with the implementation mechanisms designated by the Kyoto Protocol.146 The Kyoto Protocol makes references to instituting "operational entities" for its flexibility mechanisms.147 As these mechanisms conceptually rely on transactions between States Parties 144
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Article 4 para. 8 states that "notwithstanding the provisions of this Article, imports referred to in [this Article] and exports referred to in [this Article] may be permitted from, or to, any State not party to this Protocol, if that State is determined, by a meeting of the Parties, to be in full compliance with Article 2, Articles 2A to 2E and this Article, and have submitted data to that effect as specified in Article 7 [as amended]". See II. 2. b. bb. aaa. See Earth Negotiations Bulletin of 19 April 1999, 2 et seq. Arts 12 para. 5, 6 para. 2.
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and legal entities, a third institution is called for in order to enable, facilitate and supervise these transactions. Thus, Parties may only gain credit for projects in developing countries if the emission reductions are certified by an operational entity identified by the Meeting of Parties. Regarding the management of clearing houses, the Meeting of Parties to the Biodiversity Convention enlists both the Secretariat148 and also the GEE149 Under CITES, a trust fund150 is set up to administer revenues from the ivory trade regulated by Meeting of Parties decision. 148
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Decision IV/2 Review of the operations of the Clearing-house Mechanism: "[...] 10. Instructs the Executive Secretary: [..] (e) To assist in ensuring that the implementation of articles 16 (Transfer of and Access to Technology), 17 (Information Exchange) and 18 (Scientific and Technical Cooperation) of the Convention on Biological Diversity is facilitated by the Clearing-house Mechanism; (k) To undertake an independent review of the pilot phase of the Clearing-house Mechanism, starting at the end of 1998, to be presented to the Subsidiary Body on Scientific, Technical and Technological Advice for its consideration together with a longer-term programme of work for the Clearing-house Mechanism". Decision IV/2 Review of the operations of the Clearing-house Mechanism "[...] 9. Requests the Global Environmental Facility: (a) To be a catalyst in the development and implementation of the Clearing-house Mechanism, so as to assist it to fulfil its role in promoting and facilitating the implementation of the Convention, in a participatory manner and fully incorporating available modern information and communication tools; (b) To support capacity-building activities and country-driven pilot projects focused on priority areas, as critical components in the implementation of the Clearing-house Mechanism at the national, subregional, biogeographic, and regional levels, both during and after the pilot phase." Decision 10.2 Conditions for the disposal of ivory stocks and generating resources for conservation in African elephant range States "a) The African elephant range States recognize: i) the threats that stockpiles pose to sustainable legal trade; ii) that stockpiles are a vital economic resource for them; iii) that various funding commitments were made by donor countries and agencies to offset the loss of assets in the interest of unifying these States regarding the inclusion of African elephant populations in Appendix I; iv) the significance of channelling such assets from ivory into improving conservation and community-based conservation and development programmes; v) the failure of donors to fund elephant conservation action plans drawn up by the range States at the urging of donor countries and conservation organisations; and vi) that, at its ninth meeting, the Conference of the Parties directed the Standing Committee to review the issue of stockpiles and to report back at the 10th meeting, b) Accordingly, the African elephant range States agree that all revenues from any purchase of
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cc. Administering Compliance Mechanisms Of fundamental importance is the administration of the financial mechanisms that most modern international environmental agreements provide for pursuant to Agenda 21 Chapter 33. Modern international environmental agreements dispose of an institutionalised financial mechanism through which they administer a compliance assistance scheme based on the principle of "common but differentiated responsibility". These mechanisms provide the financial resources to meet the agreed incremental costs incurred by developing country Parties in implementing their obligations under the respective agreement. A voluntary financial mechanism may also be instituted subsequent to an international environmental agreement's coming into force by a decision of the Meeting of Parties.151 The approach was pioneered under the Montreal Protocol where a Multilateral Fund and a corresponding institutional structure to administer it were set up.152 More often, however, administration of the fund
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stockpiles by donor countries and organisations will be deposited in and managed through conservation trust funds, and that: i) such funds shall be managed by Boards of Trustees (such as representatives of governments, donors, the CITES Secretariat, etc.) set up, as appropriate, in each range State, which would direct the proceeds into enhanced conservation, monitoring, capacity building and local community-based programmes; and ii) these funds must have a positive rather than harmful influence on elephant conservation, c) It is understood that this decision provides for a one-off purchase for non-commercial purposes of government stocks declared by African elephant range States to the CITES Secretariat within the 90-day period before the transfer to Appendix II of certain populations of the African elephant takes effect. [...]". This resolution (AEWA/Res.l.7/Rev.2) establishes a Small Conservation Grants Fund to facilitate implementation of the AEWA, to operate from the time of MOP-2. The resolution instructs the Secretariat to establish an interim mechanism to enable voluntary contributions for the purpose of providing small grants between MOP-1 and MOP-2, and urges parties and donors to make contributions. An Annex contains the CMS guide-lines for acceptance of financial contributions. According to article 10 para. 1 the parties shall establish a mechanism for the purposes of providing financial and technical co-operation, including the transfer of technologies, to parties operating under para. 1 of article 5 of this Protocol to enable their compliance with the control measures set out in arts 2A to 2E, and any control measures in arts 2F to 2H that are decided pursuant to para. 1 bis of article 5 of the Protocol. The mechanism shall
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fed by developed country Party contributions is entrusted to a separate entity or entities. This, in practice, is most often the GEF but other institutions are also being called on.153 The implementing agencies' juridical personality allows them to allocate the GEF resources to given projects in a legally binding manner. The Meetings of Parties guide the GEF through a list of terms regarding objectives, methodology and criteria annexed to the decision entrusting it with the operation of the financial mechanism.154 The GEF is reviewed accordingly on a regular basis. The GEF is requested to ensure that its implementing agencies are made aware of Meetings of Parties' decisions. The Meetings of Parties provide additional guidance as they see fit.155 Since the guidance by the Meetings of Parties is of a di-
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meet all agreed incremental costs of such parties in order to enable their compliance with the control measures of the Protocol. An indicative list of the categories of incremental costs shall be decided by the Meeting of the Parties. The London Amendment (1990) to the Montreal Protocol on Substances that Deplete the Ozone Layer has provided for the creation of a Financial Mechanism to assist developing countries. The Mechanism includes a Multilateral Fund and other multilateral, regional and bilateral cooperation. The Fund meets the incremental costs of the Parties operating under article 5 of the Protocol (developing countries) to implement the control measures of the Protocol and finances all clearing house functions e.g. country studies, technical assistance, information, training and costs of the Fund Secretariat. The GEF has been designated by the Meetings of Parties as the interim operational entity for the financial mechanisms established under the Climate and Biovdiversity Conventions. The Desertification Convention also provides for a financial mechanism, for which the International Fund for Agricultural Development (IFAD) was chosen on an interim basis. E.g. FCCC, Decision 2/CP.4. FCCC, Decision 2/CP.4 Additional Guidance to the Operating Entity of the Financial Mechanism, "The Parties decided that the Global Environment Facility (GEF) should provide funding to developing country Parties to: implement adaptation measures in particularly vulnerable countries and regions; enable them to identify their prioritized technology needs, build capacity for participation in systematic observational networks; meet the agreed full costs to prepare initial and subsequent national communications by maintaining and enhancing national capacity; assist with studies leading to the preparation of national programmes to address climate change and response measures; assist in strengthening national activities for public awareness and education; support capacity for identifying technology suppliers, designing and hosting projects, and accessing information from re-
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rectory character, the GEF itself adopts policies fleshing out the guidance and setting forth the criteria for funding of projects. Insofar as the policy guidance received from the different Meetings of Parties cover similar issues the GEF may respond efficiently by way of a single project.156 The detailed report that the GEF serves the Meetings of Parties will allow the latter to control compliance by the GEF with the policy guidance received.157 dd. Direct and Indirect Administration of International Environmental Agreements Meetings of Parties of modern international environmental agreements increasingly administer the agreement directly either through operational entities or independent institutions. A conceptual distinction between direct administration (by treaty organs) and indirect administration (by States Parties' organs) analogous to the accepted terminology in EC law is thus called for. c. Procedure Typical for administrative rulemaking is the close involvement of groups holding a stake in the matter under consideration. Considerations of protecting numerical minorities among States Parties are evident in weighted majority requirements. Thus, article 10 para. 9 Montreal Protocol provides that decisions by the Meeting of Parties regarding the financial mechanism may be adopted by a two-thirds majority vote of the Parties, representing a majority of the Parties operating under article 5 and a majority of the Parties not so operating present and voting.
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gional centers and networks; GEF was also encouraged to further streamline its project cycle, simplify its project approval process and make transparent its process for determination of incremental costs. [...]". See, e.g., Report to the COP-5 of the Climate Convention, para. 15: "recognizing the continued and strong emphasis on capacity building from the COPs of both the FCCC and the CBD, GEF Council agreed that a comprehensive and targeted assessment of capacity building would be timely". See note by the Secretariat, Report of the Global Environmental Facility to the Conference of the Parties at its 50tb Session, Doc. FCCC/CP/1999/3.
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Furthermore, modern international environmental agreements rely heavily on involving non-governmental organisations in their administration. The Instrument for the Establishment of the Restructured GEF endorses "consultation with, and participation as appropriate of, major groups throughout the project cycle" of GEF-financed projects as one of its basic principles.158 Correspondingly, the World Bank is now integrating environmental NGOs in its development projects.159 Under the so-called World Heritage Convention, three NGOs have been given official status in the agreement as advisors on which the World Heritage Committee can call "for the implementation of the programmes and projects".
4. Quasi-Judicial Function Finally, the Meetings of Parties exercise a quasi-judicial function by assuming the power unilaterally to sanction conduct tested against a legal standard. Procedural shortcomings, however, make it a quasi-judicial function only. At least four steps within the compliance procedure need to be distinguished: Jurisdiction, institutionalised factual and legal assessment, consequences and procedure. a. Jurisdiction The Meetings of Parties have jurisdiction to conduct a procedure leading to a binding result with regard to compliance.
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Instrument for the Establishment of the Restructured GEF, Report of the GEF Participants Meeting, Geneva, Switzerland of 14-16 March 1994, 2, para. 5. The World Bank has identified the following focal points of its environmental agenda: Assisting member countries in setting priorities, building institutions, and implementing programs for sound environmental stewardship; ensuring that potential adverse environmental impacts from Bankfinanced projects are addressed; Addressing global environmental challenges through participation in the GEF.
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aa. Compliance The jurisdiction of Meetings of Parties covers the (non-) compliance procedures and mechanisms that modern international environmental agreements dispose of. While compliance control is a relatively new concept of international law,160 most modern international environmental agreements provide for it.161 The aim of compliance control is to prevent injury/damage through non-compliance, reflecting, in part, what has recently become known as the "precautionary approach" and preventing "disagreement on a matter of fact or law", which is the essence of a dispute.162 In some form or another a specific mechanism to control States Parties' compliance with their obligations is increasingly part of the basic regulatory approach of modern international environmental agreements,163 particularly of the Montreal Protocol, the two
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See R. Wolfrum, "Means of Ensuring Compliance with and Enforcement of International Environmental Law", RdC 272 (1998), 25 et seq. While "implementation refers to legislation, the regulation and other steps required (of States Parties) to implement the agreement, compliance means not only whether the measures are observed but also whether the targets of the agreement change their behavior", E. Brown Weiss/HJ. Jacobson, "Why Do States Comply with International Agreements", Human Dimensions 1996, 1; see "Introduction and Overview", in: D. Victor/K. Raustila/E. Skolnikoff (eds), The Implementation and Effectiveness of International Environmental Commitments, 1998, 2. On reporting and deliberation on non-compliance by a designated organ see arts 7, 8, 9 para. 3, para. 12, and Annex IV Montreal Protocol; arts 12, 13, 19 Basel Convention; arts 7 para. 2 lit.(i), 10-12 FCCC; article 23 para. 4 lit.(a)(g) CBD; Protocol to the Convention on Long-range Transboundary Air Pollution on Further Reduction of Sulphur Emissions, ILM 33 (1994), 1540 et seq., arts 5, 8; arts 26, 27 CCD; International Tropical Timber Agreement, UNCTAD Doc. TD/Timber/11, arts 30- 34, see, generally, A. & A.H. Chayes, The New Sovereignty: Compliance with International Regulatory Agreements, 1995. See M. C. W. Pinto, "From Dispute Resolution to Dispute Avoidance: Some Thoughts on Collective Management of Treaty Performance", in: Liber Amicorttm, see note 64, 353 et seq., (367). The Meetings of Parties approach reflects the assumption that noncompliance is frequently the consequence, not of malice or greed, but rather of technical, administrative or economic problems, see P. Szell, "Implementation Control: Non-compliance Procedure and Dispute Settlement in the Ozone Regime", in: W. Lang (ed.), The Ozone Treaties and their in-
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Sulphur Protocols to the Geneva Convention on Long-Range Transboundary Air Pollution, and the Convention on the Protection of the Marine Environment of the North East Atlantic.164 Such a system provides for a quasi-judicial settlement of compliance disputes. bb. Interpretation of Agreement Jurisdiction for authentic interpretation of the international environmental agreement, however, rests with the States Parties.165 b. Institutional Issues In any of the systems developed to date, the Meetings of Parties retain ultimate authority over the compliance issue. However, the Meetings of Parties conduct the procedure through a limited membership organ such as the Implementation Committee instituted under the Montreal Protocol.166
fluence on the building of international environmental regimes, 1996, 4350, (46). 164 It is generally considered that international environmental agreements with the following characteristics are suited to an implementation mechanism only: (1) the objectives are stated in general terms and there are no target and timetables; (2) the commitments undertaken by States parties are flexible, leaving ample discretion to States Parties as to how to fulfil their obligations, see X. Wang, "Towards a System of Compliance. Designing a Mechanism for the Climate Change Convention", Review of European Community & International Environmental Law 7 (1998), 176 et seq., (176). 165 See, however, Decision IV/5 Non-compliance procedure para. 5: "To adopt the view that the responsibility for legal interpretation of the Protocol rests ultimately with the Parties themselves". 166 «7 •pjjg f unc ti ons of the Implementation Committee shall be: (a) To receive, consider and report on any submission in accordance with paragraphs 1, 2 and 4; (b) To receive, consider and report on any information or observations forwarded by the Secretariat in connection with the preparation of the reports referred to in Article 12 (c) of the Protocol and on any other information received and forwarded by the Secretariat concerning compliance with the provisions of the Protocol; (c) To request, where it considers necessary, through the Secretariat, further information on matters under its consideration."
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The character of the quasi-judicial feature depends on whether the Meetings of Parties can hear primarily disputes about allegedly violated rights of States Parties or about the common interest. This is the issue underlying eligibility to trigger the compliance procedure. Under its non-compliance procedure the Montreal Protocol Implementation Committee can receive and consider reports from Parties "wishing to express reservations regarding another Party's implementation of its obligations, the Secretariat, should it have similar concerns, or a Party itself, should it find it is having difficulty complying."167 The Compliance Committee established by the common compliance regime adopted in 1997 for the Convention on Long-Range Transboundary Air Pollution and its eight Protocols168 may consider specific issues referred to it by one or more Parties about another Party, one Party with its own compliance problems, or the Secretariat, based upon information received by Parties or other sources such as non-governmental organisations. The task of fact-finding is generally allocated to the agreement's Secretariat. The Montreal Protocol empowers the Implementation Committee to conduct information gathering in the territory of a State Party that has so requested.169 The Compliance Committee under the Transboundary Air Pollution regime can gather information from other sources through the Secretariat, receive expert advice from the Convention bodies or other experts, and visit countries by invitation. Parties have to submit two types of reports based on a framework common to the Convention and its Protocols, one on strategies and policies adopted to mitigate air pollution and another on emissions data. Under the indepth review procedure of the Climate Convention, an expert review team may undertake fact finding upon authorisation by the subsidiary body.170
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Emphasis added. Currently under revision. 169 Non-Compliance Procedure para. 7 lit. (e): "To undertake, upon the invitation of the Party concerned, information-gathering in the territory of that Party for fulfilling the functions of the Committee". 170 -r^g pUrpose of the review process, as defined in Decision 2/CP.l of the first session of the Conference of the Parties (see Doc. FCCC/CP/1995/7/ Add.l), is to review, in a facilitative, non-confrontational, open and transparent manner, the information contained in the communications from Annex I Parties to ensure that the Conference of the Parties has accurate, consistent and relevant information at its disposal to assist it in carrying out its responsibilities. 168
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c. Factual Assessment and Legal Evaluation A central element of the quasi-judicial function and any compliance procedure is the factual assessment and legal evaluation of a situation of potential non-compliance. Under the Montreal Protocol, the central task of the Implementation Committee is to independently state the facts.171 The Montreal Protocol empowers the Implementation Committee to conduct "information gathering in the territory" of a State Party that has so requested.172 According to para. 9 of the Non-compliance Procedure, the Implementation Committee shall report to the Meeting of Parties, including any recommendations it considers appropriate. With the primary goal of "securing an amicable solution of the matter", the Implementation Committee shall include any recommendations it considers appropriate.173 Thus, the preliminary legal evaluation, i.e. the finding whether the facts amount to a State Party's (non-)compliance with its obligations, is the task of the Implementation Committee. The process of compliance assessment, with the final determination left to the Meeting of Parties, takes on a different character from a diplomatic conference and resembles the proceedings before an administrative law judge. The compliance system applicable to developing States Parties progresses on two levels, i.e. the Multilateral Fund, and the Implementation 171
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Non-Compliance Procedure para. 7 lit.(d) "To identify the facts and possible causes relating to individual cases of non-compliance referred to the Committee and make appropriate recommendations to the Meeting of the Parties, (e) To undertake, upon the invitation of the Party concerned, information-gathering in the territory of that Party for fulfilling the functions of the Committee". See, on the details, Handbook for the Montreal Protocol on Substances that Deplete the Ozone Layer, 3rd edition, UNEP (ed.), 1998. Thus the Implementation Committee referred the following draft for a Decision to the Meeting of the Parties: "Decision (j) Inconsistencies in the timing for reporting data under article 7 and the phase-out schedule under article 5, 1. To urge the Implementation Committee to review and report on the status of the data reported by Parties operating under paragraph 1 of Article 5, relative to the freeze in production and consumption using the best available data submitted; 2. To urge the Implementation Committee to view the data from the July to June time period, or other time periods relevant to paragraph 8 bis of Article 5, as especially critical in cases where annual data submitted by Parties operating under paragraph 1 of Article 5 demonstrates that a country is very close to its baseline freeze level".
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Committee. Upon the report from the Executive Committee of the Multilateral Fund, the Implementation Committee may make proposals for the article 5 (developing)-State party found in non-compliance to remedy that situation.174 All final decisions are, however, reserved for the Meeting of Parties. This ensures that the conclusion on the assessment of compliance reached at the technical-legal level (the Multilateral Fund) can be evaluated at the political level. The Long-Range Transboundary Air Pollution regime provides for a similar institutionalised factual assessment and legal evaluation of compliance. This bifurcation of the technical-legal and political elements of compliance reflects the quasi-judicial nature of the procedure. It is an important approximation to a genuinely judicial procedure that one institution is to rule on the factual and legal elements. But it also reflects the fact that the primary objective of the procedure is to achieve compliance not to settle disputes judicially. The first stage of the procedure facilitates Parties' reaching a political compromise on compliance by setting
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E.g., concerning Azerbaijan, the Committee recently recommended "2. To express great concern about Azerbaijan's non-compliance and to note that Azerbaijan only very recently assumed the obligations of the Montreal Protocol, having ratified it in 1996. It is with that understanding that the Parties note, after reviewing the country programme and submissions of Azerbaijan (which was prepared with UNEP assistance), that Azerbaijan specifically commits: - To a phase-out of CFCs by 1 January 2001 (save for essential uses authorized by the Parties); - To establish, by 1 January 1999, a system for licensing imports and exports of ODS; - To establish a system for licensing operators in the refrigeration-servicing sector; - To tax the imports of ozone-depleting substances, to enable it to ensure that it meets the year 2001 phase-out; - To a ban, by 1 January 2001, on all imports of halons; and - To consider by 1999, a ban on the import of ODS-based equipment; 3. That the measures listed in paragraph 2 above should enable Azerbaijan to achieve the virtual phase out of CFCs, and a complete phaseout of halons by 1 January 2001. In this regard, the Parties urge Azerbaijan to work with relevant Implementing Agencies to shift current consumption to non-ozone-depleting alternatives, and to quickly develop a system for managing banked halon for any continuing critical uses. The Parties note that these actions are made all the more urgent due to the expected closure of CFC and halon-2402 production capacity in its major source (Russian Federation) by the year 2000, and the very limited international availability of halon-2402 from other sources; 4. To closely monitor the progress of Azerbaijan with regard to the phase-out of ozone-depleting substances, particularly towards meeting the specific commitments noted above".
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out the facts and the law. Finally, the subsequent political stage is meant to generate acceptance of the relatively novel procedure with states. The Climate Convention foresees an overall review of the steps taken by Annex I countries regarding their national policies, article 4 para. 2 lit.(b). The article 4 review builds on the national self-reporting obligation. This dovetails with the Meeting of Parties' power under article 7 para. 2 lit.(e) to "assess on the basis of all information made available to it in accordance with the provisions of the Convention, the implementation of the Convention by the Parties". Under an in-depth review of Annex I Parties' national communications, adopted by theMeeting of Parties175 and now enshrined in the Kyoto-Protocol,176 the expert review teams shall prepare a report to the Meeting of Parties, assessing the implementation of the commitments of the Party and identifying any potential problems in, and factors influencing, the fulfilment of commitments. The team submits a report to the Subsidiary Body on Implementation, which will consider the report and any comments by the State Party concerned. The decision177 does not indicate what sort of measures the Subsidiary Body on Implementation may take upon completion of this stage, particularly whether there can be a legal evaluation of the State Party's compliance. Article 13 of the Climate Convention furthermore provides for a "multilateral consultative process", which shall be open to States Parties upon request. The Process therefore is a mechanism that will deal with a State Party's or a group of States Parties' performance with regard to its/their obligations under the Convention. The Process as implemented by the Meeting of Parties may lead to "recommendations", while being non-judicial in nature.178
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Decision 2/CP.l; Doc. FCCC/CP/1995/Add.l. Article 8 para. 1 of the Protocol stipulates that the information submitted under article 7 by each party included in Annex I shall be reviewed by expert review teams pursuant to the relevant decisions of the Meeting of Parties and in accordance with guidelines adopted for this purpose by the Meeting of Parties. The information submitted under article 7 para. 1 by each party included in Annex I shall be reviewed as part of the annual compilation and accounting of emissions inventories and assigned amounts. 177 See note 171. 178 «3 'j'jjg process shall be conducted in a facilitative, cooperative, nonconfrontational, transparent and timely manner, and be non-judicial. Parties concerned shall be entitled to participate fully in the process"; At INC3, the Co-chair of working group II proposed a procedure to deal with "questions regarding interpretation and application", Doc. A/AC.237/ 176
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This difference with the Non-compliance Procedure under the Montreal Protocol illustrates that States Parties calibrate a noncompliance mechanism on the nature of the obligations with which compliance is to be ensured. A need for an effective mechanism arises only if States Parties want to make a substantial deal stick. It is thus under the Kyoto Protocol only that the Subsidiary Body on Implementation may be allotted the functions and powers that the Implementation Body exercises under the Montreal Protocol. The Kyoto-Protocol now gives the Subsidiary Body on Implementation (SBI) and the Meeting of Parties a clear mandate to develop fully fledged compliance mechanisms179 that may mirror that under the Montreal Protocol. d. (Non-)compliance Response Non-compliance responses may be of a facilitative or punitive nature. Facilitation is designed to bring about compliance where it results from inability to comply, while the power to sanction a case of wilful noncompliance with punitive or rather positive measures is reserved to cases of determined non-compliance. With the primary goal of "securing an amicable solution of the matter", the Implementation Committee of the Montreal Protocol shall report to the Meeting of Parties and include any recommendations it considers appropriate. 18° After receiving a report by the Committee the
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Misc. 13 et seq. of the Revised Single Text on Elements Relating to Mechanisms, see Wang, see note 164, (178). SeeunderII.2.b.bb.bbb. See, e.g., Doc. UNEP/OzL.Pro/ImpCom/21/3 of 7 December 1998 Report of the Implementation Committee Under the Non-Compliance Procedure for the Montreal Protocol on the Work of its Twenty-First Meeting "[...] 18. The Secretariat drew the Committee's attention to paragraphs 22-25 and tables 1 and 2 of its report, contained in Doc. UNEP/OzL.Pro.10/3, which discussed a number of Parties whose data suggested that they were in noncompliance in 1996 with the control measures in Article 2 of the Protocol. The Secretariat recalled that, at its twentieth meeting, the Committee had considered non-compliance with the Protocol by those Parties. The recommendations of the Committee on each of the cases had been conveyed to the Parties concerned, which had been requested to send the relevant information to the Secretariat by 30 September 1998, including provisions for interim reductions and other benchmarks which the Implementation Committee could use to monitor progress. [....] 51. The representative of GEF reported that three additional projects had been approved by the
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Parties may, taking into consideration the circumstances of the matter, decide upon and call for steps to bring about full compliance with the Protocol, "including measures to assist the Parties' compliance with the Protocol, issuing cautions, and suspension of certain rights and privileges". The non-compliance responses available with regard to developing States Parties include the Protocol's Multilateral Fund.181 The international environmental agreements thus follow the approach pioneered by ILO where a Committee of Experts performs an in-depth review of national reports and provides individual countries with a clear indication of compliance problems. The Committee of Experts also suggests corrective action. A standard grace period of two years allows the country time to come into compliance. This period may be extended if the country is clearly moving toward compliance. If non-compliance persists, the violation is reported to the Conference Committee as part of its annual report. The report identifies individual countries and the nature of the compliance problem. The Conference
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GEF Council since July 1998, namely, projects for Argentina, Azerbaijan and Turkmenistan. Three countries, Estonia, Kazakhstan and Tajikistan, had already started project identification activities and their proposals should be presented in the next few months. [...] 53. The representative of UNDP informed the meeting that the Programme was implementing 21 institutional strengthening projects funded from the Multilateral Fund, 13 of which were for large-volume-consuming countries, including China, India and Mexico". "In the Montreal Protocol on Substances that Deplete the Ozone Layer, ... most funding to address problems of poor implementation comes from the Protocol's Multilateral Fund, but the financing necessary for [a number of] states to comply with the Protocol flows from the Global Environmental Facility (GEF), a separate entity. In practice the GEF has made its funding contingent upon the prior approval of the parties to the Protocol. When non-compliance by ...[a number of Parties] became apparent, the GEF required those countries to have implementation plans approved via the Protocol's Non-compliance Procedure before funds were disbursed. The GEF's conditionally has, in turn, induced [an important Party] to supply data after years of refusal. These data have made it easier to assess ... compliance, to track emerging problems such as illegal trade in ozone-depleting substances, and to assess the overall effectiveness of the Montreal Protocol. In essence, the GEF acted as a critical part of the system for implementation and review, ensuring that the system operated well." D. Victor, "The Montreal Protocol's non-compliance procedure: lessons for making other international environmental regimes more effective", in: Lang, see note 163, 58 et seq., (61).
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Committee addresses the most serious violations in a session where the country in question must be present and defend its position. Under the Kyoto Protocol, suspension of specific rights, including the ability to participate in article 6 (joint implementation), 12 (clean development mechanism) and 17 (emissions trading) may be added to the list of non-compliance responses of a punitive nature. e. Procedure The non-compliance mechanism under the ozone and the Long-Range Transboundary Air Pollution regimes allot the main functional elements of judicial proceedings to several bodies. The most important body, the Implementation Committee of the Montreal Protocol even enjoys the independence of the assessment made by the Implementation Committee.182 The procedure, however, is still too rudimentarily legalistic to speak of anything but a quasi-judicial function. The persons serving in the Implementation Committee do so as representatives of their respective state. The body charged with making the final decision is not bound by any decision preceding the factual assessment or political evaluations. The essentially political nature of the procedure becomes evident upon a comparison with the dispute settlement system established by the WTO. Just as in that system the panel report has to be approved by the Dispute Settlement Body representative of the diplomatic element, the conclusion of the Implementation Committee hearing the case precedes decision-making by the plenary organ. Yet the latter body's recommendations can be blocked by the state concerned refusing consensus while the former's are sure to be adopted by the Dispute Settlement Body given the negative consensus principle under which the successful applicant has to agree to reject the panel report. The procedure reflects the fact that non-compliance in environmental matters often results from lack of capacity. A less stringent judicial nature of the procedure is thought to further compliance more effectively. However, it leaves the treaty open to cases of deliberate noncompliance, which are best addressed by judicial proceedings. The solution may be found in a combination of the current non-compliance 182
Para. 11 of the Non-compliance procedure: "No Party, whether or not a member of the Implementation Committee, involved in a matter under consideration by the Implementation Committee, shall take part in the elaboration and adoption of recommendations on that matter to be included in the report of the Committee".
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mechanism with judicial proceedings. The arbitration procedure under the OSPAR Convention provides evidence that this is possible under modern international environmental agreements.183
5. Policy-Making Function The Meetings of Parties also exercises a policy-making function. Of ever greater importance in this respect are so-called action plans which the Meetings of Parties adopt to lay out objectives and approaches to implementing the agreement in the medium to long term. The plans represent the policy-making or gubernatorial function adhering to Meetings of Parties. It is marked by three elements. The Meetings of Parties thereby establish a functional link between policies and the legal instruments required to further them. The Meetings of Parties furthermore establish time limits and milestones in the approach to the policy goal. Third, the plan provides all institutions involved with limited mandates thus permitting the Meeting of Parties to programme the actions of other institutions. Such plans abound. The Buenos Aires Plan of Action, adopted at the 4th Meeting of Parties to the Climate Convention, thus covers the entire Kyoto Protocol setting out actions and deadlines.184 The Plan mandates the subsidiary bodies as well as the Secretariat to work towards the next Meeting of Parties deciding on the flexibility mechanisms provided for by the Kyoto Protocol. The work undertaken on the basis of that mandate allowed the Bonn Meeting of Parties to adopt decisions on a range of issues concerning these instruments. Under the Biodiversity Convention, the Subsidiary Body on Scientific, Technical and Technological Advice in 1995 adopted a recommendation on the issue of conservation of coastal and marine biodiversity, 183 184
See under IV. 3 a. E.g., the Plan of Action also addresses technology transfer, whereby parties requested the Chair of the Convention's Subsidiary Body for Scientific and Technological Advice to establish a consultative process to consider a preliminary list of issues and questions. The process would result in recommendations on a framework for meaningful and effective actions to implement article 4 para. 5 of the Convention. Parties also adopted a program of work that calls for specific actions and deadlines, including identification of initial actions needed by COP-5 and taking decisions on further action by COP-6 in 2000.
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detailing a programme of integrated coastal management.185 It also addressed the issue of overfishing.186 The 2nd Meeting of Parties to the Biodiversity Convention endorsed, with some modifications, the Subsidiary Body on Scientific, Technical and Technological Advice's recommendation as Decision 11/10. The decision, together with the recommendation, on which it is based, is referred to as the "Jakarta Mandate". The Jakarta Mandate envisages the establishment of working groups to investigate various aspects of marine and coastal biodiversity.187 Through its policy-setting function, the Meeting of Parties has thus been remedying shortcomings in the agreement regarding the marine environment.188 The Meetings of Parties furthermore exercise their policy-making functions by deciding on whether it is opportune progressively to develop the mother convention through protocols. For that purpose, the Meetings of Parties create a negotiating group that mirrors the Meetings of Parties and is vested with a negotiating mandate that is deadlined. The group will be able to draw on the treaty organs' resources. The immensely political character of such mandating is evident from the examples of the Kyoto Protocol and the Cartagena Protocol concluded, respectively, under the auspices of the Climate and the Biodiversity Conventions.
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E. Hey, "Global Fisheries Regulation in the First Half of the 1990s", International Journal of Marine and Coastal Law 11 (1996), 459 et seq., (584); M. Goote, "The Jakarta Mandate on Marine and Coastal Biodiversity", International Journal of Marine and Coastal Law 12 (1997), 91 et seq., (reproducing the text of the Annex to the SBSSTA recommendation as an Appendix). Para. 7 of the Mandate. Doc.UNEP/CBD/JM/Expert/l/5; Doc.UNEP/CBD/SBSSTA/3/Inf.l. The report of the Experts Working Group develops a methodology for the application of the precautionary approach to biodiversity impacts, as well as attempting an interim working definition of a healthy ecosystem (Annex V, paras II & IV). It develops the elements and priorities of a three-year work programme for the Biodiversity Convention on the Jakarta issues. T. Scully, "The Protection of the Marine Environment and the UN Conference on Environment and Development", in: The Law of the Sea: New Worlds, New Discoveries. Proceedings of the 26th Annual Conference of the Law of the Sea Institute, 22-25 June 1992, 1992, 148, who suggests that in relation to marine biodiversity the Convention is "poorly drafted and a weak instrument" and that "one could read its obligations as a set back".
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The strong policy setting function exercised by the Meetings of Parties raises the question of the corresponding functions of the Commission on Sustainable Development and UNEP. The Agenda 21, confirmed by the General Assembly Special Session, sees these two institutions as setting overall policy in the field of sustainable development.189 This should be seen as an appeal to States Parties to set sectorial policy under an international environmental agreement in conformity with cross-sector recommendations particularly of the Commission on Sustainable Development.
III. Secretariats International environmental agreements provide for small Secretariats only. The Secretariats' legislative, executive and quasi-judicial functions are important yet do not allow them to be an independent player in the progressive development of any particular treaty regime.
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The Commission on Sustainable Development was created by ECOSOC to ensure the effective follow up of UNCED Institutional Arrangements following Chapter 38 of Agenda 21, and in accordance with article 68 UN Charter. The Commission adopted a multi-year thematic programme of work. Each session reviewed different sectoral chapters in Agenda 21. They all considered cross-sectoral issues including finance, technology transfer, trade and the environment, and consumption and production patterns. The Special Session of the UN General Assembly met from 23-27 July 1997 (the so-called Earth Summit Plus 5). Among the decisions adopted at the Special Session was the CSD work programme for the following five years. It identifies sectoral, cross-sectoral and economic sector/major group themes for CSD 6-9 to consider. Overriding issues for each year will be poverty and consumption and production patterns. The CSD-6 to -10 agendas include the following: 1998: strategic approaches to freshwater management; transfer of technology, capacity-building, education, science, awareness-raising; industry; and the outstanding chapters of the Small Islands Developing States Programme of Action; 1999: oceans and seas; consumption and production patterns; and tourism; 2000: integrated planning and management of land resources; financial resources, trade and investment and economic growth and agriculture; 2001: atmosphere, energy and transport; and international cooperation for an enabling environment, information for decision-making and participation; 2002: comprehensive review.
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1. Organisation The organisation of the agreements' Secretariats highlights the continued role of the UN in institutionalising international environmental law. In deciding on how to perform the Secretariat's function under a modern international environmental agreement States Parties have the tendency to either resort to a unit of UNEP or to set up a specialised Secretariat linked to the United Nations Secretary-General.190 The choice of UNEP to perform the secretariat's function generally reflects the initiating and co-ordinating role that it had held before the particular agreement's conclusion.191 The specialised Secretariats of the Climate and Biodiversity Conventions are managed by an Executive Secretary, who is appointed by the Secretary-General of the United Nations after consulting the Conference of the Parties through its Bureau.192 The Executive Secretary reports to the Secretary-General on administrative and financial matters through the Under-Secretary-General for the Department of Management and on other matters through the UnderSecretary-General for the Department of Economic and Social Affairs. The administrative aspects of the linkage provide for the Secretariat to be administered according to United Nations regulations and rules on personnel and financial matters, thereby avoiding the need for States
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See under I. See Caron, see note 38, (766). Note by the Executive Secretary, Institutional Linkage of the Convention Secretariat to the United Nations FCCC/SBI/1999/7 of 16 April 1999: "5. The institutional linkage of the Convention Secretariat to the United Nations has its roots in the fact that the ad hoc and interim Secretariats from which the permanent Secretariat was derived were administratively located within a headquarters department of the United Nations Secretariat. Thus, for the first five years, Secretariat services to the Convention process were provided within a United Nations context according to United Nations rules and practices, drawing upon the support and cooperation of various departments, programmes and agencies in the United Nations family and enjoying access to related intergovernmental processes. In envisaging the nature of the permanent Secretariat of the Convention, it was felt desirable to continue this type of arrangement on account of its several advantages. Consequently, a formal institutional linkage was proposed by the Secretary-General of the United Nations and accepted by the Conference of the Parties by its decision 14/CP.l".
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Parties to develop their own rules.193 Financially, provisions from the UN regular budget of conference services for meetings of Convention bodies has resulted in considerable savings to the Convention budget. On the substantive side, the linkage encourages the Secretariats, as part of the UN family of organisations, to cooperate with other departments, programmes and agencies that have a capacity to contribute to work on climate change at the global, regional and national levels. A single Secretariat will serve the Meeting of the Parties and its subsidiary organs of the mother convention as well as that of any protocols.194 The Secretariats operate under the guidance of the Meetings of Parties, which may add to as well as remove from the Secretariats' functions.195 The Secretariats may be vested with functional international juridical personality, particularly for the conclusion of host state agreements.
2. Legislative Function With regard to the role of the Secretariat in the legislative function of modern international environmental agreements, initiation of decisionmaking by the Meetings of Parties, organisational preparation and informational preparation have to be distinguished. a. Organisational Preparation of Decision-Making by Meetings of Parties The Secretariats organisationally prepare a session of the Meetings of Parties.196 They thereby enjoy a strong position de facto if not de iure in 193
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Including matters such as staff entitlements, post classification standards and supervision by the internal and external auditors of the United Nations. See, e.g., article 14 para. 1 Kyoto Protocol. The Rotterdam Convention specifies that the Secretariat may be stripped of its competencies by a three-fourths majority of the Meeting of Parties "should it find that the Secretariat is not functioning as intended", article 19 para. 4. Article 8 para. 2 lit.(a) FCCC charges the Secretariat "to make arrangements for sessions of the Conference of the Parties and its subsidiary bodies established under the Convention and to provide them with services as required; lit.(b) to compile and transmit reports submitted to it".
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the decision-making process by preparing the agenda, presenting issues and organising preparatory work. In so doing, the Secretariats will, to a certain extent, be able to pre-structure the political process at the meetings of the Meeting of Parties. Rule 9 of the Climate Convention Rules of Procedure e.g., provides that, "in agreement with the President, the Secretariat shall draft the provisional agenda of each session". Most of the elements of the provisional agenda for the upcoming Meetings of Parties will also be on the agendas of the subsidiary bodies for the current session.197 Furthermore, the organisational power of the Secretariats extends to the important preparatory and committee work. In order to make progress in political issues, one response apparent at, e.g., the Biodiversity and Climate Conventions is the use of technical workshops to advance the preparations for discussions in the subsidiary bodies. The Secretariats exercise influence by summarising the results of the work of the subsidiary bodies and presenting introductory notes on submissions and papers of working groups or individual States Parties. The structure of the meetings of the treaty organs are, however, decided by the Meetings of Parties, which rules out any chance of the Secretariat gaining a de facto power over the rulemaking process by way of scheduling meetings. b. Initiating Decision-Making by Meetings of Parties Secretariats — different from the Meetings of Parties' subsidiary gans198 — have not been generally allowed to submit proposals in form of recommendations to the Meeting of Parties as the latter concerned about the position of sovereignty in the process.199 197
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orthe are Of
Thus, for the purpose of drawing up the provisional agenda for COP-5, the FCCC Secretariat has organised the elements of the Buenos Aires Plan of Action in five main groups: (a) Organisational and procedural matters; (b) Reports from the subsidiary bodies of the Convention on their work; (c) Convention implementation issues; (d) Preparations for the first session of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol; (e) Administrative and financial matters. Draft decision recommended by the Ad Hoc Group on article 13 for adoption by the Conference of the Parties at its 4th Sess., 13, Doc. FCCC/ AG13/1998/2 of 9 July 1998. S. Johnston, "The Convention on Biological Diversity: the next Phase", RECIEL 6 (1997), 219 et seq., (225). But see species proposals and results
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course, nothing stands in the way of doing that on the basis of a specific mandate (instruction) by the Meetings of Parties. While without formal power to make proposals, the Secretariats de facto have great leverage in phrasing the issues that the Meetings of Parties will decide on. An example is provided by 'activities implemented jointly' under the Climate Convention where the summary of issues prepared by the Secretariat200 shapes the corresponding decision by the Meeting of Parties.201
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for the 10th Conference of Parties to CITES on recommendations of the Secretariat. See, e.g., the Main Conclusions prepared by the Secretariat for the 5th Meeting of Parties to the Climate Convention on the issue of the Activities Implemented Jointly " [...] 7. Considering the type of project activities, the prevalence, in absolute numbers, of renewable energy (40) and of energy efficiency (36) projects is obvious. They are followed by forest preservation, reforestation or restoration (11) projects. These three types of activity account, for over 90 per cent of all projects, which is a percentage similar to that given in the first synthesis report. 8 (d) The quality of reporting can be improved. Further clarification and harmonisation of the elements and the process of reporting are needed. In this context, consideration may be given to the development of guidelines which provide definitions of terms and descriptor lists and which specify reporting requirements. 10. Concerning financial additionality, the findings are similar to those of the first synthesis report. The sources of funding, or the need to secure these, are often described in detail. In cases of multiple sources of funding, it appears important that reports describe financial additionality with regard to the financial obligations of Annex II Parties within the financial mechanism and current official development assistance flows. 14. In the context of the AIJ pilot phase, in which crediting of emission reductions was excluded, ensuring modalities for mutually beneficial incentive structures for participating Parties remains an issue for consideration. The anticipated early start to the CDM may provide additional impetus for this discussion. 15. The need to further clarify approaches to the methodological issues adopted by the SBSTA at its 5th Sess., emphasized in the first synthesis, is again underlined by the analysis of the much enlarged body of activities considered in this second synthesis. Priority areas for work on methodological, technical and institutional issues, which will also be of importance in the context of the project-based mechanisms of the Kyoto Protocol, include the following: 16. With a view to developing approaches on the above-mentioned issues, the Secretariat is undertaking a number of initiatives: (a) It is carrying out methodological work with a view to developing practical options for the determination of baselines/additionality, monitoring and reporting requirements, and the verification and certification process. This also includes work on harmonizing definitions. Options under consideration
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A stronger role is played by the Secretariat when it comes to preparing the informational basis for legislative decision-making by the Meetings of Parties. Under the Vienna Convention and the Montreal Protocol, the Secretariat receives and analyses data and information from the Parties on the production and consumption of Ozone Depleting Substances. It bases its reporting to the Working Group and the Meetings of the Parties on the information thus gained. Even more pronounced is the Secretariat's role under the Rotterdam Convention. The procedure for expanding the list for "severely hazardous pesticide formulations" subject to the PIC procedure requires a developing country or country with an economy in transition to make the initial proposal for inclusion in Annex III. It must provide specific types of information such as identification of the formulation and active ingredients, a clear description of incidents related to the problem, and any actions taken in response to such incidents. The Secretariat is then responsible for collecting additional information such as whether handling and applicator restrictions exist in other countries, incidents in other countries, and risk and hazard evaluations, where available. These are forwarded to the Chemical Review Committee, which decides whether to make a recommendation to the Meeting of Parties that the
201
were discussed at a workshop organised by the Secretariat in Abidjan (Cote d'lvoire) from 14 to!6 September 1998; (b) Modalities are being developed for addressing capacity-building needs in host and investor countries, in the private and public sectors and at national, regional and international levels. Emerging approaches were considered by stakeholders participating in a second workshop organised by the Secretariat, held in conjunction with the above one, also in Abidjan (Cote d'lvoire) from 17 to 18 September 1998; and (c) Finally, the Secretariat is participating in a series of workshops and seminars organised by other bodies on issues of monitoring, verification and certification and on lessons learnt from the AIJ pilot phase." Decision 6/CP.4 "Decides to continue the pilot phase, Invites Parties to continue to submit new reports or updates on activities implemented jointly ... Reiterates the invitation to Parties contained in Decision 10/CP.3 to provide inputs to the Secretariat, ... Decides to begin preparations for a review process of the pilot phase and requests the subsidiary bodies to address the process at their tenth sessions, with a view to the Conference of the Parties taking a conclusive decision on the pilot phase, and the progression beyond that, no later than the end of the present decade."
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severely hazardous pesticide formulation be listed in Annex III.202 While the decision-making authority on Annex III expansion remains with the Meeting of Parties, the Secretariat's information gathering is an indispensable step towards legislative action by the Meeting of Parties.
3. Executive Function The Secretariat of an international environmental agreement also performs an executive function. It administers the agreement and maintains relations with third agreements and their institutions. a. Administering the Agreement Secretariats partake in the direct and assist the indirect administration of international environmental agreements. Direct administration comprises administering implementing mechanisms and administering compliance mechanisms. The Secretariats play a key role in the functioning of those numerous agreements that have as an implementing mechanism lists of the species, substances or areas controlled.203 Such agreements require States Parties to provide information on national regulatory action that concerns the list to the Secretariat or to clearing houses,204 which will be updated and maintained by the Secretariat. Similarly, under the ozone regime, the 202
203
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The Committee's formulation is based on the reliability of the evidence linking the pesticide formulation to the reported incidents; the relevance of the incidents to other countries with similar climates, conditions, and patterns of use; whether handling or applicator restrictions in place in other countries require technology or techniques that may not reasonably be practical or feasible in developing countries and the significance of reported effects in relation to the quantity of the formulation used. See, e.g., African-Eurasian Waterbird Agreement, concluded pursuant to article IV of the Bonn Convention. Resolution 1.5 (AEWA/Res.l.5/Rev.l) establishes an international project register to facilitate training and technical and financial cooperation among parties and to coordinate measures to maintain a favourable conservation status for migratory waterbirds species. It requires the Technical Committee to approve new projects for inclusion and the AEWA Secretariat to act as depositary. The resolution gives a short description of each project and lists key partners. See article 20 Cartagena Protocol on: "Information-Sharing and the Biosafety Clearing-House".
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Secretariat receives and analyses data and information from the Parties on the production and consumption of Ozone Depleting Substances (ODSs). This important administrative function, however, does not necessarily have to be performed by the Secretariat, but may be exercised by a non-governmental organisation, as is the case under the Bonn Convention.205 In indirect administration, the Secretariats also facilitate compliance with it by States Parties, particularly by assisting developing country Parties, on request, in the compilation and communication of information required in accordance with the provisions of the convention,206 and by disseminating technology information.207 The Secretariats fur-
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Article 8 "1. The International Union for Conservation of Nature and Natural Resources shall perform the continuing bureau duties under this Convention [...]. 2.The continuing bureau duties shall be, inter alia: [..] b. to maintain the List of Wetlands of International Importance and to be informed by the Contracting Parties of any additions, extensions, deletions or restrictions concerning wetlands included in the List provided in accordance with paragraph 5 of Article 2; c.to be informed by the Contracting Parties of any changes in the ecological character of wetlands included in the List provided in accordance with paragraph 2 of Article 3; d.to forward notification of any alterations to the List, or changes in character of wetlands included therein, to all Contracting Parties and to arrange for these matters to be discussed at the next Conference; e.to make known to the Contracting Party concerned, the recommendations of the Conferences in respect of such alterations to the List or of changes in the character of wetlands included therein". E.g., article 7 FCCC. Clearly, the Secretariat is not alone in performing this taks. Early in its operation, the Implementation Committee under the Montreal Protocol provided a push to redirect resources and support for additional capacity-building through the various institutions supporting the implementation of the Protocol. The financial mechanism of the Climate Convention (operated through the GEF) also provides funding to needy countries with economies in transition to assist them with implementation of their reporting obligations. E.g., the 3rd Meeting of Parties to FCCC by its Decision 9/CP.3 requested the Convention Secretariat "to work on the synthesis and dissemination of information on environmentally sound technologies and know-how conducive to mitigating, and adapting to, climate change; for example by accelerating the development of methodologies for adaptation technologies, in particular decision tools to evaluate alternative adaptation strategies".
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thermore provide support to the financial mechanisms of modern international environmental agreements. b. Relations with Third Institutions A major concern of modern international environmental agreements is to prevent treaty congestion by co-ordinating efforts undertaken under the respective treaties.208 The Secretariats are charged "to ensure the necessary co-ordination with the Secretariats of other relevant international bodies" and "to enter, under the overall guidance of the Meetings of Parties" into "such administrative and contractual arrangements as may be required for the effective discharge of its functions".209 Vertically, the Secretariats are institutionally linked to the UN Secretariat.
4. Quasi-Judicial Function The Secretariats partake in the quasi-judicial function under modern international environmental agreements.
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Under the Biodiversity Convention, e.g., Decision IV/15 relates to "[t]he relationship of the convention with the Commission on Sustainable Development and biodiversity-related conventions, other international agreements, institutions and processes of relevance and in para. 10 states, that the Meeting of Parties emphasises that further work is required to help develop a common appreciation of the relationship between intellectual property rights and the relevant provisions of the Agreement on Trade-related Aspects of Intellectual Property Rights and the Convention on Biological Diversity, in particular on issues relating to technology transfer and conservation and sustainable use of biological diversity and the fair and equitable sharing of benefits arising out of the use of genetic re-sources, including the protection of knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity". The Meeting of Parties has discussed issues concerning access to genetic resources and benefit-sharing already at its 3rd Mtg in 1997 (Decision 111/15).
209
See, e.g., arts 7 para. 2 lit.(c, f) FCCC; 24 lit.(d) CBD; 23 lit.(e) CCD; 19 para. 2 lit.(e) Rotterdam.
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a. Enforcement The Secretariats may perform two functions in an international environmental agreement's quasi-judicial enforcement procedure: triggering the procedure and providing factual information. Secretariats are eligible to trigger the treaty's non-compliance procedure case under the Montreal Protocol and the common compliance regime for the Convention on Long-Range Transboundary Air Pollution and its eight protocols.210 Under several international environmental agreements, the Secretariats are the treaty organ charged with gathering the factual information relevant to the treaty's compliance system and forwarding it to the organ competent to assess and evaluate the facts. The prime source of factual information is still self-reporting by the States Parties addressed to the Secretariats. The Secretariats also participate in the in-depth review of national communications by expert teams as pioneered under the Climate Convention. According to article 8 para. 2 Kyoto Protocol the expert review teams shall be co-ordinated by the Secretariat and shall be composed of experts selected from those nominated by Parties and, as appropriate, by intergovernmental organisations, in accordance with guidance provided for this purpose by the Meeting of Parties. The teams undertake in-depth "paper" review and, with the prior approval of the State Party concerned, may conduct on-site visits.211 Under CITES, fact-finding is allotted to the IUCN as a nongovernmental organisation. It may conduct on-site inspections with prior approval by the State Party concerned. 210
211
Para. 3 of the Montreal Protocol Non-compliance procedure provides "[wjhere the Secretariat, during the course of preparing its report, becomes aware of possible non-compliance by any Party with its obligations under the Protocol, it may request the Party concerned to furnish necessary information about the matter. If there is no response from the Party concerned within three months or such longer period as the circumstances of the matter may require and the matter is not resolved through administrative action or through diplomatic contacts, the Secretariat shall include the matter in its report to the Meeting of the Parties pursuant to Article 12 (c) of the Protocol and inform the Implementation Committee, which shall consider the matter as soon as practicable." (Emphasis added). Under the Ramsar Convention more than 21 on-site inspections have been conducted, see C. de Klemm, "Natural Conservancy: Natural Lands and Biological Diversity", Yearbook of International Environmental Law 2 (1990), 187 etseq., (189).
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Both the initiating and the fact-gathering functions are essential to an effective, quasi-judicial non-compliance procedure. As states are reluctant to trigger such procedures against each other, it is an important step forward to provide the agreements' Secretariat with the corresponding competence. Modern international environmental agreements display a trend to strengthen the information gathering as a crucial element of an effective compliance system. The Secretariats play a central role in it, which is, however, increasingly a coordinating one. Other actors, particularly non-governmental organisations will and should be resorted to to gain a complete picture of the compliance situation. The practice of the committees established by international human rights treaties concluded under the auspices of the UN provides models for possible progress in this respect. b. Interpretation of Agreement The Secretariat also will provide independent legal opinion on the interpretation and application of the respective international environmental agreement.212 It may not, however, institute dispute settlement.
IV. International Commissions Much of these institutional developments of modern international environmental agreements had been pioneered by independent commissions developed from the 1950s on for the (regional) international administration of marine living resources and protection of the marine environment.213 Today, they hold solutions to some of the organisational, 212
See Note by the CITES Secretariat concerning Decision 10.2 Conditions for the disposal of ivory stocks and generating resources for conservation in African elephant range States: "This decision is in conflict with the text of the Convention. The mechanism for the transfer of species (including populations) from Appendix II to Appendix I is specified in Article XV of the Convention. Any such transfer can be done only if it is proposed by a Party and is agreed by the Conference of the Parties, either at a regular meeting or by the postal procedure, and will enter into force only 90 days after the proposal is adopted by the Conference. An appropriate action for the Standing Committee would be to request a Party (such as the Depositary Government) to submit the required proposal".
213
For an overview of the numerous commissions, see UN Secretary-General, Annual Report to the UN General Assembly, Doc. A/53/456.
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and legislative as well as outstanding judicial issues of the institutional development under modern international environmental agreements.
1. Organisation The institutional structure of treaties specifically concerned with the protection of a given marine environment is very similar.214 The Paris and Oslo Conventions have been replaced by the 1992 Convention on the Protection of the Marine Environment of the Northeast Atlantic (OSPAR).215 Upon its entry into force in 1998, the Helsinki Convention, which concerns the Baltic Sea, had been substantially revised by a 1992 treaty of the same name.216 To accomplish their aims, the conventions call for action to curb various sources of pollution. The principal organ in every instance is a Commission,217 consisting of a representa214
215
216
217
See K. von Moltke, "International Commissions and Implementation of International Environmental Law", in: J. Carroll (ed.), International Environmental Diplomacy, 1988, 87 et seq. 22 September 1992, ILM 32 (1993), 1072; the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic — hereinafter referred to as OSPAR — entered into force on 25 March 1998. Contracting Parties to the Convention are Belgium, Denmark, European Community, Finland, France, Germany, Iceland, Ireland, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and United Kingdom. Convention on the Protection of the Marine Environment of the Baltic Sea Area of 9 April 1992, BGBl. 1994 II, 1397. Contracting Parties to RELCOM are Denmark, Estonia, European Community, Finland, Germany, Latvia, Lithuania, Poland, Russia and Sweden. For the purposes of this Convention the "Baltic Sea Area" includes the internal waters. Article 10 OSPAR. According to article 10, the Commission shall act in seven areas: supervise the implementation of the Convention; generally review the condition of the maritime area, the effectiveness of the measures being adopted, the priorities and the need for any additional or different measures; draw up, in accordance with the General Obligations of the Convention, programmes and measures for the prevention and elimination of pollution and for the control of activities which may, directly or indirectly, adversely affect the maritime area; such programmes and measures may, when appropriate, include economic instruments; establish at regular intervals its programme of work; set up such subsidiary bodies as it considers necessary and to define their terms of reference; consider and, where appropriate, adopt proposals for the amendment of the Convention in ac-
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tive of each State Party. The Commissions meet at varying levels of representation from the States Parties, the ministerial meeting being the forum for taking the most important decisions. The Commissions have established a number of expert bodies such as the Standing Advisory Committee for Scientific Advice of OSPAR, and common working groups such as the Joint Monitoring Group and the Joint Group of Chairmen and Vicechairmen. Both Commissions also have a joint Secretariat, which is a unit of the IMO in London. The Law of the Sea Convention, as implemented in particular by the Fish Stocks Agreement, covers and balances the uses of the sea. It turns regional organisations into functional agencies for the implementation of the Convention's environmental principles and provisions.218
2. Legislative Function Article 10 OSPAR establishes a Commission. The Commission has a legislative function, and the corresponding competencies and powers. The Commission exercises its rulemaking function through the various legislative instruments with specific requirements for (majority) voting and entry into force. The instruments are: amendment of the Convention, adoption of an Annex,219 amendment of an Annex,220 adoption of
218
219
220
cordance with arts 15, 16, 17, 18, 19 and 27 of OSPAR; discharge the functions conferred by arts 21 and 23 of OSPAR and such other functions as may be appropriate under the terms of the Convention. See International Tribunal for the Law of the Sea, Order for Provisional Measures — The Southern Bluefin Tuna, (Nos. 3 and 4) Cases — 27 August 1999. The Tribunal makes clear that States Parties are bound by the Convention's environmental provisions, in particular article 116, when negotiating within a fishing commission. The Fish Stocks Agreement explicitly obliges States Parties to seek implementation through regional organisations and management schemes. The Commission shall adopt any Annex referred to in article 7 by a threequarters majority vote of the Contracting Parties, article 16 para. 1. The Commission shall adopt amendments to any Annex by a three-quarters majority vote of the Contracting Parties bound by that Annex. If the amendment of an Annex is related to an amendment of the Convention, the amendment of the Annex shall be governed by the same provisions as apply to the amendment to the Convention.
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an Appendix,221 amendment of an Appendix,222 and decisions. Recommendation are non-binding.223 The competence to use these powers correlates to the importance of the matter regulated.224 Thus, regulation of the areas of activity requires an Annex. For technical approaches an Appendix will be resorted to, and subject-specific questions of implementation may be addressed by way of a decision. Article 13 OSPAR deals with the entry into force of decisions adopted. According to its second paragraph decisions will enter into force for the Parties having voted for it — providing this includes the three-quarters quorum — on the expiry of a period of 200 days.225 A State Party may opt out of this binding effect, though, by timely notification. All decisions adopted by the Commission shall, where appropriate, contain provisions specifying the timetable by which the decision shall be implemented. Allowing for enhanced cooperation among some States Parties, decisions concerning 221
According to article 18 the procedure for adoption depends on whether the proposed Appendix is related to an amendment to the Convention or an Annex, or to an Annex to the Convention. 222 According to article 19, the Commission shall adopt the amendment to an Appendix by a three-quarters majority vote of the Contracting Parties bound by that Appendix. An amendment to an Appendix shall enter into force on the expiry of a period of 200 days after its adoption for those Contracting Parties which are bound by that Appendix and have not within that period notified the Depository Government in writing that they are unable to accept that amendment, provided that at the expiry of that period three-quarters of the Contracting Parties bound by that Appendix have either voted for the amendment or have notified the Depository Government in writing that they are able to accept the amendment. 223 Article 15 para. 2, 1st sentence. 224 f^e 1998 Ministerial Meeting of the OSPAR Commission was held in conjunction with the 1998 annual meeting of the Commission in Sintra (Portugal) on 22-23 July 1998. The main products of the meeting are a new Annex to the 1992 OSPAR Convention concerning the protection and conservation of the ecosystems and biological diversity of the maritime area covered by the Convention and a related Appendix and a Decision on the disposal of disused offshore installations. 225 Article 11 Vienna Convention on the Law of Treaties provides that "The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed". Thus, if a decision does not set forth a specific mode for States Parties to express their consent to be bound in, it has to be assumed that the adoption as such also carries the requisite consent of the States Parties supporting the decision.
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any Annex or Appendix shall be taken only by the Contracting Parties bound by the Annex or Appendix concerned. As pointed out above,226 international environmental agreements in general are silent on how the Meeting of Parties is to proceed in exercising the subject-specific decision-making competencies conferred onto it by the treaties, leaving it for the plenary organ to make the necessary arrangements in the Rules of Procedure. OSPAR marks an exception, stipulating in article 13 para. 1 that decisions and recommendations, notwithstanding the provisions for (non-subject-specific) amendments and Annexes, shall be adopted by unanimous vote, and, if unanimity is not attainable, by a three-quarters majority vote of the States Parties. A further issue unresolved by international environmental agreements is whether any normative decisions are directly applicable in the States Parties or need to be transposed. An interesting solution is provided by article 2 para. 1 Annex 1 of OSPAR227, which requires that States Parties shall, in allowing point source discharges to the maritime area, "implement relevant decisions of the Commissions which bind the relevant Contracting Party". Therefore, here, the Commission's decisions are to be applied by the States Parties' executives by virtue of being binding for the State Party in question. Thus, relevant decisions are binding, valid in the States Parties' legal order, and immediately applicable (self-executing).
3. Judicial Function The Commissions include performance of a judicial function. a. Enforcement With regard to compliance, the OSPAR Commission shall, on the basis of the periodical reports, "assess" their compliance with the Convention and the decisions and recommendations adopted thereunder; when appropriate, it shall decide upon and call for steps to bring about full compliance with the Convention, and decisions adopted thereunder, and promote the implementation of recommendations, including meas-
226
See under II. 2. c.
227
On the Prevention and Elimination of Pollution from Land-Based Sources, see article 3 OSPAR.
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ures to assist a Contracting Party to carry out its obligations. Furthermore the Convention provides for compulsory dispute settlement. Any disputes between Contracting Parties relating to the interpretation or application of the Convention, which cannot be settled otherwise by the Contracting Parties concerned shall, at the request of any of those Contracting Parties, be submitted to arbitration under the conditions laid down in article 32. Unless the parties to the dispute decide otherwise, the procedure of the arbitration shall be in accordance with paras 3 to 10 of this article. At the request addressed by one Contracting Party to another Contracting Party, an arbitral tribunal shall be constituted. The request for arbitration shall state the subject matter of the application including, in particular, the articles of the Convention, the interpretation or application which is in dispute. The arbitral tribunal shall consist of three members. Both a Party's arbitrator and the chairman of the arbitral tribunal may, by default, be designated by the President of the ICJ. The arbitral tribunal shall decide according to the rules of international law and, in particular, those of the Convention. The arbitral tribunal may take all appropriate measures in order to establish the facts. It may, at the request of one of the parties, recommend essential interim measures of protection. Any Contracting Party that has an interest of a legal nature in the subject matter of the dispute which may be affected by the decision in the case, may intervene in the proceedings with the consent of the tribunal. The applicant Party shall inform the Commission that it has requested the setting up of an arbitral tribunal, stating the name of the party to the dispute and the articles of the Convention the interpretation or application of which, in its opinion, is in dispute. The Commission shall forward the information thus received to all Contracting Parties to the Convention. Under OSPAR, a State Party may thus resort to compulsory dispute settlement to enforce another Party's compliance with any obligation under the Convention, including the obligation to submit periodical reports. The question of how to fit the traditional third-party dispute settlement with the compliance procedure of a modern international environmental agreement has thus been addressed by OSPAR. b. Interpretation and Application of the Treaty The fact that UNCLOS provides an umbrella under which the International Commissions act, opens up the dispute settlement mechanism of the Convention for the interpretation of any international commission treaty. The International Tribunal for the Law of the Sea has decided in
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the Southern Blue/in Tuna Cases22* that the dispute settlement procedure of Part XV of the Convention can be invoked at least if the procedure provided for in the international commission treaty does not lead to a binding decision. The competent tribunal will interpret the relevant provisions of the Convention,229 which is the supreme law,230 and thus guide the interpretation and application of the international commission treaty.
V. Conclusions The institutional developments discussed above establish an innovative process of making and enforcing law whose effectiveness and legitimacy creates a strong pull-effect on the way towards universalising the respective treaty regimes.231 They provide the international community with a model for tackling questions of sustainable development. The objective of administering a natural resource corresponds to an institutionalised process of permanent or continuing decisionmaking.232 The Meetings of Parties, as the supreme treaty organ, are competent to adopt binding normative decisions on reforming and implementing the agreement as well as standard setting. The Meetings of Parties also perform executive, quasi-judicial and policy-setting functions. They are assisted by a Secretariat. The allocation of powers and competencies amounting to legislative, executive, quasi-judicial and gubernatorial functions to a specific organisational design constitutes the process of law-making and enforcement under modern international 228
Southern Bluefin Tuna Cases, see note 218.
229
In particular Part XII UNCLOS containing the precautionary approach, which extends to States Parties activities in all sea zones.
230
Article 311 UNCLOS.
231
See on the conditions for universality of environmental and other multilateral treaties R. Wolfram, "Vorbereitende Willensbildung und der Entscheidungsproze£ beim Abschlufi multilateraler volkerrechtlicher Vertrage", in: Festschrift Dietrich Rauschning (forthcoming).
232
According to Duverger, institutions refers to a system of relationships that may not manifest themselves in formal organisations of brick and mortar, a headed notepaper, a ready acronym and an international staff. An institutional framework adds, however, stability, durability and cohesiveness to individual relationships which otherwise might be sporadic, ephemeral and unstable, see M. Duverger, The Study of Politics, 1972, 68.
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environmental agreements. International Commissions illustrate ways and means for the possible further development of institutionalised international environmental agreements. These institutional developments taken together with the complementary action by national legislative, executive and judiciary organs yield the institutional structure of the governance of the international environmental problematique. The institutional developments constitute a new centralised method of approaching the global environmental prohlematique, which combines identifying common interests233 with establishing a flexible institutional framework to set forth rules and ensure compliance with the latter. The concept of "common concern of humankind"234 points to the deeper rationale of the said method. The "common concern" formula does not in itself create legally binding obligations other than those specifically set forth in the relevant instrument. Rather, it conceptualises the fact that States Parties, as a community, administer the resource through the institutional framework of the agreements.235 Acting as a community, States Parties adhere to a centralized process of decisionmaking in which all states may participate236 yet which is marked by an embryonic form of majority voting. The international community thus becomes an agent which itself disposes of legislative, executive and quasi-judicial functions and which has an operational mode of its own. 233
234
235
236
On this notion see, e.g., J. Brunnee, "'Common Interest' — Echoes from an Empty Shell? — Some Thoughts on Common Interest and International Environmental Law", ZaoRV 49 (1989), 791 et seq. Neither the General Assembly resolutions nor the UNCED international environmental agreements provide an authoritative definition of the term "common concern". Climate and Biodiversity Conventions recognise that the "change in the Earth's climate and its adverse effects" as well as the "conservation of biological diversity" are the "common concern of humankind". Although the Montreal Protocol does not make specific reference to the concept of common concern of humankind it does recognise the obligation to take appropriate measures to "protect human health", and acknowledges that reductions in "world-wide emissions" of ozonedepleting substances will require international co-operation. Also, the more recent adaptations of the law of the sea, refer, e.g., to fisheries on the high seas as "common concern of humankind". See Wolfrum, see note 160, (151 et seq.), pointing out that in international environmental law states enforce the community, not the individual state interest. Delbriick, see note 140; J. Charney, "Universal International Law", AJIL 87 (1993), 529 et seq., (544 et seq.).
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Its operational mode is itinerant in nature in that it relies heavily on the State Party hosting the meeting. And it relies on each State Party mobilising its national bureaucracy to prepare for the sessions of the Meetings of Parties and to take the necessary implementing action. The international community thus becomes an actor in the international system aside from international organisations and individual states. The international community's ability to form a will of its own through the Meetings of Parties makes it necessary to rethink the traditional definition of an international organisation.237 Meetings of Parties can, as well as the organs of international organisations, occasionally take majority decisions. The main difference appears to be the degree to which the institution is rendered independent in its operational mode. The international environmental agreements considered here are different from the treaties constituting traditional international organisations in that they do not bring about a separate entity with defined objectives and approaches, finite instruments and a premium on stability. International organisations are fixed in place and equipped to operate independently of the Member States' input. Large, and expensive, Secretariats headed by a strong Director-General are required for such an operation. The institutions of international environmental agreements only have a lean operational base of their own. Yet they perform functions that few, if any, international organisations can match. International organisations as the structured form of international cooperation thus become more varied in appearance. In addition to international organisations, international administrative unions238 and international negotiating conferences, there are now institutionalised international agreements. 237
238
See H. Schermers/N. Blokker, International Institutional Law: Unity within Diversity, 3 rd edition 1995, 23: "[FJorms of cooperation founded on an international agreement creating at least one organ with a will of its own, established under international law."; R. Bindschedler, "International Organisations, General Aspects", in: R. Bernhardt (ed.), EPIL, Instalment, 2 (1995), 1289 provides the following definition: "[A]n association of States established and based upon a treaty, which pursues common aims and which has its own special organs to fulfil particular functions within the organisation". Some authors require international legal personality for there to be an international organisation, see A. El Erian, "The Legal Organization of International Society", in: M. Soerensen (ed.), Manual of Public International Law, 1968, 68. See R. Wolfrum, "International Administrative Unions", in: R. Bernhardt (ed.), EPIL 5 (1983), 42 et seq.
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Underlying the institutional developments discussed are considerations of effectiveness and legitimacy.239 The institutional developments are designed to ensure effectiveness by rapid progressive development of the treaty legal order instead of having to go through the cumbersome amendment procedure, a progressive development whose application and compliance with is secured. The institutional machinery of modern international environmental agreements allowed to react to changing circumstances and to incrementally designing appropriate legal instruments. The Meeting of Parties ideally is able to pull together different strands, enable different interest groups to define components of success and thus to enlist their commitment and, because of its potentially high public profile, to provide impetus and momentum. The high profile creates the transparency that lets failures by States Parties to achieve results be sanctioned in the court of national as well as international public opinion. Efficiency reserves can be tapped by spontaneously bringing existing institutions' comparative strengths to bear on a given problem of the international environment. For the UN's substantive policies on the environment — within the concept of sustainable development — to succeed, highly innovative and pragmatic moves on the institutional level have to be considered. Consequently, modern international environmental agreements reflect a marked tendency away from a hierarchical and towards a rational conception of the institutional side of the law of co-operation.240 The effectiveness achieved through the institutional developments discussed also addresses the issue of the legitimacy of a state's involvement in the environmental regime. The moral high ground that environmental protection efforts claim and the considerable economic resources to be committed to the treaty can be maintained only if they are seen to produce an effect on the international environmental problematique. The specific legitimacy that control by states over the decisionmaking process entails also makes the involvement of larger swathes of the national business and other communities possible. Classical interna-
239
240
States Parties' motives for the institudonalisation (and correspondingly its speed and degree) will, of course, be specific in each instance of international lawmaking in the field of the environment. R. Dolzer, "Konzeption, Finanzierung und Durchfuhrung des globalen Umweltschutzes", in: Liber Amicomm, see note 64, 37 et seq., (61), pointing out that the global environmental law is the most tangible manifestation of the paradigm shift from the law of co-ordination to the law of cooperation.
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tional organisations with ability to form a will of their own, typically a limited membership body, and often a separate legal personality, tend to be seen to be costly and prone to institutional auto-dynamics. In the last analysis legitimacy will come to depend on democracy. The presence of genuinely self-motivated non-governmental organisations of different persuasions on the international sphere is a necessary step in this direction, as competition from the larger number of interests will be become more protective of freedom.241 But this horizontal aspects complement the much stronger vertical democratic legitimacy that the very fact that states — and their governments — play such a direct and visible role in the decision-making process. They are accountable for their action in this process in the court of national opinion. International environmental agreements, for the reason that they are concerned with producing the public good of a clean environment, aspire at universality of membership.242 However, since free-riding on the efforts of the States Parties constitutes rational behaviour for any state non-Party, the need for providing the latter with an incentive to join arises. One approach used to this effect is for the States Parties to engage in trade sanctions against the absentees. However, this approach raises concerns on several fronts.243 Capacity building and compliance assistance establish incentives to join the agreement for a limited constituency only. Therefore, international environmental agreements increasingly rely on the effect of the bandwagon, which states will feel the need to jump on. To borrow a conceptualization from the process of European integration: the treaties will widen as and because they are deepening. The more legitimately effective the making and enforcement of decision, the more coherent the resulting legal order, and the more substantial the areas concerned, the more states non-Parties will feel they have to join the agreement to have a say in its further development. The institutional developments discussed here provide a model to be transposed to other areas of sustainable development. The fact that much of the institutional development under modern international envi-
241
242
243
Cf. J. Madison, Federalist Paper No. 51 (reprint Philadelphia 1826, at 292 et seq.). See on the conditions for universality of environmental and other multilateral treaties Wo If rum, see note 231. See R. Hudec, "The GATT/WTO Dispute Settlement Process: Can It Reconcile Trade Rules and Environmental Needs", in: R. Wolf rum (ed.), see note 44, 123 et seq.; W. Lang, "Trade Restrictions as a Means of Enforcing Compliance with International Environmental Law", ibid., 265 et seq.
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ronmental agreements was pioneered by International Commissions and was then taken up in the successive generations of agreements confirms the workings of a process through which institutional innovations are diffused within the international system. States Parties to modern international environmental agreements confirm through their practice that "sustainable development" has an institutional as well as substantive side.244 In Gabcikovo245 the ICJ has made clear that the general international law of the environment translates normatively into procedural obligations. Indeed, the implementation of purposes and principles of international environmental law, as they stand after UNCED, depend on their being concretised and fleshed out in an institutional framework striving for universal participation.246 There are clear signs of the attractiveness of the model of institutionalised cooperation that modern international environmental agreements provide. One instance of such "spill-over" of these developments in more traditional areas of international law is that the States Parties to the UN Convention on the Law of the Sea recently decided to establish a 'Meeting of States Parties' endowed with decision-making competencies of the kind explored here.247 The developments with regard to the international protection of forests confirm that states have a clear preference for institutionalised treaties as the basis for administration of natural resources. This is illustrated by the developments with regard to the international protection of forests. At UNCED states adopted the so-called forest principles, a "soft-law instrument", and set up the 'Intergovernmental Panel on Forest Principles' under the auspices of the Commission on Sustainable Development, later transformed into the 'International Forum on Forests' (IFF). The 4th Sess. of the IFF has now decided to found an inter244
245
246
247
Programme for the Further Implementation of Agenda 21, June 1997, A/RES/S-19/2 of 28 June 1997 (adopted at the Earth Summit Plus 5), para. 118: "The conferences of the parties to [1.] conventions signed at UNCED or [2.] as a result of it, as well as [3.] other conventions related to sustainable development [...]". International Court of Justice, Judgement of 25 September 1997, Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia). International environmental agreements address such urgent needs of the international community that their very object necessitates compliance by all states. See Charney, see note 236, (529 et seq.); Delbriick, see note 140. See UN General Assembly, 54th Sess., Agenda items 40(a) and (c) Oceans and the Law of the Sea: Law of the Sea; results of the review by the Commission on Sustainable Development of the sectoral theme of "oceans and seas", Report of the UN Secretary-General, Doc. A/54/429, paras 62-67.
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governmental body, possibly called UN Forum on Forests, that will be empowered to act very much like a Meeting of Parties on the basis of an internationally legally binding instrument to be concluded within five years.248
248
See Earth Negotiations Bulletin of 14 February 2000, 8.
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The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity Riidiger Wolfrum/Nele
Matz
I. Introduction In response to a growing sensitivity concerning the protection of the environment, international environmental law has in recent years been faced with a proliferation of multilateral treaties. International environmental law is in a stage of progressive development; new international treaties respond to modern insights on the existence and nature of threats to the environment. As a result of the growing number of new and existing agreements environmental instruments often overlap with regard to their subject and scope. When addressing certain issues the agreements' underlying philosophy and objectives may differ as well as actions taken or envisaged thereunder. Although this lack of coherency was to be expected, however, mitigation measures or efforts to prevent future overlaps and potential collisions are underdeveloped. The following article does not intend to deal with the subject in general but focuses on the specific interplay of the United Nations Convention on the Law of the Sea of 19821 and the Convention on Biological Diversity of 1992.2
1 2
7ZJf 21 (1982), 1261 etseq. 7ZJf 31(1992), 818 et seq. 445
J.A. Frowein and R. Wolfrwn (eds.), Max Planck Yearbook of United Nations Law, 445-480. © 2000 Kluwer Law International. Printed in the Netherlands.
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The existing discrepancies and gaps may create problems concerning an effective conservation and management of marine life. The scope of both instruments overlaps to some extent as far as marine living resources are concerned. However, principles, objectives and approaches concerning management and conservation differ. The protection of genetic resources with a view to maintaining genetic diversity and the sampling of genetic resources for scientific reasons is not directly addressed by the Convention on the Law of the Sea. Whether the regime on living resources includes the regulation of marine genetic resources is subject to some argument. The protection of living resources from over-exploitation indirectly protects the respective genetic resources. As unsustainable fisheries can reduce genetic diversity by changing population characteristics, the protection of sustainable yields indirectly promotes the genetic variability of the targeted species. Yet, as the Convention refers to living resources with the implicit meaning of fisheries or in a conservation sense, microbial genetic diversity in the deep sea-bed like those organisms found in hydrothermal vents might be outside the Convention's ambit. Hence, an unknown variety of marine genetic resources would not even indirectly be protected by the Convention. From the perspective of substantial environmental protection as to some extent provided for in the Convention on the Law of the Sea, one can argue in favour of a generally inclusive interpretation. Apart from that, the provisions on marine scientific research may be able to add to a system of management of genetic resources. Several authors having approached the problem of management and conservation of marine genetic resources, so far, have argued that neither the Convention on the Law of the Sea nor the Convention on Biological Diversity provide adequate protection for genetic resources of the high seas or of the international deep sea-bed and its subsoil and that the international community should take respective actions.3 OthD.K. Anton, "Law for the Sea's Biological Diversity", Colum. J. Transnat'l L. 36 (1997/98), 341 et seq., (365 et seq.); L. Glowka, "The Depth of Ironies: Genetic Resources Marine Scientific Research and the Area", Ocean Yearbook 12 (1996), 154 et seq. The International Sea-bed Authority has at least realized that the biodiversity of the deep sea-bed requires protection against possible negative effects from deep sea-bed mining (see Report of the Secretary-General of the International Sea-bed Authority under article 166 para. 4 of the United Nations Convention on the Law of the Sea (Doc. SBA/5/A/1, of 28 July 1999, para. 37 et seq.).
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ers have concentrated on the efforts under the Convention on Biological Diversity to improve upon the protection of marine biological diversity.4 This article, taking into consideration their underlying philosophies and objectives, will establish whether and to what extent the two instruments, including 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, 1995 (1995 Agreement on Fish Stocks),5 provide for an adequate protection of marine biological — and especially genetic — resources and which of the instruments prevails in this respect. The aspect of precedence and balancing of the conventions requires not only an assessment of the rules under the respective instruments but also of the rules in international law governing the interpretation of international treaties, respectively of the Vienna Convention on the Law of Treaties.6
A.Ch. de Fontaubert/D.R. Downs/T.S. Agardy, "Biodiversity in the Seas: Implementing the Convention on Biological Diversity in Marine Coastal Habitats", Geo. Int'l Envtl. L. Rev. 10 (1997/98), 753 et seq. ILM 34 (1995), 1547 et seq. Further instruments are the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 1993 and the Code of Conduct for Responsible Fisheries, adopted at the 28th Sess. of the FAO Conference (Res. 4/95). On the relationship of these instruments with the Convention on the Law of the Sea see W. Edeson, "Towards Long-Term Sustainable Use: Some Recent Developments in the Legal Regime of Fisheries", in: A. Boyle/D. Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges, 1999, 165 et seq.; on the interface between the Convention on the Law of the Sea and Agenda 21 see A. Yankov, "The Law of the Sea Convention and Agenda 21: Marine Environmental Implications", ibid., 271 et seq., (273 et seq.). UNTS Vol.1155 No. 18232.
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II. Management and Protection of Marine Living and Genetic Resources under the UN Convention on the Law of the Sea 1. The Provisions on Marine Living Resources under the Regime of the UN Convention on the Law of the Sea As far as the management and conservation of marine living resources is concerned, the Convention on the Law of the Sea provides for three different regimes, one on fishing in territorial as well as archipelagic waters, one on fishing in the exclusive economic zones and another one on high seas fishing. Both are based on a different approach concerning their implementation since marine living resources in waters under national jurisdiction are managed by the Coastal State concerned, whereas the management and protection of marine living resources of the high seas is vested in those states whose nationals are fishing the respective area.7 These two latter regimes have been supplemented and further connected by the 1995 Agreement on Fish Stocks. Apart from that, several international agreements on the universal or the regional level dealing with various aspects of exploitation, management and conservation of marine living resources have been adopted.8 In the territorial as well as in archipelagic waters Coastal States exercise exclusive sovereignty over the management of the respective marine living resources. The relevant provisions of the Convention on the Law of the Sea dealing explicitly with the exploitation of living resources refrain from giving any indication as to which policy should be pursued by the Coastal States in this respect. This failure, in principle, opens the way for the application of conservation measures according to the Convention on Biological Diversity. However, as will be discussed below, Part XII of the Convention on the Law of the Sea, dealing with the protection and preservation of the marine environment, gives further guidance on policies for species protection. R. Wolfrum, "The Protection of the Marine Environment after the Rio Conference: Progress or Stalemate?", in: U. Beyerlin et al. (ed.), Recht zwischen Umbruch und Bewahrung - Festschrift fur Rudolf Bernhardt, 1995, 1003 et seq., (1007 et seq.). See for example the Convention on the Conservation of Antarctic Marine Living Resources, ILM 19 (1980), 841 et seq.; the 1989 Wellington Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific, ILM 29 (1990), 1454 et seq.
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The situation is different as far as the exclusive economic zone is concerned. According to article 56 of the Convention on the Law of the Sea, in the exclusive economic zone the Coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing natural resources, whether living or non-living. This general rule faces two limitations, one concerning straddling stocks and highly migratory species,9 and the other one concerning the conservation and management policy to be pursued by Coastal States. According to arts 61 and 62 Convention on the Law of the Sea, the management, and in particular the conservation, of marine living resources in the exclusive economic zone is not completely left to the discretion of the Coastal States concerned. Contrary to the territorial and archipelagic waters Coastal States are under an obligation to establish an appropriate management and conservation regime. Article 61 Convention on the Law of the Sea provides for some guidance as to the content of such a conservation regime. In general, this provision obliges Coastal States to abide by two principles, namely, to protect marine living resources against over-exploitation (para. 2) and to maintain and restore populations of harvested species at levels which can produce the maximum sustainable yield (para. 3). In defining the maximum sustainable yield the relevant environmental and economic factors may be taken into account. The environmental factors referred to in para. 3, and further specified in para. 4, are the interdependence of stocks (i.e. the effect exploitation has on species associated with or dependent upon harvested species) and generally recommended international minimum standards. The effect fisheries have on species and marine ecosystems due to ecological interdependency is considerable; stock depletion affects inter alia coral reefs, mangroves, estuaries as well as mammal species and turtles.10 By taking
9
10
See arts 63 and 64 Convention on the Law of the Sea, respectively. These provisions place a duty on the Coastal State and the respective Distant Water States to seek agreement on the management of the respective fish stocks. This embraces an obligation to negotiate. The ICJ has emphasized in the North Sea Continental Shelf Cases that "the Parties are under obligation to enter into negotiations with a view to arriving at an agreement... they are under an obligation so to conduct themselves that the negotiations are meaningful" (ICJ Reports 1969, 3 et seq., (47 at para. 85 (a)). Thus the regime on highly migratory species and straddling stocks under the Convention on the Law of the Sea provides for a solution through procedural means rather than by establishing substantive standards. A. Rengifo, "Protection of Marine Biodiversity: A New Generation of Fisheries Agreements", RECIEL 6 (1997), 313 et seq.
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into account the effect of exploitation on dependent and associated species the Convention on the Law of the Sea has taken a first step towards an ecosystem approach. The guidance provided for by the Convention on the Law of the Sea concerning the management regime is less explicit. It is for the Coastal State to establish its capacity to harvest the living resources of the exclusive economic zone and to decide whether it gives access thereto to other states. Although the second sentence of article 62 para. 2 Convention on the Law of the Sea is phrased in mandatory terms, the Coastal States' obligation to open access for other states to the surplus can not be enforced. Article 297 para. 3 lit.(a) Convention on the Law of the Sea qualifies the respective powers of Coastal States as being of a discretionary nature. The protection of the diversity of ecosystems referred to above, as opposed to the mere protection of species, encompasses not only the species composing communities but also the interactions between the species and the physical structures of the ecosystem.11 The ecosystem approach as applied vis-a-vis marine living resources means in general that biological and ecological interactions between species as well as such interactions between stocks, in the same as well as in neighbouring jurisdictional zones, and the ecological conditions of the physical surroundings have to be reflected in the fishery policy. Dependent and associated species to those protected for human exploitation are addressed by the Convention on the Law of the Sea, yet, they represent only a small percentage of all living organisms that build the marine community in an ecosystem. The physical structures and conditions of ecosystems are not referred to at all in article 61 Convention on the Law of the Sea. Since fishing alters the relative abundance of species in marine communities and, additionally, fishing gear can physically destroy or alter habitats and disrupt bottom-dwelling communities,12 ecosystems can be significantly changed, even if policies comply with the provisions of the Convention on the Law of the Sea on the interdependence of species. Other expressions of the opening of the Convention on the Law of the Sea towards an ecosystem approach are to be found in article 196 para. 1 on the introduction of alien species into ma11
12
S. ludicello/M. Lytle, "Marine biodiversity and international law: instruments and institutions that can be used to conserve marine biological diversity internationally", Tulane Envtl. L. ]. 8 (1994), 124 et seq. A. Rieser, "International Fisheries Law, Overfishing and Marine Biodiversity", Geo. Int'l Envtl. L Rev. 9 (1997), 251 et seq., (254); G. Rose, "Marine Biodiversity Protection through Fisheries Management — International Legal Developments", RECIEL 8 (1999), 284.
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rine ecosystems and in article 194 para. 5 that provides for the protection of fragile marine ecosystems. In spite of these indications pointing towards the application of elements of an ecosystem approach, neither the regime on marine living resources nor the one on the protection of the marine environment of the Convention on the Law of the Sea are based upon the ecosystem approach. This is quite astonishing since the earlier Convention on the Conservation of Antarctic Marine Living Resources of 198013 is clearly based thereon. The 1995 Agreement on Fish Stocks which implements arts 63 and 64 Convention on the Law of the Sea is more clearly based upon the ecosystem approach still, it mitigates the situation for specific species or stocks only. This is the area where the regime on fisheries of the Convention on the Law of the Sea and the Convention on Biological Diversity differ. With regard to the further protection of marine living resources according to the Convention on the Law of the Sea, the general rules of Part XII of the Convention dealing with the protection and preservation of the marine environment are applicable to the formulation of the national fishery policy in the territorial waters, the archipelagic waters and the exclusive economic zone. Although Part XII of the Convention does not explicitly refer to fishing as an activity which requires regulation to fulfil the commitments entered into under this Part, the wording of several of its provisions shows clearly that its general principles are fully applicable. This has been confirmed by the International Tribunal for the Law of the Sea in 1999.14 Article 193 Convention on the Law of the Sea emphasises that the sovereign right to exploit marine living resources does not release states from the obligation to protect and preserve the marine environment. The respective obligations accordingly represent a limit to the exercise of sovereign rights. In contrast to the first impression, the preservation and protection of the marine environment, including the management and protection of marine living resources, is thus not fully left to the discretion of the states concerned. Part XII contains one concrete provision on the protection and preservation of marine living resources, namely article 194 para. 5. According to it, measures are to be taken to protect and preserve rare or fragile
13 14
See note 8. Order of 27 August 1999, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Requests for Provisional Measures, ILM 38 (1999), 1624 et seq.; in para. 70 thereof the Tribunal states that "... the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment".
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ecosystems as well as depleted, threatened or endangered species and other forms of marine life. This provision is not to be understood as to require reactive measures only, but to call additionally for preventive action.15 The situation is different for the continental shelf as compared to the regime on fisheries in the exclusive economic zone. Although the regime on the continental shelf covers some marine living resources, namely sedentary species,16 it does not provide for guidance concerning their management and conservation. Taking into account the different legal nature of the continental shelf and the exclusive economic zone, it is not appropriate to apply article 61 Convention on the Law of the Sea by way of analogy. Although both areas are to some extent treated as subject to the same provisions, as far as marine scientific research is concerned, an otherwise clear distinction must be respected. Accordingly, the rights and duties of Coastal States concerning the management and conservation of sedentary species are analogous to those concerning marine living resources in the territorial sea and in archipelagic waters. However, species covered by the continental shelf regime fall under the protection provided by the general principles in Part XII of the Convention on the Law of the Sea. The regime concerning the conservation and management of marine living resources on the high seas differs from the one for marine living resources in exclusive economic zones only as far as implementation is concerned, not, however, concerning the standards to be applied. Article 119 para. 1 lit.(a) and (b), the provision on conservation of living resources of the high seas which limits the freedom of fishing as set out in article 116 Convention on the Law of the Sea,17 corresponds to article 61 paras 3 and 4 Convention on the Law of the Sea. These provisions require states whose nationals are engaged in fishing on the high seas to maintain or restore populations of harvested species at levels which can 15 16
17
Wolfram, see note 7, 1009. The notion of 'sedentary species' is defined in article 77 para. 4 Convention on the Law of the Sea. The formulation of article 116 already emphasises that the freedom of fishing on the high seas is limited. These limitations derive from Section 2 of Part VII Convention on the Law of the Sea on conservation and management of the living resources of the high seas, the obligations under other international agreements and the respect for the rights and interests of Coastal States. As to the development of the legal regime governing high seas fisheries see D. Nelson, "The Development of the Legal Regime of High Sea Fisheries", in: Boyle/Freestone , see note 5,113.
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produce the maximum sustainable yield as qualified by relevant environmental and economic factors. In determining such factors, the special requirements of developing countries, the existing fishing patterns, the interdependence of stocks and generally recommended international minimum standards are to be taken into account. As under the regime on the exclusive economic zone, states have to take into consideration the effects on species associated with or dependent upon harvested species; such species are to be kept above levels where their reproduction is seriously threatened. The 1995 Agreement on Fish Stocks constitutes a supplementation to the regime on fishing of the Convention on the Law of the Sea.18 It provides for a more detailed regulation and is on the one hand to some extent wider concerning the underlying approach but on the other hand is consistent with the Convention on the Law of the Sea.19 The drafting and final adoption of the Convention on the Law of the Sea was triggered by the decline of several fish stocks, the lack of coordination of national fishery policies and policies concerning the management and conservation of fish stocks on the high seas and, in particular, the lack of compliance control and enforcement of international standards concerning high seas fishing. The main feature of the 1995 Agreement on Fish Stocks is that it seeks to ensure a harmonious development of coherent conservation and management measures for the high seas and the exclusive economic zone, based upon cooperation.20 Some guidance is given to that extent. For example, states must take into account the biological unity and other biological characteristics of the stocks and the relationship between the distribution of the stocks, the fisheries and the geographical particularities of the region concerned. The reference to the notion of "biological unity" emphasises that the Agreement is more clearly based upon the ecosystem approach than the Convention on the Law of the Sea. The Agreement provides for conservation and management measures for species belonging to the same ecosystem as the protected straddling and highly migratory fish stocks.21 Furthermore, the protection of biodiversity in the marine environment is one of its objectives. The diversity of ecosystems can be regarded as one
18
See note 5. The interpretation of arts 63 and 64 of the Convention on the Law of the Sea has been a source of some controversy; for further details see Nelson, see note 17, 123.
19
Rengifo, see note 10, 318. See arts 7 and 8 of the 1995 Agreement on Fish Stocks.
20 21
Article 5 lit.(e) of the 1995 Agreement on Fish Stocks.
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component of biodiversity; the 1995 Agreement on Fish Stocks, however, does not give any definition of the term. This leaves some room for respective decisions or regulations implementing this Agreement. They can further elaborate on the interplay between the protection of ecosystems and the protection of biological diversity. In addition to the partial incorporation of an ecosystem approach, the Agreement relies heavily upon the precautionary approach.22 The emphasis put on precaution, the protection of ecosystems and sustainability of high seas fishing makes the 1995 Fish Stocks Agreement one of the "new generation" of sustainable fishery agreements.23 Although the 1995 Agreement has retained the concept of maximum sustainable yield as a valid reference point, it does not face the same critique as the respective provisions of the Convention on the Law of the Sea. This reference point is to be considered a limiting reference point which constrains utilization within safe biological limits.24 Particularly problematic is the status of marine living resources of the deep sea-bed — the so-called Area. Since not more than one per cent of the photosynthetically produced carbon in offshore waters reaches the deep sea-bed it is considered to be sparsely populated.25 Particular interest has in recent years been attached to living communities developed in connection with hydrothermal vents. These organisms do not depend on plant photosynthesis but on the primary productivity of chemosynthetic bacteria able to synthesise organic compounds from carbon dioxide, using energy derived from hydrogen sulphide dissolved in the hydrothermal fluid emanating from the vents. Other biological communities have been discovered in petroleum seeps, sedimentpore water seeps and in deep anoxic basins along oceanic margins.26 Due to the adverse conditions under which these organisms have evolved they have developed characteristics like e.g. heat resistance that makes them particularly interesting for all different aspects of research: basic research, applied scientific research and biotechnological use.27 Part XI of the Convention on the Law of the Sea, dealing with the deep sea-bed and its resources, does not contain provisions concerning marine living 22
23 24 25 26 27
Article 5 lit.(c) in connection with article 6 of the 1995 Agreement on Fish Stocks. Rengifo, see note 10, 313. See Nelson, see note 17, 126/127 with further references. Glowka, see note 3, 156 with further references. Glowka, see note 3, 157. G. Henne, Genetische Vielfalt als Ressource, 1998, 327.
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resources. In fact, article 133 lit.(a) Convention on the Law of the Sea conceives "resources" to mean only mineral resources in whichever form. This means that the regime for the exploration and exploitation of the mineral resources of the Area which is based upon the common heritage principle is not applicable to marine living resources of the deep sea-bed. Its provisions concerning access, sharing of benefits and cooperation of states and private entities with other states and with the International Sea-bed Authority do not apply. The limitation of the regime for the Area to mineral resources is due to the fact that at the time of its adoption there was little knowledge on marine biological resources of the deep sea-bed and the interest concentrated on the economic potential of exploiting polymetallic nodules. No need was felt to provide for a particular regime for marine living resources of the deep sea-bed. Accordingly, the marine living resources of the deep sea-bed are covered by the high seas regime on management and conservation of marine living resources and by the general principles of Part XII Convention on the Law of the Sea; yet it is doubtful whether the said legal rules are appropriate. Although the scope of the regime can be broadened, since article 162 para. 2 lit.(o) (ii) Convention on the Law of the Sea provides for the respective institutional competence to establish rules on other than polymetallic nodules, this would not cover biological resources - at least not directly. The reference to "resources" in this provision has to be understood in the light of the legal definition in article 133 lit.(a) Convention on the Law of the Sea which limits the scope of Part XI, and, consequently, the jurisdictional power of the International Sea-bed Authority concerning the management of mineral resources. When the Representative of the Russian Federation on 17 August 199828 requested the elaboration thereunder of rules and regulations on hydrothermal vents this was meant to cover polymetallic sulphides rather than marine living resources of hydrothermal vents. Nevertheless such rules and regulations may be useful for the management of genetic resources of hydrothermal vents. The International Seabed Authority, when establishing a regime on the mineral resources of hydrothermal vents, is under an obligation to provide for a protection of the respective marine living resources against negative consequences of an exploration and exploitation of the former. This will not, though, amount to a management system concerning marine living resources and thus will fall short of the management system possible for terres-
28
See Doc. ISBA/4/A/CRP.2 of 24 August 1998.
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trial biological diversity under the Convention on Biological Diversity. Nevertheless, it may result in some protection.
2. Genetic Resources and Marine Scientific Research under the UN Convention on the Law of the Sea The collection of samples for marine genetic research does not take the form of exploitation as used in the context of fishing. In this respect, it resembles more scientific research activities than commercial fishing although both activities are undertaken for commercial ends. There is no likelihood under the present system of bioprospecting that respective activities lead to overexploitation or have the same negative impacts on marine living resources as witnessed concerning the use of modern fishing techniques and equipment. As a consequence, it has to be considered whether the provisions of the Convention on the Law of the Sea on scientific research offer applicable and appropriate mechanisms for the management of genetic research on marine living resources. According to article 238 Convention on the Law of the Sea, all states have the right to conduct marine scientific research subject to the rights and duties of other states. In general terms the expression "marine scientific research" is most often used to describe activities to expand scientific knowledge of the marine environment and its processes and includes inter alia oceanography, marine biology, marine chemistry, scientific ocean drilling and coring, geological and geophysical surveying.29 Jurisdiction of Coastal States over foreign marine scientific research depends on the maritime zone in which it is conducted as well as on the nature of the research activity. The Convention vests particular rights in Coastal States based upon the distribution of jurisdictional powers concerning the territorial sea, the exclusive economic zone and the continental shelf.30 In the territorial sea the Coastal States have the exclusive 29
30
J.A. Roach, "Marine Scientific Research and the New Law of the Sea", ODILA 27 (1996), 59 et seq., (60). For the drafting history of the regime on marine scientific research see A.H.A. Soons, Marine Scientific Research and the Law of the Sea, 1982, 154 et seq.; as to an assessment of the regime see, amongst others, W. Plessmann/V. Roben, "Marine Scientific Research: State Practice v. Law of the Sea?", in: R. Wolfrum (ed.), Law of the Sea at the Crossroads: The Continuing Search for a Universally Accepted Regime, 1991, 373 et seq.; R.
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right to regulate, authorise and conduct marine scientific research. Any marine scientific research by other states or international organisations or nationals of other states may be conducted only with the express consent and subject to the conditions of the Coastal State concerned.31 The Coastal States are under no obligation to provide access to marine resources of the territorial sea for genetic research nor are they under any obligation to facilitate such access. Further, the Convention on the Law of the Sea expressly states that passage through territorial waters for the purpose of carrying out research activities does not qualify as innocent passage.32 As to the exclusive economic zone and the continental shelf, the Coastal State concerned has jurisdiction with respect to marine scientific research; however, its authority is subject to limitation, if compared with the regime in the territorial sea and archipelagic waters. Marine scientific research may only be conducted with the express consent of the Coastal State concerned but, as opposed to the provisions concerning the territorial waters, states can be obliged to grant this consent. Article 246 paras 3-5 Convention on the Law of the Sea distinguishes between scientific research to increase the knowledge on the marine environment (purely scientific research) and scientific research which is of direct significance for the exploration and exploitation of the natural resources of the given exclusive economic zone or the continental shelf. In the latter case the Coastal State may withhold its consent subject to state discretion, whereas in the former the state is, under normal circumstances, obliged to grant permission. The objective of this provision is to make the regime on marine scientific research compatible with the regime concerning the use of the exclusive economic zone and the con-
31 32
Wolfrum, "Der Schutz der Meeresforschung im Volkerrecht", GYIL 19 (1976), 99 et seq.; T. Treves, "Principe du consentement et nouveau regime juridique de la recherche scientific marine", in: D. Bardonnet/M. Virally (eds), Le nouveau droit de la, mer, 1983, 268 et seq.; Roach, see note 29, 59; on the relationship of marine scientific research and intellectual property rights see M. Gorina-Ysern, "Marine scientific research activities as the legal basis for intellectual property claims?", Marine Policy 22 (1998), 337 et seq., practical guidance for the implementation of the respective provisions of the Convention on the Law of the Sea is provided by the UN Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: Marine Scientific Research — A Guide to the Implementation of the Relevant Provisions of the United Nations Convention on the Law of the Sea, 1991. Article 245 Convention on the Law of the Sea. Article 19 para. 2 lit. (j) Convention on the Law of the Sea.
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tinental shelf. Since bioprospecting is not meant to exclusively increase the general scientific knowledge on the environment of a given zone, but rather is commercial-use oriented, it should come under article 246 para. 5 Convention on the Law of the Sea. That is to say, the Coastal State concerned may withhold its consent and it is under no obligation to facilitate access to genetic resource in its exclusive economic zone.33 The same is valid for access to genetic resources located on the continental shelf as far as this area does not extend beyond 200 nautical miles from the baselines. For projects to be conducted on the continental shelf beyond the 200 mile limit states can only exercise their discretion to withhold consent for research projects if they have publicly designated the area in question as an area "in which exploitation or detailed exploratory operations focused on those areas" are occurring or about to occur in a reasonable period of time.34 As far as the high seas are concerned the conduct of marine scientific research is free.35 Equally free is marine scientific research concerning the Area.36 Research on marine biological resources of the deep sea-bed does not come under the jurisdiction of the International Sea-bed Authority since its jurisdictional power does not extend to marine living resources of the Area.37 The provisions of the Convention on the Law of the Sea on marine scientific research are predominantly aiming at a distribution of jurisdictional powers rather than at the protection of the research object and at the distribution of benefits resulting from such research. The only general duty States parties to the Convention have is to promote and facilitate marine scientific research as such, according to article 239. This obligation does not even allow the conclusion that research by foreign national scientists must be facilitated. Regulations for the promo33
34 35 36
37
Henne, see note 27, 328; different G. Verhoosel, "Prospecting for Marine and Coastal Biodiversity: International Law in Deep Water", International Journal of Marine and Coastal Law 13 (1998), 100 et seq. who seems to qualify bioprospecting as purely scientific research. The whole issue is, however, somewhat futile since Coastal States enjoy considerable discretion in qualifying research as being application oriented or purely scientific. The means to challenge the exercise of the respective discretionary power is limited (article 297 para. 2 lit.(b) Convention on the Law of the Sea). Article 246 para. 6 Convention on the Law of the Sea. Article 238 in connection with article 87 Convention on the Law of the Sea. Article 256 in connection with article 143 Convention on the Law of the Sea. See above at I.I.
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tion of marine scientific research can be focused on conditions for national scientists and still comply with article 239 of the Convention on the Law of the Sea. There is no customary law of the sea that deals with genetic resources or access thereto. Therefore, they do not cover the scope covered by the Convention on Biological Diversity.
III. Management and Protection of Marine Living and Genetic Resources under the Convention on Biological Diversity The Convention on Biological Diversity reflects an integrated approach concerning the protection of biological diversity in providing for the conservation of biological resources, the protection of ecosystems and by obliging States parties to adopt and implement the principle of sustainability in the use of biological resources. The Convention applies to terrestrial as well as marine environments and, accordingly, to terrestrial as well as marine living and genetic resources. The ecosystem approach is most clearly promoted since, according to article 2 Convention on Biological Diversity, biological diversity means the variability among living organisms, including the diversity within species, between species and of ecosystems. Applied to the marine environment the term refers to the variability of organisms as indicated and to the marine ecosystems' diversity in a state, a region or the world.38 The negotiations preceding the conclusion of the Convention on Biological Diversity had almost exclusively focused on terrestrial biological diversity; marine and coastal biodiversity were introduced later in the negotiating process and never intensively discussed.39 The issue was, however, taken up by the Conference of the Parties to the Convention on Biological Diversity at its second session in Jakarta 1995. The Conference expressed deep concern "... at the serious threats to marine and coastal biodiversity caused by factors, including physical alteration, destruction and degradation of habitats, pollution, invasion of alien species, and over-exploitation of living and marine coastal resources." It endorsed a work program elaborated by the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) which focused on 38
The definition given by Ch.C. Joyner, "Biodiversity in the Marine Environment: Resource Implications for the Law of the Sea", Vand. J. Transnat'l L. 28 (1995), 635 et seq., (638 is somewhat wider).
39
Verhoosel, see note 33, 91.
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five thematic issue areas: integrated marine and coastal area management; marine and coastal protected areas; sustainable use of marine and coastal living resources; mariculture; and alien species.40 Three primary objectives, namely the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits derived from the utilisation of genetic resources (article 1) are the focus of the Convention. States parties are encouraged to cooperate through competent international organisations to achieve the said objectives of the Convention. In the case of the marine environment several international organisations already exist which may serve as an appropriate forum, such as the IMO, the International Whaling Commission as well as regional or species oriented organisations. The Convention states that contracting parties must pursue the conservation of biological diversity by establishing a system of protection areas or areas where special measures need to be taken to conserve biological diversity and promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings (article 8). Contracting parties are also required to rehabilitate and restore degraded ecosystems and to promote the recovery of threatened species (article 8 lit.(f)). To achieve these objectives the Convention provides for a network of trade-offs. States hosting genetic resources may bargain access to genetic resources against the sharing of benefits41 derived from their use. The possibility of benefiting from the
40
41
See Report of the 2nd Mtg. of the Conference of the Parties, Annex II, Decision 11/10, Doc. UNEP/CBD/2/19. This program, the so-called Jakarta Mandate on Marine and Coastal Biological Diversity, remained on the agenda of the Conference of the Parties since then, see for example the Report of the Executive Secretary on the implementation of the programme of "work on marine and coastal biological diversity on the occasion of the 4th Conference of the Parties, 1998, Doc. UNEP/CBD/COP/4/5. See arts 15, 16 and 19; such benefits may, for example, include participation in scientific research (article 15 para. 6); the fair and equitable sharing of research results (article 15 para. 7); participation in commercial and other benefits derived from genetic resources (article 15 para. 7); access to, and transfer of, technology making use of the genetic resources provided (article 16 para. 3) and access to the results and benefits arising from biotechnologies based upon genetic resources provided (article 19 para. 2). Access for and transfer for technology that is relevant to the conservation and sustainable use of biological diversity (article 16 para. 1) shall be provided for, not as a matter of benefit sharing but rather as an undertaking under
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utilisation of genetic resources in itself is meant to constitute an incentive for the conservation of biological diversity and to ensure that biological resources under the jurisdiction of the host state are used in a sustainable manner. To stabilise a system of access and benefit-sharing several provisions of the Convention on Biological Diversity restate that states have sovereign rights over and the sovereign right to exploit their biological resources.42 This principle is, however, to a certain extent balanced by the statement in the Preamble of the Convention that biological diversity has an intrinsic value and that the conservation of biological diversity is the common concern of humankind and by the commitment entered into in article 15 para. 2 Convention on Biological Diversity that each contracting party shall endeavour to create conditions to facilitate access to genetic resources. Albeit from another point of view both, national sovereignty over genetic resources and the obligation to facilitate access, are necessary elements to make the incentive based system established by the Convention on Biological Diversity a viable means. Two provisions in the Convention on Biological Diversity are of central significance for the creation of conflicts between both agreements as well as for their conciliation: article 4 and article 22 Convention on Biological Diversity. Since article 4 regulates the scope of application according to national sovereignty, the distinction of different marine zones of national sovereignty and competence according to the Convention on the Law of the Sea have a crucial effect on the scope of the Convention on Biological Diversity. Article 4 contains an important limitation of the Convention's scope; it requires a differentiation between areas under national jurisdiction of a state and areas beyond, that
42
the common responsibility of all States parties to promote the protection of biological diversity. The fourth preambular paragraph and article 15 para. 1 reaffirms that states have sovereign rights over their own biological resources, whereas article 3 Convention on Biological Diversity refers to the sovereign right to exploit such resources. This reference to national sovereignty concerning natural resources, in fact, paraphrases a principle frequently voiced in resolutions or declarations of the United Nations General Assembly such as A/RES/2542 (XXIV) of 11 December 1969, Declaration on Social Progress and Development (article 3 lit.(d)); A/RES/3281 (XXIX) of 12 December 1974, Charter of Economic Rights and Duties of States (article 2) as well as in Principle 21 of the Declaration of Stockholm although the objective pursued by including this principle in the Declaration of Stockholm differed from the one previously pursued with this principle.
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is to say under national jurisdiction of another state or areas beyond the limits of national jurisdiction. Maritime areas under national jurisdiction are the archipelagic waters, the territorial waters, the exclusive economic zones and the continental shelves. In areas under national jurisdiction the Convention applies to "components of biological diversity". With respect to areas beyond national jurisdiction States parties are obliged to cooperate either directly or through competent international organisations concerning the conservation of components of biological diversity. Additionally, each State party is responsible for processes and activities regardless of where their effects occur, namely in areas under national jurisdiction, beyond national jurisdiction or in areas under the jurisdiction of another state (not necessarily a State party of the Convention on Biological Diversity).43 It is evident that the "processes and activities" referred to are only those having been undertaken under the jurisdiction (not necessarily territorial) of the given state. The decisive element of article 4 lit.(b) Convention on Biological Diversity is that it distinguishes between where the process or activity took place and the place of its impact. The differentiation between components of biological diversity on the one hand and processes and activities potentially harmful to biological diversity on the other, has been considered arbitrary.44 The exclusion of the direct protection of components of biological diversity outside areas of national jurisdiction e.g. the high sea, reflects existing international law concerning the exercise of state jurisdiction. Based upon its territorial sovereignty a state can determine the rules concerning management and use of resources within its territory which includes the land and the territorial waters. As far as resources are concerned the respective state according to the Convention on the Law of the Sea and international customary law exercises jurisdictional power in respect of the exclusive economic zone and the continental shelf. The jurisdictional power extends to components of biological diversity as well as processes and activities that may affect them. The emphasis of
43
44
It must be acknowledged, however, that this implication would have been clearer, if article 4 lit.(b) had not only referred to "areas of its national jurisdiction", but also continued to say-or beyond the limits of its national jurisdiction-. L. Glowka/F. Burhenne-Guilmin/H. Synge in collaboration with J.A. McNeely/L. Giindling, A Guide to the Convention on Biological Diversity, 1994, 27; Glowka, see note 3,165.
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article 4 lit.(b) of the Convention on Biological Diversity that it is of no relevance where such effects materialise — in areas under the jurisdiction of that or another state or in areas beyond national jurisdiction — reflects the general obligation under arts 192 and 195 Convention on the Law of the Sea. According to these provisions states have to protect and preserve the marine environment — which includes marine biological diversity — and not to transfer damages or hazards from one jurisdictional area to another. As a result of the thematic and geographical scope the application of its provisions to the marine area can bring the Convention on Biological Diversity into conflict with the Convention on the Law of the Sea. This potential conflict of legal instruments has been foreseen and it has been found necessary to enshrine in the Convention on Biological Diversity a provision (article 22 para. 2) which is meant to solve such conflict. Article 22 para. 2 Convention on Biological Diversity rules that the Convention on Biological Diversity shall be implemented "... consistently with the rights and obligations of States under the law of the sea." This provision carries the obligation of States parties to implement the Convention on Biological Diversity in accordance with, and subject to, international customary law of the sea and the provisions of the Convention on the Law of the Sea, but only to the extent it would have a limiting effect upon the obligations and rights states enjoy thereunder.45 The reference to "rights and obligations of States" rather than to the law of the sea as such, mandates the question whether this is to be understood as a limitation, since the Convention on the Law of the Sea is more than a network of rights and obligations of states. It is meant to establish, in particular, in respect of the management of the Area and the protection of the marine environment, a substantive legal regime. The interpretation of article 22 para. 2 of the Convention on Biological Diversity is crucial for the question raised here. A purely literal reading suggests that the Law of the Sea is not superior to the Convention on Biological Diversity, but that only the respective rights and obligations are preserved. We shall return to this issue in the Conclusions.
45
Therefore, the assessment given by Joyner, see note 38, 650, is too broad. See also in this respect the article of Vigni in this Volume.
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IV. A Comparison of the Regimes on the Protection of Marine Biological Resources under the UN Convention on the Law of the Sea and the Convention on Biological Diversity The regimes described so far differ in several respects. Fundamental differences relate to the underlying philosophies of the Conventions and their respective focus and structure. This has consequences for the approach to the protection of marine living and genetic resources as well as to marine scientific research and access to genetic resources for scientific reasons i.e. for bioprospecting, respectively.
1. The Protection of Marine Living Resources - Discrepancies and Similarities The regime on marine living resources under the Convention on the Law of the Sea — and this is true for resources in areas under national jurisdiction as well as for areas beyond — are predominantly exploitation oriented. The Convention focuses on marine living resources harvested for human consumption or other human use. The emphasis is put upon upholding a maximum sustainable yield of stocks and to protect the resources in question against overexploitation. In contrast to this feature the protection of other stocks or species, in particular those that compete with human activities in the utilisation of harvested stocks, is weak. Both Conventions, the Convention on the Law of the Sea as well as the Convention on Biological Diversity, are clearly based upon an anthropocentric approach, yet with different implications due to the underlying scope, objectives and targets in time. The Convention on the Law of the Sea aims at short term efforts to secure stocks valuable for human consumption, whereas the Convention on Biological Diversity includes in its concept the potential needs of future generation as well as the recognition of an intrinsic value of biodiversity. As a result it aims at comprehensive long term efforts that protect all components of biological diversity and not only those that are momentarily considered valuable. Therefore the Convention on the Law of the Sea may be qualified as being resource oriented, whereas the Convention on Biodiversity focuses — generally speaking — on long term species and habitat preservation. The 1995 Agreement on Fish Stocks in this respect links both described approaches. On the one hand, the instrument
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is still resource orientated and refers to the concept of maximum sustainable yield, while, on the other hand it incorporates an ecosystem and precautionary approach and emphasises the determination to ensure the long-term conservation and sustainable use of fish stocks;46 aims which are compatible with those of the Convention on Biological Diversity.47 Article 8 lit.(d) Convention on Biological Diversity strives — amongst other things — for the maintenance of viable populations in natural surroundings. A "viable" population can be defined as one which maintains its genetic diversity, its potential for evolutionary adaptation and faces minimal risk of extinction from demographic fluctuations, environmental variation and potential catastrophe, including over-use.48 To ensure such status, conservation actions, in particular recovery programs, may be called for to ensure either the survival of species or the continued existence of those habitats that are critical for the survival of certain species. This is where the Convention on Biological Diversity and the Convention on the Law of the Sea differ. Both oblige States parties either under the principle of maximum sustainable yield or under the principle of viable population to keep stocks on a level which not only guarantees their survival but also their development. However, according to the Convention on Biological Diversity this obligation refers to the marine life in general, whereas under the Convention on the Law of the Sea it refers to harvested stocks only. The 1995 Agreement on Fish Stocks has improved this situation, however, mainly in respect of additional stocks and not to marine life in general.49 Accordingly, the management and protection requirements of the Convention on Biological Diversity concerning marine living resources exceeds those under the law of the sea regime. Since the significant increase in marine catch and the resulting over-exploitation of living resources is one of the major ecological impacts on the marine environment,50 the traditional approach to achieve sustainable yields from ex46 47 48 49
50
See article 2 of the 1995 Agreement on Fish Stocks. Rengifo, see note 10, 318. Doc. UNEP/CBD/COP/2/12 para. 39. Out of the number of fish stocks that have reached their yield limit, however, many species are classified as straddling and highly migratory stocks, see Rengifo, see note 10, 314. The other major factor responsible for habitat destruction and the resulting loss of species is pollution from land-based sources that affect inter alia ecosystems of extreme richness near the coasts such as estuaries, mangroves or coral reefs.
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ploited fish stocks only, must be questioned in favour of a modern more comprehensive approach.51 The Convention on Biological Diversity and, to a limited extent, the Agreement on Fish Stocks reflect a modern approach that includes ecosystem and habitat protection and, as a result, aims at long term conservation of marine living resources rather than striving to safeguard short-term economic interests. Another area of discrepancy derives from the conservation obligations under the Convention on Biological Diversity. The implementation of the obligation to provide for protected areas, to promote the protection of ecosystem and natural habitats and to rehabilitate and to restore degraded ecosystems may come — and in the case of the establishment of protected areas which intend to exclude shipping necessarily comes into conflict with the Coastal States' obligation to allow innocent passage in the territorial sea or in archipelagic waters, to respect the right of archipelagic sea lanes passage, of transit passage and the freedom of navigation in the exclusive economic zones. The conflict between different uses of the maritime area, as between areas of environmental protection and freedom of navigation, is just one example of a variety of competing uses of the sea and coastal waters.52 According to the Conference of the Parties of the Convention on Biological Diversity the selection of marine and coastal protected areas, within the framework of integrated marine and coastal area management, shall focus on critical habitats for marine living resources.53 Specific areas of environmental protection are not explicitly envisioned by the Convention on the Law of the Sea. States can take measures "... necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life"54, yet such measures must not be an "unjustifiable interference with activities carried out by other states in the exercise of their rights and in pursuance of their duties in conformity with this Convention".55 51
52
53 54 55
As a result Rieser, see note 12, 251, proposes that international fisheries legal norms take into account the wider, ecological impacts of fishing. Other conflicts include a clash of interests between fisheries and oil or gas exploration, between recreational use and accidents that result from transport e.g. tanker spills, conflicts between aquacultures and traditional capture fisheries etc.; see B.A. Vestal, "Dueling with boat oars, dragging through mooring lines: time for more formal resolution of use conflicts in States' coastal waters?", Ocean & Coastal L. J. 4 (1999), 1 et seq., (2). Annex I to Decision 11/10, Doc. UNEP/CBD/COP/2/19. Article 194 para. 5 Convention on the Law of the Sea. Article 194 para. 4 Convention on the Law of the Sea.
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Whether areas for habitat protection are an "unjustifiable interference" is subject to interpretation. However, given the importance that the right of innocent passage claims throughout the Convention, it is unlikely that areas that exclude ships from innocent passage can be established. The Coastal States may adopt laws and regulations in respect of the preservation of the environment.56 This right is balanced, however, by article 24 para. 1 lit.(a) Convention on the Law of the Sea according to which a Coastal State shall not impose regulations on foreign ships which have the practical effect of denying or impairing innocent passage. Although this provision is meant to cover different situations, it indicates at least that the establishment of protected areas from which shipping is totally excluded would be contrary to the objective of the Convention on the Law of the Sea and would, as a result, be considered unjustifiable. The situation is not different in respect of archipelagic waters; article 52 para. 2 Convention on the Law of the Sea makes it quite clear that the interruption of innocent passage is possible only under exceptional circumstances, if at all. As far as archipelagic sea lane passage, transit passage or the freedom of navigation in exclusive economic zones are concerned Coastal States under the Convention of the Law of the Sea do not have the right to establish protected areas as mandated under the Convention on Biological Diversity, if they result in curtailing the freedom of navigation as provided for under the Convention on the Law of the Sea for these zones. However, many activities that are capable of depleting marine living resources in protected areas, such as fishing or the catch of living resources for scientific research, can be prohibited because they are not covered by the activities considered to come under "innocent passage".57 The same applies to wilful pollution activities capable of destroying critical habitats that are conducted in the respective protected areas.58 It follows that at least some activities adverse to marine ecosystem protection can be excluded from protected areas in the territorial waters without interfering with the freedom of navigation. The Convention on Biological Diversity does not define the term "protected areas". Although certain measures must be undertaken to fulfil the commitment to establish and manage protected areas, the Convention does not oblige States parties to establish areas that are free from any human 56 57 58
Article 21 para. 1 lit.(f) Convention on the Law of the Sea. Article 19 para. 2 lit.(i) and lit. (j) Convention on the Law of the Sea. Article 19 para. 2 lit.(h) Convention on the Law of the Sea.
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use.59 As a consequence, there is not necessarily a conflict of obligations between the Conventions but a conflict of objectives or targets. From the perspective of environmental protection, however, conflicts of objectives often have the same negative effect as conflicts that arise from incompatible obligations and result in insufficient protection regimes. The meeting of Experts on Marine and Coastal Biological Diversity considered, at its first meeting, the establishment of marine protected areas concerning certain high seas and deep sea-bed areas e.g. deep ocean trenches or certain hydrothermal vents.60 The establishment of such areas is not covered by the Convention on Biological Diversity and conflicts with the regime of freedom of the high seas under the law of the sea. Since no state can claim sovereignty over parts of the high seas and there is no international organisation that governs the high seas water column, there is no power to establish any form of a formally protected area. Any agreement on such areas can only be founded on a respective consent of the states involved and will only be binding upon them. There is, however, one area where the Convention on Biological Diversity may enforce the regime on marine living resources under the Convention on the Law of the Sea. Since states, according to the Convention on Biological Diversity, are obliged to protect the components of biodiversity in areas under their jurisdiction, this may limit the discretionary powers of the Coastal States, in particular in respect of the protection of marine living resources in the territorial waters and the archipelagic waters. The situation in respect of hydrothermal vents in the Area is rather complicated. Although the International Sea-bed Authority has no power to manage the living resources of these vents, it may deal with the mineral resources thereof. Therefore, measures taken to protect such living resources will have to accommodate possible mineral activities and vice versa. Due to the intensive interrelationship of marine life in hydrothermal vents, it will be difficult to reconcile a regime on the exploration of the mineral resources of these vents with a protective system for marine life. 59
60
The Conference of the Parties on the occasion of its 2nd Mtg. suggests to establish a system of protected areas of different categories and to develop guidelines for the establishment and management of those areas, without giving further details on their actual management and use, Doc. UNEP/CBD/COP/2/12 para. 31; the Report of the Executive Secretary on the implementation of the programme of work on marine and coastal biological diversity at the 4th Conference of the Parties does not exclude the sustainable use of protected areas, Doc. UNEP/CBD/COP/4/5 para. 44. Doc. UNEP/CBD/JM/Expert/1/5, Annex V, Section IV, C.
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The obligation to cooperate with other states in the conservation and management of marine living resources in the highs seas, as provided for in article 118 Convention on the Law of the Seas, is compatible with the provision in article 5 Convention on Biological Diversity that calls for state cooperation in respect of areas beyond national jurisdiction. These corresponding duties to cooperate might be a major mechanism for a future coordinated approach to the protection of marine resources.
2. A Comparison Concerning the Use and Protection of Marine Genetic Resources Both conventions have in common that the States parties' sovereignty over genetic resources is assured in the coastal waters and the exclusive economic zone. However, both instruments differ considerably concerning the protection of and access to genetic resources, and respectively, concerning marine genetic research. Whereas the Convention on the Law of the Sea does not directly protect genetic resources at all and regulates them only indirectly by its provisions on living resources and scientific research, the Convention on Biological Diversity considers genetic resources, their protection and use as one of the central considerations in biodiversity protection. As already discussed, there is no obligation to facilitate access to genetic resources in the territorial waters or exclusive economic zone under the law of the sea, whereas article 15 para. 2 of the Convention on Biological Diversity — one of the essential structural elements of the framework for biodiversity protection — calls for the facilitation of access, stating that states "... shall endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other contracting parties and not to impose restrictions that run counter to the objectives of this Convention". Although article 15 Convention on Biological Diversity does not oblige States parties to grant access to genetic resources, its provisions go further than the Convention on the Law of the Sea. The obligation not to impose restrictions that run counter the objectives of the Convention is of special significance. One of the objectives is to protect biodiversity via the incentive to make use of genetic resources and to share benefits with and transfer technology to developing countries of origin. A rigorous restriction of access to genetic resources of the territorial waters and the archipelagic waters runs counter the objectives as the system of access, benefit shar-
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ing and cooperation i.e. an incentive based framework of protection, would not be promoted and, hence, the protection of biological diversity be diminished. According to article 56 Convention on the Law of the Sea the national jurisdiction covers the exclusive economic zone. As a result the provisions on access to genetic resources as established by the Convention on Biological Diversity apply, in principle, to the exclusive economic zone.61 Concerning the access to genetic resources, the rules on marine scientific research under the Convention on the Law of the Sea state in article 246 para. 3 that Coastal States shall, in normal circumstances, grant their consent for marine scientific research. The obligation to establish regulations and procedures to ensure that consent is granted without unreasonable delay or denial62 is still in conformity with the obligation to facilitate access to genetic resources under the Convention on Biological Diversity. Yet, article 246 para. 5 lit.(a) Convention on the Law of the Sea makes an exemption as far as the research project "is of direct significance for the exploration and exploitation of natural resources, whether living or non-living". This will in fact be the case for the majority of bioprospecting activities. It follows that the discretion states have to grant access to genetic resources for bioprospecting in the exclusive economic zone and the continental shelf collides with the obligation to facilitate access to marine genetic resources under national sovereignty according to the Convention on Biological Diversity. Apart from that, one cannot but state that the regime on marine scientific research - although bioprospecting resembles sampling for scientific research - is not suitable for the management of marine genetic resources, since it lacks the protective component which is essential under the Convention on Biological Diversity. For the high seas and the Area the legal situation for marine genetic resources is even more unsatisfactory. According to the Convention on Biological Diversity, states are not under an obligation to provide for the protection of components while under the Convention on the Law of the Sea the protection of marine living resources is selective. For marine genetic resources outside national jurisdiction i.e. the high seas and the deep sea-bed, access to genetic resources to undertake scientific research is free under the Convention on the Law of the Sea.
61 62
Henne, see note 27, 327. Article 246 para. 3 Convention on the Law of the Sea.
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The access to genetic resources outside national jurisdiction is not part of the complex system of access and benefit sharing under article 15 in connection with article 4 Convention on Biological Diversity. According to article 4 lit.(b), the Convention on Biological Diversity applies to processes and activities under the control of States parties outside the limits of national jurisdiction, hence, also concerning the activities on the high seas and the deep sea-bed. However, the provisions on access are based upon national sovereignty and cannot be transferred to access to genetic resources in the high seas. As long as scientific research does not collide with other objectives of the Convention on Biological Diversity it can be performed by contracting states' nationals beyond areas of national jurisdiction without further conditions. Since bioprospecting does not deplete the respective marine living resources, contracting parties would be free to sample genetic resources outside national jurisdiction. This circumstance is capable of severely diminishing the significance of access to genetic resources as an incentive for their protection.63 If states can conduct bioprospecting on the high seas without having to agree on benefit sharing and technology transfer as they would have concerning resources under national jurisdiction, they undermine the objectives of the Convention on Biological Diversity as there is less incentive for developing states to protect genetic resources under their sovereignty. This reasoning is to some extent theoretical as many areas of genetic richness are located near coasts i.e. under the sovereignty of the Coastal State. Furthermore, scientific research on the high seas is more difficult and expensive to undertake. As a result developed states might in fact be more interested in gaining access to genetic resources in areas under national jurisdiction, accepting agreements on benefit-sharing and transfer of technologies, and consequently strengthen an incentive based system of protection of genetic resources. Yet, this discussion shows that the underlying rational of the Convention on the Law of the Sea can to some extent undermine the objectives and efforts of the Convention on Biological Diversity.
63
See Verhoosel, see note 33, 102.
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V. Conclusion: The Management of Marine Living and Genetic Resources under the Biodiversity and the Law of the Sea Regimes — A Conciliatory Approach Both conventions discussed in this article establish regimes of management and protection of marine biological resources that can, on the one hand, collide but can also, on the other hand, supplement one another. This section discusses the general international rules and specific provisions on conflicts of agreements and their application to the interplay of the Convention on the Law of the Sea and the Convention on Biological Diversity. Further, it gives some answers, as the interplay of both conventions has changed the regime for marine living resources. Generally there is no hierarchical structure of international law. Quite recently it has been recognized that both treaty and customary law are basically of equal legal validity.64 As far as agreements are concerned all treaties are equally binding.65 The only exemption to the rule of equality of international treaties is provided for by Article 103 UN Charter. This article, however, establishes a hierarchical structure with regard to the Charter of the United Nations only. All other treaties remain based upon an equal footing. The 1969 Vienna Convention on the Law of Treaties, the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations,66 the respective customary law as well as the general principles of law are the sources regulating the international law of treaties. The Vienna Convention on the Law of Treaties applies to written treaties, governed by international law and concluded between states.67 The Convention addresses issues that are important for the determination of the relation between the Convention on the Law of the Sea and the Convention on Biological Diversity such as conflicts and prevalence of treaties and treaty interpretation. However, with regard to the Convention on the Law of the Sea, the provisions of the Vienna Convention on the Law of
64
65
66 67
K. Wolfke, "Treaties and custom: aspects of interrelation", in: J. Klabbers, Essays on the Law of Treaties, 1998, 31 et seq., (36). I. Seidl-Hohenveldern, "Hierarchy of treaties", in: Klabbers, see above, 7 et seq., (8). ILM 25 (1986), 543 et seq.; not in force. Article 1 in connection with article 2 para. 1 lit.(a) Vienna Convention on the Law of Treaties.
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Treaties are applicable partially and only between some states because the Vienna Convention on the Law of Treaties entered into force in 1980, i.e. during the negotiations to the 1982 Convention on the Law of the Sea. During the phases of adoption, opening for signature and the last day the instrument was opened for signature more and more states became party to the Vienna Convention on the Law of Treaties.68 Furthermore, the Convention states in its article 4 that it will only take effect for treaties concluded between those states it has entered into force for. This effect is, however, mitigated by the fact that the Vienna Convention on the Law of Treaties represents to a significant extent international customary law. As far as the conciliation of conflicts between international treaties is concerned the Vienna Convention on the Law of Treaties shows considerable gaps. Its provisions on the solution of conflicts in article 30 refer to successive treaties on the same subject matter only. The applicability and superiority of one of the colliding agreements depends on the status of the states as members or non-members to the agreements: if all States parties to the later agreement are as well States parties to the earlier, the earlier is only applicable as far as it is consistent with the later (article 30 para. 3). The same applies generally to the relation between States parties to both agreements, even if not all States parties to the earlier treaty have become a party to the later (article 30 para. 4 lit.(a)). Based on this rule the Convention on the Law of the Sea regulates in article 311 para. 1 its relation to the 1958 Geneva Conventions on the Law of the Sea. Finally, between those states that are not States parties to both agreements, their relation is governed by the treaty they are both parties to, according to article 30 para. 4 lit.(b) Vienna Convention on the Law of Treaties. These rules do not help to define the relation between the Convention on the Law of the Sea and the Convention on Biological Diversity. Due to the limitation to treaties dealing with the same subject matter the provision in article 30 Vienna Convention on the Law of Treaties must be considered inapplicable when dealing with overlapping treaties on different aspects of environmental protection. The Convention on the Law of the Sea and the Convention on Biological Diversity cannot be regarded to be successive treaties on the same subject matter, even if their focus on the protection of the marine environment overlaps to 68
B. Vukas, "The Law of the Sea Convention and the Law of Treaties", in: V. G6tz/P. Selmer/R. Wolfrum (eds), Liber amicorum Giintber Jaenicke Zum 85. Geburtstag, 1998, 631 et seq., (637 et seq.).
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some extent; the scopes and primary aims of both agreements are too different. Although article 30 Vienna Convention on the Law of Treaties is the only article dealing with the solution of conflicts, the feasibility of interpretation to perform a conciliatory function must not be underestimated. Still, interpretation can only be employed to address conflicts, if the respective colliding provisions are unclear or vague. If the States parties to an agreement wilfully establish provisions that collide with other agreements and express their intention in clear unambiguous wording, interpretation can not be used to conciliate the conflict. The vague wording of the Convention on Biological Diversity, for example the repeated phrase "as far as possible and as appropriate" leaves considerable room for interpretation. Yet, like the provisions on conflicts, the rules on interpretation established by the Vienna Convention on the Law of Treaties are also said to leave certain gaps and room for ambiguity.69 The basic rule of interpretation, according to article 31 para. 1 Vienna Convention on the Law of Treaties, states that treaties have to be interpreted "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". In particular, the teleological element to this rule is important when dealing with the interpretation of colliding treaty provisions and related matters. The determination of the object and purpose of an agreement is related to the common intentions of the contracting parties, although these common intentions might be equally difficult to specify.70 This basic rule of treaty interpretation will, in the following, be repeatedly considered when specifying the relation between the Convention on the Law of the Sea and the Convention on Biological Diversity. Apart from the general and insufficient rules in article 30 Vienna Convention on the Law of Treaties, many agreements contain clauses that specify their relation to other treaties. Although there is, with the exception of Article 103 UN Charter , no general hierarchy of treaties in international law, reference can be made to the superiority of other agreements in relation to the referring agreement.71 In the case of treaty clauses that regulate the relation to other agreements, interpretation is 69 70 71
I. Sinclair, The Vienna Convention on the Law of Treaties, 1984, 117. Sinclair, see above, 130. With regard to successive treaties on the same subject matter this possibility is also expressed by article 30 para. 2 Vienna Convention on the Law of Treaties.
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an essential element of conciliation as far as the scope and applicability of other provisions are rendered unclear by the superiority of another treaty. Generally, the provisions of the referring instrument must be interpreted so as to conform with the superior treaty. This proceeding reflects the will of the parties with regard to the object and scope of the agreement laid down in the clause of precedence. Hence, the precedence of the agreement referred to is recognised, while the widest possible scope of application of the inferior instrument is maintained. This mechanism of interpretation is known in some national legal systems concerning the conformity of legal acts with the constitution. This model can be transferred to the international context, if superiority of certain agreements is established.72 A common provision is to prevent conflicts of obligations by establishing precedence of those instruments adopted prior to the respective treaty.73 Like many other international agreements the Convention on Biological Diversity contains such a clause of precedence of those rights and duties that bind the contracting parties at the time of the ratification of the Convention on Biological Diversity (article 22). Yet, the agreement adds that this preference shall not be valid if "the exercise of those rights and obligations would cause a serious damage or threat to biological diversity". This exemption to the rule is unusual and can lead to a de facto precedence of the Convention on Biological Diversity in respect to other instruments. This conclusion is emphasised when considering that the phrase to "cause a serious damage or threat to biological diversity" is subject to a wide margin of interpretation by the contracting parties. Article 22 para. 2 Convention on Biological Diversity deals specifically with the relation to the law of the sea. The implementation of the Convention on Biological Diversity must be consistent with the rights and obligations of states under the law of the sea. In contrast thereto, article 22 para. 1 Convention on Biological Diversity establishes superiority of certain agreements only for those states that are parties to both instruments. As already indicated, the expression "rights and obligations of States under the law of the sea" can either be interpreted to limit the prevailing power of the law of the sea to rights and duties only, or to include in 72 73
See for example Henne, see note 27, 328. See for example article 8 para. 2 Convention to Combat Desertification in Countries Experiencing Serious Draught and/or Desertification, particularly in Africa, ILM 33 (1994), 1328 et seq.
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fact the law of the sea in general. The limitation to rights and obligations in a strict sense of meaning excludes general principles and institutional or administrative matters. This question has not yet been discussed in the respective literature. Authors seem to understand "rights and obligations" as being equivalent to the law of the sea in general.74 It is doubtful, if the exclusion of general principles was intended by the contracting parties. A conflict of treaties that makes the application of clauses of superiority necessary most often arises, if rights and obligations collide but general principles can be used to interpret certain rights and obligations and, as a result, play an indirect role in the said collisions. Furthermore, general principles can also lead to conflicts of different conventions' objectives and the interpretation of agreements. Although it may be difficult to differentiate between principles and rights and obligations, the established rules on the interpretation of treaties need to proceed from the wording. Two arguments speak in favour of adopting a narrow interpretation of article 22 para. 2 of the Convention on Biological Diversity. The drafters could have easily chosen a different wording, if they had wanted to give the Convention on the Law of the Sea explicit precedence over the Convention on Biological Diversity. More importantly, if the commonly held wide interpretation is taken, the Convention on Biological Diversity could not be applied if the Convention on the Law of the Sea provides for a different regime. This does not take into account that the Convention on the Law of the Sea does not deal with genetic resources directly and that its rules on marine living resources do not fully fit. Hence, it would be somewhat illogical to have the former always replace the latter. Article 22 para. 2 of the Convention on Biological Diversity instead means that the two regimes exist in parallel and supplement and reinforce each other. Only if the application of the Convention on Biological Diversity does infringe upon the rights or obligations of states, the law of the sea rules prevail. The Convention on the Law of the Sea also contains a provision on the relation with other international treaties: article 311. Only article 311 paras 2-4 deal with the relation to other treaties in general; para. 1 regulates the relation to the Geneva Conventions on the Law of the Sea 74
See e.g. Glowka/Burhenne-Guilmin/Synge, see note 44, 109, who simply state "the law of the sea prevails in instances where the Convention's implementation conflicts with it"; Henne, see note 27, speaks of colliding norms of the law of the sea and the Convention on Biological Diversity; no distinction is made to the expression of rights and obligations she uses in the same context.
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of 1958 and paras 5-6 deal with specific questions. In relation to all international agreements the Convention on the Law of the Sea claims priority.75 According to article 311 para. 2 the Convention on the Law of the Sea does not alter the rights of other treaties as long as they are compatible and do not affect the application of basic principles or the enjoyment by other States parties of their right or the performance of their obligations under the Convention on the Law of the Sea. The same applies to agreements concluded between two or more States parties according to article 311 para. 3. Formulated in positive manner these provisions lead to the result that the Convention on the Law of the Sea claims the right to alter all those obligations arising from other treaties that are not compatible. Hence, all incompatible agreements shall as far as possible be interpreted to comply with the Convention on the Law of the Sea or the respective provisions cannot be applied at all. This implication is not limited to treaties concluded only between States parties to the Convention on the Law of the Sea.76 It follows that global treaties like the modern environmental agreements and the Convention on Biological Diversity are affected by article 311 as far as the obligations they impose on contracting states that are also States parties to the Convention on the Law of the Sea collide with the latter. Concerning the relation to the Convention on Biological Diversity this conclusion is not fully coherent with article 22 para. 2 Convention on Biological Diversity. On this basis the attempt is made to give a concrete answer as to whether and to what extent the Convention on Biological Diversity has modified the legal regime of the law of the sea on marine living and genetic resources or where the Convention on Biological Diversity gives way to the Convention on the Law of the Sea. In any case, the different approaches of the Convention on the Law of the Sea and the Convention on Biological Diversity cannot completely be brought into coherence; too different are the underlying philosophies and objectives. The Convention on the Law of the Sea primarily protects specific marine living resources to safeguard a human food source. The Convention on Biological Diversity exceeds this focus protecting all components of biological diversity i.e. all species, genetic diversity and ecosystems to safeguard long-term preservation and sustainable use. 75
76
See Vukas, see note 68, 649, who states that the Convention on the Law of the Sea "pretends to play the role similar to the one of article 103 of the United Nations Charter". Vukas, see note 68, 649 et seq.
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In territorial and in archipelagic waters the Convention on Biological Diversity does not — at least not directly — modify the obligations of Coastal States to protect marine life. This would infringe upon the rights of Coastal States in this respect which the Convention on the Law of the Sea did not want to limit explicitly. At the time of its adoption the principle that states had the sovereign right to manage their resources was still dominant in its absolute form. For that reason the underlying principle of the Convention on Biological Diversity that biological diversity has an intrinsic value and that the international community is interested in its protection is not implemented with respect to marine living resources. One may argue, though, that according to arts 192 and 193 Convention on the Law of the Sea, the Coastal State is under an obligation to protect the marine environment, that there is a respective obligation to cooperate and that the Convention on Biological Diversity is the result thereof. Although this was not the intention of the Convention on Biological Diversity when it was drafted, its parties seem to have accepted this approach by approving the Jakarta Mandate under the Convention on Biological Diversity.77 Despite the fact that under the Convention on Biological Diversity the Coastal States are not obliged to change or amend the policies concerning the conservation of marine life, they may use the Convention on Biological Diversity to do so. The provisions of the Convention on Biological Diversity may be implemented as far as the obligations to grant innocent passage to all ships are not collided with. The establishment of protected areas for marine biodiversity must not exclude the innocent passage of ships. Further, the Coastal States may use the Convention on Biological Diversity to strengthen the protection of marine life in the exclusive economic zone, but again they are not under an obligation to do so. As far as the establishment of protected areas is concerned, they face the same limitation as under the territorial waters regime. The system of access to genetic resources as established by the Convention on Biological Diversity is not fully reconcilable with the respective regime in coastal or archipelagic waters. The commitment undertaken by states hosting genetic resources under article 15 Convention on Biological Diversity - albeit its limited nature - does not extend to genetic resources in territorial and archipelagic waters. However, here again the Coastal States may resort to the system under the Convention on the Law of the Sea. The rules on marine scientific research in the territorial sea state explicitly that research shall be conducted under the 77
See note 40.
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conditions set forth by the Coastal State. As a consequence the system of access and benefit sharing and transfer of technologies maintains its function as an economic incentive for the protection of genetic diversity as envisioned by the Convention on Biological Diversity. Concerning the exclusive economic zone and the continental shelf the possibility to deny access to genetic resources for the conduct of marine scientific research prevails over the obligation to facilitate access under the Convention on Biological Diversity. Living and genetic resources of the high seas and the deep sea-bed are freely accessible, no matter whether genetic resources are considered to be a category of their own or considered to come under a wide interpretation of living resources.78 For this area a gap exists as far as the management of marine genetic resources is concerned. Neither does the Convention on Biological Diversity oblige states to provide for the protection of components nor is the regime on marine living resources of the Convention on the Law of the Sea all-embracing. For this area it is not even possible to blend the Convention on Biological Diversity into the rules under Part XII of the Convention on the Law of the Sea, due to the restrictive wording of the Convention on Biological Diversity. Further cooperation and the joint negotiation on binding and soft law agreements concerning the biological resources of the high seas seems necessary to achieve a sustainable system of use and preservation.79 The effectiveness of measures depends upon the degree of coordination and cooperation between both Conventions to promote a more coherent system of protection of marine living resources in the high seas. Further cooperation between the institutions of both agreements is also especially necessary to address issues like integrated marine and coastal area management, the establishment of protected areas in territorial waters and in the exclusive economic zone and bioprospecting. Generally speaking, the Convention on the Law of the Sea provides for a framework that can be environmentally strengthened by the objectives of the Convention on Biological Diversity. The provisions on the sustainable use of resources outside national jurisdiction are especially open to further development, even by agreements that are wider in scope, as is clearly shown by the 1995 Agreement on Fish Stocks. In78
Doc. UNEP/CBD/SBSTTA/2/15 para. 11.
79
Anton, see note 3, 370 et seq. theoretically favours a protocol to the Convention on Biological Diversity but at the same time considers it to be politically infeasible.
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struments like the 1995 Agreement on Fish Stocks that introduce a long-term conservation approach to the law of the sea should be further promoted to link the differing objectives of the law of the sea and the Convention on Biological Diversity; especially with respect to areas beyond national jurisdiction. If linked by respective conciliatory agreements and strengthened by continuous cooperation, a viable framework for the protection of marine biological resources can be established under the Convention on the Law of the Sea and the Convention on Biological Diversity, depending on the will of the state community to negotiate for and comply with duties to conserve and sustainably manage marine areas.
The Interaction between the Antarctic Treaty System and the Other Relevant Conventions Applicable to the Antarctic Area A Practical Approach versus Theoretical Doctrines Patrizia Vigni*
I.
II.
*
Introduction 1. The Development of the Antarctic Treaty System 2. Legal Theories on the Solution of Treaty Conflicts The ATS and the Law of the Sea 1. Preliminary Remarks 2. The Legal Regimes for Antarctic Seas a. Antarctic Seas and the Delimitation of Maritime Zones b. Antarctic and the Common Heritage of Mankind 3. The Conservation of Marine Living Resources 4. The Protection of the Antarctic Marine Environment a. Antarctica and the UNCLOS Provisions Concerning the Protection of the Marine Environment b. The Prevention of Marine Pollution in Antarctic Seas c. Treaty Regimes on Waste Disposal
The author would like to express her everlasting gratitude to Professor Francesco Francioni for his outstanding teaching and constant support during her under-graduate and post-graduate studies and, in particular, for his indispensable supervision during her Ph.D. research on the Antarctic Treaty System. She is also extremely grateful to Professor Riidiger Wolfrum for his helpful advise, specially, for the systematization of this article. The author would like also to thank Professor Ian Brownlie and Professor James Crawford for their suggestions during the drafting of this work. The present article is the result of research activities carried out within and financed by the PNRA (Italian Project on Antarctic Research). 481
J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, 481-542. © 2000 Kluwer Law International. Printed in the Netherlands.
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III. The Management of Antarctic Mineral Resources IV. Liability for Damage and Dispute Settlement 1. A Liability Regime for Antarctica 2. Dispute Settlement Concerning Antarctic Issues V. Conclusions
I. Introduction l.The Development of the Antarctic Treaty System Faced with the increasing complexities of international life, states seem to be responding by entering into an ever-larger number of international negotiations and treaties. A consequence of this is the increasing possibility of overlap and conflict between the various treaty provisions potentially applicable to the same subject-matter. This is particularly so with regard to certain multilateral conventions and the Antarctic Treaty System (ATS). This system is a complex of legal instruments that have their origin in the Antarctic Treaty.1 Although not formally recognized as such, the ATS is referred to in two norms. The first is article 2 para. 1 of the Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA)2 which states that the ATS comprises "... the Antarctic Treaty, the measures in effect under that Treaty, and its associated separate legal instruments...". The second norm is article 1 lit.(e) of the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol)3 which affirms that the "Antarctic Treaty (S)ystem means the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments; ...". As appears evident from the latter norm, Antarctic Treaty parties have tried to limit the extent of the ATS in the recent years by excluding, from the ATS, national legislation concerning Antarctica and international instruments which are not yet in force such as CRAMRA.4 1 2 3 4
Washington, 1 December 1959, UNTS Vol. 402 No. 5778. Wellington, 2 June 1988, ILM 27 (1988), 868 et seq. Madrid, 4 October 1991, ILM 30 (1991), 1455 et seq. The entry into force of CRAMRA also seems to be unlikely in the future. Nevertheless, for present purposes, CRAMRA norms will be taken into account because they contain certain fundamental principles which can be
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Among the components of the ATS, primary importance must be acknowledged in favour of the Madrid Protocol. In fact, article 4 para. 1 of the Protocol affirms that this instrument supplements the Antarctic Treaty. Moreover, there is no doubt that the expression "measures in effect under that Treaty" (see above) includes the Recommendations carried out under the procedure provided for in article IX of the Antarctic Treaty. Among such instruments, Recommendation III-VIII of 19645 is particularly significant. The legal nature of Antarctic Recommendations has been clarified by Decision 1 of the XIX Antarctic Treaty Consultative Meeting (ATCM)6 in which Antarctic instruments have been classified in Measures (legal acts which are binding under article IX para. 4 of the Antarctic Treaty), Decisions (operative acts), and Resolutions (programmatic acts). Furthermore, the expression "associated separate international instruments", included in article 1 of the Madrid Protocol, seems to recall the Convention for the Conservation of Antarctic Seals of 19727 since article 1 para. 1 of this Convention acknowledges the legal status of Antarctica as established by article IV of the Antarctic Treaty. A particular role is also accorded to the International Convention for the Regulation of Whaling.8 This convention does not formally belong to the ATS, but it is, in any case, closely linked to the regime. For example, the declaration of a sanctuary area in the Antarctic seas, which is one of the most important decisions of the Whaling Commission (established by article 3 of the Whaling Convention) has acknowledged the legal and political status of the Antarctic area as it is under the Antarctic Treaty.9
useful for the development of future Antarctic norms. See for further information concerning this regime, see Chapter III. For an overview of the Convention see F. Francioni, "La Convenzione di Wellington sulle risorse minerarie antartiche", Riv. Dir. Int. 72 (1989), 34 et seq. and E. Sciso, Le risorse dell'Antartide e il diritto internazionale, 1990. Also known as Agreed Measures, in: U.S. Department of State (ed.), Handbook of the Antarctic Treaty System, 1994, 2403. See the Final Report of the XIX ATCM held in Seoul from 8 to 19 May 1995. London, 11 February 1972, ILM 11 (1972), 251 et seq. Washington, 2 December 1946, UNTS Vol. 161 No. 2124. In the Antarctic sanctuary area, any form of whaling, including that carried out for scientific purposes, is prohibited. See the Whaling Commission Meeting held in Puerto Vallarta in 1994. The Whaling Commission, in par-
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The intent of the Whaling Commission to recognize the authority of the ATS and to act in accordance with it is, therefore, apparent. Another important question concerning the definition of the components of the ATS is whether or not the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)10 should be included in the ATS. Such question has received a variety of answers. On the one hand, great significance has been accorded to the fact that ATS and CCAMLR norms protect the environment and the resources appertaining almost to the same geographic area and acknowledge their reciprocal competencies.11 On the other hand, one author has inferred that the CCAMLR aims to establish a distinct legal regime from the fact that the Convention has created autonomous governmental organs.12 Regardless of the relative strength of these conflicting arguments, CCAMLR cannot be ignored by the present article because of its considerable importance to the protection of living resources. After having identified the actual components of the ATS, it is important to describe the fundamental principles on which this system is based and which make the system "unique" among other international regimes. The ATS infers its fundamental rules from the Antarctic Treaty.
10
11
12
ticular, affirmed that the declaration of an Antarctic Sanctuary "is (not) intended to prejudice the special legal and political status of Antarctica". For an overview of this declaration see M.C. Maffei, "The protection of whales in Antarctica", in: F. Francioni/T. Scovazzi (eds), International Law for Antarctica, 2nd edition, 1996,171 et seq., (182). Done in Canberra on 20 May 1980, ILM 19 (1980), 837 et seq. For an overview see R. Frank, "The Convention on the Conservation of Antarctic Marine Living Resources", ODILA 13 (1983), 291 et seq. and R. Lagoni, "Convention on the Conservation of Marine Living Resources: A Model for the Use of a Common Good?", in: R.Wolfrum (ed.), Antarctic Challenge, 1984, 101 et seq. See arts 3 and 4 para. 1 of CCAMLR which affirm that States parties must respect arts I and V and arts IV and VI of the Antarctic Treaty, respectively. Similarly, Antarctic Treaty parties have acknowledged the exclusive competence of CCAMLR with respect to the regulation of fishing in the Antarctic seas as it has been stated when the Madrid Protocol was made. In favour of the inclusion of CCAMLR in the ATS see, D. Rothwell, "A Maritime Analysis of Conflicting International Law Regimes in Antarctica and the Southern Ocean", Austr. Yb. Int'l L. 16 (1995), 155 et seq., (168). This author highlights the common interests protected both by the ATS and CCAMLR. In this sense see A. Watts, International Law and the Antarctic Treaty System, 1992, 216.
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In particular, article IV of the Treaty establishes the atypical legal status of the Antarctic area by "freezing" claims of sovereignty13 of some contracting parties.14 Such a solution has allowed the peaceful cooperation between the Consultative Parties since the entry into force of the Antarctic Treaty and has favoured the development of the so-called "bifocal approach". "Bifocal approach" means that Antarctic parties must create norms which, although establishing the same duties and rights for all States parties, can be differently construed by Claimant and non-Claimant States on the basis of their acknowledgement or denial of sovereign rights in Antarctica. For example, one can mention the comprehensive approach adopted by article 2 of the Madrid Protocol which is aimed at preserving "... Antarctica as a natural reserve ...". So far, the evolution of the ATS has lead to an increasing internationalization of the system as the large number of states which are parties to the Treaty demonstrates.15 Recently, the system has also moved toward a most significant institutionalization by creating permanent organs such as the Committee for Environmental Protection (established by article
13
14
15
Article IV of the Antarctic Treaty states: "(n)othing contained in the present Treaty shall be interpreted as: a) a renunciation ... of previously asserted rights of or claims to territorial sovereignty ... c) prejudicing the position of any Contracting Party as regards its recognition or nonrecognition of any other State's right of or claim or basis of claim to territorial sovereignty...". States parties to the Antarctic Treaty are divided into consultative and nonConsultative Parties. The status of a Consultative Party (ATCP) is determined by the fact that a contracting state has carried out "substantial scientific activity" in Antarctica as article IX para. 2 of the Antarctic Treaty affirms. The Consultative Parties participate in the Antarctic Treaty consultative meetings and have decision-making power. Among the Consultative Parties there are seven Claimant States. They are Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom. These states have claimed sovereign rights over certain Antarctic areas for many years on the basis of different reasons: discovery, geographic proximity, and the theory of "sectors". For an overview see G. Battaglini, La condizione dell'Antartide nel diritto internazionale, 1971 and J. Jessup, "Sovereignty in Antarctica", AJIL 41 (1947), 117 et seq. At the present, there are 42 contracting parties to the Antarctic Treaty. Among them, there are 27 Consultative Parties. Although the number of States parties seems exiguous, nevertheless, such states represent over 70 per cent of the world population and the most powerful countries with respect to their economic and political importance.
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11 of the Madrid Protocol). Such institutionalization will become still more evident if an Antarctic Secretariat is created. Thus, although the ATS cannot be considered as a completely institutionalized regime, it shows some characteristics which make it different from an ordinary international treaty.16 For this reason, it is important to analyze the interaction between the ATS and other international instruments regulating similar subjects. The areas in which such interaction is most frequently found are the law of the sea, the conservation of resources and the protection of the environment. Moreover, the existence of several international legal instruments can also cause some procedural overlap and conflicts of competence between the organs and institutions established by such instruments. This is particularly notable with regard to the questions of liability and dispute settlement.
2. Legal Theories on the Solution of Treaty Conflicts Thus far, the problem of the application of successive international conventions relating to the same subject-matter has been resolved by reference to legal theories aimed at establishing, a priori, whether and how certain treaties can prevail over others. Firstly, the relationship between international conventions has been guided principally by reference to compatibility clauses included in the conventions themselves. These clauses are particularly relevant in order to ascertain the intent of States parties to a treaty. Indeed, under article 31 para. 4 of the Vienna Convention on the Law of Treaties, subjective interpretation (which considers the intent of States parties to a treaty the best means to determine the extent of a treaty norm) is merely an
16
In this sense see F. Francioni, "A Decade of Development, in Antarctic International Law", in: Francioni/Scovazzi, see note 9, 1 et seq., (10-12). For an overview see D. Vidas/W. Ostreng, "The Legitimacy of the ATS regimes: introduction", in: O. Stokke/D. Vidas (eds), Governing the Antarctic, 1996, 227 et seq., R. Wolfrum, "Possible Challenges And The Future Development of The Antarctic Treaty System", in: A. Jackson (ed.), Proceedings of an International Symposium on the Future of the Antarctic Treaty System, 1995, 85 et seq., and N. Ronzitti, La normativa internazionale sulVAntartide e i suoi futuri sviluppi, 1991. See also G. Guillaume, "Le Statut de 1'Antarctique. Reflexions sur quelques problemes recents", in: Melanges offert a Rene-Jean Dupuy, 1991,171 et seq.
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exception to the general rule of objective interpretation.17 By contrast, this article's aim is to stress the importance of subjective interpretation for the resolution of conflicts between treaty norms. The effectiveness of compatibility clauses is not beyond dispute. The content of compatibility clauses is usually general. This makes it necessary to interpret the scope of such clauses in order to determine the actual intent of States parties to a treaty.18 Apart from that, compatibility clauses usually do not establish a clear hierarchy between international rules but, rather, simply recall international instruments other than those to which such clauses belong.19 Thus, attempts to resolve conflicts
17
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19
Article 31 para. 4 of the Vienna Convention tempers the purpose of article 31 para. 1 which seems to disregard the importance of States parties' intent for the interpretation of a treaty. Paragraph 1 of this norm, in fact, affirms that "(a) treaty shall be interpreted ... in accordance with the ordinary meaning to be given to the terms of the treaty ...". In this regard, one may mention article 311 of the 1982 UN Convention on the Law of the Sea (UNCLOS). Paras 2 and 3 of this article affirm that other international agreements can be applied instead of UNCLOS only when such agreements are "compatible with the Convention" and do "not affect the application of the basic principles embodied herein". Such expressions clearly need to be interpreted in order to establish the extent of their content. Similarly, the scope of article VI of the Antarctic Treaty does not seem to be self-evident when it states that it will not "prejudice ... the rights ..., of any State under international law with regard to the high seas ...". For example, article 5 para. 3 of CRAMRA recalls the concept of the continental shelf as intended by the international law of the sea. However, CRAMRA does not provide a similar regime to that established by UNCLOS for such an area. As far as the priority between treaty systems is concerned, another example of the insufficient clarity of compatibility clauses is provided by article 14 para. 4 of the Convention on International Trade in Endangered Species (CITES) (Washington, 3 March 1973, ILM 12 (1973), 1085 et seq.). On the one hand, this article establishes that if signatory states are already parties to another treaty providing for the regulation of species protection, the latter treaty prevails. On the other hand, article 14 para. 4 limits such priority to those species which do not require special protection. By contrast, as far as endangered species are concerned, CITES asserts its superiority over any other international agreement. For a general comment on CITES see M. Peters, "The Convention on International Trade in Endangered Species: An Answer to the Call of the Wild?", Conn. J. Int'lL. 10 (1994), 169 et seq.
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between treaty norms by reference solely to compatibility clauses are frequently ineffective.20 Secondly, certain general principles of international law, such as the lex prior21 and the lex posterior22 principles, have also been used in order to clarify the relationship between international treaties. Such principles can be analyzed simultaneously since they are based on the same reasoning. These principles both establish the priority of a treaty by resort to a temporal criterion. However, such a solution contains many weaknesses largely because it does not take into account the actual intent of States parties, but rather requires an automatic application of these principles. The lex prior and the lex posterior principles do not make any distinction between treaties, but take into account only the time at which they were concluded.23 Such criteria are not necessarily appropri-
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22
23
In this sense see Ch. Rousseau, "De la compatibilite des normes juridiques contradictoires dans 1'ordre international", RGDIP 39 (1932), 132 et seq., (189). For an overview see G. Danilenko, Law-Making in International Community, 1993, R. Jennings, "Treaties", in: M. Bedjaoui (ed.), International Law: achievements and prospects, 1991, 135 et seq., S. Rosenne, Developments in the Law of Treaties 1945-1986, 1989, E. Sciso, Gli Accordi Internazionali Confliggenti, 1986, T. Elias, The Modem Law of Treaties, 1974, and J. Sorensen, Les sources du droit international, 1946. In favour of the application of the lex prior principle see the Draft Convention on the Law of Treaties proposed by the Harvard Law School, in: AJIL 29 (1935), Suppl., 657 et seq., (1024) and the decision of the AustrianGerman Custom Union Case, PCIJ Series A/B, No. 41, 3 et seq. In favour of the application of this rule see the Mavrommatis Case, PCIJ Series A, No. 2, 3 et seq. The lex posterior principle has been considered as a rule of particular relevance after its incorporation in article 30 of the 1969 Vienna Convention on the Law of Treaties. However, some authors contend that the rule established by article 30 has merely a residual character, since para. 2 of the article affirms that the lex posterior principle is applicable only after an express declaration of States parties that the former treaty does not prevail. In this sense, see I. Sinclair, The Vienna Convention on the Law of Treaties, 1984, 97. For an overview see R. Ago, "Droit des traites a la lumiere de la Convention de Vienne", RDC 134 (1971), 237 et seq. and F. Capotorti, Studio introduttivo al testo della Convenzione sul diritto deitrattati, 1969. The Report of Hersch Lauterpacht to the ILC expresses some doubts concerning the applicability of the lex prior principle where the later treaty is a multilateral convention, in: Doc. A/CN.4/87, 35. A similar criticism relative to the automatic application of the lex posterior principle is provided by the existence of article 60 para. 2 lit.(c) of the Vienna Convention on the
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ate for the resolution of serious conflicts where the complexity of the relationship between treaties requires a deeper and more precise analysis than one based merely upon the application of a temporal criterion.24 Thirdly, in order to establish the relevance of certain international conventions, various theoretical approaches have attempted to verify the opposability of such conventions to third states. (For present purposes, third states vis a vis a treaty means not only states that are not parties to any international convention, but, obviously, also those states which although they are not panics to the treaty concerned, are parties to some other conventions which may deal with a similar subjectmatter). Indeed, it could be argued that if a convention is applicable even to states which are not parties to it (for reasons that may be related to the customary character of the norms, to the existence of an objective regime or some other reason), such a convention should be considered as an instrument of particular relevance and, thus, should prevail over other international treaties. Views differ on this point. On the one hand, most writers deny the effectiveness of international agreements vis a vis third states on the basis of the general principle of pacta tertiis nee nocent nee prosunt.25 However, the automatic application of the pacta ter-
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25
Law of Treaties. As a limitation upon the general rule established by article 30, article 60 para. 2 lit.(c) provides the possibility for States parties to a multilateral convention to suspend compliance with the convention against those States parties which have consecutively concluded a bilateral treaty breaching the provisions of the convention. For an thorough analysis of article 30 see E. Vierdag, "The Time of the "Conclusion" of a Multilateral Treaty: Art. 30 of the Vienna Convention on the Law of Treaties and related provisions", BYIL 65 (1988), 110 et seq. For the view that the lex prior and the lex posterior principles offer a too simplistic solution to the problem of treaty conflicts see C. Jenks, "The conflict of the law-making treaties", BYIL 30 (1953), 401 et seq., (446). The pacta tertiis principle has been also incorporated in the Vienna Convention on the Law of Treaties at arts 34—38. It is the expression of the doctrine of consent which affirms that since all states are equal before international law, they can be bound only by norms which they have manifestly accepted. Such a principle has also been endorsed by the PCIJ decisions in the Chorzow Factory and Free zones Cases, PCIJ Series A, No. 8, 1 et seq., and No. 22, 5 et seq., respectively. Among the numerous authors who recognize the legitimacy of the pacta tertiis principle see G. Schwarzenberger, The Frontiers of International Law, 1962, 21 et seq. and Ch. Rozakis, "Treaties and Third States: a Study in the Reinforcement of the Consensual Standards in International Law", ZaoRV 35 (1975), 1 et seq., (3). For an overview see C. Chinkin, Third Parties in International Law, 1993,
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tiis principle runs the risk of allowing third states to act in an unrestrained manner at least where there are no other international norms which constrain them.26 On the other hand, other writers contend that some treaties, by reason of the importance of their content27 and the
26
27
Ph. Cahier, "Le probleme des effets des traites a 1'egard des Etats tiers", RDC 143 (1974), 589 et seq. The pacta tertiis principle seems to have been assumed by the Antarctic Treaty Consultative Parties (ATCPs) in the Final Report of the VII Antarctic Treaty Consultative Meeting (ATCM) which reads: "... it would be advisable ... to ... invite as appropriate ... States concerned to accede to the Treaty ...". Nevertheless, article X of the Antarctic Treaty seems to require the imposition of obligations on non-parties, somehow, and, in the XII ATCM Final Report, the ATCPs expressed "their concern that any attempts to modify or replace the Treaty would be likely to introduce contention and instability into a region of ... unparalleled peace and international cooperation". Among the writers that support the superiority of some treaties in relation to their subject-matter see T. Meron, "On a hierarchy of international human rights", AJIL 80 (1986), 1 et seq., (22). Constitutive and dispositive treaties provide further examples of agreements considered to prevail over others. These categories of treaties are particularly relevant with regard to the subject-matter of this article since the Antarctic Treaty has on occasion been considered a constitutive treaty. Constitutive treaties are those conventions which establish a specific regime for a specific geographic area or which create a new entity such as a state or an international organization. In this sense, see P. Reuter, Introduction au droit des traites, 1995, 101. Dispositive treaties are those international agreements which deal with the management of a territory or the inherent rights within a territory. One example of a dispositive act is the mandate which conferred upon South Africa the power to govern the territory of Namibia. See Reuter, above, 111. For the view in favour of the superiority of constitutive and dispositive treaties over other international conventions see A. Me Nair, Law of Treaties, 1961, 224 who affirms that dispositive treaties limit other conventions derogating from their norms, and I. Brownlie, Principles of Public International Law, 1990, 12. As far as the particular importance of constitutive treaties is concerned, see the Wimbledon Case, PCIJ Series A, No. 1, 1 et seq., (30) and the ICJ Advisory Opinion on South-West Africa, ICJ Reports, 1950, 128 et seq., (134). For an overview see R. Jennings, "Treaties as "Legislation"", in: Jus et Societas. Essays in Tribute to Wolfgang Friedmann, 1979, 159etseq.
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extent of their applicability,28 establish rules that are enforceable upon all states, including third states. Special attention must be given to the doctrine that supports the theory of objective regimes.29 Such a theory has also been applied to the ATS30 but it has fallen short of achieving general consensus in literature and in practice.31 All these approaches have in common the use of a formal criterion. However none of them appear to be entirely satisfactory in resolving 28
29
30
31
See the Waldock Report to the ILC, in: Doc. A/CN.4/144, 13. The Special Rapporteur seemed to affirm the superiority of multilateral treaties over other international conventions. Nevertheless, Waldock specified that he intended to consider as multilateral treaties only those conventions which "either purport to lay down general norms ... or deal with ... matters of general concern ...". In fact, as Waldock affirmed, "a purely numerical test would scarcely be feasible ...", in: Doc. A/CN.4/144, 24. For the contrasting view that all treaties must be respected by third states because they create legal situations whose functioning cannot be hindered by any state, see the Fitzmaurice Report to the ILC, in: ILCYB 1960, Vol. II, 75. An attempt to introduce the objective regime concept in the Vienna Convention on the Law of Treaties was made by Waldock, in: ILCYB 1964, Vol. II, 5 and 26. However, he encountered the resistance of those writers who supported the doctrine of consent such as Tunkin, ibid., Session 740, para. 15. One author has suggested that article X of the Antarctic Treaty which stipulates that "... no one engages in any activity in Antarctica contrary to the principles ... of the ... Treaty" is intended to bind also third states. Moreover, this author has stated that "... a group of States that have acted over various decades in a totally inhospitable region ... have the right to see the situation is maintained", R. Guyer, "The Antarctic Regime", RDC 139 (1973), 148 et seq., (224-225). Against this affirmation, another author has highlighted that the mere silence of third states is not sufficient to establish the acquiescence of such states to the ATS. In this sense see B. Simma, "Le Traite Antarctique: cree-t-il un regime objectif ou non", in: F. Francioni/T. Scovazzi (eds), International Law for Antarctica, 1987, 137 et seq., (146). Some authors have proposed the application of a new concept of objective regime to the ATS rather than that formulated by the traditional theory. Such a concept should be based on the actual effectiveness and opposability of the Antarctic Treaty System. In this sense, see A. Wyrozumska, "Erga tertios effect of the Antarctic Treaty", in: Antarctic and Southern Ocean Law and Policy, Occasional Papers, No. 6, 1993, 28. The author builds upon the objective regime doctrine proposed by E. Klein, Statusvertra'ge im Volkerrecht, 1980.
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the question of the interaction between international conventions. This is due, first of all, to the fact that it is not feasible to resolve all treaty conflicts with reference to a single criterion. Moreover, some conflicts between international agreements cannot be foreseen a priori but are visible only once they actually occur. For these reasons, it is the view of the present writer that a policy-oriented approach, based on the actual object and purpose of the relevant international instruments and aimed at evaluating the concrete effects of their application, would be preferable to the use of abstract principles which attempt to resolve a priori all kinds of conflicts between treaty norms.
II. The ATS and the Law of the Sea 1. Preliminary Remarks Among the numerous international legal regimes that could interact with the ATS, the law of the sea is particularly important. In this field there are many international conventions aimed at creating an independent legal system. For this reason, article VI of the Antarctic Treaty establishes that the Treaty shall not "prejudice or in (any) way affect the rights ... of any State under international law with regard to the high seas within (the) area ...". In order to evaluate the scope of this norm, one must ascertain, first of all, whether or not the expression "international law" includes both customary and conventional law of the sea. The affirmative response seems to be the most appropriate given that the current law of the sea includes all the rules which can be applied to the maritime area irrespective of their origin. In this regard, the overlap between the ATS and the UN Convention on the Law of the Sea (UNCLOS)32 appears to be unavoidable.
32
Montego Bay, 10 December 1982, ILM 21 (1982), 1261 et seq. For an overview see E. Brown, The International Law of the Sea, 1994 and T. Treves, La Convenzione delle Nazioni Unite sul diritto del mare del 10 dicembre 1982, 1983. For a comparative analysis of the ATS and UNCLOS see A. van der Essen, "The Application of the law of the sea to the Antarctic continent", in: F. Orrego Vicuna (ed.), Antarctic Resources Policy. Scientific, Legal and Political Issues, 1983, 231 et seq. and S. Miiller, "The Impact of UNCLOS III on the Antarctic Regime", in: Wolfrum, see note 10, 169 et seq.
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Secondly, it is by no means clear whether article VI can be interpreted as implying that the Antarctic Treaty acknowledges the priority of the law of the sea over its norms concerning the management of marine areas and resources.33 Indeed, as will be observed below, the existence of numerous Antarctic rules concerning the management of marine areas demonstrates the intention of the Consultative Parties to create a separate legal regime with respect to the law of the sea. Thus, article VI does not seem to resolve, a priori, the issue of the compatibility between the ATS and treaties concerning the law of the sea. This becomes most apparent when one considers certain major issues whose regulation can be influenced by the relationship between the ATS and other legal instruments. Such issues include the applicability to Antarctica of some concepts found within the law of the sea, such as the common heritage of mankind, and the protection of living resources and the marine environment.
2. The Legal Regimes for Antarctic Seas a. Antarctic Seas and the Delimitation of Maritime Zones One of the crucial problems concerning the applicability of the law of the sea to the Antarctic marine area involves the compatibility between such law and the peculiar legal status of Antarctic waters. This is particularly so with regard to the issue of the delimitation of maritime zones. Indeed, the definition of maritime zones implies the presence of Coastal States whose very existence in Antarctica is controversial.34 33
34
It is indisputable that the main interest of legal regimes in regulating activities in the Antarctic sea can be inferred from the fact that natural resources, especially living resources, are more numerous in the marine area than on the continent. In this sense see J. Parker/R. Angino, "Environmental Impacts of Exploiting Mineral Resources and Effects of Tourism in Antarctica", Mineral Resources Potential of the Antarctica. Antarctic Research Series, Vol. 52, 1990, 237 et seq., (242-243). Under the ATS, the legal status of the area is determined by article IV para. 2 of the Antarctic Treaty under which existing state claims are frozen and "... No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted ...". In order to avoid the delimitation of maritime zones in Antarctica some authors affirm that all Antarctic waters must be considered as high seas. In this sense see P. Birnie, "Effect of Art. VI of the Antarctic Treaty on Scientific Research", in: R. Wolfrum
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The problem of the delimitation of maritime zones requires, firstly, a determination as to whether the expression "law of the sea", as implied by article VI of the Antarctic Treaty, includes the complex of rules in force at the time of the conclusion of the Treaty or, instead, the current law of the sea. Such a problem is particularly pressing as far as the declaration of the exclusive economic zone (EEZ) is concerned. Unlike the territorial sea and the continental shelf (regarding which sovereign rights of Coastal States were recognized before the entry into force of the Antarctic Treaty),35 the right to claim an EEZ has only recently been considered as a part of customary law.36 But, the expression "law of the sea" implied by article VI of the Antarctic Treaty cannot be interpreted as including only those norms applicable at the time of the entry into force of the Treaty itself.37 Such a construction would render the ATS an outdated regime which could not be easily coordinated with current international law. An additional problem to the applicability in the Antarctic waters of all norms concerning the delimitation of maritime areas is the fact that article IV para. 2 of the Antarctic Treaty prohibits any new claim of sovereignty in Antarctica. Thus, the requirement set forth
(ed.), Antarctic Challenge, Vol. Ill, 1988, 105 et seq., (112) and L. Caflish, "L'Antarctique: nouvelle frontiere sans frontieres?", in: Le droit international an service de la paix, de la justice et du developpement: melanges a Michel Virally, 1990, 157 et seq., (169). Such an opinion is not, however, unequivocally expressed in the legal literature, particularly with respect to Claimant States which attribute to themselves not only sovereign rights within some parts of the Antarctic continent, but also within maritime areas corresponding to these territories. For the view that if a claim of sovereignty was limited to territory, such claim would be "a paper one only", see D. Rothwell/S. Kaye, "Law of the Sea and Polar Regions. Reconsidering traditional norms", Marine Policy 18 (1994), 41 et seq., (46—47). 35
The rights which coastal states have regarding the territorial sea and the continental shelf resources are sovereign rights, as article 2 and article 76 of UNCLOS affirm. This means that states have a "ipso iure" title in respect of such areas. In this sense, see the North Sea Continental Shelf Case, ICJ Reports 1969, 3 et seq., (23). For a similar view see also Rothwell, see note 11,158.
36
For a thorough analysis of this problem see Ch. Joyner, "The exclusive economic zone and Antarctica. The dilemmas of non-sovereign jurisdiction", ODILA 19 (1988), 469 et seq., F. Orrego Vicuna, "The application of the law of the sea and the exclusive economic zone to the Antarctic continent", in: Orrego Vicuna, see note 32, 243 et seq.
37
For a view in favour of this interpretation of article VI of the Treaty see Rothwell/Kaye, see note 34,49.
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in UNCLOS that an express declaration must be made by the Coastal State in order to create an EEZ could be considered as a new claim under article IV of the Antarctic Treaty.38 Similarly, the evolution of the issue concerning the delimitation of maritime areas in the Antarctic seas could also involve new forms of state claims over international waters which are closest to coasts. Such problems have been recently raised by some national legislation. It could become relevant, at international level, if the legitimacy of such claims was recognized by some international conventions. An example of these new forms of claims is provided by the Chilean declaration of the so-called "presential sea".39 38
39
The requirement of an express declaration of an EEZ can be inferred from article 75 para. 2 of UNCLOS which imposes to Coastal States the duty to "give due publicity to ... geographical co-ordinates ..." of their EEZ. In this sense, see R. Churchill and V. Lowe, The Law of the Sea, 1988, 144145. In order to support the legitimacy of the delimitation of an EEZ in Antarctica, some authors have emphasized that states do not have sovereign rights within the EEZ, but only an exclusive right to exploit resources. In this sense, see G. Triggs, "The Antarctic Treaty System: some jurisdictional problems", in: G. Triggs (ed.), The Antarctic Treaty Regime. Law, Environment and Resources, 1987, 88 et seq., (91). Indeed, the problem of declaring an EEZ in Antarctica does not depend on the nature of rights enjoyed by states over the EEZ, but refers instead to the fact that such a zone can exist only if there is a corresponding coastal state which may claim exclusive rights over this area. As has been affirmed above with regard to the territorial sea and continental shelf, the presence of such states on the Antarctic continent is not generally recognized. In addition, under Antarctic norms, there are no exclusive rights in favour of the Consultative Parties, but rather, all states enjoy the same rights and are subject to the same duties. Decree No. 430 of 28 September 1991, in Diario Oficial, 21 January 1992. Under the "presential sea" doctrine, Chile claims the right to control and participate in any activity carried out by other states in the area of the high sea that is closest to the Chilean coast. The existence of such a right is justified in terms of the Chilean interest in protecting the marine environment and resources which are closest to its coast. For an overview see F. Orrego Vicuna, "The "Presential sea": defining coastal states' special interests in high seas fisheries and other activities", GYIL 35 (1992), 264 et seq. The existence of such maritime area could, first of all, provoke conflicts between contiguous states whose exercise of power over their "presential seas" could overlap. Secondly, it can be observed that the declaration of a similar area is patently in contrast with certain rules of international law. This is particularly so with regard to the norms establishing freedom of fishing in the high sea with respect to all states. In this sense see C. Joy-
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Secondly, the delimitation of maritime zones requires the presence of particular geological and geographical characteristics which do not always exist in Antarctica. In the first instance, there exist certain problems in determining the internal limit of such zones. Under article 5 of UNCLOS, this limit corresponds to the baseline of the coast. In those exceptional cases where the coast is particularly irregular, article 7 of the Convention applies the rule of straight baselines. Both articles, nevertheless, appear to be ineffective with regard to the delimitation of the Antarctic coastline due to the fact that such a line is not stable, but instead, changes with the different seasons.40 Some authors have proposed
40
ner/P. De Cola, "Chile's Presential sea Proposal: Implication for Straddling Fish Stocks and International Law Fisheries", ODILA 24 (1993), 99 et seq., (113) and R. Stevenson/B.Oxman, "The Future of the UN Convention on the Law of the Sea", AJIL 88 ( 1994), 488 et seq., (498). See also F. Francioni, "La conservation et la gestion des ressources de 1'Antarctique", RDC 260 (1996), 249 et seq., (313) and T. Clingan, "Mar presendal (The presential sea): Deja vu All over Again? — A Response to Francisco Orrego Vicuna", in: ODILA 24 (1993), 94 et seq. Thirdly, the possibility of declaring a "presential sea" in Antarctic waters does not seem to be tenable under current law of the sea. In fact, in Antarctica, there are no states whose claims to sovereignty are not contested and, thus, which can declare a "presential sea". In this sense see Joyner/De Cola, above, 113. Finally, the very purpose of the declaration of a "presential sea" does not appear to be compatible with the ATS's fundamental principles. Whereas the main purpose of the Antarctic system is to preserve Antarctica as a reserve devoted to research, the intent of Coastal States which declare a "presential sea" is instead to pursue their private interests in controlling marine areas closest to its coast and to restrict other states' freedom of action in such areas. As an example, living resources cannot be exploited except by reason of a rational use as article 2 para. 2 of the Convention on the Conservation of Antarctic Marine Living Resources states. In addition, mineral resource exploitation is absolutely prohibited by article 7 of the Madrid Protocol. Therefore, the declaration of a "presential sea" in the Antarctic waters appears to be far more inappropriate than the delimitation of the other maritime areas already recognized by international law. During summer water volumes increase due to the melting of ice. This instability can be resolved in two different ways. The first solution requires a choice of coastline as between the winter line and the summer line in order to ensure legal certainty. However, one must take into account that, under article 7 para. 3 of UNCLOS, the excessive modification of the geographical configuration of a coast by the drawing of straight baselines is not permitted. This norm affirms, in fact, that "The drawing of straight baselines
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a compromise solution in order to reconcile international rules with the special circumstances created by peculiar geological characteristics.41 However, the harmonization of current rules of international law with Antarctic geographical features does not appear to be straightforward.42 It appears evident from the above that it is not easy to apply the UNCLOS norms concerning the delimitation of maritime zones in Antarctica particularly because of the special legal status of this area, but also because of its peculiar geographical characteristics. Faced with this, one must ask whether it is useful to delimit maritime zones in Antarctica at all. Indeed, such delimitation serves no purpose. Firstly, the controversial issue of the presence of Coastal States in Antarctica ap-
41
42
must not depart to any appreciable extent from the general direction of the coast, and the sea areas ... must be sufficiently closely linked to the land ...". The same reasoning was followed by the ICJ in the AngloNorwegian Fisheries Case, ICJ Reports 1951, 116 et seq., (133). Against the application of the traditional theory of coastal baselines to Antarctica see Rothwell/Kaye, see note 34, 41-42. The second solution which is aimed at respecting the actual configuration of the Antarctic coastline, implies a situation in which there are different baselines for every season. Such a solution does not seem to offer a level of stability sufficient to enable this to be recognized as an international norm. For the view that special circumstances should be taken into account only as supplementary means for determining the continental shelf, see the decision in the Jan Mayen Case, ICJ Reports 1993, 38 et seq., (58-60). In this sense see J. Charney, "Progress in International Maritime Boundary Delimitation Law", AJIL 88 (1994), 227 et seq., (234). The author highlights the necessity "to find the optimal balance between the inherent individuality of every case and the consistent application of generally relevant procedural and substantive law". Certain problems can be found when determining the outer limit of maritime zones in Antarctica. For instance, with regard to the territorial sea, the area of 12 miles starting from the coast of the continent is made up of ice rather than water. One author has affirmed that, in these circumstances, ice cannot be considered as a continuation of the continent. In this sense see J. Machowski, The Status of Antarctica in the light of International Law, 1977, 97. Moreover, criteria established by article 76 of UNCLOS to determine the outer limit of the continental shelf do not fit with the geophysical characteristics of the Antarctic sea-bed, such as the extreme depth and the presence of ice. See C. Joyner, Antarctica and the Law of the Sea, 1992, 109. Finally, in front of the Antarctic coastline there are icebergs and pack-ice which cannot be easily assimilated to the "fringe of islands" mentioned in article 7 para. 1 of UNCLOS. In this regard see Watts, see note 12, 146.
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pears to be a critical impediment to the delimitation of maritime zones. Secondly, it does not seem to be appropriate to attribute to the Consultative Parties different rights by reason of their status as Claimant States. Thirdly, it would be unreasonable and very problematic, under the Antarctic Treaty, to have different delimitation systems in the Antarctic maritime areas starting from the coast of "claimed" territories and in the sea fronting the coast of the unclaimed portion of Antarctica.43 As the ATS has demonstrated, a legal regime that acknowledges the same rights and duties for all states seems to be the most effective one. Finally, even if in the view of some authors44 the attribution of sovereign rights in Antarctica to some states could favour the application of international law (and consequently, the protection of Antarctica), it cannot be assured that such a solution would prevent abuse by these states. In any event, it seems to be unquestionable that sovereign rights concerning Antarctica are not generally recognized. Therefore, UNCLOS norms on the delimitation of maritime areas appear to be not only incapable of defining correctly the legal status of Antarctic seas but also are not the most appropriate means of protecting the area. In the light of this, the incompatibility between these provisions and the Antarctic norms relative to the status and delimitation of Antarctic seas must lead to the conclusion that the latter ought to prevail over the former. b. Antarctica and the Common Heritage of Mankind The problem of the legal status of Antarctic seas becomes most apparent with respect to recent developments of the law of the sea regarding the regime of the high seas and the corresponding sea-bed. UNCLOS has definitively declared the deep sea-bed to be a part of the common heritage of mankind.45 In consideration of the fact that the 43
44 45
Unclaimed Antarctic territories go from 90° West Meridian to 150° West Meridian. Although sovereign rights on such territories are not claimed by any state, the unclaimed area is not considered as res nullim and, thus, cannot be subject to state occupation. See Rothwell/Kaye, see note 34, 55. See article 136 of UNCLOS and para. 2 of the Preamble to the Agreement relating to the implementation of Part XI of UNCLOS, A/RES/48/263 of 28 July 1994, ILM 23 (1994), 1311 et seq. For an overview see R. Wolfrum, "The Principle of the Common Heritage of Mankind", ZaoRV 43 (1983), 313 et seq.
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common heritage principle is usually aimed at protecting areas of common interest and at the equitable sharing of resources, some authors have advanced the idea of extending the application of this principle to Antarctica.46 This view is also supported by some states which are not parties to the Antarctic Treaty and which consider the ATS to be an inappropriate regime for the management of Antarctica and, in particular, of its resources.47 This article intends to demonstrate that there are certain fundamental elements of the common heritage concept which cannot mesh with the legal status of Antarctica. First of all, the common heritage principle excludes any possibility of sovereignty over common goods. On the contrary, under the ATS, state claims are frozen by article IV of the Antarctic Treaty.48 Moreover, effective participation within 46
47
48
In this sense see the Amerasinghe declaration made during the UN General Assembly Mtg. of 1984 in: Report of the Secretary-General to the 39th Sess. of the General Assembly in: Doc. A/39/583(Part.I), 17-20. For a more nuanced analysis of the possibility of applying the common heritage principle to Antarctica see F. Francioni, "Antarctica and the Common Heritage of Mankind", in: Francioni/Scovazzi, see note 30, 109-117. This author proposes a decentralized application of the principle by its introduction into and its management by the ATS. See also B. Conforti, "Territorial Claims in Antarctica: A Modern Way to Deal with an Old Problem". Symposium "The International Legal Regime for Antarctica", Cornell Int'l L .]. 19 (1986), 249 et seq. In this sense see the declaration of Malaysia at the UN General Assembly Mtg. of 1982, in: Doc. A/37/PV.10. More recently, Malaysia, Antigua and Barbuda, and Guinea reaffirmed that Antarctica is the common heritage of mankind at the 38th Mtg. of the First Committee during the 46th Sess. of the UN General Assembly, in: Doc. A/C.1/46/PV38. Although since the entry into force of the Antarctic Treaty the ATS has evolved towards a form of management of Antarctica increasingly aimed at taking into account the interests of all mankind, the Consultative Parties seem to have never accepted the idea of considering the Antarctic area as a part of the common heritage of mankind. The ATS, in fact, allows the Consultative Parties to act in Antarctica in pursuit of their own private interests, although this right is strongly limited in its scope. For example, notwithstanding the general obligation of cooperation established by the ATS, the Consultative Parties can carry out scientific research in Antarctica for their own interests and not exclusively for the interest of all mankind. In opposition to the extension of the common heritage principle to Antarctica one must consider the declaration included in the Final Report of the XII ATCM, which, with respect to the proposal of the UN General Assembly of considering Antarctica to be a part of the common heritage, stated that the application of new norms to Antarctica would cause instability in the
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the Antarctic Treaty is reserved only to those states which have demonstrated their interest "... in Antarctica by conducting substantial scientific research ... such as the establishment of a scientific station ...", as article IX para. 2 of the 1959 Treaty states. The selective character of the ATS does not seem compatible with the concept of common heritage under which all states have the same rights and importance. The other fundamental criterion of the common heritage principle (the equitable sharing of resources) is not even included in any instrument of the ATS.49 Thus, in order to apply to Antarctica UNCLOS
49
area, in: Antarctic Handbook, see note 5, 150. Further, some authors have highlighted that, at this stage, the application of the concept of common heritage to Antarctica is useless due to the consolidation of the ATS. See J. Crawford/D. Rothwell, "Legal Issues Confronting Australia's Antarctica", Austr. Yb. Int'l L. 13 (1992), 53 et seq., (86). In these authors' view, interests protected by ATS instruments correspond to the "present range of material interests in Antarctica" since States parties to the Treaty of Washington coincide with all the states actually interested in the Antarctic area. Thus, no other states should be entitled to take part in governing Antarctica. Moreover, Crawford and Rothwell affirm that the object and purpose of ATS measures express the same values as the common heritage principle does; for example, the protection of the environment. Therefore, the enforcement of ATS norms attain identical results as those achieved through the application of the concept of common heritage. For a partially different view affirming that the Madrid Protocol enhances the character of the common interest of mankind with respect to the need to preserve the Antarctic environment see Francioni, see note 16, 9. In this sense see Triggs, see note 38, 99 and R. McDonald, "The Common Heritage of Mankind", in: Recht zwischen Umbruch und Bewahrung, Volkerrecht, Europarecht, Staatsrecht: Festschrift fiir Rudolf Bernhardt, 1995, 154 et seq. In particular, the latter writer points out that no Antarctic norm provides, as the principle of equitable sharing does, that states which do not have the technical and financial means to carry out the exploitation of resources, can enjoy the benefit deriving from the outcome of the exploitation of other states. For a different view see Francioni, see note 39, 331334. This author highlights that some norms of the Convention on the Regulation of Antarctic Mineral Resource Activities seem to be more sensitive to the interests of developing states. However, Francioni acknowledges that, notwithstanding the preferential treatment reserved to developing states under article 41 para. 1 lit.(d) and article 25 para. 6 of CRAMRA- (which promote those exploitation projects comprised of a larger participation of states), such provisions do not completely embrace the principle of equitable sharing which is a fundamental element of the concept of common heritage.
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norms which establish that the deep sea-bed is a part of the common heritage of mankind, this concept needs to be adapted to the peculiar legal characteristics of the area.50 This, again, leads to the conclusion that Antarctic provisions must be construed as prevailing over those of the UN Law of the Sea Convention, at least with respect to states which are parties to both treaties.51 A new variant on the common heritage principle, which appears to be more suitable for the sui generis legal status of Antarctica, is the concept of the "common concern of humankind" which is included in some recent international agreements (such as the Convention on Biological Diversity52), and which is referred to in a recent resolution of the UN General Assembly.53 Although it seems to be correct to consider the preservation of the Antarctic environment as an interest of all mankind, the "common concern" principle nevertheless avoids the attribution to Antarctica of the status of res communis omnium. There are two main characteristics that render this principle one of the most relevant contemporary rules of international law in relation to Antarctica. On the one hand, the "common concern" principle can be used to resolve the potentially endless conflict between the concept of "common heritage of mankind" and the content of article IV of the Antarctic Treaty which, although precluding new claims of sovereignty on Antarctic territory, does not definitively negate the legitimacy of preexisting claims.54 In fact, the "common concern" principle is not incompatible with the concept of sovereignty.55 This characteristic of the "common 50
51
52
53
54
55
In this regard see E. Suy, "Antarctica: Common Heritage of Mankind?", in: J. Verhoeven/Ph. Sand/M. Bruce (eds), The Antarctic Environment and International Law, 1992, 96 For an analysis of the problem of mineral exploitation see under Chapter III. See para. 3 of the Preamble to the Convention on Biological Diversity. Rio de Janeiro, 5 June 1992, ILM 31 (1992), 822 et seq. A/RES/49/80 of 15 December 1994. For a more detailed analysis see J. Charney, "The Antarctic Treaty System and Customary International Law", in: Francioni/Scovazzi, see note 9, 79. In particular, one writer has highlighted how new agreements on environmental protection seem to have abandoned the concept of the common heritage of mankind. In this sense, see A.Ch. Kiss, "La Conference des Nations Unies sur 1'environnement et le developpement", A.ED.I. 38 (1992), 823 et seq., (837et seq.). The Biodiversity Convention combines both the "common concern" concept and sovereign rights on resources.
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concern" principle seems to be highly significant since, nowadays, the coexistence of the need to preserve the environment and the perceived need to promote the economic growth of states is inevitable.56 The "common concern" rule is also important for its content. "Common concern" means the interest, at the global level, in preserving certain aspects of the environment. Such an interest requires states to behave consistently so as to preserve areas of common interest such as the ozone layer, the climate and biodiversity.57 Thus, the "common concern" principle fits perfectly with new trends of international law with regard to the protection of the environment. Nevertheless, the opinion has been expressed that this principle is not applicable to Antarctica due to the fact that no Antarctic legal instrument affirms it.58 However, this skepticism seems to stem mainly from the fact that the application of the "common concern" concept to Antarctica could open such an area to the activities of third states to the Antarctic Treaty. In this case, if third states are not bound by other international treaty norms which specifically deal with the issue of the protection of the environment, they could freely operate in Antarctica in so far as their activities are not in conflict with general principles of 56
57
58
This is why the "common concern" principle is often associated with the concepts of sustainable development and of interests of future generations. For a detailed analysis of the interaction between the protection of the environment and new trends of trade liberalization see F. Francioni, "La tutela dell'ambiente e la disciplina del commercio internazionale", in: Diritto e organizzazione del commercio internazionale dopo la creazione dell'Organizzazione Mondiale del Commercio, 2nd Conference of the Italian Society of International Law, 1998, 147 et seq. This kind of goods are called global commons. By "global commons" all those areas are meant whose preservation can be guaranteed only by the universal compliance with fundamental obligations. Damage to these areas often cannot be rectified and, thus, there is a risk that the global commons may be irreparably injured. In this sense see T. Scovazzi, "Considerazioni sulle norme internazionali in materia di ambiente", Riv. Dir. Int. 75 (1992), 699 et seq., (702). See also A. Ch. Kiss, "The Protection of Environmental Interests of the World Community Through International Environmental Law", in: R. Wolfrum (ed.), Enforcing Environmental Standards: Economic Mechanisms as Viable Means?, 1996, 1 et seq. In this sense see the paper presented by the British government to the XX ATCM held in Utrecht in 1996 entitled "The relationship between the Protocol on Environmental Protection to the Antarctic Treaty and other international agreements of a global or regional scope", XX ATCM/WP10, 4.
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international law such as the "common concern" principle. Since the ATS has developed a great variety of procedural and substantial rules particularly for the protection of the environment, it, thus, seems appropriate to uphold these more specific rules on environmental protection in order to limit the otherwise larger state freedom which could, in turn, cause damage to the Antarctic area. Therefore, the application of the "common concern" principle, as well as the "common heritage" concept, needs to be adapted to the peculiar characteristics of Antarctica. In conclusion, with regard to the issue of the legal status of Antarctic seas, the norms on the law of the sea have revealed their inappropriateness for regulating such status due to the geographic and legal peculiarity of the area. The UNCLOS regime is, in fact, based on the concept of state sovereignty that is not embraced by the ATS at all. Moreover, as far as the applicability of the principle of the common heritage of mankind to Antarctica is concerned, this article's analysis has reached the conclusion that such a principle cannot be applied to the Antarctic area as it is established in the Law of the Sea Convention, but it needs, at least, to be adapted to the specific legal status of Antarctica. Therefore, a construction of article VI of the Antarctic Treaty, based merely on the analysis of the text of this norm (which appears to make the law of the sea applicable to Antarctica, at least, within the high seas) does not appear to be satisfactory. A practical interpretative approach, which attempts to ascertain the object and purpose of article VI and which construes this article in accordance with other Antarctic provisions, has highlighted that specific Antarctic norms concerning maritime issues are more suitable for regulating the status of Antarctic waters than other international provisions. Thus, it can be affirmed that even if there are no norms which definitively prohibit the application of the law of the sea to Antarctica, it seems to be most appropriate to deal with the management of Antarctic seas and, in particular, of some specific zones therein, on the basis of rules which are more in keeping with the sui generis nature of this area.
3. The Conservation of Marine Living Resources The analysis of the relationship between the ATS instruments and other international conventions concerning the protection of marine living resources appears to be particularly difficult for several reasons.
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First of all, there are a large number of species in the Antarctic area which can fall within the scope of the protection offered by several international instruments. For example, the various species of seals and whales can be mentioned, the protection of which is provided either by specific treaties or by general conventions. Secondly, the possibility of conflicts between international norms has arisen due to the existence of numerous international instruments concerning the same subject-matter. For instance, the conservation of marine living resources is promoted both by CCAMLR and UNCLOS. Thirdly, although some international conventions can be considered as leges spedales vis a vis other conventions, it is exceedingly difficult to identify the precise element that establishes the special character of a treaty since such character can depend on different factors. For example, the Convention on International Trade in Endangered Species (CITES),59 CCAMLR and the Whaling Convention60 all have the character of leges spedales for various reasons: CITES is aimed at controlling trade in species; CCAMLR is applicable only to Antarctic resources and the Whaling Convention protects only a particular species of living resources. Finally, the vast number of instruments relative to the protection of living resources can create conflicts not only between different regimes but also between instruments appertaining to the same legal system. For example, within the ATS instruments, there is, strangely, a lack of coordination between the Agreed Measures61 and the Convention on Antarctic Seals with regard to the level of protection accorded to this species.62
59 60 61 62
See note 19. See note 10 and 8. See note 5. The Agreed Measures provide, in some respects, greater protection than the Seals Convention. In fact, article 1 para. 2 of the Seals Convention (providing only for the protection of marine seals) seems to exclude from its application seals which live on ice and the continent. In this sense see Francioni, see note 39, 279 and W. Bush, "The Antarctic Treaty System: a framework for evolution. The concept of a system", in: R. Herr/A. Hall/J. Haward (eds), Antarctica's future: continuity or change, 1990, 119 et seq., (131). However, the Seals Convention appears to have a larger sphere of application since it does not exclude from its jurisdiction those animals which are in the high seas. On the contrary, the extent of application of the Agreed Measures is limited to Antarctic areas other than the high seas. In
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One can identify certain types of conflicts which occur most particularly between international treaties concerning the protection of living resources. Firstly, some international conventions which allow the exploitation of marine living resources only by bodies holding special permits,63 sometimes establish a level of protection for particular species which does not correspond to the safeguards accorded to the same species by other treaties.64 At the same time, restrictions upon the granting of permits can be based on different objectives within different instruments.65 Another source of conflict between international treaties concerning the conservation of marine species are the different approaches which these treaties adopt. For example, the safeguarding of species by requiring exploitation permits contrasts with those regimes which attempt to protect living resources in a comprehensive manner. The ecosystem approach adopted by CCAMLR can be mentioned in this regard.66 Under the ecosystem approach, species are not singularly protected, but rather the environment to which they belong is safeguarded so as to ensure that such species do not lack the natural elements necessary to survive.
63
64
65
66
this regard see J. Heap, "Has CCAMLR worked? Management Politics and Ecological Needs", in: A. Jorgensen-Dahl/W. Ostreng, The Antarctic Treaty System in World Politics, 1991, 46. The Agreed Measures allow the exploitation of living resources with permits only in order to secure food and for scientific purposes. Article 8 of the Whaling Convention allows the granting of permission to hunt specific species. Article 4 of the Seals Convention permits exploitation only to acquire food and scientific information. The Seals Convention only protects particular species of seals. It seems to imply that for other species even commercial exploitation is allowed. In this sense, see Bush, see note 62,132. Under article 3 of Annex II to the Madrid Protocol, permits must be granted only for scientific purposes. In the end, Antarctic parties agreed to abolish exploitation for securing food which had allowed many abuses in the past. See G. Cook, The Future of Antarctica. Exploitation versus Preservation, 1990 and P. Beck, "The Resource Conventions Implemented: Consequences for the Sovereignty Issue", in: International Challenge (1990), 56 et seq. In this sense see Watts, see note 12, 217.
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Moreover, the creation of protected areas can cause conflicts between different conventions.67 This type of conservation appears to be particularly effective since it allows the protection of species in situ by applying the ecosystem approach. Nevertheless, treaties establishing protected areas can be difficult to coordinate with international conventions concerning the protection of migratory species which, by their very nature, do not live in a fixed area. For example, one can mention the New York Agreement of 1995 for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the conservation and management of straddling fish stocks and highly migratory fish stocks.68 This Agreement establishes the competence of Flag, Port and Coastal States in protecting migratory species which are in the EEZ and in the high seas. This role of Coastal States cannot be easily identified in Antarctica where the sovereignty criterion does not accord with the legal characteristics of the area. Moreover, on the basis of the preferential rights recognized for Coastal States regarding living resources in their EEZ, some countries have also claimed broader powers within those areas of the high seas which are closest to their coasts.69 Although these powers have not yet been recognized by 67
68
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Article 9 of CCAMLR provides an example of this approach. In the ATS, Annex V to the Madrid Protocol regulates the question of protected areas. The possibility of creating such zones is also foreseen in article 8 of the Biodiversity Convention. Finally, with regard to the declaration of a sanctuary area in Antarctica made by the Whaling Commission see note 9 above. ILM 34 (1995), 1547 et seq. For a general comment see D. Balton, "Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks", ODILA 27 (1996), 125 et seq. In this regard, one can mention the case of Chile which has invoked broader powers in the "presential sea" on the basis of article 116 of UNCLOS which affirms that fishing in the high seas must be carried out in accordance with rights recognized for Coastal States in their EEZ. See Orrego Vicuna, see note 39, 283. Similarly, other Claimant States have declared broader maritime areas where they enjoy exclusive rights. In this sense see the British declaration of an EEZ around South Georgia and South Sandwich Islands which fall under the area of application of CCAMLR and the Argentine specification of an EEZ in the 200 miles maritime area where Argentina already claimed preferential rights (UN Law of the Sea Bulletin, No. 24, 1993, 47 and 20, 1992, 20 respectively). For an analysis of the Australian Maritime Legislation Amendment Act of 1994 in which Australia proclaimed its EEZ with respect to External Territories, see T. Scovazzi, "The Antarctic Treaty System and the New Law of the Sea: selected ques-
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any international instrument or body, it is feasible that states which claim such powers will seek to uphold them against international obligations. Therefore, the creation of protected areas may be considered by some states to be an impediment to exercising powers either granted to them by other conventions or claimed by them on the basis of new legal doctrines. Further, some obstacles to the application of international treaties concerning the protection of marine living resources in the Antarctic area are due to the incompatibility between certain definitions contained in these treaties and the legal status of Antarctica. For example, arts 3, 4 and 5 of CITES recall certain criteria which inadequately fit the characteristics of the Antarctic area.70 For instance, these norms define trade as "export" and "introduction from the sea".71 Since there is no generally recognized sovereign state in Antarctica, however, it seems improbable to define the transfer of species from Antarctica, to any state as "export".72 Additionally, in accordance with article IV of the Antarctic Treaty, Claimant States can affirm that transfers of species which take place from claimed Antarctic territories to the territories over which such states have indisputable sovereignty shall not be considered as a form of "introduction from the sea". Finally, a possible source of conflict between treaties concerning the protection of living resources derives from the presence, within such legal regimes, of governing organs. CCAMLR and the Biodiversity Convention provide examples of these kinds of treaties.73 Moreover, several
70
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tions", in: Francioni/Scovazzi, see note 9, 381; Rothwell, see note 11, 164 and F. Orrego Vicuna, "The Law of the Sea and the Antarctic Treaty System: New Approaches to Offshore Jurisdiction", in: Ch. Joyner/S.Chopra, The Antarctic Legal Regime, 1988, 97 et seq. Indeed, since article 7 of CITES establishes that this regime is not applicable to non-commercial exchanges such as those which take place between scientists, CITES seems incompatible with some ATS norms such as article 3 of Annex II of the Madrid Protocol which does not allow exploitation but for scientific purposes. "Introduction from the sea" means the seizure of species within an area which is not under the jurisdiction of any state. With regard to the inapplicability of CITES to Antarctica for this reason see S. Hajost, "International Agreements applicable to Antarctica: a survey", in: Wolfrum, see note 34, 85-86. The Commission of CCAMLR is probably the most important organ empowered to deal with the problem of the protection of marine living resources. Nevertheless, one cannot ignore the existence of organs belonging
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conventions, such as UNCLOS and CITES, attribute specific competencies to States parties. A conflict of competence between states and international organs is, thus, always possible. For this reason, some conventions have established certain forms of coordination between such organs. For example, article 23 of CCAMLR obliges the Commission and the Scientific Committee to cooperate with the International Whaling Commission. Moreover, both the Conference of CITES and the Whaling Commission have made reciprocal declarations acknowledging their respective competencies.74 In short, cooperation between States parties to different conventions seems to be the best solution to treaty conflicts concerning overlapping competencies. Indeed, cooperation is probably one of the most effective means for resolving all types of incompatibility between international norms. Treaties concerning the protection of living resources also provide for several forms of cooperation. A form of cooperation between states in the process of concluding treaties concerning a subject-matter that is already regulated by other conventions is the adoption of compatibility clauses. With regard to the issue of the conservation of living resources, one can mention article 14 para. 4 of CITES which states: "A State party to the present Convention, which is also a party to any other treaty, convention or international agreement, which is in force at the time of the coming into force of the present Convention and under the provisions of which protection is afforded to marine species included in Appendix II, shall be relieved of the obligations imposed on it under the provisions of the present Convention with respect to trade in specimens of species included in Appendix II that are taken by ships registered in the State and in accordance with the provisions of such other treaty, convention or international agreement" and article 22 para. 2 of the Biodiversity Convention which reads: "Contracting Parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea". These norms seem to affirm the priority of application of treaties concerning the protection of marine species. They are patently aimed at favouring the application of the Law of the Sea conven-
74
to different legal regimes such as the Secretariat established by article 24 Biodiversity Convention. In this regard see Maffei, see note 9,196.
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tions as lex specialis ratione materiae.75 Likewise, since CCAMLR is a treaty aimed at protecting specific marine resources, it is feasible to affirm the priority of this treaty over CITES as well. However, as has already been observed,76 compatibility clauses do not often provide a definitive solution to treaty conflicts. Another useful means of achieving cooperation is the exchange of information.77 The exchange of information can assist in avoiding duplication of experiments and, thus, needless exploitation of Antarctic resources.78 For instance, article 14 para. 3 of the 1995 New York Agreement mandates scientific research as a form of cooperation to preserve living resources. Occasionally, states are expressly required to cooperate in order to preserve resources. For example, article 5 of the Biodiversity Convention demands that states "cooperate ... in respect of areas beyond national jurisdiction ... for the conservation and sustainable use of biological diversity". The presence of international norms establishing the duty of cooperation in several legal systems leads to the conclusion that cooperation is considered probably the most effective instrument for the prevention and resolution of conflicts between treaty norms, including treaties concerning the protection of living resources. Moreover, the cooperation principle is also a rule of customary international law.79 Thus, all states must cooperate in order to find the best solution for preserving living resources. It could be argued even that if certain treaty norms ap75
In this sense, see the working paper presented by the Chilean Government during the XIX ATCM in Seoul and entitled "Relationship between the Protocol on Environmental Protection to the Antarctic Treaty and Other International agreements of a Global Scope", XIX ATCM/WP20, 8.
76
See above Chapter I. 2.
77
Some examples of norms establishing the duty of information exchange are article 4 of the Whaling Convention and article 12 of the Agreed Measures.
78
The Final Report of the Meeting on the Revision of the Seals Convention, held in London from 12 to 16 September 1988, affirms that it is necessary to ensure "the fullest possible exchange of information" among scientists in order "to minimise wasteful duplication" of experiments, in: Antarctic Handbook, see note 5, 163 and 166.
79
The cooperation principle has been fixed in Principle 7 of the Rio Declaration on Environment and Development. Rio de Janeiro, 14 June 1992, ILM 31 (1992), 874 et seq. See also L. Elliot, "Continuity and Change in cooperative International Regimes: the Politics of the Recent Environment Debate in Antarctica", in: Working Papers of the Research School of Pacific Studies, The Australian National University, No. 3, 1991, 1 et seq.
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pear to be the best instrument for the enforcement of the duty of cooperation, the measures established by such norms should be applied also by third states since compliance with the cooperation principle is an obligation of customary law.80 In conclusion, with regard to conflicts between international instruments concerning the protection of marine living resources, it seems appropriate to seek a solution that allows the simultaneous application of as many treaties as possible while sacrificing only those norms which seem to be inessential to the regulation of a specific subject-matter. Therefore, in cases where different regimes appear to offer the same level of protection and to cause no harm to living resources, it seems that states must simply apply those treaties to which they are parties. This solution also seems to avoid the problem of establishing the applicability of these conventions to third states. After all, many treaties use, in any case, the same means to prevent the exploitation of living resources. In this regard, global agreements (such as the Biodiversity Convention) can be used as framework-treaties which establish general principles on the protection of living resources. Since these principles seem to reflect, to a large extent, norms of customary law, it appears appropriate to interpret other treaties in conformity with such principles irrespective of whether or not states are parties to the agreements in which these rules are contained. Additionally, global treaty norms can be applied to fill lacunae which are not dealt with by any other international instruments. But, the enforcement of general norms requires, usually, specific instruments. Such instruments are the norms appertaining to conventions which regulate the protection of living resources in a more specific manner. These conventions, normally, cannot be considered as customary law. Nevertheless, their applicability to third states can still occur if the norms of these conventions are demonstrably the most specific rules for the regulation of a particular geographic area or situation and if third states are not bound by any other specific provision relating to the same area or situation. The specificity of these norms seems to be best ascertained through a policy-oriented approach which takes into account the object and purpose of the relevant provisions rather than through the automatic application of some general rule of international law such as
80
In this sense see Charney, see note 53, 72.
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the lex specialis principle.81 With regard to the issue of the conservation of living resources, the main value on which the policy-oriented approach seems to be based is the protection of resources rather than their exploitation.82 However, the concept of "specificity" is, in itself, an insufficiently clear notion to allow the automatic application of a treaty norm to third states. In fact, the criteria on which such a concept is based are various. In some cases, the territorial criterion prevails in determining the special character of a norm. In other cases, other criteria are preferred. One can mention the peculiarity of some species such as whales or the characteristic of certain types of activities which exploit living resources such as commercial trade. Therefore, the best method of asserting the "specificity" of treaty norms in an unequivocal manner seems to be through the coordination between States parties and states non parties to the various conventions. In fact, if such states cooperate in order to identify certain common interests whose protection is an essential aim of all such conventions, it will be easier to accept the applicability of a treaty which appears to be particularly suitable for the protection of such interests even for those states which are not parties to that treaty.
81
82
The lex specialis principle states that if there is an instrument which deals with a subject in a more specific and more appropriate manner, this instrument must be considered as preferable to others for the regulation of such subject. However, in the present writer's view, the specialty of all treaty norms must be evaluated in relation to the actual object and purpose of such norms rather than on the basis of certain abstract criteria. For a similar view see Ch. Rousseau, Droit international public, 1987,1 et seq., (55). The specificity of treaty norms concerning the conservation of Antarctic living resources must be ascertained by taking into consideration both the territorial extent of application of such norms and the peculiar characteristics of the resources protected by them. The protection accorded by CCAMLR to Antarctic marine living resources demonstrates the expertise of people who have been working under this treaty for several years. Simultaneously, the Whaling Convention seems to be the most appropriate instrument to regulate the protection of whales since the International Whaling Commission has demonstrated its serious interest in protecting these animals.
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4. The Protection of the Antarctic Marine Environment a. Antarctica and the UNCLOS Provisions Concerning the Protection of the Marine Environment Another of the major areas in which the possibility of treaty conflicts is most likely to occur is the protection of the marine environment. This subject-matter is regulated by several conventions. Some of these have a general content which expresses fundamental principles of international law. Other instruments contain specific norms which provide detailed procedures designed to implement these general rules. Among international conventions which deal with the question of the protection of the marine environment in a general manner, UNCLOS appears to be the most relevant. Section 1 of Part XII of the Law of the Sea Convention establishes general principles of international environmental law. Although such principles are universally recognized as rules of customary international law,83 some norms of Part XII of UNCLOS can contrast with ATS provisions. In particular, article 206 of UNCLOS which deals with the problem of impact assessment appears to offer less protection of the marine environment than Antarctic norms. It could be observed that article 206 takes into account only those environmental impact phenomena which cause "substantial pollution" and "significant ... changes" to the environment. By contrast, article 1 para. 2 of Annex I to the Madrid Protocol obliges the carrying out of impact assessments with respect to all activities which cause more than a "minor or transitory impact" on the environment.84 83
84
In this sense see T. Treves, "Oceans", in: T. Scovazzi/T. Treves (eds), World Treaties for the protection of the Environment, 1992, 149 et seq., (151) and A. Boyle, "Marine Pollution under the Law of the Sea Convention", AJIL 79 (1985), 347 et seq. Moreover, the affirmation included in the English paper presented during the XXth ATCM appears to be particularly interesting as it states that the Montego Bay Convention is "a framework for international environmental law regarding oceans in that it provides a basis for a series of treaties (both global and regional) on each ... topic", XX ATCM/WP 10, see note 58, 5. Recently, the Agreement on straddling and highly migratory fish stocks has embodied some of the most recent principles of environmental law. For example, one can mention subparas (c) and (e) of article 5 which respectively recognize the precautionary principle and the ecosystem approach. Article 3 para. 2 lit.(e) of Annex I of the Protocol considers as relevant also the "possible indirect or second order impacts" of human activities on the
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Another relevant norm contained in UNCLOS which can interfere with ATS provisions is article 234 concerning the protection of the environment in ice-covered areas. This norm attributes to Coastal States the power to protect the marine environment in their EEZs. For present purposes, article 234 appears to be relevant as providing possible evidence of the intent of States parties to UNCLOS in dealing with the management of iced zones including Antarctica. Although the legitimacy of the delimitation of the EEZ in the Antarctic seas is controversial, the general content of article 234 could be interpreted to suggest the applicability of this norm also to the Antarctic area.85 Hence, even if general principles concerning the protection of the marine environment established in UNCLOS seem to be compatible with the provisions of the ATS,86 one cannot exclude certain conflicts between the norms contained in these two legal regimes due to the different criteria on which such regimes are based. Similarly, Antarctic provisions cannot be automatically considered as lex specialis with respect to UNCLOS general provisions concerning the protection of the
85
86
Antarctic environment. The Annex summarizes rules already established in previous Antarctic instruments concerning the problem of impact assessment. Among these instruments, Rec. VIII-11 is worth mentioning, in: Antarctic Handbook, see note 5, 2031. Moreover, the impact assessment procedure is one of the fundamental means in CRAMRA for the prevention of the harmful effects of mineral activities on the environment, as article 2 of the Convention affirms. One of the most peculiar characteristics of the system of environmental impact assessment established by the Madrid Protocol is the fact that article 8 para. 2 extends this kind of control also to research activities. A specific contribution to the recognition of the noxious effect of scientific research on the environment is provided by CRAMRA. In this sense see L. Kimball, "CRAMRA and other environmental regimes in the ATS: how well does it fit", in: Jorgensen-Dahl/Ostreng, see note 62, 139 and P. De Cesari, "Scientific Research in Antarctica: new developments", in Francioni/Scovazzi, see note 9, 413 et seq., (454). In particular, and although during the Illrd Conference on the Law of the Sea the applicability of article 234 was excluded with regard to the Antarctic area, the definitive text of the article is silent in this respect. In this sense see F. Auburn, Antarctic Law and Politics, 1982, 126. In this sense see Rec. XV-4, in: Antarctic Handbook, see note 5, 2073. This recommendation affirms that Part XII of UNCLOS expresses general principles on the protection of the marine environment and, thus, it must be respected.
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marine environment and, thus, as taking precedence over them.87 In fact, the specialty of treaty norms must be ascertained on the basis of the actual object and purpose of such norms and not in accordance with an abstract rule such as the lex specialis principle. Instead, it is possible to affirm that the Consultative Parties intended to apply UNCLOS principles insofar as they are compatible with the unique geographical and legal nature of Antarctica. However, the main reason why the possibility of a conflict between the ATS and UNCLOS norms is ever-present depends on the fact that such regimes attribute powers and obligations to different bodies concerning the protection of the marine environment. Whereas UNCLOS in Section 6 of Part XII recognizes a decentralized system of attribution of implementing powers to different states by reason of their proximity and connection to the marine environment to be protected,88 the ATS establishes a unified regime of rights and duties for all States parties. In this sense, the kind of supervisory regime provided by Antarctic norms seems to be more general than that established by UNCLOS. The general character of the ATS is becoming increasingly evident due to the institutionalization of this legal regime. In fact, the creation of international organs such as the CCAMLR Commission and the Committee on Environmental Protection demonstrates the intent of the Consultative Parties to impose uniform rules upon all states subject to the ATS
87
88
The opinion that Antarctic norms are lex specialis with respect to UNCLOS rules is expressed by Rothwell, see note 11, 180. For a general comment on the peculiar character of the ATS norms concerning the protection of the environment see S. Pannatier, L'Antarctique et la protection Internationale de I'environnement, 1994; F. Orrego Vicuna, "The Protocol on Environmental Protection to the Antarctic Treaty: Question of Effectiveness", Geo. Int'l Envtl L. R. 7 (1994), 6 et seq.; S. Blay, "New Trend in the protection of the Antarctic Environment: the 1991 Protocol", AJIL 86 (1992), 377 et seq. and J. Puissochet, "Le Protocole au Traite sur 1'Antarctique, relatif a la protection de Penvironnement", A.F.D.I. 37 (1991), 755 et seq. Article 220 of UNCLOS attributes to Coastal States the power to control ships which cross into in their territorial seas and EEZs. Moreover, article 218 recognizes for Port States the power to carry out inspections on ships which berth in their harbours. Finally, under article 217, Flag States have all residual powers on their national ships in order to protect the marine environment. For a more specific analysis of this matter see Churchill and Lowe, see note 38,257-258.
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and, possibly also upon third states.89 However, the extremely specific content of Antarctic norms concerning the protection of the marine environment does not allow a consideration of such norms as being rules of customary international law. Moreover, it appears to be particularly difficult to assert that these ATS norms bind third states. In short, the only rules regarding the protection of the marine environment which seem to be applicable to all states are general principles of international law concerning this matter. First of all, general principles of international environmental law are framework norms in accordance with which treaty regimes can autonomously establish specific rules concerning a particular subjectmatter. Such principles do not conflict with ATS provisions, but the way in which they are implemented can differ within the ATS and other international regimes. In these circumstances, general principles can be useful as interpretative instruments to ascertain the actual scope of those rules which have a specific content and to coordinate international provisions appertaining to different regimes which regulate similar subjects. Moreover, general principles can provide a minimum protection of certain fundamental interests in relation to those states which are not bound by any specific international instrument. b. The Prevention of Marine Pollution in Antarctic Seas Besides general principles concerning the protection of the marine environment, there are some international conventions which deal with this problem in a specific manner and that can interfere with the application of ATS norms. Of particular interest are treaties concerning the prevention of marine pollution. With regard to this matter, the Consultative Parties themselves have decided to apply the rules established in these treaties rather than to adopt specific Antarctic instruments. In particular, States parties to the ATS have referred to the MARPOL regime90 in
89
90
In this regard see Ph. Gautier, "Institutional Developments in the Antarctic Treaty System", in: Francioni/Scovazzi, see note 9, 34. Such a regime is constituted by the Convention for the Prevention of Pollution from Ships and its accompanying Protocol, London, 2 November 1973, ILM 12 (1973), 1319 et seq. and on 16 February 1978, ILM 17 (1978), 546 et seq. For a thorough analysis see A. Boyle/D. Freestone/K. Kummer/D. Ong, "Marine Environment and Marine Pollution", in: Ph. Sand (ed.), The Effectiveness of International Environmental Agreements, 1992, 149 et seq.
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several instruments91 and have definitively incorporated the provisions of this regime into Annex IV of the Madrid Protocol.92 Notwithstanding the intention of State parties to the ATS to respect MARPOL provisions, as article 14 of Annex IV to the Madrid Protocol attests,93 these two regimes present several aspects of divergence or even incompatibility. Firstly, in some cases MARPOL obligations are stricter than the obligations laid down in the Madrid Protocol.94 In this case, States parties to both MARPOL and to the ATS should respect the stricter obligations as compared to those states which are bound only by the Madrid Protocol. Secondly, certain loopholes are revealed in the MARPOL regime with respect to its treatment of the question of marine pollution. As an example, three of the five Annexes to the Convention which provide for the management of certain particular polluting substances are not yet in force. In this case, it should be questioned whether the declaration of the Madrid Protocol stating the conformity of the Protocol with MARPOL provisions can render the norms included in the Annexes to
91
92
93
94
Rec. XV-4 invites States parties to adopt measures "to ensure compliance ... with the relevant provisions" of MARPOL, in: Antarctic Handbook, see note 5, 2073. Moreover, the Final Report of the XVth Antarctic Treaty Consultative Meeting "calls upon [States parties] to become parties to" the MARPOL regime, ibid., 2075. See Bush, see note 62, 129. This author considers that the Madrid Protocol is "at most a rudimentary repeat of MARPOL obligations and in some respects a woefully inadequate reflection of them". Indeed article 14 affirms that "(w)ith respect to those Parties which are also Parties to MARPOL 73/78, nothing ... shall derogate from the specific rights and obligations thereunder". Therefore, the Consultative Parties that are not parties to MARPOL can derogate from the provisions of this convention. For a comparison between the Madrid Protocol and MARPOL see L. Pineschi, "The Prevention of Marine Pollution from Ships According to Annex IV to the Protocol on Environmental Protection to the Antarctic Treaty", Marine Pollution Bulletin 24 (1992), 228 et seq. For instance, whereas under Annex II to MARPOL the discharge of liquid substances in Antarctica is forbidden, article 4 of Annex IV to the Madrid Protocol merely affirms that such discharge must not be "harmful to the marine environment". This difference is highlighted by the British paper presented to the XXth ATCM, XX ATCM/WP 10, see note 58, 13.
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MARPOL applicable to the Antarctic area even if they are not in force in other marine zones worldwide.95 Thirdly, there are some situations in which MARPOL norms are incompatible with the legal status of Antarctica and, thus, their application in the area appears to be ineffective.96 For instance, even if the MARPOL regime has accorded to Antarctica particular protection as a "special area" under Annex I, II, and V,97 it must be observed that such an area includes the zone below 60° South Latitude and does not embrace the wider area of the so-called Antarctic Convergence established by CCAMLR.98 In conclusion, as far as the relationship between the MARPOL regime and the ATS is concerned, some conflict appears to be unavoidable. In fact, unlike UNCLOS norms, MARPOL provisions have a
95
96
97
98
This problem is particularly relevant with regard to inspections. Under article 14 of Annex IV to the Madrid Protocol, MARPOL provisions, including those appertaining to the Annexes which are not yet in force, must be applied. Nevertheless, the inspections performed by Gateway Port States on ships transporting substances regulated by MARPOL Annexes not yet in force could be carried out only if such Port States are parties to the Madrid Protocol. On the contrary, states which are only bound by MARPOL could not carry out inspections related to these substances. In this sense see the paper presented by the Dutch government during the XXth ATCM and entitled "Inspections of ships in Gateways Ports to Antarctica on the basis of MARPOL 73/78 and in Antarctic Ports under the Environmental Protocol (Annex IV) to the Antarctic Treaty", XX ATCM/WP 9, 2-3. For an overview of the problem of inspections in Antarctica see P. Giuliani, "Inspections under the Antarctic Treaty", in: Francioni/Scovazzi, see note 9, 469-470. The prohibition against the discharge of noxious substances, provided in Annex II to MARPOL, in the territorial sea is not adaptable to Antarctica where the existence of such a marine area is uncertain. In this sense, see Hajost, see note 72, 87. Antarctica has been considered as a special area under Annexes I and V to MARPOL in 1990, Resolution MEPC 42(30), in: MEPC 30 (24), Annex V, 1-2. The amendment of Annex II to MARPOL was made in 1992, Resolution MEPC 57(33), in: MEPC 33/20/Add.l, Annex 8, 8. For a view in favour of the extension of the area of application of MARPOL, see the Report presented by Working Group I to the XlXth ATCM, XIX ATCM/WP 33, 4. Antarctic Convergence is the maritime zone "where cold Antarctic waters which are moving northwards dip beneath the warmer southward-moving sub-tropical waters". For this definition see Watts, see note 12,151.
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very specific content and sphere of application. Therefore, when a conflict between such provisions and certain Antarctic norms occurs, it seems to be appropriate to identify the most effective norms for the preservation of a particular area rather than to consider all norms as applicable by reason of the fact that all of them have the objective of preventing marine pollution. The traditional concept of effectiveness has been used to ascertain the extent of the powers of an entity such as a state or an individual. However, effectiveness can also be valuable to estimate the extent of application of a treaty regime, in particular, with respect to third states." In the present writer's view, effectiveness of treaty norms should also mean the proven capacity of these norms of dealing with a specific subject. Such capacity should be objectively inferred from the positive results arisen from the application of treaty norms. A solution favouring the application of the most effective norms seems to be also accepted by the Consultative Parties which, as far as marine pollution is concerned, have adopted rules which derive from MARPOL. Nevertheless, under a rigid legal point of view, it still appears to be improbable to impose obligations contained in certain treaties upon states which are not parties to them. However, in some specific fields such as the prevention of marine pollution, and although these norms do not form a part of customary international law, they seem to be the most appropriate means of controlling the harmful effects of pollution on Antarctic seas. The appropriateness of these norms is not determined on the basis of some theoretical concept such as the category of objective regimes. Rather, from the analysis of the actual object and purpose of provisions, as a policy-oriented approach demands, it can be inferred that such provisions are the most appropriate instrument for dealing with this matter. In fact, they demonstrate a particular competence which renders them opposable even against third states. In the present writer's view, the opposability of treaty norms such as some specific Antarctic provisions concerning marine pollution or MARPOL norms is based upon the capacity of these norms to be universally applied due to the fact that both States parties to the treaty to which such norms belong and third states consider them as the most appropriate means of dealing with a specific problem. In order to ascertain the opposability of treaty norms against third states the acquiescence of such states is a decisive factor. Nevertheless, acquiescence does not appear to be a suffi-
99
For an overview of the concept of effectiveness applied to treaty regimes see J. Touscoz, Leprincipe d'effectivite dans I'ordre international, 1964, 91.
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cient condition for the establishment of the customary law character of such norms. Therefore, although appropriateness renders certain treaty norms opposable against third states, these norms cannot be considered as rules of customary law.100 Appropriateness must not be confused with the concept of specificity, which is a characteristic that has been acknowledged in favour of the norms concerning the conservation of living resources in this article.101 The opposability of specific treaty norms against third states is possible only when such states are not bound by other international conventions which deal with a similar subject-matter in an equivalent manner. By contrast, the appropriateness of treaty norms which makes these provisions the best instrument for regulating a specific problem and which must also be inferred from the acquiescence of third states to such provisions excludes the application of other international norms. Both the ATS and MARPOL seem to have a proven capacity to deal with the subject-matter of marine pollution. By reason of such capacity, states which are not parties to these treaties should apply the solution proposed by the ATS and MARPOL rather than to seek for alternative procedures to enforce the general principle of environmental law which imposes upon all states the duty to prevent marine pollution. In fact, the measures adopted by the ATS and MARPOL have been demonstrated to be both protective and environmentally beneficial. By contrast, the adoption of different procedures for the control of marine pollution by other treaties could affect the environment in a harmful manner. c. Treaty Regimes on Waste Disposal Another important issue concerning the protection of the Antarctic marine environment is the problem of waste disposal. Although this problem has always been one of the most serious causes of environmental devastation,102 the Consultative Parties gave scant regard to this matter for a considerable time.103 They have acknowledged only recently the
100 por t]ie importance of third states' acquiescence for evaluating the effectiveness of international law see Brownlie, see note 27, 160. 101 See above Chapter II. 3. 102 One writer highlights the potentially dangerous effects that waste could have on Antarctica if its introduction was allowed into the area. In this sense, see E. Sahurie, The International Law of Antarctica, 1992, 363. 103 fherg are only a few Antarctic instruments which concern this subject. Rec. VIII-11 affirms that waste disposal consists of discharging such sub-
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necessity of identifying particular instruments aimed at regulating waste disposal, both by creating autonomous instruments such as Annex III to the Madrid Protocol and by adopting rules established by other treaties such as the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matters104 and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.105 The Consultative Parties seem to have accepted the principles included in both these conventions.106 Nevertheless, some inconsistencies between the Antarctic regime and the other conventions are apparent. Firstly, both the London and Basel conventions base their systems of waste management on the principle of state sovereignty. In fact, the majority of their norms attribute to Flag States, Port States or Coastal States the power to exercise control over ships which carry out the dumping of waste or which transport noxious substances.107 Moreover, the Basel Convention expressly mentions the concepts of import and export which imply the existence of transboundary movement. This kind of movement could not take place when ships destined for Ant-
104 105
106
107
stances into the sea, in: Antarctic Handbook, see note 5, 2061. More detailed rules are provided by Rec. XV-3 where waste disposal is divided into several phases, ibid. 2064. For a specific analysis of this issue see J. Barnes/P. Lippermann/K. Rigg, "Waste Management in Antarctica", in: Wolfrum, see note 34, 491 et seq. London, 13 November 1972, ILM 11 (1972), 1291 et seq. Basel, 22 March 1989, ILM 28 (1989), 657 et seq. For a thorough analysis of this problem see K. Kummer, International Management of Hazardous Wastes, 1995. Paragraph 85 of the Final Report of the XVth ATCM states that "(i)n the elaboration of a waste classification system, ... care should be taken to avoid inconsistencies with classifications employed in ... the 1972 international convention for dumping ... and the Basel Convention ...", in: Antarctic Handbook, see note 5, 2068. See article 7 para. 1 subparas (a) and (c) of the London Convention on dumping which attributes control to Flag States and to states under whose jurisdiction ships are found. Similarly, article 4 of the Basel Convention confers such a power upon export and import states. For an overview of this problem see W. Lang, "The International Waste Regime", in: W. Lang/H. Neuhold/K. Zemanek (eds), Environmental Protection and International Law, 1991, 147 et seq., (158).
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arctica do not cross any state border.108 Indeed, article 4 para. 6 of the Basel Convention attempts to reconcile the approach adopted by the Convention which is based on the state sovereignty criterion with the particular legal status of Antarctica. This article prohibits "the export of hazardous wastes or other wastes for disposal within the area south of 60° South Latitude, whether or not such wastes are subject to transboundary movements". However, the wording of article 4 para. 6 does not seem to clarify whether or not the state sovereignty criterion must be applied with respect to the Antarctic area. On the one hand, the adoption of the term "export" rather than the use of the expression "transfer" suggests that a movement of wastes from one country to another must occur. On the other hand, the final part of article 4 para. 6 seems to be more protective of Antarctic environment than the former since it disregards the issue whether or not such transfers involve transboundary movements. Therefore, one can assume that states which can reach Antarctica without transboundary movements will support the less protective construction of article 4 para. 6. A further reason why the norms of the London and Basel conventions are unsuitable for application to the Antarctic area without any specific adaptation, is due to the fact that the criterion of state sovereignty adopted by these conventions would favour Claimant States. In fact, they would have wider powers than other Consultative Parties.109 This is patently in contrast with the approach adopted by Antarctic instruments concerning waste disposal which establish the same rights and duties for all States parties. Indeed, the Consultative Parties seem to have accepted that Antarctica has a peculiar legal status, as article IV of the Antarctic Treaty clearly indicates. Therefore, it appears improbable that such states could deny this fundamental rule of the ATS in order to apply other international norms. Secondly, the provisions of the London and Basel conventions do not take into consideration all the criteria established by the Antarctic Treaty and its associated instruments. For instance, although article 4 para. 6 of the Basel Convention prohibits the export of hazardous wastes into the Antarctic area, it does not take into account the concept
108
109
This hypothesis could be feasible if one takes into account transport from some Claimant States such as Argentina or Chile to their claimed Antarctic territories. In this sense see M.T. Infante, "The Applicability of Maritime Conventions to Antarctica", in: F. Francioni (ed.), International Environmental Law for Antarctica, 1992, 135 et seq., (146).
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of the Antarctic Convergence established by CCAMLR.110 This means that even if States parties to the Basel Convention appear to be concerned to protect the Antarctic environment, the norms of the Convention cover a narrower area than that which the Consultative Parties seek to protect. Thirdly, there are some substantial differences between the norms of the ATS and the other conventions. Whereas article 4 para. 6 of the Basel Convention prohibits the introduction into the Antarctic area of all hazardous substances, article 7 of Annex III to the Madrid Protocol only prevents the introduction of some specific waste.111 Similarly, Annex I to the Anti-dumping Convention prohibits the discharge of radioactive substances into the sea. By contrast, Annex III to the Madrid Protocol does not take into account this problem at all.112 In conclusion, the regulation of waste management in Antarctica is mainly carried out with reference to instruments which do not pertain to the ATS. Nevertheless, the Consultative Parties seem to prefer to create autonomous norms when possible. In any case, these norms do not appear to be opposable by third states. For example, the Madrid Protocol provisions concerning waste are neither norms of customary law nor rules which should prevail over others by reason of their particular appropriateness in dealing with this subject-matter as it appears within Antarctic provisions concerning marine pollution.113 In fact, neither the Consultative Parties nor third states seem to acknowledge special effectiveness in favour of Annex III of the Madrid Protocol or with regard to 110 111
112
113
For the concept of the Antarctic Convergence, see note 98. This difference between the two legal norms is highlighted by the Chilean paper presented to the XlXth ATCM, XIX ATCM/WP20, see note 75, 10. For a critical view regarding the approach adopted by Annex III see L. Pineschi, Laprotezione dell'ambiente in Antartide, 1992, 320. In reality, there are some Antarctic instruments which invite the Consultative Parties to cooperate in order to establish rules concerning the movement of radioactive substances. See Rec. 2 done in 1995 during XlXth ATCM, in Final Report of the XlXth ATCM, 97. Probably, the Consultative Parties have considered that the banning of such substances by article V of the Antarctic Treaty constituted a sufficiently effective rule. Nevertheless, such a norm does not seem to prohibit, in the Antarctic seas, the passage of ships which carry radioactive substances. Moreover, the very existence of an instrument such as the above-mentioned recommendation demonstrates the need to improve the regulation of transport of radioactive substances in Antarctica. See above, 518, 519.
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the Basel and London conventions.114 Therefore, the general principle of international law which affirms the duty to protect the environment can be considered as the only limitation upon unlawful waste disposal carried out by those states which are not bound by any international convention. With regard to treaty norms concerning waste disposal which impose precise obligations, they appear to be equally suitable for dealing with a particular problem and, thus, all of them can be considered applicable. In sum, norms concerning the protection of the environment have provided an important example of the interaction between treaty norms and have also illustrated a possible solution to the conflicts affecting the interaction of such norms. A pragmatic and policy-oriented approach which takes into consideration the specific aims of the relevant norms (such as the purpose of assuring the best protection of the environment) appears to be a more effective instrument than the application of the legal theories which disregard the actual object and effectiveness115 of treaty norms in favour of solutions based on the application of abstract criteria.
III. The Management of Antarctic Mineral Resources The question of the exploitation of Antarctic mineral resources involves many interests which are often in conflict. On the one hand, such exploitation is able to satisfy states' economic needs. On the other hand, mineral activities can violate the general interest in protecting the Antarctic environment. In order to respect these different interests, states have advanced the applicability of international treaties other than Antarctic norms. In fact, the ATS regime which is currently in force does not permit many possibilities for the exploitation of mineral resources since the most relevant Antarctic norm concerning this subject, article 7 of the Madrid Protocol, states that "(any) activity relating to mineral resources other than scientific research, shall be prohibited". Indeed, in 1988, the Consultative Parties created a specific regime concerning the 114
115
Notwithstanding the fact that article 4 para. 5 and article 7 of the Basel Convention establish the applicability of this treaty to exports to, and imports from, third states, it appears evident that such obligations can be imposed only upon states parties to the Convention when they undertake certain exchanges which involve third states. For the concept of effectiveness, see above, 517, 518.
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management of mineral resources, the already mentioned CRAMRA. This treaty, however, has not yet entered into force and, indeed, has been set aside by the adoption of the Madrid Protocol.116 It is nevertheless important to compare the CRAMRA regime to UNCLOS norms concerning the exploitation of mineral resources in order to demonstrate, once more, the difference between the approaches adopted by the ATS and UNCLOS respectively. Firstly, CRAMRA provisions concerning the exploitation of those resources found in the continental shelf do not embrace the criterion of territorial sovereignty as UNCLOS does. CRAMRA does not determine preferential rights of exploitation in favour of Claimant States, but rather, it establishes a procedure that all states must respect in carrying out mineral activities in the area. Moreover, there is a further point of conflict between CRAMRA and UNCLOS. Both these regimes have created organs which are responsible for authorizing and controlling mineral activities. In this regard, conflicts of competence among organs belonging to different regimes seem to be unavoidable.117 Although the
116
117
Considering the new rule sanctioned by article 7 of the Madrid Protocol, CRAMRA does not have any chance to enter into force at least before the expiry of 50 years as established by article 25 para. 2 of the Protocol. Article 25 para. 2 affirms that "... after the expiration of 50 years from the date of the entry into force of this Protocol, any of the Antarctic Treaty Consultative Parties so requests ..., a conference shall be held ... to review the operation of this Protocol". Conflicts of competence can involve, in particular, the relationship between the Antarctic Mineral Resources Commission established by article 18 of CRAMRA and the Commission on the Limits of the Continental Shelf provided for in Annex II of UNCLOS. As article 3 of the Annex states, the UNCLOS Commission gives advice to states which wish to fix the outer limit of their continental shelf beyond 200 nautical miles. The Commission's advice seems to be determinative for this type of delimitation of the continental shelf since states which do not agree with the Commission's decision must submit a further request to this organ, as article 8 of Annex II establishes. This function of the UNCLOS Commission could open the possibility of conflict between this organ and the CRAMRA Commission with regard to which of these two organs should be competent to delimit the Antarctic continental shelf. In fact, under article 5 of CRAMRA, the outer limit of the continental shelf corresponds to the geographical extent of application of UNCLOS. For the view that a conflict between the two Commissions is possible, see Watts, see note 12, 158. However, the most powerful organ of UNCLOS is the International SeaBed Authority whose functions of supervision of mining in the deep sea-
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entry into force of CRAMRA appears to be unlikely, if it occurred, conflicts between such a treaty and the norms of UNCLOS would be inevitable. The solution to such a conflict must be found in the specific character of the regime of CRAMRA. Article 3 of the Convention affirms the exclusive competence of CRAMRA in regulating mineral activities in Antarctica although it is territorially limited to the Antarctic continent and continental shelf.118 Therefore, if this treaty enters into force in the future, States parties to it would be bound to respect this exclusiveness in the area concerned. Simultaneously, third states no longer seem to be entitled to claim sovereign rights over Antarctica, due to their prolonged acquiescence within the existing situation.119 Consequently, no state can seek to apply the norms of UNCLOS concerning the continental shelf. With regard to the regime of the Madrid Protocol, the strict prohibition of mineral exploitation established by article 7 seems to conflict with the norms of UNCLOS which permit the exploitation of mineral resources appertaining to the continental shelf120 and to the deep seabed.121
bed are established in Section 4 of Part XI. Although article 5 of CRAMRA excludes the applicability of the Convention to "the sea-bed and the subsoil beyond the geographic extent of the continental shelf", this does not mean that all conflicts among the International Authority and the organs of CRAMRA can be eliminated. In fact, if mineral activities carried out in the deep sea-bed under the UNCLOS regime can cause damage to the area which is under the jurisdiction of CRAMRA, the Antarctic Mineral Resources Commission could feel entitled to impede the Authority's decisions. 118
For a view in favour of the attribution of the character of a special regime to CRAMRA with respect to UNCLOS, see Watts, see note 12, 230. For the view that CRAMRA is a compromise between the UNCLOS regime and the Antarctic Treaty System see R. Wolfrum, The Convention on the Regulation of Antarctic Mineral Resource Activities: an attempt to break new ground, 1991, 33.
119
In this sense see Guyer, see note 30, 225.
120
Article 77 para. 1 of UNCLOS affirms that "(t)he Coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources".
121
The exploitation of mineral resources located in the deep sea-bed is carried out in the interest of all mankind as it results from the norms contained in Part XI of UNCLOS. In particular, article 150 states that "Activities in the Area shall ... be carried out in such a manner as to foster healthy develop-
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First of all, one must ascertain what is the geographic extent of the prohibition of mining established by article 7 of the Madrid Protocol since no geographic limit is established by this norm. Article 1 lit.(b) of the Protocol affirms that the "-Antarctic Treaty area- means the area to which the provisions of the Antarctic Treaty apply in accordance with Article VI of that Treaty". Article VI establishes that the Treaty norms "shall apply to the area south of 60° South Latitude ... but nothing in the present Treaty shall prejudice or ... affect the rights ... of any State under international law with regard to the high seas within that area". It does not seem necessary to determine the extent of application of the Madrid Protocol in order to ascertain whether or not the exploitation of the resources located in the Antarctic continental shelf is possible. In fact, the right of states to exploit such resources is not protected by article VI of the Antarctic Treaty whose only concern is that Antarctic norms do not affect the rights of states within the high seas. Therefore, the prohibition established by article 7 of the Protocol is in patent contrast with article 77 of UNCLOS which recognizes the right of any Coastal State to exploit mineral resources within the continental shelf. However, this conflict of norms does not seem to be incapable of resolution. In fact, only Claimant States would be entitled to claim the right to exploit such resources.122 However, since these states are parties to the Madrid Protocol, they must respect the prohibition established therein, by reason of the manifest special character ratione materiae, ratione originis, and ratione personae of this act with respect to UNCLOS norms. By contrast, the delimitation of the extent of application of the Madrid Protocol appears to be decisive in resolving the problem of the exploitation of mineral resources located in the Antarctic deep sea-bed. In fact, from the apparent extent of application of the Protocol, a conflict between the ban on mineral exploitation established by article 7 of the
122
ment of the world economy ...". Moreover, article 153 para. 1 affirms that "Activities in the Area shall be organized, carried out and controlled by the Authority on behalf of mankind ...". Para. 2 lit.(a) of the same article establishes that mineral activities shall be carried out by the Enterprise and para. 2 of Section 2 of the 1994 New York Agreement implementing Part XI of the UNCLOS sanctions that "(t)he Enterprise shall conduct its initial deep sea-bed mining operations through joint ventures", A/RES/48/263 of 28 July 1994. As above affirmed, third states that have not claimed any rights on Antarctica for a substantial period of time, do not presently seem to be entitled to claim such rights. See note 119.
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Protocol and the norms on mining in the deep sea-bed provided by Part XI of UNCLOS must be inferred.123 A comparison between article VI of the Antarctic Treaty and article 7 of the Madrid Protocol reveals an ambiguity regarding the area in which the Madrid Protocol should be applied. The phrase "the rights, of any State ... with regard to the high seas ...", contained in article VI of the Treaty, could be interpreted as including the rights enjoyed by states not only in international waters but also in the deep sea-bed. In this sense, the prohibition of mining, established by article 7 of the Madrid Protocol, would be inapplicable to the deep sea-bed in the area south of 60° South Latitude.124 Under this particular interpretation of article VI of the Antarctic Treaty, there should be no legal obstacle preventing the Consultative Parties and third states from carrying out mineral activities in the Antarctic deep sea-bed as established by UNCLOS since this Antarctic norm acknowledges state freedom in the high seas and arguably the applicability of the more recent principle of the common heritage of mankind to the deep sea-bed. By contrast, a legal tenet considers that the prohibition established by article 7 must be applied to the whole area south of 60° South Latitude in order to facilitate the fulfillment of the aim of this prohibition.125 In the present writer's view, notwithstanding the wording of article VI of the Antarctic Treaty, such treaty and the system that has evolved from it reveal the intent of the 123
Such a conflict appears to be unavoidable even if mineral activities under UNCLOS are stringently controlled, due to the fact that under the Law of the Sea Convention a limited exploitation is always possible. Moreover, one cannot deny that the entry into force of UNCLOS became possible due to some slight changes in the approach concerning mineral exploitation of the deep sea-bed. In fact, the Agreement of 1994, implementing Part XI of the UNCLOS, takes into account not only the interests of all mankind, but also "sound commercial principles", as article 1 lit.(a) of the sixth section of the Annex to the Agreement reads. In this sense, see D. Larson/M. Roth/T. Selig, "An Analysis of the Ratification of the UN Convention on the Law of the Sea", ODILA 26 (1995), 287 et seq., (294) and B. Oxman, "United States Interests in the Law of the Sea Convention", AJIL 88 (1994), 167 et seq., (173 et seq.). 124 This view seems to be shared by the United Kingdom whose Antarctic Act of 5 July 1994, implementing the Madrid Protocol, does not include the deep sea-bed in the list of zones to which the Protocol is applicable. 125 For this view, see D. Vidas, "The Antarctic Treaty System and the Law of the Sea: A New Dimension Introduced by the 1991 Madrid Protocol", International Antarctic Regime Project Publication Series No. 1, 1993, 18 et seq.
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Consultative Parties to create special provisions for this peculiar area. Therefore, article VI must be construed in accordance with other Antarctic norms. In this regard, the purpose of the ban on mining established by article 7 of the Madrid Protocol is clearly the prevention of damage to the entire Antarctic ecosystem. Hence, it seems to be appropriate to interpret such a prohibition as including the whole area south of 60° South Latitude. Moreover, the applicability of Part XI of UNCLOS to Antarctica meets with other legal and practical obstacles. One must distinguish between States parties both to the ATS and UNCLOS and states which are only parties to UNCLOS. In fact, one could argue that the regime established by Part XI does not reflect customary international law.126 According to this view, article 136 UNCLOS, which considers the seabed beyond national jurisdiction as the common heritage of mankind, would be binding only for states parties to UNCLOS. Among these states, there are several Consultative Parties. However, the Consultative Parties seem to be mainly bound by the obligations deriving from Antarctic norms. These provisions, in fact, must be considered to be lex specialis with respect to the norms of the Law of the Sea Convention. The character of specialty recognized with respect to Antarctic norms concerning mineral exploitation does not derive from the automatic application of an abstract rule such as the lex specialis principle.127 Such specialty depends on the fact that Antarctic norms (and, in particular, the ban on mining established by the Madrid Protocol) are the outcome of the Consultative Parties deliberations based on the experience acquired by scientists who have carried out research in Antarctica for years. Since the results of such research still render it impossible to foresee the extent of the noxious effects of mining on the Antarctic environment, mineral exploitation in the area does not appear to be advisable. Moreover, states which are only parties to UNCLOS could also be prevented from applying Part XI to Antarctica. In fact, article 145 of UNCLOS has as its main concern the protection of the environment while carrying out mineral activities. In this regard, States parties to UNCLOS could accept the prohibition of mining in Antarctica in order to prevent damage to the environment. Such a solution could be an effective way to reconcile the regime of the Law of the Sea Convention and the ATS. In fact, the protection of the Antarctic environment is the 126
127
With regard to the doubtful customary character of the norms included in Part XI of the UNCLOS see Churchill and Lowe, see note 38, 200. See note 81.
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fundamental reason why the Madrid Protocol sought to prohibit mineral exploitation in the first place. Moreover, the ban on mining based on the need to protect the Antarctic environment could be deemed to be binding even for third states to both the Antarctic Treaty and UNCLOS. In fact, the duty to protect the environment and, to a certain extent, the precautionary principle, which considers it necessary to take measures aimed at preventing environmental damage in those cases where there are serious threats of it, are rules of customary international law.128 In this regard, article 7 of the Madrid Protocol should be interpreted as establishing a ban on mineral activities based on the assessment of an unacceptable risk which such activities can represent for the integrity of the Antarctic environment. However, except when mineral exploitation would damage the environment, it seems impossible to oblige States parties to UNCLOS which are not parties to the ATS not to apply the Law of the Sea Convention in order to respect Antarctic provisions. Therefore, conflicts between the ATS and UNCLOS provisions concerning the exploitation of mineral resources still remain. The most effective method for resolving such conflicts is to take into consideration general principles upon which both the ATS and the UNCLOS regime are based. For example, as has been affirmed with regard to the mineral exploitation of the deep sea-bed, the general obligation to pre-
128
The precautionary principle has been definitively established in Principle 15 of the Rio Declaration on Environment and Development, see note 79. Principle 15 states: "Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation". Some of the most recent global agreements have embodied the precautionary principle. As an example, one can mention article 3 para. 3 of the Framework Convention on Climate Change (Rio de Janeiro, 9 May 1992, ILM 31 (1992), 849 et seq.). With regard to the attribution of the character of a customary rule to the precautionary principle see T. Scovazzi, "Sul principio precauzionale nel diritto internazionale dell'ambiente", Riv. Din Int. 75 (1992), 699 et seq. and J. Cameron/J. Abouchar, "The status of the precautionary principle in international law", in: D. Freestone/E. Hey (eds), The Precautionary Principle and International Law, 1996, 29 et seq., (52). For a contrasting view see P. Birnie/A. Boyle, International Law and the Environment, 1992, 98.
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serve the environment can be an effective means of coordinating conflicting norms belonging to the two regimes.129 With regard to the exploitation of mineral resources located in the Antarctic continental shelf under UNCLOS provisions, it could be argued that such activity is absolutely prohibited due to the inappropriateness of the criterion of sovereignty on which such provisions are based in relation to the Antarctic area. As far as the exploitation of Antarctic deep sea-bed resources is concerned, Antarctic norms appear to be the instruments which confer the most secure protection upon the Antarctic environment and, thus, are the most suitable provisions for regulating such matters. Part XI of UNCLOS still remains applicable to all the other deep sea-bed regions except Antarctica. The applicability of this Convention to the Antarctic area will be possible only if the exploitation of mineral resources is harmless beyond doubt to the environment and the principles contained in UNCLOS are considered suitable for the particular characteristics of this continent. Such a possibility appears rather remote due to the fact that Antarctic issues are regulated in an ever-increasing manner by specific instruments which better fit the peculiarity of the area.
IV. Liability for Damage and Dispute Settlement 1. A Liability Regime for Antarctica The presence of a liability regime within an international treaty makes such a treaty more effective. A comprehensive liability regime should indicate the subjects upon whom responsibility is to be imposed, the applicable standard or standards of liability and the categories of damages recoverable. Nevertheless, international law offers few examples of conventions which provide for regimes of this nature. One could argue that the ATS itself could be more effective if it included norms concerning liability. By contrast, article 16 of the Madrid Protocol simply
129
In this sense see F. Francioni, "Norme convenzionali e "principi" sullo sfruttamento di spazi comuni: il caso delle risorse minerarie dell'Antartide", in: // diritto internazionale al tempo della sua codificazione. Studi in onore di Roberto Ago, Vol. II, 1987, 185 et seq., (200) et seq.
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proposes the adoption of an Annex on liability.130 The only Antarctic instrument to establish a regime on liability is CRAMRA.131 The Madrid Protocol also includes a norm aimed at preventing and reducing environmental damage. This norm is outlined in article 15 which provides for "response action".132 This so-called "response action" is nevertheless not a liability provision. However, the performance of this activity evidently implies compensation for the expenses incurred in undertaking such action. Therefore, article 15 itself seems to indicate the necessity of creating a regime on liability within the ATS which at least establishes who must pay compensation and the amount.133 So far, conflicts between the ATS norms and other regimes on liability pertaining to different treaties seem unlikely. Nevertheless, it could be useful to evaluate whether the existing regimes on this matter can be effectively applied to the Antarctic area insofar as there are no specific Antarctic norms on liability. In fact, one of the main reasons why such norms do not yet exist is the fact that the establishment of a liability regime which is suitable for the peculiar legal characteristics of Antarctica is far from straightforward.134
130
131
132
133
134
For a skeptical view regarding the contribution of the Protocol to the issue of liability see C. Redgwell, "Environmental Protection in Antarctica: the 1991 Protocol", 7CLQ 43 (1994), 599 et seq., (615). Article 8 para. 2 of CRAMRA provides that "(A)n operator shall be strictly liable for: (a) damage to the Antarctic environment ... arising from its Antarctic mineral resources activities ...; (b) loss of or impairment to an established use ...; (c) loss of or damage to property of a third party ...; (d) reimbursement of reasonable costs ... relating to necessary response action ...". The only possibility for excluding liability is established by article 8 para. 4 which states that "(A)n operator shall not be liable ... if it proves that the damage (to the environment) has been caused by ... (a) an event constituting an exceptional character ...". For an overview see H. Burmester, "Liability for Damage from Antarctic Mineral Resource Activities", Va. J. Int'l L. 29 (1989), 621 et seq. Under article 15, states must react in a "prompt and effective" way to damage caused by human activities. In this sense see F. Francioni, "Liability for damage to the Antarctic environment", in: Francioni/Scovazzi, see note 9, 594. In this sense see Francioni, above, at 585. This author emphasizes that it is difficult to ascertain the responsibility of states which operate in Antarctica because of the peculiar character of the activities which such states carry out. Therefore, Francioni considers it appropriate to establish several standards of liability for each kind of activity. Similarly, another author has af-
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First of all, as affirmed above, even international treaties other than Antarctic instruments do not provide very specific rules concerning liability.135 Secondly, some international treaties establish regimes on responsibility which are effectively inapplicable to the Antarctic area. For example, article 8 of the Montreal Protocol on Substances that deplete the Ozone Layer136 added to the Vienna Convention for the Protection of the Ozone Layer137 provides for a system of non-compliance. Such an instrument is aimed at ascertaining the degree of respect for treaty norms by states where the noxious effects on the environment are foreseeable as these occur gradually and over time. However, this is generally not the case with regard to Antarctica where, thus far, most environmental damage has been caused by unforeseen and instantaneous accidents.138
135
136 137 138
firmed that "fault liability is not enough because of the many accidents that may happen in Antarctica". In this sense, see E. Van Bennekom, "A New Regime to Protect the Antarctic Environment", LJIL 5 (1992), 33 et seq., (48 et seq.). The London Convention (see note 104) and the Basel Convention (see note 105) only oblige States parties to adopt a liability regime, but do not specify the characteristics of this regime. See article 10 of the London Convention and article 12 of the Basel Convention. Indeed, States parties to the Basel Convention are attempting to create a responsibility system by means of a separate Protocol. The applicability of such norms to Antarctica is considered not feasible by the Chilean paper presented at the XlXth ATCM, in: XIX ATCM/WP 20, see note 75, 20. By contrast, the application of such provisions in the area, as long as the Consultative Parties do not create autonomous norms on liability, has been supported by the English paper presented at the XXth ATCM, XX ATCM/WP 10, see note 58, 18. Similarly, UNCLOS provisions on liability generally seek to apply only those rules on responsibility sanctioned by already-existing international law. For example, arts 304 and 235 of UNCLOS recall international law with regard to the problem of responsibility generally and to liability for damage to the marine environment. In particular, article 235 establishes the duty to provide prompt and adequate compensation for environmental damage. Montreal, 16 September 1987, ILM 26 (1987), 1541 et seq. Vienna, 22 March 1985, ILM 26 (1987), 1516 et seq. In this regard the accident involving the Argentine ship "Bahia Paraiso" in 1989 is noteworthy. See J. Charney, "Third States Remedies for Environmental Damage to the World's Common Space", in: F. Francioni/T. Sco-
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Thirdly, sometimes the regimes on responsibility established by other international treaties do not mesh well with the fundamental principles of the ATS. For instance, article 4 para. 6 of the Framework Convention on Climate Change affirms that in implementing the provisions of the Convention a certain flexibility must be applied with regard to developing states. This statement is strictly linked to the acknowledgment of "common but differentiated responsibilities" sanctioned in para. 1 of the same article. Such an approach does not seem to be compatible with the intention of the Consultative Parties which have always been in favour of a system where states have the same rights and duties.139 Finally, it must be observed that even if an Antarctic regime on liability does not yet exist, certain international norms already appear to be in conflict with the general principles of the ATS. For example, article 22 of Annex III to UNCLOS concerning responsibility for activities carried out in the Area establishes compensation for damage corresponding to the actual amount of the damage itself. Such a rule is patently in conflict with article 15 of the Madrid Protocol which establishes a factual obligation such as response action instead of the mere duty of compensation. Moreover, one can hypothesize a further source of conflict between the above-mentioned norms due to the possible development of a liability regime within the ATS. In fact, if a state intervenes in response action in order to prevent the damage provoked by another state in Antarctica, the ATS regime on liability could oblige the latter state to pay compensation for the expenses incurred following the response action carried out by the former state. In this hypothesis, the amount of compensation would be patently larger than that established by article 22 of Annex III to UNCLOS. In addition, the future regime on liability already demonstrates some lacunae. In fact, if the Consultative Parties establish a liability regime through an Annex to the Madrid Protocol, such a regime will cover only those activities regulated by the Protocol itself. This means that some important issues (such as fishing whose exclusive competence pertains to CCAMLR) will not be subject to any regime of responsibility.
139
vazzi (eds), International Responsibility for Environmental Harm, 1991, 149 et seq. In this sense see also Francioni, see note 133, 585. Recall that article IX para. 2 of the Antarctic Treaty equates the attribution of the status of a consultative party to a state with its effective capacity to carry out research activities in the area.
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Therefore, the future Antarctic regime on liability must, prior to its creation, resolve several problems which are both internal and external to the ATS. The solution of such problems can be accomplished through some useful suggestions offered by some recent international treaties. With regard to compensation, the International Convention on Liability and Compensation for Damage in connection with the Carriage of Hazardous and Noxious Substances by Sea140 provides an interesting mechanism for the payment of damages. The Convention has created a special "International Hazardous and Noxious Substances Fund" to compensate damage which has not been caused by illicit conduct or whose amount is too exorbitant to be paid by the liable entity. A similar fund would seem to be particularly useful within the ATS since damage occurring in Antarctica has often been difficult to address because of the predominantly ecological character and of the long term measures required to address it. Consequently, there is a risk that such damage will not be rectified. Another suggestion concerns the possibility of condemning illegal conduct in absence of any liability regime. Indeed, the lack of a liability regime in the ATS cannot, even at present, constitute a justification for imprudent behaviour in the Antarctic area nor can it condone the failure to repair environmental damage. Thus, it seems to be appropriate to find alternative norms in order to ascertain responsibility and to condemn those responsible. Article 4 of the MARPOL regime provides that all violations of its norms must be punished under the internal legislative provisions of States parties concerning reparations. Although there are no sovereign rights generally recognized on the Antarctic continent which could allow a state to apply its norms to all persons on the basis of a territorial criterion, the Consultative Parties can use their internal provisions to limit and to condemn the behaviour of Antarctic operators by reason of the criterion of nationality.141 In this case, cooperation between all Consultative Parties in regulating their own nation140 141
Done in London on 9 May 1996, ILM 35 (1996), 1415 et seq. This solution recalls article 217 of UNCLOS which acknowledges the power of enforcement in favour of Flag States with respect to their national ships which violate international norms concerning the protection of the marine environment in all cases where there is no jurisdiction of Coastal or Port States. However, the link between the Flag State and a national ship seems to be stricter than the link between a state and its citizens who operate in Antarctica. In fact, national vessels are considered to be a part of the Flag State territory. By contrast, states do not have territorial jurisdiction over Antarctic bases.
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als uniformly could be an effective means of enforcement of Antarctic norms. Even more radically, the interest in punishing breaches of Antarctic norms could bring the Consultative Parties to apply and to let other parties apply national provisions concerning liability vis a vis all individuals operating in Antarctica (or at least with respect to those which are citizens of the ATS states) despite their nationality.142 Such broad application of national norms does not seem possible, at this stage, due to the strong resistance of states against restrictions on their sovereignty. Strongest cooperation and firm cohesion between the ATCPs is required in order to fight this resistance. In conclusion, the absence of a liability regime in the ATS does not exclude the possibility of the interaction and, on occasion, of conflict between Antarctic provisions and the norms on liability appertaining to other international conventions.143 In other cases, certain international conventions can offer useful suggestions for the future Antarctic liability regime.144 Moreover, inter142
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This reasoning is not entirely new. In fact, the applicability of national legislation (in particular concerning environmental protection) to aliens in the areas which are beyond state jurisdiction has been affirmed by certain national statutes and hypothesized by some authors. For example, one can mention the case of the application of the 1972 US Marine Mammals Protection Act to Mexican fleets which were fishing tuna in the high seas. For a deep analysis of the case see F. Francioni, "Extraterritorial Application of Environmental Law", in: K. Meessen (ed.), Extraterritorial Jurisdiction in Theory and Practice, 1996, 126. In Francioni's view, some cases demonstrate the "need to extend environmental safeguards beyond the limits of national territoriality". The author acknowledges that the application of state environmental provisions to areas beyond national jurisdiction is not precisely a problem of extraterritoriality since extraterritoriality involves "the sphere of sovereignty of another state", ibid., 123. Further, Francioni admits the legitimacy of the exercise of extraterritorial jurisdiction (and, arguably, of the jurisdiction over areas beyond national control) "whenever it is appropriate in order to avoid serious environmental harm ...", ibid., 132. For the opposite view, see the Australian statutes concerning environmental protection which deny their applicability to aliens who operate in Antarctica. For an overview, see Crawford/Rothwell, see note 48, 82. The definition of the relevant damage seems to be one of the most controversial issues concerning liability. For example, one can mention the inconsistency between article 22 of Annex III to the UNCLOS and article 15 of the Madrid Protocol. See under above, 533, 534. The creation of a special fund to cover exorbitant damage such as has been established by the London Noxious Substances Convention seems to be
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national treaties other than Antarctic instruments provide alternative solutions to the Consultative Parties as to how to combine the exigency of protecting the Antarctic environment with the difficulty of creating a liability regime.145 In the present writer's view, the legal and geographic peculiarity of Antarctica requires an appropriate regime on liability due to the atypical entities which operate in Antarctica and the atypical kind of accidents which can occur therein. However, the need to create a specific regime on liability cannot be permitted to disregard one of the main aims of the entire ATS; the preservation of the Antarctic environment. In order to achieve such an aim, it seems convenient also to refer to international provisions other than Antarctic norms, at least, while the Consultative Parties have not themselves created a specific regime on liability.
2. Dispute Settlement Concerning Antarctic Issues The issue of liability is closely linked to the question of dispute settlement. In fact, both these instruments ensure that the legal regimes to which they belong are more effective. Until the entry into force of the Madrid Protocol, the ATS provided only for diplomatic means for dispute settlement.146 Articles 19 and 20 of the Protocol establish the Arbitral Tribunal which is competent to deal with controversies arising under the Protocol on subject-matters such as the prohibition of mineral activities and the appropriateness of impact assessment procedures. Moreover, the Tribunal has a general competence to evaluate the level of compliance with the obligations established in the Protocol. Such general competence seems to attribute to the Tribunal the possibility of dealing with a large number of controversies concerning Antarctica. Nevertheless, article 20 para. 2 excludes from the competence of the
145
146
particularly useful in Antarctica since the extent of environmental damage is often unpredictable. See the solution proposed by article 4 of MARPOL , see above, 534. Indeed, the lack of an effective legal instrument on liability cannot allow abuses especially with respect to the performance of certain important activities such as fishing. See article XI of the Antarctic Treaty and article XXV of the CCAMLR. For an overview see G. Bosco, "Settlement of Disputes under the Antarctic Treaty System", in: Francioni/Scovazzi, see note 9, 614—615.
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Tribunal "any matter within the scope of Article IV of the Antarctic Treaty". This limitation appears to be justified by the intention of the Consultative Parties to resolve questions concerning the fundamental principles of the ATS within the ATCMs.147 Even if no overlap between judicial organs established by different treaties has yet occurred, the system of dispute settlement sanctioned by the Madrid Protocol seems capable of interfering with other similar regimes. Annex VI to UNCLOS establishes certain specific organs such as the International Tribunal for the Law of the Sea and the Sea-Bed Disputes Chamber. The International Tribunal seems to be the most important organ of UNCLOS. Its competence is general and involves any residual matter which is not or cannot be dealt with by another specific organ of the Convention.148 The main interaction between the International Tribunal and the Tribunal established by the Madrid Protocol concerns the jurisdiction over those questions which are excluded by article 20 of the Protocol from the competence of the Antarctic organ. In fact, the UNCLOS Tribunal can deal with disputes by applying any norms of international law which are not in conflict with the Law of the Sea Convention.149 Although the Consultative Parties are obliged to respect the limitations upon justiciability for those issues indicated by the Madrid Protocol by reason of their acceptance of the jurisdiction of the "Antarctic Tribunal", third states to the ATS could ask the 147
148
149
In this sense see T. Treves, "Compulsory Settlement of Disputes: a new element in the Antarctic system", in: Francioni/Scovazzi, see note 9, 605. For a general analysis see F. Auburn, "Dispute Settlement under the Antarctic System", in: A. Postiglione (ed.), Per un tribunale intemazionale dell' amhiente, 1992, 127 et seq. For a view in favour of the residual character of the competence of the International Tribunal see S. Rosenne, "Establishing the International Tribunal of the Law of the Sea", AJIL 89 (1995), 806 et seq., (812-813) and R. Ranjeva, "Le reglement des differends", in: P.M. Dupuy/D. Vignes (eds), Traites du nouveau droit de la mer, 1985, 1105 et seq., (1165). See also G. Jaenicke, "Dispute Settlement under the Law of the Sea Convention", in: R. Wolfrum (ed.), Antarctic Challenge, Vol. II, 1986, 163 et seq. In this sense see article 293 of UNCLOS. Moreover, article 22 of Annex VI affirms that "(i)f all the parties to a treaty ... already in force and concerning the subject-matter covered by this Convention so agree, any dispute concerning the interpretation or application of such treaty ... may ... be submitted to the Tribunal". Indeed, such norm does not appear to be applicable to the Antarctic Treaty since the Consultative Parties have never agreed (as article 22 requires) to accept the jurisdiction of the International Tribunal with regard to disputes concerning Antarctic issues.
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UNCLOS Tribunal to deal with a controversy regarding such questions pertaining to Antarctica. Indeed, as affirmed above,150 even third states do not seem to be entitled to apply all UNCLOS norms to the Antarctic area since some of these norms are not suitable for the peculiar geographical and legal characteristics of the Antarctic seas. For example, since the delimitation of maritime zones is based on the indisputable recognition of sovereign rights with respect to coastal states, it does not seem to be either possible or appropriate to delimit such zones within Antarctic waters. Therefore, even the settlement of disputes concerning this matter should be reserved to the competence of the organ entitled to do so by the Madrid Protocol: in this specific case, the competent organ is the ATCM since, as is established by article 20 para. 2 of the Protocol, the issue of sovereignty is not included among justiciable questions.151 Another possible source of conflict is provided by the interaction between the norms on dispute settlement of CCAMLR and the Convention on Biological Diversity. In fact, article 25 para. 2 of CCAMLR and Annex II of the Biodiversity Convention sanction two regimes of arbitration which deal with controversies concerning very similar subjects. In this case, the possibility of overlap is clearly visible. On the one hand, the CCAMLR arbitration system can be considered to be predominant as lex specialis. CCAMLR protects only marine species whereas the Biodiversity Convention is applicable to all living resources. On the other hand, the arbitration regime established by the Biodiversity Convention creates a more specific and more effective procedure than that provided by CCAMLR. Therefore, it is not free from controversy which of these dispute settlement regimes can be deemed to be the most specific and, thus, which one must prevail. However, the substantial specificity of CCAMLR seems to be predominant over the peculiarity of the dispute settlement regime established by the Biodiversity provisions. In fact, it seems to be more important to identify the most appropriate norms which deal with the substance of a problem than to apply the most detailed rules of dispute settlement. Finally, the interaction between the Madrid Protocol and the MARPOL regime with regard to the question of the resolution of disputes is noteworthy. Although article 14 of Annex IV to the Protocol establishes the superiority of MARPOL provisions, this does not ap150 151
See under Chapter II. 2. b. For a view in favour of the specialty of the Antarctic system of dispute settlement see Treves, see note 147, 608.
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pear to imply also norms on dispute settlement. Therefore, controversies concerning Antarctic issues cannot be automatically brought before the MARPOL judicial organs.152 However, there are some questions which pertain to both these regimes. In this case, it is more difficult to exclude the competence of either of them to deal with such questions. In short, although the existing systems of dispute settlement show a certain similarity in terms of their procedures, one can affirm that conflicts (or at least overlaps) are always possible. In such cases, it appears difficult to identify the regime that should prevail over others by reason of its specialty since all of them are special in some way.153 Therefore, in order to establish which judicial organ is competent to deal with a particular controversy, it is necessary to ascertain what treaty norms are most appropriate to regulate the issue which forms the subject-matter of the dispute rather than to attribute the competence to judicial organs on the basis of some technical and abstract criteria.
V. Conclusions In this article, the writer has tried to analyze the possible types of relationships which exist between different international treaties dealing with a similar subject-matter. One has also tried to indicate some criteria to establish how these relationships affect the legal regime of Antarctica. The conclusion which has been reached is that, rather than formal criteria, an analysis of the actual object and purpose of treaty norms is required to properly answer the question. The evaluation of the States parties purpose, conduct, and objective appears to be an effective instrument for determining to what extent states wish to be bound by an international convention. Therefore, a policy-oriented and teleological interpretation of treaties seems to be a more useful instrument than a purely textual interpretation which is the approach preferred by article 31 para. 1 of the Vienna Convention on the Law of Treaties.154 The conduct of both States parties and third states to a treaty is generally the clearest indication of the purposes underlying the application of treaty norms. This is particularly so with regard to the response of third states to the ATS since such a system establishes a comprehensive 152 153
154
In this regard see Treves, see note 147, 611. In this sense see the example of the dispute settlement regimes of CCAMLR and the Biodiversity Convention. See note 17.
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regime for a specific geographic area, the correct management of which is an interest of the entire international community. Moreover, as this article has shown, it is impossible to establish a priori, on the basis of certain general rules, what treaty among those applicable to the Antarctic area must prevail over others.155 In the present writer's view, it does not seem appropriate to fashion criteria for Antarctica to determine a priori the pre-eminence of one treaty as a whole over another. Instead, it is preferable to identify which norm, among all those potentially applicable in a specific case, represents the "proper" law. For this purpose, the evaluation of the actual object and purpose of a norm is the most effective means of determining such "propriety". Nevertheless, the "propriety" of treaty norms does not appear to be a legal criterion which automatically would permit establishing whether all the norms of a treaty must prevail over the provisions of another international convention. Therefore, it is necessary to analyse treaty norms singularly in order to evaluate their substantive effect. Three different situations can be identified where, for different reasons, some ATS norms seem to prevail over others. First of all, certain norms of the Antarctic Treaty System have become customary rules of international law over the last decades. As such, they are now applicable to all states including third states.156 The universal applicability of these provisions is not due to the fact that they pertain to the ATS, but to the fact that they are customary rules.157 However, few provisions contained in the ATS possess all the formal and substantial characteristics necessary to render them norms of customary international law. So, this situation remains quite exceptional. Secondly, some other ATS norms seem to have reached a degree of effectiveness which ensures that their application is preferable to that of 155
156
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For example, the ATS instruments, UNCLOS and the Convention on Biodiversity cannot be classified by reason of the importance and degree of specificity of their subject-matter. For the view that it is impossible to create a hierarchy between treaties, see Rousseau, see note 81, 156, Jenks, see note 24, 442 and Reuter, see note 27, 32. For example, see article I of the Antarctic Treaty establishing the prohibition of the military use of the area and article 2 of the Madrid Protocol which establishes the duty to protect the Antarctic environment. For the possibility of treaty norms becoming enforceable with respect to third states once these norms become customary rules, see article 38 of the Vienna Convention on the Law of Treaties.
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other treaty norms. Such effectiveness must be inferred both from the ATCPs' intent to make certain Antarctic norms generally applicable and from the acquiescence of third states to the enforcement of these rules. In fact, in some cases, third states have acknowledged the particular "appropriateness" of the ATS for regulating certain specific matters. Although the "appropriateness" of treaty norms seems to be based on the same grounds (universal application of a treaty regime and acquiescence of third states) as the theory of objective regimes, the policyoriented approach through which such "appropriateness" must be ascertained is completely different from the doctrine of objective regimes. This approach, by taking into account the actual object and purpose of treaty norms, is aimed at determining what provisions show a particular competence for dealing with a specific matter. Instead, the formal requirements demanded by the theory of objective regimes, such as the rigid definition of the duration of time of acquiescence, are abstract criteria which do not give importance to the substantial differences between the various treaty norms. It is indisputable that the majority of ATS provisions are the most appropriate rules for the regulation of Antarctic activities.158 Yet, norms pertaining to international treaties other than the ATS have also demonstrated their appropriateness for regulating certain specific issues.159 Finally, other Antarctic provisions are ordinary treaty norms and, thus, bind only states parties to the conventions to which they belong. These provisions can be considered to prevail over other international norms only in those cases where they demonstrably possess a significant degree of "specificity". Such "specificity" must be ascertained on the basis of the actual object and purpose of these norms and not be due merely to the application of an abstract and non-critical criterion of norm-selection such as the lex specialis principle.160 However, the existence of a duty upon third states to apply norms pertaining to treaties to which they are not parties by reason of their "specificity" is not recognized by international law. Such "specificity" is not a sufficient requirement to render these norms customary rules of international law. Similarly, these type of norms cannot be equated to the provisions which the present writer has classified as opposable against third states
158
159
160
See for instance the example of Antarctic norms concerning marine pollution under Chapter II.4.b. See the MARPOL provisions concerning the classification of polluting substances. For the concept of specificity see above 511, 512.
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by reason of their particular "appropriateness".161 In the view expressed in this paper, the application to third states of norms which demonstrate a certain degree of "specificity" could be possible only in those cases where these states are not bound by any alternative instruments which are as effective as the specific norms at issue.162 Nevertheless, in order to foster and to strengthen the legitimization of the universal application of treaty norms of "specific" character, the highest level of cooperation between states is required. Such cooperation should be based on the need to safeguard such general interests as the sustainable protection of resources and the conservation of the environment. In fact, with regard to the management of Antarctica, it seems preferable that all actors, private and public, including those who are subject to the jurisdiction of states which are non-parties to the Antarctic Treaty, respect those rules which are most suitable for the characteristics of this area rather than accept only those obligations deriving from treaties to which the respective countries are parties. The Consultative Parties have adopted this pragmatic approach with regard to the regulation of certain subjects such as marine pollution and, to some extent, waste management.163 It would be desirable if states which are nonparties to the ATS decided to enforce those Antarctic norms which provide for the most appropriate level of overall protection of the Antarctic area.
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163
For example, it is impossible to see how the granting of special permits for the exploitation of certain living resources established by the Agreed Measures should be preferred to the same instrument adopted by CITES. The enforcement of Antarctic provisions concerning environmental impact assessment seems to be preferable to the application of the rules established in other international conventions since the former have proved to be both effective and non-deleterious for the conservation of the Antarctic environment. On the contrary, the latter have not been yet applied in the Antarctic area. See above, 512. See above, 518, 519 and 522, 523.
United Nations Peace-keeping in Internal Conflicts Problems and Perspectives Rahmatullah Khan
I. Introduction Four decades ago, some of us on the threshold of a career in international law were excited, among other things, about the civil war in the Congo. The sudden departure of the colonial power, Belgium, from the Congo, effected apparently by the UN-inspired "wave of decolonisation," was followed by a barracks mutiny, triggered by the alltoo-common demand of pay raise. The Belgians sent their paratroopers to quell the mutiny. The Congolese government asked for UN assistance, which led to a split between the President (Kasavubu) and the Prime Minister (Lumumba), who, in a struggle for supremacy, dismissed each other. The images of Lumumba's assassination, Khruschev's "Troika" proposal and his shoe-banging in the UN General Assembly, the tragic death of the UN Secretary-General, Dag Hammarskjold, in a plane crash, still haunt those of us with long memories. Going by the images drawn by the print and television media, it appears the Congo has come full circle. An internal conflict, compounded by multiple external intervention, rages in the Congo today. Rwanda, Angola, Sierra Leone, to mention only a few other trouble spots in Africa offer competing pictures of horror. The ethnic cleansing and fratricide, the mass graves, the mutilation of limbs carried out by drugged 543
J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, 543-581. © 2000 Kluwer Law International. Printed in the Netherlands.
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and -indoctrinated child soldiers, continue with unabated fury. The present - day dramatis personae are different from those of four decades back, but the demonology and the motivations are similar grabs for power. An additional factor further vitiates the conflicts these days, i.e. the struggle to gain control over the natural resources of the country. Only the angels of peace, besides being in short supply, seem to be more ineffective this time - which can be attributed partly to a change in the perspectives at the UN headquarters. The present SecretaryGeneral, Kofi Annan's views are fully presented in the following sections. For here, an introductory comment will be pertinent. When asked to raise peace-keeping forces for the UN, one recalls, Dag Hammarskjold scrupulously avoided contingents from the great powers. The present Secretary-General Kofi Annan, to the contrary, considers the troop offerings from the Third World insufficiently equipped and trained, and appeals to the great powers to contribute to a "rapid reaction force" with the capability to inflict unacceptable damage on the parties that defy the will of the international community - a stand reminiscent of that of the United States in the Military Staff Committee debates in the Fifties on the establishment of a permanent peace force to be kept at the disposal of the Security Council. The U.S., interestingly, has a different position on UN peace-keeping, that favours sending 5 to 6 thousand non-combatant, lightly equipped forces working under a non-unified command to do the job. It is also in favour of finding regional resolutions to internal conflicts. Witness, for example, its endorsement, with media support, of a regional initiative under Nigeria's leadership in the West African conflicts.1 For this and a variety of other reasons discussed below, UN peacekeeping appears to be in big trouble these days. That is particularly saddening because the UN has had the advantage of hindsight of half a century of peace-keeping, the benefit of numerous scholarly expositions, and the availability of the analyses of the in-house "Lessons Learned Unit." Despite profound doctrinal expositions and the bitter experience over the last four decades, the UN still seems to be deficient. Interestingly, the debate on its deficiencies still centres round the size
See, Editorial, "The War in Sierra Leone," The New York Times (NYT, hereafter) of 12 May 2000, which stated: "The Nigerians and their West African allies have a strong interest in stabilizing the region. Nigerian troops are also better equipped and better trained than the U.N. forces," an unfair reflection, for instance, on the Indian contingent with proven competence. See, "Kargil Heroes for Sierra Leone," Times of India of 16 May 2000.
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and strength of UN response to contemporary conflicts. Quite obviously, the international community cannot muster enough forces to put peace-keepers in every town, for instance, in the Congo; but, if one were to wait for a force of 250.000 to take care of every internal conflict in the world, one would have to wait for long.2 Apparently, it is not the overwhelming size or the formidable fire power that matters to meet these challenges; it is the clarity of the mandate and the resources placed at the disposal of the peace-keepers that will determine its effectiveness. The debate on UN peace-keeping oscillates these days between two extremes: the rosy view, typically presented by the Secretary-General, and the one offered cynically by U.S. Senator Jesse Helms and his ilk in the media and the academia. Secretary-General Kofi Annan and Senator Jesse Helms merit, and have in the following sections received, an elaborate treatment. As a provocative sampler of the cynical view, one may present the opinion of Michael Ignatieff, the author of "Virtual War: Kosovo and Beyond". In a caustic comment on what he calls the UN's "astounding inability to learn from past mistakes" in peacekeeping, and recounting its failures in Rwanda, Srebrenica, Somalia etc., Ignatieff has lampooned its "incorrigible moral narcissism about its own good intentions [that] makes it unable to recognize that peacekeeping was so flawed that it must be abandoned altogether." He proceeds to add that it was time to "bury peacekeeping before it buries the UN," and that for its own survival, "it must abandon an ideal it has so comprehensively betrayed."3 Ignatieff's prescription let the Security Council to remain the ultimate source of legitimacy for the use of military force, and not the Secretariat, with combat-capable warriors operating under robust rules of engagement, with armour and ammunition and intelligence capability, and a single line of command to a national government or regional alliance. A more vicious attack on UN peace-keeping was that of the conservative commentator Charles Krauthammer.4 Tracing its origin to then foreign minister of Canada, Lester Pearson, and its first application to the Suez conflict in 1957, Krauthammer argues that since then "the flimsiness and almost fictional quality" of peace-keeping has been conSee S. Mufson, "Sierra Leone's Peace Succumbs to Its Flaws," Washington Post of 8 May 2000. M. Ignatieff, "A Bungling UN Is Undermining Itself," International Herald Tribune (IHT, hereafter) of 16 May 2000. C. Krauthammer, "Take Over the Mess or Stay home," IHT of 5 June 2000.
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sistently demonstrated. "Mercifully, however, Sierra Leone may finally mark the end of an idea whose nobility is matched by its emptiness," is the cynical conclusion. Krauthammer's believes that the only way to intervene is to occupy the country in question: "Take over a country, reorder the society, establish new institutions and create the basis for leaving one day. America did that in Germany and Japan after World War II and it worked... If you want to intervene, do it seriously". "Occupy, or stay home," is the advice. As against this carping extremism, Kofi Annan's advocacy of intervention with force in cases of genocide and other gross human rights violations, sounds a refreshingly preferable idealism. Although the language is strong and cynical, the analysis and the prescriptions (especially those of Ignatieff) bear scrutiny, and the point seems to get vindication in the United Nations' own soul-searching exercises over Rwanda and Srebrenica and in its vicissitudes in Angola, Kosovo, Congo and Sierra Leone - a highly selective but significant list of UN woes.
II. The Setting The end of the Cold War has ushered in a troubled and tenuous peace, characterised by a happy decline in inter-state warfare, but also by an upsurge in internal conflicts. These internal conflicts have been brutal, claiming more than 5 million lives. And, as the UN Secretary-General's Millennium Report poignantly points out, the post-Cold War internal conflicts "have violated, not so much borders, as people. Humanitarian conventions have been routinely flouted, civilians and aid workers have become strategic targets, and children have been forced to become killers. Often driven by political ambition or greed, these wars have preyed on ethnic and religious differences, they are often sustained by external economic interests, and they are fed by a hyperactive and in large part illicit global arms market."5 The internal conflicts have posed an enormous challenge to the international community and to its institutional reflection, i.e. the United Na-
Millennium Report of the Secretary-General of the United Nations: "We the Peoples — The Role of the United Nations in the 21st Century." Hereafter, The Millennium Report.
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tions. This paper strives to explore the nature of the challenge and the international response to some of them, e.g. Rwanda, Kosovo, Angola and the Congo. The exercise is facilitated by, and relies mostly on, the reports of expert panels appointed by the United Nations. One could commence the analysis with the initiative taken by the UN SecretaryGeneral to address the issues raised by internal conflicts and the adequacy of traditional peace-keeping by the United Nations. In an apparent effort to salvage the sorely tested peace-keeping functions of the United Nations, Secretary-General, Kofi Annan, appointed on 7 March 2000 an international panel to look at every aspect of United Nations peace-keeping and make recommendations on how such missions can be made more effective. At a press conference that day, Annan clarified the panel's mandate thus: "Partly it is a question of being clearer about what we are trying to do. And partly it is a question of getting the nuts and bolts right."6 One specific question posed to the panel, he said, was: "What do you do if the peace you are trying to keep breaks down and large numbers of civilians are in danger of being massacred?"7 This question has troubled the conscience of the UN community from the time two damaging reports were presented by expert bodies on the UN's failure to stop the killing of Muslims in the Bosnian town of Srebrenica in 1995 and the massacre of the ethnic Tutsis in Rwanda the year before. These bitter experiences are described below. Before recounting them, some data on the peace-keeping operations of the UN will help.
The UN Department of Peace-keeping Operations had set up in 1995 "The Lessons Learned Unit", designed "to be a permanent mechanism that would act as both a repository of individual and organizational experience and an analytical core for the planning, management and execution of peacekeeping missions." See, the UN website under Peace-keeping Operations. The mandate of the new panel of experts set up by Kofi Annan coincides with most of the objectives of the Lessons Learned Unit. Despite the overlap, hopefully the two bodies will have many common lessons to draw from the peace-keeping missions. See B. Crosette, "Annan Sets Up Panel to Study U.N.'s Peacekeeping Predicament", NYT of 8 March 2000. The panel is to be led by L. Brahimi, a former Algerian foreign minister, and the report is to be written by W. Durch an arms control and Balkan specialist at the Henry L. Stimson Centre in Washington, D.C. The other panel members are: J. Brian Atwood, Dame Ann Hercus, Richard Monk, Gen. Klaus Naumann, Hisako Shimura, Gen. Philip Sibanda, and Cornelius Sommaruga.
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Between 1948 and 1998 there have been 49 United Nations peacekeeping operations. Thirty six of which were created between 1988 and 1998, the year in which the United Nations peace-keeping was awarded the Nobel Peace Prize. More than 750.000 military and civilian police personnel, and thousands of other civilians, from 111 different countries, have served in these peace-keeping operations. As of 31 August 1998, 14.453 peace-keepers were serving the UN peace-keeping operations. During those 50 years of peace-keeping, 1.581 had lost their lives (of which 1.375 were military personnel, and the rest non-military, including police personnel, observers, civil and local employees)8 in "an attempt", as Kofi Annan put it at the special commemorative meeting of the General Assembly honouring 50 years of peace-keeping, "to confront and defeat the worst in man with the best in man; to counter violence with tolerance, might with moderation, and war with peace."9 Recounting the mixed experiences of UN peace-keeping, attributing the failures to the mis-match between the mandate and the resources placed at the disposal of the peace-keepers, Annan confessed that "in some places - Rwanda and the former Yugoslavia - we have found ourselves standing by, in impotent horror, while the most appalling crimes were committed. There the limits of peacekeeping were graphically demonstrated: we learned, the hard way, that lightly armed troops in white vehicles and blue helmets are not the solution to every conflict. Sometimes peace has to be made - or enforced - before it can be kept."10 Those calamities - the loss of life, the wanton destruction of towns and villages, the shredding of the very fabric of humanity, stated the Secretary-General, should not lead one to a sense of fatalism and to seek "the cynic's answer and the coward's solution" of doing nothing when conflict rages and fellow humans suffer in distant lands. One cannot claim that peace-keeping has been the answer to every conflict, nor had it prevented the recurrence of genocide, but one can proudly claim, added Annan, that the "blue helmets" have saved tens of thousands of lives.11 8 9 10 11
See under www.un.org/Depts/dpko See Doc. SG/SM/6732 of 6 October 1998. Ibid. Ibid. A similar claim by the U.S. Secretary of State, Albright, that the NATO action, besides saving many lives, had enabled the return of 800.000 refugees, was dubbed by columnist Flora Lewis, as "self- congratulatory rhetoric". One year after NATO's big bombing and peace-enforcement, said Lewis, Kosovo "isn't still working: There is still no governance, no
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Compared to the lives saved, the cost in terms of fatalities of UN personnel can be considered negligible. It is not, however, the number of dead and the injured that is worrisome. Not even the occasional ambushes, the hostage taking, the jostling and jeering, and the rockthrowing at the UN units.12 Peace enforcers at the national level undergo more harrowing experiences. What is troubling is the kind of law - enforcement assignments that the UN peace-keepers are called upon to undertake in treacherous conditions of ethnic and civil conflicts, such as those in the Balkans, East Timor, several war zones in Africa, Cyprus, Tajikistan, Haiti, Guatemala, and so on. The United Nations is expected to scramble and deploy about 9.000 police officers in these troubled areas as soon as possible. That includes 4.718 for Kosovo, 2.057 for Bosnia, and 1.640 for East Timor. Governments have sent 5.122 officers by the time of writing.13 The Kosovo and East Timor peace-keepers were armed, but inadequately, as mentioned. According to an UN expert at the Council on Foreign Relations, Ruth Wedgwood: "Every time there has been any question of where to put together a really robust police force, everybody has ducked."14 Sending unarmed or inadequately armed personnel in volatile, and very often, explosive situations is a dangerous thing to do. Rwanda and Srebrenica show how dangerous it could get. The trouble in the Congo will enhance one's appreciation of those most tragic debacles. In February 2000, the UN Security Council gave its unanimous support to an American-backed plan to send a peace-monitoring mission to the Congo. Under the Security Council plan, a team of 500 UN observers, protected by 5.000 troops and support personnel, are to be sent to four strategic areas to document violations of the cease-fire and to help arrange the movement of the various armies and militias to de-
12
13
14
adequate security, not enough economy, no prospect for the 30.000 troops operating there under NATO command to complete their mission." See F. Lewis, "The Kosovo Mission of the United Nations is Being Left to Fail," IHT of 10 March 2000. For an account of the humiliating treatment that NATO contingents in Kosovo are subjected to, see C. Gall, "Serbs Stone U.S. Troops in Divided Kosovo Town", NYT of 21 February 2000. See also W. Pfaff, "The News From the Kosovo-Serbia Border Is Bad", NYT of 9 March 2000, for a perceptive account of the Albanian and Serbian irredentism implying dolorous consequences for regional peace. B. Crossette, "The U.N.'s Unhappy Lot: Perilous Police Duties Multiplying", NYT of 22 February 2000. Ibid.
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fensive positions. A truly daunting task indeed. For a country the size of the Congo and the bewildering complexities of combat, the sanctioned strength of 5.500 peace-keepers is apparently inadequate. But getting even that was not easy. The debate that preceded the adoption of the Congolese peace mission plan was intensely acrimonious, provoking a western diplomat to comment that at the end there was "blood on the floor." And the predominant role played by the U.S. in the debate led a few Africans to feel that they were "bullied."15 The blood letting preceding the adoption of the peace-keeping resolution in the Security Council forced it to take the cautious stand that the peace-keeping forces would not be deployed until there was peace on the ground and adequate assurances that all international personnel would be safe. Critics of the UN response to the Congo have noted its inadequacy in comparison to that of the Kosovo: the Congo has four times the land mass of Kosovo, with worse roads and thick forests, and Kosovo has proved a big task for nearly 40.000 NATO troops, which are generally better trained and equipped than United Nations peace-keepers.16 The peace-keeping predicament of the UN, more generally, gets magnified in the context of the many conflicts in Africa that are sustained by its bountiful natural resources. This theme, together with the problem of getting UN peace-keeping's "nuts and bolts right" (Kofi Annan's phrase), will be pursued in an ensuing section. This section will highlight the UN's tragic failures in Rwanda and Srebrenica, that led to what a commentator called an examen de conscience of the UN.
III. Examen de Conscience Cases 1. Rwanda The Report of The Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda, officially so titled (Rwanda Report, hereafter)17 states categorically that approximately 800.000 people were killed during the 1994 genocide in Rwanda. The systematic slaughter of men, women and children took place between 15
16
17
B. Crosette, "U.N. Faces Big Challenge in Any Congo Peacekeeping Mission," NYT of 31 January 2000. See, D.G. McNeil Jr., "Foes in Congo Appeal for U.N. Peacekeepers," NYT of 10 April 2000. See, www.un.org/News/ossg/rwanda_report.htm
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April and July 1994. In one of the most abhorrent events of the twentieth century, Rwandans killed Rwandans, brutally decimating the Tutsi population of the country, as well as moderate Hutus. Skipping the gruesome details, one may note the Report's findings of the failure of the United Nations to prevent the massacre of the country's Prime Minister, Minister for Labour and Social Affairs and his family, a former Foreign Minister, a judge and numerous others. The mayhem had started within hours of the shooting down of a plane on 6 April 1994 carrying Rwanda's President and the President of Burundi. Everyone on board was killed. The Prime Minister was killed inside the United Nations Volunteers (UNV) compound in Kigali. The UN peace-keepers on security detail and those who resisted were badly beaten, and some Belgian soldiers were brutally killed. The tragedy can be attributed, among other things, to the instructions received from the headquarters to the effect that the UN mandate to the peace-keepers was not to use force, except in self defence. Some of them died defending themselves or those under their charge, while others fled into the fields when outnumbered. The mandate was so interpreted because of the usual perception at the headquarters that in a civil war the role of the United Nations was that of a neutral mediator - a position consistent with the customary international law norm requiring neutrality of third parties in a civil war. In a classical state of belligerency - with a.) well- defined and recognisable leadership, b.) engaged in a civil war conducted in conformity with the laws of war, c.) exercising control over a substantial part of the state's territory, and d.) enjoying the allegiance of the people under occupation - the attitude of neutrality imposed by customary international law makes sense. But in a situation where hundreds of thousands civilians were being massacred, adherence to the customary norm of neutrality would, besides being morally wrong, constitute a clear violation of the tenets, identified above, on which the principle was based. The Rwanda Report had an unequivocal position on this "Faced in Rwanda with the risk of genocide, and later the systematic implementation of a genocide, the United Nations had an obligation to act which transcended traditional principles of peacekeeping. In effect, there can be no neutrality in the face of genocide, no impartiality in the face of a campaign to exterminate part of a population. While the presence of United Nations peacekeepers in Rwanda may have begun as a traditional peacekeeping operation to monitor the implementation of an existing peace agreement, the onslaught of the genocide should have led decision-makers in the United Nations -
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from the Secretary-General and the Security Council to Secretariat officials and the leadership of UNAMIR - to realise that the original mandate, and indeed the neutral mediating role of the United Nations, was no longer adequate and required a different, more assertive response, combined with the means necessary to take such action."18 The Rwanda Report noted the reluctance of Member States to commit themselves to stop the genocide. Two months after the killing had started, the UN had too few troops on the ground. The apathy in the Security Council was close to criminal negligence. Six months before the massacre, a Special Rapporteur of the Commission on Human Rights had reported that massacres and other serious human rights violations were taking place in Rwanda.19 Although the report refrained from making a judgement as to whether the acts constituted genocide, it nevertheless stated that the cases brought to its attention indicated "very clearly that the victims of the attacks, Tutsis in the overwhelming majority of cases, have been targeted solely because of their membership of a certain ethnic group and for no other objective reason/'20 The Rwanda Report cites numerous other pieces of evidence, including primarily field reports, to the effect that the Security Council was aware of the massacre, but had chosen to ignore it for a crucial length of time. And when it chose to act, it was too late and too little. Persistent reports of attacks amounting to genocide from the field forced the Secretary-General to change his stand on neutrality and to recommend to the Security Council stronger measures. The final observations in the Secretary-General's report to the Council were: "The delay in reaction by the international community to the genocide in Rwanda has demonstrated graphically its extreme inadequacy to respond urgently with prompt and decisive action to humanitarian crises entwined with armed conflict... We must all realize that, in this respect, we have failed in our response to the agony of Rwanda, and thus have acquiesced in the continued loss of human lives."21 On 8 June 1994 the Security Council adopted Resolution 925 which endorsed the Secretary-General's proposal of May to create UNAMIR II, which would include 5.500 troops with an expanded mandate, and urged Member States to respond promptly to the Secretary-General's request for re18 19 20 21
Ibid, at 33. Ibid, at 3. Ibid. Ibid, at 17.
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sources, including logistical support capability for rapid deployment of additional forces. Three aspects of the Security Council's response should be noted at this stage. First, that the Secretary-General's effort to enlist support and mobilise more troops following the 8 June resolution did not meet with success. Second - months after that resolution was adopted, as stated, UNAMIR still had only a limited amount of troops, a tenth of the authorised strength, on the ground. The paltry response could be attributed to the rift in the Council over the measures to be employed to meet such a serious situation (France and New Zealand advocated enforcement action under Chapter VII; the U.S. and U.K. were unwilling to take such a step). Third - China and other developing countries, fearing the impact of such an intrusive precedent in their domestic situations, were not willing to view the proceedings in Rwanda as a genocide, preferring to call it "acts of genocide" - a term that became standard lingo of the Security Council resolutions. The Rwanda Report, however, unequivocally concluded that the response of the United Nations before and during the 1994 genocide in Rwanda failed in a number of fundamental respects. The responsibility, said the Report, lied with a number of different actors, in particular the Secretary-General, the Secretariat, the Security Council, UNAMIR and the broader membership of the United Nations. The overriding failure was attributed to the lack of resources and political leadership, leading "to the terrible and humiliating situation of a UN peace-keeping force almost paralysed in the face of a wave of some of the worst brutality humankind has seen in this century."22 Recommendation 3 of the Report, consequently, was: that the Security Council and the troop contributing countries "must be prepared to act to prevent acts of genocide or gross violations of human rights wherever they may take place. The political will to act should not be subject to different standards."23 Recommendation 14 of the Rwanda Report deserves attention. "The United Nations", it states, "should acknowledge its part of the responsibility for not having done enough to prevent or stop the genocide in Rwanda."24 Earlier, the Report had categorically stated that the UN had failed to protect the people of Rwanda during the genocide in 1994. It was a failure, it said, "for which the United Nations as an organization,
22 23 24
Ibid., at 19. Ibid, at 37. Ibid, at 38.
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but also its Member States, should have apologized more clearly, more frankly, and much earlier."25 The Report's last recommendation was swiftly acted upon. On 16 December 1999, the Secretary-General issued a statement to this effect: "On behalf of the United Nations, I acknowledge this failure and express my deep remorse."26 The statement added: "Of all my aims as a Secretary-General, there is none to which I feel more deeply committed than that of enabling the United Nations never again to fail in protecting a civilian population from genocide or mass slaughter."27 The remorse and confession of failure, however, left the chairman of the Rwanda expert panel, Ingvar Carlsson, a former Swedish Prime Minister, puzzled. At a news conference, after presenting the Report, Carlsson said that it was "hard to understand" why the Security Council decimated the peace-keeping force in Rwanda, reducing it to a few hundred-from 2.500 troops when the genocide began, and then increased the force to 5.500 when the weeks of massacres were over.28 Carlsson was particularly hard on "those who didn't care at all, who said Rwanda is a distant African country. "29 Although Kofi Annan's apology was generally well received, some doubted if the responsibility was his or that of the organisation, as much as that of the individual members. The United Nations' ability to respond to crises can be only as strong as the will of its leading members to provide necessary resources. If the world's leading governments are indifferent to genocide, editorialised the Washington Post, the United Nations should not act as the vehicle for token interventions to hide their shame. "The shame of Rwanda", the editorial added, was "that the United Nations did send a token force to the region, as a salve 25 26
27
28 29
Ibid., at 34. See, http://www.un.org/News/ossg/sgsm_rwanda.htm
See also B. Crosette, "UN Bungled Intervention in Rwanda, Inquiry Says World Body and U.S., Despite Warnings, Did Little to Stop Genocide," IHT of 17 December 1999; and for the searing editorials of The Washington Post, "The UN Apologizes," and "Confession on Rwanda," IHT of 19 and 21 December 1999. See also, F. Lewis, "A Strong Blow to Hypocrisy at the United Nations," IHT of 19 November 1999; and W. Pfaff, "A Valuable UN Apology, but Nations Were Mainly at Fault," IHT of 22 November 1999. See N. Winfield, "Report Concludes U.N. Failed Rwanda," AP International News of 17 December 1999. Crosette, see note 26. See, "Confession on Rwanda,"see note 26.
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to its members' consciences, but then stood by as the horror unfolded."30 The disingenuous distinction made in the Security Council deliberations between "genocide" and "acts of genocide" equally attracted caustic comment. It was pointed out that the distinction had led to the slaughter of 500.000 to 800.000 Rwandans. "No finer distinction is likely ever to have cost so many so much", said Stephen Solarz, David Aronson and Stephen Weissman, the founders of the Campaign Against Genocide in a comment to The Washington Post.31 The commentators also noted that the U.S. was the only relevant power that had refused to investigate its response to the genocide. The French and Belgian parliaments and the Organisation of African Unity had undertaken such an examen de conscience, as the French elegantly phrase it, commented the writers. This section must be concluded with the Secretary-General's own comment on the nature of the Rwanda tragedy. In his 16 December 1999 statement on receiving the Rwanda Report, referred to earlier, the Secretary-General stated categorically that approximately 800.000 Rwandans "were slaughtered by their fellow countrymen and women, for no other reason than that they belonged to a particular ethnic group. That is genocide in its purest and most evil form."32
2. Srebrenica The soul-searching at the United Nations did not start with the Rwanda fiasco. A month earlier, Secretary-General Kofi Annan himself had presented a report on the fall of Srebrenica which was equally damaging33 (the Srebrenica Report, hereafter). The report was commissioned by the General Assembly a year earlier, by Resolution 53/35 of 30 November 1998. What followed was a classic case of selfexamination of conscience, "a startling exercise in candour", as a commentator noted, "in an institutional context usually given to selfserving justification, hypocrisy and therefore a habit of cynicism which 30 31
32 33
Ibid. S.Solarz/D.Aronson/S. Weissman, "Genocide in Rwanda While Washington Dithered", IHT of 21 February 2000. See note 26. Doc. A/54/549 of 15 November 1999. Cited as Srebrenica Report, hereafter.
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pervades and undermines the whole idea of maintaining peace."34 Kofi Annan merited commendation in particular for the courage shown in paring away the usual excuses and exposing the unwillingness of the Member States to react to the impending tragedy. He was the head of the Bosnian peace-keeping operation and in the direct chain of command that so tragically failed Srebrenica. The Srebrenica Report, however, goes beyond the personal courage or mea culpa of the Secretary-General. It throws a serious challenge and prods Member States to ponder over "the gulf between mandate and means; the inadequacy of symbolic deterrence in the face of a systematic campaign of violence; the pervasive ambivalence within the United Nations regarding the role of force in the pursuit of peace; an institutional ideology of impartiality even when confronted with attempted genocide."35 The Report raises this and a range of other doctrinal and institutional issues that go to the heart of the United Nations ability to keep the peace and help protect civilian populations from armed conflict. The Report posits the cardinal question of the scope of institutional response and draws the lesson "that a deliberate and systematic attempt to terrorize, expel or murder an entire people must be met decisively with all necessary means, and with the political will to carry the policy through to its logical conclusion. In the Balkans, this lesson has had to be learned not once, but twice. In both instances, in Bosnia and in Kosovo, the international community tried to reach a negotiated settlement with an unscrupulous and murderous regime. In both instances it required the use of force to bring a halt to the planned and systematic killing and expulsion of civilians."36 The failure to do so, concluded the report, had led to the tragedy of Srebrenica that "will haunt our history for ever."37 The Srebrenica Report set out in meticulous, systematic, exhaustive and arrowing detail the descent of Srebrenica into a horror without parallel in the history of Europe since World War II. The International Tribunal for the Former Yugoslavia described the horror well in its indictment of Radovan Karadzic and Ratko Mladic: "After Srebrenica fell to besieging Serbian forces in July 1995, a truly terrible massacre of the Muslim population appears to have taken place. The evidence tendered by the Prosecutor describes scenes of unimaginable savagery: thousands of men executed and 34 35 36 37
Lewis, see note 26. Srebrenica Report, para. 505. Ibid., para. 502. Ibid., para. 503.
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buried in mass graves, hundreds of men buried alive, men and women mutilated and slaughtered, children killed before their mothers' eyes, a grandfather forced to eat the liver of his own grandson. These are truly scenes from hell, written on the darkest pages of human history."38 The barbarity was part of the war that began in April 1992, in which Serbia had captured and consolidated its territorial acquisitions in Bosnia and Herzegovina in the first 60 days of the war. During that short period of 60 days, approximately 1 million people were displaced from their homes; and several tens of thousands of people, most of them Bosnian Muslims, were killed. The war in Bosnia and Herzegovina had in it elements of both an international and an internal armed conflict. The parties to the first were the Army of Yugoslavia, pitted against those of Bosnia and Herzegovina, and Croatia. The international conflict was conducted with minimal casualties and ended with peace agreements brokered by the United Nations, with a certain degree of coercive persuasion. The internal dimension of the conflict in Bosnia and Herzegovina was different. It was mostly local, with regular and irregular fighters - operating close to their homes. The central objective of this fight was the use of military means to terrorise civilian populations and perpetrate what later came to be known as "ethnic cleansing." Although several hundred thousand men were engaged in this conflict for three and a half years, and tens of thousands of combatants were killed, the conflict was more often one of attrition, terror, and negotiation, than it was of highintensity warfare. The relief effort mounted by the UN - was frustrated by undisciplined and drunken soldiers of undetermined political affiliations and not responsible to any identifiable central authority. A report to the Security Council described how relief supplies were stolen, vehicles hijacked and international aid workers threatened and abused.39 Operating in this chaotic conditions, the Security Council chose to adopt a policy which according to the Force Commander of the UN Protection Force (UNPROFOR) amounted to "mak[ing] war and peace at the same time."40 The Srebrenica Report contains a painstakingly reconstructed narrative of how the international community failed in Srebrenica and elsewhere in Bosnia and Herzegovina. It also seeks to find answers to, 38 39 40
Ibid., para. 2. See, Secretary-General's Report of 12 May 1992, Doc. S/23900, paras 3-6. Srebrenica Report, para. 51.
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and draw lessons from, the conflicting responses of the numerous actors in this gruesome drama. The one pertaining to the Security Council merits recounting. The Security Council, the Report states, made many mistakes in handling the conflict, the principal one of which was the effort "to keep the peace and apply the rules of peacekeeping when there was no peace to keep." It established a peace-keeping force flouting all the tenets of peace-keeping, e.g. agreement between the parties, deployment by consent, and impartiality. It imposed an arms embargo that froze the military balance that was overwhelmingly in favour of Yugoslavia, and thus "effectively deprived the Republic of Bosnia and Herzegovina of its right, under the Charter of the United Nations, to self-defence." The effort to provide humanitarian aid, although in itself admirable, was a wrong response to ethnic cleansing and to attempted genocide, the Report stated.41 Finally, on peace-keeping, the Srebrenica Report pointed out that the Security Council was repeatedly told by the Secretary-General that applying peace-keeping techniques would inevitably fail in a situation of war. None of the basic tenets of peace-keeping, mentioned in the preceding paragraph, i.e., cessation of hostilities under an international agreement, consent of the parties etc., existed in Bosnia and Herzegovina. "Nevertheless," added the Report, "faute de mieux, the Security Council decided that a United Nations peacekeeping force would be deployed. Lightly armed, highly visible in their white vehicles, scattered across the country in numerous indefensible observation posts, they were able to confirm the obvious: there was no peace to keep."42 Never again, was the concluding refrain of the Report.
41 42
Ibid., paras 488-493. Ibid., para. 492. Former Secretary-General Boutros Ghali's warnings, incidentally, were supplemented by Flora Lewis with the revelation that he had told the columnist "that the job of the secretary-general was to serve the member states, and if what they required was a cover or a scapegoat for their own refusal to act, then that, too, was part of the job." Annan, according to Lewis, was saying "no" to that reading of the vocation of the Secretary-General, and was advocating "a robust, active, interventionist kind of peacekeeping than the United Nations has normally known. He is saying to member states: Put up or shut up - don't expect the UN without force of its own to do what you don't want to do." See Lewis, see note 26.
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IV. The Problem of Perceptions of UN Peace-keeping 1. The American Mosaic It is axiomatic that state sovereignty is not a license to kill and brutalise people. Nor is it a license to perpetuate genocide and ethnic cleansing. Such practices clearly constitute a violation of international law. What is less clear, however, is: who has the right to punish such violations ? This ambiguity over the punitive authority has led unscrupulous national leaders to invoke and use the sanctity of state sovereignty as a shield for repressive policies. The United Nations is and ought to be the primary candidate for wielding such punitive power, but there have been some national claimants too, like the United States. This section examines the American position in this regard, by reference to the views of those that formulate and implement American foreign policy and determine its response to UN peace-keeping-the U.S. President, chairman of the U.S. Senate Foreign Relations Committee, and the Secretary of State. In an address to the end of the - millennium 54th Plenary Sess. of the UN General Assembly, President Bill Clinton vowed "to strengthen the capacity of the international community to prevent and whenever possible to stop outbreaks of mass killing and displacement."43 The response of the international community was bound to be different in view of the varying capacities of the countries to act and their perception of their national interests, he said, and added: " NATO acted in Kosovo, for example, to stop a vicious campaign of ethnic cleansing in a place we had important interests at stake and the ability to act collectively."44 Clinton was conscious of the fact that some were troubled at this conditional support of the U.S. to UN peace-keeping operations. The answer to such scepticism was: "We cannot do everything, everywhere."45 The different interests, however, in different parts of the world, warned Clinton, did not mean that the U.S. would be indifferent to the destruction of innocents in any part of the world. The U.S. would develop flexible responses to such tragic calamities, in association with other
43 44
45
GAOR 54th Sess., 6th Plen. Mtg. of 21 September 1999, at 4. Italics ours. Ibid., Emphasis supplied. Despite the immense effort to combat the evils of ethnic cleansing and securing the return of hundreds of thousands of Kosovar Albanians, "Kosvo stands now", editorialised The Washington Post, "as a test case of the merits of military intervention to defend human rights", see IHT of 27 December 1999. Ibid.
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concerned states conscious of their shared responsibility, as in Africa and East Timor. For a comprehensive perspective of U.S. policy on humanitarian interventions, one must juxtapose President Clinton's statement to the UN General Assembly with the one made by Senator Jesse Helms in the Security Council a few weeks later. Senator Jesse Helms, chairman of the U.S. Senate Foreign Relations Committee, was invited by the Security Council's chairman of the month, Richard Holbrooke, to meet and exchange ideas with the members of the Council, and to address the Council on 20 January 2000. The invitation was an attempt to build bridges with a hostile U.S. congress that had held up payment of UN dues. The two leaders had in the immediate past worked out a deal on the payment of more than a billion US$ owed to the UN over the years. The package, however, came with conditions. And Senator Helms took the opportunity to explain. Although avowedly extending a "hand of friendship", Senator Helms delivered "the sort of clenched-fist message that has made him the symbol of right-wing hostility toward the United Nations," as a commentator noted.46 Senator Helms' asserted repeatedly that he was speaking for the American people, a claim that cannot be ignored in view of his official position in the U.S. senate, despite the fact that the Secretary of State, Madeleine Albright, had issued a refutation to that claim saying that only the President of the U.S. and the state department formulated foreign policy and could speak on the subject on behalf of the American people.47 Underlining the importance of paying heed to the conditions laid down by the congress for clearing the arrears, Senator Helms reminded his audience that an illustrious predecessor of his, i.e. Henry Cabot Lodge, had put up 14 conditions to the treaty establishing the League of Nations which President Woodrow Wilson had indignantly dismissed, for personal pique,48 with disastrous results. The conditions prescribed by Lodge, in the words of Senator Helms, "included language to ensure 46
47 48
B. Crosette, "Firm Words from Albright About Helms and the U.N.", NYT of 25 January 2000. NYT of 21 January 2000. President Wilson, according to Senator Helms, had refused to make a deal with Senator Lodge shouting at one point "Never, never, never ... I'll never consent to adopting any policy with which that impossible man is so prominently identified." See, for the text of Senator Helms' speech NYT of 21 January 2000, 11-16.
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that the United States remained the sole judge of its own internal affairs, that the League not restrict any individual right of US citizens, that the congress retain sole authority for deployment of US forces through the League....".49 Senator Helms derived some satisfaction that the present U.S. administration was not repeating President Wilson's "fatal" mistake. If the UN were to reject this compromise, Senator Helms proclaimed, "it would mark the beginning of the end for U.S. support for the United Nations."50 He did not want that to happen, said Senator Helms, and urged the Security Council to measure up to the expectations of the American people and the vision they had of the United Nations, and desist imposing some Utopian view of the organisation. Senator Helms' understanding of what the American people wanted of the UN deserves analysis. Senator Helms and the American people, according to him, wanted a more effective UN, "but if the United Nations is to be effective, it must be an institution that is needed by the great democratic powers of this earth, the world, and most Americans - I must be candid - do not regard the United Nations as an end in and of itself. They see it as just one aspect of America's diplomatic arsenal." American people, in Senator Helms' view, will support the UN to the extent it meets their standard of effectiveness. If the organisation "becomes ineffective or, worse, a burden ... [they] will cast it aside", he declared. Senator Helms' understanding of the core tasks of the UN, again in terms of what the American people wanted was " ... to help sovereign nations coordinate collective action by coalitions of the willing, where the political [will] for such action exists, and ... to provide a forum where diplomats can meet and keep open channels of communications in times of crisis, and ... to provide to the peoples of the world important services, such as peacekeeping, weapons inspections, and humanitarian relief .... As matters stand, many Americans sense that the United Nations has greater ambitions than simply being an efficient deliverer of humanitarian aid, and a more effective peacekeeper, a better weapons inspector, and a more effective tool of great power diplomacy. The American people see the United Nations aspiring to establish itself as the central authority of a new international order of global laws and global
49 50
Ibid., at 7. Ibid.
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governance. This is an international order the American people, I guarantee you, do not and will not countenance."51 Senator Helms made a strong plea for the protection of national sovereignty by the UN, but added a caveat, "but nations derive their sovereignty, their legitimacy, from the consent of the governed. Thus it follows that nations lose their legitimacy when they rule without the consent of the governed."52 Measured by that yardstick, Senator Helms declared Milosevic, Fidel Castro and Saddam Hussein unfit to govern their nations. From that niche it was natural for Senator Helms to take the position that "when the oppressed peoples of the world cry out for help, the free people of the world have a fundamental right to respond." Intervention "in cases of widespread oppression and massive human rights" is then justified. The United States has a long history, according to Senator Helms, of coming to the aid of those struggling for freedom. During the 1980's, this U.S. policy was christened the Reagan doctrine, stated Senator Helms. Under the Reagan doctrine, according to Senator Helms, America had sought to bring down communist regimes that were oppressing their peoples. The democratic expansion of freedom in the last decade (the post-Cold War period in an obvious reference), for Senator Helms, was a direct result of the Reagan doctrine. Claiming legitimacy for the Reagan doctrine, Senator Helms maintained that the American people will never accept the claims of the United Nations to be the sole source of legitimacy on the use of force in this world. Referring to the establishment of the International Criminal Court against the wishes of the U.S., and more particularly the move of the chief prosecutor of the Yugoslav war crimes tribunal to investigate into the alleged war crimes committed by NATO forces during the Kosovo campaign, Senator Helms declared, any such move "would be the death knell of the International Criminal Court". A brave new world which, according to Senator Helms, the UN was seeking to establish ushering in a system of global justice in which independent prosecutors and judges "answerable to no state or institution" was anathema to the foreign policy and national security interests of the U.S., and was unacceptable to the American people.53 Senator Helms made the point - which is of interest to lawyers - that American courts routinely refuse to sit in judgement over the Execu51 52 53
Ibid., at 8. Ibid., at 9 Ibid., at 13.
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tive's national security decisions, stating that they were not competent to judge such decisions. If the Administration did not submit national security decisions to it's own courts why would it, Senator Helms argued, submit them to an international court. Americans, according to him, distrust concepts like the International Criminal Court and claims by the UN to be the sole source of legitimacy, and reject the "idea of a sovereign United Nations." If the UN was to survive into the 21st century, advised Senator Helms, "it must recognise its limitations," stop "trying to impose a Utopian vision on America, and the world", failing which it "begs for confrontation and ... eventual U.S. withdrawal."54 At the end of Senator Helms' address, nearly every member of the Security Council challenged his bleak portrayal of the United Nations and criticised the United States for letting it down. Significantly, the Namibian representative took impassioned exception to Senator Helms' assertion that the Reagan doctrine had brought freedom and democracy to the world. On the contrary, the Reagan doctrine, he said, denied independence to Namibia and its Southwest African Peoples Organisation, gave support to apartheid South Africa and empowered the UNITA rebel movement in Angola, that led to the prolongation of the civil war for a quarter century. The Namibian representative added: "It [i.e., the Reagan doctrine] contributed to a lot of suffering in Africa. Some of us in Swapo who were a legitimate and genuine national liberation movement were called other names: terrorists. And those that caused death and destruction were called liberators - and they were supported."55 The reference to UN "sovereignty" and the alleged attempt to impose Utopian ideals drew a deft rejoinder from Sir Jeremy Greenstock of Britain: "The United Nations is not a separate organ to which we turn, like a fire service. It is the Member States, and the United States owns 25 percent of the power and the resources of the United Nations. What it does well the U.S. gets credit for. What it does badly, the U.S. must bear some responsibility for."56 But it was the Canadian representative, Robert Fowler, who put in the strongest demurral to Senator Helms' vaunted U.S. contributions to the Organisation, claimed by him to be more that 10 billion US$ in 1999 alone. In 1999, he stated, Bangladesh was owed approximately US$ 18 million (for the troops it provided to the UN), or just under 175 times its regular budget contribu54 55 56
Ibid., at 13-15. Crossette, see note 46. Ibid, at 3.
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tions to this Organisation, and that Fiji was owed US$ 4 million, or just under 100 times its regular budget assessment. "In that 60 percent of all monies owed to the United Nations are owed by the United States, 60 percent of those numbers are owed by Americans to Bangladeshis and to Fijians," he said.57 Four days after Senator Helms' speech, the Secretary of State, Madeleine Albright, as mentioned earlier, felt necessary to counter the senator's claim to speak on behalf of the American people, coupled with the warning that Americans would cast the Organisation off if it failed to meet their demands. Only the president of the United States can speak for the American people, she said, and added: "today, on behalf of the president, let me say that the Clinton administration - and most Americans - see our role in the world and our relationship to this organization quite differently than does Senator Helms .... We strongly support the United Nations charter and the organization's purpose. We respect its rules, which we helped to write. We want to strengthen it through continued reform, and we recognize its many contributions to our own interest in a more secure, democratic and humane world."58 Senator Helms had another opportunity to reiterate his views on the "unique role" the U.S. senate played in foreign policy matters, and to contest Albright's assertion that in that field the president alone was entitled to speak. The occasion was a historic visit, at the Senator's invitation, of all the members of the Security Council to the U.S. senate in Washington D.C.59 Finally, another U.S. perspective of relevance is the one contained in a confidential document prepared for the White House by the National Security Council outlining America's global strategy for the 21st century.60 The study reportedly recommends U.S. military intervention in trouble spots world wide, citing potential threat from terrorism and "rogue" nations, besides urging a national military strategy that would equip it to fight nuclear, biological, chemical and "cyber- attacks" etc. the document charts a road map for how 21st century policy makers 57
Ibid., at 4.
58
See Crosette, see note 46. See IHT staff compilation from dispatches entitled "Helms Draws UN Council to His Turf," of 31 March 2000. The document was excerpted by the American print media and was the subject of analysis in Ramesh Chandran, "White House Strategy for 21st Century: Interventions, combating terrorism," The Times of India of 25 August 1999.
59
60
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should use America's economic, diplomatic and military strength to influence developments overseas and at home - in short an activist military policy for the new millennium to exert global leadership, and to remain the preferred security partner for the community of states that share America's interests. The United States administration, however, continues to endorse the NATO campaign in Kosovo and advocate the Clinton position on UN peace-keeping. The U.S. Secretary of State, Madeleine Albright, reiterated that position in an comment in The New York Times on 28 March 2000, and rationalised: "History teaches us that America cannot be secure if Europe is not secure, and events have reminded us repeatedly that Europe cannot be secure when conflict engulfs the Balkans. With Mr. Milosevic still present, the region remains a tinderbox. If we check out, wide-scale bloodshed will almost surely check back in."61 In a generous reference to the European allies, the article noted that, of the roughly 100.000 U.S. forces stationed in Europe, only 6.000 were deployed in Kosovo; that the European Union members had contributed 64 percent of the international troops; and that the U.S. was thus contributing fewer than 15 percent of total troops and less than 15 percent of the non-military costs of helping Kosovo recover from war and build stability.
2. The Kofi Annan Perspective Secretary-General Kofi Annan presented to the 54th (last of the millennium) General Assembly session his vision of "the prospects for human security and intervention in the next century" that was profoundly provocative.62 His initial assumption, for instance, that the "sovereign state, in its most basic sense, is being redefined by the forces of globalization and international cooperation" is followed by the rhetoric: "The state is now widely understood to be the servant of its people, and not vice versa." A more daring proposition follows: "At the same time, individual sovereignty - and by this I mean the human rights and fundamental freedoms of each and every individual, as enshrined in our Charter - has been enhanced by a renewed consciousness of the right of every individual to control his or her own destiny."63 A tantalising set 61 62 63
See IHT, see note 59. Doc. A/54/PV.4 of 20 September 1999. Ibid., at 1 and 2.
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of arguable assumptions that is unlikely to stand the doctrinal test, or reflect ground realities! But this flight of fancy needs not detract one from the thesis put forward by Kofi Annan on how the UN can respond to the political, human rights and humanitarian crises affecting the word. Picking up Rwanda and Kosovo, in particular, and several other crises as examples, Kofi Annan said that the duplicitous policy of taking action in some cases, "while limiting ourselves to humanitarian palliatives in many other crises whose daily toll of death and suffering ought to shame us into action."64 Kosovo and Rwanda, according to Annan, "cast in sharp relief the dilemma of what has been called 'humanitarian intervention': on one side, the question of the legitimacy of an action taken by a regional organization without a United Nations mandate; on the other, the universally recognized imperative of effectively halting gross and systematic violations of human rights with grave humanitarian consequences."65 The two equally compelling interests - universal legitimacy and effectiveness in defence of human rights - pose a core challenge to the Security Council and to the United Nations as a whole in the next century, stated Annan. The debate on the legitimacy of regional action without the approval of the Security Council, and inaction (or inadequate response) by it in the face of massive human rights violations or genocide should not end, affirmed Annan, with the conclusion that the UN Charter - with its roots in the aftermath of global inter-state war - was ill-suited to guide us in a world of ethnic wars and intra-state violence. Kofi Annan put forward the thesis that the sovereign states that drafted the Charter "were dedicated to peace, but experienced in war." They realised that the pursuit of peace in certain cases necessitated the use of force; but they found such legitimacy only in cases of common interest ("armed force shall not be used, save in the common interest," declares the Charter). But what is the "common interest," Kofi Annan asked, and answered: "I believe that as the world has changed in profound ways since the end of the cold war, our conceptions of national interest have failed to follow suit. A new, more broadly defined, more widely conceived definition of national interest in the new century would, I am convinced, induce States to find far greater unity in the pursuit of such basic Charter values as democracy, pluralism, human rights and the rule of law. A global era requires global engagement. In64 65
Ibid. Ibid.
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deed, in a growing number of challenges facing humanity, the collective interest is the national interest."66 Kofi Annan's prescription for resolving the tragic choice between the Councils unity but inaction on the ground (Rwanda) and division in the Council leading to regional action was: find a common ground in upholding the principles of the Charter and in acting in defence of our common humanity. The Charter requires, said Annan, the Council to be the defender of the common interest, and that warranted a demonstrable commitment to peace and willingness to take humanitarian action. "This developing international norm," concluded Kofi Annan, "in favour of intervention to protect civilians from wholesale slaughter will no doubt continue to pose profound challenges to the international community," which we should welcome, because "despite its limitations and imperfections, it is testimony to a humanity that cares more, not less, for the suffering in its midst; and a humanity that will do more, not less, to end it. It is a hopeful sign at the end of the twentieth century." Kofi Annan's vision of the United Nations brings him close to Mathew Arnold's Shelley:"A beautiful and ineffectual angel, beating in the void his luminous wings in vain."67 His advocacy of armed action to stop organised mass murder and egregious violations of human rights generated controversy in the debate that followed in the General Assembly. Some delegates pointed out that there was little consistency in the practice of states with the principle of humanitarian intervention that it could become a cover for gratuitous interference in the internal affairs of sovereign states; encourage secessionist movements deliberately to provoke governments into committing gross violations of human rights in order to trigger external interventions that would aid their cause; and that weak states were more likely to be subjected to it than strong ones. Reverting to Secretary-General Kofi Annan's activist role for the UN, one may add that Annan took the opportunity to counter his critics in his Millennium Report :"if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica - to gross and systematic violations of human rights that offend every precept of our common humanity?" We confront a real dilemma, Annan admitted, but added: "Few would disagree that both the defence of humanity and the defence of sovereignty are 66
Ibid., at 3.
67
See, M. Arnold, Essays in Criticism, 2nd Series.
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principles that must be supported. That does not tell us which principle should prevail when they are in conflict." Annan stated his preference unequivocally "Humanitarian intervention is a sensitive issue, fraught with political difficulty and not susceptible to easy answers. But surely no legal principle - not even sovereignty - can ever shield crimes against humanity. Where such crimes occur and peaceful attempts to halt them have been exhausted, the Security Council has a moral duty to act on behalf of the international community. The fact that we cannot protect people everywhere is no reason for doing nothing when we can. Armed intervention must always remain the option of last resort, but in the face of mass murder it is an option that cannot be relinquished."68 Scholars have debated for long on what constitutes national interest. An interesting perspective relevant to Kofi Annan's theorisation may be mentioned here. In a recent issue of Foreign Affairs69 Joseph S. Nye, Jr. has argued that the United States had generally viewed, and responded to threats to national interest in the following hierarchical order: a.) those that constitute a threat to its survival; b.) those that pose imminent threats to U.S. interests - but not to its survival; and finally c.) contingencies that indirectly affect U.S. security but do not directly threaten U.S. interests. The past Soviet threat was cited as an example of a.); North Korea and Iraq as illustrative of b.); and Kosovo, Bosnia, Somalia, Rwanda and Haiti were enumerated as cases falling under category c.). Nye Jr. noted that the U.S. had been traditionally reluctant to respond to the c.) category threat situations, but was dragged into some under pressure of politicians forced to react to human rights violations dramatised by the media ("the CNN effect"); but the same phenomenon had forced it to beat a hasty retreat, as in Somalia, when confronted with the televised pictures of a dead U.S. soldier dragged through the streets of Mogadishu. Nye Jr. advocated measured response to humanitarian situations, reserving violent options for the most egregious cases, conducted under "rules of prudence" similar to those that governed the "just war" doctrine: a just cause; saving innocent civilians; proportionality of means to ends; and a high probability of good consequences. The financial cost of such humanitarian interventions, it was noted, was high; but that factor combined with the notorious reluctance 68 69
The Millennium Report, paras. 193-194, 209, 216-219. J.S. Nye, Jr., "Redefining the National Interest," Foreign Aff. 78 (1999), 22 et seq.
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of the United States to take casualties was considered inconsistent with its super power status. "It is difficult to be a super power on the cheap", said Nye Jr. Besides the inherent philosophical complexities that complicate the responses of the international community, there are other notorious factors that render intervention in the internal affairs of sovereign states even more difficult. One may mention, in particular, the parties' vicious struggle to gain control over the natural resources of the country. Those in Angola and Sierra Leone can be presented as exemplifying this difficulty.
V. Problems of Peace-keeping in Modern Wars 1. The Natural Resources Nexus There are 500 million small arms and light weapons in circulation in the world - one for every 12 people. Since 1990 more than 2 million people have been killed by small arms in West Africa, an area rich in oil and diamonds. Such natural resources provide the means for buying weapons, achieving power and getting rich. The goal is achieved by granting concessions to companies from industrial countries and obtaining rich royalties, with which arms and the services of military advisers and mercenaries from the more advanced countries are bought. Substantial parts of the oil and mineral income get diverted to personal bank accounts abroad. The whole nexus of rich natural deposits, arms, war and corruption was veiled during the Cold War because of the indulgent super powers competing for control over the natural resources in the Third World. This terrible dynamic of revolutions and wars, as Therese Delpech notes, has drenched the 20th century in blood, leaving a corrosive legacy of cynicism, indifference and despair.70 In his address to the 54th Sess. of the UN General Assembly, President Bill Clinton, described the twentieth century eloquently, as one "deeply scarred by en-
70
T. Delpech, "Is the Violent Century of Wars and Revolutions really Over?," IHT of 3 February 2000. Prince (now, King) Hassan of Jordan, a signatory to the Geneva Appeal of 12 August 1999, made an eloquent case for changing the legacy of the 20th century which has been the bloodiest in history taking a toll of over 200 million people. See, "For the 21st Century, Create a global Culture of Peace", IHT of 31 August 1999.
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during human failures: by greed and lust for power, by hot-blooded hatreds and stone-cold hearts."71 A number of modern conflicts, according to Robert Neild, emeritus professor of economics at the University of Cambridge, especially those in Africa and other Third World countries, are sustained by the income earned by selling the plundered resources to rich customers in the West.72 Angola can be presented as an example of this phenomenon. For corroboration, one may use the report submitted to the UN Security Council by an independent panel of experts established by it under Resolution 1237 of 7 May 1999. a. Angola's Diamonds The panel of experts was mandated to investigate violations of Security Council sanctions against the UNITA which operates under the leadership of Jonas Savimbi. The sanctions at issue prohibit the sale or delivery of arms and military equipment to UNITA; prohibit the provision of petroleum products to UNITA; forbid the purchase of diamonds mined in areas controlled by UNITA; require the seizing of bank accounts and other financial assets of UNITA; and mandate the closing of UNITA representation offices abroad as well as restrictions on the travel of senior UNITA officials and adult members of their immediate families. Although the resolutions imposing the sanctions categorically invoke Chapter VII of the Charter of the United Nations, it was repeatedly emphasised that the purpose of the sanctions was not to punish UNITA but rather to promote a political settlement to the long conflict in Angola by requiring UNITA to comply with the obligations which it undertook when it signed the 1991 Bicesse Peace Accord and the 1994 Lusaka Protocol, and by limiting UNITA's ability to pursue its objectives by military means.73 With that clarification, the panel of experts carried out its mandate in a professional manner and submitted an explosive report on how UNITA, with the help of some compliant state and non-state actors, 71 72
73
Doc. A/54/PV.6 of 21 September 1999. R. Neild, "Expose the Unsavory Business Behind Cruel Wars," IHT of 17 February 2000. For a detailed report on the situation in Congo, see "Chaos in Congo - A Primer: Armies Ravage a Rich Land, Creating Africa's 'First World War'," NYT of 6 February 2000. For the report of the panel of experts, with an annex of the relevant Security Council resolutions, see Doc. S/2000/203 of 10 March 2000.
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has been violating the Security Council sanctions with impunity. The report stated that UNITA had violated the prohibition on import of arms and military equipment by obtaining end-user certificates from friendly states, like Zaire under Mobutu, Togo and Burkina Faso. Bulgaria was found to have supplied arms and other military equipment to UNITA in total disregard of their ultimate destination. The eagerness of international arms brokers and air transport carriers to act as intermediaries between UNITA and the suppliers of the arms and military equipment, together with its capacity to pay for what it wanted in cash or kind, was found responsible for the violation of the Security Council sanctions.74 The machinations of these state and non-state actors, exposed in the report, are surprising; but what is shocking is the manner in which UNITA paid for the arms and equipment with the sale of diamonds plundered by UNITA from the territory controlled by it. The report contains lurid details of the nefarious ways UNITA peddled diamonds for cash in international markets to obtain arms and buy political support. Smuggling diamonds was routine, stated the report, and it identified the conduits as Burkina Faso, Zaire (during the Mobutu era), Zambia and Rwanda. Namibia and South Africa also find a place in this list. There is a damaging finding in the report about the easy access for smuggled diamonds into Antwerp, which accounts for nearly 80 per cent of the world's rough diamond trade, with an estimated annual turnover for rough diamonds of approximately US$ 5 billion: "In this context the Panel found that the extremely lax controls and regulations governing the Antwerp market facilitate and perhaps even encourage illegal trading activity."75 The Belgian authorities are blamed for their failure to establish an effective import identification regime, and the diamond industry for its unwillingness or inability to police its own ranks.76 The findings of the panel on the manner in which UNITA uses diamonds as a tool for buying friends and supporters are the highlights of the report. On the basis of direct first-hand testimony, the panel found that "large quantities of diamonds and cash were given by Savimbi to the former President of Zaire, Mobutu Sese Seko, in exchange for favours to UNITA." A "passport-sized" packet of diamonds was presented to President Eyadema of Togo. The President of Burkina Faso and his close associates were similarly favoured with direct personal 74 75 76
Ibid., para. 51. Ibid., para. 87. Ibid., paras 90 and 91.
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Max Planck UNYB 4 (2000)
payments and by means of contributions to the President's political campaigns. In order to remedy the situation, the panel recommended forfeiture of diamonds where the legal origin of rough diamonds cannot be established by the possessor. More seriously, it called upon Member States of the United Nations to apply sanctions against individuals and enterprises discovered to be intentionally breaking UN sanctions relating to UNITA diamonds.77 b. The Barbarity and Targeting of Civilians Another aspect of the modern wars is the barbarity with which they are fought. Rwanda and Srebrenica, according to the United Nations' own exercises, expose the tragic ineffectiveness of the UN and that of the international community to meet the challenges posed by certain types of modern conflicts involving genocide, "acts of genocide", "ethnic cleansing" and other aggravated forms of inhumanity. As the Millennium Report of the UN Secretary-General notes, wars between states have become less frequent; but in the last decade internal wars have claimed more than 5 million lives, and driven many times that number of peoples from their homes. Some of these armed conflicts are "driven by greed, not grievance", as the Millennium Report states, and adds "Despite the existence of numerous international conventions intended to protect the vulnerable, the brutalization of civilians, particularly women and children, continues in armed conflicts. Women have become especially vulnerable to violence and sexual exploitation, while children are easy prey for forced labour and are often coerced into becoming fighters. Civilian populations and infrastructure have become covers for the operations of rebel movements, targets for reprisal and victims of the chaotic brutalities that too often follow breakdowns in state authority. In the most extreme cases, the innocent become the principal targets of ethnic cleansers and genocidaires."78 Calling for a halt to this "culture of impunity", the Millennium Report posits a conceptually reformulated notion of national security: " Once synonymous with the defence of territory from external attack, the requirements of security today have come to embrace the protection of communities and individuals from internal violence."79 This and the 77 78 79
Ibid., paras 109 and 110. Millennium Report, para. 209. Ibid., at para. 194.
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Rwanda and Srebrenica Reports have been presented above. One may add to those, the extraordinarily detailed reports submitted after the UN exercises on Rwanda and Srebrenica by a less controversial European institution, i.e., the Organisation for Security and Co-operation in Europe (OSCE). Based on official Western sources and from its own interviews, the OSCE reports on Kosovo present a dark picture of an ugly war, full of individual and collective cruelty and crime by the Serbs, followed by an ugly peace displaying the same depredations, if on a smaller scale, by the province's Albanians.80 The first OSCE report offers overwhelming evidence of a Serbian campaign, organised by a powerful authoritarian state and its security forces, to drive nearly a million Albanians from the province. It provides coherent detail and moving personal testimony about how the Serbs exercised their power, the pattern of expulsions and the vast increase in looting, killings, rape, kidnapping and pillage once the NATO air war began on 24 March 1999, with the connivance of the regular Yugoslav army. The second report describes the atrocities perpetrated by the Kosovo Albanians after the war. Those were conducted by the former Kosovo Liberation Army and had taken place, as the report notes, under the nose and often under the eyes of NATO-led peacekeeping forces that took control of Kosovo on 12 June 1999. The report adds that the Kosovo Albanians' desire for revenge "has created a climate in which the vast majority of human rights violations have taken place" and led to "the assumption of collective guilt," so that "the entire remaining Kosovo Serb population was seen as a target" irrespective of age and physical condition.81 Civilians in these wars have become the main victims, and the targets.82 In a short piece written on the occasion of the 50th anniversary of the Geneva Conventions, Henry Butterfield Ryan chronicled the routinely cruel manner in which combatants have targeted civilians in modern warfare avowedly to destroy the other side's will to fight, and to encourage rebellion in enemy ranks.83 On the same occasion, the 80
81 82
83
See S. Erlanger, "2 Kosovo Reports Show A Peace as Cruel as War," IHT of 6 December 1999. Ibid. For an account of this aspect of modern wars, see H. Butterfield Ryan, "In Warfare, Civilians Are Still the Target," IHT of 26 August 1999; also C. Sommaruga, "Renew the Ambition to Impose Rules on Warfare," IHT 12 August 1999. Ibid.
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Max Planck UNYB 4 (2000)
president of the International Committee of the Red Cross, Cornelio Sommaruga, lamented the slow erosion that is seen taking place in these wars between civilians and combatants. The attempt to target civilians, and the excessive use of force, is of course condemned. But what is worth noting is the point made by Sommaruga that the recent increase in the so-called "humanitarian interventions" should not lead to a blurring of the distinction between the victims of wars and those of humanitarian missions. The latter endeavours, said Sommaruga, "must not be wolves in sheep's clothing. War remains war, and humanitarian operations must remain humanitarian missions. A victim of war is a victim of war."84 Reverting to the main theme of this section, namely the cruelty of contemporary ethnic and other territorial conflicts, one must note that the death toll in the 1990s in the Balkans, despite the humanitarian missions, has reached 120.000. The fratricidal conflict in Nigeria in the Biafran war of 1967-70 cost the lives of an estimated 1 million; and that in Colombia in 1948-58 was 200.000; in Rwanda, 800.000, and so on. The civilian toll in the "civil" wars has thus been staggering! When this civilian targeting is fuelled by the strategy to gain control over the natural resources of the country, it could get horribly inhuman. The conflict in Sierra Leone exemplifies this.
2. Sierra Leone The conflict in Sierra Leone exposes the weaknesses of peace-keeping in internal wars more than anywhere else. The conflict began in March 1991 and continues to the day of writing. An attack launched by the Revolutionary United Front (RUF) against the government was subdued with the help of the army, which one year later itself staged a coup and overthrew the government. The army relinquished power in February 1996 in favour of the elected leader, Kabbah, and ousted him again six months later in May 1997. This time the army joined hands with the RUF, which had boycotted the 1996 elections and rejected Kabbah's rule. Kabbah went into exile in neighbouring Guinea. The Economic Community of West African States (ECOWAS) brokered a deal with the cooperation of the UN Secretary-General by which Kabbah was returned to office and the RUF was made a partner in the government. 84
Ibid.
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The ECOWAS-brokered deal was badly flawed and doomed. Making RUF a partner in peace was a tragic mistake. For, RUF, under the leadership of Foday Sankoh, was known to be one of the world's most brutal guerrilla movements. It had terrorised Sierra Leone by murdering thousands of civilians, gang-raping women and girls, and chopping off the limbs of suspected opponents. The leadership of this "gangster 'liberation movement'"85 was allegedly trained and sponsored by the president of Liberia, Charles Taylor, who is said to have perfected the most brutal form of capturing and retaining power. It consisted of recruiting young children into an army, doping them with crack cocaine and pushing them into committing the said crimes. Sankoh was convicted of treason and sentenced to death in 1998. The 1999 Lome Peace Accord granted Sankoh and his comrades full amnesty and immunity from prosecution for previous war crimes and absolved them of the atrocities committed in a campaign of terror for almost a decade. The United Nations was not involved - in spite of mediation efforts undertaken in 1995 - in the ugly conflict in Sierra Leone, but was drawn into it when, by a formal resolution, it welcomed the Lome Peace Accord, and revoked the sanctions imposed against the military junta in October 1997. In June 1998, the Security Council established the United Nations Observer Mission in Sierra Leone (UNOMSIL) for an initial period of six month, which in turn got converted into UNAMSIL (United Nations Mission in Sierra Leone). As of 19 May 2000, the Security Council increased again the autorized strength of UNAMSIL, to 13.000 military personnel, including 260 military observers. Under the peace deal, full amnesty of course meant Sankoh's release from death row. On top of it, the deal also led to his appointment as chairman of a new commission for the management of strategic resources, national reconstruction and development. Four of his top commanders were given cabinet positions. The rank and file rebels, many of them illiterate child soldiers, were to receive about US$ 150 each on entering disarmament camps where they were to receive some form of vocational training, and another US$ 150 at the end of the training - considerable sums of money in a country where the per capita GNP is US$ 140 a year. The price tag of the package, that came to be known as "D.D.R" - disarmament, demobilisation and reintegration was originally estimated at US$ 50 million, but rose to US$ 90 million
85
W. Pfaff, "The Problems in Africa Stem From Its Vast Mineral Resources/ IHToi 18 May 2000.
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owing to delays in start up and other problems.86Although it was the function of UNAMSIL to disarm the rebels it was unable to succeed in doing so. The contributors to UNAMSIL, be it noted, did not include the United States. Haunted by the memory of 18 American soldiers killed in Somalia on a United Nations mission, the U.S. was unwilling to commit its troops to any African peace-keeping venture. A regional initiative was the other alternative. Nigeria was considered best placed to take that initiative for a variety of reasons: Nigerian troops were already on the scene, had dealt with the Sankoh rebels appropriately under the earlier regional peace-keeping dispensation, and it was willing to undertake the mission. An U.S. administration official placed a doctrinal gloss over its indifference when he said the U.S. saw no national interest of its own involved in the Sierra Leone conflict, and that the regional powers had much at stake in that tiny West African country.87 The regional peace-keepers were deployed, under the Lome peace accord, throughout most of the country, except, significantly, in the rebel controlled diamond mining area. The accord was criticised by the UN High Commissioner for Human Rights and other human rights organisations for granting blanket amnesty to those guilty of atrocities and war crimes.88 Dennis Jett, former U.S. ambassador to Mozambique and Peru and author of "Why Peacekeeping Fails", put it bluntly: "Instead of dealing with a guy who obviously committed war crimes, they cut him a deal and put him in charge of diamonds in the hope that he'd steal enough to keep himself happy."89 Secretary-General Kofi Annan expressed reservations over the deal. Describing what she saw as "unspeakable horror", the U.S. Secretary of State, Albright, offered help for the establishment of a truth and reconciliation commission to deal with past atrocities.90
86
87
88
89
90
See, N. Onishi, "Anger Still Fires the Hell that Was Sierra Leone," NYT of 31 March 2000. See, J. Perlez, "A Doomed Peace: Missteps and a Weak Plan Marred Effort for Sierra Leone," NYT of 10 May 2000. See, N. Onishi, "Sierra Leone Measures Terror in Severed Limbs," NYT of 22 August 1999. See, S. Mufson, "Sierra Leone's Peace Succumbs to its Flaws," The Washington Post of 8 May 2000. See, B. Crosette, "6.000 U.N. Peacekeepers to Be Sent to Sierra Leone," NYT of 23 October 1999.
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When the not-so-hidden deal of leaving the rich diamond mines in charge of Sankoh was breached with the peace-keepers push into the diamond-producing areas, Sankoh balked. Obviously, Sankoh did not want peace-keepers in the rebel-controlled parts of eastern Sierra Leone because he feared they would interfere with a lucrative diamond smuggling operation he controlled there. Diamond smuggling had supported the rebels in their civil war and had reportedly made Sankoh very wealthy.91 Peace obviously did not suit him; so he reneged on the promise to disarm and began an assault against the government, and the UN peace-keepers. Fighting resumed before ink on the accord had dried and within six months the rebels were in Freetown, sharing power with junior army officers who had staged a coup against the elected president. The rebel invasion of Freetown, according to one estimate, resulted in the death of 6.300 people, and mutilation with machetes of hundreds. The city was pillaged and burned down.92 Sankoh's men repeatedly clashed with UN peace-keepers. Early May the clashes were intensified as the Nigerian-led West African peace-keeping force was about to complete its withdrawal. The attacks on UN peacekeepers led to seven casualties and to the capture by the rebels of 498 peace-keepers. The attack on peace-keepers and the hostage taking had a design. According to one report, it was Sankoh's fall-back strategy. If he failed in his bid for political power and lost complete control of the areas rich in diamond mines, he could use the UN peace-keepers as pawns for bargaining himself into an alternative deal. Sankoh's partnership with the Liberian president, Charles Taylor, had helped them both, yielding, according to one report, US$ 298 million to Liberia and to Sierra Leone US$ 31 million, in an obviously disproportionate ratio of the two countries' diamond wealth.93 According to the High Diamond Council in Antwerp, a hub of the worlds diamond trade which compiles annual sales figures from around the globe, the value of uncut diamonds officially exported from Sierra Leone rose from US$ 66 million in 1998 to US$ 31 million in 1999. At the same time, the value of diamond exports
91
92
93
B. Harden, "Insurgents in Sierra Leone kill 7 in U.N. Peacekeeping Force," 7VrTof4May2000. See, Agence France-Presse, "Civilians Skeptical About U.N. Proposal for Ceasefire in Sierra Leone," NYT of 4 May 1999. See, N. Onishi, "U.N.'s Unlikely Ally for Sierra Leone," NYT of 16 May 2000.
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Max Planck UNYB 4 (2000)
from Liberia, which has virtually no diamond deposits, rose from US$ 268 million in 1998 to US$ 298 million in 1999.94 Besides Charles Taylor, who at one time was involved in extradition proceedings in the U.S. on embezzlement charges,95 Sankoh had assistance from another quarter, Rev. Jesse Jackson who was sent by the American President to broker a deal with Sankoh. This strange team had another interesting member - Johnny Paul Koromah, a retired colonel "who leads a motley and undisciplined assortment of militiamen and former soldiers who now form the bulk of the government forces fighting the rebels."96 This leader of the Kamajors militia had staged a coup against the elected President two years back and is on the government's side this time. Koromah's militia, divided into groups with fanciful names, (one of which called the "Black Scorpion," captured Sankoh and handed him over to the government forces97) had itself a gory record of atrocities similar to those of the RUF. "The real problem for the country" in this situation, as a human rights worker is said to have commented, "is that basically they have to choose between two gangs of thugs."98 According to last reports, this assortment of the leaders and the led have only succeeded in further compounding the woes of the United Nations. The problems of the UN are reported to have been further worsened because of the leadership rivalries within the UN ranks, lending credence to the criticism that any increase in the numbers of the peace-keepers, without a corresponding enhancement in their strategic and armed capabilities, would end up their becoming targets for a ruthless rebel forces.99
94
95 96
97
98
99
See, D. Farah, "Diamonds Are a Rebel's Best Friend," Washington Post of 17 April 2000. See, Onishi, see note 93. See, D. Farah, "Old Problems Hamper U.N. In Sierra Leone," Washington Post of 11 June 2000. See, N. Onishi, "Neighbours Grab Fugitive Rebel in Sierra Leone," NYT of 18 May 2000; and D. Farah, "Sierra Leonean Rebel Leader Sankok Captured," Washington Post of 18 May 2000. See, D. Farah, "Army Passes Sierra Leone Rebels," Washington Post of 16 May 2000. See, Farah, see note 96.
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VI. Conclusions Given the cost and complexity of internal conflicts raging throughout the world, how prudent is it for the United Nations to intervene in such conflicts and try, in the process, to control and determine the direction of sovereign choices in broad swaths of the globe? An interesting, but obviously cynical, suggestion made in this connection is that of Edward N. Luttwak. Writing in the Foreign Affairs,100 Luttwak theorised that an unpleasant truth of war, often overlooked, was that, although a great evil, war did have a great virtue: it could resolve political conflicts and lead to peace. That happened, according to Luttwak, when the belligerents became exhausted or when there was a clear victor. He advocated continuance of fighting until that end was reached, and stated: "It might be best for all parties to let minor wars burn themselves out.... Peace takes hold only when war is truly over."101 Luttwak was critical of the United Nation's practice of prematurely intervening in cases of minor wars and imposing cease-fires on the not-as-yet exhausted belligerents - thus letting the belligerents to reconstitute and rearm their forces. That, according to Luttwak, "artificially freeze[s] conflict and perpetuate[s] a state of war indefinitely by shielding the weaker side from the consequences of refusing to make concessions for peace."102 Luttwak's beguiling argument presupposes that the so-called minor wars, that ought to be left to burn themselves out, are the ones that are not likely to lead to global conflagration. That assumption is combined with another one that such "local" conflicts are less costly in terms of human casualties. Both assumptions are of course wrong. The casualties in the post - Word War II internal conflicts, as mentioned above, have indeed been staggering. If one were to add to the prominent cases cited (Rwanda, etc.) the human cost of the Biafran war of 1967-70, the death toll in the Balkans and the massacre of civilians in Cambodia, one would realise how facile such assumptions are. The categorisation of any conflict as "minor" bristles with difficulties. Would a conflict between China and Taiwan, or between India and Pakistan be a minor one?103 100 101 102 103
E. N. Luttwak, "Give War a Chance," Foreign Aff. 78 (1999), 36 et seq. Ibid., at 37-38. Ibid., at 37. For an effective rebuttal of Luttwak's argument, see the editorial titled "Other People's Wars," of The Economist of 31 July 1999.
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The response of the United Nations to this deeply divisive issue has been just that - divisive. It has ranged from neglect, with disastrous results, as in Rwanda and Srebrenica, to token and patently inadequate concern and action, as in Angola, the Congo, Sierra Leone and so on. "Today's challenge," advised a New York Times editorial, "is to make the new system of established states, new states, failed states, regional conflicts and tenuous alliances work better than the old."104 The 20th century had witnessed the collapse of many empires that had sought to impose, among other things, an artificial and often brutal stability, disregarding the rights of minorities and the cultural identities of the world's thousands of ethnic, linguistic and religious sub-groups. Many of them increasingly wonder whether their moment to press for independence as a nation has arrived. The demands already made number 800 to 3.000, according to varying estimates. While respect for variety ought to be the pre-requisite of the emerging new world order, one cannot allow the rising crescendo of national aspiration to lead to the atomisation of the world into ever tinier nations. The challenge of striking a balance between the two warrants a re-examination of the seminal concept of self-determination that has had devastating consequences for the old imperial and colonial empires in the last century and threatens to destroy the precarious political order of the new century. The balancing act also calls for a re-evaluation of the role of the United Nations in dowsing the flames ignited by ethnic and other passions in internal conflicts, and in constructively channelizing genuine national aspirations to statehood. The UN has had a stellar performance record of successfully steering national self-determination demands in the heydays of de-colonisation. The recent endeavour in East Timor could be considered as the most recent feather in its cap. But its recent record in Bosnia, Kosovo, Rwanda, the Congo, Sierra Leone has been apparently tarnished. The above analysis seeks to probe the causes of this failure by projecting the inherent complexities of the contemporary internal conflicts and the varying perceptions of the state and non-state players responsible to find solutions to them. The emergent scenario is quite disconcerting: the UN can no longer sit on its laurels over peacekeeping; modern internal conflicts pose a serious threat to its survival as a well-tested instrument for maintaining world peace and security; Secretary-General Kofi Annan's well-meaning agenda to transmute peacekeeping and peace enforcement in internal conflicts needs to be squared 104
See, "Decline of Empires," IHT of 23 December 1999.
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with the uncertainties of American and other great power endorsement. A toll order, indeed. But then the United Nations has time and again demonstrated its resilience and capacity to innovate. There is no need to doubt it now.
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Book Reviews Reinhard Drifte: Japan's Quest for a Permanent Security Council Seat: a matter of pride or justice? St. Antony's Series, 2000. XII+269 pages. For experts and observers, Japan has been the most interested party in pushing forward the reform process at the United Nations since the early 90s. The last (Charter) reform of the United Nations dates back to 1965. The strengthening since then of Japan's economic role world-wide and its position as second largest contributor to the budget of the United Nations have provided the justification for Japan's attempt to push forward the modernisation agenda of the organisation which takes into account the new global political and economic realities. Consequently, in 1992 Japan joined India and a number of other interested countries of the developing world to start a reform debate aiming at improving their representation in the Security Council and providing Japan with a permanent seat in the Council. In Japan's Quest for a Permanent Security Council Seat, Drifte "examines comprehensively and for the first time the historical and international background, motivation, decision-making process and policy implementation of Japan's ambition to become a permanent UN Security Council member." The book benefits largely from the author's Asia expertise, especially in Japanese questions. Drifte is now the Chair of Japanese Studies in the Department of Politics at the University of Newcastle upon Tyne, before which he was Director of the Newcastle East Asia Centre from 1989 to 1996. Drifte leads us through the four Chapters of his book in almost chronological order, starting with Japan's UN policy from 1956 until 1989 (Chapter One}; Japan's "bid" for permanent membership at the beginning of the 90s (Chapter Two}', analysis of the reform momentum and the Japanese efforts to win international support for this bid (Chapter Three}; and, finally, the Japanese
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tactics and strategy within the relevant working group at the UN from 1993 until 1998 (Chapter Four). In Chapter One Drifte describes how confrontation between East and West and Japan's US focused bilateralism did not allow for an open and explicit candidature for a permanent Security Council seat in the 60s. Before joining the UN in 1956, Japan had had to endure three (Russian) vetoes against its admission alone. But as early as 1957, UNcentrism (kokuren chushin shugi) had become one of the official three foreign policy pillars of Japan. This included the objectives of revising the Charter and of promoting Japan as a major UN member (page 18). However, when the Security Council was expanded in 1965 by four non-permanent seats, Japan did not propose itself as a new permanent Council member. Apparently, Japan was content to achieve a Charter revision as a precedent for a later and more comprehensive revision (page 21). From 1969 on, official Japanese hints at its wish to become a permanent member became more noticeable. In this context, Japan also demanded the removal of the so-called enemy clauses from the Charter. At this stage, Japan started to run as a candidate for a non-permanent seat as often as possible (every four years). Rationale for this higher profile was its role as major economic power, its contribution to the UN budget, its non-nuclear status and Asian under-representation on the Council. Domestically, Japan hoped that in the future the UN would take over the US security guarantees. From then on, Japan tried to keep UN Charter revisionism alive through better staff representation in UN organs and a sharp rise in its official development assistance (ODA) (page 39-41). As early as 1959, Japan seems to have enjoyed crucial US support for its quest, made public for the first time in 1972, though the American disenchantment with the UN meant that this support never materialised. At least, consensus seems to have merged in the Foreign Ministry (Gaimusho) to pursue the objective to obtaining the seat in the not too distant future (page 51). Chapter Two highlights the three bases of Japan's multilateral diplomacy: 1. The Japan-US framework, meaning strong ties with the US on all political issues and exposing Japan to constant US demands for international burden sharing. 2. The economic interests of Japan, reflected by an ODA of US$ 9.35 billion (1997), placing Japan for the seventh year running at the top of the list of ODA countries. This high level of financial assistance made Japan a central player in most multilateral organisations. 3. The dualism between Japanese pacifism (UN idealism) and Realpolitik (alliance with the US, contributions to peace-keeping operations (PKO)). Kokuren chushin shugi became gradually linked to
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more PKO efforts (page 61). Japan tried to develop a multilateral conference diplomacy (Cambodia 1990, Afghanistan 1997) but acted slowly during the Gulf War (1991). Having obtained a non-permanent seat in the Security Council eight times was a success by itself, taking into account strong competitors like India (normally non-aligned supported). The seventh and eighth terms were marked by the Cambodian war, the Middle East and the Yugoslavian conflicts. Although Japan seemed far more engaged in Asian matters it tried to be constructive on the European issues. Contributions to PKO remained a hotly debated issue in Japan, given the restraints of its constitution in matters of defence. This was a dilemma which the government usually tried to solve by stating that Japan could assist the UN within the limits of Japanese law and that no country expected Japan to provide a military contribution (page 78). Statistics show that public opinion in Japan was generally against fully-fledged PKO involvements. This culminated in the 1992 Peace Co-operation Law with a series of political conditions attached which made sure that the number of UN missions to which Japan would send troops would remain low (page 92). Drifte shows that this did not prevent Japanese media and politicians from considering Japanese permanent membership justified, not the least because of its enormous financial contributions to the UN and the country's economic standing. Officially though, Japanese representatives would do everything to deny that a permanent seat is a matter of national prestige. Today a twothirds majority of the Japanese public opinion supports the bid (page 105). Chapter Three contains a description of the steps leading to the present reform discussion (initiated in 1992 with A/RES/47/62 of 11 December 1992) and the subsequent steps which have built up further momentum. Interestingly enough it was Japan which opposed the initial intention of the Indian co-sponsor to include a time plan for enlargement. The German readiness to sponsor the resolution and German Foreign Minister Kinkel's statement in favour of a German permanent seat seem to have helped Japan to clarify its candidature. While Japan had to keep a low profile at home due to different views among political parties and politicians and even in the Gaimusho itself, it stepped up its external lobbying to a remarkable extent, winning considerable support among UN Member States, particularly in Africa and Latin America. In addition, Japan continued to enjoy not only US support, but also that of the other permanent members with the exception of China. A common EU position was prevented by Italy, while Africa's 53 regional Member States seemed to have been won over by generous Japanese ODA and Africa-focused initiatives like the International Conferences on African
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Development in 1993 and 1998. Asian support remained mixed because of a lukewarm attitude of China and the two Korean states (not to forget the fierce resistance of Pakistan against any new permanent members which could include India). While at home political compromises invited confusion about Japan's true commitment, Japan internationally worked hard and quite successfully on winning support. Chapter Four deals with the main issues of the Security Council Reform Working Group established in December 1993: equitable representation of the soon 189 Member States, scope of the enlargement, veto rights and working practices of the Council. It also deals with the main framework text for a reform presented in March 1997 by the Malaysian President of the General Assembly Razali Ismail (page 182), although this proposal did not lead to an immediate breakthrough. In Chapter Four, the author regularly and critically compares the attitude and tactics of Japan with the more concrete German positions and compromise proposals in the Working Group. He concludes that Japanese wavering on many issues often gave the appearance of having caved in to American pressure and positions rather than to the majority view (page 186). In his final conclusions, Drifte states that there is a reform stalemate at present, but qualifies as successful the projection of Japan as a valid permanent Security Council member. He expresses the hope that Japan will become a more active multilateral partner and gives credit to the legitimacy of Japan's bid despite of the lack of a regional role like Germany's (page 195). Japan's Quest for a Permanent Security Council Seat is an excellent work. While many scholars have focused more on the so-called P5, the EU, the German or the Developing World's stances on the Security Council reform issue, Drifte succeeds in providing the reader with deep and detailed insights into Japanese positions and internal considerations which go far beyond the reform issue as such. When he characterises Japan "not as a leader, but a successful follower", many may share this assessment. Drifte's criticism in regard to some of Japan's positions such as having too close an alliance with the US and holding not bold enough positions on key reform questions and proposals (scope of enlargement, veto, Razali proposal), is familiar to those actively participating in the reform process but not so far to the broader public. One of the study's many merits is to allow access to this kind of insight in a debate which will certainly continue and is bound to lead to concrete reform steps in the not too distant future. The study is a must for all those interested in Security Council reform, Japanese politics and multilateralism. Needless
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to say, the notes and bibliography of the piece are impressive and exceptionally accurate. Dr. Ingo Winkelmann, Counsellor, German Embassy Sarajevo
International Criminal Tribunal for the Former Yugoslavia/Tribunal Penal International pour 1'ex-Yougoslavie Judicial Reports/ Recueils Judiciaires 1994-1995, Vol. I, II. Kluwer Law International, 1999. 1189 pages. The jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY), together with the jurisprudence of its sister tribunal for Rwanda (ICTR) located in Arusha, has paved the way for many important developments in the field of humanitarian law and international criminal law. It is, however, not for that reason alone that the publishing of the judicial reports of the ICTY has to be applauded. The two volumes cover the period from the very beginning of the work of the ICTY in 1994 until the end of 1995. The work, which in accordance with the fact that the ICTY has two working languages, i.e. English and French, is bilingual and contains all public indictments, decisions and judgements rendered during that period. The reports are organized chronologically on a case-by-case basis. The two volumes accordingly cover inter alia the Tadic and Nikolic Cases as well as the Karadzic and Mladic indictments. Unlike the ICJ Reports, the reports are prepared on the basis of official documents made camera-ready and are not typesett. It is for that reason that two corresponding pages sometimes look somewhat awkward. Unfortunately, the references contained on pages 1170-1189 are of limited value. Apart from a Table of Cases and Indictments and Deferrals, the Table of References only refers to the different provisions of the Charter of the United Nations, resolutions of the Security Council as well as the Statute of the Tribunal itself. The book does not, however, contain an analytical index which would allow the reader to access all those references where the tribunal discusses, e.g. the notion of grave breaches or the international or non-international character of a given military conflict.
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Notwithstanding this unfortunate deficit, the two volumes are undoubtedly of major importance for all international lawyers working in the field. It is to be hoped that both, a similar work as far as the ICTR is concerned as well as the next volumes of the ICTY judicial reports will be published in due time. Assistant Professor Andreas Zimmermann, Heidelberg Roy S. Lee (ed.): The International Criminal Court — The Making of the Rome Statute: Issues, Negotiations and Results Kluwer Law International, 1999. XXXV + 657 pages. The adoption of the Rome Statute of the International Criminal Court has been a major step towards an effective repression of those international crimes which are of concern for the World at large such as genocide, crimes against humanity and war crimes. Still, the drafting history of the statute is somewhat obscure given that most of the more important negotiations took place in closed session where no formal records exist. The different chapters of the book to be reviewed have been written by some of the key players in the negotiations mapping out a very detailed picture of the different issues the drafters were confronted with. It would go beyond the scope of this review to outline all the details of the respective chapters. It should be noted, however, that the fact that the authors have themselves been involved in the drafting could be a disadvantage in that sometimes a position, that a given participating state had taken might be described in a somewhat one-sided manner. It is therefore helpful to find on pp. xiii et seq. a list identifying the respective contributors and their specific affiliations, if any. It is also helpful to find, in an Annex, relevant statements made by participating states after the adoption of the Statute. On the whole, the book is a very significant addition to the already existing literature on the International Criminal Court. Notwithstanding the fact that under the relevant rules of international law the drafting history of an international treaty only serves as a subsidiary means of interpretation, it still gives important insights without which some specific provisions and their content can be barely understood. In that regard, when analysing the Rome Statute, one should always — apart
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from the Commentary edited by Triffterer1 — find this book a useful reference tool. Assistant Professor Andreas Zimmermann, Heidelberg
1
O. Triffterer, Commentary on the Rome Statute of the International Criminal Court, Nomos, 1999.
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Verdffentlichwngen des Max-Wanck-lns
B. Kellersmann
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Die gemeinsame, aber differenzierte Verantwortlkhkeit von Industriestaaten und Entwicklungslandern fiir den Schutz der globalen Umwelt
Sekundarzwecke im Vergabeverfahren The book sets out to explore the limits arising under EC law to Member States'use of procurement as a policy tool. Pertinent Member States'practices and regulations are analysedThe EC directives on procurement do not form a complete code.Consequently, the limits on Member States' action arising from the EC Treaty are examined. As a result, the formulation of transparent award-related criteria is recommended in contrast to any reference to national and local standards.
Principle 7 of the Rio- Declaration of 1992 contains the concept of common, but differentiated, responsibilities which attempts to take into account the fact that different groups of states are not in a position to participate in the protection of the global environment to the same extent. The study particularly analyses the application and implementation of this concept in state practice. 2000. XXII, 380 S. (Bd. 143) Geb. DM 159,-;oS 1161,-; sFr 144,ISBN 3-540-67057-2
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Die thematischen Berichterstatter und Arbeitsgruppen der UN-Menschenrechtskommission Since 1980, the UN Commission on Human Rights has entrusted Special Rapporteurs and Working Groups with "thematic mandates", i.e. the task of examining specific types of human rights violations.The book analyses the work of a selected number of these monitoring mechanisms, and shows whether and to what extend they contributed to the concretization of the applicable customary human rights and procedural rules.
Trade embargos are important coercive measures below the threshold of the use of military force. Since the end of the cold war the number of embargo resolutions of the UN Security Council has considerably increased.The legal and economic impact of such embargo resolutions and the problem of their implementation is one of the topics the book focuses on. In this context it is also demonstrated how the E.G. imposes embarbos either autonomously or by the way of implementation of embargo resolutions. 2000. XXVI, 532 S. (Bd. 137) Geb. DM 186,-; 65 1358,-; sFr 168,ISBN 3-540-65398-8
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