Austrian Review Of International And European Law 2002 (Austrian Review of International & European Law)

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AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW

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Austrian Review of International and European Law

AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW Volume 7

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AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW Volume 7, 2002 Editor-in-Chief

Gerhard Loibl

MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON

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A CIP Catalogue record for this book is available from the Library of Congress Suggested citation: 7 ARIEL (2002) Manuscripts, editorial communications and book reviews as well as books for review are welcomed and may be sent to: Editor, Austrian Review of International and European Law c/o Department of International Law University of Vienna Universitätstraße 2 A-1090 Vienna, Austria [email protected] http://www.univie.ac.at/intlaw/ariel.htm

Printed on acid-free paper. ISBN 90-04-14202-9 © 2004 Koninklijke Brill NV http://www.brill.nl Brill Academic Publishers incorporates the imprint of Martinus Nijhoff Publishers This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher.

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AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW EDITOR-IN-CHIEF Gerhard Loibl Institut für Völkerrecht und Internationale Beziehungen, Vienna, Austria

ASSISTANT EDITORIAL MANAGERS Ursula Kriebaum and Stephan Wittich Institut für Völkerrecht und Internationale Beziehungen, Vienna, Austria

EDITORIAL BOARD F. Cede, Vienna, Austria P. Fischer, Vienna, Austria G. Hafner, Vienna, Austria W. Hummer, Innsbruck, Austria

W. Karl, Salzburg, Austria H. Neuhold, Vienna, Austria M. Nowak, Vienna, Austria C. Schreuer, Vienna, Austria K. Zemanek, Vienna, Austria

ADVISORY BOARD W. Balekjian, Glasgow, Scotland J. Crawford, Cambridge, England P.-M. Dupuy, Paris, France T. M. Franck, New York, U.S.A. K. Ginther, Graz, Austria G. Handl, New Orleans, U.S.A. K. Herndl, Strasbourg, France M. Koskenniemi, Helsinki, Finland H. F. Köck, Linz/Auhof, Austria

S. C. McCaffrey, Sacramento, U.S.A. A. Randelzhofer, Berlin, Germany W. M. Reisman, New Haven, U.S.A. M. Rotter, Linz, Austria B. Simma, The Hague, the Netherlands L. Sucharipa-Behrmann, Vienna, Austria C. Tomuschat, Berlin, Germany H.-J. Uibopuu, Salzburg, Austria F. Weiss, Amsterdam, The Netherlands L. Wildhaber, Strasbourg, France

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Manuscripts, editorial communications and book reviews as well as books for review are welcomed and may be sent to:

Editor, Austrian Review of International and European Law c/o Department of International Law University of Vienna Universitätstraße 2 A-1090 Vienna, Austria [email protected] http://www.univie.ac.at/intlaw/ariel.htm

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Contents

Articles Bernhard Knoll United Nations Imperium: Horizontal and Vertical Transfer of Effective Control and the Concept of Residual Sovereignty in “Internationalized Territories”............................................................................................................................ 3

Päivi Leino Rights, Rules and Democracy in the EU Enlargement Process: Between Universalism and Identity ................................................................................................... 53

Lauri Mälksoo State Identity, Deconstruction and “Functional Splitting”: The Case of Illegal Annexations ......................................................................................................................... 91

August Reinisch Some Problematic Aspects of Recent EU Financial Anti-Terrorism Measures ............... 111

Christoph Schreuer Failure to Apply the Governing Law in International Investment Arbitration ............... 147

Current Developments Katrin Hagemann The EU Emissions Trading Directive versus National Efforts within the EU ................. 199

David Rezac President Bush’s Security Strategy and Its “Pre-Emptive Strikes Doctrine” – A Legal Basis for the War against Iraq? ........................................................................ 223

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Austrian Practice in International Law (2001/ 2002)/ Österreichische Praxis zum Internationalen Recht (2001/2002) Structure ............................................................................................................................ 245

Stephan Wittich & Michael Schoiswohl Part I: Austrian Judicial Decisions Involving Questions of International Law/ Österreichische Judikatur zum internationalen Recht ..................................................... 257

Christina Binder, Isabelle Buffard, Gerhard Hafner & Katrin Hagemann Part II: Austrian Diplomatic and Parliamentary Practice in International Law/ Österreichische diplomatische und parlamentarische Praxis zum internationalen Recht ........................................................................................................ 303

Book Reviews Aust A., Modern Treaty Law and Practice (M. Fitzmaurice) ................................................ 391 Cassese A./Gaeta P./Jones J. R. W. D., The Rome Statute of the International Criminal Court. A Commentary (G. Hafner) ....................................................................... 393 Faure M./Koziol H., Cases on Medical Malpractice in a Comparative Perspective Rogers H.W.V., Damages for Non-Pecuniary Loss in a Comparative Perspective (S. Wittich) ....................................................................................................... 396 Franck T. M., Recourse to Force: State Action Against Threats and Armed Attacks (H. Neuhold) .......................................................................................................... 399 Hilpold P., Modernes Minderheitenrecht. Eine rechtsvergleichende Untersuchung des Minderheitenrechtes in Österreich und Italien unter besonderer Berücksichtigung völkerrechtlicher Aspekte (D. Rezac/C. Binder) .................. 400 Igarashi M., Associated Statehood in International Law (M. Schoiswohl) .......................... 402 Ku C./Jacobson H. K., Democratic Accountability and the Use of Force in International Law (S. D. Feller) .......................................................................................... 409 Shelton D., Remedies in International Human Rights Law (S. Wittich) .............................. 413 Zegveld L., Accountability of Armed Opposition Groups in International Law (M. Schoiswohl) ......................................................................................................... 418

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Book Notes Boisson de Chazournes L./Gowlland-Debbas V. (eds.), The International Legal System in Quest of Equity and Universality. L’ordre juridique international, un système en quête d’équité et d’universalité (S. Wittich) ........................... 429 Bradlow D.D./Escher A. (eds.), Legal Aspects of Foreign Direct Investment (C. Schreuer) ...................................................................................................................... 429 Douma W. Th. (ed.), European Environmental Case Law (G. Loibl) ................................... 431 Drolshammer J./Pfeifer M. (eds.), The Internationalization of the Practice of Law (S. Wittich) .............................................................................................................. 431 Eeckhout P./Tridimas T. (eds.), The Yearbook of European Law (A. Reinisch) .................. 432 Hohfeld W. N. Edited by Campbell D./Thomas P., Fundamental Legal Conceptions as Applied in Judicial Reasoning (S. Wittich) ................................................. 433 Triffterer O. (ed.), Commentary on the Rome Statute of the International Criminal Court. Observers’ Notes, Article by Article Rosbaud C./Triffterer O. (eds.), Rome Statute of the International Criminal Court Including the Final Act. Statut de Rome de la Cour Pénale Internationale – Estatuto de Roma de la Corte Penal Internacional – Römisches Statut des Internationalen Strafgerichtshofs (S. Wittich) ...................................................................... 434 Weiler J. H. H. (ed.), The EU, the WTO, and the NAFTA. Towards a Common Law of International Trade? (A. Reinisch) .......................................................................... 434

United Nations Imperium

Articles

Austrian Review of International and European Law 7: 3-xxx, 2002. ©2004 Martinus Nijhoff Publishers. Printed in the Netherlands.

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United Nations Imperium: Horizontal and Vertical Transfer of Effective Control and the Concept of Residual Sovereignty in “Internationalized Territories” Bernhard Knoll*

I.

Introduction

Since the mid-1990s, the United Nations and other multilateral bodies have increasingly asserted authority for the administration of war-torn territories. As such, these increased efforts were facilitated by a changed architecture of security in the post-cold war era.1 The accompanying redefinition of the notion of “threat to peace” in Article 39 of the UN Charter led to an extension of enforcement powers of the Security Council (SC) to international armed conflicts and grave humanitarian crises. The farreaching engagement of the UN in the process of state- and institution building was the result of an increased multilateral and civilian effort to create democratic institutions and market economies as a basis for sustainable peace for societies exiting civilian conflict. Such ‘international social engineering’ appears to be based on a paradigm that has its intellectual roots in what has been labelled ‘liberal interventionism’.2 In key

* Mag. iur. (University of Vienna), M.A. in International Relations (JHU/SAIS), Ph. D. candidate in international law at the European University Institute, Florence. The author has worked in various positions in the OSCE Missions in Bosnia and Kosovo, most recently as (acting) Temporary Media Commissioner (TMC) in Prishtina. I wish thank my supervisor, Prof. Pierre-Marie Dupuy, for his valuable comments and Elsa Gopala Krishnan for thoroughly re-reading earlier drafts of this article. 1

M. Rothert, “U. N. Intervention in East Timor”, 39 Columbia J Transnational L 257 (20002001). Cf. also R. N. Haass, Intervention. The Use of American Military Force in the PostCold War World 16 (1999), and K. von Hippel, Democracy by Force. US Military intervention in the Post-Cold War World 10 (2000).

2

Cf. O. Korhonen, “International Governance in Post-Conflict Situations”, 14 Leiden JIL 496 (2001), and R. Paris, “Peacebuilding and Limits of Liberal Interventionism”, 22 International Security 55 (1997). For a recent critique of the interventionist paradigm

Austrian Review of International and European Law 7: 3-52, 2002. ©2004 Koninklijke Brill NV. Printed in the Netherlands.

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instances, the Security Council has followed this paradigm and has taken bold steps towards expanding its role in the maintenance of international peace and security. The authorisation of peace enforcing, peacekeeping, and peace building operations, characterised by a growing use of powers under Chapter VII of the UN Charter and at the same time by an increasing willingness to apply diverse enforcement measures under Article 41, has grown quantitatively and qualitatively. This article is primarily concerned with the technique of administering a territory under the auspices of an international authority. The recent establishment of two plenary systems of international territorial administration also raised new perspectives on the legitimacy of multilateral processes, while arguably enhancing the readiness to utilise new models of political authority. It attempts to provide a theoretical foundation to sketch out what has often been labelled ‘suspended’ or ‘restricted’ sovereignty in international law. For centuries, the demands of political reality have forced sovereign states to consent to agreements by which they relinquished a portion of their sovereignty – of the suprema potestas – in favour of another sovereign entity. Though it is not new to the legal and political discourse in international relations, the concept of suspended sovereignty has been increasingly employed in recent times. At the outset, it may therefore be advisable to attempt to roughly categorize cases of restricted sovereignty:3

– Tributary vassal states (territories under foreign suzerainty in which powers were divided between the sovereign and a local vassal who enjoyed only limited local autonomy);

– Crown colonies and dominions (under the sovereignty of the monarch of the mother-country with various degrees of local autonomy);

– Servitudes (restrictions imposed by treaty on a territory, for a limited or unlimited period, to serve a certain purpose or interest of another state);

– Capitulation rights (especially in the field of exemption of local jurisdiction, taxation, religious affairs);

– Protectorates (in which the protection of the territorial integrity (often also interpreted as post-modern colonial concept in disguise, see G. Knaus/F. Martin, “Travails of the European Raj. Lessons from Bosnia and Herzegovina”, 14 Journal of Democracy 60 (2003). 3

For a typology of and state practice regarding non-sovereign entities with limited international personality see R. Jennings/A. Watts (eds.), Oppenheim’s International Law. A Treatise, Vol. 1 – Peace 188 (9th ed. 1992); J. H. W. Verzijl, International Law in Historical Perspective: Part II: International Persons Chapter VI (1969), and id., Part III: State Territory Chapter IV (1970), and M. Ydit, Internationalised Territories. From the ‘Free City of Cracow’ to the ‘Free City of Berlin’. A Study in the Historical Development of a Modern Notion in International Law and International Relations (1815-1960), at 19 (1961).


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the direction of foreign affairs, of the monetary system, etc.) of a state or territory is carried out by the protector state);

– Condominia or co-imperia4 (forms of collective territorial supremacy over one and the same portion of the surface of the earth);

– Mandated Territories and Trusteeship Territories (under the supervision of the Permanent Mandates Commission (League of Nations) or the Trusteeship Council (UN) while gradually developing towards their full independence);

– Territories under international administration (internationalized territories whose legal conception is based on a distinct multilateral horizontal settlement or by means of vertical imposition, and effective control exercised by a group of states or by the organised international community). Referring at times to processes and methods of transferring effective control in previous categories, this article mainly will focus on territories under international administration as an experimental model of restricted sovereignty. As the discussions over the future political status of Kosovo are gaining a particular dynamic after the start of direct technical negotiations between Kosovan and Serbian delegations under the auspices of the UN Special Representative of the Secretary-General (SRSG), this article takes a step back and aims at providing a normative framework within which the transfer of imperium, from a sovereign power to a protecting entity with the former retaining the sovereign claim as a bare title, can be located. The article looks at the body of international law, both state practice and jurisprudence of the International Court of Justice (ICJ), regarding the ‘transfer of administrative capacity’, with the intention to advance the discussion on the status of internationalized territories, and in particular on the status of Kosovo under international law. It argues that claims that a fully internationalized territory such as Kosovo constitutes a ‘UN condominium’, a territorial extension of ‘complex peacekeeping’, or even an open-ended “protectorate (…) not dissimilar from the condition of Class A mandates of the League of Nations, which were sovereign but not independent”5, are all in a certain way mistaken. The view that interprets the UN mandate to build institutions of self-government as a manifestation of an alleged transfer of territorial sovereignty from the Federal Republic of Yugoslavia to the UN Security Council might be equally erroneous.

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‚Staatengemeinschaftsgebiete‘, which are regarded as all territories under multiple sovereignty subject to a „gemeinsame Verfügung über das Gebiet” (joint disposition over the territory); A. Verdross, Völkerrecht 297 (1964). See also Verzijl, supra note 3, Part III, at 429.

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A. J. R. Groom/P. Taylor, “The United Nations System and the Kosovo Crisis”, in A. Schnabel/R. Thakur (eds.), Kosovo and the Challenge of Humanitarian Intervention. Selective Indignation, Collective Action, and International Citizenship 303 (2000).

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The following chapters address three interrelated problems that have been debated in recent literature: 1. The transfer of effective control, on horizontal level, by a state to another entity that leaves the old sovereign with a nudum jus he can still dispose of, as developed by doctrine, jurisprudence (II.A.) and as practiced by states (II.B.); 2. The capacity of the United Nations administer territory, and to vertically impose a transfer of effective control, based on Chapter VII of the UN Charter (III.); 3. The mandate and extent of the authority of a UN Mission in an internationalized territory such as Kosovo and its status in international law, interpreted as the synthesis between the horizontal tradition of transferring effective control and the application of vertical instruments in international public law (IV.). Following the conclusion, in which the idea of ‘functional duality’ of international administrations will be expanded on (V.), the article applies a number of the developed propositions to a case, offered at a hypothetical level, that involves the putative transfer of a bare sovereign title, by the Union of Serbia and Montenegro, to another state.

II. Horizontal Transfer of Effective Control and the Bare Sovereign Title The chapter aims at bringing into sharper focus the concept of ‘suspended’ or residual sovereignty through the prism of the horizontal dynamics that governed the transfer of effective control, as distinct from title to territory, and applies it to the model of international territorial administration. An analysis of instances that involve a disjunction of notions of sovereignty and territorial control includes a reappraisal of the relationship between imperium and dominium; their duality adds a conceptual mediation to the definition of sovereignty.

A. Doctrine and Jurisprudence As will be shown below, the ICJ has often implicitly employed a doctrine traditionally known as object theory, which apprehends the notion of sovereignty over a certain part of the globe as dominium, in analogy to roman private law.6 Whereas the concept 6

In the Minquiers and Ecrehos case, the Court had to decide the issue of jurisdiction over a tiny island close to the Normandy coast, contested between France and Britain: “Having


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of imperium in international law refers to general state jurisdiction and is derived from Roman constitutional law, the notion of dominium refers to rights over things, in particular territory or land, and has been based on the Roman law of ownership.7 ‘Legal sovereignty’ in international law has thus been used to describe the right of ownership which a state may have over any particular portion of territory,8 with the territorial sovereign exercising effective control similar to an owner of an object. Dominium in this sense involved both an obligation on the part of others to abstain from all interference, and the right of its holder to act on the territory, a faculty of absolute disposition. The traditional definition of the state implies that imperium and dominium are connected, precisely because both population and territory are elements of the state, each element being dependent on the other. As Portugal’s judge ad hoc stated in the Right of Passage Case (1960), “[s]overeignty over territory implies the capacity to exercise public authority in that territory. It implies the right and the obligation to maintain public order there, if necessary manu militari”.9 A government exercises its sovereign title in the form of an imperium over the population, its jurisdiction being territorial and thus connecting the population with the respective territory.10 Whereas the medieval doctrine had sought to derive imperium from dominium according to

thus been requested to decide whether these groups belong [appartiennent] either to France or to the United Kingdom”. Minquiers and Ecrehos (France v. UK), Merits, Judgment of 17 November 1953, 1953 ICJ Reports 47, at 52. 7

Cf. I. Brownlie, Principles of International Law 108 (1990); E. Lauterpacht, International Law: Collected Papers 367-370 (1970); Verzijl, supra note 3, Part III, Chapter 1, at 9; Verdross, supra note 4, at 267; and Donati who, in the tradition of Roman ownership law argued “che il diritto dello Stato sul territorio costituisce un diritto di dominio in senso stretto” D. Donati , “Stato e territorio”, 8 Rivista di diritto internazionale 465, 471 (1914). On this topic, O’Connel writes that there would seem to be a fundamental cleavage between common law systems. “The common law theory of title still has its roots in feudal law with the Crown having the ultimate reversion and proprietary rights being explained in terms of vassalage. Accordingly, sovereignty and property are indistinguishable conceptions to the AngloAmerican lawyer” while “[t]he Roman law (…) contained the basis of a distinction between sovereignty and property, so that the one could exist without the other”. D. P. O’Connell, International Law, Vol. I, 403-404 (1970).

8

H. Lauterpacht, “The International Personality of the United Nations. Capacity to Administer Territory”, 5 ICLQ 410 (1956). Similar M. N. Shaw, “Territory in International Law”, 13 NYIL 74 (1982).

9

Case concerning Right of Passage over Indian Territory (Port. v. Ind.), Merits, Judgment of 12 April, 1960 ICJ Reports 6, 124 (diss. op. Judge Fernandes).

10

On the essential identity between jurisdiction, control and sovereignty, see H. Lauterpacht, “Sovereignty over Submarine Areas”, 27 BYIL 376, 389 (1950): “For exclusive jurisdiction

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the principle of territorial sovereignty, the subject theory rejected such derivation and only acknowledged a connection: the imperium was not necessarily territorial.11 Yet prevailing scholarly opinion continues to view jurisdiction as an essentially territorial concept. According to this doctrine, the exercise of jurisdiction involves the assertion or exercise of legal authority or competence, actual or purported, over persons owing some form of allegiance to that state or who have been brought under this state’s control. It has also been suggested that the term ‘jurisdiction’ generally entails some form of structured relationship normally existing over time.12 Although imperium is usually found in the same hands as dominium, or legal sovereignty, commentators have disconnected the two concepts.13 For the purposes of this article, it will prove to be useful to maintain such distinction, and to correlate the two concepts that can, in some cases, undergo shifts in opposite directions.14 While this theory has been criticized, in particular to the extent that it represented territory as something extraneous to the state itself, it nevertheless supplies a set of coherent and useful methodological tools with which disjunction phenomena may be contemplated. The disjunction between sovereign claims and effective control has been dealt

and control is sovereignty. This is so necessarily, seeing that State territory is the space within which the State exercises its supreme authority”. 11

Compare, for instance, Gerber’s interpretation of territory as the ‘body’ of the state ‘person’, in B. Gerber (ed.), Grundzüge des deutschen Staatsrechts 67 (1880). For a review of arguments against the theory of territory considered as an object of a state see D. Donati, Stato e territorio 37 et seq. (1924).

12

This opinion was reinforced in the Bankovic Case in which the European Court of Human Rights (ECHR) concluded that extraterritorial jurisdiction can only be recognized in cases where a state effectively controls the relevant territory and its inhabitants, exercising at least some of the public powers normally exercised by that government. See Bankovic and Others v. Belgium and 16 Other Contracting States, Application No. 52207/99, Decision of 12 December 2001, at paras. 59-73. For a critique see G. Cohen-Johnathan, La territorialisation de la juridiction de la Cour européenne des droits de l’homme, RTDH 1069 et seq. (2002).

13

Cf. e.g. the PCIJ judgment in the Lotus case: “All that can be required of a state is that it should not overstep the limits which international law places upon its jurisdiction. Without these limits its title to exercise jurisdiction rests in its sovereignty” (France v. Turkey, 1927 PCIJ (Ser. A.) No. 10, at 19). Kelsen also implicitly subscribed to the distinction. Though referring to the functional competencies of state organs, he maintained that “[u]nder International Law, only the state within the boundaries of which a territory lies is entitled to dispose of this territory, which means that … only organs of the national legal order have the power to enter into legal transactions referring to the territor”. H. Kelsen, Principles of International Law 217 (1952).

14

B. Gilson, The Conceptual System of Sovereign Equality 164 (1984).


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with to some extent in the Namibia opinion,15 in which the Security Council requested an Advisory Opinion from the ICJ on the legal consequences of South Africa’s continued presence in Namibia.16 In this landmark decision, the ICJ decided to reaffirm the distinction between physical control over a territory and the notion of sovereignty or legitimacy of title: “The fact that South Africa no longer has any title to administer the Territory does not release it from its obligations and responsibilities under international law towards other States in respect of the exercise of its powers in relation to this Territory. Physical control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts affecting other States.”17 In essence, the Court drew a concrete line between the right to effective control over a certain territory and de facto control, by implicitly stating that although the right to effective control and the legitimate title usually goes hand in hand with its exercise, the sovereign can transfer both the title and/or the right to physical control over territory to another state.18 The nexus between legitimacy of title and the exercise of effective control, as well as the rights and obligations flowing from that exercise, was also the subject of a fierce legal debate that surrounded the East Timor case.19 Although the ‘Monetary Gold principle’20 was found to operate as a jurisdictional barrier to Portugal’s claim that it alone, in its capacity as sole legitimate administrative power, had the power to enter into a treaty on behalf of East Timor, the Court nevertheless emphasized the continued legitimate authority of Portugal to administer the territory, despite the full and effective territorial control exercised by Indonesia following its unlawful military occupation in December 1975. The case raises very interesting questions, not so much regarding the divorce between sovereign title and effective control (since Portugal did not have any sovereign rights, save in its capacity as custodian of the rights of East Timorese people), but concerning the disjunction of a normative claim to jurisdiction and effective control, two terms that are often interchangeably used. Effectively, Australia submitted that Portugal lacked the capacity to implement any

15

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Res. 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 16, at 54.

16

S/INF/25 (1970), UNSC Res. 284, 25, UN SCOR at 4, para. 1.

17

See Namibia opinion, supra note 15, at para. 118.

18

A. Verdross/B. Simma/R. Geiger, „Territoriale Souveränität und Gebietshoheit”, 31 ÖZöRV 223, 224-225 (1980).

19

Case Concerning East Timor (Port. v. Austral.), Judgment of 30 June, 1995 ICJ Rep. 90.

20

In Monetary Gold Removed from Rome in 1943 (Italy v. Fr., UK and USA), Preliminary Questions, Judgment of 14 June, 1954 ICJ Reports 19, at 32 the Court declined to rule on the lawfulness of the conduct of a third state in the absence of this state’s consent.

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treaty it may have signed relating to East Timor. Absent this capacity, Australia argued, Portugal would also lack the ability to enter into any meaningful treaty regarding the territory, or to complain that a treaty has been entered into, without reference to it by another state having effective control. Portugal, on the other hand, replied that although it has physically left the territory and no longer controls it, it was nonetheless the administering power, charged with the responsibility arising from Chapter XI of the UN Charter. A thorough analysis of the issue, which the Court unfortunately did not undertake, entailed an enquiry into the question whether an administrative power’s loss of imperium deprives it of the status and functions of an administrative authority and whether “the protective and reporting structure, so carefully fashioned by the United Nations Charter, can be thus brushed aside.”21 The subsequent developments that led to the vertical assumption of the power to transfer effective control by the UN Security Council, will be further discussed in the second chapter.

B. The Dynamics of State Practice The notion that territory might be essential to the exercise of state power, without constituting one of its elements according to the object theory, has in any case been reinforced by state practice. This becomes particularly transparent when we review cases in which the aggregate of public competencies respecting the territory and its inhabitants was transferred while the bare title to territory was retained. From the homogenous nature of the actors involved in such transfer, i.e. states, the dynamics shifted to include, with the creation of the League of Nation and later the United Nations, multilateral bodies operating alongside single actors, that would similarly engage in the horizontal transfer of effective control, using the same instruments. A state, the grantor, can clearly cede sovereignty over a certain land, on a horizontal basis, and, to that extent, dispose of its title, without territorial control necessarily falling into the hands of the grantee.22 As a corollary, territorial control – understood as positive jurisdiction over people – can be transferred to the exclusive benefit of another entity, without the latter acquiring sovereign title. Though the extent of powers delegated to the ‘protecting entity’ have varied over the course of the 20th century, formal sovereignty remained unaffected, albeit reduced and shrunken to a nudum jus. In other words, a “scintilla of sovereignty – a reversionary sovereignty”23 – 21

See the East Timor case, supra note 19, at 179, (diss. op. Judge Weeramantry).

22

Verdross, Simma and Geiger discuss the cases of Austria ceding sovereignty over Lombardy (Treaty of Zurich, 10 November 1859) and Venice (Treaty of Vienna, 24 August 1866) to France without the latter assuming effective control which, instead, was acquired by Sardinia. See Verdross et al., supra note 18, at 226.

23

L. J. Woolsey, “The Sovereignty of the Panama Canal Zone”, 20 AJIL 117, 121 (1926). The concept of reversion should be distinguished from that of residual sovereignty, the


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subsisted. This reduced claim to sovereignty cannot be regarded as a legal fiction,24 since the nudum jus may re-acquire normative content with the re-transfer of effective control and complete jurisdiction from the protecting entity. The concrete entitlement, in its reduced form, remains tangible because the sovereign can still dispose of the territory effectively controlled by another administrative entity in a legal transaction with another state. Three cases illustrate this proposition. In the aftermath of the Congress of Berlin in 1878, the provinces of Bosnia and Herzegovina were occupied and administered by Austria and Hungary,25 with Turkey retaining legal title to the exercise of effective control.26 In that case, Turkey entered into a valid treaty relationship with Austria, affording the latter with certain extensive functions, both internally and externally. The case of the Hay-Varilla Treaty of 18 November 1903 between the United States of America and the Republic of Panama27 also illustrates this point. The latter preserved a titular sovereignty over the Canal Zone that was automatically resuscitated

principal point of difference consisting in the fact that reversion involves a change of sovereignty, whilst in the case of residual sovereignty, the territorial sovereign has not lost status as such (See Brownlie, supra note 7, at 112). Thus the article prefers to speak of residual, rather than reversionary, sovereignty. Cf. also examples of titular, residual and distribute sovereignty in O’Connell, supra note 7, at 325. 24

As advocated by J. Ringelheim, “The Legal Status of Kosovo”, in EUI Working Group report, Kosovo 1999-2000: The Intractable Peace (2000), at section 2.2, as well as id., “Considerations on the International Reaction to the 1999 Kosovo Crisis”, 32 Revue belge de droit international 475, 540 (1999).

25

Art. XXV of the Treaty of Berlin, 13 July 1878. Cf. Verzijl, supra note 3, Part III, at 408; Verdross et al., supra note 18, at 227. Contrary to the occupation and administration of Cyprus by England based on the Treaty of June 1878 between Turkey and England, the transfer of effective control over Bosnia-Herzegovina to the ‘protecting state’ Austria-Hungary was not limited in time.

26

In a declaration made at the Conference at which the Treaty was adopted, the representatives of Austria-Hungary expressly accepted that the rights of sovereignty of Turkey over the provinces of Bosnia-Herzegovina would not be affected by the fact of occupation. See Schmitt, The Annexation of Bosnia 1908-1909 (1937), quoted in C. A. Whomersley, “The International Legal Status of Gdansk, Klaipeda and the Former East Prussia”, 42 ICLQ 919, 925 (1993).

27

Woolsey, supra note 23, at 118. In Art. III of the Treaty, Panama granted the USA “all the rights, powers and authority regarding the zone mentioned … which the United States would possess and exercise if it were the sovereign of the territory … to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, powers or authority” (emphases added).

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as the initial 1903 Treaty terminated with a new Panama Canal Treaty of 1977.28 As a corollary, the U.S. had acquired temporary jurisdiction that amounted to physical control over territory, but certainly not to sovereign powers.29 Distinguishing not only between territorial sovereignty and territorial supremacy (Gebietshoheit) but also between the right to exercise territorial control, derived from territorial sovereignty, and its actual exercise (which can be legitimate or illegitimate), Verdross suggested that United States exercised its, rather than Panama’s, territorial control over the canal: The United States herrschen in dieser Zone allerdings auf einem fremden Gebiete, sie üben aber dort einzig und alleine ihre durch ihre eigenstaatliche Rechtsordnung geregelte Gebietshoheit aus, wodurch natürlich die Gebietshoheit des territorialen Souveräns beschränkt wird. Hingegen bleibt die territoriale Souveränität Panamas über dieses Gebiet – trotz der dort begründeten Gebietshoheit eines fremden Staates – weiter bestehen. Es ist völkerrechtlich nach wie vor nur sein Gebiet. Er kann es derelinquirieren, an einen anderen Staat zedieren oder mit anderen Gebieten zu einem neuen Staate verschmelzen, ohne die Zustimmung der VSt zu bedürfen.30

In a third instance, Japan, based on the Peace Treaty of 8 September 1951, ceded the right to exercise full legislative, judicial, and administrative control over Okinawa to the United States, whereas residual sovereignty resided with Japan.31 More examples in which administration and effective control are divorced from sovereign title can be found in certain minor territorial rights such as leases or servitudes in which titular sovereignty has been resuscitated after the termination of the lease.32

28

72 AJIL 516 (1978). This superseded treaties of 1901, 1903, 1936 and 1955 governing the Canal. See M. N. Shaw, International Law 367, No. 203 (1997), and Verdross et al., supra note 18, at 232.

29

US Secretary of State Vance, addressing the House Committee on International Relations, said: “In 1903, we acquired certain rights, similar to those exercised by a sovereign, but nonetheless rights, not sovereignty”. Quoted by Verdross et al., supra note 18, at 234.

30

A. Verdross, Völkerrecht 268 (1964) (emphases added).

31

In 1951 the US Secretary of State Dulles referred to the “residual sovereignty of Japan over the islands that enabled her to place them under the trusteeship of the United Nations, “with the United States as the administering authority”. Brownlie, supra note 7, at 112.

32

In 1898, e.g., China leased four territories to the German Empire to Russia, France, and to England, explicitly without transferring territorial sovereignty (Brownlie, supra note 7, at 113, and Verzijl, supra note 3, at 403). By the treaty of Peace of Pourtsmouth (1905), Russia, in turn, sub-ceded the lease of Port Arthur and Talienwan to Japan. See M. F. Lindley, The Acquisition and Government of Backward Territory in International Law 239 (1926). For the institution of state servitudes and other exceptional restrictions on the territorial


13

The concept of suspended sovereignty has similarly been invoked when farreaching authorities in the management of the domestic affairs of a territory had been conferred to different protecting entities – multilateral agencies – with identical legal instruments and procedures as previously used concerning the transfer of effective power to single entity recipients. Particularly in the inter-war era, nationalist passion aligned itself with the newly autonomous international law to create a sophisticated system of minority regimes under the auspices of the United Nations. The legal arrangements for the administration of the Saarland, Danzig and the Auland Islands juxtaposed nationalisms and legal experimentation to give credence to a distinctly ‘modernist’ approach to international law’s role in transcending the opposition between what Matti Koskenniemi called the romanticism and classicism in international politics: “Nationalism’s revolutionary potential was domesticated into a problem of minority rights while internationalisation and the principle of the plebiscite, among other legal techniques, sought to provide the external form through which that potential could still express itself in a benign way.33 The establishment of an international administering authority, as opposed to a single protecting state charged with the exclusive authority, is sometimes viewed as a novel enterprise but the following historical examples would indicate that with regard to the legal framework and the legislative technique utilised, such method had been well established in the past. The administration of the Saar Territory between 1920 and 1935 is such an example. Based on the Treaty of Versailles34 an International Governing Commission representing the League of Nations was entrusted with the exercise of executive and legislative powers, without being bound by local legislative bodies. The powers that would later be acquired by the UNMIK SRSG under Resolution 1244 and UNMIK Regulation 1/1999 are reminiscent of the authority given to the Saar Commission. The Treaty of Versailles granted the Commission “all the powers of government [hitherto belonging to Germany], including the appointment and dismissal of officials, and the creation of such administrative and representative bodies

supremacy of a state cf. L Oppenheim, International Law. A Treatise, Vol. 1 – Peace (8th ed. by H. Lauterpacht, 1955), 535 and F. A. Váli, Servitudes in International Law. A Study of Rights in Foreign Territories 277 (1958). 33

M. Koskenniemi, “National Self-Determination Today: Problems of Legal Theory and Practice”, 43 ICLQ 241, 253 et seq. (1994).

34

Treaty of Peace between the Principal Allied and Associated Powers and Germany of 28 June 1919 (Treaty of Versailles), 1919 Consolidated Treaty Series, Vol. 225, at 189 et seq., Part III, Section IV, Ann., Art. 16. See generally on the subject I. von Münch, “Saar Territory”, in R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 4, at 271 (2000), and H. Hannum, Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights 389 (1996).

14


as it may deem necessary.”35 Following the suspension of German authority pending the referendum on the status of the territory,36 all the powers of government were ceded to the League under the Treaty of Versailles. The Saar Commission consulted with Saarland leaders on occasion and reported frequently to the Council of the League on its activities. It may be suggested that the Saarland was not so much internationalised as, in fact, governed by France, through the League of Nations regime and in co-operation with it. The Commission, however, exercised quite effective control over the territory. This temporary trusteeship of the League was exercised while Germany remained the titular sovereign over the territory. As Corbett wrote, Germany retained, “at the minimum, the nuda proprietas of sovereignty, as she retains the nuda proprietas of all her domanial property, except the mines, in the Saar”.37 As such, this nudum ius belies the reconceptualisation of another institution of the Roman law of ownership, which has been freely adopted within the sphere of public international law. The legal situation of the Saarland has been likened to a state servitude in which the exercise of sovereign title to territory is voluntarily limited in favour of another subject of international law.38 In this context, it has been argued that the exercise of German authority was temporarily limited to a period of 15 years for the benefit of the League of Nations which exercised effective control through its agent, the Saar Commission. This conceptual reinterpretation of an international territorial administration along the lines of rights exercised in foreign territory corresponding to a non-faciendo or in patiendo on the part of the burdened state holds particular appeal since it allows us to distinguish it from the League of Nations

35

Treaty of Peace, supra note 34, Art. 19.

36

The mandate of the League ended in 1935 when the population of the Saar Territory voted in a plebiscite on 13 January 1935 in favour of immediate reunification with Germany.

37

P. E. Corbett, “What is the League of Nations?”, 5 BYIL 119, 127 (1924). See also Ydit, supra note 3, at 45: “What really remained for Germany was only the nudum ius to the territory itself.” Hannum remarks that “German courts considered the Saar to be part of the Reich for various purposes. Saar residents also retained German nationality. However, the Saar was a wholly autonomous regime, and all governmental ties with Germany were severed during this time”. Hannum, supra note 34, at 391.

38

Art. 49 of the Treaty of Versailles (See Treaty of Peace, supra note 34) determines that “Germany renounces in favour of the LON in the capacity of trustee the government of the territory defined above. At the end of fifteen years from the coming into force of the present treaty, the inhabitants of the said territory shall be called to indicate the sovereignty under which they desire to be placed”. Hatschek interpreted this provision convincingly, arguing that „Der Völkerbund als Rechtssubject ad hoc erhält eine Staatsservitut, d. h. er schränkt die deutsche Staatshoheit für die Dauer von 15 Jahren dahin ein, daß er die Regierung übernimmt”. See J. Hatschek, Völkerrecht als System rechtlich bedeutsamer Staatsakte 161 (1923), and Váli, supra note 32, at 281.


15

regime governing the administration of Mandate territories in which the sovereignty of colonies and territories have “ceased to be under the sovereignty of the States which formerly governed them”.39 A recent illustration of horizontal shift of effective control to a UN subsidiary organ that was preceded by a horizontal agreement between the warring parties – and arguably a contemporary case of a state servitude in favour of the United Nations40– lies in the international administration of Eastern Slavonia between 1996 and 1998. On the margins of the Dayton Agreement, the Presidents of Croatia and Serbia hammered out an arrangement that became known as the Basic Agreement, signed between the government of Croatia and local Croat Serb authorities in November 1995.41 The signatories called on the UN Security Council to establish a transitional Administration to “govern the Region during the transitional period in the interest of all persons resident in or returning to the Region.”42 They also requested the Council to authorise an international force to maintain international peace and security. Adopting Resolution 1025 (1995) on 30 November, the Security Council invited the SG to draw up a report and make recommendations as to how the Basic Agreement might be implemented.43 On 15 January 1996, acting under Chapter VII of the Charter, the UN SC decided to “establish for an initial period of 12 months a United Nations peace-keeping operation for the Region referred to in the Basic Agreement, with both military and civilian components, under the name ‘United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium’ (UNTAES)” and further “[r]equest[ed] the Secretary-General to appoint, in consultation with the parties and with the Security Council, a Transitional Administrator, who will have overall authority over the military and civilian components of UNTAES, and who will exercise the authority given to the Transitional Administration in the Basic Agreement”.44

39

League of Nations Covenant, Art. 22, at para. 1 (emphasis added).

40

International servitudes, in this reconceptionalised version, shall be understood as limitations to the sovereign exercise of authority of one entity, rather than ‘real entitlements’ by the administering agent, and should be distinguished from territorial sovereignty. See Váli, supra note 32, at 49 et seq.

41

Basic Agreement between the Croatian Government and local Serb authorities on the Region of Eastern Slavonia, Baranja, and Western Sirmium (Erdut Agreement), UN Doc. S/1995/ 951, Annex reproduced in 35 ILM 184 (1996).

42

Ibid., at 185.

43

See the ‘Report of the Secretary General pursuant to Security Council Res. 981 (1995), 982 (1995) and 983 (1995)’, S/1995/987, at para. 29, and ‘Report of the Secretary General pursuant to Security Council Res. 1025 (1995)’, S/1995/1028, at para. 6.

44

S/RES/1037 (1996), 15 January 1996.

16


In what was later viewed as an extension of ‘complex peacekeeping’, the Security Council invoked Chapter VII of the Charter for the first time in order to establish a direct and comprehensive UN civil and military presence. In accordance with the Basic Agreement and the relevant vertical instrument, the Transitional Administrator had the responsibility to effectively govern the UNTAES region, while gradually helping to reintegrate it into Croatia’s legal system.45 The express reference to Chapter VII is of importance: It meant that the Council exercised governmental powers over parts of the Croatian territory using its Charter powers, and not as a consequence of governmental powers conferred on it by the Republic of Croatia. Throughout its mandate UNTAES has pursued a policy of negotiating public agreements with the Government of Croatia on the post-UNTAES implementation of its commitments and guarantees, partly in order to assure and prepare the local population for the full transfer of authority. Following the successful holding of elections by UNTAES, the UN Transitional Administration developed an exit strategy which was described by the UN SG in the following terms: In the first phase, the Transitional Administrator would devolve to Croatia executive responsibility for the major part of civil administration of the region while maintaining his authority and ability to intervene and overrule decisions should the situation deteriorate and the achievements of UNTAES be threatened. The pace of devolution would be commensurate with Croatia’s demonstrated ability to reassure the Serb population and successfully complete peaceful integration. In the second phase, and subject to satisfactory Croatian performance, remaining executive functions would be devolved, with Croatia assuming responsibility for the continued demilitarisation of the region and the gradual reintegration of the transitional Police Force into the Croatian police force.46

This position of gradual empowerment of local institution and a commensurate devolvement of international powers conditioned on the performance of local actors was endorsed by the Security Council in Resolution 1120 and would later provide the guiding principle of transferring international powers to the locally elected institutions of Kosovo. It is, however, hard to understate the importance of the Security Council’s reference

45

G. Cellamare, “Note sull’amministrazione transitoria delle Nazioni Unite in Slavonia Orientale (UNTAES)”, in Divenire sociale ed adeguamento del diritto: studi in onore di Francesco Capotorti, Vol. 1, 83 (1999). Only the Transitional Administrator was in a position to make binding arrangements with the governments of Croatia, Serbia, or with local Serb authorities. See D. Boothby, The UNTAES Experience. Weapons Buy-back in Eastern Slavonia, Baranja, and Western Sirmium, Brief 12, Bonn International Centre for Conversion, at 13 (October 1998).

46

S/1997/487, 23 June 1997, para. 48. See also S/1007/767, 2 October 1997, para. 3.


17

to Chapter VII. This characterisation of the legal basis for the exercise of powers proved controversial when determining whether it was Croatia or the UNSC who had the capacity to terminate the activities being carried out by UNTAES.47 When the original UNTAES mandate was extended by SC Resolution 1120 despite strong objections of Croatia which argued that powers of government should immediately be resumed to it, the Security Council’s exercise of its powers based on Chapter VII precluded Croatia’s arguments that those powers were conferred to it by Croatia on an ad hoc basis. In this light, the Basic Agreement, as horizontal agreement, represents nothing more than a request to the Security Council to exercise its Chapter VII powers and not, as Croatia would have wanted to see it, a substantive conferral of powers that could be revoked.48 In other words, the mandate for UNTAES had not been established with a view to an agency relationship between Croatia and the Security Council that would have been revocable by a ‘principal’. It was established by a genuine reference to Chapter VII. This control by the Council, and the use of a vertical instrument, was further reiterated when the Council decided in Resolution 1145 of 15 January 1998 to terminate UNTAES based on its own evaluation that its mandate had been fulfilled.49 This new practice of utilising Chapter VII as the genuine legal basis for the creation of an international administration represents a major departure from the previous horizontal practice through which the Security Council had accepted the explicit conferral of powers earlier. A specific case in question were the 1991 Paris Peace Accords with regard to Cambodia. Since there was no explicit reference in Resolution 745 to Chapter VII, through which the UN Security Council established the United Nations Transitional Authority for Cambodia (UNTAC), the horizontal agreement between the parties provided the limits according to which the international mandate could be exercised, requiring UNTAC to comply with certain directions of the ‘Supreme National Council’ that was defined as the “unique legitimate body and source of authority in which, throughout the transitional period, the sovereignty, independence and unity of Cambodia are enshrined”.50 UNTAC was therefore

47

See D. Sarooshi, “Some Preliminary Remarks on the Conferral by States of Powers on International Organisations”, Jean Monnet Working Paper 4/03, at 17 (2003).

48

Ibid., at 18.

49

See the statement of the President of the SC on behalf of the Council: S/PRST/1998/3, 13 February 1998.

50

Arts. 3 and 5 of the Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, 31 ILM 183 (1992). According to Matheson, UNTAC’s authority was “limited by the requirement that UNTAC follow any ‘advice’ approved by a consensus of the factions represented in the Supreme National Council, to the extent that it did not conflict with the Agreement”. See M. J. Matheson, “United Nations Governance of Post-conflict Societies”, 95 AJIL 76, 77 (2001).

18


constrained to exercise the power within the context of the terms and conditions set out in the particular conferral. The trends of internationalisation, starting with the Saar Territory administration (alongside with the attempts to establish an international regime for the ‘Free Territory of Trieste’, that will be discussed below), to the administration of Eastern Slavonia, which was based on a Chapter VII mandate illustrate the dynamic shift from horizontal to vertical instruments effectuating the transfer of imperium. They are also useful precedents when analysing the scope, principles and procedures through which an international presence assumed effective control in Kosovo, which will be discussed below.

III. Vertical Transfer of Imperium and the Legal Basis for UN Administration The issue whether the League of Nations, and its successor, the UN were authorised to assume administering powers outside the context of the Trusteeship System (that has always followed a formal trusteeship agreement between itself and a government responsible for administering a territory, based on Article 77 of the Charter) has been the subject of legal controversy. Particularly, Hans Kelsen favoured a restrictive interpretation of UN powers, claiming that “the Organization is not authorized by the Charter to exercise sovereignty over a territory, which does not have the status of a trust territory.”51 In the decade after WWII, one can, however, point at two examples of instances of recognition of members of the UN that the United Nations possessed the capacity to administer or supervise the administration of territories other than trustee territories. By a series of Resolutions in 1947 and 1948,52 the UN GA determined that the city of Jerusalem should be placed under a special international regime under effective UN control. Article 1 of the draft Statute establishing the regime expressly constituted Jerusalem as a “corpus separatum under the administration of the United Nations”.53 As expressly stated in a subsequent report to the Trusteeship Council, the city was not to be a trust territory, and Chapters XII and XIII

51

H. Kelsen, The Law of the United Nations 651 (1961). This restrictive interpretation has, albeit unconvincingly, been challenged by, e.g., Ydit, who defines internationalised territories as “populated areas, established for an unlimited period as special political entities, whose supreme sovereignty is vested in, and party (or exclusively) exercised by, the supreme organisation of the international community” (See Ydit, supra note 3, at 320).

52

GA Res. 181(II), Ann., part III; GA Res. 194 (III) and 303 (IV).

53

United Nations, Trusteeship Council, Official Records, 6th session, 1950. Ann., Vol. 1, 128. UN Doc. T/L.72.


19

of the UN Charter were not applicable.54 Yet the Governor of the city, who was entrusted “on behalf of the United Nations”, was to be appointed by, and responsible to, the Trusteeship Council. Moreover, the Governor was given power to conduct the external affairs of the city and to conclude treaties on its behalf. The second example is that of Triest. The annexes to the Treaty of Peace with Italy conferred upon the Security Council certain limited functions relating to the government of the proposed Free Territory of Triest.55 Although the Statute never entered into force,56 it still provides some evidence of the recognition by the signatories of the Treaty of the capacity of the UN to supervise the administration of a territory. The Permanent Statute would have provided that “[t]he integrity and independence of the Free Territory shall be assured by the Security Council of the United Nations Organisation. This responsibility implies that the Council shall: (a) ensure the observance of the present Statute and in particular the protection of the basic human rights of the inhabitants, (b) ensure the maintenance of public order and security in the Free Territory.”57 Article 19 of the Statute would also have recognised the right of the Security Council to prevent legislation from coming into force which, in its view, was in contradiction to the Statute. Yet when the UN SC discussed the approval of the “Permanent Statute” 1947, some members of the Council were of the opinion that it was not empowered to act as supreme governing body of a territory with the ultimate authority over its people, because such functions would have no direct connection to maintaining peace and security.58 They maintained that the Council’s responsibility could only be exercised through the specific powers granted for that purpose in Chapters VI, VII, VIII, and XII which, in their opinion, did not confer upon the Council sufficient authority to exercise the functions stipulated in the ‘Permanente Statute’. In response to these objections, other representatives pointed either to the Council’s implicit powers or to the spirit of the Charter. The French representative, for instance, insinuated that “world opinion would certainly not understand it, if the Security Council were to give the impression of evading responsibility so closely related to the maintenance of international peace and security, as it is precisely the main task and responsibility

54

H. Kelsen, The Law of the United Nations 687 (1950), with citations.

55

Ann. 4 to the Treaty of Peace with Italy, 10 February 1947, 49 UNTS 3, 187. Cf. J. H. W. Verzil, International Law in Historical Perspective: Part II: International Persons 504 (1969).

56

The powers were never actually assumed because of inability to reach agreement in the SC on the details of the administration.

57

Peace Treaty with Italy, supra note 55, at Art. 2.

58

See the statements of the Representatives of Syria and Australia, Repertoire of the Practice of the Security Council, 1946-1951, at 482.

20


of the Security Council”.59 While arguing on similar teleological basis, the Polish delegate stated that “it would be entirely within the general spirit of the Charter (…) if it were decided to form a Free Territory under a quasi-international administration.”60 A consensus emerged, according to which the necessary authority to administer a territory could be found in Article 24, the relevant parts of which are as follows: 1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. 2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII. On the question of the “Permanent Statute” for Triest, the Secretary-General stated that the words, “primary responsibility for the maintenance of international peace and security”, coupled with the phrase “acts on their behalf”, constituted a sufficiently wide legal basis for assuming (temporary) governmental authority, since the UN members had thereby conferred “powers commensurate with its responsibility for the maintenance of peace and security” upon the Council, limited only by the fundamental principles and purposes of the Charter.61 If any legal questions regarding the capacity to administer territory were left unresolved after the two unsuccessful attempts to establish its authority in Jerusalem and Triest, the ICJ’s Advisory Opinion in the Reparations for Injuries case certainly supported the view of those who had advocated that the UN possessed a degree of

59

UNSC Official Records 2nd Year, 89th meeting 16 (1947), quoted by J. W. Halderman, “United Nations Territorial Administration and the Development of the Charter”, 95 Duke LJ 95, 97 (1964).

60

SCOR 1947, 4-29 and 44-61, quoted by F. Seyersted, “United Nations Forces. Some Legal Problems”, 37 BYIL 351, 452 (1961). See also the discussion of the Triest case and its significance for the development of the residuary power of the Security Council by O. Schachter, “The Development of International Law Through the Legal Opinion of the United Nations Secretariat”, 25 BYIL 91, 96-101 (1948).

61

See Repertoire of the Practice of the Security Council, supra note 58, at 483. With the adoption of Res. 16 of 10 January 1947 and the ‘Permanent Statute’, the Security Council followed the opinion of the SG. The powers were never actually assumed because of inability to reach agreement in the SC on the details of the administration.


21

international personality for which no express provision was made in the Charter.62 In one of its celebrated paragraphs, the ICJ declared that the UN “was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate on the international plane”. The Court continued by taking cognizance of the fact that the capacities of the UN are not confined to those specified in the Charter: Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.63

The exercise of administering territories, as well as the emerging practice to establish UN forces, would find a potent justification in what was later termed the doctrine of ‘implied powers’.64 A decade later, the United Nations accepted full responsibility for governing the territory of West Irian (West New Guinea), based on an agreement between Indonesia and the Netherlands, which provided that the United Nations Temporary Executive Authority (UNTEA) “will have full authority under the direction of the Secretary General to administer the territory”.65 In the General Assembly debate on the agreement, the SG indicated his views on the nature of the Charter’s authority and legal basis on which the UN was acting: “This novel settlement may well be a step in the gradual evolution of the United Nations as an increasingly effective instrument for carrying out policies agreed upon between member governments for the peaceful resolution of their differences, in line with the Charter”.66 When the UN

62

I.e., E. Lauterpacht, “The Contemporary Practice of the United Kingdom in the Field of International Law – Survey and Comment”, 5 ICLQ 405, 409 (1956). Seyersted noted correctly that the failure of the UN to exercise territorial jurisdiction in Jerusalem and Triest would not be an indication of its absence of legal capacity but of a lack of territories to be brought under its administration. Cf. Seyersted, supra note 60, at 453.

63

Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April, 1949 ICJ Reports 174, 182 (emphases added).

64

For a comparison of the three different views expressed in the Court of the question of implied powers see G. Fitzmaurice, 28 BYIL 1, 5-6 (1952). On the issue of inherent powers of the UN to establish and command forces, see Seyersted, supra note 60, at 460 et seq.

65

GA Res. 1752 (XVII), 21 September 1962. On 1 May 1963 the administration of the territory was transferred by the UNTEA to Indonesia while the former’s preparatory responsibility to facilitate the territory’s future ‘act of self-determination’ – as stipulated in the 15 August 1962 Agreement – was minimised. For a highly critical account of the UN, especially its failure to resist Indonesian political calculus, see P. W. van der Veur, “The United Nations in West Irian. A Critique”, 18:1 International Organization 53 et seq. (1964).

66

Ibid., No. 10, 8 (October 1962).

22


eventually assumed actual responsibility for the territory, and effectuated a transition of governmental power from one authority to another, the basis under the Charter for doing so remained uncertain. The approach followed in the case of Triest was, in a sense, sounder, as it clearly spelled out the components of a policy that were supposed to lead the internationalisation of the territory: First, an international regime for the territory was deemed necessary; Second, the UN was the most appropriate agency for assuming the supervision of such regime; and third, that this rôle could be justified under Article 24 of the Charter, which vests the Security Council with the primary responsibility for maintaining peace and security. The United Nations assumption of governmental authority over a territory also became the subject of debate with the establishment of the UN Council for Namibia in 1967.67 In 1966, the General Assembly (GA) had adopted Resolution 2145 (XXI), by which it terminated the mandate of South Africa over Namibia and placed the territory under the direct responsibility of the United Nations. In the following year, the GA, by Resolution 2248 (S-V), created the United Nations Council for South West Africa, later renamed Namibia, initially comprising eleven member States. A conspiciously high number of states, however, abstained from voting for the relevant Resolution.68 Not only were they concerned that it could not be implemented, but also that the GA would not have the competences to confer such extensive legislative powers upon the Council. Though it did not explicitly address the legal basis for the establishment of the Council for Namibia, the ICJ couched its language very much in the line of reasoning developed in the Triest determination, when it observed that “Article 24 of the Charter vests in the Security Council the necessary authority to take actions such as that taken in the present case”.69 67

Cf. I. I. Dore, “Self-Determination of Namibia and the United Nations: Paradigm of a Paradox”, 27 Harvard ILJ 159 (1986) and E. Osieke, “Admission to Membership in International Organisations: The Case of Namibia”, 51 BYIL 189, 192 (1980).

68

According to GA Res. 2248 (S-V) of 19 May 1967, the UN Council for Namibia was charged with the task of administering the territory until independence in June 1968 (UN Doc. A/6657/Supp.1 (1967)). The Resolution was adopted by 85 votes to 2 with 30 abstentions. On the attitude of governments towards Res. 2248 see the Report by the Secretary General ‘Compliance of Member States with the United Nations Resolutions and Decisions relating to Namibia, taking into account the Advisory Opinion of the International Court of Justice of 21 June 1971’, UN Doc. A/AC.131/37, 12 March 1975.

69

Namibia opinion, supra note 15, at 52. Discussing whether Art. 24 of the Charter furnishes the necessary authority for the administration by the UN, Halderman argued that “in the absence of any reasonable specific authority for such action in the Charter, and of any apparent intent on the part of the framers to include such authority, it is believed to be the best solution of the resulting problem to regard the Council action…as the first step in a potential process of Charter modification…through practice and acquiescence of the members”. Halderman, supra note 59, at 98.


23

In sum, for a ‘protecting entity’ to exercise effective control in accordance with international law, the ceding state must have authorised the transfer of effective control through an international agreement70 by which it manifests its intention to create, change, or define legal relationships. Absent such agreement, the assumption of effective control, by a ‘protecting entity’, must have a legal basis in another title of international law. Legal rights and obligations may indeed arise other than through an agreement between a plurality of persons. Such a title will be a unilateral act. Even without the consent of a state, the UN Security Council might be empowered to order a transfer of effective control over territory to a ‘protecting entity’ based on Chapter VII of the UN Charter. While it has been suggested that the Security Council has, even when acting under Chapter VII of the Charter, neither the authority to alter or abrogate territorial rights against the wish of the sovereign, nor the capacity to convey title to territorial disposition,71 current scholarly opinion seems to lean towards a contingent and case by case justification that would enable the Security Council to direct a permanent change in some aspects of status, boundaries, political structure, or legal system of a territory within a state, if the Council should determine that doing so is necessary to restore and maintain international peace and security.72 It was also argued that the creation of the Council for Namibia, and via this precedent, the creation of a international territorial administration as such, could be based on an analogous application of Article 81, despite the lack of a trusteeship agreement within the sense of Article 79 of the Charter.73

70

The term Verwaltungscession (administrative cession), frequently used in German legal literature (Verzijl, supra note 3, Part III, at 408, and Verdross et al., supra note 18, at 241) appears inadequate to approach the phenomenon in question. Cession, one of the modes through which territory can be acquired in international law, involves the peaceful transfer of territory from one sovereign to another and has the effect of replacing one sovereign with another. The basis of cession lies in the intention of the relevant parties to transfer sovereignty. As only effective control – and not the sovereign dominium – is transferred in cases of administration of foreign territories, it is not permissible to speak of cession.

71

In his dissenting opinion, Judge Fitzmaurice stated that “[t]he Security Council might, after making the necessary determinations under Art. 39 …, order the occupation of a country or piece of a territory to restore peace or security, but it could not thereby, or as part of that operation, abrogate or alter territorial rights” (Namibia opinion, supra note 15, at 294).

72

Matheson, supra note 50, at 85. He takes this extensive interpretation from a reading of Art. 41 which recites a list of possible measures that may be employed to give effect to its decisions. He argues that the list, clearly being exemplary and non-exhaustive, would not limit the Council in deciding on different steps or instruments.

73

E. Klein, Statusverträge im Völkerrecht 303 (1980): „Territorial zuständig sind … die Vereinten Nationen, … die in analoger Anwendung von Art. 81 SVN zur Administration

24


The unease with which jurists viewed the emerging dynamics that would later lead to the advent of plenary systems of international administration vertically imposed by the UN Security Council was best summarised up by Judge Weeramantry in the 1995 East Timor case when, in his dissenting opinion, he pronounced his scepticism that a UN organ could ever take over the responsibilities of the administering power: It is true indeed that the General Assembly and the Security Council, in all their plenitude of power, preside over the great task of decolonisation and protection of dependent peoples. Yet, with all respect, they are no substitutes for the particular attention to the needs of each territory, which the Charter clearly intends to achieve. Protection from internal exploitation and external harm, dayto-day administration, development of human rights, promotion of economic interests and well-being, recovery of wrongful loss, fostering of self-government, representation in world forums, including this Court – all these require particular attention from a Power specifically charged with responsibility in that regard. Moreover, the supervision of the United Nations depends also on transmission of information under Article 73(e) and, in the absence of an administering power, there would be a total neglect of that function and hence an impairment of United Nations supervision.74

With the benefit of hindsight, one may also forgive other serious misjudgements, pronounced by eminent international lawyers, who were tempted to conclude that “such institutions have not on the whole worked successfully and the device is unlikely to be used frequently in the future”.75 The problems surrounding the imposed divorce between sovereign claims and effective control have to some extent been crystallised in two UN Security Council Resolutions adopted over four years ago. On 10 June 1999, the Security Council adopted Resolution 1244, authorising the Secretary General to establish “an interim administration (…) under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia”.76 Only a few months later, on 25 October 1999, the Security Council decided to establish a interim administration endowed with the “overall responsibility for the administration of East Timor”, including “all legislative and executive authority” and the administration of justice.77 Both UNMIK

befugt sind. In Ausübung dieser Befugnis hat die Generalversammlung den ‘Council for Namibia’ errichtet.” Cf. also L. L. Herman, “The Legal Status of Namibia and of the United Nations Council for Namibia”, 13 CYIL 306 (1975). 74

See East Timor Case, supra note 19, at Part B(iii).

75

M. N. Shaw, International Law 166 (4th edition, CUP, 1997).

76

Para. 10 of S/RES/1244 (1999), 10 June 1999.

77

Para. 1 of S/RES/1272 (1999), 25 October 1999.


25

and UNTAET, as they were subsequently named, were created on the basis of Chapter VII of the UN Charter, and in both cases an international territorial administration assumed exclusive administrative authority over the territories placed under their effective control and supervision. The transfer of effective control from the FRY to an international territorial administration in 1999 occurred in circumstances that would not qualify as a voluntary agreement.78 Formally, the UN followed its tradition of seeking the host government’s consent before deploying a UN peacekeeping mission into a post-conflict setting.79 The end of NATO’s air campaign was, however, conditioned on the approval of the Kumanovo agreement80 by the FRY, in which the latter agreed to the international military presence in Kosovo. Doubts have recently been expressed as to the legal validity of the Kumanovo Agreement endorsed by the Security Council in its Resolution 1244.81 Although coercion was certainly an objective element affecting the validity of the agreement according to Article 52 of the Vienna Convention on the Law of Treaties, the view that would extend the invalidity of the horizontal agreement to the vertical instrument is certainly misguided. The Kumanovo Agreement, similar to the horizontal agreement signed in 1995 at Erdut, in which Croatia and local Croat Serb authorities agreed to establish a transitional Administration82, was completely superseded by the reliance of a SC Resolution on Chapter VII. The question whether the Kumanovo Agreement invalidated the legal framework provided by SC Resolution 1244 is superfluous, as the discussion whether the agreement ought

78

Art. 25 of the Vienna Convention on the Law of Treaties states that a treaty (of which FRY’s acceptance of a phased withdrawal of its military is an example, see infra) “is void if its conclusion has been procured by the threat or use of force”. 1969 Vienna Convention on the Law of Treaties, 8 ILM 679 (1969).

79

The Kosovo peace plan, negotiated between the Finnish President, the Special Envoy of the Russian President, and the Yugoslav President was subsequently ratified by the Serbian parliament – see Decision by the National Assembly of the Republic of Serbia of 3 June 1999, reprinted in P. E. Auerswald/D. P. Auerswald (eds.), The Kosovo Conflict 1079 (2000) – and appended as Ann. II to SC Res. 1244 (1999).

80

Military Technical Agreement (MTA) between the International Security Force (‘KFOR’) and the Governments of the FRY and the Republic of Serbia concluded at Kumanovo (fYRoM) on 9 June 1999 (UN Doc. S/199/682 of 15 June). In the MTA, the FRY agreed to a phased withdrawal of all FRY forces to locations in Serbia proper.

81

E. Milano, “Security Council Acting in the Balkans: Reviewing the Legality of Kosovo’s Territorial Status”, 14 EJIL 999 (2003). The agreement is recalled in Ann. 2, para. 10, of SC Res. 1244 (1999).

82

Basic Agreement between the Croatian Government and local Serb authorities on the Region of Eastern Slavonia, Baranja, and Western Sirmium (Erdut Agreement), UN. Doc. S/1995/ 951, Annex reproduced in 35 ILM 184 (1996).

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to be considered null and void ab initio, or whether it produced some legal effects by the coerced party’s subsequent acquiescence.83 The authority of such international administration is hence not based on a ‘double footing’ – a Chapter VII resolution as well as the consent of the host state.84 It is submitted that the normative quality of SC Resolution 1244 lies in its vertical imposition of the transfer of effective control, and not in its endorsement of such a transfer through a horizontal agreement. Chapter VII of the UN Charter was used as the legal basis for the establishment of an international territorial administration that also (temporarily) suspended the FRY’s jurisdiction. This was perceived to be a necessary measure to restore international peace in the region within the meaning of Article 39 of the Charter. It follows from the Charter that the adoption of enforcement measures by the Security Council, including the transfer of imperium over territory to one of its organs,85 is not limited by the principle of non-interference since Article 2(7), since that Article expressly states that the principle of domestic jurisdiction shall not prejudice the application of enforcement measures adopted under Chapter VII. Hence, in the absence of a treaty (analogous to the ‘trusteeship agreement’ with the territorial state contained in Article 77 of the Charter), the Security Council can authorise, and thus create a title for, the temporary transfer of imperium to an international territorial administration without the invitation of the target state, in situations that it determines to be a threat to international peace in accordance with Article 41 and Article 42 respectively.86

83

Contra Milano, supra note 81, at 1018.

84

As argued by von L. von Carlowitz, “UNMIK Lawmaking Between Effective Peace Support and Internal Self-Determination”, 41 Archiv des Völkerrechts 336, 343 (2003).

85

The wording of Art. 41 of the UN Charter grants the Council wide discretion as to the range of measures necessary for the maintenance of international peace. The list of measures expressly referred to in Art. 41 is not exhaustive. It is a testimony to the ever-increasing importance of the SC that, in the 1990s, international territorial administrations were established as subsidiary organs under the authority of the SC and not of the GA: UNTAC (United Nations Transitional Authority in Cambodia, 1992-3), UNMIK and UNTEAT as well as UNMIBH (UN Mission in Bosnia and Herzegovina which exercised administrative functions in relation to, and was in charge of the restructuring of, the UN International Police Task Force) were (and in case of UNMIK are still) administered by the SG pursuant to Art. 98. While the SG performs functions entrusted to him by the SC, the delegation of the establishment of subsidiary organs to the SG does not remove these organs from the ambit of the SC (Art. 29). Cf. A. Paulus “Article 29”, in B. Simma (ed.), The Charter of the United Nations. A Commentary, Vol. I, 539, 553 (2002); as well as D. Sarooshi, “The Legal Framework Governing United Nations Subsidiary Organs”, 67 BYIL 413, 436 (1997).

86

For Ruffert, direct territorial administration complies with Chapter VII through the application of the implied-powers doctrine developed by the ICJ. See M. Ruffert, “The Administration of Kosovo and East Timor”, 50 ICLQ 613, 620 (2001).


27

The history of UN intervention in East Timor in 1999 exemplifies the dynamic shift between horizontal and vertical tendencies that was to propel the UN into assuming the wholesale administration of the territory later that year. The Security Council adopted Resolution 1246, establishing the United Nations Mission in East Timor (UNAMET) to organise a popular consultation, based on a tripartite agreement with Indonesia and Portugal regarding the modalities of its conduct.87 As violence escalated in the wake of the vote, and Indonesia expressed its readiness to accept an offer of assistance, the Security Council, acting under Chapter VII, established the International Force for East Timor (INTERFET) which took over all security functions from Indonesia and was authorised to use all necessary means to fulfil its mandate. In what could be termed a complex, or second generation peace-keeping mandate,88 UNTAET was given multiple assignments beyond ‘traditional duties’,89 including political, electoral, and informational components. In a tripartite meeting with the UN SG, Indonesia and Portugal affirmed their agreement that governing authority should be transferred to the United Nations.90 After the result of the popular consultation was recognised by the Indonesian People’s Consultative Assembly, the Security Council adopted Resolution 1272, establishing the Transitional Administration (UNTAET) to take overall responsibility for the administration of the

87

UN Doc. SC Res. 1246 (1999), 11 June 1999, based on the Agreement Regarding the Modalities for the Popular Consultation of East Timor Through a Direct Ballot, 5 May 1999. Res. 1246 based the justification for the creation of UNMET both on the Agreement and on earlier GA pronouncements affirming East Timor’s right of self-determination as non-self-governing territory (compare the references in SC Res. 1264 to GA Res. 1514 (XV), 1541 (XV) and 2625 (XXV) via SC Res. 1236).

88

UN Doc. SC Res. 1264 (1999), 15 September 1999. Whether the reference to Chapter VII was a legal necessity or not, remains contested. Indonesia had in principle expressed its readiness to accept an international peacekeeping force in the May Agreement. In itself, this would have been eliminated the barrier of domestic jurisdiction established by Art. 2(7) of the UN Charter. Invoking Chapter VII, had, however, the practical advantage that the Security Council could vest the multinational force with a robust mandate that included the use of “all necessary measures”, including the use of force. In addition, as Rothert observes, “had the Security Council not acted under the authority of Chapter VII, INTERFET would have been subject to Indonesia’s withdrawal of consent” (supra note 1, at 274).

89

J. B. Sills, “United Nations Peacekeeping: The Years Past, The Years Ahead”, 24 Denver JIL& Pol. 451 (1996). On multi-dimensional peacekeeping operations see R. S. Lee, “Peacekeeping, Peacemaking and Peacebuilding: A Role of the United Nations in Global Conflict”, 28 Cornell ILJ 619, 624 (1995).

90

Report of the Secretary General on the Situation in East Timor, UN Doc. S/1999/1024 (1999), para. 25.

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territory;91 powers that went far beyond the initial agreement of 5 May 1999. Arguably, the creation of the international territorial administration in East Timor on the basis of Resolution 127292 revolutionised the extent to which an organ of the UN could be vested with effective control and step into the administrative vacuum. UNTAET has not met with restraints of (suspended) sovereignty claims comparable to those of UNMIK, since the United Nations never recognised Indonesia’s occupation of East Timor in 1975 as being lawful. 93 Furthermore, Portugal, the former administrative power, has accepted UNTAET as its successor after the adoption of Resolution 1272.94 In an exchange of notes constituting an Agreement with Australia, UNTAET had assumed all rights and obligations previously exercised by Indonesia under the Timor Gap Treaty “until the date of independence of East Timor”.95 Some authors therefore claim that UNTAET, along with the assumption of effective control, had acquired temporary sovereignty over the territory. Chopra, for instance, notes that “the organizational and juridical status of the UN in East Timor is comparable with that of a pre-constitutional monarch in a sovereign kingdom (…) [I]t is the first time sovereignty has passed to the UN independently of any competing authority”.96 In a similar vein, Zimmermann and Stahn suggest that UNTAET was a unique operation for it was the first time that the UN exercised what they call “full and exclusive sovereignty over a territory.”97 Due to the lack of animus possidendi on the part of the UN, this explanation might be untenable, at least when applying the positivist object theory.98 It may be suggested, however, that UNTAET has replaced Portugal as an administrative power without sovereign rights, save in its capacity as custodian of the rights to self-determination of the East Timorese people, and thus 91

UN Doc. SC Res. 1272 (1999), 25 October 1999.

92

UN Doc. SC Res. 1272 (1999), 25 October 1999, adopted under Chapter VII of the UN Charter.

93

For discussion of East Timor’s ambiguous status under international law before the deployment of UNTAET, see Rothert, supra note 1, at 266.

94

J. Chopra, “Introductory Note to UNTAET Reg. 13 (2000)”, 39 ILM 937 (2000).

95

9 Australian Treaty Series 2000, quoted by A. Zimmermann/C. Stahn, “Yugoslav Territory, United Nations Trusteeship or Sovereign State? Reflections on the Current and Future Legal Status of Kosovo”, 70 Nordic JIL 423, 435 (2001).

96

J. Chopra, “The UN’s Kingdom of East Timor”, 42 Survival 27 (2000).

97

Zimmermann/Stahn, supra note 95, at 434.

98

It may not be without any insignificance in this connection that in the opinion of a number of writers the residual sovereignty over territories placed under Mandate rested with the League of Nations. See authorities cited in L. Oppenheim, International Law. A Treatise, Vol. 1 – Peace (8th ed. by H. Lauterpacht, 1955), 222, No. 5. This view implied that the League was endowed with sufficient international personality to possess such sovereignty.


29

temporarily assuming title, alongside imperium, on behalf of the people that were to constitute themselves as polity in due course. The following table compares selected cases in which territories were treated as external objects of states in accordance with the doctrine of disjunction, as outlined above. These cases are distinguished according to the recipient of the transfer of effective control, with single state entities on the left and multilateral agencies on the right side.

By Resolution 2145 (XXI) of 1966, the GA terminated South Africa’s mandate over South West Africa (Namibia), thus placing it under the direct responsibility of the UN Council for Namibia. South Africa responded by declaring its intention not to withdraw from the territory.

Duration temporary temporary never implemented

Legal Basis Treaties

never implemented

A compromise reached between the Netherlands and Indonesia (Agreement of 15 August 1962) stated that UNTEA would take over full territorial control of West Irian (West New Guinea), to be followed by a popular consultation.

temporary (8 months)

Following the Peace Treaty with Italy (10 February 1947), the ‘Free Territory of Triest’ was envisaged as an independent state entity based on a ‘Permanent Statute’ under the direct control of the SC and administered by a Governor to prevent it from being annexed by Italy or YU.

temporary

By Resolution 181 (29 November 1947), the GA endorsed the proposal of UNSCOP that envisaged Jerusalem be placed under an international regime, constituting it as ‘a corpus separatum’. The Trusteeship Council, to which the Governor would be accountable, was designed to discharge the responsibilities of the UN in this regard. The plan was rejected and never entered into force.

Agreement, LON Recomm.

Following a confrontation between Peru and Colombia over the control of the port of Leticia, the parties agreed to transfer effective control over the territory to the LON (Geneva Agreement, May 25, 1933) before it was returned to Colombian jurisdiction.

GA Resolutions

Also at Versailles, Danzig was severed from Germany and constituted as ‘Free City’ under the protection of the LON (17 November 1920) and a High Commissioner appointed by it.

Treaty; approval by the SC

Germany renounced the government of the Saar Territory by the LON (Peace Treaty of Versailles, 28 June 1919). Between 1920 and 1935, Germany’s territorial sovereignty was reduced to a nudum ius.

Agreement

Duration permanent

Treaty Treaty

conditioned

Transfer to an international organization (‘internationalized territory’) by horizontal or vertical means

UN GA Res. affirmed by subsequent SC Res.

Cuba transferred the exercise of complete jurisdiction and control over Guantanamo to the United States (Treaties of Havana and Washington, 1903) while the U.S. recognised the continuance of the ultimate sovereignty of Cuba.

Treaties

In 1898, China leased four territories to the German Empire (Bay of Kiauchau, 6 March 1898), to Russia (Port Arthur, 7 March 1898), to France (Kwang-chouwan), and to England (Weihaiwei, 1 July 1898), without explicitly transferring territorial sovereignty.

temporary lease

Turkey ceded effective control over Cyprus to Great Britain (Treaty of Alliance, June 1878), Turkey remained territorial sovereign.

Treaties

Turkey ceded effective control over Bosnia-Herzegovina to Austria (Treaty of Berlin, 13 July 1878) which occupied and administered the territory with Turkey remaining the titular sovereign.

permanent

Transfer to a state

Legal Basis

Table: Disjunction between sovereignty and effective control in state practice; selected examples since 1878

Duration temporary

transitional

SC Resolution 1244 (10 June 1999) vested UNMIK with plenary authority over Kosovo while suspending yet in principle affirming the “territorial integrity of the FRY”.

Indonesia and Portugal agreed to transfer authority over East Timor to the UN (5 May 1999). Resolution 1246 established UNAMET to conduct the popular consultation. The question of titular sovereignty remains contested. The mandate of UNTAET (SC Resolution 1272, 25 October 1999), went far beyond the initial agreement.

temporary

Duration

Agreement, SC Legal Basis Resolution 1037 (1996), Chapter VII

After the Basic Agreement was concluded between Croatia and local Croatian Serb authorities (12 November 1995), the SC set up UNTAES to govern the region of Eastern Slavonia in a transition period (1995-98) before administrative control was handed back to Croatia.

SC Res. 1244 (1999), Chapter VII

Treaty

permanent

Japan ceded the right to exercise legislative, judicial and administrative control over Okinawa to the United States (Peace Treaty between US and Japan, 8 September 1951) whereas residual sovereignty resided with Japan.

Transfer to an international organization (‘internationalized territory’) by horizontal or vertical means

Tripartite agreement icw SC Res. 1272 (1999), Chapter VII

Panama ceded its right to exercise control over the Canal Zone to the United States (Treaty of HayVarilla, 18 November 1903) with Panama remainning the titular sovereign.

Treaty

Transfer to a state

Legal Basis


temporary

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IV. Kosovo: Extent of UN Authority in an Internationalized Territory “You cannot stage the play Hamlet without having the scene of the ghost. In the same way, every time we meet to discuss Kosovo, there seems to be a ghost hanging around this room, asking us, what is the ultimate destination and how are we going to get there.”99

Ever since 1999, the status of Kosovo in international law has been the focus of heated debate among legal scholars. Equally ferocious has been the exchange of letters between UNMIK (as well as its component organizations) and the authorities of the FRY and the Republic of Serbia, who have on occasion taken issue with an alleged encroachment of the right to exercise effective control (UNMIK) or the claim to titular sovereignty (FRY). Serbian state organs continue to claim that Resolution

99

Statement of Singapore on the Situation in Kosovo, 27 March 2002, UN Doc. S/PV, 4498.


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1244 enshrines their right to carry out certain state functions in what they still view as a Serbian province. Based on this claim, FRY and Serbian authorities maintain parallel structures of government in the Kosovo Serb majority municipalities and enclaves, particularly in the field of health care, education, and justice.100 The last chapter will address the status issue in light of the conclusions drawn in the previous analysis, by couching it in the normative framework that emerged from the dynamic shift from horizontal to vertical assumption of effective control. At the same time, the chapter attempts to contextualise the specific findings by reviewing major constitutional and policy developments over the last five years. When considering the establishment of an international territorial administration in the final stages of the air campaign, the United Nations was able to draw on two separate institutional experiences: on the one hand, from the mandate and trusteeship systems, and on the other, from complex peacekeeping operations. The international territorial administrations that emerged in 1999, vested with plenary authority and jurisdiction, were very much modelled on systems of mandate and trusteeship, tailored to the interests of territories which were not represented in international fora, and whose welfare was entrusted to a member of the United Nations. Both missions, UNMIK and UNTAET, were set up to operationalise an underlying doctrine of development concerning ‘dependent territories’ which, exiting from authoritarianism and subsequent conflict, appeared to be defenceless and voiceless in a world order which had not yet granted them final political status. In interim arrangements, the UN and its subsidiary organs took upon themselves obligations to look after what was once called the “well-being and development of (…) peoples

100

After June 1999, some courts in Kosovo were relocated into courts in Serbia proper and to the northern part of Kosovo. Though UNMIK has worked to dismantle the parallel courts and establish a unified justice system, Belgrade continues to actively violate Res. 1244 (1999) by supporting illegal parallel structures, in particular in the municipalities of Leposavic, Zvecan, Zubin Potok and the northern part of Mitrovica municipality. In the field of health care, the Serb Ministry for health has aggressively pressured Kosovo Serbs not to co-operate with UNMIK, e.g., by openly demanding health workers not to follow instructions of Kosovo authorities and withdrawing social benefits from Kosovo Serbs who work with UNMIK. A similar pattern has occurred in education with Belgrade authorities effectively running Serbian language schools in Kosovo. The recent foundation of two Unions of Serb Municipalities in Mitrovica and Gnjilane regions bears the marks of initial steps toward canton-like territorial units. Furthermore, Belgrade continues to run a parallel system of paying pensions to Kosovo Serbs. See the recent OSCE Mission in Kosovo Report on Parallel Structures in Kosovo, October 2003, as well as Parallel Security Structures in North Mitrovica, 21 May 2002. For UNMIK’s (unimplemented) strategy to combat parallel structures see M. Steiner, A Choice for Mitrovica. The Seven Point Plan, 1 October 2002.

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from a ‘sacred trust of civilization’”101, while providing the umbilical cord tying such dependent territories to the international community. Yet, UNMIK and UNTAET authority was based on a Chapter VII mandate, within the spirit of transferring effective control on a vertical basis, without explicit invitation by the target state, and fell in the category of peacekeeping operations, with the Department of Peace Keeping Operations (DPKO) providing the institutional anchor. The resort to an international territorial administration to promote the existence of an organised territorial government, and, thereby, the viability of state institutions, raises difficult questions concerning the residual sovereignty claims of the former holder of ultimate authority over the territory. The answer to the question of who exercises administrative control – or, in the words of arbitrator Max Huber in the Palmas case, the entity that engages in a “continuous and peaceful display of state authority”102 – is often held to be determinative of who is the titular sovereign. But as the previous analysis has shown, the transfer of administrative prerogatives over territory and the exercise of effective control by a protecting entity are not necessarily preceded by a parallel transfer, or even a corresponding loss, of sovereignty claims. As the article has demonstrated, the term ’suspended’ or ‘damaged’ sovereignty has been employed in this context to describe constellations in which a multilateral institution vested with administrative prerogatives exercises effective control in an ‘internationalized territory’. In such circumstances, it is argued, sovereignty is perceived as an empty legal proposition, or, alternatively, it is no longer an applicable legal concept.103 The present chapter will demonstrate that the concept of residual sovereignty, and the pertaining sovereign rights, may well survive their premature obituaries.

A. Security Council Resolution 1244 and Its First Implementing Regulations In the aftermath of NATO’s successful air campaign against the Federal Republic of Yugoslavia (FRY) that resulted in a rapid, though not immediate, withdrawal of military and administrative personnel from Kosovo, the UN Security Council addressed Kosovo’s legal status in UN Security Council Resolution 1244 on 10 June 1999.104 The Resolution establishes the framework and responsibilities of the interim

101

International Status of South-West Africa, Advisory Opinion of 11 July, 1950 ICJ Reports 128, 131.

102

Island of Palmas case (U.S. v. Netherlands), 2 RIAA 867 (1928).

103

A. Yannis, “The Concept of Suspended Sovereignty in International Law”, 13 EJIL 1037, 1038 (2002).

104

S/RES/1244, 10 June 1999.


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international administration, which continues to exercise supreme executive and administrative authority. As Marcus Brand notes, the Serbian government had, from the inception of UNMIK, understood that its dominum had been suspended and reduced to a nudum jus: Formally, Kosovo will be a corpus separatum within the territorial framework of Serbia, but in fact it will be a separate state without certain external signs of statehood… In this way the fiction of Serbian territorial integrity is maintained… A high degree of autonomy for Kosovo could only mean autonomy within the state of Serbia, and not autonomy for itself, independent of Serbia’s state prerogatives. Otherwise there would be separate statehood for Kosovo. But under the veil of the UN, NATO has in fact created the State of Kosovo.105

Resolution 1244 vests the Special Representative of the Secretary General (SRSG) and UNMIK with “[a]ll legislative and executive authority…, including the administration of the judiciary” over the territory and people of Kosovo,106 and the power to issue “legislative acts in the form of regulations”107 as necessary. Such Regulations would “remain in force until repealed by UNMIK or superseded by such rules as are subsequently issued by the institutions established under a political settlement”.108 The Resolution’s first implementing Regulation lists a series of main responsibilities which effectively self-institutionalises all powers that would, under normal circumstances, be attributed to a state government: “UNMIK is the only legitimate authority in Kosovo.”109 Moreover, the Secretary-General attributed the

105

“Interview with Ratko Markovic, Deputy Prime Minister of Serbia, in Kosovo and Yugoslavia: Law in Crisis”, debate forum on http://www.jurist.law.edu, quoted by M. G. Brand, Kosovo Under International Administration: Statehood, Constitutionalism and Human Rights, Dissertation, University of Vienna, 82 (2002).

106

UNMIK/REG/1999/1 of 25 July 1999, “On the Authority of the Interim Administration in Kosovo”, para. 1.1. The self-authorisation of the administration contained in the first regulation is equally comprehensive and absolutist in the case of UNTAET whose first Regulation stipulates that “all legislative and executive authority with respect to East Timor, including the administration of the judiciary, is vested in UNTAET and is exercised by the Transitional Administrator” (UNTAET/REG/1999/1, “On the Authority of the Transitional Administration in East Timor”, section 1.1). For a critical analysis see Korhonen, supra note 2, at 499.

107

UNMIK/REG/1999/1, at section 4.

108

Ibid.

109

“Report of the Secretary General on the United Nations Interim Administration in Kosovo”, S/1999/779, 12 July 1999, para. 41.

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“final authority of interpretation”110 of the Resolution, and hence of UNMIK’s mandate as such, to his Special Representative, a power which had previously never been stated expressly. Ever since summer 1999, an international territorial administration has adopted norms based on instruments from an international source that have direct and immediate effects (i.e., which have normative content directly binding persons under UNMIK’s jurisdiction, regardless of whether they are in line with a higher source of law such as the basic norm of Resolution 1244 or international human rights treaties), without needing to incorporate them into the ‘domestic order’.111 The direct applicability of UNMIK legislation may be justified by interpreting Resolution 1244 as a legal instrument that “opened the legal order of the FRY”, but not because of the ‘approval’ of the FRY expressed its Annex 1,112 but by way of its basis in Chapter VII that allowed it to partly displace and supersede FRY’s legal order by vertically opening Kosovo’s normative space. The rules set by international authority in internationalized territories are, by definition, part of the UN legal system, but with reference to a specific territory, and may be complementary to and interlaced with, municipal legal provisions that have not been superseded by UN legislation.113 SRSG Hans Haekkerup envisaged UNMIKs deployment strategy in four integrated phases: In the first phase, the mission would set up administrative structures, deploy

110

Ibid., at para. 44. See also UNMIK/REG/2001/19, “On the Executive Branch of the Provisional Institutions of Self-Government in Kosovo”, 13 September 2001, which stipulates that the SRSG “shall have the final authority to interpret the scope and any other parameters of the executive responsibilities of the Provisional Institutions of Self-Government set out in the present regulation” (section 19).

111

Ruffert, supra note 86, at 623. With reference to Bosnia and Herzegovina, Cox concludes that the High Representative came to “occupy a unique position within the domestic legal system, being both a part of the domestic constitutional order, and at the same time superior to it. The international legal system assumed the capacity to act directly within a domestic constitutional process, without the intermediate level of state responsibility”. M. Cox, The Making of a Bosnian State: International Law and the Authority of the International Community, Ph. D./University of Cambridge, 91 (2001). See also the discussion on ‘dual functionality’ below.

112

As argued by C. Stahn, “United Nations Transitional Administrations in Kosovo and East Timor: A First Analysis”, 5 Max Planck Yearbook of United Nations Law 105, 146 (2001).

113

For an account of some of the problems surrounding the subsidiary applicability of FRY and Serbian municipal statutes in Kosovo, see Brand, supra note 105, at 147 et seq., and Ombudsperson in Kosovo, “Certain Aspects of UNMIK Reg. No. 2000/59 Amending UNMIK Reg. No. 1999/24 on the Law Applicable in Kosovo”, 27 October 2000, Special Report No. 2, 30 May 2001. For a similarly problematic situation in East Timor, see D. Fitzpatrick, “Developing a Legal System in East Timor”, 5 ARIEL 5, 15 et seq. (2000).


35

an international civilian police and provide emergency assistance to returning refugees. Throughout the second phase, focus would be on the administration of social services and utilities and the consolidation of the rule of law. In the third phase, UNMIK would conduct elections for a Kosovo Assembly and finalise preparations for the creation of provisional institutions of self-government while promoting the establishment of ‘substantial autonomy’ of Kosovo. The concluding phase would depend on a final settlement of the status of Kosovo.114 Following Resolution 1244 and its first implementing Regulations, a plenary system of territorial administration has emerged.115 As the surrogate state,116 UNMIK remains composed of a pillar structure, each reporting to the SRSG. Divided into four major components, the pillar structure reflects the heavy dependence of the operation on the efforts and resources of various states and international organizations. While one pillar remained with the UN, namely the one concerned with the interim civil administration, the other pillars were distributed to UNHCR for humanitarian affairs, to the OSCE for institution building, and to the EU for economic reconstruction.117

114

I. Berishie/B. Knoll, et al., “OSCE Mission in Kosovo – Two Years Into Institution Building, in: International Organisations in Kosovo: Finding the Path through the Maze”, 4 Favorita Papers 5 (Diplomatic Academy Vienna, 2001).

115

For two concise studies on the constitutional history of Kosovo and recent attempts to build political institutions and processes cf. Brand, supra note 105, at 87 et seq., and C. Stahn, “Constitution Without a State? Kosovo Under the United Nations Constitutional Framework for Self-Government”, 14 Leiden JIL 531, 558 et seq. (2001).

116

This expression was used by the Kosovo Ombudsperson Institution in a study entitled “On the Compatibility With Recognised International Standards of UNMIK Reg. No. 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo (18 August 2000), and on the Implementation of the Above Regulation”, Ombudsperson Institution, Special Report No. 1 (26 April 2001), at 8.

117

More specifically, the UNHCR was put in charge of the preparation of the winterisation and humanitarian aid programme in the framework of Pillar I; Pillar II/UN was given the responsibility of the civil administration and the management of public affairs (in particular, to revive health, education, and other public services); Pillar III/OSCE was given the portfolio of democratisation and institution building (that included the promotion of independent media, the organisation of elections, the training of a local police force, and a human rights monitoring brief); and Pillar IV/EU was put in charge of coordinating the economic reconstruction of key infrastructure and other economic and social systems such as the development of a market-based economy, the co-ordination of international financial assistance, and the resolution of trade, currency and banking matters. After UNHCR had left the Pillar structure in June 2000, a new Pillar I responsible for Law Enforcement and Justice was created in spring 2001. It is tasked to ensure the integration and coordination of functions that would under different circumstances be carried out by Ministries of Justice and Interior and includes the Kosovo Police Force, the local judiciary,

36


Interestingly, the military aspects of the operation – what would normally be viewed as the more classical peacekeeping duties – fall entirely outside of UNMIK’s mandate. Instead, military aspects are directly conferred to the Kosovo Force (KFOR), whose Commander reports to NATO and whose Secretary General answers directly to the UN Security Council. Even though it is generically provided for under UN auspices,118 no unitary command has been established, giving KFOR substantial room for autonomous action, which appears to be subject only to coordinative efforts undertaken by the SRSG to ensure that the military partner operates “towards the same goals and in a mutually supportive manner”.119 The interim governance framework established by Resolution 1244 and subsequent vertical instruments has thus created an alliance between the UN Secretariat, an UN subsidiary organ, and two regional bodies, together with a separate military presence which includes a strong contribution from NATO.

B. The Constitutional Framework and the Transfer of Competencies to Local Institutions Since the adoption of the Constitutional Framework by UNMIK in 2001120, this system of plenary international administration has begun to operate alongside local actors. The document recognises the special internationalized status of Kosovo, arising, in our view, from a disjunction of sovereignty and exclusive administering authority, or imperium. Its drafters defined Kosovo as ‘an undivided territory”121 under interim international administration and an “entity… which, with its people, has unique historical, legal, cultural and linguistic attributes”.122 The document also acknowledges “Kosovo’s historical, legal and constitutional development”123 while it contains and the local corrections service (cf. “UNMIK at a Glance”, available at http://www. unmikonline.org/intro.htm). 118

Res. 1244 (1999), para. 5.

119

Ibid., at para. 6. Yannis comments that the “[d]ualism at the top of the command of an international administration … reflects the reluctance of key NATO states to place their military forces under UN command, which inevitably creates an accountability gap”. A. Yannis, “Kosovo Under International Administration”, 43 Survival 31, 32 (2001).

120

UNMIK/REG/2001/9, “On a Constitutional Framework for Self-Government”, 15 May 2001. For a full analysis see Stahn, supra note 115, as well as B. Knoll/K. Johnston Molina, “A Rocky Path: Kosovo’s Transition To Provisional Self-government. General Elections in 2001 And Beyond”, in 8 OSCE-Yearbook 131 (2002, Institute for Peace Research and Security Policy/IFSH of the Hamburg University).

121

UNMIK/REG/2001/9, para. 1.2.

122

Ibid., at para. 1.1 (emphasis added).

123

Ibid., preamble.


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no reference to the authority of FRY organs in Kosovo. As foreseen by Resolution 1244, the framework document lays the foundation for the transfer of “administrative responsibilities while overseeing and supporting the consolidation of Kosovo’s local provisional institutions”,124 by determining the institutional structure and the power of Kosovo’s political organs. Following the general elections held in autumn 2001, UNMIK has begun to transfer the daily administration of important parts of its responsibilities to the local institutions established by the Constitutional Framework.125 Crucial areas such as external relations, law enforcement and justice, the protection of minority communities, as well as budgetary control, however, remain under the direct authority of the SRSG who, in addition to reserving certain competences, retains the power to correct any actions of the Provisional Institutions of Self-Government that he deems incompatible with Resolution 1244. As a vehicle to begin the transfer of substantial responsibilities from UNMIK to the PISG, the SRSG announced the establishment of a Transfer Council to decide upon the means and timetable to implement, coordinate, oversee and review the transfer of an initial list of 44 competencies.126 SRSG Michael Steiner has based the determination of Kosovo’s future status on the idea that certain specific set standards need to be achieved by Kosovo’s local institutions before talks about status could occur. Hence, in order to couch the transfer of competencies to the emerging Provisional Institutions of Self-Government in a wider framework of responsible government and eventual external self-determination, he instituted a policy of benchmarking through which indicators were to be developed in the eight areas of governance.127 The process clearly emulated the Brussels Declaration of the Peace Implementation Council (PIC) of 2000, in which clear benchmarks were established to measure the performance of both Bosnian and international institutions.128 Since summer 2002, UNMIK has repeatedly presented 124

Res. 1244 (1999), para. 11(d).

125

UNMIK/REG/2001/9, chapters 5 and 9.

126

See UNMIK/PR/930 of 7 March 2003, available at http://www.unmikonline.org and an internal O/SRSG Paper, “Terms of Reference, Tasking and Membership of the Working Groups”, of 15 April 2003 (on file with the author). Parallel to the transfer competencies on central level, the SRSG announced to fully devolve executive responsibilities to the most successful municipalities, and withdraw into a monitoring and oversight function. See “UNMIK Internal Discussion Paper: Transfer of Responsibilities to the PISG at the Municipal Level”, 12 February 2003 (on file with the author).

127

These are the areas of functioning democratic institutions, rule of law, freedom of movement, returns and reintegration, economy, property rights, dialogue with Belgrade, and the Kosovo Protection Corps. See “UMIK Benchmark Table”, 20 April 2002, as well as the notes from UNMIK’s Dubrovnik Retreat between 21-22 April 2002 (both on file with the author).

128

Cf. “Declaration of the Peace Implementation Council”, as well its Annex, Brussels, 24

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baseline reports to the UN Security Council. The process, reminiscent of the conditionality policy as a means of applying pressure to national authorities to accept reform programs which are essentially foreign in origin, has so far remained an UNMIK exercise that lacked local ownership and was more an internal managerial tool than a policy adopted by the local provisional institutions. Since spring 2003, the benchmark process is reinforced by the Stabilisation and Association process (SAp) Tracking Mechanism for Kosovo, through which the European Commission tracks the development in, and provides sectoral recommendations for, different policy areas in Kosovo.129 A more dynamic phase began in November 2004 when the US announced a new initiative on behalf of the Contact Group nations that promised a review of the final status in mid-2005 if by then the PISG had satisfied a raft of specified standards on governance and treatment of ethnic minorities. The UNSCendorsed Standards for Kosovo plan that flowed from the Contact Group initiative established five working joint UNMIK-PISG working groups to plan and coordinate the fulfilment of the standards which would be evaluated by UNMIK in quarterly reports to the SC via the UNSG.

C. UNMIK’s Continued Kompetenz-Kompetenz: Towards Institutionalised Unaccountability? As von Carlowitz has recently pointed out, UNMIK’s responsibilities remain multifunctional and have called for different approaches to government – some involving an interventionist stance justified by a peace enforcement ideology, others more along traditional peacekeeping lines that sought to buffer and mediate between the parties, and still others grounded in a development-oriented peace-building approach.130 While it created binding institutional rules to govern the functioning and the competences of local institutions, the Constitutional Framework has, however, failed to set limits on the powers of the international territorial administration. Its preamble clearly expresses the retention of the overall decision-making power by the SRSG as it states that “[T]he exercise of the responsibilities of the Provisional Institutions of Self-Government in Kosovo shall not in any way affect or diminish the ultimate authority of the SRSG”131 for the implementation of Resolution 1244. In

May 2000, available at http://www.ohr.int/pic and European Stability Initiative (ESI), “Turning Point: The Brussels PIC Declaration and State-Building Agenda for Bosnia and Herzegovina”, 7 June 2000, available at http://www.esiweb.org/reports/bosnia. 129

Cf., e.g., European Commission External Relations Directorate Western Balkans, “Report on the Third Meeting of the Kosovo Sap Tracking Mechanism (STM)”, Pristina, 26/27 November 2003 (on file with the author).

130

Carlowitz, supra note 84, at 337.

131

UNMIK/REG/2001/9, preamble.


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order to cement the hierarchy of norm-setting within the territory, the Framework establishes the SRSG as organ of Kompetenz-Kompetenz that would, first, be entitled to oversee the Provisional Institutions of Self-Government, its officials and agencies, even when operating in their respective fields of transferred powers, and second, be empowered to take “appropriate measures whenever their actions are inconsistent with UNSCR 1244 (1999) or this Constitutional Framework”.132 The SRSG himself, accountable only to the UN Secretary-General through his Deputy in the New York Headquarters’ Department for Peacekeeping Operations in the form of weekly, monthly, biannual and annual reporting exercises, is not bound by the provisions of the Constitutional Framework and can, in theory, revoke the granted powers and thus reverse the process of gradual transfer of competences to local institutions created under it.133 Moreover, under the current legal framework, the SRSG is neither accountable to the local institutions, nor subject to any control exercised by them. In particular, the legislative acts – both Regulations and Administrative Directions as well as other subsidiary instruments issued by one of the four pillars components – are exempted from the jurisdiction of the local courts. The absence of a constitutional court means that no instance in the legal system of Kosovo could give an authoritative ruling on, i.e., the discriminatory nature of a law or the (non-) compatibility of legislative and executive acts by UNMIK organs with higher sources of law.134

132

Ibid., chapter 12. A paper prepared by the Office of the SRSG (O/SRSG) argues that almost every PISG activity “can touch UNMIK’s ‘strategic’ heights”, the mission’s core responsibilities. The paper is, in its way, indicative of the inability to ‘let go’ competencies, arguing that a simple division of powers into ‘reserved’ and ‘transferred’ areas is “incomplete and somewhat misleading”. It suggests a “rising scale of intervention” in response to a problem regarding transferred executive functions. This is somewhat in conflict with the SRSG’s public announcement not to “overrule the Provisional Institutions on matters within their competence” except when they act in breach of Res. 1244 or the Constitutional Framework (UNMIK Press Release of 7 March 2003). Cf. O/SRSG Paper, “Monitoring Intervention”, 13 February 2003 (on file with the author).

133

See Chapters 12 and 14, para. 3 of the Constitutional Framework. According to another O/SRSG working paper, the reversion of competencies to UNMIK remains a punitive option, along with the reversal of a certain decisions, the withholding of funds by UNMIK, and the removal of officials from office, and, as a measure of last resort, their criminal prosecution (O/SRSG Working Document, “Types of Intervention”, 17 February 2003, on file with the author).

134

This follows from the Chapter 9.4.11 of the Constitutional Framework which limits the jurisdiction of the Special Chamber of the Supreme Court on Constitutional Framework Matters to the control of laws adopted by the Kosovo Assembly and to disputes among the provisional institutions. This is especially problematic because UNMIK has retained sole administrative authority over justice and law enforcement, areas which are closely intertwined

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The developments surrounding the transfer of effective control, and the United Nations’ subsequent normative practice of self-authorisation as the holder of Kompetenz-Kompetenz in all branches of territorial government, underline the urgent need to reconsider the discourse on the determination of status and sovereignty of Kosovo under international public law. The opinion that the FRY has “forfeited its ability to exercise sovereign jurisdiction over Kosovo”135 under UNMIK’s authority seems to have gained considerable currency among scholars. It is based on the understanding that UNMIK, as “the only legitimate authority in Kosovo”136, has responsibilities both vis-à-vis the population of the territory and what is often termed the ‘old sovereign’. Stahn, for instance, argues that the most important task of the United Nations Administration is to prepare the territory for self-rule which precedes the cession “of its authority to a different entity, determined under the political settlement envisaged by Resolution 1244.137 By stating that the FRY has been “deprived of its sovereign rights”,138 and denying UNMIK’s role as ‘new sovereign’, Stahn suggests that for a limited period of time, internationalized territories defy traditional notions of dominium by administering a “sovereign-free zone”.139 In an even more radical fashion, Ringelheim has concluded that the establishment of an international administration amounts to a suspension of the FRY’s sovereignty, suggesting that sovereignty over Kosovo has been temporarily vested in the United Nations itself.140 This proposition appears incompatible with the prevailing scholarly opinion that the United Nations cannot have territorial sovereignty.141 The most convincing counter-argument to Ringelheim would recall that the United Nations, as an international territorial administration, lacks the animus possidendi upon which a

with human rights guarantees. The rights of Kosovans to seek review of and redress for alleged violations of their rights by UNMIK and KFOR remain unclear. See D. Marshall/ S. Inglis, “The Disempowerment of Human Rights-Based Justice in the United Nations Mission in Kosovo”, 16 Harvard Human Rights Journal 95, 108 et seq. (2003). 135

M. G. Brand, “Institution-Building and Human Rights Protection in Kosovo in the Light of UNMiK Legislation”, 70 Nordic JIL 461, 463 (2001).

136

“Report of the Secretary-General on the United Nations Interim Administration in Kosovo”, S/1999/1159 (23 December 1999), para. 35.

137

Stahn, supra note 115, at 541 (emphasis added) and also id., supra note 112, at 119.

138

Ibid., at 540.

139

Stahn, supra note 112, at 119.

140

Ringelheim, supra note 24, section 2.2.

141

H. Lauterpacht, “The International Personality of the United Nations. Capacity to Administer Territory”, 5 ICLQ 409-513 (1956), and H. Kelsen, The Law of the United Nations 195197, 684-687 (1950).


41

claim to sovereignty must be based.142 Presumably, the UN as an administrative authority would not harbour proprietary or other similar interests in a modern trust territory.143 As a policy institution, Kosovo’s emerging international territorial administration has been charged with taking over territorial governance from local actors, in the framework of a loosely bound system where the exercise of imperium continues to depend on the coordination and cooperation of a range of military, political, administrative and non-governmental organizations. The drafters of Resolution 1244, however, clearly refrained from recognising Kosovo as an independent state, and abstained from making binding determinations with respect to Kosovo’s future status in international law. It gave UNMIK the task of “facilitating a political process designed to determine Kosovo’s future status, taking into account the Rambouillet accords.”144 In order to provide an interim and subsequent transitional administration under which the people of Kosovo could “enjoy substantial autonomy within the FRY”, Resolution 1244 further authorised the UN Secretary General to establish an international civil presence to oversee the “transfer of authority from Kosovo’s provisional institutions to institutions established under a political settlement”.145 According to O’Neill’s account of the sequence of institution building in Kosovo, “no one knew what ‘substantial autonomy’ and ‘meaningful self-administration’ meant”.146 Indeed, Resolution 1244 has often been described as a formula of political

142

Compare the Legal Status of Eastern Greenland case in which the PCIJ held: “A claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority”. Legal Status of Eastern Greenland (Denmark v. Norway), Judgment of 5 April 1933 PCIJ (Ser. A/B), No. 53, at 45-46.

143

Crawford concludes that the concept of sovereignty is inapplicable to international regimes of divided competencies such as the mandate and trusteeship systems, J. Crawford, The Creation of States in International Law 366 (1979). Brownlie asserts that the UN cannot have territorial sovereignty, although it has been prepared to assume administrative functions in the context of maintaining peace and security, Brownlie, supra note 7, at 175. For arguments that sovereignty could conceivably reside with the UN if it were to acquire proprietary interests, see R. E. Gordon, “Some Legal Problems With Trusteeship”, 28 Cornell ILJ 301, 342 (1995).

144

Res. 1244 (1999), para. 11(e), with reference to the Rambouillet accords (S/1999/648).

145

Ibid., para. 11(f)

146

W. O’Neill, “Kosovo: Unexpected Barriers to Building Peace and Security, in Honoring Human Rights Under International Mandates. Lessons from Bosnia, Kosovo, and East Timor. Recommendations to the United Nations”, Aspen Institute Justice and Society Program 76 (2003).

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compromise, in which the strong aspirations towards independence for the majority of the population were kept in check and mediated by UNMIK while the sovereignty and territorial integrity of the FRY were reaffirmed. In this respect, the Mission’s objectives clearly differed from the UN mandate in East Timor, where the Security Council stated that “the East Timorese people expressed their clear wish to begin a process of transition under the authority of the United Nations towards independence”147 through the referendum of 30 August 1999. In what seems to be a widespread legal opinion, UNMIK’s mandate under Resolution 1244 to perform basic civilian functions and to maintain law and order while simultaneously developing democratic institutions has, from its inception, meant the complete take over and exercise of “all executive and legislative powers, including the administration of the judiciary” over the territory,148 that would work to the detriment of any sovereignty claim the FRY intends to frame. Resolution 1244 tries to reconcile two conflicting objectives: first and foremost, the realization of meaningful self-government mediated by the fiduciary powers of an international territorial administration; and second, the preservation of the FRY’s continued dominium over the territory. We demonstrated that behind the thick layers of UN powers over a territory in the fields of the legislative, executive and judicial branches, there lurks the thin veil of the bare title, or dominium, of the entity f.k.a. Federal Republic of Yugoslavia. Within the vertical paradigm, the adoption of a Security Council Resolution, based on Chapter VII of the UN Charter, entailed the suspension of the FRY’s right to exercise residual powers during the period of international territorial administration while it would seem to prevent the latter from any act that would render FRY’s sovereign claims meaningless in the long term.149 According to the propositions made throughout this article, the suggestion that sovereignty is no longer be an applicable legal concept in instances of an international territorial administration assuming effective control,150 appears untenable.

147

Para. 3 of the preamble of UNTAET/REG/1272, 25 October 1999.

148

See “Report of the Secretary-General”, 12 July 1999, supra note 109, at para. 35.

149

T. H. Irmscher, “The Legal Framework for the Activities of the United Nations Interim Administration in Kosovo: The Charter, Human Rights, and the Law of Occupation”, 44 German YIL 353, 365-366 (2001).

150

Referring to East Timor, Yannis suggests that “[s]uspension of sovereignty signifies rather that sovereignty is not an applicable legal concept any more and what matters is what are the rights and obligations of the UN transitional authority regarding the administration of the territory”, supra note 103, at 1048.


43

V. Conclusion: Re-sequenced Institution Building and the Trap of ‘Functional Duality’ The problem of new ‘non-self-governing territories’, and the chronic political instability resulting from the structural deficiencies, or even the outright implosion of states, will continue to pose a challenge to the international legal order. The international system is rapidly developing, and experimenting with, new forms of political authority which enable it to effectively respond and directly participate in the governance of such territories with a view to restructuring their domestic constitutional order.151 The concept of internationalisation, whereby territories were put under international administration in order to create independent polities to balance the conflicting interests of competing states, had been a familiar notion from the past two centuries. Besides their similar scope and intrusiveness of mandate, the UN Missions in Kosovo and East Timor, charged with the wholesale administration of a polity that included the creation of political institutions and the restoration of the judicial system, have shed different light on this method. It is commonplace to regard these two missions as new and groundbreaking due to the plenary authority asserted in the respective territories.152 Whereas the extent of the administrative prerogatives held by multilateral bodies in internationalized territories appears unprecedented indeed, it has been one of the objectives of this paper to demystify the legal instruments used for the purpose of transferring effective control while the bare title of sovereign remained intact, in order to supply a somewhat sober analysis of how to integrate such practice in an evolving system of international law. The article has sought to emphasise that the exercise of sovereign rights, or imperium, has been curtailed, either voluntarily or involuntarily, before. States have often chosen (through the medium of treaties) to agree to specific obligations barring the exercise of certain rights, while accepting the agency of another subject of

151

Cox, supra note 111, at 2.

152

The Brahimi Report places those two post-Cold War Missions in a class of their own as responding to ‘extreme’ situations: “United Nations operations were given executive law enforcement and administrative authority where local authority did not exist or was not able to function.” Report of the Panel on United Nations Peace Operations, 39 ILM 1432, 1443, para. 19 (2000). Matheson (supra note 50, at 83) describes “the novel …. undertakings in Kosovo and East Timor”. For Strohmeyer, the “scope of the challenges and responsibilities deriving from these mandates [UNMIK and UNTAET] was unprecedented in United Nations peacekeeping operations”; H. Strohmeyer, “Collapse and Reconstruction of a Judicial System: the United Nations Missions in Kosovo and East Timor”, 95 AJIL 46, 46 (2001)).

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international law.153 As noted earlier, both the Kosovo and the East Timor Missions have borrowed elements from the UN Trusteeship System, from colonial administration and governance, and from the organization of post-WWII reconstruction in Europe and Asia. Both Missions have imposed model constitutions and created normative systems along with their efforts to accomplish democratic change at the level of basic institutional structures and political processes. Conceptually speaking, the assumption of exclusive administrative authority by the UN under Chapter VII may be regarded as a modern form of, or rather, an extension of, a system of trusteeship. On the other hand, though the means of administration, its multilateral core, and its legal basis might be different today, the protecting administrative agency has responsibilities comparable to those that a ceding state might have had under a horizontal agreement a hundred years ago.154 Imperium has traditionally been conceived as a normative claim to physical control over objects and people in a defined territory. In all of the cases discussed in chapter one of this article, this claim was ‘ceded’ on a consensual basis by a horizontal agreement, through which a state or an international organization acquired the right to exercise effective governmental control on the sovereign territory of the grantee. It has been argued that although the residual sovereignty of the transferring state may be reduced to a nudum ius – a situation in which the sovereign emperor was indeed left without clothes – the titular claim to the exercise of power could very well be resuscitated by amending the transfer treaty or after expiration of the time stipulated in it. On the other hand, internationalized territories, as opposed to other types of territories with restricted sovereignty whose legal creation is based on a bilateral agreement or settlement (and except the Mandate or Trusteeship Territories), rest on distinct multilateral instruments which impose obligations that may suspend the exercise of sovereign rights indefinitely. In any case, one of the features that clearly distinguished the transfer of public authority to a protecting state from the transfer to an international organization was the intent of that entity to administer the territory in a ‘benevolent’ fashion, i.e., in the interest of the people governed, without proprietary interests. As shown in chapter two, the notion of ‘benign administration’ distinguishes internationalized territories in which the United Nations possess imperium from cases in which states agreed to transfer effective control under a protecting scheme. Those propositions, open-ended as they are, supported the view that the United Nations may vertically suspend the right to the exercise of sovereign

153

A. James, “The Concept of Sovereignty Revisited”, in Schnabel/Thakur, supra note 5, 334, at 337.

154

For the analogous application of the general principles constraining trusteeship authorities to present international territorial administrations, see Stahn, supra note 112, at 36.


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powers and assume tasks of temporary governance if, and to the extent that, such decisions serve the purpose of maintaining international peace and security. With regard to the international territorial administration in Kosovo, this article aimed at exploring ‘the sovereignty problem’ behind the creation of an international territorial administration (ITA), and more specifically, the authority and status of UNMIK as well as its pillar structure. In the words of Ralph Wilde, ITAs today are framed to respond to two problems: first, a ‘sovereignty problem’ regarding the identity and status of those local actors exercising effective control. In the second place, an ITA aims at solving perceived ‘governance problem’ that affects local actors which are deemed to be either actively opposed to a particular political agenda or unable to govern satisfactorily because of their insufficient anchorage in a ‘democratic’ tradition.155 The sequence of international institution building that we were able to witness ever since the Security Council deployed its civil and security presences in Kosovo suggests that this logic was not only not adhered to, but rather, turned on its head. The phrase ‘standards before status’, coined by the former SRSG Steiner, perfectly encapsulates this reversion of institution building sequencing and logic. Lending priority to institution building and democratisation while deferring the process of nation building, Resolution 1244 mandates the creation of internal aspects of selfdetermination – capabilities, processes, institutions – but falls short of granting the choice of exercising aspects of external self-determination to the general population. Addressing a ‘governance problem’ in the first instance, the ITA actively interfered in the exercise of sovereignty by displacing the local level of administrative control. Absent a horizontal agreement, its legitimacy was anchored in a vertical instrument of public international law which left the issue of dominium unresolved. Rather than promoting particular statehood and self-determination claims as Resolution 1272 did with regard to the future political status of East Timor, Resolution 1244 and its implementing mission have been concerned with the creation of organised social and political institutions, especially local governmental institutions. The Resolution, together with the body of law subsequently promulgated by UNMIK, thus created the practical capabilities for an outcome that has not yet been agreed upon, and it fell short of giving the enduring promise that lay at the core of the UN Trusteeship system: that sovereignty, suspended as it was under fiduciary administration, would eventually be reconstructed along the lines of, and vested in, a newly constituted actor, ‘the peoples’. The international territorial administration thus responded to a governance vacuum to ensure that an incoming local government authority would frame its sovereignty claim in the context of a future political

155

R. Wilde, “From Danzig to East Timor and Beyond: The Role of International Territorial Administration”, 95 AJIL 583, 599 (2001).

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settlement that the Security Council was not fit to impose vertically in 1999. Absent such horizontal agreement, the ITA in Kosovo continues to act on behalf of organised local agents and institutions created under its mandate, while the latter are prevented from framing normative claims that would cut across a future status settlement. Even to the casual observer of international relations, it will be obvious that such an ITA is bound to run the risk of becoming entangled in what can be referred to as the trap of ‘dual functionality’.156 As noted before, international administrations derive their legitimacy in part from the notion of trust, which represents the ideological substratum that has always underpinned the multilateral administration of ‘dependent territories’.157 Though transitional international governance of ‘non-self-governing territories’ is not, and has never been, subject to democratic control, and its domestic legislation never been subject to judicial review,158 a territorial administration nonetheless represents the people within its exclusive personal jurisdiction, and over which it exercises imperium, vis-à-vis the outside world, hence assuming ‘agency of necessity’159 in external relations. In this context, Grossman and Bradlow have

156

The discourse on the ‘dual functionality’ of international administrations, initially at the core of the constitutional debate surrounding the continued existence of an organised state entity Germany under Allied command, was transposed into the Bosnian context by the BiH Constitutional Court in 2000. It held that the High Representative, charged with the overall implementation of the Dayton Agreement, would act both as national organ of BiH and as an international authority when adopting decisions in the form of national law of BiH. Referring to Germany and Austria placed under international administration after WWII, the Court suggested that “[a]cts by such international authorities were often passed in the name of the States under supervision. Such situation amounts to a sort of functional duality: an authority of one legal system intervenes in another legal system, thus making its functions dual…In the present case, the High Representative…intervened in the legal order of [BiH] substituting himself for the national authorities. In this respect, he therefore acted as an authority of [BiH] and the law which he enacted is in the nature of national law and must be regarded as a law of [BiH]”. See Case No. U 9/00 (Request for Evaluation of Constitutionality of the Law on State Border Service), Constitutional Court of BiH, 3 November 2000, para. 5 et seq. Cf. also Stahn, supra note 112, at 70 et seq.

157

Referring to territories under the Trusteeship system, Stahn suggests that “UN involvement in rebuilding post-civil war societies is somewhat less ambitious because it is not necessarily dependent on the achievement of a certain territorial status but may be restricted to the internal reconstruction of the territory ‘in trust’ trough the reform of the local institutions, the protection of human rights and the establishment of formal and informal processes of political participation”. Cf. Stahn, supra note 112, at 31.

158

For a detailed critique of the inconsistent, non-transparent, and exclusive articulation of broad policy goals by UNMIK, its structural tensions with democratic governance, and the lack of judicial review of its actions, see Marshall/Inglis, supra note 134, at 95-146.

159

Wilde, supra note 155, at 552.


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rightfully asserted that in such complex peacekeeping and institution building operations, “[t]he peacekeepers relate to the general population within the country in much the same way that governmental actors relate to the population within a country. This suggests that the international community, in defining the mandate and in the execution of these operations, needs to ensure that the international peacekeepers perform their responsibilities to these private actors to the same extent and in a comparable manner to what would be expected of a national government.”160 External agreements the international administration enters into, are not only attributable to, and bind, the UN Security Council, whose subsidiary organ has signed up on them, but also bind the people and the territory that it purports to represent, and will continue to bind them for as long as the UN assumes the competence of sector-based rule-making in specific policy areas, and as long the local legislature has not acquired such rule-making competency that would enable it to negotiate divergent agreements.161 Though there is a certain need for caution, it could be suggested that the SRSG also acts as organ of the territory under plenary UN administration.162 A non-state territorial entity under international territorial administration would thus enjoy a latent sui generis legal personality arising from functional necessity reflections.163 160

C. Grossmann/D. D. Bradlow, “Are We Being Propelled Towards a People-Centered Transitional Legal Order?”, 9 Am. U. Int’l L. Rev. 1, 21 (1993).

161

See, e.g., UN Doc. S/2000/538, Cooperation Agreement on Cross-Border Economic Issues with fYRoM of 7 March 2000, 6 June 2000.

162

In a similar vein, Ruffert, supra note 86, at 626. A number of writers also seems to agree that, in the discharge of its responsibilities, the UN Council for Namibia appeared to have acted in a dual capacity – as an organ of the UN and as the administering authority for Namibia. This duality of status has been confirmed by GA Res. A/RES/32/9F of 11 November 1977 which stipulated the functions the Council should exercise ‘as an organ of the United nations’ and those it should undertake ‘as the legal Administering Authority for Namibia’. Cf. Osieke, supra note 67, at 193. With reference to East Timor, UNTAET signed a Memorandum of Understanding with the Australian government in 2001 to continue the regime exploiting the resources in the Timor Gap until independence, and “it did so ‘on behalf of East Timor’, and the agreement would seem to be binding between East Timor and Australia, rather than between the United Nations and Australia.” Cf. R. Wilde, “The Complex Role of the Legal Adviser When International Organizations Administer Territory”, 95 ASIL Proceedings 251, 252, No. 6 (2001). Cf. also D. M. Ong, “The Legal Status of the 1999 Australia-Indonesia Timor Gap Treaty Following the End of Indonesia’s Rule in East Timor”, 31 NYIL 67 (2000), particularly the postscript dealing with the MOU, at 123. Similarly, Stahn, supra note 112, at 177.

163

There has hardly been any progress in finding doctrinal consensus on the treatment, under international law, of quasi-governmental authority stuck somewhere in transition somewhere between an international nihil and statehood. The discussion on whether non-state territorial

48


As agent of necessity of a non-state territorial entity, the UN is the only legitimate authority that can enter into status negotiations on behalf of what was once called a ‘non-self-governing people’. Such a ‘horizontal’ agreement between the holders of imperium and of dominium respectively (i.e., UNMIK on behalf of Kosovo and Serbia/ Montenegro), would be the basis upon which the UN Security Council could make a final and vertical status determination, hence resolving the sovereignty puzzle. The endogenous capabilities in Belgrade and Prishtina to initiate a constructive process aimed at a mutually acceptable horizontal agreement on the final status of Kosovo are however strictly limited. As subsidiary organ of the United Nations, the international mission has therefore assumed the role of a mediator, mandated, as it is, to facilitate a political process between the Kosovo provisional institutions and the Serbian government that would yield such a horizontal status agreement. At the outset, these two functions appear incompatible with each other. It seems odd that the UN could be both judge and party in international negotiations. In this case, an ITA would have to simultaneously pursue horizontal and vertical obligations and interests that may be in direct conflict with each other. As an analyst recently suggested, “Kosovo’s governing system is like a Byzantine maze with doors in Prishtina, Belgrade, and the UN. Both the authorities and civilians lose their way in its shadows and turns”.164 The issues confronting the UN at this stage in institution building in Kosovo are indeed a late consequence of the dynamics that had, in the first place, necessitated a vertical imposition of a transfer of effective control from the hands of the sovereign (FRY) to a UN subsidiary organ (UNMIK) in 1999. In the absence of another body competent to issue final deter-minations regarding the future political status of a territory on whose behalf it has assumed agency, the United Nations remain caught in the ‘dual functionality’ trap that makes its role ambivalent. As a result of this dialectic relationship whereby the responsibility ascribed to one actor is undermined by the responsibility ascribed to another,165 an experiment in international political authority may lose the support of those who are subjected to its norms.166 UNMIK’s benchmarking approach to institution building which is devoid and other transitional entities can acquire (derivative) international legal personality based on considerations of functional necessity cannot be entered here in detail. For an account of arguments in favour of (partial) legal personality of de facto regimes cf. M. Schoiswohl, Status and (Human Rights) Obligations of Non-Recognised De Facto Regimes in International Law. The Case of ‘Somaliland’: State Collapse, Secession, Non-Recognition and Human Rights, Dissertation, University of Vienna, at 174 et seq. (2001). 164

F. Nazi, “The Need for Accountability”, 488 IWPR Balkan Crisis Report, 23 March 2004.

165

Wilde, supra note 155, at 256.

166

Echoing a widespread sentiment among the population, Kosovo PM Bajram Rexhepi harshly criticised UNMIK in October 2003 and commented that “being ruled 5,000 miles away in New York is simply not working”, adding that “with no road maps, or political deadlines, or


49

of a more enduring promise of state-building, might turn out to be fundamentally flawed and poised to sustain a zero-sum attitude among the diverse peoples it administers. It certainly is perceived as being unable to unfold its incentive function for both parties in what has been termed a ‘frozen conflict’. As an analyst recently commented, the achievements of a virtuous circle of ‘standards before status’ may easily be jeopardised by a subsequent vicious circle of politicking for final status”.167 The outbreak of ethnic violence in March 2004, premeditated as it might have been, serves a powerful reminder for all those who had naively assumed that institution building and inter-community reconciliation could effectively take place in a sovereignty vacuum, or a stateless state, in which two and more ethnic groups continue to perceive that hostile confrontation and institutionalised boycott could yield a dividend in the future status negotiations. The UN, in its primary capacity as authority-in-trust which may only exercise its power for the benefit of the population whose substantial self-government it is bound to promote,168 may thus forfeit the only source of popular legitimacy it can rely on in the daily governance of a territory.

VI. Coda: A Case Study The following case study, offered on a purely hypothetical level, involves a scenario that synthesises a number of arguments made throughout the article. The assumptions relating to the first part of the scenario are, however, informed by a debate which is very much at the centre of the current Kosovo Albanian political discourse following the first rounds of technical negotiations between Kosovan and Serbian delegations under the auspices of UNMIK. Following a highly emotional debate in the Kosovo Assembly, which was elected into its second term of office in October 2004, on the issue of the continued monopolisation of key competences by the UNMIK interim administration which, according to a caucus leader, “continues to impede opportunities for self-determination by the inhabitants of Kosova”, and the slow progress made in the Council for the Transfer of Competences, a two-third majority of the Assembly members decides to boycott the Provisional Institutions of Self Go-

sense of resolving their unclear international status as a non-state entity, Kosovars are fast losing hope”. See H. Smith, “Angry Kosovars Call on ‘Colonial’ UN Occupying Force to Leave”, The Observer, 19 October 2003, available at http://observer.guardian.co.uk/ international/story/0,6903,1066231,00.html. 167

W. van Meurs, “Kosovo’s Fifth Anniversary – On the Road to Nowhere?”, Center for Applied Policy Research (CAP, Bertelsmann Stiftung), Working Paper, March 2004, 3.

168

Res. 1244 (1999), para 11(a).

50


vernment until “Kosova’s final status is resolved in the interest of its people”. In a co-signed press release, leaders of the three most eminent Kosovo Albanian political parties declare their dissatisfaction with what they regard as an incomplete and slow transfer of powers, particularly in the fields of external relations, law enforcement and security, to the democratically elected Kosovan institutions, and announce a territory-wide referendum on the independence of Kosovo. The Republic of Serbia is predictably terrified by the prospect of an independent Kosovo, and sees its continued claim to territorial sovereignty, reaffirmed by both Resolution 1244 and its new republican Constitution (2003), undermined by what it considers to be an ineffective and pro-Albanian international administration. In a petition to the ICJ,169 the Union of Serbia and Monenegro (SaM) asks the Court to determine whether the sovereignty over the territory of Kosovo and Metohija (KiM) ‘belongs’ to SaM and whether it is entitled to re-establish effective control following a threat to its sovereignty in the guise of a popular consultation that the UN organ appears unable to defuse. The second question raised by SaM concerns the intended transfer of its sovereignty title in case it is not be permitted to re-establish effective control over KiM. SaM submits that it would, in this case, enter into preliminary dis-cussions with the government of Albania with the aim of immediately transferring the sovereignty over the territory to it, notwithstanding UNMIK’s continued exercise of effective control and mandate laid down in Resolution 1244. Following an immediate response from the UN Security Council declaring the outcome of a future referendum null and void, 84 percent of Kosovo’s eligible population seem to have embraced the referendum – unsupervised as it was, by the international community. In an urgently convened meeting, the Contact Group confirms that it will not recognise any moves to establish unilaterally, or in an arrangement that does not have the backing of the international community, political arrangements for whole or part of Kosovo. Rejecting the call from the government of SaM to end the UN, UNMIK affirms that it continues to implement Resolution 1244 by building local institutions until a political solution to Kosovo’s final status will be agreed upon. In the

169

While underscoring the hypothetical nature of the case, it should also be kept in mind that only the UN General Assembly and the SC can request the ICJ to give an Advisory Opinion on “any legal question” (Art. 96(1) UN Charter) pertaining to “other organs of the UN and specialized agencies”. De lege lata, Member States or third parties external to the United Nations have no right to request an advisory opinion of the ICJ. Further, the ICJ has no power of judicial review of decisions of UN organs. Cf. K. Zemanek, “Is the Security Council the Sole Judge of Its Own Legality?”, in E. Yakpo/T. Boumedra (eds.), Liber Amicorum – Mohammed Bedjaoui 629, 631 (1999).


51

same vein, UNMIK dismisses SaM’s intention to engage with Albania in preliminary talks on the cession of sovereignty over Kosovo in what it calls an “irresponsible and cynical ploy”. In a written reply to the ICJ, the UN Legal Adviser asserts that the transfer of sovereign rights was “inconceivable since Kosovo was placed under an international administration which limits SaM´s ability of disposition in accordance with the principle of nemo plus iuris (ad alium) transferre potest, quam ipse habet.”170

In what might be easily dismissed as a purely hypothetical case, a number of features can be detected that render the notion of an internationalized territory more concrete and embedded in a context of international norms that continue to govern the traditio of effective control over territory. Drawing together the threads that were laid out through the article, one could evaluate the case in light of the following propositions: 1. The sovereign claim to the territory of Kosovo has not been ceded, conveyed or transferred to the United Nations by Resolution 1244. Rather, the sovereign title of SaM (dominium) has been re-affirmed by the Resolution which transfers the rights, powers and authority within the territory to UNMiK, implying the entire exclusion of the exercise of such rights by SaM. Based on Resolution 1244, UNMIK Regulation 1/1999 confers full jurisdiction over Kosovo (imperium) to UNMIK. 2. The transfer of imperium to an international territorial administration, a UN subsidiary organ, was based on Chapter VII, and as such bars the exercise of any competence with reference to the territory of Kosovo (for example with respect to internal boundaries171) by the FRY (SaM) during UNMIK’s presence. 3. Notwithstanding its administration by a UN Security Council-mandated organ, Kosovo has not ceased to be part of SaM. The latter has been obliged to accept important restrictions to the exercise of its sovereign rights over Kosovo. SaM, however, remains the titular sovereign, its claim reduced to a nudum jus. A practical consequence of the sovereign’s interest in such a case is his continuing right of disposition, a significant proprietary right. The existence of such residual sovereign title includes SaM’s ability to carry out an act of disposition, such as the cession of its sovereign rights to Albania. 4. The Union of SaM can thus exercise its right to dispose of the territory by virtue of its bare title qua titular sovereignty, for the benefit of another entity. Albania would acquire a title over territory, which is similarly reduced to a nudum jus, comparable to the acquisition of a territory with a servitude

170

H. Hausmaninger/W. Selb, Römisches Privatrecht 210 (1991).

171

Ruffert, supra note 86, at 620.

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or restriction in the interest of another administering entity.172 Albania must accept the United Nation’s imperium as a limitation to its exercise of effective control in accordance with Resolution 1244.173 The transfer of dominium would neither affect the status of Kosovo as effectively controlled by UNMIK, nor Kosovo’s internal power-sharing agreements with the Provisional Institutions of Self Government. In case such transfer is envisaged, the states involved are arguably duty-bound to ascertain the wishes of the populations concerned, by means of a referendum, or by any other apprpriate means that ensure a genuine expression of will.174

172

Adopted from A. Verdross/B. Simma, Universelles Völkerrecht. Theorie und Praxis 657 (1984).

173

Adopted from the Lighthouses in Crete and Samos case, in which the PCIJ held that in 1913 the islands of Crete and Samos were under the sovereignty of Turkey, which therefore had the power to grant or renew concessions with regard to the islands. Though autonomous, Crete had not ceased to be part of the Ottoman Empire. Even though the Sultan had to accept restrictions to the exercise of his sovereign rights, “sovereignty had not ceased to belong to him”, Lighthouses in Crete and Samos (France v. Greece), Judgment of 8 October 1937, PCIJ Ser. A/cB, No. 71, at 103.

174

Cf. Judge Dillard who stated in his separate opinion in the Western Sahara case that “it is for the people to determine the destiny of the territory and not the territory the destiny of the people” (ICJ Reports 1995, at 122).

Rights, Rules and Democracy in the EU Enlargement Process

53

Rights, Rules and Democracy in the EU Enlargement Process: Between Universalism and Identity Päivi Leino*

I.

The Paradoxes of Enlargement

The Copenhagen Summit of the European Council in December 2002 was concluded by giving a declaration on “One Europe”, signed by the current Member States and the States invited to join in 2004: Today is a great moment for Europe. […] Our common wish is to make Europe a continent of democracy, freedom, peace and progress. The Union will remain determined to avoid new dividing lines in Europe and to promote stability and prosperity within and beyond the new borders of the Union. […] Our aim is one Europe.1

In October 2002 the Commission had recommended the conclusion of the accession negotiations with Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia by the end of 2002 and to sign the Accession Treaty in spring 2003.2 The European Council confirmed in December 2002 that the “Union now looks forward to welcoming these States as members from 1 May 2004”.3 *

Department of Public Law and the Erik Castrén Institute of International Law and Human Rights, University of Helsinki. I wish to thank Martti Koskenniemi, Marise Cremona, Jan Klabbers, Christophe Hillion and Karen E. Smith for their advice and help.

1

Declaration on “One Europe”, adopted in Copenhagen, 13 December 2002, SN 369/02.

2

“Towards the Enlarged Union”, Strategy Paper and Report of the European Commission on the progress towards accession by each of the candidate countries, Brussels, 9.10.2002, COM (2002) 700 final, 33. The accession treaties were approved by the European Parliament on 9 April 2003 and signed in Athens on 16 April 2003.

3

Presidency Conclusions, Copenhagen European Council 12 and 13 December 2002, SN 400/02, para. 3. The Commission judged that while Bulgaria and Romania met the political criteria, they did not “fully meet, to various extents, the economic and the acquis criteria” while Turkey did not fully meet any of the criteria. “Towards the Enlarged Union”, supra note 2, at 21. The Copenhagen European Council (2002) confirmed the Union objective “to


54


The approaching enlargement is the fifth of the Community/Union.4 But it is the first enlargement that clearly involves the question concerning European identity: whether Europe means those already in the Union, Europe in a wider perspective, from the Atlantic to the Urals, or something else.5 No previous enlargement has focused on so many and such a diversity of countries that are so dramatically different from the current EU in political and economic terms.6 Nonetheless, integration with Central and Eastern Europe Countries (CEECs) has been much justified with reference to these states being ‘one of us’. Smith describes how the ‘European identity’ of the Eastern European states could not be disputed, especially as they implemented political and economic reforms along Western lines. The option of actually denying membership to the East European countries was never considered seriously in the Community.7

But there was also a problem: after 50 years of Communism, the CEECs were in many ways different from the current Member States. Many of the qualities that were now seen characteristic of a “European” state were absent, such as independent media, functioning judiciary and a sufficient level of protection of fundamental rights in

welcome Bulgaria and Romania as members of the European Union in 2007”. As for Turkey, the Commission will prepare a report on its progress for the European Council meeting in December 2004, which the European Council will use as a basis for deciding whether Turkey fulfils the accession criteria. If it answers in the positive, the EU “will open accession negotiations with Turkey without delay” (paras. 14 and 19 of the Presidency Conclusions). Turkey has formally been a Candidate State since the Helsinki European Council. See the Presidency Conclusions of the Helsinki European Council, 10 and 11 December 1999, para. 12. 4

Denmark, Ireland and the UK (1973); Greece (1981); Portugal and Spain (1986); Austria, Finland and Sweden (1995). The 1995 enlargement, which took place after the 1993 Copenhagen summit, to three former EEA states Austria, Finland and Sweden was realised through a rather simple accession process, mainly due to the relative and the relatively balanced prosperity of these states and the fact that they had been participating fully in the single market through the EEA Agreement already before EU membership. See D. Booss/J. Forman, “Enlargement: Legal and Procedural Aspects”, 32 Common Market Law Review 95, at 129 (1995).

5

On this, see W. Graf Vitzthum, „Die Identität Europas“, 27 Europarecht 1 (2002). On the limits of ‘Europe’, see also V. Fritz, “New Divisions in Europe? East-Eastern Divergence and the Case of Ukraine”, EUI Working Papers RSC No. 2000/63.

6

K. Inglis, “The Europe Agreements Compared in Light of Their Pre-Accession Reorientation”, 37 Common Market Law Review 1173, at 1176 (2000).

7

K. E. Smith, The Making of EU Foreign Policy – The Case of Eastern Europe 108 (1999).


55

general. However, if the CEECs were regarded as ‘European’ and thus fulfilling the most fundamental membership criterion, there was ultimately no valid reason to keep them outside the Union, especially when these States soon expressed their wish to be included.8 In 1993, the Copenhagen European Council declared that “the associated countries in central and eastern Europe that so desire shall become members of the European Union” as soon as these states would be “able to assume the obligations of membership by satisfying the economic and political conditions required”. As is well-known, the Copenhagen criteria were specified as follows: Stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities; The existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union; The ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union.9

While all these criteria are undoubtedly of a political character, it is the first ones relating to institutions that are today known as the Copenhagen “political criteria” and have provoked most discussion. The following will concentrate on them. The basic paradox behind the enlargement criteria is this. The criteria can in principle be established so as to be indeterminate or determinate; open-ended or controlling.

8

Hungary and Poland (applied in March and April 1994) were followed in 1995 by several States: Romania, Slovakia, Latvia and Estonia (June, October and November 1995), Lithuania and Bulgaria (December 1995), the Czech Republic and Slovenia (January and June 1996). The current EU applicants also include Turkey, Cyprus and Malta, which applied in April 1987, July 1990 and July 1990 (but withdrawn, restored in 1998) respectively. An application by Morocco (1987) was rejected on the grounds of its non-European status.

9

See Copenhagen European Council, Presidency Conclusions, Bull. EC No. 6/1993, at 7, also available at http://europarl.eu.int/enlargement/ec/cop_en.htm.

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BASIC PARADOX Indeterminate

Determinate Positive

Open-ended

Controlling

Manipulable

Exclusive

Negative

If the final objective of the enlargement process is to be as inclusive as possible, thus enabling widening to the highest achievable number of states, then the criteria necessarily needs to be as indeterminate and open-ended as possible. But at the same time, indeterminate criteria provide little or no control, include little by means of direction or standards, and as a result are easy to manipulate. This is because openended standards leave much discretion for those in administrative and decisionmaking positions. In other words, the more indeterminate the standards are, the more the Commission (or whoever is applying the standards) will have political discretion to say whether some State does (or does not) fulfil them. Such discretion may have positive or negative consequences. On the positive side is flexibility: open-ended standards make it possible to take account of the special situation of a particular State. On the negative side is the making of political bargains that have nothing to do with the actual standards or the objectives they were thought to serve. However, if the objective were to have as determinate criteria as possible so as to exclude the possibility of manipulation, implementing the criteria would require excluding many of the Candidates, as implementing a strict set of standards would necessitate the conclusion that the criteria are not met. Therefore, the more you try to avoid the risk of manipulation and prefer control, the more exclusion is the actual end-result. On the other hand, the more inclusion you wish to attain, the more openendedness and danger of manipulation you get. Therefore, the “principle of a Union open to European States”10 is fundamentally incompatible with the idea of making

10

See the Conclusions of the Presidency at the European Council in Lisbon, 26 and 27 June 1992, Section on Enlargement, para. A.


57

the enlargement conditional on the strict fulfilment of certain well-defined criteria. Out of the Copenhagen declaration (1993) developed a perception of the EU as the key-player in the “re-unification or re-creation of Europe” and that the “European Union could, and even should, be open to the inclusion of the whole of Europe”.11 This was because the Community had never been a closed club, and cannot now refuse the historical challenge to assume its continental responsibilities and contribute to the development of a political and economic order for the whole of Europe.12

As a result, the importance of defining ‘Europe’ and its limits became necessary. While implementing extensive conditionality beyond the borders of ‘Europe’ and thus trespassing outside its limits could be characterised as imperialism, staying within them only entailed implementing the right to self-determination and identity. Therefore, finding a definition for ‘Europe’ was crucial, as it formed the borderline between the two. This delimitation of identity would then draw the line between those to be included and those to be left outside ‘Europe’.

II. What Are the Limits of Europe? The requirement of Member States being European has been included in the Treaty from the very beginning. It occupies a fundamental place in the body of accession principles, even if it was intentionally left ambiguous what was actually meant by ‘European’.13 In 1992 it was, in the Commission’s view, “neither possible nor opportune” to establish the frontiers of the future European Union: It combines geographical, historical and cultural elements which all contribute to the European identity. The shared experience of proximity, ideas, values and historical interaction cannot be condensed into a simple formula, and is subject to review by each succeeding generation.14

11

M. Cremona, “Accession to the European Union: Membership Conditionality and Accession Criteria”, in W. Czaplinski (ed.), Poland’s Way to the European Union: Legal Aspects, Polish Yearbook of International Law (forthcoming 2002).

12

“Europe and the challenge of enlargement”, Bull. EC, Supplement 3/92, Section on “The new context”, at 9-10.

13

See C. Hillion, “Enlargement of the European Union: A Legal Analysis”, in A. Arnull/ D. Wincott (eds.), Accountability and Legitimacy in the European Union 401, 403 (2000).

14

“Europe and the challenge of enlargement”, Bull. EC, Supplement 3/92, Section on “Conditions for new members”, at 11.

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The 1990’s idea was to bring together the peoples that shared the mythic construction of Europe in terms of ‘common values’, a ‘common heritage and culture’, even a ‘common destiny’.15 Common values were sufficiently indeterminate to serve as a justification for enlargement in an environment where it would have been politically incorrect to argue that the CEECs were not sufficiently European for inclusion.16 The reference to values was also useful to counter the claims of those who argued that enlargement eastwards was basically about economics17 - with both positive and negative connotations. But if identity is presumed to be based on common values, then new problems of definition emerge: what are these values? Even if those values could be clearly delimited and defined, that would lead into another problem. Identity is premised on the distinction ‘we’ and ‘they’ (or ‘the others’). If ‘we’ is defined by reference to clear and unambiguous ‘good’ values, then ‘they’ are relegated into vehicle of antivalues, of ‘bad’ values. Therefore, the clearer the value-connection of European identity, the sharper is the dichotomy between Europe and that which is outside. For the Community, through the cold war, the Soviet Union had represented the ‘other’, while East Europeans had been ‘one of us’.18 Today, Turkey forms perhaps the most

15

A. Williams, “Enlargement of the Union and human rights conditionality: a policy of distinction?”, 25 European Law Review 601, at 604 (2000).

16

The value aspect is also included in the Association agreements with the CEECs, which recognise the “common values that [the Community, its Member States and the Applicant State] share”. See, e.g., the preamble to the Europe Agreement with the Czech Republic, published in OJ L 360, 31 December 1994, 0002-0210.

17

See, e.g., J. Zielonka, “Policies without Strategy: the EU’s Record in Eastern Europe”, in J. Zielonka (ed.), Paradoxes of European Foreign Policy 131, at 135 (1998).

18

H. Sjursen, “Why Expand? The Question of Legitimacy and Justification in the EU’s Enlargement Policy”, 40 Journal of Common Market Studies 491, at 505-506 (2002). This has also applied to the Baltic States, which, after all, were part of the Soviet Union. On the Baltic States, see P. Van Elsuwege, “The Baltic States on the Road to EU Accession: Opportunities and Challenges”, 7 European Foreign Affairs Review 171 (2002). For Van Elsuwege it is, in fact, difficult to see why the Baltic States were classified as Central and Eastern European countries on the road to EU accession and not as former Soviet republics, for which the EU offered far less elaborated links. For Müller-Graff, there appeared to be a dividing line among the former Soviet Republics, which “seems to evolve as a result of the interests of the individual East European States on one side, and the Union’s own perception of its basic political character, in terms of values, current situation and capacities, on the other”. See P.-C. Müller-Graff, “The Legal Framework for the Enlargement of the Internal Market to Central and Eastern Europe”, 6 Maastricht Journal of European and Comparative Law 2192, at 194 (1999).


59

acute question of delimitation, and value-based assumptions about who is European and who is not have been central for the accession strategy defined for Turkey.19 While Turkey is an important neighbour, ‘reunifying Europe’ does not include enlarging to Turkey, and while history works in favour of Central and Eastern Europe, it works against Turkey: Turkey is not one of ‘us’. Instead, its main benefits are seen to lie in the field of security,20 as a result of which “no-one can seriously doubt that Turkey’s future must be in the Union”.21 Values therefore appear to be the answer to the question, what is Europe? But values are notoriously indeterminate: they are open-ended and their open-endedness makes them occasionally manipulable to suit the political decision-maker.22 At best, values can hint a direction, but they cannot control political discretion or provide detailed contents for a policy. Therefore, the reference to values is an example of how indeterminacy allows Europe to remain open to new members, but brings with it problems of definition. At the same time, however, a more determinate approach would lead to exclusion. The same applies to identity: if it is determinate, it is also exclusive; leading to a clear line being drawn between ‘us’ and ‘others’, which is not acceptable. Therefore Europe must remain open, and thus indeterminate. This does not mean that there would have been no attempts to define what the ‘common European values’ are. This was examined, for example, in 2000, when the fourteen other Member States placed Austria under diplomatic sanctions after the inclusion of the Freedom Party, known for its xenophobic campaigning, into its government.23 As a means of finding a way out of the awkward situation, ‘three wise men’ were asked to report on the Austrian Government’s commitment to the “common European values”.24 The final Report referred to some 19

See H. Sjursen/K. E. Smith, “Justifying EU Foreign Policy: The Logics Underpinning EU Enlargement”, ARENA Working Paper no 1, 25 (January 2001).

20

Sjursen, supra note 18, at 503-504.

21

“Editorial Comments”, 38 Common Market Law Review 1335 (2001).

22

See P. Leino, “A European Approach to Human Rights? Universality Explored”, 4 Nordic Journal of International Law 455 (2002).

23

Art. 7 TEU empowers the Council to “determine the existence of a serious and persistent breach by a Member State of principles mentioned in Art. 6(1)”. Following this decision, certain of the membership rights of a Member State may be suspended including its voting rights in the Council. Art. 6(1) TEU, in its turn, identifies the principles upon which the EU is founded. These include “the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States”.

24

On this, see, e.g., M. Hofstötter, “Suspension of Rights by International Organisations: The European Union, the European Communities and other International Organisations”, in V. Kronenberger (ed.), The EU and the International Legal Order: Discord or Harmony?,

60


legally binding but also non-binding documents which enshrine the positive obligation of European States to protect and promote human rights and fundamental freedoms, pluralist democracy and the rule of law.25

This corresponds to a classical vision, regarding commitment to fundamental human rights as an ideal that unifies the peoples of Europe.26 Most frequently, the reference to values and identity seems to be regarded as more or less synonymous with human rights (including the rights of minorities), democracy and the rule of law,27 the same concepts that form the political Copenhagen EU membership criteria. They are also included in Article 6(1) TEU enumerating the principles upon which the Union is founded28 and figure among “the Union’s values” as formulated by the Convention drafting a Constitutional Treaty for the Union.29 However, somewhat problematically,

47-52 (2001); M. Merlingen/C. Mudde/U. Sedelmeier, “The Right and the Righteous? European Norms, Domestic Politics and the Sanctions Against Austria”, 39 Journal of Common Market Studies 59 (2001); M. Happold, “Fourteen against One: The EU Member States’ Response to Freedom Party Participation in the Austrian Government”, 49 International and Comparative Law Quarterly 953 (2000). 25

Report by M. Ahtisaari/J. A. Frowein/M. Oreja, adopted in Paris on 8 September 2000. The report can be found at http://www.mpiv-hd.mpg.de/de/Bericht-EU/report.pdf, 3. According to the Report, Austria was in line with the common values requirements. The measures taken by the fourteen other Member States had, however, “hightened awareness of the importance of the common European values, not only in Austria, but also in other Member States”. Ibid., at 33.

26

See, e.g., J. H. H. Weiler, “Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights”, in N. A. Neuwahl/A. Rosas (eds.), The European Union and Human Rights 51, at 51 (1995).

27

For an early reference, see the “Declaration on European Identity”, adopted by the Copenhagen European Council on 13-14 December, 1973; Bull. EC, 12-1973, at 118-122, which in addition refers to the common market, institutions, common policies and machinery as building blocks of “European identity”. For differing accounts see, e.g., K. Lenaerts/ M. Desomer, “Bricks for a Constitutional Treaty of the European Union: values, objectives and means”, 27 European Law Review 377, at 379-380 (2002); J. Richardson, “The European Union in the World – A Community of Values”, in 26 Fordham International Law Journal 12, esp. at 14 (2002).

28

See supra note 23.

29

See Draft of Arts. 1 to 16 of the Constitutional Treaty, Art. 2, according to which “[t]he Union is founded on the values of respect for human dignity, liberty, democracy, the rule of law and respect for human rights, values which are common to the Member States. Its aim is a society at peace, through the practice of tolerance, justice and solidarity”. Brussels, 6 February 2003, CONV 528/03.


61

these values are also believed to be ‘universal’.30 But if human rights, democracy and the rule of law are universal and as such belong equally to everyone, then Europe can hardly base its own identity on them, keeping in mind that identity is by definition something that should draw a line between ‘us’ and ‘the others’.31 Or alternatively, European identity turns expansive and explains Europe as the defender of values that are shared by all: though the values are indeed universal, Europe received them first. Thus, it is Europe’s special task (“white man’s burden”) to spread those values (because they are not really Europe’s, but universal) elsewhere in the world. In 1986, the European University Institute published the findings of a project entitled “Integration Through Law”. The project saw the question of common values protected by the legal system as unavoidable, “if the process of integration is to continue towards the creation of a union to which all citizens feel a common allegiance”.32 Law and the legal system were approached as the primary instruments for controlling social relationships, because Within any given system the relationships among individuals, the definition of their status and rights, the consequences and implications of their actions, the mechanisms for reaching collective decisions and for the execution thereof, are often influenced, and at times governed, by the law, frequently implemented by the legal system and usually enforced by its institutions.33

But besides the role of law, the relevance of two other considerations, namely the status and rights of individuals and the mechanisms for reaching collective decisions, i.e. the triangle constituted by law – fundamental rights – democracy is underlined. These features also measure the success of a legal system: [C]ompliance is obtained by securing the subjects’ confidence in the system, principally […] by allowing the subjects to participate both in the selection of

30

See, e.g., the Preamble to the Charter of Fundamental Rights of the European Union, adopted on 7 December 2000 as a political declaration, according to which “conscious of its spiritual and moral heritage, the Union is based on indivisible and universal values”.

31

See P. Leino, “All Dressed Up and Nowhere to Go: The Debate on the EU Charter of Fundamental Rights”, XI Finnish Yearbook of International Law 37, esp. at 77-81 (2000).

32

J. A. Frowein/S. Schulhofer/M. Shapiro: “The Protection of Fundamental Human Rights as a Vechile of Integration”, in M. Cappelletti/M. Seccombe/J. H. H. Weiler (eds.), Integration Through Law. Europe and the American Federal Experience, Vol. 1 Methods, Tools and Institutions, Book 3, Forces and Potential for a European Identity, 231 (1986).

33

M. Cappelletti/M. Seccombe/J. H. H. Weiler, “Integration Through Law: Europe and the American Federal Experience. A General Introduction”, in M. Cappelletti/M. Seccombe/ J. H. H. Weiler (eds.), Integration Through Law. Europe and the American Federal Experience, Vol. 1 Methods, Tools and Institutions, Book 1, A Political, Legal and Economic Overview, 4 (1986).

62


the form of government and in the law-making process and by assuring through procedural means that substantially the laws reflect or satisfy the common values of the society.34

In a corresponding way, and irrespective of the indeterminacy of values, reference has been made to them as something that controls integration by way of giving it a direction and contents. The following quote is from the Conclusions of the Tampere European Council in October 1999: From its very beginning European integration has been firmly rooted in a shared commitment to freedom based on human rights, democratic institutions and the rule of law. These common values have proved necessary for securing peace and developing prosperity in the European Union. They will also serve as a cornerstone for the enlarging Union.35

In practice, the Copenhagen criteria have required wide-reaching reforms in order to establish the necessary institutional infrastructure to manage membership and to enable participation in Union decision-making and implementation processes. To this extent, therefore, the criteria are not only about establishing ‘values’ as membership criteria, but also about setting “conditions without which membership in a highly complex regional organisation is not a viable proposition”.36 As a result therefore, since the early 1990’s, EU membership has become a significant instrument promoting economic, political and legal change and good neighbourly behaviour.37 Let us now examine the play of manipulability and exclusion; indeterminacy and determinacy in the context of the forthcoming EU enlargement by reference to the values by which Europe is most commonly identified, the ideas of human rights, the rule of law and the principle of democracy.

34

Ibid., at 25-26. But for the establishment of a “European identity”, they identified five central areas of integration. These were the external posture of the polity, movement of persons and goods, transnational protection of human rights and the realms of education and culture. Ibid., at 44-45.

35

See the Presidency Conclusions, Tampere European Council 15 and 16 October 1999, “Towards a Union of Freedom, Security and Justice: The Tampere Milestones”, para. 1.

36

On this point and the requirement of respect for the rule of law in general, see M. Cremona, “Regional Integration and the Rule of Law: Some Issues and Options”, Paper presented at the Conference on Regional Integration and Trade in the Development Agenda organised by Integration and Regional Programs Department, Inter-American Development Bank, 18 (31 May-1 June 2001).

37

Cremona, supra note 11. See also Smith, supra note 7, at 164.


63

III. Human Rights The EU human rights doctrine is in general relatively unconventional.38 It is built on the ‘constitutional traditions common to the Member States’, as the European Court of Justice (ECJ) has repeatedly argued.39 According to the ECJ, it cannot “uphold measures which are incompatible with fundamental rights recognised and protected by the Constitutions of those States”.40 However, the Court’s case law has highlighted the extent to which fundamental rights function in the context of economic interests and the objective of establishing a common market. For the ECJ, fundamental rights are not absolute: “Within the Community legal order it likewise seems legitimate that these rights should, if necessary, be subject to certain limits justified by the overall objectives pursued by the Community, on condition that the substance of those rights is left untouched”.41 Later the Court clarified that it referred in particular to the “social function” of rights: “restrictions may be imposed on the exercise of those rights, in particular in the context of a common organisation of a market, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights”.42 This approach, the lack of general human rights competence and binding human rights treaty obligations has resulted in a well-known illogicality, namely that were the EC to apply for membership of the EU, it would necessarily fail to satisfy the political criteria. As a result, the Applicant States’ human rights record has been followed more closely now than it will after they achieve full membership. It can also be assumed that there is a difference between the application of fundamental rights as a general principle of Community law and human rights as applied directly to States in the context of the Copenhagen criteria. But at the same time, protecting human rights has also become a “joined legal and political imperative” in the Union

38

See Leino, supra note 31.

39

Case 11/70 Internationale Handelsgesellschaft v. Einfuhr-und Vorratsstelle Getreide, 1970 ECR 1125, paras. 3-4. There are, however, limits to the influence of these traditions, as “the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs contrary to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure”. Ibid. The Charter of Fundamental Rights adopted in 2000 does not amend the position of fundamental rights in the Union; see Leino, supra note 31.

40

Case 3/73, Nold v. Commission, 1974 ECR 491, para. 13.

41

Ibid., at para. 14. Emphasis added.

42

Case 5/88, H. Wachauf v Germany, 1989 ECR 2609, para. 18. Emphasis added.

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legal order.43 In the background is the vision of human rights as an integrational value and instrument, as basic freedoms have been considered to constitute one of the elements that give a sense of identity for a particular society and its members.44 The reference to human rights and democracy in the enlargement context was already present when the Community widened to Greece, Portugal and Spain. Also then, enlargement was partly justified with reference to consolidating democracy and stability.45 In the context of the forthcoming enlargement, the raison d’être of the human rights criteria has been explained as bringing the Candidates into line with existing standards and dealing with their problems prior to entry, which would make the scheme objectionable.46 For the EU, human rights have been fundamentally “not negotiable”47, because All our decisions are debated and negotiated within the framework of our shared values and common policies. […] It is the common values, which underlie them, that are not negotiable. The values of democracy, respect for human rights and respect for minorities, are not negotiable. Our respect for, and commitment to, market economy are not negotiable either. Our common policies are, of course, negotiable because they do not constitute universal values.48

43

Weiler, supra note 26, at 57.

44

J. H. H. Weiler, “Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Rights within the Legal Order of the European Communities”, 61 Washington Law Review 1103, at 1108 (1986).

45

See G. Burghardt/F. Cameron, “The Next Enlargement of the European Union”, 2 European Foreign Affairs Review 7 (1997). Albi points out, however, that the Southern enlargement states were allowed considerable compromises, and the consolidation of democracy was expected to take place only after EU membership. See A. Albi, “Europe Agreements in the Light of Sovereignty and Legitimacy: The Case of Estonia”, in A. E. Kellermann et al. (eds.), EU Enlargement: The Constitutional Impact at EU and National Level, 195, at 203 (2001). At that time, reference was explicitly made to two requirements: being a European State and a “form of constitution […] of a pluralistic democracy whose structure guarantees representation of the various political opinions and also the procedures necessary for the protection of human rights”. See the arguments of the Commission in Case 93/78 L. M. v Doego Fruchtimport und Tiefkühlkost eG, 1978 ECR 2203, at 2207-2208.

46

For this argument and a critique, see A. Williams, supra note 15, at 610.

47

See the European Parliament res. on the enlargement of the European Union, B5-0538/ 2001.

48

A. Diamantopoulou, European Commissioner responsible for employment and social affairs, ‘The European Social Model and Enlargement’, seminar speech, Istanbul 23 June 2000, SPEECH/00/235, 2.


65

However, the general problem with the human rights criterion emerges as soon as one looks at the Commission’s annual Progress Reports in which the human rights records of the Applicant States have been analysed: severe human rights problems persist.49 While the general human rights situation in Cyprus and Malta seems to correspond to that in the current Member States in most respects,50 most CEECs51 have enduring problems in several areas, including poor prison conditions, police violence and lengthy pre-detention periods. Corruption and trafficking in women and children seem to be increasing.52 Concerning the rights of women, some level of gender inequality and lack of equal opportunities seem to be the rule.53 Romania and Slovakia, on the other hand, appear to suffer from a variety of problems in almost all areas and have sometimes failed to satisfy the political Copenhagen criteria.54 As late as in 1995, the European Parliament adopted resolutions concerning the state of human rights in both countries.55 In the 1980s, Bulgaria’s campaign of forced assimilation of its estimated 800,000 ethnic Turks and Romania’s mistreatment of minorities, and planned destruction of thousands of villages inhabited by ethnic Hungarians received

49

The Progress Reports can be found on the Commission enlargement website, http://www. europa.eu.int/comm/enlargement/docs/index.htm.

50

Except for the problems in Cyprus concerning the division of the island, which make it politically unstable. See also the Conclusions of the 2003 Copenhagen European Council, which confirm that “Cyprus will be admitted as a New Member State to the European Union”, even if the “European Council confirms its strong preference for accession to the European Union by a united Cyprus”. Presidency Conclusions, Copenhagen European Council, 12 and 13 December 2003, SN 400/02, para. 10.

51

These states include Estonia, Latvia, Hungary, Poland, the Czech Republic and Bulgaria. The situation in Lithuania seems to be somewhat better. Based on the Commission Reports, Slovenia seems to have a remarkably good human rights record.

52

These problems are not always mentioned in the first reports but are mentioned in 2000 and 2001 with respect to most CEECs.

53

Rittich makes the argument that on the whole; the transition in the CEECs has affected the position of women in adverse ways, undermining the desirability of the distributive effects of the program as a whole. See K. Rittich, Recharacterizing Restructuring. Law, Distribution and Gender in Market Reform, especially at 171-261 and 283-291 (2002).

54

In particular, Slovakia’s treatment of minorities has in recent years been frequently remarked upon in European press due to the mass immigration of its Roma population to several EU member states. See Commission Progress Reports on Slovakia 1999, 2000.

55

See Res. on the need to respect human and democratic rights in the Slovak Republic, B41366, 1381, 1379 and 1412/95; Res. on the protection of minority rights and human rights in Romania, B4-1025/95.

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international attention.56 Both countries do, according to the Commission, now satisfy the criteria. Whereas the implementation of minority rights is at least sufficient in many Applicant States, in some others problems have persisted and reforms have caused resentment against minorities, as Liebich notes, especially if the majority has considered them as profiting more (or suffering less) from the transition. This has been particularly relevant for the Roma, which form “by all accounts the most miserable social and ethnic group in the area and the overall situation of which has deteriorated since the social safety net of communism disappeared”. In many countries, the Roma minority has become the focus of social frustration,57 sometimes facing direct harassment and violence and often suffering from high levels of illiteracy and unemployment, leading to poverty. The October 2002 Commission recommendation that 10 new Member States should be allowed to enter the Union in 200458 was anticipated. Despite the observed problems, the Commission concluded that all the presently negotiating candidates continued to meet the Copenhagen political criteria.59 However, the Commission approach has in general been criticised for being superficial and relating more to the de jure than the de facto situation with the possible exception of the chapters on the protection of minorities.60 Variations in the Commission’s evaluation of the measures taken to fulfil the political criteria appear to be related to changes of government in the Applicant State and the new government’s political declarations, as the cases of

56

This provoked both the CSCE and the EC Council to take measures. Smith, supra note 7, 60-61; P. R. Baehr, “Human Rights: A Change in Performance”, in R. J. Hill/J. Zielonka: Restructuring Eastern Europe – Towards a New European Order 185, at 190 (1990).

57

A. Liebich, “Ethnic Minorities and Long-Term Implications of EU Enlargement”, EUI Working Papers, RSC No. 98/49, 6-7. According to Commission figures, 44% of the population belong to a minority in Latvia (where 34% are Russian), 38% in Estonia (30% Russian), 20% in Lithuania (9% Russian, 7% Polish), 18% in Slovakia (11% Hungarian, 5% Roma), 14% in Bulgaria (9% Turks, 5% Roma) and 13% in Romania (8% Hungarian, 4% Roma). See Agenda 2000, “For a Stronger and Wider Union”, Document drawn up on the basis of COM(97) 2000 final, Bull. EU, Supplement 5/97, Vol. I, Part Two “The Challenge of Enlargement”, Sect. I Assessment on the basis of the accession criteria.

58

“Towards the Enlarged Union”, supra note 2.

59

Ibid., at 13-14.

60

M. Nowak, “Human Rights ‘Conditionality’ in Relation to, and Full Participation in, the EU”, in P. Alston et al. (eds.), The EU and Human Rights 687, at 691 (1999). See also G. Pentassuglia, “The EU and the Protection of Minorities: The Case of Eastern Europe”, 12 European Journal of International Law 3, at 11-12 (2001).


67

Slovakia and Romania seem to prove, rather than actual progress.61 Thus, changes in Commission approach can often be traced back to its willingness to create a better relationship with the new government and demonstrate support. Therefore, several observers have wondered what the ‘standard’ is that has been used to measure the Applicant States’ progress; whether it is internal standards implemented by the existing Member States or whether it is some external standard based on international human rights.62 For example, concerning the rights of minorities, It is hard to escape the impression that, in spite of its importance, the Commission’s analysis is conducted on a case-by-case basis due to an absence of clearly established, objective evaluation criteria.63

But instead of being the problem, this is the point of having open-ended criteria. Because there are no clear standards, the criteria can be interpreted so as to support many political objectives. Therefore, it seemed pointless for Amnesty International to declare in 1997: “Human rights must feature in the accession negotiations.”64 Human rights were there from the start – the only problem was that nobody had a clear view of what they meant. Opposing the Commission view that respect for fundamental rights is in principle guaranteed in most of the Applicant States65, Amnesty was “of a more nuanced opinion”.66 In its view, Candidate Countries should have been requested to make clear commitments in order to improve their human rights situation.67 But

61

In Romania a direction to nationalistic and racist policies was taken in 1994 and 1995, but relations improved when new reformist government took office in November 1996. With Slovakia, the Community’s bad relationship came to surface during the Merciar government, but when new reformist government came to power in 1998, the relationship improved. See K. E. Smith, “The Conditional Offer of Membership as an Instrument of EU Foreign Policy: Reshaping Europe in the EU’s Image”, 8 Marmara Journal of European Studies 33, 39-40 (2000).

62

Pentassuglia, “The EU and the Protection of Minorities: The Case of Eastern Europe”, supra note 60, at 23.

63

Ibid. See also Monitoring the EU Accession Process: Minority Protection, report issued by the Open Society Institute, 2002.

64

Amnesty International, European Union Association: “European Union Enlargement to Central and Eastern European Countries: Human Rights Must Feature in the Accession Negotiations”, RAC 09/97.

65

Agenda 2000, supra note 57, at 53 and 41.

66

Amnesty International, European Union Association: “European Union Enlargement to Central and Eastern European Countries: Human Rights Must Feature in the Accession Negotiations”, RAC 09/97, 2.

67

Ibid., at 3. Much remains even today to be wished, as Amnesty still reports, among other things, of ill-treatment or torture by police in Slovakia and Romania, attacks on Roma in

68


the more determinate the human rights criteria would have become, the more they would have threatened the politically established objective of the enlargement criteria and led to the exclusion of many Candidates - their open-endedness was thus a result of their inclusionary nature. Therefore, making the criteria more determinate and the standards clearer would have resulted in the need to conclude that enlarging to several of the Applicant States was impossible due to their failure to fulfil the criteria. The Commission Reports show a clear emphasis on civil and political rights and according to them, legislation guarantees basic economic, social and cultural rights in all Applicant States. This echoes the familiar East-West confrontation concerning the attention granted to different groups of rights.68 The communist legacy is visible in the way in which most of the deep-rooted, persisting problems seem to lie in the area of civil and political rights. But the Community has also been accused of sacrificing the traditionally well-protected economic and social rights in the CEECs while promoting the implementation of civil and political rights, and its closer supervision of some rights at the expense of others has been said to result in the focus and resources being shifted in order to satisfy the ‘Community criteria’, which places more attention on civil and political rights.69 In many cases economic reforms have led to greater poverty and rising inequality at least in the short term, as the costs of greater efficiency and fiscal discipline have affected disproportionately the groups that have already been in the weakest position in society.70 The Community has also proved reluctant to provide direct financial support for the implementation of economic and social rights, indicating, “a certain amount of hardship is the necessary price for economic restructuring”.71 Susan Marks argues that international law has traditionally asserted the indivisibility of civil and political rights on the one hand and economic, social and cultural rights on the other. However, while the latter are viewed as an integral part of the international human rights agenda, they are not viewed as an integral part of a distinctively democratic, or liberal-democratic, agenda. Instead, they are supplemen-

Slovakia, police failure to protect victims and to investigate incidents of racist violence in Poland, failure to investigate torture and ill-treatment and racially motivated violence in the Czech Republic. Amnesty International, “Concerns in Europe”, January – June 2001. The reports can be found on the Amnesty International website http://www.amnesty.org. 68

See, e.g., R. J. Vincent, Human Rights and International Relations 61-75 (1986/1999).

69

On economic and social rights in the accession context, see T. King, “The European Community and Human Rights in Eastern Europe”, Legal Issues of European Integration 93, esp. at 117-124 (1996/2).

70

See Rittich, supra note 53, at 8.

71

King, supra note 69.


69

tary to it.72 When the earlier attachment of the CEECs to second generation rights is looked at from the perspective that the future should be the reversal of the past, and that market economy should be the opposite of state socialism, the post-Cold War pre-eminence of civil and political rights is explained.73 In the same way, it is believed that in order to achieve a successful transition to the market, all traces of pre-existing practices and institutions, including the old patterns of social provisioning, must be eliminated.74 But if this is looked in terms of the problem of balancing openness and determinacy, it seems that human rights are capable of reflecting different, including wholly opposite institutional ideals. They can be used to support either political or economic rights; social or cultural rights, the welfare state ideal or the classic night watchman state. In brief, rights require a political context in order to have more determinate contents. In the CEECs, the lack of contextual approaches has in practice resulted in economic and social rights being downplayed while at the same time there has been no sufficient national tradition to carry the implementation of civil and political rights. Ironically, this is done in the name of improving the overall human rights situation in the Applicant States. As a result, the usefulness of the Copenhagen human rights criteria seems to be this: they work well because they are open-ended, which in its turn guarantees their inclusive nature. The same criteria have, for example, been implemented on Turkey and Cyprus and justified both the launching of negotiations in order to improve a human rights situation and refusal to start negotiations because of the lack of human rights protection.75 Therefore, the finesse of the criteria is that they are flexible: if they were not, it could be argued that the West would only accept others on its own terms, or alternatively, exclude outsiders. After all, the most fundamental aspect of the process is that it is shared, a ‘common project’. Therefore, the criteria must be indeterminate and are thus characterised by openness. However, the problem of identity remains. By being open-ended, the criteria leave much political discretion to the administrators. By keeping the standards flexible, both the EU administrators and the new Member States may significantly influence the conception of Europe’s ‘identity’. However, identity-creating does not involve tracing any pre-existing European identity, but construing a new one through the political process, i.e. it is not a question of who we are but what we wish to become.

72

S. Marks, “Guarding the Gates with Two Faces: International Law and Political Reconstruction”, Indiana Journal of Global Legal Studies 457, at 482-483 (Spring 1999).

73

Ibid., at 484.

74

Rittich, supra note 53, at 7 and 271.

75

For this point, see J. van Westerling, “Conditionality and EU Membership: The Cases of Turkey and Cyprus”, 5 European Foreign Affairs Review 95, at 114-115 (2000).

70


This is why identity-creating is a fundamentally political question that cannot be controlled through “criteria”. As a result, identity turns unclear and ambiguous, because its contours are dependent on constantly changing political and economic considerations.

IV. The Role of Law European integration is often described as a “story of integration through law”.76 This is because it is precisely the law which is expected to provide a permanent, peaceful and stable basis for the relations between States, peoples and individuals, just as it does within the European Union itself.77

While law is only one of the social instruments used to achieve a wider societal objective, it is a central one: Integration is not a simple exercise in power sharing, but goes deeper and aims at a fundamental restructuring of society and societal attitudes, and these changes are reflected in and promoted by the law.78

Even more generally, economic development is increasingly seen as a matter of law, institutions and good governance: while the entire enterprise of development has been legalised, many of the central activities of international institutions have turned into law reform projects.79 But legal approximation also aims at embracing a certain kind of bureaucracy as a means of sharing an identity. This is because reforming legislation has spill over effects for example on administrative practices and structures through which the rules are implemented, emphasising the importance of developing a ‘rule of law’ culture with its necessary institutional infrastructure.80

76

See, e.g., S. Peers, “An Ever Closer Waiting Room?: The Case for Eastern European Accession to the European Economic Area”, 32 Common Market Law Review 187 (1995), at 188.

77

Müller-Graff, supra note 18, at 195. Turkey has had an Association Agreement in force with the EC since December 1964, Malta since April 1971 and Cyprus since June 1973.

78

Cappelletti/Seccombe/Weiler, supra note 33, at 42-43.

79

See Rittich, supra note 53, esp. at 3.

80

For this point and on the requirement of respect for the rule of law in general, see Cremona, supra note 36, at 13.


71

After the end of Communist regimes the EC and the CEECs formalised their relations through a network of bilateral trade and co-operation agreements.81 Later these agreements were replaced by more comprehensive association agreements between the Union and the CEECs (including Slovenia) known as ‘Europe Agreements’ (EAs).82 The EAs include political dialogue as a part of the integration process to the European Union, approximation of laws mainly within the internal market, technical and financial assistance and clauses about trade in services, freedom of establishment and non-discrimination.83 Legal approximation of both existing and future legislation to that of the Community, the acquis communautaire estimated at 100.000 pages of legislation, constitutes a “major precondition for the [Applicant State’s] economic integration into the Community”84. In practice, approximation has entailed alignment with EC law with no provision for consultation – a development that reflects the existing economic and political realities.85 As a result, the economic weight of the single market

81

For a more detailed account of these ‘first generation’ agreements, see, e.g., D. Horovitz, “EC-Central/East European Relations: New Principles for a New Era”, Common Market Law Review 259, esp. at 267-272 (1990). Turkey has had an Association Agreement in force with the EC since December 1964, Malta since April 1971 and Cyprus since June 1973.

82

The agreements entered into force between 1994 and 1999 and note in their preamble the “final objective” of the CEECs “to become a member of the Community”, even if they were originally conceived as an alternative to full membership. The agreements recognise the wish to “establish close and lasting relations, based on reciprocity, which would allow [the Applicant State] to take part in the process of European integration”. See, e.g., the preamble to the Europe Agreement with the Czech Republic, supra note 16.

83

The ‘four freedoms’ in the EAs are thus not meant to mirror the provisions of the EC Treaty but are based on the idea of allowing the associated states to take part in the process of European integration by means of their integration into the Community/Union. On this, see M. Cremona, “The New Associations: Substantive Issues of the Europe Agreements with the Central and East European States”, in S. V. Konstadinidis (ed.), The Legal Regulation of the European Community’s External Relations after the Completion of the Internal Market 142 (emphasis added) (1996).

84

Art. 69 of the Europe Agreement with the Czech Republic, supra note 16.

85

Rittich has observed that market reform projects are even more generally increasingly taking the form of common or general prescriptions while key decisions concerning reforms are taken by decision-makers sitting outside national borders who usually will not experience the effects of their recommendations. As a consequence, the role of law in the reforms is troubling, as it turns into the “antidote to politics” instead of being its outcome. As a substitute of being a social practice, law is the domain of experts and a means by which efficiency comes to dominate over other concerns, instead of being a reflection of different social interests and values. See Rittich, supra note 53, esp. at 5 and 290-291.

72


has encouraged the emergence of a new European common law,86 based on the Community’s general expectation that its trading partners conform to both its political and technical standards and regulatory disciplines. 87 Its practice of exporting substantive norms and standards underlines the EU’s emphasis on questions of procedure and process.88 Approximation of laws also reaches to third states without any objective of membership,89 extending the geographical implementation of some parts of the aqcuis and thus potentially blurring the distinction between being ‘in’ or ‘out’.90 For the Applicant States, the scope of the obligation is wide: The approximation of laws shall extend to the following areas in particular: customs law, company law, banking law, company accounts and taxes, intellectual property, protection of workers at the workplace, financial services, rules on competition, protection of health and life of humans, animals and plants, consumer protection, indirect taxation, technical rules and standards, nuclear law and regulation, transport and the environment.91

In addition, the third Copenhagen criterion indicates that legislative and policy reforms must be made before accession.92 In December 1994, the Essen European Council invited the Commission to prepare a White Paper to provide guidance in the approximation of laws and report on the progress of Applicant States at regular intervals.93 The White Paper names the EAs,

86

Cremona, supra note 83, at 154.

87

M. Cremona, “External Policy and the European Economic Constitution”, in G. de Búrca/ J. Scott (eds.), Constitutional Change in the EU. From Uniformity to Flexibility? 59, at 92 (2000).

88

Ibid., at 91.

89

See also M. Cremona, “Variable Geometry and Setting Membership Conditionalities: A Viable Strategy?”, in C. Clapham et al. (eds.), Regional Integration in Southern Africa: Comparative International Perspectives 193, esp. at 212-214 (2000). For example, the Partnership and Co-operation Agreement with Russia envisages far-reaching obligations upon Russia to make its legislation in conformity with that in force in the Community even if hardly anyone sees Russia as a potential future member of the Union. See the Agreement on Partnership and Cooperation establishing a Partnership between the European Communities and their Member States, of the one part, and the Russian Federation, of the other part (Corfu, 24 June 1994), OJ L327 [1997],3, esp. Art. 55.

90

On this, see Cremona, supra note 87.

91

Art. 70, Europe Agreement with the Czech Republic, supra note 16.

92

See Cremona, supra note 11.

93

White Paper on Preparation of the Associated Countries of Central and Eastern Europe for Integration into the Internal Market of the Union, COM (95)163 final.


73

structured relationship and Phare94 as key elements, and aims at the integration of political, economic and legal systems. It identifies the key measures and underlines the importance of enforcement structures. The responsibility for implementing the White Paper was placed with the Applicant States and justified with the prospect of new economic flourishing: The sooner their laws, conformity tests, standard institutes, and judicial procedures, are adapted to those in the Union, the sooner their businesses will feel the benefit.95

The whole of the Union’s strategy was meant to indicate its “deep commitment to the preparations for future enlargement”.96 This was needed, because the changes which have to be made are often painful, and so far have brought little reward for politicians in office. Without the sustained encouragement of the EU, a number of countries could easily be blown off course.97

Approximation of laws was from the start presented as a ‘dialogue’ consisting of assistance that would bring great mutual benefits. The process was said to aim at the gradual integration of the CEECs into the EC and to assist them in the economic integration process. It was justified in the following manner: In the short term, a legal environment compatible with Community law is a major incentive for foreign investment, a vehicle for improved access to Community markets and a guarantee of undistorted free trade. In the longer term, it represents an indispensable preparation of the associated countries for their future accession to the European Union.98

Irrespective of the fact that the White Paper was a unilateral measure and a soft law instrument, it gained great importance in the eyes of the Applicant States as a reference document. It also attracted criticism: for example, the White Paper identified the internal market acquis as the most important area and set the level of approximation at that of the current Member States, even if this was hardly the best place to start for states in transition. Following the recommendations of the White Paper was in practice obligatory if the Applicant States wished to continue on the path leading to accession.

94

The Phare funding program was originally created to assist Poland and Hungary in 1989, but it encompasses today all the 10 candidate CEES. Cyprus, Malta and Turkey benefit from separate pre-accession funding.

95

Burghardt/Cameron, supra note 45, at 19.

96

Ibid.

97

Ibid., at 21.

98

Commission Communication 16 September 1994, COM (94) 391 final, 3 (emphasis omitted).

74


Therefore, the CEECs had the choice of following the advice given in the White Paper or refusing to rely on the “advice, aid, economic policies, regulations and investment offered by the EC”, which simultaneously would have entailed an effective condemnation to “remain indefinitely in the no person’s land of transition to a market economy”.99 In the Luxembourg European Council in December 1997, the accession priorities and pre-accession strategy were revised once more.100 Each applicant has now an individualised Accession Partnership (AP), adopted unilaterally by the Council, placing all the Candidates on equal footing,101 including priority settings, objectives and conditions, and guiding EC assistance. The Accession Partnerships are based on National Programmes for Adoption of the Acquis (NPAA), drafted by each Applicant State, and listing practical measures, implementation plans, commitments and specific time limits. Legally speaking, the measures by the EC and the CEECs are separate and autonomous, and commitments run in parallel rather than bilaterally.102 However, much of the earlier criticism still seems valid. According to the critiques, the EC had at best “offered policies developed at home for adoption in the East”, with its role being limited to technical advising and extension of trade and aids, while the CEECs struggled to satisfy the various conditions attached to their full integration with the West.103 As the EFTA countries before them, the CEECs now needed to react “against marginalisation, but at the inevitable price of satellization”.104 The Association Countries were “discouraged from pursuing the range of economic, industrial and regulatory policies which might be available for achieving their democratic reform and development objectives”.105 Instead, the requirements were justified by the need to guarantee a functioning market for EC products, making the restriction of possible options the price that needs to be paid for the stability offered by legal rules.106

99

D. Kennedy/D. E. Webb, “The Limits of Integration: Eastern Europe and The European Communities”, 30 Common Market Law Review 1095, at 1098 (1993). See also Williams, supra note 15, at 610.

100

See the Luxembourg European Council, 12 and 13 December 1997, DOC/97/24, paras. 1-47.

101

See K. Inglis, supra note 6, at 1208-1209.

102

Ibid.

103

Kennedy/Webb, supra note 99, at 1098.

104

For the argument concerning the EFTA Countries, see P. G. Nell, “EFTA in the 1990s: The Search for a New Identity”, Journal of Common Market Studies 327, at 352 (1990).

105


106

Müller-Graff, supra note 18, at 195.


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The EU declaration that no opt-outs from the acquis communautaire would be allowed107 received much critique, as it extended the obligation for the Applicants to chapters that some current Member States are not part to, such as the Schengen law and the Economic and Monetary Union (EMU).108 This seemed unfair against the background that even the old Member States had been granted derogations, and that the acquis had expanded considerably since the previous enlargements. However, the difference in bargaining power between a Candidate and a full Member is clear.109 This has still provoked the question whether it is even realistic to expect that the applicants “will quickly adopt such a broad, multidimensional, and comprehensive acquis”.110 The Commission has justified the requirement of full adoption of the acquis with reference to “a balance of rights and obligations”: The new Members should accept the basis obligations on accession, otherwise their right to participate fully in the decision-making process may be put in question. The Union should not envisage any kind of second-class membership or opt-outs.111

For the Candidate Countries, the challenge is twofold: they must adjust to the existing situation in the EU, but also adapt to a changing landscape, which makes the EU a moving target.112 In addition, the whole “compulsory and demanding” reference to acquis communautaire raises questions concerning the precise content and contours of the framework, as it has never been defined even in a general way.113 Thus even the reference to acquis communautaire appears as indeterminate. Delcourt argues that the term, when used with no further precision, does not constitute a unitary whole but is made up of diverse and quite heterogeneous elements of a varying composition, depending on the context and the States concerned.114 For her, the accession acquis

107

See, e.g., “Europe and the challenge of enlargement”, Bull. EC, Supplement 3/92 at 12; G. Verheugen, “The Enlargement of the European Union”, 5 European Foreign Affairs Review 439, at 442 (2000).

108

Inglis, supra note 6, at 1178-1179.

109

Cremona, supra note 89, at 209.

110

Zielonka, supra note 17, at 136.

111

Agenda 2000, supra note 57, I, part II ‘The Challenge of Enlargement’, section III, ‘A Strategy for Enlargement’.

112

Diamantopoulou, supra note 48, at 4.

113

C. Delcourt: “The Acquis Communautaire: Has the Concept Had Its Day?”, 38 Common Market Law Review 829, at 831 (2001).

114

Ibid., at 848-849.

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consists today not only of the “fundamental” acquis115, and not just of secondary EC law, and not even just of what has been achieved in the strictly Community sphere, but rather of everything that has been achieved in the framework of all three pillars of the Union.116 In addition, the accession acquis includes a number of acts that are more political than legal, such as declarations, resolutions and positions adopted by Union and Community institutions and positions adopted jointly by the Member States, including not only what has already been achieved but what the achievements have been leading to, orienting the obligation to both past and future.117 Consequently, “behind the apparent simplicity of the expression […] lurks a multifarious, complex and tricky issue”.118 In addition, Cremona has noted how imported norms, however proven and reliable in their own context, may not be appropriate in a different legal (or economic) environment. Instead of the wholesale adoption of an external model, the gradual and experiential development of appropriate norms is likely to result in a robust system.119 Based on the Commission Progress Reports, the judiciary still seems to form a specific challenge to most Applicant States, mainly due to its inefficiency and huge backlogs of cases. For example, in 1999, 65% of Czech citizens said they did not trust the courts mainly due to the slowness of procedures and the level of competence.120 Concerning Poland, the Commission has repeatedly turned attention to the slowness of court processes. While the Polish courts settled 10% more cases in 2000 than in 1999, the number of cases referred to the courts simultaneously increased, and the backlog of cases increased to 1,81 million cases.121 In the same year (2000), one fifth of parties in court proceedings in Slovakia had experienced corrupt behaviour from the judges, and bribes had been given either to influence the outcome of a case or to accelerate the proceedings.122 115

With which Delcourt refers e.g. to the rules and principles governing the institutional structure, those governing the inter-institutional relationships generally and the principles of free movement, non-discrimination and the general principles of EC law. Ibid., at 844-848.

116

Ibid., at 853. Concerning adapting to the CFSP acquis, progress is evidenced by the process of political dialogue and the level of support that the candidate state has shown for EU positions and policies. See Cremona, supra note 11.

117

Delcourt, supra note 113, at 856-858.

118

Ibid., at 869.

119

For this point and the requirement of respect for the rule of law in general, see Cremona, supra note 36, at 13.

120

Commission Regular Report 1999, at 13.

121

Commission Regular Report 2001, at 20.

122

Progress Report 2000 at 17. On the other hand, slowness of court proceedings is also a serious problem e.g. in Italy, which has been repeatedly condemned by the European Court


77

The judiciary forms a very central element of the EU legal order, given the significant role of national courts in enforcing EC law. Nevertheless, it seems that even the criterion concerning the rule of law allows for much variation. Mineshima has noted that several visions of the principle are in practice being implemented in the EU-CEECs relations. For him, the EU’s desire to avoid setting a standard for the CEESs questions how assessment of the fulfilment of membership conditions can be made in a fair and consistent manner, because when there is no clear standard, assessment becomes “open to potential allegations of subjectivity and bias”.123 However, as with the human rights criterion, the open-endedness of the standard is exactly the point with it: when there are no clear criteria, even greater variations can be allowed and still argued to fall within the acceptable margin. How has law then managed to control integration? Its record is mixed, remembering the earlier Community examples of the Social Protocol, Schengen and the EMU – opt-outs that were negotiated after political deadlocks. This kind of “variable geometry” is continued and confirmed in the Amsterdam and Nice Treaty amendments allowing closer cooperation between some Member States while simultaneously enabling some others to stay outside.124 These provisions are, as Craig and De Búrca argue, evidence of the fact that differentiated integration and flexibility are no longer an aberration within the EC and EU legal order; nor a temporary solution or a “means of gradually easing all Member States into a uniform system”.125 Instead, the new concept of closer co-operation constitutionalizes and legitimates a mechanism that allows different degrees of integration and co-operation between different groups of States:126 Yet, the resulting endorsement of differentiated integration […] clearly emphasizes the move away from the early Community focus on centralization, harmoni-

of Human Rights. See, e.g., Press Release 945 of 11 December 2001 issued by the Court Registrar, “Chamber Judgments Concerning Italy and Poland”, according to which the Court had decided in 49 cases that there had been a violation of Art. 6(1) on the right to a “fair and public hearing within a reasonable time” of the European Convention on Human Rights by Italy. The lengths of proceedings subject to the complaints varied between 23 years and seven months (Case Bertot v. Italy, Application No. 51667/99, still pending in Italy on the day of the judgment) and four years and four months (Case G. L. v. Italy, Application No. 51666/99). 123

See D. Mineshima, “The Rule of Law and EU Expansion”, 24 Liverpool Law Review 73, at 80-81 (2002).

124

See Title VII TEU “Provisions on Closer Co-operation, Art. 40 TEU, Art. 11 EC (Amsterdam); Title VII on “Enhanced Co-operation” (Nice).

125

P. Craig/G. De Búrca, EU Law. Texts, Cases and Materials 46 (2nd Edition 1998).

126

Ibid.

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zation and unity. […] Subsidiarity is emphasized over centralization, flexibility over uniformity, and the goal of integration is tempered by the demand for differentiation.127

Moreover, after the entry into force of the Nice Treaty, enhanced co-operation is also allowed in areas where it might affect the acquis communautaire as long as it “respects” it.128 One example of how decentralisation has recently substituted centralisation is the Community’s new approach to competition policy with the replacement of regulation 17/1962 by regulation 1/2003.129 The new framework, applicable from May 2004 (and thus affecting all the new Member States from the beginning) is based on the decentralisation of the implementation of the common competition rules by allocating the task to national competition authorities. This is a big shift from the regime that had served the Community since 1962, and it offers one more example of the room given to variation at the expense of centralisation and uniformity. After all, common competition rules form one of the original and foundational policies belonging both to the “core” of the Union130 and also to the central elements of the EAs131. However, instead of just aiming at flexibility, the new rules perhaps focus more on procedure and enforcement rather than the conscious development of new substantive principles. As a conclusion, even with the area of law, flexibility has taken room from the idea of uniform application of rules in all parts of Europe. It seems that even if common rules do sometimes offer potential for the development of a common identity and a societal model, especially in those areas where Community regulation is detailed, the faith in the project is diminishing. Instead of uniformity comes flexibility; freedom of choice wins over identity. All of this takes place at the same time as the Applicant

127

Ibid., at 47-48. Langrish notes, however, that “[f]lexibility, certainly in the first pillar, looks likely to be an area of more academic than practical significance and not likely to grease the wheels of an enlarged Union”. See S. Langrish, “The Treaty of Amsterdam: Selected Highlights”, 23 European Law Review 3, at 7 (1998).

128

See Art. 43 TEU (Nice). Also in general the Nice provisions on enhanced co-operation are more flexible than those of the Amsterdam Treaty. For example, according to the latter, closer cooperation could be used only if it did not affect the acquis (Art 43(1)(e)).

129

Council reg. (EC) No 1/2003 of 16 December 2003 on the implementation of the rules on competition laid down in Arts. 81 and 82 of the Treaty, OJ L/1-25 of 4 January 2003. The new reg. becomes applicable on 1 May 2004.

130

On this, see G. de Búrca, “Differentiation within the Core: The Case of the Common Market”, in de Búrca/Scott, supra note 87, at 135.

131

On competition law rules and regulatory convergence in this context, see, e.g., Cremona, supra note 87, at 86-90.


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States’ scope of manoeuvre has been paradoxically diminished. At the end of the day, “integration through law” builds on bureaucratic methods and arguments that are implemented through individual decisions, but offers little detailed guidance for the setting-up of functioning institutions. In the end, even the criterion relating to the position of law is characterised by indeterminacy, both in relation to the contents and the scope of the obligation.

V. Democracy Democracy is another concept that figures both among the Copenhagen criteria and among the values that have been believed to justify the re-unification of Europe. Even more generally, the political transformations of the 1980s and 1990s led many to argue that a right to democratic governance should now be seen as a norm of international law and that, therefore, only democracy validates governance.132 Also for the Union, the concept of pluralist democracy has been considered fundamental.133 Therefore, it should be our task to ensure the success and permanence of this system in countries with which the EC has political or economic links and especially in Central and Eastern European countries.134

Flynn and Farrell argue that a part of the normative power of democracy originated in the CEECs leaders’ wish to follow the path of the West. After such an open embrace of democracy, they argue, the norm could hardly have been considered other than consensual.135 Cichowski underlines how citizens’ attitudes toward democracy and free market economy are the strongest predictors of support for the EU. In this way, EU membership is viewed as a “means of strengthening the institutional base for

132

See, e.g., T. M. Franck, “The Emerging Right to Democratic Governance”, 86 American Journal of International Law, 46-91 (1992). See also S. Marks, “The ‘Emerging Norm’: Conceptualizing ‘Democratic Governance’”, Proceedings of the American Society of International Law 375 (1997); Id., The Riddle of All Constitutions. International Law, Democracy and the Critique of Ideology 32 (2000).

133

European Parliament motion for a res. on a “European Democracy Fund”, PE 153.155/fin, 9. The res. was adopted on 14 May 1992 and published in OJ C 150, 15.6.1992.

134

Ibid.

135

G. Flynn/H. Farrell, “Piecing Together the Democratic Peace: The CSCE, Norms, and the ‘Construction’ of Security in Post-Cold War Europe”, 53 International Organisation 505, at 524 (1999).

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democracy and capitalism”.136 Democracy as a term is something of an umbrella concept, which the Commission has defined as a combination of free and fair elections, political pluralism, freedom of expression and freedom of religion, and the need for democratic institutions and independent judicial and constitutional authorities.137 In the Commission Progress Reports the section on democracy has usually been short and included a description of elections, the functioning of the Parliament, the Executive and the Judiciary and the effectiveness of Anti-Corruption Measures. Despite the problems the Commission has observed with the functioning of the judiciary and the limitations on the rights of the media and freedom of expression in many CEECs,138 it has tended to conclude that “[the Applicant State] has achieved stability of institutions guaranteeing democracy and the rule of law”.139 However, bringing into mind the situation of Austria in 2000 described above, where the democratic process produced an unfavourable result,140 the EU reaction then brought, as Burchill has argued,

136

R. A. Cichowski, “Choosing Democracy: Citizen Attitudes and the Eastern Enlargement of the European Union”, EUI Working Papers, RSC No. 2000/12, at 27.

137

See Agenda 2000, Sect. I, supra note 57.

138

For example, the Commission has reported of limitations of the freedom of the press in Bulgaria, the Czech Republic and in Romania; limitations of free speech in Poland; and a high degree of government control over the media and limitations of the freedom of expression in Slovakia. Also Turkey has serious problems in the area. See, e.g., Commission Progress Reports on Bulgaria, 1998 at 10; 1999, at 14 (“the situation concerning media independence is still of concern. Current plans to introduce general freedom of information legislation are a step in the right direction.”); 2000, at 20 (“As concerns freedom of expression, whilst libel can no longer be punished through imprisonment, the level of possible fines remains very high […].”); 2001, at 21; and 2002, at 30 (“[…] libel remains an offence under criminal law. Fines remain very high […]. There were criminal cases against journalists accused of libel in 2001, especially against investigative journalists”). In addition, Amnesty International has recently reported of “operations by law enforcement officials” in the Czech Republic in context of large demonstrations that have “violated international standards on arrest and detention, the use of force and firearms and the rights to freedom and assembly”. See Amnesty International Press Release “Czech Republic: Past mistakes must not be repeated – respect for freedom of expression” of 16 November 2002, EUR 71/001/2002. The text can be found on the AI website http://www.amnesty.org.

139

See, e.g., Commission Progress Reports on Bulgaria, 1999, at 11; 2000, at 14; 2001, at 15 and 2002, at 20.

140

R. Burchill, “The Promotion and Protection of Democracy by Regional Organizations in Europe: The Case of Austria”, 7 European Public Law 80 (2001).


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to the light the fact that the principle of democracy in Article 6(1) of the EC Treaty [sic] has no determinate meaning and that the organization itself has no coherent mechanism for addressing compliance with freedom, democracy and human rights.141

Accordingly, the treatment that Austria received demonstrated how democracy is highly indeterminate as a legal principle.142 Marks, on the other hand, criticises the proposed norm of democratic governance for treating democracy as a simplistic sum of the holding of multiparty elections, the protection of civil rights and the establishment of the rule of law.143 For her, this is a model that concentrates attention on ‘forms and events’, correspondingly shifting emphasis away from ‘relationships and processes’.144 It seems that the approach of the Commission, concentrating on forms of democracy rather than its actual substance, corresponds to this pattern. Marks also notes that while respect for democratic principles is increasingly becoming a part of the international agenda, also a risk of neo-imperialism is created,145 and this risk is clearly visible also in the states that form the object of this study.146 Social goals are increasingly treated as pre-set; making the only issue how most efficiently to reach them. As a result, democracy “comes to appear an affair of means, but not of ends; an activity of technique, but not of agenda-setting”. Consequently, the democratic norm thesis depolitizes the meaning of democracy by making democratic change seem a technical challenge.147 For Kennedy and Webb, the EC approach to the CEECs reflects an idealized and artificial vision of Western market economy,148 in which the Community/Union represents the most advanced instantiation of the liberal democratic model. The CEECs, on the other hand, are placed under an obligation to ‘democratise’ before they can be considered for true participation.149 Consequently, the internationalisation of democratic rhetoric also accompanies a domestic displacement of democratic

141

Ibid., at 88. Reference here should be to Art. 6(1) of the TEU, while Art. 6 EC refers to environmental protection and sustainable development.

142

Ibid., at 100-102.

143

Marks, supra note 132, 74.

144

Ibid., at 52.

145

Ibid.

146

Ibid., at 67.

147

Ibid., at 70-71.

148


149

D. Kennedy, “Turning to Market Democracy: A Tale of Two Architectures”, 32 Harvard International Law Journal 373, at 384 (1991).

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policies, as “politics is treated as having somehow already happened elsewhere”.150 This reflects more than well the obligation to accommodate the acquis without any right to participate in its formulation. In many ways, the legal arrangements surrounding enlargement represent “the worst of both worlds”, causing the Candidate States to lose a level of independence at a crucial time in their democratic reform and economic restructuring programmes, while they receive little tangible in return.151 In addition, Albi points out how the EU integration process suffers from a low level of popular support in some Candidate States, which questions the legitimacy of their governments engaging the state in developments that have such fundamental consequences for state sovereignty.152 Various things have, according to Marks, gone wrong since the fall of the Berlin Wall. The social and economic assets of the CEECs have been ignored and squandered,153 and the social inheritance has been replaced by an overriding faith in the market, as “the new was to be the opposite of the old”.154 In this setting, loans, aid, and trade constrain the options of the CEECs.155 For Rittich, the reform agenda evidences the alliance between democracy and market economies; while the market is supposed to enhance freedom and autonomy, the markets are also said to present the essence of democracy. But at the same time, individuals and states are expected to adapt and subordinate their desires to the demands of a market economy, making their possibilities highly restricted and coercive. This is because key decisions concerning market reforms, like openness to foreign investment and free trade, the adoption and harmonization of market rules and policies, and assimilation into the global economy, are fundamentally non-negotiable: The result is a curious movement between apparently incompatible propositions: homage to equality and democracy and neutrality regarding social, cultural and political priorities coexist alongside vehement declarations of the utter necessity of some of the most radical and potentially transformative aspects of the agenda. 156

This pragmatic follow-us-method results in little approximation of identity outside the forms and methods that are transposed in the Applicant States while it simul150

Ibid.

151


152

Albi, supra note 45, at 207. Albi refers to the situation in Estonia, where support for European integration has fluctuated between 29-42%.

153

Marks, supra note 72, at 460-461.

154

Ibid., at 462-463.

155

Ibid., at 469.

156

Rittich, supra note 53, at 290.


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taneously makes mockery out of democracy in any deeper sense - after all, pluralist democracy should also allow for differentiation. As demonstrated earlier, the approach based on ‘integration through law’ led in the end to two options: either adopting ‘old Europe’s’ values or not adopting them. Only two alternatives of the same nature are offered for voters in the accession referenda to be organised in all Candidate States, which are often used as evidence of the truly democratic nature of EU enlargement.157 But choosing between two options, out of which one is impossible as leading to marginalisation, is hardly what democracy entails in its substantive meaning. This is especially so when all through the accession process, the Applicant States have had “no rights and little say in determining the substance of relations, leaving the EU as a hegemonic actor”.158 The promise that democracy carries must involve more genuine choices, leaving room for variation and pluralism. In this way, the strategy based on democracy seems to end up in problems resembling those met with human rights and ‘integration through law’: these principles are far too general to give any detailed guidance and provide little or no control, but simultaneously allow for openness and inclusion. Being indeterminate, they require interpretation, which brings with it the danger of manipulation. Concerning democracy, manipulation seems to entail that bureaucrats can use the openness of the concept to advocate various different objectives, which have little to do with the noble principle as such. If the chosen approach is a question about politics, then surely it should not be left for administrators and bureaucrats to settle. Any process of identity-construction necessarily also involves exclusion: we are something only against something else that we are not (or do not want to become). Debates about these matters are among the most significant in any polity’s process of selfidentification. Any such exclusions involved in identity-creating should surely be negotiated within the political process, bearing in mind that readiness to rethink one’s boundaries and exclusions is a part of any acceptable community’s self-image.

VI. The Result: Incoherence The outcomes of all three approaches considered in the previous sections seem to support the indeterminacy of the political Copenhagen membership criteria.

157

The accession treaties will be ratified by the acceding countries only after popular referenda held between 8 March 2003 (Malta) and 20 September 2003 (Latvia). See the Commission enlargement website, http://www.europa.eu.int/comm/enlargement/negotiations/accession_ process.htm.

158

For the last point, see Heather Grabbe, “A Partnership for Accession? The Implications of EU Conditionality for the Central and East European Applicants”, EUI Working Papers, RSC No. 99/12, at 24.

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Concerning human rights, while the Commission reports have done something to emphasize the importance of establishing sufficient human rights guarantees, they have also highlighted the piecemeal fashion in which the Union approaches human rights. The reports show much room for improvement, and even if the Copenhagen criteria would only be treated as some kind of a minimum standard or threshold test, it seems clear that there is no uniform set of criteria implemented on the Applicant States. In addition, the level of scrutiny and possible sanction in respect of human rights matters in the Applicant States has been seen in terms of a policy that is potentially highly interventionist.159 Thus, “either the criteria is flawed” or then “the policy is based on central discrimination”. As a result, “the Union continues to harbour a rhetoric and practice of exclusion within its very core” and operates as an “exclusive club, relatively unconcerned with the internal condition of human rights”.160 Human rights are, despite the importance attached to them in formal language, negotiable and considered in the context of the economic interest in expanding the internal market eastwards. The result is inconsistency, which nags the corners of the credibility of this approach. Concerning the position of law, similar inconsistencies persist. While law was given the role of unifying Europe through an approximation exercise, what we see is that law offers little more uniformity than the interpretation given to human rights. This is perhaps not a bad thing, because in the case of law, the EU approach has been traditionally more often criticised for the opposite reason: for its lack of flexibility. In many ways the role of law seems to be diminishing, as the direction at least in some areas seems to be taken towards greater flexibility. In all, the EU efforts in the accession context, even if significant, have not been seen to constitute “a coherent and bilateral commitment to coordinate legal and regulatory bodies and institutions”.161 The EU approach to approximation in the enlargement context has received criticism for being ill-adapted to take account of structural problems in the CEECs.162 This is because it is unclear whether harmonisation even assists the CEECs in improving their economic qualifications, and it surely “does little to assist efforts to encourage the development of working democracies in these countries”.163 This practice of imposing norms on the CEEC has thus contributed to the principle of democracy being undermined. Again - inconsistency.

159

See Williams, supra note 15, at 610.

160

Ibid., at 613.

161


162

See A. Evans, “Voluntary Harmonisation in Integration between the European Community and Eastern Europe”, 22 European Law Review 201, esp. at 219-220 (1997).

163

Ibid., at 219.


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In corresponding ways, all three approaches prove too general, indeterminate and contested to provide identity or control. What shows is a lack of interest in contextual approaches; instead, there is promotion of agendas that are too general and vague to be transformed into policies. But this strategy has clear benefits: it enables moving towards the politically predetermined goal, which is enlargement in May 2004. On the other hand, the criteria set by the EU are surrounded by such a high degree of abstraction that they have only contributed to strengthen the position of the instance supervising their implementation, the European Commission.164 Much of the problematique surrounding the forthcoming enlargement is due to the indeterminacy concerning the Union’s own existence. This ambiguity has helped to achieve the necessary consensus, but also prevented the Union from acquiring a minimum degree of strategic purpose.165 When looking at what the EU is and has been, it is specifically indeterminacy that the EU has relied on for its success in many areas of action. Open-ended Treaty provisions have contributed to a shift of power benefiting the institutions implementing them. Still, the basic aims and functions of the Union have often been kept deliberately ambiguous so as to prevent an excessive clash of interests between a growing number of Member States.166 As a result, some sort of an identity has perhaps been created, but this has taken place at the expense of determinacy, as it seems impossible to determine this identity in a satisfactory manner. In the enlargement context, as Zielonka has argued, the Union has never articulated the vision of Europe for which it is striving; its policies towards Eastern Europe have been dominated by its internal agenda and failure to reform its own constitutional structure.167 And as the aims of enlargement have remained vague, the admission criteria have become subject to voluntaristic if not conflicting interpretations.168 Therefore, the indeterminacy of the enlargement objectives seems to be closely connected with the indeterminacy of the aims of the EU in general. When its goals are kept abstract and at the level of high-sounding ideals, they are more likely to gather wide support.

164

On the role of the Commission in the enlargement context, see Grabbe, supra note 158, esp. at 27-28.

165

Zielonka, supra note 17, at 142.

166

For the last point, see ibid., at 137.

167

Ibid., at 132.

168

Ibid., at 135. Nello and Smith point out that for example the question whether the EU can absorb new members and maintain the momentum of its integration are matters of interpretation, as is also judging whether the membership conditions have been fulfilled. See S. Senior Nello/K. E. Smith, “The Consequences of Eastern Enlargement of the European Union in Stages”, EUI Working Papers, RSC No. 97/51, at 16.

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When the inconsistency claims are placed in the context of the politics of identity, it seems that in the end, there often seems to be no absolute requirement of the automatic adaptation of ‘old Europe’s’ values. For example, concerning human rights, after the presentation of the criterion and some Commission criticism, the Applicant States are more or less left to deal with their human rights problems as they see fit, as persisting human rights problems do not hinder membership in the Union. Consequently, if the Applicant State prefers its own values, this is fine with the Union, perhaps to the extent that the problems are not exceptionally severe. But in allowing this kind of openness, the politics of identity simultaneously appears as ignorant, implying both honesty and arrogance at the same time and provoking claims of inconsistency. How then to find the right balance between identity and diversity in the areas of human rights, law and democracy? As demonstrated earlier, at one end of the spectre are openness and manipulation; at the other are determinacy and exclusion. Romania and the Slovak Republic could perhaps serve as an example of a balancing situation where both the risks of manipulation and exclusion are present. Both countries failed to satisfy the political criteria in 1997 and the Slovak Republic even in 1998. Between 1997 and 2001 the reports on both countries offered discouraging reading. The outcome in 2002 was that Romania belonged to those states that were ‘out’, while the Slovak Republic was ‘in’, despite the lack of proper anti-discrimination legislation, despite police violence, wide trafficking of women and children and problems with legislative guarantees for the freedom of expression.169 It seems clear that had a more determinate human rights standard been implemented, the Union would have needed to exclude the Slovak Republic from its membership. But after the decision on the composition of future Member States had been made, the open-ended human rights criteria enabled their manipulation in favour of accepting the Slovak Republic despite its problems. However, even if the reports on the two countries reveal similar kind of problems, Romania was excluded, provoking claims of empty standards, inconsistency and manipulation. This, of course, goes contrary to the original idea of values guiding political and economic decision-making and turns them into a simple façade covering the results of the political decision-making process. However, relying on inconsistency is an approach that can deal with paradoxes, because it is dogmatic neither as assimilationist nor as relativist – after all, reference can be made to ‘standards’ irrespective of their indeterminacy. Both imperialism and apathy are avoided, because all situations can be addressed on the basis of currently decisive factors. Therefore, in the end, only a pragmatic, empirical, case-by-case approach remains possible. But this comes at a cost. As a result, there will be no

169

See the Commission Progress Report on the Slovak Republic 2002, 27-28. See also supra note 67.


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general standards – and thus no coherent identity. This creates a constant and pervasive legitimacy problem in the form of ‘incoherent application’ and ‘double standards’.

VII. Recognition of Diversity But ultimately, incoherence should perhaps not be seen as bad as such, but merely as another name for the recognition of diversity and openness in relation to political changes. In this sense, incoherence is just another name for politics, because without incoherence there is no politics. Incoherence in the implementation of specific criteria is the outcome of political balancing, which has in different cases resulted in different solutions. The most relevant question, therefore, is what kind of incoherence. This is a properly political question, as is the question of drawing a balance between those that are to benefit from a particular decision and those that are to lose. The role of politics is further enhanced by the fact that in the process of granting EU membership to a State, the role of law is always in the end minimal. This is because irrespective of the legal standards that have been attached to integration, accepting new members is always a political question taken by the Member States. Consequently, the enlargement process remains essentially a political one.170 When the negotiations are completed, it is for the Member States to decide whether the accession conditionality has been met, and there is no obligation to take a favourable decision on a candidate171: granting membership is always a matter of political discretion. In this context, non-Treaty based accession rules, of course, lack any legally binding effect, and the same is true of the Treaty-based accession rules. They neither grant the Candidate Countries a right to accede nor do they bind the Union to accept the applicants once they meet the conditions. In addition, as the accession conditions have been in a state of continuous development with both the content and the role of the criteria being subject to change, their predictability from the candidates’ perspective has been reduced.172 The political nature of the accession procedure has been underlined by the ECJ in its 1978 decision on the conditions for admission of new Member States.173 The Court was asked for a preliminary ruling concerning whether Article 237 EEC was to be interpreted as setting substantive legal limits over and above the formal conditions laid down in the article and what those limits could be. In addition, the national court inquired whether there where reasons based on EC law on which Spain, Portugal and

170

Inglis, supra note 6, at 1209.

171

Ibid., at 1210.

172

See Hillion, supra note 13.

173

Case 93/78 Lothar Mattheus v Doego Fruchtimport und Tiefkühlkost eG, [1978] ECR 2203.

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Greece could not be admitted in the foreseeable future. While the Court found that Article 237 ECC laid down a “precise procedure encompassed within well-defined limits for the accession of new Member States”, the specific conditions of accession were to be established by the authorities during that procedure, making it impossible to define their content judicially in advance. Therefore, the ECJ could not rule on the form or subject matter of future conditions and had no jurisdiction to answer the questions.174 The same fact was underlined already in 1948 when the International Court of Justice was asked whether the conditions named in Article 4(1) of the UN Charter175 were exhaustive or whether Member States could attach new conditions upon admitting new members to the organisation.176 According to the Court, answering to the question involved interpretation of the Charter and was thus a legal question. In its view, Article 4 did not forbid the taking into account of any factor which it is possible reasonably and in good faith to connect with the conditions laid down in that Article. The taking into account of such factors is implied in the very wide and very elastic nature of the prescribed conditions; no relevant political factor – that is to say, none connected with the conditions of admission – is excluded.177

The role of politics was also highlighted in the dissenting opinion of Judges Basdevant, Winiarski, Sir Arnold McNair and Read. According to them, the resolutions which embody either a recommendation or a decision in regard to admission are decisions of a political character; they emanate from political organs; by general consent they involve the examination of political factors […]; they produce a political effect by changing the condition of the applicant State in making it a Member of the United Nations. […] The admission of a new Member is pre-eminently a political act, and a political act of the greatest importance.178

The real challenge, therefore, is more of a political than of a legal nature. It consists

174

Paras. 7-8.

175

“Membership in the United Nations is open to peace-loving States which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.”

176

Conditions of Admission of a State to Membership in the United Nations, Advisory opinion of May 28th, 1948, ICJ Reports 1948, 57.

177

Ibid., at 63.

178

Dissenting opinion of Judges Basdevant, Winiarski, Sir Arnold McNair and Read, Ibid., at 85.


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of maintaining political control, both on the Union side and on the side of the Applicant States, over the enlargement process and over integration at large. This is because political control is constantly threatened by bureaucratic wrangling, and losing this control is the real source for concern. Politics is about resource allocation; about limiting the identity of Europe and coping with these decisions. This will create Europe’s identity through politics, and keep it open for further enlargement. There are probably new enlargements ahead, such as to South Eastern Europe and Albania, and further conditions can then be added.179 But while human rights, the rule of law and democratic principles all offer high ideals and impressive objectives, their potential in controlling the process of integration is only referential. While they can sometimes hint a direction, they can neither show the goal nor the detailed route leading there. As a consequence, success in implementing criteria of this kind can never be measured with satisfactory precision. Therefore, the malfunction with the ‘political’ Copenhagen membership criteria relating to human rights, the status of law and the principle of democracy does not lay in failing to implement these particular EU criteria, but imagining that concepts of this kind could serve as a yardstick. But ultimately, this is of lesser concern than it would first seem. After all, the European Union is not about creating an identity but about politics.

179

See Council Conclusions of 29 April 1997 on the principle of conditionality governing the development of the EU’s relations with certain countries of south-east Europe, Bull. EU 4/1997, at 132.

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State Identity, Deconstruction and “Functional Splitting”

91

State Identity, Deconstruction and “Functional Splitting”: The Case of Illegal Annexations Lauri Mälksoo*

I.

Introduction

Since its very origins, the basis of international law has been sought in two fundamental yet conflicting principles: ex factis oritur ius and ex iniuria ius non oritur. While centralized domestic legal systems have been reluctant to recognize law-creating effect to facts originating in illegal behavior, international law, due to its decentralized structure, has not been in the position to resist consistently the power of illegal acts. It has been a specific feature of classical international law that it has attempted to accommodate what is with what ought to be. However, the traditional predominance of the principle ex factis oritur ius over ex iniuria ius non oritur in international law has not been a petrified and static fact. With the maturing of international law, the increased quest for normativity has started to challenge the law-creating effect of illegally effectuated facts. A landmark step in this process of maturing has been the prohibition of aggressive war in the Pact of Paris of 27 August 19281, and of the use and threat of force in the UN Charter of 26 July 19452. When the community of States decided to make this revolutionary step

*

Dr. iur., LL.M.; adviser of the Legal Chancellor of the Republic of Estonia; lecturer of international law at the University of Tartu. The author would like to thank Dr. Konrad Bühler, Austrian Federal Ministry of Foreign Affairs, Vienna, and Dr. Stephan Wittich, Department of International Law and International Relations, University of Vienna, for stimulating discussions that led him to the idea of writing this article. He also wishes to gratefully acknowledge the Konrad Adenauer Foundation for a scholarship for doctoral studies at the Faculty of Law of the Humboldt University Berlin. The article is based on some ideas expressed in the author’s dissertation Illegal Annexation and State Continuity: The Case of the Soviet Incorporation of the Baltic States. A Study of the Tension Between Normativity and Power in International Law (2003).

1

See 1928 General Treaty for Renunication of War as an Instrument of National Policy, 94 LNTS 57 (1929).

2

1945 Charter of the United Nations, 15 United Nations Conference of International Organization (UNCIO) 335 (1945).


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forward and prohibit aggressive use of force, it inevitably was confronted with the challenge how to react against the violations of this prohibition. One of the answers suggested in State practice and legal doctrine has been the principle of non-extinction (continuity) of illegally annexed States.3 The rule that an illegally annexed State would not lose its statehood as a subject of international law has been a courageous intervention into the realm of effectiveness. Traditionally, international lawyers have accepted the presumption that the creation and extinction of States is an extra-legal affair. Although recognition by other States undoubtedly played a role – it was debated whether a constitutive or declarative one –, it remained primarily a political act. International law neither “created” States nor influenced their creation considerably. It just accepted the birth and extinction of States as historical facts. Inimitably, one can recognize in this line of thinking the Vattelian analogy, according to which States as principal subjects of international law are functionally similar to human beings in domestic legal systems.4 Notwithstanding open-ended debates about when exactly does a human life start and end, domestic law cannot “create” human beings. How then could international law prolong the life of any of its subjects, just for the reason that the attack against a given State was illegal? This analogy looms behind the rigid interpretation of the 1933 Montevideo Convention on the Rights and Duties of States5: a State exists then, and only then, when a government exercises control over population on a given territory. Statehood is a sociological fact. The rule of continuity claimed above, protecting the statehood of illegally annexed States, implies an important exception to the Montevideo criteria, or even a considerable departure from them. Statehood becomes a normative concept, potentially in conflict with certain sociological facts. Thence, the suggested rule according to which an illegally annexed State would preserve its international legal status is not uncontested. Several authors writing on statehood and use of force in international law have raised doubts about the viability of such a rule, arguing that neither the international community nor international legal doctrine would be in the position to support such “fictional” States.6 Those

3

See especially K. Marek, Identity and Continuity of States in International Law (1954).

4

For a critique of this analogy in the context of State succession/continuity, see M. Koskenniemi, The Present State of Research Carried Out by the English-speaking Section of the Centre for Studies and Research, in: State Succession: Codification Tested against the Facts, The Hague Academy of International Law 156 et seq (1996).

5

165 LNTS 19.

6

See, e.g., J. Verhoeven, “La reconnaissance internationale: déclin ou renouveau?”, 39 AFDI 7, at 36 (1993); O. Dörr, Die Inkorporation als Tatbestand der Staatensukzession 355 (1995).


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authors, relying on the Montevideo criteria of statehood, seem to be inclined to accept the fiction of State continuity only exceptionally in cases of short-term belligerent occupations, i.e. prior to effective annexation. Thus, State continuity would not be hampered in the case of temporary control over the conquered territory with no intention to annex it, but not in the case of effective incorporation (annexation) of this territory. According to this approach, a longer period of annexation would speak in favor of the extinction of the annexed State. For doctrinal reasons, this group of authors is critical of confirmations of State identity given in State practice notwithstanding prolonged periods of annexation. This demonstrates that the content of relevant international legal rules is not as clear as many international actors and lawyers would claim. In its essence, the underlying issue at stake is how far does and can international law reach. Referring to doctrinal disagreements and weaknesses of available concepts, other scholars have questioned the relevance of existing legal concepts in State practice. In a recent monograph on State succession and membership in international organizations, Konrad Bühler challenges – among other interesting arguments that are not discussed here – the view that State succession or identity may solely be decided on the basis of so-called objective criteria. After having meticulously studied recent State practice involving State succession, he observes critically that “it seems to amount to a manifest misperception of reality to maintain the theoretical illusion that the identity of a State was “a matter of law to be determined objectively”.7 He goes on to say that in certain marginal cases the subjective factor of recognition and acceptance of a State’s claim to continuity by the international community will become the ultimately decisive criterion for State identity. This implies that identity cannot be considered a pure matter of law to be determined objectively, but in fact becomes a “grant of a special status by the other members of the international community. [It is rather a] pragmatic procedural approach based on the interplay of claim and response (i.e. recognition) in international relations8.

Although Konrad Bühler’s study is not specifically devoted to the analysis of cases involving illegal annexations, his conclusions quoted above are general and thought– provoking enough to serve as a starting point for this article. The goal of the present article is to examine whether the antagonism between legal theories and political pragmatism, as suggested by Konrad Bühler, holds true in cases where State identity and continuity are claimed due to the illegality of annexation. Is the identity of the

7

K. G. Bühler, State Succession and Membership in International Organizations. Legal Theories versus Political Pragmatism 316 (2001).

8

Ibid., at 318-319.

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reestablished State with the previously annexed State always recognized in the State practice? Does State practice treat unanimously the cases of illegal annexation, or is it primarily guided by extralegal and purely subjective criteria, e.g. political interests?

II. State Practice to be Examined Since there exist no international treaties, explicitly safeguarding the continuity of illegally annexed States, the suggested rule has been formed, tested and possibly contested in State practice. Relevant cases are quite marginal in State practice, since illegal annexations are, fortunately, not an everyday occurrence in international relations. Available cases offer a quite good opportunity to test whether legal theories and objective criteria play an independent role in the formation of outcomes in State practice. Unless one starts with the presumption that the application of international legal concepts and definitions is always subjective, illegality of annexations seems to be a criterion involving at least certain objectivity that is inherent in the notion of the rule of law. Moreover, it is a criterion that seems important enough not to be ignored or neglected too easily in State practice. At the same time, the relative scarcity of the relevant cases will make possible the critique that there is not sufficiently general practice, and the solutions adopted in particular cases hold true only for those specific cases. Moreover, it must be borne in mind that the study of customary rules in international law involves many questions that are open in doctrine. Custom as “evidence of a general practice accepted as law”9 is generally considered to have two elements: State practice and opinio iuris. But scholars have demonstrated that there exist different approaches at custom as a source of international law. 10 What has been called traditional custom is identified through an inductive process in which customary rules are derived from specific instances of State practice.11 Modern custom, on the other hand, emphasizes opinio iuris rather than State practice, relying primarily on statements rather than actions. Modern custom is thus distilled by deductive method. It follows that the tests for both types of custom differ: traditional custom develops slowly through State practice, while modern custom can arise more rapidly thanks to opinio iuris.12 In studying the problem of the legal status of the illegally annexed

9

ICJ Statute Art. 38(1)(b), source in supra note 2, at 335.

10

For a recent discussion, see A. E. Roberts, “Traditional and Modern Approaches to Customary International Law: A Reconciliation”, 95 AJIL 757 (2001).

11

See ibid., at 758.

12

Ibid., at 759.


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States, we have thus to examine both the expressions of State practice and opinio iuris. However, the main method will be inductive13, i.e. the study of relevant cases in State practice. The most recent and important case which confirmed the claimed rule that annexation following illegal use and threat of force would not cause extinction of the annexed State, was the annexation of Kuwait by Iraq in August 1990. In this case, the continued legal existence of the State of Kuwait was repeatedly confirmed by the UN Security Council. The Iraqi annexation was declared null and void14, and after six months of illegal annexation, Kuwait was liberated by an international coalition led by the U.S. In this case, the practice was unanimous and the outcome uncontested in legal literature. However, in several other historical examples, circumstances have proved less favorable for annexed States. Typically for those cases, the moment of annexation lies back in the history and the restoration of statehood has been achieved only after sometimes extensive periods of more or less effective control by the annexing State. This was the case with the restoration of Ethiopia, Austria, Czechoslovakia and Albania following their annexation by Axis powers in World War II. Even more drastically, the Soviet annexation was consolidated in the case of the three Baltic republics Estonia, Latvia and Lithuania. It is precisely in those cases that legal scholars have counterbalanced the illegality of annexation with the principle of effectiveness, criticizing the principle of State continuity as it has been presented by the respective States. The cases involving illegal yet prolonged annexations raise the question of the relationship of legal rules and political considerations forming solutions given in State practice. In the following, two such cases will be examined more closely – Austria’s survival of its forced Anschluß to Germany (1938-1945) and the continuity of the three Baltic republics Estonia, Latvia and Lithuania notwithstanding their annexation by the USSR (1940-1990/1991). Subsequently, we will contrast the claim of the Baltic States to State identity and continuity with the claim of present Georgia to be identical with the Republic of Georgia which existed for a brief period before it was annexed by Soviet Russia in 1921. Briefly, the unsuccessful claim of Georgia will be compared with the claim of Tibetan exiled leaders that Tibet is occupied by China and continues its international legal personality as an illegally annexed State.

13

See, also for further references to literature, C. Dominicé, “Methodology of International Law”, in: R. Bernhardt (ed.), Enciclopedia of Public International Law, Vol. 5, 334 (1985).

14

See UN SC Res. 662 (1990) of 9 August 1990. See also Res. 670 (1990) of 25 September 1990 and Res. 674 (1990) of 13 September 1990.

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III. The Continuity Claims of Austria and the Three Baltic States: Law and Politics The comparison of the legal status of Austria and the Baltic republics is not necessarily self-evident. For instance, writing in 1947, Stephan Verosta based his arguments concerning State continuity following illegal annexations upon the cases of “China, Ethiopia, Spain, Austria, Czechoslovakia, Albania, and also countries occupied by the Axis powers during the war such as Poland, Denmark, Norway, the Netherlands, Belgium, France, Greece, Yugoslavia, etc.”15 The lack of the three Baltic republics in this extensive list made the silence eloquent – although Estonia, Latvia and Lithuania were annexed by the USSR in circumstances quite similar to Austria‘s Anschluß, their independence was not restored at the end of World War II. Back in 1947, the comparison with the Baltic States could have potentially undermined the claim of the universality of the legal rule as it was advanced by Professor Verosta. This tiny detail already reveals that vicissitudes of politics have certainly had some role to play in the formation and application of the rule protecting the statehood of illegally annexed States. At the same time, the Austrian case has itself not been free from controversial aspects – as Austrian legal scholars and historians are increasingly ready to admit. To the extent that the illegality of Hitler’s Anschluß was counterbalanced by the Nazifriendly attitudes of a significant portion of the Austrian population in 1938, the claim of State continuity in 1945 beard a certain ex post facto mark. While this political aspect certainly did not justify Hitler’s threat of force from the viewpoint of international law, it probably influenced State practice in terms of recognition, at least before World War II broke out. A major question that is common both to the Austrian and Baltic cases has of course been: exactly since when can one speak of the illegality of annexations, especially in the cases when the use of force was only threatened and there was no outbreak of the state of war. Until today, the definition of aggression continues to present insurmountable legal and political difficulties. In the Pact of Paris of 1928, almost all States of that time had committed themselves to give up aggressive war as a means of national politics. However, the explicit prohibition of the “use and threat of force” was written down in a universal treaty only after World War II, in 1945. Were pre-UN Charter annexations such as the ones of Austria and the Baltic States therefore legal? Those annexations fell into the period which established a definite link between aggressive war and what Professor Verdross called occupatio quasi

15

S. Verosta, Völkerrechtliche Stellung Österreichs 8 (1947).


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bellica, i.e. formally non-belligerent yet non-voluntary occupations.16 The Judgment rendered by the Nuremberg Tribunal qualified the Austrian Anschluß, due to the threat of force involved, as an act of aggression. In the Austrian case, just as in the cases of the annexation of Ethiopia by Italy, most third States initially recognized the forcible annexation.17 It is difficult to explain the change of mind of the Allied Powers during World War II, symbolized by the October 1943 Moscow Declaration declaring the annexation of Austria by Germany “null and void”, with any other than political motives. However, some scholars have argued that not so much the confirmation of the Austrian occupation in the Moscow Declaration of 1943 was “political”, but the initial de facto or de iure recognition of the Anschluß violated newly emerged legal standards.18 For instance, Hans Wehberg maintained that already in the pre-World War II (post-1928) context forcible annexations were ipso iure null and void, and that even recognition by third States could not turn over such nullity.19 In the view of some scholars20, already Article 10 of the League of Nations Covenant implied a duty of non-recognition. Article 10 read: The Members of the League undertake to respect and preserve as against aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.

On March 11, 1932, the members of the League of Nations discussed the Japanese invasion of Manchuria and adopted an Assembly Resolution which proclaimed that it is incumbent upon Members of the League not to recognize any situation

16

See A. Verdross, „Die völkerrechtliche Identität von Staaten“, in R. Braun/A. Verdross/ L. Werner (eds.), Festschrift H. Klang zum 75. Geburtstag, 18-21 (1951).

17

For a thorough exposition of State practice, see Marek, supra note 3, passim.

18

See ibid., at 367-368. According to Marek, the continuity of Austria, Czechoslovakia, etc. was legally based on the illegality of annexation (i.e. on an objective criterion), and not on the (non-)recognition by third States. Non-recognition, to the extent that it was employed in the State practice, only confirmed the initial illegality of the annexation.

19

H. Wehberg, Krieg und Eroberung im Wandel des Völkerrechts 105-107 (1953), (writing that the recognition of the Italian annexation of Ethiopia was illegal, and 12 May 1938, the day when the League of Nations gave up its non-recognition policy was “one of the saddest hours of the League of Nations”, ibid., at 107.)

20

R. Langer, Seizure of Territory 70 (1947).

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which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris.21

The initial recognition by most – although not all – States of the annexations of Ethiopia, Austria and Czechoslovakia before the outbreak of World War II became a complicated case of how most members of the League of Nations did not live up to legal standards they had committed themselves to. In the case of the Baltic republics, the illegality of the Soviet annexation can in addition to treaties and developments in universal international law be established on the basis of bilateral and regional treaties that the USSR had concluded with Estonia, Latvia and Lithuania. For instance, the Soviet threats of military force addressed to the Baltic governments, and the military blockades established in 1940, violated the Soviet-Baltic Non-Aggression Pacts22, and qualify as acts of aggression according to Article 2 of the Soviet-proposed Convention for the Definition of Aggression which was signed in London on July 3, 1933.23 Moreover, the Red Army had conquered some chunks of the territory of the Baltic States – e.g. the island Naissaar near the Estonian capital Tallinn – already before the Soviet ultimatums had been presented and accepted. Most western States never recognized the Soviet incorporation of the Baltic republics.24 Especially the U.S. pursued a steadfest non-recognition policy during the five decades of the Soviet annexation. The positions of West European States were more ambiguous – typically, the Soviet annexation was not recognized de iure, but was recognized de facto. The application of this distinction created maneuvering room for political interests – for instance, the UK, although not recognizing the

21

This Resolution of the League of Nations Assembly became a significant predecessor of the Friendly Relations Declaration of the UN General Assembly that was adopted on 24 October 1970. See Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, annexed to GARes. 2625 (XXV) of 24 October 1970, UNYB 788 (1970). This Declaration proclaimed that the UN Charter principle that the States shall refrain in their international relations from the threat or use of force against any other State, included the following obligation: No territorial acquisition resulting from the threat or use of force shall be recognized as legal.

22

See the USSR-Lithuania Pact of 18 September 1926, 60 LNTS 146; USSR-Latvia Pact of 8 February 1932, 148 LNTS 126; USSR-Estonia Pact of 4 May 1932, 131 LNTS 297.

23

147 LNTS 69.

24

See for evidence W. J. H. Hough, III, “The Annexation of the Baltic States and Its Effect on the Development of Law Prohibiting Forcible Seizure of Territory”, 6 New York Law School Journal of International and Comparative Law 301 (1985).


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incorporation of the Baltic republics de iure, reached in 1968 with the USSR a settlement regarding Estonian, Latvian and Lithuanian gold reserves.25 The nonrecognition of the Soviet annexation was “political” and thus for lawyers suspicious enough to enable quite conflicting interpretations on the matter. Perhaps one may put it this way: while some authors have preferred to see the glass half-full, others have seen it half-empty. On the part of the latter, for example, Helmut Tichy has argued that “[t]he overwhelming majority of States had taken the position, at least implicitly, that the Baltic States were part of the Soviet Union.”26 And yet at the same time, until 1991, most western States had formally not recognized the Soviet incorporation of the Baltic States. During the decades of the Soviet rule in the Baltics, non-recognition seemed for many observers as a profoundly political act which did not have much more immediate effect than irritating Moscow. A number of scholars expressed sceptical views about the non-recognition of the de facto situation in Estonia, Latvia and Lithuania.27 It was asked whether such non-recognition, without having any tangible effects for the solution of the situation, would not damage the credibility of international rules. At stakes was not only the legal status of the Baltic States, but also the plausibility of such an engagement from the part of the international community. The skepticism was equally pronounced in other comparable cases involving violations of fundamental norms of international law. Writing in 1970, Hans Blix remained skeptical about the prospects of non-recognition in the case of Ian Smith’s regime in Southern Rhodesia.28 When the Smith regime finally failed, other scholars were more optimistic about the contribution of the policy of collective non-recognition. For example, Vera Gowlland-Debbas has written: “It is undoubtedly because of the general nonrecognition of the effectiveness of the situation created by the illegal régime over the years, that the Southern Rhodesian case came closer to a solution than it otherwise

25

See Agreement between the United Kingdom and the USSR concerning the Settlements of Mutual Financial and Property Claims of 5 January 1968, UKTS 12 (1968), Cmnd. 3517.

26

H. Tichy, “Two Recent Cases of State Succession – An Austrian Perspective”, 44 AJPIL 117, 127 (1992).

27

For instance, Joe Verhoeven argued in 1975 that the non-recognition of the Soviet incorporation of the Baltic States “reste aujourd’hui la satisfaction ultime accordée à un personnel diplomatique et à un groupe de réfugiés dans l’attente de leur disparition après celle de leurs États, qui estompera un scandal parmi tant d’autres dont sont faites les relations internationales”. See J. Verhoeven, La reconnaissance internationale dans la pratique contemporaine 307-308 (1975).

28

H. Blix, “Contemporary Aspects of Recognition” 130 RDC 587, 676-677 (1970).

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would have done.”29 In the Baltic case, one method of dealing with the uncomfortable gap between law and politics was silencing. As the relevant international legal rules could not initially be implemented in the Baltic case, it seemed that the best way to deal with the case was not to address it at all. Expositions of non-recognition policies since the formulation of the Stimson doctrine in 1932 came out without even mentioning the nonrecognition of the Soviet annexation in the case of the Baltic republics30 which, in the opinion of other authors31 was one of the landmark cases in the crystallization of the legal rule protecting illegally annexed States from extinction. This indicates that nonrecognition was treated by scholars as primarily a political and not a legal phenomenon. A certain role was of course played by the fact that in the Baltic case, non-recognition was never collective (e.g. led by the UN which was ideologically divided). The League of Nations was already de facto defunct when Estonia, Latvia and Lithuania were occupied by the USSR in 1940. It may be one of the indirect lessons of the Baltic case that the international community has increasingly realized the necessity of collective action or responses in the cases involving aggression. The comparison of the Austrian and the Baltic annexation cases leads to following considerations. Once the international community endorses the view that the annexations are illegal, and that illegally annexed States must be safeguarded from extinction, it will become very difficult to draw the line and establish, for example, that the fiction of State continuity is valid for seven years, as e.g. in the Austrian case, and not for longer period when the restoration of independence proves more difficult, as e.g. in the Baltic case. Some strict “montevideoists” seem to accept deviations from the ideal that “statehood in international law must correspond to social reality” only when illegal annexation remains “brief”. But once the crucial criterion of illegality is met and on this basis, an illegally annexed State can survive for ten years, being only virtually dead (scheintot), it should, as a legal entity, be able to survive longer periods as well. Seen from the perspective of illegality, the major concern for the international lawyers should not be how can a State survive fictionally for so long time, but rather how can it happen that a State can be illegally annexed for so long time? Moreover, it would not make a very strong impression of the credibility of a legal rule which secretly signals to the aggressor: your illegal act will not be recognized – unless you really manage to consolidate the situation!

29

V. Gowlland-Debbas, Collective Responses to Illegal Acts in International Law. United Nations Action in the Question of Southern Rhodesia 325 (1990).

30

See, e.g., H. Blix, supra note 28, at 567-703.

31

See, e.g., W. J. H. Hough, III, supra note 24.


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A passage of time is a factor that has not been ignored when the legal consequences of State continuity have been at stake. The longer the period of illegal annexation, the more profound have been changes within the society. In such cases, solutions adopted in State practice usually fall considerably shorter of the normative ideal of restitutio ad integrum, even when the reestablished States insists on the restoration of former rights.32 Nevertheless, the issue of legal consequences of the status will depend not only on the passage of time but on many other factors, such as specific circumstances of the annexation. In the case of Baltic republics Latvia and Estonia, pragmatic and geopolitical considerations have led to the pressure by Western States to loosen up the naturalization requirements in favor of the large number of Russian settlers of the Soviet era, although the Baltic republics have maintained that they were occupied while those settlement policies were carried out. Thus, the legally founded claim of State continuity does not yet provide automatic answers to all problems arising in the practice – which confirms the main thesis about the perennial conflict between legal theories and political needs. The fact remains, however, that in 1991 and afterwards, most States, in one or other manner, recognized the continuity claim of the Baltic States, just as Austrian continuity had been recognized in the end of World War II. In the Baltic case, third States have in their statements exclusively relied upon legal arguments in justifying the recognition of State continuity. It is therefore not correct to treat those cases as instances of arbitrary political fictions. The reestablishment of the Baltic republics reconfirmed what the US scholar Robert Clute had observed already in the Austrian case: actual developments received a minimum of aid from juridical theorists and originated pragmatically through state practice as a part of the defense mechanism of the international community to maintain the international legal order by preventing such an illegal act from attaining legal consequences.33

As already indicated, questions involving legal consequences of the status became a separate matter in the Austrian and the Baltic cases. Often most challenging for reestablished States has been the fact that precisely the former occupying States are reluctant to accept the continuity claims of the disannexed States. Post-World War II German courts rejected the claim of Austria that it was occupied between 1938-1945, and – for the purpose of determining nationality – maintained that Austria of 1945

32

For example, Estonia, Latvia and Lithuania were unable to restore their membership in the ILO following the restoration of their independence in 1991, just as Austria was unable to restore its membership in the League of Nations before the dissolution of the latter in 1946.

33

R. E. Clute, The International Legal Status of Austria 1938-1955 (1955).

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was a new State in international law.34 The issue arose mainly in nationality questions, although for Austria, one of the central issues was of course the question of State responsibility for acts of the Nazi regime during the period of incorporation. In the case of the Baltic republics, the Russian government has not accepted any responsibility for the illegal Soviet acts in the Baltics, but has instead rejected the continuity claim of the Baltic States. In the light of the relevant State practice, Konrad Bühler raises a further issue with respect to State continuity and its consequences: in view of the decentralized international system it often seems that each State, individually, determines its position vis-à-vis the State claiming continuity?35 In such a case, State identity would in effect be “bilateralized, opening the possibility of even contradictory conclusions of identity regarding particular bilateral relationships.”36 It seems to this author, however, that at least in the cases involving illegallity, international law should not endorse such bilateralization. In multilateral relations among States, however, such a new paradigm of bilateralization would cause major structural difficulties.37 With the introduction of concepts such as ius cogens and obligations erga omnes, aggression and illegal annexations have become a general concern, a subject matter not just for bilateral relations, but for the international community. Saddam Hussein’s regime of Iraq was obviously interested in treating Kuwait as a “new” State in a special “bilateralized” manner – however, the international community is under the law of nations obliged to reject such aspirations at the outset. At the same time, in the stage of the development of the international community, the fact remains that even though the Western States have recognized the State identity claim of Estonia, Latvia and Lithuania, the Russian Federation has refused to recognize such claims. In this sense, the respective claims remain in the respective bilateral relations largely neglected and therefore fictional. The point that seems to be important to maintain here is that in the cases involving illegality, international law resists legitimizing the fact and/or consequences of illegal acts.

34

For an overview see further ibid., at 54 et seq.

35

K. Bühler, supra note 7, at 319.

36

Ibid., at 319.

37

Ibid.


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IV. The Reverse Side of the Coin: Non-Recognized Continuity Claims Thus, the identity of the Baltic republics has been recognized by most, although not all, States in 1991 and afterwards. Nevertheless, scholars have continued to express doubts about the exact meaning of such recognition. The regaining of independence itself, in the view of some lawyers, was recognized not necessarily due to the illegality of the annexation, but on the basis of other legal (and political) principles such as the right of peoples to self-determination.38 For example, Jorri Duursma has indicated that the non-recognition of the 1940 annexations was not necessarily the main legal reason for accepting the secession of the Baltic States in 1991”.39 However, in contrast to those authors, it can be maintained that the violation of the right of the Baltic peoples to self-determination was a further factor which contributed to the illegality of the Soviet annexation, in addition to the threats (or even use of) military force. Although the right to self-determination was not yet a part of general international law in 1940, it was firmly established in the 1920 Soviet-Baltic Peace Treaties40 and as such, very progressively, a part of regional international law as far as Soviet-Baltic treaty relations are concerned. At the same time, it remains doubtful whether this legal aspect of self-determination, lacking universal nature in 1940, played a crucial role in the legal estimation of the Baltic situation by third States. For the study of customary legal rules, the instances of contrary State practice may prove especially challenging. If cases in which State continuity was recognized after a period of annexation do confirm the existence of the respective customary legal rule protecting statehood of the illegally annexed States, then all similar cases involving illegality must be covered by that rule. Moreover, cases of reestablished States not involving illegal annexations should not be treated with the similar fiction of State continuity in the practice. To find out whether this is the case, we need to

38

See, e.g., C. Gray, “Self-Determination and the Breakup of the Soviet Union”, 12 YB of European Law 483, 484 (1992).

39

J. Duursma, Fragmentation and the International Relations of Micro-States. Selfdetermination and Statehood 99 (1996).

40

See for instance Art. 2 of the Estonian-Soviet Russian Peace Treaty of 2 February 1920, 11 LNTS 51: “On the basis of the right of all peoples freely to decide their own destinies, and even to separate themselves completely from the State of which they form part, Russia unreservedly recognizes the independence and autonomy of the State of Estonia”. In the view of Vladimir Lenin, the Peace Treaty of Tartu between Soviet Russia and Estonia had a “global-historical significance”. See V. I. Lenin, Sochinenia (Collected Works), vol. 30, at 293 (1959).

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examine briefly some cases in which State continuity after annexation has not been recognized. As we will see soon in the context of Georgia, the 1920 Soviet Peace Treaties with its new border States offer a relevant occasion to examine the subject matter from the reverse side of State practice. The history of unsuccessful claims of identity with the respective annexed predecessor States is much longer that the history of the recognition of such claims by other States. For example, both Poland and Lithuania claimed after World War I that they were occupied from 1795-1918 and expected to continue and revitalize their statehood.41 However, those claims – and that of Georgia42 whose independence remained very short – were not recognized in State practice. More recently, the suggested legal concept of the “reversion to sovereignty”, invoked to characterize the special legal status of once independent States in the process of decolonization43, has not found any specific recognition in State practice.44 The respective claims of identity with pre-colonial States conquered and annexed by European powers – such as in the case of Algeria – were not recognized by the post-1945 international community. These cases indicate that the international community is reluctant to employ the legal construction of State identity for reestablished States too easily. It can be suggested that the element of the illegality of annexation is indeed crucial in the process of claim and recognition. Illegal annexation and its non-recognition therefore become a conditio sine qua non for State identity to become a legal, and not just historical and political phenomenon in the cases of reestablished States. There are at present only a few cases in which recognition has not followed at least partly justified claims of illegality. For example, the present Republic of Georgia in the Caucasus has invoked the Peace Treaty of May 7, 1920 between Georgia and Soviet Russia, and argued that the Soviets violated this treaty when they occupied

41

For Poland, see, e.g., S. Cybichowsky, „Das völkerrechtliche Okkupationsrecht“, 18 Zeitschrift für Völkerrecht 295 (1935), and A. Uschakow, „Die Wiederherstellung Polens im Lichte des Völkerrechts“, in B. Meissner/G. Zieger (eds.), Staatliche Kontinuität unter besonderer Berücksichtigung der Rechtslage Deutschlands 107 (1983).

42

Georgia, too, claimed that it was only occupied by the Tsarist Russia. See about this claim in O. Nippold, La Géorgie du point de vue du droit international (1920).

43

See the dissenting opinion of Judge Moreno Quintana in the Case Concerning Right of Passage over Indian Territory (Porg. v. Ind.), Merits, Judgment of 12 April 1960, 1960 ICJ Reports 6, at 95 (diss. op. Judge Moreno Quintana), and C. H. Alexandrowicz, “New and Original States. The Issue of Reversion to Sovereignty”, 45 International Affairs 465 (1969).

44

See also J. Crawford, The Creation of States in International Law, 401 et seq. (1979).


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and annexed Georgia in 1921.45 In January 1992, the Military Council (Georgian provisional Government) of Zviad Gamsakhurdia proclaimed the re-instatement of the Georgian Constitution of Feburary 22, 1921.46 The parallel with the three Baltic republics was obvious and intended: Soviet Russia had recognized the independence of both Georgia and the Baltic States in Peace Treaties of 1920. If the forcible seizure of Estonia, Latvia and Lithuania by the USSR violated the respective Peace Treaties in 1940, the Soviet-Georgian Peace Treaty must in somewhat similar factual circumstances of conquest have been equally violated in 1921. However, the post-1991 Georgian claim of identity with the independent Georgia of 1918-1921 has not been recognized in State practice. Was this distinction between Georgia and the Baltic States made for political reasons, e.g. because the latter were geographically and maybe culturally ‘closer’ to key European countries and thus managed to produce more support for their claims? Not necessarily so. Although Georgia could legitimately claim that its incorporation by Soviet Russia in 1921 violated the Soviet-Georgian Peace Treaty and was an illegal act from the point of view of Soviet-Georgian bilateral relations, its claim of the illegality of annexation was weaker than in the case of the Baltic republics.47

45

See the Act of Restoration of the Georgian Independent Statehood, 9 April 1991, No. 291, in Laws and Decrees adopted by the Supreme Council of the Republic of Georgia, quoted in K. Korkelia/G. Lordkipanidze, “State Succession in Respect of International Treaties in Post-Independent Soviet Union: Some Reflections on the Status of Georgia”, 3 International Law Journal of the Tbilisi State University, 41, 47 (1998-I/II).

46

See F. J. M. Feldbrugge, “The Law of the Republic of Georgia”, Review of Central and European Law 371, 372 (1992, No. 4).

47

It appears that especially in August 1991, Western States were eager to stress this difference between the legal status of the Baltic States, and other Soviet republics. See, e.g., a letter titled “Recognition of the Baltic States” of 30 August 1991, sent by the Netherlands Minister for Foreign Affairs to the Parliament, in which it is stated under the heading “Precedental Effects”: “Given the special historical and international legal position of the Baltic States, recognition of them does not constitute a precedent for recognition of other territories which have declared themselves independent or which do so in future, as far as the Twelve [EC members] are concerned. The Baltic States were, after all, fully independent State between 1920 and 1940, were members of the League of Nations and immediately recognized, by the Soviet Union among others. As was mentioned earlier, incorporation into the Soviet Union in 1940 took place against the will of the population, and was never recognized de iure by most countries. This does not hold true for the other parts of the Soviet Union, which all have their different histories.” See 23 NYBIL 299-300 (1992). Note that the Netherlands, as well as Sweden and Spain, differently from other West European States, had formally recognized the Soviet incorporation of the Baltic States. Therefore, the note talks about the recognition of the Baltic governments. Other EC countries, due to the non-recognition of the annexation, simply restored diplomatic relations.

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In 1921, forcible seizure of territory was not yet prohibited under general international law. It is primarily for this reason that the non-recognition of the (re-) incorporation of independent Georgia by Soviet Russia in 1921 was never an issue for the international community. Although the annexation of the Baltic States by the USSR predated the adoption of the UN Charter in 1945 – and some authors therefore deny the universal nature of the prohibition of at least threats of use of force in the Baltic case too48 –, conquests were treated as illegal under general international law only after the adoption of the Pact of Paris in 1928. What about the use of force and annexations in the post-1945 world that is legally governed by the UN Charter? Outright annexations have remained seldom and are generally condemned by the international community. In some rare post-colonial cases, such as the annexation of Goa by India, the international community has weighed the illegal element of the use of force against special circumstances, including the claimed right to self-determination, and ultimately recognized the fait accompli. From the point of view of illegal annexation and State continuity, the most contested case has been the Communist Chinese invasion of Tibet on October 7, 1950 and its formal annexation in May 1951.49 In 1959, following an anti-Chinese uprising in Tibet, the complete subjugation of Tibet’s autonomy followed. Beijing insists that Tibet has never during the history been an independent State but merely a part of China with certain autonomy from the rest of the country. However, the historical evidence proves that at least from 1912 until 1950, Tibet was de facto independent from China. During this period, Tibet remained a hermit State, which did not maintain diplomatic relations with other States nor applied for membership of international organizations such as the League of Nations. As the Communist Chinese forces invaded Tibet following the crystallization of the rule prohibiting illegal use and threat of force in general international law, Michael C. van Walt van Praag has made the argument for the legal continuity of the State of Tibet: The continued support for the Dalai Lama among the overwhelming majority of the population, the active resistance to Chinese in Tibet, the successful development of the Tibetan policy in exile, and the functioning of the government in exile are all factors that contribute to the continuity of the Tibetan State.50

Western States recognize Tibet officially as part of China, but have occasionally protested the Chinese presence and policies in Tibet. Notwithstanding official Chinese

48

See, e.g., Dörr, supra note 6, at 67, 82, 94 and 350-355.

49

See M. C. van Walt van Praag, The Status of Tibet. History, Rights and Prospects in International Law (1987).

50

Ibid., at 187.


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protests, the U.S. President George W. Bush met with the 14th Dalai Lama in a “private capacity” and “coincidentally” on the 50th anniversary of the so-called 17-point agreement between China and Tibet which according to the Chinese claim sealed Beijing’s sovereignty over Tibet.51 Scholars have seen in the re-establishment of the Baltic States in 1991 on the basis of State continuity a potential model for Tibet.52 Legally and politically, the status and future of Tibet remain disputed. The question of Tibet’s international legal status cannot be simply wiped off by the argument that Tibet was not “really” a State when it was overrun by Communist China. Additionally, there exists the issue of implications of the right of peoples to self-determination in this case. If one agrees with the presumption that Tibet was independent State before the Communist Chinese annexation, the warning that it may prove difficult to uphold consistently the ‘fiction’ of the continued existence of the illegally annexed States holds some credibility.

V. Conclusions It is true that the traditional concepts of State identity have failed to offer adequate explanations for numerous phenomena in practice. The present article, too, demonstrated, that even in cases involving aggression and illegal annexation, State practice is marked not only by the application of legal theories – which, after all, not seldom happen to contradict each other – but also by political interests and power relations. Nevertheless, State practice involving legal status in the cases of illegal annexation is far from being inconsistent and purely political. Especially when studied in the historical perspective, the rule confirming the continued legal existence of the illegally annexed States has been established in international law. Konrad Bühler’s suggestion to address the problem of the inadequacy of traditional concepts is the deconstruction of the concepts of State identity and statehood. In the light of the conflicting practice, he proposes a theory of “partial identity” and “functional splitting” as opposed to maintaining the “dogma of the indivisibility of State identity”.53 In most cases of State succession, this is probably a quite practical solution, although it will not be an easy task to sort out formal criteria for such a splitting of legal status. The present author suggests, however, that in the cases

51

See E. Eckholm, “A New Poke in the Eye: China Bristles Over Tibet”, New York Times, 23 May 2001.

52

See, e.g., K. Prunskiene, „Unabhängigkeit als Option für die Selbstbestimmung – das Beispiel Litauen“, in K. Ludwig (ed.), Perspektiven für Tibet 91 (2000).

53

See Bühler, supra note 7, at 316 and 318.

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involving illegal annexation, the certain tendency for political pragmatism in State practice is not legitimized by international law concepts. Instead, the normative ideal of State continuity is upheld in the cases of illegal annexation in international law. Recognizing the importance of political solutions in matters of State succession and continuity is a question of intellectual honesty for the international lawyers. It would be an ostrich’ attitude to pretend that States approach political and historical changes – inter alia those involving forcible seizure of territory – only with readymade objective, legal criteria. In revealing hypocrisies and deficiencies in the mainstream “positivist” approach, the deconstructive method enables valuable new insights and makes thus a service to the international law discourse. A weak organism cannot be made strong by hiding the weakness – instead, the method of discovering, analyzing and finding cure for the weakness promises better results. In a certain sense, the very emergence of deconstructive approaches within the camp of international legal scholars gives evidence of the further maturing of the discipline of international law. Today, both the mainstream interpretations of international law and the deconstructive approach can co-exist without necessarily destroying each other intellectually. Following a thought in Hegel’s philosophy of history, one might hope that the project of deconstruction is the antithesis that the thesis, international law, needs in order to reach a new level of credibility, a much hoped synthesis. At the same time, the deconstructive method occasionally seems to encourage throwing the baby out with the bath water. Old concepts proved to be unsatisfactory, so let’s get rid of them! Politics plays a much bigger role in international relations than mainstream international lawyers are willing to admit, so let’s put politics back where it belongs54, including the center of the legal analysis and new legal concepts! Whether the conflict between legal theories and political pragmatism, or law and politics generally, can always be solved in that way remains questionable. For instance, one can argue that the theory of “functional splitting” ultimately means the acceptance that State succession is just a political matter. Would it not then be already more consistent to admit that international law does not reach into this realm of conflicting political interests (as “realists” among political scientists would maintain anyway)? It is clear that in this area of international activity, it is a difficult task to reconcile international legal concepts with the social reality. Martti Koskenniemi has powerfully argued that international legal arguments oscillate between apology and utopia.55 It seems to this writer that to the extent that international law intends to be ethical, it cannot avoid being “utopian”. The expecta-

54

See, e.g., in the context of the UN, D. Kennedy, “Putting the Politics Back in International Politics”, 9 FYBIL 17 (1998).

55

M. Koskenniemi, From Apology to Utopia. The Structure of the International Legal Argument (1989).


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tions of peoples and individuals for justice are nowadays – in our post-imperial, postcolonial world – too big for that an apologetic international law could claim legitimacy. Therefore, it seems that international legal doctrine has no other choice than to stand for central values embedded in legal concepts and continue living with a certain gap between law and social reality. At least in the cases involving illegal annexation, this author supports the normative strengthening of models offered by Krystyna Marek and other leading positivist legal scholars. To the extent that these models have proved too utopian, they must of course be modified. For instance, the normative presumption of the restoration of the former legal relations – restitutio in integrum – in cases involving prolonged illegal annexation, has been balanced with “political pragmatism” in State practice. There are no reasons why international legal doctrine should not take this into account, although the necessary link between the status and the rights cannot of course be abolished altogether. It is time for international legal doctrine to overcome the exaggeratedly deep respect for the principle of effectiveness56, and to recognize the fact that in State practice, the principle of State continuity in cases involving illegal annexations has outweighed concerns for the respect of the Montevideo criteria of statehood. The reestablishment of the Baltic States reconfirmed the bold presumption that even a prolonged illegal annexation would leave the annexed State’s international legal personality unaffected. Every legal order uses fictions as means of guaranteeing compliance, in order to enable the functioning of the legal norm.57 Use of force and other aggressive acts attack values which are so fundamental to the international community that the legal fiction of State continuity has proved to be a necessary “evil” when compared to devastating effects which legitimizing illegal conquests would have both for the international community and for the law designed to govern the conduct of its members.

56

For instance, Professor Brigitte Stern, the special rapporteur of the ILA in the matters of State succession, has used a cautious formulation in arguing that States would not lose their personality as subjects of international law “in the cases of military, temporary and transitory occupation (which is not connected to changes of sovereignty)”. But exactly here lies the point that should clearly be recognized in the doctrine: in modern international law, annexation remains illegal even when it is not temporary and transitory. No change of sovereignty takes place in such cases, and the annexed State preserves its international legal personality. B. Stern, “Rapport preliminaire sur la succession d’etats en matiere de traits”, The International Law Association, Report of the ILA’s 67th Conference held at Helsinki 6 (1996).

57

See M. Chemillier-Gendreau, “Origine et rôle de la fiction en droit international public”, 32 Archives de Philosophie du Droit 153, 160 (1987).

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Some Problematic Aspects of Recent EU Financial Anti-Terrorism Measures

111

Some Problematic Aspects of Recent EU Financial Anti-Terrorism Measures August Reinisch*

I.

Background and Basis of EU Anti-Terrorism Measures

Measures to combat terrorism are not a new phenomenon on the EU level. The fight against terrorism has been one of the intergovernmental policy areas at least since the 1992 Maastricht Treaty. The Treaty on European Union (TEU) expressly states that “preventing and combating crime, organised or otherwise, in particular terrorism,” is one of the tasks of the Union in order to achieve the union’s objective “to provide citizens with a high level of safety within an area of freedom, security and justice”.1 Article 29 TEU identifies three specific areas of closer co-operation: closer co-operation between police forces, customs authorities and other competent authorities, including Europol; closer co-operation between judicial and other competent authorities of the Member States; as well as approximation, where necessary, of rules on criminal matters. Legislative work on measures against all forms of cross-border organised crime, including terrorism, was pursued by the EU already before 11 September 2001.2 It even goes well beyond the Maastricht Treaty-created co-operation in the field of JHA and partly dates back to the intergovernmental cooperation developed through the European Political Co-operation in the 1970s. An important step was the formation of the TREVI3 Group in 1975 in which the Interior Ministers met in order to combat terrorism through increased police co-operation. But it is obvious that the Maastricht Treaty on European Union elevated the cooperation to new levels: In 1996 the Council decided by a Joint Action of 15 October

*

August Reinisch is Professor of International and European Law at the University of Vienna and Professorial Lecturer at the Bologna Center of SAIS/Johns Hopkins University in Bologna.

1

Art. 29 (2) (ex Art. K.1) TEU (emphasis added).

2

See in general T. Stein/C. Meiser, “Die Europäische Union und der Terrorismus”, 76 Die Friedens-Warte 33 (2001).

3

French acronym for: Terrorisme, Radicalisme, Extremisme et Violence Internationale.

Austrian Review of International and European Law 7: 111-146, 2002. ©2004 Koninklijke Brill NV. Printed in the Netherlands..

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19964 to create and maintain a directory of specialised counter-terrorism competences, skills and expertise to facilitate counter-terrorism co-operation between the EU Member States. With respect to judicial co-operation, Article 31 (b) TEU expressly mentions the facilitation of extradition between Member States. In the 1990s the EU adopted a number of treaties in this field, supplementing the 1957 Council of Europe sponsored European Extradition Convention5 and the 1977 European Convention on the Suppression of Terrorism6: among these are the Convention of 10 March 1995 on simplified extradition procedure between the Member States of the European Union7 and the Convention of 27 September 1996 relating to extradition between the Member States of the European Union.8 The Union also adopted in 1998 a Joint Action on the creation of a European Judicial Network9 and a Joint Action on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union.10 Despite all these activities on the EU level, it cannot be denied that the participation in the fight against terrorism has proven to be also an institutional challenge for the EU. This has mainly technical, legal reasons. Most of these measures relate to the field of justice and police matters – core issues of national sovereignty – wherein the Union only slowly attains powers according to the complicated architecture of the Maastricht TEU. The Treaty’s allocation of competences in the Justice and Home Affairs (JHA) pillar only sparingly conceives of genuine EU powers to combat terrorism. With the

4

Joint Action 96/610/JHA of 15 October 1996, adopted by the Council on the basis of Art. K.3 of the Treaty on European Union, on the creation and maintenance of a directory of specialized counter-terrorist competences, skills and expertise in the Member States of the European Union, OJ L 273/1, 25 October 1996.

5

Paris, 13 December 1957, ETS No. 24, available at http://conventions.coe.int/Treaty/en/ Treaties/Html/024.htm.

6

Strasbourg, 27 January 1977, ETS No. 90, available at http://conventions.coe.int/Treaty/ EN/Treaties/Html/090.htm.

7

OJ C 78/1, 30 March 1995.

8

OJ C 313/11, 23 October 1996.

9

Joint action 98/428/JHA of 29 June 1998, adopted by the Council, on the basis of Art. K.3 of the Treaty on European Union, on the creation of a European judicial network, OJ L 191/ 4, 07/07/1998. Available at http://europa.eu.int/eur-lex/pri/en/oj/dat/1998/l_191/1_19119980 707 en00040007.pdf.

10

Joint action 98/733/JHA of 21 December 1998 adopted by the Council on the basis of Art. K.3 of the Treaty on European Union, on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union, OJ L 351/1, 29/12/ 1998, available at http://europa.eu.int/eur-lex/pri/en/oj/dat/1998/l_351/l_35119981229en 00010002.pdf.


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Treaty of Amsterdam the new Third Pillar, now referred to as Police and Judicial Cooperation in Criminal Matters (PJCC), provides for certain harmonisation powers, such as the possibility to adopt framework decisions under Article 34 TEU.11 At the October 1999 European Council meeting in Tampere, the concept of extradition law, whether traditional or simplified, was abandoned in favour of a “mutual recognition” approach taken over from the supranational pillar of the EC. The European Council declared that the principle of “mutual recognition” should become the cornerstone of judicial co-operation in both civil and criminal matters within the Union and that “the formal extradition procedure should be abolished among the Member States as far as persons are concerned who are fleeing from justice after having been finally sentenced, and replaced by a simple transfer of such persons.”12 With regard to the harmonisation of criminal law, Article 31 (e) TEU contains a clear legislative mandate calling for the adoption of measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the field of, among others, terrorism. Thus, the issue of defining terrorism as a criminal offence has become an unavoidable legal problem for the EU. By the end of the 1990s the EU had prepared proposals for two basic legal instruments for these purposes: a Council Framework Decision on combating terrorism13 and a Council Framework Decision on the European arrest warrant.14 During the same period, the 1990s, also called the sanctions decade,15 the EU has gained experience in the adoption of targeted economic sanctions, in particular, travel bans, arms restrictions and freezing of assets of individuals.16 This preparatory work

11

According to Art. 34 (2) (b) TEU the Council may “unanimously on the initiative of any Member State or of the Commission adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect”.

12

Tampere European Council 15 and 16 October 1999, Presidency Conclusions, para. 35. Available at http://ue.eu.int/Newsroom/LoadDoc.asp?BID=76&DID=59122& LANG=1.

13

See infra note 28. It was formally adopted on 27 December 2001.

14

Council Framework Decision on the European arrest warrant and the surrender procedures between the Member States (2002/584/JHA), OJ L 190/1, 18/7/2002, available at http://europa.eu.int/eur-lex/en/dat/2002/l_190/l_19020020718en00010018.pdf. It was finally adopted on 13 June 2002.

15

Cf. D. Cortright/G. A. Lopez, The Sanctions Decade: Assessing UN Strategies in the 1990s. (2000).

16

See the overview contained in http://europa.eu.int/news/110901/.

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together with existing practice gained new momentum after the terrorist attacks of 11 September.

II. The Impact of 11 September 2001 While the immediate response to the terrorist attacks on 11 September 2001 in the US focused on the question whether these attacks gave rise to the right to use force,17 it became clear, already at a very early stage, that the “fight against terrorism” will also be fought with the means available to criminal justice.

A. The UN Reaction: Security Council Resolutions 1368 and 1373 On 12 September 2001, the day after the terrorist attacks, the UN Security Council (SC) adopted Resolution 1368 condemning the terrorist acts of the previous day and called upon all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable;18

It also called upon the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international antiterrorist conventions and Security Council resolutions, in particular Resolution 1269 (1999) of 19 October 1999;19

17

Already on 12 September 2001 the UN Security Council “[r]ecogniz[ed] the inherent right of individual or collective self-defence in accordance with the Charter”. Preambular para. 3 UN Res. 1368, available at http://www.un.org/Docs/scres/2001/res1368e.pdf.

18

Ibid.

19

In Res. 1368 the SC “[c]alls upon all States to implement fully the international anti-terrorist conventions to which they are parties, encourages all States to consider as a matter of priority adhering to those to which they are not parties, and encourages also the speedy adoption of the pending conventions” (op. para. 2) and “[c]alls upon all States to take, inter alia, in the context of such cooperation and coordination, appropriate steps to - cooperate with each other, particularly through bilateral and multilateral agreements and arrangements, to prevent and suppress terrorist acts, protect their nationals and other persons against terrorist attacks and bring to justice the perpetrators of such acts; - prevent and suppress in their territories through all lawful means the preparation and financing of any acts of terrorism;


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On 28 September 2001, the UN SC adopted Resolution 1373.20 This Resolution contains in 18 sub-paragraphs a list of specific measures against terrorism States are required to take. Among these are the prevention and suppression of the financing of terrorist acts, the freezing of funds, the criminalisation of the financing of terrorism, criminalisation of terrorism and other acts of support to terrorism21 and other obligations. It also established a Counter-Terrorism Committee (CTC)22 to monitor implementation of Resolution 1373 and to receive State reports on the measures taken to implement this resolution. What is particularly interesting about this resolution is the fact that the UN SC clearly ventures into the field of general law-making activity. It should be noted that Resolution 1373 does not contain any specific reference to 11 September 2001, to Osama Bin Laden or to Al Qaida. Rather, it imposes very general obligations on States to legislate and take other measures in the fight against terrorism.23

B. Declaration by the EU On 12 September 2001, the day after the attacks on the World Trade Center and the Pentagon, the EU Foreign Ministers reaffirmed in the General Affairs Council the Union’s

-

-

deny those who plan, finance or commit terrorist acts safe havens by ensuring their apprehension and prosecution or extradition; take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not participated in terrorist acts; exchange information in accordance with international and domestic law, and cooperate on administrative and judicial matters in order to prevent the commission of terrorist acts” (op. para. 4).

20

Available at http://www.un.org/Docs/scres/2001/res1373e.pdf.

21

UN SC Res. 1373 para. 2 (e) provides: “Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts”.

22

Available at http://www.un.org/Docs/sc/committees/1373/.

23

See J. D. Aston, „Die Bekämpfung abstrakter Gefahren für den Weltfrieden durch legislative Maßnahmen des Sicherheitsrats – Res. 1373 (2001) im Kontext“, 62 ZaöRV, 258-291 (2002); J. Finke/C. Wandscher, „Terrorismusbekämpfung jenseits militärischer Gewalt“, 49 Vereinte Nationen, 168-173 (2001); P. Szasz, “The Security Council Starts Legislating”, 96 AJIL, 901-905 (2002).

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“complete solidarity with the government of the United States and the American people.”24 Already at this early stage, EU action was directed, among others, at fighting terrorism by taking preventive action which means, in particular, also financial measures: The Union will work closely with the United States and all partners to combat international terrorism. All international organisations, particularly the United Nations, must be engaged and all relevant instruments, including on the financing of terrorism, must be implemented.25

C. The EU Action Plan On 21 September 2001 at the Extraordinary European Council Meeting in Brussels the European heads of State and government adopted an ambitious Action Plan, listing measures from enhancing police and judicial co-operation, developing international legal instruments, putting an end to the funding of terrorism, strengthening air security, to coordinating the European Union’s global action.26 This Action Plan contains, inter alia, the following legal agenda: 1. The introduction of a European arrest warrant and the adoption of a common definition of terrorism “as a matter of urgency” and at the latest at its meeting on 6 and 7 December 2001; 2. the identification of presumed terrorists in Europe and of organisations supporting them in order to draw up a common list of terrorist organisations; 3. member States sharing with Europol, systematically and without delay, all useful data regarding terrorism; 4. a call for the implementation of all existing international conventions on the fight against terrorism (UN, OECD, etc.); 5. combating the funding of terrorism as a decisive aspect of the fight against terrorism; 6. measures to strengthen air transport security among them: classification of weapons; technical training for crew; checking and monitoring of hold

24

Special Council Meeting - General Affairs - 12 September 2001, 11795/01 (Presse 318), available at http://europa.eu.int/news/110901/september.htm.

25

Ibid.

26

Conclusions and Plan of Action of the Extraordinary European Council Meeting on 21 September 2001, Press Release 21/9/2001 No. 140/01, available at http://ue.eu.int/en/Info/ eurocouncil/index.htm.


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luggage; protection of cockpit access; quality control of security measures applied by Member States; 7. the General Affairs Council to assume the role of co-ordination and providing impetus in the fight against terrorism. This list includes a number of important legislative measures taken in response to the challenge of terrorism. It should not be overlooked, however, that a host of other measures have been taken or initiated by the EU under the title of “fighting terrorism” in response to the 11 September attacks, such as humanitarian relief for Afghanistan, flight security measures, emergency preparedness, air transport insurance, etc.27 The following contribution will focus, however, on some problematic aspects of the EU legislation freezing “terrorist” assets and preventing the financing of terrorism.

D. The EU Common Position on Combating Terrorism On 27 December 2001 the Council acting under Articles 15 and 34 TEU finally adopted the Common Position on combating terrorism.28 The text of this common position basically reiterates the measures listed in UN SC Resolution 1373.29 A common position30 both in the CSFP and the PJCC area does not have any immediate legal effect. Rather, it requires the Member States or – where the EU/EC has powers – the Union/Community to take action. To a large extent the financial measures discussed hereinafter can be viewed as action implementing the common position of 27 December 2001.

III. Financial Sanctions Provided for in UN SC Resolution 1373 As already mentioned, UN SC Resolution 1373 provides for a very broad array of measures to be taken by UN Member States. For the purposes of the following analysis,

27

See for an overview of EU measures: http://europa.eu.int/news/110901/. See also C. C. Muguruza, “The European Union’s Reaction to the Terrorist Attacks on the United States”, 14 Humanitäres Völkerrecht, 234-243 (2001).

28

2001/930/CFSP, OJ L 344/90, 28 December 2001, available at http://europa.eu.int/eur-lex/ pri/en/oj/dat/2001/l_344/l_34420011228en00900092.pdf.

29

See supra note 20.

30

According to Art. 15 TEU “[c]ommon positions shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the common positions”. Similarly, Art. 34 para. 2 (b) TEU provides that the Council may “adopt common positions defining the approach of the Union to a particular matter”.

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only the financial measures, i.e. freezing of terrorist assets and preventing funds from being made available to terrorists, should be briefly addressed in order to provide the background of the EU action which implements these UN obligations. SC Resolution 1373 provides that all States shall: Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities.31

An important aspect of combating terrorism lies in putting a hold on the funding of terrorism. As has been clearly demonstrated by the 11 September attacks, terrorists increasingly have control over large amounts of financial resources. It is these resources which support and sometimes even enable them to commit their acts. In line with the stated purpose of preventing funds from being made available for terrorist acts the UN SC in Resolution 1373 decided that all States shall: Prevent and suppress the financing of terrorist acts;32 Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;33 and Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons; 34

31

UN SC Res. 1373 para. 1 (c).

32

UN SC Res. 1373 para. 1 (a).

33

UN SC Res. 1373 para. 1 (b).

34

UN SC Res. 1373 para. 1 (d).


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IV. EU Measures Concerning Freezing Accounts and Assets A. Amendments to the Existing Legislation in order to Specifically Target Al Qaida In order to comply with the asset freezing obligations under UN SC Resolution 1373 provision the EU amended its existing freezing legislation with respect to the Taliban to target Bin Laden and Al Qaida. In addition, it drafted new legislation providing a legal basis for the freezing of assets of other terrorists and terrorist groups. On 11 September 2001 far-reaching sanctions, including financial sanctions and the freezing of assets, had already been in force targeting Usama Bin Laden and Al Qaida. In February 2000 – following the adoption of and with a view to implement UN SC Resolution 1267 (1999) – the EU had adopted a flight ban and a freeze of Taliban funds through Council Regulation (EC) 337/200035 which was broadened in March 2001 by Council Regulation (EC) 467/200136 providing for the freezing of all funds and other financial resources belonging to any natural or legal person, entity or body designated by the “Afghanistan Sanctions Committee” (established under UN SC Resolution 1267) and listed in one of the annexes to the Regulation. These sanctions have been amended repeatedly: Once in July 2001 by Regulation (EC) No 1354/200137 and twice in October 2001 by Regulation (EC) No 1996/200138

35

Council Reg. (EC) No 337/2000 of 14 February 2000 concerning a flight ban and a freeze of funds and other financial resources in respect of the Taliban of Afghanistan, OJ L 043/1, 16/ 02/2000, available at http://europa.eu.int/eur-lex/pri/en/oj/dat/2000/l_043/l_04320000216en 00010011.pdf.

36

Council Reg. (EC) No 467/2001 of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Reg. (EC) No 337/2000, OJ L 67/1, 09/03/2001, available at http://europa.eu.int/eur-lex/pri/en/oj/dat/ 2001/l_067/l_06720010309en00010023.pdf.

37

Commission Reg. (EC) No 1354/2001 of 4 July 2001 amending Council Reg. (EC) No 467/2001 as regards the persons and entities covered by the freeze of funds and the organisations and agencies exempted from the flight ban in respect of the Taliban of Afghanistan, OJ L 182/15 , 05/07/2001, available at http://europa.eu.int/eur-lex/pri/en/oj/dat/2001/l_182/ l_18220010705en00150023.pdf.

38

Commission Reg. (EC) No 1996/2001 of 11 October 2001 amending, for the second time, Council Reg. (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan and repealing Reg. (EC) No 337/2000, OJ L 271/21, 12/10/2001, available at http://europa.eu.int/eur-lex/pri/en/oj/dat/2001/l_271/ l_27120011012en00210022.pdf.

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and Regulation (EC) No 2062/200139 and again in November 2001 by Regulation (EC) No 2199/2001.40 Following a number of other changes, the last amendment dates from February 2002.41 This legislation has been replaced in May 2002 by Regulation (EC) No 881/2002.42 In June 2002 this new Taliban Sanctions Regulation was amended.43 These specific first pillar regulations are mirrored in the CFSP pillar by a number of common positions in which the EU repeatedly laid down its general policy.44

39

Commission Reg. (EC) No 2062/2001 of 19 October 2001 amending, for the third time, Council Reg. (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan and repealing Reg. (EC) No 337/2000, OJ L 277/25, 20/10/2001, available at http://europa.eu.int/eur-lex/pri/en/oj/dat/2001/l_277/ l_27720011020en00250026.pdf.

40

Commission Reg. (EC) No 2199/2001 of 12 November 2001 amending, for the fourth time, Council Reg. (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan and repealing Reg. (EC) No 337/2000, OJ L 295/16, 13/11/2001, available at http://europa.eu.int/eur-lex/pri/en/oj/dat/2001/l_295/ l_29520011113en00160018.pdf.

41

Commission Reg. (EC) No 362/2002 of 27 February 2002 amending, for the ninth time, Council Reg. (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan and repealing Reg. (EC) No 337/2000, OJ L 58/6, 28/02/2002.

42

Council Reg. (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the AlQaida network and the Taliban, and repealing Council Reg. (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, OC L 139/9, 29/05/2002, available at http://europa.eu.int/eur-lex/en/dat/2002/l_139/ l_1392002 0529en00090022.pdf.

43

Commission Reg. (EC) No 951/2002 of 3 June 2002 amending Council Reg. (EC) No 881/ 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Reg. (EC) No 467/2001, OJ L 145/14, 04/06/2002, available at http://europa.eu.int/ eur-lex/en/dat/2002/l_145/l_14520020604en00140015.pdf.

44

See only Council Common Position of 27 May 2002 concerning restrictive measures against Usama bin Laden, members of the Al-Qaida organisation and the Taliban and other individuals, groups, undertakings and entities associated with them and repealing Common Positions 96/ 746/CFSP, 1999/727/CFSP, 2001/154/CFSP and 2001/771/CFSP, OJ L 139/4, 29/05/2002.


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B. General Asset Freezing As already indicated above, UN SC Resolution 1373 (1) (c) is not narrowly targeted at those responsible for the 11 September attacks. Rather, it is aimed at a general freezing of assets of terrorists. In order to comply with this broader purpose the EU prepared legislation which would provide the legal basis for such asset freezing. In its report to the UN CTC the EU stated: In order to adapt to the wider scope of measures covered by UNSCR 1373, and in order to be able to reach those persons who commit, attempt to commit, participate in or facilitate terrorist acts, but are not linked to any one State, the Council of the European Union, at its meeting on 10 December, reached agreement on a common position and a Regulation which together constitute a legal requirement to freeze and withhold the availability of funds, other financial assets and economic resources, to any previously identified natural or legal person, group or entity figuring in lists annexed to the legislation. It is expected that this legislation will enter into force early in 2002.45

In order to accomplish this, the EU followed the usual practice of first reaching political agreement within the framework of the CFSP and then taking specific action under the EC Treaty. Thus, the Council first adopted the Common Position of 27 December 2001 on the application of specific measures to combat terrorism.46 On this basis it voted on Regulation 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism.47 The Common Position of 27 December 2001 is a CFSP (and PJCC) act on the basis of Article 15 and 34 TEU applying to “persons, groups and entities involved in terrorist acts” which are listed in an annex. Among the individuals listed there are mainly ETA activists and Arab suspects. Among the 13 groups listed one finds ETA and IRA related ones as well as the Palestinian Islamic Jihad and the terrorist wing of Hamas.48 The Common Position of 27 December 2001 further contains definitions of “terrorist

45

Report of the European Union to the Security Council Committee established pursuant to res. 1373 (2001) concerning counter-terrorism, 28 December 2001, UN Doc. S/2001/1297 (EU Report).

46

2001/931/CFSP, OJ L 344/93, 28 December 2001, available at http://europa.eu.int/eur-lex/ pri/en/oj/dat/2001/l_344/l_34420011228en00930096.pdf

47

OJ L 344/70 28. 12. 2001, available at http://europa.eu.int/eur-lex/pri/en/oj/dat/2001/l_344/ l_34420011228en00700075.pdf.

48

The Common Position of December 2001 listed 29 persons and 13 groups and entities.

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acts”49 and “terrorist groups”50 and provides that the EC “shall order the freezing of the funds and other financial assets or economic resources of persons, groups and entities listed in the Annex.”51 49

Art. 3 (1) Common Position of 27 December 2001 provides: “For the purposes of this Common Position, ‘terrorist act’ shall mean one of the following intentional acts, which, given its nature or its context, may seriously damage a country or an international organisation, as defined as an offence under national law, where committed with the aim of: (i) seriously intimidating a population, or (ii) unduly compelling a Government or an international organisation to perform or abstain from performing any act, or (iii) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation: (a) attacks upon a person’s life which may cause death; (b) attacks upon the physical integrity of a person; (c) kidnapping or hostage taking; (d) causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property, likely to endanger human life or result in major economic loss; (e) seizure of aircraft, ships or other means of public or goods transport; (f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons; (g) release of dangerous substances, or causing fires, explosions or floods the effect of which is to endanger human life; (h) interfering with or disrupting the supply of water, power or any other fundamental natural resource, the effect of which is to endanger human life; (i) threatening to commit any of the acts listed under (a) to (h); (j) directing a terrorist group; (k) participating in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the group”.

50

Art. 3 (2) Common Position of 27 December 2001 provides: “For the purposes of this paragraph, ‘terrorist group’ shall mean a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist acts. ‘Structured group’ means a group that is not randomly formed for the immediate commission of a terrorist act and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure.

51

Art. 2 Common Position of 27 December 2001 on the application of specific measures to combat terrorism, supra note 46.


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The Council Regulation 2580/2001 is an EC act, based on Articles 60, 301 and 308 TEC, which provides for the freezing of “all funds, other financial assets and economic resources belonging to, or owned or held by, a natural or legal person, group or entity included in the list referred to in paragraph 3” of the Regulation. Potentially affected assets are very broadly defined.52 The targets list, established by a separate Council Decision,53 contains only “EU external” terrorists;54 it does not apply to Bin Laden and Al Qaida who are already covered by earlier legislation.55 These lists were repeatedly updated, first in early May 2002 by a Common Position56 and a Council Decision.57 At that time, the Common Position list was extended to include the PKK (the Kurdish Workers Party) and the Peruvian Sendero Luminoso. The list of individuals grew to 36. The additions to the Common Position list of “EU external” terrorists and terrorist groups were also made with regard to the Council Decision. In

52

According to Art. 1 para. 1 Reg. 2580/2001: “‘Funds, other financial assets and economic resources’ means assets of every kind, whether tangible or intangible, movable or immovable, however acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such assets, including, but not limited to, bank credits, travellers’ cheques, bank cheques, money orders, shares, securities, bonds, drafts and letters of credit”.

53

Council Dec. of 27 December 2001 establishing the list provided for in Art. 2(3) of Council Reg. (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (2001/927/EC), OJ L 344/83 28. 12. 2001, lists eight individuals and two groups, available at http://europa.eu.int/eur-lex/pri/en/oj/dat/ 2001/l_344/l_34420011228en00830084.pdf.

54

On the reason of this differentiation see infra text at infra note 61.

55

Cf. Reg. 2580/2001 Preambular para. 15: “The European Community has already implemented UNSCR 1267(1999) and 1333(2000) by adopting Reg. (EC) No 467/2001 freezing the assets of certain persons and groups and therefore those persons and groups are not covered by this Regulation”.

56

Council Common Position of 2 May 2002 updating Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (2002/340/CFSP), OJ L 116/75, 3. 5. 2002, available at http://europa.eu.int/eur-lex/en/dat/2002/l_116/l_11620020503en0075 0077.pdf.

57

Council Dec. of 2 May 2002 implementing Art. 2(3) of Reg. (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Dec. 2001/927/EC (2002/334/EC), OJ L 116/33, 3. 5. 2002, basically added six other groups to the list, available at http://europa.eu.int/eur-lex/en/dat/2002/l_116/ l_11620020503en00330034.pdf.

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June 2002 the Council again amended the list relevant for the freezing regulation.58 The latest amendment to this list dates from December 2002.59 It repeals an update of the October 2002 list60 and now contains 26 individuals and 22 groups.

C. Distinction Between “EU Internal” and “EU External” Terrorists According to the List in the Annex One of the obvious differences in the two lists of terrorists and terrorist groups lies in the fact that the one annexed to the Common Position on the application of specific measures to combat terrorism contains both “EU external” terrorists and “EU internal” terrorists (mainly ETA suspects), while the Council Decisions implementing Article 2(3) of Regulation (EC) No 2580/2001 contain only “EU external” terrorists. The EU reasons that this results from the limited powers of the EC: the freezing of assets of “EU internal” terrorists remains within the competence of the Member States, although the formulation that the regulations may cover persons who “otherwise are the focus of the CFSP aspects of Common Position 2001/931/CFSP”61 indicates some discretion as to the permissible scope of application. In any event, while the differentiation may be required by the principle of enumerated powers of the Community62 and may thus result from the complicated structure of the EU, it leads

58

Council Dec. of 17 June 2002 implementing Art. 2(3) of Reg. (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Dec. 2002/334/EC, (2002/460/EC), OJ L 160/26, 18/06/ 2002, available at http://europa.eu.int/eur-lex/en/dat/2002/l_160/l_16020020618en 00260027.pdf.

59

Council Dec. of 12 December 2002 implementing Art. 2(3) of Reg. (EC)No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Dec. 2002/848/EC, (2002/974/EC), OJ L 337/85, 13/12/ 2002, available at http://europa.eu.int/eur-lex/en/dat/2002/l_337/l_33720021213en0085 0086.pdf.

60

Dec. 2002/848/EC implementing Art. 2(3) of Council Reg. (EC) No. 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Dec. 2002/460/EC, OJ L 295/12, 30/10/2002.

61

Cf. Reg. 2580/2001 Preambular para. 14: “The list referred to in Art. 2(3) of this Regulation may include persons and entities linked or related to third countries as well as those who otherwise are the focus of the CFSP aspects of Common Position 2001/931/CFSP. For the adoption of provisions in this Regulation concerning the latter, the Treaty does not provide powers other than those under Art. 308.”

62

According to Art. 5 (1) TEC “[t]he Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein”.


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to the strange result that the EC is considered to be empowered to take measures against “EU external” terrorists,63 not, however, against “EU internal” ones.

D. The Procedure of Being Included in the List of Persons and Groups Whose Assets Are to be Frozen In practice the inclusion of physical and legal persons in a UN sanctions list follows demands of a member that bases its request on intelligence reports. Most of the persons included in the post September 11 lists were put there by US requests.64 The EU then follows the UN SC decisions by amending in turn its decision to add and/or drop to from the EU list. Since a freezing of assets will be brought about without any prior legal proceedings convicting persons of criminal offences, it is particularly important to ensure that freezing orders are imposed on the basis of sufficient evidence. Article 2 (3) of Council Regulation 2580/2001 provides that the Council, acting by unanimity, shall establish, review and amend the list of persons, groups and entities to which this Regulation applies, in accordance with the provisions laid down in Article 1(4), (5) and (6) of Common Position 2001/ 931/ CFSP; such list shall consist of: (i) natural persons committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism; (ii) legal persons, groups or entities committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism; (iii) legal persons, groups or entities owned or controlled by one or more natural or legal persons, groups or entities referred to in points (i) and (ii); or (iv) natural legal persons, groups or entities acting on behalf of or at the direction of one or more natural or legal persons, groups or entities referred to in points (i) and (ii). Article 1 (4) of the Common Position on the application of specific measures to combat

terrorism (2001/931/CFSP) provides:

63

The direct link to considerations of Community competences with regard to the class of persons covered by Reg. Reg. 2580/2001 is evidenced in its Preambular para. 14 which provides that “[f]or the adoption of provisions in this Regulation concerning the latter [i.e. persons otherwise the focus of CFSP aspects], the Treaty does not provide powers other than those under Art. 308”.

64

See I. Cameron, Targeted Sanctions and Legal Safeguards 6 (2002), available at http://www.jur.uu.se/arkiv/sanctions.pdf.

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The list in the Annex shall be drawn up on the basis of precise information or material in the relevant file which indicates that a decision has been taken by a competent authority in respect of the persons, groups and entities concerned, irrespective of whether it concerns the instigation of investigations or prosecution for a terrorist act, an attempt to perpetrate, participate in or facilitate such an act based on serious and credible evidence or clues, or condemnation for such deeds. Persons, groups and entities identified by the Security Council of the United Nations as being related to terrorism and against whom it has ordered sanctions may be included in the list.65

Article 1 (5) of this Common Position provides: The Council shall work to ensure that names of natural or legal persons, groups or entities listed in the Annex have sufficient particulars appended to permit effective identification of specific human beings, legal persons, entities or bodies, thus facilitating the exculpation of those bearing the same or similar names.66

Its Article 1 (6) provides: The names of persons and entities on the list in the Annex shall be reviewed at regular intervals and at least once every six months to ensure that there are grounds for keeping them on the list.67

Despite these general safeguards it remains unclear how individuals and groups are effectively protected against being included in this list. For instance, the decision to include the PKK in May 2002,68 a move that followed an earlier decision by the UK, has aroused substantial controversy69 since the PKK had formally renounced its military struggle against Turkish troops and had been operating lawfully for years in many European countries.

65

Art. 1 (4) of the Common Position on the application of specific measures to combat terrorism, 2001/931/CFSP, OJ L 344/93, 28 December 2001, available at http://europa.eu.int/eur-lex/ pri/en/oj/dat/2001/l_344/l_34420011228en00930096.pdf (emphasis added).

66

Ibid.

67

Ibid.

68

See supra notes 56 and 57.

69

See Statewatch News online, EU adds the PKK to list of terrorist organisations, story filed 4.5.02, available at http://www.statewatch.org/news/index.html.


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E. Fundamental Rights Affected by a Freezing Order The freezing of financial assets of individuals or legal persons is a draconian measure because it can fully deprive those affected of their means of subsistence. It has a longstanding tradition in US national security law and was also used extensively after 11 September 2001.70 But it can be considered a rather novel feature of EU law, at least on such a scale. The freezing of assets of raises a number of legal problems from a fundamental rights perspective. The following analysis will look at these rights as they are contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).71 This approach results, of course, from the fact that the EU/EC, not a contracting party to the ECHR, is considered to be bound by the substantive fundamental rights guarantees as general principles of European law in accordance with the ECJ’s case-law. According to the ECJ it is well-established that the EC is bound to respect “fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.”72 A freezing order may not only interfere with a person’s right to property, as protected under Article 1 First Additional Protocol to the ECHR,73 it may also interfere with a person’s private and family life, as guaranteed by Article 8 of the ECHR.74 It

70

Cf. for US freezing measures, H. E. Sheppard, “U.S. Actions to Freeze Assets of Terrorism. Manifest and Latent Implications for Latin-America”, 17 American University International Law Review, 625-639 (2002); P. D. Trooboff, “September 11 – Legal and Practical Implications for the U.S. Practitioner”, 4 International Law Forum, 59-68 (2002).

71

European Convention for the Protection of Human Rights and Fundamental Freedoms, signed 4 November 1950, ETS No. 5, 213 UNTS 221, entered into force 3 September 1953.

72

Cf. Art. 6 (2) TEU.

73

Art. 1 of the First Additional Protocol provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11, signed 20 March 1952, ETS No. 9, entered into force 18 May 1954.

74

Art. 8 ECHR provides: “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a

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further raises issues concerning access to court,75 the presumption of innocence,76 and the criminal fair trial guarantees77 enshrined in Article 6 ECHR.

1. The Presumption of Innocence Whether the “credible clues”, required by Article 1 (4) of the Common Position,78 are sufficient to justify the inclusion of persons on a list of individuals and legal persons whose assets are to be frozen is highly questionable. One may share the criticism expressed in the House of Lords debate with regard to similar provisions found in the UK Anti-Terrorism legislation: “[T]here is something distasteful about a process which begins by convicting someone and then proceeds to inquire whether there is a case against them.”79

democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 75

Art. 6 (1) ECHR provides: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

76

Art. 6 (2) ECHR provides: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

77

Art. 6 (3) ECHR provides: “Everyone charged with a criminal offence has the following minimum rights: a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; b. to have adequate time and facilities for the preparation of his defence; c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

78

Supra note 65.

79

Lord Archer of Sandwell, cited in UK Terrorism Act: 21 new proscribed organisations, available at http://www.statewatch.org/news/2001/oct/01proscribed.htm. On recent UK


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However, one also has to be aware of the rather restrictive interpretation of the scope of Article 6 (2) ECHR by the Strasbourg organs. According to this view, the European Commission of Human Rights regarded Italian anti-Mafia legislation providing for the confiscation of criminal proceeds as a preventive measure, not a penal one. As a result, it considered the presumption of innocence not applicable.80 Similarly, the European Court of Human Rights (ECtHR) does not consider forfeiture proceedings in connection with drug offences to be separate “criminal charges” giving rise to the guarantees under Article 6 (2) ECHR.81 It is important to remember, however, that the Strasbourg Court has held that: in addition to being specifically mentioned in Article 6 § 2, a person’s right in a criminal case to be presumed innocent and to require the prosecution to bear the onus of proving the allegations against him or her forms part of the general notion of a fair hearing under Article 6 § 1 [...].82

Thus, the presumption of innocence and other fundamental fair trial guarantees enshrined in Article 6 (2) and (3) ECHR remain relevant in scrutinising compliance with Article 6 (1) ECHR.

2. Criminal Fair Trial Guarantees For the same reason, i.e. that freezing orders are not seen as “criminal charges”, also the criminal fair trial guarantees of Article 6 (3) ECHR would seem to be technically inapplicable. However, since the European Court of Human Rights has held that

legislation see also A. Tomkins, “Legislating Against Terror: The Anti-Terrorism, Crime and Security Act 2001”, Public Law, 205-220 (2002). 80

M. v. Italy, European Commission of Human Rights, 15 April 1991, Application No. 12386/ 86: “Dans ces circonstances et à la lumière de la jurisprudence de la Cour, la Commission conclut que la confiscation litigieuse ne comporte pas un constat de culpabilité, qui suit une accusation, et ne constitue pas une peine. Dès lors, les griefs tirés de la violation des Arts. 6 paras. 2 et 7 (Art. 6-2, 7) de la Convention sont incompatibles (ratione materiae) avec ces dispositions et doivent être rejetées conformément à son Art. 27 para. 2 (Art. 27-2)”, available at http://hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=0&Action=Html&X=217153311& Notice=0&Noticemode=&RelatedMode=0. See also AGOSI v. United Kingdom, European Court of Human Rights, 24 October 1986, Ser. A No. 108, available at http://hudoc.echr.coe. int/Hudoc2doc/HEJUD/sift/3.txt.

81

Phillips v. United Kingdom, European Court of Human Rights, 5 July 2001, Application No. 41087/98, available at http://hudoc.echr.coe.int/Hudoc2doc2/HEJUD/200201/ phillips%20-%2041087jnv.chb4%2005072001e.doc.

82

Ibid., para. 40. See also Saunders v. the United Kingdom, European Court of Human Rights, 17 December 1996, Reports 1996-VI, para. 68.

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measures of confiscation of property relate to civil rights,83 at least the guarantees of Article 6 (1) ECHR remain applicable.84

3. The Right to Property The freezing of assets is also problematic with regard to the right to property protected by Article 1 of Protocol No. 1 to the ECHR. The relevant case-law of the European human rights organs demonstrates, however, considerable deference to the discretion of States as regards freezing or forfeiture or similar orders affecting property rights. In the AGOSI case, for instance, the European Court of Human Rights held that a forfeiture of property (gold coins from South Africa) used in criminal activity (the circumvention of import restrictions) “formed a constituent element of the procedure for the control of the use of property”.85 Thus, although the forfeiture of the gold coins did involve a deprivation of property, the Court decided that it would test the forfeiture’s legality against the requirements on control of use contained in Article 1 (2) of the First Additional Protocol.86 In this regard, the Court held that For forfeiture to be justified under the terms of the second paragraph of Article 1 (P1-1), it is enough that the explicit requirements of this paragraph are met and that the State has struck a fair balance between the interests of the State and those of the individual (see paragraph 52 above). The striking of a fair balance depends on many factors and the behaviour of the owner of the property, including the degree of fault or care which he has displayed, is one element of the entirety of circumstances which should be taken into account.87

83

Raimondo v. Italy, European Court of Human Rights, 22 February 1994, para. 44: “The Court shares the view taken by the Government and the Commission that special supervision is not comparable to a criminal sanction because it is designed to prevent the commission of offences. It follows that proceedings concerning it did not involve “the determination ... of a criminal charge” (see the Guzzardi judgment cited above, p. 40, para. 108). On the matter of confiscation, it should be noted that Art. 6 (Art. 6) applies to any action whose subject matter is “pecuniary” in nature and which is founded on an alleged infringement of rights that were likewise of a pecuniary character (see the Editions Périscope v. France judgment of 26 March 1992, Series A no. 234-B, p. 66, para. 40). That was the position in the instant case”. Available at http://hudoc.echr.coe.int/Hudoc2doc/HEJUD/sift/455.txt.

84

See infra text at note 94.

85

AGOSI v. United Kingdom, European Court of Human Rights, 24 October 1986, Ser. A No. 108, supra note 80, para. 51.

86

Ibid.

87

Ibid., para. 54.


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The Court further stated: Accordingly, although the second paragraph of Article 1 (P1-1) contains no explicit procedural requirements, the Court must consider whether the applicable procedures in the present case were such as to enable, amongst other things, reasonable account to be taken of the degree of fault or care of the applicant company or, at least, of the relationship between the company’s conduct and the breach of the law which undoubtedly occurred; and also whether the procedures in question afforded the applicant company a reasonable opportunity of putting its case to the responsible authorities. In ascertaining whether these conditions were satisfied, a comprehensive view must be taken of the applicable procedures. 88

In the particular case, the ECtHR concluded that the administrative procedures available under English law were sufficient to meet these requirements. With regard to present EU financial measures two points are important to make. First, the freezing orders under the European anti-terrorism legislation are not designed as permanent and definite deprivation of property rights, rather they are temporary measures. Only an extension of the freezing orders over a very long time may assimilate their effect to a forfeiture or confiscation of property; otherwise their provisional character indicates that they should be viewed as measures concerning the use of property to be tested under Article 1 (2) of Protocol No. 1 to the ECHR. Second, – a maiori ad minus – the AGOSI precedent shows that when even intended permanent deprivation of property is tested under paragraph 2, provisional or unintended permanent, i.e. indefinitely prolonged, deprivation will also be subject to the same test. In cases like Raimondo and AGOSI the Strasbourg Court has made clear that also such interferences require adequate judicial or administrative remedies.89 In the AGOSI case, the ECtHR found that there was no breach of Article 1 (2) of Protocol No. 1 to the ECHR and that the required procedural safeguards for the UK’s interference with the applicant company’s property were respected. It emphasised that it has not been established that the British system failed either to ensure that reasonable account be taken of the behaviour of the applicant company or to afford the applicant company a reasonable opportunity to put its case.

The Council of Europe’s Committee of Ministers recently reaffirmed this requirement of sufficient judicial or quasi-judicial safeguards with particular regard to anti-terrorism

88

Ibid., para. 55.

89

See the cases Raimondo and AGOSI, supra notes 83 and 80.

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measures. In the Guidelines on Human Rights and the Fight against Terrorism90 the Committee demanded: The use of the property of persons or organisations suspected of terrorist activities may be suspended or limited, notably by such measures as freezing orders or seizures, by the relevant authorities. The owners of the property have the possibility to challenge the lawfulness of such a decision before a court.91

The issue of adequate judicial or administrative remedies will be discussed below.92

4. The Right to Private and Family Life A total freezing assets may also raise concerns under Article 8 ECHR in so far as it would deprive persons of their means necessary to realise their private and family life. For instance, a total freeze of all personal bank accounts of individuals may prevent them from discharging their obligations to make payments on their ordinary living expenses. It is unlikely that such a total deprivation of means could be justified under Article 8 (2) ECHR permitting such derogations that are “necessary in a democratic society.” Given the present form of the EU freezing legislation this problem does not appear very acute, however, since Regulation 2580/2001 contains a “humanitarian” exception providing for the use of frozen funds for “essential human needs”.93

90

Guidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism, available at http://www.coe.int/T/E/Communication_and_Research/ Press/Theme_Files/Terrorism/CM_Guidelines_20020628.asp#TopOfPage. See also infra text at note 137.

91

Ibid., Art. XIV.

92

See infra text at note 94.

93

Art. 5 (2) Reg. 2580/2001 provides: The competent authorities of the Member States listed in the Annex may grant specific authorisations, under such conditions as they deem appropriate, in order to prevent the financing of acts of terrorism, for 1. the use of frozen funds for essential human needs of a natural person included in the list referred to in Art. 2(3) or a member of his family, including in particular payments for foodstuffs, medicines, the rent or mortgage for the family residence and fees and charges concerning medical treatment of members of that family, to be fulfilled within the Community; 2. payments from frozen accounts for the following purposes: (a) payment of taxes, compulsory insurance premiums and fees for public utility services such as gas, water, electricity and telecommunications to be paid in the Community.


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5. The Right of Access to Court While freezing orders will probably not be viewed as “criminal charges” triggering the application of the presumption of innocence or the criminal fair trial guarantees under Article 6 (2) and (3) ECHR, it is likely that disputes concerning frozen assets will be regarded as determining “civil rights” in the sense of Article 6 (1) ECHR leading to the obligation to provide “a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” According to the case-law of the Strasbourg institutions, the fair trial obligation also includes an obligation to provide access to court94 which cannot be totally abolished for reasons of national security.95 Indeed, this seems to be the most serious defect of the freezing regulation that it provides for a simple executive procedure to put persons on the list whose property rights will be affected without giving them a clear right to challenge such decisions. This raises the question whether there are any remedies against freezing orders of the Community.

6. Are There Legal Remedies Against the Freezing of Assets? Neither the Common Position nor the Regulation makes any express provision for challenges of or remedies against incorrect freezing of assets as a result of erroneously being included in the relevant lists. On its face, this implies that there is no “tribunal” in the sense of Article 6 (1) ECHR competent to decide on the civil rights of persons subject to freezing legislation. A procedural remedy against such Community measures may be found, however, in the general jurisdictional powers of the ECJ and the CFI. These Community courts certainly satisfy the demands of independence and impartiality required by Article 6 ECHR. But it is questionable whether the specific role performed by the European courts is sufficient to comply with the requirements under the ECHR. In this context, the following considerations seem pertinent. In general, a Council 94

In Golder, ECtHR, 21 February 1975, Ser. A, No. 18, para. 36, the ECtHR held that “the right of access [to court] constitutes an element which is inherent in the right stated by Art. 6 § 1” and that that “Art. 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the ‘right to a court’, of which the rights of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only”. Reaffirmed and quoted in: Ashingdane, ECtHR, 28 May 1985, Ser. A, No. 93, para. 55; Philis, ECtHR, 27 August 1991, Ser. A, No. 209, para. 59; Fayed, ECtHR, 21 September 1994, Ser. A, No. 294-B, para. 65, The Holy Monasteries, ECtHR, 9 December 1994, Ser. A, No.301-A, para. 80.

95

See Tinnelly and McElduff v. United Kingdom, European Court of Human Rights, 10 July 1998, available at http://hudoc.echr.coe.int/Hudoc2doc2/HEJUD/199812/tinnelly%20 and%20sons.jud%20batj.doc.

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act can be challenged by an annulment action according to Article 230 TEC. As “nonprivileged” claimants individuals have standing to challenge only decisions which are addressed to them or regulations which are of “direct and individual concern” to them.96 The Court has been rather restrictive, however, in admitting individual challenges to regulations.97 Since the lists of targets of general asset freezing is established by separate Council decisions98 problems of standing will not arise. Even where comparable lists are formally included in amendments to regulations – as in the case of the Taliban sanctions99 – such regulations will be regarded as being of “direct and individual concern” to the individuals named therein,100 similar to the socalled disguised decisions frequently adopted in the form of anti-dumping regulations. What is more problematic is the scope of substantive review that is available before the ECJ and the CFI. The potentially relevant grounds for annulment according to Article 230 TEC are the violation of the TEC or any rule of law relating to its application, which is interpreted to include fundamental rights as general principles of EC law. It is, however, doubtful whether, in these cases of judicial review, the European courts are able to provide the “full jurisdiction” and review of questions of fact and of law as required by the case-law of the ECtHR.101 It seems relevant that the ECtHR has held that, for instance, the judicial review exercised by the Austrian Constitutional Court, which is limited to assess the conformity of legislative and administrative acts with the Austrian Constitution and which prevents the Constitutional Court from examining all relevant facts, was not sufficient to fulfil the requirements of a judicial body with full jurisdiction.102 The main issues to be raised by

96

Art. 230 (4) TEC provides: “Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.”

97

Cf. T. C. Hartley, The Foundations of European Community Law, 350 (4th ed., 1998). See also A. Ward, Judicial Review and the Rights of Private Parties in EC Law (2000).

98

See supra text at note 53.

99


100

In the actions brought by three Swedish nationals against the regulation included them in the Taliban sanctions list, see infra note 105, the CFI did not question their standing.

101

See Le Compte, Van Leuven and De Meyere v. Belgium, ECtHR, 23 June 1981, Ser. A, No. 43, para. 51; Albert et Le Compte v Belgium, ECtHR, 10 February 1983, Ser. A, No. 58, para. 29.

102

Zumtobel v. Austria, ECtHR, 21 September 1993, Ser. A, No. 268-A, para. 29, 30.


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applicants in proceedings against freezing orders will concern issues of fact relating to questions whether the persons in the freezing lists were correctly identified, whether they are in fact involved in international terrorism, etc. and the accompanying evidentiary problems. If these issues are not sufficiently broadly reviewed before the European courts, the lack of an alternative procedural safeguard for persons affected by freezing measures may violate the fundamental right of access to court. In addition to annulment actions, an alternative route of legal recourse against incorrect freezing of assets might lie in actions for damages under Article 235 TEC in conjunction with Article 288 (2) TEC. According to this provision damages may be asked of the Community institutions if there is harm as a result of their unlawful acts.103 Also in this context, similar considerations are applicable. Though the unlawfulness may result not only from EC Treaty violations but also from fundamental rights violations, whether a simple factual error of including a particular person in a freezing list suffices is questionable. Thus, again the full jurisdiction in law and fact as required by Article 6 (1) ECHR may be missing. In this context it is interesting to note that the Taliban Freezing Regulations104 have actually been challenged before the Court of First Instance in a number of actions for annulment instituted by affected individuals.105 Some of these actions expressly challenge the lack of procedural safeguards in making a freezing decision.106 While

103

Art. 288 (2) TEC provides: “In the case of non-contractual liability, the Community shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.”

104


105

See e.g., Case T-315/01 - Yassin Abdullah Khadi v. Council and Commission, 5656/02, 21.2.02; Action brought on 10 December 2001 by Abdirisak Aden and Others against the Council of the European Union and the Commission of the European Communities (Case T-306/01), OJ C 44/27, 16.2.02; Case T-318/01 - Omar Mohammed OTHMAN v. Council and Commission, 6763/02, 27.2.02.

106

See Case T-306/01, Abdirisak Aden and Others against the Council of the European Union and the Commission of the European Communities, OJ C 44/27, 16.2.2002: The applicants submit further that the Council and Commission have not examined the reasons why the Taliban Sanctions Committee included the applicants in its list. Nor were the applicants given any opportunity to apprise themselves of and refute the allegations on which the decision to include them in Ann. I was based. The applicants have thus had onerous sanctions imposed on them without any opportunity to defend themselves. The fundamental legal principle of the right to a fair and equitable hearing has thus been disregarded.

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their requests for provisions measures were rejected by the Court of First Instance,107 their cases are still pending.

V. EU Measures to Prevent Funds from Being Made Available for Terrorist Acts Already in the Action Plan of 21 September 2001 the EU had identified combating the funding of terrorism as a decisive aspect of the fight against terrorism and called for the completion of work on the following measures: adopting in the weeks to come the extension of the Directive on money laundering and the framework Decision on freezing assets. It calls upon Member States to sign and ratify as a matter of urgency the United Nations Convention for the Suppression of the Financing of Terrorism. In addition, measures will be taken against non-cooperative countries and territories identified by the Financial Action Task Force.108

Already well before the 11 September events, the EU had identified the importance of taking measures against the financing of terrorism. In the Council Recommendation of 9 December 1999 on cooperation in combating the financing of terrorist groups109 the Council recommended that national security services, with the cooperation of EUROPOL, should exchange information on a regular basis on the structures and modus operandi used for financing terrorist groups operating in more than one Member State with a view to take measures against these groups. The 19 October 2001 European Council in Ghent reaffirmed the importance of effective measures to stop the funding of terrorism.110 To this end it envisaged the formal adoption of an amendment to the EU Money Laundering Directive and the

107

See Case T-306/01 R, Abdirisak Aden and Others against the Council of the European Union and the Commission of the European Communities, ECR 2002 II-2387.

108

Conclusions and Plan of Action of the Extraordinary European Council Meeting on 21 September 2001, Press Release 21/9/2001 No. 140/01, available at http://ue.eu.int/en/Info/ eurocouncil/index.htm.

109

Council Recommendation of 9 December 1999 on cooperation in combating the financing of terrorist groups, OJ C 373/1, 23/12/1999, available at http://europa.eu.int/eur-lex/pri/en/ oj/dat/1999/c_373/c_37319991223en00010001.pdf.

110

GHENT: INFORMAL MEETING OF HEADS OF STATE OR GOVERNMENT: DECLARATION BY THE HEADS OF STATE OR GOVERNMENT OF THE EUROPEAN UNION AND THE PRESIDENT OF THE COMMISSION, Press Release: Ghent (19/10/2001), SN 4296/2/01 REV 2 (OR. fr), available at http://ue.eu.int/en/Info/ eurocouncil/index.htm.


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speedy ratification by all Member States of the United Nations Convention for the Suppression of the Financing of Terrorism. In its report to the UN CTC, the EU vaguely stated: The Special Recommendations on terrorist financing adopted at the Extraordinary Plenary Meeting of the Financial Action Task Force on Money Laundering on 29-30 October 2001 relate to a number of the issues covered in Operative Paragraphs 1 and 2 of the Resolution. It is intended that these recommendations be at least partly implemented by measures taken within the framework of the Treaty on European Union (EU) and the Treaty establishing the European Community (EC).111

A. Amendment to the 1997 Money Laundering Directive Concerning the obligation to prevent funds from being made available for terrorist acts the EU stated in its report to the UN CTC: The 1991 Directive was amended on 19 November 2001. The new directive extends the prohibition of money laundering to most organised and serious crime. It also extends the coverage of the earlier directive to include a number of non-financial activities and professions which are vulnerable to misuse by money launderers. The EU Member States have agreed that all offences linked to the financing of terrorism constitute a serious crime under the directive.112

In December 2001 the Council adopted pursuant to the co-decision procedure of Article 251 TEC Directive 2001/97/EC of 4 December 2001 amending Council Directive 91/308/EEC113 on prevention of the use of the financial system for the purpose of money laundering.114 Because some of the amendments introduced by the European Parliament were not accepted by the Council a conciliation procedure had to be convened on 18 September 2001 to seek a compromise. This compromise was agreed by COREPER on 10 October and by a parliamentary delegation on 17 October 2001.

111

EU Report to the UN SC Counter Terrorism Committee, supra note 45, 4.

112

Ibid., 5.

113

Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering, OJ L 166/77, 28/06/1991.

114

OJ L 344/76, 28.12.2001, available at http://europa.eu.int/eur-lex/pri/en/oj/dat/2001/l_344/ l_34420011228en00760081.pdf.

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The amended Directive,115 which has to be implemented by 15 June 2003, extends the obligations to report suspicious transactions to the authorities responsible for combating money laundering to certain non-financial professions and sectors, among them accountants, auditors and lawyers.116 It also widens the definition of laundering to the proceeds of all serious crime, including activities of criminal organisations as defined in Article 1 of Joint Action 98/733/JHA,117 fraud against the EU budget and corruption.118 The original money laundering legislation applied only to the proceeds of drug offences. Requirements as regards client identification, record keeping and reporting of suspicious transactions would therefore be extended to external accountants and auditors, real estate agents, notaries, lawyers, dealers in high value goods such as precious stones and metals or works of article, auctioneers, transporters of funds and casinos.119 According to the Directive, Member States have to ensure that the covered professions and sectors “require identification of their customers”, “cooperate fully” with the authorities in case of suspected money laundering, and “refrain from carrying out transactions which they know or suspect to be related to money laundering”, and “establish adequate procedures of internal control” to prevent money laundering.

B. Ratification of the United Nations Convention for the Suppression of the Financing of Terrorism The EU recommended that all member States ratify the United Nations Convention for the Suppression of the Financing of Terrorism.120 This treaty has entered into

115

See also S. Armati, “Services financiers. Lutte contre la criminalité organisée et le terrorisme: prévention de l’utilisation du système financier aux fins du blanchiment de capitaux”, Revue du droit de l’Union européenne 769 (2001).

116

Art. 2a and 6 of the amended Money Laundering Directive, supra note 114.

117

See supra note 10.

118

Art. 1 of the amended Money Laundering Directive.

119

Art. 2a of the amended Money Laundering Directive.

120

Adopted by the General Assembly of the United Nations in res. 54/109 of 9 December 1999, available at http://untreaty.un.org/English/Terrorism/Conv12.pdf. See also A. Aust, “Counter-terrorism – a new approach. The International Convention for the Suppression of the Financing of Terrorism”, 5 Max Planck Yearbook of United Nations Law, 285-306 (2001); R. Lavalle, “The International Convention for the Suppression of the Financing of Terrorism”, 20 ZaöRV, 491-510 (2000).


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force on 10 April 2002.121 But it has not yet been ratified by all EU Member States. It triggers far-reaching obligations of contracting parties to outlaw the intentional financing of terrorist activities. The financing of terrorism as defined in Article 2 (1) of the Convention contains also the core of a terrorism definition that may serve as a basis for future negotiations: Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out: (a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex;122 or (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or

121

See UN Press Release, available at http://www.un.org/News/Press/docs/2002/LT43 66.doc.htm.

122

The annex contains the following conventions: 1. Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on 16 December 1970. 2. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 September 1971. 3. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973. 4. International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979. 5. Convention on the Physical Protection of Nuclear Material, adopted at Vienna on 3 March 1980. 6. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 24 February 1988. 7. Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on 10 March 1988. 8. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf, done at Rome on 10 March 1988. 9. International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997.

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context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

The Convention requires States to take appropriate measures, in accordance with their domestic legal principles, for the detection and freezing, seizure or forfeiture of any funds used or allocated for the purposes of committing the offences described.123 The offences referred to in the Convention are deemed to be extraditable offences and the contracting parties have obligations to establish their jurisdiction over the offences described, make the offences punishable by appropriate penalties, take alleged offenders into custody, prosecute or extradite alleged offenders, co-operate in preventive measures and countermeasures, and exchange information and evidence needed in related criminal proceedings.

C. EU Co-operation within the Financial Action Task Force On the international level, the so-called Financial Action Task Force (FATF)124 is the leading institution in the fight against money laundering and the financing of terrorism. It was established in 1989 at the G-7 Paris Summit Meeting and was given the responsibility of examining money laundering techniques and trends, reviewing the action which had already been taken at a national or international level, and setting out the measures that still needed to be taken to combat money laundering. In October 2001 FATF’s mission was enlarged to cover terrorist financing. At the October meeting FATF adopted a series of recommendations to combat the financing of terrorism.125 These recommendations include ratification and implementation of UN instruments, criminalising the financing of terrorism and associated money laundering, the reporting of suspicious transactions linked to terrorism, strengthening customer identification measures in international wire transfers, etc. The EU has expressed its willingness to support these recommendations.

D. Work on a Directive to Counter Insider Dealing and Market Manipulation Also EU amending legislation on insider dealing is frequently portrayed as a specific anti-terrorism measure. Currently, a Commission Proposal for a Directive of the European Parliament and of the Council on insider dealing and market manipulation (market

123

Art. 8 United Nations Convention for the Suppression of the Financing of Terrorism 1999.

124

Available at http://www1.oecd.org/fatf/AboutFATF_en.htm.

125

Available at http://www1.oecd.org/fatf/TerFinance_en.htm.


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abuse) (=proposed Insider Dealing Directive)126 is under deliberation as of 2002. On the official Europa homepage this proposal is portrayed as one of the key elements of legislation fighting the financing of terrorism: The Finance Council of 13 December 2001 reached unanimous orientation agreement on [the] proposed Directive to counter insider dealing and market manipulation: The Council unanimously reached an orientation agreement on the proposal for a Directive on market abuse (see IP/01/758 and MEMO 01/ 203). The proposed Directive is based on the principles of transparency and equal treatment of market participants. It aims to reinforce protection against insider dealing and market manipulation by building one set of rules for all the EU’s financial markets, thus reducing potential inconsistencies, confusion and loopholes. It would heighten investor protection and make European financial markets more attractive. It was identified by the 16 October joint Finance/Justice Council as a key measure in the fight against the financing of terrorism.127

The proposed Insider Dealing Directive imposes on EU Member States an obligation to prohibit any natural or legal person who possesses inside information from taking advantage of that information by acquiring or disposing of for his own account or for the account of a third party, either directly or indirectly, financial instruments to which that information relates.128

Article 2 (1) second subpara. of the Commission proposal defines as insiders any person regardless of whether such person has obtained that information: (a) by virtue of his membership of the administrative, management or supervisory bodies of the issuer, or (b) by virtue of his holding in the capital of the issuer, or (c) by virtue of his having access to the information through the exercise of his employment, profession or duties.

In addition to outlawing insider trading, the proposed directive includes a prohibition on other “market manipulation” which is not defined in the directive but rather

126

COM(2001) 281 final, 30.5.2001. OJ C 240/265 E, 28/08/2001, available at http://europa.eu. int/eur-lex/en/com/pdf/2001/en_501PC0281.pdf.

127

Available at http://europa.eu.int/news/110901/emu.htm.

128

Art. 2 (1) proposed Insider Dealing Directive.

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illustrated by a non-exhaustive list of typical methods appended in an annex to the directive.129 A closer look at this proposed directive, however, makes the observer wonder where the specific anti-terrorism aspect of this legislation is hidden. The Commission Proposal – which dates back to May 2001 – does not mention terrorism even once. Rather, the proposal looks like the “normal” market protection legislation one would expect under its title. It is true that the EP suggested in its opinion to add to the proposed directive’s preamble the statement that “[t]his Directive meets also the concerns expressed by the Member States following the terrorist attacks on 11 September 2001 as regards the fight against financing terrorist activities”.130 However, whether this has been effectively accomplished by the minor change proposed by the EP in extending the definition of “primary insiders”131 to “[…] any person who possesses that information by virtue of his criminal activities” remains doubtful at least.

E. Is the Prohibition of the Financing of Terrorist Activities Sufficiently Addressed by the EU Action? Despite the repeated assurances of the EU that the above-mentioned action adequately provides against the financing of terrorism,132 it is highly questionable whether any of the actions discussed above are sufficient to comply with the requirements under UN SC Resolution 1373 concerning the prevention, suppression and prohibition of the financing of terrorist activities. The new money laundering legislation prohibits only the use of criminally obtained proceeds (which now include proceeds of terrorist crimes). However, it still does not criminalise the provision of legally obtained funds for terrorist purposes. Also the proposed Insider Dealing Directive does not really address the problem of intentional financing of terrorist acts. Rather, the new legislation, as currently proposed, will only address the specific insider market abuse of taking advantage of knowledge as a result of criminal activities. The financing itself cannot be punished on this basis.

129

Section B of the Annex to the proposed Insider Dealing Directive lists “trade-based actions intended to create a false impression of activity”, “trade-based actions intended to create a shortage”, “time-specific trade-based actions” and “information-related actions”.

130

EP Report on the proposal for a European Parliament and Council directive on insider dealing and market manipulation (market abuse) (COM(2001) 281. C5-0262/2001. 2001/0118 (COD)), A5-0069/2002, 27 February 2002.

131

Art. 2 (1) second subparagraph proposed Insider Dealing Directive. See text supra .

132

See the EU Action Plan of 21 September 2001 and the EU report to the UN CTC, supra notes 108 and 111.


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This should be contrasted with US legislation which makes it a criminal offence to “knowingly provide[s] material support or resources to a foreign terrorist organization.”133 Both the obligations under the 1999 UN Convention for the Suppression of the Financing of Terrorism and the FATF recommendations aim at outlawing the financing of terrorism, regardless of the legal or illegal origin of funds. Thus, formal adherence to the UN Convention by the EU member States as well as observance of the FATF recommendations will still require additional action.

VI. Conclusion The EU’s financial anti-terrorism measures may prove to become a testing stone for the respect of fundamental rights and freedoms as called for in Article 6 (1) TEU. This paper specifically addressed the potential human rights frictions in parts of the post-11 September financial sanctions legislation of the EU. The fight against terrorism surely requires that in certain situations tough choices are made. But the EU and its Member States must not lose sight of their human rights achievements. A difficult balancing of interests will have to take place. Fundamental procedural guarantees with regard to a fair trial must not be sacrificed for a perceived higher good. Otherwise terrorism may have already achieved – part of – its aim of “seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country.”134 In this context it should also be recognised that any attempt to legitimise the disregard for human rights on the basis of superior UN Charter obligations, is not only politically unwise but also legally untenable. In this respect the UN General Assembly’s call to respect human rights standards when combating terrorism is highly

133

18 U.S.C. Sec 2339 B entitled “Providing material support or resources to designated foreign terrorist organizations” provides under para. 1 (a): Whoever, within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to a foreign organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 10 years, or both.

134

This phrase can be found in the EU definition of terrorism in Art. 1 (1) Council Framework Decision on combating terrorism, 2002/745/JHA, OJ L 164/3, 22 June 2002, available at http://europa.eu.int/eur-lex/en/dat/2002/l_164/l_16420020622en00030007.pdf. It was finally agreed upon by the Council of Ministers in December 2001 and adopted in June 2002. It is largely in line with the definition of “terrorist acts” in the Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (2001/931/ CFSP). OJ L 344/93, 28 December 2001, available at http://europa.eu.int/eur-lex/pri/en/oj/ dat/2001/l_344/l_34420011228en00930096.pdf.

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pertinent.135 Further, leading UN, Council of Europe and OSCE human rights officials clearly expressed their concern: While we recognize that the threat of terrorism requires specific measures, we call on all governments to refrain from any excessive steps which would violate fundamental freedoms and undermine legitimate dissent. In pursuing the objective of eradicating terrorism, it is essential that States strictly adhere to their international obligations to uphold human rights and fundamental freedoms.136

An even stronger signal, pointing in the same direction, was given by the Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and the Fight against Terrorism137 adopted on 15 July 2002.138 In theses Guidelines the Foreign Ministers of the 44 Member States of the Council of Europe, including all 15 EU Member States, recalled that it is not only possible, but also absolutely necessary, to fight terrorism while respecting human rights, the rule of law and, where applicable, international humanitarian law139

and reaffirmed states’ obligation to respect, in their fight against terrorism, the international instruments for the protection of human rights and, for the member states in particular, the Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights.140

135

Cf. UN GA Measures to eliminate international terrorism, 24 January 2002, A/RES/56/88, op. para. 3: “Reiterates its call upon all States to adopt further measures in accordance with the Charter of the United Nations and the relevant provisions of international law, including international standards of human rights, to prevent terrorism and to strengthen international cooperation in combating terrorism”.

136

Cf. the joint press statement by Mary Robinson, the United Nations High Commissioner for Human Rights, Walter Schwimmer, Secretary-General of the Council of Europe, and Ambassador Gérard Stoudmann, Director of the Organization for Security and Cooperation in Europe’s (OSCE) Office for Democratic Institutions and Human Rights, press release, 29 November 2001. See http://press.coe.int/cp/2001/910a(2001).htm and http://www.osce.org/news/ generate.php3? news_id=2183.

137

Available at http://www.coe.int/T/E/Communication_and_Research/Press/Theme_Files/ Terrorism/CM_ Guidelines_20020628.asp#TopOfPage.

138

See http://press.coe.int/cp/2002/369a(2002).htm.

139

Preambular para. d) Guidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism.

140

Ibid., Preambular para. i).


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Article II of the Guidelines is very explicit by stating: All measures taken by states to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment, and must be subject to appropriate supervision.

In addition to the very specific and detailed problems that result from the legislative plans of the EU and from the actual adoption of various freezing measures that may infringe upon fundamental rights of suspects there is a more general concern with regard to the political legitimacy of the EU action taken. That ‘the aims do not justify the means’ has to remain valid for the EU also in its fight against terrorism. Otherwise it may lose the credibility and support it strongly needs for further integration.

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Failure to Apply the Governing Law in International Investment Arbitration

147

Failure to Apply the Governing Law in International Investment Arbitration Christoph Schreuer*

I.

The Law Applicable in Investment Arbitration

A. Introduction Activities by foreign investors are invariably affected by the host State’s domestic law. The relevant legislation will concern commercial law, company law, administrative law, labour law, tax law, foreign exchange regulations, real estate law and many other areas of the host State’s legal system. At the same time, the foreign investor is typically protected by international law, most often in the form of bilateral investment treaties (BITs) and other treaties, but also in the form of customary international law. When a dispute arises, the investor will tend to rely on the international safeguards. The host State will often insist on compliance with its domestic law. A decision in accordance with the applicable law is one of the central duties of a tribunal deciding an investment dispute. Whether the choice of law is made through a treaty provision, in an agreement between the parties or both, the outcome of the case is likely to be determined by that choice. Therefore, a failure to apply the governing law is a serious violation of the tribunal’s parameters for decision. This article considers the means by which arbitral tribunals decide which law to apply to investment disputes, the means by which these decisions may be reviewed, and the consequences of failing to apply the law that properly governs the dispute. Over the last twenty years a number of attempts have been made to challenge arbitral awards in investment disputes on the ground that they were not based on the applicable law. ICSID ad hoc committees as well as domestic courts have dealt with these challenges in widely differing decisions.

*

Dr. iur. (Vienna), LL.M. (Cantab.), JSD (Yale), Professor of International Law, Department of International Law and International Relations, University of Vienna. The author wishes to express his gratitude to Professor Janet Walker of Osgoode Hall Law School of York University, Toronto for valuable comments on a draft of this article.


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B. General Provisions for Determining the Applicable Law Choice of law clauses may be contained in relevant treaty provisions. They may also be agreed as between the parties to the dispute, that is the host State and the investor. In fact, some treaty provisions refer to the parties’ agreement on choice of law. In turn, treaty provisions on the applicable law may form the basis of an agreement between the parties. The relevant rules are surprisingly diverse. Some clauses governing the applicable law in investment disputes refer exclusively to international law. For instance, Chapter 11, Section B of the NAFTA, dealing with the settlement of investor/State disputes, refers only to international law including the NAFTA itself: Article 1131 Governing Law 1. A Tribunal established under this Section shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law.1

Similarly, the Energy Charter Treaty’s provision on investor/State dispute settlement provides: Article 26 Settlement of Disputes between an Investor and a Contracting Party [...] (6) A tribunal established under paragraph (4) shall decide the issues in dispute in accordance with this Treaty and applicable rules and principles of international law.2

By contrast, the ICSID Convention defers to any agreement on choice of law made by the parties. In the absence of such an agreement, it provides for the application of the host State’s law and international law: Article 42 (1) The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable.3

1

32 ILM 605, at 645 (1993).

2

34 ILM 360, at 400 (1995).

3

4 ILM 532, at 539 (1965), available at http://www.worldbank.org/icsid/basicdoc/22.htm.


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The ICSID Additional Facility Arbitration Rules do not specify the applicable law, in the absence of an agreement by the parties, but merely prescribes a method for ascertaining it: Article 54 (1) The Tribunal shall apply the rules of law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the Tribunal shall apply (a) the law determined by the conflict of laws rules which it considers applicable and (b) such rules of international law as the Tribunal considers applicable.4

The UNCITRAL Arbitration Rules were not drafted primarily with a view to investor/ State arbitration, but they are frequently used in investment disputes. They refer to party agreement on applicable law and to applicable conflict of law rules: Article 33 1. The arbitral tribunal shall apply the law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.5

C. Choice of Law by the Parties Agreements between the parties on applicable law show considerable variety. Some simply refer to the host State’s domestic law.6 The choice of the law of the investor’s home country or of the law of a third State is rare, but it sometimes occurs in the context of loan contracts.7 The majority of agreements dealing with investor/State arbitration contain choice of law clauses that include the domestic law of the host State as well as international law. These compound choice of law clauses combining domestic and international law have much to commend them. Most investments are complex operations involving

4

ICSID/11/Rev. 1 January 2003. The Rules were amended as per 1 January 2003. The numbering follows the amended version.

5

Available at http://www.uncitral.org/en-index.htm.

6

See, e.g., Attorney-General v. Mobil Oil NZ Ltd., New Zealand, High Court, 1 July 1987, 4 ICSID Reports 123. See also MINE v. Guinea, Decision on Annulment, 22 December 1989, 4 ICSID Reports 94. In that case the applicable law was the law of Guinea subject to the agreement of the parties.

7

See, e.g., SPP v. Egypt, Award, 20 May 1992, 3 ICSID Reports 242. The choice of English law to the exclusion of Egyptian law turned out to be decisive for the computation of interest.

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numerous transactions of different kinds. In the vast majority of instances these transactions will be closely linked to the local law. In terms of the conflict of laws, the transaction will have its closest connection to the host State’s legal system. At the same time, the application of international law gives the investor assurance that international minimum standards will apply in the event that local law should fall below them. Compound clauses on applicable law are not a recent innovation. Clauses of this kind can be found in early investor/State agreements. For instance, Deeds of Concession concluded between Libya and two American companies between 1955 and 1968 contained a provision on arbitration part of which was the following choice of law clause: (7) This Concession shall be governed by and interpreted in accordance with the principles of law of Libya common to the principles of international law and in the absence of such common principles then by and in accordance with the general principles of law, including such of those principles as may have been applied by international tribunals.8

In cases involving contractual clauses that referred to domestic law as well as to international law, arbitral tribunals were careful to examine both the host State’s domestic law and international law.9 The same practice was followed by tribunals applying the residual rule of Article 42(1) of the ICSID Convention, which provides for the application of host State law and applicable rules of international law.10

8

Texaco v. Libya, Award, 19 January 1977, 53 ILR 389, at 404. The Tribunal proceeded to analyse and apply the domestic law of Libya, in addition to international law in some detail. See also LIAMCO v. Libya , Award, 12 April 1977, 62 ILR 140, at 172; British Petroleum v. Libya, 10 October 1973, 53 ILR 297; AGIP v. Congo, Award, 30 November 1979, 1 ICSID Reports 313; Kaiser Bauxite v. Jamaica, Decision on Jurisdiction, 6 July 1975, 1 ICSID Reports 301.

9

AGIP v. Congo , Award, 30 November 1979, 1 ICSID Reports, at 322-324.

10

Benvenuti & Bonfant v. Congo, Award, 15 August 1980, 1 ICSID Reports 349; SOABI v. Senegal, Award, 25 February 1988, 2 ICSID Reports, at 221 et seq., 229, 249 et seq., 257; LETCO v. Liberia, Award, 31 March 1986, 2 ICSID Reports, at 358-359, 372; SPP v. Egypt, Award, 20 May 1992, 3 ICSID Reports 189, at 207-209, 225-228, 234-235, 242244; Cable TV v. The Federation of St. Christopher (St.Kitts) and Nevis, Award, 16 December 1996, 13 ICSID Review—FILJ 328, at 371; CDSE (Santa Elena) v. Costa Rica, Award, 17 February 2000, 15 ICSID Review—FILJ 191 (2000). For an extensive discussion of this provision See C. Schreuer, The ICSID Convention: A Commentary 595-631 (2001).


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D. BIT Provisions on Applicable Law In recent years most investment arbitrations are conducted under the terms of bilateral investment treaties (BITs). Most BITs provide for investor/State arbitration. Some contain provisions on applicable law.11 In the case of investor/State arbitration based on BITs, consent to arbitration is also the result of an agreement between the disputing parties, i.e. the host State and the foreign investor. The clause on dispute settlement in the BIT constitutes a standing offer by the two countries to investors from the other country. The arbitration agreement is concluded by the acceptance of this offer by the investor. This acceptance may be demonstrated by the institution of arbitral proceedings. This way of reaching an arbitration agreement between a host State and a foreign investor is accepted by international arbitral practice.12 The offer to arbitrate contained in a BIT may be subject to conditions and specifications. By taking up the offer of arbitration, the investor accepts the choice of law clause contained in the BIT’s dispute settlement provision. Therefore, the treaty’s provision on applicable law becomes part of the arbitration agreement. The clause on applicable law becomes a choice of law agreed by the parties to the arbitration.13 Provisions in BITs dealing with applicable law typically combine the host State’s domestic law and international law. The most frequent formula lists a) the host State’s law, b) the BIT itself together with other treaties, c) any contract relating to the investment and d) general international law.

11

A. R. Parra, “Provisions on the Settlement of Investment Disputes in Modern Investment Laws, Bilateral Investment Treaties and Multilateral Instruments on Investment”, 12 ICSID Review—FILJ 287, at 332 (1997); P. Peters, “Dispute Settlement Arrangements in Investment Treaties”, 22 Netherlands Yearbook of International Law 91, at 147 et seq. (1991).

12

See, e.g., AAPL v. Sri Lanka, Award, 27 June 1990, 4 ICSID Reports 251; AMT v. Zaire, Award, 21 February 1997, 36 ILM 1531, at 1545-1546 (1997); Fedax v. Venezuela, Decision on Jurisdiction, 11 June 1997, 37 ILM 1378, at 1384 (1998); CSOB v. Slovakia, Decision on Jurisdiction, 24 May 1999, 14 ICSID Review—FILJ 251, at 264 (1999); LANCO v. Argentina, Decision on Jurisdiction, 8 December 1998, 40 ILM 457, at 460, 468, 471; Maffezini v. Spain, Decision on Jurisdiction, 25 January 2000, 16 ICSID Review—FILJ 212 (2001); Antoine Goetz v. Burundi, Award, 10 February 1999, 15 ICSID Review—FILJ 454 (2000).

13

See Parra, supra note 11; see also Peters, supra note 11; I. F. I. Shihata/A. R. Parra, “The Experience of the International Centre for Settlement of Investment Disputes”, 14 ICSID Review—FILJ 299, at 336 (1999).

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An example of such a provision may be found in Article 10 of the Argentina/ Netherlands BIT of 1992: 7. The arbitration tribunal addressed in accordance with paragraph (5) of this Article shall decide on the basis of the law of the Contracting Party which is a party to the dispute (including its rules on the conflict of laws), the provisions of the present Agreement, special Agreements concluded in relation to the investment concerned as well as such rules of international law as may be applicable.14

Tribunals applying clauses on applicable law based on BITs have emphasized that they were bound to apply both the law of the host State and international law. In Fedax v. Venezuela, jurisdiction was based on the Netherlands/Venezuela BIT of 1991. The Netherlands/Venezuela BIT contains the following provision on applicable law to investor/State disputes in its Article 9(5): 5. The arbitral award shall be based on: -

the law of the Contracting Party concerned;

-

the provisions of this Agreement and other relevant Agreements between the Contracting Parties;

-

the provisions of special agreements relating to the investments;

-

the general principles of international law; and

-

such rules of law as may be agreed by the parties to the dispute.

The Tribunal said: 30. Besides the provisions of the [ICSID] Convention and the Agreement [i.e. the BIT], the Tribunal finds that Venezuelan law is also relevant as the applicable law in this case. In fact, the promissory notes subject matter of the dispute are in turn governed by the provisions of the Venezuelan Commercial Code and more specifically by those of the Law on Public Credit, having been issued under the terms of the latter. Both parties have pointed in their pleadings to relevant aspects of the Venezuelan legislation and the Tribunal has examined these provisions with particular attention. It is of interest to note in this respect that the various sources of the applicable law referred to in Article 9(5) of the Agreement [i.e. the BIT], including the laws of the Contracting Party, the Agreement, other special

14

Argentina/Netherlands BIT, 20 October 1992. Similar provisions on applicable law were applied in Fedax v. Venezuela, Award, 9 March 1998, 37 ILM 1391, at 1396 (1998), Maffezini v. Spain, Decision on Jurisdiction, 25 January 2000, 16 ICSID Review—FILJ 207, at 219 (2001) and Antoine Goetz v. Burundi, Award, 10 February 1999, 15 ICSID Review—FILJ 454, at 499 (2000), available at http://www.worldbank.org/icsid/cases/ goetz.pdf.


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agreements connected with the investment and the general principles of international law, have all had an important and supplementary role in the consideration of this case as well as in providing the basis for the decision on jurisdiction and the award on the merits. This broad framework of the applicable law further confirms the trends discernible in ICSID practice and decisions.15

This award confirms that the law of the host State is part of the law to be applied where the applicable law is governed by a choice of law clause in a BIT that includes a reference to host State law. In Maffezini v. Spain, jurisdiction was based on the BIT between Argentina and Spain of 1991. That BIT contains the following provision on applicable law to investor/ State disputes in its Article 10(5): 5. The Arbitral Tribunal shall decide the dispute in accordance with the provisions of this Agreement, the terms of other Agreements concluded between the parties, the law of the Contracting Party in whose territory the investment was made, including its rules on conflict of laws, and general principles of international law.16

The Tribunal did not embark upon a theoretical discussion on the law applicable to the dispute but did, in fact, apply Spanish law. It referred to and applied the Spanish Law on Public Administration and Common Administrative Procedure,17 the Spanish Constitution,18 environmental legislation, including an EEC Directive,19 the Spanish Civil Code as well as the Spanish Commercial Code together with authoritative commentaries.20 With respect to one of the claims the Tribunal concluded: 71. The Kingdom of Spain and SODIGA [a State entity] have done no more in this respect than insist on the strict observance of the EEC and Spanish law applicable to the industry in question. It follows that Spain cannot be held responsible for the decisions taken by the Claimant with regard to the EIA [Environmental Impact Assessment]. Furthermore, the Kingdom of Spain’s

15

Fedax v. Venezuela, Award, 9 March 1998, 37 ILM 1391, at 1396 (1998). Footnotes omitted.

16

Maffezini v. Spain, Decision on Jurisdiction, 25 January 2000, 16 ICSID Review—FILJ 219 (2001), available at http://www.worldbank.org/icsid/casesemilio_DecisiononJurisdiction. pdf.

17

Maffezini v. Spain, Award, 13 November 2000, at paras. 47-49, 92, available at http://www. worldbank.org/icsid/cases/emilio_AwardoftheTribunal.pdf.

18

Ibid., at para. 68.

19

Ibid., at paras. 68, 69.

20

Ibid., at paras. 82, 89, 90.

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action is fully consistent with Article 2(1) of the Argentine-Spain Bilateral Investment Treaty, which calls for the promotion of investment in compliance with national legislation. The Tribunal accordingly also dismisses this contention by the Claimant.21

It follows that a tribunal, acting under a BIT that contains a choice of law clause referring to host State law and international law, must apply the domestic law of the host State. The clearest analysis of a clause on applicable law in a BIT was made by the Tribunal in Antoine Goetz v. Burundi.22 In that case the relevant BIT between the Belgium-Luxemburg Economic Union and Burundi contained the following provision on applicable law: The arbitral body decides on the basis of: -

the domestic law of the contracting party to the dispute, on the territory of which the investment is located, including its rules relating to the conflict of laws;

-

the provisions of the present Treaty

-

the terms of the particular agreement which might have taken place regarding the investment;

-

the generally accepted rules and principles of international law.

The Tribunal confirmed that a choice of law clause contained in a provision of a BIT, dealing with investor/State disputes, constituted an agreement on applicable law between the parties to the dispute. This was a consequence of the host State’s offer contained in the BIT and the investor’s acceptance of that offer expressed through the institution of the proceedings: Without doubt the determination of the applicable law is not, in its true sense, made by the parties to the present dispute (Burundi and the claimant investors) but by the parties to the investment treaty (Burundi and Belgium). As that was a case for the parties’ consent, the Tribunal considers however that the Republic of Burundi decided in favour of the applicable law as it is determined in the already cited provision of the Belgium-Burundi investment treaty in becoming a party to this treaty and that the claimant investors have effected a similar choice in lodging their claim for arbitration based on the said treaty. If this is not the first time, as we have noted, that the jurisdiction of the centre results directly from a bilateral treaty for the protection of investments, and not from a

21

Ibid., at para. 71.

22

Antoine Goetz v. Burundi, Award, 10 February 1999, 15 ICSID Review—FILJ 454 (2000), available at http://www.worldbank.org/icsid/cases/goetz.pdf.


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distinct agreement between the host State and the investor, it is one of the first times, it seems, that an ICSID Tribunal is called to apply the law as directly determined by such a treaty.23

On the basis of the BIT’s choice of law clause, the Tribunal reached the conclusion that the applicable legal rules were a combination of domestic and international law. The four categories of sources listed in the BIT could be regrouped into two: the law of Burundi on one hand and international law on the other. The provisions of the BIT were part of the applicable rules and principles of international law.24 After summarizing the opinions on the relationship between domestic law and international law under the second part of Article 42(1) of the ICSID Convention, the Tribunal turned to the applicable law in the case before it: In the present case—which relates, it must be recalled, to the first sentence of Article 42 of the ICSID Convention—a complementary relationship must be allowed to prevail. That the Tribunal must apply Burundian law is beyond doubt, since this last is also cited in the first place by the relevant provision of the Belgium-Burundi investment treaty. As regards international law, its application is obligatory for two reasons. First, because, according to the indications furnished to the Tribunal by the claimants, Burundian law seems to incorporate international law and thus to render it directly applicable; ... Furthermore, because the Republic of Burundi is bound by the international law obligations which it freely assumed under the Treaty for the protection of investments, ...25

The Tribunal’s analysis of the merits of the case followed a two-pronged approach. First, it undertook a detailed analysis of the problem from the perspective of the law of Burundi. This analysis led to the conclusion that under the law of Burundi the actions in question were not illegal and, consequently, the State had not incurred responsibility. Having reached this result, the Tribunal then examined the same issue from the perspective of international law, in particular in light of the BIT. This examination led to the result that the Republic of Burundi was under an obligation to pay compensation to the Claimant.

E. The Relationship of Domestic Law and International Law Some BITs contain specific rules concerning the relationship of domestic law and international law. These typically state that the provisions most favourable to the investor shall prevail. An example may be found in Article 3(5) of the BIT between

23

Ibid., at para. 94. Footnote omitted.

24

Ibid., at para. 96.

25

Ibid., at para. 98.

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the Netherlands and the Czech Republic: If the provisions of law of either Contracting Party or obligations under international law existing at present or established hereafter between the Contracting Parties in addition to the present Agreement contain rules, whether general or specific, entitling investments by investors of the other Contracting Party to a treatment more favourable than is provided for by the present Agreement, such rules shall to the extent that they are more favourable prevail over the present Agreement.

But in many cases tribunals do not receive guidance of this kind. As pointed out above, Article 42(1) of the ICSID Convention provides that, in the absence of an agreement between the parties on applicable law, the domestic law of the host State and international law are to be applied. In the course of the deliberations leading to the ICSID Convention it was made clear that international law would prevail where the host State’s domestic law violated international law, for instance through a subsequent change of its own law to the detriment of the investor.26 The Chairman explained that international law would come into play both in the case of a lacuna in domestic law and in the event of an inconsistency between the two.27 Relying on international law to serve a supplemental and corrective function in relation to domestic law has since found wide acceptance. While some commentators place greater emphasis on the host State’s law28 and others stress the importance of international law,29 most commentators agree that international law is best used in this way to close any gaps in domestic law and to prevent any violations of international law that otherwise could arise through the application of the host State’s law on its own.30

26

International Centre for Settlement of Investment Disputes (ed.), Documents Concerning the Origin and the Formulation of the Convention [hereinafter History of the Convention, Vol. II], pp. 570/1, 985 (1968).

27

Ibid., at 804.

28

W. M. Reisman, “The Regime for Lacunae in the ICSID Choice of Law Provision and the Question of its Threshold”, 15 ICSID Review—FILJ 362 (2000).

29

P. Weil, “The State, the Foreign Investor and International Law: The No Longer Stormy Relationship of a Ménage À Trois”, 15 ICSID Review—FILJ 401 (2000); E. Gaillard/ Y. Banifatemi, “The Meaning of “and” in Article 42(1), Second Sentence, of the Washington Convention: The Role of International Law in the ICSID Choice of Law Process”, 18 ICSID Review—FILJ 375 (2003).

30

A. Broches, “The Convention on the Settlement of Investment Disputes between States and Nationals of Other States”, 136 Recueil des Cours 331, at 392 (1972-II); G. R. Delaume, “Transnational Contracts, Applicable Law and Settlement of Disputes Ch. XV”, loose-leaf


157

The situation has been summarized succinctly by A. Broches. He writes with respect to the second sentence of Article 42(1) of the ICSID Convention, which provides for the application of domestic law and international law: The Tribunal will first look at the law of the host State and that law will in the first instance be applied to the merits of the dispute. Then the result will be tested against international law. That process will not involve the confirmation or denial of the validity of the host State’s law, but may result in not applying it where that law, or action taken under that law, violates international law.31

Arbitral awards do not always consider this point explicitly. In some decisions the tribunals looked at domestic law and at international law without any discussion of their relationship. In these cases the tribunals simply stated that the host State’s domestic law was in conformity with international law or that the application of

68 et seq. (1990); P. Feuerle, “International Arbitration and Choice of Law under Art. 42 of the Convention on the Settlement of Investment Disputes”, 4 Yale Studies in World Public Order 89, at 118 et seq. (1977); A. Giardina, “The International Centre for Settlement of Investment Disputes between States and Nationals of other States (ICSID)”, in P. Sarcevic (ed.), Essays on International Commercial Arbitration 214, at 217 (1989); B. Goldman, “Le droit applicable selon la Convention de la B.I.R.D., du 18 mars 1965, pour le règlement des différends relatifs aux investissements entre Etats et ressortissants d’autres Etats”, in Investissements Etrangers et Arbitrage entre Etats et Personnes Privées, La Convention B.I.R.D. 133, at 151 (1969); M. Hirsch, “The Arbitration Mechanism of the International Centre for the Settlement of Investment Disputes” 140 et seq (1993); G. Jaenicke, “The Prospects for International Arbitration: Disputes between States and Private Enterprises”, in A. H. A. Soons (ed.), International Arbitration: Past and Prospects 155, at 159 (1990); P. Kahn, “The Law Applicable to Foreign Investments: The Contribution of the World Bank Convention on the Settlement of Investment Disputes”, 44 Indiana Law Journal 1, at 27 et seq. (1968); E. Lauterpacht, “The World Bank Convention on the Settlement of International Investment Disputes”, in Recueil d’études de droit international en hommage à Paul Guggenheim 642, at 660 (1968); M. Rubino-Sammartano, International Arbitration Law 55 (1990); O. Chukwumerije, “International Law and Municipal Law in ICSID Arbitration”, 1 Canadian Journal of International Business Law and Policy 61, at 82 et seq. (1996); G. Elombi, “ICSID Awards and the Denial of Host State Law”, 11 Journal of International Arbitration 61, at 66 et seq. (1994); V. C. Igbokwe, “Developing Countries and the Law Applicable to International Arbitration”, 14 Journal of International Arbitration 99, at 114 et seq. (1997); N. Nassar, “Internationalization of State Contracts: ICSID, The Last Citadel”, 14 Journal of International Arbitration 185, at 202 et seq. (1997); F. I. Shihata/ A. R. Parra, “Applicable Substantive Law in Disputes Between States and Private Foreign Parties: The Case of Arbitration under the ICSID Convention”, 9 ICSID Review—FILJ 183 (1994); C. Schreuer, The ICSID Convention: A Commentary, 622 et seq. (2001). 31

See Broches, supra note 30, at 392.

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domestic law and of international law led to the same result.32 By applying both host State law and international law and affirming their consistency, these decisions confirm the need to apply both laws. However, they do not provide much guidance on the interaction between the two legal systems, and, in particular, on which law should prevail in the event of an inconsistency between them. In another group of decisions, a more careful discussion of the interaction of international and national law can be observed. These cases follow the doctrine of the supplemental and corrective function of international law in relation to the host State’s domestic law. The ad hoc Committee in Klöckner v. Cameroon found that where the host State’s domestic law had to be applied together with international law, the principles of international law had a dual role namely: … complementary (in the case of a “lacuna” in the law of the State), or corrective, should the State’s law not conform on all points to the principles of international law. In both cases, the arbitrators may have recourse to the “principles of international law” only after having inquired into and established the content of the law of the State party to the dispute (which cannot be reduced to one principle, even a basic one) and after having applied the relevant rules of the State’s law. Article 42(1) therefore clearly does not allow the arbitrator to base his decision solely on the “rules” or “principles of international law.”33

The Tribunal in LETCO v. Liberia reached a similar result. In discussing the system of concurrent law under the second sentence of Article 42(1) of the ICSID Convention it said: The law of the Contracting State is recognized as paramount within its own territory, but is nevertheless subjected to control by international law. The role of international law as a “regulator” of national systems of law has been much discussed, with particular emphasis being focused on the problems likely to arise if there is divergence on a particular point between national and international law. No such problem arises in the present case; the Tribunal is satisfied that the rules and principles of Liberian law which it has taken into account are

32

Adriano Gardella v. Côte d’Ivoire, Award, 29 August 1977, 1 ICSID Reports 287; Benvenuti & Bonfant v. Congo, Award, 15 August 1980, 1 ICSID Reports 357; Klöckner v. Cameroon, Award, 21 October 1983, 2 ICSID Reports 63; Amco v. Indonesia, Award, 20 November 1984, 1 ICSID Reports, 466-467, 473, 490-494, 498-501, 504, 506.

33

Klöckner v. Cameroon, Decision on Annulment, 3 May 1985, 2 ICSID Reports 122. Italics original.


159

in conformity with generally accepted principles of public international law governing the validity of contracts and the remedies for their breach.34

The ad hoc Committee in Amco v. Indonesia also subscribed to the formula of the supplemental and corrective function of international law: 20. It seems to the ad hoc Committee worth noting that Article 42(1) of the Convention authorizes an ICSID tribunal to apply rules of international law only to fill up lacunae in the applicable domestic law and to ensure precedence to international law norms where the rules of the applicable domestic law are in collision with such norms. 21. …The law of the host State is, in principle, the law to be applied in resolving the dispute. At the same time, applicable norms of international law must be complied with since every ICSID award has to be recognized, and pecuniary obligations imposed by such award enforced, by every Contracting State of the Convention… 35

The second Tribunal in the resubmitted case of Amco v. Indonesia accepted that international law was relevant if there was a lacuna in the law of the host State, or if the law of the host State was incompatible with international law, in which case the latter would prevail. The Tribunal said: 40. This Tribunal notes that Article 42(1) refers to the application of host-state law and international law. If there are no relevant host-state laws on a particular matter, a search must be made for the relevant international laws. And, where there are applicable host-state laws, they must be checked against international laws, which will prevail in case of conflict. Thus international law is fully applicable and to classify its role as “only” “supplemental and corrective” seems a distinction without a difference. In any event, the Tribunal believes that its task is to test every claim of law in this case first against Indonesian law, and then against international law.36

The Tribunal proceeded to examine the substantive questions before it in accordance with this method.37 In SPP v. Egypt, the Tribunal found that Egyptian and international law had to be applied. It held that if municipal law contained a lacuna or if international law was violated by the exclusive application of municipal law, the Tribunal was bound to

34

LETCO v. Liberia, Award, 31 March 1986, 2 ICSID Reports, 358-359.

35

Amco v. Indonesia, Decision on Annulment, 16 May 1986, 1 ICSID Reports 515.

36

Amco v. Indonesia, Resubmitted Case: Award, 5 June 1990, 1 ICSID Reports 580.

37

Ibid., at 599, 604-605, 611-613, 617.

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apply international law directly. The Tribunal said: 84. When municipal law contains a lacuna, or international law is violated by the exclusive application of municipal law, the Tribunal is bound in accordance with Article 42 of the Washington Convention to apply directly the relevant principles and rules of international law.38

The Tribunal applied international law in addition to national law in a variety of contexts. The Tribunal’s findings on the awarding of interest provide insight into the interaction of national and international law. On the rate of interest it held that the determination must be made according to Egyptian law because there was no rule of international law that would fix the rate39 However, the Tribunal observed that there was no provision in Egyptian law for determining the date from which interest would run for compensation for an act of expropriation. To fill this gap, the Tribunal applied international law, according to which interest would run from the date on which the dispossession effectively took place.40 In CDSE (Santa Elena) v. Costa Rica, the Tribunal stated that the relevant rules and principles of Costa Rican law were generally consistent with international law. However, it added that in the event of inconsistency, public international law would have to prevail.41 This practice suggests that the starting point for an analysis in a case governed by a combined choice of law clause should be the host State’s law. The result thus reached must then be checked against international law. International law may be used to close gaps left by national law and to correct a result achieved on the basis of domestic law that is in violation of international law. However, it is impermissible to apply international law alone and to ignore or bypass the host State’s domestic law in this process. The fact that international law has a corrective function and that domestic law that is in violation of international law is to be disregarded does not make the examination and application of domestic law superfluous. There are good reasons why the tribunals, in the cases cited above, insisted on the application of the host State’s domestic law before turning to international law. Many questions are subject to detailed regulation in domestic law for which there is no corresponding rule in international law. The numerous provisions of civil law, commercial law, administrative law and corporate law of domestic legal systems illustrate this point. International law merely sets the

38

SPP v. Egypt, Award, 20 May 1992, 3 ICSID Reports 208.

39

Ibid., at 241-242.

40

Ibid., at 243-244.

41

CDSE v. Costa Rica, Award, 17 February 2000, 15 ICSID Review—FILJ 191 (2000).


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minimum standard against which provisions of domestic law must be checked. A decision that can be based on the host State’s domestic law need not be sustained by reference to international law. A tribunal may give a decision based on the host State’s domestic law, even if it finds no positive support in international law as long as the decision is not prohibited by any rule of international law.42 If the host State’s law is more favourable than international law, including the BIT, the tribunal must give it precedence. All of this makes the initial examination and application of domestic law an indispensable step in the choice of law process. The combined application of the host State’s domestic law and international law is also in accordance with broader policy considerations. The host State has a legitimate interest in seeing its regulatory framework respected as long as that framework is not in violation of international law. The investor in selecting a market for its investment avails itself of the legal system prevailing there. Those who choose to invest in a particular market accept the existing market regulation subject to internationally recognized minimum standards.

II. Review in International Arbitration In arbitration between States there is no institutionalized review. A claim by one State party that an award is void may be submitted to international adjudication by mutual consent. The International Court of Justice will decide on such a dispute only if there has been a submission to its jurisdiction.43

A. The Role of National Courts Typically, challenges to awards in commercial arbitration are brought in national courts. This includes awards made in non-ICSID investment disputes between States and foreign investors.44 This function of review may be exercised by the courts of the country in which the tribunal had its seat or by the courts charged with the task of enforcing the award.45 This would also apply to awards rendered under the Additional

42

See also Schreuer, supra note 30, at 631.

43

See also International Law Commission, Model Rules on Arbitral Procedure, 1958, YILC, Vol. II, Arts. 36, 37.

44

See especially D. Williams, “International Commercial Arbitration and Globalization. Review and Recourse against Awards rendered under Investment Treaties”, 4 The Journal of World Investment 251 (2003).

45

For an example, see the ICC Award in SPP v. Egypt, 11 March 1983, 3 ICSID Reports 46 and its treatment by domestic courts: District Court of Amsterdam, 12 July 1984, 3 ICSID Reports 92; Cour d’appel, Paris, 12 July 1984, 3 ICSID Reports 79; France, Cour de cassation,

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Facility since these awards are not subject to ICSID’s autonomous system of annulment. The trend in recent national legislation is to restrict the grounds for review and to give the parties some discretion to limit or even exclude review by national courts.46 Article V of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 lists the narrow grounds for refusing recognition and enforcement of an arbitral award at the request of a party.47 The UNCITRAL Model Law on International Commercial Arbitration of 1985 also contemplates a limited number of grounds for setting aside or refusing to recognize an international commercial award by a domestic court. These grounds are closely modelled on Article V of the New York Convention.48 Most national laws dealing with arbitration follow these grounds subject to certain variations.49 Typically, the grounds for setting aside

6 January 1987, 3 ICSID Reports 96. See also C. Schreuer, The ICSID Convention: A Commentary, Art. 26, at 359-362, paras. 26-32. 46

See e.g., C. M. Schmitthoff, “Finality of Arbitral Awards and Judicial Review”, in J. D. M. Lew (ed.), Contemporary Problems in International Arbitration 230 (1986); A. Redfern/ M. Hunter, Law and Practice of International Commercial Arbitration 419 et seq., 429 et seq. (1991); W. L. Craig, “Uses and Abuses of Appeal from Awards”, 4 Arbitration International 174, at 179 (1988); G.R. Delaume, “The Finality of Arbitration Involving States: Recent Developments”, 5 Arbitration International 21, at 28 et seq. (1989); G. R. Delaume, “Reflections on the Effectiveness of International Arbitral Awards”, 12 Journal of International Arbitration 5 (1995); C. M. Koa, “The International Bank for Reconstruction and Development and Dispute Resolution: Conciliating and Arbitrating with China through the International Centre for Settlement of Investment Disputes”, 24 New York University Journal of International Law and Politics 439, at 472 et seq. (1991); T. de Berranger, “L’article 52 de la Convention de Washington du 18 mars 1965 et les premiers enseignements de sa pratique”, Revue de l’Arbitrage 93, at 113 et seq. (1988); and see the references cited by B. Pirrwitz, “Annulment of Arbitral Awards Under Art. 52 of the Washington Convention on the Settlement of Investment Disputes Between States and Nationals of Other States”, 23 Texas International Law Journal 73, at 78 (1988).

47

330 UNTS 38 (1959). See D. H. Freyer/H. G. Gharavi, “Finality and Enforceability of Foreign Arbitral Awards: From “Double Exequatur” to the Enforcement of Annulled Awards: A Suggested Path to Uniformity Amidst Diversity”, 13 ICSID Review—FILJ 101 (1998). See also Parra, supra note 11, at 300 et seq. and the authorities cited there.

48

Arts. 34, 36. 24 ILM 1302, at 1311 (1985).

49

See A. Redfern/M. Hunter, Law and Practice of International Commercial Arbitration, 420 et seq. (1999); E. Gailard, J. Savage, Fouchard, Gaillard, Goldmann On International Commercial Arbitration, 922 et seq. (1999); W.M. Reisman/W.L. Craig/W. Park/ J. Paulsson, International Commercial Arbitration, 1081 et seq. (1997); F.- B. Weigand, (ed.), Practitioner’s handbook on International Arbitration, 579 et seq., 634 et seq., 676 et seq., 810 et seq., 875 et seq., 940 et seq., 991 et seq., 1040 et seq., 1076 et seq., 1135 et seq. (2002)


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include an excess of authority by the arbitral tribunal.50

B. Annulment under the ICSID Convention ICSID awards are not subject to review by domestic courts. Rather, ICSID offers its autonomous and self-contained review process. Applications for annulment are examined by an ad hoc Committee that is appointed by the Chairman of ICSID’s Administrative Council.51 The grounds for annulment are defined in Article 52(1) of the ICSID Convention. These grounds for annulment include “that the Tribunal has manifestly exceeded its powers”.

C. Governing Law and Nullity The tribunal is bound by the arbitration agreement and the instructions of the parties contained therein. Any substantial deviation from the arbitration agreement by the tribunal constitutes an excess of powers or excess of authority (excès de pouvoir). The applicable law is one of the issues that may be agreed by the parties in their arbitration agreement. An agreement on applicable law or choice of law is an essential part of the framework for decision that the tribunal is bound to observe. Therefore, non-observance of an agreement on applicable law may amount to an excess of powers and can lead to nullity. On the other hand, a mere error in the application of the governing law is not a ground for annulment.52 As pointed out above, Article 52 of the ICSID Convention includes among the reasons for annulment “that the Tribunal has manifestly exceeded its powers;” During the drafting of this provision53 the Chairman explained that while a mistake in applying the law would not be a valid ground for annulment, applying a different law from that agreed to by the parties would lead to an award that could be properly challenged on

50

See D. Williams, “International Commercial Arbitration and Globalization. Review and Recourse against Awards rendered under Investment Treaties”, 4 The Journal of World Investment 251, at 264 et seq. (2003).

51

For an extensive analysis of ICSID’s annulment procedure see Schreuer, supra note 30, at 881 et seq. For a more concise description see: http://www.unctad.org/en/docs/ edmmisc232add7_en.pdf.

52

For an incisive analysis of the distinction between annulment and appeal see D. D. Caron, “Reputation and Reality in the ICSID Annulment Process: Understanding the Distinction Between Annulment and Appeal”, 7 ICSID Review—FILJ 21 (1992).

53

For a more extensive analysis of the Convention’s travaux préparatoires on this point Schreuer, supra note 30, at 943 et seq.

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the ground that the arbitrators had gone against the terms of the compromis.54 A failure to apply the governing law would constitute an excess of powers if the parties had instructed the tribunal to apply a particular law.55 This view is widely shared by scholars writing on this topic.56

III. Practical Consequences of a Failure to Apply the Governing Law In a number of cases complaints about a failure to apply the governing law by an international tribunal were raised in proceedings for the setting aside or annulment of the awards. The majority of these were decided in the framework of the ICSID Convention. In fact, every published decision on annulment before an ICSID ad hoc Committee has included a complaint of failure to apply the governing law.57 Other cases were decided outside the framework of ICSID by domestic courts. The standards applied by the reviewing bodies and the resulting decisions differ widely. They range from detailed scrutiny of the reasoning underlying the award, to refusal to set aside despite deviation from the governing law. Six cases will be examined in turn.

54

History of the Convention, Vol. II, supra note 26, at 518.

55

Ibid., at 851.

56

See esp. de Berranger, supra note 46, at 108; A. Broches, “Observations on the Finality of ICSID Awards”, 6 ICSID Review—FILJ 321 (1991); E. Gaillard, “Centre International pour le Règlement des Différends relatifs aux Investissements (CIRDI): Chronique des sentences arbitrales”, 114 Journal du Droit International 135, at 188 et seq. (1987); F. Niggemann, „Das Washingtoner Weltbankübereinkommen von 1965—Das Nichtigkeitsverfahren im Ad-Hoc-Komitee”, 4 Jahrbuch für die Praxis der Schiedsgerichtsbarkeit 97, at 109 et seq. (1990); B. Pirrwitz, “Annulment of Arbitral Awards Under Art. 52 of the Washington Convention on the Settlement of Investment Disputes Between States and Nationals of Other States”, 23 Texas International Law Journal 73, at 103 et seq. (1988); P. Rambaud, “L’annulation des sentences Klöckner et Amco”, 32 Annuaire Français de Droit International 259, at 263 et seq. (1986); W. M. Reisman, “The Regime for Lacunae in the ICSID Choice of Law Provision and the Question of its Threshold”, 15 ICSID Review—FILJ 362, 370-371 (2000); I. Seidl-Hohenveldern, „Die Aufhebung von ICSID Schiedssprüchen”, 2 Jahrbuch für die Praxis der Schiedsgerichtsbarkeit 100, at 104 (1989); Schreuer, supra note 30, at 555 et seq., 943 et seq.

57

In Compañía de Aguas del Aconquija, S. A. & Compagnie Générale des Eaux v. Argentine Republic (the Vivendi case), Decision on Annulment, 3 July 2002, 41 ILM 1135 (2002) failure to apply the proper law was raised by the Applicant in the annulment proceedings. But the ad hoc Committee annulled part of the Award for other reasons and did not address this ground for annulment. Therefore, Vivendi is not dealt with in this article.


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A. Klöckner v. Cameroon: The Quality of Reasoning The annulment proceedings in Klöckner v. Cameroon58 demonstrated the importance not only of applying both domestic and international law, where each is required, but also of doing so clearly and explicitly. In Klöckner, the parties had concluded a series of contracts for the supply and management of a fertilizer factory. After a period of unprofitable operation the factory was shut down by the Cameroonian Government. Klöckner filed a request for ICSID arbitration claiming the balance of the price of the factory. The Government counter-claimed damages for losses it had incurred in the project. The parties had not agreed upon the applicable law. Therefore, the second sentence of Article 42(1) of the ICSID Convention became operative. That provision directs the Tribunal to apply the law of the State party to the dispute and such rules of international law as may be applicable. The Tribunal determined that it had to apply the civil and commercial law applicable in Cameroon, which in its relevant part was based on French law.59 In doing so, it found that Klöckner’s behaviour constituted a breach of the principle of confidence, loyalty and openness which it took to be a basic principle of French law and of other national codes. The Tribunal said: We take for granted that the principle according to which a person who engages in close contractual relations, based on confidence, must deal with its partner in a frank, loyal and candid manner is a basic principle of French civil law, as is indeed the case under the other national codes which we know of. This is the criterion that applies to relations between partners in simple forms of association anywhere. The rule is particularly appropriate in more complex international ventures, such as the present one.60

The Tribunal did not substantiate this statement with any further reference to French law but continued to refer to “universal requirements of frankness and loyalty.”61 It found that Klöckner had not dealt frankly with Cameroon but had “violated its contractual obligation of full disclosure”62 and, therefore, did not have a right to the full contract price.63

58

For a full report of the case see 2 ICSID Reports 4.

59

Klöckner v. Cameroon, Award, 21 October 1983, 2 ICSID Reports 59.

60

Ibid., at 59.

61

Ibid., at 60.

62

Ibid., at 61.

63

Ibid., at 60-61.

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Klöckner requested the annulment of the Award citing excess of powers for failure to apply the governing law as one of the grounds. The ad hoc Committee, that decided the application for annulment, adopted the distinction between the non-application of the governing law and a mere error in its application. It said: 60. While the complaint based on failure to observe Article 42 is thus admissible in principle, it remains to be determined what exactly constitutes not deciding “in accordance with such rules of law as may be agreed by the parties,” or not “applying the law of the Contracting State party to the dispute.” This raises the fine distinction between “non-application” of the applicable law and mistaken application of such law. 61. It is clear that “error in judicando” could not in itself be accepted as a ground for annulment without indirectly reintroducing an appeal against the arbitral award, and the ad hoc Committee under Article 52 of the Convention does not, any more than the Permanent Court of Arbitration in the Orinoco case, have the “duty ... to say if the case has been well or ill judged, but whether the award must be annulled.”64

The ad hoc Committee, in examining the Tribunal’s reasoning above, found that the relevant French law had not been applied. It said: 67. It may immediately be noticed that here the Tribunal does not claim to ascertain the existence (of a rule or a principle) but asserts or postulates the existence of such a “principle” which (after having postulated its existence) the Tribunal assumes or takes for granted that it “is a basic principle of French civil law.”65

The absence of specific legal authority made it impossible to determine whether the governing law had been applied: 71. Does the “basic principle” referred to by the Award ... as one of “French civil law” come from positive law, i.e., from the law’s body of rules? It is impossible to answer this question by reading the Award, which contains no reference whatsoever to legislative texts, to judgments, or to scholarly opinions.66

The ad hoc Committee took the Tribunal’s reliance on a universal requirement of frankness and loyalty as a reference to general principles of law. It deplored the absence of any authority for these general principles or universal requirements67 and

64

Klöckner v. Cameroon, Decision on Annulment, 3 May 1985, 2 ICSID Reports 119.

65

Ibid., at 121. Italics original.

66

Ibid., at 122.

67

Ibid., at 123.


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concluded that the Award’s reasoning seemed more like a simple reference to equity.68 On the permissibility to resort to international law the ad hoc Committee said: the arbitrators may have recourse to the “principles of international law” only after having inquired into and established the content of the law of the State party to the dispute (which cannot be reduced to one principle, even a basic one) and after having applied the relevant rules of the State’s law. Article 42(1) therefore clearly does not allow the arbitrator to base his decision solely on the “rules” or “principles of international law.”69

The ad hoc Committee also found it unacceptable that the Tribunal had simply asserted the existence of a domestic legal principle without relying on any sources. The absence of specific legal authority made it impossible to determine whether the governing law had been applied: 71. Does the “basic principle” referred to by the Award ... as one of “French civil law” come from positive law, i.e., from the law’s body of rules? It is impossible to answer this question by reading the Award, which contains no reference whatsoever to legislative texts, to judgments, or to scholarly opinions.70

The ad hoc Committee was less concerned with the substantive correctness of the Award than with the way it was presented. It was unwilling to inquire on its own initiative whether an obligation of full disclosure did, in fact, exist in French law: 73. It is not the responsibility of the ad hoc Committee under Article 52 to determine instead of the Tribunal what rules of French civil law might be applicable, to insert them in some a posteriori way into the Award, either in place of the reasoning found there and cited above, or in place of non-existent reasoning. The Committee can only take the Award as it is, interpreting it according to the customary principles of interpretation, and find that it indeed refers to general principles or “universal requirements,” postulated rather than demonstrated, and which are affirmed as being “particularly appropriate” or “particularly important” in cases such as the present one.71

The ad hoc Committee also addressed the question of an unauthorized decision ex

68

Ibid., at 124.

69


70

Ibid., at 122.

71


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aequo et bono.72 It said: Excess of powers may consist of the non-application by the arbitrator of the rules contained in the arbitration agreement (compromis) or in the application of other rules. Such may be the case if the arbitrator … reaches a solution in equity while he is required to decide in law ... .73

Since the parties had not authorized the Tribunal to decide ex aequo et bono, the ad hoc Committee held that the Tribunal’s broad finding on an obligation of full disclosure amounted to an unauthorized resort to equitable principles: 77. Now, the Award’s reasoning and the legal grounds on this topic (…) seem very much like a simple reference to equity, to “universal” principles of justice and loyalty, such as amiable compositeurs might invoke.74

This, in the Committee’s view, constituted a manifest excess of powers since the Tribunal had acted … outside the framework provided by Article 42(1), applying concepts or principles it probably considered equitable (acting as an amiable compositeur, which should not be confused with applying “equitable considerations” as the International Court of Justice did in the Continental Shelf case). However justified its award may be (a question on which the Committee has no opinion), the Tribunal thus “manifestly exceeded its powers” within the meaning of Article 52(1)(b) of the Washington Convention.75

It followed that the Tribunal had not applied the governing law: 79. In conclusion, it must be acknowledged that in this reasoning, limited to postulating and not demonstrating the existence of a principle or exploring the rules by which it can only take concrete form, the Tribunal has not applied “the law of the Contracting State.”76

It followed that the Award had to be annulled in its entirety.77 72

Art. 42(3) of the ICSID Convention provides: “The provisions of paragraphs (1) and (2) shall not prejudice the power of the Tribunal to decide a dispute ex aequo et bono if the parties so agree.”

73

Klöckner v. Cameroon, Decision on Annulment, 3 May 1985, 2 ICSID Reports 119. Italics original.

74

Ibid., at 124.

75

Ibid., at 125.

76


77

The dispute was resubmitted to a second Tribunal, which rendered an award that has remained unpublished. Both parties requested annulment of the second Award. The Decision of the


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The annulment decision in Klöckner has attracted criticism.78 In particular, it was argued that the Tribunal had identified the applicable law correctly but had merely erred in the details of its application. The ad hoc Committee in Klöckner seemed less concerned with whether the governing law was applied and how it was applied than with the quality of the reasoning underlying its application. The main shortcoming of the Tribunal’s reasoning in Klöckner was its laxity in citing sources and its failure to rely on specific legal authority.

B. Amco v. Indonesia: The Neglect of One Provision The decision to annul in Amco v. Indonesia79 was based on the Tribunal’s failure to apply a single key provision of the governing law. The dispute in Amco arose from agreements to develop and manage a hotel and office block in Indonesia. As part of these arrangements, the investor undertook to invest at least three million U.S. Dollars in equity capital in the project. The project proceeded and the hotel was in operation when a dispute arose between the investor and its local partner PT Wisma. As a consequence, PT Wisma took over control of the hotel with the assistance of members of the Indonesian armed forces. Shortly thereafter, the Indonesian authorities revoked the Claimant’s investment licence. One of the reasons for the revocation was that the investor had not invested the full three million U.S. Dollars in equity capital. Amco submitted a request for ICSID arbitration. The Tribunal found that, since the Parties had not chosen a governing law, Indonesian law and such rules of international law as it deemed applicable were to be

second ad hoc Committee, which has also remained unpublished, rejected the requests for annulment. 78

Broches, supra note 56, at 360 et seq.; M. B. Feldman, “The Annulment Proceedings and the Finality of ICSID Arbitral Awards”, 2 ICSID Review—FILJ 85, at 92, 101 et seq. (1987); J. Paulsson, “ICSID’s Achievements and Prospects”, 6 ICSID Review—FILJ 380, at 389 (1991); Pirrwitz, supra note 46, at 103, 106; D. A. Redfern, “ICSID—Losing its Appeal?”, 3 Arbitration International 98, at 106 et seq. (1987); W. M. Reisman, “The Breakdown of the Control Mechanism in ICSID Arbitration”, 38 Duke Law Journal 739, at 766 et seq. (1989); de Berranger, supra note 46, at 112, 114; Gaillard, supra note 56, at 140; P. Kahn, “Le contrôle des sentences arbitrales rendues par un Tribunal CIRDI ”, in Société française pour le droit international (ed.), La juridiction internationale permanente. Colloque de Lyon 363, at 376 (1987); C. Schreuer, “Decisions Ex Aequo et Bono Under the ICSID Convention”, 11 ICSID Review—FILJ 37, 57-59 (1996).

79

For a full report of the case see 1 ICSID Reports 377. See also M. Leigh, “Arbitration— Annulment of Arbitral Award for Failure to Apply Law Applicable Under ICSID Convention and Failure to State Sufficiently Pertinent Reasons”, 81 American Journal of International Law 222 (1987).

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applied by virtue of the second sentence of Article 42(1) of the ICSID Convention.80 The Tribunal examined a number of legal questions from the perspectives of Indonesian law and international law and it found that both systems led to the same result.81 The Tribunal calculated the total sum of actual investments at U.S. $2,472,490 and concluded that the shortfall in relation to the required amount of U.S. $3,000,000 had been immaterial and this did not justify the revocation of Amco’s investment licence.82 Indonesia requested annulment relying on several grounds including excess of powers for failure to apply the governing law. The ad hoc Committee that decided the request for annulment had no doubt that failure to apply the governing law constituted an excess of powers and hence a ground for annulment. Like the Klöckner ad hoc Committee, it too distinguished a failure to apply the governing law from an error in its application: 23. The law applied by the Tribunal will be examined by the ad hoc Committee, not for the purpose of scrutinizing whether the Tribunal committed errors in the interpretation of the requirements of applicable law or in the ascertainment or evaluation of the relevant facts to which such law has been applied. Such scrutiny is properly the task of a court of appeals, which the ad hoc Committee is not. The ad hoc Committee will limit itself to determining whether the Tribunal did in fact apply the law it was bound to apply to the dispute. Failure to apply such law, as distinguished from mere misconstruction of that law, would constitute a manifest excess of powers on the part of the Tribunal and a ground for nullity under Article 52(1)(b) of the Convention. The ad hoc Committee has approached this task with caution, distinguishing failure to apply the applicable law as a ground for annulment and misinterpretation of the applicable law as a ground for appeal.83

80

Amco v. Indonesia, Award, 20 November 1984, 1 ICSID Reports 452.

81

Ibid., at 466-467, 473, 490-494, 498-501, 504, 506.

82

Ibid., at 489.

83

Amco v. Indonesia, Decision on Annulment, 16 May 1986, 1 ICSID Reports 515-516. Despite this distinction in theory, the ad hoc Committees in Klöckner and in Amco have been criticized for actually examining the substantive correctness of the Awards before them. Commentators have criticized these two decisions as having overstepped the line between annulment and appeal by looking also at the question of how the applicable law had been applied. See Gaillard, supra note 56, at 189; F. Niggemann, „Das Washingtoner Weltbankübereinkommen von 1965—Das Nichtigkeitsverfahren im Ad-Hoc-Komitee”, 4 Jahrbuch für die Praxis der Schiedsgerichtsbarkeit 97, at 110 et seq. (1990); Schreuer, supra note 30, at 558, 948; M. Sturzenegger, “ICSID Arbitration and Annulment for Failure to State Reasons”, 9 Journal of International Arbitration 173, at 179 (1992).


171

The ad hoc Committee had no doubt as to the relevance of the host State’s law: The law of the host State is, in principle, the law to be applied in resolving the dispute. At the same time, applicable norms of international law must be complied with …84

The ad hoc Committee found the Tribunal’s calculation of the amounts invested faulty since, under the relevant provision of Indonesian law, only amounts recognized and registered by the competent Indonesian authority were investments within the meaning of the Foreign Investment Law. Amco had not complied with the approval and registration formalities for all the amounts involved. The ad hoc Committee concluded: 95. The evidence before the Tribunal showed that as late as 1977, Amco’s investment of foreign capital duly and definitely registered with Bank Indonesia in accordance with the Foreign Investment Law, amounted to only US $983,992 ... . The Tribunal in determining that the investment of Amco had reached the sum of US $2,472,490 clearly failed to apply the relevant provisions of Indonesian law. The ad hoc Committee holds that the Tribunal manifestly exceeded its powers in this regard and is compelled to annul this finding.85

In other contexts, however, the ad hoc Committee rejected the contention that the Tribunal had committed an excess of powers by failing to apply the governing law. Indonesia claimed that the Tribunal had manifestly exceeded its powers and had failed to state any reasons in holding Indonesia responsible for the hotel’s forcible takeover by army and police personnel on the basis of international law.86 In Indonesia’s view, the Tribunal should have established whether Indonesian law provided a special duty to protect foreign investors and their property. The ad hoc Committee rejected this argument: The ad hoc Committee reads this portion of the Award to mean that the Tribunal found the acts of PT Wisma, and therefore also the acts of the army and police personnel involved, to be illegal under Indonesian law. It is true that the Tribunal did not refer to any specific Indonesian statutory or regulatory provision nor to any Indonesian case-law, but this omission is no more decisive of non-application of Indonesian Law than it is indicative of an intent on the part of the Tribunal, at that point in the Award, to apply international law.87

84

Ibid., at 515.

85

Ibid., at 534-535.

86

See Amco v. Indonesia, Award, supra note 80, at 458-459.

87

Amco v. Indonesia, Decision on Annulment, supra note 83, at 524.

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The ad hoc Committee proceeded to reconstruct the situation in Indonesian law. It concluded that there was a duty under Indonesian law to protect a person in actual peaceful possession of property. Therefore, the ad hoc Committee was unable to sustain the contention that the Tribunal had failed to apply Indonesian law.88 In another part of the Award, the Tribunal held that the procedure leading to the revocation of the investment license had not offered the investor a fair and adequate hearing and therefore had been contrary “to the general and fundamental principle of due process”.89 Before the ad hoc Committee Indonesia argued that Indonesian administrative law did not include any general principles or standards of due process. Nor did the words “due process” appear in Indonesia’s Constitution. But Indonesia admitted that Indonesian law offered redress against administrative decisions on the basis of certain general standards.90 Despite the Tribunal’s failure to define the conditions for its “general and fundamental principle”, the ad hoc Committee held: It appears to the ad hoc Committee that these general standards of Indonesian law are not qualitatively different from, and seem equivalent in a functional sense to, what the Tribunal appears to have had in mind in referring to “the general and fundamental principle of due process”.91

Therefore, the ad hoc Committee held that this part of the Award was not vitiated by a failure to apply the governing law amounting to a manifest excess of powers nor by failure to state reasons.92 The ad hoc Committee rejected also other contentions of failure to apply the governing law in connection with alleged technical errors concerning Indonesian law.93 These examples show that this Committee did not take the tribunal’s failure to cite specific authority for the rules it applied as a failure to apply the governing law as long as the rule applied was, in fact, in accord with the applicable law. In Amco there was also no authorization to decide ex aequo et bono and the Tribunal recognized this explicitly.94 Unlike the Klöckner ad hoc Committee, however, the ad hoc Committee in Amco rejected the idea that every reliance on broad principles or equitable considerations amounted to an impermissible decision ex aequo et bono. The ad hoc Committee in Amco also found that the Tribunal did not need to base each

88

Ibid., at 525.

89

Amco v. Indonesia, Award, supra note 80, at 472-473.

90

Amco v. Indonesia, Decision on Annulment, supra note 83, at 529-530.

91

Ibid., at 530.

92

Ibid., at 530.

93

Ibid., at 526-527, 528-529, 530-531, 532.

94

Amco v. Indonesia, Award, supra note 80, at 452.


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finding on a specific legal rule. It said: 25. At the same time, the ad hoc Committee does not believe that the Tribunal had necessarily to preface each finding or conclusion with a specification of the Indonesian or international law rule on which such finding or conclusion rests. The Tribunal’s conclusions or findings must of course be read in their context (...) . 26. Neither does the ad hoc Committee consider that any mention of “equitable consideration” in the Award necessarily amounts to a decision ex aequo et bono and a manifest excess of power on the part of the Tribunal. Equitable considerations may indeed form part of the law to be applied by the Tribunal, whether that be the law of Indonesia or international law.95

The ad hoc Committee concluded that while an unauthorized decision ex aequo et bono would have amounted to an excess of powers, the Tribunal had not, in fact, applied equity instead of law: The ad hoc Committee thus believes that invocation of equitable considerations is not properly regarded as automatically equivalent to a decision ex aequo et bono which, in view of the determination of the law applicable to the present case ..., would constitute a decision annullable for manifest excess of powers. Nullity would be a proper result only where the Tribunal decided an issue ex aequo et bono in lieu of applying the applicable law.96

In the end, the ad hoc Committee decided to annul the Award, with the exception of the Tribunal’s finding as to the illegality of the hotel’s armed takeover. The ad hoc Committee found that the Tribunal had correctly identified the applicable law but it had failed to apply that law when calculating the shortfall of the amount that had been invested. It followed that the Tribunal’s finding as to the illegality of the withdrawal of the investment licence, its findings on the amount of damages and its rejection of certain Indonesian counter-claims had to be annulled as well.97

95

Amco v. Indonesia, Decision on Annulment, supra note 83, at 516.

96

Ibid., at 517.

97

Ibid., at 537 et seq. The case was resubmitted to a new Tribunal, which rendered a preliminary Decision on Jurisdiction determining mainly which parts of the Award had been annulled and which were res judicata: Amco v. Indonesia, Resubmitted Case: Decision on Jurisdiction, 10 May 1988, 1 ICSID Reports 543. In a new Award on the merits, the new Tribunal awarded damages to Amco for the general disturbance entailed by the loss of the right to manage: Amco v. Indonesia, Resubmitted Case: Award, 5 June 1990, 1 ICSID Reports 569. Both parties requested annulment of the second Award. The Decision of the second ad hoc Committee rejected the requests for annulment. This decision has remained unpublished.

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The Amco decision demonstrates that the omission or neglect of a single provision in the applicable law may lead to annulment. The Tribunal had identified the applicable law, including Indonesian law, correctly and had purported to apply it. It had even identified and analyzed the relevant legislation, the Foreign Investment Law,98 but it had not applied a particular provision of that law. In the ad hoc Committee’s view, the non-application of one important rule of Indonesian law dealing with the approval and registration of invested capital was enough to annul the Award. The annulment of major parts of the Award in Amco on the ground that the Tribunal had overlooked a provision of the applicable law is difficult to reconcile with the distinction between failure to apply the applicable law and a mere error in the application of that law. The Tribunal undertook a detailed examination of Indonesian law and, in particular, of the Foreign Investment Law quoting some of its provisions. To speak of a non-application that is distinguishable from an erroneous application in this context is not meaningful. The ad hoc Committee simply came to a different interpretation and described what it perceived as an erroneous application as a nonapplication.99

C. MINE v. Guinea: A Minor Technical Error The decision in the annulment proceedings in MINE v. Guinea100 indicates that mere technical flaws will not result in the overturning of an award. The dispute arose from contracts for the creation of facilities to ship bauxite. The parties had agreed on Guinean law subject to a stabilization clause.101 The Tribunal found that Guinea had violated the principle of good faith and had breached its contractual obligation. Therefore it awarded damages to MINE.102 Guinea requested the annulment of the Award. One of the reasons for the request was an alleged excess of powers for failure to apply the governing law. Before the Tribunal, MINE had relied on Article 1134 of the Code Civil de l’Union Française, applicable in Guinea and containing the principles of pacta sunt servanda and good faith. The Tribunal had erred in that it had cited Article 1134 of the French Civil

98

Amco v. Indonesia, Award, supra note 80, at 482-485.

99

This view was shared by the new Tribunal established under Art. 52(6) of the ICSID Convention. See Amco v. Indonesia, Resubmitted Case: Decision on Jurisdiction, 10 May 1988, 1 ICSID Reports 559.

100

For a full report of this case see 4 ICSID Reports 54.

101

MINE v. Guinea, Decision on Annulment, 22 December 1989, 4 ICSID Reports 94-95.

102

MINE v. Guinea, Award, 6 January 1988, 4 ICSID Reports 73.


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Code instead.103 In its Application for Annulment, Guinea claimed that the Tribunal had “failed to apply any law, let alone the correct law” thereby committing a manifest excess of powers.104 The ad hoc Committee confirmed the principle that a failure to apply the governing law would constitute an excess of powers leading to the Award’s annulment. It also emphasized the distinction between the non-application and the erroneous application of the governing law: … the parties’ agreement on applicable law forms part of their arbitration agreement. Thus, a tribunal’s disregard of the agreed rules of law would constitute a derogation from the terms of reference within which the tribunal has been authorized to function. Examples of such a derogation include the application of rules of law other than the ones agreed by the parties, or a decision not based on any law unless the parties had agreed on a decision ex aequo et bono. If the derogation is manifest, it entails a manifest excess of power. 5.04 Disregard of the applicable rules of law must be distinguished from erroneous application of those rules which, even if manifestly unwarranted, furnishes no ground for annulment (...).105

The ad hoc Committee held that the technical error in the award did not warrant annulment: 6.40 There is thus no basis for saying that the Tribunal failed to apply any law. Admittedly, the Tribunal erred in citing Article 1134 of the French Civil Code. The Committee notes, however, that the relevant provision of the applicable Guinean law is contained in the “Code Civil de l’Union Française” with the same number and the same contents as Article 1134 of the French Civil Code. For this reason, the Committee does not consider that this error warrants annulment.106

As a result, the ad hoc Committee did not annul the portion of the Award that had held Guinea to be in breach of contract. In the ad hoc Committee’s view, the Tribunal had correctly applied the governing law.107 103

Ibid., at 73.

104

See MINE v. Guinea, Decision on Annulment, supra note 101, at 95.

105

Ibid., at 87.

106

Ibid., at 96.

107

But the ad hoc Committee annulled the damages section of the Award because the Tribunal had failed to deal with essential questions raised by Guinea. In addition, the Tribunal had contradicted itself in adopting its damages theory. Ibid., at pp. 107-108. MINE resubmitted the damages question for decision by a new tribunal. The parties subsequently reached a settlement by agreement and the proceedings were discontinued.

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This decision appears entirely convincing. A mere error in identifying the name of an applicable piece of legislation cannot be described as a failure to apply the governing law.

D. Wena Hotels v. Egypt: International Law Prevails in the Event of a Conflict The decision on annulment in Wena Hotels Ltd v. Arab Republic of Egypt108 shows the interaction between domestic and international law in cases in which they both apply. In Wena Hotels, the investor, a British national, had entered into agreements with EHC, an Egyptian public sector company, for the lease, development and management of two hotels in Luxor and Cairo. Disputes arose between EHC and Wena concerning their respective obligations. After attacks leading to a forcible takeover, EHC took control of the hotels. The Egyptian authorities recognized the illegality of the attacks and takeover and the hotels were returned to the investor. Wena initiated several domestic arbitrations against EHC in respect of the two hotels. As a consequence of these arbitrations, Wena received some damages but lost control of the hotels. Wena then initiated ICSID arbitration against Egypt on the basis of the BIT between Egypt and the United Kingdom. That BIT did not contain a provision on applicable law. In its statement on applicable law109 the Tribunal found that the parties were in agreement that the case turned on the alleged violation of the BIT. Therefore, the BIT was the primary source of applicable law. The Tribunal found that there was no special agreement between the parties on applicable law. Therefore, under the second sentence of Article 42(1) of the ICSID Convention the Host State’s law and international law was applicable. The Tribunal drew the following conclusion: The Tribunal notes that the provisions of the IPPA [i.e. the BIT] would in any event be the first rules of law to be applied by the Tribunal, both on the basis of the agreement of the parties and as mandated by Egyptian law as well as international law.110

On the basis of the BIT, the Tribunal found that Egypt had violated its obligations to provide “fair and equitable treatment”, “full protection and security” and had failed to provide Wena with “prompt, adequate and effective compensation” following the

108

For a full report of this case see 41 ILM 896, at 900-910, 933, 939-943 (2002).

109

Wena Hotels Ltd v. Arab Republic of Egypt, Award, 8 December 2000, 41 ILM 896, at 910-911, paras. 78-79 (2002).

110

Ibid., at 911.


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expropriation of the investment. It awarded a substantial amount of damages including interest at the rate of 9% compounded quarterly.111 Egypt’s request for annulment was based on several grounds including manifest excess of powers for failure to apply the governing law. In particular, Egypt argued that the Tribunal had failed to apply Egyptian law contrary to Article 42(1) of the ICSID Convention. The ad hoc Committee, citing the decisions in Klöckner, Amco and MINE, confirmed the principle that failure to apply the governing law may constitute a manifest excess of power and a ground for annulment. It also stated that it was mindful of the distinction between failure to apply the proper law and the error in judicando drawn in Klöckner I, and the consequential need to avoid the reopening of the merits in proceedings that would turn annulment into appeal.112

The ad hoc Committee found that the parties to the dispute before it had not made a choice of law. While the agreements between Wena and EHC were clearly subject to Egyptian law, the relationship between Wena and Egypt was of a different nature.113 Therefore, the second sentence of Article 42(1), directing the tribunal to apply the host State’s law and applicable rules of international law, governed the issue.114 The ad hoc Committee undertook a somewhat inconclusive discussion of the relationship of international law and domestic law.115 In this regard the ad hoc Committee found that both legal orders have a role but that in the event of inconsistency international law would prevail. The BIT and the ICSID Convention were in accord with Egyptian law and they were part of it. Therefore, the Tribunal, in relying on the BIT as the primary source of law, did not exceed its powers.116 The application for annulment relied on the ground of excess of powers for failure to apply the governing law in several contexts.117 Egypt contended that the Tribunal should have considered the extent and nature of the rights under the leases as governed by Egyptian law. It also criticised the fact that the ICSID Tribunal had failed to take proper account of one of the domestic arbitral awards between Wena and EHC. This,

111

Ibid., at 918-920.

112

Wena Hotels Ltd v. Arab Republic of Egypt, Decision on Annulment, 28 January 2002, 41 ILM 933, at 939 (2002).

113

Ibid., at 940.

114

Ibid., at 941.

115

Ibid., at 941.

116

Ibid., at 942.

117

Egypt’s complaints in the context of an alleged corruption were dismissed as relating to questions of evidence and not applicable law. Ibid., at 942.

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alleged Egypt, amounted to a failure to apply the proper law and a manifest excess of powers. The ad hoc Committee rejected this argument. It distinguished the relationship between Wena and EHC from that of Wena and Egypt. The dispute submitted to the domestic arbitration under the lease agreements was different from the dispute brought to arbitration under the ICSID Convention and the BIT. The most significant question affected by the applicable law concerned the calculation of interest. Egypt contended that that the Tribunal, by awarding interest at the rate of 9%, compounded quarterly, had failed to apply the proper law. Egypt contended that such a calculation of interest was contrary to Egyptian law, specifically Article 226 of the Egyptian Civil Code, which provides for various limits to the determination of interest.118 The ad hoc Committee rejected this argument. It found that under the BIT compensation had to be “prompt, adequate and effective” and “compensation shall amount to the market value of the investment expropriated immediately before the expropriation itself.” Although not referring to interest, these provisions had to be read as including a determination of interest that was compatible with those two principles. The ad hoc Committee said: 53. The option the Tribunal took was in the view of this Committee within the Tribunal’s power. International law and ICSID practice, unlike the Egyptian Civil Code, offer a variety of alternatives that are compatible with those objectives. These alternatives include the compounding of interest in some cases.119 Whether among the many alternatives available under such practice the Tribunal chose the most appropriate in the circumstances of the case is not for this Committee to say as such matter belongs to the merits of the decision. Moreover, this is a discretionary decision of the Tribunal. Even if it were established that the Tribunal did not rely on the appropriate criteria this in itself would not amount to a manifest excess of power leading to annulment.120

Therefore, on the issue of interest, the ad hoc Committee found that the Tribunal had rightly given precedence to international law since Egyptian law was in conflict with

118

Ibid., at 342.

119

Atlantic Tritonl v. Guinea, Award of 21 April 1986, 3 ICSID Reports 17, at 33, 43; Compania del Desarrollo de Santa Elena S.A. v. Republic of Costa Rica, Award of 17 February 2000, 15 ICSID Review—Foreign Investment Law Journal 169, at 200-202, paras. 96-107 (2000); Emilio Augustin Maffezini v. The Kingdom of Spain, Award, 13 November 2000, 16 ICSID Review—Foreign Investment Law Journal 248, at 277, para. 96 (2001). (Footnote and footnote text in the original.)

120

See Wena Hotels Ltd v. Arab Republic of Egypt, Decision on Annulment, supra note 112, at 943.


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international law on this particular point. It would seem that the decision not to annul the part of the Award dealing with interest was reached by way of a somewhat generous reconstruction of the Tribunal’s decision. A discussion of interest under Egyptian law was clearly called for. But the Tribunal simply based its decision on international law. The ad hoc Committee was able to reach its decision not to annul on the basis of its conclusion that a comparison between the two legal systems would have demonstrated a conflict in which case international law would have prevailed anyway. This reasoning is tenable though not entirely satisfactory. The decision not to annul is justifiable on the ground that, even though there was a failure to apply the proper law on a specific point, this failure did not affect the outcome of the Award.

E. Metalclad v. Mexico: The Wrong Part of the Right Treaty The court in the judicial review of the award in Metalclad v. Mexico121 took the Tribunal to task on its interpretation and application of the relevant treaty provisions. In Metalclad, the investor obtained a license from the federal government to operate a landfill facility and it had completed construction of the facility, but municipal authorities effectively prevented it from operating the facility. Metalclad brought a claim under Chapter 11 of the NAFTA dealing with investment.122 The Tribunal held that Mexico had violated the provision on treatment in accordance with international law including fair and equitable treatment contained in Article 1105 and on expropriation and compensation contained in Article 1110 of the NAFTA. In doing so, it relied also on NAFTA’s principle of transparency as contained in the principles and rules that introduce the Agreement. The Tribunal said: 76. Prominent in the statement of principles and rules that introduces the Agreement is the reference to “transpareny” (NAFTA Article 102(1)). The Tribunal understands this to include the idea that all relevant legal requirements for the purpose of initiating, completing and successfully operating investments made, or intended to be made, under the Agreement should be capable of being readily known to all affected investors of another Party. There should be no room for doubt or uncertainty on such matters. Once the authorities of the central government of any Party (whose international responsibility in such matters has been identified in the preceding section) become aware of any scope for misunderstanding or confusion in this connection, it is their duty to ensure that the correct position is promptly determined and clearly stated so that investors can proceed

121

For a full report of the case see 5 ICSID Reports 209.

122

Chapter 11 of NAFTA consists of a Section A dealing with substantive standards of protection for investors and Section B dealing with the settlement of investor/State disputes.

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with all appropriate expedition in the confident belief that they are acting in accordance with all relevant laws.123

After examining the relevant facts, the Tribunal reached the following conclusion: 99. Mexico failed to ensure a transparent and predictable framework for Metalclad’s business planning and investment. The totality of these circum-stances demonstrates a lack of orderly process and timely disposition in relation to an investor of a Party acting in the expectation that it would be treated fairly and justly in accordance with the NAFTA.124

Mexico sought to set aside the Award on the ground that the Tribunal made decisions outside the scope of the submission to arbitration. The Tribunal had acted under ICSID’s Additional Facility. Therefore, the provisions of the ICSID Convention, including those on the annulment by an ad hoc committee, did not apply. Since the place of the arbitration had been designated as Vancouver, British Columbia, the Supreme Court of British Columbia was competent for the setting aside proceedings. Article 1131 of the NAFTA provides that a Chapter 11 tribunal is to decide the issues in dispute in accordance with the NAFTA and applicable rules of international law. The Supreme Court of British Columbia found that the right of an investor to submit a claim against a NAFTA State under Section B of Chapter 11 is limited to alleged breaches of Section A of Chapter 11 and to two Articles contained in Chapter 15.125 It does not enable investors to arbitrate claims in respect of other provisions of NAFTA.126 The Supreme Court of British Columbia applied the British Columbia International Commercial Arbitration Act. That Act provides that an arbitral award may be set aside if ... the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration.127

123

Metalclad Corporation v. United Mexican States, Award, 30 August 2000, 5 ICSID Reports 212, at 226 et seq.

124

Ibid., at 229.

125

See Arts. 1116 and 1117 of NAFTA.

126

United Mexican States v. Metalclad Corporation, Judicial Review, Supreme Court of British Columbia, 2 May 2001, 5 ICSID Reports 236, at 251.

127

Ibid., at 248.


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The Court found that the Tribunal had misstated the applicable law to include transparency obligations and then made its decision on the basis of the concept of transparency. The principle of transparency is implemented through the provisions of Chapter 18, not Chapter 11. [T]he Tribunal made its decision on the basis of transparency. This was a matter beyond the scope of the submission to arbitration because there are no transparency obligations contained in Chapter 11.128

It followed that part of the Award had to be set aside. The strict standard of review adopted by the Supreme Court of British Columbia is reminiscent of the decisions of the ad hoc Committees in Klöckner and Amco. The NAFTA was clearly part of the applicable law together with applicable rules of international law. But arbitration was available only for breaches of the substantive provisions of Chapter 11 (and of two Articles in Chapter 15). The Tribunal had used the concept of transparency merely to elucidate provisions of Chapter 11. Chapter 18 deals with “Publication, Notification and Administration of Laws”.129 In fact, the Tribunal did not rely on Chapter 18 but relied on the principle of transparency as contained in the “Objectives” of the Treaty in Article 102(1)130 introducing the NAFTA. The decision of the British Columbia court is difficult to sustain. It is a standard principle of treaty interpretation that the terms of a treaty are to be considered in their context and in the light of the treaty’s object and purpose.131 The interpretation of a treaty provision with the help of objectives stated in the treaty’s introductory part is entirely legitimate. Even if the Tribunal used Chapter 18 as an aid to interpreting the concept of fair and equitable treatment contained in Chapter 11, it merely examined the provision’s context. The context of a treaty provision includes the treaty’s entire text. Therefore, the Metalclad Tribunal, far from misstating the applicable law, had merely applied the normal rules of treaty interpretation.

128

Ibid., at 253-254.

129

32 ILM 605, 681-682 (1993).

130

32 ILM 297 (1993). The Tribunal quoted from Art. 1802.1 in the Award’s chapter on applicable law as part of the context of Chapter 11.

131

Vienna Convention on the Law of Treaties, Art. 31(1): “A treaty shall 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.”

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F. CME v. The Czech Republic: Refusal to Apply Host State Law Despite the growing authority for the dual application of domestic and international law in investment disputes, in CME v. The Czech Republic the Tribunal declined to apply the host State’s law. In that case, the Claimant was a Dutch company that had invested in the Czech Republic through its shareholding in the locally incorporated company CNTS. The acquisition took place in several steps but eventually CME held 99 per cent of CNTS. CNTS was the operator of the successful television station called TV Nova. The holder of the television license was not CNTS but another company CET 21. The relationship between the license holder and its partners was governed originally by a contract, the Memorandum of Association and Investment Agreement of 1993 (the “MOA”). This contract was approved by the Media Council, the Czech regulatory authority. After a change of the Czech Media Act, the 1993 MOA was amended in 1996. As a result of this amendment CNTS relinquished its exclusive right to the use of the license, which it held under the 1993 MOA. Instead, it obtained an exclusive right to the use of the know-how of the license. It was later found by the Tribunal that this amendment was the result of coercion exercised by the Media Council on CNTS. The coercion consisted primarily of an administrative law procedure commenced by the Media Council against CNTS for broadcasting without a license. In 1997 CET 21 and CNTS entered into a service agreement governing CNTS’ rights and obligations as an exclusive service provider for the operation of TV Nova. In 1999 a dispute erupted between CNTS and CET 21. It led to the termination by CET 21 of its service agreement with CNTS on the grounds that CNTS had failed to deliver a daily report of broadcasts, which allegedly constituted a material breach of contract. As a consequence, CNTS lost its position as service provider and its income therefrom. CME argued that the Media Council had colluded in destroying CNTS’s business. CNTS sued CET 21 in the courts of the Czech Republic for having terminated the Service Agreement without cause. This litigation was still pending when the international tribunal made its relevant decisions. CME instituted arbitration against the Czech Republic under the BIT between the Netherlands and the Czech Republic (formerly the Czech and Slovak Federal Republic).132 The arbitration was governed by the UNCITRAL Rules. The place of

132

CME was indirectly controlled by a US citizen Ronald Lauder. Lauder also pursued a claim based on the same dispute under the US/Czech BIT. The two UNCITRAL arbitrations ran concurrently and the awards were rendered within a few days of one another in September 2001. The two tribunals reached diametrically opposed results on the basis of the same facts and despite very similar provisions in the two BITs. For the Award in Lauder v. Czech Republic, 3 September 2001 see http://www.mfcr.cz/static/Arbitraz/en/FinalAward.doc.


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arbitration was determined to be Stockholm. The parties agreed that the Tribunal should first determine liability. In a second phase, the Tribunal would determine the quantum of damages, if any. In its Partial Award on liability 133 the majority of the Tribunal reached the conclusion that the Czech Republic had violated a number of the BIT’s provisions including the obligation not to deprive the investor of its investment, the obligation of fair and equitable treatment, the obligation not to impair investments by unreasonable or discriminatory treatment, the obligation of full security and protection and the obligation to treat investments in conformity with the principles of international law.134 Therefore the Respondent was under an obligation to make full reparation for the injury caused by the Media Council’s wrongful acts and omissions. Concerning the applicable law, Article 8(6) of the Netherlands/Czech BIT contains the following provision: 6. The arbitral tribunal shall decide on the basis of the law, taking into account in particular though not exclusively: -

the law in force of the Contracting Party concerned;

-

the provisions of this Agreement, and other relevant Agreements between the Contracting Parties;

-

the provisions of special agreements relating to the investment;

-

the general principles of international law.

Therefore, the BIT provided for the application of the host State’s law as well as international law. In accordance with the practice, set out above, it was to be expected that the Tribunal would examine all relevant issues from the perspective of the law of the Czech Republic and of international law. The Tribunal proceeded differently. The Partial Award contained no discussion of applicable law and of Article 8(6) of the BIT. The merits of the case were examined exclusively from the perspective if international law, specifically the BIT.135 The Tribunal observed on several occasions in its decision that it had no duty to apply the host State’s law. The Tribunal said: The Tribunal is not to decide on the Czech Administrative Law aspects of this question. 136 133

CME v. The Czech Republic, Partial Award of 13 September 2001. For the full text of the Partial Award see http://www.mfcr.cz/static/Arbitraz/en/PartialAward.doc.

134

Ibid., at paras. 586-614.

135

The part of the Award dealing with the merits of the case is headed: “The Merits of the Claimant’s case under the Treaty”, ibid., at para. 427.

136

CME v. The Czech Republic, Partial Award, supra note 133, at para. 467.

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The Tribunal need not decide whether the contribution of the “use of the Licence” in 1993 was legally valid under Czech law.137 It is not the Tribunal’s role to pass a decision upon the legal protection granted to the foreign investor for its investment under the Czech Civil Law and civil court system.138 It is not the task of the Arbitral Tribunal to judge whether these acts [of the Media Council] were in compliance with Czech law and regulations. The only task for this Tribunal is to judge whether the actions and omissions of the Media Council were in compliance with the Treaty [i.e. the BIT].139

These statements are in marked contrast to the practice of other tribunals applying provisions on choice of law that combine references to the host State’s domestic law and to international law as set out above. The Tribunal’s refusal to refer to Czech law was not restricted to general statements. The application of Czech law was called for in a number of contexts, but the Partial Award shows no sign that it was applied or even considered. For example, the Tribunal found that the Media Council in 1996 coerced CME to abandon the legal security for its investment in the Czech Republic.140 It referred to the actions that it described as coercion as “unlawful pressure”, “unlawful acts” and “(unlawful) situation of coercion”,141 without indicating under which law it found these actions to be unlawful. Nor did it examine whether the Media Council’s actions were lawful or even required under Czech law. In fact, it was in this context that the Tribunal found that it was “not to decide on the Czech Administrative Law aspects of this question.”142 The Tribunal’s treatment of the Media Council’s actions immediately prior to the termination of the service agreement in 1999 was similar. In this context too, the Tribunal speaks of an “(unlawful) situation of coercion”,143 of “threat”144 and of “interference by the Media Council in the economic and legal basis of CME’s investment”.145 Here too, there is no reference to relevant Czech law by which this

137

Ibid., at para. 469.

138


139


140


141

Ibid., at paras. 515, 516 , 518 and 521.

142


143


144


145

Ibid., at para. 551. See also paras. 554, 555,558.


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allegedly unlawful threat, act of coercion and interference was to be judged. It is difficult to see how actions of a regulatory authority with the power to impose sanctions can be conclusively evaluated without an examination of the legal parameters governing its actions. Neither did the Tribunal examine the consequences of coercion under Czech law. Under Czech law a contract obtained under coercion is null and void. In other words, even if the Tribunal’s finding of coercion was correct, under Czech law this would not have had the consequence on the parties’ legal relationship that the Tribunal assumed. But the Tribunal never examined this question from the perspective of Czech law. In fact, it explicitly rejected the relevance of Czech civil law for purposes of its analysis.146 Similarly, the Tribunal addressed the legal significance of the changes in the contractual arrangements, allegedly brought about by the “coercion”, without reference to Czech law. It found that the changes in the contractual arrangements between CNTS and CET 21 substantially weakened the investor’s legal situation.147 In particular, it held that these changes “vitiated the Claimant’s protection”,148 “undermine the legal protection of CME’s investment”,149 that the changes were “dismantling the legal basis of the foreign investor’s investments”,150 that “CME lost its legal protection for the investment”,151 that the changes resulted in a “coerced vitiation of CME’s basis for its investment”152 and led to “giving up legal security for CME’s investment”,153 that it did “destroy the legal basis (the safety net) of the foreign investor’s investment”,154 “jeopardized the legal basis of CME’s investment”,155 “deprived the Claimant of it’s investment’s security”156 and led “to the elimination of basic rights for the protection of its investment”.157

146


147

Ibid., at paras. 471, 473, 475, 531, 573, 595, 598.

148


149


150


151


152


153


154


155


156


157


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It is clear that the contract between CNTS and CET 21 was governed by Czech law. It follows that any such fundamental change in the contractual relationship between the two business partners was governed by Czech law. But none of the Tribunal’s numerous assessments of the alleged legal change to the detriment of the investor was supported by reference to Czech civil, commercial or corporate law. The termination of the Service Agreement by CET 21 led to a lawsuit by CNTS against CET 21 in the courts of the Czech Republic. The Regional Commercial Court in Prague on May 4, 2000 judged the termination void. On appeal, the Court of Appeal on 14 December 2000 confirmed the validity of the termination. Upon further appeal, the Czech Supreme Court on 14 November 2001 vacated the decision of the Court of Appeal and remanded the case. This was the situation at the time the Tribunal rendered its Partial Award. The Tribunal adopted a dismissive attitude towards these proceedings. The outcome of the court proceedings was described as irrelevant158 and “not dispositive”.159 The Court of Appeal was criticized for having “inadequately dealt with the facts and circumstances”160 in “a highly unconvincing judgment”.161 No reasons were given for this harsh criticism. The fact that the decision of the court of first instance was overturned by the Court of Appeal which in turn was vacated by the Supreme Court, in the Tribunal’s view, demonstrated a legal uncertainty through “contradictory Civil Court judgments”162 or “differing court decisions”.163 The nature of the Czech court decisions, in the Tribunal’s eyes, “clearly shows how fragile the Claimant’s investment is”.164 The investment “was put at the risk of civil court decisions”.165 The arrangement could easily be jeopardized again by “dragging CNTS into Civil Court proceedings”.166 The court proceedings exposed the investor to the “unacceptable legal and commercial risk of prolonged legal battles”.167 The Court of Appeal’s judgment was seen as “a clear proof of the fragile character of the (coerced) 1996 amendment.”168

158

Ibid., at paras. 416, 522, 525, 575.

159


160


161


162


163


164


165


166


167


168



187

For the Tribunal, the mere fact that the investor had to resort to the courts of the Czech Republic in a dispute with its business partner was proof that the legal arrangements between CNTS and CET 21, allegedly coerced upon the investor, were unsatisfactory. The system of appeal in the hierarchy of domestic courts was seen as constituting an unacceptable risk to the investor. No denial of justice or other impropriety by the courts of the Czech Republic was alleged. Rather, it appears that the Tribunal found that the need to resort to domestic courts in a dispute with a business partner in itself was enough to violate the investor’s rights regardless of the outcome of these court proceedings. Under the UNCITRAL Arbitration Rules a tribunal may decide ex aequo et bono only if so authorized by the parties.169 No such authorization existed in the instant case. There is no doubt that the Tribunal applied the BIT and some international law authorities170 to the facts before it. Therefore, it would be incorrect to state in general terms that the Partial Award was based on equity instead of law. But certain passages of the Partial Award create the impression that the arbitrators felt that they were not bound by positive law but were performing the role of amiable compositeurs deciding ex aequo et bono. This impression is created not only by the explicit disavowal of Czech law, as outlined above, but also by a number of conclusions on issues of tort, contract and criminal law which are difficult to perceive as an application of international law. The Tribunal repeatedly passed judgment on the parties’ activities without offering a legal basis. It referred to matters being unacceptable.171 It denied that the Media Council’s actions were “part of proper administrative proceedings”172 without reference to Czech administrative law or, for that matter, any administrative law. Similarly, the activities of CET 21’s manager were characterized as an “unconcealed violation … of his duties under corporate and civil law”, which the Tribunal described as “a breach of law that must be assessed as a serious criminal offence in any functioning judicial system”.173 These statements were made without any references to Czech or any other system of law.

169

UNCITRAL Arbitration Rule 33(2): The arbitral tribunal shall decide as amiable compositeur or ex aequo et bono only if the parties have expressly authorized the arbitral tribunal to do so and if the law applicable to the arbitral procedure permits such arbitration. Available at http://www.uncitral.org/en-index.htm.

170

CME v. The Czech Republic, Partial Award, supra note 133, at paras. 398, 517, 526, 580, 583, 584.

171


172


173

Ibid., at para 552.

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After the Partial Award had been rendered, the Czech Republic requested consultations with the Netherlands on the interpretation and application of the BIT. These consultations led to Agreed Minutes signed on 17 June 2002. With respect to the provision on applicable law in the BIT the Agreed Minutes state: 2. On the issue of investment disputes and interpretation of Article 8.6 of the Agreement The delegations agree that the arbitral tribunal shall decide on the basis of the law. When making its decision, the arbitral tribunal shall take into account, in particular, though not exclusively, the four sources of law set out in Article 8.6. The arbitral tribunal must therefore take into account as far as they are relevant to the dispute the law in force of the Contracting Party concerned and the other sources of law set out in Article 8.6. To the extent that there is a conflict between national law and international law, the arbitral tribunal shall apply international law.

Therefore, the two governments made it clear that a Tribunal must take the host State’s law into account to the extent that it is relevant to the dispute. The Czech Republic instituted proceedings for a declaration of invalidity or the setting aside of the Partial Award in accordance with the Swedish Arbitration Act. The Act’s Section 34(2) provides that an arbitral award shall be set aside “where the arbitrators have … exceeded their mandate”. Failure to take into consideration the applicable law was one of several grounds invoked for the Partial Award’s setting aside.174 The Czech Republic argued that the Tribunal had failed to apply Czech law in violation of Article 8(6) of the BIT. The Republic pointed out that Czech law was relevant on a number of issues and was argued in detail before the Tribunal. In particular, the Republic argued that the Tribunal’s conclusions concerning the contractual relationship between CNTS and CET 21 and the effect of the alleged coercion upon them were impossible to make without an investigation of inter alia Czech company law and contract law. As for the activities of the Media Council, the legality of these should have been examined first of all under Czech administrative law.175

174

Other grounds were the charge that the dissenting arbitrator had been excluded from parts of the Tribunal’s deliberations, the principles of lis pendens and res judicata in relation to the parallel arbitration proceedings in Lauder v. Czech Republic (see supra note 132), the Tribunal’s decision on a point that was not canvassed in argument and the examination by the Tribunal of issues concerning the amount of damages which had been relegated to the second part of the proceedings.

175

The Czech Republic’s submission was accompanied by a legal opinion prepared by the author of this article and by Professor August Reinisch. The text of the opinion is available at http://www.univie.ac.at/intlaw/pdf/cmeopin_1.pdf. An adapted version of the opinion


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While the proceedings for the setting aside of the Partial Award were pending before the Swedish court, the Tribunal rendered its Final Award.176 In contrast to the Partial Award, the Tribunal’s analysis in the Final Award begins with a chapter entitled “The Law Applicable to this Arbitration”.177 That chapter is devoted almost entirely to a defence of the Partial Award against the charge of not having applied the governing law. The Tribunal explains its non-application of Czech law by stating that Czech law was never pleaded before it in the First Phase leading to the Partial Award178 and that a tribunal was not bound to research find and apply national law that had not been argued or referred to by the parties.179 The Tribunal’s central explanation for declining to apply Czech law was its interpretation of Article 8(6) of the Czech /Netherlands BIT. It found that this provision gave broad discretion and that, under its wording, the Tribunal was bound merely to

was submitted to the Tribunal and is available at http://www.univie.ac.at/intlaw/pdf/ cmequant_2.pdf. 176

CME v. The Czech Republic, Final Award, 14 March 2003. For the text of the Final Award see http://www.cetv-net.com/iFiles/1439-Final_Award_Quantum.pdf.

177


178

Ibid., at para. 400. This statement is not supported by the text of the Partial Award. The Partial Award contains summaries of the Parties’ positions and arguments that demonstrate reliance by the Respondent on Czech law. In particular, there was extensive reliance on the Czech Media Law (paras.182-188, 194, 196, 199-201, 212, 219, 235, 239, 241, 254, 255, 257, 276, 315, 338, 341, 347, 355, 365, 366 and 367) and on other areas of Czech law, including contract law, administrative law and Czech law in general (paras. 196, 200, 219, 276, 312, 313, 345, 347 and 371). In addition, the repeated statements by the Tribunal in the Partial Award that it was not its task to apply Czech law (paras. 467, 469, 476, 590) can only be understood in the context of the invocation of Czech law by one of the parties.

179

Ibid., at para. 411. By contrast, other international tribunals, applying the principle of iura novit curia, have refused to be confined in their application of the relevant law to the pleadings of the parties. ICSID ad hoc Committees hearing annulment cases have uniformly rejected the idea that tribunals in drafting their awards were restricted to the legal arguments presented to them by the parties. They held that tribunals committed no procedural error in relying on legal authorities that had not been put forward by the parties. See Klöckner v. Cameroon, Decision on Annulment, 2 ICSID Reports 128-129; MINE v. Guinea, Decision on Annulment, 4 ICSID Reports 82, at 106, 109; Wena Hotels v. Egypt, Decision on Annulment, 41 ILM 933, at para. 70 (2002); Compañía de Aguas del Aconquija, S.A. & Compagnie Générale des Eaux v. Argentine Republic (the Vivendi case), Decision on Annulment, 41 ILM 1135, at paras. 82-85 (2002).

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take the four sources into account and not to apply them.180 The Tribunal’s basic mandate was simply to “decide on the basis of law”, which is a self-explanatory confirmation of the basic principle of law to be applied in international arbitration according to which the arbitral tribunal is not allowed to decide ex aequo et bono without authorization by the parties [...].181

A reading of Article 8(6) of the BIT would suggest that the Tribunal’s discretion related to the application of additional sources rather than to disregarding some of the sources listed there. If the Tribunal really had discretion to apply some (or one) of the sources listed in Article 8(6) but to disregard others it would also have the discretion to disregard the BIT itself—an obviously unsatisfactory result. The Tribunal appeared to think that the only real obligation arising from Article 8(6) of the BIT was to “decide on the basis of the law”182—any law—rather than on the basis of equity. However, this interpretation would render Article 8(6) of the BIT meaningless. A restatement of this principle in the BIT was superfluous. Moreover, it leads to the inevitable conclusion that the parties had not designated the applicable law and that, therefore, in accordance with Article 33(1) of the UNCITRAL Rules, the Tribunal had discretion to apply the conflict of laws rules that it considered applicable. This result, in turn, is at odds with the Tribunal’s own introductory statement to its analysis of applicable law in the Final Award: 396. In respect of the law applicable to the merits of this arbitration dispute, the Tribunal is bound by provisions of Article 8(6) of the Treaty [...].183

The Tribunal rejected precedents such as Fedax v. Venezuela, Maffezini v. Spain and Goetz v. Burundi in which tribunals applied choice of law clauses in other BITs.184 In these cases the tribunals reached the conclusion that host State law had to be applied. The similarity of the choice of law clauses in the BITs in these cases to Article 8(6) of the Czech/Netherlands BIT is evident. The Tribunal dismissed these cases stating that the choice of law clauses applicable in these cases are significantly different and

180

Ibid., at para. 402. Curiously, elsewhere the Tribunal speaks of “the application of the four sources of law as provided for in Art. 8(6) of the Treaty”. Ibid., at para. 400.

181

Ibid., at para. 403. The emphases are the Tribunal’s.

182

Ibid., at paras. 402, 403, 406.

183


184

See the analysis of these cases above at notes 15-25.


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do not mirror the broad choice of law clause in Article 8(6) of the BIT.185 While all four choice of law clauses show variations in language, it is difficult to see any peculiarity of Article 8(6) of the Czech/Netherlands BIT that would set it apart from the clauses that were applied in the other three cases. The Tribunal specifically rejected the idea that in arbitration under a bilateral investment treaty, local remedies had to be exhausted.186 This statement is no doubt correct. But the role of the Czech courts arose in a different context. The case before the Tribunal turned on the preliminary question of whether the MOA between CNTS and CET 21 had been amended under coercion to the investor’s detriment and whether the service contract had been terminated validly. In such a situation is it possible to disregard the applicable Czech substantive law and to dismiss domestic court proceedings that deal with this question as irrelevant? This point is quite different from a requirement to exhaust local remedies. Exhaustion of local remedies would mean that the main claim between CME and the Czech Republic had to be pursued first through the Czech courts before it can be pursued through international arbitration. No such suggestion was ever made. After having defended its Partial Award against the charge of non-application of the proper law, specifically the non-application of Czech law, the Tribunal proceeded to deal with the merits before it. In doing so, the Tribunal in the Final Award shows a treatment of Czech law that is markedly different from the Partial Award. Whereas the Partial Award explicitly disavowed Czech law, the Final Award contains detailed references to and discussion of Czech civil law. The Final Award contains a discussion of coercion under Czech civil law including an analysis of Articles 37 and 49 of the Czech Civil Code and of Article 267(2) of the Czech Commercial Code.187 In addition, there is a discussion of Article 438 of the Czech Civil Code dealing with joint tortfeasors.188 In calculating damages, the Tribunal refers to Article 443 of the Czech Civil Code to determine the relevant time for the assessment of the amount of damages.189 There is also a detailed discussion of the applicable law to the issue of valuation. This discussion relies not only on the BIT but also on Article 25(3) of the Czech Commercial Code and on Articles 23 and 34 of the Czech Valuation Act.190

185

CME v. The Czech Republic, Final Award, supra note 176, at paras. 402, 409.

186

Ibid., at paras. 398, 412, 413.

187


188


189


190


192


The Tribunal’s discussion of interest is introduced by the statement: “In awarding interest in respect of the rate and period, the Tribunal has considered the provisions of the Treaty (…), Czech law and international law principles (…).”191 It relies on Article 517 of the Czech Civil Code and a related Government Decree of 1994 in relation to interest on late payments.192 After stating that in determining the period of interest it took into account Czech law, the Tribunal proceeds to rely on Article 563 of the Czech Civil Code, on a legal opinion of the Czech Supreme Court and on a scholarly publication on the Czech Civil Code.193 Concerning the rate of interest, the Tribunal first states that neither the BIT nor international law contains a pertinent rule. It then applies the provisions of Czech law contained in Article 517 of the Czech Civil Code and the Government Decree of 1994. The latter Decree is discussed in some detail and even quoted in the Czech language.194 Finally, the Tribunal relies on Article 369 of the Czech Commercial Code and on the Government Decree for the question of simple or compound interest.195 In allocating costs between the parties, the Tribunal relies on Article 142(2) of the Czech Civil Procedure Code.196 This detailed reliance on Czech law in the Final Award is in clear contrast to the Partial Award. The judgment of the Svea Court of Appeal on the application to declare invalid or set aside the Partial Award197 was rendered two months after the Tribunal’s Final Award. The Court denied the application of the Czech Republic. It prefaced its reasons by a statement that the Swedish Arbitration Act was based on a restrictive approach towards having an arbitration award declared invalid or set aside. Annulment should be possible only in exceptional circumstances.198 The Court’s treatment of the “failure to take into consideration applicable law” was brief.199 The Court stated that the parties may agree on the law of a particular

191


192


193


194


195


196


197

The Czech Republic v. CME Czech Republic B. V., Svea Court of Appeal, 15 May 2003. For an English translation see 42 ILM 919 (2003). See also http://www.mfcr.cz/static/Arbitraz/ en/Judgment_English.doc.

198

Ibid., at 960-961

199

Ibid., at 963-965.


193

country and that where the arbitrators have applied the law of a different country in violation of such an agreement the award may be set aside on the ground that the arbitrators have exceeded their mandate. The Arbitration Act sought to reduce the possibilities to challenge an arbitration award on the ground that the arbitrators have applied the wrong law. There was no excess of mandate where the arbitrators had applied the designated law incorrectly. Nor would there be an excess of mandate if the arbitrators had interpreted a designation of the applicable law incorrectly.200 In the opinion of the Court, an excess of powers would occur only where the arbitrators have almost ignored a provision regarding applicable law.201 After quoting Article 8(6) of the BIT, the Court said: [T]he contracting states have left to the arbitrators the determination, on a case by case basis, as to which source or sources of law shall be applied. [T]he clause leaves to the arbitral tribunal to take into account Czech law and other sources of law insofar as such are relevant in the dispute. … In the Court of Appeal’s opinion, when assessing whether the arbitrators have exceeded their mandate, it is sufficient to clarify whether the arbitral tribunal applied any of the sources of law listed in the choice of law clause or whether the tribunal has not based its decision on any law at all but, rather, judged in accordance with general reasonableness.202

The Court’s reasoning adopted the theory of complete discretion of the Tribunal in selecting the applicable rules among the sources listed in Article 8(6) of the BIT. That list of sources is so comprehensive that it is difficult to imagine that a tribunal could ever go outside it. More importantly, in the Court’s view, the discretion included the power not to apply some of the sources listed in Article 8(6). Therefore, the Court accepted the Tribunal’s theory that it was in compliance with its duty to apply the governing law as long as it applied any law at all and did not judge in accordance with general reasonableness. This would only have been the case if the Tribunal’s decision had been devoid of any basis in law. The Court was not going to investigate whether certain issues should have been decided under Czech law. The Partial Award in CME v. The Czech Republic was a clear cut case of a failure to apply at least part of the governing law. One need not look further than the Final Award for an illustration of how the Tribunal should have proceeded in the first place. A healthy environment for foreign investment depends upon striking the right balance between maintaining the integrity of the regulatory framework of the host State and

200

Ibid., at 963-964.

201

Ibid., at 964.

202

Ibid., at 965.

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protecting the investor from arbitrary interference. The dual reference to host-State law and to international law does this. There is no question that any application of host-State law to investment disputes must be subject to international standards, but this does not mean that host-State law can be disregarded entirely. Appropriate respect for local regulation is of critical importance to securing the welcome needed by foreign investors. The kind of disregard that the CME Tribunal showed in its Partial Award to Czech law and to Czech proceedings is likely to cause alarm in host States dealing with foreign investors. These States are unlikely to react with equanimity when told by a tribunal that their legal system is irrelevant in an investment dispute. Decisions of this nature may contribute to a backlash by capital importing countries against the protection of foreign investments by treaties and through international arbitration. The decision of the Swedish court refusing to set aside the Partial Award is regrettable but hardly surprising. It reflects a trend by domestic courts to annul arbitral awards only under the most extreme circumstances. A decision to set aside would have required an analysis of which issues before the Tribunal required the application of Czech law, a task that the Svea Court was evidently unwilling to undertake. The Court was satisfied with the observation that the Tribunal had somehow remained within the wide parameters of the clause on applicable law in Article 8(6) of the BIT. The Court was not going to investigate whether the Tribunal had erred in selecting or ignoring the specific sources listed there. In view of the all-encompassing nature of the BIT’s provision on applicable law that was a minimalist standard for review.

IV. Conclusions The picture emerging from this survey is quite heterogeneous. The decisions range from overzealous annulments for trivial reasons (Klöckner, Metalclad), at one end of the spectrum to a refusal to annul despite a clear and explicit non-application of part of the governing law (CME) at the other end. No distinguishing features in the rules defining the applicable law or in the terms of reference of the reviewing organs can be made out. The simple statement that a non-application of the governing law is a ground for annulment, whereas an error in applying the governing law is not, is of limited use. The examples, set out above, show how different the situations were in which decisions had to be made whether an alleged failure to apply the governing law warranted annulment. In Klöckner the Tribunal had selected the applicable law correctly but had failed to substantiate a particular principle that it applied. In Amco the Tribunal had also selected the applicable law correctly but had failed to apply a particular provision of that law. In MINE the Tribunal had merely erred in stating the name of the national code that it applied. In Metalclad the Tribunal had identified the


195

applicable treaty correctly but had considered other parts of that treaty for the purpose of interpreting the applicable rules. In all these cases there was no error in identifying the applicable law though possibly mistakes in its application. In Wena the Tribunal had also identified the applicable law correctly as domestic law and international law. But on the point of interest it relied on international law only. That decision was upheld in the annulment proceedings essentially because a concurrent application of both legal systems would have led to the same result namely the prevalence of international law. In CME the Tribunal in the Partial Award did not identify the applicable law correctly. Domestic law and international law were applicable but the Tribunal rejected the reliance on domestic law and applied international law only. The Tribunal did not decide outside the provision on applicable law but declined to apply an essential part of it. Issues of administrative law and of civil law (contract and torts) constituted decisive preliminary questions for reaching a correct result under the BIT. In case of a combined choice of law it cannot suffice for a reviewing organ to find that one or the other element of the applicable law was in fact applied. It is necessary also to determine which legal questions were to be determined by what legal system. Otherwise the existence of a broad clause on applicable law, combining domestic and international law, would deprive the process of review for failure to apply the governing law of any meaning. This requires that the reviewing organ engages in a minimum examination of the various substantive issues for the purpose of determining which law should have been applied to them. But this is where the review for excess of powers must stop. It is not its task to examine whether the correctly selected law was correctly applied. The Swedish court in CME declined to undertake this minimum examination. By confining itself to a finding that the Tribunal had remained within the all-encompassing framework of the BIT’s clause on applicable law it deprived the concept of a review for failure to apply the governing law of any practical consequence.

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Current Developments

Austrian Review of International and European Law 7: 3-xxx, 2002. ©2004 Martinus Nijhoff Publishers. Printed in the Netherlands.

3

4


The EU Emissions Trading Directive versus National Efforts within the EU

199

The EU Emissions Trading Directive versus National Efforts within the EU Katrin Hagemann*

I.

Introduction

In the last twenty years, concern over the possible effects of a warming climate has been rising. There is more and more scientific evidence that the Earth’s atmosphere is warming as a result of human activity. The concentration of so-called greenhouse gases such as carbon dioxide (CO2) in the atmosphere has increased dramatically in the last century. While some of this increase may be due to natural effects, it is quite clear that a large proportion in the last fifty years is anthropogenic in origin. The majority of anthropogenic greenhouse gas emissions are produced by OECD countries and countries in transition.1 Increased greenhouse gases concentration could lead to a rise in both global mean temperature and possible strong increases in local temperatures. The UN Intergovernmental Panel on Climate Change (IPCC) has determined an increase in global mean temperatures of 0.6° Celsius during the 20th century.2 A warming of the Earth’s atmosphere could have serious consequences such as a (partial) melting of the polar caps and glaciers, resulting in a rise of sea levels and endangering coastal areas and small islands. Further predictions include for example more unstable weather patterns and an increase in droughts and floods, diminishing freshwater resources, loss of biodiversity, and the spread of diseases such as malaria.

*

B. A. (Wellesley C.), M. S. (Cornell), MAIS (Diplomatic Academy Vienna).

1

50% of CO2 emissions are currently emitted by OECD countries alone. OECD Environmental Outlook, at 159 (2001).

2

Cf. IPCC, Climate Change 2001: The Scientific Basis (2001) for these and other predictions. The IPCC was established by the United Nations Environment Programme and the World Meteorological Organisation. Its mandate is “to assess on a comprehensive, objective, open and transparent basis the scientific, technical and socio-economic information relevant to understanding the scientific basis of risk of human-induced climate change, its potential impacts and options for adaptation and mitigation”. See http://www.ipcc.ch.


200


The United Nations Framework Convention on Climate Change3 and the Kyoto Protocol4 emerged out of this concern. They should be seen as a first step in dealing with the issues of climate change. The Kyoto Protocol in particular introduces new ways of achieving environmental protection at the international level, such as emissions trading. While the Protocol itself only envisages emissions trading between Parties, many states are designing national emissions trading systems as well. The European Union is designing a trading scheme for trading among its members, while some member states, such as the UK and Denmark, have already installed national trading systems. Emissions trading will be a cornerstone in the EU’s strategy for addressing climate change. Currently, all of these trading regimes have different rules on the participating sectors, the greenhouse gases covered, the means of allocating permits, the regulation of new entrants, the time frame, etc. Within the EU, such disparities pose a serious threat to the competitiveness of individual firms as well as the smooth functioning of the single market. The EU has recently set the stage for the first multi-national emissions trading scheme incorporating up to 27 countries. It is therefore important to scrutinize EU as well as national policies on emissions trading in order to uncover potential synergies and stumbling blocks.

II. Background In 1992, the United Nations Framework Convention on Climate Change (UNFCCC) was adopted.5 It entered into force in 1994, and has to date been ratified, accepted, approved or acceded to by 187 countries.6 The Framework Convention itself offers few real commitments. It states as its objective the “stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system” (Article 2 UNFCCC), but refrains from

3

United Nations Framework Convention on Climate Change, 9 May 1992, 31 ILM 849 (1992); also available at http://unfccc.int/resource/docs/convkp/conveng.pdf.

4

Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 December 1997, 37 ILM 32 (1998); also available at http://unfccc.int/resource/docs/ convkp/kpeng.pdf.

5

For more information on the early developments in the area of climate change, see, e.g., D. Bodansky, “Managing Climate Change”, 3 Yearbook of International Environmental Law 60 (1993); P. Birnie/A. Boyle, International Law and the Environment 523 (2000).

6

Within the EU, the UNFCCC was approved on behalf of the Community by “Council Dec. 94/69/EC of 15 December 1993 concerning the conclusion of the United Nations Framework Convention on Climate Change”, OJ L 33, 7.2.1994, at 11.


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suggesting a concrete level at which greenhouse gases should be stabilized. Furthermore, the so-called Annex I Parties7 commit themselves to adopting national climate change mitigation policies by the end of the decade (Article 4.2 (a)). For concrete emission reduction commitments, further negotiations were necessary. In December 1997, the Kyoto Protocol to the UNFCCC was signed.8 Following the Berlin mandate,9 it contains obligations for Annex B countries only.10 In Article 3.1, the Parties commit themselves to a reduction of overall emissions of six greenhouse gases11 “by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012” (Article 3.1).12 Annex B lists the emission reductions that Parties agreed to undertake. These agreed targets vary between a reduction by 8% from 1990 aggregate anthropogenic emissions of greenhouse gases for the EU member states and many countries in transition, and reach up to a limitation of +10% of 1990 levels for Iceland.13 In Council Decision 2002/358/EC, the Community and its member states have agreed to fulfil their commitments under Article 3 of the Kyoto Protocol jointly,14 as allowed by Article 4. Both member states individually and the EU will be responsible for its level of emissions if they fail to achieve the total combined level of emission

7

The Annex I Parties include all OECD countries except for Mexico and South Korea, all accession countries to the EU except for Cyprus, Malta and Slovenia, as well as Belarus, Russia, and the Ukraine.

8

For a complete text of the Kyoto Protocol, see supra note 4.

9

Dec. 1/CP.1: “The Berlin Mandate: Review of the adequacy of Article 4, para. 2(a) and (b), of the Convention, including proposals related to a protocol and decisions on follow up”, FCCC/CP/1995/7/Add.1.

10

Annex B countries are the Annex I Parties of the UNFCCC plus Croatia, Liechtenstein, Monaco, and Slovenia, minus Belarus and Turkey.

11

These are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulphur hexafluoride(SF6); cf. Ann. A, Kyoto Protocol. Emissions from the greenhouse gases CFCs and halons are already regulated through the “Montreal Protocol on Substances that deplete the Ozone Layer”; for the text see http://www.unep.org/ozone/pdf/Montreal-Protocol2000.pdf. Water vapour and ozone are further greenhouse gases not covered by an international treaty.

12

For the so-called industrial gases hydrofluorocarbons, perfluorocarbons and sulphur hexafluoride, the base year 1995 may be used instead (Art. 3.8, Kyoto Protocol).

13

For details on the commitments of individual countries, cf. Ann. B, Kyoto Protocol.

14

Council Dec. 2002/358/EC of 25 April 2002 concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder; OJ L 130, 15.5.2002, at 1.

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reductions (Article 4.6). The Council Decision 2002/358/EC furthermore makes legally binding an earlier burden sharing agreement of the Environment Council15 in which member states have redistributed their reduction commitments among themselves. The reduction commitments vary quite substantially across the EU, from +27% for Portugal to -28% for Luxembourg. Furthermore, progress towards these targets has differed substantially in the different countries. While some member states have reduced emissions significantly, in others emissions have increased and are already at or above their 2008-2012 targets.16 The incoming member states (except for Cyprus and Malta) also took on obligations to reduce emissions under the Protocol. Most accession countries agreed to reduce by 8% except for Hungary and Poland which accepted emission reductions of 6%. Due to the collapse of the traditionally highly CO2 intensive industry in these transition countries around 1990, the CEECs are currently far below 1990 emission levels. The commitments under the Protocol are not affected by enlargement. One of the novelties of the Kyoto Protocol is the introduction of market-based instruments (“flexible mechanisms”) into a multilateral treaty. Flexible mechanisms aim to achieve pollution reductions more efficiently and effectively by investing in pollution reduction strategies where they are most cost-effective. These mechanisms are joint implementation (Article 6), clean development mechanisms (Article 12),17 and emissions trading (Article 17).18 Flexible mechanisms reflect the view that the most cost-effective emissions reduction at the global level should be the aim. The use of mechanisms is intended to be supplemental to domestic measures (cf. e.g. Article 17). The Kyoto Protocol has not yet entered into force. Entry into force requires the ratification of 55 Parties to the UNFCCC, representing “at least 55 percent of the

15

Council Dec. 9702/98 of 19 June 1998 of the Council of the European Union reflecting the outcome of proceedings of the Environment Council of 16-17 June 1998, Ann. I.

16

Cf. e.g. OECD Environmental Indicators (2001), or emissions reported by the countries to the UNFCCC Secretariat, available at http://www.unfccc.org.

17

Joint implementation and clean development mechanisms are both project-based mechanisms, i.e. they involve projects undertaken in another country to reduce emissions there. Joint Implementation refers to emission reduction projects between Annex I countries, while Clean Development Mechanisms refer to similar projects implemented in non-Annex I countries, thus mainly developing countries.

18

Emissions trading refers to the trading of emission reduction units between Annex B Parties. Emissions trading greatly reduces the costs of emission abatement and is therefore embraced by governments and industry alike. Cf., e.g., R. Baron, Emission Trading, A Real Time Simulation (2000); C. Pearson, Economics and the Global Environment (2000).


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total carbon dioxide emissions for 1990 of the Parties included in Annex I” (Article 25.1). At present, 111 Parties have ratified the Protocol, including 32 Annex I Parties, representing 44.2 % of the 1990 emissions.19 The European Union and its member states presented their ratifications on May 31st, 2002.

III. Emissions Trading A. General Remarks Emissions trading is not a new concept at the national level, but the Kyoto Protocol marks the first time that it is part of an international treaty. As with the other Kyoto mechanisms, the hope is that emissions trading will lead to higher efficiency. A country that reduced emissions more than required is able to sell the “extra” emissions to a country that has not been so successful in reducing its emissions. Such trading should distort the market less than command-and-control measures such as caps or standards. The price of the emission certificates is determined in the market. Emissions trading may provide a strong incentive to reduce emissions, if the price for the emission reduction units is not artificially lowered too much. Emissions Trading has been used successfully for SO2 reductions in the United States since 1995.20 The Programme was introduced through the 1990 Clean Air Act Amendments and proceeded in two phases. In the first phase from 1995 to 1999, a more limited number of electricity generators was required to reduce SO2 emissions. In the second phase that began in 2000 and continues indefinitely, the programme was expanded to smaller firms.21 Each electricity generator receives a cap on its emissions and can then trade in emissions in order to achieve the required reductions. An emissions trading scheme allocates a set amount of allowances among the polluting industries, and these can then be traded. Each allowance allows the holder to emit a certain quantity of pollution, e.g. one metric tonne of CO2e.22 The number of allowances issued by the government will correspond to the maximum pollution level that the government wants to achieve. Since an emissions trading system directly

19

As of July 10, 2003.

20

For a description, see http://www.epa.gov/airmarkets/arp/overview.html.

21

For an evaluation of the programme, cf. D. Ellerman, Ex Post Evaluation of Tradable Permits: The U.S. SO2 Cap-and-Trade Program; CEEPR Working Paper No. 3 (2003); see also C. Carlson/D. Burtraw/M. Cropper/K. Palmer, “Sulfur Dioxide Control by Electric Utilities: What are the gains from trade?”, 108 Journal of Political Economy 108, at 1292 (2000).

22

The abbreviation CO2e refers to CO2 equivalents.

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targets absolute emissions, it guarantees constant pollution abatement even under inflation or economic growth. At the end of the trading period, each participating firm is required to submit allowances equivalent to its actual emissions during that time period. In order to encourage compliance, fines for pollution not covered by allowances should be higher than the market price of allowances. The allocation of allowances thus creates property rights which can then be traded in order to establish the optimal allocation: The point where the marginal cost of additional pollution abatement between different polluters is equalized. Therefore, the price of an allowance is determined in the market, and the cost to the industries is not known in advance.23 More sophisticated trading schemes allow for banking, i.e. carrying over permits into the next trading period. Banking is of interest in cases where the price is expected to increase in future trading periods, for example because of a further tightening of pollution standards. One of the major points of contention in emissions trading is the method of allocation. The two main options are “grandfathering” and auctioning, but many variations on these two options can be found in theory and practice. In grandfathering, allowances are allocated to all firms free of charge based on their current or historic emissions.24 Grandfathering is less costly for industries, as they only have to buy allowances for excess emissions. However, grandfathering can lead to significant financial transfers as allocations are most likely not at marginal abatement costs. The promoters of auctioning take the stance that the firm is the best evaluator of its own marginal abatement costs, and thus allowances should be auctioned.25 Participating industries tend to oppose auctioning, as it involves additional financial resources up front. Note that unlike a pollution tax, an emissions trading scheme only creates government revenue if the allowances are auctioned. As increased

23

The Danish government cites estimations that the international price per tonne of CO2 would probably range between •5.38-8.07 between 2008 and 2012, but could rise to •26.94 if the US were to ratify Kyoto, see Danish Government, Proposal for a Climate Strategy for Denmark 14 (2003). Other price estimates range between •2–8, see A. Michaelowa/ S. Butzengeiger, “The EU Proposal for Emissions Trading: A Reasonable Approach?”, CESifo Forum 33 (1/2003), and •20–30, see G. Roeder, “Contra: Many Open Questions”; ibid., at 35, available at http://www.cesifo.de/pls/cesifo_app/CESifoFrameSet.SwitchFrame? factor=10&page=/link/ifoinstitute.htm. With lower prices, flexible mechanisms will be more attractive than efforts to reduce emissions at home.

24

Historic emissions can thus take into account “early action”, when firms have already engaged in pollution abatement in the past.

25

Note that in an auction of allowances in the UK, only a few firms had made any estimates of their abatement costs before the bidding; Department for Environment, Food and Rural Affairs, The UK Emissions Trading Scheme; Auction Analysis and Progress Report 6 (2002).


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government revenue could lead to a reduction in other taxes, auctioning can reduce two market distortions at the same time (the negative externality of pollution is internalised, and a distorting tax decreased). Auctioning can thus be less costly to society as a whole.26

B. Emissions Trading under the Kyoto Protocol Article 17 of the Kyoto Protocol introduces emissions trading: The Conference of the Parties shall define the relevant principles, modalities, rules and guidelines, in particular for verification, reporting and accountability for emissions trading. The Parties included in Annex B may participate in emissions trading for the purposes of fulfilling their commitments under Article 3.27

Countries themselves, rather than individual firms, can thus engage in emissions trading. A country that reduces its greenhouse gas emissions more than required under Annex B can trade its emissions with a country that has difficulties in reaching its targets. Such trading is only allowed between Annex B countries. While the Kyoto Protocol envisages emissions trading between countries, it also makes possible national emission trading systems that include private companies in trading. However, the state is ultimately responsible for the emission reductions under the Protocol.28 Article 17 further asserts that “any such trading shall be supplemental to domestic actions”. It thus puts Parties under the obligation to implement some domestic measures designed to reduce greenhouse gas emissions. States cannot rely on trading alone in order to fulfil their commitments under Article 3.1 and Annex B of the Kyoto Protocol. Article 17 gave the Conference of the Parties the mandate to “define the relevant principles, modalities, rules and guidelines, in particular for verification, reporting and accountability for emissions trading”. These were agreed upon in Marrakech in 2001.29 Those Parties to the Protocol that have undertaken commitments in Annex B can trade in the various emission reduction credits either achieved at home or through project-based mechanisms. Further requirements for trading are the existence of

26

Economists speak of a “double dividend”. Pollution taxes also provide such a double dividend. Cf. OECD Information Paper, Towards International Emissions Trading: Design Implications for Linkages, OECD 2002.

27

Art. 3 contains for example the commitment to reduce CO2 emissions by at least 5% below 1990 levels in the commitment period 2008 to 2012 (Art. 3.1, Kyoto Protocol).

28

Para. 5, Annex, Dec. 18/CP.7, FCCC/CP/2001/13/Add.2, Section II.

29

Dec. 18/CP.7 on the “modalities, rules and guidelines for emissions trading under Art. 17 of the Kyoto Protocol” (FCCC/CP/2001/13/Add.2, Section II).

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reliable accounting of the emission reductions achieved, as well as on the removal by sinks, and that the country has submitted national inventories (cf. Article 5 and 7, Kyoto Protocol).

IV. The Proposed EU Directive on Emissions Trading The European Union views itself at the forefront of efforts to combat climate change by stabilizing greenhouse gas emissions. Already in 1991 the Commission published the “Community strategy to limit carbon dioxide (CO2) emissions and improve energy efficiency”. The Sixth Community Environment Action Programme30 continues in this vein by identifying climate change as a priority for action and requiring an EU emissions trading scheme by 2005. The Commission furthermore established the European Climate Change Programme in order to “identify and develop all the necessary elements of an EU strategy to implement the Kyoto Protocol” by involving all the necessary stakeholders including different DGs, member states, industry and environmental NGOs. Through “Council Decision 93/389/EEC of 24 June 1993 for a monitoring mechanism of Community CO2 and other greenhouse gas emissions”31 a monitoring system was established. “Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control”32 established a general framework of pollution prevention and control for certain key polluting industries, including a permit system. Many of these same industries are targeted by the new EU emissions trading scheme.

A. Approval Process of the Directive The Commission began the process by publishing a Green paper in March 2000 and discussing the issue with stakeholders under the European Climate Change Programme. On October 23, 2001, the Commission presented the proposed Directive,33 and transmitted this proposal to the Council and the European Parliament. According 30

Established by Dec. No. 1600/2002/EC of the European Parliament and of the Council, OJ L 242, 10.9.2002, at 1.

31

OJ L 167, 9.7.1993, at 31. Dec. as amended by Dec. 1999/296/EC (OJ L 117, 5.5.1999, at 35).

32

“IPPC Directive”, OJ L 257, 10.10.1996, at 26.

33

“Proposal for a Directive of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC”; COM/2001/581/FINAL; OJ C 075 E, 26.03.2002, at 33. Council Directive 96/61/EC is the IPPC Directive.


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to Article 175 (1) TEC,34 adoption of environmental acts is to be decided using the procedure referred to in Article 251 TEC.35 The European Economic and Social Committee36 and the Committee of the Regions37 submitted their opinion on 29.5.2002 and 13.3.2002, respectively. On October 10, 2002, the Parliament in its first reading approved the Proposal with 73 amendments.38 The Commission accepted totally, in part or in principle eighteen of these amendments and submitted an amended proposal to the Parliament and the Council on November 27, 2002.39 On December 9, 2002, the Council reached a political agreement on the above proposal. This agreement contains all of the eighteen amendments accepted by the Commission in its amended proposal, as well as five additional amendments of the Parliament. Formal adoption of the common position took place on March 18, 2003,40 and the proposed Directive was forwarded to the Parliament for a second reading. Since the Parliament still had objections, a compromise with Council was reached in order to avoid conciliation. On July 2, 2003, the European Parliament approved the common position of Council with 17 amendments. The Commission has agreed to the amendments, and the Environment Council at its next meeting will adopt the amended common position.

B. Provisions of the EU Emissions Trading Directive The following section describes in detail the “Directive of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance

34

Treaty establishing the European Community (incorporating the amendments made by the Treaty of Nice), OJ C 325 of 24 December 2002.

35

Co-decision procedure; for details on co-decision, see, e.g., P. J. G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communitites 430 (3rd ed. 1998); C. Thun-Hohenstein/F. Cede/G. Hafner, Europarecht 184-188 (4th ed. 2003).

36

OJ C 221, 17.9.2002, at 27.

37

OJ C 192, 12.8.2002, at 59.

38

Opinion of the European Parliament of 10 October 2002, Bulletin /2002/10/1.4.44.

39

“Amended proposal for a Directive of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC”; COM/2002/680/FINAL; COD 2001/0245.

40

Common position adopted by the Council on 18 March 2003 with a view to the adoption of Directive of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC; 2003. OJ C 125 E, 27/05/2003; at 72. This document will be referred to as “the proposed EU ET Directive”. Amendments adopted by the Parliament on 2 July 2003 are included in the description.

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trading within the Community and amending Council Directive 96/61/EC”.41 It is based on the premise that trading will make greenhouse gas emission reductions more “cost-effective and economically efficient” (Article 1) and that a more effective fulfilment of the Kyoto commitments, “with the least possible diminution of economic development and employment” is possible (Recital 5). In fact, the Commission estimates that total abatement costs can be reduced by up to 35%. The Directive establishes a greenhouse gas emissions allowance trading (Article 1). Only certain activities, installations and gases are covered by this Directive.42 The Directive will begin trading only with CO2 emissions,43 although it is drafted so that other greenhouse gases can be included when reporting and monitoring procedures make this feasible.44 According to Article 30, the Commission can propose the inclusion of additional activities or gases already by 31 December 2004. The sectors covered are those of the IPPC Directive,45 although a large number of sectors are excluded.46 In addition, the size thresholds differ from the IPPC Directive so that some smaller installations with significant CO2 emissions are included in the trading. Annex I lists the activities covered by this Directive. Concerned are energy and heat production, oil refining, and the metal, mineral, glass, biomass and paper industries. In particular, the following activities are covered at least in part: a. Combustion installations (except hazardous or municipal waste installations) b. Mineral oil refineries c. Coke ovens d. Metal ore roasting or sintering installations e. Installations for the production of pig iron or steel f. Installations for the production of cement clinker g. Installations for the manufacture of glass

41

Supra note 40. In the context of this subsection, unless otherwise specified, “Article” and “Annex” refer to an article or annex of the proposed Directive.

42

Cf. Art. 2, as well as Ann. I and II.

43

In 1999, 80% of the EU’s greenhouse gas emissions were from CO2.

44

Cf. Ann. I, II, Art. 3 (c).

45

OJ L 257, 10.10.1996, at 26.

46

E.g. the chemical industry and waste management, as well as many installations in the production and processing of metals. These were excluded because they do not have high CO2 emissions, measuring difficulties of CO2 emissions and/or because the large number of installations covered would increase the administrative complexity considerably.


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h. Installations for the manufacture of ceramic products by firing i. Industrial plants for the production of pulp, paper and board. In some cases, only large installations are covered.47 Annex I can be amended (cf. Article 30.1). “Installations used for research, development and testing of new products and processes” are not covered.48 The Commission estimates that this Directive will cover 46% of the EU’s CO2 emission in 2010, or about 38% of total emissions of all six greenhouse gases covered by the Kyoto Protocol, and that about 4,000 to 5,000 installations will be affected. The first (three-year) trading period begins on January 1, 2005 and ends on December 31, 2007. The second and all following trading periods are five years long. The second period begins on January 1, 2008,49 and corresponds to the first commitment period of the Kyoto Protocol. Member states designate a competent authority for the implementation of this Directive (Article 18). Emissions will be monitored by and results reported to this competent authority (Article 14). These reports will address reliability, credibility and accuracy of the monitoring systems (Annex V) and will be independently verified (Article 15, Annex V). If reports are not satisfactory, the operator may be excluded from trading. Member states will also establish a registry for accurate accounting of the trading movements; standardised databases will be used to track the trading process (Article 19). A central administrator – designated by the Commission – will ensure that there are no irregularities (Article 20). The Directive distinguishes between permits and allowances. A permit is issued by the competent authority. The permit grants authorisation to emit greenhouse gases (Article 6). Without such a permit, installations are not allowed to undertake any of the activities listed in Annex I if they result in the specified emissions (Article 4). The application for a permit requires a description of the installation, including a statement on the activities and technology used, the raw and auxiliary materials that are likely to cause greenhouse gas emissions, the sources of emissions, and the measures planned to monitor and report emissions (cf. Article 5). The permit will be granted if the competent authority “is satisfied that the operator is capable of monitoring and reporting emissions” (Article 6). This procedure is similar to the IPPC Directive50 and coordinated with it. An allowance, on the other hand, is the permission to emit one tonne of CO2e during

47

E.g. combustion installations with a rated thermal input exceeding 20 MW. For details, see Ann. I of the Directive.

48

Ann. I, para. 1.

49

Cf. Arts. 11(1), 11(2).

50

OJ L 257, 10.10.1996, at 26.

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a specified period (Article 3 (a)).51 The operator is required to surrender allowances “equal to the total emissions of the installation in each calendar year” (Article 6.2 (e), Article 12.3). To achieve this, allowances may be traded. Allowances surrendered are then cancelled. Allowances are only valid for one trading period (three years in the first period starting in 2005, and five years for subsequent trading periods), but member states can replace no longer valid allowances with new allowances, thus establishing a banking system (cf. Article 13.1 and 13.2). The total number of allowances issued by each member state and the method of allocating these allowances are left to the determination of the member states, albeit under implementation guidelines of the Commission. Member states have to develop a national allocation plan by March 31, 2004 for the first commitment period, while accession countries need to develop an allocation plan by the time of accession. These national allocation plans need to be approved by the Commission, which checks that they are based on objective and transparent criteria, including52 a. the proportion of overall emissions covered by the trading scheme, b. average emissions of greenhouse gases by product in each activity and achievable progress, c. accommodation for early action, d. consistency with member states’ obligations under the Kyoto Protocol, national energy policies, the national climate change programme, other Community legislative and policy instruments, including Decision 2002/ 358/EC,53 and actual and projected progress towards fulfilling commitments made pursuant to Decision 93/389/EEC,54 e. no discrimination between companies and sectors, in particular in light of Article 87 TEC,55 and f. how competition from outside the EU will be taken into account. New entrants also need to be taken into account by member states in the allocation of allowances (Article 11.3, Annex III). Member states need to show that they are on a

51

Emissions can be calculated or monitored through measurements. Operators need to report the method used and all relevant information for verification (cf. Ann. IV). Emissions will be verified.

52

Cf. Arts. 9(1), 9(2), Ann. III.

53

Council approval of the Kyoto Protocol; OJ L 130, 15.5.2002, at 1.

54

OJ L 167, 9.7.1993, at 31, Decision as amended by Dec. 1999/296/EC (OJ L 117, 5.5.1999, at 35).

55

Art. 87 TEC concerns state aid distorting competition; cf. also Art. 1(3) of the EU ET Directive.


211

path to meeting their Kyoto Protocol obligations when proposing quantities of allowances in the first trading period. Based on this plan, the competent authority will issue a proportion of the total quantity of allowances each year (Article 11.4). During the first trading period only, the Commission (upon request of the member states) can authorize additional non-transferable allowances in cases of force majeur.56 If member states allow, operators can form a pool of installations from the same activity for the first eight years of the Community scheme (first and second trading periods). The trustee of this pool is then issued the total allowances, is responsible for surrendering allowances and is subject to the penalties (Article 28).57 In the first trading period, at least 95% of allowances will be free of charge. It was felt by many member states that making allowances free of charge in the first period would encourage participation. However, the Parliament was urging for a beginning of the auctioning system already in the first trading period. Starting in 2008, at least 90% of the allowances have to be free of charge (Article 10). Revenues arising from auctioning for the five year period beginning 1 January 2008 will go to the allocating member state.58 Member states need to ensure that an allowance can be traded with persons in the Community, and with “persons in third countries, where such allowances are recognised” (Article 12.1). For such trading with third countries, agreements with Annex B countries should be concluded to allow the mutual recognition of allowances (Article 25). Such trading should only be possible with countries that have ratified the Kyoto Protocol.59 Furthermore, member states need to ensure that allowances from other member states are recognized (Article 12.2). Starting in 2008, trading will require adjustments of assigned amount units under the Kyoto Protocol (cf. Recital 9).60 Starting in the second trading period, member states can include activities, installations and greenhouse gases not listed in Annex I if approved by the Commission. This approval depends on “effects on the internal market, potential distortions of competition, the environmental integrity of the scheme and reliability of the planned

56

Art. 29; Guidelines for such cases will be drawn up by the Commission.

57

The system is criticized as encouraging “free-riding” because individual firms do not feel the pressure to reduce emissions. A pool may lead to firms not operating at their marginal abatement costs because some firms in the pool have to reduce more than necessary while others enjoy a “subsidy”. However, if a pool is solely used in order to reduce and share the monitoring, reporting and transaction costs, then it may be efficient.

58

Council Statements; March 14, 2003.

59

Council’s Reasons.

60

The assigned amount units (AAU) are the primary emission reduction credits under the Kyoto Protocol. These are the units initially allocated to each state.

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monitoring and reporting system” (Article 24.1). Already from 2005, member states may include additional activities below the capacity limits of Annex I. Member states can temporarily exclude installations until December 31, 2007 with the approval of the Commission. This approval shall be granted if emissions are limited as much as through the Community scheme as a result of national policies, if the monitoring, reporting and verification requirements are equivalent, if the penalties are at least equivalent, and if there are no internal market distortions as a result of an exclusion (Article 27). Member states determine the penalties for infringements. Penalties must be “effective, proportionate and dissuasive” and ensure implementation (Article 16.1). Names of operators in breach of requirements will be published (Article 16.2). Operators that do not surrender sufficient allowances will have to pay •100 for each tonne of CO2e in excess. In the first trading period from 2005-2007, a lower penalty of •40 is in place (Article 16.3, 16.4). Note that the penalty level places a low ceiling on the trading price as well as the marginal abatement costs. Modalities for linkage with joint implementation and clean development mechanisms will be determined in a further Directive to be presented to Council and European Parliament in the fall of 2003. This will allow recognition of the emission credits from these project-based mechanisms for use in the Community trading scheme (Article 30.3). Such linkage will ensure that individual enterprises can make their own decisions whether it is cheaper to reduce their emissions at home, engage in trading, or invest in emission reductions in other countries. The member states report each year on the application of this Directive, and the Commission will then create a general report on the application in the member states (Article 21). The Commission is assisted by the committee established by Decision 93/389/EEC.61 Decisions and reports are available to the public (Article 17; see also Recital 12). While this Directive establishes a binding trading scheme, it would not prevent member states from having their own national schemes. However, such national trading schemes would only be possible for activities, greenhouse gases and installations not covered by this Directive (Recital 15). Furthermore, member states may participate in international emissions trading with other Annex B Parties to the Kyoto Protocol starting in 2008 according to the rules set out in the Marrakech Accords.62 This Directive builds on the IPPC Directive and amends it so that emission limit values are not set for direct emissions of greenhouse gases from an installation, but rather that traded emissions are taken into consideration (cf. Article 26). Coordination

61

OJ L 167, 9.7.1993, at 31. Decision as amended by Dec. 1999/296/EC (OJ L 117, 5.5.1999, at 35).

62

Decs. 2-24/CP.7: The Marrakech Accords (FCCC/CP/2001/13/Add.1-3).


213

between the emissions trading Directive and the IPPC Directive is thus required (Article 8). The Directive is compatible with the UNFCCC and the Kyoto Protocol, and is in accordance with subsidiarity and proportionality (Recital 20, 27). It is addressed to member states, is binding in nature and should be implemented in the member states by December 31, 2003 (Article 33, 31).

V. National Emissions Trading Schemes As pointed out in the previous section, the proposed EU emissions trading Directive should not prevent member states from establishing national trading schemes, as long as they are limited to activities and installations that are currently excluded from the EU Directive. The following section gives an inventory of national emissions trading schemes. Furthermore, potential points of conflict between these national emissions trading schemes and the EU Directive are analyzed. The UK and Denmark both have already implemented a trading scheme and will therefore be examined in detail here. Since Norway could also join in the EU trading system, Norway’s trading scheme will also be present briefly.

A. The United Kingdom The primary target of the UK Climate Change Programme is a reduction of CO2 emissions by 20% by 2010,63 a goal that exceeds the UK commitment under the EU burden sharing agreement (-12.5%). The business, transport and domestic sector are the primary targets for policies. The business, commerce and public sector contributes with a climate change levy (CCL), a downstream revenue-neutral tax on the energy consumption64 of the industry that is redistributed back to the industry in form of a reduction in National Insurance Contribution payments. The main aims in the design were the avoidance of electricity price increases for low income households and the protection of the UK coal industry. The burden of the levy is eased by the introduction of a national emissions trading scheme in all greenhouse gases. The first trading period began in April 2002 and will run until the end of 2006. There are three types of participants in the emissions trading

63

Department for Environment, Food and Rural Affairs (DEFRA), The UK Emissions Trading Scheme; Auction Analysis and Progress Report 12 (2002).

64

The tax is levied on coal, gas and electricity use; oil products, combined heat and power generation plants and renewable electricity are exempt, S. Sorrell, “Back to the Drawing Board? Implications of the EU Emissions Trading Directive for UK Climate Policy”, SPRU– Science and Technology Policy Research (University of Sussex), at 10 (2003), available at http://www.sussex.ac.uk/spru/environment/research/drawingreport.pdf.

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scheme.65 Direct participants can trade unconditionally. CCA (Climate Change Agreement) participants that negotiated reduction agreements can trade their overachievements. Still under construction is the system of project participants. In addition, private speculators can participate in the emissions trading scheme by buying and selling emission reduction units. Direct participants are firms that voluntarily accepted absolute emission reduction targets against a 1998-2000 baseline. These firms can then participate in a cap-andtrade66 trading scheme in order to achieve their targets at lower cost. A financial incentive is provided if companies comply. The incentive money was allocated to 34 direct participants via auctioning in March 2002, and reductions on the order of 4 MtCO2e were committed to at an auction clearing price of £53.37/tCO2e. Note that this price is the incentive money paid by the UK government per tCO2e reduced, and thus is a measure of the cost of emissions trading to the UK government.67 As a measure of the marginal abatement costs for firms this clearing price is still too crude a measure, since many firms made little or no estimate on the abatement achievable at different prices. The CCA participants includes about 6000 energy intensive firms from 44 sectors, and includes their coal, gas and electricity emissions.68 Targets are negotiated sector by sector, and the CCL is rebated to 20% if the company accepts an emission reduction target. Targets in this area can either be absolute (total energy use or total greenhouse gas emissions) or relative (energy used per unit output or greenhouse gas emissions per unit output). Some of the agreements run until 2013. CCA participants only receive allowances for trading if they overachieve their reduction targets and this overachievement is verified. However, forward trades are possible. CCA participants can also buy allowances in order to meet their targets. Relative targets (the majority of Climate Change Agreements) pose a difficulty here as they do not guarantee a decrease in absolute emissions. Strong economic

65

Cf. the discussion, in K. Begg et al.(eds.), Guidance for UK Emissions Trading Projects, Phase 1 Summary Report, at 4 (2002), available at http://www.surrey.ac.uk/eng/ces/research/ ji/phase1%20summary%20report.pdf; and H. Derwent, “Greenhouse Gas Trading in the UK”, in T. Langrock et al. (eds.), Proceedings of the Workshop “Emissions Trading and Joint Implementation as a Chance for the Central and Eastern European Countries”, at 47 (2001), available at http://www.wupperinst.org/Publikationen/TerraTec2001Dokumentation/index.html.

66

Cap-and-trade refers to the type of emissions trading where trading can be used to achieve an absolute reduction target (“a cap”).

67

Corporation tax however has to be paid on these subsidies so that the actual cost to the government is significantly lower, cf. DEFRA, supra note 63, at 8.

68

Ibid., at 21.


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growth could result in an absolute increase in emissions even while relative emissions decrease. Therefore, trading in the area of relative CCA targets is restricted via a gateway that prevents an inflation of the trading market with allowances from relative target reductions. When the risk arises that the market will be flooded by relative target reductions, the gateway closes automatically. For project participants, individual emission reduction projects in the UK can be credited in a process similar to that envisaged for the project-based Kyoto mechanisms. The projects need to be certified by the government in order to be used in the trading scheme. Projects can be credited up to 2012, i.e. through the first commitment period of the Kyoto Protocol. The “learning-by-doing” pilot phase for such projects began in 2003. The difficulties in this area include baseline determina-tion, leakages, crediting lifetime, project boundaries, data quality, monitoring and verification.69 It is also feared that projects would flood the trading market,70 and thus trading is also restricted via the gateway. Verification for all participants is ex ante, thus no allowances are handed out to either direct or CCA participants unless the verification confirms that the claimed reductions have in fact been achieved. Baseline verification for direct participants turned out to be more difficult than expected and thus the handing out of allowances was behind schedule for at least some participants.71 However, baseline verification needs to take place only once. Verification for CCA participants is only just beginning. If it is found that a CCA participant does not comply with the rules, the rebate for the following two years is taken away, and the company has to pay the full CCL. Direct participants are paid no incentive money if they do not comply. Both of these compliance mechanisms are considered to be high penalties and thus a good incentive for compliance. The frequency of compliance checks differs between different participants. The trading process itself seems to work smoothly, and the participants engage in trade. The Department for Environment, Food and Rural Affairs in October 2002 estimated that approximately 800,000-1,000,000 allowances had been traded in a total of 150-200 trades since the beginning of trading in April 2002.72 The price has been slowly rising. The beginning price was just barely above £5 in May 2002 but it already rose to £12 in October 2002. The UK trading scheme is not uncontroversial. Adverse selection in a voluntary scheme could create a “sellers market” in which only those companies participate

69

For more details, see K. Begg et al, supra note 65.

70

DEFRA, supra note 63, at 21.

71

Ibid., at 16.

72

Ibid., at 22.

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that see a benefit. The direct participants in particular were given some flexibility in the nature and quantity of installations that they wished to include. Thus it was allowed to divide the installations of a company and only include some sectors. Furthermore, non-CO2 sources could be excluded, though few companies did so. Stricter rules applied for excluding individual plants or for adding sources with no approved measurement and reporting protocols. The Department for Environment, Food and Rural Affairs insists that the experience gained, as well as the reductions achieved will result in a positive balance sheet.73 The incentive money was provided in part to counteract adverse selection, but a subsidy is a poor long-term policy.74 It is also feared that emission from those not volunteering to reduce emissions may actually be rising, thereby counteracting the positive effect.75 Related to this is the difficulty of leakage in voluntary trading schemes, which can occur when organisations undergo structural changes. A careful design of the rules in such cases, including changing baselines, targets, and/or an adjustment of allowances is necessary. The Department for Environment, Food and Rural Affairs asserts that most leakages can be avoided in the current system.76 The gateway is criticized for increasing transaction costs and reducing the market liquidity.77 Reporting deadlines may also lead to periods of high trading activity that further prevent the establishment of a smooth market. Monitoring and verification is a final point of criticism: It may be more difficult to monitor compliance when the targets, verification periods and contract periods differ among the participants. However, the rigorous monitoring is seen as a definite strong point of the UK system.78 Transaction costs both for regulators and the industry will in any case increase with such a complex and bureaucratic system.

B. Denmark Under the 1998 EU Burden Sharing Agreement, Denmark committed itself to reduce average annual greenhouse gas emissions in the period 2008-2012 by 21% in relation

73

Ibid., at 16 and 18.

74

The European Commission in March 2001 approved most of the CCL rebates, considering them not to be state aid. Pocklington also considers the CCL not to violate EU competition law; D. Pocklington, “The UK Climate Change Levy – Innovative, but Flawed”, 10 European Environmental Law Review 220 (2001).

75


76

Ibid., at 18.

77

OECD Information Paper, Towards International Emissions Trading: Design Implications for Linkages, OECD 2002.

78

Pocklington, supra note 74, at 226.


217

to 1990 levels. Emissions have only slightly decreased up to now.79 Because Denmark imports cheaper hydropower electricity from Sweden and Norway in rainy years, resulting in less activity in Danish CO2-intensive power plants, Danish emissions can vary substantially on a yearly basis.80 A national CO2 trading scheme for the electricity sector has been in place in Denmark since 2001.81 A cap is placed on the absolute limits of CO2 emissions from electricity production, but allowances can be traded. The cap is reduced each year from 23 down to 20 million tonnes CO2 in 2003 (Section 2 (1)).82 The scheme will be in operation in its current form until 2003. Participation is compulsory for all CO2generating electricity producers in Denmark, but small producers are exempted from trading and from fines. This limits the number of traders to about 10 producers of electricity. Nevertheless, 90% of emissions by electricity are covered under the scheme. Allowances are allocated annually, using grandfathering based on the average emissions between 1994 and 1998. Banking is possible. The penalty for excess emissions is set very low at •5 per excess tonne of CO2 emissions. The number of trades has to date been very limited.

C. Norway The EU Emissions Trading Directive is EEA relevant since the internal market and competition are affected by emissions trading. Norway will therefore have to consider whether to join in the EU trading or proceed at the national level. Under the Kyoto Protocol, Norway has an emissions limitation of +1%. However, its actual emissions since 1990 have been rising fairly steadily.83 After the report of the “Commission for a national trading system for greenhouse gases”,84 the Norwegian Parliament on

79

Danish Government, supra note 23, at 9.

80

Denmark has announced that the 21% greenhouse gas reductions should be “climate and import-adjusted”. In addition, it announced that this level of reduction is conditional on the adoption of joint EU measures. Otherwise, Denmark considers its reductions to be 14%.

81

For details, see Act No. 376 of 2 June 1999 (adopted on May 28, 1999) of the Danish Parliament; cf. also International Energy Agency, Dealing with Climate Change, Policies and Measures in IAE Member Countries (2000); and the discussion by M. P. Sorensen, “Emissions Trading in Denmark”, in Langrock et al., supra note 65, at 53 et seq (2001).

82

Historically, emissions from this sector have been around 30 million tonnes of CO2.

83

Cf. emissions reported by Norway to the UNFCCC Secretariat, available at http://www. unfccc.org.

84

“The Quota Commission” was set up by Royal Decree on 23 October 1998. Cf. its report “A Quota System for Greenhouse Gases; A policy instrument for fulfilling Norway’s emission reduction commitments under the Kyoto Protocol” (Oslo 2000).

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June 18, 2002 introduced a domestic greenhouse gas trading scheme beginning in 2005. However, Norway expressed its intentions of participating in the EU trading as well. The Norwegian cap-and-trade system targets those sectors currently not covered by a CO2 tax.85 Emissions trading should eventually replace the tax system, which will continue to run until 2008. The sectors covered by the new trading scheme concentrate on industrial processes. There is thus a focus on different sectors from the EU Directive.86 Allocation is based on historic grandfathering and banking is allowed. As in the UK, revenue from fines will be redistributed to the industry. Credits from clean development mechanisms and joint implementation projects can also be used in trading. Provisions are in place to prevent the unconditional trading of installations closing down.

D. Compatibility of National Emissions Trading Schemes with the Proposed EU Directive When two trading schemes of a similar commodity exist, it is of interest to consider the interaction, the possibility of merging and the possible conflict points of these markets. In general, both synergies and inefficiencies are possible. Linking two trading systems will create a uniform price, thereby making it possible to eliminate competitive distortions. However, double regulation is also possible, creating inefficiencies in the system. In the previous sections, the EU emissions trading scheme and national trading systems in the UK, Norway and Denmark were examined. It has been immediately obvious that the details in the design are quite disparate. Sectors, activities and gases covered, time periods, the character of reduction targets and allocation methods all differ. As the EU Directive will take precedence in the UK and Denmark, it is the national trading schemes that will need to adjust or yield. This section will explore some of the potential trouble spots ahead. Little literature was available to evaluate possible difficulties between the Danish trading scheme and the EU trading scheme. It is quite clear for Denmark that a longterm effective emissions trading scheme cannot operate at the national level alone: The market is too small to implement a smooth market and interactions within the Nordic network are an important influence. As the current trading system runs out in 2003, it is likely that any new system – if established at all – will take into account

85

This is actually a tax on fuels, and currently covers about 65% of Norway’s CO2 emissions. It has been in place since 1991. Different tax rates apply for different fuels.

86

Almost all of Norway’s electricity production derives from hydropower; cf. OECD, Dealing with Climate Change – Policies and Measures in IEA Member Countries, OECD (2000), at 17.


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the EU design. Since large electricity generators are required to trade under the EU scheme, it is likely that Denmark will switch to EU trading. The Danish trading system could however continue to operate for other sectors, small installations not covered by the Directive and for exempted industries. Adjustments to the EU emissions trading scheme seem quite manageable. The capand-trade system using grandfathering for allocations can be kept, but the sectors covered need to be coordinated with the EU Directive. For sectors continuing to trade under a national scheme only, the penalty should be increased significantly, as current prices probably do not reflect true marginal abatement costs. The Norwegian case is similar to the Danish: Again the national emissions trading scheme involves a simple cap-and-trade system. However, in the Norwegian case, the sectors covered are quite different, and there is a long tradition of CO2 taxes for many other sectors. Adopting the EU trading system would therefore involve phasing out CO2 taxes for affected industries much earlier than originally planned by the Norwegian government. The national trading scheme, as well as the CO2 tax, could be kept for sectors currently excluded from the EU Directive. The case of the UK is more complicated. Fears have been voiced that the UK trading scheme is incompatible with the EU Directive for a variety of reasons.87 The trading periods overlap (as the UK first trading period lasts until the end of 2006) and some UK Climate Change Agreements even go beyond the first Kyoto commitment period. Verification burden, baseline/project rules, and eligibility criteria differ among the various UK categories of participants and from those of the EU. Differing coverage between the two regimes is one of the difficulties. Thus the EU trading scheme on the one hand, and the CCL and CCA may concern different sectors, different technologies within a site, different greenhouse gases, and different incentives for abatements (e.g. supply or demand side incentives).88 Major adjustments to the Climate Change Levy and the Climate Change Agreements will be necessary. The main problems that Sorrell sees are those of double regulation, double crediting,89 equivalence of effort (opt-outs may not have equivalent national efforts) and linking between different trading schemes. Sorrell makes some recommendations on how these incompatibilities could be fixed.90 The UK scheme covers all gases, and it is estimated that about half of the reductions

87

Cf. Sorrell, supra note 65, in particular at 19 et seq.

88

For more details, cf. ibid., at 10 et seq.

89

While there are some cases where double regulation might be sensible, in most cases double regulation should be avoided. Cf. N. Johnstone, “Tradable Permits and Other Environmental Policy Instruments – Killing one Bird with two Stones”, CESifo Forum 8 (1/2003), available at see supra note 23.

90

Sorrell, supra note 65, at 6 et seq, 24 and 29.

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through the UK trading scheme will derive from non-CO2 gases.91 The Department for Environment, Food and Rural Affairs affirms that cost-effectiveness can only be assured if all greenhouse gases are included in trading. However, other greenhouse gases will only be included in the EU Directive in the second trading period (20082012).92 Electricity generators will have to accept emissions caps under the EU scheme starting in 2005. This could lead to an increase of electricity prices in the UK, which the UK in its climate change policy had attempted to avoid. Some of the (unnecessary) complexity of the UK trading system stems from this desire to protect the fuel poor consumer, and thus the EU Directive may lead the UK to simplify its trading system. While such a pressure on the electricity market may have positive effects on energy efficiency,93 they will indubitably require adjustments and may lead to resistance. In general, there are two options that the UK can take: It can let both systems run in parallel and risk double regulation of affected installations. Alternatively, it can rearrange its domestic policies in line with the EU Directive. This second alternative will involve a re-negotiation of very intricate agreements with the industry, some of which run until 2013. At the latest in 2008, when opt-outs at the EU level have to end, re-negotiation is required. As can be seen from this very brief overview, the intricacies of linking different emission trading schemes are highly complex. The UK system in particular will lead to major adjustments of the UK Climate Change Policy.

VI. Conclusions and Outlook In this article, linkages between the EU emissions trading scheme and national trading schemes have been examined. This issue is currently quite topical, since many countries as well as the EU are in the process of establishing or testing a trading scheme in this new commodity. It is clear that the success of an economically efficient emissions trading system depends on the proper design and implementation of the scheme. The new EU emissions trading system is the most recent attempt to design a trading scheme in greenhouse gases. It is thus time to begin analysing the possible impact this Directive will have on its member states. According to the emissions trading

91


92

Note that if adequate monitoring can be guaranteed, there is the possibility that the Commission includes additional gases via Art. 26 of the Directive already by the end of 2004.

93

Electricity prices (in real terms) in the UK have decreased substantially since 1995. Sorrell, supra note 65, at 15.


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Directive, mandatory trading in greenhouse gas emissions will begin in 2005. This does not leave member states much time to adjust their national climate change strategies and their national emissions trading schemes. National trading schemes within the EU that are already in place were presented, and possible synergies and incompatibilities discussed. While a limited and simple system such as the Danish or Norwegian cap-and-trade, grandfathering trading system can easily be adapted to the EU trading scheme, the case is quite different for the UK. The UK system is highly complex and covers many sectors, but these under very differing conditions. Three types of participants, with different trading rules and different verification conditions and compliance costs further complicate the system and drive transaction costs up. It is highly likely that the UK will have to renegotiate some of the Climate Change Agreements in order to comply with the EU Directive. Many questions remain unanswered in this short study. The intricacies of interactions between EU and UK trading need to be investigated further. Interactions between different national climate policy tools such as taxation and emissions trading need to be examined in detail. Finally, the national and international emissions trading systems have implications for, and depend on, the structure of international trade patterns. These should be investigated in a future study in order to maximize the use that emissions trading has for pollution reductions.

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President Bush’s Security Strategy and Its “Pre-Emptive Strikes Doctrine”

223

President Bush’s Security Strategy and Its “Pre-Emptive Strikes Doctrine” – A Legal Basis for the War against Iraq ? David Rezac*

Among all foreign policy documents the Bush administration has released, the National Security Strategy of 20 September 2002 stands out: it raised strong support as well as heavy criticism and was generally seen as the political and legal concept for the war against Iraq.1 The Strategy tries to respond to different “burning problems of mankind”. It is about progress in the area of human rights, the preservation of stable and world-wide economic growth, development and the struggle against diseases like AIDS and malaria. However, security policy takes priority in the new document. It does not surprise that the attacks of 11 September 2001, which have created a completely different security environment, are the central theme of the whole paper. The Strategy tries to counter the new terrorist threats with a renewed concept that differs from concepts of the Cold War era. In order to oppose terrorists and so-called “rogue states” more effectively, Chapter V (“Prevent our enemies from threatening us, our allies, our friends with weapons of mass destruction”) calls for the reverting of an old and very controversial concept: From now on a doctrine of “pre-emptive” or “preventive” military strikes shall be an integral part of the military and political strategy of the US. This approach has been described by the media as a new and original doctrine, the so-called “Bush doctrine”.2 The argumentation that the changed political environment and new terrorist threats justify the use of preventive or pre-emptive self-defence has been continued since the publication of the Strategy. Immediately after the beginning of US operations against Iraq in March 2003 Secretary of Defense Donald Rumsfeld made clear that the war was fought in the

* Dr. iur. (Innsbruck), Assistant, Department of International Law and International Relations, University of Vienna. 1

A copy of the strategy is available at http://www.whitehouse.gov/nsc.

2

See, e.g., N. Busse, „Die Bush-Doktrin, Amerika verkündet eine neue Sicherheitspolitik“, Frankfurter Allgemeine Zeitung, 26 September 2002; T. Knielinger, „Die neue BushDoktrin“, Die Welt, 23 September 2002.


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name of self-defence.3 This essay focuses on the question whether or not this position is acceptable under current international law and on the possible political and legal implications of the new doctrine.

I.

The New Threats: Terrorism, Rogue States and Weapons of Mass Destruction

Based on the disastrous experiences of the last years, the Strategy defines a new conception of threat that has three major components: terrorism, rogue states and weapons of mass destruction (WMD). According to the authors of the document, terrorists and “rogue states” are inseparably linked, they even appear as being one unified danger (“We must be prepared to stop rogue states and their terrorist clients”.4 “We make no distinction between terrorists and those who knowingly harbour or provide aid to them.”5 Both actors are suspected of the possible use of WMD: “Rogue states and terrorists do not seek to attack us using conventional weapons [;] they rely on acts of terror and, potentially, the use of weapons of mass destruction”).6

A. The Struggle against Global Terrorism In chapter III of the Strategy (“Strengthening alliances to defeat global terrorism and work to prevent attacks against us and our friends”) the term of “global” or “international” terrorism is described.7 The text offers only a very short and vague definition of terrorism refering to it as “premeditated, politically motivated violence perpetrated against innocents”.8 A more concrete definition is avoided. It is only stated that countless terrorist groups exist all over the world (“Thousands of trained terrorists remain at large with cells in North America, South America, Europe, Africa, the Middle East and across Asia”).9 The military action against the Taliban regime and Al Quaeda is cited as the first success against terrorism. At least, it is explained

3

Secretary Rumsfeld in a DoD News Briefing, 25 March 2003: “This war is an act of self defence, to be sure”, available at http://www.defenselink.mil/news/Mar2003t03252003 _t0325.html.

4

National Security Strategy, 14.

5

Ibid., at 5.

6

Ibid., at 15.

7

Ibid., at 5.

8

Ibid., at 5.

9

Ibid., at 5.


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that the US have one clear priority in their fight against the terrorists, namely that they will “first [...]disrupt and destroy terrorist organisations of global reach and attack their leadership [...]. Our immediate focus will be those terrorist organisations of global reach and any terrorist or state sponsor of terrorism which attempts to gain or use weapons of mass destruction or their precursors”.10 In this context, the idea of preventive self-defence is already employed: “While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of self-defence by acting pre-emptively against such terrorists, to prevent them from doing harm against our people and our country”.11 Presently, it is mainly Islamic fundamentalist terrorism that has strong international links “of global reach”. Countries harbouring these groups are likely to become the first targets of the Bush administration.

B. The Emergence of “Rogue States” Unlike the terrorist threat, the Strategy tries to delimit and to describe the danger coming from “rogue states”. According to the Strategy, these states, who are said to have emerged during the 1990s, share a certain number of common attributes: they brutalise their own people, they display no respect for international law, threaten their neighbours, are determined to acquire weapons of mass destruction, sponsor terrorism around the globe, reject basic human values and hate the US and everything for which it stands.12 In this context two cases are explicitly named: Iraq and North Korea. Iraq is accused of not having limited its designs to the acquisition of chemical weapons; biological and nuclear weapons were on its shopping list too. North Korea (“the world’s principal purveyor of ballistic missiles”) is accused of having tested increasingly capable missiles while developing its own WMD arsenal.13 With regard to the threat imposed by these rogue states, the Strategy asserts that strategic principles from the Cold War era as (nuclear) deterrence would not any longer be helpful: (“In the Cold War, especially following the Cuban missile crisis, we faced a general status quo, risk-averse adversary. Deterrence was an effective defence”).14 Today, deterrence would neither work against leaders of rogue states, who are “more willing to risks”, nor “against a terrorist enemy whose avowed tactics are wanton destruction and the

10

Ibid., at 6.

11

Ibid., at 6.

12

Ibid., at 14.

13

Ibid., at 14.

14

Ibid., at 15.

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targeting of innocents”.15 Again, the Strategy argues that only pre-emptive strikes can contain rogue states from attacking and causing harm. However, the concept of deterrence is far from being given up, as the text clearly shows (e.g. “[O]ur military must [...] deter threats against U.S. interests, allies, and friends”),16 but it won’t be maintained when terrorists or “rogue states” will be confronted (“we know from experience that some enemies cannot be deterred”).17

II. Towards a New Doctrine of Self-Defence It is in this context that a new doctrine of military self-defence is set out. It aims at a legal justification for a new, offensive behaviour of the United States against existing and alleged threats: Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today’s threats, and the magnitude of potential harm that could be caused by our adversaries choice of weapons, do not permit that option. We cannot let our enemies strike first. [...] For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of pre-emption on the existence of an imminent threat – most often a visible mobilisation of armies, navies and air forces preparing to attack. We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us by using conventional weapons. [...] Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction – weapons that can be easily concealed, delivered covertly, and used without warning. [...] The United States has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts

15

Ibid., at 15.

16

Ibid., at 29

17

Ibid., at 30.


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by our adversaries, the United States will, if necessary, act pre-emptively”.18 This attempt to find legality is finished by a short disclaimer, “[t]he United States will not use force in all cases to pre-empt emerging threats, nor should nations use pre-emption as a pretext for aggression.”19

A. Anticipation, Pre-Emption and Prevention According to the aforementioned passages of the Strategy, a right of “pre-emption” has existed for centuries. The new doctrine on self-defence is described as a simple adaptation of this right to the current political environment with its new threats. The first sentence of article 51 of the Charter of the United Nations, which prescribed the right of individual and collective self-defence, reads as following: Nothing in the present Charter shall impair the inherent right of individual and collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.

It becomes clear that any “preventive” or “pre-emptive” use of self-defence would be contrary to the wording of this provision. However, the subject has been intensively discussed since 1945. Most international lawyers use the term “anticipatory selfdefence” in order to discuss the legality of self-defence when an armed attack has not yet occurred.20 But there exists no clear and overwhelmingly accepted distinction between notions like “pre-emption” or “prevention” with regard to self-defence in international law. As it has been shown, both terms are used synonymously in the Strategy. However, some international lawyers and security policy analysts link the term “pre-emption” to situations of an imminent, nearly certain threat of armed attack.21

18

Ibid., at 15.

19

Ibid., at 15.

20

See, e.g., S. A. Alexandrov, Self-defence Against the Use of Force in International Law 149 (1996); A. Randelzhofer, “Article 51”, in B. Simma (ed.), The Charter of the United Nations – A Commentary 788, at 803 (2002); P. Malanczuk, “Countermeasures and SelfDefence”, 43 ZaöRV 705, at 761 (1983); C. Stahn, “International Law at a Crossroads ? The impact of September 11”, 62 ZaöRV 183, at 233 (2002); S. Schwebel, “Aggression, Intervention and Self-Defence”, 139 Hague Recueil 419, at 479 (1972); I. Brownlie, International Law and the Use of Force by States 257 (1963); A. Cassese, International Law 307 (2001); A. Tanca, Foreign Armed Intervention in Internal Conflict 55 (1993).

21

See, e.g., M. Corbin, “The Bush National Security Strategy. A First Step”, CDI Washington, available at http://www.cdi.org/national-security-strategy/washington.cfm; R. A. Levine, “Deterrence, preemption and prevention”, International Herald Tribune, 23 October 2002,

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On the other hand, these and further authors link the terms “prevention” or “preventive actions” with situations where such an imminent danger or threat does not exist or cannot be proven.22 These terms are used in this article.

B. Anticipatory Self-Defence before and after September 11 As will be shown, preventive self-defence as provided in the Strategy, is clearly unlawful under international law. However, the doctrine of anticipatory self-defence has found some support among international lawyers. It is clearly referring to situations where armed responses to attacks that are on the brink of launch would be authorised, or where an enemy attack has already occurred and the victim learns that more attacks are planned.23 As its justification, it is stated that imposing on states the attitude of “sitting ducks” when confronted with an impending military attack, “could only make a mockery, both in its acceptability to states and in its potential application, of the Charter’s main purpose of minimising unauthorised coercion and violence across state lines”.24 This doctrine was of particular importance during the Cold War; in an era of missiles and nuclear weapons and of highly sophisticated methods of reconnaissance and intelligence, it would have been naive and self-defeating for a state to have to await the attack of another state, while knowing with certainty that it will take place and involve very destructive weapons.25 In such circumstances, Dinstein proposes to label anticipatory self-defence as “interceptive self-defence” when “an armed attack is imminent and practically unavoidable” because of the other State who has “committed itself to an armed attack in an ostensibly irrevocable way”.26 Dinstein’s measure of when an armed attack has begun lacks substantive state practice to support it but it is in accordance with the

available at http://www.iht.com/articles/74496.htm; G. Nolte, „Weg in eine andere Rechtsordnung“, Frankfurter Allgemeine Zeitung, 10 January 2003. 22

See also Y. Dinstein, War, Aggression and Self-Defence, at 168 (2001); Brownlie, supra note 20, at 275; Malanczuk, supra note 20, at 761; In this essay, the terms “preventive selfdefense” or “preventive war” are used to refer to cases where a state uses force to avoid any possibility of an armed attack by another state, even when there is no certainty that an attack is imminent or planned and where no prior attack has occurred.

23

See M. E. O’Connell, “The Myth of Preemptive Self-Defense”, ASIL Task Force on Terrorism, August 2002, at 2, available at http://www.asil.org.

24

See M. S. McDougal, “The Soviet Quarantine and Self-Defense” 57 AJIL 597, at 597, 601 (1963).

25

See Cassese, supra note 20, at 310.

26

See Dinstein, supra note 22, at 172.


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principles of the commonly cited Caroline doctrine of 1842.27 This opinion restricted the application of the doctrine of self-defence to dangers which are “instant, overwhelming, leaving no choice of means, and no moment for deliberation” and required that the act, justified by the necessity of self-defence, had to be “limited by that necessity, and kept clearly within it”.28 Authors who argue in favour of anticipatory self-defence stress that a victim of an armed attack may use force based on clear and convincing evidence that the enemy is preparing to attack again. If terrorists are planning a series of attacks in a terror campaign, the state may respond to prevent future attacks about which it has some evidence.29 The response of the Security Council to September 11 can be seen as a confirmation of this point of view. The Security Council referred in two resolutions to the right to resort to self-defence in the face of the September 11 attacks.30 In “Operation Enduring Freedom” against the Taliban regime in Afghanistan, the allies have argued that the September 11 attacks were part of a series of attacks on the United States which began in 1993.31 In its letter to the Security Council of 7th October, the U.S. Representative to the United Nations, referring to UN Security Council resolutions on Afghanistan, stated that the US “may find that [its] self-defence requires further action with respect to other organisations and other states”.32 The UK limited itself to actions “to avert the continuing threat of attacks from the same source”.33 The Security Council action after September 11 can be cited to support anticipatory self-defence in cases where convincing evidence exists (after an armed attack has already occurred) that more terrorist attacks are planned, though not yet underway. By contrast, a state may not take military action in the name of “preventive self-defence” against another state when an attack is only a hypothetical possibility, and not yet in progress.34 State practice before 11 September 2001 offers only a few cases where states have asserted the right of self-defence to use force after terrorist attacks were attempted or

27

See O’Connell, supra note 23, at 9.

28

See Randelzhofer, supra note 20, at 803.

29


30

UN Doc. S/RES/1368 (2001); UN Doc. S/RES/1373 (2001).

31

See T. Bruha/M. Bortfeld, „Terrorismus und Selbstverteidigung“, 49 Vereinte Nationen 161, at 165 (2001), A. Cassese, “Terrorism is Also Disrupting Some Crucial Legal Categories of International Law”, 12 EJIL 993, at 995 (2001).

32

UN Doc. S/2001/946 (2001).

33

UN Doc. S/2001/947 (2001).

34

See O’Connell, supra note 23, at 11, see also M. Byers, “Terrorism, the Use of Force and International Law after 11 September”, 51 ICLQ 401, at 411 (2002).

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carried out against their nationals. In April 1985, the US air force undertook attacks against Libya. Invoking Libya’s responsibility for the terrorist bombing of a night club in Berlin – which had caused severe casualties among US citizens – President Ronald Reagan stated that the US had not only the right, but also the duty to use its right to self-defence. He described the air attacks as “preventive strikes”, and in the same breath explicitly mentioned article 51 of the Charter and argued that the US strikes were fully compatible with this provision.35 These arguments, however, were not accepted by the international community. A proposed resolution with the intention to condemn the air strike was vetoed by the US and their allies in the Security Council.36 In June 1993, US naval forces fired missiles at Iraqi intelligence headquarters in Baghdad, an attack declared to be in response to an Iraqi attempt to assassinate former President George H.W. Bush. According to the US representative, the US has responded “directly, as we were entitled to do under article 51 of the United Nations Charter ...”. Again, many states were reluctant to accept the legality of these actions.37 In August 1998, after the terrorist bombing of its embassies in Kenya and Tansania, the US set strikes against targets in Sudan and Afghanistan. Whereas the US insisted that they had acted in self-defence, the reaction of the international community was not unanimous, many African and Asian States expressed their disappointment.38 The aforementioned cases might be a reason why a distinguished range of scholars still interpret artice 51 to mean that a right of collective of individual self-defence may be exercised against the Charter only “if such an armed attack occurs against a Member state of the United Nations”. Such an interpretation would render anticipatory self-defence unlawful, however imminent and grave the danger of aggression and whether it is exerted by terrorists or states.39 It is mainly argued that an anticipatory right to self-defence would be contrary to the wording of article 51, as well as to the object and purpose, which is to cut to a minimum the unilateral use of force in international relations.40

C. The Alleged Right of Preventive Self-Defence In his West Point speech in June 2002, President Bush made the following statement with regard to the threat imposed by terrorists and “rogue states”: “If we wait for

35

Archiv der Gegenwart, 29.797-1, 14 April 1986.

36

See Alexandrov, supra note 20, at 185.

37

Archiv der Gegenwart, 37.946, 27 June 1993.

38

See K. Schmalenbach, „Die Beurteilung von grenzüberschreitenden Militäreinsätzen gegen den internationalen Terrorismus aus völkerrechtlicher Sicht“, 42 NZWehr 177, at 177 (2000).

39

Cf. Schwebel, supra note 20, at 479.

40

See Randelzhofer, supra note 20, at 803; see also Brownlie, supra note 20, at 272-75.


231

threats to fully materialize, we will have waited too long. [...] We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge. [...] [O]ur security will require [...] pre-emptive action when necessary to defend our liberty and to defend our lives.”41 Since 1945, the right of preventive self-defence has hardly been used in state practice. The United States itself has repeatedly rejected this doctrine for political reasons. It was found that the Charter rules would be in its interest as a matter of policy and prudence.42 It becomes apparent e.g. in the US pleadings in the Iran Airbus and the Iran Oil Platforms case, that the US were very concerned about putting its actions in the context of the ongoing conflict and to explain that they had occurred as a response to prior Iranian action.43 In the famous Osiraq case in 1981 the US took a negative view on an Israeli preventive air strike against an Iraqi nuclear power plant under construction. Israel had declared that the Iraqis were using their power plant for non-peaceful purposes and that it was only against Israel that the building could be directed. Israel described the attack as an act of self-defence, but the international community of states described it as an act of aggression. Even British Prime Minister Margaret Thatcher and the American ambassador to the UN, Jeane Kirkpatrick, criticised it and the US joined in passing a resolution condemning it.44 Supporters of a right of preventive self-defence often base their arguments on the word “inherent” in article 51.45 The argument is that article 51, by pledging not to “impair the inherent right of self-defence”, left unchanged the customary law of selfdefence as it existed before the adoption of the UN Charter.46 At the time when the Charter entered into force the traditional right of self-defence covered not only the case of armed attack, but also many areas of self-help. As a rule of customary law, the right could only be replaced if, as from a certain moment in time, its voidness had

41

President Bush’s Graduation speech at West Point, 1 June 2002, available at http://www. whitehouse.gov/news/releases/2002/06/print/20020601-3.html.

42


43

See C. Gray, “The US National Security Strategy and the New “Bush Doctrine” on Preemptive Self-defense”, 1 ChinJIL 437, at 440 (2002).

44

See R. Higgins, “The Attitude of Western States towards Legal Aspects of the Use of Force”, in A. Cassese (ed.), The Current Legal Regulation of the Use of Force 435, at 443 (1986); G. J. Ikenberry, “America’s Imperial Ambition”, 81 Foreign Affairs, 44 at 45 (2002); see also UNYB 1981, at 275.

45

See, e.g., L. A. Casey/D. B. Rifkin, Jr., “We Have the Right to Oust Saddam”, Wall Street Journal, 27 February 2002, available at http://www.opinionjournal.com/formsprintThis. html?=105001699.

46


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been commonly assumed so that a new rule of law could emerge, based upon the uniform practice of States. Such a development, however, cannot be claimed to have occurred with regard to the right of self-defence. Since 1945, various States have invoked a wider concept of self-defence under customary international law allegedly not restricted by article 51, and have carried out actions involving the use of force which were not directed against armed attacks. Yet, because of its inconsistency, this State practice was not capable of restricting the scope of article 51 itself.47 A great majority of scholars rejects the “inherent right”-theory in order to justify preventive self-defence.48 Furthermore, the universally accepted prohibition of armed reprisals stands against the use of preventive self-defence. Military measures that occur after a long period of time frequently do not have the character of self-defence, but of reprisals.49 The International Law Commission has clearly drawn a line between selfdefence and “countermeasures” affecting the obligation to refrain from the threat or use of force.50 Additionally, the Declaration of Friendly Relations and the Security Council – on several occasions – have clearly condemned armed reprisals.51 Finally, there is an inherent problem with proportionality in any preventive use of force: in the absence of clear evidence as to the nature and the scope of a particular threat, the requirement that any response should be proportionate is difficult to apply.52 In order to justify preventive self-defence, the Strategy stretches or simply ignores the notion of immediacy. An eventual danger or simple risk prevention has taken the place of the requirement of a concrete and imminent threat. The Strategy relies on the authority of the state to make the ultimate decision of whether the danger exists or not, without any possibility of control by a third party. Such a decisive step signifies a paradigmatic change towards a completely different international legal order. If the threshold for the use of force is dramatically lowered, a situation of general insecurity could arise. When the criterion of the immediacy of the threat is dropped,53

47

See Randelzhofer, supra note 20, at 806.

48

See, e.g., Alexandrov, supra note 20, at 165; J. Combacau, “The Exception of Self-Defence in U.N. Practice”, in Cassese (ed.), supra note 44, 9, at 27-28; Dinstein, supra note 22, at 165.

49

M. Krajewski, „Selbstverteidigung gegen bewaffnete Angriffe nicht-staatlicher Organisationen“, 40 AVR 183, at 201 (2002).

50

Art. 49-54 ILC Articles on State Responsibility, UN Doc A/RES/56/83 (2002).

51

See Alexandrov, supra note 20, at 167; R. Barsotti, “Armed Reprisals”, in Cassese (ed.), supra note 44, 79, at 84.

52

See Gray, supra note 43, at 441.

53

In a State of the Union Address on 28 January 2003, President Bush declared: “Some have said that we must not act until the threat is imminent. Since when have terrorists and tyrants announced their intentions, politely putting us on notice before they strike? If this threat is


233

every state or every person suspected of having links to terrorists or “rogue states” could be a possible target. The rule of law would be dramatically weakened.54 The new doctrine goes far beyond the previous rare claims to preventive action. There is a central uncertainty in that it is not at all clear what will trigger an attack, there is also uncertainty about the role, if there might be any left at all, of the UN. According to media reports, President Bush has provided legal authority to the CIA to hunt down and kill two dozens of terrorist leaders without seeking further approval each time the agency is about to start an operation.55 The new doctrine obviously applies, as shown by practice, from action by the CIA with the apparent consent of the target state, such as in the assassination of six presumed members of the Al Quaeda in Yemen in November 2002,56 to the invasion of Iraq in March 2003.

III. The War against Iraq The US has based its preventive action against Iraq after 11 September 2001 on two grounds: The first argument is the alleged link between Saddam’s regime and terrorist groups like Al Quaeda, the second is the non-compliance of Iraq with the disarmament regulations imposed by the Security Council since 1991, together with the alleged possession of WMD. Military action against Iraq based on these grounds has been urged since the weeks and months following “Operation Enduring Freedom” in Afghanistan.57

A. Iraq’s Regime and Terrorism The US have repeatedly alleged that Iraq has ties to Al Quaeda, as well as to other terrorist groups.58

permitted to fully and suddenly emerge, all actions, all words, and all recriminations would come too late”, available at http://www.whitehouse.gov/news/releases/2003/01/2003012823.html. 54

Cf. Nolte, supra note 21.

55

J. Risen/D. Johnston, “U. S. targets 2 dozen terrorist leaders”, International Herald Tribune, 16 December 2002.

56

W. Pincus, “U. S. Strike Kills Six in Al Quaeda”, Washington Post, 5 November 2002.

57

See, e.g., R. Perle’s address at the annual dinner of the Foreign Policy Research Institute (FPRI), “Next Stop Iraq”, 30 November 2001, available at http://www.fpri.org/enotes/ americawar.20011130.perle.nextstopiraq.html.

58

K. DeYoung, “Bush Cites Urgent Iraqi Threat”, Washington Post, 8 October 2002; see also A Decade of Deception and Defiance, White House document, 12 September 2002, at 18, available at http://www.whitehouse.gov.

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In a special meeting of the Security Council on 6 February 2003, US Secretary of State Colin Powell accused Iraq inter alia of having aided terrorist groups, including key cells of Osama bin Laden’s Al Quaeda. Powell noted that “Al Quaeda continues to have deep interest in acquiring weapons of mass destruction” and that Al Quaeda operatives trained with chemical weapons in Iraq between 1997 and 2000.59 This argumentation has met strong criticism and doubts. An official British intelligence report written in January 2003, for example, came to the conclusion that there are no current links between the Iraqi regime and the Al-Quaeda network. That conclusion flatly contradicts one of the main charges laid against Iraq by the US and Britain – that Saddam Hussein has cultivated contacts with the group blamed for the 11 September attacks.60 Therefore it could be very difficult to argue that, for instance, Security Council resolution 1373 dating from 28 September 2001 could provide a legal basis for preventive military strikes against Iraq. In this context it is important to emphasise that so far there is no established state practice to the effect that the mere possibility of terrorist attacks could serve as a justification for the use of force. Preventive strikes against terrorist groups residing in another state without the consent of the target state can only be justified with the existing legal instruments. As of yet there has been no agreement that in such a situation the threshold for action could be lowered or different rules of proof could be applied.61

B. Iraq’s Possession of Weapons of Mass Destruction The Strategy itself was obviously designed with Iraq in mind, on the basis that preventive military action will be needed to cut its development of WMD.62 WMD do represent without any doubt a serious danger. In connection with the perceived increase in WMD proliferation by states and non-state actors, new international legal efforts aimed at strengthening deterrence against WMD developments and use have appeared. Among them, one can cite Security Council action against Iraq concerning its alleged WMD program. In today’s environment, the dangers and uncertainties confronting the use of international law may even be historically unprecedented. The aforementioned US

59

T. L. O’Brien, “Powell lays out case against Iraq”, International Herald Tribune, 6 February 2003.

60

“Leaked report rejects Iraqi al-Qaeda link”, BBC News, 5 February 2003, available at http://bbc.co.uk/2/hi/uk_news/2727471.stm.

61

See H. Fischer, „Zwischen autorisierter Gewaltanwendung und Präventivkrieg: der völkerrechtliche Kern der Debatte um ein militärisches Eingreifen gegen den Irak“, available at http://www.horstfischer.info/newsmanager/anmviewer.asp?a=11&print=yes.

62



235

interpretations of international law to justify military action against Iraq and the worsening crisis with North Korea might demonstrate this.63 However, many states are presently in possession of such weapons. The decisive point is whether these states can be regarded as reliable or trustworthy. It was the nearly unanimous opinion of all states that Iraq and Saddam’s regime were to be regarded as unpredictable in many ways. However, there were no clear signs since the end of Gulf War II that Iraq would use WMD against other states. This seems to be true in spite of the fact that Saddam has used chemical weapons against the Kurd population of his country and that he has fired Scud missiles to Israel during Gulf War II.64 But the violation of a disarmament requirement does not itself amount to an armed attack. The ICJ held in an advisory opinion that for ordinary states, the mere possession of nuclear weapons is not illegal in customary international law, and the elements of fact at its disposal, the Court cannot conclude definitely whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a state would be at stake.65 The possession without even a threat of use does not amount to an unlawful armed attack.66

C. Resolution 1441 and the Preventive Use of Force According to the governments of the UK and the US, Security Council resolution 1441, which was adopted on 8th November 2002,67 constitutes a legal basis for the preventive use of force against Iraq that began on 19th March 2003.68 The legal discussion on Res. 1441 focused mainly on the question of whether a “material breach” of the resolution committed by Iraq would allow UN member states to confront Saddam’s regime with “serious consequences” as threatened in the resolution without a further meeting and decision by the Security Council. According to the interpretation of the British attorney general, Lord Peter Goldsmith, the authority to use force against Iraq “exists from the combined effect of resolutions 678, 687 and 1441”.69 In describing the US administration’s opinion, 63

See D. P. Fidler, “Weapons of Mass Destruction and International Law”, ASIL Insights, February 2003, available at http://www.asil.org/insights/insigh97.htm.

64

Cf. Nolte, supra note 21.

65

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, 1996 ICJ Rep. 226, at 266.

66

See O’Connell, supra note 23, at 12; see also Fischer, supra note 61.

67

UN Doc. S/RES/1441 (2002).

68

See President’s Bush Radio Address, 19 March 2003, available at http://www.whitehouse. gov/news/releases/2003/03/iraq.

69

Lord P. Goldsmith, “Legal basis for the use of force against Iraq”, 17 March 2003, available at http://www.pm.gov.uk/print/page3287.asp.

236


William Howard Taft, the State Department’s legal advisor, pointed out that the Security Council itself had declared Iraq in “material breach” of the earlier resolutions when it voted unanimously in November to demand Iraqi disarmament in resolution 1441. In doing so, he said, the council backed the use of force authorised by the Gulf War resolutions.70 In a Press Briefing on Iraq, US Secretary of State Colin Powell explicitly relied on this opinion of US and UK legal authorities.71 Resolution 1441 placed a set of demands on Iraq with regard to weapons of mass destruction: Saddam Hussein must allow unimpeded access by UN and International Atomic Energy Agency inspectors (paragraph 5). He must fully declare within thirty days of the resolution all details of any Iraqi weapons of mass destruction (WMD), delivery systems, and/or WMD programs (paragraph 3). The inspectors will have UN security guards, facilities and broad authorities to support their work (paragraph 7). The inspectors will report obstruction to their efforts to the Security Council (paragraphs 4 and 11). The Council will convene immediately upon such a report (paragraph 12). The resolution calls for “serious consequences” in the event of continuing Iraqi non-compliance (paragraph 13). Weapons inspectors will make an interim report within 60 days of the resolution (paragraph 5). President Bush had affirmed that, if Iraq fails to meet any of these demands, he intends to order force against Saddam Hussein’s regime.72 The US, the UK and Spain repeatedly argued that Iraq had violated resolution 1441, which requires full, unconditional and immediate compliance. UNMOVIC (United Nations Monitoring and Verification Commission) however submitted reports pointing out countless hurdles posed by the Iraqi government when it was searching for prohibited weapons on the one hand but also citing co-operation from Iraq on the other.73 Furthermore, a report of the International Atomic Energy Agency (IAEA), published in January 2003, came to the conclusion that there was no evidence Iraq had revived a nuclear weapons program that was dismantled in the early 1990s and asked for more time for inspectors to complete their examinations and “help us avoid a war”.74 Whether Iraq is in material breach of article 1441 has always been highly 70

P. Slevin, “U.S. Says War Has Legal Basis”, The Washington Post, 21 March 2003.

71

Secretary Powell, Briefing on Situation With Iraq, 17 March 2003, available at http://www. state.gov/secretary/rm/2003/18771.htm.

72

M. E. O‘Connell, “UN resolution 1441: Compelling Saddam, Restraining Bush”, 21 November 2002, available at http://www.jurist.law.pitt.edu/forum/forumnew73.php.

73

See UNMOVIC updated report, 27 January 2003, available at http://www.un.org/Depts/ unmovic/Bx27.htm; see also N. Quenivet, “The UK position: Resolutions 678, 687 and 1441 as bases for the use of force against Iraq”, available at http://www.ruhr-uni-bochum.de ifhv/publications/bofaxe/x240E.pdf.

74

T. L. O’Brien, “Cooperation falls short, Blix says”, International Herald Tribune, 28 January 2003.


237

debatable as the Security Council could not agree upon it. Strengthening the position of the Allies, resolution 1441 reiterates the fact that the Iraqi authorities have been in material breach of 17 separate UN resolutions since April 1991 and, in the view of the British Prime Minister, “1441 gave a final opportunity” to Iraq. However, the salient question is whether resolution 1441 allows the use of force if its provisions are not fully respected by Iraq.75 It becomes clear that the US and UK opinion that prior Security Council resolutions authorise the use of force almost entirely focuses on the “material breach” argument. According to Lord Goldsmith, the use of the term “material breach” is of utmost importance because the practice of the Security Council during the 1990’s “shows that it was just a finding of material breach by Iraq which served to revive the authorisation of force in Security Council resolution 678”. The Attorney General maintains that it “is plain, including from UNMOVIC’s statement to the Security Council, its Twelfth Quarterly Report and the so-called “Clusters Document”, that Iraq has not complied as required with its disarmament obligations. [...] It therefore follows that Iraq has not taken the final opportunity offered to it and remains in material breach of the disarmament obligations which, for twelve years, the Council has insisted are essential for the restoration of peace and security. In these circumstances, the authorisation to use force contained in the Security Council resolution revives”.76 Goldsmith asserted that “resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that has been intended. All that resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorise force”. Goldsmith argued that the Security Council had given to Iraq “a final opportunity to comply with its disarmament obligations” and warned Iraq of the “serious consequences” if it did not. “It is plain Iraq has failed so to comply and therefore Iraq was at the time of resolution 1441 and continues to be in material breach”.77 The problem is that a “material breach” has never been a viable basis for using force against Iraq. In the case of a material breach of a multilateral treaty, in some cases all the parties may respond, where appropriate, by coercive countermeasures.78 However, Security Council resolutions are not like treaties or other 75

See Quenivet, supra note 73.

76

Written Answer of the Attorney General, Lord Goldsmith, to a Parliamentary Question on the legal basis for the use of force in Iraq, Background Document, Foreign and Commonwealth Office, 17 March 2003, available at http://www.britain-in-switzerland.chnews/ legal_use_of_force_doc.pdf.

77

P. Wintour, “Attorney general declares attack is lawful”, The Guardian, 18 March 2003.

78

Art. 60 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331; Art. 49-54 ILC Articles on State Responsibility, UN Doc A/RES/56/83 (2002).

238


agreements reached through negotiations aimed at achieving consensus. Security Council resolutions are rather mandates upon parties and must be respected with or without their consent.79 They are enforced, modified, or terminated by the Security Council, not by States in general. Neither the explicit terms of the UN Charter nor the practice of the Security Council support any other interpretation. Thus, without Security Council authorisation, states do not have the right to use force in order to enforce the Council’s resolution, whether a breach is immaterial or material.80 There is also disagreement with regard to the aforementioned paragraph 12 of Resolution 1441, which provided for any failure by Iraq to be “considered” by the Security Council. Lord Goldsmith argued that this paragraph does not mean that no further action can be taken without a new resolution of the Security Council. Goldsmith maintains that this choice of words was deliberate and that a proposal demanding a requirement for a decision by the Security Council was not adopted.81 Those who oppose this view state that paragraph 12 requires the Security Council to meet immediately to decide what to do about an Iraqi violation – a requirement inconsistent with member states taking unilateral action.82 The US, the UK and Spain were unable to secure the nine votes that would have been necessary in the Security Council to obtain a further resolution that would clearly authorise the use of force. It can be said that the effort itself shows that the proponents recognised not only that the Security Council is necessary (and that the ground for the use of force, namely self-defence, is inapplicable), but also that Resolution 1441 in combination with the earlier Resolutions 678 and 687 did not clearly enough authorise the use of force.83 Moreover, the words “all necessary means” or “by all means” that can be found in each of the resolutions expressly entitling States to use force against another State (e.g. Iraq in 1991, Rwanda, Somalia, Haiti) have not been used in 1441. The resolution only warns that Iraq will face “serious consequences” if it continues to violate obligations spelled out in that resolution.84 In addition, the argument that resolution 1441 implicitly authorises the use of force is hardly compelling. Several members of the Security Council explained their vote in favour

79

See Art. 25 UN Charter.

80

See O’Connell, supra note 72.

81

See Goldsmith, supra note 76.

82

J. Lobel, “Lawyers Statement on UN Resolution 1441 on Iraq”, Foreign Policy in Focus, 5 December 2002, available at http://www.fpif.org/pdf/gac/0212lawyers.pdf.

83

See F. L. Kirgis, “Armed Force in Iraq”, ASIL Insights, 18 March 2003, available at http:// www.asil.org/insights/insigh99.htm.

84

K. Starmer, “Sorry, Mr Blair, but 1441 does not authorise force”, The Guardian, 17 March 2003.


239

of resolution 1441 precisely because it was not a trigger for authorising force.85 France, Russia and China issued a statement upon the enactment of the resolution that “Resolution 1441 ...excluded an automaticity in the use of force” and that only the Security Council has the ability to respond to a lapse by Iraq.86 Finally, Lord Goldsmith’s ruling even seems to contradict commitments given to the Security Council by US and UK ambassadors at the time 1441 was passed. The US ambassador, John Negroponte, had promised that the passage of Resolution 1441 contained no “hidden triggers” and no “automaticity” for war. The UK ambassador, Jeremy Greenstock, added that if there was a further Iraqi breach of its disarmament obligation the matter would return to the Council for discussion.87 Most international lawyers argued against the UK and US position. In an open letter to the British prime minister, a group of 16 academic lawyers warned that taking action without a new, clear UN mandate “will seriously undermine the international rule of law”.88 It might be of a certain interest that the issue of implied authorisation has already been debated in the Security Council, following “Operation Desert Fox”, a British and American series of air strikes on Iraq in December 1998. The UK and the US argued that Resolution 1205 implicitly revived the authorisation of the use of force contained in Resolution 678. The matter was debated at the 3930th meeting of the Security Council on 23 September 1998, when the majority of states speaking in the debate argued that the use of force by the UK and the US under the purported authorisation of resolutions 678, 1154 and 1205 was unlawful.89 With regard to the current use of force against Iraq, many governments expressed their disagreement with the US and UK argument that preventive action against Iraq can be based on Resolution 1441.90 The resolution of Austria’s National Security

85

See Quenivet, supra note 73.

86

Iraq – Joint statement by the People’s Republic of China, France and the Russian Federation, available at http://www.info-france-usa.org/news/statmnts/2002/iraq111302.asp, see also Lobel, supra note 82.

87

Summary of the Security Council Debate on Iraq upon the adoption of Resolution 1441, 9 November 2002, UN Doc. SC/7564 (2002), available at http://www.un.org/News/Press/ docs/2002/SC7564.doc.htm.

88

J. Crawford, P.-M. Dupuy et al., “Open letter to 10 Downing Street”, 17 March 2003, available at http://news.bbc.co.uk/1/hi/uk/2826331.stm.

89

See Rabinder Sigh QC, A. Macdonald , “Legality of use of force against Iraq”, 10 September 2002, available at http://www.lcnp.org/global; see also C. Gray, “From Unity to Polarisation: International Law and the Use of Force against Iraq”, 13 EJIL 1, at 22 (2002).

90

See, e.g., Chile, Mexico and Argentina, see “Attacking Iraq – International Reaction”, GlobalSecurity.org, available at http://www.globalsecurity.org/military/ops/iraq-view.htm.

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Council might serve as an example; it deplored that military action against Iraq had been carried out without a clear authorisation of the UN Security Council that would have been necessary to legitimate the invasion.91 There might be some political reasons for a forceful regime change in Baghdad – especially of humanitarian ground – but when the Allies began the invasion of Iraq in March 2003, there was no legal justification for such action.

IV. Political Implications of the “Bush Doctrine” The aforementioned new US doctrine on preventive self-defence has not found substantive support, neither in the international community nor among international lawyers. The reaction of the international community towards the Iraq war, the first case of armed conflict where the Strategy has been applied, indicate this. In the US, President Bush’s new doctrine found some support among lawyers, commentators and politicians. Former Secretary of State George P. Shultz declared that “pre-emption with military force is now an operative idea, with wide support. That is essential”.92 Other US security policy analysts however underlined the dangers of unilateral action: “If a doctrine of preventive war was to be implemented [...] unilaterally, on controvertible evidence, and with little regard to the ramifications of the international order, it will likely backfire”.93 “No standard is offered to judge when the US would consider the threat dangerous enough to pre-empt and when it would not – hence there is no answer to others who might adopt pre-emption themselves.”94 Although the Strategy warns that nations should not “use preemption as pretext for aggression”95, the use of preventive self-defence against Iraq could establish a precedent that the US have worked against since 1945. Preventive self-defence could provide legal justification for Pakistan to attack India, for Russia to attack Georgia, for Azerbaijan to attack Armenia, and so on.96 In September 2002, Russian Defence

91

Beschluss des Nationalen Sicherheitsrates, 24 March 2003, available at http://www.bka.gv. at/bka/Sicherheitspolitik/irak2.pdf.

92

Transcript of G. P. Shultz’ speech at Stanford University, 21 June 2002, available at http://www.hoover.standford.du/publications/digest/023/shultz.html.

93

See Corbin, supra note 21.

94

D. MacIntyre, “Understanding the New National Security of the United States”, ANSER Institute for Homeland Security, available at http://www.homelandsecurity.org.

95

See supra note 4, at 15.

96



241

Minister Sergei Ivanov declared that Moscow was prepared to unleash preventive strikes on militants in Georgia saying “[i]f any attempts are made or prepared on the Georgian territory to organise terrorist acts [...], nobody will wait any more. We will simply prevent such attacks”.97 In February 2003, a North Korean official asserted its country’s “right to pre-emptive attacks” against the US.98

V. Conclusion Whereas it can be argued that international law of self-defence provides support for the American and British use of force against Afghanistan in October 2002, the US has no right to invade or to attack another country because of speculative concerns about that state’s possible future actions. Current international law does not support a special status for the US or a singular status right to exempt itself from the right of self-defence. To maintain an international legal order that restrains other states and to uphold the rule of law, the US should rather abstain from talks of preventive selfdefence as explained in the Strategy.99 One can only hope that the new doctrine on preventive self-defence as spelled out in the Strategy will prove to be more of a rhetorical device invented to justify the war against Iraq than a serious attempt to reformulate the right of self-defence.100

97

D. Chirkin, “Ivanov informed America about Russia’s Iraq”, Pravda, 19 September 2002, available at http://english.pravda.ru/main/2002/09/19/36923_html.

98

J. Watts, “N Korea threatens US with first strike”, The Guardian, 6 February 2003.

99

Cf. O’Connell, supra note 23, at 21.

100


242


Austrian Judicial Decisions Involving Questions of International Law

243

Austrian Practice in International Law (2001/2002) Österreichische Praxis zum Internationalen Recht (2001/2002)

Edited by Gerhard Hafner and Stephan Wittich

Structure ............................................................................................................................ 245

Stephan Wittich & Michael Schoiswohl Part I: Austrian Judicial Decisions Involving Questions of International Law/ Österreichische Judikatur zum internationalen Recht ......................................... 257

Christina Binder, Isabelle Buffard, Gerhard Hafner & Katrin Hagemann Part II: Austrian Diplomatic and Parliamentary Practice in International Law/ Österreichische diplomatische und parlamentarische Praxis zum internationalen Recht ........................................................................................... 303

244



Structure

AA. International law in general/Völkerrecht – allgemein I.

Nature, basis, purpose/Natur, Grundlage, Funktionen 1. In general/Allgemeines 2. Ius cogens 3. Soft law

II.

History/Geschichte

BB. Sources of international law/Völkerrechtsquellen I.

Treaties/Verträge

II.

Custom/Völkergewohnheitsrecht

III. General principles of law/Allgemeine Rechtsgrundsätze IV. Judicial decisions/Gerichtsentscheidungen V.

Opinions of writers/Lehrmeinungen

VI. Equity/Billigkeit VII. Unilateral acts, including acts and decisions of international organisations and conferences/Einseitige Akte, einschließlich der Akte und Beschlüsse von internationalen Organisationen und Konferenzen VIII. Comity/Courtoisie (comitas gentium) IX. Codification and progressive development /Kodifikation und progressive Weiterentwicklung

CC. The law of treaties/Recht der Verträge I.

Conclusion and entry into force of treaties/Abschluß und Inkrafttreten völkerrechtlicher Verträge 1. Conclusion/Abschluß 2. Reservations and declarations/Vorbehalte und Erklärungen 3. Provisional application and entry into force/Vorläufige Anwendung und Inkrafttreten

II.

Observance, application and interpretation of treaties/Einhaltung, Anwendung und Auslegung von Verträgen 1. 2. 3. 4.

Observance of treaties/Einhaltung von Verträgen Application of treaties/Anwendung von Verträgen Interpretation of treaties/Auslegung von Verträgen Treaties and third states/(Verträge und) Drittstaaten


245

246


III. Amendment and modification of treaties/Änderung und Modifikation von Verträgen IV. Invalidity, termination and suspension of operation of treaties/Ungültigkeit, Beendigung und Suspendierung von Verträgen 1. General rules/Allgemeine Bestimmungen 2. Invalidity/Ungültigkeit 3. Termination and suspension of operation including denunciation and withdrawal/ Beendigung und Suspendierung von Verträgen, einschließlich der Kündigung von Verträgen und des Rücktritts vom Vertrag 4. Procedure/Verfahren 5. Consequences of invalidity, termination or suspension of operation/Folgen der Ungültigkeit, Beendigung oder Suspendierung von Verträgen

V.

Depositaries, notifications, corrections and registration/Depositär, Notifikationen, Berichtigungen und Registrierung VI. Consensual arrangements, other than in treaty-form/Willensübereinkünfte in anderer Form

DD. Relationship between international law and internal law/Völkerrecht und innerstaatliches Recht I.

In general/Allgemeines

II.

Application and implementation of international law in internal law/Innerstaatliche Anwendung und Durchführung des Völkerrechts III. Remedies under internal law for violations of international law/Innerstaatliche Rechtsmittel bei Völkerrechtsverletzungen

EE. Subjects of International law/Völkerrechtssubjekte I.

States/Staaten 1. Status and powers/Status und Befugnisse a. b. c. d. e. f. g.

Personality/Rechtspersönlichkeit Sovereignty and independence/Souveränität und Unabhängigkeit Non-intervention/Interventionsverbot Domestic jurisdiction/Vorbehaltener Wirkungsbereich Equality of states/Gleichheit State immunity/Staatenimmunität Other powers, including treaty-making powers/Andere Befugnisse, einschließlich der Vertragsabschlußbefugnis

2. Recognition/Anerkennung a. Recognition of states/Anerkennung von Staaten b. Recognition of governments/Anerkennung von Regierungen c. Types of recognition/Arten der Anerkennung aa. de facto\de jure


247

bb. conditional\unconditional/bedingt\unbedingt d. Acts of recognition/Anerkennungsakte aa. implied\express/stillschweigend\ausdrücklich bb. collective\unilateral/kollektiv\einseitig e. Effects of recognition/Wirkungen der Anerkennung f. Non-recognition and its effects/Nicht-Anerkennung und deren Wirkungen g. Withdrawal of recognition/Rücknahme der Anerkennung 3. Types of states/Arten von Staaten a. Unitary states, federal states and confederations/Einheitsstaaten, Bundesstaaten und Staatenbünde b. Personal unions, real unions/Personalunionen, Realunionen c. States under protection/Protektorate 4. Formation, continuity, succession and extinction of states/Entstehung von Staaten, Kontinuität, Staatennachfolge und Untergang von Staaten a. b. c. d.

Conditions for statehood/Elemente der Staatlichkeit Formation/Bildung von Staaten Identity, continuity/Identität, Kontinuität Extinctions/Untergang von Staaten aa. Cases of state succession/Fälle der Staatennachfolge i.

Union, with or without demise of former state/Zusammenschluß unter Auslöschung oder Fortbestand eines bisherigen Staates ii. Separation/Abspaltung iii. Newly independent states bb. Effects of state succession/Rechtliche Folgen der Staatennachfolge i.

Territory and other areas under national jurisdiction/Staatsgebiet und andere der Jurisdiktion unterstehende Gebiete ii. Nationality/Staatsangehörigkeit iii. Succession in respect of treaties/Staatennachfolge in Verträge iv. Archives/Archive v. Debts/Schulden vi. Property/Staatsvermögen vii. Responsibility/Staatenverantwortlichkeit viii. Other rights and obligations/Sonstige Rechte und Pflichten 5. Self-determination/Selbstbestimmung

II. International organisations/Internationale Organisationen 1. In general/Allgemeines a. Status and Powers/Status und Befugnisse aa. Personality/Rechtspersönlichkeit bb. Powers, including treaty-making power/Befugnisse einschließlich der Vertragsabschlußbefugnis

248


cc. Privileges and immunities of the organisation/Privilegien und Immunitäten der Organisation b. Participation of states in international organisations and in their activities/ Mitgliedschaft in internationalen Organisationen, Teilnahme an ihren Aktivitäten aa. Admission/Zulassung bb. Suspension, withdrawal, expulsion/Suspension der Mitgliedschaft, Austritt, Ausschluß cc. Obligations of membership/Verpflichtungen aus der Mitgliedschaft dd. Representation of states, including privileges and immunities/Vertretung der Staaten, einschließlich ihrer Privilegien und Immunitäten c. Legal effect of acts of international organisations/Rechtswirkung von Akten internationaler Organisationen d. Personnel of international organisations, including their privileges and immunities/Bedienstete internationaler Organisationen, einschließlich ihrer Privilegien und Immunitäten e. Responsibility of international organisations (see MM.)/Verantwortlichkeit internationaler Organisationen (siehe MM.) f. Succession of international organisations/Nachfolge internationaler Organisationen 2. Particular types/Arten internationaler Organisationen a. Universal organisations/Universelle Organisationen b. Regional organisations/Regionalorganisationen c. Organisations constituting integrated (e.g. economic) communities/Internationale Gemeinschaften (zB wirtschaftlicher Natur) d. Other types of organisations/Andere Arten von Organisationen

III. Other subjects of international law and entities and groups/Andere Völkerrechtssubjekte, Einheiten und Gruppen 1. Insurgents/Insurgenten 2. Belligerents/Kriegsführende 3. The Holy See/Der Heilige Stuhl 4. Mandated and trust territories/Treuhand- und Mandatsgebiete 5. Dependent territories/Abhängige Gebiete 6. Special regimes/Besondere Regime 7. Others (indigenous people, minorities, national liberation movements, etc.)/Sonstige (indigene Völker, Minderheiten, Nationale Befreiungsbewegungen)

FF. The position of the individual (including the corporation) in international law/Die Stellung der Einzelperson (einschließlich der juristischen Person) im Völkerrecht I.

Nationality/Staatsangehörigkeit

II.

Diplomatic and consular protection (see MM.)/Diplomatischer und konsularischer Schutz (siehe MM.)

III. Aliens or non-nationals/Fremde


249

IV. Members of minorities/Angehörige von Minderheiten V. Stateless persons/Staatenlose VI. Refugees/Flüchtlinge VII. Immigration and emigration, extradition, expulsion, asylum/Einwanderung und Auswanderung, Auslieferung, Ausweisung, Asyl 1. 2. 3. 4.

Immigration and emigration/Einwanderung, Auswanderung Extradition/Auslieferung Expulsion/Ausweisung Asylum/Asyl

VIII. Human rights and fundamental freedoms/Menschenrechte und Grundfreiheiten IX. Expropriation/Enteignung X.

Crimes under international law/Völkerrechtliche Verbrechen

XI. Criminal responsibility of the individual (see MM.)/Strafrechtliche Verantwortlichkeit des Einzelmenschen (siehe MM.)

GG. Organs of the state and their legal status/Die Staatsorgane und ihr rechtlicher Status I.

Head of state/Das Staatsoberhaupt

II.

Minister/Minister

III. Other organs of the state/Andere Staatsorgane IV. Diplomatic missions and their members/Diplomatische Vertretungen und ihre Mitglieder V.

Consulates and their members/Konsulate und ihre Mitglieder

VI. Special missions/Spezialmissionen VII. Trade delegations, information centres, etc./Handelsvertretungen, Informationseinrichtungen etc. VIII. Armed forces/Streitkräfte IX. Protecting powers/Schutzmächte

HH. Jurisdiction of the state/Jurisdiktion (Hoheitsgewalt) I.

Basic of jurisdiction/Grundlage der Jurisdiktion 1. 2. 3. 4. 5.

II.

Territorial principle/Territorialitätsprinzip Personal principle/Personalitätsprinzip Protective principle/Schutzprinzip Universality principle/Universalitätsprinzip Other principles/Andere Grundlagen

Types of jurisdiction/Arten der Jurisdiktion 1. Jurisdiction to prescribe/Legislative Jurisdiktion 2. Jurisdiction to adjudicate/Urteilsjurisdiktion

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3. Jurisdiction to enforce/Durchsetzungsjurisdiktion

III. Extra-territorial exercise of jurisdiction/Extraterritoriale Ausübung von Hoheitsgewalt 1. General/Im allgemeinen 2. Consular jurisdiction/Konsularjurisdiktion 3. Jurisdiction over military personnel abroad/Jurisdiktion über im Ausland stationiertes Militärpersonal 4. Others (artificial islands, terra nullius, etc.)/Sonstiges (künstliche Inseln, terra nullius etc.)

IV. Limitations upon jurisdiction (servitudes, leases, etc.)/Einschränkungen der Hoheitsgewalt (Servituten, ähnliche Gebrauchsrechte) V.

Concurrent jurisdiction/Konkurrierende Jurisdiktion

II. State territory/Das Staatsgebiet I.

Territory/Das Gebiet 1. Elements of territory/Gebietsteile a. Land, internal waters, rivers, lakes and land-locked seas (see also JJ. and KK.) Land, Binnengewässer, Flüsse, Seen und Binnenmeere (siehe auch JJ. Und KK.) b. Sub-soil/Unterirdisches Gebiet c. Territorial sea (see KK.)/Küstenmeer (siehe KK.) d. Airspace (see LL.)/Luftraum (siehe LL.) 2. Good neighborliness/Gute Nachbarschaft

II.

Boundaries and frontiers/Grenzen 1. Delimitation/Delimitation 2. Demarcation/Demarkation 3. Stability/Stabilität

III. Acquisition and transfer of territory/Gebietserwerb und Gebietsübertragung 1. Acquisition/Gebietserwerb 2. Transfer/Gebietsübertragung

JJ. International watercourses/Internationale Gewässer I.

Rivers and Lakes/Flüsse und Seen 1. 2. 3. 4. 5. 6.

II.

Definiton/Definition Navigation/Schiffahrt Irrigation/Bewässerung Uses for other purposes/Sonstige Nutzungen Protection of the environment/Umweltschutz Institutional aspects/Institutionelle Aspekte

Subterranean waters/Grundwasser

III. Canals/Kanäle


251

KK. Seas/Meere I.

Internal waters, including ports and bays/Innere Gewässer, Hafenanlagen, Buchten

II. The territorial sea/Das Küstenmeer III. Straits/Meerengen IV. Archipelagic waters/Archipelagische Gewässer V.

Contiguous zone/Anschlußzone

VI. Exclusive economic zone, exclusive fisheries zone/Ausschließliche Wirtschaftszone, ausschließliche Fischereizone VII. Continental shelf/Festlandsockel VIII. High seas/Die Hohe See 1. 2. 3. 4. 5.

Freedom of the sea/Grundsatz der Meeresfreiheit Hot pursuit/Nachteile Visit and search/Durchsuchung Piracy/Piraterie Conservation of living resources/Bewahrung der lebenden Ressourcen

IX. Islands, rocks and low-tide elevations/Inseln, Felsen, trocken-fallende Erhebungen X.

Enclosed and semi-enclosed seas/Eingeschlossene und halbeingeschlossene Meere

XI. International sea-bed area/Internationaler Meeresboden XII. Land locked and geographically-disadvantaged states/Binnenstaaten und geographisch benachteiligte Staaten XIII. Protection of the maritime environment/Schutz der Meeresumwelt XIV. Maritime scientific research/Wissenschaftliche Meeresforschung XV. Cables and pipelines/Kabel, Rohrleitungen XVI. Artificial islands, installations and structures/Künstliche Inseln, Anlagen und Bauwerke XVII.Tunnels/Tunnels XVIII.Vessels/Schiffe 1. Legal regime/Recht der Schiffahrt a. Warships/Kriegsschiffe b. Public vessels other than warships/Andere Staatsschiffe c. Merchant ships/Handelsschiffe 2. Nationality/Nationalität von Schiffen 3. Jurisdiction over vessels/Jurisdiktion über Schiffe a. b. c. d.

Flagstate/Flaggenstaat Coastal state/Küstenstaat Port state/Hafenstaat Other exercise of jurisdiction/Sonstige Ausübung der Jurisdiktion

252


LL. Air Space, outer space and Antarctica/Luftraum, Weltraum, Antarktis I.

Air Space/Luftraum 1. Legal status/Rechtsstellung 2. Uses/Nutzungen 3. Legal regime of aircraft/Rechtlicher Status des Luftfahrzeuges

II.

Outer space/Weltraum 1. Legal status/Rechtsstellung 2. Uses/Nutzungen 3. Legal regime of spacecraft/Rechtlicher Status des Weltraumobjektes

III. Antarctica/Die Antarktis 1. Legal status/Rechtsstellung 2. Uses/Nutzungen

MM. International responsibility/Völkerrechtliche Verantwortlichkeit I.

General conception/Konzept der völkerrechtlichen Verantwortlichkeit

II.

General issues of responsibility/Allgemeines zur völkerrechtlichen Verantwortlichkeit 1. The elements of responsibility (e.g. unlawfulness of the act, attribution to the state)/ Die Elemente der Staatenverantwortlichkeit (zB unerlaubter Akt, Zurechenbarkeit) 2. Circumstances excluding responsibility (self-defence, necessity, reprisals)/ Ausschluß der Verantwortlichkeit (Selbstverteidigung, Notstand, Repressalien) 3. Procedure/Verfahren a. Diplomatic protection/Diplomatischer Schutz aa. Nationality of claims bb. Exhaustion of local remedies/Ausschöpfung der innerstaatlichen Rechtsmittel b. Consular protection/Konsularischer Schutz c. Peaceful settlement (see NN.)/Friedliche Streitbeilegung (siehe NN.) 4. Consequences of responsibility (restitutio in integrum, damages satisfaction, guarantees)/Folgen der völkerrechtlichen Verantwortlichkeit (restitutio in integrum, Schadenersatz, Genugtuung, Sicherheitsleistungen)

III. Responsible entities/Träger der Verantwortlichkeit 1. 2. 3. 4.

States/Staaten International organisations/Internationale Organisationen Entities other than states and international organisations/Andere Einheiten Individuals and groups of individuals, including corporations/Individuen und Gruppen einschließlich juristischer Personen

NN. Pacific settlement of disputes/Friedliche Streitbelegung I.

The concept of an international dispute/Vorliegen eines internationalen Streites


II.

253

Means of settlement/Methoden zur Streitbelegung 1. 2. 3. 4. 5. 6.

Negotiations and consultations/Verhandlungen und Konsultationen Good offices/Die Guten Dienste Enquiry and fact-finding/Untersuchung Mediation/Vermittlung Conciliation/Vergleich Arbitration/Schiedsgerichtsbarkeit a. Arbitral tribunals and commissions/Schiedsgerichte und -kommissionen b. Permanent Court of Arbitration/Ständiger Schiedshof

7. Judicial settlement/Gerichtliche Streitbelegung a. International Court of Justice/Der Internationale Gerichtshof b. Courts or tribunals, other than the ICJ/Sonstige Gerichte und Gerichtshöfe 8. Settlement within international organisations/Streitbeilegung innerhalb der internationalen Organisationen a. United Nations/Vereinte Nationen b. Organisations other than the United Nations/Andere Organisationen 9. Other means of settlement/Sonstige Methoden der Streitbelegung

OO. Coercive measures short of the use of force/Zwangsmaßnahmen unter der Schwelle der Gewaltanwendung I.

Unilateral acts/Einseitige Akte 1. 2. 3. 4. 5.

II.

Retorsion/Retorsion Countermeasures/Gegenmaßnahmen Pacific blockade/Friedliche Blockade Intervention (see also EE.)/Intervention (siehe auch EE.) Other unilateral acts/Andere einseitige Akte

Collective measures/Kollektivmaßnahmen 1. United Nations/Vereinte Nationen 2. Collective measures outside the United Nations/Kollektivmaßnahmen außerhalb der Vereinten Nationen

PP. Use of force/Gewaltanwendung I.

Prohibition of use of force/Gewaltverbot

II.

Legitimate use of force/Rechtmäßiger Gewaltgebrauch 1. Self-defense/Selbstverteidigung 2. Collective measures/Kollektivmaßnahmen a. United Nations/Vereinte Nationen b. Outside the United Nations/Außerhalb der Vereinten Nationen 3. Others/Sonstiges

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III. Disarmament and arms control/Abrüstung und Rüstungskontrolle

QQ. The law of armed conflict and international humanitarian law/Recht des bewaffneten Konfliktes und internationales humanitäres Recht I.

International armed conflict/Der internationale bewaffnete Konflikt 1. Definition/Definition 2. The laws of international armed conflict/Das Recht des internationalen bewaffneten Konflikts a. Sources/Rechtsquellen b. The commencement of international armed conflict and its effects (e.g. diplomatic and consular relations, treaties, private property, nationality, trading with the enemy, locus standi personae in judicio)/Der Beginn des internationalen bewaffneten Konfliktes und seine Rechtsfolgen (zB diplomatische und konsularische Beziehungen, Verträge, Privateigentum, Staatsangehörigkeit, Feindhandel, locus standi personae in judicio) c. Land warfare/Landkrieg d. Sea warfare/Seekrieg e. Air warfare/Luftkrieg f. Distinction between combatants and non-combatants/Kombattanten—NichtKombattanten g. International humanitarian law (droit humanitaire international)/Internationales humanitäres Recht h. Belligerent occupation/Kriegerische Besetzung i. Conventional, nuclear, bacteriological and chemical weapons/Konventionelle, nukleare, bakteriologische und chemische Waffen j. Treaty relations between combatants (cartels, armistices etc.)/Vertragliche Beziehungen zwischen den Kombattanten (Absprachen, Waffenstillstände) k. Termination of international armed conflict, treaties of peace/Beendigung des internationalen bewaffneten Konfliktes, Friedensverträge 3. Reparations/Reparationen

II.

Non-international armed conflict/Nicht-internationaler bewaffneter Konflikt

RR. Neutrality, non-belligerency/Neutralität, Nicht-Kriegführung I.

The laws of neutrality/Neutralitätsrecht 1. Land warfare/Landkrieg 2. Sea warfare/Seekrieg 3. Air warfare/Luftkrieg

II.

Permanent neutrality/Dauernde Neutralität

III. Neutrality in the light of the Charter of the United Nations/Neutralität im Licht der Satzung der Vereinten Nationen IV. Policy of neutrality and non-alignment/Neutralitätspolitik, Bündnisfreiheit V. Non-belligerency/Nicht-Kriegführung


SS. Legal aspects of international relations and cooperation in particular matters/Rechtliche Aspekte der internationalen Beziehungen und Zusammenarbeit in bestimmten Bereichen I.

General economic and financial matters/Wirtschaftliche und Finanzwirtschaftliche Angelegenheiten 1. 2. 3. 4. 5. 6.

II.

Trade/Handel Loans/Kredite Investments/Investitionen Taxes/Steuern Monetary matters/Monetäre Angelegenheiten Development/Entwicklung

Transport and communications/Transport, Kommunikation

III. Environment/Umwelt IV. Natural Resources/Natürliche Ressourcen V.

Technology/Technologie

VI. Social and health matters/Soziale und gesundheitliche Angelegenheiten VII. Cultural matters/Kulturelle Angelegenheiten VIII. Legal matters (eg judicial assistance and crime control etc.)/Rechtliche Angelegenheiten (zB Rechtshilfe und Verbrechensbekämpfung etc.) IX. Military and security matters/Militärische Angelegenheiten, Sicherheitsangelegenheiten

255

256



257

PART I: Austrian Judicial Decisions Involving Questions of International Law/ Österreichische Judikatur zum internationalen Recht Stephan Wittich* & Michael Schoiswohl**

Index of Judgments and Decisions*** CC. The law of treaties/Das Recht der Verträge II—See FF.VII., FF.IX., QQ.I.3. DD. The relationship between international and internal law/Völkerrecht und innerstaatliches Recht See QQ.I.3. EE. Subjects of international law/Völkerrechtssubjekte I.4.c—See QQ.I.3. I.4.d.bb.vii— See QQ.I.3. FF. The position of the individual (including the corporation) in international law/Die Stellung der Einzelperson (einschließlich der juristischen Person) im internationalen Recht VI—See FF.VII.4. VII.4—Administrative Court, Decision 99/20/0483, dated 16 April 2002—Geneva Convention—discrimination against women—Afghanistan—Taliban .......................................................................... 260

*

Stephan Wittich is Assistant Professor at the Department of International Law of the University of Vienna.

**

Michael Schoiswohl is Programme Officer (Governance) with the United Nations Development Programme in Kabul.

***

The digest covers the period from 1 July 2001 until 30 September 2002.


258


IX—Supreme Court, Decision 1 Ob 219/01i, dated 22 October 2001—Austrian State Treaty 1955—Soviet occupation— deportation—non-economic losses—expropriation ........................................ 273 See also QQ.I.3. MM. International responsibility/Völkerrechtliche Verantwortlichkeit II.4—See QQ.I.3. QQ. The law of armed conflict and international humanitarian law/Recht des bewaffneten Konfliktes und internationales humanitäres Recht I.3—Supreme Court, Decision 1 Ob 149/02x, dated 30 September 2002—Soviet occupation—Austrian State Treaty—waiver of claims—internationally wrongful act—state succession and responsibility—statute of limitations ................................................................. 281


259

CC. The law of treaties/Recht der Verträge II.

Observance, application and interpretation of treaties/Einhaltung, Anwendung und Auslegung von Verträgen See FF.VII., FF.IX., QQ.I.3.

DD. Relationship between international law and internal law/ Völkerrecht und innerstaatliches Recht See QQ.I.3.

EE. Subjects of international law/Völkerrechtssubjekte I.

States/Staaten

4.

Formation, continuity, succession and extinction of states/Entstehung von Staaten, Kontinuität, Staatennachfolge und Untergang von Staaten

c.

Identity, continuity/Identität, Kontinuität

See QQ.I.3. d.

Extinction/Untergang von Staaten

bb.

Effects of state succession/Rechtliche Folgen der Staatennachfolge

vii.

Responsibility/Staatenverantwortlichkeit

See QQ.I.3.

FF. The position of the inidividual (including the corporation) in international law/Die Stellung der Einzelperson (einschließlich der juristischen Person) im internationalen Recht VI.

Refugees/Flüchtlinge See FF.VII.4.

VII. Immigration and emigration, extradition, expulsion, asylum/ Einwanderung und Auswanderung, Auslieferung, Ausweisung, Asyl

260

4.


Asylum/Asyl

Administrative Court, Judgment 99/20/0483, dated 16 April 2002* Verwaltungsgerichtshof, Erkenntnis 99/20/0483 vom 16 April 2002 Genfer Flüchtlingskonvention—Asyl—Bedrohung—Verfolgung—Diskriminierung von Frauen—UNHCR—Afghanistan—Taliban Geneva Refugee Convention—asylum—threat—persecution—discrimination against women—UNHCR—Afghanistan—Taliban Facts The complainant, a woman of Afghan nationality, had together with her husband entered Austrian territory on 22 November 1997 and filed a petition for asylum on 24 November 1997. During her interrogation at the Federal Asylum Authority,1 she explained that due to her medical studies in the Ukraine and the fact that all persons who had studied in the Ukraine were facing the death penalty, she felt compelled to leave Afghanistan in September 1997. The Federal Asylum Authority issued an administrative decision on 26 November 1997 rejecting her request for asylum according to Section 3 of the Law on Aliens (1991).2 The complainant subsequently lodged an appeal against this administrative decision at the Independent Federal Asylum Tribunal3, which upheld the administrative decision on the basis of Section 7 of the Law on Aliens. The case was finally referred to the Administrative Court. Translation of the Administrative Court’s reference to the findings of the Federal Asylum Authority: The challenged authority characterized the asserted threat as “subjectively perceived fear” and moreover assumed that the complainant would have been safe from persecution in Hungary already. In her appeal against this decision, the complainant submitted that she had acted against the “Taliban view about women” and belonged to threatened groups in her country. Due to her education she belonged to a “circle of more intellectual women than common in Afghanistan”. Taking into account the situation of women in Afghanistan and the idea.s and values of the Taliban, the reasons provided for in the administrative decision of the first instance proceedings were inapprehensible. In the hearings concerning the appeal held on 25 February and 15

* Summary and translation by Michael Schoiswohl. 1

Bundesasylamt.

2

Fremdengesetz.

3

Unabhängiger Bundesasylsenat.


261

April 1999, the complainant stated that the main reason for leaving Afghanistan was her inability to find employment despite her higher education. Women in Afghanistan were not permitted in Afghanistan to work, they were not permitted to leave their premises and they were beaten. A humane life was not possible at that time in Afghanistan. If one were not able to lead a “life in human dignity”, one could not “under these circumstances live there any longer”. In the course of additional interrogations the complainant explained that as an educated woman she perceived it extremely difficult to stay at home and that the rights of women were not at all recognized. After all, she had studied to work in her own country and did not have any opportunity to work. After finishing her studies in 1994 she had to leave the Ukraine within one or two weeks. The situation in Afghanistan had not been that bad at that time. She had married in 1997 in Afghanistan and therefore stayed there (for the time being). She had not been beaten since she did not leave the house. Widows who were forced to leave the house to go shopping were beaten on the streets. […] Previous to her departure, the Taliban had “not yet” visited the complainant at her house. She had heard, however, that this intention had existed because of her studies in the Ukraine and her membership to the Democratic Peoples’ Party of Afghanistan (which the complainant documented through submission of her membership card). The large majority of the Afghan students in the USSR had become members of the party. She did not assume any party functions apart from the assignment to encourage the recruitment of new members among the foreign Afghan students. From the perspective of the Taliban all who had studied in the former USSR were communists. After making references to explanations concerning the Taliban persecution of members of the former communist regime contained in an expert opinion as well as parts of a UNHCR Report of January 1999 which addressed the treatment of women by the Taliban and a report by the US Department of State of February 1999, the complainant finally submitted that she was not able to pursue her profession as medical doctor in Afghanistan without risking her life. She doubted that she had the possibility mentioned in the reports to work as a medical doctor (for female patients) in Afghanistan. This opportunity would primarily be afforded to female medical doctors who had studied in Kabul and not, like the complainant, in the Ukraine, and who were not members to the party. Upholding the contested administrative decision, the higher authority rejected the appeal on the basis of Article 7 of the Law on Asylum. It considered the merits of the appeal after a comprehensive reiteration of the claimant’s submission and the parts of the reports referred to in the appeals procedure under three aspects. With regard to the asserted impossibility to pursue her profession, which however according to the situation depicted by the reports may be subject to doubts, no persecution reaching a degree of intensity relevant for asylum is being claimed, in particular since it is not detectable to which extent a “massive threat against the basis of living” is connected to the “interference with the free exercise of profession” in accordance with the case law of the Administrative Court. The claimant was able to maintain her life with the help of her father until her departure and could, in case

262


of return with her husband, rely on the husband’s income. With regard to the fear of persecution due to her studies in the Ukraine as well as her insignificant party membership, it needed to be stated that the preliminary procedures “did not produce any indications” that the claimant would face the threat of persecution—as relevant for the granting of asylum—“alone” on the basis of her membership. After all, there are no indications that the claimant had participated in acts of killing or torture of communist leaders, which according to the consulted expert opinion could have been the cause for acts of revenge or pretext for state persecution. Finally, the claimant has thirdly not substantiated that due to her inner conviction it would be impossible for her to adapt her behaviour, and that she would therefore face the risk of resisting to comply with the instructions of the Taliban (in other words: and therefore to become subjected to the sanctions threatened for disobedience). Rather the compliant has remained one year at home after the capture of Kabul by the Taliban and has not attracted the attention of the Taliban. That she had “heard” there existed the intention to visit her at home because of her membership to the party would be vague and “concerning the alleged intention was proven wrong by the pertinent elaborations of the expert”. In view of her marriage the complainant would—contrary to a widow— also not be forced to leave the house for shopping, which would be prone to entail the danger of physical maltreatment in the streets. The requirements for the granting of asylum would therefore not be satisfied “(already) concerning those parts of Afghanistan controlled by the Taliban”. Translation of the Administrative Court’s decision: 1. It is not conclusively inferable from the challenged administrative decision why the complainant—at the relevant moment (for these proceedings) of the rendering of the administrative decision beginning of June 1999—should not have faced persecution by the Taliban in view of her studies in the former USSR and her partymembership. The expert opinion to which the respondent authority in this regard is exclusively referring deals—after an introductory section about the problematic sources of information to which the respondent authority had made no reference—in the section which was mentioned in the hearing and which is reproduced in the challenged administrative decision with the issue of persecution of former members of the communist party foremost in relation to the period between the toppling of the communist regime and the seizure of power by the Taliban. The statement that there were acts of personal revenge, but no “targeted policy of suppression and persecution” is located in this section of the expert opinion. With regard to the Taliban it is stated: “In particular since the measures of modernization of the communist regime has Kabul’s society been regarded as synonym for un-Islamic behaviour. Consequently, the Taliban Regime proceeds with particular rigidity against the population of Kabul. An important aspect for the evaluation of the situation of the communists under the Taliban is based on the fact that the communists during their domination had


263

compromised hundred of thousands Afghans, who had to collaborate with the communists and were even forced to acquire membership to the [communist] party. Do the Taliban want to kill, eliminate, re-educate all these people, of which merely a small portion had fled abroad, or by virtue of the war against the opposition only proceed against those who are perceived as ‘supporters’ of the opposition forces such as Massoud? The main problem for the communists is that if they had personally issued orders for murder and torture or themselves participated in torture, they would run the risk of being recognized by their past victims or their relatives and to be directly attacked or murdered or, on the other hand, they might be denounced at the Taliban, which could be welcomed by the Taliban as an opportunity to call one ‘communist’ to account.” The question pertinent in the complainant’s case whether mere followers of the communist regime would face persecution is—contrary to what the respondent authority seems to be assuming—not answered in the last sentence of these elaborations, but is explicitly kept open in the previous sentence. With regard to this subject the respondent authority thus should have referred to other, more appropriate documents. Since one may for the same reason not speak of a refutation by the expert of the “indicated motive”, this also encroaches the assessment of evidence concerning the complainant’s assertion of having heard that the Taliban would call on her due to her studies in the Ukraine and her past membership to the party. 2. With regard to claimant’s submission concerning the measures taken by the Taliban against Afghan women, the respondent authority had initially based its reasoning on an excerpt of a UNHCR report from January 1999 (Update to the Background Paper on Refugees and Asylum Seekers from Afghanistan), which however makes a reference to preceding parts of the report at the pertinent paragraph not considered by the authority (“As described earlier…”). Those sections of the report contain details concerning the—already at the time the pertinent administrative decision was rendered—commonly known approaches of the Taliban towards women, to which the claimant had made reference in the course of the proceedings before the respondent authority […]. On page 21 of the report—which refers to women as the first category of the specially endangered groups previous to the section to which the respondent authority had referred—it is mentioned that ‘educated Afghan women’ were a specially endangered group. Even the section of the report reproduced in the challenged decision speaks of “extreme measures towards the deprivation of rights of women”. With regard to the occupational opportunities of women in the area of medical sciences, to which the respondent authority makes reference in expressing its “doubts” concerning the preoccupations of the claimant, it is said that this would essentially concern a declaration of representatives of the Taliban-regime, which would entail “certain restrictions”. Already two sentences later in the report it is stated that there would be a significant difference between what was officially declared and what happened in reality. The respondent authority, however, has—in comparison more extensively—also quoted the “Report on Human Rights” of the US Department

264


of State of 1998 with regard to Afghanistan. The part of the report reproduced in the decision elaborates that women were beaten by the Taliban under the “pretext” of violations against clothing rules and it deals exhaustively with the almost complete cessation of medical services for women ordered by the Taliban as well as its consequences on the status of health of the female population. Subsequently, reference is again made to the clothing regulations and the frequently arbitrary, public physical castigations in connection with asserted violations thereof, to the prohibition not to leave the house without being accompanied by a male relative, to the regulations— described in detail—in connection with the utilization of public means of transportation and the prohibition to enter mosques as well as other praying-facilities. 3. In dealing with this aspect of the pertinent facts—which in contradistinction to the persecution of former members of the communist party is, viewed as a whole, documented rather extensively in the challenged decision—it is to be agreed with the respondent authority that [the authority] has not aggravated its approach concerning the evaluation of the threat to persecution flowing from it on the basis of the Geneva Refugee Convention according to Section 7 of the Law on Asylum applicable, through deliberations concerning a dispensable requirement of “state” persecution and through the examination of this dispensable criterion in relation to the Taliban regime in Afghanistan. It is the view of the Administrative Court that the decisive criterion is not persecution by the state, but the absence of protection to be provided by the state. The requirement that in the case of non-state persecution the state of origin would need to be “not willing or not able” to provide protection (compare in this regard judgment dated 26 February 2002, Reference number 99/20/ 0509), refers to the subsidiary nature of protection by the law on asylum vis-à-vis protection by the state of origin (compare, for example, reference made to the law of asylum “as compensation for the lack of protection by the state” in judgment dated 13 November 2001, Reference number 2000/01/0098). The requirement of a functioning “state/government” in the state of origin as precondition for protection under the law of asylum is not expressed therein. The respondent authority has, with regard to the determined measures taken by the Taliban towards women, not adopted the view that there would not be a nexus to a basis enshrined in the Geneva Convention. According to the opinion of the Administrative Court, such a view cannot be upheld. If the Taliban’s measures to be evaluated by the Court were aiming against women as a whole or against a particular group of the female population, then this was to be assessed in relation to the pending persecution because of belonging to a certain social group ((apart from the fact of the compliant’s previous membership to the party as well as the political components of—in the view of the respondent authority in the pertinent case not to be expected— persecution due to disobedience, which in the case of the complainant also needs to be considered) compare in this regard the recent jurisprudence for example decisions dated 31. January 2002, Reference number 99/20/0497, and dated 26 February 2002, Reference number 98/20/0544, both with further references; with regard to persecution


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because of gender refer also to the UNHCR working paper by Rodger Haines, GenderRelated Persecution (2001), as well as the decision quoted therein of the Refugee Status Appeals Authority New Zealand dated 16. August 2000, Refugee Appeal No. 71427/99, with further references). 4. The respondent authority has however taken the position that it had only to deal with the “restriction to the free exercise of profession” due to the claimant’s submission concerning the measures of the Taliban against women, and based on this assumption denied the asylum-relevant intensity of the discrimination with reference to the decisions of the Administrative Court concerning previous asylum laws. The respondent authority thus seems to adopt the view that viewed from the legal perspective concerning asylum it would be tolerable for the claimant—apart from the excursions in the company of a male relative—to spend the rest of her life at home and without exercising the profession she had learned or any other profession. In the counter-submission it is argued that the complainant obviously had overlooked that she had based her application “predominantly on economical grounds which do not reach the intensity relevant for asylum”. Against this it is to be held that the complainant has, amongst other, submitted before the respondent authority that she would not have the possibility to a “life in human dignity” under the Taliban. The assessment of this argument required consideration of the totality of the Taliban’s measures against women determined by the respondent authority, which were to be taken into account in deciding on the application for asylum even without special reference by the complainant. For the sake of completeness it is to be stated that even viewed from the isolated perspective of the working conditions created by the Taliban regime for women the respondent authority’s reference, based on the now disputed information of the claimant and the commonly known facts, to the interference of the “free exercise of profession” is not justified by the facts and that the conduct of the Taliban in this regard is not comparable to cases assessed in previous jurisprudence. Moreover, the complainant has also not referred to the prohibition of exercising her profession she had invoked as an “economical” detriment, but as prohibition to live her life in a meaningful way corresponding to her personality and education. 5. Looking at the Taliban’s interference, as determined by the respondent authority, into the living conditions of women in their totality, there can be no doubt that this would be one of the cases in which a number of provisions against a certain group of the population in combination with the manner of their enforcement is of such an extreme nature that the discrimination meets the threshold of persecution in the sense of the Refugee Convention. Apart from other bizarre aspects of the regulatory framework developed—and applied in practice as a basis for the arbitrary use of force—by the Taliban, reference needs to be made in this regard most importantly to the systematic obstruction to medical services, which at least in the vicinity of those institutions previously accessible to the female population signified an immediate threat to life. The lack of exceptions, even those demanded by minimum standards of humanity, to the enacted rules in relation to demand for medical treatment which

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may arise at any given moment characterizes the persecutory character of this form of repression. In this case there is no further requirement of any additional affectedness such as due to a lack of means for subsistence or the lack of male relatives to “accompany” the woman for a walk or for bringing food to the house. If the discriminatory rules themselves meet the intensity of persecution required for asylum, then there is also no need to consider any further disproportions in the case of disobedience and in particular, whether one could reasonably expect disobedience from the specifically affected applicant for asylum (compare, among others, in this sense Haines, cit.op. paragraph 34, and the document available on the internet by Pamela Goldberg and Karen Musalo dated 11 August 1998 in the proceedings concerning an Afghan citizen before the US Board of Immigration Appeals, Matter of N. Q. (also: N. Z.); with regard to persecution by accumulation of discriminatory measures compare, for example, the previously cited decision from New Zealand and the UNHCR working paper, Interpretation of Article 1 of the Convention of 1951 concerning the Legal Status of Refugees (2001), paragraph 17; […]). If the respondent authority in evaluating all determined interferences as a whole had confronted itselfwith the question whether the complainant was facing “persecution” in view of the measures adopted by the Taliban against women, it would have accordingly arrived at a different conclusion. Already because of this reason the challenged administrative decision was therefore to be set aside due to the illegality of its contents in accordance with § 42(2)(1) of the Law on the Administrative Court. German Original Ausführungen des Verwaltungsgerichtshofes zu den Feststellungen des Bundesasylsenats: Die 1971 geborene Beschwerdeführerin, eine Staatsangehörige von Afghanistan, reiste am 22. November 1997 zusammen mit ihrem Ehegatten in das Bundesgebiet ein und beantragte am 24. November 1997 Asyl. Bei ihrer Einvernahme vor dem Bundesasylamt am 26. November 1997 gab sie an, von 1980 bis 1987 in Kabul zur Schule gegangen zu sein und danach bis 1994 in Odessa, Ukraine, ein Medizinstudium absolviert zu haben. Danach habe sie bis zu ihrer Ausreise im September 1997 in Kabul gelebt. Sie habe Afghanistan verlassen, weil sie dort auf Grund ihres Studiums in der Ukraine Probleme bekommen könnte. Personen, die in der Ukraine studiert hätten, seien nunmehr mit der Todesstrafe bedroht. Ihr Ehegatte habe nur ihretwegen Afghanistan verlassen. Mit Bescheid vom 26. November 1997 wies das Bundesasylamt den Asylantrag gemäß § 3 des Asylgesetzes 1991 ab. Es wertete die geltend gemachte Bedrohung als bloß „subjektiv empfundene Furcht“ und nahm außerdem an, die Beschwerdeführerin sei schon in Ungarn vor Verfolgung sicher gewesen. In ihrer Berufung gegen diese Entscheidung brachte die Beschwerdeführerin u.a. vor, sie habe gegen das „Weltbild der Frau der Taliban“ verstoßen und gehöre zu den


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gefährdeten Gruppen in ihrer Heimat. Auf Grund ihrer Ausbildung gehöre sie „einem intellektuelleren Frauenkreis als durchschnittlich in Afghanistan“ an. Bei Beschäftigung mit der Situation der Frau in Afghanistan und dem Weltbild der Taliban sei die Begründung des erstinstanzlichen Bescheides unverständlich. Die belangte Behörde führte am 25. Februar 1999 und am 15. April 1999 eine mündliche Berufungsverhandlung durch, zu deren Beginn die Beschwerdeführerin angab, der Hauptgrund ihrer Ausreise sei gewesen, dass sie in Afghanistan trotz ihres Studienabschlusses keine Beschäftigungsmöglichkeit habe. Frauen dürften in Afghanistan derzeit nicht arbeiten, sie dürften das Haus nicht verlassen und würden geschlagen. Ein „menschenwürdiges Leben“ in Afghanistan sei derzeit nicht möglich. Wenn man „ein menschenwürdiges Leben nicht führen“ könne, könne man „unter diesen Umständen dort nicht mehr leben“. Im Zuge ihrer weiteren Befragung durch die belangte Behörde gab die Beschwerdeführerin u.a. an, sie habe es als ausgebildete Frau als sehr schwierig empfunden, zu Hause bleiben zu müssen. Die Rechte der Frau würden überhaupt nicht anerkannt. Sie habe studiert, um danach in ihrer Heimat arbeiten zu können und diese Möglichkeit jedoch nicht gehabt. Ihr Vater habe ein Lebensmittelgeschäft betrieben, von dem auch sie gelebt habe. Sie wisse nicht, ob er das Geschäft noch habe. Nach dem Abschluss ihres Studiums im Jahr 1994 habe sie die Ukraine binnen ein oder zwei Wochen verlassen müssen. In Afghanistan sei die Lage damals noch nicht so schlecht gewesen. 1997 habe sie in Afghanistan geheiratet und sei deshalb (zunächst) noch dort geblieben. Sie sei nicht geschlagen worden, weil sie das Haus nicht verlassen habe. Witwen, die gezwungen seien, für Einkäufe aus dem Haus zu gehen, würden auf der Straße geschlagen. Die Beschwerdeführerin sei aber zu Hause geblieben. Einmal sei sie auf Grund ihrer Ausbildung von Nachbarn um eine Geburtshilfe gebeten worden. Sie habe festgestellt, dass eine normale Entbindung nicht möglich sei und die Patientin unbedingt in ein Krankenhaus müsse. Diese habe aber auf Grund eines Vorfalls, bei dem eine Frau auf dem Weg ins Krankenhaus gezwungen worden sei, auf der Straße zu entbinden, und gestorben sei, Angst gehabt und versucht, zu Hause zu entbinden. Mutter und Kind seien dabei gestorben. Die Beschwerdeführerin sei vor ihrer Ausreise „noch nicht“ von den Taliban zu Hause aufgesucht worden. Sie habe aber gehört, dass diese Absicht bestanden habe, weil sie in der Ukraine studiert habe und Mitglied der Demokratischen Volkspartei Afghanistans gewesen sei (was die Beschwerdeführerin auch durch Vorlage ihrer Mitgliedskarte unter Beweis stellte). Die große Mehrheit der afghanischen Studenten in der Sowjetunion sei der Partei beigetreten. Parteiaufgaben habe die Beschwerdeführerin—abgesehen von der Aufgabe, unter den afghanischen Studenten im Ausland neue Mitglieder zu gewinnen—nicht gehabt. Aus der Sicht der Taliban seien alle, die in der ehemaligen Sowjetunion studiert hätten, Kommunisten. Nach dem Vorhalt von Ausführungen zur Verfolgung von Anhängern des früheren kommunistischen Regimes durch die Taliban aus einem in einem anderen Verfahren erstatteten Sachverständigengutachten sowie die Behandlung von Frauen durch die

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Taliban betreffender Teile eines UNHCR-Berichtes vom Jänner 1999 und eines Berichtes des US-Department of State vom Februar 1999 gab die Beschwerdeführerin abschließend an, sie hätte in Afghanistan ihrem Beruf als Ärztin nicht nachgehen können, ohne ihr Leben zu riskieren. Dass die in den Berichten angesprochene Möglichkeit, nunmehr in Afghanistan als Ärztin (für weibliche Patienten) tätig sein zu können, für sie bestehe, bezweifle sie. Diese Gelegenheit werde vorrangig Ärztinnen geboten werden, die in Kabul und nicht wie die Beschwerdeführerin in der Ukraine studiert hätten und nicht Parteimitglieder gewesen seien. Mit dem angefochtenen Bescheid wies die belangte Behörde die Berufung gemäß § 7 AsylG ab. Sie unterzog den Fall nach einer ausführlichen Wiedergabe des Vorbringens der Beschwerdeführerin und der ihr in der Berufungsverhandlung vorgehaltenen Berichtsteile einer rechtlichen Würdigung unter drei Gesichtspunkten. Was zunächst die geltend gemachte Unmöglichkeit der Berufsausübung betreffe, an der nach der Berichtslage „jedoch zu zweifeln“ sei, so werde damit keine asylrelevante Intensität erreichende Verfolgung geltend gemacht, zumal im Fall der Beschwerdeführerin nicht ersichtlich sei, inwiefern mit der „Beeinträchtigung der freien Berufsausübung“ im Sinne der Rechtsprechung des Verwaltungsgerichtshofes eine „massive Bedrohung der Lebensgrundlage“ verbunden sei. Die Beschwerdeführerin habe ihren Lebensunterhalt bis zu ihrer Ausreise mit Hilfe ihres Vaters bestreiten können und könne im Falle der gemeinsamen Rückkehr auf den von ihrem Ehegatten zu leistenden Unterhalt zählen. Zur Befürchtung einer Verfolgung wegen des Studiums in der Ukraine und wegen der wenig prominenten Parteimitgliedschaft der Beschwerdeführerin sei auszuführen, dass das Ermittlungsverfahren „keine Anhaltspunkte dafür“ erbracht habe, dass die Beschwerdeführerin „allein“ wegen ihrer Parteimitgliedschaft asylrelevante Verfolgung zu befürchten hätte. Es deute nämlich nichts darauf hin, dass die Beschwerdeführerin sich an Tötungsdelikten oder Folterungen der kommunistischen Machthaber beteiligt habe, was nach dem herangezogenen Gutachten Ursache für Racheakte oder Vorwand für staatliche Verfolgung sein könnte. Schließlich habe das Ermittlungsverfahren drittens auch keine Anhaltspunkte dafür erbracht, dass es der Beschwerdeführerin aus innerer Überzeugung unmöglich sein würde, sich angepasst zu verhalten, und sie daher Gefahr laufe, sich den Anordnungen der Taliban zu widersetzen (gemeint: und den dafür drohenden Sanktionen ausgesetzt zu sein). Die Beschwerdeführerin habe sich vielmehr—nach der Einnahme Kabuls durch die Taliban—ein ganzes Jahr lang zu Hause aufgehalten und nicht die Aufmerksamkeit der Taliban auf sich gezogen. Dass sie „gehört“ habe, es hätte die Absicht bestanden, sie wegen ihrer Parteimitgliedschaft zu Hause aufzusuchen, sei vage und „hinsichtlich des angegebenen Motivs durch die diesbezüglichen Ausführungen des Sachverständigen widerlegt“. Auf Grund des Umstandes, verheiratet zu sein, werde die Beschwerdeführerin—anders als etwa eine Witwe—auch nicht gezwungen sein, für Einkäufe das Haus zu verlassen, was die Gefahr physischer Misshandlung auf der Straße nach sich zu ziehen geeignet wäre. Die Voraussetzungen für die Gewährung von Asyl seien daher „(schon) in Ansehung der von den Taliban beherrschten Teile


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Afghanistans“ nicht gegeben. Gegen diesen Bescheid richtet sich die vorliegende Beschwerde, über die der Verwaltungsgerichtshof erwogen hat. Der Verwaltungsgerichtshof selbst erkannte in der Sache: 1. Dem angefochtenen Bescheid ist nicht schlüssig entnehmbar, warum der Beschwerdeführerin—zum hier maßgeblichen Zeitpunkt der Erlassung des angefochtenen Bescheides Anfang Juni 1999—wegen ihres Studiums in der ehemaligen Sowjetunion und ihrer Parteimitgliedschaft seitens der Taliban keine Verfolgung gedroht haben sollte. Das Sachverständigengutachten, auf das sich die belangte Behörde in dieser Hinsicht ausschließlich bezieht, befasst sich—nach einem einleitenden, von der belangten Behörde nicht herangezogenen Teil über die problematische Quellenlage—in dem Abschnitt, der in der Verhandlung erörtert wurde und im angefochtenen Bescheid wiedergegeben ist, mit der Frage der Verfolgung ehemaliger Mitglieder der kommunistischen Partei zunächst in Bezug auf die Zeit zwischen dem Sturz des kommunistischen Regimes und der Machtergreifung durch die Taliban. Die Aussage, es habe persönliche Racheakte, aber keine „gezielte Unterdrückungs- und Verfolgungspolitik“ gegeben, findet sich in diesem Abschnitt des Gutachtens. In Bezug auf die Taliban wird ausgeführt: „Insbesondere seit den Modernisierungsmaßnahmen des kommunistischen Regimes stand die Kabuler Gesellschaft für die Taliban als Synonym für unislamisches Verhalten. Daraus resultiert, dass das Taliban-Regime besonders hart gegen die Bevölkerung Kabuls vorgeht. Ein wichtiger Aspekt zur Beurteilung der Lage der Kommunisten unter den Taliban liegt in der Tatsache begründet, dass die Kommunisten während ihrer Herrschaft hunderttausende Afghanen kompromittiert hatten, d.h. sie haben mit den Kommunisten kollaborieren müssen, sogar die Parteimitgliedschaft erwerben müssen. Wollen die Taliban alle diese Menschen, von denen ein Bruchteil ins Ausland geflüchtet ist, vernichten, umerziehen oder auf Grund des Krieges gegen die Opposition nur gegen diejenigen vorgehen, die als ‚Unterstützer‘ der oppositionellen Kräfte wie Massoud gelten? Hauptproblem für die Kommunisten ist, dass, wenn sie persönlich Befehle zur Ermordung und Folterung erteilt haben oder selber an Folterungen teilgenommen haben, sie Gefahr laufen von ihren ehemaligen Opfern oder deren Verwandten erkannt zu werden und entweder direkt angegriffen oder ermordet zu werden oder aber bei den Taliban angezeigt werden, was für Taliban eine willkommene Sache sein kann, um einen ‚Kommunisten‘ zur Rechenschaft zu ziehen.“ Die im Fall der Beschwerdeführerin maßgebliche Frage, ob bloße Mitläufer des kommunistischen Regimes mit Verfolgung zu rechnen hätten, wird—anders als die belangte Behörde anzunehmen scheint—nicht im letzten Satz dieser Ausführungen beantwortet, sondern im vorangegangenen Fragesatz ausdrücklich offen gelassen. Die belangte Behörde hätte zu diesem Thema daher andere, geeignetere Unterlagen heranziehen müssen. Da von einer Widerlegung des „angegebenen Motivs“ durch den Sachverständigen aus dem gleichen Grund keine Rede sein kann, berührt dies

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auch die Beweiswürdigung zur Behauptung der Beschwerdeführerin, sie habe gehört, dass sie auf Grund ihres Studiums in der Ukraine und wegen ihrer früheren Parteimitgliedschaft von den Taliban aufgesucht werden solle. 2. In Bezug auf die von der Beschwerdeführerin geltend gemachten Maßnahmen der Taliban gegen die afghanischen Frauen hat die belangte Behörde sich zunächst auf einen Auszug aus einem UNHCR-Bericht vom Jänner 1999 gestützt (Update to the Background Paper on Refugees and Asylum Seekers from Afghanistan), der an entscheidender Stelle aber auf vorangegangene, von der belangten Behörde nicht herangezogene Teile desselben Berichtes verweist (“As described earlier ...”). Diese früheren Teile des Berichtes enthalten Einzelheiten der—schon zur Zeit der Erlassung des angefochtenen Bescheides—allgemein bekannten Vorgangsweisen der Taliban gegenüber Frauen, auf die sich die Beschwerdeführerin in der Verhandlung vor der belangten Behörde bezogen hat (vgl. insbesondere die Seiten 13 f, 16 f, 18 und 20 f des Volltextes). Auf Seite 21 des Berichtes—der unter den speziell gefährdeten Gruppen in dem daran anschließenden, von der belangten Behörde zitierten Abschnitt an erster Stelle die Frauen behandelt—werden “educated Afghan women” als besonders gefährdete Gruppe erwähnt. Von „extremen Maßnahmen zur Beschneidung der Rechte der Frauen“ ist allerdings auch in dem im angefochtenen Bescheid wiedergegebenen Berichtsteil die Rede. Zur Arbeitsmöglichkeit für Frauen im medizinischen Bereich, auf die sich die belangte Behörde mit ihren diesbezüglichen „Zweifeln“ an den Befürchtungen der Beschwerdeführerin bezieht, wird ausgeführt, es handle sich dabei um eine Erklärung von Vertretern des Taliban-Regimes, die mit “certain restrictions” verbunden sei. Schon im übernächsten Satz des Berichtes wird ausgeführt, es bestehe ein signifikanter Unterschied zwischen dem, was offiziell erklärt werde, und dem, was in Wirklichkeit geschehe. Die belangte Behörde hat aber auch—vergleichsweise ausführlicher—aus dem Afghanistan betreffenden „Report on Human Rights” des US-Department of State für das Jahr 1998 zitiert. Der im Bescheid wiedergegebene Berichtsteil spricht davon, dass Frauen von den Taliban unter dem Vorwand (“pretext”) des Verstoßes gegen die Bekleidungsvorschriften geschlagen würden, und er behandelt ausführlich die von den Taliban verordnete, fast vollständige Einstellung der medizinischen Versorgung von Frauen sowie deren Auswirkungen auf den Gesundheitszustand der weiblichen Bevölkerung. Daran anschließend wird nochmals auf die Bekleidungsvorschriften und die oft willkürlichen, öffentlichen körperlichen Züchtigungen im Zusammenhang mit behaupteten Verstößen dagegen, auf das Verbot, ohne Begleitung eines männlichen Angehörigen das Haus zu verlassen, auf näher beschriebene Regelungen im Zusammenhang mit der Benützung öffentlicher Verkehrsmittel und auf das Verbot, Moscheen und andere Anbetungsstätten zu betreten, eingegangen. 3. In der Behandlung dieses—im Gegensatz zur Verfolgung ehemaliger Mitglieder der kommunistischen Partei im angefochtenen Bescheid somit insgesamt recht ausführlich dokumentierten—Aspektes des Sachverhaltes ist der belangten Behörde zunächst darin beizupflichten, dass sie sich den Zugang zur Prüfung der daraus abzuleitenden


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Verfolgungsgefahr im Sinne der gemäß § 7 AsylG maßgeblichen Genfer Flüchtlingskonvention nicht durch Überlegungen zum vermeintlichen Erfordernis einer „Staatlichkeit“ der Verfolgung und durch die Prüfung dieses vermeintlichen Kriteriums in Bezug auf die Herrschaft der Taliban in Afghanistan erschwert hat. Der Verwaltungsgerichtshof vertritt die Ansicht, dass es nicht auf eine „Staatlichkeit“ der Verfolgung, sondern auf das Fehlen staatlichen Schutzes ankommt. Wenn davon die Rede ist, im Falle nichtstaatlicher Verfolgung müsse der Herkunftsstaat „nicht gewillt oder nicht in der Lage“ sein, Schutz zu gewähren (vgl. dazu das hg. Erkenntnis vom 26. Februar 2002, Zl. 99/20/0509), so bezieht sich das auf die Subsidiarität des asylrechtlichen Schutzes gegenüber einem solchen des Herkunftsstaates (vgl. nur beispielsweise die Bezugnahme auf das Asylrecht „als Ausgleich für fehlenden staatlichen Schutz“ im hg. Erkenntnis vom 13. November 2001, Zl. 2000/01/0098). Das Erfordernis einer funktionierenden „Staatsgewalt“ im Herkunftsstaat als Voraussetzung asylrechtlichen Schutzes kommt darin nicht zum Ausdruck. Die belangte Behörde hat in Bezug auf die von ihr festgestellten Maßnahmen der Taliban gegenüber Frauen auch nicht die Ansicht vertreten, es fehle an einem Zusammenhang mit einem Konventionsgrund. Einer solchen Ansicht könnte nach Auffassung des Verwaltungsgerichtshofes auch nicht beigetreten werden. Richteten sich die zu erörternden Maßnahmen der Taliban gegen die Frauen insgesamt oder gegen bestimmte Gruppen der weiblichen Bevölkerung, so war dies (abgesehen von der im Fall der Beschwerdeführerin auch in Betracht zu ziehenden früheren Parteimitgliedschaft und von politischen Komponenten einer nach Ansicht der belangten Behörde im vorliegenden Fall nicht zu erwartenden Verfolgung wegen Widersetzlichkeit; vgl. in diesem Zusammenhang das hg. Erkenntnis vom 27. September 2001, Zl. 99/20/0409) unter dem Gesichtspunkt der drohenden Verfolgung wegen der Zugehörigkeit zu einer bestimmten sozialen Gruppe zu würdigen (vgl. dazu aus der neueren hg. Rechtsprechung etwa die Erkenntnisse vom 31. Jänner 2002, Zl. 99/20/0497, und vom 26. Februar 2002, Zl. 98/20/0544, jeweils mit weiteren Nachweisen; zur Verfolgung wegen des Geschlechtes auch das UNHCR-Arbeitspapier von Rodger Haines, Gender-Related Persecution (2001), sowie die dort zitierte Entscheidung der Refugee Status Appeals Authority New Zealand vom 16. August 2000, Refugee Appeal No. 71427/99, jeweils mit zahlreichen weiteren Nachweisen). 4. Die belangte Behörde hat allerdings gemeint, sich auf Grund des Vorbringens der Beschwerdeführerin hinsichtlich der Maßnahmen der Taliban gegen Frauen nur mit der „Beeinträchtigung der freien Berufsausübung“ beschäftigen zu müssen, und davon ausgehend—unter Hinweis auf Erkenntnisse des Verwaltungsgerichtshofes zu früheren Asylgesetzen—die asylrelevante Intensität der Benachteiligungen verneint. Im Ergebnis scheint die belangte Behörde die Auffassung zu vertreten, es sei der Beschwerdeführerin aus asylrechtlicher Sicht zuzumuten, ihr restliches Leben— abgesehen von Ausgängen in Begleitung eines Angehörigen männlichen Geschlechtes—zu Hause und ohne Ausübung des von ihr erlernten oder eines anderen Berufes zu verbringen. In der Gegenschrift wird ausgeführt, die Beschwerdeführerin

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übersehe offenbar, dass sie ihren Antrag „vornehmlich auf—asylrelevante Intensität nicht erreichende—wirtschaftliche Gründe gestützt“ habe. Dem ist entgegenzuhalten, dass die Beschwerdeführerin im Verfahren vor der belangten Behörde u.a. vorgebracht hat, in Afghanistan sei ihr unter den Taliban kein „menschenwürdiges Leben“ möglich. Die Behandlung dieses Argumentes erforderte die Bedachtnahme auf die Gesamtheit der von der belangten Behörde festgestellten, bei der Entscheidung über den Asylantrag aber auch ohne besonderen Hinweis der Beschwerdeführerin zu berücksichtigenden Maßnahmen der Taliban gegen Frauen. Der Vollständigkeit halber ist festzuhalten, dass die Bezugnahme der belangten Behörde auf eine „Beeinträchtigung“ der „freien“ Berufsausübung dem Sachverhalt, ausgehend von den nur bezweifelten Angaben der Beschwerdeführerin und den allgemein bekannten Fakten, auch unter dem isolierten Gesichtspunkt der vom Taliban-Regime geschaffenen Arbeitsbedingungen für Frauen nicht gerecht wird und das diesbezügliche Vorgehen der Taliban mit den in der Vorjudikatur beurteilten Fällen nicht vergleichbar ist. Die Beschwerdeführerin hat das von ihr geltend gemachte Verbot einer Berufsausübung auch nicht als „wirtschaftlichen“ Nachteil, sondern als Verbot einer sinnvollen, ihrer Persönlichkeit und Ausbildung entsprechenden Lebensgestaltung ins Treffen geführt. 5. Betrachtet man die von der belangten Behörde festgestellten Eingriffe der Taliban in die Lebensbedingungen der afghanischen Frauen in ihrer Gesamtheit, so kann aber kein Zweifel bestehen, dass hier einer der Fälle vorliegt, in denen eine Summe von Vorschriften gegen eine bestimmte Bevölkerungsgruppe in Verbindung mit der Art ihrer Durchsetzung von insgesamt so extremer Natur ist, dass die Diskriminierung das Ausmaß einer Verfolgung im Sinne der Flüchtlingskonvention erreicht. In dieser Hinsicht ist abgesehen von anderen bizarren Aspekten des von den Taliban errichteten—und in der Praxis als Grundlage für willkürliche Gewaltanwendung benützten—Regelwerks vor allem auf die systematische Behinderung der medizinischen Versorgung hinzuweisen, die zumindest im Umkreis der zuvor auch der weiblichen Bevölkerung zugänglichen Einrichtungen eine unmittelbare Bedrohung des Lebens bedeutete. Schon das Fehlen der auch nur den Mindestanforderungen der Menschlichkeit entsprechenden Ausnahmen von den verordneten Regeln in Bezug auf den jederzeit möglichen Bedarf nach einer ärztlichen Behandlung kennzeichnet den Verfolgungscharakter dieser Form von Repression. Der zusätzlichen Betroffenheit etwa infolge fehlender Mittel zum Unterhalt oder durch das Fehlen männlicher Angehöriger, um sich „ausführen“ lassen zu können oder Lebensmittel ins Haus zu bringen, bedarf es dazu nicht mehr. Erreichen die diskriminierenden Regeln selbst die asylrechtlich erforderliche Verfolgungsintensität, so kommt es auch auf zusätzliche Unverhältnismäßigkeiten im Falle des Zuwiderhandelns und mithin darauf, ob vom konkret betroffenen Asylwerber ein Zuwiderhandeln zu erwarten wäre, nicht an (vgl. u.a. in diesem Sinn etwa auch Haines, a.a.O., Absatz 34, und das von Pamela Goldberg und Karen Musalo erstattete, im Internet zugängliche Gutachten vom 11. August 1998 im Verfahren einer afghanischen Staatsangehörigen vor dem US Board of Immigration Appeals, Matter of N.Q. (auch: N.Z.); zur Verfolgung durch


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Kumulation diskriminierender Maßnahmen etwa die zuvor zitierte neuseeländische Entscheidung und das Arbeitspapier des UNHCR, Auslegung von Artikel 1 des Abkommens von 1951 über die Rechtsstellung der Flüchtlinge (2001), Absatz 17; aus der hg. Rechtsprechung zum Erfordernis einer „Gesamtschau“ nur beispielsweise das Erkenntnis vom 26. Juni 1996, Zl. 95/20/0423). Hätte sich die belangte Behörde in einer ganzheitlichen Würdigung der festgestellten Beeinträchtigungen der Frage gestellt, ob der Beschwerdeführerin unter dem Gesichtspunkt der von den Taliban gegen Frauen getroffenen Maßnahmen „Verfolgung“ drohte, so hätte die belangte Behörde daher zu einer anderen Beurteilung gelangen müssen. Der angefochtene Bescheid war schon aus diesem Grund gemäß § 42 Abs. 2 Z 1 VwGG wegen Rechtswidrigkeit seines Inhaltes aufzuheben.

VIII. Human Rights and fundamental freedoms/Menschenrechte und Grundfreiheiten See QQ.I.3.

IX.

Expropriation/Enteignung See also QQ.I.3.

Supreme Court, Decision 1 Ob 219/01i, dated 22 October 2001* Oberster Gerichtshof, Beschluss 1 Ob 219/01i vom 22. Oktober 2001 Soviet occupation after World War II—deportation—non-economic losses—Article 24 of the State Treaty of Vienna 1955—meaning of property—expropriation Sowjetische Besatzung nach dem 2. Weltkrieg—Verschleppung—immaterieller Schaden—Artikel 24 des Staatsvertrages von Wien 1955—Eigentumsbegriff— Enteignung Facts The plaintiff, an Austrian national, claimed from the Republic of Austria the award of compensation to be determined by the Court—but at least ATS 1 Mio. (approx. EUR 72.000) for a “quasi-expropriation”. He argued that he had been arrested by soldiers of the Soviet occupying forces on 6 November 1952 at the age of 20 and brought to the Soviet military prison in Baden near Vienna. There he had been “detained under inhuman conditions and subject to reprisals”. On 16 December 1952, the soviet military tribunal for the military formation 28.990, based on a provision of the Soviet criminal code, had sentenced him to 25 years imprisonment for espionage

* Summary and translation by Stephan Wittich.

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against the Soviet Union. Moreover his property which had been seized upon arrest was confiscated. Thereupon he was deported to various detention facilities in Lemberg (Lvov), Kiev and Moscow and, finally, transferred to a special prison of the USSR in Wladimir. There he was detained until his release on 25 June 1955. By acknowledgement of the Office of the Prosecutor General of the Russian Federation, dated 5 August 1997, he was rehabilitated according to section 3 of the Russian Law on the Rehabilitation of Victims of Political Repression (18 October 1991). He further argued that the respondent, the Republic of Austria, had waived all claims on behalf of Austrian nationals against the Allies pursuant to Article 24 of the State Treaty of Vienna 1955.4

4

State Treaty for the Re-establishment of an Independent and Democratic Austria, signed in Vienna on 15 May 1955. Art. 24 reads as follows: Renunciation by Austria of Claims against the Allies 1. Austria waives all claims of any description against the Allied and Associated Powers on behalf of the Austrian Government or Austrian nationals arising directly out of the war in Europe after 1st September, 1939, or out of actions taken because of the existence of a state of war in Europe after that date whether or not such Allied or Associated Power was at war with Germany at the time. This renunciation of claims includes the following: (a) Claims for losses or damages sustained as a consequence of acts of armed forces or authorities of Allied or Associated Powers; (b) Claims arising from the presence, operations or actions of armed forces or authorities of Allied or Associated Powers in Austrian territory; (c) Claims with respect to the decrees or orders of Prize Courts of Allied or Associated Powers, Austria agreeing to accept as valid and binding all decrees and orders of such Prize Courts on or after 1st September, 1939 concerning ships or goods belonging to Austrian nationals or concerning the payment of costs; (d) Claims arising out of the exercise or purported exercise of belligerent rights. 2. The provisions of this Article shall bar, completely and finally, all claims of the nature referred to herein, which shall henceforward be extinguished, whoever may be the parties in interest. The Austrian Government agrees to make equitable compensation in schillings to persons who furnished supplies or services on requisition to the forces of Allied or Associated Powers in Austrian territory and in satisfaction of noncombat damage claims against the forces of the Allied or Associated Powers arising in Austrian territory. 3. Austria likewise waives all claims of the nature covered by paragraph 1 of this Article on behalf of the Austrian Government or Austrian nationals against any of the United Nations whose diplomatic relations with Germany were broken off between 1st September, 1939 and 1st January, 1945, and which took action in cooperation with the Allied and Associated Powers.


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However, “due to this provision amounting to expropriation” he had suffered harm for which Austria was responsible in the same way as was the Russian Federation as the successor state of the USSR. He had been deprived of his liberty for 962 days after his displacement under inhuman conditions, which would justify damages in the amount of at least ATS 1 Mio. He reserved his right for claiming a higher amount of damages as well as for raising “other claims”. The Republic of Austria as respondent submitted that the claim lacked any legal basis whatsoever. The court of first instance rejected the claim. According to its view, the claim raised by the plaintiff fell under the waiver of Article 24 of the State Treaty 1955. Pursuant to Article 24, Austria had enacted the “Act Concerning Losses Arising out of the Occupation”5 in 1958 to comply with its obligation to provide compensation according to Article 24(2); this law, however, does not cover non-pecuniary losses or moral injuries. The Court of Appeal rejected the appeal for procedural reasons. The Supreme Court held: 3. From the perspective of the Constitution [in particular Article 5 of the Constitutional Law on the Fundamental Rights of Citizens of 18676], the term “property” has a broad meaning. According to constant jurisprudence, it covers every form of asset which is subject to private law […]. It also includes specific interests which may be assessable in economic terms […]. Thus not only real rights in rem (Rechte an körperlichen Sachen) or ownership are covered by Article 5 of the Constitutional Law of 1867 but also other rights, such as intellectual property rights, rights of tenancy or lease, rights of fishery […], or rights out of a sales contract […]. Rights under public law characterised by a duty of consideration quid pro quo by the person entitled to the right are covered by Article 1 of Additional Protocol No. 1 to the European Convention on Human Rights […]. Such a broad understanding

4. The Government of Austria shall assume full responsibility for Allied military currency of denominations of five schillings and under issued in Austria by the Allied Military Authorities, including all such currency in circulation at the coming into force of the present Treaty. Notes issued by the Allied Military Authorities of denominations higher than five schillings shall be destroyed and no claims may be made in this connection against any of the Allied or Associated Powers. 5. The wavier of claims by Austria under paragraph 1 of this Article including any claims arising out of actions taken by any of the Allied or Associated Powers with respect to ships belonging to Austrian nationals between 1st September, 1939 and the coming into force of the present Treaty as well as any claims and debts arising out of the Conventions on prisoners of war now in force. 5

Besatzungsschädengesetz, Federal Law Gazette (BGBl) 126/1958.

6

Staatsgrundgesetz 1867. Art. 5 provides that property is inviolable and expropriation against the will of the owner is only permitted in the cases and circumstances as provided by the law.

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of property was already assumed by the judgment of this Court in 3 Ob 500/60 […] in view of the waiver of claims by the Republic of Austria pursuant to Article 24 of the State Treaty 1955, this waiver being a variant to a direct expropriation by the legislature (Legalenteignung). 3.1. Against the background of this legal situation, the protection of property extends also to economically assessable claims (vermögensrechtliche Ansprüche) which aim at compensating non-patrimonial damage by the payment of damages. If the waiver by the Republic of Austria according to Article 24 of the State Treaty also concerned claims of Austrian nationals against the Soviet Union or its legal successor, respectively, […] for non-economic losses and if the claimant were entitled to such a claim of damages against the successor State of the Soviet Union were it not for the waiver in the State Treaty, then this waiver would constitute a direct expropriation by the legislative (Legalenteignung) since the State Treaty has been incorporated into the Austrian legal order by way of general transformation. 4. […] 4.1. The judgment of this Court 3 Ob 500/60, reference to which has already been made and which concerned a lawsuit for a claim for damages as a result of expropriation based on the waiver of the Republic of Austria pursuant to Article 24 of the 1955 State Treaty, affirmed the judgments of the lower courts which dismissed the claim on the ground that the State Treaty itself did not provide for compensation and that as yet no specific compensation law [for expropriations under the State Treaty] had been enacted. […] In its judgment 3 Ob 183/58 the Court held that “for an individual Austrian national” Article 27(2) of the State Treaty7 forms the direct basis of a claim of compensation against the Republic of

7

Article 27(2) reads as follows: Austrian Property in the Territory of the Allied and Associated Powers 1. The Allied and Associated Powers declare their intention to return Austrian property, rights and interests as they now exist in their territories or the proceeds arising out of the liquidation, disposal or realization of such property, rights or interests, subject to accrued taxes, expenses of administration, creditor claims and other like charges, where such property, rights or interests have been liquidated, disposed of or otherwise realized. The Allied and Associated Powers will be prepared to conclude agreements with the Austrian Government for this purpose. 2. Notwithstanding the foregoing provisions, the Federal Peoples’ Republic of Yugoslavia shall have the right to seize, retain or liquidate Austrian property, rights and interests within Yugoslav territory on the coming into force of the present Treaty. The Government of Austria undertakes to compensate Austrian nationals whose property is taken under this paragraph.


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Austria. [Furthermore, the Court has emphasised in other cases] that Article 24(2) of the 1955 State Treaty—contrary to Article 27—explicitly provides for “equitable compensation” only. Hence it follows already from Article 24(2) that the Republic of Austria has to pay compensation for those claims which are covered by Article 24(1) of the 1955 State Treaty […] § 1(2) of the Act Concerning Damage Arising out the Occupation8 (Federal Law Gazette 126/1958) defines “noncombat damage” [within the meaning of Article 24(2) of the State Treaty] as “deprivation, loss, destruction of or damage to a tangible thing or object” (körperliche Sache) which were “caused by the military forces or authorities of the Allied or Associated Powers in Austria or their individual members between 11 September 1945 and their pulling out from Austrian federal territory”. It did not envisage the compensation for non-pecuniary losses or moral injury caused by acts of the occupying powers so that the only question to be addressed is as to whether Article 24(2) of the 1955 State Treaty may serve as a direct cause of action for the claim of compensation—and if so to what extent.

The Supreme Court referred the case back to the Court of Appeal for a decision on the merits but it was again seized with this case. The judgment is reproduced at infra QQ.I.3. German original: Der Antragsteller—ein österreichischer Staatsbürger—begehrte den Zuspruch eines „vom Gericht zu ermittelnden Entschädigungsbetrags“ von zumindest 1 Mio S wegen einer „(Quasi)Enteignung“. Er brachte vor, er sei am 6. 11. 1952 im Alter von zwanzig Jahren von Soldaten der sowjetischen Besatzungsmacht verhaftet und in das sowjetische Militärgefängnis in Baden bei Wien verbracht worden. Dort sei er „unter unmenschlichen Bedingungen inhaftiert und schweren Repressalien ausgesetzt“ gewesen. Am 16. 12. 1952 habe ihn das Militärtribunal des Truppenteils 28.990— gestützt auf eine Bestimmung des sowjetischen Strafgesetzes—wegen Spionage gegen die Sowjetunion zu einer Freiheitsstrafe von 25 Jahren verurteilt. Überdies sei sein anlässlich der Verhaftung beschlagnahmtes Eigentum konfisziert worden. Danach sei er verschleppt und—nach Anhaltungen in den Schublagern von Lemberg, Kiev und Moskau—in ein Spezialgefängnis der UdSSR in Wladimir überstellt worden. Dort sei er bis zu seiner Befreiung am 25. 6. 1955 festgehalten worden. Mit Bestätigung der Generalstaatsanwaltschaft der Russischen Föderation vom 5. 8. 1997 sei er nach § 3 deren Gesetzes vom 18. 10. 1991 über die Rehabilitierung von Opfern politischer Repression rehabilitiert worden. Die Antragsgegnerin habe gemäß Artikel 24 StV

8

Besatzungsschädengesetz, supra note 5.

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1955 im Namen aller österreichischen Staatsangehörigen auf Ansprüche gegen die Alliierten verzichtet. Die Republik Österreich sei jedoch „wegen dieser, einer Enteignung gleichkommenden Vorgangsweise“ für die ihm „(durch die UdSSR als Rechtsvorgänger[in] der heutigen Russischen Föderation) zugefügten Nachteile unmittelbar und im selben Ausmaß verantwortlich, wie es die Russische Föderation wäre“. Er sei ab seiner Verschleppung 962 Tage seiner Freiheit unter unmenschlichen Bedingungen unrechtmäßig beraubt gewesen. Dafür sei ein Ersatzbetrag von zumindest 1 Mio S angemessen. Die Geltendmachung eines höheren Betrags und „sonstiger Ansprüche“ bleibe vorbehalten. Die Antragsgegnerin wendete in Zusammenfassung ihrer Rechtsausführungen ein, dass es für den geltend gemachten Anspruch „keine wie auch immer geartete Rechtsgrundlage“ gebe. Das Erstgericht wies den Entschädigungsantrag ab. Nach dessen Ansicht verzichtete die Antragsgegnerin gemäß Artikel 24 StV 1955 (auch) auf alle Ansprüche österreichischer Staatsangehöriger, die auf das Verhalten der Besatzungsmächte hätten gestützt werden können. Dieser Verzicht beziehe sich auch auf den vom Antragsteller geltend gemachten Anspruch. Die Antragsgegnerin habe sich nach Artikel 24 StV 1955 allerdings zur Gewährung von Entschädigungen an Personen verpflichtet, denen Ansprüche aus Nichtkampfschäden gegen die Besatzungsmächte zugestanden wären. Deshalb sei das Besatzungsschädengesetz, BGBl 1958/126, erlassen worden. Dieses sehe jedoch einen immateriellen Schadenersatz nicht vor. […] 2. 1. Der Antragsteller begehrt den Ersatz immateriellen Schadens und stützt diesen Anspruch darauf, dass er von der seinerzeitigen sowjetischen Besatzungsmacht rechtswidrig verhaftet, zu einer langjährigen Freiheitsstrafe verurteilt und in die damalige Sowjetunion verschleppt worden sei. Er habe rechtswidrigen Freiheitsentzug unter unmenschlichen Bedingungen durch insgesamt 962 Tage erduldet. Die Antragsgegnerin habe gemäß Artikel 24 StV 1955 auch im Namen der österreichischen Staatsangehörigen auf alle Ansprüche gegen die Alliierten aus deren Handlungen als Besatzungsmächte verzichtet, sodass ihm der geltend gemachte Anspruch nicht mehr gegen die völkerrechtliche Rechtsnachfolgerin der Sowjetunion, sondern gegen den Bund zustehe, sei er doch infolge des im Staatsvertrag von Wien paktierten Verzichts gleichsam enteignet worden. Die voranstehenden Umstände sind—nach den unter 2. erläuterten Beurteilungsgrundlagen—den weiteren Erwägungen zugrunde zu legen. Soweit daher der Antragsteller und die Antragsgegnerin materiellrechtliche Gründe für das Bestehen bzw Nichtbestehen des geltend gemachten Anspruchs ins Treffen führen, ist darauf nicht einzugehen. Zu klären ist vielmehr nur, in welcher Verfahrensart über den behaupteten Anspruch abzusprechen ist. 3. Der verfassungsrechtliche Eigentumsbegriff wird seit jeher weit verstanden. Er umfasst nach ständiger Rechtsprechung jedes vermögenswerte Privatrecht (Mayer, B-VG2 Artikel 5 StGG II.1.; Öhlinger, Verfassungsrecht Rz 868; Walter/Mayer,


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Grundriss9 Rz 1370 je mN aus der Rsp). Dazu gehören auch konkrete vermögenswerte Interessen (Mayer, B-VG2 Artikel 5 StGG II.2 mN aus der Rsp). Dem Eigentumsschutz gemäß Artikel 5 StGG unterliegen somit nicht nur Rechte an körperlichen Sachen, sondern er erfasst auch andere Rechte wie etwa Immaterialgüterrechte, Miet-, Pachtoder Fischereirechte (Mayer aaO; Öhlinger aaO; Walter/Mayer aaO) oder die Rechte aus einem Kaufvertrag (Mayer aaO; Walter/Mayer aaO). Öffentlich-rechtliche Ansprüche, denen eine Gegenleistungspflicht des Anspruchsberechtigten gegenübersteht, werden vom Eigentumsschutz des Artikel 1 1.ZProtMRK erfasst (Öhlinger aaO Rz 869; Walter/Mayer aaO Rz 1370 f). Ein solches weites Verständnis des Eigentumsschutzes liegt bereits der Entscheidung 3 Ob 500/60 (= JBl 1962, 260) in Ansehung des Verzichts der Republik Österreich nach Artikel 23 StV 1955 als Variante einer Legalenteignung zugrunde. 3.1. Vor dem Hintergrund der soeben erläuterten Rechtsgrundlagen erstreckt sich der Eigentumsschutz auch auf vermögensrechtliche Ansprüche, die den Ausgleich immaterieller Schäden durch Geldleistungen bezwecken. Bezöge sich daher der Verzicht des Bundes gemäß Artikel 24 StV 1955 auch auf Ersatzansprüche österreichischer Staatsbürger gegen die Sowjetunion bzw deren Rechtsnachfolgerin (siehe zum Umfang des Verzichts JBl 1999, 670—kritisch Seidl-Hohenveldern, Schafft Plünderung Eigentum, IPRax 2000, 321) wegen immaterieller Schäden und stünde dem Antragsteller ein solcher Ersatzanspruch gegen die Rechtsnachfolgerin der Sowjetunion zu, wäre darauf im Staatsvertrag von Wien nicht verzichtet worden, so wäre in diesem Verzicht eine Legalenteignung des Antragstellers zu erblicken, ist doch dieser Staatsvertrag seit seiner generellen Transformation Teil der österreichischen Rechtsordnung (siehe zu diesem Staatsvertrag als Rechtsquelle SZ 33/15; JBl 1961, 27). 4. Nach der ständigen Rechtsprechung des Obersten Gerichtshofs zu § 1 AußStrG gehören Rechtssachen, die nicht entweder ausdrücklich oder doch wenigstens unzweifelhaft schlüssig ins Außerstreitverfahren verwiesen sind, auf den streitigen Rechtsweg (RZ 2001/14; MietSlg 50.280; SZ 60/18; SZ 54/129). Die erforderliche Abgrenzung wird insbesondere durch den inneren Zusammenhang des jeweils geltend gemachten Anspruchs mit einer entweder in die streitige oder in die außerstreitige Gerichtsbarkeit verwiesenen Materie bestimmt (RZ 2001/14; SZ 60/18). Insofern hat sich also die jüngere Rechtsprechung gegenüber der älteren, in der allein der Gesichtspunkt der ausdrücklichen gesetzlichen Verweisung einer Materie in das Verfahren außer Streitsachen dominierte (SZ 33/15; JBl 1961, 27), weiterentwickelt. 4.1. In der bereits zitierten Entscheidung 3 Ob 500/60 (= JBl 1962, 260), die einen mit Klage geltend gemachten und auf den Verzicht der Republik Österreich gemäß § 23 StV 1955 gestützten Schadenersatzanspruch (Enteignungsschaden) zum Gegenstand hatte, wurde die durch die Vorinstanzen ausgesprochene Klageabweisung mit dem Argument bestätigt, dass im Staatsvertrag von Wien selbst keine Entschädigung vorgesehen und (noch) kein besonderes Entschädigungsgesetz erlassen worden sei. Soweit Artikel 13 VEG und das Eisenbahnenteignungsgesetz auf Legal-

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enteignungen überhaupt anwendbar seien, setzte deren Anwendung voraus, dass „eine Entschädigungspflicht grundsätzlich“ bestehe. Mangels eines gesetzlichen Anspruchs „auf Schadloshaltung“ könne „aus diesen gesetzlichen Bestimmungen nichts gewonnen werden“. Die Grundsätze der Entscheidung 3 Ob 183/58 (= SZ 33/ 15) seien nicht anwendbar, weil sie sich auf einen Anspruch „sui generis“ bezögen und „überdies eine Verpflichtung zur Entschädigung im Staatsvertrag (von Wien) ausgesprochen“ worden sei. Dort war ausgesprochen worden, dass sich „für den einzelnen österreichischen Staatsbürger“ unmittelbar aus Artikel 27 Z 2 StV 1955 ein Ersatzanspruch gegen die Republik Österreich ergebe (ebenso 3 Ob 118/58 = JBl 1961, 27—kritisch dazu sowie zur Möglichkeit der Geltendmachung einer Entscheidungsentschädigung im streitigen Verfahren Winkler, Zur Frage der unmittelbaren Anwendbarkeit von Staatsverträgen, JBl 1961, 8, 14). Sowohl in der Entscheidung 3 Ob 183/58 (= SZ 33/15) als auch in der Entscheidung 3 Ob 118/58 (= JBl 1961, 27) wurde im Übrigen hervorgehoben, dass Artikel 24 Z 2 StV 1955 im Gegensatz zu dessen Artikel 27 ausdrücklich nur von einer „billigen Entschädigung“ für Geschädigte spreche. Dass die Republik Österreich eine Entschädigung für Ersatzansprüche, die deren Verzicht gemäß Artikel 24 Z 1 StV 1955 erfasste, zu leisten haben wird, ergibt sich also—wie bereits erwähnt—schon aus Artikel 24 Z 2 StV 1955, der folgenden Wortlaut hat: Die Bestimmungen dieses Artikels schließen vollständig und endgültig alle Ansprüche der hierin angeführten Natur aus, die von nun an erloschen sein sollen, welche Vertragsteile auch immer ein Interesse daran haben mögen. Die österreichische Regierung stimmt zu, eine billige Entschädigung in Schillingen den Personen zu leisten, die den Streitkräften der Alliierten oder Assoziierten Mächte im österreichischen Staatsgebiet auf Grund von Requisition Güter geliefert oder Dienste geleistet haben und ebenso eine Entschädigung zur Befriedigung von Ansprüchen aus Nichtkampfschäden gegen die Streitkräfte der Alliierten oder Assoziierten Mächte, die auf österreichischem Staatsgebiet entstanden sind.

In § 1 Abs 2 BesatzungsschädenG (BGBl 126/1958) wurden „Nichtkampfschäden“ hingegen bloß als solche Schäden definiert, die „durch Wegnahme, Verlust, Zerstörung oder Beschädigung einer körperlichen Sache“, die „von den Streitkräften oder Dienstellen der Alliierten oder Assoziierten Mächte in Österreich oder deren Angehörigen in der Zeit vom 11. September 1945 bis zur Räumung des österreichischen Bundesgebietes“ verursacht wurden. Die Abgeltung immaterieller Schäden als Folge von Handlungen der Besatzungsmächte wurde dort nicht vorgesehen, sodass sich nur die Frage stellen kann, ob und—bejahendenfalls—wie weit Artikel 24 Z 2 StV 1955 dem geltend gemachten Entschädigungsanspruch als unmittelbare Anspruchsgrundlage dienen kann.


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MM.International responsibility/Völkerrechtliche Verantwortlichkeit II.

General issues of responsibility/Allgemeines zur völkerrechtlichen Verantwortlichkeit

4.

Consequences of responsibility/Folgen der völkerrechtlichen Verantwortlichkeit See QQ.I.3.

QQ. The law of armed conflict and international humanitarian law/ Recht des bewaffneten Konfliktes und internationales humanitäres Recht I.

International armed conflict/Der internationale bewaffnete Konflikt

3.

Reparations/Reparationen

Supreme Court, Decision 1 Ob 149/02x, dated 30 September 2002* Oberster Gerichtshof, Beschluss 1 Ob 149/02x vom 22. September 2002 Waiver of claims by state and effect on nationals—compensation for injuries suffered to nationals by acts iure imperii of occupying state—claims of individuals directly under international treaty—equitable compensation—state succession and state responsibility—amount of damages for equitable compensation—inequitable application of statute of limitation Anspruchsverzicht des Staates und Auswirkung auf Staatsangehörige—Entschädigung für Schäden an Einzelpersonen durch Akte iure imperii der Besatzungsmacht— Ansprüche von Einzelpersonen unmittelbar aufgrund völkerrechtlichen Vertrages— billige Entschädigung—Staatennachfolge und Staatenverantwortlichkeit—Höhe des Schadenersatzes bei billiger Entschädigung—unangemessene Anwendung von Verjährungsfristen Facts The facts underlying this decision are identical to those of the case presented above (FF.IX). On the merits the Court of Appeal held that according to the Supreme Court it was beyond doubt that the waiver of claims by the Republic of Austria under Article

* Summary and translation by Stephan Wittich.

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24(1) of the 1955 State Treaty had direct negative effects to the detriment of the plaintiff. The Court of Appeal held: It must be examined whether the plaintiff could have successfully raised a claim for damages against the Soviet Union on the basis of the latter’s measures as an occupying power in Austria, had the Republic of Austria not waived its claims. If this is answered in the affirmative, the further question must be adressed whether the Russian Federation is to be considered a successor in rights to the Soviet Union and as such could be sued for conduct of its predecessor. The dissolution of the Soviet Union is to be considered as a dismembratio since the Soviet Union as subject of international law has disappeared and its territory was divided between several successor states recognised by Austria. According to customary international law state property and debts are to be distributed pursuant to the principle of equity. According to Article 35 of the Vienna Convention on State Succession in Respect of Property, Archives and Debts of 1983, the successor states have to take over an equitable share of the state debts. In this context it is immaterial for the examination of the claim raised to what extent the Russian Federation is a legal successor of the Soviet Union, since obligations of reparation are “personal” obligations of the predecessor state which according to a principle of Roman law (actio personalis moritur cum persona) are not transferred to the successor. Accordingly, an alleged claim of the plaintiff to reparation against the Soviet Union could not by itself have passed on to the Russian Federation. Such a claim against the Russian Federation would rather require a specific basis in the legal order of the Russian Federation as a source of an original claim for compensation (originärer Ersatzanspruch). Such a basis could be the acknowledgment of the Office of the Prosecutor General of the Russian Federation, verifying the rehabilitation of the plaintiff, or in the law of the Russian Federation on the Rehabilitation of Victims of Political Repression, dated 18 October 1991, or in another legal provision. Hence in principle it must be distinguished whether the plaintiff could have raised the alleged claim—in the absence of the waiver by the Republic of Austria—already against the Soviet Union, or only against the Russian Federation. If a claim for reparation arose only by a legal act of the Russian Federation, the effects of the waiver by the Republic of Austria under Article 24(1) of the 1955 State Treaty would continue to the detriment of the plaintiff so long as the Russian Federation does not grant such a claim in a manner explicitly independent from the waiver. This holds also true for the case that the Russian Federation has at least implicitly incurred the obligation to reparation as a partial legal successor to the Soviet Union, an obligation it does not have under general international law. Whether the respondent because of its waiver pursuant to Article 24(1) of the 1955 State Treaty is liable towards the plaintiff in accordance with the criteria relevant for interference amounting to an expropriation, depends on whether the plaintiff would be required to make a “special sacrifice” (Sonderopfer). According to the view of the Constitutional Court an individual or a small group of persons may be required to


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make such a special sacrifice in the public interest provided that they are compensated. In the present case, however, there is no general provision on compensation entailing the duty to balance the interests at stake. […] In the present case it must be assumed that Article 24 of the 1955 State Treaty has created a categorisation of persons in violation of the principle of non-discrimination. A specific group of persons are entitled to claims due to the measures of the Allied and Associated Powers as occupying powers in Austria, whereas to a different group of persons such claims are denied. The latter group must thus make a specific sacrifice. This discriminative treatment is therefore only justified if such a sacrifice is compensated by indemnification. The amount of compensation depends on the provisions in force at the time of damage. The exception of prescription is not justified. The plaintiff has not raised a claim under the Act Concerning Damage Arising out the Occupation. 9 If the plaintiff had been entitled to a claim for reparation against the Soviet Union pursuant to the laws of the Soviet Union it would have been necessary to take account of the legal practice of the Soviet Union in examining the claim and to clarify in how far such litigation would have been manifestly futile. Only once the plaintiff could have raised a claim against the Soviet Union with prospect of success and provided that the respondent had not waived such claims, would the statute of limitations with regard to the claim for compensation be of relevance. […] Whatever the case may be, it must be assumed that the plaintiff who had been convicted for espionage against the Soviet Union and the Russian Federation, respectively, did not have any legal opportunity until his rehabilitation to promisingly raise a claim for compensation against the Soviet Union, and in any event he did not have a factual opportunity to do so.

The Court of Appeal did not render a judgment on the merits but referred the case back to the court of first instance. It however allowed for a further appeal to the Supreme Court since there was no established case law on the matter, in particular as regards the relationship between expropriation, state succession and prescription. For that reason the respondent filed an appeal with the Supreme Court. The Supreme Court held: 1. Individual claim based on Article 24(2) of the 1955 State Treaty: 1.1. [reference to its earlier decision 1 Ob 21901i10] The respondent disputes that the waiver in Article 24(1) has the legal character of an expropriation, since an expropriation always required “a transfer of title to

9

Besatzungsentschädigungsgesetz supra note 5.

10

See supra FF.IX.

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the state, a public corporation or a corporation of public utility; “a mere deprivation of property or depreciation in value without any transfer of title” did not suffice. In that respect it suffices to recall that this view contradicts the decision of the Court in the earlier stage of the proceedings to which must be adhered already for reasons of res iudicata within the same proceeding. 1.2. According to this earlier decision, Article 24(2) of the 1955 State Treaty furthermore provides that the Republic of Austria has to pay compensation for claims covered by the waiver pursuant to Article 24(1) of the 1955 State Treaty. […] […] Hence contrary to the opinion of the respondent, the question whether and to what extent Article 24 may theoretically include claims of a non-material nature has already been clarified. Nor is it required to address the question raised in the appeal whether the legislator may stipulate an expropriation without compensation or an interference with property rights in compliance with the constitutional law in force, since the waiver of the Republic under international law is in any event linked to an obligation to compensate. […] 1.3. The respondent takes the view that the purpose of Article 24 of the State Treaty of 1955 was “not only to regulate the relations [of the parties to that treaty] under international law but also claims under private law which had resulted from the diverse activities of the occupying powers”. According to the respondent, “there is however no connexion whatever of such occupation damages (Besatzungsschäden) with the criminal provisions of the USSR concerning espionage against the Soviet Union nor with convictions by Soviet courts based on these provisions, nor non-pecuniary losses of persons (unjustly) convicted”. Respondent substantiates this submission by reference to the decision of this Court in 7 Ob 68/ 99x. There, however, the Court stated that the waiver by the Republic of Austria encompasses all claims by Austrian nationals “of whatever kind against the Allied and Associated Powers” and is not confined to damage resulting from acts of the occupying powers iure imperii. It cannot seriously be doubted that the arrest of the plaintiff that took place in 1952 and his detention by the Soviet occupying power, his conviction by a military tribunal by the Soviet Union for espionage against the very same occupying power in Austria and his eventual deportation and imprisonment in the Soviet Union were acts iure imperii which have caused noncombatant damage that occurred on Austrian territory within the meaning of Article 24(2). In any event, by the waiver in the State Treaty of Vienna the occupying powers were exempted from any responsibility for damages arising from acts iure imperii, irrespective of whether their wrongfulness under international law already existed at the time of their commission or has come to light later. The Republic of Austria therefore has assumed an obligation under Article 24(2) to compensate losses of its nationals caused by wrongful measures iure imperii of the occupying powers. Insofar as Seidl-Hohenveldern criticises the


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judgement 7 Ob 68/99x as wrong in view of the relevant facts of that case („Schafft Plünderung Eigentum?“, IPRax (2000), 321; „Ausfuhrverbot und dessen Sicherung zu Lasten ‚erbeuteten‘ Eigentums“, IPRax (2001), 590), this may remain uncommented since this author too does not doubt that the saving clause in any case concerns acts of the occupying powers iure imperii. Hence, in sum, the waiver of the Republic of Austria as well as the obligation to compensate thus assumed by the Republic extend also to losses which were inflicted upon Austrian nationals by measures iure imperii of the occupying powers, but which in fact were motivated by considerations of political repression and by reasons of political retribution— probably for National Socialist injustice—to the detriment of innocent persons. Such an internationally wrongful act of the Soviet Union as an occupying power would exist if the plaintiff—as he submits—was rehabilitated by acknowledgment of the Office of the Prosecutor General of the Russian Federation, dated 5 August 1997 and according to § 3 of the Law on the Rehabilitation of Victims of Political Repression of 18 October 1991. In light of these considerations too the success or failure of the claim for compensation raised by the plaintiff depends on the answer to the question whether the plaintiff may base the alleged duty to compensate directly on Article 24(2) of the 1955 State Treaty. 1.4. In its judgment B 270/61, dated 19 June 1962, the Constitutional Court held that it follows from the context of Article 24(2) that the term “compensation” in the second phrase had the same meaning as the previously used term “equitable compensation”; on the other hand, it was irrelevant whether with this wording full compensation was agreed upon. In its judgment B 207/62, dated 27 June 1963, the Constitutional Court emphasised without giving any reason that Article 24(2) did not grant at all a subjective right to compensation. Already due to the lack of any reasoning, this view is not convincing. Hence the question must be addressed whether Article 24(2) is a suitable cause of action for individual claims of Austrian nationals against the Republic of Austria, since, as already demonstrated, her waiver in the State Treaty of Vienna also covers claims based on losses suffered by the illegal conduct of organs of the occupying powers and which Austrian nationals could have successfully raised against such a power (or its legal successor, respectively), were it not for the fact that such claims were divested by the waiver of the Republic. 1.5. According to a view already expressed by the Supreme Court in earlier cases (2 Ob 730/55), it follows from the wording of Article 24(2) that a direct claim of a person concerned against the Republic of Austria cannot be substantiated […]. The reason for this view was that it would have been necessary to enact a law implementing Article 24(2) containing specific principles and guidelines according to which equitable compensation has to be paid; otherwise it may happen that the Republic is incapable of fulfilling the entirety of claims of the persons having suffered losses. In contrast, it follows from Article 27(2) of the 1955 State Treaty that an individual Austrian national may raise a direct claim against the

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Republic of Austria (3 Ob 183/58). Both in its decision 3 Ob 183/58 and 3 Ob 118/ 58 the Court emphasised that, contrary to Article 27, Article 24(2) explicitly mentions only “equitable compensation” for victims. This difference alone was taken to justify the denial of individual claims of Austrian nationals under Article 24(2). This is not convincing: The wording of the two provisions does not indicate a very important difference as to the question of the duty to compensate […]. Besides, the courts may well assume the task to assess an “equitable compensation” […], the more so as in doing so account has to be taken of the interests of all persons concerned. What may be equitable in different individual cases cannot be described in a general way in an implementing law. A payment of damages does not necessarily qualify as an “equitable compensation” only because the legislator considers it sufficient in specific circumstances. The payment of a sum of compensation will only be equitable if, on the basis of the fundamental principles of the entire legal system, the community of persons subject to the law consider it as just in the circumstances of the individual case. To meet this requirement in an individual case is a task which the legislator has vested in the courts in various areas of exercising authority because the standard of equity is different in different cases and cannot be defined within an abstract corset of generalising legal norms. […] The mere ascertainment of lack of determinacy of the term “equitable compensation” in Article 24(2), can therefore not prevent that provision from forming a basis of claims by individuals. 1.7. Since all the considerations made so far do not reveal convincing reasons that would support a fundamental difference between the two provisions on compensation, i.e. Article 24(2) and Article 27(2) according to their wording, Article 24 must be considered a suitable basis for direct claims of compensation of individuals against the State. This holds in particular true for the waiver of compensation of claims which would have been vested in persons having been wilfully deprived of their personal liberty by an act of political repression attributable to an occupying power and which could have been raised by these persons against that occupying power or its legal successor, respectively, were it not the case that the Republic of Austria has waived such claims to the detriment of the persons concerned. To date there is no appropriate law implementing the invocation of such claims for compensation. Therefore, the legislator, having incorporated the State Treaty of 1955 into the Austrian legal order by way of general transformation, must have had the intention to establish a directly applicable cause of action for individual claims based on arbitrary interference of the occupying powers in the fundamental right of the liberty of the person for it cannot be assumed that by enacting the Act Concerning Losses Arising out of the Occupation the legislator intended to create a specific framework of compensation for certain losses, but did not intend to provide any compensation at all for an arbitrary interference with the liberty of the person by an act of political repression. The legislator, obviously motivated by the accurate consideration that an arbitrary


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interference in the fundamental right of liberty of the person clearly outweighs mere damage to tangible things, did not deem it necessary to strictly limit such claims by a specific implementing law for purely financial reasons as was the case with the Act concerning Losses Arising out of the Occupation in relation to compensation of damage to tangible property. After all, an injured person can claim compensation from the Republic only to such an extent as that the legal order of the responsible occupying power or its legal successor would have provided in the absence of the waiver under international law as contained in the State Treaty of Vienna. The limitation of the compensation claim thus is determined by a foreign legal order. Only in case that this would result in exorbitant or almost prohibitive amounts of damages could a reduction of such amounts be considered in conformity with equitable principles. In view of such considerations too, there was no need for an implementing law with regard to these claims to compensation since, as already indicated, the courts are best equipped to assess the amounts by which the damages need to be reduced according to equitable principles and the circumstances of the particular case. By way of summary the following results of the considerations made so far may be recalled: Austrians who have suffered from acts of repression by the occupying powers in violation of international law which resulted in an arbitrary deprivation of the liberty of the person, may directly invoke Article 24(2) of the 1955 State Treaty as a basis for compensation claims against the Republic of Austria to which they would have been entitled against an occupying power in the absence of the agreed waiver in Article 24. 2. Compensation claims and state succession 2.1. According to the rules of international law, there is no state succession into personal rights and obligations (Seidl-Hohenveldern in Neuhold/Hummer/Schreuer, Österreichisches Handbuch des Völkerrechts, para. 1409f). Hence when a state ceases to exist this extinguishes also its international responsibility for any wrongfulness committed. However, the Russian Federation declared to continue the legal personality of the Soviet Union which was accepted by the community of states including Austria (Seidl-Hohenveldern, ibid., at para. 827). The question whether this constituted a case of state succession or of continuity need not be examined in the present context since the plaintiff bases his claim for compensation solely on the contention that, due to the waiver of claims in Article 24 of the State Treaty—which was also agreed upon with the Soviet Union—he cannot enforce his claim which he would have obviously had against the Russian Federation pursuant to the Act on Rehabilitation of Victims of Political Repression of 18 October 1991. Neither plaintiff nor respondent have maintained that a person who has been convicted in a non-appealable sentence by a military tribunal of the Soviet occupying power for espionage against the Soviet Union to 25 years of imprisonment, would have had any realistic opportunity according to the legal practice of the Soviet Union to enforce against the Soviet Union his rehabilitation as a victim of political repression and hence a claim for compensation because of arbitrary

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deprivation of the right to liberty of the person. This issue therefore does not need further scrutiny in the further stage of the proceedings. Since the Republic of Austria recognised that the Russian Federation continued the legal personality of the Soviet Union it also recognised that the Russian Federation as a party to the State Treaty of Vienna. As a consequence, the waiver of claims as agreed upon in Article 24 of the State Treaty now applies to claims which the plaintiff would have been entitled to against the Russian Federation were it not for the waiver. 2.2. The respondent objected already in the proceedings before the of first instance court that the alleged claim for compensation of the plaintiff against the Russian Federation pursuant to the (Russian) Act on Rehabilitation of Victims of Political Repression of 18 October 1991 had not been affected by the waiver in Article 24 of the State Treaty. In the appeal, the respondent advanced against the plaintiff that he did not even maintain to have raised such a claim for compensation against the Russian Federation. Such a claim was now precluded since it had not been raised against the Russian Federation within three years as of service of process of the decree on rehabilitation. This reasoning is only relevant if the respondent proves beforehand that Austrian nationals who have been injured by internationally wrongful conduct of the Soviet Union as occupying power in Austria are not excluded from claims to compensation according to the (Russian) Act on Rehabilitation of Victims of Political Repression of 18 October 1991. Contrary to the view held by the respondent, this cannot be proved simply by referring to Article 15 of this Act which in a general way sets forth the category of those entitled to claims. Rather the respondent would be required to invoke an explicit provision in this Act or any other law of the Russian Federation which provides that the waiver in the State Treaty of Vienna does not affect these specific claims for compensation. In the absence of such an explicit legal provision in the legal order of the Russian Federation the respondent could substantiate its submissions by an appropriate documentary declaration of the Russian Federation. Without such evidence it is to be presumed in the further stage of the proceedings that the agreed waiver in Article 24 of the State Treaty also applies to claims for compensation according to the Act on Rehabilitation of Victims of Political Repression of 18 October 1991 so that the plaintiff could not have successfully raised his claim for compensation against the Russian Federation. 3. Amount of damages The respondent argues that on the basis of the rates pursuant to the Act on Rehabilitation of Victims of Political Repression of 18 October 1991 the plaintiff would only be entitled to compensation against the Russian Federation for the personal and moral injury suffered by him by the illegal deprivation of liberty in the amount of less than USD 96. The plaintiff replied that since the illegal conduct had already started in Austria the Austrian legal concepts of value and interests have to be applied alternatively. The plaintiff however does not point to any fact


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or argument which would form the basis for a compensation claim against the Republic of Austria which would exceed that to which he were entitled against the Russian Federation the Act on Rehabilitation of Victims of Political Repression of 18 October 1991 in the absence of the waiver of claims in Article 24. The fact that the wrongful interference by the Soviet Union in the legal position of the plaintiff had commenced in Austria is immaterial for the assessment of thecompensation claim against the Republic of Austria. After all, the infliction of damage upon the plaintiff was not committed by any wrongful conduct of organs of the Austrian state. The Republic is only liable for a claim which it had waived in its relation with the Soviet Union, or now the Russian Federation, this waiver being to the detriment (also) of the plaintiff. The plaintiff cannot obtain from the Republic of Austria more than he would get from the Russian Federation.

With regard to the statute of limitation raised by the respondent, the Court held: 4.2. By enacting the Federal Law on the Establishment of a General Settlement Fund for Victims of National Socialism and on Restitution Measures (General Settlement Fund Law), Federal Law Gazette I 2001/12,11 the Republic of Austria has established a high standard in terms of compensation issues for injustice suffered for political reasons. According to its § 1, the purpose of this law is “to comprehensively resolve open questions of compensation of victims of National Socialism for losses and damages as a result of or in connection with events having occurred on the territory of the present-day Republic of Austria during the National Socialist era”. According to § 1(2) the fund so established has the purpose of “acknowledge[ing], through voluntary payments, the moral responsibility for losses and damages inflicted upon Jewish citizens and other victims of National Socialism as a result of or in connection with the National Socialist Regime”. Hence, as § 7 recalls, “[t]here shall be no legal right to these payments”. By this law, the Republic of Austria has expressed in legally binding provisions what morality and equity require in the context of settling questions of compensation. In that respect therefore, the signalling effect of this law extends over the instant subject-matter. It shows that it would be inappropriate to successfully cut off claims for compensation by victims of political persecution by arguing a statute of limitation since the application had been filed only a few weeks too late. Against this background it would be contrary to equity in the field of compensation to argue that the claim of an Austrian national was statute-barred because he filed his application probably two months after the time-limit had been elapsed, given

11

Bundesgesetz über die Einrichtung eines Allgemeinen Entschädigungsfonds für die Opfer des Nationalsozialismus und über Restitutionsmaßnahmen, BGBl I 2001/12. A full translation of the Austrian measures for victims of National Socialism will be published in the forthcoming volume 8 of the Austrian Review of International and European Law.

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the fact that the lawsuit not only concerns a moral obligation—comparable to the motivations of the General Settlement Fund Law—but also a legal obligation to compensation under Article 24(2) of the 1955 State Treaty because the plaintiff has suffered from an act of political repression by a former occupying power which have caused him to endure years of detention in a Soviet penal camp under inhuman conditions, and the more so as this claim according to the respondent only amounts to less than USD 96. The argument of the respondent on the statute of limitations is therefore inadequate to substantiate a dismissal of the claim in the further stage of the proceedings.

The case was referred to the court of first instance for a decision on the merits. German original: Das Erstgericht wies den Entschädigungsantrag ab. Nach dessen Ansicht verzichtete die Antragsgegnerin gemäß Art 24 StV 1955 (auch) auf alle Ansprüche österreichischer Staatsangehöriger, die auf das Verhalten der Besatzungsmächte hätten gestützt werden können. Dieser Verzicht beziehe sich auch auf den vom Antragsteller geltend gemachten Anspruch. Die Antragsgegnerin habe sich nach Art 24 StV 1955 allerdings zur Gewährung von Entschädigungen an Personen verpflichtet, denen Ansprüche aus Nichtkampfschäden gegen die Besatzungsmächte zugestanden wären. Deshalb sei das Besatzungsschädengesetz, BGBl 1958/126, erlassen worden. Dieses sehe jedoch einen immateriellen Schadenersatz nicht vor. Das Rekursgericht hob diesen Beschluss auf. Es verwies die Rechtssache zur Ergänzung des Verfahrens und neuerlichen Entscheidung an das Erstgericht zurück und sprach aus, dass der Rekurs an den Obersten Gerichtshof zulässig sei. Nach dessen Erwägungen ist nicht zweifelhaft, dass der Verzicht der Antragsgegnerin nach Art 24 Z 1 StV 1955 unmittelbar zu Lasten des Antragstellers gewirkt habe. Zu prüfen sei, ob dieser ohne den Verzicht der Antragsgegnerin einen Ersatzanspruch gegen die Sowjetunion aufgrund deren Maßnahmen als Besatzungsmacht in Österreich erfolgreich hätte geltend machen können. Bei Bejahung dessen bedürfe es keiner Klärung, ob die Russische Föderation Rechtsnachfolgerin der Sowjetunion und als solche für einen derartigen Ersatzanspruch passiv legitimiert wäre. Der Zerfall der Sowjetunion sei völkerrechtlich als dismembratio zu beurteilen, sei doch das Völkerrechtssubjekt Sowjetunion untergegangen und deren Territorium auf mehrere, von Österreich anerkannte Nachfolgestaaten aufgeteilt worden. Nach Völkergewohnheitsrecht sei das Staatsvermögen samt den Schulden nach dem Grundsatz der „equity” aufzuteilen. Nach Artikel 35 der Wiener Konvention über die Staatennachfolge in Staatsvermögen, -archive und -schulden 1983 hätten die Nachfolgestaaten einen gerechten Anteil der Staatsschulden zu übernehmen. In diesem Kontext sei für die Beurteilung des geltend gemachten Anspruchs nicht von Bedeutung, inwieweit die Russische Föderation Rechtsnachfolgerin der Sowjetunion sei, weil Wiedergutmachungspflichten „höchstpersönliche des Gebietsvorgängers“ seien, die nach einem römisch-rechtlichen


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Grundsatz („actio personalis moritur cum persona“) nicht auf den Gebietsnachfolger übergingen. Danach habe ein allfälliger Wiedergutmachungsanspruch des Antragstellers gegen die Sowjetunion „nicht von selbst“ auf die Russische Föderation übergehen können. Ein solcher Anspruch gegen die Russische Föderation bedürfe vielmehr einer spezifischen Stütze in deren Rechtsordnung als Grundlage eines originären Ersatzanspruchs. Eine solche Stütze könnte in der die Rehabilitation des Antragstellers dokumentierenden Bestätigung der Generalstaatsanwaltschaft der Russischen Föderation oder in deren Gesetz über die Rehabilitierung von Opfern politischer Repression vom 18. 10. 1991 oder in einer anderen gesetzlichen Bestimmung liegen. Im Grundsätzlichen sei daher zu unterscheiden, ob der Antragsteller den behaupteten Anspruch ohne den Verzicht der Antragsgegnerin „bereits gegen die Sowjetunion oder erst (allenfalls auch erst) gegen die Russische Föderation“ hätte geltend machen können. Wäre ein Wiedergutmachungsanspruch erst durch einen Rechtsakt der Russischen Föderation entstanden, so wirkte sich der Verzicht der Antragsgegnerin nach Artikel 24 Z 1 StV 1955 solange zu Lasten des Antragstellers aus, als die Russische Föderation einen solchen Anspruch nicht „ausdrücklich unabhängig“ vom erörterten Verzicht gewähre. Das betreffe auch den Fall, dass die Russische Föderation insofern zumindest konkludent eine Wiedergutmachungspflicht als Teilrechtsnachfolgerin der Sowjetunion übernommen haben sollte, mit der sie nach allgemeinem Völkerrecht nicht belastet wäre. Ob die Antragsgegnerin dem Antragsteller wegen des Verzichts gemäß Artikel 24 Z 1 StV 1955 nach den für einen enteignungsgleichen Eingriff maßgebenden Kriterien dem Grunde nach hafte, sei danach zu beurteilen, ob letzterem durch die Haftungsverneinung ein Sonderopfer abverlangt würde. Nach Ansicht des Verfassungsgerichtshofs dürfe einem einzelnen, aber auch einer kleinen Personengruppe ein entschädigungspflichtiges Sonderopfer im Interesse der Allgemeinheit auferlegt werden. Es mangle allerdings an einer allgemeinen Entschädigungsregelung mit der Verpflichtung zur Interessenabwägung. Der Verfassungsgerichtshof habe allerdings in den sogenannten „Wohnsiedlungs-Erkenntnissen“ (VfSlg 7.234; VfSlg 6.884) die Normierung entschädigungsloser Abtretungsverpflichtungen, die bestimmte Personengruppen in völlig unterschiedlichem Ausmaß träfen, als Verletzung des Gleichheitssatzes beurteilt, wenn aus solchen Abtretungen alle in Betracht kommenden Personengruppen Vorteile zögen. Hier sei davon auszugehen, dass Artikel 24 StV 1955 eine „gleichheitswidrige Kategorisierung“ von Personen geschaffen habe. Einer Personengruppe seien „Ansprüche gegen die alliierten und assoziierten Mächte“ (gemeint offenkundig: wegen der Maßnahmen der alliierten und assoziierten Mächte als Besatzungsmächte in Österreich) zugebilligt worden, einer anderen Personengruppe seien solche Ansprüche dagegen verwehrt. Darin liege ein Sonderopfer der letzteren Gruppe. Diese unterschiedliche Behandlung sei daher sachlich nur dann gerechtfertigt, wenn ein solches Sonderopfer durch eine Entschädigung ausgeglichen werde. Die Höhe des Ersatzanspruchs richte sich nach den für den Schädigungszeitpunkt maßgebenden Bestimmungen. Die Verjährungseinrede sei nicht gerechtfertigt. Der Antragsteller habe keinen Anspruch nach dem

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Besatzungsschädengesetz geltend gemacht. Hätte ein Wieder-gutmachungsanspruch gegen die Sowjetunion nach deren Rechtsordnung an sich bestanden, so sei deren Rechtspraxis in den Prüfungsrahmen miteinzubeziehen und zu klären, „inwieweit ein derartiges Verfahren nicht offenbar“ aussichtslos gewesen wäre. Nur ab dem Zeitpunkt, ab dem der Antragsteller einen Wiedergutmachungsanspruch gegen die Sowjetunion mit Aussicht auf Erfolg hätte geltend machen können, hätte die Antragsgegnerin auf solche Ansprüche nicht verzichtet, käme eine Verjährung des Entschädigungsanspruchs wegen des Verzichts in Betracht. Der Antragsteller sei nicht verpflichtet gewesen, einen nach der inländischen Rechtsordnung nicht vorgesehenen Feststellungsantrag zur Hintanhaltung der Verjährung einzubringen. Es liege jedoch ohnehin die Annahme nahe, dass der Antragsteller, der wegen Spionage gegen die Sowjetunion verurteilt worden sei, bis zu seiner Rehabilitierung keine rechtliche, jedenfalls aber keine faktische Möglichkeit gehabt habe, einen Ersatzanspruch gegen die Sowjetunion bzw die Russische Föderation Erfolg versprechend geltend zu machen. Für einen „forderungsentkleideten“ Verzicht sei die Antragsgegnerin überhaupt nicht entschädigungspflichtig. Die Verjährung eines Ersatzanspruchs habe dagegen nicht in Gang gesetzt werden können, ehe allenfalls eine Rechtslage eingetreten sei, die „den Verzicht zu einem ‚forderungsbekleideten‘“ gemacht habe. Bei Ansprüchen, die erst 1997 entstanden wären bzw erst seither mit Aussicht auf Erfolg hätten geltend gemacht werden können, könne die Verjährungseinrede „naturgemäß nicht zum Ziel“ führen. Der Rekurs an den Obersten Gerichtshof sei zulässig, weil es zu den in ihrer Bedeutung über den Anlassfall hinaus maßgebenden „Fragen der Enteignung, der Staatensukzession und der Verjährung“ an einer höchstgerichtlichen Rechtsprechung fehle. Der Rekurs der Antragsgegnerin ist zulässig; er ist jedoch im Ergebnis nicht berechtigt. 1. Individualanspruch aufgrund Artikel 24 Z 2 StV 1955 1. 1. Der erkennende Senat erkannte in der in diesem Verfahren ergangenen Vorentscheidung 1 Ob 219/ 01i, der verfassungsrechtliche Eigentumsschutz erstrecke sich auch auf vermögensrechtliche Ansprüche, die den Ausgleich immaterieller Schäden durch Geldleistungen bezweckten. Demzufolge sei der Verzicht des Bundes nach Artikel 24 StV 1955 als Legalenteignung des Antragstellers anzusehen, soweit sich dieser Verzicht auch auf Ersatzansprüche österreichischer Staatsbürger gegen die Sowjetunion bzw deren Rechtsnachfolgerin wegen im materieller Schäden beziehe, die dem Antragsteller gegen die Rechtsnachfolgerin der Sowjetunion ohne die Verzichtserklärung zugestanden wären. Die beklagte Partei stellt die Rechtsnatur des erörterten Verzichts als „Enteignung“ in Abrede, könne doch eine solche nur dann vorliegen, „wenn ein Rechtsübergang an den Staat, eine öffentliche Korporation oder eine gemeinnützige Unternehmung stattgefunden“ habe, nicht dagegen „bei einem bloßen Vermögensentzug oder einer Wertminderung ohne Rechtsübergang“. Insofern


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genügt der Hinweis, dass diese Auffassung der eingangs referierten Ansicht des erkennenden Senats, an der schon zufolge der innerprozessualen Bindungswirkung festzuhalten ist, widerspricht. 1.2. Nach der bereits zitierten Vorentscheidung ergibt sich aus Artikel 24 Z 2 StV 1955 ferner, dass die Republik Österreich eine Entschädigung für Ersatzansprüche, die deren Verzicht gemäß Artikel 24 Z 1 StV 1955 erfasste, zu leisten haben wird. Diese Bestimmungen haben folgenden im Anlassfall wesentlichen Wortlaut: „Z 1: Österreich verzichtet im Namen der österreichischen Regierung oder österreichischer Staatsangehöriger auf alle Ansprüche irgendwelcher Artikel gegen die Alliierten und Assoziierten Mächte, soweit sich solche Ansprüche unmittelbar aus dem Krieg in Europa nach dem 1. September 1939 oder aus Maßnahmen, die infolge des Kriegszustandes in Europa nach diesem Datum ergriffen wurden, ergeben, gleichgültig, ob sich die Alliierte oder Assoziierte Macht zu jenem Zeitpunkt mit Deutschland im Krieg befand oder nicht. Dieser Verzicht umfasst folgende Ansprüche: a) Ansprüche für Verluste oder Schäden, die infolge von Handlungen der Streitkräfte oder Behörden Alliierter oder Assoziierter Mächte erlitten wurden; b) Ansprüche, die sich aus der Anwesenheit, aus Operationen oder Handlungen von Streitkräften oder Behörden Alliierter oder Assoziierter Mächte auf österreichischem Staatsgebiet ergeben; c) Ansprüche hinsichtlich der Entscheidungen von Prisengerichten der Alliierten oder Assoziierten Mächte, [....] d) Ansprüche, die sich aus der Ausübung oder vermeintlichen Ausübung von Rechten der Kriegsführenden ergeben. Z 2: Die Bestimmungen dieses Artikels schließen vollständig und endgültig alle Ansprüche der hierin angeführten Natur aus, die von nun an erloschen sein sollen, welche Vertragsteile auch immer ein Interesse daran haben mögen. Die österreichische Regierung stimmt zu, eine billige Entschädigung in Schillingen den Personen zu leisten, die den Streitkräften der Alliierten oder Assoziierten Mächte im österreichischen Staatsgebiet auf Grund von Requisition Güter geliefert oder Dienste geleistet haben und ebenso eine Entschädigung zur Befriedigung von Ansprüchen aus Nichtkampfschäden gegen die Streitkräfte der Alliierten oder Assoziierten Mächte, die auf österreichischem Staatsgebiet entstanden sind.“ Unter Bezugnahme auf den Wortlaut des Artikel 24 Z 2 StV 1955 hielt der erkennende Senat in seiner Vorentscheidung überdies fest, dass § 1 Abs 2 BesatzungsschädenG (BGBl 126/1958) „Nichtkampfschäden“ bloß als Schäden „durch

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Wegnahme, Verlust, Zerstörung oder Beschädigung einer körperlichen Sache“ versteht, die „von den Streitkräften oder Dienstellen der Alliierten oder Assoziierten Mächte in Österreich oder deren Angehörigen in der Zeit vom 11. September 1945 bis zur Räumung des österreichischen Bundesgebietes“ verursacht wurden. Dagegen sei die Abgeltung immaterieller Schäden als Folge von Handlungen der Besatzungsmächte dort nicht vorgesehen, sodass sich nur die Frage stelle, ob und— bejahendenfalls—wie weit Artikel 24 Z 2 StV 1955 dem erhobenen Entschädigungsanspruch als unmittelbare Anspruchsgrundlage dienen könne. Entgegen der Ansicht der beklagten Partei ist somit die Frage, „ob und inwieweit vom Artikel 24 StV 1955 Ansprüche immaterieller Natur ... theoretisch mitumfasst sein könnten“, bereits geklärt. Es bedarf aber auch der Erörterung der im Rekurs aufgeworfenen Frage nicht, ob der Gesetzgeber nach dem geltenden Verfassungsrecht eine entschädigungslose Enteignung bzw Eigentumsbeschränkung anordnen dürfe, ist doch der völkerrechtliche Verzicht des Bundes ohnehin mit einer Entschädigungspflicht verknüpft. Soweit die beklagte Partei ferner als weitere Voraussetzung für den Erfolg des erhobenen Anspruchs hervorhebt, dem Antragsteller müsse durch einen entschädigungslosen Verzicht des Bundes auf allfällige Individualansprüche österreichischer Staatsbürger gegen die Rechtsnachfolgerin der Sowjetunion ein unangemessenes Sonderopfer abverlangt worden sein, würfe das nur dann eine präjudizielle Rechtsfrage auf, wenn sich Artikel 24 Z 2 StV 1955 nicht als unmittelbare Anspruchsgrundlage für den geltend gemachten Entschädigungsanspruch eignen sollte. 1.3. Die beklagte Partei verficht den Standpunkt, mit Artikel 24 StV 1955 hätten „nicht nur völkerrechtliche Beziehungen und Verpflichtungen abschließend geregelt werden“ sollen, „sondern auch privatrechtliche Ansprüche, die sich aus der vielfältigen Tätigkeit der Besatzungsmächte ergeben“. Mit derartigen „Besatzungsschäden“ stünden „jedoch die Strafbestimmungen der UdSSR wegen Spionage gegen die Sowjetunion bzw darauf basierende Verurteilungen durch sowjetische Gerichte und damit einhergehende immaterielle Schäden zu Unrecht Verurteilter in keinem wie immer gearteten Zusammenhang“. Als Stütze dafür beruft sich die beklagte Partei auf die Entscheidung 7 Ob 68/99x (= JBl 1999, 670). Dort wurde allerdings ausgesprochen, dass der Verzicht des Bundes alle Ansprüche österreichischer Staatsbürger „irgendwelcher Artikel gegen die a(A)lliierten und a(A)ssoziierten Mächte“ mitumfasst und nicht auf Schäden aus Handlungen der Besatzungsmächte iure imperii beschränkt ist. Es kann wohl nicht ernsthaft bezweifelt werden, dass die—nach den Antragsbehauptungen—1952 erfolgte Festnahme und Anhaltung des Antragstellers durch die sowjetische Besatzungsmacht, seine Verurteilung wegen Spionage gegen die Sowjetunion durch ein Militärtribunal dieser Besatzungsmacht in Österreich und seine schließliche Verschleppung und Einkerkerung in der Sowjetunion Handlungen iure imperii waren, die einen auf österreichischem Staatsgebiet entstandenen Nichtkampfschaden im Sinne des Artikel 24 Z 2 StV 1955 verursachten. Durch den erörterten Verzicht im Staatsvertrag von Wien wurden die Besatzungsmächte jedenfalls von


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der Haftung für Schäden aus Handlungen iure imperii, gleichviel ob deren Völkerrechtswidrigkeit schon damals feststand oder sich erst später herausstellte, freigezeichnet. Die Republik Österreich hat daher gemäß § 24 Z 2 StV 1955 auch eine Entschädigungspflicht für Schäden ihrer Staatsbürger aus völkerrechtswidrigen Maßnahmen der Besatzungsmächte iure imperii übernommen. Soweit Seidl-Hohenveldern (Schafft Plünderung Eigentum? IPRax 2000, 321; Ausfuhrverbot und dessen Sicherung zu Lasten „erbeuteten“ Eigentums, IPRax 2001, 590) die Entscheidung 7 Ob 68/99x angesichts des dort bedeutsamen Sachverhalts als verfehlt ablehnt, bedarf es hier keiner Stellungnahme, weil auch dieser Autor nicht in Zweifel zieht, dass die Freizeichnungsklausel jedenfalls Handlungen der Besatzungsmächte iure imperii betrifft. Somit erstreckt sich aber der Verzicht des Bundes und die von ihm deshalb übernommene Entschädigungspflicht—wie zusammenzufassen ist—auch auf Schäden, die österreichischen Staatsbürgern durch Maßnahmen der Besatzungsmächte iure imperii zugefügt wurden, denen in Wahrheit bloß Erwägungen politischer Repression und zu Lasten Unschuldiger verübter politischer Vergeltung (allenfalls für nationalsozialistisches Unrecht) zugrunde lagen. Eine derartige völkerrechtswidrige Maßnahme der Sowjetunion als Besatzungsmacht läge aber vor, wenn der Antragsteller—wie er behauptet— mit Bestätigung der Generalstaatsanwaltschaft der Russischen Föderation vom 5. 8. 1997 nach § 3 deren Gesetzes vom 18. 10. 1991 über die Rehabilitierung von Opfern politischer Repression rehabilitiert worden wäre. Es hängt daher der Erfolg oder Misserfolg des geltend gemachten Entschädigungsanspruchs dem Grunde nach auch im Lichte solcher Erwägungen nur von der Lösung der Frage ab, ob der Antragsteller die behauptete Entschädigungspflicht unmittelbar auf Artikel 24 Z 2 StV 1955 stützen kann. 1.4. Der Verfassungsgerichtshof sprach im Erkenntnis vom 19. 6. 1962 B 270/61 (= VfSlg 4.213) aus, aus dem Textzusammenhang des Artikel 24 Z 2 StV 1955 sei zu schließen, dass „der Ausdruck ‚Entschädigung‘ im zweiten Halbsatz dasselbe besagt, wie der vordem gebrauchte Ausdruck ‚billige Entschädigung‘“; dagegen bedürfe es keiner Stellungnahme, „ob damit eine volle Schadloshaltung zugesagt wurde oder nicht“. Im Erkenntnis vom 27. 6. 1963 B 207/62 (= VfSlg 4.478) betonte der Verfassungsgerichtshof sodann begründungslos, dass Artikel 24 Z 2 StV 1955 „überhaupt kein subjektives Recht auf Entschädigung gewährt ...“. Diese Ansicht überzeugt schon angesichts des Mangels jedweder Begründung nicht. Demnach ist der Frage nachzugehen, ob sich Artikel 24 Z 2 StV 1955 als Anspruchsgrundlage für Individualansprüche österreichischer Staatsbürger gegen den Bund eignet, weil sich dessen Verzicht im Staatsvertrag von Wien—wie bereits dargelegt—auch auf Ansprüche erstreckt, die österreichische Staatsbürger zufolge der durch rechtswidriges Verhalten von Organen der Besatzungsmächte erlittene Schäden gegen eine derartige Macht bzw deren Rechtsnachfolgerin erfolgreich hätten geltend machen können, wenn sie solcher Ansprüche durch den erörterten Verzicht nicht entkleidet worden wären.

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1.5. Nach einer auch in der älteren Rechtsprechung des Obersten Gerichtshofs (2 Ob 730/55) vertretenen Ansicht soll schon aus der Fassung des Artikel 24 Z 2 StV 1955 folgen, „dass ein unmittelbarer Rechtsanspruch eines Betroffenen gegen die Republik Österreich nicht begründet werden sollte“ (siehe deren wörtliche Wiedergabe in der Entscheidung JBl 1961, 27). Dem lag die Auffassung zugrunde, dass es erst „einer näheren Darstellung der Grundsätze und Richtlinien“ in einem Ausführungsgesetz bedürfe, nach denen eine „billige Entschädigung“ zu leisten sei, könne doch sonst der Fall eintreten, dass der Bund außerstande sei, solche „Ansprüche der Geschädigten in ihrer Gesamtheit“ zu erfüllen. Aus Artikel 27 Z 2 StV 1955 ergebe sich dagegen „für den einzelnen österreichischen Staatsbürger“ ein unmittelbarer Ersatzanspruch gegen die Republik Österreich (3 Ob 183/58 = SZ 33/15; ebenso 3 Ob 118/58 = JBl 1961, 27). Sowohl in der Entscheidung 3 Ob 183/58 als auch in der Entscheidung 3 Ob 118/58 wurde hervorgehoben, dass Artikel 24 Z 2 StV 1955 im Gegensatz zu dessen Artikel 27 ausdrücklich nur von einer „billigen Entschädigung“ für Geschädigte spreche. Allein darin wurde der wesentliche Unterschied für die Verneinung von Individualansprüchen österreichischer Staatsbürger schon aufgrund Artikel 24 Z 2 StV 1955 gesehen. Das überzeugt nicht: Der Wortlaut der beiden Regelungen lässt einen wirklich bedeutsamen Unterschied in der Frage der Ersatzpflicht nicht erkennen, was auch G. Winkler (Zur Frage der unmittelbaren Anwendbarkeit von Staatsverträgen, JBl 1961, 8) betont. Im Übrigen konnte und kann die Ausmittlung einer „billigen Entschädigung“ im Bereich der Zuständigkeit der ordentlichen Gerichte getrost diesen überlassen werden, was letztlich auch in der Kritik Pfeifers (Enteignung und Entschädigung, ÖJZ 1958, 255, 263 f) an der soeben referierten Rechtsprechung deutlich genug zum Ausdruck gelangt, ist doch dabei ohnehin auf die Interessen aller Beteiligten Bedacht zu nehmen. Was in unterschiedlichen Einzelfällen billig ist, lässt sich durch ein bestimmtes Ausführungsgesetz nicht generell umschreiben. Eine Ersatzleistung ist daher nicht schon deshalb als „billige Entschädigung“ anzusehen, nur weil sie vom Gesetzgeber in einer bestimmten Situation für ausreichend gehalten wird. Eine Entschädigung ist vielmehr erst dann als billig anzusehen, wenn sie von der Gemeinschaft der Normunterworfenen auf der Grundlage tragender Grundsätze der gesamten Rechtsordnung und der Umstände des Einzelfalls als gerecht empfunden wird. Diesem Maßstab im jeweiligen Einzelfall gerecht zu werden, ist eine Aufgabe, die der Gesetzgeber den Gerichten in vielen Einzelfragen der staatlichen Vollziehung anvertraut, weil sich das in den unterschiedlichen Einzelfällen Billige eben nicht im abstrakten Korsett generalisierender gesetzlicher Tatbestände definieren lässt. Neuere Beispiele dafür finden sich bei der Bestimmung des Unterhaltsanspruchs schuldig Geschiedener (§§ 66 ff EheG) oder bei der nachehelichen Aufteilung des ehelichen Gebrauchsvermögens und der ehelichen Ersparnisse (§ 83 Abs 1 EheG). Der Begriff der Ausmittlung einer billigen Entschädigung durch die Gerichte ist ferner etwa gemäß § 1310 ABGB in der nach wie vor geltenden Urfassung von Bedeutung. Allein am Befund der ungenügenden


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Konkretisierung des Begriffs der „billigen Entschädigung“ in Artikel 24 Z 2 StV 1955 kann dessen Heranziehung als Grundlage für Ansprüche Einzelner somit nicht scheitern. 1.6. Einer näheren Erörterung bedarf allerdings die wissenschaftliche Kritik an der Begründung und am Ergebnis der Entscheidung 3 Ob 118/58 durch G. Winkler (JBl 1961, 8 ff). Es wurde bereits erwähnt, dass auch dieser Autor der Ansicht ist, die unter 1. 5. referierte, allein an den unterschiedlichen Wortlaut der wesentlichen Passagen anknüpfende und danach differenzierende Judikatur des Obersten Gerichtshofs zur Frage nach der unmittelbaren Anwendbarkeit des Artikel 24 Z 2 und des Artikel 27 Z 2 StV 1955 stütze sich insoweit nicht auf eine tragfähige Grundlage. Im Übrigen beruht die Kritik dieses Autors auf den von ihm erörterten Geltungsvoraussetzungen völkerrechtlicher Verträge. Mit darauf aufbauenden methodischen Erwägungen wendet er sich gegen die rezensierte Entscheidung und meint, es dürfe wegen der generellen Transformation des Staatsvertrags von Wien nicht schon auf seine unmittelbare Anwendbarkeit als taugliche Grundlage für die Ansprüche Einzelner gegen den Bund geschlossen werden. Der Oberste Gerichtshof war sich der von G. Winkler erörterten Geltungsvoraussetzungen völkerrechtlicher Verträge in der besprochenen Entscheidung allerdings durchaus bewusst. Die rein methodischen Einwände widerlegen das dabei erzielte Ergebnis nicht. Der Oberste Gerichtshof hätte dazu bei wertender Beurteilung der Kernfragen auch dann gelangen können, wenn er sich der von G. Winkler erörterten schrittweisen Begründungsmethode bedient hätte. Soweit schließlich das Tatbestandsmerkmal „österreichische Staatsangehörige“ als unzureichende Bestimmung des Personenkreises der Anspruchsberechtigten und die unterbliebene Regelung des Stichtags für die Bemessung der Anspruchshöhe für Entschädigungsansprüche nach Artikel 27 Z 2 StV 1955 ins Treffen geführt werden, geht es auch dabei um Fragen, die auf dem Boden des Kanons der Auslegungsmethoden lösbar sind, entsteht doch immer erst durch die relative Unbestimmtheit des gesetzgeberischen Ausdrucks ein Auslegungsproblem. Deshalb können nicht schon allein die durch eine gesetzliche Regelung aufgeworfenen Auslegungsprobleme mit Erfolg als überzeugendes Argument gegen deren unmittelbare Anwendbarkeit auf bestimmte Sachverhalte ins Treffen geführt werden. Der erkennende Senat sieht sich somit nicht veranlasst, das in der Entscheidung 3 Ob 118/58 erzielte Ergebnis, das auf anderem methodischen Weg gleichfalls erreichbar gewesen wäre und das überdies—was auch G. Winkler nicht in Abrede stellt—billig ist, in Zweifel zu ziehen. 1.7. Ist aber nach allen bisherigen Erwägungen ein Unterschied im Grundsätzlichen zwischen den Ersatzregelungen des Artikel 24 Z 2 und des Artikel 27 Z 2 StV 1955 aus deren Wortlaut nicht überzeugend zu begründen, so muss auch die Eignung des Artikel 24 Z 2 StV 1955 als unmittelbare rechtliche Grundlage für Entschädigungsansprüche von Einzelnen gegen den Bund bejaht werden. Das muss ganz besonders auch für den Verzicht auf Entschädigungsansprüche gelten, die Personen, denen die persönliche Freiheit durch den einer Besatzungsmacht zuzu-

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rechnenden Akt politischer Repression willkürlich entzogen wurde, gegen diese Besatzungsmacht bzw deren Rechtsnachfolgerin zugestanden wären, wenn auf solche Ansprüche nicht zu deren Lasten verzichtet worden wäre. Es fehlt bis heute an einem für die Geltendmachung solcher Entschädigungsansprüche tauglichen Ausführungsgesetz. Es muss daher insofern schon der Gesetzgeber, der den Staatsvertrag von 1955 durch generelle Transformation in die österreichische Rechtsordnung integrierte, die Absicht verfolgt haben, damit für Individualansprüche auf Grund willkürlicher Eingriffe der Besatzungsmächte in das Grundrecht der persönlichen Freiheit eine unmittelbar anwendbare Anspruchsgrundlage zu schaffen, ist doch dem Gesetzgeber nicht zusinnbar, er habe mit dem Besatzungsschädengesetz wohl nähere Ersatzregelungen für Sachschäden schaffen, für eine willkürliche Entziehung der persönlichen Freiheit durch einen Akt politischer Repression aber überhaupt keinen Ersatz vorsehen wollen. Der Gesetzgeber sah— offenkundig getragen von der zutreffenden Ansicht, dass willkürliche Eingriffe in das Grundrecht der persönlichen Freiheit wesentlich schwerer als bloße Sachschäden wiegen—auch keine Veranlassung, solche Ansprüche aus rein fiskalischen Gründen durch ein besonderes Ausführungsgesetz eng zu begrenzen, wie das für den Ersatz von Sachschäden durch das Besatzungsschädengesetz geschehen ist. Im Übrigen kann ein Geschädigter vom Bund nur eine Entschädigung erlangen, die ihm nach der Rechtsordnung der verantwortlichen Besatzungsmacht bzw deren Rechtsnachfolgerin ohne den im Staatsvertrag von Wien vereinbarten völkerrechtlichen Verzicht zugestanden wäre. Die Obergrenze des Entschädigungsanspruchs wird somit durch eine ausländische Rechtsordnung vorgegeben. Erst wenn sich daraus für den Bund unerschwingliche oder nur schwer erschwingliche Ersatzbeträge ergäben, käme eine Kürzung solcher Ansprüche nach Billigkeitserwägungen in Betracht. Es bedurfte also auch nach solchen Gesichtspunkten keines Ausführungsgesetzes für die erörterten Entschädigungsansprüche, weil—wie bereits ausgeführt—selbst die Ermittlung eines Kürzungsfaktors nach Gesichtspunkten der Billigkeit und den jeweiligen Umständen des Einzelfalls am besten durch die Gerichte besorgt werden kann. Zusammenfassend ist somit als Ergebnis aller bisherigen Erwägungen festzuhalten: Österreicher können sich als Opfer völkerrechtswidriger Repressionsakte der Besatzungsmächte, die den willkürlichen Entzug ihrer persönlichen Freiheit zur Folge hatten, unmittelbar auf Artikel 24 Z 2 StV 1955 als Grundlage für Entschädigungsansprüche gegen den Bund, die sie ohne den in Artikel 24 StV 1955 vereinbarten Verzicht gegen eine Besatzungsmacht gehabt hätten, stützen. 2. Entschädigungsansprüche und Staatennachfolge 2.1. Nach den Regeln des Völkerrechts findet in die höchstpersönlichen Rechte und Pflichten im Bereich der Staatenverantwortlichkeit keine Rechtsnachfolge statt. Mit dem Untergang eines souveränen Staats erlischt daher auch dessen völkerrechtliche Verantwortlichkeit für das von ihm begangene Unrecht (Seidl-Hohenveldern in Neuhold/Hummer/Schreuer, Österreichisches Handbuch des Völkerrechts³ IV/


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1 Rz 815; ders, Völkerrecht 9 Rz 1409 f). Allerdings erklärte die Russische Föderation, die Rechtspersönlichkeit der Sowjetunion fortsetzen zu wollen, was von der Staatengemeinschaft—so auch von der Republik Österreich—akzeptiert wurde (Seidl-Hohenveldern, Handbuch Rz 827). Es muss hier nicht beurteilt werden, ob es sich bei diesem völkerrechtlichen Tatbestand um einen Fall der Staatennachfolge oder einen solchen der Staatenkontinuität handelt, stützt doch der Antragsteller den erhobenen Entschädigungsanspruch nur auf die Behauptung, er könne der Anspruch, den er gegen die Russische Föderation—offenkundig aufgrund des Gesetzes vom 18. 10. 1991 über die Rehabilitierung von Opfern politischer Repression—gehabt hätte, wegen des in Artikel 24 StV 1955 auch mit der Sowjetunion vereinbarten völkerrechtlichen Verzichts nicht durchsetzen. Weder der Antragsteller noch die Antragsgegnerin behauptete, jemand, der wegen Spionage gegen die Sowjetunion von einem Militärtribunal der sowjetischen Besatzungsmacht rechtskräftig zu einer Freiheitsstrafe von 25 Jahren verurteilt worden war, hätte nach der Rechtspraxis in der Sowjetunion irgendeine realistische Möglichkeit gehabt, seine Rehabilitierung als Opfer politischer Repression und demzufolge auch einen Entschädigungsanspruch wegen willkürlichen Freiheitsentzugs gegen die Sowjetunion durchzusetzen. Dieses Thema bedarf daher im fortgesetzten Verfahren keiner weiteren Erörterung. Da die Republik Österreich akzeptierte, dass die Russische Föderation die Rechtspersönlichkeit der Sowjetunion fortsetzt, akzeptierte sie die Russische Föderation auch als Signatarmacht des Staatsvertrags von Wien. Somit bezieht sich der in Artikel 24 StV 1955 vereinbarte Verzicht nunmehr auf Ansprüche, die dem Antragsteller gegen die Russische Föderation ohne diesen Verzicht zugestanden wären. 2.2. Die Antragsgegnerin wendete schon im Verfahren erster Instanz ein, ein allfälliger Entschädigungsanspruch des Antragstellers gegen die Russische Föderation nach deren Gesetz vom 18. 10. 1991 über die Rehabilitierung von Opfern politischer Repression sei durch den Verzicht gemäß Artikel 24 StV 1955 nicht untergegangen. Sie hält dem Antragsteller im Rekurs entgegen, er habe nicht einmal behauptet, einen solchen Entschädigungsanspruch gegen die Russische Föderation geltend gemacht zu haben. Ein solcher Anspruch sei jetzt präkludiert, weil er nicht innerhalb von drei Jahren ab Zustellung des „Rehabilitierungsbescheides“ gegen die Russische Förderation erhoben worden sei. Diese Argumentation erweist sich nur dann als relevant, wenn die Antragsgegnerin zuvor beweist, dass österreichische Staatsbürger, die durch ein völkerrechtswidriges Verhalten der Sowjetunion als Besatzungsmacht in Österreich geschädigt wurden, von Entschädigungsansprüchen nach dem Gesetz der Russischen Förderation vom 18. 10. 1991 über die Rehabilitierung von Opfern politischer Repression nicht ausgeschlossen seien. Dieser Beweis kann—entgegen der Ansicht der Antragsgegnerin— nicht einfach durch einen bloßen Verweis auf Artikel 15 dieses Gesetzes über den ganz allgemein umschriebenen Kreis der Anspruchsberechtigten geführt werden. Es bedürfte vielmehr des Hinweises auf eine ausdrückliche Regelung in diesem oder in einem anderen Gesetz der Russischen Föderation, wonach der im Staats-

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vertrag von Wien vereinbarte völkerrechtliche Verzicht solche Entschädigungsansprüche nicht berührt. In Ermangelung einer solchen ausdrücklichen gesetzlichen Regelung in der Rechtsordnung der Russischen Föderation könnte die Antragsgegnerin ihre Behauptung auch durch eine entsprechende urkundliche Erklärung der Russischen Föderation erbringen. Ohne einen solchen Nachweis ist im fortgesetzten Verfahren davon auszugehen, dass sich der in Artikel 24 StV 1955 vereinbarte Verzicht auch auf Entschädigungsansprüche nach dem Gesetz der Russischen Föderation vom 18. 10. 1991 über die Rehabilitierung von Opfern politischer Repression bezieht, sodass der Antragsteller den erhobenen Entschädigungsanspruch gegen die Russische Föderation mit Aussicht auf Erfolg nicht hätte geltend machen können. 3. Anspruchshöhe Die Antragsgegnerin rechnet dem Antragsteller auf Grundlage der Entschädigungssätze nach dem Gesetz der Russischen Föderation vom 18. 10. 1991 über die Rehabilitierung von Opfern politischer Repression vor, er hätte gegen die Russische Föderation nur einen Anspruch auf Abgeltung seines immateriellen Schadens wegen des erlittenen unrechtmäßigen Freiheitsentzugs von insgesamt weniger als 96 US$ (in Worten: sechsundneunzig) gehabt. Der Antragsteller vermag dieser Rechnung in der Rekursbeantwortung nur die Behauptung entgegenzusetzen, es sei „von österreichischen ersatzrechtlichen Wertvorstellungen auszugehen“, weil „die rechtswidrigen Aktivitäten gegenüber dem Antragsteller bereits in Österreich (Anm: Hervorhebung in der Rekursbeantwortung) begonnen wurden“. Damit zeigt der Antragsteller allerdings keinen Gesichtspunkt auf, auf dessen Grundlage er gegen die Republik Österreich einen höheren Entschädigungsanspruch als den erstreiten könnte, der ihm gegen die Russische Föderation nach deren Gesetz vom 18. 10. 1991 über die Rehabilitierung von Opfern politischer Repression ohne den in Artikel 24 StV 1955 vereinbarten völkerrechtlichen Verzicht zugestanden wäre. Dass die rechtswidrige Beeinträchtigung der Rechtssphäre des Antragstellers durch die Sowjetunion als Besatzungsmacht in Österreich begann, ist für die Beurteilung des erörterten Entschädigungsanspruchs gegen den Bund unerheblich. Die Schädigung des Antragstellers wurde nicht durch ein rechtswidriges Verhalten österreichischer Staatsorgane verursacht. Der Bund hat vielmehr nur für einen Anspruch einzustehen, auf den er (auch) zu Lasten des Antragstellers gegenüber der Sowjetunion bzw nunmehr der Russischen Föderation verzichtete. Der Antragsteller kann also von der Republik Österreich nicht mehr erhalten, als er von der Russischen Föderation erhalten hätte. 4. Verjährung 4.1. Nach Auffassung der Antragsgegnerin verjähren Ansprüche auf Enteignungsentschädigung nach dreißig Jahren. Da der Staatsvertrag von Wien am 27. 7. 1955 in Kraft getreten sei, seien Entschädigungsansprüche seit dem 27. 7. 1985 verjährt. Dass dem Antragsteller ein Entschädigungsanspruch gegen die


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Sowjetunion zugestanden wäre, für den die Republik Österreich aufgrund des in Artikel 24 StV 1955 vereinbarten völkerrechtlichen Verzichts gegenüber dem Antragsteller einzustehen gehabt hätte, wurde nicht behauptet. Bestand gegen die Sowjetunion kein Entschädigungsanspruch, so konnte auch gegen die Republik Österreich kein Individualanspruch aufgrund des in Artikel 24 StV 1955 vereinbarten völkerrechtlichen Verzichts entstehen. Die Verjährung eines auf Artikel 24 Z 2 StV 1955 gestützten Entschädigungsanspruchs kann daher nicht vor jenem Zeitpunkt in Gang gesetzt worden sein, in dem sich der Verzicht in der Rechtssphäre des Antragstellers auszuwirken begann, also wie es das Rekursgericht bildhaft in Anlehnung an das Hypothekarrecht plastisch formulierte, in dem der Verzicht „forderungsbekleidet“ wurde. Dieser Zeitpunkt ist jener, in dem Antragsteller die Entscheidung der Russischen Föderation über seine Rehabilitierung zugestellt wurde. Erst ab diesem Zeitpunkt hätte der Antragsteller einen Anspruch gegen die Russische Föderation auf deren Gesetz vom 18. 10. 1991 über die Rehabilitierung von Opfern politischer Repression mit Aussicht auf Erfolg stützen können, wenn auf solche Ansprüche nach Artikel 24 StV 1955 nicht verzichtet worden wäre. Unterläge der erhobene Anspruch als Enteignungsentschädigung einer Verjährungsfrist von dreißig Jahren, wie die Antragsgegnerin ausführte, so wäre der geltend gemachte Entschädigungsanspruch jedenfalls noch nicht verjährt. Eine solche Verjährungsfrist soll nach Ansicht der Antragsgegnerin allerdings nur dann gelten, wenn die Verjährung bereits mit Inkrafttreten des Staatsvertrags in Gang gesetzt worden wäre. Sei das zu verneinen, so sei der Entschädigungsanspruch verjährt, weil der Antragsteller einen inhaltsgleichen Anspruch gegen die Russische Föderation auch nur bis zum 5. 8. 2000 mit Aussicht auf Erfolg hätte geltend machen können. Der Entschädigungsantrag sei dagegen erst am 20. 10. 2000 bei Gericht eingelangt. Die Antragstellerin unterstellt dabei für den Beginn der Verjährung das Datum der Bestätigung der Generalstaatsanwaltschaft der Russischen Föderation (5. 8. 1997) über die Rehabilitierung des Antragsgegners. Nicht dieser Zeitpunkt, sondern nur der der Zustellung der erwähnten Bestätigung könnte hingegen von Bedeutung sein. Ob der geltend gemachte Entschädigungsanspruch an sich tatsächlich bereits drei Jahre nach Zustellung dieser Bestätigung verjährt gewesen sein könnte, kann hier allerdings nach den tieferstehenden Erwägungen dahingestellt bleiben. 4.2. Die Republik Österreich hat mit dem Bundesgesetz über die Einrichtung eines Allgemeinen Entschädigungsfonds für Opfer des Nationalsozialismus und über Restitutionsmaßnahmen (Entschädigungsfondsgesetz) BGBl I 2001/12 einen hohen Standard in Entschädigungsfragen wegen aus politischen Gründen erlittenen Unrechts in Anspruch genommen. Dieses Gesetz dient gemäß § 1 Abs 1 der umfassenden Lösung offener Fragen der Entschädigung von Opfern des Nationalsozialismus für Verluste und Schäden, die als Folge von oder im Zusammenhang mit Ereignissen auf dem Gebiet der heutigen Republik Österreich während der Zeit des Nationalsozialismus entstanden sind. Nach dessen § 1 Abs 2 hat der Fonds das Ziel, die moralische Verantwortung für Verluste und Schäden, die als Folge

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von oder im Zusammenhang mit dem nationalsozialistischen Regime den jüdischen Bürgerinnen und Bürgern sowie den anderen Opfern des Nationalsozialismus zugefügt wurden, durch freiwillige Leistungen anzuerkennen. Auf solche Leistungen besteht somit gemäß § 7 dieses Gesetzes kein Rechtsanspruch. Der Bund hat mit diesem Gesetz positiviert, was unter den guten Sitten bei der Lösung von Entschädigungsfragen zu verstehen ist. Insofern reicht dessen rechtliche Signalwirkung über den unmittelbaren Regelungsgegenstand hinaus. Sie bringt zum Ausdruck, dass es jedenfalls unangemessen wäre, Entschädigungsansprüchen von Opfern politischer Verfolgung den auf eine verspätete Antragstellung von allenfalls wenigen Wochen gestützten Einwand der Verjährung mit Aussicht auf Erfolg entgegensetzen zu können. Angesichts dessen widerstreitet es aber den guten Entschädigungssitten, dem Antragsteller als österreichischem Staatsbürger in einer Rechtssache, die nicht nur eine—dem Anlass für das Entschädigungsfondsgesetz vergleichbare—moralische Verpflichtung, sondern auch eine Rechtspflicht zur Entschädigung nach Artikel 24 Z 2 StV 1955 wegen eines von ihm erduldeten Akts politischer Repression durch eine ehemalige Besatzungsmacht zum Gegenstand hat, dessentwegen er Jahre in einem sowjetischen Straflager—nach unbestrittenen Behauptungen unter „unmenschlichen Bedingungen“—durchstehen musste, entgegenzuhalten, dieser Anspruch, der nach den Behauptungen der Antragsgegnerin überdies weniger als 96 US-$ betragen soll, sei verjährt, weil der verfahrenseinleitende Antrag möglicherweise erst etwa zwei Monate nach Ablauf einer dreijährigen Verjährungsfrist bei Gericht einlangte. Das Verjährungsargument der Antragsgegnerin ist daher in diesem Anlassfall nicht geeignet, zur Begründung einer Antragsabweisung im fortgesetzten Verfahren herangezogen zu werden. 5. Kosten Die Entscheidung über die Kosten des Rekursverfahrens gründet sich auf § 44 EisbEG. Die Antragsgegnerin hat danach keinen Anspruch auf Ersatz ihrer Rekurskosten. Die Entscheidung über die Kosten der Rekursbeantwortung hängt dagegen vom Verfahrensausgang in der Hauptsache ab.

Austrian Diplomatic Practice in International Law

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PART II Austrian Diplomatic and Parliamentary Practice in International Law/ Österreichische Diplomatische und Parlamentarische Praxis zum Internationalen Recht Christina Binder, Isabelle Buffard, Gerhard Hafner & Katrin Hagemann*

Index of Documents** BB. Sources of international law/Völkerrechtsquellen See CC.I.2 CC. The law of treaties/Recht der Verträge I.2Austrian comments on the work of the ILC on reservations to treaties ................................................................................................................. 307 See also QQ.I.2.g-1 DD. Relationship between international law and internal law/ Völkerrecht und innerstaatliches Recht IIAustrian Explanatory Memorandum to the International Convention for the Suppression of the Financing of Terrorism ..................... 309 See also MM.III.4 and QQ.I.2.g-2 EE. Subjects of international law/Völkerrechtssubjekte See also II.III.2

*

Dr. Christina Binder, E.MA and Mag. Isabelle Buffard, D.E.S.S. are assistants and Dr. Gerhard Hafner is professor at the Department of International Law and International Relations, Universitätsstr. 2, A- 1090 Vienna, Austria; Mag. Katrin Hagemann is B. A. (Wellesley C.), M. S. (Cornell), MAIS (Diplomatic Academy Vienna). The authors would like to thank Dr. David Rezac his help in selecting documents.

**

The digest covers the period from 1 July 2001 until 30 June 2002.


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II.1.a.cc-1E. U. Council Decision on the privileges and immunities granted of the European Union Institute for Security Studies and the European Union Satellite Centre ............................................. 313 II.1.a.cc-2Austrian Explanatory Memorandum to the Amending Agreement to the Protocol on the Privileges and Immunities of the EUTELSAT ............................................................................................................. 317 II.1.b.ddResponse of the Foreign Minister to a parliamentary request concerning the case of an Austrian CIVPOL officer arrested on suspicion of torturing ....................................................................... 319 FF. The position of the individual (including the corporation) in international law/Die Stellung der Einzelperson (einschließlich der juristischen Person) im Völkerrecht VII.1Austrian statement on mass exoduses and displaced persons .......... 321 VII.4Response of the Foreign Minister to a parliamentary request concerning the applications for asylum of Afghan asylum seekers at the Austrian Embassy in Islamabad .................................................................... 322 See also MM.III.4 and QQ.I.2.g-2 GG. Organs of the State and their legal status/Die Staatsorgane und ihr rechtlicher Status See FF.VII.4 II. State territory/Das Staatsgebiet I.1.b-1Response of the Foreign Minister regarding the notes of protest because of a violation of the Austrian air space .................................. 324 I.1.b-2Response of the Federal Minister for Defence to a request concerning the deployment of interceptors ....................................................... 325 III.2Austrian Explanatory Memorandum to the Treaty between the Republic of Austria and the Czech Republic on the Changes of the Course of the Common Border with Annexes ............................................ 326 LL. Air Space, Outer Space and Antarctica/Luftraum, Weltraum, Antarktis See II.I.1.b-1 and II.I.1.b-2


305

MM. International responsibility/Völkerrechtliche Verantwortlichkeit IIAustrian comments on the work of the ILC on State responsibility ........................................................................................................ 331 III.4Austrian Federal Law on the Co-operation with the International Criminal Court .............................................................................. 333 See also DD.II. and QQ.I.2.g-2 NN. Pacific settlement of disputes/Friedliche Streitbelegung OO. Coercive measures short of the use of force/Zwangsmaßnahmen unter der Schwelle der Gewaltanwendung II.1Response of the Minister for Economy and Work to a request concerning the export of weapons or export of goods of dual-use to Iraq ...................................................................................................... 346 II.2Response of the Minister for Economic Affairs and Employment to a parliamentary request concerning the export of Steyr military vehicles to Zimbabwe .................................................................. 348 PP. Use of force/Gewaltanwendung See RR.II and RR.III QQ. The law of armed conflict and international humanitarian law/ Recht des bewaffneten Konfliktes und internationales humanitäres Recht I.2.g.-1Austrian Explanatory Memorandum to the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property including Austria’s Interpretative Declaration ................. 350 I.2.g-2Austrian Explanatory Memorandum to the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts .................................................... 353 I.2.g-3Amendments to the Austrian Federal Law on Compensation of Prisoners of War ..................................................................... 357 See also MM.III.4 and RR.II RR. Neutrality, non-belligerency/Neutralität, Nicht-Kriegführung IIFederal Law amending the Austrian Penal Code and other laws (et.al.) .............................................................................................................. 360

306


IIINew Austrian Security and Defence Doctrine ......................................... 364 See also OO.II.1, OO.II.2 SS. Legal aspects of international relations and cooperation in particular matters/Rechtliche Aspekte der internationalen Beziehungen und Zusammenarbeit in bestimmten Bereichen III-1Response of the Foreign Minister to a parliamentary request concerning activities in the field of alpine transit and in particular the Transport Protocol of the Alpine Convention ...................... 370 III-2Austrian comments on the work of the ILC on prevention of transboundary harm from hazardous activities ............................................ 372 III-3Bilateral Agreement between Austria and the Czech Republic “Conclusions of the Melk Process and Follow-up” ........................ 374 III-4Roadmap for the implementation of Annex I and Annex II of the “Conclusions of the Melk Process and Follow-up” .............................. 383 IXAustrian statement concerning measures to eliminate terrorism .......... 386 See also DD.II, MM.III.4, OO.II.1, OO.II.2, RR.II, RR.III, QQ.I.2.g-1 and QQ.I.2.g-2


307

BB. Sources of international law/Völkerrechtsquellen See CC.I.2

CC. The law of treaties/Recht der Verträge I.

Conclusion and entry into force of treaties/Abschluss und Inkrafttreten völkerrechtlicher Verträge

2.

Reservations and declarations/Vorbehalte und Erklärungen

CC.I.2 Work of the International Law Commission on reservations to treaties/Arbeit der Völkerrechtskommission betreffend Vorbehalte zu Verträgen On 31 October 2001, the Legal Adviser of the Foreign Ministry of the Republic of Austria delivered the following statement to the 56th Session of the General Assembly Sixth Committee concerning the Report of the International Law Commission on the Work of its 53rd Session relating to reservations:1 Mr. Chairman, My next issue is the area of reservations to treaties. In this context, let me first thank the Special Rapporteur, Mr. Alain Pellet, for the preparation of a Guide to Practice on Reservations to Treaties, contained in the report on the last session of the ILC. I would now like to use this opportunity to comment on some of the draft guidelines. My first point concerns reservations formulated upon signature when a treaty expressly provides for this possibility. The relevant draft guideline No. 2.2.3 reads: “A reservation formulated when signing a treaty, where the treaty expressly provides that a State or an international organization may make such a reservation at that time, does not require formal confirmation by the reserving State or international organization when expressing its consent to be bound by the treaty.” This guideline aims at constituting an exception from the general rule contained in guideline No. 2.2.1 saying that a reservation formulated when signing a treaty subject to ratification must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. After having studied the commentaries to these guidelines it seems questionable

1

Available at http://www.un.int/austria/.

308


whether there really is sufficient state practice for the view that in cases, where the treaty itself provides for the possibility to make a reservation upon signature, a confirmation upon ratification should not be necessary anymore. Our impression rather that the state practice in this field is uncertain and inconsistent, which is why we would hesitate to understand the confirmations made by many States of their reservations first pronounced when signing such a treaty only as redundant “precautionary confirmations”, as it is said in the commentary. As the next point I would like to address the draft guidelines on the late formulation of reservations, which means the formulation by a State of a reservation to a treaty after having expressed its consent to be bound by that treaty. According to guidelines No. 2.3.1 and 2.3.2 the formulation of such a late reservation shall in principle be possible on condition that no other contracting party objects to it within a period of 12 months. We are very concerned about the establishment of such guidelines that would have the effect of making the whole regime of treaty reservations applicable also to so-called late reservations. We must be aware of the fact that such late reservations do not fall under the definition of reservations, as it is reflected in Art. 19 of the Vienna Convention on the Law of Treaties. The ILC itself has elaborated a definition of reservations with the clear intention not to deviate from the Vienna Convention. According to this definition a “reservation” means a unilateral statement, however phrased or named, made by a State or an international organization when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty, whereby the State or organization purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to them. As this definition contains a clear reference to the point in time when a reservation can be made, it is evident that a so-called late reservation is in contrast to this basic definition. The consequence is that even if it is called “reservation” a late reservation constitutes in reality a different kind of declaration that should be kept apart from the true reservations in order not to blur the quoted definition of reservations. Of course the States parties to a given treaty have the possibility to agree on applying the regime of reservations also to “late reservations” made in regard to that treaty. However, in our point of view we should not generally treat such declarations not meeting the requirements of the definition like reservations. The approach that is suggested in the guidelines would entail ominous consequences that should not be encouraged. It must be pointed out that by accepting “late reservations” and by treating them in basically the same way as reservations, the basic principle of pacta sunt servanda as expressed in Art. 26 of the Vienna Convention would be undermined in a serious way. Apart from that, the application of the regime on “late reservations” as proposed in the guidelines would result in the creation of a system of treaty amendment that is contrary to the regime established by Art. 39-41 of the Vienna Convention. Both of these consequences cannot be in our interest.


309

Regarding the guidelines on interpretative declarations, I wonder how far the guidelines are in conformity with Art. 31 of the Vienna Convention. Para. 3 of this Article emphasizes the need of the agreement of the parties on the interpretation. The guidelines do not properly accommodate this requirement. As a last point I would like to address the concept of conditional interpretative declarations as defined in draft guideline 1.2.1, i.e. unilateral statements formulated by States or international organizations when signing, ratifying ... a treaty, whereby the States or organizations subject their consent to be bound by the treaty to a specific interpretation of the treaty or of certain provisions thereof. In connection with the draft guidelines on interpretative declarations there are further provisions on the confirmation and on the late formulation of conditional declarations. Apart from our impression that the concept of conditional interpretative declarations is a rather vague one, we wonder whether the actual occurrence of this kind of declaration really justifies their separate treatment. We rather think that the effect of such a declaration is very similar to a reservation; the formulation of a conditional interpretative declaration could even put into question a State’s commitment to the treaty. For this reason we do not wish to encourage the formulation of such statements under the designation of “interpretative declarations”. However, we would be ready to contribute to the clarification of this concept if dealt with in the area of reservations.

II.

Observance, application and interpretation of treaties/Einhaltung, Anwendung und Auslegung von Verträgen

3.

Interpretation of treaties/Auslegung von Verträgen See QQ.I.2.g-1

DD. Relationship between international law and internal law/ Völkerrecht und innerstaatliches Recht II.

Application and implementation of international law in internal law/ Innerstaatliche Anwendung und Durchführung des Völkerrechts See also MM.III.4 and QQ.I.2.g-2

DD.II International Convention for the Suppression of the Financing of Terrorism—(no) definition of terrorism—punishable crimes—obligation to punish financing of terrorism as purely preparatory act/Übereinkommen zur Bekämpfung der Finanzierung des Terrorismus—(Vermeidung einer) Definition von Terrorismus—

310


Straftatbestände—Pönalisierungsverpflichtung einer Finanzierung von terroristischen Straftaten als reine Vorbereitungshandlung In November 2001, the Austrian Government submitted the International Convention for the Suppression of the Financing of Terrorism to the Parliament for adoption in the course of the ratification process.2 Since the problem of financing of terrorism is not explicitly dealt with in existing international treaties, the Convention on the Suppression of the Financing of Terrorism aims at improving this shortcoming. In this sense the Explanatory Memorandum submitted by the Government to the Parliament3 puts special emphasis on Article 2 of the Convention, establishing which offences will be punishable under the Convention. Article 2 of the Convention reads as follows: Article 2 1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out: (a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act. 2.(a) On depositing its instrument of ratification, acceptance, approval or accession, a state party which is not a party to a treaty listed in the annex may declare that, in the application of this Convention to the State Party, the treaty shall be deemed not to be included in the annex referred to in paragraph 1, subparagraph (a). The declaration shall cease to have effect as soon as the treaty enters into force for the state party, which shall notify the depositary of this fact; (b) When a state party ceases to be a party to a treaty listed in the annex, it may make a declaration as provided for in this article, with respect to that treaty.

2

Parliamentary Materials 902 Beil. Sten. Prot. (XXI. GP). Entry into force the 15 May 2002 (Federal Law Gazette, BGBl. III 102/2002).

3

Explanatory Memorandum in Parliamentary Materials, 902 Beil. Sten. Prot. (XXI. GP).


311

3. For an act to constitute an offence set forth in paragraph 1, it shall not be necessary that the funds were actually used to carry out an offence referred to in paragraph 1, subparagraph (a) or (b). 4. Any person also commits an offence if that person attempts to commit an offence as set forth in paragraph 1 of this article. 5. Any person also commits an offence if that person: (a) Participates as an accomplice in an offence as set forth in paragraph 1 or 4 of this article; (b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 4 of this article; (c) Contributes to the commission of one or more offences as set forth in paragraph 1 or 4 of this article by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence as set forth in paragraph 1 of this article; or (ii) Be made in the knowledge of the intention of the group to commit an offence as set forth in paragraph 1 of this article.

The Government’s Explanatory Memorandum4 states that Article 2 is the central article of the Convention. It determines what constitutes an “offence within the meaning of this Convention” (Paragraph 1); however, a direct definition of terrorism is avoided and the focus is on the provision and collection of funds for criminal acts which fall under one of the nine treaties that are listed in the Annex of the Convention. The Explanatory Memorandum continues that, since Austria is a party to all of these treaties, it does not need to make use of the possibility opened up by Paragraph 2 to exclude particular treaties from the definition of an “offence within the meaning of this Convention” according to Paragraph 1. In addition, the Explanatory Memorandum details that the financing of acts intended to cause death or serious bodily injury to a civilian is penalized, if the purpose of such an act is to intimidate a population or to compel a Government or an international organization to do or to abstain from any action. As to the problem that Paragraph 3 of Article 2 of the Convention contains statutory definitions of crimes which were not punishable under Austrian Law at the time of submission, the Explanatory Memorandum maintains that Paragraph 3 states that the

4

Ibid.

312


financing shall be punishable independent of whether the offence is subsequently carried out (financing of terrorism as the main offence). In contrast, in Austrian law (Sec. 12 StGB (Austrian Criminal Code)) the financing of criminal offences presents only a contributing offence (Beitragstäterschaft), which is punishable only if the offence financed has at least been attempted. Otherwise the financing as a mere preparatory act remains exempt from punishment, unless the conditions of Sec. 278a StGB (participation in a criminal organisation) apply. In view of the fact that currently Austrian law thus does not completely fulfil the penalization required in the treaty concerned, it is necessary to carry out the adaptation decided by the Federal Government on October 9, 2001 according to a common proposal of the Finance Minister and the Justice Minister. The German original of the relevant part of the Explanatory Memorandum reads as follows: Art. 2 ist die Zentralbestimmung des Übereinkommens. Er bestimmt, was eine “Straftat im Sinne dieses Übereinkommens” ist (Abs. 1), wobei eine direkte Definition des Terrorismus vermieden und auf das Bereitstellen oder Sammeln von finanziellen Mitteln für strafbare Handlungen abgestellt wird, die unter eine von neun Übereinkünften fallen, die in der Anlage zum Übereinkommen angeführt sind. Da Österreich Vertragspartei aller dieser Übereinkünfte ist, muss es von der in Abs. 2 eröffneten Möglichkeit, einzelne Übereinkünfte von der Definition der „Straftat im Sinne dieses Übereinkommens“ gemäß Abs. 1 auszuschließen, keinen Gebrauch machen. Daneben wird die Finanzierung von Straftaten, die den Tod oder eine schwere Körperverletzung von Personen herbeiführen sollen, pönalisiert, wenn die Tat darauf abzielt, eine Bevölkerungsgruppe einzuschüchtern oder eine Regierung oder internationale Organisation zu einem Tun oder Unterlassen zu nötigen. Abs. 3 bestimmt, dass die Finanzierung unabhängig davon strafbar sein soll, ob die finanzierte Straftat in der Folge tatsächlich begangen wurde (Terrorismusfinanzierung als Hauptdelikt). Demgegenüber stellt die Finanzierung strafbarer Handlungen nach österreichischem Recht (§ 12 StGB) lediglich eine Beitragstäterschaft dar, deren Strafbarkeit voraussetzt, dass die finanzierte Straftat zumindest versucht wurde. Andernfalls bleibt die Finanzierung als bloße Vorbereitungshandlung straflos, sofern nicht die Voraussetzungen des § 278a StGB (Beteiligung an einer kriminellen Organisation) vorliegen. Im Hinblick darauf, dass der im gegenständlichen Übereinkommen statuierten Pönalisierungsverpflichtung nach österreichischem Recht derzeit somit nicht vollständig entsprochen wird, ist jene Anpassung erforderlich, die von der Bundesregierung am 9. Oktober 2001 gemäß einem gemeinsamen Ministerratsvortrag des Bundesministers für Finanzen und des Bundesministers für Justiz beschlossen wurde.


313

EE. Subjects of international law/Völkerrechtssubjekte I.

States/Staaten

4.

Formation, continuity, succession and extinction of States/Entstehung von Staaten, Kontinuität, Staatennachfolge und Untergang von Staaten

d.

Extinctions/Untergang von Staaten

bb.

Effects of State succession/Rechtliche Folgen der Staatennachfolge

iii.

Succession in respect of treaties/Staatennachfolge in Verträge

See II.III.2

II.

International organisations/Internationale Organisationen

1.

In general/Allgemeines

a.

Status and Powers/Status und Befugnisse

cc.

Privileges and immunities of the organisation/Privilegien und Immunitäten der Organisation

II.1.a.cc-1 Decision of the Representatives of the Governments of the E. U. Member States on the privileges and immunities granted to the European Union Institute for Security Studies and the European Union Satellite Centre, and to their bodies and staff members—Austrian legal implementation—legal basis in the Law of the European Union/Beschluss der im Rat Vereinigten Vertreter der Regierungen der Mitgliedsstaaten der Europäischen Union vom 15. Oktober 2001 betreffend die Vorrechte und Immunitäten des Instituts für Sicherheitsstudien und des Satellitenzentrums sowie ihrer Organe und ihres Personals—österreichische Umsetzung—rechtliche Grundlage im Gemeinschaftsrecht In December 2001, the Federal Government submitted to the Parliament the Decision of the Representatives of the Governments of the E. U. Member States on the privileges and immunities granted to the European Union Institute for Security Studies and the European Union Satellite Centre, and to their bodies and staff members (Council Decision of 15 October 2001) for approval in the course of the ratification process.5 The Council Decision aims at transferring the privileges, immunities and facilities to the Institute for Security Studies and the European Union Satellite Centre (which

5

Parliamentary Materials 952 Beil. Sten. Prot. (XXI. GP).

314


were established by the Council as independent institutions of the European Union)6 as necessary to facilitate their adequate functioning. Thereby, immunity from jurisdiction as well as immunity from search, seizure, confiscation and any other form of arrest is granted. The German original of the relevant parts of the resolution reads as follows: Beschluss der im Rat Vereinigten Vertreter der Regierungen der Mitgliedstaaten der Europäischen Union vom 15. Oktober 2001 betreffend die Vorrechte und Immunitäten des Instituts für Sicherheitsstudien und des Satellitenzentrums sowie ihrer Organe und ihres Personals DIE IM RAT VEREINIGTEN VERTRETER DER REGIERUNGEN DER MITGLIEDSTAATEN DER EUROPÄISCHEN UNION – in Erwägung nachstehender Gründe: Um das Funktionieren des Instituts für Sicherheitsstudien und des Satellitenzentrums, die vom Rat als unabhängige Einrichtungen der Europäischen Union (nachstehend „Einrichtungen der Europäischen Union“ genannt) errichtet wurden,7 zu erleichtern, müssen diesen neuen Einrichtungen und ihrem Personal im Interesse der Europäischen Union die für ihre Tätigkeit unverzichtbaren Vorrechte, Immunitäten und Erleichterungen gewährt werden – BESCHLIESSEN: Artikel 1 Immunität von der Gerichtsbarkeit und Immunität von Durchsuchung, Beschlagnahme, Einziehung und jeder sonstigen Form des Zugriffs [...] Artikel 14 Dieser Beschluss wird im Amtsblatt veröffentlicht. Geschehen zu Brüssel am 15. Oktober 2001

As to the Austrian implementation of the Council Decision, the Government’s Explanatory Memorandum8 attached to the text states in its general comments, that this

6

Joint Actions 2001/554CFSP (Official Journal L 200, 25.7.2001, p. 1) and 2001/555/CFSP (Official Journal L 200, 25.7.2001, p. 5).

7

Ibid.

8



315

decision has law-changing and law-supplementing character und thus, according to Art. 50 Paragraph 1 B-VG (Federal Constitution) requires the approval of the National Assembly. The decision does not contain provisions that change or supplement the Constitution and it is not of a political nature. It is accessible to the direct application of internal legal regime, so that the passing of laws according to Art. 50 Paragraph 2 B-VG is not necessary. Since through this decision matters concerning the independent sphere of action of the provinces (Länder) is regulated, the assent of the Federal Council (Bundesrat) is also required according to Art. 50 Paragraph 1 Second Sentence B-VG. Furthermore, the Explanatory Memorandum refers to the case history of the Council Decision, pointing out that the European Council decided in its meeting of June 3 and 4, 1999 in Cologne, the incorporation of the duties and operative capacities of the Western European Union into the European Security and Defence Policy (ESDP), without resulting in a fusion of the two organisations. In this context, the (General Affairs) Council was instructed to create the prerequisites and to take the measures necessary for this “new step in the construction of the European Union”. This laid the foundation for the restriction of the WEU to certain residual functions that were agreed upon on the occasion of the WEU Ministerial Council of Marseille on November 13, 2000. On November 10, 2000, the Council passed the landmark decision to incorporate as part of the operative capacities of the WEU its Satellite Centre (SatCen) in Torrejón (Spain) as well as the Institute for Security Studies (ISS) in Paris into the ESDPStructures and establish them as agencies of the second pillar. This incorporation occurred finally through the common actions Nr. 2001/554/ESDP and 2001/555/ESDP9 according to Art. 14 TEU, which were accepted by the Council on July 20, 2001. Finally, the need for the Council Decision is explained by the non-applicability of the “Protocol on the Privileges and Immunities of the European Communities” to former WEU-Institutions and their staff. The Explanatory Memorandum states in this respect that since the protocol is not applicable to the former WEU-Institutions and their staff that now continue as agencies of the European Union, the privileges and immunities of SatCen and ISS are explicitly regulated through the decision at hand of October 15, 2001. For lack of express legal grounds in the EU founding treaties, this decision is to be treated internally like an international agreement, to be approved by the National Assembly according to Art. 50 B-VG.

9

Official Journal L 200 of July 25, 2001.

316


The German original of the relevant parts of the Explanatory Memorandum reads as follows: Der Beschluss der im Rat vereinigten Vertreter der Regierungen der Mitgliedstaaten der Europäischen Union betreffend die Vorrechte und Immunitäten des Instituts für Sicherheitsstudien und des Satellitenzentrums sowie ihrer Organe und ihres Personals hat gesetzändernden bzw. gesetzesergänzenden Charakter und bedarf daher gemäß Art. 50 Abs. 1 B-VG der Genehmigung durch den Nationalrat. Er enthält keine verfassungsändernden und verfassungsergänzenden Bestimmungen und hat nicht politischen Charakter. Er ist der unmittelbaren Anwendbarkeit im innerstaatlichen Rechtsbereich zugänglich, sodass die Erlassung von Gesetzen gemäß Art. 50 Abs. 2 B-VG nicht erforderlich ist. Da durch diesen Beschluss Angelegenheiten des selbständigen Wirkungsbereichs der Länder geregelt werden, bedarf er überdies der Zustimmung des Bundesrates gemäß Art. 50 Abs. 1 zweiter Satz B-VG. […] Der Europäische Rat beschloss in seiner Tagung vom 3. und 4. Juni 1999 in Köln die Einbeziehung der Aufgaben und operativen Kapazitäten der Westeuropäischen Union in die Europäische Sicherheits- und Verteidigungspolitik (ESVP), ohne eine Verschmelzung der beiden Organisationen zu bewirken. Der Rat (Allgemeine Angelegenheiten) wurde in diesem Zusammenhang beauftragt, die Voraussetzungen zu schaffen und die Maßnahmen zu treffen, die für diesen „neuen Schritt beim Aufbau der Europäischen Union“ erforderlich sind. Damit wurde der Grundstein für eine Beschränkung der WEU auf bestimmte Restfunktionen gelegt, die anlässlich des WEU-Ministerrates von Marseille am 13. November 2000 vereinbart wurden. Am 10. November 2000 fasste der Rat (Allgemeine Angelegenheiten) den Grundsatzbeschluss, als Teil der operativen Kapazitäten der WEU deren Satellitenzentrum (SatCen) in Torrejón (Spanien) sowie das Institut für Sicherheitsstudien (ISS) in Paris in die ESVP-Strukturen zu überführen und sie als Agenturen der zweiten Säule einzurichten. Diese Übernahme erfolgte schließlich durch die Gemeinsamen Aktionen Nr. 2001/554/GASP und 2001/555/GASP (Amtsblatt Nr. L 200 vom 25. Juli 2001) gemäß Art. 14 EU-V, die vom Rat (Allgemeine Angelegenheiten) am 20. Juli 2001 angenommen wurden. Da das „Protokoll über die Vorrechte und Befreiungen der Europäischen Gemeinschaften“ auf die forthin als Unionsagenturen weiterbestehenden ehemaligen WEUEinrichtungen und ihre Bediensteten nicht anwendbar ist, werden die Privilegien und Immunitäten von SatCen und ISS eigens durch den vorliegenden Beschluss vom 15. Oktober 2001 geregelt. Dieser Beschluss ist mangels einer ausdrücklichen Rechtsgrundlage in den EU-Gründungsverträgen innerstaatlich wie ein durch den Nationalrat gemäß Art. 50 B-VG zu genehmigender Staatsvertrag zu behandeln.


317

II.1.a.cc-2 Amending Agreement to the Protocol on the Privileges and Immunities of the European Telecommunications Satellite Organization (EUTELSAT)—exclusion of immunity from jurisdiction for commercial activities/Änderung des Protokolls über Privilegien und Immunitäten der Europäischen Fernmeldesatellitenorganisation (EUTELSAT)— Immunität von der Gerichtsbarkeit—Ausnahmen für gewerbliche Tätigkeiten In February 2002, the Austrian Government submitted an amending agreement to the Protocol on the Privileges and Immunities of the European Telecommunications Satellite Organization (EUTELSAT) to the Parliament for approval in the course of the ratification process.10 This amending agreement, as stated in the general comments of the Government’s Explanatory Memorandum11 attached to the text, aimed at ensuring the commercial competitiveness of EUTELSAT by means of a restructuring of the organization. In fact, the operational tasks as well as the property assets of the organization related thereto should be transferred to a stock company (“Eutelsat S.A.”) to be founded according to national law. The German original of the relevant part of the Explanatory Memorandum reads as follows: Mit dieser letzen Änderung des EUTELSAT-Übereinkommens sollte durch eine Umstrukturierung von EUTELSAT deren kommerzielle Wettbewerbsfähigkeit hergestellt werden. Dabei bestand die Absicht, die betrieblichen Aufgaben und die damit verbundenen Vermögenswerte von EUTELSAT einer nach nationalem Recht zu gründenden Aktiengesellschaft (“Eutelsat S.A.”) zu übertragen.

Article III of the Amending Agreement to the Protocol on the Privileges and Immunities of the EUTELSAT reads as follows: Article III Article 3—Immunity of EUTELSAT from Jurisdiction and Execution, is replaced by the following text: Immunity of the Organization from Jurisdiction and Execution (1) Unless it has expressly waived immunity in a particular case, EUTELSAT shall, in the exercise of its official activities, have immunity from jurisdiction except in the following cases:

10


11


318


(a) Any commercial activities; (b) Where a civil action is brought by a third party for damage arising from an accident caused by a motor vehicle or any other means of transport belonging to, or operated on behalf of EUTELSAT or in respect of a traffic offence involving such a vehicle or means of transport; (c) for the attachment, pursuant to the final order of a court of law, of the salaries and emoluments, including pensions rights, owed by EUTELSAT to a staff member, or a former staff member; (d) in respect of a counter-claim directly connected with judicial proceedings initiated by EUTELSAT; (e) for the enforcement of an arbitration award made under Article XV of the Convention. (2) Notwithstanding paragraph (1), no action shall be brought in the courts of Parties to the Protocol against EUTELSAT by Parties to the Convention or persons acting for or deriving claims from any of them, relating to rights and obligations under the Convention. (3) The property and assets of EUTELSAT, wherever located and by whomsoever held, shall be immune from any search, restraint, requisition, seizure, confiscation, expropriation, sequestration or execution, whether by executive, administrative or judicial action, except in respect of: (a) An attachment or execution in order to satisfy a final judgement or order of a court of law that relates to any proceedings that may be brought against EUTELSAT pursuant to paragraph (1); (b) Any action taken in accordance with the law of the state concerned which is temporarily necessary in connection with the prevention of and investigation into accidents involving motor vehicles or other means of transport belonging to, or operated on behalf of, EUTELSAT; (c) Expropriation in respect of real property for public purposes and subject to prompt payment of fair compensation, provided that such expropriation does not prejudice the functions and operations of EUTELSAT.

The Explanatory Memorandum12 states in regard to Article III that said article of the amending agreement replaces the previous provisions of the protocol embodying EUTELSAT’s immunity from jurisdiction and execution. New—and in accordance

12

Ibid.


319

with the reorganisation of EUTELSAT—is the general exclusion of immunity from jurisdiction for “any commercial activities” (Article 3 sub-paragraph 1 (a)). In addition, references to the operation agreement and the space segment were deleted. The German original reads as follows: Diese Bestimmung ersetzt die bisherigen Bestimmungen des Protokolls über die Immunität der EUTELSAT von der Gerichtsbarkeit und Vollstreckung. Neu—und im Einklang mit der Umstrukturierung von EUTELSAT—ist die generelle Ausnahme von der Immunität von der Gerichtsbarkeit für „jede gewerbliche Tätigkeit“ (Art. 3 Abs. 1 lit. a). Bezugnahmen auf die Betriebsvereinbarung und das Weltraumsegment wurden gestrichen. b.

Participation of states in international organisations and in their activities/Mitgliedschaft in internationalen Organisationen, Teilnahme an ihren Aktivitäten

dd.

Representation of states, including privileges and immunities/Vertretung der Staaten, einschließlich ihrer Privilegien und Immunitäten

EE.II.1.b.dd Peacekeeping operations—UNMIK—repatriation for medical reasons of an Austrian CIVPOL officer detained before on suspicion of torturing (beating and threatening) an Albanian prisoner in his custody—peacekeepers’ immunities—actions taken by the Austrian authorities/Friedenserhaltende Operationen—UNMIK—Repatriierung aus medizinischen Gründen eines wegen Verdachts der Folter (Schläge und Drohungen) eines albanischen Gefangenen festgehaltenen österreichischen CIVPOL Beamten—Immunitäten der Peacekeeper—Vorgehensweise der österreichischen Autoritäten In March 2002, a parliamentary request was addressed to the Federal Minister for Foreign Affairs asking her about the action of the Austrian UN-Embassy in New York in regard to the case of an Austrian police officer in Kosovo who was suspected of torture.13 The request cited the US-journal “Washington Post” of 6 March 2002. There, it was reported that Austrian officials had facilitated the flight of an Austrian police officer who had been captured together with Kosovo-Albanian police officers in Prizren under suspicion of torture on 26 February 2002. Furthermore, the request referred to a letter which had been written by Ambassador Pfanzelter the 28 February 2002. There, the Ambassador allegedly (according to the Washington Post) warned “that if the incident was not resolved to his Government’s satisfaction, Austria would consider ending its participation in U.N. peacekeeping operations around the world.”

13

Parliamentary Materials 3583/J (XXI.GP), 3554/AB (XXI.GP).

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That is why, in her response of May 2002, the Foreign Minister presented said letter of Ambassador Pfanzelter, explaining that there had been a misunderstanding. The letter reads as follows: H.E. Mr. Kofi Annan Secretary-General of the United Nations Room S-3800 United Nations Headquarters New York, 28 February 2002 Excellency, l would like to bring to your personal attention the case of Mr. Martin Almer, an Austrian CIVPOL officer in Kosovo, the handling of which could seriously jeopardize the Austrian participation not only in UNMIK but in peacekeeping operation in general. Allegations of misconducts against Mr. Almer have been raised. He has subsequently been arrested and detained. The investigating prosecutor in Kosovo has now requested that his immunity be waived. A decision by the UN Legal Advisor is imminent. According to information that the Austrian Federal Government has received the circumstances under which Mr. Almer has been arrested and detained as well as the allegations raised against him give grave reasons to believe that Mr. Almer may have been framed. Initial inquiries raise serious questions about the role of several UN officials on the ground. Due to the seriousness of the matter and the contradictory information I have been formally instructed by the Austrian Federal Government to request the immediate establishment of a UN inquiry commission with Austrian participation before any further action is taken. Moreover I have been instructed by the Austrian Federal Government to convey that Austria will not accept, the waiving of immunity of Mr. Almer without the report of such an investigation be brought to the attention of the Austrian Federal Government for comment. Please accept, Excellency, the assurances of my highest consideration. Gerhard Pfanzelter Ambassador

The Federal Minister for Foreign Affairs specified that the misunderstanding had been caused, because the letter had been quoted unexamined and the quote had been contrary to the facts. Neither the United Nations nor the Austrian representation at the United Nations had required clarification. She added that the position of the Austrian Federal Government in regard to future UN-peacekeeping missions remained unchanged.


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The German original reads as follows: Das Missverständnis bestand in der auch von der Anfragestellerin verbreiteten und einigen Medien ungeprüft übernommenen tatsachenwidrigen Darstellung des Schreibens. Im Gegensatz dazu bedurften weder die Vereinten Nationen noch die österreichische Vertretung bei den Vereinten Nationen einer Aufklärung. Die Position der österreichischen Bundesregierung zu künftigen friedenserhaltenden Einsätzen der UNO ist unverändert.

FF. The position of the individual (including legal entities/ corporation) in international law/Die Stellung der Einzelperson (einschließlich der juristischen Person) im Völkerrecht VII. Immigration and emigration, extradition, expulsion, asylum/ Einwanderung und Auswanderung, Auslieferung, Ausweisung, Asyl 1.

Immigration and emigration/Einwanderung, Auswanderung

FF.VII.1 UN Commission on Human Rights 58th Session—Mass Exoduses and Internally Displaced Persons/Menschenrechtskommission der Vereinten Nationen 58 te Sitzungsperiode—Massen-Auswanderungen und intern Vertriebene On 23 April 2002 the Head of the Austrian Delegation to the 58th UN Commission on Human Rights made the following statement concerning the question of mass exoduses and internally displaced persons:14 […] Mr. Chairman, one important factor for many to be better able to address situations of internal displacement was certainly the elaboration of the Guiding Principles, which constitute a useful tool and framework for dealing with IDP situations. All relevant international organizations and agencies use them in their daily business with IDPs. An increasing number of states are incorporating them into their national legislation. We would like to express our deep appreciation to all those who apply these Principles as a basis for dealing with IDP situations and believe that this reflects how essential and, I would say, indispensable the Guiding Principles have become for all those concerned with IDPs. The Guiding Principles today are the standard and guideline for addressing the needs of the internally displaced.

14


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Mr. Chairman, the development of the Guiding Principles is not the only major achievement we have witnessed over the past years with regard to IDPs. Also institutionally, significant progress has been made. Since January 1 this year, a Unit on Internal Displacement has started working with the aim of ensuring a predictable and concerted response among all concerned UN actors to the problems of internal displacement. It uses the Guiding Principles as an overall framework and has the important task, in complementing the Representative of the SecretaryGeneral, to better coordinate the protection and assistance efforts of the various agencies and bodies on the ground. The Austrian government fully supports this Unit as an important new structure, which will hopefully help alleviate the plight of many IDPs around the world. Mr. Chairman, while these achievements are certainly important, there can be no reason for celebration when we look at the actual situation of most IDPs throughout the world. Wherever there is conflict, in all likelihood there is displacement too. When we want to prevent displacement, we therefore have to do more to prevent or end conflicts. At the same time, we need to address more efficiently other root causes for displacement, such as grave human rights violations or extreme poverty. There is certainly a role for the international community to be played. It is up to us to recall that IDPs, too, shall be able to enjoy all human rights and fundamental freedoms, as do other persons in their respective country. The primary duty and responsibility to protect their rights lies with their national authorities. But we need to recognize sovereignty as a concept of responsibility for the protection of civilians, in particular those most vulnerable like IDPs. […]

4.

Asyl-Asylum/Asyl

FF.VII.4 Applications for asylum of Afghan asylum seekers—closing of the Embassy’s consular department in Islamabad/Asylanträge von afghanischen AsylwerberInnen— Schließung der Konsularabteilung der österreichischen Botschaft in Islamabad In October 2001, a parliamentary request was addressed to the Federal Minister for Foreign Affairs asking her about the applications of Afghan asylum seekers’ which had been made at the Austrian Embassy in Islamabad and the closing of the Embassy’s consular department.15 More in detail, she was asked who had given the directive to close the consular department the 8 October 2003 and how she justified this closure. In her reply of December 2001 the Foreign Minister stated that the closing had occurred for reasons of security according to a directive of the Federal Ministry for Foreign Affairs in agreement with the Federal Ministry of the Interior. The Pakistani

15



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police had already declared that in light of the incipient riots it could no longer guarantee security, so that physical attacks or drastic measures from the sides of the executive had to be anticipated. The transition towards written instead of personal applications thus occurred last but not least for the sake of the protection of the asylum seekers themselves. To the question how she assessed the fact that the closure of the consular department had impeded applications for asylum of asylum seekers at an Austrian mission as laid down in the Asylum Act, she answered that the filing of a request for asylum was not prevented, but rather the danger of physical attacks resulting from the fights for application forms was eliminated. The embassy continued throughout, even during the temporary closure of the consular department, to accept applications, now up to a little more than 4000. The German original reads as follows: Die Schließung erfolgte auf Weisung des Bundesministeriums für auswärtige Angelegenheiten im Einvernehmen mit dem Bundesministerium für Inneres aus Sicherheitsgründen. Die pakistanische Polizei hatte bereits erklärt, die Sicherheit angesichts einsetzender Tumulte nicht länger garantieren zu können, so dass mit Übergriffen bzw. einem harten Durchgreifen der Exekutive gerechnet werden musste. Der Übergang auf eine schriftliche anstelle persönlicher Antragstellung erfolgte also nicht zuletzt zum Schutz der Asylwerber selbst. Die Einbringung von Asylanträgen wurde nicht verhindert, es wurde bloß die Gefahr von Übergriffen bei Tumulten im Kampf um Antragsformulare beseitigt. Die Botschaft hat laufend, auch während der vorübergehenden Schließung der Konsularabteilung, Anträge entgegengenommen, bisher etwas über 4000.

VIII. Human rights and fundamental freedoms/ Menschenrechte und Grundfreiheiten See QQ.I.2.g-2

X.

Criminal responsibility of the individual (see MM.)/ Strafrechtliche Verantwortlichkeit des Einzelmenschen (siehe MM.) See MM.III.4

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GG. Organs of the state and their legal status/ Die Staatsorgane und ihr rechtlicher Status V.

Consulates and their members/Konsulate und ihre Mitglieder See FF.VII.4

II.

State territory/Das Staatsgebiet

I.

Territory/Das Gebiet

1.

Elements of territory/Gebietsteile

b.

Air Space (see LL.)/Luftraum (siehe LL.)

II.I.1.b-1 Violation of the Austrian air space—notes of protests—protection of the Austrian sovereignty of its air space/Verletzung des österreichischen Luftraums—ProtestnotenWahrung der österreichischen Lufthoheit In July 2001, a request was addressed to the Federal Minister for Foreign Affairs asking her about the purchase of at least 24 interceptors for 30.000.000.000 Shilling and the necessity of this transaction.16 As the Federal Government had argued the purchase with the obligation to preserve the sovereignty of the Austrian air space (Lufthoheit) and the obligation to act as aviation police (Luftfahrtpolizei), the request inquired, which disadvantages would have arisen for Austria if its protests vis-à-vis other states, alleging a violation of the Austrian airspace, which seemed to be the principal expression of this sovereignty of the Austrian air space, would have been omitted. In her reply of September 2001 the Foreign Minister stated that from the point of view of international law, protests were required on the grounds of protection of rights, in order to prevent future violations of Austrian air space and thus Austrian sovereignty. Without any act of protest the Austrian air space would soon be regarded as free space, which can be crossed uncontrollably—this would not be in the interest of Austrian foreign and security policy and would also contradict Austrian laws. The German original reads as follows: Aus völkerrechtlicher Sicht sind Proteste aus Gründen der Rechtswahrung geboten, um künftige Verletzungen des österreichischen Luftraumes und somit der österreichischen Souveränität hintanzuhalten. Ohne Protesterhebung würde der österrei-

16



325

chische Luftraum bald als freier Raum betrachtet werden, der in unkontrollierter Weise überflogen werden kann—dies wäre nicht im Interesse der österreichischen Außen- und Sicherheitspolitik und widerspräche auch der österreichischen Gesetzeslage.

II.I.1.b-2 Deployment of interceptors—protection of the sovereignty of the air with interceptors as duty of a sovereign state/Einsatz von Abfangjägern—Wahrung der Lufthoheit mit Abfangjägern als Aufgabe eines souveränen Staates In July 2001, a parliamentary request was addressed to the Federal Minister for Defence asking him about the necessity of the purchase of at least 24 interceptors for 30.000.000.000 Shilling in particular before the background of the changed international environment after the dissolution of the Warsaw Pact and Austria’s active policy of neutrality.17 As the Austrian Government and the Minister for Defence had explained the purchase with the need to ensure the sovereignty of the Austrian airspace (Wahrung der Lufthoheit über Österreich) as a duty of a sovereign state, the request inquired, what damage or what concrete disadvantages had arisen for Austria through such violations. In his response of September 2001 the Minister for Defence stated that, in principle, the danger of air space violations that were not followed up was the loss of credibility of the protection of the Austrian territory. Since Austria had up to then undertaken credible efforts in that respect, damages or disadvantages in the sense of the question could be avoided. In that connection he referred to the safeguarding mission of the Austrian Federal Army in 1991, where further air space violations were prevented only through the immediate intervention with interceptor aircrafts. The German original reads as follows: Prinzipiell besteht die Gefahr von Luftraumverletzungen, denen nicht nachgegangen wird, darin, dass die Glaubwürdigkeit der Sicherung des österreichischen Staatsgebietes verloren geht. Da Österreich diesbezüglich bis dato glaubwürdige Anstrengungen unternommen hat, konnten Schäden bzw. Nachteile im Sinne der Fragestellung vermieden werden. In diesem Zusammenhang verweise ich auf den Sicherungseinsatz des österreichischen Bundesheeres im Jahre 1991, bei der nur durch das unverzügliche Einschreiten von Abfangjägern weitere Luftraumverletzungen vermieden werden konnten.

Asked, whether it was true that Ireland had no interceptors, and if so, whether Ireland

17

Parliamentary Materials, 2797/J (XXI.GP), 2744/AB (XXI.GP).

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was a sovereign state, the Minister for Defence stated that concerning this, the Federal Ministry for Foreign Affairs had given the following statement from the point of view of international law: “The question of sovereignty of a state in international law is independent of the strength of its armed forces. The fact that Ireland does not dispose over air space surveillance aircraft is thus not relevant for the question of its sovereignty, and it is like Austria a sovereign state. Its geopolitical location however cannot be compared with that of Austria.” Considering that Ireland is of course an island in the Atlantic, in respect to geopolitical location and international law, Austria should be compared with Switzerland, Sweden and Finland. However, these states have a much higher potential of interceptors (134, 120 and 64 aircrafts). The German original reads as follows: Hiezu hat das Bundesministerium für auswärtige Angelegenheiten aus völkerrechtlicher Sicht folgende Stellungnahme abgegeben: „Die Frage der Souveränität eines Landes ist völkerrechtlich von jener der Stärke seiner Streitkräfte unabhängig. Der Umstand, dass Irland über keine Luftraumüberwachungsflugzeuge verfügt, ist daher für die Frage seiner Souveränität nicht relevant, und es ist wie Österreich ein souveräner Staat. Dessen geopolitische Lage ist allerdings mit jener Österreichs nicht vergleichbar.“ Auf Grund der Tatsache, dass es sich bei Irland bekanntlich um eine Insel im Atlantik handelt, wäre Österreich in geopolitischer wie völkerrechtlicher Hinsicht außer mit der Schweiz mit Schweden und Finnland zu vergleichen, wobei aber diese Staaten über ein weit höheres Potenzial an Jagdflugzeugen (134, 120 bzw. 64 Stück) verfügen.

II.

Boundaries and frontiers/Grenzen

1.

Delimitation/Delimitation See II.III.2

III.

Acquisition and transfer of territory/ Gebietserwerb und Gebietsübertragung

2.

Transfer/Gebietsübertragung

II.III.2 Treaty between the Republic of Austria and the Czech Republic on the Changes of the Course of the Common Border with Annexes—localized treaty—border adjustments for clear recognizability of borderlines (mostly adaptation to the course of the rivers forming the boundaries)—territorial sovereignty—transfer of property—real rights and compensation of third persons/Vertrag zwischen der Republik Österreich und der Tschechischen Republik über Änderungen des Verlaufes der gemeinsamen Staatsgrenze samt Anlagen—radizierter Vertrag—Grenzänderung zwecks klarer


327

Erkennbarkeit des Grenzverlaufs (zumeist Anpassung an den Lauf der Grenzflüsse)— territoriale Souveränität—Eigentumsübergang—dingliche Rechte und Entschädigung von Drittpersonen In January 2002, the Federal Government of Austria submitted to the Parliament the treaty between the Republic of Austria and the Czech Republic on the changes of the course of the common border with annexes18 (Border Treaty of 2001) for approval in the course of the ratification process. The border adjustments became necessary, because the river courses, the mid-line of which fixed the state border in the border archives (Grenzurkundenwerk) of 1923, were—artificially as well as naturally—changed in the seventies and eighties of the 20th century. As, for that reason, the state border sometimes ran outside riverbeds or crossed them, a clear recognizability of the border was no longer given. As to the case history19: The Treaty between the Republic of Austria and the Republic of Czechoslovakia on the common border of 21 December 197320 (Border Treaty of 1973), which remains in effect as a localized treaty between Austria and the Czech Republic, is predominantly based on the boundaries fixed by the Committee on the Regulation of the Frontier (Grenzregelungsausschuss) which were subsequently laid down in the border archives of 1923. Said Committee on the Regulation of the Frontier had—according to Art 30 of the State Treaty of Saint-Germain-en-Laye— declared most of the borderline following water courses as immovable. Since in the border archives the midline of the riverbed was fixed without taking into consideration subsequent changes of the river courses, adjustments became necessary to ensure the clear recognizability of the borderline. It is with these considerations in mind, that the Permanent Austrian-Czechoslovakian Border Commission (Ständige österreichische-tschechoslowakische Grenzkommission) which had been established under the Border Treaty of 1973 proposed the present adjustments (which are laid down in the Border Treaty of 2001). As to the legal implementation of the Border Treaty of 2001, the Government’s Explanatory Memorandum21 attached to the text states in its general comments that, as the entire Treaty is amending or supplementing laws, the approval of the National Council is needed according to Article 50 Paragraph 1 B-VG (Federal Constitution). In addition, Article 1 of the treaty is amending constitutional law, as it is modifying Austria’s border with the Czech Republic, which is fixed by constitutional law.

18

Done in Prague, 26 October 2001. Parliamentary Materials 972 Beil. Sten. Prot. (XXI. GP).

19

See Explanatory Memorandum in Parliamentary Materials, 972 Beil. Sten. Prot. (XXI. GP).

20

Federal Law Gazette, BGBl. 344/1975.

21

Ibid.

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Therefore, Article 1 is to be designated as “constitutional amendment”, in corresponding application of Article 44 Paragraph 1 B-VG. The Explanatory Memorandum continues that, according to Article 3 Paragraph 2 B-VG, corresponding constitutional laws of the federation as well as of the provinces (Länder) concerned are required. It also maintains that all the provisions of the treaty can be inserted in the Austrian legal system, so that no special transformation is needed. The German original of the relevant part of the Explanatory Memorandum reads as follows: Der am 26. Oktober 2001 in Prag unterzeichnete Vertrag zwischen der Republik Österreich und der Tschechischen Republik über Änderungen des Verlaufes der gemeinsamen Staatsgrenze hat zur Gänze gesetzesändernden bzw. gesetzesergänzenden Inhalt und bedarf daher gemäß Art. 50 Abs. 1 B-VG der Genehmigung durch den Nationalrat. Der Artikel 1 des vorliegenden Vertrages ist überdies verfassungsändernd, indem er die verfassungsrechtlich festgelegte Grenze der Republik Österreich gegen die Tschechische Republik ändert. Dieser Artikel ist daher unter sinngemäßer Anwendung des Art. 44 Abs. 1 B-VG zu behandeln und ausdrücklich als “verfassungsändernd” zu bezeichnen. Ferner sind nach Art. 3 Abs. 2 B-VG für die vereinbarten Gebietsänderungen übereinstimmende Verfassungsgesetze des Bundes und der betroffenen Länder erforderlich. […] Alle Bestimmungen des Vertrages fügen sich in die bestehende österreichische Rechtsordnung ein, sodass eine spezielle Transformation nicht erforderlich ist.

Article 2 (Paragraphs 1 and 3) of the Border Treaty of 2001 describes the parts of the territory that by act of the treaty pass into the territorial sovereignty of the other state. The paragraphs 2 and 4 state explicitly that real estate, including buildings, other installations and vegetation that are located on these territories are included in the transfer of property. The German original of Article 2 reads as follows: Artikel 2 (1) Auf Grund des Artikels 1 Absatz 1 fallen folgende Teile des Hoheitsgebietes der Tschechischen Republik dem Hoheitsgebiet der Republik Österreich zu: […] (2) Die in den in Absatz 1 genannten Gebietsteilen befindlichen Liegenschaften, einschließlich Bauten, sonstiger Anlagen und Bewuchs gehen in das Eigentum der Republik Österreich (Bund) über. (3) Auf Grund des Artikels 1 Absatz 1 fallen folgende Teile des Hoheitsgebietes der Republik Österreich dem Hoheitsgebiet der Tschechischen Republik zu: […]


329

(4) Die in den in Absatz 3 genannten Gebietsteilen befindlichen Liegenschaften, einschließlich Bauten, sonstiger Anlagen und Bewuchs gehen in das Eigentum der Tschechischen Republik über.

The Government’s Explanatory Memorandum states in regard to Article 2, paragraphs 2 and 4 that the parts of territory shall directly, by virtue of the treaty, pass into the unencumbered property of that party to the treaty into whose territorial sovereignty they come. According to the generally accepted rules of international law, with the extension of the Austrian territorial sovereignty and jurisdiction (Gebietshoheit) over the territory passing to Austria, the Austrian legal order applies also to these pieces of land, while the Czech legal regime loses its validity (Geltungsanspruch). Such a provision was also included in other international agreements. A treaty which does not address the property of pieces of land passing thus to another state, would require a plethora of complicated transitional provisions for the protection of the owners of the properties concerned, in particular also in regard to land and register law (Grundbuchrecht) and law concerning taxes and duties (Abgabenrecht). The German original of the relevant part of the Explanatory Memorandum reads as follows: Die Gebietsteile sollen unmittelbar kraft Vertrages in das lastenfreie Eigentum desjenigen Vertragsstaates übergehen, dessen Hoheitsgebiet sie zufallen. Mit der Ausdehnung der österreichischen territorialen Souveränität und Gebietshoheit auf die an Österreich übergehenden Gebietsteile wird auf diese im Einklang mit den allgemein anerkannten Regeln des Völkerrechts die österreichische Rechtsordnung erstreckt, während die tschechische Rechtsordnung ihren Geltungsanspruch einbüßt. Eine derartige Regelung ist auch bei anderen Staatsverträgen angewendet worden. Denn eine vertragliche Regelung, die das Eigentum an derartigen übergehenden Gebietsteilen unberührt lässt, würde zum Schutz der betroffenen Grundeigentümer und sonstigen Nutzungsberechtigten eine Fülle von komplizierten Übergangsvorschriften, insbesondere auch auf den Gebieten des Grundbuchrechtes und des Abgabenrechtes, erforderlich machen.

Article 4 of the border treaty of 2001 states that with the transfer of property all other rights concerning the real estates transferred expire, unless they are based on other treaty provisions. The German original of Article 4 reads as follows: Artikel 4 Mit dem Übergang des Eigentums nach Artikel 2 Absätze 2 und 4 erlöschen alle sonstigen Rechte an den übergehenden Liegenschaften, soweit sie nicht auf anderen staatsvertraglichen Regelungen beruhen.

The Government’s Explanatory Memorandum states in regard to Article 4 that,

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according to this provision, with the transfer of property all public and private rights towards the land transferred shall expire; this is valid above all also for rights of lien and other rights in rem, as well as in the area of public law, for example for the right of common use, the law of right of passage and the like. An exception shall only be provided for special provisions in other international agreements, since otherwise this provision could encroach on other treaties. The German original of the relevant part of the Explanatory Memorandum reads as follows: Nach dieser Bestimmung sollen mit dem Eigentumsübergang alle öffentlichen und privaten Rechte an den übergehenden Liegenschaften erlöschen; dies gilt vor allem auch für Pfandrechte und andere dingliche Rechte, ebenso auf dem Gebiet des öffentlichen Rechtes, zB für das Recht des Gemeingebrauchs, öffentliche Wegerechte und dergleichen. Eine Ausnahme soll nur für besondere Regelungen in anderen zwischenstaatlichen Vereinbarungen vorgesehen werden, da ansonsten unter Umständen durch diese Bestimmung in andere Verträge eingegriffen wird.

Article 5 is dealing with the property rights of third persons who are affected by the property transfers outlined in Article 2 and fixes the respective states’ obligation to provide compensation. The German original of Article 5 reads as follows: Artikel 5 (1) Falls durch den Eigentumsübergang nach Artikel 2 dritte Personen in ihren Rechten verletzt werden, wird der Vertragsstaat, auf dessen Hoheitsgebiet die Liegenschaften vor dem Eigentumsübergang gelegen sind, den dritten Personen eine Entschädigung gemäß seinen innerstaatlichen Rechtsvorschriften gewähren; gegen den Vertragsstaat, in dessen Eigentum die Liegenschaften übergehen, können dritte Personen keine Ansprüche geltend machen. […]

The Government’s Explanatory Memorandum states in regard to Article 5 that this provision shall prevent persons whose rights have been infringed by the border changes from asserting redress demands towards the state taking over the territory. On the Austrian side the land affected by the transfer of property has been ceded by contract against compensation to the Austrian state. The German original of the relevant part of the Explanatory Memorandum reads as follows: Diese Bestimmung soll verhindern, dass von den Grenzänderungen in ihren Rechten verletzte Personen Schaden erleiden und Regressansprüche an den übernehmenden Staat geltend gemacht werden. Auf österreichischer Seite sind die vom Eigentumsübergang betroffenen Gebietsteile von den Eigentümern vertraglich an den Bund gegen Entgelt abgetreten worden.


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LL. Air Space, Outer Space and Antarctica/Luftraum, Weltraum, Antarktis I.

Air Space/Luftraum See II.I.1.b-1 and II.I.1.b-2

MM.International responsibility/Völkerrechtliche Verantwortlichkeit II.

General issues of responsibility/Allgemeines zur völkerrechtlichen Verantwortlichkeit

MM.II Work of the International Law Commission on state responsibility/Arbeit der Völkerrechtskommission betreffend Staatenverantwortlichkeit On 31 October 2001, the Legal Adviser of the Foreign Ministry of the Republic of Austria delivered the following statement to the 56th Session of the General Assembly Sixth Committee concerning the Report of the International Law Commission on the Work of its 53rd Session relating to state responsibility:22 Mr. Chairman, Let me firstly address the issue of state responsibility. The ILC has given absolute priority to this subject during its last two sessions, and has this year, after more than fifty years of labor, successfully concluded its work on it. Our appreciation goes to all five Special Rapporteurs who have contributed to this effort, but we want to pay a special tribute to the last Special Rapporteur, Professor Crawford, for the high quality of his work, which allowed to reach the point where we are now: the opportunity to discuss a complete set of draft articles on responsibility of states for internationally wrongful acts, adopted by the ILC. Apart from adopting these draft articles, the ILC has also come up with a procedural proposal contained in paras. 72 and 73 of its report, the recommendation to the General Assembly that it take note of the draft articles in form of a resolution and that it annex the draft articles to this resolution. It is further recommended that the General Assembly consider at a later stage, and in the light of the importance of the topic, the possibility of convening an international conference to examine the draft articles on state responsibility with a view to concluding a convention on the topic. 22


332


I would like to express the full support of my delegation for the wise approach recommended by the ILC. We have had many discussions in the past, not only but also in this committee, concerning the legal form to be chosen for the result of the work of the ILC on the subject of state responsibility, whether one should opt for a binding legal instrument in the form of a multilateral convention or for a nonbinding solution, like a General Assembly resolution. It is obvious that both avenues have their advantages and disadvantages, but serious reflection has led Austria to supporting the adoption of the draft articles as part of a General Assembly resolution. This is what the ILC recommends for this session of the General Assembly, without excluding, however, the possibility of convening an international conference on a convention on state responsibility at a later stage. Once again, we support the recommendations of the ILC, also because following this approach will allow testing the set of articles on state responsibility contained in an annex to a General Assembly resolution as to their adequacy in the light of state practice. This important exercise will take place whether or not the General Assembly takes any further decision on this subject. Should there be a decision on convening an international conference, the work of this conference will have gained from the experience with the draft articles, if not, they can continue to serve, insofar as they are accepted by state practice, as a kind of “code of conduct” on matters of state responsibility. Recent events have confirmed that state responsibility is a highly sensitive subject, and, together with the non-use of force and non-intervention, to which it is closely related, perhaps the most highly politically charged part of international law. Under these circumstances, a code of conduct is the best means to consolidate the law of state responsibility—even at the price that in the short run deviations may occur and may have to be tolerated. It should be noted in this respect that in addition to stating rules in writing, a code of conduct has yet another function which, odd as it may sound, is educational, or better habit forming: It means that in respect of rules which codify custom, opinio juris in wavering states may be consolidated. In its innovative, progressively developed part a code is a tool for shaping the future development of the law, either by building opinio juris for custom or by paving the way for a future multilateral convention. Whether the law develops along the indicated course can only be judged later, but the method has been successfully used for the development of whole branches of international law, such as human rights, outer-space and the environment It is my delegation’s view that in the long run perceived fairness will lead to acceptance, and acceptance will also lead to an adjustment of conduct expressed in the draft articles on responsibility of states for internationally wrongful acts. What is really needed at this stage is a determined effort by the General Assembly


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and by the international community to convince states that to live with defined rules in this matter is to the mutual advantage of both, the victim of a violation and the alleged wrongdoer. The draft articles of the ILC on state responsibility make a genuine effort to establish a fair balance between the justified interest of the victim of a wrongful act to pursue its right and the equally justified interest of an alleged wrongdoer to be protected against abuse or excessive of humiliating demands. It is criticized by some that the draft articles do not contain provisions on the settlement of disputes. As a matter of policy, Austria is always in favour of binding provisions for the peaceful settlement of disputes. In this case, however, the omission is not only acceptable but even necessary in view of the proposed status of the draft articles as an annex to a resolution. In my statement on this subject last year I remarked that “if the course of a General Assembly resolution is chosen, certain of the present draft articles would have to be adapted of even deleted, for example those concerning the settlement of disputes. However, this seems acceptable as there would always remain the possibility to resort to the already existing mechanisms for the settlement of disputes.” We are still of this opinion.

III.

Responsible entities/Träger der Verantwortlichkeit

1.

States/Staaten See QQ.I.2.g-1

4.

Individuals and groups of individuals, including corporations/ Individuen und Gruppen einschließlich juristischer Personen See also DD.II and QQ.I.2.g-1

MM.III.4 Federal Law on the Co-operation with the International Criminal Court—(challenge of the) admissibility of the case before the International Criminal Court (ICC)— deferral of proceedings—surrender of Austrian citizens—subpoena—access to records and transmission of information relating to the national security—surrender custody—taking over of enforcement of sentences of imprisonment/Bundesgesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof—(Anfechtung der) Zulässigkeit des Verfahrens vor dem Internationalen Strafgerichtshof (IStGH)— Verfahrensabtretung—Überstellung österreichischer Staatsbürger—Ladung— Akteneinsicht und Übermittlung von Information die die nationale Sicherheit betrifft— Überstellungshaft—Übernahme der Strafvollstreckung In July 2002, the Austrian Parliament passed the Federal Law on the Co-operation

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with the International Criminal Court.23 The Government’s Explanatory Memorandum24 states in its general comments that while—as a result of the ratification by Austria and its entry into force—the Statute will be directly applicable in Austria, and its provisions, in particular Parts 9 (International Co-operation) and 10 (Enforcement) are clear enough to be—if necessary—directly applied, it seems nevertheless advisable in the interest of certainty of the law and easier readability for those applying the law to transform the Statute into a special Federal Law, in particular since individual provisions are further developed through the Rules of Procedure and Evidence of the International Criminal Court. The German original of the relevant part of the Government’s Explanatory Memorandum reads as follows: Zwar wird das Statut infolge Ratifikation durch Österreich nach seinem In-KraftTreten unmittelbar anwendbar sein und sind die Bestimmungen, insbesondere der Teile 9 (Internationale Zusammenarbeit) und 10 (Vollstreckung), klar genug ausgestaltet, um gegebenenfalls auch direkt angewandt zu werden, doch erscheint es im Interesse der Rechtssicherheit und leichteren Lesbarkeit für den Rechtsanwender angezeigt, das Statut in einem eigenen Bundesgesetz umzusetzen, zumal einzelne Bestimmungen durch die Verfahrens- und Beweisordnung des Internationalen Strafgerichtshofs eine nähere Ausgestaltung erfahren.

As to the respective provisions of the Law on the Co-operation with the International Criminal Court, Section 5 deals with the challenge of admissibility (Anfechtung der Zulässigkeit) of the proceedings and the deferral of proceedings (Verfahrensabtretung) to the International Criminal Court (ICC). The German original of Section 5 reads as follows: Anfechtung der Zulässigkeit des Verfahrens und Verfahrensabtretung an den Internationalen Strafgerichtshof §5.(1) Beansprucht der Internationale Strafgerichtshof seine Zuständigkeit für eine Strafsache, so kann der Bundesminister für Justiz die österreichische Zuständigkeit im Sinne von Art. 18 des Statuts geltend machen oder die Zulässigkeit des Verfahrens oder die Gerichtsbarkeit des Gerichtshofs nach Art. 19 des Statuts anfechten. (2) Die Zulässigkeit des Verfahrens ist anzufechten, wenn 1. die Person wegen der Tat von einem österreichischen Gericht rechtskräftig verurteilt oder freigesprochen wurde;

23

Federal Law Gazette, BGBl. I 135/2002.

24

Explanatory Memorandum in Parliamentary Materials, 1168 Beil. Sten. Prot. (XXI.GP).


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2. vor einer inländischen Staatsanwaltschaft oder vor einem solchen Gericht wegen der im Inland begangenen Tat oder wegen der Tat eines im Inland betretenen österreichischen Staatsbürgers eine Strafsache anhängig ist oder auf Grund eines Ersuchens des Internationalen Strafgerichtshofs um Verhaftung und Überstellung oder um Leistung von Rechtshilfe anhängig gemacht wird, es sei denn, dass der Durchführung des Strafverfahrens durch den Internationalen Strafgerichtshof mit Rücksicht auf besondere Umstände, insbesondere aus Gründen der Wahrheitsfindung oder der Konnexität mit anderen, dem Verfahren vor dem Gerichtshof zu Grunde liegenden Straftaten, der Vorzug zu geben ist; oder 3. wegen der Tat ein Verfahren vor einer Staatsanwaltschaft oder einem Gericht im Inland anhängig war, welches aus anderen als ausschließlich verfahrensrechtlichen Gründen eingestellt wurde. (3) Um die Anfechtung der Zulässigkeit zu ermöglichen, hat die zuständige Staatsanwaltschaft dem Bundesministerium für Justiz über anhängige Strafsachen wegen in die Zuständigkeit des Internationalen Strafgerichtshofs fallender strafbarer Handlungen zu berichten. (4) Gegen die Entscheidung des Internationalen Strafgerichtshofs über die Zulässigkeit des Verfahrens steht dem Bundesminister für Justiz die binnen fünf Tagen beim Gerichtshof einzubringende Beschwerde offen. (5) Wird die Zulässigkeit des Verfahrens vor dem Internationalen Strafgerichtshof oder dessen Gerichtsbarkeit nicht angefochten oder bejaht der Internationale Strafgerichtshof seine Zuständigkeit endgültig, so hat das zuständige österreichische Gericht alle zur Sicherung der Person und der Beweise erforderlichen Veranlassungen zu treffen und sodann das Verfahren vorläufig einzustellen und dem Bundesministerium für Justiz eine vollständige Aktenablichtung zum Zweck der Weiterleitung an den Internationalen Strafgerichtshof vorzulegen. Werden Beweisgegenstände angeschlossen, so ist anzuführen, ob auf deren Rückgabe verzichtet wird. (6) Das österreichische Strafverfahren ist nach endgültiger Entscheidung durch den Internationalen Strafgerichtshof einzustellen. Das Verfahren ist jedoch auf Antrag der Staatsanwaltschaft mit Beschluss fortzusetzen, wenn 1. der Ankläger beim Internationalen Strafgerichtshof beschließt, keine Anklage zu erheben, oder von der Anklage zurücktritt; 2. der Internationale Strafgerichtshof die Anklage nach Prüfung zurückweist; oder 3. der Internationale Strafgerichtshof seine Unzuständigkeit oder die Unzulässigkeit des Verfahrens feststellt.

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In the case of the exercise of the jurisdiction through the ICC, Sec 5 para 1 provides the possibility to assert Austrian jurisdiction according to Art. 18 of the Statute or to challenge the admissibility of the case or the jurisdiction of the Court according to Art. 19 of the Statute. Paragraph 2 states those cases in which Austria has an obligation to challenge, such as if a person has been sentenced or acquitted for the same offence by an Austrian court without further possibilities of appeal. When domestic proceedings for an offence committed domestically or for an offence committed by an Austrian citizen arrested in Austria are pending, an obligation to appeal principally exists, except when special circumstances point to carrying out the criminal proceedings through the ICC. In order to make possible the challenge of admissibility, paragraph 3 provides that the competent public prosecutor has a duty to report to the Federal Minister of Justice about pending criminal cases which fall into the jurisdiction of the ICC. Paragraph 4 regulates the possibility of complaint against decisions of the ICC over the admissibility of a case by the Federal Minister of Justice (within 5 days). When the jurisdiction of the ICC is established, the proceedings are to be suspended temporarily according to paragraph 5 and all results gained during the inquiry are to be forwarded to the ICC without special request. Paragraph 6 lies down that the Austrian criminal proceedings are to be discontinued permanently after the final decision of the ICC. If, however, a decision other than a conviction or an acquittal ends the proceedings, then upon request of the public prosecutor the Austrian criminal procedure is to be continued on decision. Section 7 of the Law on the Co-operation with the ICC treats the surrender of Austrian citizens. The German original of Section 7 reads as follows: Überstellung österreichischer Staatsbürger § 7. (Verfassungsbestimmung) Die österreichische Staatsbürgerschaft steht einer Überstellung an den Internationalen Strafgerichtshof (§§ 24 bis 28), einer Durchlieferung oder Durchbeförderung (§ 31) sowie einer Überstellung an einen anderen Staat zur Vollstreckung einer vom Internationalen Strafgerichtshof verhängten Strafe nicht entgegen.

Section 7 is designed as a constitutional provision, and states that Austrian citizenship does not prevent a surrender to the ICC (Sections 24 to 28), a transfer through its territory (Durchlieferung oder Durchbeförderung) (Section 31) as well as a surrender (Überstellung) to another state for the enforcement of the sentence imposed by the ICC. The Government’s Explanatory Memorandum to Section 7 states that the wording of the Statute (Art. 89 Paragraph 1) does not leave any doubt that all states are also


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obliged to surrender their own citizens to the ICC, should the case arise. On the other hand, the provisions of Sections 12 (1) and 44 of the Law on Extradition and Judicial Assistance (ARHG, Auslieferungs- und Rechtshilfegesetz), which have the status of constitutional law, forbid the extradition and transfer through Austria of Austrian citizens. While in particular from the definitions contained in Art. 102 of the Statute follows that the surrender to the ICC constitutes a legal institution sui generis, which has to be distinguished from measures of extradition according to the Law on Extradition and Judicial Assistance, it is appropriate to state clearly that Austrian citizens can also be surrendered to the ICC. The same has to apply for the enforcement of any sentence of imprisonment imposed by the ICC on Austrian citizens. If such a person thus escapes to Austria from the prison sentence imposed in enforcement of the sentence, then this person can—notwithstanding Austrian citizenship—again be delivered to the state that has taken on the enforcement of the sentence. The German original of the Explanatory Memorandum to Section 7 reads as follows: Der Wortlaut des Statuts (Art. 89 Abs. 1) lässt keinen Zweifel darüber offen, dass alle Staaten verpflichtet sind, gegebenenfalls auch eigene Staatsangehörige an den Internationalen Strafgerichtshof zu überstellen. Dem gegenüber verbieten die im Verfassungsrang stehenden Bestimmungen der §§ 12 Abs. 1 und 44 ARHG die Auslieferung und Durchlieferung eigener Staatsbürger. Obgleich sich insbesondere aus den in Art. 102 des Statuts enthaltenen Definitionen ergibt, dass es sich bei der Überstellung an den Internationalen Strafgerichtshof um ein Rechtsinstitut sui generis handelt, welches von der Maßnahme der Auslieferung nach dem ARHG zu unterscheiden ist, scheint die Klarstellung angebracht, dass auch österreichische Staatsbürger an den Internationalen Strafgerichtshof überstellt werden können. […] Gleiches muss auch für den Vollzug der vom Internationalen Strafgerichtshof allenfalls über österreichische Staatsbürger verhängten Freiheitsstrafen gelten. Flieht daher eine solche Person aus der zur Vollstreckung über sie verhängten Freiheitsstrafe nach Österreich, so kann sie trotz österreichischer Staatsbürgerschaft wiederum an jenen Staat übergeben werden, der die Strafvollstreckung übernommen hat.

Section 16 of the Law on the Co-operation with the ICC treats the summoning of witnesses and experts. The German original of Section 16 reads as follows: Ladung von Personen §16.(1) Der Internationale Strafgerichtshof ist befugt, Personen, die sich in der Republik Österreich aufhalten, Ladungen und andere Aktenstücke unmittelbar im Weg der Post zuzustellen. Die Zustellung durch Vermittlung des Bundesministeriums für Justiz wird dadurch nicht ausgeschlossen.

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(2) Die geladene Person ist nicht verpflichtet, der Ladung Folge zu leisten. Auf Ersuchen der geladenen Person, des Beschuldigten oder seines Verteidigers holt das Bundesministerium für Justiz beim Internationalen Strafgerichtshof die Zusicherung ein, dass die Person wegen einer vor ihrer Ausreise aus der Republik Österreich begangenen Handlung nicht verfolgt, in Haft genommen oder sonstigen Beschränkungen ihrer persönlichen Freiheit unterworfen wird. […]

Sec 16 para 1 provides that the ICC can serve summons and send other records directly by way of postal mail. A summons through the Federal Minister of Justice however continues to be possible. Sec 16 para 2 states expressly that the person thus summoned is not required to respond to the summons. The Government’s Explanatory Memorandum to Sec 16 points out that in principle, all persons that are summoned by the ICC have the obligation to appear in front of the Court. However, the Statute does not contain an obligation of states to arrest free citizens and bring them before the ICC by force. Nonetheless, this does not exclude the possibility of bringing witnesses before Austrian courts on the basis of a request of legal aid by the International Criminal Court. The ICC can serve summons of witnesses and experts located in Austria directly by postal mail. A summons by the Federal Minister of Justice however also remains possible. The German original of the Explanatory Memorandum to Section 16 reads as follows: Grundsätzlich trifft alle Personen, die vom Internationalen Strafgerichtshof geladen worden sind, die Verpflichtung zum Erscheinen vor dem Gerichtshof. Allerdings enthält das Statut keine Verpflichtung der Staaten, auf freiem Fuß befindliche Personen festzunehmen und dem Internationalen Strafgerichtshof zwangsweise vorzuführen. Die zwangsweise Vorführung von Zeugen innerhalb Österreichs auf Grund eines Rechtshilfeersuchens des Internationalen Strafgerichtshofs wird dadurch allerdings nicht ausgeschlossen. Ladungen an in Österreich befindliche Zeugen und Sachverständige kann der Internationale Strafgerichtshof im Wege der Post unmittelbar zustellen. Auch eine Zustellung durch Vermittlung des Bundesministeriums für Justiz bleibt allerdings möglich. (Vgl auch § 16 Abs 1) […]

Section 19 of the Law on the Co-operation with the ICC regulates the modalities of the legal aid to be given.


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The German original of Section 19 reads as follows: Akteneinsicht und Übermittlung von Informationen, die die nationale Sicherheit betreffen § 19. (1) (Verfassungsbestimmung) Auf Ersuchen des Internationalen Strafgerichtshofs ist Rechtshilfe durch Übermittlung von Gegenständen, Akten oder Aktenabschriften (Ablichtungen) sowie durch Gewährung von Akteneinsicht zu leisten. (2) Betreffen die Akten die nationale Sicherheit, insbesondere im Zusammenhang mit militärischen Erkenntnissen, so ist der Internationale Strafgerichtshof zu konsultieren, um festzustellen, ob die Informationen von einer anderen Stelle oder in anderer Form erlangt werden können. (3) Kann die Angelegenheit im Zuge der Konsultationen nach Abs. 2 nicht geregelt werden, so hat der Bundesminister für auswärtige Angelegenheiten im Einvernehmen mit dem sachlich zuständigen Bundesminister vor der Gewährung von Akteneinsicht oder der Übermittlung der Aktenabschriften zu prüfen, ob die Geheimhaltungsinteressen die Interessen an der Übersendung von Beweismitteln für die internationale Strafverfolgung beträchtlich überwiegen. Ist dies der Fall, so ist der Internationale Strafgerichtshof um Zusicherung der Geheimhaltung und um Bekanntgabe zu ersuchen, in welcher Weise die Geheimhaltung gewahrt werden wird. (4) Der Bundesminister für auswärtige Angelegenheiten hat im Einvernehmen mit dem sachlich zuständigen Bundesminister zu prüfen, ob die gegebene Zusicherung für die Wahrung der Geheimhaltungsinteressen als ausreichend zu betrachten ist. Die Akteneinsicht oder die Übermittlung von Aktenabschriften ist abzulehnen, wenn die Geheimhaltung nicht gewährleistet werden kann und für den Fall der Offenbarung zu besorgen ist, dass die nationale Sicherheit beeinträchtigt werden könnte. (5) Die Abs. 2 bis 4 finden auch Anwendung, wenn eine Person, die zur Beibringung von Informationen oder Beweismitteln aufgefordert wurde, dies mit der Begründung verweigert, dass eine Offenlegung die nationale Sicherheit beeinträchtigen würde. (6) Wird eine Person auf Grund eines Rechtshilfeersuchens des Internationalen Strafgerichtshofs vernommen, so ist sie vor der Vernehmung darüber zu belehren, dass sie die Aussage verweigern kann, um die Offenlegung vertraulicher Informationen, die die nationale Sicherheit betreffen, zu verhindern. Die erfolgte Belehrung ist im Protokoll festzuhalten. Über die Zulässigkeit der Rechtshilfe ist in einem derartigen Fall auf Grund der Bestimmungen der Abs. 2 bis 4 zu entscheiden.

Section 19 has the status of constitutional law and rules in paragraph 1 that upon

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request of the ICC, legal assistance is to be given by transmitting objects, records or copies of these, as well as by granting access to records. If the records to be transmitted concern national security, in particular in connection with military knowledge, the ICC is to be consulted according to paragraph 2 whether the information cannot be attained by other means. If the consultations do not lead to a result, then according to paragraph 3 the Foreign Minister after consultation with the competent Minister has to examine whether the interests of secrecy predominate substantially. Is this the case, then theICC is asked to observe secrecy and is furthermore asked to announce how it intends to safeguard this secrecy. According to Sec 19 para 4 the Foreign Minister—in consultation with the competent Minister—has to examine whether the assurance of observation of interests of secrecy can be considered sufficient. If secrecy cannot be assured and if adverse effects on the national security can be expected in the case of disclosure, then access to the records has to be denied. According to paragraph 5, what has been ruled in paragraphs 2-4 also is valid for persons asked to produce information and evidence, if these persons refuse a disclosure with the argument that this will prejudice the national security. Paragraph 6 regulates explicitly that a person interrogated by the ICC on the basis of a request of legal aid, needs to be informed about the possibility to refuse to give evidence. The Government’s Explanatory Memorandum to Section 19 states that principally, the ICC is allowed to examine Austrian records and the production of copies of records is made possible. Considering that according to Sec 2 para 1 all Austrian authorities have the obligation to cooperate with the Court, the examination of records of the provinces (Länder) and communities is also conceivable. This is why the provision at hand should be designed—equivalent to Section 12 of the Law on Co-operation with International Tribunals (ZiGG, Bundesgesetz über die Zusammenarbeit mit den internationalen Gerichten)—as a provision with a status of constitutional law. However, for records that relate to the security of the state—in accordance with Art. 72 in combination with Art. 93 para 4 of the Statute—an exception clause was created. In this case it has to be considered carefully, whether the existing interests to secrecy considerably outweigh the interests of assisting the ICC. Is this the case, then the Court is to be requested to assure the observance of secrecy and to announce how it will safeguard this secrecy. As to the Explanatory Memorandum, paragraph 4 makes it possible to refuse the access to records and the transmission of copies of records, if secrecy cannot be assured and if there is concern that—in the case of disclosure—the security of the state will be prejudiced. The decision on this has to be made by the Foreign Minister after consultation with the competent Federal Minister. The corresponding rules are also applied if a person is questioned on the basis of a request for legal aid by the ICC


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and if the person refuses to give evidence in order to prevent the disclosure of confidential information concerning national security. The German original of the Explanatory Memorandum to Section 19 reads as follows: Dem Internationalen Strafgerichtshof wird grundsätzlich Einsicht in österreichische Akten gewährt sowie die Anfertigung von Aktenabschriften ermöglicht. Im Hinblick darauf, dass nach § 2 Abs. 1 alle österreichischen Behörden die Verpflichtung zur Zusammenarbeit mit dem Gerichtshof haben, ist auch die Einsicht in Akten der Länder und der Gemeinden denkbar, weshalb die gegenständliche Bestimmung entsprechend § 12 ZiGG als Verfassungsbestimmung ausgestaltet werden soll. Für Akten, die die Sicherheit des Staates betreffen, wurde allerdings entsprechend Art. 72 in Verbindung mit Art. 93 Abs. 4 des Statuts eine Ausnahmebestimmung geschaffen. Dabei ist abzuwägen, ob bestehende Geheimhaltungsinteressen die Interessen an der Übersendung an den Internationalen Strafgerichtshof beträchtlich überwiegen. Ist dies der Fall, so ist der Gerichtshof um Zusicherung der Geheimhaltung und um Bekanntgabe zu ersuchen, in welcher Weise die Geheimhaltung gewahrt werden wird. Abs. 4 ermöglicht es, die Akteneinsicht und die Übermittlung von Aktenabschriften abzulehnen, wenn die Geheimhaltung nicht gewährleistet werden kann und für den Fall der Offenbarung zu besorgen wäre, dass die Sicherheit des Staates beeinträchtigt würde. Die Entscheidung darüber ist vom Bundesminister für auswärtige Angelegenheiten im Einvernehmen mit dem sachlich zuständigen Bundesminister zu treffen. Die entsprechenden Regelungen finden auch Anwendung, wenn eine Person auf Grund eines Rechtshilfeersuchens des Internationalen Strafgerichtshofs vernommen wird und die Aussage mit der Begründung verweigert, damit die Offenlegung vertraulicher Informationen betreffend die nationale Sicherheit verhindern zu wollen.

Section 26 of the Law on the Co-operation with the ICC concerns the surrender custody (Überstellungshaft) and the order to surrender (Anordnung der Überstellung). The German original of Section 26 reads as follows: Überstellungshaft und Anordnung der Überstellung § 26. (1) Ersucht der Internationale Strafgerichtshof um Festnahme und Überstellung eines Beschuldigten, so hat der Untersuchungsrichter auf Antrag der Staatsanwaltschaft ein Überstellungsverfahren einzuleiten, die Festnahme des Beschuldigten zu veranlassen und über ihn die Überstellungshaft zu verhängen sowie nach Maßgabe der folgenden Absätze seine Überstellung an den Internationalen Strafgerichtshof anzuordnen. Die Prüfung des dem Haftbefehl zu Grunde liegenden

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Verdachts und der Haftgründe steht dem Untersuchungsrichter nicht zu. (2) Ergeben sich erhebliche Zweifel an der Identität der festgenommenen Person, so hat der Untersuchungsrichter geeignete Erhebungen zu veranlassen oder den Internationalen Strafgerichtshof um die Vorlage zusätzlicher Unterlagen zu ersuchen. In jedem Fall hat der Untersuchungsrichter den Beschuldigten über die Begründung des gegen ihn ergangenen Haftbefehls des Internationalen Strafgerichtshofs und über sein Recht zu informieren, die Überstellung wegen Verletzung des in Art. 20 des Statuts festgelegten Grundsatzes ne bis in idem oder mangels Zuständigkeit des Internationalen Strafgerichtshofs nach den Art. 17 bis 19 des Statuts anzufechten. Er ist darüber hinaus auf sein Recht hinzuweisen, bis zur Anordnung der Überstellung seine vorläufige Enthaftung zu beantragen. Dem Beschuldigten sind Abschriften (Ablichtungen) des Haftbefehls oder verurteilenden Erkenntnisses und der Bezug habenden Bestimmungen des Statuts samt der vom Internationalen Strafgerichtshof übermittelten Übersetzung auszufolgen. […] (5) Bis zur Anordnung der Überstellung hat der Beschuldigte das Recht, seine vorläufige Enthaftung zu beantragen. Bei der Entscheidung über einen solchen Antrag ist zu prüfen, ob ungeachtet der Schwere der zur Last gelegten Verbrechen dringende und außergewöhnliche Umstände vorliegen, die eine vorläufige Enthaftung rechtfertigen und ob der Zweck der Haft durch gelindere Mittel (§ 180 Abs. 5 StPO) erreicht werden kann. Einem solchen Antrag kommt aufschiebende Wirkung nicht zu. (6) Ein Antrag nach Abs. 5 ist dem Internationalen Strafgerichtshof mit dem Bemerken mitzuteilen, dass er das Recht habe, dazu binnen sieben Tagen eine Empfehlung abzugeben. Die Empfehlung ist bei der Entscheidung über den Enthaftungsantrag zu berücksichtigen. (7) Spricht sich der Internationale Strafgerichtshof in seiner Empfehlung oder spricht sich die Staatsanwaltschaft gegen die Enthaftung des Beschuldigten aus, so hat der Untersuchungsrichter über den Antrag unverzüglich in einer Haftverhandlung zu entscheiden. (8) Gegen einen Beschluss, mit dem der Antrag des Beschuldigten auf vorläufige Enthaftung abgelehnt wird, steht diesem die binnen drei Tagen nach Eröffnung des Beschlusses einzubringende Beschwerde an den Gerichtshof zweiter Instanz zu. Einer solchen Beschwerde kommt aufschiebende Wirkung nicht zu. (9) Gegen Beschlüsse auf Verhängung der Überstellungshaft und auf Anordnung der Überstellung steht nur die Beschwerde nach § 1 Abs. 1 des Grundrechtsbeschwerdegesetzes, BGBl. Nr. 864/1992, zu. Gegen einen Beschluss, mit dem das Überstellungsverfahren eingeleitet wird, steht ein Rechtsmittel nicht zu.


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Sec 26 para 1 states that upon request of the ICC of arrest and surrender of an accused, the examining magistrate is required to initiate surrender proceedings upon the application of the public prosecutor, to arrange for the arrest of the accused and to impose a surrender custody upon the accused. The examining magistrate is not entitled to review the reasons for the arrest. If there are serious doubts as to the identity of the person arrested, the examining magistrate has to arrange for appropriate inquiries according to paragraph 2 and has to request from the ICC the submission of additional documents. The accused has to be informed about his rights [possible appeal of the surrender because of a violation of the principle ne bis in idem or because of a lack of jurisdiction of the ICC, or the right to an application for temporary release from custody]. In addition, the accused has to be presented with copies of the arrest warrant or of the findings leading to a conviction as well as with the articles of the Statute relevant to his case. Paragraph 5 regulates the right of the accused to apply for a provisional release from custody up to the order of surrender. Paragraph 6 regulates the forwarding of this application to the ICC, which can make a recommendation on this application within seven days. If the ICC in its recommendation or the public prosecutor rejects the application of repeal release from custody, then according to paragraph 7 the examining magistrate is required to decide immediately on the application in an arrest hearing (Haftverhandlung). According to paragraph 8 there is the possibility of appeal at the court of second instance against a decision rejecting the application of a temporary release from custody. According to paragraph 9, the accused is only entitled to appeal against decisions imposing a surrender custody and decisions ordering a surrender on the grounds of the Law on Basic Rights Complaints (Grundrechtsbeschwerdegesetz) [violation of the basic right of personal freedom through a decision under criminal law—Sec 1 para 1]. There are no legal remedies against a decision initiating the surrender proceedings. The Government’s Explanatory Memorandum states in regard to Section 26 that this provision represents the core of the regulation on the surrender of accused to the ICC according to Art. 89 paragraph 1 of the Statute. If there is a request of arrest and surrender by the International Criminal Court, then the examining magistrate is required—under the pre-condition of identity between the person arrested and the person sought—to order the surrender. While it is usually demanded in cases of extradition that the act is a criminal offence in both states, this is in this case not relevant, because the offences falling under the jurisdiction of the ICC concern cases of particularly serious crimes that are recognized as such in international law. The grounds of rejection customary in cases of extradition (political, military or fiscal offences) do not apply. If serious doubts exist whether the person arrested is identical

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to the person sought, the ICC is requested to transmit additional information using the procedure provided by Sec 8 para 3 of the Law on the Co-operation with the ICC. In addition, other investigations that could help clarify the identity can be initiated. The German original of the Explanatory Memorandum to Section 26 reads as follows: Diese Bestimmung stellt das Kernstück der Regelungen zur Überstellung von Beschuldigten an den Internationalen Strafgerichtshof gemäß Art. 89 Abs. 1 des Statuts dar. […] [D]er U-Richter hat bei Vorliegen eines Ersuchens des Internationalen Strafgerichtshofs um Festnahme und Überstellung unter der Voraussetzung der Identität zwischen der festgenommenen und der gesuchten Person grundsätzlich die Überstellung anzuordnen. Nicht maßgeblich ist das Vorliegen der üblicherweise geforderten beiderseitigen Strafbarkeit, weil es sich bei den unter die Zuständigkeit des Internationalen Strafgerichtshofs fallenden Delikten um besonders schwere Verbrechen handelt, die völkerrechtlich als solche anerkannt sind. Auch die im Auslieferungsverkehr üblichen Ablehnungsgründe (politische, militärische oder fiskalische Straftat) finden keine Anwendung. Bei erheblichen Zweifeln an der Identität der festgenommenen mit der gesuchten Person wird der Internationale Strafgerichtshof auf dem in § 8 Abs. 3 vorgesehenen Weg um Übermittlung ergänzender Informationen zu ersuchen sein. Darüber hinaus können andere zweckdienliche Ermittlungen zur Klärung der Identität eingeleitet werden.

Section 33 of the Law on the Co-operation with the ICC regulates the procedure for taking on the enforcement of a sentence. The German original of Section 33 reads as follows: Verfahren zur Übernahme der Strafvollstreckung § 33. (1) Hat der Internationale Strafgerichtshof bestimmt, dass ein Verurteilter die über ihn verhängte Freiheitsstrafe in Österreich zu verbüßen hat, und ersucht er, den Verurteilten zum Strafvollzug zu übernehmen, so ist diese Mitteilung dem Bundesminister für Justiz zuzuleiten. (2) Der Bundesminister für Justiz darf die Übernahme einer Vollstreckung, die der Erklärung nach § 32 Abs. 1 entspricht, nur ablehnen, wenn sie unvertretbare Nachteile für die Sicherheit und die öffentliche Ordnung der Republik Österreich nach sich ziehen würde. Bei österreichischen Staatsbürgern darf die Übernahme der Vollstreckung nicht abgelehnt werden. Gegen die Entscheidung des Bundesministers für Justiz ist ein Rechtsmittel nicht zulässig. […] (4) Flieht die verurteilte Person vor Abschluss der Vollstreckung der Freiheitsstrafe aus der Haft, so hat das Vollzugsgericht (§ 16 des Strafvollzugsgesetzes)


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einen Haftbefehl zu erlassen und die Fahndung einzuleiten. Wird die gesuchte Person in der Folge im Ausland festgenommen, so hat das Gericht auch ohne Antrag der Staatsanwaltschaft die Verhängung der Auslieferungshaft nach § 69 ARHG zu erwirken und dem Bundesminister für Justiz die nach § 68 ARHG erforderlichen Unterlagen zu übermitteln. Der Bundesminister für Justiz hat die Auslieferung zu erwirken, sofern der ersuchte Staat nicht der Überstellung ohne Auslieferungsverfahren zustimmt oder der Internationale Strafgerichtshof nicht eine andere Entscheidung trifft. (5) Die im ersuchten Staat oder beim Internationalen Strafgerichtshof in Haft verbrachte Zeit ist auf die zu verbüßende Freiheitsstrafe anzurechnen. (6) Werden in Österreich Personen festgenommen, die aus dem Vollzug einer vom Internationalen Strafgerichtshof verhängten Freiheitsstrafe geflohen sind, so ist bei der Überstellung dieser Personen an den Staat, der die Vollstreckung übernommen hat, nach den Bestimmungen über die Überstellung von Personen an den Internationalen Strafgerichtshof vorzugehen.

According to Sec 33 para 1, a request by the ICC for Austria to take on the enforcement of a sentence has to be addressed to the Federal Minister of Justice. According to paragraph 2, the Federal Minister of Justice can only refuse to take on the enforcement of a sentence, if this would bring with it unacceptable disadvantages for security and public order. (For Austrian citizens, the Minister can under no circumstances refuse such a request.) If the convicted escapes from arrest, then according to paragraph 4 the court of enforcement (Vollzugsgericht) has to issue an arrest warrant and—in the case of an arrest of the runaway abroad—to obtain an arrest for the purposes of surrender (Auslieferungshaft). In principle, the Federal Minister of Justice has to bring about a surrender unless the ICC decides differently. According to paragraph 5, the time spent in arrest in the other state or at the ICC has to be taken into account for the calculation of the time of the sentence served. According to paragraph 6, the surrender of persons arrested in Austria that have escaped from the enforcement of a prison sentence imposed by the ICC to the state that has taken on the enforcement of this prison sentence is to be carried out according to the provisions on the surrender of persons to the ICC. The Government’s Explanatory Memorandum states in regard to Section 33 that if there is a readiness of the Republic of Austria—expressed towards the ICC—to accept persons for the enforcement of their sentence, then the Federal Minister of Justice can refuse to take on the enforcement of the sentence only in special isolated cases, i.e. on the grounds of a particular danger to public security and order to the Republic of Austria, and only if the person convicted is not an Austrian citizen. An agreement with the Federal Minister of Interior has to be established on this matter. The

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provisions are in accord with Art. 103 para 1 lit. c of the Statute, which says that a state that in a particular case has been designated for the enforcement of a prison sentence has to inform the ICC immediately whether it accepts the designation of the Court. The German original of the Explanatory Memorandum to Section 33 reads as follows: Besteht eine gegenüber dem Internationalen Strafgerichtshof bekundete Bereitschaft der Republik Österreich, Personen zum Strafvollzug zu übernehmen, so kann der Bundesminister für Justiz nur in besonderen Einzelfällen die Übernahme der Vollstreckung ablehnen, nämlich aus Gründen einer besonderen Gefährdung der öffentlichen Sicherheit und Ordnung der Republik Österreich, sofern es sich bei der verurteilten Person nicht um einen österreichischen Staatsbürger handelt. Hierüber wird das Einvernehmen mit dem Bundesminister für Inneres herzustellen sein. Diese Bestimmung steht mit Art. 103 Abs. 1 lit. c des Statuts im Einklang, wonach ein Staat, der im Einzelfall zur Vollstreckung einer Freiheitsstrafe bestimmt wird, den Internationalen Strafgerichtshof umgehend davon in Kenntnis setzt, ob er die vom Gerichtshof vorgenommene Bestimmung anerkennt.

OO. Coercive measures short of the use of force/ Zwangsmaßnahmen unter der Schwelle der Gewaltanwendung II.

Collective measures/Kollektivmaßnahmen

1.

United Nations/Vereinte Nationen

OO.II.1 Export of weapons—export of goods of dual-use to the Iraq—export permit in times of economic sanctions imposed by the UN-Security Council—legal basis/Waffenexporte oder Exporte von dual-use Gütern in den Irak-Exportbewilligung zu Zeiten wirtschaftlicher Sanktionen durch den Sicherheitsrat—Rechtsgrundlage In his response to requests25 which had been made in reference to reports of exports of weapons and, respectively, exports of goods of dual use to Iraq, which—according to the requests—would require applications for export permits to be made to the Ministry for Economy and Labour, the Federal Minister for Economy and Labour stated in April 2002 that the legal basis for the execution of UN sanctions did not constitute the Foreign Trade Act, but Council Regulation (EC) N° 2465/96 from

25

Parliamentary Materials, 3581/J (XXI.GP), 3443/AB (XXI.GP).


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December 17, 1996 concerning the interruption of economic and financial relations between the European Community and Iraq. This regulation was decided by the Council of European Union in implementation of the UN Security Council Resolution 986 (1995). That resolution included a wide-ranging trade embargo against Iraq and authorized Iraq only to export mineral oil and mineral oil products, in order to be able to procure the financial means for the export of certain goods (Oil-for-FoodProgram). The sanction committee published semi-annually a plan for those purchases that the Iraq was allowed to make, and decided on the distribution of these products between the geographic zones within Iraq (Distribution Plan). In Art. 1 Paragraph 2 of the Regulation (EC) N° 2465/96 the export of all raw materials and products coming from or originating in the European Community or after transit through the EC into the Iraq was forbidden. In Art. 2 the exceptions to that ban were laid down. For goods listed in that provision, a permit for export into Iraq from the Federal Ministry for Economy and Work was required. The German original reads as follows: die Rechtsgrundlage für die Vollziehung der UN-Sanktionen [bildet] nicht das Außenhandelsgesetz […], sondern die Verordnung (EG) Nr. 2465/96 des Rates vom 17. Dezember 1996 „über die Unterbrechung der wirtschaftlichen und finanziellen Beziehungen zwischen der Europäischen Gemeinschaft und dem Irak”, Amtsblatt der Europäischen Gemeinschaften L 337/96. Diese Verordnung wurde vom Rat der EU zur Umsetzung der UN-Sicherheitsratsresolution 986 (1995) erlassen. Diese Resolution sieht ein weitreichendes Handelsembargo gegenüber dem Irak vor und ermächtigt diesen nur zur Ausfuhr von Mineralöl und Mineralölerzeugnissen, um die finanziellen Mittel für die Einfuhr bestimmter Waren beschaffen zu können (Oil-for-Food-Programm). Das Sanktionenkomitee veröffentlicht halbjährlich einen Plan über jene Ankäufe, die dem Irak gestattet werden und legt die Verteilung dieser Güter im Irak nach geographischen Zonen fest (Distribution Plan). In Art. 1 Abs. 2 der Verordnung (EG) Nr. 2465/96 ist die Ausfuhr aller Rohstoffe und Erzeugnisse mit Ursprung in oder Herkunft aus der Gemeinschaft oder nach Durchfuhr über diese in den Irak untersagt. In Art. 2 sind Ausnahmen von diesem Verbot festgelegt. Für die in dieser Bestimmung genannten Waren muss beim Bundesministerium für Wirtschaft und Arbeit die Bewilligung der Ausfuhr in den Irak beantragt werden.

26

Official Journal L 337/96.

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2.


Collective measures outside the United Nations/ Kollektivmaßnahmen außerhalb der Vereinten Nationen

OO.II.2 Export of Steyr military vehicles to Zimbabwe “Export Permit” Foreign Trade Act/ Export von Steyr-Militärfahrzeugen nach Simbabwe „Ausfuhrbewilligung“ Außenhandelsgesetz In February 2002, a parliamentary request was addressed to the Federal Minister for Economic Affairs and Employment asking him about the export of 66 Steyr military vehicles to Zimbabwe which—as to reports of human rights NGOs—had been used against the opposition in the course of the election campaign of President Mugabe.27 The said request referred inter alia to the EU code of conduct for the export of weapons, to a EU Council regulation prohibiting to support Zimbabwe technically with military material, as well as to various denials which had been pronounced by other EU member states as well as by Austrian authorities in previous years, to point out that the export license under the Foreign Trade Act (Außenhandelsgesetz) should have been denied by the Austrian authorities. When he was asked about possible penal implications in the case that no permit for the export of military vehicles according to Section 5 Paragraph 3 of the Foreign Trade Act had been requested by the seller within the past three years, the Federal Minister stated in his response of April 2002 that not all vehicles that were/could be brought to a military end use needed an export permit. According to the Foreign Trade Regulation BGBI. II 187/1997, a requirement of an export permit existed for the export of land vehicles that were especially constructed or changed for military uses, that were listed in Chapter 6 of Annex 1 of that regulation, and that showed the technical criteria described therein. He continued that if exports occurred without an export permit required by the Foreign Trade Act, then the penal provisions of Section 17 of the Foreign Trade Act applied. According to the execution clause of Section 22 Paragraph 8 of the Foreign Trade Act, the appropriate authority for the prosecution was the Federal Minister for Justice. In view of the given statutory competencies the Federal Minister for Justice would be informed about both the current parliamentary question and the answer at hand. The German original reads as follows: Nicht alle Fahrzeuge, die einer militärischen Endverwendung zugeführt werden (können), bedürfen einer Ausfuhrgenehmigung. Gemäß der Außenhandelsverord-

27



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nung, BGBI. II Nr. 187/1997, besteht eine Bewilligungspflicht für die Ausfuhr von Landfahrzeugen, die für militärische Zwecke besonders konstruiert oder geändert sind, in Kapitel 6 der Anlage 1 dieser Verordnung genannt sind, und die dort beschriebenen technischen Kriterien aufweisen. Erfolgen Ausfuhren ohne eine nach dem Außenhandelsgesetz erforderliche Ausfuhrbewilligung, so finden die Strafbestimmungen von § 17 Außenhandelsgesetz Anwendung. Zuständig für die Strafverfolgung ist nach der Vollzugsklausel von § 22 Abs. 8 Außenhandelsgesetz der Bundesminister für Justiz. Im Hinblick auf die gegebene gesetzliche Zuständigkeit werden sowohl die gegenständliche parlamentarische Anfrage als auch die vorliegende Antwort dem Bundesminister für Justiz zur Kenntnis gebracht.

PP. Use of force/Gewaltanwendung See RR.III

II.

Legitimate use of force/Rechtmäßiger Gewaltgebrauch

2.

Collective measures/Kollektivmaßnahmen

a.

United Nations/Vereinte Nationen

See RR.II b.

Outside the United Nations/Außerhalb der Vereinten Nationen

See RR.II

QQ. The law of armed conflict and international humanitarian law/Recht des bewaffneten Konfliktes und internationales humanitäres Recht I.

International armed conflict/Der internationale bewaffnete Konflikt

2.

The laws of international armed conflict/Das Recht des internationalen bewaffneten Konflikts

a.

Sources/Rechtsquellen

See QQ.I.2.g-1 and QQ.I.2.g-2

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g.


International humanitarian law (droit humanitaire international)/ Internationales humanitäres Recht

See also MM.III.4 QQ.I.2.g-1 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict—Austria’s interpretative declaration of the term of “appropriation”—jurisdictional link —state responsibility/Zweites Protokoll zur Haager Konvention aus 1954 zum Schutz von Kulturgut bei bewaffneten Konflikten—Interpretative Erklärung Österreichs zum Begriff der „Aneignung“— Begründung der Gerichtsbarkeit—Staatenverantwortlichkeit In August 2001, the Federal Government submitted the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict28 to the Parliament for approval in the course of the ratification process.29 The Second Protocol was concluded under the auspices of the UNESCO and tends to remedy regulation deficits of the Hague Convention of 1954 in regard to the comportment of military forces in cases of conflict and in the area of individual criminal responsibility. The Republic of Austria made an interpretative declaration regarding Article 15 sub-paragraph 1 (c) as well as Article 16 sub-paragraph 1 (c) of the Second Protocol. The relevant provisions of the Second Protocol read as follows: Article 15 Serious violations of this Protocol 1. Any person commits an offence within the meaning of this Protocol if that person intentionally and in violation of the Convention or this Protocol commits any of the following acts: a. making cultural property under enhanced protection the object of attack; b. using cultural property under enhanced protection or its immediate surroundings in support of military action;

28

The Protocol was done in the Hague the 26 March 1999, entered into force the 9 March 2004 and was ratified by Austria the 1 March 2002; available at http://www.unesco.org/ culture/laws/hague/html_eng/protocol2.shtml.

29



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c. extensive destruction or appropriation of cultural property protected under the Convention and this Protocol; d. making cultural property protected under the Convention and this Protocol the object of attack; e. Theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected under the Convention. […] Article 16 Jurisdiction 1. Without prejudice to paragraph 2, each Party shall take the necessary legislative measures to establish its jurisdiction over offences set forth in Article 15 in the following cases: a. when such an offence is committed in the territory of that state; b. when the alleged offender is a national of that state; c. in the case of offences set forth in Article 15 sub-paragraphs (a) to (c), when the alleged offender is present in its territory. 2. With respect to the exercise of jurisdiction and without prejudice to Article 28 of the Convention: a. this Protocol does not preclude the incurring of individual criminal responsibility or the exercise of jurisdiction under national and international law that may be applicable, or affect the exercise of jurisdiction under customary international law; […] Article 17 Prosecution 1. The Party in whose territory the alleged offender of an offence set forth in Article 15 sub-paragraphs 1 (a) to (c) is found to be present shall, if it does not extradite that person, submit, without exception whatsoever and without undue delay, the case to its competent authorities, for the purpose of prosecution, through proceedings in accordance with its domestic law or with, if applicable, the relevant rules of international law. […]

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The Austrian Interpretative Declaration reads as follows: Interpretative Declaration of the Republic of Austria Concerning Article 15 sub-paragraph 1 (c): The Republic of Austria considers that the term “appropriation” refers to the offence of (grave) theft as set forth in §§ 127 and 128 sub-paragraph 1 (3) of the Austrian Criminal Code (österreichisches Strafgesetzbuch – StGB). Concerning Article 16 sub-paragraph 1 (c): The Republic of Austria considers with regard to the provision of Article 17 paragraph 1 that the obligation under Article 16 sub-paragraph 1 (c) to establish jurisdiction over the serious violations set forth in Article 15 sub-paragraphs (a) to (c) only applies to such cases where the alleged offender cannot be extradited (aut dedere aut judicare).

The Government’s Explanatory Memorandum30 attached to the text explains in its general comments the need for the interpretative declaration in regard to Article 15 sub-paragraph 1 (c) of the Second protocol with the fact, that in Austria, the term of appropriation (sich aneignen) derives from civil law, but is not used in Austrian criminal law. That’s why the reference to the “offence of (grave) theft” as set forth in Sections 127 and 128 sub-paragraph 1 (3) of the Austrian Criminal Code (StGB) was considered necessary. Furthermore, the Explanatory Memorandum explains the need for the interpretative declaration in regard to Article 16 sub-paragraph 1 (c) and 17 sub-paragraph 1 of the Protocol, which is due to an editorial mistake in Article 16 sub-paragraph 1 (c), where the terms “and is not extradited” were omitted. Therefore, Austria considered it necessary to specify that the obligation to establish jurisdiction over the serious violations set forth in Article 15 sub-pararaph 1 (a) to (c) existed only in cases where the alleged offender could not be extradited. The German original of the relevant part of the Explanatory Memorandum reads as follows: Im Hinblick auf das österreichische Strafrecht ist es ebenfalls erforderlich, eine interpretative Erklärung zu Art. 15 Abs. 1 lit. c und Art. 16 Abs. 1 lit. c des Zweiten Protokolls abzugeben: –

30

Der in Art. 15 Abs. 1 lit. c enthaltene Terminus „sich aneignen“ stammt aus dem Zivilrecht und ist im Strafrecht nicht gebräuchlich; es soll daher eine interpretative Erklärung des Inhalts abgegeben werden, dass die Republik



–

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Österreich davon ausgeht, dass unter diesem Ausdruck das Delikt des schweren Diebstahls nach den §§ 127, 128 Abs. 1 Z 3 StGB zu verstehen ist. Bei Art. 16 Abs. 1 lit. c wurde durch ein Redaktionsversehen die ansonsten übliche Wendung „und nicht ausgeliefert wird” nicht aufgenommen; es muss daher eine interpretative Erklärung des Inhalts abgegeben werden, dass die Republik Österreich im Hinblick auf die Bestimmung des Art. 17 Abs. 1 des Protokolls davon ausgeht, dass eine Verpflichtung zur Begründung von Gerichtsbarkeit hinsichtlich der in Art. 15 Abs. 1 lit. a bis c erwähnten Straftaten nur für den Fall besteht, dass der Verdächtige nicht ausgeliefert wird.

Furthermore, the Second Protocol addresses state responsibility. The relevant Article 38 reads as follows: Article 38 State responsibility No provision in this Protocol relating to individual criminal responsibility shall affect the responsibility of states under international law, including the duty to provide reparation.

The Government’s Explanatory Memorandum points out that according to Article 38 of the Second Protocol, the provisions of the Protocol concerning individual criminal responsibility do not affect state responsibility under international law. As to the actual scope of the respective provisions concerning state responsibility, the Explanatory Memorandum refers to the current state of discussion in the International Law Commission (ILC) of the United Nations. The German original of the relevant part of the Explanatory Memorandum reads as follows: Laut Art. 38 berühren die Bestimmungen des Protokolls über die individuelle strafrechtliche Verantwortlichkeit nicht die völkerrechtliche Staatenverantwortlichkeit; über den Stand der Völkerrechtsnormen über die Staatenverantwortlichkeit vgl. die aktuelle Diskussion in der Völkerrechtskommission der Vereinten Nationen (ILC).

QQ.I.2.g-2 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts—minimum age requirement for direct participation in hostilities/Fakultativprotokoll zum Übereinkommen über die Rechte des Kindes betreffend die Beteiligung von Kindern an bewaffneten Konflikten—Mindestalter für unmittelbare Teilnahme an Feindseligkeiten In September 2001, the Federal Government submitted to the Parliament the Protocol

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amending the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts31 for approval in the course of the ratification process.32 The key articles 1 to 4 of the Protocol read as follows: Article 1 States parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities. Article 2 States parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces. Article 3 1. States parties shall raise in years the minimum age for the voluntary recruitment of persons into their national armed forces from that set out in article 38, paragraph 3, of the Convention on the Rights of the Child, taking account of the principles contained in that article and recognizing that under the Convention persons under 18 are entitled to special protection. 2. Each state party shall deposit a binding declaration upon ratification of or accession to this Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards that it has adopted to ensure that such recruitment is not forced or coerced. 3. States parties that permit voluntary recruitment into their national armed forces under the age of 18 shall maintain safeguards to ensure, as a minimum, that: (a) Such recruitment is genuinely voluntary; (b) Such recruitment is done with the informed consent of the person’s parents or legal guardians; (c) Such persons are fully informed of the duties involved in such military service; (d) Such persons provide reliable proof of age prior to acceptance into national military service.

31

Available at http://www.unhchr.ch/html/menu2/6/crc/treaties/opac.htm.

32

Parliamentary Materials 766 Beil. Sten. Prot. (XXI. GP). The Protocol entered into force the 12 February 2002 (Federal Law Gazette, BGBl. III 92/2002).


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4. Each state party may strengthen its declaration at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall inform all states parties. Such notification shall take effect on the date on which it is received by the Secretary-General. 5. The requirement to raise the age in paragraph 1 of the present article does not apply to schools operated by or under the control of the armed forces of the states parties, in keeping with articles 28 and 29 of the Convention on the Rights of the Child. Article 4 1. Armed groups that are distinct from the armed forces of a state should not, under any circum-stances, recruit or use in hostilities persons under the age of 18 years. 2. States parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices. 3. The application of the present article under this Protocol shall not affect the legal status of any party to an armed conflict.

The Government’s Explanatory Memorandum33 attached to the text of the Protocol puts particular emphasis on Article 1 of the Protocol, which provides that states parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities. More in detail, the Government’s Explanatory Memorandum states that the central Article [1] raises the minimum age established within the framework of the Convention [on the Rights of the Child of November 1989] from age 15 to age 18 (Art. 38 (2) of the Convention) and thereby follows the relevant regulations in Art. 22 (2) of the African Charter on the Rights and Welfare of the Child from July 1990 (not in force) and Art. 3 lit. a of the Convention Nr. 182 of the International Labour Organisation on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour. According to the interpretation of the authors (Travaux Préparatoires), the term “direct participation in hostilities” is principally to be interpreted restrictively and does not include the collection of information, the delivery of instructions, the transport of ammunition and food, or the involvement in acts of sabotage, even if in the realization of these actions the children are exposed to the usual dangers of a conflict area.

33


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The Explanatory Memorandum continues that in Austria, the duration of compulsory military service, as well as the admissible minimum age for conscription of Austrian citizens into the armed forces is regulated by ordinary law in the Military Service Act (Wehrgesetz) from 1990.34 Within the framework of the amendments35 to the Military Service Act from 1990, which are in force since January 1, 2001, it was ensured that persons that have not yet completed age 18 will under no circumstances directly participate in hostilities. Thus in the interest of an improved protection of the rights of children and in view of the forthcoming ratification of the Optional Protocol, Sec. 47 para 2 of the Military Service Act 1990 laid down an explicit exclusion of the use of soldiers under the age of 18 “directly in hostilities within the framework of the deployment [for the military defence of the country]”. Enlistment for basic military service as well as the completion of all aspects of military training before the completion of age 18 thus remains admissible just as the use for missions that do not involve the danger of “direct hostilities”. The German original of the Explanatory Memorandum reads as follows: Diese zentrale Bestimmung hebt das im Rahmen des Übereinkommens [über die Rechte des Kindes vom November 1989] normierte Mindestalter von 15 auf 18 Jahre (Art. 38 Abs. 2 des Übereinkommens) und folgt darin den jeweiligen Bestimmungen Art. 22 Abs. 2 der African Charter on the Rights and Welfare of the Child vom Juli 1990 (nicht in Kraft) und Art. 3 lit. a des Übereinkommens Nr. 182 der Internationalen Arbeitsorganisation über das Verbot und unverzügliche Maßnahmen zur Beseitigung der schlimmsten Formen der Kinderarbeit. Der Begriff der „unmittelbaren Teilnahme an Feindseligkeiten“ ist nach Interpretation der Verfasser (Travaux Préparatoires) dabei grundsätzlich restriktiv auszulegen und inkludiert nicht die Sammlung von Informationen, die Überbringung von Weisungen, den Transport von Munition und Lebensmitteln oder die Involvierung in Sabotagehandlungen, selbst wenn Kinder während der Durchführung dieser Handlungen den üblichen Gefahren eines Kampfgebiets ausgesetzt sind. In Österreich ist die Dauer der Wehrpflicht sowie das Lebensalter, ab dem eine Einberufung österreichischer Staatsbürger in das Bundesheer zulässig ist, auf einfachgesetzlicher Stufe im Wehrgesetz 199036, normiert. Im Rahmen der Novelle37 des Wehrgesetzes 1990, welche seit 1. Jänner 2001 in Kraft steht, wurde sichergestellt, dass Personen, die das 18. Lebensjahr noch nicht vollendet haben, keinesfalls

34


35


36


37



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unmittelbar an Feindseligkeiten teilnehmen. So wurde im § 47 Abs. 2 Wehrgesetz 1990 (in der Folge WG) im Interesse eines verbesserten Schutzes der Rechte von Kindern und im Hinblick auf die bevorstehende Ratifikation des Fakultativprotokolls ein ausdrücklicher Ausschluss der Heranziehbarkeit von Soldaten unter 18 Jahren „unmittelbar zu Feindseligkeiten im Rahmen eines Einsatzes [zur militärischen Landesverteidigung]“ festgelegt. [...] Heranziehung zur Grundwehrdienstleistung sowie die Absolvierung sämtlicher Spektren der militärischen Ausbildung vor Vollendung des 18. Lebensjahres bleibt daher in gleicher Weise wie eine Verwendung zu Einsätzen ohne Gefahr „unmittelbarer Feindseligkeiten“ zulässig.

According to Article 2 of the Protocol, states parties shall ensure that persons who have not attained the age of 18 are not compulsorily recruited into their armed forces. The Government’s Explanatory Memorandum states with reference to this article that considering the often very long and complex enlistment process, according to the interpretation of the authors (Travaux Préparatoires), the focus should be—in a temporally restrictive manner—on the actual integration of the enlisted into the national armed forces, since only from this point of time onward a real danger in the case of hostilities can be assumed. The German original of the Explanatory Memorandum reads as follows: Unter Berücksichtigung eines oftmals sehr lang andauernden und komplexen Einziehungsprozesses ist nach Interpretation der Verfasser (Travaux Préparatoires) zeitlich einschränkend auf die tatsächliche Eingliederung des Einzuziehenden in die nationalen Streitkräfte abzustellen, da erst ab diesem Zeitpunkt von einer realen Gefahr im Fall von Feindseligkeiten ausgegangen werden kann.

QQ.I.2.g-3 Amendments to the Federal Law on Compensation of Prisoners of War—extension of the groups of persons entitled to claim indemnification/Bundesgesetz, mit dem das Kriegsgefangenenentschädigungsgesetz geändert wird—Erweiterung des anspruchsberechtigten Personenkreises In February 2002, the Austrian Parliament passed an amendment38 to the Federal Law on Compensation of Prisoners of War.39 The previous Law on Compensation of Prisoners of War had excluded certain groups of persons from the possibility to claim indemnification. In fact, prisoners of the Western Allies, persons who were arrested and not considered prisoners of war (zivilinternierte Personen) who had been captured

38


39

Federal Law Gazette, BGBl. 142/2000 idF BGBl. 70/2001.

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outside Austria and persons with permanent residence abroad had not been entitled to reparations. The Government’s Explanatory Memorandum40 states in its general comments that the main objective of the present amendment is to include the above mentioned groups into the circle of entitled persons under the Law on Compensation of Prisoners of War by amending the relevant provisions (Sections 1 and 3). The relevant amendments read as follows: 1. § 1 reads as follows: “§1. Austrian citizens, who 1. during the course of World War II became prisoners of war, or 2. during the course of World War II or during the time of occupation of Austria by the Allied Forces were arrested or detained for political or military reasons by a foreign power, or 3. because of political persecution or the danger of political persecution as defined by the Law regulating the Care for Victims (Opferfürsorgegesetz)41, were located outside the territory of the Republic of Austria and were arrested by a foreign power and detained after the begin of World War II, have the right to compensation in accordance with the provisions of his Federal Law.”

The Government’s Explanatory Memorandum42 attached to the text provides the following additional information on the relevant provisions. Concerning Section (§) 1 the Explanatory Memorandum states that through the planned changes of Sec 1 it will be made possible also for prisoners of war of the Western Allies as well as for those civilians that were arrested outside Austria to claim a compensation according to the Law on Compensation of Prisoners of War. Concerning Sections 3, 17 and 18 para 1 the Explanatory Memorandum states that through the elimination of the provisions of Sec 3 persons with permanent residence abroad can also claim a prisoner of war compensation.

40

See Explanatory Memorandum in Parliamentary Materials 944 Beil. Sten. Prot. (XXI.GP), Vorblatt and Erläuterungen Allgemeiner Teil.

41


42

Ibid.


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The German original of the relevant amendments reads as follows: 1. § 1 lautet: „§1. Österreichische Staatsbürger, die 1. im Verlauf des Zweiten Weltkrieges in Kriegsgefangenschaft gerieten, oder 2. im Verlauf des Zweiten Weltkrieges oder während der Zeit der Besetzung Österreichs durch die Alliierten Mächte von einer ausländischen Macht aus politischen oder militärischen Gründen festgenommen und angehalten wurden, oder 3. sich auf Grund politischer Verfolgung oder drohender politischer Verfolgung im Sinne des Opferfürsorgegesetzes, BGBl. Nr. 183/1947, außerhalb des Gebietes der Republik Österreich befanden und aus den in Z 2 angeführten Gründen von einer ausländischen Macht festgenommen und nach Beginn des Zweiten Weltkrieges angehalten wurden, haben Anspruch auf eine Leistung nach Maßgabe der Bestimmungen dieses Bundesgesetzes.“

The German original of the Government’s Explanatory Memorandum attached to the text reads as follows: Allgemeiner Teil Hauptgesichtspunkt des Entwurfes: Durch die vorgesehene Gesetzesänderung sollen auch Kriegsgefangene der Westalliierten, zivilinternierte Personen, die außerhalb Österreichs festgenommen wurden, sowie Personen, die ihren gewöhnlichen Aufenthalt im Ausland haben, einen Entschädigungsanspruch nach dem Kriegsgefangenenentschädigungsgesetz erhalten. […] Besonderer Teil Zu Z 1 (§ 1): Durch die vorgesehenen Änderungen des § 1 soll auch Kriegsgefangenen der Westalliierten sowie jenen zivilinternierten Personen, die außerhalb Österreichs festgenommen wurden, ein Anspruch auf Entschädigung nach dem Kriegsgefangenenentschädigungsgesetz eröffnet werden. Zu Z 2 (§ 3, § 17 und § 18 Abs. 1): Durch den Entfall der Bestimmung des § 3 sollen auch Personen, die ihren gewöhn-

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lichen Aufenthalt im Ausland haben, einen Anspruch auf Kriegsgefangenenentschädigung erhalten. […]

II.

Non-international armed conflict/Nicht-internationaler bewaffneter Konflikt See QQ.I.2.g-2 and RR.II

RR. Neutrality, non-belligerency/Neutralität, Nicht-Kriegführung See also OO.II.1 and OO.II.2

II.

Permanent neutrality/Dauernde Neutralität

RR.II Federal Law amending the Austrian Penal Code and other laws (et.al.) (Strafrechtsänderungsgesetz 2002)—neutrality—prohibited support of parties of international and non international armed conflicts/Bundesgesetz, mit dem das Strafgesetzbuch, und andere Gesetze geändert werden (Strafrechtsänderungsgesetz 2002)—Neutralität—verbotene Unterstützung von Parteien internationaler und nicht internationaler bewaffneter Konflikte In July 2002, the Austrian Parliament passed amendments43 to the Austrian Criminal Code (StGB) and other laws. The Government’s Explanatory Memorandum44 states in its general comments regarding Section 320 StGB that the amendment, inter alia, aims at adapting the elements of the crime of “endangerment of neutrality” (“Neutralitätsgefährdung”— Sec 320 StGB) to the recent amendments45 of the Law on War Material as well as to the amendments46 of the Law on the Presence of Foreign Forces. The title of Sec 320 StGB “endangerment of neutrality” is changed into “Prohibited support of parties to armed conflicts” (“Verbotene Unterstützung von Parteien bewaffneter Konflikte”), as the elements of the crime comprise wars as well armed conflicts in general and the

43


44

Explanatory Memorandum in Parliamentary Materials 1166 Beil. Sten. Prot. (XXI.GP).

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46



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previous title “Neutralitätsgefährdung” had not adequately reflected that fact. Furthermore, the Government’s Explanatory Memorandum states in its general comments that in accordance with the wishes of the Federal Ministry for Foreign Affairs and the Federal Ministry for National Defence and within the objectives of the Government’s programme, the offence of “endangerment to neutrality” shall be adapted to the changes recently made to the Law on War Material and the Law on the Presence of Foreign Forces and shall be renamed “prohibited support of parties to armed conflicts”, as the offence concerns both wars and armed conflicts. The relevant Section 320 StGB reads as follows: Prohibited support of parties to armed conflicts § 320. (1) Who knowingly, on the territory of Austria, during a war or an armed conflict in which the Republic of Austria does not participate, or during imminent danger of such a war or conflict, for one of the Parties 1. […] 3. exports arms and weapons contrary to existing regulations out of the Austrian territory, passes them through the territory or arranges the procurement, [...] 5. unauthorized transmits military news or for this purpose erects or uses a telecommunications installation, is to be punished with a prison sentence of six months up to five years. (2) Paragraph 1 is not to be applied in those cases, in which 1. a decision of the Security Council of the United Nations, 2. a decision on the basis of Title V of the Treaty of the European Union, 3. a decision within the framework of the Organisation of Security and Cooperation in Europe (OSCE) or 4. another peace operation according to the principles of the Charta of the United Nations, such as measures to avert a humanitarian catastrophe or to prevent serious and systematic human rights violations, within the framework of an international organisation is carried out.

The Explanatory Memorandum47 specifies that the new title was not introduced to

47

Explanatory Memorandum in Parliamentary Materials, 1166 Beil. Sten. Prot. (XXI. GP), Erläuterungen Besonderer Teil.

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modify the material content of Sec 320 but rather to more adequately express said content. In fact, the elements of crime of Sec 320 do not only refer to the endangerment of neutrality in case of war, but also to a disturbance of external relations by prohibited interventions in any other type of armed conflict. As the term “neutrality” does not refer to armed conflicts other than wars, it was considered more appropriate to change it into the “Prohibited support of parties to armed conflicts” in order to express the criminal nature of any kind of support of parties to armed conflicts in the most comprehensive way. Further, as to the Explanatory Memorandum, the proposed addendum to paragraph 1 lit. 3 concerning the procurement (Vermittlung) of war material aims at conforming the provision to the respective amendment48 of Sec 1 of the Law on War Material. The suggested addendum to paragraph 1 lit. 5 tends to clarify that an “authorized participation in an intelligence system” (befugte Teilnahme an einem Nachrichtenverbund) is not considered to fall within the scope of paragraph 1 even if it is not covered by the exceptions of paragraph 2. Finally, the Explanatory Memorandum states in regard to the amended version of paragraph 2 that the newly proposed lit. 4 of paragraph 2 should be seen as the essential addition, which in contrast to lit. 1-3 does not require a formal passing of a decision in the sense of this provision; however, lit. 4 at least presupposes that the actions are carried out “within the framework of an international organisation”. The German original of Section 320 StGB reads as follows: Verbotene Unterstützung von Parteien bewaffneter Konflikte § 320. (1) Wer wissentlich im Inland während eines Krieges oder eines bewaffneten Konfliktes, an denen die Republik Österreich nicht beteiligt ist, oder bei unmittelbar drohender Gefahr eines solchen Krieges oder Konfliktes für eine der Parteien 1. […] 3. Kampfmittel entgegen den bestehenden Vorschriften aus dem Inland ausführt, durch das Inland durchführt oder vermittelt, […] 5. unbefugt eine militärische Nachricht übermittelt oder zu diesem Zweck eine Fernmeldeanlage errichtet oder gebraucht, ist mit Freiheitsstrafe von sechs Monaten bis zu fünf Jahren zu bestrafen.

48



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(2) Abs. 1 ist in den Fällen nicht anzuwenden, in denen 1. ein Beschluss des Sicherheitsrates der Vereinten Nationen, 2. ein Beschluss auf Grund des Titels V des Vertrages über die Europäische Union, 3. ein Beschluss im Rahmen der Organisation für Sicherheit und Zusammenarbeit in Europa (OSZE) oder 4. eine sonstige Friedensoperation entsprechend den Grundsätzen der Satzung der Vereinten Nationen, wie etwa Maßnahmen zur Abwendung einer humanitären Katastrophe oder zur Unterbindung schwerer und systematischer Menschenrechtsverletzungen, im Rahmen einer internationalen Organisation durchgeführt wird.

The German original of the relevant parts of the quoted Explanatory Memorandum reads as follows: Erläuterungen Allgemeines […] In Übereinstimmung mit Wünschen des Bundesministeriums für auswärtige Angelegenheiten und des Bundesministeriums für Landesverteidigung soll im Sinne des Regierungsprogramms der Tatbestand der Neutralitätsgefährdung (§ 320 StGB) an die kürzlich vorgenommenen Änderungen im Kriegsmaterialgesetz und an das Truppenaufenthaltsgesetz angepasst werden; der Titel soll in „Verbotene Unterstützung von Parteien bewaffneter Konflikte“ umbenannt werden, zumal der Straftatbestand sowohl Kriege als auch bewaffnete Konflikte betrifft. […] Zu den einzelnen Bestimmungen […] Zu Art. I Z 27 (§ 320 StGB): Die vorgeschlagene Änderung des § 320 StGB dient im Wesentlichen der Anpassung dieser Bestimmung an die mit dem Bundesgesetz BGBl. I Nr. 57/2001 vorgenommenen Änderungen des Kriegsmaterialgesetzes bzw. an das mit Art. II dieses Bundesgesetzes erlassene Truppenaufenthaltsgesetz. Dies betrifft zunächst die vorgeschlagene Änderung der Überschrift. Wie bei den in § 3 Abs. 1 Z 1 und 4 des Kriegsmaterialgesetzes vorgenommenen textlichen Änderungen in Bezug auf die Erwähnung der Neutralität, ist auch hier keinerlei inhaltliche Änderung damit verbunden (zum KMG vgl. die EB zur RV 428 BlgNR XXI. GP, 10). Vielmehr wird durch die wortgetreuere Umschreibung des Tatbestandes schon im Titel präziser zum Ausdruck gebracht, worum es in der Bestimmung

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seit jeher geht: nicht nur um Neutralitätsgefährdung, die nur im Falle eines Krieges eintreten kann, sondern um die Störung der Beziehungen zum Ausland im Sinne der Überschrift des 24. Abschnitts durch verbotene Interventionen in jeglichen bewaffneten Konflikten, dh. insbesondere auch in solchen, die keine Kriege sind. Da Neutralität bei bewaffneten Konflikten, die keine Kriege sind, begrifflich nicht in Frage kommt (und damit auch keine Neutralitätsgefährdung), erscheint es nur konsequent, schon in der Überschrift der Bestimmung die umfassende Pönalisierung der Unterstützung von Parteien in jeglichem bewaffneten Konflikt, also auch wenn es sich nicht um einen Krieg im völkerrechtlichen Sinne handelt, zum Ausdruck zu bringen, um so mehr, als Kriege im völkerrechtlichen Sinne in der politischen Realität kaum mehr eine Rolle spielen. Die vorgeschlagene Ergänzung des Abs. 1 Z 3 um die „Vermittlung“ von Kampfmitteln soll die entsprechende Änderung des § 1 des Kriegsmaterialgesetzes durch BGBl. I Nr. 57/2001 nachvollziehen. Die vorgeschlagene Ergänzung des Abs. 1 Z 5 soll insbesondere klarstellen, dass eine an sich befugte Teilnahme an einem Nachrichtenverbund keinesfalls tatbildlich sein kann, und zwar auch dann nicht, wenn (noch) kein Ausnahmefall des Abs. 2 vorliegt. Die vorgeschlagene Neufassung des Abs. 2 folgt in ihrem Wortlaut § 3 Abs. 1a des Kriegsmaterialgesetzes bzw. § 2 Abs. 1 Z 1 bis 4 des Truppenaufenthaltsgesetzes, wobei die wesentliche Ergänzung in der neu vorgeschlagenen Z 4 zu erblicken wäre, die zum Unterschied von den Z 1 bis 3 keiner formellen Beschlussfassung im Sinne dieser Bestimmungen bedarf, aber immerhin die Abwicklung „im Rahmen einer internationalen Organisation“ voraussetzt. […]

III.

Neutrality in the light of the Charter of the United Nations/ Neutralität im Licht der Satzung der Vereinten Nationen See also RR.II

RR.III New Austrian Security and Defence Doctrine––paradigm shift in Europe’s security policy––the role of international organisations and Austria’s solidary participation– –development from neutrality to solidarity/Neue österreichische Sicherheits- und Verteidigungsdoktrin––Sicherheitspolitischer Paradigmenwechsel in Europa––Rolle der internationalen Organisationen und Österreichs solidarische Mitwirkung––der Weg von der Neutralität zur Solidarität For the purpose of adapting its security and defence policy to the diverse and farreaching changes the Austrian Federal Government commissioned a group of experts


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to carry out a comprehensive security policy analysis. After intensive discussions in a parliamentary sub-committee specifically set up for this purpose in 2001, the National Assembly adopted by majority on 12 December 2001 a new Security and Defence Doctrine on the basis of this analysis. For the first time since the adoption of the last Defence Doctrine in 1975, Austria now again has a basic political guideline for devising its security policy. The new Security and Defence Doctrine can be summarized as follows:49 The National Assembly’s resolution takes account of the new security policy developments and is based in particular on the following fundamental principles: Austria’s security policy is guided by the principle of comprehensive security which attributes appropriate importance to both military and non-military security aspects. The principle of preventive security replaces the concept of threat response. The active participation in international measures for conflict prevention and crisis management is an integral part of Austria’s security policy. The principle of European solidarity replaces the concept of autonomous security policy. The security of Austria and the security of the European Union are inseparably linked with each other. The new challenges and risks arising in the field of security policy cannot be met alone but only within the framework of international cooperation in the spirit of solidarity. Based on the experts’ draft analysis of the Security and Defence Doctrine, the National Assembly’s resolution starts out from general considerations describing in particular the paradigm shift in Europe’s security policy, the security policy risks and hazards, Austria’s security position, the role of international organizations and Austria’s solidary participation as well as the development from neutrality to solidarity. In the light of these considerations, the resolution contains a list of general recommendations as well as recommendations on the foreign policy aspects of security policy, on defence policy and on internal security. On the basis of these recommendations on security and defence policy contained in the resolution, the National Assembly requests the Federal Government to prepare sub-strategies for all fields relevant to security policy. These sub-strategies are to contain primarily such measures as are necessary to implement the recommendations and relate in particular to the areas of foreign policy, defence policy and internal security. In addition, sub-strategies are also to be prepared in the fields of economic, agricultural, transport, infrastructure and financial policy as well as 49

Summary © available at http://www.bka.gv.at/bka/sicherheitspolitik/english_version.html.

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education and information policy. It is expected that a balanced overall strategy will be formulated by late 2002. After that, the grand strategy and the sub-strategies are to be continuously reviewed, coordinated and, if necessary, adjusted in accordance with international requirements.

The relevant parts of the English version of the new Austrian Security and Defence Doctrine read as follows:50 Resolution by the Austrian Parliament Security and Defence Doctrine Orig. German official translation General Consideration […] Security Risks and Dangers replace clear Threat Scenarios The clearly perceivable threat scenario of the Cold War era has been replaced by a complex mix of dangers and risks. […] In case of radically changed political intentions, a residual military risk should also be taken into account. This can be considered small at present, in view of the deterrent effect exerted by NATO. On the other hand, other forms of threats are on the increase. The most important global challenges to security policy are the proliferation of weapons of mass destruction, terrorism controlled by governments or certain interest groups and operating internationally, organised crime, destabilising developments in armaments, ethnic conflicts, phenomena of political fragmentation, totalitarian ideologies and fundamentalist religions, demographic trends and migration, problems of energy and resources, problems of food supply, and environmental hazards. Especially international terrorism in all its manifestations is a serious security problem for Western societies. […] Austria’s security situation Austria’s current security situation is characterised by a number of positive factors. These include in particular its internal stability based on the rule of law, democracy and economic prosperity, the fact that Austria is embedded in the solidarity

50

Available at http://www.bka.gv.at/bka/sicherheitspolitik/doktrin_e.pdf.


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community of the EU, and the good relations with its neighbouring countries. The enlargement processes of the EU and NATO also have positive effects on Austria’s geo-political situation. An act of aggression with conventional forces against Austria, threatening its existence, is only conceivable in case of a radical strategic change in the political situation in Europe; for such a case, present military strategic assessments would expect a lead-time of 7 to 10 years. Notwithstanding its present low degree of probability, it cannot, however, be ruled out altogether. […] Nevertheless, there are potential risks and dangers that might alter Austria’s security policy situation quickly and decisively […] In view of the progressive development and availability of long-range air assets, especially ballistic missiles and cruise missiles, Austria may face a military threat even from regions outside Europe in a few years’ time. Moreover, the proliferation of weapons of mass destruction may lead to new threats also for Austria despite appropriate non-proliferation regimes. […] The Role of International Organisations and Austria’s Participation Security and stability can be best guaranteed today through co-operation among functionally complementary and mutually supportive institutions. These include the United Nations and, at the European and Transatlantic level, especially the EU, NATO with its Partnership for Peace (PfP) and the Euro-Atlantic Partnership Council as well as the OSCE and the Council of Europe. Active participation in international measures of conflict prevention and crisis management is an important element of […] From neutrality to solidarity When the Austrian National Assembly on 26 October 1955 passed the Federal Constitutional Law on Austria’s neutrality, it was taken for granted that Austrian neutrality would be modeled on that of Switzerland. But very soon, Austria’s neutrality differed from that of Switzerland: as early as December 1955, Austria joined the United Nations. In relation to the United Nations, Austria’s understanding until 1990 was that the organisation was under an obligation to respect Austria’s permanent neutrality

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and would therefore never call on Austria to take coercive measures in a military conflict between third countries. But in the course of the Gulf War of 1991, the legal view came to prevail in Austria that obligations under the Statute of the United Nations take precedence over obligations under neutrality. Thereby, the Swiss model of classical neutrality had lost its relevance. Upon joining the European Union in 1995, Austria adopted the Union’s entire legal and political “acquis”, which then already comprised the Maastricht Treaty and its provisions on the Common Foreign and Security Policy (CFSP). Article J.4 of the Treaty opened the perspective of a common defence policy which in due time could lead to a common defence. A special provision (Article 23f) was added to the Austrian Federal Constitution to ensure that participation in the CFSP would not be restricted by the Neutrality Act. The Neutrality Act was thereby further limited in its effect. After ratification of the Amsterdam Treaty, the Austrian National Assembly in 1998 adopted another constitutional amendment, under which Austria may take part in the whole spectrum of what is known as the Petersberg Tasks, which include combat missions in the context of crisis management, including peace-making measures. Such participation is possible under a EU decision. This development demonstrates that Austria—at the latest by its unreserved participation in the EU’s Common Foreign and Security Policy—has radically changed its status of permanent neutrality in international law. Hence, on an international comparison, Austria’s status in international law corresponds to that of a non-allied state rather than a neutral state. Austria is sovereign to decide on the future development of its security policy. However, the better Austria is integrated into the international security architecture, the more efficiently will it be able to safeguard its security interests and peace policy objectives and to contribute to shaping a stable and peaceful environment. Resolution The Federal Government is requested to shape Austria’s security policy especially in accordance with the following principles: […] Foreign Policy Aspects of Security Policy Austria’s foreign and security policy should be shaped in accordance with the following principles: […] 4. Continuation of Austria’s traditional engagement in multilateral institutions such as the UN, UN affiliated organisations, OSCE, NATO-PfP/EAPC and


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Council of Europe. […] 8. Support of EU reforms, especially with a view to developing the CFSP/ESDP and safeguarding the Union’s security policy interests. 9. Continuous coordination with our EU partners as the best way to promote Austrian national interests within the EU. Development of a partnership with likeminded states holding similar views which are linked by common regional interests (Regional Partnership Concept). […] 11. Active participation in the ESDP in the spirit of solidarity; since ESDP is currently pursuing the aim of giving the EU the necessary means and capabilities as well as efficient decision-making structures for civil and military crisis management. Austria will make an appropriate contribution in terms of quantity as well as quality to the headline goal and capability goals of the EU. 12. Priority support to any future efforts to realize the possibility of a common European defence envisaged in Article 17 of the EU Treaty. 13. Consistent further development of Austria’s relations with NATO within the framework of the tailored co-operation programme. Full usage of the possibilities for co-operation and dialogue offered within the framework of the Partnership for Peace program. Close co-operation between the EU and NATO in the spirit of a strategic partnership is regarded as a prerequisite for the success of the ESDP. 14. NATO’s enlargement process is welcomed as a contribution to the strengthening of security and stability in Europe and is thereby also in Austria’s interest. In light of the development within the field of security policy, Austria will continuously assess the value of NATO membership for its security and defence policy and the option of joining NATO will be kept open. Accession to NATO would only take place after prior consent of the Austrian people (referendum). Defence Policy Austria’s defence policy should be shaped in accordance with the following principles: 1. Safeguarding Austria’s military defence capability as required by the concrete strategic situation. A conventional military attack on Austria threatening the country’s existence is currently not foreseeable, whereas the capability of countering punctual attacks must be constantly maintained. This includes steps to maintain and develop all military core functions at a high technological level on a scale of forces operatively sustainable. This potential should ensure the growth capability of the country’s armed forces, in case the security

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situation changes in the future. Ensuring constant air surveillance and air control as required, and defending against sub-conventional attacks and possible conventional threats. 2. Developing and maintaining the capability to participate in a common defence efforts in adequate strength, i.e., in today’s perspective on a scale equivalent to a division. 3. Enabling the Austrian Armed Forces to take part in the entire spectrum of the Petersberg Tasks within a multinational framework up to the scale of a brigade or brigade equivalent. […] 5. Achieving interoperability to carry out peace support operations abroad and for the defence of Austria. 6. Present conditions require coverage of the entire spectrum of military tasks; in terms of personnel this can only be achieved by maintaining universal conscription. However, the qualifications needed call for a gradual increase in the degree of professionalisation and in the share of volunteers. […] 9. Promoting armament co-operation, especially within the framework of the WEAG, should enable Austria to achieve synergies, make armament procurement less costly and get access to latest key technologies. […] Vienna, 12 December 2001

SS. Legal aspects of international relations and cooperation in particular matters/Rechtliche Aspekte der internationalen Beziehungen und Zusammenarbeit in bestimmten Bereichen III.

Environment/Umwelt

SS.III-1 Alpine transit—Transport Protocol of the Alpine Convention—objective of a reduction of the pollution —measures and minimum requirements for a new transit agreement between Austria and the EU/Alpentransit—Verkehrsprotokoll der Alpenkonvention—Zielsetzung eines Senkens der Belastungen für Mensch und Natur—Maßnahmen und Mindesterfordernisse für ein Transitübereinkommen zwischen Österreich und der EU In May 2001, a parliamentary request was addressed to the Federal Minister for Transport, Innovation and Technology asking her whether she considered the actual


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transit regulation between Austria and the EU as sufficient to meet the objectives of the Alpine Convention in regard to traffic, namely the reduction of the burden for human beings and nature to a bearable extent.51 The Austrian Minister was asked furthermore, which minimum requirements as regards content she considered indispensable for the new transit agreement between Austria and the EU and whether she would speak up to declare the entire Alpine area a “sensitive zone”—as defined in the Alpine Convention52—in a new transit agreement. She answered that the current transit regulation according to Protocol N° 9 of the accession treaty alone was in her opinion not sufficient to fulfil the goals of the Alpine Convention, since the transit regulation applied exclusively to transit traffic and furthermore concerned only to the relations towards the EU- and EES- member states, Switzerland and Slovenia. Therefore she sought a comprehensive, long-run solution to achieve a lasting reduction of the strain on the population affected and on the environment caused by goods transported by road. Besides regulatory provisions in the area of the entire sector of road transport of goods, this solution should encompass in particular measures aiming to avoid traffic, measures geared towards the shift of traffic from the road towards the environmentally-friendly rail traffic and combined traffic, as well as measures in the area of “true costs” (Kostenwahrheit) and crossfinancing of rail infrastructure. The German original reads as follows: Die geltende Transitregelung gemäß Protokoll Nr.9 des Beitrittsvertrages allein ist meines Erachtens nicht ausreichend, um der Zielsetzung der Alpenkonvention gerecht zu werden, da sie sich ausschließlich auf den Transitverkehr bezieht und ausschließlich im Verhältnis zu den EU- und EWR-Mitgliedstaaten, der Schweiz und Slowenien Anwendung findet. Deshalb strebe ich eine umfassende, langfristige Lösung zur nachhaltigen Reduktion der Belastungen aus dem Straßengüterverkehr für die betroffene Bevölkerung und die Umwelt an, die neben Regulierungsmaßnahmen im Bereich des gesamten Straßengüterverkehrs insbesondere auch Maßnahmen zur Verkehrsvermeidung, zur Verlagerung des Verkehrs von der Straße auf den umweltfreundlichen Schienen und den kombinierten Verkehr, Maßnahmen im Bereich der “Kostenwahrheit‘ und der Querfinanzierung der Schieneninfrastruktur umfassen soll.

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SS.III-2 Prevention of transboundary harm from hazardous activities/Vermeidung grenzüberschreitenden Schäden aus gefährlichen Aktivitäten On 31 October 2001, the Legal Adviser of the Foreign Ministry of the Republic of Austria delivered the following statement to the 56th Session of the General Assembly Sixth Committee concerning the Report of the International Law Commission on the Work of its 53rd Session relating to prevention of transboundary harm from hazardous activities:53 Mr Chairman, I would now like to turn to the topic of Prevention of Transboundary Harm from Hazardous Activities. This year the ILC has adopted its draft articles on this issue and recommended to the General Assembly the elaboration of a convention on that basis. Austria would like to express her appreciation to the ILC for completing its work and presenting these very interesting draft articles. We would like to congratulate the Special Rapporteur for this outcome, Mr. Pemmaraju Sreenivasa Rao, on the draft articles, elaborated under his leadership. We regard these articles as a big step forward in the elaboration of international law dealing with the prevention of transboundary harm from hazardous activities. For Austria, the codification and progressive development of international law on prevention of transboundary harm has always been a priority. In recent years—together with the European Community and its member states—we have made numerous proposals in various international fora—such as the United Nations Environment Programme—to elaborate international law concerning the prevention of transboundary damage. For us, prevention of harm is among the most important aspects for the achievement of the aim of sustainable development. As a general comment, Mr Chairman, I would like to acknowledge that these draft articles represent a well thought-out and elaborate set of provisions, which will prove to be of fundamental importance to the international community in the challenge how to deal with transboundary harm from hazardous activities. Therefore, Austria strongly supports the recommendation of the ILC to elaborate a convention on the basis of the draft articles presented by the ILC. We are convinced that—due to the work of the International Law Commission and its Special Rapporteur, Mr Rao,—such a convention has a good prospect of being adopted within a short period of time. At this stage, however, I permit myself to take the liberty to comment on a number of the draft articles in more detail. Some of my comments are to be seen merely as drafting matters, others are of a more substantive nature. 53



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Article 1, which determines the scope of the draft articles, states that its applies to “activities not prohibited by international law which involve a risk of causing significant transboundary harm through their physical consequences”. As regards the words “not prohibited by international law” we would like to question whether this addition is necessary. As “activities prohibited by international law” would fall within the scope of other rules of international law, we do not think that the addition of the above mentioned words add anything to Article 1. Taking into account the first sentence of the “general commentary” we would, therefore, suggest that consideration be given to the deletion of these words. In the comment to this article it is stated that these words have been inserted in order to separate the topic of international liability from the topic of state responsibility. As it is generally understood that these present draft articles concentrate on prevention these additional words could easily be deleted, as they are not needed for clarification of the scope of the draft articles. Article 3 states that “the state of origin shall take all appropriate measures to prevent significant harm or at any event to minimize the risk thereof”. We agree with this proposition in general, but we consider it essential to have all the details of the relationship between the two different obligations. Furthermore, in our view, the relationship between Article 3 and Article 10 needs to further be clarified. Article 10 lists the factors, which have to be taken into account in determining whether an activity within the territory of a state is to be permitted. In which way do these factors have to be taken into consideration under Article 3 to determine whether a state has fulfilled its obligation under this provision? In our view this needs to be further considered. With regard to Article 5 we would like to underline that in our view the draft article states that states should take measures already in advance and should not wait that an emergency occurs. Therefore, the wording of this article should be improved in the sense that states are obliged to take the necessary measures without undue delay. Austria supports the ideas expressed in Articles 9 and 10 on “consultations on preventive measures” and on “factors involved in an equitable balance of interests”. We regard the obligation of states concerned to enter into consultations—which may already be seen as a rule of customary international law—as essential to achieve the best possible result concerning the prevention of transboundary harm. We note with great interest that para. 3 states that even in the case that an agreed solution is not achieved between the states concerned, the state of origin still has to take into account the interests of the states likely to be affected. We consider this to be an important provision towards achieving the goal of sustainable development. Concerning the factors listed in Article 10 we take note of the understanding of

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subpara. d. that a “state likely to be affected is only to contribute to the costs of prevention” if it intends to apply standards beyond internationally agreed measures. Article 18 deals with the “Relationship to other rules of international law”. It states that “present articles are without prejudice to any obligation incurred by states under relevant treaties and rules of customary international law”. The commentary explains that it is intended to extend both to rules having a particular application and to rules, which are universal or general in scope. In our view such a general statement needs to be considered carefully and the effect of such a provision for the future application of the draft articles has to be discussed. Although the draft articles would be without prejudice for rules addressing e.g. a specified activity or applying to a particular regional scope, we would welcome a discussion on Article 18. Article 19 on the dispute settlement follows well-established standards. We, therefore, do not have any objections to it. Last but not least we would like to state that overall we consider the draft articles to be satisfactory. We hope that the General Assembly will follow the recommendation of the ILC to elaborate a convention on the prevention of transboundary harm speedily.

SS.III-3 Temelín Nuclear Power Plant—Bilateral Agreement between Austria and the Czech Republic “Conclusions of the Melk Process and Follow-up”/Atomkraftwerk Temelín— tschechisch-österreichisches bilaterales Abkommen „Schlussfolgerungen des Melker Prozesses und das Follow-up“ On 29 November 2001, the Republic of Austria and the Czech Republic have, using the good offices of Commissioner Verheugen, reached an accord on the following bilateral agreement on the “Conclusions of the Melk Process and Follow-up”. They have agreed to communicate this agreement, in an appropriate form, to the Accession Conference:54 CONCLUDING STATEMENT on the negotiations held on 29 November 2001 between the Czech and Austrian governments led by Prime Minister Zeman and Federal Chancellor Schüssel with the participation of Commissioner Verheugen on the “Conclusions of the Melk Process and Follow-up” The Republic of Austria and the Czech Republic have, using the good offices of

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Commissioner Verheugen, reached an accord on the annexed “Conclusions of the Melk Process and Follow-up”. They have agreed to communicate this agreement, in an appropriate form, to the Accession Conference. Prime Minister Milos ZEMAN Federal Chancellor Wolfgang SCHÜSSEL Commissioner Günter VERHEUGEN Conclusions of the Melk Process and Follow-up Preamble With the aim of further developing good-neighbourly relations between the Czech Republic and the Republic of Austria, a “Protocol on the Negotiations between the Czech and the Austrian Governments, led by Prime Minister Zeman and Federal Chancellor Schüssel with the Participation of Commissioner Verheugen” was signed in Melk on 12 December 2000, further referred to as the ‘Melk Protocol’. The signatories of the ‘Melk Protocol’ found it appropriate to meet in Brussels on 29 November 2001 to define a follow-up to the process set forth in the Protocol mentioned above. The signatories agree that the process started in Melk has led to an improvement in the exchange of information on the Temelín Nuclear Power Plant thus creating prerequisites for more confidence between the Czech Republic and Austria within an intensive dialogue on nuclear energy. The signatories agree on the usefulness to open expert talks on amending the existing bilateral Agreement on the Exchange of Information on Nuclear Safety, concluded between the two states in 1989 so as to correspond to the achieved level of confidence and the needs of the signatories, including a reliable InfoHotline. Respecting the sovereign right to select their own energy policy, the two countries share their interest in a high level of nuclear safety of nuclear installations. The Czech side recognises the specific interest of the Republic of Austria as a neighbouring state in a high level of safety of Czech nuclear power plants. The Czech Republic is exclusively committed to the provisions of Vienna Convention on Civil Liability for Nuclear Damage and Joint Protocol to the application of the Vienna Convention and the Paris Convention. The Republic of Austria is fully committed to the Austrian Nuclear Liability Act of 1999. Chapter I—Info-Hotline The Info-Hotline was installed immediately after the negotiations in Melk and its functionality is positively assessed by the signatories.

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The Czech side has been providing information also on putting into operation the non-nuclear part of the first unit as well as information on the second unit of the Temelín NPP. The Czech Republic and Austria agree that the Info-Hotline constitutes a useful measure, also with regard to nuclear and non-nuclear testing of both units, that its functionality will be regularly assessed within the bilateral Agreement on Information Exchange and that, if needed, measures will be taken to increase its effectiveness. Chapter II—Early Warning System An automatic monitoring device in Ceské Budejovice provided by Austria was installed on April 24, 2001 and the supply of data on radiation levels from the monitoring network continues without any problem. The signatories agree that this measure fully meets its purpose and will remain in operation. With a view to establishing a regional network in the long-term, which could be included into ECURIE, the possibilities of exchanging data with other national monitoring networks will be explored. Chapter III—Energy Partnership The Czech Energy Agency has been co-operating with the Austrian Energy Agency in the fields of energy efficiency and reconstruction of tenement houses, exploitation of renewable energy sources and the use of co-generation units. The signatories will make further efforts to intensify this co-operation. Chapter IV—Safety Issues The Czech and the Austrian side appreciate the role played by the European Commission in establishing and facilitating a “trialogue”, launched to find a better mutual understanding on the issue of the Temelin NPP related to nuclear safety. During the process, twenty-nine issues of Austrian concern have been identified. All of them were documented and addressed. The expert mission under the Melk Protocol regarded nine issues as closed, meeting the purpose of the Melk process. Due to the nature of the respective topics, the expert mission found another ten issues suitable to be followed-up in the framework of the pertinent Czech-Austrian Bilateral Agreement. Finally, the Melk process helped to narrow gaps in the understanding of remaining ten issues. Even if it was not possible to reach an agreement on all the technical issues at stake, all participants agreed that the aim foreseen in Melk, namely to facilitate the dialogue between the Czech and Austrian governments, has been achieved.


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In order to enable an effective use of the Melk process achievements in the area of nuclear safety, the Annex I to this Protocol contains details on:

– Process and documentation of the “trialogue” – Specific actions to be taken as a follow-up to the “trialogue” in the framework of pertinent Czech-Austrian Bilateral Agreement. The signatories are fully aware of the AQG/WPNS Report on Nuclear Safety in the Context of Enlargement, in particular the recommendations pertaining to the NPP Temelín contained therein. The signatories agree that the peer review procedure foreseen by the EU to monitor the implementation of the recommendations should serve as another important tool to handle remaining nuclear safety issues. Furthermore, the Czech Republic and Austria agree to intensify bilateral co-operation on emergency preparedness. Chapter V—Environmental Impact Assessment With the ‘Melk Protocol’ the signatories agreed on a comprehensive and full-scope environmental impact assessment of the Temelín NPP guided by the Council Directive on the assessment of the effects of certain public and private projects on the environment (Council Directive 85/337/EEC as amended by Council Directive 97/11/EC), in particular with regard to the participation of neighbouring countries. To this end, a four-member Commission on the Assessment of Environmental Impact of the Temelín NPP was set up on the basis of a resolution of the Government of the Czech Republic. The Commission on the Assessment of Environmental Impact of the Temelín NPP presented a report and recommended in its Position the implementation of twentyone concrete measures (Annex II). The signatories agree that the implementation of the said measures will be regularly monitored jointly by Czech and Austrian experts within the bilateral Agreement on the Exchange of Information. Furthermore, the Czech Republic and Austria agree to intensify bilateral co-operation on emergency preparedness. Chapter VI—Commercial Operation Unit 1 and 2 of the Temelín NPP will only be put into commercial operation following the successful termination of commissioning and trial run. During these stages all tests prescribed by the programmes approved by the State Office for Nuclear Safety and required by the Czech legislation have to be performed and all relevant criteria corresponding to the state-of-the-art safety criteria prevailing in the Member States of the European Union have to be fulfilled, including this Protocol. In any case the implementation of those safety measures enumerated in Annex

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I, which are conditional for the safe operation of the NPP Temelín in line with Czech legislation, is a prerequisite of commercial operation. Chapter VII—Free Movement of Goods and Publicity in the Media The signatories positively assess the efforts to maintain and respect free movement of goods and persons. The signatories agree also in this respect to continue to honour their pertinent commitment of the “Melk Protocol”. Chapter VIII—Enlargement Based on the understanding that the Czech Republic will inform the Accession Conference comprehensively of the technical and procedural substance as well as of the binding character of this document and based on the understanding that the common position of the EU on the Energy Chapter will adequately reflect the information to the Accession Conference mentioned above, the Republic of Austria will agree to contribute constructively to start the next steps for the Energy Chapter as foreseen in the “road map” of Nice in order to start the implementation of the Protocol. Closing provisions The signatories shall – irrespective of the ownership of the NPP Temelín – guarantee the implementation of the conclusions of this Protocol in accordance with domestic legal regulations of the Czech Republic and international agreements. The signatories state that the implementation of specific steps of this “Conclusions of the Melk Process and follow-up” will be monitored by the Deputy Prime Minister and Minister of Foreign Affairs of the Czech Republic and the Minister of Agriculture and Forestry, Environment and Water Management of the Republic of Austria. A “road map” regarding the monitoring on technical level in the framework of the pertinent Czech-Austrian Bilateral Agreement as foreseen in this Protocol will be elaborated and agreed by the Deputy Prime Minister and Minister of Foreign Affairs of the Czech Republic and the Minister of Agriculture and Forestry, Environment and Water Management of the Republic of Austria by 10 December 2001 at the latest. In accordance with the importance attached by the EU to nuclear safety, as underlined by the European Council in Cologne and Helsinki, both sides will actively support and promote a high level of nuclear safety in the enlarged EU. Austria and the Czech Republic agree on the common objective to include the bilateral obligations contained in these “Conclusions” in a Protocol to the Accession Act. Brussels, 29 November 2001


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Annex I According to the Chapter IV of the Protocol, the parties established “an expert mission with trilateral participation” which was dispatched first to Vienna, on 2 February 2001, to identify the Austrian main issues of concern. During a subsequent mission to Prague and the Temelín NPP, on 15 and 16 March 2001, the same expert mission heard the explanations given by representatives of the Czech Republic on these issues of concern. Five issues of major concern to Austria were selected and discussed in depth. Two additional workshops were organised by the Czech side in February and in April to accommodate specific technical issues. An IAEA Operational Safety Review Team mission lasting for three weeks in February 2001 reviewed the operational safety of the plant. The conclusions were presented to the trilateral expert mission. A final joint meeting took place in Brussels, on 14 and 15 May 2001, in order to find solutions to the identified problems, on the basis of the state-of-the art relevant in the Member States of the European Union. A final discussion between heads of delegation took place in Brussels on 30 May 2001, at the request of the Austrian side. This process is documented in a Working Paper Summarising the outcome of the Expert Mission with Trilateral Participation Established Under the Melk Protocol (July 2001). It has been drafted under the sole responsibility of European Commission experts involved in the process. It summarises the work of the tripartite mission. For each of the twenty-nine issues of concerns identified, this paper provides a summary of the discussions that have taken place. To limit the size of this paper recording the positions of the parties, these have been summarised. The summaries therefore do not always present the full scope of the concerns expressed or the details of the information provided. To enable an effective “trialogue” follow-up in the framework of pertinent CzechAustrian Bilateral Agreement, a seven-item structure given below will be adopted. Individual items are linked to:

– Specific objectives set in licensing case for NPP Temelin units; – Description of present status and future actions foreseen by the licensee and SUJB respectively. Each item under discussion will be followed according to the work plan agreed at the Annual Meeting organised under the Czech-Austrian Bilateral Agreement. Having in mind the peer review procedure foreseen by the EU to monitor the implementation of the recommendations of the AQG/WPNS Report on Nuclear Safety in the Context of Enlargement the Czech and Austrian side understand that the first two items below in particular would be subject to this peer review procedure. […]

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[The technical annexes are not reproduced]. Annex II With the target to minimise stress feelings mainly of the Austrian public, the Commission recommends (besides standard monitoring of the Temelín NPP Radiation Inspection Laboratory, standard monitoring within the national grid of the Czech Hydrometeorological Institute, respectively others) to ensure independent super-standard monitoring of the nuclear power plant operation wastes. The optimal solution for super-standard measures is implementation of research task financed from the funds for science and research within the framework of the Czech Republic Governmental Council. 1. To establish a system for continuous informing of wide public both on current values of the factors affecting the environment as a consequence of the Temelín NPP operation (on-line outlets) and on development of time sequence of selected parameters of the environmental impacts monitoring (continuously updated diagrams, photos of the Earth remote examination, bio-monitoring results, and so on) as well as on other important facts (for instance earthquake in Alps indicated on seismological stations in South Bohemia, ...). All of these data would be shown on the Internet pages of the Temelín NPP, on publicly available monitors in Týn nad Vltavou and in Ceské Bud jovice, and in the Temelín NPP information centre. 2. To ensure continuous measurement of gaseous radioactive outlets within the framework of the operating network of the investor of the Temelín NPP. 3. To continuously improve and modernise the existing radiation monitoring network operated by the state authorities of the Czech Republic. 4. To regularly inform the public in the Czech Republic, Austria and the Federative Republic of Germany on all measurements. 5. To permanently monitor the impacts of the Temelín NPP cooling towers on climate even in wider region (through the existing meteorological stations network of the Czech Hydrometeorological Institute). 6. To ensure independent and continuous monitoring of the Temelín NPP operation impacts in the following fields:

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Assurance of supply and quality of drinking water from the point of view of the nuclear power plant as well as nuclear power plant impacts on the water resources in the Temelín NPP surroundings;

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Assurance of supply and quality of technological water from the point of view of the nuclear power plant;

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Impacts of emissions on water system and risk of radioactive pollution of the recipient as a consequence of tritium water and other water effluents, including assessment of temperature impacts, accumulation and synergic


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impacts of harmful substances (including eutrofisation) in Orlík water reservoir;

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Impacts of emissions on atmosphere, verification of thermal pollution and evaporation of water on cooling towers;

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Impacts on agricultural activities and forest economy.

7. To order elaboration of soil map of the nuclear power plant surroundings in a digital form for surface generalisation of the impacts on pedosphere (soil sphere) from the point of view of further dynamic development. 8. To ensure conditions for seismic monitoring (including establishment of the monitoring centre located within the Temelín NPP area, eventually in the Information Centre). The basic objective of this centre will be to inform the public, state organisational units and local municipal governments on earthquake impacts on the locality and on the surroundings of the Temelín NPP. 9. To guarantee continuous maintenance and restoration of all technical equipment and devices of the nuclear power plant in such a way to correspond with the up-to-date status of the technique development as well as with the knowledge in the field of seismic engineering. 10. To ensure determination of radioactive substances in surface water, underground water and drinking water resources as well as in the food basket elements within the programme of the Radiation Monitoring Network of the Czech Republic. 11. To create conditions for implementation of the health condition monitoring study of about 30,000 of inhabitants in the surroundings of the Temelín NPP by means of epidemiological and radiobiological methods (for instance using chromosome analysis). 12. To establish a concept of continuous sociological examination of the population within wider surroundings of the Temelín NPP, to create conditions for implementation of the proposed programmes and related measures in the field of informatics and cultural educational activities. 13. To discuss revitalisation of the area abound the Temelín NPP as a compensation for impacts on the Temelín NPP area surroundings during its construction, to discuss reverse revitalisation in damaged sectors of river basin including initiation of discussion on revitalisation system in the effected area of Stropnice river basin. 14. To ensure maintenance (mitigation of undesirable succession) on sub-xerophythe locations of the former military area of Litoradlice and on areas of valuable marshes around new retention reservoir in Strouha river basin. 15. To ensure monitoring of radionuclide accumulation in biological materials— bryophyte, forest soil and pine bark and to maintain monitoring of radionuclides in fish.

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16. To monitor impacts of waste and rain waters by means of separate chemical and biological monitoring

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In Býšov in Strouha river basin; Monitoring of oxygen and temperature of selected sectors of Vltava; Season occurrence of plankton in Hnevkovice, Korensko and Orlík reservoirs, and in selected model pond reservoirs in the surroundings of the Temelin NPP, while maintaining, eventually extending monitoring of changes in chlorophyll concentration in Orlík water reservoir with emphasise on plankton share assessment with one sampling point under Korensko;

To extend monitoring of changes in water ecosystems by monitoring of changes in zooplankton composition because of its sensitiveness on changes in water temperature and subsequent changes in water ecosystem trophic structure. To establish long-term monitoring (even retrospective) of changes in landscape character by means of multispectral satellite data analysis, especially suitable for monitoring of humidity and temperature changes of landscape related to changes in vegetation structure and functions. We recommend annual assessment of satellite data and related creation of ground key for satellite data including definition of key biotopes comprising forests on satellite photos and to ensure regular generalisation in this context in fiveyear intervals. With respect to the range of individual photos it is possible to ensure objective assessment of changes, which could exceed the borders with Austria and the Federative Republic of Germany. To create conditions for financial security of care for residuals of preserved intangible cultural values in the surroundings of the Temelín NPP (including prospects for about 65 cultural monuments) from the side of the Temelín NPP operator as a compensation for affection of the landscape historical structure during construction. To decide on further use of spent fuel or to ensure definite storage in permanent underground storage within 65 years in accordance with the concept on spent fuel disposal approved by the Czech Republic Government. To eliminate high conservativeness of design accident calculations and to transfer to assessment of best estimate type; to compare inland calculation diagrams with the foreign ones. To improve eventual accident occurrence indication system including its assessment; to train emergency preparedness for this purpose and eventually to update emergency plans (conditions for fast information, ability to perform actions and coordination of emergency measures).


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SS.III-4 Temelín Nuclear Power Plant—Roadmap for the implementation of Annex I and Annex II of the “Conclusions of the Melk Process and Follow-up”/Atomkraftwerk Temelín— Fahrplan zur Umsetzung von Anhang I und Anhang II der Schlussfolgerung des Melker Prozesses und das Follow-up On 10 December 2001, the Deputy Prime Minister and Minister of Foreign Affairs of the Czech Republic and the Minister of Agriculture and Forestry, Environment and Water Management of the Republic of Austria finalized the following “road map” regarding the monitoring on technical level of the Czech-Austrian Bilateral Agreement called “Conclusions of the Melk Process and Follow-up”:55 Roadmap for the implementation of Annex I and Annex II of the Conclusions of the Melk Process and Follow-up The “Closing provisions” of the “Conclusions of the Melk process and follow-up” further referred to as the “Conclusions”—call for a “road map” regarding the monitoring on technical level in the framework of the pertinent Czech-Austrian Bilateral Agreement to be elaborated and agreed by the Deputy Prime Minister and Minister of Foreign Affairs of the Czech Republic and the Minister of Agriculture and Forestry, Environment and Water Management of the Republic of Austria. This “road map” is based on the following principles: Principles

– The implementation of activities enumerated in Annex I and II of the Conclusions will be continued to ensure that comprehensive material is available for the monitoring activities set out below.

– Having in mind the peer review procedure foreseen by the EU to monitor the implementation of the recommendations of the AQG/WPNS Report on Nuclear Safety in the Context of Enlargement, the Czech and Austrian side agree that this peer review should serve as another important tool to handle remaining nuclear safety issues.

– As a general rule the regular annual meetings according to Art. 7(1) of the bilateral Agreement between the Government of Austria and the Government of the Czech Republic on Issues of Common Interest in the Field of Nuclear Safety and Radiation Protection will serve to monitor the implementation of those measures referred to in Chapter V of the Conclusions and to address questions regarding nuclear safety in general, in particular those issues which—according to Chapter IV of the Conclusions—have been found, due

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to the nature of the respective topics, suitable to be followed-up in the framework of this Bilateral Agreement.

– In addition, specialists’ workshops and topical meetings will take place, organised as additional meetings according to Art. 7(4) of the bilateral Agreement between the Government of Austria and the Government of the Czech Republic on Issues of Common Interest in the Field of Nuclear Safety and Radiation Protection, as set out below: First half of the year 2002 Item No. 7 Severe Accidents Related Issues—a) This topical meeting will serve to establish a Working Group on comparison of calculations regarding the radiological consequences of BDBA (Beyond Design Basis Accidents) with a view to harmonise the basis for emergency preparedness. Second half of the year 2002 Regular bilateral Meeting As specified as a general rule, this meeting will serve, inter alia, to monitor the implementation of those measures referred to in Chapter V of the Conclusions and to address those issues which have been found suitable to be followed-up in the framework of this Bilateral Agreement. Item No.1 High Energy Pipe Lines at the 28.8 m Level Item No.2 Qualification of Valves (AQG/WPNS country specific recommendation) This specialists’ workshop will address these issues based on the outcome of the AGQ/WPNS Peer Review as well as based on the pertinent Regulatory Authority decisions. Item No. 5 Qualification of Safety Classified Components This topical meeting will serve to address regulatory review and approval of environmental qualification documentation taking into account requirements for accessibility of documentation according to state-of-the-art standards First half of the year 2003 Item No. 7 Severe Accidents Related Issues—b) This specialists’ workshop will be focused on the exchange of information related to SAMGs (Severe Accident Management Guidelines), including discussion on the analytical basis as well as corresponding software and hardware measures.


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Item No. 6 Site Seismicity This specialists’ workshop will be organised by March 2003 to address seismic issues. The information provided by Czech side will aim to clarify that siting of the installation took into account seismic as one of the possible external hazards. Second half of the year 2003 Regular bilateral Meeting As specified as a general rule, this meeting will serve, inter alia, to monitor the implementation of those measures referred to in Chapter V of the Conclusions and to address those issues which have been found suitable to be followed-up in the framework of this Bilateral Agreement. In addition, this meeting will include a presentation and discussion of the results of the Working Group on comparison of calculations regarding the radiological consequences of BDBA (Item 7a) as well as a general discussion on the progress achieved in monitoring on technical level regarding the implementation of Annex I and II of the “Conclusions”. First half of the year 2004 Item No. 3 Reactor Pressure Vessel Integrity and Pressurised Thermal Shock This topical meeting will serve to address the status of the PTS (Pressurized Thermal Shock) analysis. Second half of the year 2004 Item No. 4 Integrity of Primary Loop Components – Non Destructive Testing (NDT) This topical meeting will serve to address the status of NDT (Non-Destructive Testing) inspection procedures, including qualification. Regular bilateral Meeting As specified as a general rule, this meeting will serve, inter alia, to monitor the implementation of those measures referred to in Chapter V of the Conclusions and to address those issues which have been found suitable to be followed-up in the framework of this Bilateral Agreement. In addition, this meeting will include a summary discussion related to monitoring on technical level as said in the “Conclusions”.

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VIII. Legal matters (eg judicial assistance and crime control etc.)/ Rechtliche Angelegenheiten (zB Rechtshilfe und Verbrechensbekämpfung etc.) See DD.II and MM.III.4

IX. Military and security matters/Militärische Angelegenheiten, Sicherheitsangelegenheiten See also DD.II, OO.II.1, OO.II.2, RR.II, RR.III, QQ.I.2.g-1 and QQ.I.2.g-2 SS.IX UN General Assembly 56th Session—measures to eliminate terrorism/Generalversammlung der Vereinte Nationen 56te Sitzungsperiode—Maßnahmen zur Beseitigung des Terrorismus On 2 October 2001, the Permanent Representative of Austria to the United Nations delivered the following statement to the 56th Session of the General Assembly concerning measures to eliminate terrorism:56 Mr. President, The events of September 11th have brought terrorism to the top of the international agenda. In looking for effective, long-term global solutions the world turns to the United Nations for guidance and leadership. […] Last Friday, the Security Council adopted unanimously Resolution 1373 to combat terrorism globally. This resolution demonstrates clearly the unity, solidarity and determination of the UN in the fight against terrorism. Once implemented, the Resolution will cut off terrorists from their various forms of support and will facilitate global cooperation to defeat this threat to peace and security of our nations. […] Mr. President, Let me take this opportunity to identify the measures, which, from an Austrian perspective, are now essential in the global response to terrorism: 1. All states must implement without delay SC-Resolution 1373 of 28 September 2001 in close cooperation with the Security Council. Resolution 1373 is a

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6.

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powerful instrument and must be applied prudently and responsibly by all states. All states that have not yet done so should sign, ratify and implement the existing universal Conventions against Terrorism. I am pleased to announce in this respect that Austria, by signing the 1999 Convention against the Financing of Terrorism on September 24th 2001 has now signed all 12 universal Conventions endorsed by the UN. All states should redouble their efforts to find consensus on the Indian sponsored project of a Comprehensive Convention against Terrorism. As the Secretary General so rightly pointed out in his statement this Monday, the necessity for legal precision must not stand in the way of moral clarity which requires that there is no excuse whatsoever for taking innocent civilian life. During this Session of the General Assembly, the 6th Committee must attach the highest priority to item 166, the prevention of international terrorism, and ensure that the resolution on terrorism incorporates the important developments in the UN that have occurred since the tragic events of 11th September. The UN must pay particular attention to the broader aspects in the fight against terrorism, especially to the root causes, and contribute to a frank and inclusive dialogue between and within civilizations. The UN is the ideal organization to meet this challenge and to develop comprehensive strategies based on the multitude of existing initiatives and projects in this field. One such initiative, that Austria supported from the beginning, is the Dialogue among Civilizations. Just a few weeks ago, at the “Salzburg Dialogue among Civilizations” new paradigms of international relations were discussed. There was consensus, that additional efforts to counter intolerance and violence based on religion or belief were needed. Without any doubt, the Dialogue among Civilizations and other initiatives against intolerance are more relevant today than ever before. The Security Council emphasizes in paragraph 4 of Resolution 1373, the connection between international terrorism and transnational organized crime, illicit drugs and other illegal activities. In this context, we welcome the statements of numerous delegations, which referred to the Centre of International Crime Prevention in Vienna. Delegations will be aware that, only one week before the terrorist attacks of 11 September, the Commission on Crime Prevention and Criminal Justice adopted, by consensus, the Plans of Action for the implementation of the Vienna Declaration on Crime and Justice. In its Chapter VII, specific national and international measures against terrorism are recommended. Under the heading “International Actions” the Centre for International Crime Prevention is mandated to: – “Take steps to raise awareness of the relevant international instruments, encourage states to sign and ratify such instruments and, where feasible,

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provide assistance in implementing such instruments to states upon request; – Take measures to raise public awareness of the nature and scope of international terrorism and its relationship to crime, including organized crime, where appropriate in cooperation with Member States; – Continue to maintain existing databases on terrorism; – Offer analytical support to Member States by collecting and disseminating information on the relationship between terrorism and related criminal activities; – Draw up concrete proposals for consideration by Member states to strengthen its capacity to develop, within its mandate, and administer the terrorism prevention component of its activities, if further developments so require.” – With these Vienna Plans of Action, the Centre for International Crime Prevention and its Terrorism Prevention Branch have received a focused mandate, which can serve as a solid basis for enhancing the capabilities of the United Nations in the prevention of terrorism. The substantial changes in national legislation required by Security Council Resolution 1373 constitute a concrete example, where the Terrorism Prevention Branch could immediately provide assistance to states. To this end, its personnel and financial resources will have to be strengthened significantly. Taking into account the urgency of focused UN action, Austria will make a substantial contribution to help the Terrorism Prevention Branch in assisting states with the implementation of Conventions against terrorism. We hope that other countries will follow suit in providing financial and other support to the Centre of International Crime Prevention. – As a further initiative, Austria will host a workshop in the next year on how to strengthen the capacity of the United Nations in adopting a comprehensive approach in its fight against terrorism. 7. Finally, all states must support the efforts of the UN with additional measures on the national level. Austria will thereby be guided by the Conclusions of the European Council on 21 September 2001. Last week the Austrian Government has complemented this package of European counter-terrorism policies with a comprehensive Action Plan on combating terrorist networks, which includes provisions to enhance the cooperation between states and their law enforcement agencies, to share information and intelligence, to track down terrorists’ assets and to suppress financial support to terrorist groups. Mr. President, In concluding, let me stress once more that terrorism is an attack on humanity, our values, our freedom. The Vienna Human Rights Declaration and Programme of Action stipulate that acts, methods and practices of terrorism are activities aimed


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at the destruction of human rights, fundamental freedoms and democracy. It is our solemn duty to defend these cornerstones of our common humanity and to combat terrorism wherever it occurs. We owe this not only to the victims of terrorism, but to all of our citizens and future generations who deserve to live in a free, safe and peaceful world. Thank you.

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Book Reviews

Anthony Aust, Modern Treaty Law and Practice. Cambridge University Press, Cambridge, 2000, xxxix+443 pp., index, ISBN 0521591538, GBP 80.00 (hardback), ISBN 052159846X, GBP 30.00 (paperback) This is the only book published in recent years that encompasses the law of treaties in its entirety. It closely follows the 1969 Vienna Convention on the Law of Treaties, and has 23 chapters and very useful appendices. The author correctly says that “[t]he Vienna Convention on the Law of Treaties is now thirty years old, and is likely to remain unchanged for many decades yet. Like the United Nations Charter, the intelligence of its drafting has enabled states to adapt their practice without distorting or departing from the Convention. The Convention codified, and to some degree developed, the law as it had evolved through the practice of states. But practice has not stood still since 1969. The Convention’s rules provide a framework which is sufficiently flexible to accommodate important developments in state practice” (p. 3). The book deals very competently with many difficult and controversial issues, such as memoranda of understandings (MOUs). The author observes rightly that only by studying the specific terms of an instrument can one determine its status. MOUs have long been a subject of controversy. As Aust points out, some authors are of the view that because an instrument is called a Memorandum of Understanding it cannot be a treaty; whilst others seem to believe that an instrument designated Memorandum of Understanding must be considered a treaty since several of them have been registered with the Secretary General of the United Nations. He argues persuasively against Klabbers,1 who sees all MOUs as treaties, whatever the intention of the states. One of the very good features of the book is that the author illustrates each and every part with examples from practice. Throughout the book the author points out difficult or controversial issues. A very good example is the chapter on interpretation, an issue that is one of the most debated in theory and most important in practice. The author deals with the various issues in a very orderly fashion. First he presents the views of the International Law Commission and observes that it struggled to combine the two basic approaches, the one based on the text and the other based on the intentions of the parties. As Aust states, “[t]he International Law Commission took a middle course which avoided a doctrinaire approach. In what are two most elegantly drafted articles, it formulated what it regarded as the comparatively few general principles governing treaty interpretation” (p. 185).

1

J. Klabbers, The Concept of Treaty in International Law 62, 68 (1995).


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The author makes the important point that “[i]nterpretation involves an elucidation of the meaning the text, not a fresh investigation as to the supposed intention of the parties. Furthermore, the preparatory work of a treaty is by its nature less authentic that the other elements, being often incomplete and misleading” (p. 187), and he notes than “[a]lthough it is not for an international tribunal to revise a treaty by reading into it provisions which it does not contain by necessary implication, it is sometimes necessary to imply a term, and this has been the approach of the International Court of Justice and the European Court of Human Rights” (p. 201). It would not reflect the wealth of the material in the book if mention were not made of the chapter dealing with statetate succession with regard to treaties. The author analyses the provisions of the 1978 Vienna Convention on Succession of states in respect of Treaties and notes that although in the meanwhile it has entered into force it has attracted only few ratifications. He assesses the Convention in the following terms: “Although the Convention is largely an example of the progressive development of international law, rather than a codification of customary law, and is not therefore a reliable guide to the rules of customary law on treaty succession, its eventual entry into force, recent practice following the end of the Cold War, and decisions of the International Court of Justice, may have now breathed life into some of its provisions” (p. 306). Aust identifies certain principles concerning treaty succession: (1) a new state will not succeed automatically to a treaty if the subject matter is closely linked to the relations of the predecessor state with the other party (e.g. political treaties); (2) a new state will succeed, without any action by it, to treaties relating to matters such as the status of territory, boundaries or navigation of rivers, though the exact extent of the principle is not yet well established (p. 307); (3) when a state has been absorbed by another, almost all treaties entered into by the absorbed state will either simply lapse or their fate will need to be discussed with the other parties. Under the “moving boundary principle”, treaties of the absorbing state will generally extend to the absorbed state. But in case of a true union between two states, most treaties will continue to bind the successor state, at least as regards that part of its territory for which the treaties were in force before the union; (4) the question of succession to multilateral treaties is another complex issue. A new state will not normally succeed automatically to multilateral treaties. Some writers consider that treaties that embody or reflect generally accepted rules of the international law on human rights bind a successor state on the basis of the concept of the acquired rights of the inhabitants of the state. Aust considers that there seems to be no authority for this. The more accepted view is that in so far as a human rights treaty reflects rules of customary international law, those rules will naturally bind the successor state. But there will be some important practical consequences. The state will have no right to attend the meetings of state parties; nor will it have any obligation to report to a monitoring body established by the treaty; (5) transfer of part of the metropolitan territory of a state will not usually involve succession of treaties; (6) a new state will not succeed to constituent treaties of, and hence membership in, international organisations if the

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predecessor state still exists. But Aust adds that these general principles “do not take one very far” (p. 309). Yet another baffling issue of the law of treaties concerns, to be sure, reservations. As with succession to treaties, the problem of reservations requires a study of state practice. There are unresolved problems, in particular whether the regime established by Articles 20 and 21 applies to all reservations prohibited by Article 19. It is of course impossible in a mere book review to summarise all the issues raised in this book. It is very well written and firmly anchored in state practice. It deals with all the pertinent problems in a coherent and erudite fashion. The author, being one of the leading experts on the law of treaties in practice, has written an admirable book of great use to scholars, students and practitioners. Malgosia Fitzmaurice Queen Mary University of London

Antonio Cassese/Paola Gaeta/John R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court. A Commentary. Oxford University Press, Oxford, 2002, 3 volumes and materials, ISBN 0-19-829862-5, cxl+218 and xvi+184 pp., GBP 250.00 The International Criminal Court (ICC) created a new dimension of international law; with its adoption, the community of states opened a new chapter of the history of international law. However, the Statute was finally elaborated in such haste that the legislative history can hardly be established so that its interpretation raises quite a number of questions. The most recent example which already bothered the international community and generated tensions among states is the interpretation of Article 98 (2) of the Statute since the United states considered agreements on the “immunization” of their military forces against surrender to the ICC compatible with the Statute contrary to the opinion of a substantial number of international lawyers and states. For this reason it is important that a commentary is available which attempts to provide the first interpretation before any practice can have developed. Since such a commentary will influence the later practice, it cannot be excluded that the commentary in the long run becomes the practice to be taken into account in the process of interpretation. It is not very surprising that since the adoption of the Statute quite a number of books have been published describing in particular the process of elaboration of the Statute. However, they cannot replace a thorough commentary which scrutinizes and elucidates the meaning of the different provisions on the basis of well established legal technique and doctrine. This voluminous work consisting of three volumes the third of which contains the Statute, the Rules of Procedure and Evidence and the Elements of Crime, is now the second commentary on the Statute, the first being the Commentary edited by

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O. Triffterer.2 The present commentary edited by Antonio Cassese gathers a number of recognized international lawyers who deal with the Statute not in the way of an article by article commentary, but by addressing certain issues and problems and discussing them along the provisions of the Statute (such as jurisdiction ratione personae, trigger mechanism, possible conflicts of jurisdiction with truth and reconciliation commissions etc). Although such a problem-oriented procedure might be a little painstaking for somebody who looks for quick information on a certain provision (the index is very helpful in this regard), it has the advantage of dealing with all aspects of a given problem without being limited to only one article so that the different authors can treat these issues not only from contextthe perspective of the ICC Statute, but also in a broader, namely that of general international law and that of the ICTY and ICTR. The authors of the 51 different articles are to a great extent persons who were not involved in the main stage of the elaboration of the Statute; apart from obvious disadvantages, this fact has again the advantage that their look at the Statute is not darkened by the personal experience in Rome so that they are in a better position to heed the requirement of an objective interpretation according to article 31 of the Vienna Convention on the Law of Treaties. The main parts of the work deal with the path to Rome and beyond (section 1), the structure of the ICC (section 2), its jurisdiction (section 3), general principles of international criminal law (section 4), the Statute and general international law (section 5), international criminal proceedings (section 6), international cooperation and judicial assistance (section 7), enforcement (section 8), application and impact of the Rome Statute (section 9), and a final analysis and suggestions (section 10). Almost each of the individual articles is concluded by comments and suggestions. As to the criticisms voiced within these comments, one must acknowledge the rapidity in which the Statute was drawn up so that some of the shortcomings of the text criticised by the authors resulted rather from this fact than from incapacity of the delegates. Likewise, certain shortcomings such as the jurisdiction ratione personae (cf. page 540) are the result of a political compromise; the request for a genuinely universal jurisdiction would have endangered the coming into existence of the ICC itself. When criticizing this issue, one must bear in mind that the Rome conference had the only choice either to accept the limited jurisdiction or to have no permanent criminal court at all. In order to keep the present commentary still manageable, the articles are relatively short although several issues would have deserved a more in-depth treatment. But only this approach can permit a complete discussion of the ICC. A discussion of the full amount of articles and views expressed in this work undoubtedly would go beyond the sope of a review, nevertheless individual articles which have attracted the reviewer’s attention should be commented upon in the following.

2

See book notes, infra p. 434.

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In the part on the elaboration of the Statute, it would have been worthwhile to shed some light on the composition of the delegations which were mostly split in two parts: one coming from the Foreign Ministries and dealing with so-called political issues (e.g. complementarity jurisdiction), whereas the other part of the delegations dealt with more judicial issues. It cannot be excluded that some provisions of the Statute would have been different if they had been negotiated by the other part of the delegations respectively. The presentation of the legal status of the ICC (F. Martines) reveals an uncommon approach to the question of legal personality. Although the text leaves no doubt as to the legal personality of the ICC under international law and internal law, the author, nevertheless, casts doubt on this status insofar as, in his view, Article 4 does not create the personality but only obliges the states to enable the ICC to carry out its functions (p. 217). Indeed, although any such provision is only of declaratory nature with regard to the powers of the institution, the meaning presented by the author can hardly be derived from the wording of this provision. As to the relationship agreement with the UN (L. Condorelli, S. Villalpando), an issue which could raise problems in the future has not been addressed, namely that of the duty of officials of the UN to testify before the Court. The argument was made that such officials should enjoy immunity before the ICC, although in international law immunity is a protection against a municipial, but not against an international court. One cannot exclude that this issue will be of certain importance where situations are before the Court, in which UN officials are involved. It is not surprising that Robinson regrets that certain crimes were omitted from the jurisdiction of the ICC; however, it is surprising that he includes among those crimes not only drug crimes and terrorism which had already figured on the list of possible crimes, but also mercenarism and wilful damage to the environment. It is questionable whether the latter should have indeed been included into the scope of jurisdiction of the ICC since it had already been a very weak candidate for the list of crimes under Article 19 of the first reading of the draft articles on state responsibility. The lack of travaux préparatoires concerning the Rome phase of the elaboration of the Statute makes it sometimes difficult for outsiders to assess the intention of the drafters; For instance, when it is regretted that the ordinary crime exception was not included in the Statute (p. 725). The real issue is that some states consider the Geneva Conventions as not directly applicable so that the national courts cannot base their judgments on these Conventions. In such a situation, the principle of double jeopardy must refer also to judgments relating to ordinary crimes. Similarly, the issue of amnesties was discussed at the conference; however, it was already too late to include a relevant provision in the Statute and it was deemed that general international law would provide the appropriate solution. By the same token, military necessity was discussed as a possible ground of justification (cf. p. 773), but as such it was deliberately not included in the Statute either. It is also quite interesting to note that according to Ambos the provision on superior responsibility is flawed as its wording, if taken literally, would lead to a logically impossible result (p. 871). As to the interpretation given by Gaeta to Article 98(1), this reviewer shares the result offered

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on p. 994 insofar as only states being non-parties to the Statute can be meant by this provision. Nevertheless, it seems rather questionable to consider immunity as a shield not only against national jurisdiction, but also international jurisdiction. In this respect, a clear distinction has to be made between Articles 27 and 98, the first addressing judicial activities of an international body, the latter concerning those of a national organ. It is only to be regretted that Article 98(2) – despite the indication in the index – is not discussed. Regarding the interpretation of Article 21 on the applicable law, one cannot but concur with Pellet that its text suffers from the great rush in which it was drawn up. This provision will still cause headache to judges when they try to figure out its real meaning. The elaborated discussion of the choice the Conference had to make between an accusatorial and an inquisitorial approach by Orie is correct when it pointing to the different traditions from common and civil law countries. The author regrets the absence of a clear decision for the one or the other system; however, such a one-sided decision was beyond any reach; the Conference had to strike a realistic balance between both systems, even at the cost of a clear and unequivocal result. One can regret the somewhat fuzzy and unclear nature of the procedure, but the creation of the ICC could be achieved only under such circumstances. Finally, the board of editors attempt a general assessment: In their view, the states should examine whether in some circumstances the ICC would not be better equipped than national courts for trying certain cases; the independence of the Court will be influenced by the Assembly of the states Parties; the procedures of the Court suffer from certain lacunae for ensuring a fair trial and the effectiveness of the Court will depend on the willingness of the states Parties to cooperate appropriately with the Court. In sum, this commentary is a complete work on a very new field of international law, namely international criminal law. Not only will each and every reader benefit from it, it will also form a basis of the work of the ICC and substantially contribute to the interpretation of the Statute of the ICC. Gerhard Hafner University of Vienna

Michael Faure/Helmut Koziol (eds.), Cases on Medical Malpractice in a Comparative Perspective. Springer, Vienna/New York, 2001, ISBN 3-21183595-4 xix+331 pp., EUR 85.40 W. V. Horton Rogers (ed.), Damages for Non-Pecuniary Loss in a Comparative Perspective. Springer, Vienna/New York, 2001, ISBN 3-211-83602-0, xix+318 pp., EUR 49.00 The European Centre of Tort and Insurance Law (ECTIL, http://www.ectil.org/) was founded in February 1999 as a research institute for legal and comparative legal

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studies in the field of national, international and common European tort and insurance law. It is an independent incorporated association having its seat in Vienna, and it conducts research on the foundations of tort law in various European legal systems, on the similarities and differences in national tort law systems as well as the unification of European tort law. In addition research focuses on the fundamental questions relating to the function of tort law, insurance and social security and, in particular, the relationship between those instruments. Among other publications, the ECTIL is the general editor of the Tort and Insurance Law Series published by Springer. As the ECTIL is an institute primarily for comparative law questions it is evident that the main methodology of its research and its publications are case studies and country reports. This holds also true for the first two publications of the Tort and Insurance Law Series. The first of them presents an analysis of how the courts of European countries have responded to the issue of medical malpractice which has become of increasing importance in the last years. After a short introduction (part I) by the editors, Franz Michael Petry presents six case studies from Germany. The starting point for the project was “the concern about the expansion of medical malpractice in Germany” since it is Germany “where medical malpractice in Europe has probably been most developed” (p. 2). Each case study consists of the factual background, the allegations of the litigating parties, the statements of the experts appointed by the court, the operative provisions of the judgment, the reasons for the court decision as well as the quantum of the damages awarded. The author continues with a very detailed presentation of medical practitioners’ liability in German law. Part III contains country reports which, while differing with regard to their structure, are all based on the six cases studies in part II. The countries chosen and the authors of the reports are Austria (Bernhard A. Koch & Helmut Koziol), Belgium (Herman Cousy & Miek de Graeve), France (Suzanne Galand-Carval), Germany (Gottfried Schiemann), the Netherlands (Carel Stolker & Shirin Slabbers), Portugal (Jorge Sinde Monteiro & Maria Manuel Veloso), Sweden (Christian Dahlman & Lotta Wendel), Switzerland (Heinz Hausheer), and England (Horton Rogers). Michael Faure has assumed the task of drawing conclusions from these country reports by way of comparative analysis (part IV). He states that the comparative conclusions and the outcomes of the cases showed that there are still considerable differences between the various legal systems (p. 306). Nevertheless, neither the mere transboundary character of externality – prompted e.g. by patients “escaping” from their country to another country where they can get health care faster and better – nor economic reasons – e.g. differences in marketing conditions – may be advanced to justify the harmonization of medial malpractice on a European level (pp. 307-308). For, after all, these differences are but a manifestation of the different legal systems as well as a reflection of the diverse preferences and peculiarities in the various European countries. Neither does harmonization of medical malpractice, as distin-guished from the problems of tort law involved, appear to be practicable (p. 309). The author, however, calls for an examination as to whether “common principles may be found which constitute the ‘roots’ of a European tort law” (ibid.). The book concludes with a contribution by Helmut Koziol on the “Deficiency of Regulation and Approach to

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Solutions: Conclusions from the Comparative Research” (part V). After having detected the various deficiencies (deficiency of regulation, deficiencies inherent in the system, deficiencies by comparative law, deficiency by legal policy), the author for various reasons expresses his doubts about “fundamental changes to the system of compensation in the health care sector” (pp. 317-322). Given the increasing importance of medical malpractice and the growing case law on this matter, this book is an extremely useful contribution to this highly topical issue. The second book of the series deals with the question of damages for non-pecuniary losses in various European countries. Damages for non-pecuniary loss are still a disputed area, in national as well as international law. It comes as no surprise that given the considerable differences in the various national legal systems, there is no consistent practice in (public) international law as regards damages for non-material loss.3 Therefore, a comparative analysis of this question is highly desirable. The main part of the book consists of country reports in response to a questionnaire with detailed questions on the topic. The following countries are covered by the reports: Austria (Ernst Karner & Helmut Koziol), Belgium (Herman Cousy & Dimitri Droshout), England (Horton Rogers), France (Suzanne Galand Carval), Germany (Ulrich Magnus & Jörg Fedtke), Greece (Konstantinos Kerameus), Italy (Francesco D. Busnelli & Giovanni Comandé), the Netherlands (Mark Wissink & Willem van Boom), Poland (Miroslaw Nesterowicz & Ewa Baginska) and Spain (Miquel Martin-Casals, Jordi Ribot & Joseph Solé). In addition, the appendix contains an Israeli country report (prepared by Israel Gilead), and information supplied by other countries, i.e. Portugal (Jorge Sinde Monteiro & Maria Manuel Veloso), Sweden (Bill Dufwa), South Africa (Johann Neethling), and the United States of America (Gary Schwartz), information which was also taken account of by the concluding “Comparative Report of a Project Carried out by the European Centre of Tort and Insurance Law”, written by the editor of the book, W. V. H. Rogers. After having provided a definition of non-pecuniary or non-patrimonial loss (i.e., “loss which is not damage to a person’s assets or wealth or income and which is therefore incapable of being quantified in any objective financial manner by reference to a market”, p. 246), he notes that due to considerable variations in the range of situations in which recovery of damages for non-pecuniary loss and in the sums awarded in similar cases, a general principle can hardly be discerned on the European level. He then turns to an in-depth analysis of the country reports. On the question as to whether damages for non-pecuniary losses are really necessary, particularly due to the often arbitrary sums awarded, he clearly argues against their abolition since they fulfil the important function of “recognizing and providing some form of solace for the very real hurt that is suffered by the victim of an accident and in affirming human dignity” (p. 250). Even if non-pecuniary loss is, by its very nature, not measurable in monetary terms, this is no compelling reason to preclude an award of damages. As the umpire in the Lusitania cases – the cause célèbre for non-pecuniary damage in international law – stated, “[t]he legal concept of damages is judicially 3

See S. Wittich, Non-Material Damage and its Reparation in International Law (forthcoming).

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ascertained compensation for wrong”,4 irrespective of whether this wrong has caused economic damage. He addresses a multitude of other questions raised in the country reports, such as strict liability, the theoretical bases of such damages, in particular the availability of exemplary or punitive damages, the relevance of the conduct of the defendant and the claimant, the problem of the comatose victim, the heritability of non-pecuniary loss damages, mental suffering as non-pecuniary loss and many more. In sum, this book is a very valuable guide through the complexities of damages for non-pecuniary loss, covering a number of European jurisdictions in a comparative perspective. Stephan Wittich University of Vienna

Thomas M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks. Cambridge University Press, Cambridge, 2002, ISBN 0521820138, xviii+205 pp., GBP 40.00/USD 55.00 This book is based on a Hersch Lauterpacht Memorial Lecture given by the author at Cambridge University in late 2000. Professor Franck deals with a particularly controversial and fundamental issue of contemporary international law which is also been of considerable political relevance throughout the times. Because of the lack of agreement among the great powers with a permanent seat on the Security Council as required by the Charter, the UN system of collective security has failed to offer the members of the world organisation adequate protection. To make matters worse, threats not foreseen in 1945 have emerged, from weapons of mass destruction to international terrorism. Therefore states have time and again resorted to armed force beyond the only other exception to the prohibition of the threat or use of force in Article 2(4) of the UN Charter, the right of individual and collective self-defence as narrowly defined in Article 51. This practice and the reasons advanced to justify it raise the thorny question of how to assess these deviations from the text of the Charter. Do they amount to new customary law derogating from the relevant Charter provisions? Given the lack of sufficiently widespread opinio iuris, one has to agree with Thomas Franck and reject such a far-reaching conclusion. He also does not subscribe to the concept of a “dynamic” interpretation which would make the conduct under consideration lawful without changing the law of the Charter. Instead, the conduct of states which is not in accordance with the Charter has remained unlawful in principle according to Franck. However, he argues that the political organs of the UN, the Security Council and the General Assembly, have acted as a “quasi-jury”, trying to strike a balance between peace understood as the

4

Opinion in the Lusitania cases, 1 November 1923, Reports of International Arbitral Awards, volume VII, 32, 36.

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absence of armed force and justice. On the basis of their response to the use of force by individual or several states, Franck demonstrates that the reaction of these organs has varied considerably on the merits of each case. It has ranged from outright condemnation, notably of the invasion of Hungary by Soviet forces in 1956 and of Grenada and Panama by US troops in 1983 and 1989, respectively, to the subsequent approval of and UN participation in military action by ECOWAS in the civil wars in Liberia and Sierra Leone since 1989. Thomas Franck concludes that the “quasi-jury” of the UN has successfully tried to solve a fundamental problem of every legal order which is particularly acute at the international level: the discrepancy between legality and legitimacy, between black letter law and widely shared perceptions of morality, justice and fairness. This gap is bridged by recourse to the principle of mitigation, by allowing for extenuating circumstances in a concrete situation where the implementation of the letter of the law would lead to morally unacceptable consequences, without, however, abrogating the norm as such. Professor Franck’s diagnosis applies not only to the controversy over anticipatory self-defence prohibited by the wording of Article 51 of the UN Charter but also to “humanitarian intervention” which has become one of the central legal issues in the wake of NATO’s “Operation Allied Force” against Yugoslavia which was launched in order to stop the “ethnic cleansing” of the Albanian majority in Kosovo in 1999. Resort to force against a state in order to prevent it from committing atrocities against its own nationals gives rise to the dilemma between two key principles of modern international law: the prohibition of the threat or use of force, more relevant than ever in the age of weapons of mass destruction, and respect for human rights, which, although not enjoying the same priority in the UN Charter, has become another cornerstone of the international legal order since 1945. Among the solutions available to solve a problem for which there is no totally satisfactory panacea, the concept proposed by Professor Franck has several advantages: it avoids a simplistic either-or position, is grounded in legal theory and based on a thorough analysis of actual UN practice. This book therefore makes excellent reading both due to its theoretical sophistication and as a fascinating, if at times depressing, summary of an important part of recent world history and international law. Hanspeter Neuhold University of Vienna

Peter Hilpold, Modernes Minderheitenrecht. Eine rechtsvergleichende Untersuchung des Minderheitenrechtes in Österreich und Italien unter besonderer Berücksichtigung völkerrechtlicher Aspekte. Manz Verlag, Vienna, 2001, xii+448 pp., ISBN 3-214-00069-1, EUR 72.00 This book is the successful result of a very ambitious and time-consuming undertaking, namely the analysis of the instruments of minority protection in Central Europe

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as a means to resolve ethnic conflicts in a durable way. The author has singled out two states confronted with minority problems by giving priority to the parallels and interactions between the protection of ethnic minorities in Italy and Austria. After all, these two EU Member states have contributed decisively in elaborating today’s European legal standards of minority rights. In the first part, Peter Hilpold addresses the historical foundations of the rights of minorities in both Austria and Italy. Although these countries differ somewhat from one another, they have always been strongly influenced by the reciprocal interactions between the two neighboring states. Whereas Austria can ascribe her tradition in regard to minority rights to the time of the Habsburg monarchy in the 19th century, Italy, which had been conceived as a centralised unitarian state in the course of the risorgimento, refused the idea of a general protection of minorities up to the end of the 20th century. However, today’s Italy can refer to the very successful model of South Tyrol’s autonomy, which has drawn widespread approval. The shorter second part of this volume focuses on the actual political situation of Italy’s and Austria’s ethnic minorities. In this context, it becomes clear that the legal protection of minorities has led to different results in practice. Whereas, the members of the two biggest minority groups in Austria, the Slovenes and the Croatians, have been decreasing in number for decades, South Tyrol’s German and Ladin speaking minorites, which have been severely persecuted under the rule of Italian fascism, have kept constant their numerical strength. The third and final part meticulously describes the different regulations on the protection of minorities in Austria and Italy as well as their foundation in international law. Hilpold also draws a legal comparison between the existing regimes, yet he avoids pointing out any certain regulation on minority rights as particularly effective in practice. Most interesting to the present reviewers was the examination of the incorporation of minority rights in international law. In the legal systems of both states, international legal provisions have had a strong impact on the internal regulations on minority rights. Both in Austria and in Italy minority rights can be seen as an immediate result of pressure from abroad expressed through international legal obligations. With regard to South Tyrol, the Paris Treaty of 1946, an integrative part of Italy’s peace treaty that turned the problem of South Tyrol from an “internal” Italian affair to an international issue, has proved to be a long-lasting legal basis for the protection of the minorities in the area. In Austria, the Peace Treaty of St. Germain of 1919, and the Vienna State Treaty of 1955, laid the international legal foundation for the system of minority rights. The Austrian Ethnic Groups Act („Volksgruppengesetz“) of 1976, the Austrian “Magna Charta of minority rights”, would have been inconceivable without these prior international treaties. In this context, Hilpold strongly argues against the introduction of “collective minority rights” in the respective international instruments on minority protection. According to the author, such attempts have failed to date. Furthermore, he warns against considering the “collective” of the ethnic minority as the directly protected unit. This could be dangerous, because granting “collective

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rights” would not protect the individual legal position itself, but rather the position of this “imagined collective unit” or, alternatively, those individuals who are taking advantage of this artificial construction. Here, the author points out that such collective rights can hardly be proven in the minority provisions of either of the two states. In the third part of the book, the author provides a far-reaching study on the subjects of official language, ethnic minority schools and on bilingual sign posting regulations. These topics are still a matter of dispute in Austria and Italy. Most interestingly, Hilpold equally provides his reader with a general formula and a yardstick to assess the feasibility and justification of a certain measure of minority rights protection. His approach is based on the individual, it is measured against the principle of material (not formal) equality and is furthermore to be assessed with respect to the concrete need of a member of the minority . In short, this volume is a rich and thought-provoking book that reflects a crucial tension in Central Europe’s current discussion on minority rights. On the one hand, a completely changed social environment demands new justifications for the existing provisions that have once been adopted for almost socially conservative, agrarian societies. On the other hand, the author makes clear that the legal foundation of individual rights and of constitutional rights of minorities is not only in the interest of the minority groups, but of the entire society. David Rezac & Christina Binder University of Vienna

Masahiro Igarashi, Associated Statehood in International Law. Kluwer Law International, The Hague/Boston/London, 2002, ISBN 9041117105, xx+329 pp., index, EUR 100.00/USD 92.00/GBP 63.00 On its face, the topic of the study – “Associated Statehood in International Law” – appears to be rather specific and mostly of interest to scholars as well as practitioners directly working on and with associated states. However, while the concept of “associated statehood” has its roots and origin in the past (the decolonization era), it raises some broader questions by touching upon the “fundamentals” of public international law, such as the definition of and requirements for statehood. In this regard, the concept is closely tied to issues of self-determination, in particular the relationship between its “internal” and “external” dimensions. It incorporates an awkward compromise between independent statehood and dependency forged by the will of the people concerned and thereby offers one of the forms by which “a people” may exercise their right to self-determination. The study is structured in 10 Chapters: after a brief introduction (Chapter I, pp. 16), Chapter II describes the “Evolution of the Concept of the Associated state Under the United Nations Charter” (pp. 7-67), Chapters III and IV examine two important precedents, namely the Cook Islands (pp. 68-112) and the West Indies (pp. 113-146), Chapter V analyses the “Subsequent Developments in Law and Practice” (pp. 147-

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168), and Chapter VI addresses the Micronesian Associated States (pp. 169-226); the subsequent three chapters purport to formulate the current theory around associated statehood by discussing the “Procedural Elements of Associated States” (pp. 227237), the “Substantial Elements of Associated States” (pp. 238-257) and the issue of “Associated States and External Affairs” (pp. 258-287); the remaining chapter briefly summarizes the conclusions on the basis of the previous findings (pp. 298-301). In discussing the evolution of the concept of associated statehood, Igarashi commences by examining the drafting process of Article 73(b) of the UN Charter which, as part of the Declaration regarding Non-Self-Governing Territories (Chapter XI), omits any reference to the promotion of independence in addition to self-government for the benefit of the “Non-Self-Governing Territories” and thereby, as the author argues, has substantially “paved the way for the creation of associated states” (pp. 78). According to his diligently researched account, no agreement could initially be reached on a definition of “Non-Self-Governing Territory” in connection with the obligations concerning the transmission of information under Article 73(e) of the Charter (p. 11). The term “associated state” was first applied to the associated states of Indo-China by France in substantiating its decision not to transmit information regarding theses states after 1947 since they had been granted freedom to selfgovernment (p. 13). The United Kingdom’s refusal to transmit information on Malta arguing that it had become self-governing ignited the question whether an administering Power could cease the transmission of information concerning a territory, which was responsible for its economic, social and educational policies (pp. 14-15). Similarly, the conduct of France with regard to the establishment of the French Union in 1946 which distinguished between “metropolitan France” and the “Associated Territories and States”, the latter including Indo-China (Vietnam, Cambodia and Laos) (pp. 17-25). In this regard, he notes that “France granted each state nominal ‘internal sovereignty’, but retained ‘effective control over foreign relations, military, judicial, administrative, and economic activities’” (p. 24). Accordingly, Igarashi argues that, “in the case of Vietnam, in particular, it is evident that it was little more than a ‘Puppet State’ [and] that this Associated Statehood arrangement was devised to conceal neo-colonialism” (p. 24). After having examined the initial practice of states, he turns to the development of the concept of associated states through General Assembly Resolutions (pp. 25-62) and its application to the cases of the Netherlands Antilles and Surinam (pp. 34-44), as well as the United States and Puerto Rico (pp. 44-62). Essentially, the contentious issue was the drafting of a list of factors to be considered in determining whether the inhabitants of a special territory had or had not yet attained a full measure of self-government and thus, whether the obligations under Chapter XI of the UN Charter applied. Starting with the establishment of a Special Committee through General Assembly Resolution 334 (IV), he describes the drafting history and contents of a series of Resolutions which provided for a basic model for the definition of self-government (GA-Res. 567 (VI), 648 (VII) and 742 (VIII)). As pointed out by Igarashi, in Resolution 648 (VII) the General Assembly recognized, for the first time, that each case should be individually considered and a decision made concerning the peoples’ right to self-determination (p. 29). With regard

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to the Netherlands Antilles and Surinam, several states voiced their doubts concerning the question whether the complete equality between the associated parties existed as a requirement for the attainment of the full measure of self-government provided for under Chapter XI of the UN Charter and the list of factors drawn up by the General Assembly Resolutions, in particular Resolution 742 (VIII). It was demanded that the status acquired by the countries in question conformed as nearly as possible to the idea of independence and self-determination not only in form but also in content (p. 42). Although the General Assembly expressed its opinion that the cessation of the transmission of information under Article 73(e) of the Charter would be appropriate, Igarashi enumerates procedural and substantive flaws in applying the list of factors defined in Resolution 742 (VIII) (p. 43-44). Similar concerns apply to Puerto Rico, which despite the General Assembly’s approval of the request by the United States for the cessation of transmission of information in 1953 on the basis that the people of the Commonwealth of Puerto Rico by expressing their will in a free and democratic way had attained a new constitutional status and that they had effectively exercised their right to self-determination when choosing their constitutional and international status (p. 60), is “neither a ‘colony by consent’, nor has it attained a full measure of self-government” (p. 53, references omitted). In concluding Chapter II, Igashari briefly evaluates the cases of the Antilles and Surinam as well as Puerto Rico with the reinforcement of the concept of decolonization within the General Assembly since 1960 and notes “that the cessation of the transmission of information in these cases would not have been approved by the General Assembly in the anti-colonial atmosphere that has existed in the United Nations since then” (p. 62). In this regard, he describes the right of self-determination and associated states as envisaged by the historic General Assembly Resolutions 1514 (XV) and 1541 (XV) (pp. 62-67). Chapter II (pp. 67-112) provides a detailed account of the evolution of the Cook Islands as an associated state. The author puts considerable emphasis on the historical developments leading to the Cook Islands becoming the precedent to give concrete meaning to the concept of associated statehood. In that regard he notes that “it is possible for a legal concept to precede actual practice, even if the concept is vague and ambitious”. Furthermore, according to Igashari, “the concept of ‘free association’ encouraged the Cook Islands to take on the status of an associated state in 1965. In this sense, Resolution 1541 (XV) is epoch-making. In turn, the Cook Islands gave substance to the concept for the first time” (p. 68). The West Indies Associated States, the evolution of which Igashari describes in Chapter III (pp. 113-146), provided another test-case for the concept of associated statehood aiming at the fullest measure of self-government and autonomy while taking into account the necessity to retain close association with the former colonial state in order to maintain sustainability as developed by Resolutions 1514 (XV) and 1541 (XV). However, as emphasized by the author, “although the six island territories in the eastern Caribbean were arranged as associated states by an enactment of the British Parliament, the United Nations did not recognize such arrangements as having achieved a full measure of self-government” (p. 115). As diligently described by Igashari, the process by which the West Indies attained status as associated states displays the key controversies that have

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arisen in the context of decolonization and the discussion revolving around the peoples’ right to (external) self-determination: the extent to which a full measure of self-government and autonomy is attained through the arrangement for associated statehood, the extent to which this arrangement is entered into on a voluntary basis as well as it remains subject to modifications if so desired by the people at a later stage (in other words, the extent to which independence may still be declared under the terms of the arrangement), and the extent to which the arrangement truly reflects the will of the people (pp. 140-147). With regard to the West Indies, he concludes that “the United Nations did not recognize that the West Indies Associated States had achieved a ‘full measure of self-government’ [and that] it is clear that a majority of delegates doubted the procedure by which the six Territories had become associated states. No referenda had been held, no general elections had taken place, and no alternatives had been put before the people” (p. 146). Having outlined the initial practice with regard to the emergence of associated states, Igarashi proceeds to assess “Subsequent Developments in Law and Practice” (pp. 147-168). In this regard, he notes that in the evolution of the concept of associated statehood, the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among states “might be considered the final step in normalizing the procedure in the creation of associated states” (p. 147). The author points to the discussions concerning the mode through which self-determination could be achieved, which took place in the course of the drafting of the declaration (p. 148). The “tripartite formula” that ultimately found its way into the declaration envisages that the full exercise of the principle of self-determination does not only consist in the establishment of a sovereign and independent state, but also in the free association or integration with an independent state or any other political status freely determined by the people (p. 148). Accordingly, Igashari emphasizes that “the Declaration on Friendly Relations reaffirmed the Associated Statehood as a ‘mode of implementation of self-determination’” (p. 149). However, he also cautions that “in the formation process of the Declaration, there had been no concrete analysis as to what ‘free association’ or ‘any other political status’ was” (p. 149). After a brief exploration to the discussions within the International Law Commission concerning associated statehood in connection with the drafting of the Vienna Convention on Succession of states in respect of Treaties (pp. 150-52), Igashari turns to short analysis of the Advisory Opinion rendered by the International Court of Justice in 1975 with regard to the Western Sahara (pp. 152-154). According to Igashari, “it seems that the International Court of Justice affirmed the possibilities other than independence as modes exercising the right to self-determination. It should also be noted that the Court regarded the ‘freely expressed will of the peoples concerned’ as the prerequisite to the right to self-determination, in any case” (p. 154). He concludes Chapter V by discussing the case of Niue as an associated state (pp. 154-168), which in parallel to the Cook Islands exercised its right to self-determination by attaining some form of self-government, while retaining close links (economic support and citizenship) with New Zealand (p. 155).

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The last case study of Igashari’s comprehensive discussion of associated statehood describes the most recent evolution of the Micronesian associated states (Chapter VI, pp. 169-226). A former Trust Territory of the Pacific Islands, Micronesia was divided into four entities in 2000, namely the Federated states of Micronesia, the Republic of Marshall Island, the Republic of Palau and the Commonwealth of the Northern Mariana Islands (p. 169). As diligently described by the author, Micronesia has throughout its recent history been the host for various powers in view of its strategic importance: first under Spanish occupation, then under Japanese rule and finally it became subject to a Strategic Trusteeship Agreement under the United Nations Charter according to which it was to be placed under the administration of the United States. According to Igashari, the United States was from the beginning reluctant to grant Micronesia an independent status, particularly in view of the strategic interests in conducting experiments relating to nuclear fission (p. 177). Deliberations within Micronesia on its political future in reference to its right to selfdetermination were sparked by the creation of the Future Political Status Commission, which recommended in view of Micronesia’s economic and political situation that the Trust Territory was to become a self-governing state in free association with the United States and that independence was to be considered only as a second alternative if self-government in free association with the United States should not be possible (pp. 186-189). Subsequent negotiations were largely complicated by the reluctance of the United States to allow for a full measure of self-government in view of its strategic (military) interests in the region on the one hand, and Micronesia’s internal indecisiveness as to whether to pursue independence or associated statehood, as well as the decision of the Northern Marina Islands to initiate separate negotiations as to their future status on the other (pp. 194-199). Finally, resolutions were reached on the basis of the “Hilo Principles” concerning the Marshall Islands, Micronesia and Palau (pp. 199-212). In October 1986 and September 1994 the Agreements for the Republic of the Marshall Islands and the Federated States of Micronesia and Palau as associated states came into effect (p. 211). The Northern Mariana Islands, on the other hand, established a Commonwealth of the Northern Marina Islands in political Union with the United States in 1975 (pp. 212-215). Since the status of the Marianas, as emphasized by Igashari, falls short of a full measure of self-government, “it should be possible for the peoples of the Marianas to attain other political status in the future by exercising the right to self-determination” (p. 215). However, as the author elaborates when summarizing the Micronesian Problems in the United Nations (pp. 215-226), the termination of the Trusteeship Agreement in the view of some states superceded the exercise of the right to self-determination through the conducted plebiscites (pp. 220-226). In Chapters VII and VIII, the author purports to provide an overview of the dogmatic framework applicable to associated states based upon the case studies. At first, he addresses the “Procedural Elements of Associated States” (Chapter VII, pp. 227-237), particularly focusing on the issue when as to the right to self-determination is exercised and consumed. In this regard, he notes that although the threshold under GA Resolution 1541 (XV) for achieving free association is less rigid than in the case

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of integration, “in practice, the United Nations applied criteria as rigid as those set out in Principle IX [of GA Resolution 1541]. This can be seen in the case of the Cook Islands, the West Indies Associated States, Niue and the Trust Territory of the Pacific islands” (p. 227). He argues that “the need to apply rigid criteria arises over the difficulty of measuring and interpreting ‘voluntary choice’. The problem is twofold: how the wishes of the peoples concerned are expressed through informed and democratic processes; and how such wishes are ascertained” (p. 227). Switching to issues related to the “Ascertainment of Associated Statehood by the United Nations” (pp. 233-237), he notes that “[a]part from the doctrinal controversies that arise where a metropolitan country recognizes the statehood of its former dependent territory, questions apropros recognition are seldom, with the significant exception of so-called puppet states and Bantustan policy” (p. 233). This statement is quite surprising in two respects: firstly, doctrinal controversies are likely to arise where a metropolitan state does not recognize the statehood of its former territory rather than where the metropolitan country affords recognition and thereby withdraws from challenging the emergence of the new state; secondly, the statement that “questions apropros recognition are seldom” seems too general and the author should have given more consideration to the nuances of the instrument of recognition and its interdependence with the requirements of statehood under international law, particularly in view of the rather controversial issue whether micro-states satisfy the criteria for statehood. Contrary to what Igashari seems to suggest, the question is not only whether “the status of an Associated state is dependent upon its recognition by the metropolitan country” (p. 234), but also (and maybe primarily) whether the quality of, and thus the requirements for, “statehood” are in any respect different for associated states. After all, the independence of associated states in political as well as economical respects may be compromised in view of their ”association” with the former metropolitan state. These aspects would have certainly merited closer scrutiny. Moreover, Igashari’s account of issues relating to the instrument of recognition applicable to associated states remains rather superficial. Quite tellingly, he raises the question of “the legal effects of the General Assembly Resolution when it recognizes a territory as having attained a full measure of selfgovernment” (p. 234). While one would assume that recognition of statehood is, in principle, not to be equated with the acknowledgment by the General Assembly that certain conditions spelled out in a General Assembly Resolution and/or the Charter of the United Nations, such as the requirement of “a full measure of self-government”, are fulfilled, Igashari’s elaborations on these issues are prone to leave the reader rather unsatisfied. To some extent, the reader may not be able to escape the impression that the author should have been more mindful in using (as well as distinguishing) the terms “United Nations recognition”, “implied recognition” and “recognition” (p. 234). At the same time, a discussion about the value of “recognition” remains rather academic unless it is linked to the requirements of statehood, which ultimately leads to the questions to be addressed in the first place, namely whether or not the concept of “statehood” applied at all to associated states (one may only consider issues pertaining to independent governance in relation to self-government, economic and political independence, permanence, etc.). In other words, the application of the legal value

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and impact of recognition (or the absence thereof) may only be justified in relation to the issue of whether an entity has achieved the requirements for statehood under international law, while the question as to which extent the instrument of recognition applies to achieving the status as an associated state would certainly deserve closer scrutiny. Igashari somewhat neglects these dog-matic issues and simply states that “in the final analysis, even if the status of an Associated state has been ascertained by the United Nations, the substance of that status still depends on the will of both, the associated state and existing states” (p. 237). In the penultimate two chapters of the study, the author continues his rather descriptive approach in providing an overview of the “Substantial Elements of Associated states” (pp. 238-257) and “Associated States and External Affairs” (pp. 258297). While he frequently touches upon challenging questions of international law inherent in the construct of associated statehood in relation to the dogmatic distinction between states and non-states or the consumption of self-determination, he does not pursue them substantially (or systematically) but rather emphasizes on a comprehensive empirical account of contemporary practice. Perhaps, Igashari’s elaborations on the practice of associated states in relation to the law of treaties and the admission to the UN (within the chapter concerning “Associated States and External Affairs”) are a noteworthy exception to his largely descriptive elaborations. Addressing the question to which extent associated states are able to enter into treaty relations he observes that “the most important development regarding the accession to treaties of associated states is the increase in number of multilateral treaties that they have ratified or acceded to since the early 1990s, especially in the fields of disarmament, the environment, and human rights. Although state practice so far has been inconsistent, this increase clearly reflects the will of associated states to participate more fully at an international level, as well as the will of existing states to give positive recognition to associated states” (p. 274). Turning to the admission of associated states to the UN, he notes that “the most important development for the status of associated states was the admission of the Federated states of Micronesia and the Marshall Islands to membership of the United Nations on 17 September 1991. Although in accordance with Article 3 in the United Nations Charter, the original members of the United Nations are designated as ‘states’, and Article 4(1) provides that ‘Membership in the United Nations is open to all other peace-loving states’, the term ‘state’ is not used in a narrow legal sense” (p. 291). Having proposed that the term ‘state’ enshrined in the UN Charter is not to be used in a narrow legal sense, the author argues that every member of the UN is regarded as a sovereign state and “therefore, it is fair to say that the Micronesian Associated States, by becoming Members of the United Nations, have themselves become ‘states’” (p. 294). One page later, in addressing the (legal) capacity of associated states to enter into diplomatic relations, Igashari then falls back to the position that associated states do not enjoy statehood by stating that “[i]t would seem that whether or not an entity other than a state, such as an Associated state, can engage in diplomatic activity depends on the consent of the other party or parties. It would also depend on the development of international law recognizing the right of self-determination” (p. 295, emphasis added by the reviewer).

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As the author sums up in his “Conclusions” (Chapter X, pp. 298-301), “the criteria used to establish Associated Statehood have been examined at length in this study, together with recent legal practice” (p. 298). Caught in the uncertainties attached to the construct of “Associated Statehood”, the academic value of Igashari’s comprehensive study lays in the detailed fashion in which he describes the emergence of associated states (case studies). While his study certainly deserves credit for touching upon controversial issues in international practice and law, such as the legal qualification of associated states – are they states or something else? – the depth of his analysis with regard to fundamental legal issues pertaining to the criteria of statehood and recognition somewhat falls behind the comprehensiveness of his empirical case studies. However, the dogmatic issues pertaining to associated statehood are undoubtedly complex and difficult to resolve in view of inconsistent state practice, as diligently demonstrated by Igashari. His study certainly deserves credit for reinitiating the conceptual discussion concerning associated statehood under interna-tional law and allowing for practitioners as well as scholars to obtain a valuable overview of the development of the concept and the peculiarities of each case. Michael Schoiswohl United Nations Development Programme, Kabul

Charlotte Ku/Harold K. Jacobson (eds.), Democratic Accountability and the Use of Force in International Law. Cambridge University Press, Cambridge, 2002, 466 pp., ISBN 0-521-00207-9, GBP 21.99 (paperback); 2003, ISBN 0-521-80747-6, GBP 65.00 The world at the beginning of the new century is one in which democracies are the major military powers. It is also one in which nearly three-quarters of states retain their domestic authority but in which few are able to achieve what they want from others by unilateral action. On most matters, even the most powerful of states is obliged to seek multilateral support. Simultaneously, there is a growing, globalising disjunction between the democratic, constitutional and social aspirations of people – which continue to be understood through the framework of the territorial state – and increasingly problematic potential for collective action through state political processes. Indeed, possibilities for collective action through multilateral regimes look likely to increase, but these operate at least one remove from democratic accountability. “Democratic Accountability and the Use of Force in International Law” explores issues of democratic accountability that have arisen when military forces have been used under the auspices of international institutions. It is an international volume which incorporates a wide spectrum of international democratic institutions and procedures. Contributions to the text are provided by well regarded academics from many different countries having a history of involvement in multilateral peace operations; its conclusions are buttressed and are certainly more illuminating for an

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international readership as a result. Grouped under broad headings, the experiences of nine democracies (Canada, France, Germany, India, Japan, Norway, Russia, the United Kingdom and the United States) in the deployment of armed forces under UN and NATO auspices are discussed. The book’s publication predates the events in Iraq in 2003 but, in many respects, those events only enhance its value. As selected liberal states ponder a seemingly open-ended commitment in Iraq, ripe with implications for the use of force and international law, it seems more important than ever to answer the fundamental questions that this book’s contributors pose: What constitutes legitimate international authority to decide on the use of force? Which institutions can authorise the use of force, and what legal and political implications flow from this authorisation? What is the impact on democratic accountability when important state functions are shared with international institutions? What criteria should be used to evaluate the democratic accountability of institutions at all levels? Each of these questions appears in one form or another in the book under review and readers of international law will, perhaps, take comfort from their familiarity as old, difficult friends. The book is divided into six parts, comprising a total of fifteen individual chapters. The introductory and concluding chapters of the volume are written by Charlotte Ku and the late Professor Harold K. Jacobson who, rather than simply summarising the premises and ultimate findings of the book, pose new questions and directions of enquiry throughout. The book begins with a comparative history of efforts to limit states’ unilateral use of force, and to shift the monopoly of coercion to international institutions (pp. 3-35). In doing so, five categories of the international use of military force are identified and organised according to their perceived, increasing demands for democratic accountability. These five categories are: (1) monitoring and evaluation; (2) traditional peacekeeping; (3) peacekeeping plus state-building; (4) force to ensure compliance and, finally, (5) enforcement. The basic hypothesis undergirding the analysis undertaken is this that the greater the risk to the lives of military personnel, the longer the duration of the operation and the less certain its outcome, the greater will be the demand for democratic accountability. Overall, the case studies are clearly presented and well supported with analysis and evidence. The four chapters that comprise Part II of the study provide a context for analyses of the experiences of the nine countries under review. Two chapters deal with the domestic context (pp. 39-80) and two with the international context (pp. 81-126). Lori Damrosch describes the twentieth-century trend toward increased involvement of legislatures in deciding to use military forces; Karen Mingst analyses the role that political culture, political relationships and societal influences play in how such decisions are reached. In addressing the international context, Edwin Smith examines in Chapter 4 the democratic accountability issues that have arisen, particularly in the 1990s, as military forces have been used under the auspices of the UN and NATO. Chapter 5, by Robert Siekmann, is far narrower in focus and deals with the legal status and responsibility of military forces serving under international auspices. The issues raised in each of these four chapters were of immediate relevance to the diverse array of country case studies to follow and were to reverberate through-

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out the remainder of the text. Part III of the study (pp. 127-204) covers three countries that have made substantial contributions to UN peacekeeping operations since the founding of the Organisation: Canada, Norway and India. As a student already well-familiar with Canada’s role in the development of the traditional peacekeeping concept and, to a lesser degree, with Norway’s own, very similar domestic culture regarding participation in UN peacekeeping operations, I found that Ramesh Thakur’s and Dipankar Banerjee’s chapter on India provided a crucial case study counter-weight. Significantly, India is the only developing country among the nine studied and is the only one to actually host a UN peacekeeping operation (UNMOGIP). Noting the colonial power legacy to be found permeating NATO member state ranks, I concurred with the authors’ contention that India’s concerns about the merits and wisdom of ad hoc “willing coalitions” of states assuming the more complex tasks mandated to new generations of peacekeeping operations in lieu of UN authorisation is based on real and long experience that many other UN troop contributing countries lack. Similarly, I found special fascination in the two chapters which comprise Part IV of the study (pp. 207-253). Writing on Japan’s and Germany’s evolving attitude toward the use of force, their respective constitutional limits and their efforts to respond rapidly to allied expectations of them in the 1990s, Akiho Shibata’s and Georg Nolte’s contributions are especially well-researched and clearly constructed. Part V is comprised of four chapters dealing with four permanent members of the UN Security Council, Russia, France, the United Kingdom and the United States (pp. 257-345). Placed in deliberate order, the text successfully highlights the special challenges – and the many similarities and differences – each of these states is facing when bound or constrained by decisions of international institutions that are not democratic. Following directly from Part IV, Bahktiyar Tuzmukhamedov demonstrates that the experience of Russia parallels in some ways that of Japan and Germany. After the collapse of the USSR, Russia, too, had to create new constitutional and political institutions and procedures. At the same time, both Russia and France have been insistent on maintaining the authority of the UN Security Council. The United Kingdom, on the other hand, as Nigel White describes in Chapter 13, and the United States, discussed by Michael Glennon in Chapter 14, have maintained at various times that there are other legitimate sources of international authorisation to use military forces. As with its introduction, the book’s conclusion (“Toward a Mixed System of Democratic Accountability”, Part VI), is perhaps the most revealing (even if it is also somewhat prone to repetition). Co-authored by the editors themselves, this final portion of the text reviews the myriad and sometimes conflicting forms of authorisation and responsibility each of the nine states has in place to manage the five categories of the international use of military force originally defined. In this regard, the nature of the “struggle” between the legislature and the executive was a consistent theme found throughout each of the country case studies. Various legal grounds for authorising military action are also summarised and the reader is invited to ponder the mixed system of accountability that has begun to evolve as a result. The contro-

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versy surrounding NATO’s out-of-area operations – specifically, whether NATO can legitimately take decisions to use military forces in non-Article 5 operations without authorisation by the UN Security Council – is given particular attention. Similarly, the many ways in which the UN Security Council is itself deficient as a responsible civilian authority is highlighted. These deliberations are complemented, in conclusion, by two appendices consisting of three tables and comprehensive notes (pp. 384-414). The appendices provide a valuable and detailed addition to the comparative history of collective security efforts provided early on. The originality of this volume lays both in the research questions which it poses and the methodology adopted. The institutions and practices of democracy are an evolving phenomenon and, perhaps not surprisingly – given the historically undemocratic character of international relations – all states fall short of fully meeting democratic ideals. Even so, the nine country studies in this book showed that democratic governments have been innovative and flexible in finding ways (both formal and informal) to be responsive to their citizens while maintaining institutional effectiveness in the regularisation of the use of force. Democratic accountability, this text successfully argues, can be achieved through the combined effect of national and, to a lesser degree, international institutions and procedures. But there is no doubt a new era that has begun in the use of force in international law, and analysts are only now beginning to recognise this and make initial sense of it. Inconsistency in a world of variable wills and unequal powers is unsurprising. That the new interventions are self-evidently a function of the power to intervene, however, should give liberals pause. Indeed, the paradox of a liberal hegemony in the post-Cold War world is that this hegemony is weak because it cannot convincingly be demonstrated – and in so far as it can be, threatens to undermine the principles on which it is based. In highlighting this, I make reference to one of the many salient examples proffered in this book (pp. 183, 314). The defence that was offered for the demands at Rambouillet was new. With the connivance of the UN Secretary-General, but without seeking the approval of the Security Council, an alliance of liberal powers had taken it upon themselves to enforce the agreement they sought from the Federal Republic of Yugoslavia with regard to the Albanian Kosovans. In doing so, the principle of non-interference had been sacrificed to the enforcement of human rights, and an argument had been found to defend the use of arms for humanitarian intervention. For a world in which liberals dominate, the implication is plain. Nietzsche once remarked that if men do not have external enemies, they become enemies to themselves. It is the fate of liberal powers also to become enemies to themselves when they do. Ku and Jacobson should be thanked for indirectly drawing attention to a basic contradiction which has persisted between globalisation and democratisation. The contributors to this volume also deserve more specific praise for highlighting the need for democratic states to develop requisite democratic legitimacy mechanisms to complement this most recent liberal tendency to amalgamate and diffuse their global application of military force. Indeed, states now have more than fifty years’ experience with limits on the unilateral use of force and cooperation with each other in deploying

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forces under international auspices for ostensibly humanitarian purposes. The need, however, to ensure adequate decision-making transparency and to strengthen democratic legitimacy when considering such operations – at both national and international levels – remains outstanding. Steven D. Feller United Nations Development Programme, Kabul

Dinah Shelton, Remedies in International Human Rights Law. Oxford University Press, Oxford / New York 1999, xli+387 pp., ISBN 0-19-829859-5, GBP 90.00 (hardback); 2000, ISBN 0-19-924302-6, GBP 21.99 (paperback) International law is more a law on substantive rights and obligations rather than one on remedies available for their violation. Therefore, the international law on remedies is undeveloped and literature on the topic is scarce.5 The book under review addresses this gap and attempts to close it with regard to international human rights law. It is divided into three parts, the first dealing with the conceptual and historical framework. It starts with a historical description of the development of international human rights law focussing on the “right to a remedy in human rights instruments” (pp. 14-37). The author rightly concludes that in human rights law, the right to an effective remedy is in itself a substantive human right. The second chapter provides an interesting presentation of the various theories of remedies (pp. 38-56), i.e. remedial justice, an economic analysis of remedies and international law theories on remedies, emphasising the purposes and kinds of reparations and the uniqueness of human rights cases. Chapter 3 deals with the various remedies available in national law (pp. 57-92). In the context of human rights law, the most important remedies are those against the state, since apart from the still embryonic state of law with regard to drittwirkung of human rights obligations, these are owed by the state directly towards the individual. The relevant remedies identified by Shelton are declaratory judgments, compensation, punitive or exemplary damages, non-monetary remedies, habeas corpus and amparo as well as attorneys’ fees and costs. The author notes the regrettable deficiency that in some instances the interests protected by particular human right may not also be protected by an analogous tort or private obligation (p. 91). In other words, the mere infringement of a human right does not necessarily provide an adequate cause of

5

For a few exceptions see C. Gray, “Is There an International Law of Remedies?”, 56 BYIL 25 (1985); id., Judicial Remedies in International Law (1987); S. Hajsdik, “The Lack of Uniformity in the Terminology of the International Law of Remedies”, 5 LJIL 245 (1992); I. Brownlie, “Remedies in the International Court of Justice”, in M. Fitzmaurice/V. Lowe (eds.), Fifty Years in the International Court of Justice: Essays in Honour of Sir Robert Jennings 557 (1996).

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action which may ultimately lead to the result that injuries caused by the deprivation of (even constitutional) human rights go uncompensated. The last chapter of part I (pp. 93-136) supplies a presentation of reparations in the law of state responsibility for injury to aliens, which – though conceptually different – shows certain similarities with the remedial situation in human rights law. The problem with this chapter however is its lack of dogmatic coherence. In particular, Shelton invariably cites cases in which an injured state made direct claims against the wrongdoing state without any of the nationals of the former being involved as injured persons. Thus cases of direct injury (e.g. the Corfu, the Temple, or the Diplomatic and Consular Staff cases) are discussed under the heading “state responsibility for injuries to aliens”. It is only in the second part of this chapter (pp. 103-136) that Shelton puts matters into their right perspective by dealing exclusively with the issue of diplomatic protection and reparation for injuries to aliens. Part II of the book (pp. 137-182) deals with the institutional framework of human rights protection and consists of two chapters, the first on international and regional institutions and tribunals being the more comprehensive one. It presents an overview of the various systems of human rights protection under the United Nations as well as regional human rights systems. The main – even though not surprising – concluding statement of this chapter is that human rights tribunals have the inherent power to remedy breaches even if this competence is not explicitly conferred on them by their constituent instrument. According to Shelton, the different views on the issue of remedies particularly by the European and Inter-American Courts of Human Rights are not only due to the different language of the conventions but also due to distinct judicial attitudes or approaches (p. 181). The second chapter of part II (pp. 183-198) addresses procedural questions in the context of international human rights litigations. The first of these is the question who may claim redress for a violation or, put differently, the question of locus standi. The European Court of Human Rights considers as injured party or victim within the meaning of Article 34 of the European Convention not only the person who immediately suffers from the violation of the relevant human right but also indirect victims, in particular close relatives in the case of the death of the direct victim. In general, such an indirect victim is any person who would indirectly suffer prejudice as a result of a violation or who would have a valid personal interest in securing the cessation of a violation (p. 183). While the Inter-American Court of Human Right has in principle taken a similar approach it has created new law regarding entitlement to damages in the Aloeboetoe case where it held that even third parties as non-successors to the wrongfully killed victims may suffer injury; however, they bear an increased burden of proof (p. 188). The next procedural question addressed by the author is that of the presentation of claims. In principle, a plea for damages must be specific and compensation will not be awarded unless it is explicitly requested by the claimant. Finally Shelton analyses the practice of supervising execution of judgments in the human rights field. Apart from the question of compliance by the state with the judgment, many other problems may occur in the stage of implementation of the award. For instance, the European Court of Human Rights was faced with the question

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as to whether the compensation awarded is free from attachment by creditors of the victim (pp. 192-193). It is interesting to note that the Inter-American Court of Human Rights “has exercised extensive powers” to protect the awards made to victims, e.g. by establishing trust funds and overseeing payments. As Shelton states, the InterAmerican Court has established a consistent practice of governing the mode of payment (pp. 191-192). The largest and certainly most interesting part of the book is that on the jurisprudence and practice of judicial bodies with regard to remedies (Part III, pp. 199-361). The first remedy analysed by Shelton are declaratory judgments (pp. 199-213). While being the remedy most often sought and granted and in principle inherent in any judgment on a violation, declaratory judgments only have prospective effect and will rarely serve to address the consequences of the harm suffered (p. 201). Thus it is clear that in many instances of human rights violations, a declaratory judgment will certainly not suffice to make good the damage caused by the violation. Nevertheless, a declaratory judgment is a judicial remedy in its proper sense, and constitutes a measure of reparation. The second remedy is compensation, by far the most important one and extensively covered by Shelton (pp. 214-279). After an overview of the international practice of human rights courts and tribunals on compensation (pp. 217223), which is characterised by considerable differences, she addresses the issues of pecuniary damages, non-pecuniary damages, and proyecto de vida (i.e., the specific remedy introduced by the Inter-American Court of Human Rights concerning the claimant’s reasonable expectations for the future, in particular lost opportunities and enjoyment of life). A vast portion of the chapter on compensation is devoted to the problem of causation and presumed harm which is particularly tricky in many cases of human rights violations. As Shelton points out, the European Court of Human Rights “seems unduly stringent in its causality requirement, particularly in regard to procedural violations” (p. 242). Above all she rightfully criticizes that the Court does not shift the burden of proof towards the respondent state once the violation of the substantive human right has been established. In contrast, the Inter-American Court has focused less on proof of causation and more on limiting the remoteness of the claims (p. 243). The author continues with a problem not less controversial than causation, i.e. valuation and calculation of damages. The Inter-American Court has already had several occasions to address issues of measuring damages for personal injury and wrongful death (pp. 250-254), whereas the European Court has developed methods of calculation primarily in cases concerning interfering with property rights (pp. 254261). Even more difficult than measuring compensation for pecuniary losses are those concerning violations which have not resulted in economically assessable damage. In general, the calculation of non-pecuniary losses is a matter of equity; again, the European Court of Human Rights is very restrictive in awarding non-pecuniary damages, and where it has done so, “damage awards for non-pecuniary harm are difficult to comprehend other than as subjective judgments about the moral worth of the victim and the wrongdoer” (p. 264).

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The next part of this chapter deals with inflation, interest, and taxation of damages (pp. 267-272), and the final part is on the specific question of procedural delay cases in the European Court of Human Rights (pp. 272-278). As Shelton notes, “[t]he Court has selected two areas of law where speed is deemed required: employment matters and civil status and capacity” (p. 272); it is interesting that the Court has not emphasised criminal matters in a similar way although the Convention itself calls for “prompt” and “speedy” determination of deprivations of liberty and irrespective of the fact that both civil and criminal trials are to be held within “a reasonable time”. While the Court “appeared to presume the existence of some pecuniary as well as non-pecuniary harm, awarding a lump sum for both” in earlier cases, it “has taken a stricter approach to the proof of pecuniary losses attributable to the delay and almost never makes an award under this heading” (p. 273). She then lists several factors which she considers significant for the awards in procedural delay cases. As a third and distinct remedy, Shelton examines punitive or exemplary damages. After some preliminary remarks on the controversial nature of punitive damages,6 and their relationship to “enterprise liability” (pp. 284-286), she in principle argues in favour of punitive damages in case of human rights violations. Although in the recent series of cases brought against Turkey, the applicants regularly have included requests for punitive or exemplary damages for allegedly egregious and deliberate violations of the most fundamental human rights, the Court has also regularly rejected these requests. Shelton argues that the European Court of Human Rights “has a stronger textual basis to award punitive damages, as there is clear precedent for punitive damages in the arbitral decisions on state responsibility for injuries to aliens” (p. 287). This “clear precedent” however is not uncontested7 and in her analysis of relevant case law in the earlier chapter on reparations for injury to aliens (pp. 129132) Shelton herself states that tribunals frequently have rejected claims for punitive damages as being outside the realm of international law (pp. 131-132). The author then turns to non-monetary remedies (pp. 292-306), a very interesting feature of international human rights law. As types of non-monetary remedies Shelton briefly presents rehabilitation, truth-telling and the punishment of perpetrators. As to the latter it must be noted that the remedy can only be a proper investigation, which need not necessarily lead to punishment. At least in states which are governed by the rule of law and the principle of the separation of powers the punishment of persons is up to independent courts and tribunals and is justified only after these persons have received a fair trial which may also end in a Hence, the punishment of

6

As to the debate under international law see N. Jørgensen, “A Reappraisal of Punitive Damages in International Law”, 68 BYIL 247 (1997); S. Wittich, “Awe of the Gods and Fear of the Priests: Punitive Damages and the Law of State Responsibility”, 3 ARIEL 101 (1998); id., “Lusitania v. Rainbow Warrior: Punitive Damages im Rahmen der Staatenverantwortlichkeit”, in H. F. Köck (ed.), Rechtsfragen an der Jahrtausendwende 247 (1998).

7

See Wittich, Awe of the Gods, supra note 6, at 113-142.

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the persons responsible for the human rights violation cannot be an a priori remedy. The final remedy addressed by Shelton is that covering costs and fees (pp. 307319). Under the European Convention, costs and fees fall within former Article 50 (now Article 41) meaning that they are afforded “if necessary”. Shelton states that the “Court nearly always finds them so at least in part” (p. 309). However, as she points out, the European Court of Human Rights has increasingly been discounting fees and costs claimed for pleadings that it denies on the merits. She adds that “[t]he result is likely to create a conservative bar that is unwilling to assert new claims or innovative arguments, leading to a static interpretation of the Convention” (p. 313), although the Court itself has time and again stressed that the Convention is a “living instrument” which must be interpreted contemporaneously. The Inter-American Court of Human Rights has unjustly rejected costs and attorneys’ fees until a change of jurisprudence in 1998 where the Court fortunately started to refer to the case law of the European Court (pp. 316-319). The last chapter deals with gross and systematic violations of human rights. Shelton states that as regards remedies for gross violations “[n]o single formula can apply to all conflicts” but that they must have two overall objectives: to prevent the recurrence of the violations and to repair the damage that they caused, to the extent possible (pp. 321-322). This, it is submitted, is not specific to gross or systematic violations of human rights but is the general consequence of every violation of the law. Shelton then turns to various remedies in such instances, i.e. prosecutions of the perpetrators (pp. 322-327), truth commissions and international investigations (pp. 328-330), national lustration laws (pp. 330-331), and – by far the most important remedy here as well – compensation (pp. 331-353). It is doubtful whether war reparations indeed belong into this category; in any event, the author rightly treats the reparation regime under the United Nations Compensation Commission separately from war reparations in general. She also addresses national compensation schemes in this context. Finally, she portrays non-monetary remedies as a response to gross and systematic human rights violations (pp. 353-357). The book concludes with a very brief summary (pp. 358-361). No doubt Shelton’s book is a rich source for the law and practice of international human rights courts and tribunals on the question of remedies for violation of human rights. In particular her descriptive analysis of the practice on remedies is of great value and fills a gap in the literature. While due to its lack of a coherent dogmatic approach it may be of less interest for theorists, it certainly will attract the justified attention of those who have searched for a guide through the rich case law of human rights courts on the law of remedies. Stephan Wittich University of Vienna

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Liesbeth Zegveld, Accountability of Armed Opposition Groups in International Law. Cambridge University Press, Cambridge, 2002, ISBN 0521811309 pp xxviii+260, index, GBP 45.00 In her comprehensive and elaborated study under review, Liesbeth Zegveld undertakes to shed some light into the darkness surrounding the legal obligations of armed opposition groups which continue to haunt the conscience of public international law despite its efforts to attribute insignificance to their legal status in furtherance of the state’s territorial integrity. In her quest towards identifying who is accountable under international law for the acts committed by armed opposition groups or for the failure to prevent or repress these acts, she touches upon individual criminal responsibility for violations of humanitarian law, international human rights applicable to armed opposition groups, and the law of state responsibility. The book is divided into two main parts: Part I termed “The Normative Gap” examines whether international law provides any legal restraints on and substantive obligations of armed opposition groups as such (pp. 9-96), while Part II, as the intellectual core of her study, is dedicated to formulating what she calls the “Accountability Gap” (pp. 9730) by investigating into the accountability of group leaders (pp. 97-132), the accountability of armed opposition groups as such (pp. 133-163), and the accountability of the state for acts of armed opposition groups (pp. 164-219); she closes Part II with her “quest for accountability” (pp. 220-228) as a prelude to her conclusions (pp. 229-230). In addressing the legal restraints on armed opposition groups as such (pp. 9-58), she starts by evaluating the relevant treaty law, namely Common Article 3 of the 1949 Geneva Conventions and Additional Protocol II. Turning to the question of the specific mechanism through which armed opposition groups become bound to the treaty obligations enshrined in Common Article 3 and the Protocol II, the author discusses the two main doctrinal views usually expressed in this regard: according to one school, these groups are bound to international humanitarian law rules as a matter of their limited legal personality that exists side-by-side with the established authorities; according to the other, they are bound by humanitarian norms because they are inhabitants of the state that has ratified the relevant conventions (pp. 15-16). Unfortunately, the author does not further dwell on this challenging doctrinal riddle, which continues to vex international law, nor does she discuss the different variations of both schools that have been promulgated by prominent scholars.8 Instead, the author

8

For example, Professor Cassese suggests to apply the rules concerning “third party obligations” enshrined in the 1968 Vienna Convention on the Law of Treaties, i.e. Arts. 3436. He arrives at the conclusion that according to the intentions of the states, as the drafters of the Geneva Conventions and their Protocols, and in view of the attitude of rebels which gives rise to a “tacit agreement”, the rules applicable to internal armed conflicts are binding upon the rebels; see A. Cassese, “The Status of Rebels Under the 1977 Geneva Protocol on

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swiftly turns to the relevance of consent by armed opposition groups to the applicability of international norms to themselves (pp. 16-17), provides a short discussion of special agreements under Common Article 3 and Protocol II (p. 17) and ends up comparing these facets with national liberation movements (pp. 17-18). Having rapidly dealt with treaty obligations applicable to armed opposition groups, the author identifies and discusses ample evidence in the practice of international bodies that both, Common Article 3 and various articles of Protocol II reflect customary international law (p. 18-26), before addressing other treaty rules of humanitarian law applicable to armed opposition groups, namely Amended Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices to the Conventional Weapons Convention, of 3 May 1996, the 1954 Cultural Property Convention, and the Second Protocol to the Cultural Property Convention of 26 March 1999 (pp. 26-28). Turning to customary obligations other than those enshrined in Common Article 3 and Protocol II, she hints to the jurisprudence of various international bodies, such as the ICTY and the UN Commission on Human Rights, according to which basic humanitarian principles on the conduct of hostilities apply in all armed conflicts, although they were originally associated with the protection of civilians in international armed conflict (pp. 30-33), and concludes that based on a tendency to shift the perspective to the protection of individuals, “international practice thus demonstrates a trend to diminish the relevance between the law applicable to international and internal armed conflicts” (p. 34). As a justification the author argues that armed opposition groups often possess the ability to comply with the humanitarian norms and thus that it is “important to distinguish between the possible reluctance by armed opposition groups to comply with the rules and their actual capability to do so” (p. 35). However, she also emphasizes that the distinction has not been abolished and that “there is uncertainty also exactly which rules apply to internal conflicts” (p. 36). In search for further sources of obligations binding armed opposition groups, Zegveld discusses whether these groups are and should be bound by international human rights obligations (pp. 38-55).9 Proceeding from the common understanding that human rights obligations do not, at least by treaty law, bind armed opposition groups, she thoroughly examines the practice of international bodies and discusses decisions by the Inter-American Commission, the UN Commission on Human Rights and the UN Security Council which purported to extend human rights obligations to armed opposition groups (pp. 47-49). Furthermore, she addresses special (peace or ceasefire)

Non-International Armed Conflicts”, 20 ICLQ 416, 428 (1981). Professor Bothe, on the other hand, argues that there existed a rule of customary international law which would extend the effects of the ratification made by a state to insurgents in the territory of that state; M. Bothe, “Conflits Armés Internes et Droit International Humanitaire”, 82 RGDIP 82, 92 (1978). 9

In this regard, see also M. Schoiswohl, “De Facto Regimes and Human Rights Obliga tions – The Twilight Zone of Public International Law?”, 6 ARIEL 45 (2001).

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agreements, such as the San José Agreement concluded between the FMLN and the Salvadorian Government in 1990 (pp. 49-50). However, she concludes that “it would seem that the […] practice is insufficient both in quantity and quality to challenge the principle that human rights law binds only the state in its relation with individuals living under its jurisdiction and not armed opposition groups involved in internal conflict” and that the “practice asserting the applicability of human rights law to armed opposition groups is confined to unsupported statements” (p. 52). Rejecting the possibility of extending human rights law to armed opposition groups (pp. 52 – 54), she argues that “rather than stretching human rights law to armed opposition groups, efforts should be directed towards promoting the application of Common Article 3 and Protocol II in all situations that arguably constitute internal armed conflicts within the meaning of these rules” and that “international bodies should aim at a progressive and flexible interpretation of the application clauses of Protocol II” (p. 53). The remainder of Part I, namely Chapter 2 termed “substantive obligations of armed opposition groups as such” (pp. 59-93), is dedicated to the contents of the law applicable to armed opposition groups that the author had identified in the previous chapter. She notes that “although international bodies have accepted the applicability of a wide range of international norms to armed opposition groups, they have rarely indicated which measures these groups must take to be in compliance with these norms” (p. 59). In this regard, Zegveld’s comprehensive assessment of the substantive obligations that armed opposition groups face, offers important and valuable clarification. In concluding Part I, she raises the question to which extent armed opposition groups are bound to ensure respect of the substantive obligations they face and observes that “international practice provides little support for the obligation of armed opposition groups to ensure respect for the applicable law. […] By limiting their duties to a duty to abstain, the position of armed opposition groups under international law has in fact become very similar to that of individuals, prohibited from committing international crimes” (p. 93). Having identified the restraints that armed opposition groups face under international law, Zegveld raises the question of who can be held accountable for violating these norms or for failure to prevent or redress such violations (Part II – The Accountability Gap). First, she addresses the accountability of leaders of armed opposition groups (pp. 97-132), second the accountability of armed opposition groups as such (pp. 133-163), and finally, the accountability of the state for acts of armed opposition groups (pp. 164-219). With regard to the accountability of leaders in general, the author rightly emphasizes that the role of the leader is crucial for the observance of the rules of international humanitarian law applicable to internal conflict, as the leader will instruct, supervise and control his subordinates. Given his decisive role, the leader will not only be held criminally responsible for his own acts, but also for the acts of his subordinates. However, the well-known principle of command responsibility as spelled out in the Yamashita case has traditionally only been applied to individuals connected with the state. This situation, as Zegveld argues, has changed with the establishment of the

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Yugoslavia and Rwanda Tribunals as well as the International Criminal Court (p. 98). Before digging into the question to which extent the principle of command responsibility has been extended to leaders of armed opposition groups, she describes the various crimes for which the leader might himself be held responsible. Starting with war crimes, she points to the fact that “until recently, the common belief was that war crimes could not be committed in internal armed conflict by insurgents” as the language of Common Article 3 and Protocol II does not address individuals (p. 99-100). However, referring to recent jurisprudence and developments, such as the ICC Statute and the Statute of the Sierra Leone Court, she notes that “it is safe to say [at present] that serious violations of Common Article 3 and part of Protocol II entail, both as a matter of treaty and customary law, individual criminal responsibility of leaders of armed opposition groups” (p. 100). While violations of these norms applicable to internal armed conflict entail individual criminal responsibility, they do not trigger universal jurisdiction since the grave breaches regime provided for in the 1949 Geneva Conventions does not extend to internal armed conflicts (p. 103). Turning to crimes against humanity and the jurisprudence of the Yugoslavia and Rwanda tribunals, Zegveld notes that “crimes against humanity as defined in their statutes can, as a matter of customary law, be committed in internal armed conflicts [and] government involvement is no longer necessary to transform a simple crime into a crime against humanity” (p. 107). The Statute of the ICC has corroborated this development by expressly declaring that members of non-state entities may commit this kind of crime. Finally, she briefly discusses the third category of crime that applies to internal armed conflict and entails individual criminal responsibility, namely genocide (pp. 108-111). The remainder of Chapter 3 is dedicated to the two main facets of command responsibility for group leaders, namely either for ordering breaches of international law or for a subordinate’s unlawful conduct that is not based on specific superior order (pp. 111-132). According to Zegveld’s detailed analysis of the current legal situation, both aspects of the command responsibility principle apply to armed opposition groups. In that regard, she argues that distinctions between international and internal armed conflicts as well as between state and non-state actors have become irrelevant as the responsibility of superiors depends on their actual control and authority over the perpetrators of the crime, rather than on the type of conflict in which they are operating or their link with the state (p. 121). More specifically, she lists and discusses three criteria, which determine the responsibility of superiors of armed opposition groups, namely control and authority (pp. 121–124), knowledge (pp. 124-128), and ability to prevent or punish (pp. 128-131). The most interesting part of the book under review certainly is Zegveld’s subsequent discussion of the accountability of armed opposition groups as such (pp. 133-163). The extent to which such non-state entities might incur “responsibility” in analogy to the principle of state responsibility has remained an enigma within international law scholarship, which for many years was hidden under a carpet of general assumptions such as the one articulated in the Commentary to Article 10 of the recent ILC

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Articles on State Responsibility.10 First of all, holding armed opposition groups accountable for violations of humanitarian law requires that these groups are regarded as subjects of international law. As Zegveld notes, “no clear definition exists, however, of armed opposition groups subjected to international law” (p. 134). Embarking on a search for various criteria developed by the case-law of international tribunals and monitoring bodies, she describes and analyzes the thresholds for accountability under Common Article 3 and Protocol II (pp. 134-146) as well as other rules of humanitarian law (pp. 146-148). The author even addresses the possibility to extend international human rights obligations to armed opposition groups in cases where they exercise quasi-governmental functions in part of the state territory and provides some authority to that effect11 (pp. 148-151). She concludes that “[t]here is widespread international practice demonstrating that armed opposition groups can be held accountable for violations of international law” (p. 151). However, it may be doubted that there is in fact such widespread practice apart from the jurisprudence of various war crimes tribunals which decide upon the individual criminal responsibility of perpetrators of humanitarian law violations. In particular, there is only little practice of recent origin whereby states other than the one fighting the armed opposition group have held such groups legally responsible for violations of humanitarian law. There are certainly a number of UN Security Council Resolutions as described in length by Zegveld, but these merely call upon the armed opposition groups to adhere to rules of international humanitarian law and do not spell out the consequences attached to their breaches. Zegveld touches upon these concerns when discussing the attribution of conduct to armed opposition groups and the potential application (or extension) of the rules of state responsibility to effective authorities other than states (pp. 152-155). There, she concludes that no clear rules of attribution have generally developed with regard to armed opposition groups in view of the various degrees of organization and effectiveness armed opposition groups may attain (p. 155), the exception being successful armed opposition groups, i.e. groups that have formed a state or an established government, which become subject to the rules of state responsibility as enshrined in Article 10 of the ILC’s Articles on State Responsibility (pp. 155-157). Turning from attribution to enforcement, Zegveld raises the question of what consequences breaches of humanitarian law entail for armed opposition groups as

10

Commentary to the ILC Articles on State Responsibility, para. 16 of the Commentary to Art. 10. The text of the Articles and the Commentary thereto are reproduced in Report of the International Law Commission on the Work of Its Fifty-third Session (23 April-1 June and 2 July-10 August 2001), UNGAOR 55th Session, Supplement No. 10, UN-Doc. A/56/10, at paras. 76 and 77 (2001), available at http://www.un.org/law/ilc/reports/2001/ 2001report.htm. See also, M. Sassòli, “State Responsibility for Violations of International Humanitarian Law”, 84 No. 846 IRRC 401, at 411 (2002).

11

See also Schoiswohl, supra note 9, passim.

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such and addresses the problem of finding a suitable forum in which to prosecute a claim against them (pp. 157-163). In that regard she notes that “a gap currently exists […] in the enforcement of international humanitarian law. There are no judicial or quasi-judicial mechanisms specifically competent to examine claims against armed opposition groups” (p. 162). Given that “holding armed opposition groups accountable for humanitarian law violations is considered to be incompatible with the fundamental right of the state to preserve its existence and to remain the only authority” she concludes that “these considerations make the prospects of further development of the international accountability of armed opposition groups very small indeed”(p. 163). Given the identified “accountability gap”, i.e. the limited accountability of armed opposition groups themselves, Zegveld explores to which extent states might be held accountable for acts of armed opposition groups (pp. 164-220). This approach, as the author rightly stresses, goes in line with public international law’s emphasis on the state as the main addressee of its rights and obligations, but fails to bridge the accountability gap with regard to acts by armed opposition groups which fall outside of the established government’s due diligence obligations (p. 164). With regard to the applicable law (pp. 166-173), the author first examines obligations flowing from human rights treaties, such as the International Covenant on Civil and Political Rights and the European and American Conventions on Human Rights, and concludes that despite some practice to the contrary, “the general obligation resting on the state under human rights treaties to ‘ensure’ or ‘secure’ the relevant rights and freedoms entails the obligation to protect individuals from armed opposition groups on its territory” (p. 173). The conclusion that the positive human rights obligation to ensure protection remains in force vis-à-vis individuals living on the territory under the control of armed opposition groups resembles, however, mere rhetoric rather than substantive legal obligation. The established government will naturally strive to “regulate and control” armed opposition groups by all necessary means and to the extent it has taken all measures to protect civilians in its attempt to gain control over armed opposition groups, the positive obligations will be met. However, once the established government has lost effective control to armed opposition groups, it will simultaneously lose its “responsibility” for ensuring and securing human rights in these areas. Correspondingly, acts in contravention of international human rights standards will not any longer be attributed to the state, but in limited cases to the armed opposition groups which, applying Article 10 of the Articles on State Responsibility elaborated by the International Law Commission, might eventually be held responsible/accountable for them. While, as she rightly points out, there is some evidence in international practice that states might be held responsible for conduct encouraging armed opposition groups in breaching international (humani-tarian) law obligations (p. 174), this may not be equated with the state’s accountability for human rights violations committed by armed opposition groups. In this regard, the author is constantly torn between arguing for the state’s responsibility for acts committed by armed opposition groups under the obligations to “ensure respect” while being caught within the principles of effectiveness and due diligence: “No international bodies, however, have accepted such positive obligations of the state under this law with

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regard to acts of armed opposition groups. Moreover, the obligation that emerges from the available practice is limited to the specific obligation of penal repression. International bodies are silent on any other obligations of the state to prevent and repress acts by armed opposition groups acting on its territory under Common Article 3 and Protocol II” (p. 175). She thus asks: “How is this silence to be interpreted? How can the difference between international practice on international humanitarian law and human rights law be explained?” (p. 175). Her answer relates to the conception inherent in Article 3 of the Geneva Conventions, that the armed opposition group itself may be held accountable and thus there is no need to address the state (p. 176). While this is certainly true, the answer provided falls short of investigating into the crucial question: why is it that Article 3 was drafted in this fashion? And indeed, the author finally approaches the fundamental principle underlying the relationship between the state and armed opposition groups: “Under international humanitarian law, the relationship between the state and armed opposi-tion groups is not a ‘human rights relationship’, i.e., is not a hierarchical relationship between a government and the governed. Rather, under this law the state’s government and the armed opposition groups are equal parties fighting each other. The effect is that these groups are seen as being, by definition, outside the control of the territorial state – and consequently outside the accountability of the state as well” (pp. 176). This leads her to conclude that “the content and scope of the obligation ‘to ensure respect’ in both categories of treaties [human rights and humanitarian law] is not identical” (p. 176). In specifying the obligations of the state to take action according to applicable human rights and international humanitarian law (pp. 180-207), Zegveld generally distinguishes between three obligations: the obligation to protect civilians from armed opposition groups through legislation, the obligation to physically protect civilians from armed opposition groups, and the obligation to prosecute acts of armed opposition groups prohibited under the applicable treaties (p. 180). Before elaborating on these “obligations”, she qualifies her previous propositions with regard to the state’s responsibility of the conduct of armed opposition groups by two remarks: 1. “The state is not responsible for injurious acts of armed opposition groups in internal armed conflict. In each case, responsibility can only be based upon the state’s own failure to act, the act of armed opposition groups merely constituting the objective condition which gives rise to a breach of the relevant treaty provisions on the part of the state” (p. 180). This qualification, as already emphasized above, refers to the attribution of acts to international legal persons and thus belongs to the sphere of the law of state responsibility (and not the nature of the primary obligations the adherence of which is scrutinized). 2. “The fact that an armed opposition group acts within the state’s territory, where the state exercises certain control, does not mean that the state must prevent and repress its conduct at all costs. International practice demonstrates that the state is only responsible for harm caused by armed opposition groups when it has failed to exercise due diligence. This means that the state must undertake appropriate measures to prevent and repress the injurious acts of armed opposition groups. Appropriate measures are those measures, which the state can reasonably be required to take in view of its own capabilities and the situation” (p. 182). Here the author

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refers to the nature and content of the primary obligation in relation to the prevention and repression of injurious acts of armed opposition groups which is limited by the principle of due diligence. In the following, she discusses the three means by which a state may discharge its obligation to prevent and repress these injurious acts, namely through legislation (pp. 183-188), through physical protection (pp. 188-196) and through prosecution (pp. 196-207). In discussing the State’s obligation to provide physical protection for its civilians against armed opposition groups, she analyzes international practice concerning the limitations stemming from the due diligence rule and in that regard identifies two general factors, namely availability of means and the foreseeability of harm (pp. 191-196). However, Zegveld emphasizes that “international bodies have rarely specified what kind of action is actually expected from the national police or armed forces. Instead, they leave the state a wide margin of appreciation in the choice of measures and means adopted to fulfill its obligation” (pp. 194-195). She summarizes the state’s obligation to take measures for the protection of civilians against armed opposition groups: “under particular circumstances, the state is obliged to take action against attacks by armed opposition groups, including precautionary measures. The obligation to take action is, however, one of due diligence, the content being determined by the specific circumstances of the case. Furthermore, international bodies have rarely indicated which measures the state is required to take to be in compliance with its duty to physically protect civilians from armed opposition groups; the state is left a large margin of appreciation in this respect” (p. 196). Concerning the obligation of the state to prosecute violations of human rights and norms of international humanitarian law, the author argues that “states are generally obliged to prosecute acts of armed opposition groups prohibited for the state under human rights and humanitarian law treaties” (p. 201). In arriving at this conclusion, she admits that “neither Common Article 3 nor Protocol II obliges the state to investigate, prosecute and punish acts by armed opposition groups committed on their territory in internal armed conflict” (p. 198), but argues that “international bodies have interpreted humanitarian and human rights treaties as imposing on the state an obligation to bring to trial members of armed opposition groups responsible for violence to life” (p. 198). Although her conclusion is coherent with the recent trend in international practice, it might have been appropriate to highlight the controversy concerning the applicability of the grave breaches regime and its consequences, such as the obligation to prosecute (or extradite), to internal armed conflicts. She merely hints at the controversy in footnote 112 (p. 200) when arguing that “an argument for the state’s obligation to prosecute humanitarian law violations committed by armed opposition groups may also be found in the 1949 Geneva Conventions which stipulate that states parties shall suppress acts contrary to the Conventions other than grave breaches […], which must be understood as referring to the punishment of such breaches through national legislation. Arguably, this obligation also applies to violations of Common Article 3”. After establishing that the state’s duty to prosecute is subject to the principle of due diligence, (pp. 202204) the author addresses the question concerning the relationship between this duty and amnesties for members of armed opposition groups (pp. 204-207). In that regard,

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she argues that amnesties for human rights and humanitarian law violations of armed opposition groups are in principle forbidden despite evidence to the contrary, such as the infamous Article 6(5) of the Second Protocol to the 1949 Geneva Conventions and numerous cases in which amnesties were granted to perpetrators of crimes under international law (p. 206) . In the subsequent chapter, Zegveld finally addresses the crucial issue with regard to the obligations of a state towards the conduct of armed opposition groups, namely the relevance of territorial control, or in international law parlance, the limitations arising from the principle of effectiveness (pp. 207-219). In line with well established international law doctrine,12 she argues that “the absence of a government or the lack of effective control of the government over territory precludes such accountability” (p. 207). In the last chapter, “The quest for accountability” (pp. 220-228), Zegveld summarizes three actors that may be held accountable under international law for injurious acts of armed opposition groups or failure to prevent or repress them: leaders and members of armed opposition groups, armed opposition groups themselves, and the territorial state (p. 220). While the accountability of the first and third category are less problematic, she rightly observes that the accountability of armed opposition groups themselves still remains “a grey area in international law” (p. 220). She furthermore convincingly argues that the accountability of armed opposition groups as such and the individual criminal responsibility are in many ways to be distinguished and that the recent development towards the replacement of the latter through the former is to be disapproved (pp. 220-224). She accordingly suggests that “to a greater extent than is presently the case, the accountability of the individual leaders of armed opposition groups and of these groups themselves should be integrated and their relation reconsidered” (p. 224). While this suggestion certainly has its merits, one cannot escape the observation that her argument fails to fully accommodate the distinction between the accountability of individuals (namely individual criminal responsibility) and the accountability of armed opposition groups (namely the responsibility of the entity enjoying legal personality) – a distinction which might be compared to the one between individual criminal responsibility and state responsibility. Her observation that “while international bodies have given due consideration to accountability of individual leaders of armed opposition groups, they have so far largely ignored the accountability of groups in favour of the accountability of individual members” (p. 223) is truly correct, but seems irrelevant in the sense that international criminal tribunals lack jurisdiction to adjudge the responsibility of armed opposition groups as legal entities as much as they lack to adjudge matters of state responsibility. It is truly deplorable that public international law has made little progress towards the responsibility of entities other than states since the inception of

12

See M. Schoiswohl, The Status and (Human Rights) Obligations of De-facto Regimes under International Law: The Case of Somaliland (2004).

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Common Article 3 of the 1949 Geneva Conventions, while international criminal law has flourished in recent years, but this should not prompt us to ‘integrate’ two entirely distinct legal questions into one accountability regime. Otherwise, the whole conception of international law distinguishing between various regimes addressing different actors would vanish in smoke and no clear separation could be made between the acts for which each individual is accountable and acts that should be attributable to the state, or armed opposition group for that matter, without entailing individual criminal responsibility. After diligently discussing the relationship between the accountability of the state and the accountability of armed opposition groups and the different factors as well as limitations that determine this relationship, Zegveld formulates her main proposition: “In summary, the state must act against the most serious abuses committed by armed opposition groups to the extent such abuses fall under its control. However, concepts underlying state accountability, such as state sovereignty, stability, and security should not be dogmatically adhered to at the expense of civilian populations. Not only because, in some cases, armed opposition groups fall entirely outside the state’s control, leaving civilians at their mercy, but also because the centrality of the state creates a false dichotomy between the parties to the conflict. It is proposed that international bodies assigning accountability in internal conflict respect the principle of political non-discrimination vis-à-vis civil war parties. While these arguments do not deny that there is a sovereign sphere inside the state which must be protected, they do suggest that this sphere must not be exploited to the point of endangering lives of persons affected by the conflict” (pp. 228-229). Zegveld’s final remarks embedded in her “Conclusion” (pp. 229-230) highlight a sad reality concerning the accountability of armed opposition groups as such, namely that “the international accountability of armed opposition groups is primitive and the prospects for further development are limited” (p. 229) and that “[t]here is little consensus on the question of whether armed opposition groups can or should be bound by international human rights law” (p. 230). Throughout the well researched and articulate study, the author seems to be constantly grappling with the main paradox which permeates the relationship under international law between the government representing the state and the armed opposition group: the principle of effectiveness. On the one hand, she seeks to identify norms which oblige the state, to be more precise the de iure government, to take measures for the protection of its civilian population against attacks from armed opposition groups, on the other hand, armed opposition groups will in many cases have assumed the status of a de facto regime/authority controlling a portion of the state’s territory and thereby preventing the de iure government taking any actions. Although the author diligently demonstrates that there are norms under international law which oblige the state, its de iure government, to the extent the principle of due diligence permits, but this approach distracts from the main flaw that currently prevails in public international law: namely, that armed opposition groups themselves are only to a limited extent bound by its rules. Overall, Zegveld’s study of the accountability of armed opposition groups is to be highly welcomed for its comprehensive and well-researched exploration of issues

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that have been lacking comprehensive academic debate as well as analysis. As a minor criticism, her mosaic approach to carefully dissect the various dogmatical issues may make it difficult for readers not yet fully versed with the layers of accountability (and state responsibility) to easily obtain the general answers they may seek in her study. At the same time, the detailed elaborations based upon careful research will prove useful for practitioners seeking answers to specific issues concerning the various aspects of accountability of armed opposition groups. Accordingly, her work will certainly help to clarify and formulate many of the outstanding enigmas that haunt the position of armed opposition groups in the international legal order which, in holding on to the Westphalian system, remains preoccupied with the prevalence of the state over armed opposition groups and the reluctance to recognize their factual existence to the detriment of the protection of individuals living under the latter’s de facto authority. It may only be hoped that her account of the various deficiencies in current international law doctrine with regard to the accountability of armed opposition groups will eventually spur international law debate to turn the grey area into a colorful legal framework that provides for the responsibility of effective entities other than states. Michael Schoiswohl United Nations Development Programme, Kabul

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Book Notes

Laurence Boisson de Chazournes/Vera Gowlland-Debbas (eds.), The International Legal System in Quest of Equity and Universality. L’ordre juridique international, un système en quête d’équité et d’universalité. Liber Amicorum Georges Abi-Saab. Martinus Nijhoff Publishers, The Hague, 2001, ISBN 90-411-1582-X, xii+849 pp., EUR 251.00/USD 339.00 The editors of this festschrift have managed to assemble a great number of excellent authors to honour Professor Georges Abi-Saab. As the editors note in their foreword, “[t]he contributors are drawn from what he [Abi-Saab] has always considered to be his large ‘family’ of former students” (p. xi). All in all this makes 45 authors from all corners of the world reflecting in a symbolic manner the open-mindedness of AbiSaab as well as “his unique and pioneering contribution to the field of international law” (p. xi). As is usual for a festschrift, the individual contributions cover a great array of diverse topics; they have been grouped under five headings which in a way can be considered as pervading Abi-Saab’s work and serve as a “backdrop” to the contributions in the liber amicorum. These headings are the following: (I) Georges Abi-Saab and the Concept of an International Legal System; (II) Foundations of the International Legal System: The Quest for Expansion; (III) Promoting Values in the International Legal System: The Quest for Humanization; (IV) The Judicial Function in the International Legal System: The Quest for Justice; and (V) International Organisations as Vehicles for Change: The Quest for Social Order. Without a doubt this festschrift is not only a fine tribute to Georges Abi-Saab but also an enrichment to every international law library. Stephan Wittich University of Vienna

Daniel D. Bradlow/Alfred Escher (eds.), Legal Aspects of Foreign Direct Investment. Kluwer Law International, The Hague/London/Boston, 1999, ISBN 90-4111214-6, xxi+616 pp., USD 198.00/EUR 180.50 This volume represents a collection of essays by 19 authors most of whom have a connection to American University in Washington D.C. as present or former teachers or as alumni. The contributions are broken down into three parts: an extensive and broad introductory chapter by Alfred Escher, a number of articles on some specific questions relating to foreign investment and a series of country studies. Alfred Escher’s general introduction is simply entitled Foreign Direct Investment (FDI). He deals with such issues as globalisation and regionalisation in the FDI context,


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the definition of FDI, admission of and incentives for investments, and legal issues to be examined by investors before making an investment decision. Much of the discussion in this chapter is influenced by the debates surrounding the efforts in the nineteen nineties to draft a Multilateral Agreement on Investment (MAI). These efforts in the framework of the OECD were abandoned but have since been resumed in the WTO. Escher’s discussion ranges from the specific to the very general. For instance, a description of the technicalities of the Multilateral Investment Guarantee Agency (MIGA) insurance is followed by a debate as to whether international law may be regarded as law in the strict sense. The treatment, although somewhat eclectic, does offer some useful insights into an area of international law that is often perceived as arcane. The section consisting of articles on specific issues opens with a contribution on the World Bank Guidelines on the Treatment of Foreign Direct Investment (Sabine Schlemmer-Schulte). A discussion of bilateral and multilateral investment treaties (Teresa McGhie) addresses a number of typical issues covered by these treaties such as admission, national treatment, the most favoured nation clause (MFN), expropriation, money transfers and dispute settlement. Workers rights and FDI are covered in a contribution by Jerome I. Levinson. A chapter by David Hunter and Stephen Porter on international environmental law and FDI deserves special attention. It is particularly well drafted and combines clarity with a wealth of valuable information. A number of environmental concepts and principles are introduced and explained, followed by a survey of the most important sources of international environmental law as they impact FDI. Two contributions on FDI and intellectual property (Ingo Selting) and on public sector procurement (Enzo de Laurentiis) conclude the part on specific issues. The choice of issues chosen for these chapters appears somewhat haphazard and driven by the availability of authors. For instance, one would have expected more in depth treatment of such issues as investor/State dispute settlement, standards of treatment and expropriation. The third part of this volume consists of a series of short country studies introducing the respective countries and their economic characteristics and describing some features of their regulatory frameworks for FDI. These country studies cover China (Yi Li), India (Samir S. Desai), Thailand (Nicholas Moller), Nigeria (Anthony Tejuoso and S. Sobowale), South Africa (Daniel D. Bradlow), Colombia (Carlos Acevedo), Mexico (Adriana Soltero La Valley), Panama (Salvatore Bacile), Belarus (Alexander Vashkevich and Pavel Shevtsov) and Germany (Winifried A. Adam). These studies provide useful first impressions of the investment climate in the countries concerned. The value of this volume is further enhanced by extensive lists of technical information such as useful addresses of government agencies and international organizations as well as an index. Christoph Schreuer University of Vienna

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Wybe Th. Douma (ed.), European Environmental Case Law, T. M. C. Asser Press, The Hague, 2002, ISBN 90-6704-152-1, xvi+493 pp., EUR 25.00 Environmental issues have gained more and more importance in the last decades. This is also reflected in the increasing case load on environmental issues before the European Court of Justice and the Court of First Instance. The editor has undertaken the onerous task to collect and select cases which are central for the substantive and procedural aspects of European environmental law. He has to be congratulated on this book as his selection is most useful to researchers and students as well as practitioners dealing with environmental law on the national or Community level. Moreover, it is a useful tool for those dealing with international environmental issues to have an easy access to the relevant European environmental law cases and thus to be able to get a better understanding on the main issues under European environmental law, i.e. on the question of the distribution of competences on the European level and the main areas of EC activities in the field of environment. Given the continuous relevance of the topic and the usefulness of this volume, it is to be hoped that this book will be updated in due time. Gerhard Loibl University of Vienna

Jens Drolshammer/Michael Pfeifer (eds.), The Internationalization of the Practice of Law. Kluwer Law International, The Hague/London/Boston, 2001, ISBN 90411-1620-6, vii+542 pp., EUR 150.00/USD 138.00/GBP 95.00 This is a very thought-provoking compilation of 23 contributions which address in various forms and from different perspectives the globalisation and internationalisation of the practice of law. Some of the contributions have already been published in a special issue of the European Journal of Law Reform, volume 2 (2000). While there are many publications on the impact of globalisation on the future of international law, the influence of this ongoing process on the practice of international law is generally neglected, although it is perceptible in many respects: clients have already been multinational for years and expect legal advice for complex cross-border transactions; interdependent economies entail a globalisation of business; law firms increasingly merge with partners in other countries, which in turn increases the international competition among lawyers; “modern” disputes are hardly confined to national boundaries, etc. The individual contributions address various topics, ranging from the cultural dimension of the internationalisation of the practice of law, the future of the international practice of law as seen from different regional perspectives, the future of law firms and their management, the globalisation of legal education and training, international practice and new technologies as well as the repercussion of globalisation on the theory of (international) law. This book is interesting reading

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for lawyers practising in international law and who are concerned with the future of law in the era of globalisation. Stephan Wittich University of Vienna

Piet Eeckhout/Takis Tridimas (eds.), The Yearbook of European Law, Vol. 19, 19992000, Oxford University Press, Oxford, 2000, ISBN 0-19-829939-7, 758 pp., GBP 127.50 Monumental as always the 1999-2000 Yearbook of European Law assembles a fine collection of academic contributions covering various aspects of European (Union) law. It is rounded up by very usefully condensed surveys of environmental law, of the developments under the European Convention on Human Rights, the Council of Europe and of the institutional law of the EU during 1998, 1999 and 2000. Turner and Munoz open their discussion on “Revising the Judicial Architecture of the European Union” by a statistical account of the case-load overwhelming the European Courts in Luxembourg before they address the reform proposals which have now been, at least partly, incorporated into the Nice Treaty. It is followed by a concise account of the “EU as an Actor under International Law” by Lenaerts and De Smijter who focus on the legal problems stemming from the EU’s WTO membership. Next O’Keefe and Keane look for the Fortress Europe in the “Shadow of Silhouette”, while Micklitz tries to find “Principles of Social Justice in European Private Law.” Sir Konrad Schiemann’s lecture on “Europe – Our Common Legal Principles” is followed by a highly useful analysis of “Transparency and the Emergence of a European Administrative Law” by Tomkins. A follow-up in this area is provided by Schonberg who analyses “Legal Certainty and Revocation of Administrative Decisions: A Comparative Study of English, French, and EC Law.” Substantive policy areas are discussed by Jones (“Television without Frontiers”), Zilioli and Selmayr (“The European Central Bank, its System and its Law”), and Dutheil de la Rochère (“EMU: Constitutional Aspect and External Representation”). In the following contribution Asariotis discusses “Antisuit Injunctions for Breach of a Choice of Forum Agreement: A Critical Review of the English Approach.” The Yearbook’s scholarly contributions are concluded by an enlightened overview of the “In and Out of the Internal Market: Recent developments on the Principle of Free Movement”. August Reinisch University of Vienna

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Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning. Edited by David Campbell & Philip Thomas. Ashgate, Aldershot, 2001, ISBN 1-85521-668-X, xxix+112 pp., GBP 40.00 Hohfeld’s ideas and his work, above all his “Fundamental Legal Conceptions” are timeless; nevertheless, his publications are unfortunately hardly available outside – and even within – the English speaking world. It is perhaps for this reason that Hohfeld’s work has not gained the reputation it deserves – another reason being, as Karl Llewellyn, one of Hohfeld’s students, had remarked, that “Hohfeld was a lonely figure who lacked the grace that makes for general popularity” (introduction by Nigel E. Simmonds, p. ix). This lack of popularity is particularly deplorable for the German speaking legal doctrine because Hohfeld’s pull to formalism, his exhaustive and succinct analysis of rights would certainly fit into the understanding of legal positivism. His insistence “to emphasize the importance of differentiating purely legal relations from the physical and mental facts that call such relations into being” (p. 5), his correlativity between rights and duties, his classifications and categorisations of “jural relations”, all this exemplifies intrinsic similarities with positivist approaches. This relationship is also illustrated by Hohfeld’s preference of rights over remedies which is described as incompatible with the “nature of the common law” (introduction by Simmonds, p. xxiii), a preference underlining the right-duty dichotomy and very similar to Kelsen’s distinction between “subjective right” and corresponding obligation1 (see also the reference in the introduction by Simmonds, p. xxi), or to the ideas advanced by Hart’s concept of law. Given these highly interesting interrelationships – which are still unexplored despite Hohefeld’s “essential modernity” (introduction by Simmonds, p. xxiii) –, it was about time to re-edit “Fundamental Legal Conceptions”. This deserving task was assumed by David Campbell and Philip Thomas of Cardiff Law School, who edited and published the book in Ashgate’s “Classical Jurisprudence Series”. Nigel E. Simmonds of Corpus Christi College, Cambridge, has written a new introduction which provides an added value by an analytic presentation of Hohfeld’s ideas. In sum, this new edition of Hohfeld’s “Fundamental Legal Conceptions as Applied in Judicial Reasoning” is fundamental reading for every lawyer interested in jurisprudence and legal theory. Stephan Wittich University of Vienna

1

H. Kelsen, Reine Rechtslehre 131 (1960).

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Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court. Observers’ Notes, Article by Article. Nomos, Baden-Baden, 1999, ISBN 37890-6173-5, xxviii+1.295 pp., EUR 197 Christian Rosbaud/Otto Triffterer (eds.), Rome Statute of the International Criminal Court Including the Final Act. Statut de Rome de la Cour Pénale Internationale – Estatuto de Roma de la Corte Penal Internacional – Römisches Statut des Internationalen Strafgerichtshofs. Nomos, Baden-Baden, 2000, ISBN 3-7890-64335, 456 pp., EUR 17.00 The Commentary on the Rome Statute by Professor Triffterer was published only one year after the Rome Statute was signed. It is thus not only the first commentary but to date also the only article by article commentary. It assembles 51 authors from more than 25 countries, the majority of whom had participated at the Rome conference in 1998 and in previous negotiations in the Preparatory Committee. This fact is particularly noteworthy since it guarantees that the interested reader obtains accurate information on the process and evolution of this milestone of international codification. As Triffterer states in his editorial note, the main purpose of the commentary was to “provide an insight into, and an appreciation of, the legal requirements of the Statute by analyzing and as far as necessary interpreting the elements of each article in the light of the applicable law mentioned in article 21” (p. v). Not only because of its timely publication but also – and more importantly – due to its solid and thorough analysis Professor Triffterer’s Commentary is an indispensable companion for every modern international criminal lawyer and others interested in the International Criminal Court. At least once the Statute will have entered into force will the true value of this book be revealed. But already today, Professor Triffterer’s commentary has certainly achieved the status as the definitive work in the field. Stephan Wittich University of Vienna

Joseph H. H. Weiler (ed.), The EU, the WTO, and the NAFTA. Towards a Common Law of International Trade? Oxford University Press, Oxford, 2000, ISBN 0-19829874-9, 238 pp., GBP 55.00 This book is another example of the fine series of the Collected Courses of the Academy of European Law held by the European University Institute each summer at its magnificent Villa Schifanoia overlooking the hills of Fiesole towards Florence. It assembles a number of outstanding contributions by prominent experts in their respective fields covering all three trade systems mentioned in the title of this volume. After a brief introduction by Joseph Weiler, calling for more intellectual interaction between GATT and EC specialists, Marise Cremona’s chapter on the EC External Commercial Policy after Amsterdam provides fascinating insights into the inter-

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linkages between Community legislation, intergovernmental Treaty reform and the role of the ECJ. She starts with the initial Commission proposals during the Maastricht negotiations to extend the Community’s Common Commercial Policy to a genuine external economic policy, covering among others services, intellectual property, investment, and competition. Then Cremona addresses the impact of the 1994 ECJ Opinion on the WTO Agreements in order to understand the inclusion of the new Article 133 (5) TEC at the Amsterdam Conference. This provision opens up the possibility to include services and intellectual property while requiring unanimity on the Council and consultation with the Parliament. It is not the author’s fault that Article 133 has again been amended at the Nice Conference. Her clarifying analysis remains valid, however. Cremona is followed by a fascinating piece by Robert Howse entitled “Adjudicative Legitimacy and Treaty Interpretation in International Trade Law: The Early Years of WTO Jurisprudence”. He provides a highly sophisticated overview of the procedural law issues addressed in the first years of WTO panel and Appellate Body decisions. His inquiry is based on an analytical framework of elements contributing to the legitimacy of WTO trade dispute settlement. The elements he uses are: fair procedures, coherence and integrity in legal interpretation as well as institutional sensitivity. Within this framework he covers issues such as NGO amicus briefs, taking into account of non-GATT law, the weight given to non-GATT expertise, etc. Next Jacques H. J. Bourgeois takes a closer look at “The European Court of Justice and the WTO: Problems and Challenges”. His contribution summarizes in an excellent way the long and protracted history of how the GATT/WTO has been “received” by the Community legal order. From jurisdictional questions with regard to the ECJ’s power to rule on WTO law to the perpetual cause célèbre of direct applicability of GATT law within the Community he portrays and comments all the major issues addressed by the European Court. Joanne Scott explores in her essay “On Kith and Kine (and Crustaceans)” the trade and environment issue in the EU and WTO by drawing from recent ECJ cases and WTO disputes such as Shrimp/Turtle and Hormone Treated Beef. Though the topic is already broadly addressed in the legal literature her contribution adds much valuable insight. In his chapter on “The North American Integration Regime and its Implication for the World Trading System” Frederick M. Abbott concentrates on fascinating issues of what he calls the “juridical interface of the NAFTA and WTO”. He shows that, both as a matter of substance and of procedure, the question whether the regional or the universal agreement should be accorded precedence is unclear. Based on existing, though scarce case law he also investigates which forum should be considered competent to decide claims arising under both trade agreements. In his brilliant concluding chapter Weiler lives up to the task set by the subtitle of these collected essays. He depicts the historical development of the ECJ’s free movement of goods jurisprudence as a contest between the radical elimination of all intra-Community trade obstacles under the Dassonville precedent and the respect of

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national regulatory powers as expressed in Keck. At the same time, he links these EC approaches towards the creation of a common market to the GATT rules on trade liberalization. The result is a condensed analysis of the difference and convergence of the WTO and the EC approach, rich of highly original insights. August Reinisch University of Vienna

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