Max Planck Yearbook of United Nations Law

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Max Planck Yearbook of United Nations Law Volume 5 2001

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Max Planck Yearbook of United Nations Law Volume 5 2001 Editors Jochen A. Frowein Riidiger Wolfrurm Assistant Editor Christiane E. Philipp

Max-Planck-Institut fur auslandisches offentliches Recht und Volkerrecht

KLUWER LAW INTERNATIONAL THE HAGUE / LONDON / NEW YORK

A C.I.P. Catalogue record for this book is available from the Library of Congress

ISBN 90-411-1723-7 Published by Kluwer Law International, P.O. Box 85889,2508 CN The Hague, The Netherlands. Sold and distributed in North, Central and South America by Kluwer Law International, 101 Philip Drive, Norwell, MA 02061, U.S.A. [email protected] In all other countries, sold and distributed by Kluwer Law International, Distribution Centre, P.O. Box 322,3300 AH Dordrecht,The Netherlands. This book should be cited as follows: Max Planck UNYB

Printed on acid-free paper

All Rights Reserved © 2001 Kluwer Law International Kluwer Law International incorporates the imprint of Martinus Nijhoff Publishers. No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner. Printed in the Netherlands.

Contents List of Contributors Abbreviations

IX XIII

*Anand, Ram Prakash, Enhancing the Acceptability of Compulsory Procedures of International Dispute Settlement

1

*Watts, Sir Arthur, Enhancing the Effectiveness of Procedures of International Dispute Settlement

21

*Warioba, Joseph Sinde, Monitoring Compliance with and Enforcement of Binding Decisions of International Courts

41

*Orrego Vicuna, Francisco, Individuals and Non-State Entities before International Courts and Tribunals

53

Oetters-Frahm, Karin, Multiplication of International Courts and Tribunals and Conflicting Jurisdiction — Problems and Possible Solutions

67

Stabn, Carsten, The United Nations Transitional Administration in Kosovo and East Timor: A First Analysis

105

VI

Max Planck UNYB 5 (2001)

Frohlich, Manuel, Keeping Track of UN Peace-keeping — Suez, Srebrenica, Rwanda and the Brahimi Report

185

Stroh, Dagmar, State Cooperation with the International Criminal Tribunals for the Former Yugoslavia and for Rwanda

249

Aust, Anthony, Counter-Terrorism — A New Approach

285

Symonides, Janusz, UNESCO's Contribution to the Progressive Development of Human Rights

307

Buergentkal, Thomas, The U.N. Human Rights Committee

341

Seibert-Fohr, Anja, Domestic Implementation of the International Covenant on Civil and Political Rights Pursuant to its article 2 para. 2

399

Roos, Stefanie Ricarda, The World Bank Inspection Panel in its Seventh Yean An Analysis of its Process, Mandate, and Desirability with special reference to the China (Tibet) case

473

Dinstein, Yoram, Protection of the Environment in International Armed Conflict

523

Oude Elferink, Alex G., The Determination of Compatible Conservation and Management Measures for Straddling and Highly Migratory Fish Stocks

551

Contents

VII

von Bogdandy, Armin, Law and Politics in the WTO — Strategies to Cope with a Deficient Relationship

609

Ohlhoff, Stefan / Schloemann, Hannes, Transcending the Nation-State? Private Parties and the Enforcement of International Trade Law

675

Book Reviews

735


List of Contributors Anand, Ram Prakash Professor Emeritus of International Law, Jawaharlal Nehru University, New Delhi, India Aust, Anthony Deputy Legal Adviser, Foreign and Commonwealth Office, London; former Legal Adviser to the UK Mission to the United Nations in New York, 1988-1991; he has advised on counter-terrorism law since 1991 and is Deputy Agent for the United Kingdom in the Case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriyav. United Kingdom) Buergenthal, Thomas Judge, International Court of Justice; Member, U.N. Human Rights Committee from 1995 to 1999 von Bogdandy, Armin Professor of Public Law, in particular, European Law and International Economic Law; Judge, OECD Nuclear Energy Tribunal Dinstein, Yoram Humboldt Fellow, Max Planck Institute for Comparative Public Law and International Law; Professor of International Law and ProPresident, Tel Aviv University (Israel); Member of the Institut de Droit International

X


Frohlich, Manuel Dr. phil, Assistant Professor at the Institute for Political Science, Department for Political Theory and History of Ideas, Friedrich-SchillerUniversity, Jena Oellers-Frahm, Karin Dr. iur., Fellow at the Max Planck Institute for Comparative Public Law and International Law Ohlhoff, Stefan Dr. iur., LL.M. (School of Oriental and African Studies, University of London), practices international trade, aviation and competition law at the international law firm Wilmer, Cutler & Pickering in Berlin; together with Mr. Schloemann, he received the ASIL's 2000 Francis Deak Award Oude Elferink, Alex G. Research Associate at the Netherlands Institute for the Law of the Sea, Utrecht University, The Netherlands Orrego Vicuna, Francisco Professor of International Law at the School of Law and Institute of International Studies of the University of Chile, Santiago; Membre de I lnstitut de Droit International; Judge and Vice-President, World Bank Administrative Tribunal Roos, Stefanie Ricarda M.A.L.D. (Tufts Univ.), Junior Fellow at the Max Planck Institute for Comparative Public Law and International Law; PhD candidate at the Faculty of Law, University of Bonn Seibert-Fohr, Anja LL.M. (George Washington University), Fellow at the Max Planck Institute for Comparative Public Law and International Law

List of Contributors

XI

Schloemann, Hannes LL.M. (New York University), admitted to the bar in Germany and New York, is a member of Baker & McKenzie's global WTO Practice Group. He practices international trade, public and European Union law at the firm's office; together with Mr. Ohlhoff, he received the ASIL's 2000 Francis Deak Award. Stahn, Carsten LL.M. (Koln-Paris), Junior Fellow at the Max Planck Institute for Comparative Public Law and International Law; PhD candidate at the Faculty of Law, University of Heidelberg Stroh, Dagmar Dr. iur.; currently at the European Court of Human Rights, Council of Europe, Strasbourg Symonides, Janusz Professor of International Law and International Relations, Warsaw University; former Director of the UNESCO Division for Peace and Human Rights (1989-2000) Watts, Sir Arthur Queen's Counsel; practising Barrister since 1991; Member, Institute of International Law; formerly Legal Adviser, Foreign and Commonwealth Office, 1987-1991 Warioba, Joseph Sinde Former Member of the International Tribunal for the Law of the Sea


Abbreviations ACABQ AD

A.F.D.I. AJDA AJIL Am.U.J.IntlL.&Poly

Am. U. L. Rev. Anu. Der. Internac. Arch, de Philos. du Droit Aus Pol. & Zeitgesch. Austrian J. Publ. Int. Law Austr. Yb. Int'l L.

AVR Brook.J. Int'l L. B.U. Int'l L.J. BVerfGE BYIL CaLW. Int'l L.J. Cal. W. L. Rev.

Advisory Committee on Administrative and Budgetary Questions Annual Digest of Public International Law Cases Annuaire Francais de Droit International Actua lite Juridique-Droit Administratif American Journal of International Law American University Journal of International Law and Policy American University Law Review Anuario de Derecbo Internacional Archives de Philosophie du Droit Aus Politik und Zeitgeschichte Austrian Journal of Public International Law Australian Yearbook of International Law Archiv des Volkerrechts Brooklyn Journal of International Law Boston University International Law Journal Decisions of the German Federal Constitutional Court British Yearbook of International Law California Western International Law Journal California Western Law Review

XIV

Case W. Res. J. Int'l L.


Case Western Reserve Journal of International Law CLJ Cambridge Law Journal CML Rev. Common Market Law Review Colo. J. Int'l Envtl. L. & Pol'y Colorado Journal of International Environmental Law and Policy Colum. Hum. Rts. L. Rev. Columbia Human Rights Law Review Columbia Journal of Transnational Law Colum. J. Transnat'l L. Colum. L. Rev. Columbia Law Review Comunita Internaz. La Comunita Internazionale Conn. J. Int'l L. Connecticut Journal of International Law Cornell Int'l L.J. Cornell International Law Journal CYIL Canadian Yearbook of International Law Den.J.Int'l. L. & Pol'y Denver Journal of International Law and Policy DGVR German Society of Public International Law Dick. J. Int'l L. Dickinson Journal of International Law Duke J. Comp. & Int'l L. Duke Journal of Comparative and International Law EA Europa-Archiv Economic and Social Council ECOSOC editor ed. editors eds EFTA European Free Trade Association exempli gratia e.g. EJIL European Journal of International Law ELJ European Law Journal Environmental Law Reports Envtl. L. Rep. EPIL Encyclopedia of Public International Law et al. et alii et seq. et sequentes

Abbreviations

XV

et cetera Europiiische Grundrechte Zeitschrift Europaische Zeitschrift fiir Wirtschaftsrecht Food and Agriculture Organization FAO Fordham International Law Journal Fordham Int'l L. J. Foreign Aff. Foreign Affairs Foreign Pol'y Foreign Policy Georgia Journal of International and Ga. J. Int'l & Comp. L. Comparative Law Geo. Int'l Envtl. L. Rev. Georgetown International Environmental Law Review Geo.L.J. Georgetown Law Journal Geo. Wash. J. Int'l L. & Econ. George Washington Journal of International Law and Economics Geo. Wash. L. Rev. George Washington Law Review GYIL German Yearbook of International Law Harv. Int'l L.J. Harvard International Law Journal Harv. L. Rev. Harvard Law Review Hastings Int'l & Comp. L. Rev. Hastings International and Comparative Law Review HRLJ Human Rights Law Journal HRQ Human Rights Quarterly HuV-I Humanitares Volkerrecht - Informationsschrift IAEA International Atomic Energy Agency ibid. ibidem; in the same place IBRD International Bank for Reconstruction and Development ICAO International Civil Aviation Organisation ICJ International Court of Justice ICLQ International and Comparative Law Quarterly

etc. EuGRZ EuZW

XVI

ICSID id. IDA i.e. IFAD

IJIL ILA ILC ILCYB ILM ILO ILR ILSAJ.Int'lL.

IMF IMO Ind. J. Global Legal Stud. Int'lAff. Int'l Law. Int'l Rev. of the Red Cross Iowa L. Rev. IP Isr. L. R. Isr. Y.B. Hum. Rts. J. Int'lAff. JIEL JIR JPR JWT

Max Planck UNYB 5 (2001) International Centre for the Settlement of Investment Disputes idem; the same International Development Association id est; that is to say International Fund for Agricultural Development Indian Journal of International Law International Law Association International Law Commission Yearbook of the International Law Commission International Legal Materials International Labour Organization International Law Reports ILSA Journal of International Law (International Law Students Association) International Monetary Fund International Maritime Organization Indian Journal of Global Legal Studies International Affairs The International Lawyer International Review of the Red Cross Iowa Law Review Die Internationale Politik Israel Law Review Israel Yearbook on Human Rights Journal of International Affairs Journal of International Economic Law Jahrbuch fur internationales Recht Journal of Peace Research Journal of World Trade

Abbreviations JWTL LJIL LNTS McGillL.J. MichJ.Im'lL. Mich. L. Rev. Mil. L. Rev. Minn. J. Global Trade NAFTA NATO NILR NJCL NordJ.Int'lL. NQHR NYIL N.Y.U.J.Int'lL.&Pol.

N. Y. U. L. Rev. Ocean & Coastal L. J. ODILA OZoRV OJEC Pace Int'l Law Rev. PCIJ

Pol. Sci. RADIO RBDI

XVII Journal of World Trade Law Leiden Journal of International Law League of Nations Treaty Series McGill Law Journal Michigan Journal of International Law Michigan Law Review Military Law Review Minnesota Journal of Global Trade North American Free Trade Area North Atlantic Treaty Organization Netherlands International Law Review National Journal of Constitutional Law Nordic Journal of International Law Netherlands Quarterly of Human Rights Netherlands Yearbook of International Law New York University Journal of International Law and Politics New York University Law Review Ocean and Coastal Law Journal Ocean Development and International Law Osterreichische Zeitscbrift fur offentliches Recht und Volkerrecht Official Journal of the European Communities Pace International Law Review Permanent Court of International Justice Political Science Revue Africaine de Droit International et Compare Revue Beige de Droit International

XVIII

RdC RDI RECIEL REDI Rev. Dr. Mil. Dr. Guerre

Rev. ICR RGDIP RIAA

Riv. Dir. Int. RTDE RUDH San Diego L. Rev. Santa Clara L. Rev. Stanford J. Int'lL. SZIER/RSDIE

Temp. Int'l & Comp. L. J. Tex. Int'l L.J. Tex. L. Rev. Transnat'l. L. & Contemp. Probs TulEnvtl.L.J. Tul. J. Int'l & Comp. L.


Recueil des Cours de I'Academic de Droit International Revue de Droit International, de Sciences Diplomatique* et Politiques Review of European Community and International Environmental Law Revista Espanola de Derecho Internacional Revue de Droit Militaire et de Droit de la Guerre Revue Internationale de la Croix Rouge Revue Generate de Droit International Public Reports of International Arbitral Awards Rivista di Diritto Internazionale Revue TrimestrieUe de Droit Europeen Revue Universelle des Droits de L'homme San Diego Law Review Santa Clara Law Review Stanford Journal of International Law Scbweizerische Zeitschrift fur internationales und europaisches Recht/Revue Suisse de Droit International et de Droit Europeen Temple International and Comparative Law Journal Texas International Law Journal Texas Law Review Transnational Law and Contemporary Problems Tulane Environmental Law Journal Tulane Journal of International and Comparative Law

Abbreviations

UCLAJ.Envtl.L.&Pol'y

UCLAJ. Int'lL.& Foreign Aff. UCLA Pac. Basin L.J. UNCIO UNCITRAL UNCTAD UNDP UNEP UNESCO UNFPA UNHCR UNICEF UNIDO UNTTAR UNJYB UNOSOM UNPROFOR UNRWA

UNTS UNU

XIX

University of California Los Angeles Journal of Environmental Law and Policy University of California Los Angeles Journal of International Law and Foreign Affairs University of California Los Angeles Pacific Basin Law Journal United Nations Conference on International Organization United Nations Commission on International Trade Law United Nations Conference on Trade and Development United Nations Development Programme United Nations Environment Programme United Nations Educational, Scientific and Cultural Organization United Nations Population Fund United Nations High Commissioner for Refugees United Nations Children's Fund United Nations Industrial Development Organization United Nations Institute for Training and Research United Nations Juridical Yearbook United Nations Operation in Somalia United Nations Protection Force in (former) Yugoslavia United Nations Relief and Works Agency for Palestine Refugees in the Near East United Nations Treaty Series United Nations University

XX

UNYB UPU Va.J.Int'lL. Va. L. Rev. Vand. J. Transnat'l L.

Vol. WDStRl VRU W. Comp. Wash. L. Rev. WFP WIPO WMO WTO Yale Hum. Rts. Dev. L. J.

YaleL.J. ZaoRV ZEuS ZRP Z. vgl. R. Wiss.


Yearbook of the United Nations Universal Postal Union Virginia Journal of International Law Virginia Law Review Vanderbilt Journal of Transnational Law Volume Veroffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer Verfassung und Recht in Ubersee World Competition Washington Law Review World Food Programme World Intellectual Property Organization World Meteorological Organization World Trade Organization Yale Human Rights & Development Law Journal Yale Law Journal Zeitschrift fur auslandisches offentliches Recht und Volkerrecht Zeitschrift fur europarechtlicbe Studien Zeitschrift fur Recbtspolitik Zeitschrift fur die vergleichende Rechtswissenschaft

Enhancing the Acceptability of Compulsory Procedures of International Dispute Settlement* Ram Prakash Anand*

I. Law and Peace If peace without law is unthinkable, peace under law is much to be striven for and desired. In humanity's long struggle for peace, one of the oldest, most important and appropriate, approaches to peace has been the peaceful settlement of disputes on the basis of law. In all civilized societies, disputes between individuals are settled in courts under the rule of law. But the law of jungle still prevails as the ultimate mechanism to settle disputes between nations. If we want to avoid the bloodbath of continuous warfare we see all around in our international society, we should be prepared to resolve our disputes through impartial third-party settlement, if direct negotiations between parties fail. That is the only civilized way to settle disputes. Supremacy of law within nations ensures freedom of individuals. Supremacy of law in the community of nations, it is hoped, will free mankind from the dread of endemic violence and destruction that we see and hear everyday all over the world.

*

This paper was presented originally at the International Symposium "The International Dispute Settlement System" organized on the occasion of the moving of the International Tribunal for the Law of the Sea into its new building by the Max Planck Institute for Comparative Public Law and International Law in Hamburg, 23 September 2000. 1

JA. Frowein and R. Wolfram (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 1-20. © 2001 Kluwer Law International Printed in the Netherlands.

2


II. International Law Deficient: "Pyramid without a Base" But as regards institutions and procedures for adjustment of disputes, international law has been woefully deficient — a jungle law imperfectly ameliorated by a fragmentary and hesitant progress in the direction of a legal order. The precariousness of the present situation can be visualized from the fact that whereas it is difficult to establish arbitration courts — which in any case remain ad hoc and impermanent — and the Permanent Court of Arbitration has been little used, we have an ICJ, which is sitting "precariously at the peak of a pyramid which has no enduring base. To say that the institutions of which the pyramid consists are primitive and incomplete is to speak mildly."1 Although, as we shall see, the jurisdiction of the World Court has been progressively extended and it has gained tremendous and well-deserved prestige and confidence by its excellent and conscientious work, it is unable to realize fully "the potentialities of its greatness", it is pointed out, because of the insecure foundations upon which its enterprise must rest.2 It needs, it has been suggested, a more enduring base if it is to fulfil the hopes which it has inspired. For, as Edwin Dickinson put it, "... building peace requires effort from top to bottom. Reflecting some aspects of the task, one is tempted to say from bottom to top. Clearly the overall objective must be something better coordinated and more nearly complete. Work on the foundations may be more arduous and less dramatic, but ultimately such work must be done and done well if confidence is to be cultivated and the good order extended."3

III. Proliferation of New International Tribunals Although it has been done rather haphazardly and "without any overall plan", there has been a proliferation of several new international tribunals during the last 50 years. Besides, several ad hoc arbitration tribunals which have been set up, and the so-called "commercial arbitrations" held under established rules such as UNCITRAL or ICSID, or 1 2 3

See, E. Dewitt Dickinson, Law and Peace, 1951,113. Dickinson, see above, 121. Dickinson, see note 1,121-122.

Anand, Enhancing the Acceptability of Compulsory Procedures

3

under municipal arbitration law, quite a number of other international judicial or quasi-judicial institutions have been established, such as the Iran-United States Claims Tribunal, and new mechanisms under the auspices of the WTO. There are too many such institutions to be enumerated. At the regional level, Europe has its European Court of Justice, its Commission and the Court of Human Rights, and a European mechanism for conciliation and arbitration set up within the framework of the OSCE. Several administrative tribunals have been established to deal with disputes arising between international organizations and their staff: the ILO Administrative Tribunal, the UN Administrative Tribunal, the World Bank Administrative Tribunal, and so on. The horror of war in Yugoslavia and Rwanda have led the UN Security Council to create two International Tribunals for crimes committed in the former Yugoslavia and in Rwanda. A new Permanent International Criminal Court is now proposed to be established.4 Even more interesting for us today is the International Tribunal for the Law of Sea which has been established under the Montego Bay Convention concluded in 1982 as part of a comprehensive system for the settlement of disputes laid down in the Convention. The Convention came into force in November 1994. Although there is a considerable overlapping in the jurisdictions of the Hamburg Tribunal and the ICJ5 the Law of the Sea Tribunal can deal with some important classes of disputes6 that probably could not go before the ICJ.

4

5

6

See, G. Guillaume, "The Future of International Judicial Institutions9, ICLQ 44 (1995), 848 et seq., (849). See also in this respect on the proposed court for Sierra Leone the Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, Doc. S/2000/915 of 4 October 2000. C.A. Fleischauer, "The Relationship between the International Court of Justice and the Newly Created International Tribunal for the Law of the Sea in Hamburg", Max Planck UNYB 1 (1997), 327 et seq. Disputes like the prompt release of vessels and crews under article 292 of the Convention on the Law of the Sea and in the matter of provisional measures under article 290 para. 5, and disputes concerning the international sea-bed area as provided in Part XI of the Convention. See Judge P. Chandrasekhara Rao, "The ITLOS and its Guidelines", IJIL 38 (1998), 371 et seq.

4


IV. No Structured Relationship, or System Between Different Kinds of Courts But despite all this proliferation of Courts, there is no "structured relationship" or "hierarchy or system" between them. As Judge R.Y. Jennings, President of the ICJ, pointed out, "they have just appeared as need or desire or ambitions promoted yet another one".7 As a result: "In this particular respect, contemporary international law is just a disordered medley. Suffice it to say that it is very difficult to try to make any sort of pattern, much less a structured relationship, of this mass of tribunals, whether important or petty. It is sometimes difficult to find out what is going on, much less to study it."8 This lack of "structured relationship" among different kinds of courts in the international system, where diverse organs exercising parts of the judicial system are not related to each other are, it is sometimes pointed out, a rather disturbing trend which may lead to conflicts of jurisdiction or contradiction in decisions increasing the indetermination rather than the determination of law.9 Some well-meaning scholars and judges are concerned about "the dangers that international law as a whole will become fragmented and unmanageable."10

7

8 9

10

R.Y. Jennings, "The Judiciary, International and National, and the Development of International Law", 7CZ.Q 45 (1996), 1 et seq., (5). Jennings, see above, 5. H. Thirlway, "The Law and Procedure of the International Court of Justice 1960-1989", BYIL 69 (1998), 1 et seq. But cf. S. Rosenne who points out that "there is no evidence to support the view that multiplicity of international judicial institutions for the settlement of disputes seriously impairs the unity of jurisprudence (a difficult proposition at the best of times). The Convention requires ITLOS to perform tasks that are beyond the capacity of the International Court under its present Statute. If only for that reason the cautious observer will hesitate before crying redundant." S. Rosenne, "Establishing the ITLOS", AJIL 89 (1995), 806 et seq., (814); see also A. Yankov, "ITLOS: its place within the dispute settlement system of the UN Law of the Sea Convention", IJIL 37 (1997), 356 et seq. Jennings, see note 7,60.


5

V. Jurisdiction of International Courts Besides the problems relating to the creation or establishment of different structures of peace and their relationship with each other, the most important issues relate to the jurisdiction of these courts. It is all too well-known that no state is under an obligation to submit its disputes to any third party settlement without its own consent. The ICJ has made it clear beyond any doubt that the jurisdiction of an international court "depends on the will of the parties" and that the jurisdiction exists in so far as the states have accepted it.11 Leaving aside ad hoc arbitration and other specialized international criminal tribunals on which jurisdiction is conferred by special agreements relating to their establishment, it may be mentioned that when the Permanent Court of International Justice was established in 1920 and again when its Statute was revised and the new ICJ was formed in 1945, general compulsory jurisdiction could not be conferred on the Court. The obligatory jurisdiction of the Court could be accepted either under treaties, bilateral or multilateral, or by unilateral declarations under the optional clause (Article 36 para. 2 of its Statute). The optional clause constituted an invitation to states to take courage and undertake this commitment even if only for a trial period and even if only for a limited range of disputes. But the unilateral form of these declarations and complete freedom assumed by states left them free to exclude wide matters from coming before the Court. This also made state practice under the optional clause dependent on international confidence in the Court. After 1920, as confidence in the Court grew, many states accepted its jurisdiction. In all 50 states accepted the statute.12

VI. Permanent Court of Justice largely a "European Court" Although the Permanent Court of International Justice had proved its worth and was the subject of general and well-merited praise at the San Francisco Conference for its decisions and advisory opinions — between 1922 and 1940 the Court pronounced 29 judgements and gave 27 11

12

See, R.P. Anand, quoting numerous cases in the World Court, International Courts and Contemporary Conflicts, 1974,194 et seq. HJ. Schlochauer, "Permanent Court of Justice", EPIL 1 (1980), 163 et seq.

6


advisory opinions — general compulsory jurisdiction could not be conferred on the new Court which replaced it.13 The Permanent Court truly represented the international community of its time. It was largely a "European Court" with a majority of European judges (with the notable exception of post-revolutionary Russia) in addition to judges from the United States, some Latin American Republics, as well as from China and Japan. The Court also reflected in its pronouncements, it is said, "the legal outlook of the Eurocentric community, which was strongly imbued with nineteenth century positivism."14

VII. International Court of Justice The situation had entirely changed when the Court started functioning in its new reincarnation as a part of the UN Organization under its new name, the International Court of Justice. Since it started functioning in the late 1940s, there was a general deterioration in the international situation. The division of the world into two main groups and the advent of the cold war led to a general weakening of the position of law in international relations. Not only was there a totally negative attitude of the Soviet Union and its allies towards the Court, but there was a general "decline of the optional clause" in the latter part of the 1940s and 1950s.15 Several Western and other countries, led by the United States, accepted the optional clause jurisdiction with such wide and farreaching reservations that it amounted to negation of the Court's jurisdiction.16 The same trend has continued to this day. Although 23 countries which had accepted the jurisdiction of the Permanent Court were deemed to have accepted the jurisdiction of the ICJ under Article 36 para. 5 of its Statute in 1945, not many more countries have come for13

14

15

16

See for an interesting comparison between jurisdiction conferred on the PCIJ and the ICJ, P. Couvreur, in: A.S. Muller/ D. Raic/J.M. Thuranszky (eds), International Court of Justice: its Future Role After Fifty Years, 1997, 96-97. G. M. Abi-Saab, "The International Court of Justice as a World Court", in: V. Lowe/ M. Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings, 1996,4. See C.H.M. Waldock, "The Decline of the Optional Clause", BYIL 32 (1955/56), 244 etseq. See Anand, see note 11, 53 et seq.


7

ward to accept the jurisdiction of the new Court. In fact 17 countries which had accepted the jurisdiction of the PCIJ under its optional clause, let their declarations lapse or terminated them. In 2000, out of 189 members of the international judicial community around 56 states had accepted the jurisdiction of the Court under Article 36 para. 2 of its Statute. Only nine without reservations. It is interesting to note that President Mikhail Gorbachev of the former Soviet Union called upon the permanent members of the Security Council to set an example by submitting to the ICJ. This aroused great interest and the Five held a number of meetings at legal advisers level with a view to drawing up a list of subjects which could be submitted to the Court in the event of a dispute. But no agreement could be reached.17 Compulsory jurisdiction of the Court may also be accepted through compromissory clauses in international treaties. But we find the same hesitation in accepting the Court's jurisdiction among most of the countries.

VIII. Jurisdiction of the Law of the Sea Tribunal There is a similar lack of enthusiasm in accepting the jurisdiction of the only other permanent court which has been recently created, the International Tribunal for the Law of the Sea which should have a great potential in the settlement of disputes relating to the law of the sea. Since not all countries were equally enthusiastic about this new Tribunal, the 1982 Law of the Sea Convention identifies in Part XV other means of settling disputes and leaves it to states to choose between the Tribunal, the ICJ, and various forms of arbitration. In 2000, out of 134 states which have ratified the Law of the Sea Convention, 29 have made a choice of procedure under Section 2 of Part XV.18 The rest are deemed to have accepted arbitration as the method of settlement of disputes. Further, states are not obliged to submit to the Tribunal their disputes which they consider of vital national concern. Thus, practically all disputes arising out of the exercise of sovereign rights or jurisdiction by 17

18

See President of the ICJ Judge Bedjaoui, in his address to the General Assembly on 11 October 1995. For further details see, Multilateral Treaties Deposited with the SecretaryGeneral, Status as at 31 December 1999, United Nations 2000,212 et seq.

8


a state in the EEZ concerning marine scientific research and fisheries are excluded from the compulsory procedures. Moreover, a state may declare in writing that it does not accept any compulsory procedure with regard to, inter alia, disputes concerning boundary delimitation, military activities and law enforcement activities in regard to marine scientific research and fisheries in the EEZ, as well as disputes in respect of which the Security Council is exercising its functions under the Charter.19

IX. International Court of Justice in Crisis from the very Beginning From the very beginning the ICJ was portrayed as in crisis as a result of the lack or loss of confidence by one or the other part of the international community. None of the big powers put much faith in the Court and avoided it as far as possible. If the United States included the selfjudging Connally reservation relating to domestic jurisdiction in its declaration under the optional clause which reduced the acceptance to a mere nullity, the United Kingdom revised its declaration four times within a few years, each time changing its reservations to suit its convenience.20 France withdrew its declaration after the Nuclear Test Cases in 1974. After 1960, with the acceleration of the decolonization process, as numerous Asian and African countries became independent, "the 'crisis of the Court* was perceived and analysed in terms of the distrust manifested by newly independent States towards the Court."21 Several explanations were sought to be given for this supposed distrust on the part of the Asian-African states in the judicial process and their preference for the diplomatic procedures. Besides their cultural differences and national traditions, the lengthy and onerous character of the judicial procedure, under representation of the Asian-African states on the bench, and the dissatisfaction of the new states with large parts of classical international law which legitimized their subjugation and generally favoured the interests of the erstwhile colonial powers, were given as 19

20 21

See Law of the Sea Convention, Part XV, Sections 2 and 3; see also Guillaume, see note 4, 855; S. Oda, "Dispute Settlement Prospects in the Law of the Sea", ICLQ 44 (1995), 863 et seq. Anand, see note 11,39. Abi-Saab, see note 14, 5.


9

the reasons for the hostile attitude of the new states towards international adjudication.22 The strongest blow to the confidence in the Court, especially amongst the Asian-African states, came in 1966 when the Court, by the casting vote of the President23, after nearly six years of proceedings costing millions of dollars, more than a dozen volumes of written proceedings, almost 300 hours of oral testimony, and more than 100 Court sessions, decided — or refused to decide — the South-West Africa Cases by declining to go into their merits on the basis of a matter of "antecedent character" which was not even argued by either of the parties. This most controversial decision — or lack of decision — frustrated and enraged politically conscious Africans, undermined the confidence of newly independent countries in the Court and its capacity to do justice and thrust the Court into an acute crisis.24 The African states, in particular, adopted "the cynical view that the ICJ was a white man's Court, dispensing white man's justice."25 It also evoked an extended and critical debate on the role of the Court in the General Assembly, leading to readjustment in the composition of the Court to make it more representative of the various parts of the international community. There was a steep decline in the work of the Court. So steep was the decline that for some time — from 21 June 1971 to 30 August 1971 — there was not a single case pending before the Court.26 For almost the next three years after 1971 it had little to do and "it was the subject of some humour about there being few cases and many judges."27

22

23

24 25

26

27

See R.P. Anand, "Attitude of the 'new* Asian-African countries towards the International Court of Justice", in his Studies in International Adjudication, 1969, 53 et seq.; Abi-Saab, see note 14, 5. The Court being equally divided 7 votes to 7. See South-West Africa Cases (Second Phase), ICJ Reports 1966,6 et seq. Anand, see note 22,119. A.O. Adede, "Judicial Settlement in Perspective", in: Muller/ Raic/ Thuranszky, see note 13,51. See R.P. Anand, "Role of International Adjudication", in: L. Gross, The Future of the International Court of Justice, 1976,2. See Judge Shahabuddeen, "The World Court at the Turn of the Century", in: Muller/ Raic/ Thuranszky, see note 13,20.

10


X. Self-Assessment and Change on the Part of Court One of the most important consequences of this crisis was a new selfassessment, a new self-awareness and change of attitude on the part of the Court itself. While earlier the Court was reserved in its relations with the UN, after this crisis the Court missed no opportunity to emphasize that it was part of the United Nations and its principal judicial organ, and put forward the law and principles of the Charter.28 The Court also revised its rules of procedure twice to make itself more efficient.29 In 1971 the Court gave its Advisory Opinion in the Namibia Case30 declaring illegal the continued occupation of Namibia by the Republic of South Africa following the termination of its mandate. The Court's stock further rose in the eyes of African countries when in 1975 it gave its Advisory Opinion in the Western Sahara Case.31 In this case the Court had occasion to discuss further the principles of decolonization and self-determination and made an important pronouncement on the concept of occupation as a means of acquiring title to territory in Africa.

XI. International Court Regains Confidence The Court was beginning to regain its confidence, especially the trust of the African countries. The confidence in the ICJ reached its high water mark after its final judgement on the merits on 27 June 1986 in the Nicaragua Case. Nicaragua appeared before the Court on the basis of its own and US declarations under the optional clause and charged that the United States was "using military force against Nicaragua and intervening in Nicaragua's internal affairs in violation of Nicaragua's sovereignty, territorial integrity and political independence and of the most fundamental and universally accepted principles of international law." The Court unanimously rejected United States objections and boldly held that it had jurisdiction to entertain the case on merits.32 Over the 28 29 30 31 32

Abi-Saab, see note 14,6. Guillaume, see note 4, 851. ICJ Reports 1971,16 et seq. ICJ Reports 1975,12 et seq. ICJ Reports 1984,415-419.


11

strongest objections of the United States, which withdrew from the case and cancelled its optional clause jurisdiction, the Court gave a decision on merits holding the United States responsible for its actions, as charged by Nicaragua.33 This was indeed a bold decision and the Court was well aware of the political risk it was taking an deciding the dispute against a Super Power and leader of the Western group of states even if it was "upholding the basic principles of contemporary international law and the Charter in the way it did in its judgement, and which it could not help doing as a court of law."34 This led to what was supposed to be a new crisis. Earlier it was said that the Third World had no confidence in the Court. But with this judgement, some people "started to contend that it is now the Western world that no longer has confidence in the Court, where it risks systematically being put into the minority."35 France had already withdrawn its jurisdiction under the optional clause after the Nuclear Test Cases. The United Kingdom was the only permanent member of the Security Council which had accepted optional clause jurisdiction which itself was full of gaps and reservations. The Court had, therefore, decided the Nicaragua Case at a very high cost, it was feared.36

XII Increase in Court's Work But these fears proved to be short-lived and unnecessary panic. The Court had indeed given proof of its impartiality, objectivity and independence. Even if, therefore, it would suffer in the volume of its work in the short run, it was bound to increase its credibility. Furthermore, with the collapse of communism, international tension between the Eastern and Western bloc decreased and cold war between them subsided. This new period was ushered in by a momentous event, the collapse of the Berlin Wall on one memorable day in 1989. "Other walls", as Judge Bedjaoui told the General Assembly in his address on

33 34 35 36

ICJ Reports 1986,14 et seq. Abi-Saab, see note 14,6. Ibid. See R. P. Anand, "The World Court on Trial", in: R.S. Pathak/ R.P. Dhokalia, International Law in Transition: Essays in Memory of Judge Nagendra Singh, 1992,253 et seq.

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11 October 1995, "erected in the minds of world's leaders and which previously constituted so many impediments to the Court's work", then began to fall.37 Charles de Visscher said, "general and prolonged political tensions are one of the gravest obstacles to regular recourse to international justice".38 Although tension is not altogether gone, it is much less prominent and much less debilitating. All these factors have led to a tremendous increase in the Court's work. In fact the Court was never so busy and has never had so many cases simultaneously in its docket. Even those who were sceptical yesterday are beginning to see the Court's potentiality. As President Mitterand of France, some ten years after France had withdrawn its declaration under the optional clause, said in 1984 in an address in the Great Hall of the Court: "[T]here can be no civil peace without judges, no peace in our international society without judges who are chosen at that level and represent the powerful moral and legal force of the Hall where all the peoples of the world gather."39 President Gorbachev of the Soviet Union in an article on "The Realities and the Guarantees of a Secure World", published in Pravda on 17 September 1987, said: "One should not forget the capacities of the International Court either. The General Assembly and the Security Council could approach it more often for consultative conclusions on international disputes. Its mandatory jurisdiction should be recognized by all on mutually agreed conditions. The permanent members of the Security Council, taking into account special responsibility, are to take the first step in that direction."40 The Court is now overloaded with judicial work. Judge Jennings, President of the Court, said to the General Assembly in his 1991 address: "Glancing at this list of cases, we can say one thing with assurance: this is indeed now a World Court, exhibiting in its daily work that quality of universality which is also a feature of the General Assem37

38 39 40

See Address by President Bedjaoui to the General Assembly on 11 October 1995. C. de Visscher, Theory and Reality in Public International Law, 1968,369. Quoted in Shahabuddeen, see note 27,24. Quoted in Adede, see note 25,62.


13

bly. I think there is every reason to believe that this new buoyancy of the Hague Court, which has been developing now for some time, is set to continue. A reason for that belief is that there is perhaps now a greater understanding among Governments of the role that an international Court can and should play in their relations with one another."41 It may also be mentioned that a Legal Aid Fund was established by the Secretary-General of the United Nations in 1989 to help the poor countries pursue their cases before the Court. This is an excellent move and can help some countries seek justice at the international level which many a time is beyond their reach.

XIII. Chambers of the Court The ICJ has also adapted itself to the new situation under its new rules revised in 1978. The Court offers access by states involved in a case to chambers of the Court consisting of a group of judges rather than the whole Court. "The number of judges to constitute such a chamber" is determined by the Court with the approval of the parties (Article 26 para. 2 of the Statute), and article 17 para. 2 of its revised rules states, "when the parties have agreed, the President shall ascertain their views regarding composition of the chamber, and shall report to the Court accordingly." According to Article 27 of the Statute, a judgement by a chamber "shall be considered as rendered by the Court." The chambers of the Court, it has been pointed out, offer "an attractive half-way house between international arbitration and adjudication", because it gives the states a more attractive "forum by permitting them a voice in the choice of judges."42 Proceedings before a chamber would be much less expensive than the establishment and funding of an arbitral tribunal.43

41

42

43

ICJ Yearbook 1991-1992, 207. See also Judge Shahabuddeen, see note 27, 22 et seq.; K. Highet, "The Peace Palace Heats Up: the World Court in Business Again", AJIL 85 (1991), 646 et seq. Jimenez de Arechaga, "The Amendments to the Rules of Procedure of the ICJ", AJIL 67 (1973), 1 et seq., (2). See S.H. Schwebel, "Reflections on the Role of the International Court of Justice", Wash. L .Rev. 61 (1986), 1061 et seq.

14


But despite the attractiveness of the chamber procedure for its "speed and informality" as well as the opportunity it provides to the litigating parties to choose certain members,44 the system of chambers has been strongly criticized on several grounds. Firstly, it is pointed out, it reduces "the ICJ to another Permanent Court of Arbitration, a mere list of judges or arbitrators from whom the parties pick and choose those they want to sit in their case." It diminishes the "institutional character of the Court and the stability and continuity of its composition." Moreover, as happened in the first chamber constituted in the Gulf of Maine Case where "the parties insisted on having a chamber composed exclusively of Western judges," this would endanger "the universal character of the Court".45 Luckily, this pitfall was avoided in the other three cases referred to chambers so far.46 Fears have also been expressed that the chamber system may fractionalize the Court, disrupting the universal development of international law.47 Apart from these theoretical objections, Judge R.Y. Jennings has referred to some practical difficulties for the Court and the waste of resources that chamber procedure leads to. As he pointed out: "The members of the Chamber are also at the same time members of the full Court. If, therefore, a chamber has one of these major cases on hand, the members of the Court who are also members of the chamber can do little else until the case is disposed of. In other words, whilst the chamber is working full time over its case, the rest of the Court in effect has to mark time until the chamber case is over."48 At this time when the full Court has a long list of important cases pending, he said, it "would seem intolerable that those cases should be held up by a chamber case involving perhaps only three of the members

44 45 46

47 48

Jennings, see note 7,38. Abi-Saab, see note 14, 9; Jennings, see note 7,38. Frontier Dispute (Burkina Faso vs. Mali), ICJ Reports 1985, 6 et seq.; Elettronica Sicula (United States vs. Italy), ICJ Reports 1987, 3 et seq.; Land, Island and Maritime Frontier Dispute (El Salvador vs. Houduras), ICJ Reports 1987,10 et seq. See Anand, see note 36,264. Jennings, see note 7, 38-39.


15

of the Court, but involving also just as much work for the Registrar and staff as a full Court case."49

XIV. Encouraging Trend As we have seen, there has been a lot of judicial activity during the last few years. Several new international tribunals have been created and we are sitting in the new building of the newest permanent court which has been established for the settlement of disputes under the Law of Sea Convention. Although extensive compulsory jurisdiction has not been conferred on this Tribunal for the Law of the Sea, nor for that matter even on the ICJ, the case load in the latter Court shows increasing interest of states in the judicial settlement of international disputes. There have of course been swings before in the work-load of the ICJ and certainly variations will occur in the future. But an awareness seems to be increasing of the need to recourse to judicial settlement as a useful procedure for resolving disputes in a civilized way, in much the same way as individuals do within a domestic system. States seem to be appreciating more and more the dictum of the PCIJ that, "judicial settlement of international disputes, with a view to which the Court has been established, is simply an alternative to the direct and friendly settlement of such disputes between the parties."50

XV. Limitations of the Judicial Process It must be realized, however, that the judicial process has its own limitations. Law is not a panacea to solve all the problems of the international society. As the Court itself said in the Northern Cameroon's Case that even if it finds that it has jurisdiction, "the Court is not compelled in every case to exercise that jurisdiction. There are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore. There may thus be an incompatibility between the desires of an applicant, or, indeed, of both parties to a case on the one hand, and on 49 50

Jennings, ibid. Free Zones Case, Order PCIJ Series A, No. 22 (1929), 13. See also Shahabuddeen, see note 27,23.

16


the other hand the duty of the Court to maintain its judicial character. The Court itself, and not the parties, must be the guardian of the Court's judicial integrity."51 It must be confessed that judicial procedure cannot, on the plane of mere fact, be a substitute for war. The judicial approach is limited by the fact that, given the fundamental nature of major disputes that arise in international relations and the clashes of political and economic interests, a judgement does not constitute a settlement. There is no doubt that the much-disputed line between legal and political questions is purely a subjective phenomenon of the minds and wills of the disputants. But the fact still remains that many issues will be as far from settlement after a judge has said all that a judge can properly say as they were before any such pronouncement. It must be admitted that by the very nature of international life, not all disputes can or will be submitted to the international courts. The problem is not that the courts cannot decide the disputes because of their inherent "political" nature, but rather that the states won't be prepared to submit disputes or to accept judicial decision in cases which involve their vital interests.52 Professor David Forsythe correctly stated: "The ICJ remains marginal in international relations because of the 'up-stream' concern by States that their Vital* interests not be entrusted to independent judges who will decide disputes with reference to legal rules. Even when the Court finds that the States have given their consent to ICJ jurisdiction, if the resulting judgement is bothersome enough, States from Albania to Iran, from Libya to the US will display defiance rather than compliance. That most States have complied with ICJ and PCIJ judgements means primarily that States gave their consent for World Court adjudication previously because the dispute was not seen as 'vital'".53 The assertion that if general compulsory jurisdiction could be established, the problem of war and illegal force would be solved, said Judge Jennings, rests: "upon an egregiously mistaken assumption that wars and other resorts to force are about what international lawyers would recognize 51 52

53

ICJ Reports, 1963,15 et seq., (29). See J.L. Brierly, "Vital Interests and the Law", BYIL 21(1944), 51 et seq. See also L.B. Sohn, "Expulsion of Political Disputes from Judicial Settlement", AJIL 38 (1944), 694 et seq. D.P. Forsythe, "The International Court of Justice at Fifty", in: Muller/ Raic/ Thuranszky, see note 13, 397.

Anandy Enhancing the Acceptability of Compulsory Procedures

17

as legal 'disputes' which would answer to the adversarial procedure of a court of justice. Some uses of force, or resort to war have indeed had legal disputes at the core of the matter — notably disputes about boundaries or entitlement to territory, both land and sea — but many again have not. Neither of the World Wars have even remotely lent themselves to so simplistic an analysis."54 So long as the world remains as unorganized as at present, and the security and welfare of each state are left in fact to depend upon itself alone, world history can not be turned into a Court procedure. Similarly, when states demand a change in the law, which they challenge as obsolete, a decision according to law can hardly help in solving the dispute. Indeed, the authoritative declaration of legal rights and wrongs may even impede settlement by encouraging the rigidity of one side in the controversy which might have been settled by a political compromise.55 To again quote Judge Jennings, who said about grave disputes which are neither simply legal nor simply political: "[A] Court, in deciding the legal question in legal terms, might be prejudicing or indeed frustrating decisions of which it may not itself be in a position even to understand, other than perhaps marginally. The Court has no expertise or even experience in the political, military and strategic criteria that a political body would expect to apply to this kind of political decision."56 He added that sometimes it is better not to settle at all but to manage the dispute and referred to "the successful treaty regime for Antarctica which wholly depends upon an agreement not to settle the underlying disputes."57 It has been correctly pointed out that generally "States have mutual, vested interests in settling (or managing, or just continuing) disputes out of Court. It is because of States' perception of what is in their national interest, i.e. freedom of manoeuvre as compared to submission to a workable and effective rule of law — that the ICJ has averaged only about three cases per year over the last 50 years."58

54 55 56 57

58

Jennings, see note 7, 53. Anand, see note 11,231 et seq. Jennings, see note 7,31. Jennings, ibid., footnote. Emphasis in original. See a detailed discussion of this dichotomy of legal and political disputes, Anand, see note 11,230-241. Forsythe, see note 53,401.

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XVI. Wider Compulsory Jurisdiction Helpful But though compulsory adjudication in comparatively ordinary, nonpolitical, so-called "run of the mill" cases is not an effective substitute for war, that does not mean that it is not in itself a powerful constituent element of peace. While admitting that adjudication must be supplemented by approaches of a different order and that other more informal political methods of pacific settlement of international disputes must be provided, it is essential to increase the jurisdiction of the courts. Even by solving minor day to day disputes, they can help create a law habit among states and create an atmosphere of peace. By deciding these ordinary economic, business or even boundary disputes without much fanfare, they can render a most useful service, as courts do in the traditional field, because by far the greatest number of disputes relate to these matters which, if peacefully settled, can encourage smooth intercourse between states in the present inter-dependent world. It has been well said by an experienced judge: "After all, it is the habit of living under the law, and with habitual and normal recourse to the agencies of the law, that will make violence and aggression in defiance of the law more difficult. What we need is not just a crisis law but a law for normal existence."59 Basically the principal function of law "is to provide clear principles and rules for the routine ordering of a society by the rule of law".60

XVII. Conclusions Institutions and procedures for the settlement of disputes under law are at once the hope and despair of all those who reflect seriously upon relations among nations. One of the basic functions of a civilized legal order is a system of courts with jurisdiction to decide every dispute that might arise. In the international society, besides ad hoc arbitration courts, we have a number of courts established during the last 50 years but without any regular plan or structured relationship. We have the ICJ which is truly a World Court without any regional restriction as to subject matter in its contentious jurisdiction. But it is restricted as to panics of cases which come before it. Under Article 34 para. 1 of its 59 60

Jennings, see note 7, 54. Ibid.


19

Statute, "only States may be parties In cases before the Court." Although, individuals can and do enjoy "rights" directly under modern international law, the Hague Court is increasingly cut off from a growing and very important part of the international law system. Neither multilateral corporations, nor NGOs, nor even the United Nations itself can appear before the Court as applicants or respondents. This is an anachronism created in 1922 which has not been rectified. There is a dilemma. According to a former President of the World Court, if Article 34 para. 1 of that Statute is modified, it "would probably produce a flow of cases with which the Court, with its present staff, organization, and resources, could not possibly cope."61 Another possible remedy is of course the creation of other kinds of international tribunals and courts which has been done with a lot of enthusiasm. Although the proliferation of new, specialized and permanent courts, like the Law of the Sea Tribunal, are welcome, they all have limited jurisdiction, limited sometimes by region, sometimes by subject matter, sometimes by both. But because of their rather haphazard and unplanned growth, there is a serious danger that international law may "become fragmented as each tribunal... will tend to produce a specific variety of international law."62 In a developed system of courts, as we find in most states, there are legally defined relationships between courts, whether legally defined subordination or legally recognized independence. There is usually one court at the top of the hierarchy. It is suggested that "the ICJ, being the principal judicial organ of the United Nations, and moreover having a general jurisdiction over all questions of international law, would seem to apt to fill this role."63 But we will have to solve the problems of Article 34 para. 1 of the Statute, and its relationship with the specialized tribunals. Although far-reaching jurisdiction has not been conferred on the International Court, nor is it likely to solve important economic or political problems involving vital interests of states, it is still one of the most successful organs of the United Nations. It is too much to expect states to accept unqualified compulsory jurisdiction immediately. The maxim "calculate the limits of the possible" should be kept in mind. The busier the Court gets, the better it is for the world society because it can help promote a more peaceful and less lawless world. It can cer61 62 63

Jennings, see note 7, 38-39. Abi Saab, quoted by Jennings see note 7,61. Jennings, see note 7,63.

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tainly help reduce tension between states by sorting out intricate facts and clarifying complicated law in numerous disputes that arise between them. Let us remember that each day of peace is a time for the extension of law and every extension of law a reinforcement of peace.

Enhancing the Effectiveness of Procedures of International Dispute Settlement* Sir Arthur Watts*

L Introduction Let me begin by stating the obvious: there is no single set of rules and practices governing the international judicial process — for there is no single such process. Instead there are many tribunals, each with its own procedures for settling disputes, often set out in the form of a Statute supplemented by more specific Rules of Court. The procedures of those different tribunals reflect their very different characteristics, such as their world-wide, or regional scope; or their purely bilateral nature; or their character as standing tribunals or as ad hoc tribunals; or the limited, or unlimited, subject-matter of the disputes which may be brought before them. While there is, of course, much procedural borrowing of practices by one tribunal from others and while certain principles may find expression in the procedures of many tribunals, yet one cannot speak of "international rules of procedure". Questions can in practice only be pursued on a tribunal-by-tribunal basis. There is a further problem about the topic I am addressing, and it is perhaps more fundamental. Its implication is that inter-state judicial settlement procedures are ineffective — or at least not as effective as *


J.A. FroweinandR. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 21-39. © 2001 Kluwer Law International. Printed in the Netherlands.

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they might be and are in need of improvement. Well, yes: they can indeed be improved — nothing is perfect. But lurking behind that rather obvious implication is another — that the real problem with international judicial settlement lies in the procedures and practices of the various tribunals: improve them, the suggestion seems to be, and all will be well. But it will not be; because that is not where the real problem lies. If we stand back and look at the broad picture of international dispute settlement by judicial procedures, what is striking is how few disputes are in fact referred for settlement in that way. Nowadays it is widely thought that the ICJ (and its predecessor), after a relatively slow start and even, two or three decades ago, a period which could be regarded as almost one of decline, is now again more active, with more cases being referred to it, by more states, than ever before. Over the present Court's fifty-odd years of existence it has delivered a little under a hundred judgments in contentious cases between states. The Court's current website lists 23 cases as being pending before it on 22 June 2000. The figure for judgments delivered is, it must be acknowledged, not all that impressive for half a century's activity: and the size of its present list of outstanding cases, while comforting in terms of the willingness of states to have recourse to the Court, must cause concern in terms of its ability to handle those cases in the near future. Those figures are, however, not quite what they seem. Quite a number of the judgments delivered have been on Preliminary Objections, resulting in the dismissal of the case rather than its progress towards judicial settlement. Moreover, the overall total of judgments delivered counts as separate judgments what are in fact judgments on different aspects of the same dispute. The number of disputes resolved by the Court remains depressingly small in a world which for the whole period of the Court's existence has experienced no shortage of disputes, large and small. And the current list of outstanding cases rapidly shrinks when those cases which are in form separate proceedings (e.g. the two Lockerbie Cases against the United Kingdom and the United States, and the eight Cases brought by Yugoslavia against various NATO states) are counted, as reality dictates, as in substance involving only single disputes rather than several distinct disputes. Writing just two years ago an authoritative commentator observed1 that "it is evi-

J.G. Merrills, International Dispute Settlement, 3rd edition 1998,164.

Watts, Enhancing the Effectiveness of International Dispute Settlement

23

dent that only a handful of disputes have actually been decided by the Court" and that the picture is one "of a situation in which litigation is a wholly exceptional act and the vast majority of disputes*are handled by other means". What we have is far too many disputes, all over the world, and little readiness to resolve them by recourse to impartial third party adjudication. If we are considering how effective international judicial dispute settlement procedures are, it is difficult to avoid the conclusion that they are largely marginal to the achievement of that which they have been established to secure, namely the peaceful resolution of inter-state disputes in accordance with the law. But then let us equally be clear where the fault lies. It lies not with the international judicial processes themselves: for all their deficiencies they do a pretty good job, when given the opportunity. The heart of the problem lies in the attitude of states, which are generally remarkably unwilling to refer their disputes with each other to impartial third party adjudication, whether by standing tribunals such as the ICJ or by ad hoc arbitral tribunals. Many reasons have been advanced to explain this reluctance, but it would take me beyond the proper limits of this paper to attempt to examine them here: I will observe only that states remain stubbornly attached to what they see as their sovereignty, and consequently highly resistant to any third party "interference" with their exercise of it. Looked at in a very broad perspective, the international community has at its disposal quite enough judicial processes for its dispute settlement purposes, and those processes work well enough to lead to satisfactory results. Far more than the establishment of new tribunals, or the elaboration of improved procedures for those that already exist, what is needed, if international judicial dispute settlement procedures are to be more effective in fulfilling their function of actually leading to the settlement of disputes, is a much greater willingness on the part of states to use the processes and procedures which are already available to them. Without that, the most perfect procedures for the functioning of international tribunals will not be of great assistance. Let me leave those very general remarks there, with just the final observation that they provide a necessary background to any consideration of the ways in which international tribunals operate in fulfilling their function of settling such disputes as are referred to them.

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II. Areas of Procedural Concern Here we come up against the first problem which I noted at the outset — the lack of any across-the-board international judicial dispute settlement procedural system, and the need, consequently, to look at tribunals on an individual basis. For present purposes, I shall concentrate principally on the procedures of the ICJ. Even then, it will be possible to take only a quick look at a few of the more detailed procedural areas which seem to me to have some relevance to the effectiveness of international judicial tribunals. Some of these areas may be considered as "mainstream" topics, but others are often overlooked.

1. The Position of Counsel Let me begin by giving some consideration to the relationship between international courts and counsel who appear before them. In preparing their cases before an international tribunal states are, of course, likely to seek the assistance of counsel — that is, speaking very generally, lawyers outside the government service who are qualified in their various states to advise on legal matters. And, of course, states may well, if the case requires it, consult others than lawyers — economists, geographers, environmental experts, and so on. But that stage of case preparation is not my present concern, which is rather with what happens at the later stage, when a case gets to court. Article 42 of the Statute of the ICJ provides that the parties "shall be represented by agents", and "may have the assistance of counsel or advocates before the Court". Article 43 of the Statute provides that the procedure shall consist of a written and an oral part, and then provides (para. 5) that "The oral proceedings shall consist of the hearing by the Court of witnesses, experts, agents, counsel, and advocates". Similar provisions apply for the International Tribunal for the Law of the Sea.2 Neither the Statute of the ICJ (nor its Rules), nor the Statute or Rules of the International Tribunal for the Law of the Sea (ITLOS), define what is meant by "counsel" or "advocate". In practice the ICJ at 2

See Rules of the Tribunal, arts 44 para. 3, 53, 88 para. 1 (text published in: ITLOS (ed.), Basic Texts, 1998). While many of the Tribunal's procedural provisions are in substance similar to those which apply for the ICJ, their distribution between the Tribunal's Statute (in Annex VI to the Convention on the Law of the Sea 1982) and its Rules is different.


25

least takes a relaxed view of the matter: it does not, for example, insist that in order to be permitted to address the Court as counsel or advocate a person must have a right of audience before the courts of the state in which he or she is qualified. It does not even insist that the person addressing it be a lawyer at all. Leaving aside the rather special position of agents, the Court seems in effect to consider that if the state puts forward a person to address the Court, that person thereby is a "counsel or advocate", and will appear as such in the list of persons appearing before the Court. Although this may seem a small point, it has implications which are worth exploring. For it reflects on the role which international judicial processes attribute to oral hearings. In the common law system, the oral nature of judicial proceedings is central to the way in which the system works. There is a belief that argument presented orally, and tested orally both by the other side and by the Court, and supported by evidence given and tested orally before the Court, is a sound — and some would say the best — way of determining the rights and wrongs of the dispute before the Court. But other legal systems, and particularly those based on the Code Napoleon, take a different view of the value of oral proceedings, preferring to see arguments and evidence put before the Court in writing. Between those two polar extremes, a whole range of approaches is to be found around the world. No one system's practices can be dominant where, as with the ICJ, the body as a whole must represent "the main forms of civilisation and ... the principal legal systems of the world.." (Article 9): a similar but not identical provision applies for the Tribunal for the Law of the Sea.3 International tribunals tend, at least in form, to embody a combination of the "oral" and "written" traditions. There are written pleadings, and when the written pleadings are closed, oral hearings then take place, with the oral presentation by the parties of their cases and with the possibility of evidence being heard orally (although written evidence is equally possible, and in practice more usual). Two important elements of the common law tradition are, however, conspicuous by their general absence at the international level, which therefore somewhat modifies the value of the oral phase of international litigation. One is the oral

3

Annex VI to the Convention on the Law of the Sea 1982, article 2 para. 2, requiring that in the membership of the Tribunal "the representation of the principal legal systems of the world and equitable geographical distribution shall be assured".

26


questioning of counsel by the Court; the other is the shared professional legal backgrounds of judges and counsel. The possibility of oral questioning of counsel by the Court during the course of counsel's presentation of argument is an essential element in ensuring that the Court fully follows counsel's argument as it develops, and can test it in discussion with counsel. Before international tribunals, however, this is scarcely practicable. When the tribunal consists of 15 members, as with the ICJ, or 21, as with ITLOS, such oral interruption of counsel's presentation of a state's case would be extremely disruptive. The practice is accordingly for any questions to be put to the parties at the end of some relevant stage in the proceedings before the Court, and for the parties to be given time in which to answer them, which they will usually do in writing. But two other factors also come into play. One is that Judges are not well placed to ask questions of counsel unless they have fully and carefully studied the case papers in advance of the oral proceedings; and there are grounds for thinking that this may not always be the practice of all judges on international tribunals. The other factor is that counsel are speaking for the state they are representing, and states are reluctant to allow counsel — who will often be nationals of some other country — full freedom to present their arguments in whatever way they might think best. The normal practice is for counsel's speeches to be carefully written out in advance, and checked and cleared as necessary, and then read out to the Court by counsel. Another consideration supporting this practice of counsel reading written speeches is the advisability of counsel letting interpreters have a copy of their texts, so as to ensure the best possible interpretations for the benefit of the other party and the members of the Court. With such carefully prepared texts, the scope for interruption of counsel by judges is greatly reduced — particularly bearing in mind the time-lag in interpretation before some judges will have heard what counsel is saying. At the same time, the need for questions is somewhat reduced, since "oral" statements are quickly available in written form in counsel's own words. Indeed, it is not too fanciful to regard "oral" proceedings as in large part another two rounds of written pleadings, serving the purpose of giving an overall view of the case and sharpening the issues in dispute, presenting them with an emphasis which will be lacking in written pleadings. They are listened to, sometimes with interest, by members of the court, and when, for example, matters of geography are in issue their oral presentation and illustration by the use of maps can be of particular assistance to the court: but the predominant


27

impression is that the oral pleadings are carefully studied only in their written form, along with all the other written pleadings in the case. Turning to the matter of the shared professional legal backgrounds of judges and counsel, it is clear that where judges and counsel share a common professional background, each knows what to expect of the other as regards behaviour in court and the presentation of the client's case. The proceedings in a domestic court take place against the background of a system of professional ethics which, typically, make it clear what a Court may expect of counsel, and what counsel may expect of the Court. Inevitably, no one system of professional ethics underpins the behaviour of Court and counsel in proceedings before international tribunals: not only will the judges represent different legal traditions, but even counsel on the same team will often come from different legal professional backgrounds. Beyond basic assumptions of honesty and integrity, a Court can assume very little of counsel; beyond similar basic assumptions of impartiality and a desire to dispense justice, counsel can assume very little of the Court. From personal experience I can offer a clear and very practical example. Many rules of international law are crystallised in the major quasi-legislative conventions based on the work of the ILC. Counsel wanted to invoke one of those rules in his state's written pleadings. He referred to Article x, which set out the rule. He quoted it in the pleading, setting out paras 1 and 2. And therefore, the pleading argued, this clearly showed such-and-such. Counsel's quotation of paras 1 and 2 was wholly accurate, and those paragraphs did indeed set out the rule. But he omitted the last words of para. 2, which qualified the rule by saying (in effect) that it applied "except as provided in the following paragraphs": there followed three further paragraphs setting out various exceptions, which were very relevant to the case in hand. To an English lawyer that kind of misleading, partial quotation is contrary to our code of professional conduct and to counsel's duty to the court. In international proceedings counsel will by no means take that view, and many governments would be horrified if they did. But that difference in attitude is not in itself the point, which is that the English court knows that it is counsel's duty to put everything relevant before the court, and counsel knows that the court knows the extent of counsel's duty: the court can rely on counsel assisting the court in that way. Moreover, an English court not only knows that it can rely on counsel behaving in certain ways, it also knows that barristers appearing before it are subject to a system of professional discipline should they fail to comply

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with their professional code of conduct. The same is obviously not true of international tribunals, which cannot therefore rely on counsel in the same way. What matters, for my immediate purposes, is not so much which way of behaving is right or wrong, but rather whether the way counsel presents his case fits in with the professional expectations and assumptions of the Court. If the Court assumes that counsel will make full disclosure of everything relevant, but counsel takes the view that all's fair in love and litigation — that "anything goes" so long as it advances his client's case — then the scope for confusion is immense and the interests of justice are damaged. There is something missing in a judicial system, such as the international judicial system, which has no clear code of professional ethics to guide those who practise within it, and equally has no procedures by which to regulate the conduct of those who may transgress against that code. It would seem to be essential for both counsel and the Court to be playing by the same rules; and it is equally essential that counsel must, in presenting their client's case, be aware of their duties towards the Court as well as their duties to their client. What seems to be lacking in international judicial dispute settlement procedures is an adequate relationship between Court and counsel to complement that between counsel and client. It may be thought that those who practise before international tribunals — who after all are people engaged by states to represent them — are unlikely to behave improperly. Apart from being a dangerous assumption to make, especially as the number of international tribunals increases steadily and with it the number of international practitioners, the issue is not simply one of misbehaviour: it is more about knowing what are the proper standards of conduct to be observed in international proceedings, so that the relationship between counsel and the Court — which is fundamental to the sound administration of justice — can be fostered. An "international Bar" exists only in the informal sense that there is a small group of international lawyers who appear frequently before international tribunals, but otherwise have no formal links between them. It is out of such shared professional experience that common standards can emerge, and the time may soon have arrived when some such development should be encouraged. All of this puts the oral proceedings in cases before international tribunals in a very special light. They lack the full quality of oral proceedings known to some national legal systems, and in some respects have characteristics likening them to additional written pleadings. That


29

being so, it is perhaps understandable that — and here I return to the point at which I started — international tribunals do not take too strict a view as to who is entitled to present oral arguments before them. In many ways, it does not matter to the Court whether the person before it is a qualified barrister, or avocat. or Rechtsanwalt. or whatever. If the State party to the dispute before the Court has sufficient confidence in the person that it is willing to let him address the Court in the name of the state, why should the Court want more? Will not an academic professor of law with no professional qualification be just as acceptable an exponent of the state's views? — of course, "Yes": and many of those who practise most successfully and effectively before international tribunals fall precisely into that category. Yet there is one particular circumstance in which it does become important to know whether or not someone is a counsel or advocate. If, in effect, anyone can be "counsel or advocate", even without legal qualifications or even legal training of any sort (and therefore, it may be noted, no familiarity with those legal professional rules of conduct which underpin the relationship between counsel and court), this opens up the possibility for a state to put forward as one of its counsel or advocates a person who is in reality an expert witness. One does not have to look far for an explanation of why a state might want to do this: an expert witness is, but an advocate is not, subject to cross-examination (but too much should not be made of this: effective cross-examination is a skill which many practitioners before international tribunals do not possess and which many international judges are ill-fitted by experience to evaluate). The balance is not an easy one for states to make. By using an expert witness as if he were an advocate the state might gain from the absence of hostile cross-examination, but it loses something in the perceived independence attaching to an expert testifying as such: an advocate is clearly partisan, putting forward what are known to be not so much his personal views as simply the best arguments he can think of in support of his client's case, whereas an expert is known to be putting forward his own beliefs and opinions as to matters within his range of expertise, and is relying on his known authority in his own field. In practice it is easy for a state to get its expert's opinion before the Court as if it were an advocate's presentation of its case. It is simply a question of drafting his speech in appropriate terms, so that he speaks not in personal terms but in the more indirect terms of an advocate presenting someone else's (i.e. the client's) argument. In putting his views in that way, the expert can still appear as an advocate, while his known

30


authority in his particular field will also be known to the Court and will inevitably colour the court's view of what he says. While all this presents an intriguing tactical challenge for a state in deciding how best to make its case to the Court, from the point of view of international adjudicative procedures it is a matter for some criticism that it is possible for there to be such a blurring of the roles of advocate and expert. The possibility only arises, as I have said, because international tribunals do not apply any strict notion of what is meant by being a "counsel or advocate", and this is a matter which could perhaps be looked at more closely. It has been looked at closely in an analogous context, where counsel appearing for a party overstepped the boundary between speaking as an advocate and speaking as someone with personal knowledge of the facts to which he was referring. This happened in the Elettronica Sicula S.p.A Case (the "ELS!" Case),4 before a Chamber of the ICJ. That case concerned the way in which the Italian authorities had treated an American company, Raytheon; the United States brought proceedings against Italy. One of the persons who had advised Raytheon during its dispute with the Italian authorities, who was an Italian lawyer, was also a member of the United States team in the proceedings before the ICJ. He addressed the Court, but during his speech it became apparent that he was not just presenting legal argument on behalf of the United States but was referring to matters of fact within his knowledge as one of Raytheon's lawyers. Italy immediately protested that in respect of those matters counsel was not addressing the Court as counsel but as a witness of fact, and that as a witness of fact he should be subject to crossexamination. The President agreed; and counsel was duly subject to cross-examination on what he had said.

2. The Registry Let me now turn to some very brief observations about registries of international tribunals. They are the unsung heroes of international litigation. In particular, their proper functioning is absolutely vital for the effectiveness of the international adjudicative process. Yet they are faced with some serious problems in doing their work, and those problems, unless solved, have an inevitable consequential ef4

ICJ Reports 1989,15 et seq., (19).


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feet upon the effectiveness of the tribunals which they serve. And the problems can be summed up in one word — money. Different tribunals, of course, have their different particular problems and are financed in different ways, but all share the same characteristic of being dependent upon some source of finance, and these days — and for the forseeable future — every institution is subject to very considerable financial restraints. Tribunals, as institutions, in effect consist of three elements — the judges, the registrar and his permanent staff, and the ad hoc staff recruited temporarily from time to time (e.g. the interpreters needed when oral hearings take place): this last category, of course, is part of the responsibilities of the registrar. When pressure is put on institutions to cut costs, that means that either the judges are put to the sword, or the registry is — and there are no prizes for guessing where the sword falls! The impact is felt, of course, not just by the registry but by the tribunal itself. And it is felt right across the board. Take, for example, translation facilities — that is, not so much the (usually) simultaneous interpretation of oral proceedings, but rather the basic task of translating documents submitted to the tribunal. As a member of the ICJ has recently put it "We have an insufficiency of translators. Because everything has to be in French and English, the Court's two working languages, everything will grind to a halt if the translation can't keep up."5 Again, take proposals for speeding up the Court's work by a greater use of chambers. It has been noted that if a major case is referred to a chamber, the rest of the judges are in effect left on the sidelines until the chamber's work is concluded. Perhaps, therefore, the judicial skills of the unused judges might be avoided if the 15 members of the court were to sit simultaneously as two or three 5-member chambers. As the same judge put it, sitting as a single 15-member court "is a bit of a luxury when the docket gets so heavy, but we could not meet in three chambers of five without more resources. Our registry can't deal with three fully fledged cases in their major phases simultaneously."6 There is no need to labour the point — which is, in short, that the international community gets the sort of international judicial dispute 5

6

Judge Rosalyn Higgins, in an interview reported in: Counsel, London, February 2000. Ibid.

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settlement procedures it is willing to pay for. For the most part the remedy lies (again!) with states. But there is one thing which tribunals might wish to consider. The emphasis which is now so strongly placed on financial matters has led in all fields to the emergence of financial management as a separate discipline. Courts are not just financial enterprises to be run on the basis of a profit and loss account, and a financial manager would not be the right person to run the judicial side of a court's work. But the financial management of courts as institutions is a significant factor in their overall effectiveness. There might accordingly be room for considering always having a fully qualified financial or business manager as part of the registrar's staff, who could free the registrar to concentrate more on the management of the judicial side of the court's work.

3. Judicial Delays Justice delayed tends to be justice denied, and a tribunal before which justice is denied can by no means be regarded as "effective". The lack of registry resources is one constraint upon an international tribunal's ability to deal speedily with cases coming before it, and due account must be taken of that factor. But it is far from a complete explanation or justification for what are sometimes quite inordinate delays which occur between the initiation of proceedings and the final judgment in the case. The ICJ's current list of pending cases includes the Qatar v. Bahrain Case which began in 1991, and in which the Court is at present deliberating on its judgment, which may be delivered later this year or early next year; the Lockerbie Cases brought by Libya against the United Kingdom and the United States began in 1992, as did the Oil Platforms Case brought by Iran against the United States; the Bosnia Genocide Case began in 1993; and in Cameroon v. Nigeria, which began in 1994, the written pleadings will not be completed until next year, with oral hearings to follow when the Court's schedule allows, and only after that can one begin to consider the possible timing of the Court's judgment. To an outside observer this looks terrible: "10 years!". And the conclusion looks inescapable: "What a dreadful Court!" But that conclusion would be wrong: the situation is considerably more complex. Once more, it must be noted that much of the delay is attributable to the states concerned, and not to the Court at all. States are regularly


33

given nine months for their written pleadings, although often only six months for the second round: so on that basis, even with the most straightforward case some two and a half years is immediately accounted for. Often states seek extensions of time for their pleadings, which are usually granted. And often, of course, there are various intermediate stages which a case may go through, such as, the submission of Preliminary Objections or requests by third states to intervene, which can easily add another couple of years or more to the timetable. One might ask whether the relatively long periods regularly granted to states for the preparation of their written pleadings could be shortened. There are two answers. One is "Yes": the other is "No". To take the affirmative answer first, there is undoubtedly a tendency — a perfectly natural tendency — for states to make the maximum use of whatever time they are given: give them nine months, and they will fill that nine months with work on their pleadings; but give them only six months, or even three months, and they will still manage to put in a pretty good pleading — perhaps not as full as it would be if they had had more time, but probably still more than adequate for the purpose in hand. States — and particularly their counsel — have become accustomed to quite long periods in which to prepare their written pleadings, and it may be a question of seeking to get them accustomed to a somewhat different, and tighter, regime. But the "No" side of the balance is quite compelling. International cases — even those which are sometimes dismissed as being "small" — are for the states concerned matters of very considerable importance; some are indeed matters of war and peace. Many raise sensitive issues of state sovereignty, or are highly charged in terms of domestic politics, or have enormous economic consequences. No state will readily accept a procedure whereby it does not have the fullest opportunity to prepare and deploy its case before an international court. And in a world in which the submission of disputes to a court is generally a voluntary and optional matter for states, no international court will wish to impose upon a state a procedure depriving it of what it considers it needs in order fully to present its case. Geography is another factor which plays a significant part in the time states need to prepare their pleadings. States often choose to use as counsel people from distant countries. Meetings — several meetings — between representatives of the state and its counsel are an inescapable part of the preparation of the state's case. But meetings with counsel, especially where, as is usual, there are several, are not always easy to arrange, and certainly not quickly — especially since it is either the team

34


of counsel which has to travel to the state which is their client, or the team of relevant officials from that state have to travel to some other place where it may be more convenient all round for the meeting to take place. Serious problems affecting the timetable can also be caused by the needs for documents to be translated. This operates at three levels. At one level, it is essential for counsel to have access to all potentially relevant documents in order to decide how to deploy the state's case to best effect: and access means not just physical access, but also comprehension access — the documents must be accessible to counsel as readers. At a second level, all members of the state's team working on the case must have access to the pleadings — both those being prepared by their own side and those submitted by the other side. Usually such pleadings will be in English or French, and it cannot be assumed that all officials dealing with the case can work in those languages. At a third level, of course, the documents to be submitted to the Court — the pleadings and its annexes — have to be translated into a language which the Court will accept: often this means English or French, as with the ICJ and ITLOS. The time taken for all these translations naturally varies from case to case: in some cases, if for example both parties are anglophone, or both francophone, and all relevant documents are in those languages, there will be no problem. But in other cases the translation needs can be immense, and very time-consuming. States do, it must be said, sometimes try to cut down on the time they take for their pleadings, especially where they submit a case to the Court by special agreement. But even then, events may get the better of them. Thus in the case concerning the islands of Sipadan and Ligitan between Indonesia and Malaysia, which is currently before the Court, their special agreement provided for quite tight timetables for the various rounds of written pleadings, but in the event extensions had to be sought, and were granted by the Court. This is even more likely to be the case when an agreement is concluded for the submission to arbitration of certain categories of future disputes: when the time comes to go to arbitration, the commendable wish of states when concluding their agreement to get future disputes settled expeditiously may prove wholly unrealistic once the nature and scale of a dispute becomes apparent — as happened, for example, in the Heathrow Airport User Charges arbitration7 in implementation of the dispute settlement provi-

7

ILR 102 (1996), 216 et seq.


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sions of the so-called "Bermuda II" air services agreement between the United Kingdom and the United States. All that said, and while recognising that the scope for shortening the time taken by major international litigation may not be as great as might at first be thought, it is possible to do something to speed matters up. Indeed, something must be done about this, if the reputation of international judicial dispute settlement procedures is not to suffer. ITLOS has so far managed to avoid excessive delays, for which it is to be congratulated — although congratulations may need to be tempered by the observation that it has not yet experienced the kind of full-scale set-piece international litigation which has been the staple of the ICJ over the years. How timetables are to be speeded up, however, is no easy question. No two cases are the same: what may be a reasonable time in the circumstances of one case may be quite unreasonable in the circumstances of another. This applies as much to practices followed by judicial tribunals themselves as to the preparation and presentation of cases by the parties. Three aspects of international judicial procedures do, nevertheless, seem to need urgent reconsideration. Given the time, I will just list them, without comment. They are, first, the apparently luxurious practice, in the ICJ at least, of generally dealing only with one case at a time (exceptions being made if urgent matters arise unexpectedly — a request for provisional measures, for example); second, there is the relative brevity of a "day's" sitting during oral hearings; and there are the practices associated with the preparation of judges' notes on a case, which may sometimes be quite voluminous — and thus timeconsuming, both in their preparation and then their translation. These are matters within the control of the tribunal in question, and something can clearly be done in those areas to improve matters. The ICJ has indeed recently been actively trying to move in this direction, and has done so with a measure of success which, while still quite limited, is nevertheless greatly to be welcomed. But it seems probable that a tightening up of the internal practices of international tribunals is a prerequisite for any steps they might wish to take to tighten up also on their control of states which litigate before them, for example by seeking to impose on states much shorter, and stricter, deadlines for the preparation and submission of their cases. That, however, touches what might be the heart of the problem, on which some brief remarks are called for.

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III. Concluding Observations Perhaps the most important aspect of international judicial dispute settlement procedures is that, traditionally, they have been voluntary. Even the so-called "compulsory" jurisdiction of the ICJ is nothing of the sort: the more correctly phrased language of "jurisdiction pursuant to declarations under the optional clause" makes the situation perfectly clear — jurisdiction is optional, and entirely voluntary. It is an unfortunate fact that the majority of states have not chosen to take that voluntary step. It is even more unfortunate that of the five permanent members of the United Nations Security Council, two (Russia8 and China) have never accepted the "optional clause" of the Court's Statute, and while the other three have accepted it, only the United Kingdom still does so (although subject to a number of reservations), the other two (France and the United States) having withdrawn their declarations many years ago. The creation of the Permanent Court of Arbitration a century ago, the establishment of the PCIJ in 1920, under the League of Nations, carrying the process another notable step forward, followed in 1945 by the establishment of its successor, the ICJ, marked great progress in making international judicial procedures an effective part of the international legal order. But they were characterised by one common feature: they were all voluntary. They were, in effect, "add-on" extras which states might — or might not — choose to adopt, rather like some technical refinement which you may be offered when buying a new car. Courts which depend upon the voluntary submission of parties to their jurisdiction are not well placed to be "strong" courts. So long as the international judicial system is no more than an "add-on extra" for the international community, it will never be a really effective means for the settlement of international disputes: it will at best be an effective system within its limits, but those limits will continue to be quite considerable. The way forward needs to be by way of making international judicial procedures an integral and automatic part of the international system: it has to be a standard fitting, not an optional extra. The best way to achieve this is probably by incorporating compulsory dispute settlement procedures in institutional structures which deal with non-judicial matters and in which states feel it essential to participate, in pursuit of their own national interests. A clear example is

Both as the USSR and (as now) the Russian Federation.


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afforded by the European Communities. Most of the states eligible for membership consider it essential to join, for essentially economic and in some cases political reasons; but in joining, they submit themselves also to the European Court of Justice. They have no choice in the matter: the Court comes as part of the package. If the attraction of the package is sufficiently compelling, states will accept the judicial system within the overall institutional structure which they join, even though, if it were an "add-on extra", they might well prefer not to do so. The European Communities may be thought a somewhat special case.9 But the same phenomenon is to be found elsewhere. A good example is afforded by the dispute settlement system of the World Trade Organisation. Most states cannot afford to be left outside that trading system: but when they therefore join it, they have to accept also the dispute settlement system which goes with it, whether they like it or not. Closer to home, of course, are the provisions of the 1982 Law of the Sea Convention. The generality of states want to become parties to the Convention, for reasons which have nothing to do with the settlement of disputes. But once they have joined, they become subject to the Convention's dispute settlement provisions, and while these are somewhat complex, they do involve, in the last resort, what may be regarded as a flexible system of compulsory jurisdiction. Now all these examples still, in a formal and legal sense, incorporate dispute settlement provisions which are essentially voluntary. States are under no legal obligation to participate in the Law of the Sea Convention, or the World Trade Organisation, or the European Communities. They do so, and thereby willy-nilly submit themselves to dispute settlement procedures under those treaties, because they choose to do so: in the final analysis their submission is voluntary. The pressure to act in that voluntary way is extra-legal. It is essentially practical, political or economic (or all three): in short, it reflects the real world in which states exist, and is for that reason very strong. All three examples involve institutional and legal structures being established de novo. While the pattern which they have adopted might conceivably be followed if some new world-wide international organisation were to be set up to replace the United Nations, the fact is that

But other similar economic integration organisations, especially in the Americas, have equivalent structures.

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that is unlikely in the foreseeable future. Where, then, does that leave the ICJ? Is it condemned to continue to be an "add-on extra"? Perhaps; indeed, probably; but by no means necessarily. The evolution of the European Court of Human Rights is instructive. The Council of Europe was created by a statute signed in 1949. Its membership was open to European states which "accept the principles of the rule of law and of the enjoyment by all persons within [their] jurisdiction of human rights and fundamental freedoms". The following year, 1950, the European Convention for the Protection of Human Rights and Fundamental Freedoms was adopted, including the machinery of a quasijudicial Commission, and a Court, to guarantee the rights and freedoms set out in the Convention. The formal, legal link between the 1950 Convention and membership of the Council of Europe was at first somewhat tenuous: but the political link was substantial, with the 1950 Convention being increasingly seen as the practical implementation of the general standard enshrined in the 1949 statute. It became so strong that nowadays a state wanting so join the Council of Europe must become a party also to the European Convention for the Protection of Human Rights and Fundamental Freedoms, along with its judicial structures in the human rights fields. Thus, in practice, the political will of European states evolved over time so as to ensure a wide degree of compulsory submission to judicial dispute settlement in the human rights field. It may be fanciful to contemplate any parallel development of political will on the part of the membership of the United Nations, whereby a sine qua non for membership will become acceptance of the ICJ's jurisdiction — particularly when most of the permanent members of the Security Council set such a bad example themselves; and in any event, there are now only a few states still to become new members of the organisation. Yet some sort of parallel with the Council of Europe is there for those who might wish to use it. New members of the United Nations have to be peace-loving states which accept the obligations of the Charter.10 What better way of showing a state's commitment to its obligation to settle its international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered than by accepting the Court's jurisdiction? If such a development within the United Nations itself is unrealistic — as it probably is, at present — is it inconceivable, eventually, that forms of international assistance (such as perhaps, IMF support) be 10 Article 4 para. 1, read with Article 2 para. 3.


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made conditional on a genuine and practical commitment to the United Nations' principal judicial organ — not just the somewhat formal commitment of being, compulsorily, a party to the Court's Statute? Before dismissing such thoughts out of hand, it should be recalled that much the same might have been said a quarter of a century ago about using such forms of persuasion to strengthen democratic government or to secure improvements in human rights or environmental practices: yet nowadays such aspects of international cooperation are commonplace. The short point to be made is that any such developments in relation to international judicial procedures are essentially a matter of the international community wanting to demonstrate a real commitment to making international judicial dispute settlement procedures more effective. If they really want that result, there are ways and means by which they can achieve it. If they do not, and if international judicial settlement remains largely an "add-on extra" to the main structures of the international community, then those procedures will never, overall, be as effective as a community dedicated to the rule of law desires or deserves.


Monitoring Compliance with and Enforcement of Binding Decisions of International Courts* Joseph Sinde Warioba* The very essence of global governance is the capacity of the international community to ensure compliance with the rules of society. In a country in which the rule of international law was respected, enforcement procedures would not be needed. In a world in which it is not, universal enforcement may not be achievable."1

I. Introduction In international relations the rule of law is firmly asserted just as much as it is asserted in domestic relations. All states are parties to a large number of treaties and agreements which guide their international relations conduct. These treaties and agreements, thousands of them, cover every field of international relations. There are bilateral treaties and agreements, as well as multilateral regional and global treaties. The overwhelming majority of treaties have a dispute settlement procedure, including binding adjudication. In domestic jurisdiction there is a complete system of dispute settlement, including a system of compliance and enforcement. There are

*

1

This paper was presented originally at the International Symposium "The International Dispute Settlement System0 organized on the occasion of the moving of the International Tribunal for the Law of the Sea into its new building by the Max Planck Institute for Comparative Public Law and International Law in Hamburg, 23 September 2000. Report of the Commission on Global Governance, Chapter Six. 41

J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 41-52. © 2001 Kluwer Law International Printed in the Netherlands.

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institutions whose responsibility it is to make sure binding decisions are complied with or enforced. For example, a criminal conviction by a court leads to loss of freedom or loss of life by the convict and there are institutions under the executive to enforce the court decision. There are police officers and prison warders to ensure a convict goes to prison to serve time or to await a death sentence which is also carried out by the executive machinery. In civil litigation, if compliance is not voluntary by the losing party there is also machinery for enforcement. The court has power to issue an execution order which can be enforced by a court approved entity with the assistance of the executive if necessary. In that way a person may lose property by attachment, liquidation or simple sale by auction. In short, in a domestic setting there is some degree of certainty of compliance with and enforcement of a binding decision of a court. At the international level, however, there is no certainty that binding decisions of international courts can be complied with and there is no machinery for enforcement. By analogy to domestic systems some scholars of jurisprudence have questioned whether international law is law at all. As professor O'Connell asserts: "the analogy to domestic law is false. The international system has little in common with unitary government systems."2 In a unitary system of government the major branches of government have a clear and effective mandate. The legislature has power to make laws which bind all, including the lawmakers themselves, the executive has power to implement decisions and the judiciary has power to administer and dispense justice.

II. The International System The international system does not have government branches of a similar nature. Treaties and agreements, which constitute most of the effective law at the international level, are negotiated either bilaterally or multilaterally. When a treaty is concluded it requires the clear consent of every negotiator, by signature and ratification or accession. This means a state may participate in the making of a treaty at all levels but may refuse to sign it and consequently that treaty will not apply to it. It M.E. O'Connell, "Enforcement and the Success of International Environmental Law", Indian Journal of Global Legal Studies 5 (1995), 47 et seq.

Warioba, Monitoring Compliance

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may sign the treaty but decline to ratify it, making it inapplicable. Treaties normally have reservation clauses which allow states to chose which provisions will not apply to them and even provisions which allow states to opt out of the agreement. Thus in a domestic setting the binding nature of the law is clear, whereas at the international level the law is binding upon consent and that consent can be withdrawn at any time, at least as far as treaty law is concerned. In domestic jurisdiction the authority of the court is clear and it does not need the consent of every one for a court to be seized with an issue on which there is a dispute. A party can initiate proceedings without seeking the consent of the other party or parties. Under international law the jurisdiction of a court depends on consent. Thus a state may be party to a treaty which contains provisions for adjudication, but for a matter to come before the court there must be consent by the parties involved. At present there are two global judicial institutions, the ICJ established under the Charter of the United Nations and the International Tribunal for the Law of the Sea (ITLOS) established under the 1982 U.N. Convention on the Law of the Sea (UNCLOS). Though the ICJ is a principal organ of the United Nations its jurisdiction does not extend to Member States of the United Nations by virtue of their acceptance of the Charter. Rather a special submission act must be passed for the state to be subject to its jurisdiction. Only those states are subject to the jurisdiction of the ICJ which, either are a party to international agreements creating the Court's competence, or have pleaded necessity on the merits of a case pending in Court (forum prorogatum) or have made a unilateral declaration in accordance with Article 36 para. 2 of the Statute. Currently of the more than 180 Member States of the United Nations around 56 states have accepted the jurisdiction of the Court under Article 36 para. 2 of its Statute. Some of the reservations made by these states are so far reaching that it almost amounts to a negation of the Court's jurisdiction. It is fair to say the ICJ is an international court but it is not a universal one. Similarly ITLOS is an international court but it does not have general jurisdiction in the field for which it was created, the law of the sea. The quiet distrust of the ICJ particularly by the developing countries was a factor in the negotiations leading to the establishment of ITLOS. The developing countries played a leading role in the negotiations leading to the conclusion of the 1982 Convention and were generally supportive of the creation of ITLOS. They also influenced the composition of ITLOS so that two-thirds of the 21 judges come from the de-

44


veloping world. Though ITLOS is a truly global creature there are still traces of quiet distrust of international courts. Similar to the ICJ, the jurisdiction of ITLOS depends on consent by states. Under article 287 of the UNCLOS a state is free to choose a binding procedure and the choice is between the ICJ, ITLOS and arbitration. Up to now only 24 out of the 135 States parties have exercised that choice and only 14 of those have chosen ITLOS.3 Further, binding adjudication has been excluded in certain matters relating to rights of states with regard to scientific research and sovereign rights with regard to fisheries.4 Since ITLOS is still a very young judicial institution it is not fair at this stage to make a conclusion one way or another, but the signs of quiet distrust were there at its creation. Historically there has been quiet distrust of international binding adjudication. The events of the last century have shown that the ICJ has suffered from a fair amount of lack of confidence on the part of the states. The ICJ was established as a successor to the PCIJ which was in turn established in 1922 as a result of the Hague Peace Conferences of 1899 and 1907 to administer international law as developed in Europe since the Peace of Westphalia of 1648. As stated by the Commission on Global Governance, "until the post war period international law suffered as a global concept by being centred in Europe. Developing countries, in particular, felt, not without justification that international law was both based on Christian values and designed to advance Western expansion. It was made in Europe by European jurists to serve European ends".5 The 1960's saw the transition to independence of numerous countries in Africa and Asia. These countries regarded European law as the basis for their colonisation. They attained independence with a distrust for the ICJ which they regarded as an instrument of the West. The decision of the ICJ in the South West Africa Case in 1966 dealt a strong blow to confidence in the Court among developing countries.6 Over the last thirty years some confidence in the Court has been achieved. However the distrust has not disappeared completely.

3 4 5 6

See http://www.un.org/Depts/los Article 297 paras 2 and 3 UNCLOS. See note 1. South West Africa Case, ICJ Reports 1966, 6 et seq.


45

There is also a perception that binding adjudication is regarded as something for small countries and that the major powers accept international adjudication only when their interests are not threatened. In 1974 France withdrew from the jurisdiction of the ICJ after the Nuclear Test Cases. The cases had been brought by Australia and New Zealand against France under the Courts compulsory jurisdiction clause. France refused to appear or abide by the Courts interim order and subsequently withdrew from the jurisdiction of the Court.7 In 1986 a case was filed at the ICJ against the United States which responded by contesting the competence of the Court to hear the case. When the Court decided to hear the case on the merits, the United States refused to participate and withdrew its consent to the compulsory jurisdiction of the Court.8 The actions of the United States and France, countries that claim leadership in international affairs, were a blow to the confidence in the Court. Global judicial institutions are also regarded as more political than judicial organs. In domestic matters there is an elaborate court system. There are subordinate and superior courts. The subordinate courts are the courts of first instance where facts are delved into extensively before the law is applied. Oral evidence is elicited through examination and cross examination of witnesses. The court appraises not only the evidence but also the demeanour of the witnesses. If a party is dissatisfied there is the opportunity for appeal both on the facts and the law. A dispute might go through three or more courts before the final and binding decision is made. There are lower courts, middle level courts, appeal courts and supreme courts. By the end, a party to a dispute feels he\ she has had his\ her required days in court. At the international level, however, there is no such hierarchy. The ICJ, for example, is a single institution. It does not have subordinate courts. It is both a court of first instance and a final court. There are no procedures for appeal. Its procedures rely basically on written proceedings. Even oral proceedings are largely written and, in the main, repeat the essentials of the written proceedings. Those who appear before it as advocates are normally people who practice in higher courts in their countries. Their experience relates largely to records of lower courts, that is written proceedings. Most of them come from Western 7

8

Nuclear Tests Case (Australia v. France), ICJ Reports 1974, 253 et seq.; Nuclear Tests Case (New Zealand v. France), ICJ Reports 1974,457 et seq. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Reports 1986,14 et seq.

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Europe, even in cases involving the developing world. There is therefore an underlying feeling that it is still a court under the influence of the West. Secondly, there is an underlying distrust of the composition and the method of election. There is a feeling that there is enormous political influence in the election of the judges. For the major powers it is easier to have a judge of their own elected than is the case for smaller powers, and representation in the Court is not proportional. In addition, any party to a dispute has the right to appoint an ad hoc judge if there is not a national in the Court. This gives the perception that a state cannot trust the court unless it has its own representative. The fact that normally ad hoc judges find for the state of their nationality re-enforces the perception that the Court lacks judicial independence. Despite the above criticism, the international judicial institutions are well established, play an important role, render important decisions and contribute enormously to the maintenance of peace and security and the development and strengthening of international law. It is true that there are problems with regard to compliance with and enforcement of binding decisions of international courts. In his authoritative work on the ICJ, in which the problems of compliance and enforcement are discussed at some length, Rosenne states that "in general, a striking feature of the literature dealing with judicial settlement of international disputes is its comparative disinterest in the post-adjudication phase."9 Others have argued that since there is no mechanism to enforce binding decisions, international law is not law at all. It can, however, be argued that compliance and enforcement are not major problems in international relations and that enforcement mechanisms were not intended and they are not suitable in international law. International adjudication is a tiny aspect of the process of dispute settlement systems in international relations. Just as in domestic affairs most disputes are resolved without resort to courts. Most disputes are resolved on the basis of agreements or treaties which contain provisions to the effect that binding adjudication is a method of last resort when diplomatic methods have failed. These methods include negotiations, good offices, inquiry, facilitation, conciliation and other means of peaceful settlement of disputes.

Sh. Rosenne, The Law and Practice of the International Conn 1920-1996, Vol. 1,1997,202.


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Generally states prefer diplomatic means in resolving their disputes because such methods are less intrusive and less imposing. The procedure is flexible and confidential and the parties feel they are in control of the outcome. A settlement of a dispute by negotiation is likely to present fewer problems of compliance and enforcement because the parties have directly contributed to the decision. In everyday life the number of disputes settled by diplomatic means is enormous and they contribute greatly to the maintenance of peace and security in the world. There is a temptation to think that there is a proliferation of international courts and tribunals which give binding decisions. Certainly, when the numbers are counted the impression is that there are too many such institutions. In addition to the two global judicial institutions, the ICJ and ITLOS, the Security Council has created two special tribunals for crimes committed in Yugoslavia and Rwanda.10 A Permanent International Criminal Court is in the process of being established.11 There are also several regional courts such as the European Court of Justice, the European Court of Human Rights and the InterAmerican Court of Human Rights. Numerous treaties and agreements have provisions for the establishment of arbitral tribunals and many such tribunals have been established. Finally there are rules for the establishment of arbitral tribunals, for example the UNCITRAL rules, the rules of the International Chamber of Commerce and the International Centre for the Settlement of Investment Disputes, and many arbitral tribunals have been so established. Numerous as these courts and tribunals may seem to be, they are in fact a very tiny number compared to the large number of disputes handled globally. When they are all put together they number fewer than the total of the courts in a single country of medium size. The average number of cases handled by the ICJ in each year for more than fifty years of its existence is roughly two. A court in any country, particularly a superior court, which handled that number of cases a year would have no justification for a permanent existence. It would be part time. The important point, however is that international law is not suited to an enforcement mechanism and it was created with that in mind. 10

11

International Criminal Tribunal for the Former Yugoslavia, S/RES/808 (1993) of 22 February 1993; International Criminal Tribunal for Rwanda, S/RES/955 (1994) of 8 November 1994. A. Zimmermann, "The Creation of a Permanent International Criminal Court", Max Planck UNYB 2 (1998), 169 et seq.

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Modern international law traces its origin to the Peace of Westphalia.12 After the thirty years war the countries in Western Europe did not go back to the system of supranational institutions which had prevailed during the Holy Roman Empire. Rather they designed a system, through the 1648 Peace of Westphalia, which was based on sovereign states which were equal. As O'Connell argues: "the rule, rule making and rule enforcement mechanisms were designed to reflect the coequal status of the members of the system... This law making technique, while having some clear disadvantages, had the major advantage of natural compliance; if a state did not intend to observe an obligation it did not consent to it in the first place ....On those occasions when states did not observe their obligations, the system developed a method of horizontal enforcement. The injured state enforced its own rights through self help, using force in some cases, and reciprocity in other."13 The states which established the system were few and had been part of the Holy Roman Empire or had some sort of affinity with it. In other words they had the Christian culture and as such their legal philosophy and practice were similar. Thus, international law developed from that time was not very different from the domestic law of the Member States. Compliance with international law was therefore natural. When the PCIJ was established in 1922 the number of states which accepted its jurisdiction was small and the majority were the European states that had developed modern international law. They still largely shared the same values and that is why compliance with decisions of the PCIJ was not a problem. All decisions made by that Court were complied with without major problems. Even now with decisions of regional courts, particularly where the states share common values, compliance is natural; for example decisions made by the European Court of Human Rights have all been complied with even in the absence of a mandatory enforcement mechanism. Compliance with decisions of courts became a problem after World War II. Two thirds of the current members of the United Nations were not the subjects of international law until after the late 1950's. They were subjects of colonialism but did not share the same philosophy and values of civilization which were dear to the colonisers. They attained

12

13

L. Gross, "The Peace of Westphalia (1648-1948)", AJIL 42 (1948), 20 et seq. See note 2.


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independence with a prejudice of the judicial institutions which were created before or during their subjugation. Though a number of developing countries have resorted to the ICJ to settle their disputes, they have done so mainly with regard to disputes between themselves. There is still a lingering doubt whether they can obtain justice if the other party comes from the developed world, particularly from among the major nations. With regard to compliance with and enforcement of binding decisions of international courts, there are no institutional mechanisms for the purpose. In the political field the Security Council is empowered under the Charter to enforce and monitor compliance in matters of maintaining peace and security. As stated earlier, in domestic jurisdiction there are institutional mechanisms to enforce compliance with court decisions. The courts sentence people to prison terms, levy fines, attach property etc. and the executive makes sure the decisions are complied with. International Courts do not have power of enforcement because there is no world executive similar to national governments. International law as it has been developed, particularly since the mid 17th century, is based on the equality of states. The European Convention on Human Rights confers power to the Committee of Ministers to supervise the execution of the judgment and imposes on States parties the duty to abide by the decisions of the Court. This entails the adoption of resolutions stating what is just satisfaction and requiring the government concerned to report on measures taken to comply with the judgment. The new Criminal Tribunals for the Former Yugoslavia and Rwanda have power to impose sentences which are enforced, but the enforcement is carried out by states under agreement. This is a new development in international law. It may develop further if the proposed Permanent International Criminal Court is established. But it is unlikely to be of general application. It is likely to develop faster in areas of international human rights law and possibly international environmental law. These are areas where the law effects individuals as well as states. Individuals are the victims of human rights violations and individuals suffer from harm to the environment. Polluters are mainly juridical persons and standards set by international agreements can easily be adopted by states to punish defaulters. In this sense it is easier to develop institutions at international level, including courts, whose decisions can be enforced by states in their territories.

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Further advances may develop in these areas, particularly where a treaty confers rights on individuals. One example is the European Union whose treaty has developed to apply directly to individuals in economic matters. There are also soft means of enforcing compliance and monitoring. Reporting is the most common at international level. The ICJ and ITLOS submit annual reports to the General Assembly of the United Nations. Even if non compliance is not specifically mentioned, the annual reports are an occasion for aggrieved parties to comment. Such comments are a potent power to pressurize states to comply with Court decisions. The Inter-American Court of Human Rights is actually obliged to report oh non-compliance to the General Assembly of the OAS. Civil society is also developing to be a potent force in the monitoring of compliance with agreements. Non-governmental organizations, particularly in the areas of human rights (Human Rights Watch) and the environment (the Greens) are particularly active and can have a telling impact. If a decision is made by an international court in areas where civil society is active, monitoring is likely to occur, albeit outside what is understood to be strictly a legal mechanism. The involvement of civil society is noteworthy. International lawmaking was originally a preserve of states. Treaties and agreements were negotiated by representatives of states and the rest of the citizens of the world had little role in rule making. It is not the case now. In the two last decades of the 20th century civil society has been active in rule making. In the beginning non-governmental organizations were in the vicinity of the conference (for example at Rio de Janeiro in 1992), later they were in the corridors (for example at the Human Rights Conference in Vienna 1993) now they sit in the conference room (even though they do not, in many cases, have the right to vote). What is happening now is the development of truly international values which will make it easier for states to include international rules in domestic legislation and to naturally comply with decisions, including binding decisions of international courts. The bottom-line, however, is that compliance with and enforcement of binding decisions of international courts is marginal in international law. International law remains a compliance-based system not an enforcement-based system. As stated earlier, compulsory binding settlement of disputes occupies a very tiny volume of the settlement of disputes in international relations. Most disputes are settled through diplomatic means. The vast majority of decisions made by international courts are complied with without the need for enforcement. Non-


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compliance might be a problem intellectually and academically but in the real world it is not. As stated earlier all the decisions of the PCIJ were generally complied with; most of the decisions of the ICJ have also been implemented, if not directly, by subsequent diplomatic means based on the decision of the Court. In any case non-compliance has not caused serious problems to the maintenance of international peace and stability. Political and military issues have been more of a threat to international peace and stability than non-compliance with judicial decisions. States normally want to look good in the community of nations. They want to be seen as law abiding. Technology is continuing to have an accelerating impact on international law-making and law enforcement. A serious misdeed of a state can be world news and a focus not only for comment and action by other states but also by civil society. This is a potent power in enforcement of the few decisions which are not complied with. The argument may continue on the efficiency of developing a world mechanism for the enforcement of binding decisions of international Courts, but for the moment it does not appear to be a pressing issue. Judicial settlement of disputes is but a part, and a minor part for that matter, in the international system. Non-compliance is not peculiar only to the international judicial system. Non-compliance is more serious in other areas of international relations, including non-compliance with decisions and resolutions of important international organs such as the General Assembly of the United Nations and the Security Council. There appears to be no possibility that an effective mechanism can be established to be respected by all states, particularly by the superpowers. It is idle to believe the United States can be compelled by any world mechanism to comply with any decision, unless that world mechanism is the United States itself. The importance of decisions of international courts lies in the development and strengthening of international law. In other words, the decisions of international courts contribute enormously to the development of new global values which will make it easier to accept rules without the need for enforcement. The contribution of the ICJ to the international law of the sea is a good example. The current law of the sea is principally a creature of truly global negotiations and the input from decisions of the ICJ is significant, particularly in the areas of fisheries and the continental shelf. The decisions are also useful in facilitating the resolution of disputes by diplomatic means. They are the basis

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for the maintenance of peace and security rather than a source of threat to peace and security.

Individuals and Non-State Entities before International Courts and Tribunals* Francisco Orrego Vicuna*

It is both a privilege and an honor to have been invited to make this presentation on the occasion of the inauguration of the new facilities of the International Tribunal for the Law of the Sea, where so many distinguished jurists and old friends from many international negotiations and academic endeavours have a well-deserved seat. Thank you for your kindness.

I. The Transformation of the International Society We are all aware that international society is becoming increasingly institutionalized within a process of globalization. Yet it is by its very nature a decentralized society where individuals, corporations and international organizations, both public and non-governmental, have an expanding role to perform and a specific interest to pursue. The perfecting of human freedoms and rights, like the parallel expansion of free market economies in trade, services and investments, ensures that these developments will attain new milestones as the twenty-first century unfolds.

*


J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 53-66. © 2001 Kluwer Law International Printed in the Netherlands.

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A transformation of international society as deep as the one we are experiencing poses inevitable tensions and conflicts of view, ranging from the role of sovereign states in a new world structure to the autonomy which individuals and other non-state actors need to undertake the functions they are being assigned. In this context international law is facing new challenges and exploring new frontiers, but it is still far from being a legal system providing for certainty and predictability, perhaps even less so than in the past. Yet, the functioning of a renewed international society, requires of a legal system that might be able to harmonize the different interests of its constitutive elements and ensures the necessary stability. The fulfilment of these new expectations and requirements depends largely on the effectiveness of dispute settlement mechanisms established under international law. Two major trends can be discerned in the near future in this respect: the first is that as international law also becomes decentralized and fragmented, international society needs to develop a constitutional function that will be able to keep the system united and coherent. Centralization and decentralization are a part of the same process, and mutually reinforce each other. Central issues relating to the interpretation of the basic principles of international law will probably lead, in the not to distant future, to the establishment of an International Constitutional Court, or at the very least, to the need to make these functions available within the context of the ICJ, and other courts, not only in respect of the United Nations System but also in respect of international society more broadly. The second major trend is that related to the topic of this presentation: the participation of individuals and non-state entities in international dispute settlement as an aspect that requires specific attention, as principal actors of the present international society, cannot be kept at the margins. In fact, the very effectiveness of the system needs to facilitate their access to adequate dispute settlement arrangements.

II. Early Developments: Anticipating the Future We all know that this question is not new in international law. The right for an individual to appeal a national decision before an international tribunal, as recognized in the Hague Convention XII Relative to the Creation of an International Prize Court in 1907, like the recognition of

Orrego Vicuna, Individuals and Non-State Entities before Int'l Courts

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the individual's standing to claim against other states, first accepted under the Central American Court of Justice also in 1907, were early expressions of a trend that would leave its mark on international dispute settlement. Mass Claims for war damage would follow under the Treaty of Versailles and other Peace Treaties, allowing for individuals to claim against a foreign state or nationals of a foreign state separately from any espousal by his own government and to be directly entitled to compensation in his own right. It would not take long for the individual to be accorded a right to claim against the state of his nationality, as indeed happened as a result of a judicial interpretation of the 1922 Upper Silesian Convention. Individuals as claimants or defendants in the discussion of property rights, like creditors and debtors, were allowed to appear before claims commissions in the 1950's. The right of individuals to petition an international body became well established under the regimes for the protection of minorities under the League of Nations, and was carried over under the Charter of the United Nations in the context of the Trusteeship Council, and the protection of human rights. The validity of treaties establishing rights directly in favour of individuals had also been recognized by the PCIJ since the Case concerning the Jurisdiction of the Courts of Danzig. Limited as these first experiences were, they contained, nonetheless, all the relevant conceptual elements that served as the basis for the massive developments that would take place in the second half of the twentieth century in terms of the recognition of the legal personality of individuals to sue or be sued before international tribunals.

III. Human Rights and Duties: An Expanding System Developments in the law of human rights marked the standing of individuals before international bodies in the second half of the past century; this time claiming specifically against the state of nationality. The access to this effect has ranged from the more traditional right of petition to the complaint before investigating bodies, and includes the alternative of taking a case before judicial bodies such as the European or the Inter-American Court of Human Rights either directly, as in the first case, or indirectly through the intervention of the Commission in the latter case. What is more important is the availability of these mechanisms to protect a vast array of rights which are continuously expanding, and to do so either in global terms or broad regional scales thus

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making a significant difference with the early treaty regimes that covered only limited groups of people, selected rights or geographical areas. But this is not purely a question of rights. International Law has also made progress in holding the individual responsible for grave breaches of its fundamental rules. Responsibility for war crimes under Part VII of the Treaty of Versailles, the elaboration of the governing principles in the Nuremberg and Tokyo trials, like their endorsement in United Nations General Assembly Resolutions, and the specific obligations spelled out in the 1949 Geneva Conventions and related Protocols, have all established an enduring trend in this context. Further confirmation of this trend is found in the parallel developments in the prohibition of piracy, the nationality of ships, the crime of genocide, torture and a number of other matters defined as crimes under international law engaging the direct responsibility of individuals. These trends have been institutionalized under the jurisdiction of the International Criminal Tribunal for the former Yugoslavia and that for Rwanda, and more recently with the idea for an International Criminal Court. These experiences have broadly opened the way for the prosecution and punishment of individuals held responsible for crimes against humanity, a development that must be welcome. However, it should not pass unnoticed that these tribunals have also adopted a number of questionable practices or interpretations which do not always appear to be in line with the meaning of international law or the observance of due process. A genuine purpose of enhancing the rights of the individual and the pursuit of justice must guide all these efforts, detached from any political motive that would prompt adverse reactions and not the desired progress.

IV. Will the Tide Reach the International Court of Justice? As the access of the individual and non-state entities to international dispute settlement advances, the question inevitably arises as to whether this will also be the case of the ICJ. Again the issue is not new as it was the subject of important considerations in the League of Nations at the time of the preparation of the Statute of the Permanent Court. And in practice a good number of cases before the Court have dealt with rights of individuals and corporations, most notably Asylum, Haya de la Torre, Nottebohm or the Barcelona Traction. Indirect representation of the individual, by the state has been a common practice in this context


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and it is considered by Rosenne that even the direct appearance of the individual before the court for given purposes would not be contrary to the Statute. The key point, however, is whether the individual might have full access to the Court to bring a case. Rosalyn Higgins has convincingly explained that there are powerful reasons for amending the Statute to allow for this development. Access to the Court by international organizations could also be considered, for given aspects within their mandates. The same writer has also warned that a number of procedural safeguards would need to be introduced together with this step in order to avoid misconceived or frivolous claims, in particular a screening service similar to the function that the European Commission of Human Rights had in respect of the Strasbourg Court. A Special Committee of Jurists has also been proposed to work in conjunction with the ICJ to this end and also to screen requests for advisory opinions. The advisory role of the ICJ can also be developed as an effective mechanism to deal with questions involving the basic principles of international law. Not only should international organizations avail themselves of this right but also the Secretary-General of the United Nations should be similarly authorized in respect of matters pertaining to his competence. Additional organs of the United Nations and specialized agencies might be similarly empowered to the extent that they have a meaningful role within the system. Major regional organizations might also benefit from this authorization. Institutional and procedural arrangements to facilitate the request of advisory opinions by the General Assembly, for example by lowering the required majorities, have also been advanced. Individuals and non-governmental organizations are also likely candidates to enjoy the right to request advisory opinions in the future. However, since on occasions these entities have heavily politicized the international law issues with which they are concerned, this suggestion does not seem viable in the near future, unless strict requirements of professionalism, accountability and transparency are first met; these being the very requirements such entities claim from the organizations they wish to participate in. The screening mechanisms discussed above would be particularly pertinent in this matter. The suggestion that private parties and non state entities might also request advisory opinions from the Permanent Court of Arbitration should also be retained in this context. The possibility of an actio popularis for the international community, allowing the principal actors of the international system to take action

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before the Court when fundamental issues of international law are involved in a given situation, has also been discussed, but for the time being this does not seem to be a likely development. Similarly, a proposal has been made to establish an Advocate-General of the Court whose functions would be to present to the Court the fundamental issues of international law and society involved in the cases submitted. One other important aspect should be considered in connection with the outlook for the ICJ in respect of the participation of non-state entities. This is the referral by other international tribunals, or even by high domestic courts, of questions of international law that are not within the sphere of their respective specialized jurisdiction. Again a number of safeguards would have to be built in so far as to prevent a misuse of the referral arrangements and to ensure its acceptance by the tribunals concerned.

V. A New Wave under ITLOS The Law of the Sea Convention made an important step in the direction explained by allowing access of corporate entities undertaking sea-bed mining to the settlement of disputes under the International Tribunal for the Law of the Sea. The compulsory jurisdiction of the Sea-Bed Disputes Chamber applies also to private contractors, both in respect of disputes between parties to contracts or between the Authority and prospective contractors. Disputes concerning the interpretation and application of a contract may also be submitted to binding commercial arbitration; except that those issues relating to the interpretation of the Convention must be referred to the Tribunal Chamber. It is also of interest to note that the Authority (arts 156 et seq.) may bring action against states for violations of Part XI and related Annexes, just as states may bring action against the Authority for similar violations or for excess of jurisdiction or misuse of power. There is a power of judicial review within the confines established in the Convention. In other matters, such as the prompt release of vessels and crews, an Application before the Tribunal must be made by or on behalf of the Flag state, even if such sponsorship might be in some cases more nominal than real, particularly in respect of flags of convenience. The interpretation has also been advanced that private parties, international organizations and states could bring cases to the Tribunal by special agreement, and that the possibility of bringing public interest actions is left unresolved, but not necessarily excluded. Even if some of these interpreta-


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tions may be open to question, they do respond to a trend that is developing throughout the international dispute settlement system and should at some time be addressed, certainly not ignored. The same may be said of the possibility of requesting advisory opinions from the Tribunal.

VI. Changing Role of Diplomatic Protection and Mass Claims In the light of this changing role of states, international organizations, individuals, and other entities in the international legal system the traditional distinction between subjects and objects of international law has also become less meaningful and practical. What really matters is if a given entity or individual is a genuine participant in the system of international law, working under its rules across national borders. Increasingly the possibility for the individual to claim in his own right has been recognized and diplomatic protection is acquiring a residual role rather than the principal one it had in the past. As a consequence, the link of nationality is becoming more flexible, the rule of continuance of nationality is being adapted, transferability of claims is becoming responsive to the needs of the global market, double nationality is increasingly relying on the principle of effectiveness and the nationality of corporations is no longer following the Barcelona Traction dictum but responding to the more practical issue of economic control and the need to provide protection to shareholders. The greater degree of flexibility in respect of nationality requirements is confirmed by the contemporary institutional arrangements for the settlement of mass claims and the practice of lump-sum settlement agreements. A most relevant contemporary source of practice is that of the Iran-United States Claims Tribunal, where again effectiveness of nationality, corporate control and pro rata recovery in certain instances have been the guiding criteria. Another most relevant source of contemporary practice is that of the United Nations Compensation Commission, where nationality requirements have also been adapted, trusteeship arrangements may also be used to extend protection to persons who are not in a position to have their claims submitted by a government, and corporate claimants do not always need the sponsorship of their governments. Shareholders in some cases may claim independently from the corporate entity, and a proportional interest is admitted for claims relating to partnerships. In a number of relevant points these de-

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velopments are confirmed by the recent practice of lump-sum claims settlement. The recent experience of the settlement of mass claims in the context of the Swiss dormant accounts tribunal, where expediency and simplicity are important concerns, also confirms the role that individuals have acquired in their own right, as will probably be the experience of the recently established claims settlement mechanism for slave workers.

VII. The Investor a Central Actor: ICSID's Key Turning Point It is appropriate to turn now to the question of globalization and dispute settlement from the perspective of specialized jurisdictions, where the role of individuals has already been well established in the context of investment disputes and is beginning to permeate the arrangements for international trade, economic integration and other matters. The individual as a claimant in his own right is the most distinctive feature of the International Centre for the Settlement of Investment Disputes (ICSID), which has contributed to a key turning point in international dispute settlement arrangements. Interestingly enough the Centre has jurisdiction to decide disputes between a private investor and state, but it has no jurisdiction to arbitrate disputes between two states or between private entities. However, the functional test applied by the Tribunal in the case Ceskoslovenska Obcbodni Banka, A. S. v. the Slovak Repcublic has allowed a state owned entity to bring a claim as long as the activities are "essentially commercial rather than governmental in nature". It is also of interest to note that the global nature and operation of financial markets and the role of companies therein has been recently recognized in the case Fedax N. V v. Venezuela. The globalization and harmonization of dispute settlement arrangements will be further enhanced by the application of the most favoured nation clause to the dispute settlement provisions of investment treaties, recently decided by another ICSID Tribunal.


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VIII. The Internationalization of Justice: Trade Agreements Although individuals and corporations engaged in international trade have not been generally accorded a right of access to international dispute settlement concerning their interests, this is an aspect that is also beginning to change significantly. It must first be noted that under given arrangements directed to ensure international trade competition, individuals are occasionally granted a right of action, sometimes in terms of domestic claims, as happens under the 1974 United States Trade Act and the 1988 Omnibus Trade and Competitiveness Act, but sometimes also on a regional basis that provides a framework for international claims of this kind, as is most notably the case of the European Union. This is often the gate to access the dispute settlement system of the World Trade Organization. There is next a most interesting innovation introduced under the North American Free Trade Agreement (NAFTA) and other similar trade pacts. This is the international judicial supervision by means of a bi-national panel review of the legislative enactments of the parties or trade determinations reached by their administrative authorities. It is interesting to note that the panel is required to apply the national legislation and legal principles that a court of the importing party otherwise would apply to such a review. NAFTA Parties are under the obligation not to provide for an appeal of panel decisions before domestic courts, but an Extraordinary Challenge Procedure is available. This limited form of internationalization of domestic judicial functions has been criticized on legal and constitutional grounds, but it has endured the test of time.

IX. Enhanced Participation in Economic Integration This is not the occasion to discuss the jurisdictional features of the European Court of Justice or that of the Court of First Instance, that in many respects comes close to a high federal court that can even exercise some constitutional functions and is broadly open to actions by individuals and institutions, but simply to note that to the extent that economic relations reach advanced levels of integration, the dispute settlement procedures correspondingly move to a greater degree of participation by individuals. A comprehensive approach is also found under the new Central American Court of Justice and the Andean Community

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Court of Justice, or in a more limited manner in the dispute settlement arrangements of MERCOSUR.

X. Individuals Rights and the Rule of Law in International Organizations Dispute settlement under international organizations offers yet another model where the individual and non-state entities have been accorded an increasing participation. The establishment of Administrative Tribunals within major international organizations has provided an important precedent in this respect. The rich practice and jurisprudence of these tribunals, including the judicial review of discretionary powers of the administration has resulted in an effective protection of rights under the rule of law. An equally noteworthy development is the creation of the World Bank Inspection Panel, that allows for the review of operations upon complaints made directly by private parties affected by a given project, such as an organization, association or other grouping of individuals. This innovative development has been conceived as a part of a broader policy of public participation in the Bank's policies and project development.

XL An Integrated Dispute Settlement System: Winds of Change in WTO Because centralization and decentralization as noted above, are a part of the same process both trends are gradually developing links and interrelations that would make possible a structured and integrated system of international dispute settlement combining a role for both public and private mechanisms, for states and individuals alike. One such contemporary experience is that of the World Trade Organization, where an integrated dispute settlement system has been put in place and where gradually, the individual has also been accorded a role. A salient feature of the WTO Dispute Settlement Understanding is that it has been structured as an integrated system, combining various methods under the central administration of the Dispute Settlement Body. Political methods, such as consultations, good offices, conciliation and mediation are combined with the intervention of legal meth-


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ods. The most significant of these is the mandatory panel procedure and the important innovation of the WTO Standing Appellate Body to which parties to a dispute may appeal the panel report. Arbitration is also called for "as an alternative means of dispute settlement". Although formally the WTO is an inter-state dispute settlement system, in practice many of the cases brought to it have involved the interest of individuals and corporations who have been sponsored by their governments. Moreover, the very WTO arrangements call for an intervention of domestic courts and procedures in some kinds of disputes, where individuals will have a role of their own. The WTO dispute settlement system has began to accept a role for individuals. Important steps have been made in this respect by the Appellate Body in the Bananas Case in which, in fact, the United States was claiming on behalf of a major banana producer and an industrial association that had initiated domestic action under Section 301 of the United States Trade Act. The prevalence of the private interest was so evident in this case that the decision also made the significant step of allowing the claimant to include counsel for private parties. A policy for consultation and cooperation with non-governmental organizations concerned with matters, within the scope of the WTO has also begun to develop. The Appellate Body has recently clarified some important aspects relating to the submission of briefs, by holding, in particular, that panels may accept briefs by non-governmental sources even if these have not been requested, and also that the parties may include, in their own submissions, briefs prepared by non-governmental organizations. While, no doubt, progress can also be expected in respect of the participation of non-governmental organizations in the framework of WTO, the criteria expressed above about the need to ensure professionalism, transparency and accountability of these entities is also applicable in this context. The confidential nature of WTO procedures has been particularly criticized by non-governmental organizations seeking a recognition of their participation on the basis that this policy amounts to a lack of transparency in the handling of issues of interest for society. The experience of dispute settlement arrangements in many other areas has showed, however, that confidentiality is essential for the parties to come to a agreement, or for the tribunal to reach a decision without the pressure of public opinion or other forms of interference with their difficult function. It has been pointed out that this opening could result in the overloading of the system by private claims, and that to alleviate this prob-

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lem there would be a need to enlarge the panel system, have full-time Appellate Body members and strengthen the Secretariat, establishing in essence a court of international trade. Many of these and other improvements are of course feasible and perhaps desirable, but the experience of the ICSID and other specialized dispute settlement systems allowing for private claims shows, that while there is a gradual growth of submissions, this does not amount to an unmanageable situation. A separate dispute settlement forum, for individual claims under WTO has also been proposed. In any event, to the extent that private claims might not require, in the future, government sponsorship, there will still be a need for a screening procedure in order to ensure that only those claims involving genuine merit and interests will accede to the dispute settlement arrangements.

XII. An International Alternative Dispute Resolution System The need to facilitate dispute settlement in a broader context, particularly in so far as disputes increasingly involve private interests in a global market, has led to the development of an international alternative dispute resolution system, supplementing the public system of international adjudication. One element encouraging alternative arrangements is the need of contemporary dispute settlement to ensure prevention rather than resolution of ongoing disputes, an objective which can be repeatedly achieved only by means of new mechanisms. The prevalence of market economies already noted will increasingly have a strong influence in the development of alternative dispute settlement. As a result of this development, the traditional methods for dispute settlement under international law have been experiencing a rapid and significant transformation. This is particularly noticeable in conciliation, mediation and arbitration, for example, in the introduction of new approaches such as fast-track arbitration. The development of private commercial arbitration has had also an important influence in the perfection of arbitration mechanisms generally. Domestic alternative dispute resolution methods such as court-ordered arbitration, private judging or neutral evaluation, among others, are gradually finding their way into international dispute settlement as they offer practical and less costly approaches to reaching a settlement. Since the international community has presently a system of public courts, albeit limited, and also a limited alternative dispute resolution


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system, both likely to be importantly developed in the twenty-first century, the question that follows is whether all of it can be brought together to the extent necessary to provide an effective system of international justice. It must be kept in mind, however, that not all arrangements need to be integrated into some common structure, nor should this lead to a strict hierarchy of international tribunals or methods as this would result in curtailing the freedom of choice of the parties or the flexibility to arrange for specific dispute settlement in the context of particular activities or problems. It is rather a question of bringing to the parties' attention, in an organized way, the various choices at their disposal and how they could take advantage of these alternatives: a first approach is to encourage the referral of some cases by the ICJ or other tribunals to alternative dispute resolution if this is considered useful for the settlement of the dispute. Both the PCIJ and the ICJ have, in fact, occasionally encouraged the parties to negotiate and settle in the course of the proceedings, and this other suggestion would simply provide a more systematic approach and a greater variety of choices conducive to the same end. A second approach is to consider to the extent necessary the development of an international supervisory function interrelating, in particular, arbitration with the role of the ICJ or other such arrangements. Recent proposals point toward an institutionalized international review of arbitral awards by means of the establishment of an International Arbitral Court of Appeal or the creation of an International Court of Arbitral Awards.

XIII. A Privatized System of Dispute Resolution The kind of interrelationship of methods that has been discussed is not restricted, of course, to courts and arbitration, but covers the whole spectrum of alternative dispute resolution to the extent that it might be useful and conducive to a settlement. The principle of subsidiarity has also an important role to play in international dispute settlement. Just as in a domestic context this principle calls for state intervention only when individuals cannot appropriately perform a social or economic function by themselves, so too in the international community a privatized system of alternative dispute resolution should be allowed to undertake these tasks to the fullest extent possible, and public courts should only intervene in some kind of disputes or else in exercising a supervisory function.

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To the extent that these various approaches are organized, guided and encouraged, the alternative dispute resolution system that has been gradually emerging will become broadly available in the twenty-first century. In this context the individual and other non-state entities will attain the full expression of their international legal personality. It is only then that we might be able to say that we truly belong to a global international community. Thank you again for your invitation.

Multiplication of International Courts and Tribunals and Conflicting Jurisdiction — Problems and Possible Solutions Karin Oellers-Frahm

I. II.

Introduction Reasons for Conflicting Jurisdiction 1. Peculiarities of International Law 2. Peculiarities of International Jurisdiction a. General Principles of International Jurisdiction b. Decentralisation of International Judicial Bodies c. Consequences of the Decentralisation of International Judicial Bodies aa. The Principle of stare decisis bb. The Principle of lis pendens III. Cases of "Conflicting" Jurisdiction 1. The Nicaragua and the Tadic Case 2. The Loizidou Case 3. The Case Concerning Article 36 para. 1 lit.(b) of the Vienna Convention on Consular Relations 4. The Swordfish Case 5. Treaty Provisions Concerning Avoidance of Conflicting Jurisdiction 6. Conclusion IV. The ICJ as Guarantor of the "Unity* of International Law 1. Advisory Function of the ICJ a. Courts and Tribunals created in the Framework of the UN b. Courts and Tribunals not created within the Framework of the UN c. Procedural Questions 2. Direct Reference by Courts and Tribunals to the ICJ 3. Creation of a Special Body 4. Concerns on Behalf of the ICJ V. Concluding Remarks 67 J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 67-104. © 2001 Kluwer Law International. Printed in the Netherlands.

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I. Introduction "The proliferation of international courts gives rise to a serious risk of conflicting jurisprudence, as the same rule of law might be given different interpretations in different cases. ... A dialogue among judicial bodies is crucial. The International Court of Justice, the principal judicial organ of the United Nations, stands ready to apply itself to this end if it receives the necessary sources."1 This statement of the President of the ICJ, Gilbert Guillaume, which repeats a similar statement of former President Schwebe12 meets a central concern of international lawyers who meanwhile are involved in a lively discussion of this issue.3

Statement of the President of the ICJ to the United Nations General Assembly of 26 October 2000; cf. website of the ICJ http://www.icj-cij.org ICJ Press Communique 99/46 of 26 October 1999. J. I. Charney, "Is International Law Threatened by Multiple International Tribunals?" RdC 271 (1998), 101 et seq.; "The Proliferation of International Tribunals: Piecing Together the Puzzle, Symposium Issue, N. Y. U. J. Int'l L.& Pol. 31 (1999), 679 et seq. with reports by B. Kingsbury, "Foreword: Is the Proliferation of International Courts and Tribunals a Systematic Problem?", 679 et seq; J.I. Charney, "The Impact on the International Legal System of the Growth of International Courts and Tribunals", 697 et seq; C. P. R. Romano, "The Proliferation of International Judicial Bodies: The Pieces of the Puzzle", 709 et seq.; E.-U. Petersmann, "Constitutionalism in International Adjudication: How to Constitutionalize the U.N. Dispute Settlement System?*, 753 et seq.; P.-M. Dupuy, "The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice", 791 et seq.; T. Treves, " Conflicts Between the International Tribunal for the Law of the Sea and the International Court of Justice", 809 et seq.; J. H. Jackson, "Fragmentation or Unification Among International Institutions: The World Trade Organization", 823 et seq.; M. Pinto, "Fragmentation or Unification Among International Institutions: Human Rights Tribunals", 833 et seq.; G. Abi-Saab, "Fragmentation or Unification: Some Concluding Remarks", 919 et seq.; H. Thirlway, "The Proliferation of International Judicial Organs and the Formation of International Law", in: W.P. Heere (ed.), International Law and The Hague's 750th Anniversary, 1999, 433 et seq.; T. Treves, "Advisory Opinions of the International Court of Justice on Questions Raised by Other International Tribunals", Max Planck UNYB 4 (2000), 215 et seq.; T. Treves, "Le Tribunal International du Droit de la Mer et la multiplication des juridictions internationales", Riv. Dir. Int. 83 (2000), 726 et seq.

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While some fifty years ago it seemed rather unrealistic to imagine a dramatic multiplication of international courts and while at that time a main concern in international law was to convince states of the attractiveness and usefulness of third-party dispute settlement4, we now are faced with a multitude of third-party dispute settlement instruments5. This state of affairs should, and does, essentially cause satisfaction because it shows that the development of peaceful dispute settlement may be regarded as a success story. As a matter of fact, we are confronted not only with a quantitative development of dispute settlement bodies but also with a qualitative expansion and transformation of the nature and competence of those bodies which are not only aimed at the settlement of disputes but also at ensuring and monitoring compliance with international law. Thus, international dispute settlement is no longer restricted only to resolve interstate disputes; the number of judicial bodies granting standing to non-state entities outnumber meanwhile the traditional jurisdictions limited to disputes between sovereign states. For the purpose of this article, however, it is not necessary to go deeper into this aspect of the transformation of international dispute settlement6, but it is sufficient to clarify that the terms "jurisdiction", "judicial body", "international courts and tribunals" will describe essentially those organs that are established by an international legal instrument, that apply international law and that deliver binding decisions7. The problems which may arise — and to a small extent have already arisen — in the context of the multiplication of international courts are worthy of detailed examination as to the question whether and to what extent those problems are really imminent and what can be done to counter them in due course. The main issues in this context refer to the 4

5

6 7

For an overview over the efforts in the framework of the United Nations see H. Mosler, "Chapter XIV. The International Court of Justice," in: B. Simma (ed.) Charter of the United Nations, A Commentary, 1994, 973 et seq., (981-982). In the second edition of K. Oellers-Frahm/A. Zimmermann, Dispute Settlement in Public International Law, Texts and Materials, 2001. For more details cf. Romano, see note 3, 709 et seq. For the criteria characterising an international court, tribunal or body cf. C. Tomuschat, "International Courts and Tribunals with Regionally Restricted and/or Specialized Jurisdiction", unjudicial Settlement of International Disputes: International Court of Justice, Other Courts and Tribunals, Arbitration and Conciliation: An International Symposium, Max Planck Institut fur auslandisches offentliches Recht und Volkerrecht, 1974, 285 et seq.

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increased danger to the unity of international law by conflicting jurisdiction. Therefore, we must first look at the reasons for conflict which are not explained merely by reference to the multiplication of judicial bodies in international law but relate to the particularities of international law as reflected in international jurisdiction (cf. II.). On this basis, some cases will be analysed in more detail in order to illustrate what exactly has to be understood as "conflicting jurisdiction", whether it really constitutes a danger to the unity or cohesiveness of international law and what means are available in order to avoid passive and active conflicting jurisdiction (cf. III.). Finally, the above cited proposal made by the two Presidents of the ICJ has to be examined, namely whether the ICJ should or might be the forum to guarantee the unity of international law by way of rendering advisory opinions on the interpretation of international law questions referred to it by other courts or tribunals (cf. IV.). An evaluation of the situation and outlook will serve as concluding remarks (cf. V.).

II. Reasons for Conflicting Jurisdiction The main concern with regard to the multiplication of international courts and tribunals is the imminent danger for the unity of international law, arising from the possibility of conflicts of jurisdiction either active or passive, between these bodies and the risk of contradiction or conflict of findings and interpretation, for the same rule of law may be given different interpretations in different cases before different institutions8. This danger is not only a virtual one, but it is a real one, as the following examples, which will be examined in more detail in the relevant context, may confirm: in the LaGrand Case before the ICJ the Court will have to state upon the question whether article 36 para. 1 lit.(b) of the Vienna on Convention on Consular Relations contains the right for an individual to have his consul informed of his being taken into custody; the same question has already been considered by the Inter-American Court of Human Rights, although not in a judgment, but in an advisory opinion9; a similar situation was present in the Loizidott 8 9

Abi-Saab, see note 3,919 et seq., (922). Advisory Opinion OC-16/99 of 1 October 1999, The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, http://corteidh-oea.nu.or.cr/ci/PUBLICAT/SERIES_A/A_16_ ING.HTM


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Case10, where the European Court of Human Rights had to state on the consequences of an illegal reservation to a declaration of acceptance of jurisdiction, a question which had been pending more than once before the ICJ although the latter never had to decide definitely on this issue; further mention may be made of the conflicting findings on state responsibility for acts of armed forces by the ICJ in the Nicaragua Case and the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Tadic Case11; and finally, the Swordfish Case12 may serve as an example of the increasing danger of overlapping jurisdiction leading to the simultaneous seizing of two judicial bodies of the same case involving the same parties. These are not the only relevant cases, but they can be regarded as models for the reasons and the kind of conflict that may arise if different courts or tribunals have to interpret the same rule of law or to judge upon the same conflict.

1. Peculiarities of International Law The concern that the multiplication of international judicial bodies may endanger the unity of international law requires as a first approach some although brief considerations on the characteristics of international law. The main features of international law are that it is not a comprehensive body of law consisting of a fixed body of rules applicable to all states and that there is no central legislative organ. International law is in permanent development13, its actors and its ambit of activity have increased considerably over the last fifty years and so have the institutions consecrated to ensure compliance with in-

10 11

12

13

Loizidou v. Turkey, ECHR, Series A, Vol. 310,23 March 1995. Prosecutor v. Tadic, Judgment of the Appeals Chamber, ILM 38 (1999), 1518 et seq. This case between Chile and the EU had arisen as a consequence of the closing of Chilean ports to vessels flying the flag of an EU Member State and had been brought at the same time before the ITLOS and the WTO dispute settlement regime. It would have been interesting under several aspects, namely the aspect of litispendence or forum shopping, to see how the two judicial bodies would handle the situation. At the moment of writing it seems, however, that the case will not be judged upon because of an amicable extra-judicial settlement between the parties; cf. http://europa.eu.int/ trade/miti/dispute/swordfish.htm Jackson, see note 3, 823 et seq., (828 et seq).

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ternational legal obligations14. The evolution of international law is necessary in order to adapt it to new conditions of international life; however, since international law-making is slow and not concentrated in a law-making body, this adaptation is, in the first place, the task of the international judges, or, to be more precise, the judges have to state whether an adaptation has taken place — because judges do not make law. It is therefore possible that the question of whether a rule of customary international has already come into existence or not and what exactly is its content may be differently answered by different judicial bodies. In this context it would in fact be desirable and helpful to have a central organ to which such questions may be referred for decision, as exists e.g. in several national systems. It is, however, not only the developing character of international law which may be the reason for real or only apparent differences in stating what is the law, but also the fact that international law is not a corpus of law binding equally upon the whole community of states — as is the case in national law as well as in the framework of international organisations, particularly those with a high degree of integration, such as the European Union (EU). International law only contains very few rules which are binding upon all members of the state community, namely ins cogens. The remaining rules of law, in particular the large body of customary international law, allows derogation in the form of special regional customary law or by agreement. As a consequence, in international law we have a multitude of treaties creating special law binding only upon the parties to the treaty15. Therefore, international law is characterised by "fragmentation" or "decentralisation" so that the term "unity" of international law cannot be understood in a formal sense of a body of rules applicable equally to the whole state community. Only in exceptional fields may a kind of "unity" of international law, generally circumscribed as "regime"16, be found to exist, such as in the field of human rights or the law of the sea, where general acceptance by the majority of states has been given to a codified body of rules. These remain, however, until now, exceptions but constitute a first step in the direction of unity of international law in fields of common concern. Whether in general international law there does already exist at least 14 15 16

Abi-Saab, see note 3,919 et seq., (923). Charney, see note 3,101 et seq., (235). Cf. M Ruffert, "Zustandigkeitsgrenzen internationaler Organisationen im institutionellen Rahmen der internationalen Gemeinschaft", AVR 38 (2000), 129 et seq., (141 et seq.).


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some kind of obligation of respect or coordination between the different actors in international law in order to avoid conflicts or collisions of law, cannot to be answered in this context17. The few remarks made above make it already clear that the existing fragmentation of international law will be reflected also in international jurisdiction: this does, not however, amount to "conflicting" jurisdiction but only to variances flowing from the particularities of international law. What is at stake in this context is therefore not really the unity of international law, but rather the consistency or cobesiveness of international law in the sense that the interpretation and application of all rules of international law, in particular special rules of international law, has to be effected in respect of the concepts, the basis of legitimacy and the formal standards of pertinence governing international law18. Therefore, conflicting jurisdiction does not exist where differing obligations are found to exist or where similar obligations are embedded in a different context which has to govern their interpretation; these situations require for the sake of consistency of international law only, that the process of finding what is the law in a particular case, does follow or rely on the basic governing principles of international law19. Conflicting jurisdiction therefore may only occur where the same rule of law is interpreted or applied in a divergent manner by different international judicial bodies, a situation, which will be rather the exception, since the majority of international judicial bodies have been created within a special, even very special, context to decide disputes arising in this context. Nevertheless, such conflicts are possible20, and may even increase due, on the one hand, to the multiplication of courts and tribunals competent in the same subject-matter, or, on the other hand, the fact that the interpretation of a special provision has to be made in the context of other fields of international law, as e.g. the interpretation of human rights may have to give regard to questions of humanitarian international law, or environmental provisions to aspects of the law of the sea etc. As there is no hierarchy between either the rules of international law or the judicial bodies, the concern for diverging ju17 18 19

20

Cf. Ruffert, see above, 132. Abi-Saab, see note 3, 919 et seq., (926). F. O. Vicuna/ C. Pinto, "The Peaceful Settlement of Disputes: Prospects for the Twenty-First Century, Preliminary Report prepared for the 1999 Centennial of the First International Peace Conference, Council of Europe, Doc. CAHDI (98) 15, 1998,45. Cf. infra under III. 4.

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risdiction is well-founded. Without going deeper into this issue, these brief considerations on the status of international law already explain that the possibilities of international courts and tribunals to preserve the "unity" of international law are rather limited because they, too, are part of the decentralised system of international law; therefore, their task is primarily to identify the basic principles of international law governing the decentralised international society.

2. Peculiarities of International Jurisdiction a. General Principles of International Jurisdiction In international law, the judicial settlement of disputes is not entrusted to a pre-disposed system of jurisdiction; there does not exist an obligatory jurisdiction as in national law. Under Article 33 of the UN Charter, states are free to settle their disputes by any means they want to, so long as these means are peaceful; there is, thus, no obligation to have recourse to judicial settlement. However, the fact that the growing number of actors in the international field and the globalisation and multiplication of activities and agreements have considerably increased the body of international law has consequently also led to an increased recourse to judicial settlement. But, since in international law, courts and tribunals are created by the states according to their needs, a growing number of treaties — unfortunately also different treaties with different parties concerning the same subject-matter — provide for special judicial bodies for the settlement of disputes arising in the framework of that particular treaty21. Moreover, as those treaties often concern very special matters, the judicial organs created by them are not necessarily composed of persons chosen for their knowledge in international law, but for their knowledge in the specific subject-matter provided for in the treaty which will not necessarily be aware of the implications, connections, and legal relationship between some newly-established mechanism and the norms of general international law which still are applicable22. This may easily lead to conflicting jurisdiction in particular with regard to treaties ruling on similar or identical subject-matters, e.g. in the field of environment or other technical matters. 21

22

E. Brown Weiss, "The new international legal system", in: J. Nandasiri (ed.), Perspectives on International Law, 1995,63 et seq., (80-81). Dupuy, see note 3, 791 et seq., (797).


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b. Decentralisation of International Judicial Bodies The fragmentation or decentralisation of international law is reflected in the decentralisation of judicial bodies which are not part of a closed judicial system but function independently of each other in the framework of a treaty concerning a particular subject-matter. There is only one international court with universal jurisdiction, namely the ICJ, which is open to all states and may decide all questions of international law. All other international courts and tribunals have been created within a particular context which generally is not only subject-matter oriented, but also regionally confined so that regionally prevailing concepts of the relevant rule of law in the context of the specific subjectmatter of the instrument creating the court will play a major role in the decision-finding of the court. As already mentioned, all these different judicial bodies are autonomous institutions and do not stand in an organised relationship23; they reach their decisions independently of each other since there exists neither a hierarchy between them nor even a general obligation of coordination or cooperation. The only common denominator, therefore, is the fact that in all cases and before all courts and tribunals it is international law which has to be applied; no "self-restrained" regimes leaving the framework of international law are admissible24 and even if sometimes extremely specific matters have to be dealt with, they have to be embedded in international law concepts. c. Consequences of the Decentralisation of International Judicial Bodies The fact that there does not exist a hierarchy between international judicial bodies has a further disadvantageous consequence for the uniformity of international law and international jurisdiction. Since each

23

24

The only exception exists for the new ad hoc Criminal Tribunals for the former Yugoskvia and for Rwanda which not only provide for a two degree jurisdiction with an appeal possibility, but where, according to the decision of the Appeals Chamber in the Aleksovski Case, decisions of the Appeals Chamber are binding upon the Trial Chambers, and generally also upon the Appeals Chamber unless strong reasons plead for derogation, cf. ICTY, Prosecutor v. Zlatko Aleksovski, Judgment of the Appeals Chamber, IT-95-14/1-A, 24 March 2000, § 92 et seq. Cf. Abi-Saab, note 3,919 et seq., 926.

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judicial body is autonomous with regard to the other ones the principles of stare decisis and lis pendens (or litispendence), which in national law play a major role in avoiding conflicting jurisdiction, have no place in international jurisdiction25. aa. The Principle of stare decisis The principle of stare decisis which is known from the common law system and according to which final judgments constitute generally — even for the judging court — binding precedents is an appropriate means, although no guarantee, to preserve the unity or consistency of the law. The lack of any organisational relationship between international judicial bodies, however, which all have only to decide the case before them with binding force for the parties to the case only makes decisions of other courts and tribunals res inter alios acta. As international courts and tribunals exist on the same footing so do their decisions; there is no obligation to take into account their own previous decisions or those of other judicial bodies, even if they do concern the same subject-matter and even if there are bodies more specialised or experienced in a particular subject-matter. Nevertheless, it may be stated that international courts and tribunals, and especially the ICJ, usually refer at least to their own precedent jurisdiction and only derogate from it in exceptional situations26. Furthermore, as a rule, international courts concentrate their decision on the concrete dispute brought before them and avoid to give obiter dicta or to generalise their findings to situations not covered by the concrete dispute27. In particular the jurisprudence of the ICJ is often referred to by other judicial bodies as stating the generally applicable law, be it with regard to rules of customary international law, the interpretation of treaty provisions or other ques25 26

27

Charney, note 3,101 et seq., 129. As an example reference may be made to the question concerning the requirement of a jurisdictional link in interventions under Article 62 of the Statute of the ICJ. Although the ICJ had never based the dismissal of a request for admission of intervention on the lack of a jurisdictional link, this aspect had clearly been of decisive influence in the cases of Malta and Italy, ICJ Reports 1981, 3, et seq., (20), respectively ICJ Reports 1984, 3 et seq., (28). The turn came when, in the El Salvador Case, the judges forming the dissenters in the foregoing cases were on the bench of the 5 member chamber and found that for an intervention according to Article 62 of the Statute a jurisdictional link was not required, ICJ Reports 1990,92 et seq. Cf. Dupuy, see note 3, 791 et seq., (802 et seq.).

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tions of international law28. Although this serves the unity and consistency of international law it has to be kept in mind that there is no obligation to do so because there is no general binding force flowing from decisions of international courts, since they are only binding upon the parties to the case. bb. The Principle of lis pendens The doctrine of litispendence is aimed, as well as that of stare decisis, at avoiding conflicting jurisdiction. In national law, litispendence means that a question pending before one tribunal may not be brought before another tribunal or at least that one of the tribunals shall declare it inadmissible because of its pendency before another tribunal. Several rules exist in national law providing for the different constellations which may lead to litispendence which for the sake of the unity of jurisdiction should by all means be avoided29. Whether this principle may be transposed into the sphere of international law, seems, however, questionable. Although there is no doubt that litispendence should be avoided also on the international plane30, only some authors accept the existence of this principle in international law31, while the majority of modern authors do not even cite it, but plead for the application of other means to reach the same aim such as denial of admissibility of the claim or of standing or of the legal interest to sue. The reason therefore is that due to the character of international jurisdiction, namely organs of a different character created by the states for particular needs not standing in any hierarchical relationship, the prerequisites constituting litispendence will be present only in very exceptional cases. Those prerequisites are, according to the PCIJ that two identical actions are pending at the same time before courts of the same character32. Although it may be possible also in international law that two or more

28 29

30 31

32

Charney, see note 3,101 et seq., (347). In France there exists even a particular tribunal, the "Tribunal des Conflits" whose sole task it is to decide cases of conflicting jurisdiction, cf. G. Dupuis/ M.-J. Guedon, Droit Administratif, 1993, 539. G. Dahm, Volkerrecht, Vol. 2,1961, 515. The existence of the principle of litispendence in international law is accepted e.g. by D.P. O'Connell, International Law, Vol. I, 1965, 13 and P. Guggenheim, Traite de droit international public, Vol. 2,1954,149. Cf. Case concerning certain German interests in Polish Upper Silesia, PCIJ Series A, No. 6,20.

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actions are identical, in the majority of cases in international law the courts or tribunals seized will, however, not be of the same character so that even if the doctrine of litispendence would be accepted it would, in general, not be applicable.

III. Cases of "Conflicting" Jurisdiction On the basis of these preliminary remarks we must look very closely at some of the cases said to be "conflicting" which shall serve as models for the different categories giving reason for possible conflicts. The cases concern on the one hand deviations in subsequent decisions rendered by different courts on identical questions and raise the problem of genuine conflict as opposed to only apparent conflict of jurisdiction which may result from a development in international law or from the differing context in which the issue arose. After that, cases of possible conflicts of jurisdiction due to the simultaneous seizing of more than one judicial body with the same matter will be illustrated. Both alternatives call for a thorough examination of the special circumstances of the case in order to delimit genuine cases of conflicting jurisdiction from merely apparently ones.

1. The Nicaragua and the Tadic Case The case most often cited as an example of conflicting jurisdiction33 is the Nicaragua Case decided in 1986 by the ICJ34 in comparison to the Tadic Case decided in 1999 by the Appeals Chamber of the ICTY35. In its decision on appeal against the Tadic judgment of the Trial Chamber36 the Appeals Chamber had to determine whether the armed conflict in Bosnia and Herzegovina between the Bosnian Serbs of the Republika Srpska and the central authorities of Bosnia and Herzegovina could be qualified as an international conflict from the date when the Yugoslav 33

34

35

36

See note 1, 4; Sir R. Jennings, "The Proliferation of Adjudicatory Bodies: Dangers and Possible Answers", in: ASIL, Bulletin Nr. 9 (1995), 5 et seq. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Reports 1986,14 et seq. Prosecutor v. Tadic, Judgment of the Appeals Chamber, ILM 38 (1999), 1518 et seq. Judgment of 7 May 1997, Case No. IT-94-1-T.


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National Army had withdrawn from Bosnia and Herzegovina. The question at stake was whether the armed forces of the Bosnian Serbs were to be regarded as armed forces of the Federal Republic of Yugoslavia or of Bosnia and Herzegovina. If they were regarded as part of the armed forces of the Federal Republic of Yugoslavia, the conflict was an international one according to article 4 of the Geneva Convention (III) relative to the Treatment of Prisoners of War of 1949. According to the Appeals Chamber, the requirement of article 4 concerning the "belonging [of armed forces] to a Party to the conflict" implicitly "refers to a test of control"37. In the context of the examination of the degree of control which defines whether armed forces belong to one or the other party, the Appeals Chamber referred to the notion of control as defined by the ICJ in the Nicaragua Case. In that case, the ICJ came to the conclusion that the control exercised by a state over armed forces acting in another state, here the Contras acting in Nicaragua, had to be an "effective control of the military or paramilitary operations in the course of which the alleged violations were committed"38, because what it had to decide upon were not the violations of international humanitarian law enacted by the Contras, but the unlawful acts for which the United States were to be held directly responsible in connection with the activities of the Contras. In its decision, the Appeals Chamber did not only not share these findings of the ICJ — what is legitimate, but ought to be motivated — but entered into an exhaustive discussion and even review of the findings of the ICJ going so far as to criticise the decision of the ICJ as "not always following a straight line of reasoning" and as "at first sight somewhat unclear"39. It is not the place here to retrace in detail the arguments of the ICJ nor those of the Appeals Chamber on this topic because the few indications given above already show clearly that the Appeals Chamber has by far overstepped its judicial function40 which is the review of judgments of the Trial Chambers of the ICTY and the International Criminal Tribunal for Rwanda (ICTR), not the review of judgments of the ICJ or any other court or tribunal. Although it is not only legitimate but even desirable that a court or tribunal in finding its decisions gives regard to decisions of other courts and 37 38 39 40

Ibid., para. 95 of the judgment. ICJ Reports 1986,14 et seq., (62 et seq.). Tadic Case, see note 11, paras 108 and 114 et seq. So also Judge Shahabuddeen in his separate opinion to the decision of the Appeals Chamber in the Tadic Case, see note 11, para. 5 of the separate opinion.

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tribunals on comparable items, the scope of regard given to a decision of another court or tribunal cannot, however, result in a review of that decision but has to be restricted to examining how far that decision may serve as a guideline for the case in hand and whether the circumstances of the case allow its application. If the circumstances are more or less identical and plead for the application of the decision referred to, the deciding tribunal may nevertheless deviate from the decision of the other court, however by giving convincing reasons. In the case under discussion, the time span between the two decisions was more than ten years; ten years during which exactly the question of armed conflict played a rather significant role and led to the gathering not only of state practice but also of judicial practice41. Therefore, it was not at all improbable that changes might have occurred in the handling of the control required for attributing acts of armed forces to a certain state and that the standards applied by the ICJ in the Nicaragua Case would no longer be tenable. A finding to this effect would not have constituted a "conflict" between two decisions, but rather a clearly visible development of international law and practice and the statement by a tribunal of such international development. If the Appeals Chamber had proceeded in this way, it would not be necessary to criticise, for it would have acted according to the restraint required from each court and tribunal, namely to decide merely the case submitted and to analyse decisions of other courts only to the extent necessary to find its own decision, but in no circumstances to review the decision of another court in the manner as the Appeals Chamber did in this case. Therefore it may be concluded that the Tadic Case is not one of conflicting jurisdiction, but one of ultra vires jurisdiction which is plainly unacceptable and hopefully will remain an exception. The considerations developed above in the context of the Tadic Case, show furthermore, that "conflicting jurisdiction" has to be looked at very closely and that it depends to a high degree on the particularities of the case and on the reasons given by the tribunal concerned whether we are confronted with "conflicting" or simply "developing" or "varying" jurisdiction — what makes a decisive difference. As a matter of fact, this statement should not, however, be strained to it extremes, for each case may be distinguished from any other, so that the 41

Most of the state and judicial practice cited by the Appeals Chamber under the heading "The Nicaragua Test is at Variance with Judicial and State Practice", see note 11 paras. 1124 et seq. dates from years after the Nicaragua decision.


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particularities of each case could always lead to the conclusion that there is no consistency and coherence among international law cases and that therefore variations in international judicial decisions do not amount to a conflict. To argue in this way seems however too artificial; for what is relevant is whether the tribunals are engaged in the same dialectic and render their decisions under compatible systematic aspects, despite minor differences which are always present.42

2. The Loizidou Case A case which may be cited as confirming this view, but which, however, is often cited under the heading of "conflicting jurisdiction", is the Loizidou v. Turkey Case decided by the European Court of Human Rights43. In this case, the Court was faced with questions concerning reservations to declarations accepting the compulsory jurisdiction of the Court and of the European Commission of Human Rights. In the actual case the reservation concerned the restriction of the territorial scope of the acceptance of jurisdiction made by Turkey according to the then valid arts 25 and 46 of the European Convention on Human Rights (ECHR), namely the exclusion of acts having been committed in the "Turkish Republic of Northern Cyprus". The Court found that a territorial restriction of the acceptance of its jurisdiction was not compatible with the Convention thus giving a restrictive interpretation to arts. 25 and 46 para. 2 of the Convention. The wording of these articles is materially identical to Article 36 para. 3 of the Statute of the ICJ which, however, had always given a large interpretation to Article 36 para. 3 of the Statute and until now never had declared a reservation incompatible with the Statute44. Therefore, the ICJ was never confronted with the question which the Court had to decide in the Loizidou Case, namely what are the consequences for the declaration of acceptance if one of the reservations is found to be invalid, a question that had only

42 43 44

In this sense also Charney, see note 3,101 et seq., 137. Loizidou v. Turkey, ECHR, Series A, Vol. 310,23 March 1995. Interhandel, ICJ Reports 1959, 6 et seq., Certain Norwegian Loans, ICJ Reports 1957, 9 et seq., (56 et seq.) - and most recently Aerial Incident of 10 August 1999 (Pakistan v. India), Judgment of 21 June 2000 and Fisheries Jurisdiction (Spain v. Canada), ICJ Reports 1998,432 et seq.

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been discussed in separate opinions to judgments of the ICJ45. The Court found that the invalidity of the reservation did not affect the validity of the acceptance as such, since the reservation was severable from the declaration. The Court gave detailed reasons not only for the restrictive interpretation of the validity of reservations to the acceptance of jurisdiction, but also to its finding of the severability of reservations from the declaration of acceptance, nevertheless it has been criticised for being in conflict with the jurisprudence of the ICJ46. This critique is, however, a rather isolated one, since other commentators rightly underlined that, although the wording of the articles which the Court had to interpret were nearly identical, that does not mean that they have to be construed identically, for treaty interpretation has to give regard not only to the wording of the provisions but also to the purpose of the treaty itself and the intent of the parties47. Since the European Court of Human Rights gave a detailed explanation of its decision, especially with regard to the jurisdiction of the ICJ in similar matters,48 and since this explanation was fully consistent with the Vienna Convention on the Law of Treaties, we cannot speak of "conflicting jurisdiction" because the context, object and purpose of the treaties at stake, the ECHR and the Statute of the ICJ, are different. Therefore, it may even be regarded as a "confidence building measure" that the Court took into account the particularities of adjudication under the Convention as compared to the dispute settlement under the Statute of the ICJ49 and thereby acted explicitly in consonance with international law which does not require that merely formally similar commitments have to be treated alike but which rather requires that each situation be judged according to its specific characteristics and in accordance with international law50. 45

46

47 48 49 50

Cf. in particular the separate opinion of Sir Hersch Lauterpacht in the Norwegian Loans Case, ICJ Reports 1957, 9 et seq., (55-59); cf. also most recently Fisheries Jurisdiction Case (Spain v. Canada), ICJ Reports 1998, 432 et seq., (paras 36 et seq. and separate and dissenting opinions). Sir R. Jennings, "The Proliferation of Adjudicatory Bodies: Dangers and Possible Answers", in: ASIL, Bulletin Nr. 9 (1995), 5 et seq.; see also Treves, Advisory Opinions.., see note 3,223. Thirlway, see note 3,437-438. Loizidou v. Turkey, see note 10, paras 83 et seq. Charney, see note 3,161 et seq. As a confirmation of these findings of implementing effectively the Convention reference is made to the recent "gypsy" cases of 18 January 2001 (Chapman v. United Kingdom; Jane Smith v. United Kingdom; Coster v.


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The special significance of human rights and human rights instruments is generally recognised in international law, and by its decision in the Loizidou Case, the Court underlined this state of affairs, which calls for a more restrictive interpretation of reservations of declarations of acceptance than in areas not as sensitive as human rights. It may, by the way, be permitted to see the Loizidou decision in the context of the efforts to amend the Convention and the adoption of Protocol No. 11 in 1994 according to which the jurisdiction of the Court is no longer optional nor subject to reservations. For the reasons given above the Loizidou Case is, at most, one of seemingly conflicting jurisdiction; materially it is an example of differentiating according to the special treaty goals within the framework of a systematically consistent application of international law. The same terms in a provision appearing in different treaties do not necessarily call for identical interpretation, since under international law not only the terms, but the context, purpose and object of the treaty have to be taken into consideration. This shows that the danger of conflicting jurisdiction due to the multiplication of international courts and tribunals is in fact less acute than it may seem at first sight. In his impressive lecture at The Hague, Charney51 has demonstrated, by citing abundant practice, that as a matter of fact there are variations in international jurisdiction, which however may be justified with a view to the different substantive regimes within which such tribunals have to decide. So long as these tribunals operate within the same dialectic and reach compatible conclusions, one cannot speak of conflicting jurisdiction but rather may consider these variations as "some healthy experimentation and movement in international law itself"52. Nevertheless, these examples demonstrate the pressing need for inter-court dialogue and respect for decisions of other judicial bodies as well as the importance of detailed reasoning in order to make comprehensible the result reached by the tribunal.

51 52

United Kingdom; Lee v. United Kingdom) where the Court underlined that it is not bound by previous judgments and has to consider the changing conditions in Contracting States (para. 70 in the Chapman Case, cf. also to the more explicit statement in para. 1 of the joint dissenting opinion of judges Pastor Ridruejo, Bonello, Tulkens, Strasnicka, Lorenzen, Fischbach and Casadevall. See note 3,101 et seq. Ibid., 352.

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3. The Case Concerning Article 36 para. 1 lit.(b) of the Vienna Convention on Consular Relations The interpretation of the same rule of law, namely article 36 para. 1 lit.(b) of the Convention on Consular Relations was pending at the same time before the Inter-American Court of Human Rights and the ICJ. This provision concerns the consular assistance in cases of detention of a person in a foreign country and the consequences of a violation of giving such assistance to a detainee. The problem had arisen in several cases and had led Mexico to submit on 9 December 1997 a request for an advisory opinion to the Inter-American Court including among others the question of the interpretation of article 36 para. 1 lit. (b) of the Convention on Consular Relations; at nearly the same time, namely 3 April 1998, Paraguay brought the same issue before the ICJ in order to stay the imminent execution of a Paraguayan citizen in the United States who had not been timely informed of his rights under the Consular Convention. While Paraguay desisted from the case after the disregard by the United States of the provisional measures ordered by the Court53, a second request on the same subject was brought before the ICJ by Germany on 2 March 199954, concerning the stay of the imminent execution of the German citizen LaGrand sentenced to death in the United States and who likewise had not been informed of his rights under the Convention. Thus, the same question, namely whether article 36 para. 1 lit.(b) of the Convention gives the individual the right to have his consular authorities informed without delay of his detention, was pending simultaneously before the ICJ and the Inter-American Court, although the latter was not called upon to give a binding decision but "only" a non-binding advisory opinion. The Inter-American Court, in delivering its opinion on 1 October 1999, was fully aware of the fact that the same question was pending before the ICJ. It was, however, of the opinion that although, in principle, it may decline to give an advisory opinion there was no reason to do so in this case. It argued that the purpose of its advisory function is to assist the American States in fulfilling their international human rights obligations and to assist the different organs to carry out the function assigned to them in this field55. The fact that the same question was also pending before the ICJ in a contentious case cannot, in the view of the Court, restrain it from exer53 54 55

ICJ Reports 1998,248 et seq. ICJ Reports 1999,9 et seq. See note 9, para. 59.


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cising its advisory jurisdiction because it is an " autonomous judicial institution"56. The Court then made some remarks on the danger of conflicting interpretation of the same provision which it regarded as a "phenomenon common to all those legal systems that have certain courts which are not hierarchically integrated. ... Here it is, therefore, not unusual to find that on certain occasions courts reach conflicting or at the very least different conclusions in interpreting the same rule of law"57. The Court referred at the same time to the possibility that the UN Security Council or the General Assembly might ask the ICJ to render an advisory opinion concerning the interpretation of a treaty, that would, however, not restrain the Inter-American Court from also rendering an advisory opinion on the same provision. The Court thus did not see any obstacle in the fact that the same question was pending before the ICJ, neither in that this was in contentious proceedings nor in that this would be in advisory proceedings. The Court consequently rendered its opinion and found "that Art. 36 of the Vienna Convention on Consular Relations confers rights upon detained foreign nationals, among them the right to information on consular assistance, and that said rights carry with them correlative obligations for the host State"58. At the time of writing, the LaGrand Case had not been decided on the merits by the ICJ and it remains to be seen how or whether at all the ICJ will consider the advisory opinion of the Inter-American Court. This case clearly comes close to what is known as litispendence in national law. According to this principle as applied in national law, the Inter-American Court was right to decide the question because it was the first court seized with the matter and moreover because the ICJ had, at the moment of the decision of the Inter-American Court, not yet addressed the merits of the case59. However, even if it were submitted that the principle of litispendence is transferable to the international sphere — what seems rather questionable as explained above60 —, the case at hand would not be covered by this principle because of the different character not only of the courts seized, but also of the decision to be taken: the Inter-American Court was called upon to give an advisory 56 57 58 59

60

Ibid., para. 61. Ibid. Ibid. para. 141, no. 1. L. Caflisch, "La subsidiarite des mecanismes de la Convention de 1992", in: L. Caflisch (ed.), The Peaceful Settlement of Disputes between States: Universal and European Perspectives, 1998, 55 et seq., (56). Cf. supra under II. 2 c. bb.

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opinion which is not covered by the force of "chose jugee", while the ICJ will deliver a judgment which has binding force although — formally — only between the parties. This might have been the reason why the Inter-American Court did not go closer into the question of litispendence but rather seemed to deny that Its pendens plays a role in international law, thus underlining the lack of hierarchical relationship between international courts.

4. The Swordfish Case The Swordfish Case may serve as example of a situation which, due to the multiplication and speciality of international judicial bodies causes the greatest concern because its occurrence is increasing without means at hand to avoid it, namely the fact that the same panics bring the "same" dispute before two or even more different judicial bodies which evidently may lead to conflicting jurisdiction. In the Swordfish Case the underlying dispute concerned the closing of the ports of Chile for ships flying the flag of a Member State of the EU impeding EU vessels to import their catches into Chile. This measure violated, according to the opinion of the EU, not only the provisions of the Convention on the Law of the Sea concerning fishing on the high seas but also arts V and XI of GATT 1994. After fruitless negotiations the question was brought before a WTO panel and before the Law of the Sea Tribunal (ITLOS). It is not necessary to go into more details of this case61 since the case has meanwhile been suspended before both fora due to an amicable settlement62, but the constellation of this case may serve as a model for a great number of possible similar cases which may arise with regard to trade related disputes under the WTO system63. What is at stake in such cases is not strictly a question of Iis pendens because the claims brought before the WTO dispute settlement system and the ITLOS concerned different aspects of the matter, due to the fact that the ITLOS is competent to decide on matters of the law of the sea while the WTO panels decide on trade and related questions; in this case, ITLOS was seized with questions of the freedom of fishing on the high seas 61

62 63

Cf. J. Neumann, "Konfrontation oder Kooperation internationaler Streitbeilegungsorgane? Der Schwertfisch-Fall und das Verhaltnis volkerrechtlicher Ordnungen, ZAORV forthcoming. Cf. http://www.europa.eu.int/trade/miti/dispute/swordfish.htm Cf. Petersmann, see note 3, 753 et seq., 774 et seq.


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while the WTO panel had to answer questions of freedom of transit. In such cases the danger of conflicting jurisdiction concerns the fact that each of the judicial bodies seized would have to implicitly apply a set of rules governing the other judicial body, here the application or at least consideration of GATT law before the ITLOS and the law of the sea before the WTO panel. This example is illustrative of a large number of imaginable cases brought simultaneously before different judicial bodies, because those judicial bodies, although created within a particular treaty framework and competent only to apply the law as specified in that treaty, will often have to consider "external" law for deciding a pending case. This may occur in human rights cases which imply questions of humanitarian law, in cases concerning environmental law implying questions of the law of the sea or in cases of trade law implying questions of human rights, environment, law of the sea etc. Since principles such as stare decisis or Us pendens are neither applicable nor helpful in such situations and since also a general rule of international law requiring coordination or respect of competencies of other organs does not yet exist64, other means to avoid conflicts of jurisdiction may be referred to, such as the interdiction of abuse of rights or the principle of good faith or even means for the dismissal of the case for lack of standing or lack of legal interest of protection due to its pendency before another forum. However, for several reasons, it does not seem very likely that an international court or tribunal would be ready to resort to such means65. Since all international judicial bodies are "autonomous instruments" they will decide cases brought before them unless compelling reasons are present which would probably result from the instrument establishing its jurisdiction, than from reasons of judicial propriety, good faith or judicial coordination and cooperation. Therefore, there is no obstacle in general international law to decide cases brought before a judicial body if an apparently identical or similar matter is pending or is brought before another judicial body. Even the relevant provisions of the Vienna Convention on the Law of Treaties concerning the applica-

64

65

Cf. Ruffert, see note 16,161; H.G. Schermers/ N.M. Blokker, International Institutional Law, 3rd edition, 1995, para. 1580. Cf. Opinion of the Inter-American Court, see note 9, para. 61; see also ICTY, Prosecutor v. Tadic Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, ILM 35 (1996), 32 para. 11: "In international law, every tribunal is a self-contained system (unless otherwise provided)".

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tion of the lex posterior or lex spedalis rule66, are not really helpful because only in rather exceptional cases will the conditions of arts. 30 and 59 of the Vienna Convention on the Law of Treaties be present and give preference to one or the other treaty providing for a dispute settlement mechanism67. The only means to counter possible active and passive collisions of jurisdictions lies therefore in the hands of the states concluding dispute settlement agreements, namely by including specific provisions to this effect, such as provisions on subsidiarity or exclusivity of dispute settlement agreements68.

5. Treaty Provisions Concerning Avoidance of Conflicting Jurisdiction Due to the multiplication of international judicial bodies, states have, in fact, become more aware of the danger of conflicting jurisdiction and thus have given more attention to this concern in creating judicial bodies by introducing provisions concerning the subsidiarity of dispute settlement obligations undertaken by the states concerned. The most impressive example in this context is the Court on Conciliation and Arbitration within the OSCE69. This court has been created in the aftermath of the breakdown of the bloc-system not because there were no courts or tribunals to settle possibly forthcoming disputes but because of the reticence of the new states to accept already existing courts or tribunals which were thought to be western oriented and characterised by an already existing jurisprudence to which the new states had not been able to contribute. Therefore, the question of conflicting jurisdiction was present when the Convention was framed and led to a ruling on subsidiarity which subordinates the new mechanism to those already 66

67

68

69

Cf. arts 30 and 59 of the Vienna Convention on the Law of Treaties of 1969. Cf. in this context M. Hilf, Treiheit des Welthandels contra Umweltschutz", Neue Zeitschrift fur Verwaltungsrecbt 19 (2000), 481 et seq., (483); I.M. Sinclair, The Vienna Convention, 2nd edition 1984,94-98. See in this context the considerations of the President of the Republic of France made on the occasion of his visit to the ICJ on 29 February 2000 reproduced in: Treves, Le Tribunal..., see note 3, 728. Convention on Conciliation and Arbitration within the CSCE of 15 December 1992, in: Oellers-Frahm/ Zimmermann, see note 5,173 et seq.


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existing thus leaving almost no room for actual activity of the court70. According to article 19 para. 1 lit.(a) of the Convention the competence of the arbitration court is not only subsidiary to that of any other court or tribunal "whose jurisdiction in respect of the dispute the parties thereto are under an obligation to accept" if this court or tribunal has been seized of the matter prior to one of the organs of the Convention or if a decision has already been given on the merits, but also in a case where the parties have accepted in advance "the exclusive jurisdiction of a jurisdictional body other than a tribunal... which has jurisdiction to decide with binding force, on the dispute ... or if the parties thereto have agreed to seek to settle the dispute exclusively by other means" (article 19 para. 1 lit.(b)). Moreover, article 19 para. 4 of the Convention provides for the possibility to make a reservation "in order to ensure the compatibility of the mechanisms of dispute settlement that this Convention establishes with other means of dispute settlement resulting from international undertakings applicable to that State" which also includes non-binding instruments. These far - reaching provisions on subsidiarity make it impossible to see which matter would be qualified for adjudication by the arbitration court under the Convention and therefore it is not surprising that neither the arbitration procedure nor the conciliation procedure have ever been seized. Although this may be an extreme example, there are other instruments providing for avoidance of conflicting jurisdiction, such as the Law of the Sea Convention which in Part XV contains in arts 281 and 282 rules of subsidiarity; the same is true of the ECHR which provides in article 35 para. 2 lit.(b) more generally that the Court may not hear cases that are "substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement". While such provisions certainly are helpful in order to canalise overlapping jurisdiction they are until now the exception in dispute settlement agreements and, more importantly, they are not always sufficient to solve the problem. This insufficiency is obvious when we look, for instance, at the wording in article 35 ECHR which speaks of "substantially" the same matter. What are "substantially" the same matters?

70

Cf. Caflisch, see note 59 and K. Oellers-Frahm, "The Arbitration Procedure Established by the Convention on Conciliation and Arbitration within the OSCE", in: L. Caflisch (ed.), The Peaceful Settlement of Disputes between States: Universal and European Perspectives, 1998, 55 et seq. and 79 et seq., (89).

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Does this refer only to the subject-matter of the case or also to the circumstances in which the case came up? Referring to the "gypsy-cases" of the Court71 it must be stressed that a formal interpretation of the term "substantially" the same matter would not be acceptable, for the Court underlined in these cases that it must "have regard to the changing conditions in the Contracting States and respond, for example, to an emerging consensus as to the standards to be achieved". This statement makes it clear that not only in cases where there is a subsidiarity provision but also in cases where there is no such provision it is extremely difficult to define two cases as the "same" cases. As to the subsidiarity provisions it has to be stressed, on the basis of what has been said above, that they seem more effective if they relate to other dispute settlement obligations of the parties concerned than if they exclude "substantially" the same matter as article 35 ECHR. The definition of several matters as "the same" will be unambiguous only in very rare cases, one of which being, e.g. the interpretation of a particular treaty provision, as in the matter before the Inter-American Court and the ICJ where, however, the different procedures, advisory respectively contentious procedure, made the difference. Besides the inclusion of subsidiarity provisions it might also be thought of provisions establishing a link to the ICJ in the sense of entrusting it with an appellate function72 or of making use of its advisory functions73.

6. Conclusion From the above remarks it must be concluded that the role that international courts and tribunals may play in order to preserve the uniformity of international law is rather limited: international law is decentralised and fragmented, judicial bodies are consequently autonomous instruments lacking structural coherence and their decisions are binding exclusively upon the parties to the case and do not have any legal effect for other judicial bodies. Principles such as stare decisis or Its pendens which constitute an effective bar to conflicting jurisdiction in national law, are not transferable to the international law level. Only the 71 72

73

See note 50. This has been done with regard to the ILO and the UN Adminstrative Tribunals but has raised a number of problems so that, at least the UN Adminstrative Tribunal terminated the review competence of the ICJ in 1996. Cf. in this context Vicuna/ Pinto, note 19, 52.


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principle of non-interference with the competencies of other international organs could be of some relevance if accepted as a rule of law. For the moment, therefore, the only, however insufficient means to avoid conflicting jurisdiction, is the indispensable subordination of all the numerous autonomous judicial bodies created in the framework of specific and mostly even rather specialised subject matter to the international legal order; no totally self-contained regimes without relationship to the legal order are admissible; all judicial bodies are part of the international legal order which guarantees that the same legal basis of legitimacy and of formal standards are applicable74. Since this is obviously not sufficient to prevent conflicts of jurisdiction, the proposal to have the ICJ involved as a means to guarantee the consistency of international law is, indeed, attractive; however, it has to be tested with a view to its feasibility and acceptability.

IV. The ICJ as Guarantor of the "Unity" of International Law The considerations made above are in so far reassuring as they lead to the conclusion that genuine conflicting decisions are a less acute or grave danger as may seem at first glance because the particular case must be looked at very thoroughly and because the reasoning of the judicial body concerned is of utmost significance in order to distinguish it apparent from genuine conflicts75. What has, however, been found to be really worrying is the interpretation of rules of law external to a particular judicial body which, in principle, only has to apply or construe the law defined in the underlying treaty, but often will be forced to have regard to other sets of rules of law76. Therefore, the danger of conflicting jurisdiction requires more attention than the laconic statement of the Inter-American Court according to which conflicting jurisdiction is "a phenomenon common to all legal systems with certain courts which are not hierarchically integrated ...". Having found that international law as it stands does not offer sufficient means to prevent conflicting jurisdiction, the idea advanced by President Guillaume has to be analysed in more detail according to which the ICJ could serve as a central organ to which questions of interpretation and application of international 74 75 76

Abi-Saab, see note 3,919 et seq., (927). Charney, see note 3,101 et seq., (371). Cf. supra under III. 4.

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law may be referred directly by other courts and tribunals or by means of the request for an advisory opinion by the Security Council (SC) or the General Assembly (GA) according to Article 96 para. 1 of the Charter. Since the ICJ is the only international court with universal jurisdiction ratione personae and ratione materiae this proposal does seem convincing. But even if one leaves aside the burden of cases already before the ICJ and the question of financial implications, attention has to be drawn to some not inconsiderable objections which may be opposed to this idea.

1. Advisory Function of the ICJ According to Article 96 para. 1 of the UN Charter only the SC and the GA, which both are political organs, may request advisory opinions on any legal questions. Therefore, it would be possible without an amendment of the Charter or the ICJ Statute that these organs refer questions of international law to the ICJ, proprio motu or at the instigation of other organs or judicial bodies. The opinions given by the Court are as a matter of fact and, unless otherwise provided for explicitly, not binding. Consequently, it may be stated that reference of questions of international law to the Court is, under the law as it stands and in principle, possible. However, in international law feasibility alone is generally not sufficient, for what is essential is acceptability. Whether the reference of questions of law pending before judicial bodies to the ICJ through the SC or the GA will meet general acceptance seems at least questionable. For, as already mentioned, international judicial bodies are created by states to which, at least so far as interstate disputes are concerned, the ICJ is open anyway so that it could directly be entrusted with the solution of disputes. That means that by creating and seizing a special court or tribunal, although the ICJ could be addressed, states generally pursue particular aims which may pose objections — not only on the side of the states concerned, but also of the special judicial bodies — against the involvement of the advisory procedure of the ICJ for the resolution of a pending case. Therefore and without questioning the merits of the proposal to use the advisory procedure of the ICJ in order to preserve the unity of international law its possible objections and inconveniences have briefly to be considered.


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a. Courts and Tribunals created in the Framework of the UN The acceptability of the use of the advisory function of the ICJ will present itself differently depending on whether the tribunals seeking advisory opinions are part of the UN System or not77. Judicial bodies that are organs of the UN could more easily accept that each request has to pass through the Security Council or the General Assembly because these are all organs of the "UN-family". Nevertheless, they also may prove some concern with regard to the fact that the Security Council and the General Assembly are political organs and as such have to decide within their competent organs not only whether, but also in which formulation the question shall be submitted to the ICJ. Also the composition of the ICJ representing "the main forms of civilisation and of the principal legal systems of the world"78 may be regarded as problematic, although it may be supposed that courts and tribunals created as organs of the UN could not see serious obstacles to the ICJ being the "apex" of the judicial system empowered to care for the unity or cohesiveness of international law because all "participants" belong to the same system. However, out of the large number of international courts and tribunals, only the two ad hoc criminal tribunals, the one for the Former Yugoslavia and the one for Rwanda, are organs of the UN and would, therefore, not pose problems for using the ICJ's advisory functions as a means for preserving the unity of international law. Although some other tribunals have been created under the auspices of the UN, such as ITLOS and the forthcoming Permanent International Criminal Court, or within its specialised agencies (ICSID) or equivalents (WTO)79, they are not organs of the UN and may therefore be opposed to using the advisory procedure by means of the SC or GA. That there might be some need for authentic interpretation of international law even between judicial bodies of the UN family is impressively demonstrated by the Tadic Case80, and that not only with regard to the decision of the Appeals Chamber on the merits, but moreover by its decision on jurisdiction concerning the legality of the creation of the ICTY81; this question was in any case one which would have been bet-

77 78 79 80 81

Treves, Le Tribunal..., see note 3,742. Article 9 ICJ Statute. Abi-Saab, see note 3,928. Cf. supra under III. 1. See note 65.

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ter qualified for a decision by the ICJ by the request of an advisory opinion than for a decision taken by the ICTY itself 82. b. Courts and Tribunals not created within the Framework of the UN With regard to the great number of international courts and tribunals that are not organs of the UN, the reference of questions of interpretation and application of international law to the ICJ is much more complicated. The dictum of the Inter-American Court underlining its "autonomous character" already hints at one of the objections which may be raised in this context. International courts and tribunals are in general created by a treaty — the only exception being the ad hoc criminal tribunals — because the states parties to the treaty feel a need for the institution of a special tribunal, be it a regional one or one concerned with a specific subject-matter or both, which in their opinion better satisfies their demands than any other already existing tribunal, in particular the ICJ, or which better convenes to their requirements by allowing, e.g. also non-state entities access to the court83. From this it follows that they will not readily be willing to have the ICJ involved in the adjudication of the special court by means of the request of an advisory opinion by the Security Council or the General Assembly and thus representatives of states which may not be panics to the special instrument. The case of ITLOS, although created under the auspices of the UN, is illustrative in this context: since under the ITLOS adjudication-system states may choose between the ICJ, the ITLOS, an arbitral tribunal or a special arbitral tribunal it is hard to see why states which 82 83

Abi-Saab, see note 3,928. This raises the central question whether it would not be appropriate to open the ICJ also at least to international organisations or even to individuals for contentious or at least for advisory opinions. Such enlargement of the competence of the ICJ could probably solve quite a number of problems of conflicting jurisdiction. Cf. for further information: Dupuy, see note 3, 799; J. Sztucki, "International Organizations as Parties to Contentious Proceeding before the International Court of Justice?", in: A.S. Muller/ D. Raic/ J.M. Thuransky, The International Court of Justice, Its Future Role after Fifty Years, 1997, 141 et seq.; P. C. Szasz, "Granting International Organizations Ins Standi in the International Court of Justice", ibid., 169 et seq.; I. Seidl-Hohenveldern, "Access of International Organizations to the International Court of Justice", ibid., 189 et seq.; M.W. Janis, "Individuals and the International Court", ibid., 205 et seq.


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clearly expressed their option not to be submitted to the ICJ would accept the ICJ as the last instance for interpreting the Law of the Sea Convention in a special case84, at least if this would be possible without their consent given not only to the involvement of the ICJ but also to the precise question to be submitted. c. Procedural Questions This leads to the question of whether in case of using the advisory function of the ICJ by means of the SC and the GA the consent of the parties to the relevant case would be, if not necessary, at least desirable. As international jurisdiction relies on the principle of consent of states it might be regarded as obvious to require consent also if another court, e.g. the ICJ, is involved in deciding the pending case. Whether this argument may be invalidated by reference to the fact that the involvement of the ICJ would only be advisory, not binding, and, moreover, that international courts and tribunals generally have the power to seek expert information on special matters or even entrust selected bodies to carry out an enquiry85 in order to have reliable information for taking the decision seems rather doubtful. That means that the reference of questions of law to the ICJ would have to be provided for in the treaty instituting the judicial body concerned86. This, however, raises the next question: could it be acceptable for the ICJ to be involved in the interpretation and application of international law at the request instigated by an international court or tribunal without this opinion being then binding upon the court or tribunal? Would it not be detrimental to the prestige of the ICJ if it gives an advisory opinion on a question of international law which then may be disregarded by the tribunal seeking information for deciding the case pending before it?87 Although the respect given to decisions of the ICJ by other courts and tribunals makes it rather improbable that an advisory opinion would be disregarded, this would, however, not be impossible or illegal so that good reasons would plead for the binding character of such opinions which could be provided for 84 85

86

87

Treves, Le Tribunal..., see note 3, 744. Cf. e.g. Article 50 of the Statute of the ICJ which may be regarded as a model rule in this context. Cf. in this respect the proposal of the President of France before the ICJ; Speech by President Chirac of 29 February 2000 before the ICJ, ICJ Press Communique 2000/7 of 29 February 2000. Charney, see note 3, 369-370.

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in the treaty provisions concerning the power to refer questions to the ICJ. A further question arises in the context of the power of the SC and the GA to request advisory opinions. Unless it is not intended to restrict that power by an amendment of the Charter and the Statute e.g. that the SC or GA simply serve as a means to formally transfer a request on a question formulated by the judicial body seeking assistance88, both organs remain free to request an opinion or not. That means, on the one hand, that it is possible that no majority for a request is reached in the organ competent to decide on the request so that no assistance for the tribunal seeking clarification of a specific question will be available. On the other hand, they could decide not to request an opinion with a view to the concrete question at stake, serving thus as a "filter" that would hardly be acceptable by the court or tribunal concerned. Finally, as the SC or the GA have to decide whether to request the opinion or not, it would also be up to them to formulate the question themselves; at least, they would not be bound to transfer simply a question pre-formulated by the tribunal concerned to the ICJ. The practice of the advisory function of the ICJ in cases where this function is used as replacing the contentious proceedings in cases where not only states are involved89, shows that there may be difficulties as to the question posed to the Court that may induce the requesting tribunal not to respect the opinion delivered by the ICJ or to argue that the Court did not answer the question at stake before that tribunal. Finally, the fact that the SC and the GA are political organs of the UN may pose further problems to accepting the new role of the ICJ, a concern that is also objectionable to the composition of the ICJ which in some cases is the reason why states choose another tribunal composed of members more familiar with the circumstances of the case, in particular persons selected under regional or subject-matter aspects90.

88

89

90

In this case, however, it would not be necessary to involve the SC or the GA but the courts and tribunals could be empowered to directly request advisory opinions, cf. Article 65 of the Statute of the ICJ. Cf. cases arising under the Convention on the Privileges and Immunities of the United Nations of 1946, in particular the Advisory Opinion of 29 April 1999 concerning Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, ICJ Reports 1999, 62 et seq. Treves, Advisory Opinions..., see note 3,226.


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A last aspect which has already been addressed by the InterAmerican Court concerns the power of the SC and the GA to request an advisory opinion on any legal question, that means that they might act propriu motu to bring a question pending before a judicial body before the ICJ. The probable reaction of the court concerned has also already been advanced by the Inter-American Court which stated that this would not restrain the court from itself also rendering an advisory opinion or decision91. For requesting an advisory opinion of the ICJ without a request of the court concerned, although legally correct, would certainly not be appreciated by the judicial body concerned, which would regard it as an interference with its autonomy and probably would disregard the opinion that would be detrimental not only for the acceptance of the ICJ, but also for the cohesiveness of international law. Therefore, the initiative for referring a question pending before an international court or tribunal to the ICJ should in any case be left to the court or tribunal concerned according to a special provision included in the underlying treaty.

2. Direct Reference by Courts and Tribunals to the ICJ This rather sceptical evaluation of the possible new role of the advisory function of the ICJ without an amendment of the Charter would not change essentially if reference to the Court of questions of international law would not be made by means of the SC or the GA requesting an advisory opinion, but directly by the court or tribunal seeking clarification92. In this alternative, acceptance would perhaps be easier to reach because the question would be formulated by the tribunals or courts themselves, and not by an external and indeed political organ. However, the filtering effect would be missing which may be exercised in cases of requesting advisory opinions through the SC or the GA. Thus it would be possible that numerous questions are put to the ICJ in order for the referring court to be on the safe side or to prove the seriousness of the case. Whether the ICJ could in such cases, as it is empowered under its advisory function, dismiss a request for reasons of judicial propriety seems more than questionable, although it has to be stressed that until now no single request has been dismissed for reasons of judicial propri-

91 92

Cf. note 9. Treves, Le Tribunal..., see note 3, 744.

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ety93. In any case, direct reference by other courts of questions of law to the ICJ would require an amendment of the Statute of the ICJ as well as a provision to this end in the treaty establishing the jurisdiction of the judicial body concerned. That means that in any case there will be no "closed" system providing for reference of controversial questions of interpretation and application of international law to the ICJ since states remain free to introduce such clauses into dispute settlement obligations94. If those clauses are, however, introduced in such treaties this will constitute an effective means to avoid conflicting jurisdiction if the judicial bodies concerned will make reasonable use thereof.

3. Creation of a Special Body The above considerations, which on the one hand, centred particularly on the possible objections to the use of the advisory function of the ICJ and, on the other, on the disadvantages of a direct referral of questions of international law by international judicial bodies to the ICJ raise the idea of creating a "neutral", that is to say a non-political body entrusted to decide on which requests should be forwarded to the Court. There would be no serious obstacles to the creation of such a body by the GA since the GA has a large amount of discretion in broadening the advisory function of the ICJ and therefore is empowered to establish a special committee for that purpose95. Such a body could be attached to, but independent of the ICJ, and its members could be appointed by the ICJ among distinguished jurists. The task of this body would be the screening of requests for advisory opinions coming from different sources, i.e. international judicial bodies, or even national courts or tribunals or other organs as international organisations, in order to ascertain that such requests meet the requirement of relating to issues of sub93

94

95

The only request which has been dismissed, was the one of WHO concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflicts, ICJ Reports 1996, 66 et seq. The reason of dismissal was, however, not judicial propriety, but the fact that the request did not fall within the scope of the activities of WHO. The readiness of states to provide for a link between other international judicial bodies and the ICJ seems, however, at the time being, rather unlikely; Charney, see note 3,371. L. B. Sohn, "Important Improvements in the Functions of the Principal Organs of the United Nations that can be made without Charter Revision", AJIL 91 (1997), 652 et seq., (660).


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stance in the development of principles of international law, interpretation of basic treaties or other significant rights and questions96. Requests that would not meet these requirements could be directed to alternative dispute settlement mechanisms or other procedures. The involvement of such a body would make sure that the referral of questions to the ICJ would lead to a decision on an item "qui confirme les principes du droit international et les articule ensemble et par rapport aux conditions actuelles de la vie Internationale [et ainsi] contribue d'avantage a asseoir et a consolider le systeme juridique international et meme a l' apaisement des rapports entre Etats, qu'une multitude d'affaires portant sur des questions secondaires..."97. The creation of such a committee would, on the one hand, put aside the concerns regarding the political character of the SC and the GA, and on the other, maintain the filtering function in order not to overburden the ICJ with questions of a secondary importance, and seems therefore to constitute a workable alternative.

4. Concerns on Behalf of the ICJ Even if it would be possible to reach the consent of states to entrust the ICJ with the competence to decide questions referred to it by other organs, there remain concerns as to the feasibility on behalf of the ICJ which finally shall briefly be considered. A first and rather general concern regards the impressing number of courts and tribunals all over the world98 and the multitude of special subject-matters entrusted to their jurisdiction. One may ask whether the ICJ would really be prepared to consider a possible flood of questions referred to it. While this concern remains for the moment a rather theoretical one and may be countered by the interposition of a filtering body, other more substantial ones, remain. As example, attention may be drawn to the fact that an increasing number of international courts and tribunals provide for rather strict time-limits for deciding a case because the issues at stake need speedy clarification, be it for reasons of high financial impacts that are at issue or that long-lasting legal uncertainty would be prejudicial. Unless the rules of procedure would be changed, the ICJ is not, however, 96 97

98

Cf. Vicuna/ Pinto, see note 19, 53. G. Abi-Saab, "De 1'evolution de la Cour internationale. Reflexions sur quelques tendances recentes", RGDIP 96 (19923), 273 et seq., (295). Cf. Oellers-Frahm/ Zimmermann, see note 5.

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or only under extreme difficulties, in a situation to respect time-limits or to apply a summary procedure which does not exist in the case of advisory opinions. Additionally, it has to be kept in mind that many of the international courts and tribunals are created in order to decide on highly specific or technical issues that never reached the Court before, such as questions dealing with trade, finances and similar matters" which even the ICJ may not be able to resolve without expert assistance and which, more importantly, would not substantially contribute to the preservation of the cohesiveness and uniformity of international law; moreover, there are fields of international law where it is not, or not yet, possible to state what is the law100. As the ICJ would certainly be involved in the first place in questions of developing international law, the stating of a non liquet as in the case concerning the Legality of the Threat or Use of Nuclear Weapons101 would surely not enhance the attractiveness of the Court and would be detrimental to the acceptance which after a long period of reticence has, fortunately, in recent years considerably increased. Finally, two more points may be mentioned in this context. On the one hand, it has to be stressed that even the use of the ICJ as the organ to review questions of international law referred to it by other courts or tribunals would not be a guarantee for the maintenance or establishment of the unity or consistency of international law. No court or tribunal could be obliged to refer questions to the ICJ and aspects of prestige as well as the autonomous character of those judicial bodies may be a reason for not referring questions to the ICJ so that conflicting jurisdiction would still be possible. The second point concerns the body of law against which the questions referred to the ICJ would have to be reviewed. The idea underlying the proposal of entrusting the ICJ with the maintenance of the unity of international law was motivated by the power accorded to the European Court of Justice (ECJ) which, according to article 234 of the ECTreaty as amended by the Treaty of Amsterdam, may be seized for a preliminary ruling concerning: a) the interpretation of the treaty, b) the validity and interpretation of the acts of the institutions of the Community; c) the interpretation of the statutes of bodies established by an

99 100

101

Cf. Vicuna/ Pinto, see note 19,46. Cf. Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226 et seq.; see also Thirlway, see note 3,435. Ibid.


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act of the Council, where those statutes so provide.102 This competence of the ECJ serves to guarantee the uniform application of EC law, e.g. a corpus iuris binding equally upon all member states of the EC. In international law, however, as already mentioned, we are confronted with a rather different situation: the only overall binding rules of international law are those of im cogens. Although there undoubtedly exists in international law a corpus of rules - besides the ins cogens - valid for the international community, these rules are not mandatory in the same manner as is the European law for the EC-Member States. For all rules of international law, except those of ins cogens, may be derogated by agreement. States and all other actors in the international sphere are free to agree on almost anything they want so that the authentic interpretation of treaty law by the ICJ could only be a rather relative one stating what is the law under the special treaty for the parties of that treaty, not, however, stating what is the law for the international community. Undoubtedly, there is some merit also in this limited effect of authentic interpretation, but, it is questionable whether this would satisfy the idea behind the initiative to "guarantee the unity of international law". Reference to the ICJ would therefore be of general use if restricted to, on the one hand, questions of ius cogens or questions concerning the existence and meaning of a rule of customary international law as well as the governing principles of international law and, on the other hand, the interpretation of codification treaties or treaties accepted by the majority of states103. For in these cases we are concerned with international law binding upon all or nearly all states, calling therefore for uniform interpretation and application. This aspect, however, leads immediately to the correlative question of whether then the competence to refer questions of law to the ICJ could be limited to international courts and tribunals. Questions of international law arise increasingly also before national jurisdictions and the unity and consistency of international law could only be sufficiently protected if national courts and tribunals would also be empowered to refer questions to the ICJ.

102

103

G. Guillaume, "Quelques propositions concretes a I'occasion du Cinquantenaire", RGDIP 100 (1996), 322 et seq., (332-333); cf. also Sohn, see note 95,660-661. Cf. Vicuna/ Pinto, see note 19, 48^9.

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V. Concluding Remarks The particular character of international law and international jurisdiction are the reasons why conflicting jurisdiction is more likely to occur in international than in national jurisdiction. Instruments impeding conflicting jurisdiction in national law, such as the doctrine of stare decisis or Us pendens, are of little value in international law mainly because there is no "international judiciary" in the sense of a systematic and hierarchical construction of judicial bodies. Therefore, courts and tribunals have themselves to contribute to avoid real or apparent conflicts of jurisdiction, by giving detailed reasons for their decisions and elaborating on the differences existing with regard to similar cases decided by other courts. This presupposes not only active relationship and dialogue between international judicial bodies, but also attentive study of decisions of other courts, essentially those active in a comparable field of law. Although these means can surely not exclude the possibility of conflicting jurisdiction it can help to minimise it and, with regard to the jurisprudence available, it is a positive fact to state that genuine conflicting decisions are scarcely to be found104, but that international judicial bodies, in general, use traditional sources of general international law in addition to international treaty law, and that they refer to opinions and judgments of other courts or tribunals, in particular the ICJ. As to the role that the ICJ can play in order to preserve the consistency of international law it certainly has to be put in perspective and cannot be regarded as the panacea curing the structural shortcomings inherent in the international law system. There is no doubt that the involvement of the ICJ could be of great value in giving authentic interpretation of questions of customary law or generally accepted treaty law; however, even leaving aside questions of consent of states, willingness of judicial bodies to seize the ICJ or procedural and other questions, it seems to be evident that the ICJ should only be entrusted with the centralised function of identification, interpretation and application of the governing principles of international law and that every international judicial body should not automatically be able to refer questions of international law, hence also rather specific ones, to the Court. Therefore, not only would the involvement of a sort of a central "pretrial committee"105 be an effective means for filtering the questions coming to the Court, it could, moreover, be thought of a regionally or 104 105

Charney, Is International..., see note 3,235. Supra under IV. 3.


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subject-matter oriented two-degree-system as known in national law of which the ICJ would only be the apex. This would presuppose a certain structure between judicial bodies created within particular fields of international law or on a regional basis. Thus, it might be thought of structuring judicial bodies in the framework of e.g. human rights106 and to provide them with an organ to which questions of interpretation and application of the law in force may be referred107. Whether this organ would be one of the existing judicial bodies concerned with human rights or a newly created body consisting of members of those bodies can not be answered here; in the field of commercial and trade law the WTO appeals body could be considered as an organ to which questions of law could be referred to; in the field of international criminal and humanitarian law the Permanent International Criminal Court could be the forum of last resort. This solution would offer the advantage of also allowing reference to the international organ of relevant questions by national courts that would enhance the preservation of uniform interpretation and application of the respective body of law. These "seconddegree" organs could then be linked to the ICJ in the sense that they could refer controversial questions directly or by means of an interposed body to the ICJ which thereby would not be confronted with a multitude of extremely specialised and sometimes secondary questions but with questions "filtered" and examined by judicial bodies specialised in the field concerned. It is obvious that, for the time being, only some fields of public international law would be appropriate for such structuring; however, other fields will join, such as e.g. environmental law, space law or telecommunication law. States may be more ready to accept a limited hierarchical order between judicial bodies created in a special field of international law or on a regional basis than to accept an all over competence of the ICJ. Furthermore, a regionally or subjectmatter related centralised judicial system might induce states not to create more courts in a special field of international law but to make use of those already in existence and thereby to contribute, if not to the centralisation of international law, but at least to the centralisation of jurisdiction which then may have the effect of enhancing the unity and consistency of the relevant body of law. So long as some sort of hierarchical judicial system is not established or does not cover all fields of international jurisdiction, it may, however, be comforting to underline that the

106 107

Pinto, see note 3, 842. See in this context also Vicuna/ Pinto, see note 19,108.

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danger of conflicting jurisdiction is, in the final analysis, preferable to other, in particular, non-peaceful means of dispute settlement.

The United Nations Transitional Administrations in Kosovo and East Timor: A First Analysis Carsten Stahn I. II.

Introduction The Territorial Status of the Administered Territories 1. The Legal Background of the Establishment of UNMIK and UNTAET a. East Timor b. Kosovo 2. The Internationalized Status of Kosovo and East Timor III. Historical Precedents 1. The Administration of the Saar Territory by the League of Nations 2. The "Free City of Danzig" 3. The Proposed Internationalization of the "Free Territory of Trieste" and the City of Jerusalem 4. The United Nations Temporary Executive Authority (UNTEA) 5. The United Nations Council for Namibia 6. UNOSOMII 7. The United Nations Transitional Administration for Eastern Slavonia (UNTAES) IV. Authorization under the Charter 1. A Diversity of Views 2. Arguments in Favour of direct United Nations Administering Authority 3. The Different Legal Foundations in the Charter V. Nature of Authority 1. The Fiduciary Character of the United Nations Administering Authority 2. Functional Duality VI. Regulatory Framework 1. The Development of Joint Governing and Administrative Structures 105 J.A. Fmwein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 105-183. © 2001 Kluwer Law International. Printed in the Netherlands.

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2. The Definition of the Applicable Law 3. The Legal Status of the Interim Administration VII. Observance of Human Rights Standards VIII. The Prosecution of War Crimes and Other Serious Offences 1. The Panels with Exclusive Jurisdiction over Serious Criminal Offences 2. The Situation in Kosovo IX. International Legal Personality X. Conclusions

I. Introduction The United Nations Security Council has entered new ground by placing Kosovo and East Timor under temporary United Nations administration. On 10 June 1999 the Security Council adopted Resolution 1244, authorizing the Secretary-General to establish "an international civil presence in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia".1 Only a few months later, on 25 October 1999, the Security Council decided to establish a United Nations Transitional Administration in East Timor, which would be endowed with the "overall responsibility for the administration of East Timor", including "all legislative and executive authority" and the administration of justice.2 Both, the United Nations Interim Administration Mission in Kosovo (UNMIK)3 and the United Nations TransiSee para. 10 of S/RES/1244 (1999) of 10 June 1999. See para. 1 of S/RES/1272 (1999) of 25 October 1999. See generally on the issue of UNMIK J.A. Frowein, "Notstandsverwaltung durch die Vereinten Nationen", in: Volkerrecht und Deutsches Recht, Festschrift fur W. Rudolf, 43 et seq.; C. Tomuschat, "Yugoslavia's Damaged Sovereignty over the Province of Kosovo", in: Liber Amicorum Kooijmans (forthcoming); J. Ringelheim, "The legal status of Kosovo", in: Kosovo, 1999-2000, The Intractable Peace, Working Group, European University Institute, available under http://www.iue; C. Stahn, "International Territorial Administration in the former Yugoslavia: Origins, Developments and Challenges Ahead" ZaoRV 61 (2001), 107 et seq.; A. Zimmermann/ C. Stahn, "Yugoslav Territory, United Nations Trusteeship or Sovereign State? - Reflections on the Current and Future Legal Status of Kosovo", Nord. J. Int'l L. 2001, forthcoming; M. Ruffert, "The Administration of Kosovo and East Timor by the International Community", ICLQ 50 (2001), 555 et seq.; M. Bothe/ T. Marauhn, "UN Administration of Kosovo and East Timor: Concept, Legality and Limitations of Security Council Mandated

Stahn, UN Administrations in Kosovo and East Timor

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tional Administration in East Timor (UNTAET)4 were created on the basis of Chapter VII of the United Nations Charter. Moreover, in both cases, the United Nations administrations assumed the exclusive administrative authority over the territories placed under their supervision. The scope and the depth of the mandate, vesting the United Nations with the task of acting fully as an interim government for a wartorn society, marks a novelty in the history of United Nations peacekeeping.5 Admittedly, the technique of administering a territory under the auspices of an international authority is a rather traditional instrument of international diplomacy. The Treaty of Versailles6 vested the League of Nations with significant governmental responsibilities over the Saar Territory7 and the Free City of Danzig.8 Moreover, in 1945, the United

Trusteeship Administration", in: Kosovo and the International Community (forthcoming); H. Stromeyer, "Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and in East Timor", AJ1L 95 (2001), 46 et seq.; M. J. Matheson, "United Nations Governance of Postconflict Societies", AJIL 95 (2001), 76 et seq.; E. Lagrange, "La mission interimaire des Nations Unies au Kosovo, nouvel essai d'administration directe d'un territoire", A.ED.I. 45 (1999), 335 et seq.; T. Garcia, "La mission d'administration interimaire des Nations Unies au Kosovo", RGDIP 104 (2000), 61 et seq. See on the issue of UNTAET J. Chopra, "The UN's Kingdom of East Timor", Survival 42 (2000), 27 et seq.; S. Linton, "Rising from the Ashes: The Creation of a Viable Criminal Justice System in East Timor", Melbourne University Law Review 25 (2001), 122 et seq.; C. Schreuer, "East Timor and the United Nations", International Law Forum du droit international 2 (2000), 18 et seq.; G. Burdeau, "Quelle voie pour le Conseil de securite apres Paffaire du Kosovo? Le ban d'essai du Timor-Oriental", ibid., 32 et seq. Cf. on the practice of the United Nations in the area of territorial administration, J. Chopra, Peace-Maintenance, 1999, 37 et seq.; S. R. Ratner, The New UN Peacekeeping, 1995, 89 et seq.; F.-E. Hufnagel, UN-Friedensoperationen derzweiten Generation, 19%. Treaty of Peace between the Principal Allied and Associated Powers and Germany of 28 June 1919 (Treaty of Versailles), Consolidated Treaty Series, Vol. 225 (1919), 189 et seq. The mandate of the League of Nations was based on article 49 of the Treaty of Versailles. See generally on the Saar Territory F. Munch, "Saar Territory", in: R. Bernhardt (ed.), EPIL IV (2000), 271 et seq. The relationship between Danzig and the League of Nations was based on article 103 of the Treaty of Versailles. Cf. on the role of the League of Na-

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Nations itself was authorized by Article 81 of the Charter to administer territories within the framework of the United Nations Trusteeship System. However, the use of territorial administration as an instrument of conflict resolution for the maintenance of international peace and security marks a new step in the legal practice of the United Nations. In the late 1980s the United Nations started to conduct more and more complex peace-keeping operations, involving the exercise of executive and legislative functions by United Nations organs in war-ravaged territories.9 But except in one case, namely the United Nations Transitional Administration in Eastern Slavonia (UNTAES),10 the United Nations has not been formally charged with the entire responsibility for a territory in these years. The establishment of the United Nations administrations in Kosovo and East Timor presents the world organization with an unprecedented challenge. In both cases, the United Nations does not only exercise full administrative powers over the territories concerned,11 but it is also in charge of preparing the settlement of the territorial status of the territories.12 The success of the operations is therefore an important test case

9

10

11

12

tions with respect to Danzig M. Ydit, Internationalized Territories, 1961, 194 et seq. See also on the proposed internationalization of Trieste and Jerusalem, under III. 3. See in particular the United Nations Transition Group in Namibia, established by S/RES/431 (1978) of 27 July 1978 and the United Nations Transitional Authority in Cambodia provided for under article 6 of the Agreement on a Comprehensive Political Settlement on the Cambodia Conflict of 23 October 1991. For a survey of the practice of the United Nations during that period, see Ratner, see note 5,117 et seq.; S. K. Han, "Building a peace that lasts: The United Nations and Post-Civil War Peace Building", N. Y.U. J. Int'l L & PoL 26 (1994), 837 et seq. See S/RES/1037 (1996) of 15 January 19%. See also the Report of the Secretary-General pursuant to S/RES/1025 (1995) of 30 November 1995, Doc. S/1995/1028 of 13 December 1995, para. 5. On the powers of UNOSOM II in Somalia, see under III. 6. See Section 1 of UNMIK Regulation 1999/1 of 25 July 1999 on the Authority of the Interim Administration in Kosovo and Section 1 of the UNTAET Regulation 1999/1 of 27 November 1999 on the Authority of the Transitional Administration in East Timor. See para. 11 (e) of S/RES/1244 ("facilitating a political process designed to determine Kosovo's future status, taking into account die Rambouillet accords") and para. 3 of the preamble of S/RES/1272 ("a process of transition under the authority of the United Nations towards independence").


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for the capacity of the United Nations to restore peace by shaping the internal governmental system of a territory. A first comparative analysis shows that both missions work essentially according to the same principles of administration. A United Nations Transitional Administrator, the Special Representative of the Secretary-General is, at least in the first stage of the operation, vested with all-embracing authority, including the exercise of all legislative and executive powers and the administration of the judiciary.13 The United Nations Administrator defines the law applicable to the territory enacts new legislation, which he deems necessary for the re-establishment of a functioning governmental system and conducts the external relations of the territory. At the same time, United Nations governance is limited by its transitional and fiduciary character.14 The United Nations organs are charged with the establishment of national authorities and must gradually devolve their powers to these institutions. Furthermore, the United Nations administration does not act as a new sovereign, but rather as a trustee which exercises powers in the interest and on behalf of the administered population and, eventually, the territorial state. This new model of conflict management raises a number of important questions under international law, such as the status of the United Nations administered authorities, the authorization of the United Nations administrations under the Charter, the nature of United Nations authority and its limits. This article seeks to examine some of these issues, drawing on the practice of the United Nations between the establishment of the missions and the organization of parliamentary elections, leading to the transfer of broader powers to the domestic authorities.

13

14

See the references in note 11. For a critical account of the powers of UNMIK, see Stahn, International Territorial Administration, see note 3, 149 et seq. See also the critical remarks by Chopra with respect to UNTAET: "The organisational and juridical status of the UN in East Timor is comparable with that of a pre-constitutional monarch in a sovereign kingdom.", Chopra, see note 4,29. For a detailed discussion of the concept of trusteeship within the context of international territorial administration, see Bothe/ Marauhn, see note 3, sub. I and IV and Stahn, International Territorial Administration, see note 3,132 et seq., 137 et seq.

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II. The Territorial Status of the Administered Territories Disputes about various forms of self-government and self-determination have been at the origin of both, the establishment of UNMIK and the creation of UNTAET.

1. The Legal Background of the Establishment of UNMIK and UNTAET The link between the creation of a United Nations Administration and the strife for an adequate territorial status reflecting the will of the people is particularly striking in the case of East Timor, which is rooted in the context of decolonization. a. East Timor The territory was recognized as a non-self-governing territory under Portuguese administration until its armed occupation by Indonesia. Portugal had initially commenced steps in preparation for the decolonization of East Timor and the realization of its people's right to selfdetermination in 1974.15 However, following a period of civil disorder with conflicting statements of the East Timorese political parties with respect to the future of the territory, ranging from declarations of independence16 to calls for integration with Indonesia,17 Indonesian armed forces invaded the territory on 7 December 1975. East Timor was for15

16

17

In July 1974 Portugal officially recognized the right to self-determination of all Portuguese in its constitution. See Constitutional Law No. 7/74, July 1974, article 2, reproduced in: H. Krieger (ed.), Cambridge International Documents Series: East Timor and the International Community: Basic Documents, 1997,34. The Democratic Union of East Timor (UDT) and the Revolutionary Front for an Independent East Timor (FRETILIN) supported independence. FRETILIN declared the independence of East Timor on 28 November 1975. See P. Lawrence, "East Timor", in: R. Bernhardt (ed.), EPIL II (1995), 3 et seq. The Timorese Democratic People's Union (APODETI) favoured integration with Indonesia. See J. Toole, "A false sense of security: Lessons learned from the United Nations Organization and Conduct Mission in East Timor", Am. U. L. Rev. 16 (2000), 199 et seq., (208).


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mally incorporated as Indonesia's "27th province" on 17 July 1976.18 Indonesia continued to govern the territory for almost twenty-five years. But its sovereignty over East Timor remained controversial.19 The United Nations condemned the Indonesian invasion of 1975 and rejected Indonesia's claim that the people of East Timor had freely chosen integration with Indonesia as one of the options of the realization of self-determination. United Nations Security Council Resolutions 38420 and 38921 reaffirmed the United Nation's support for East Timor's right to self-determination and called upon the government of Indonesia to "withdraw without further delay all its forces from the territory". Recognition among United Nations Member States varied. While some states recognized Indonesia's sovereignty over East Timor,22 other states23 took the view that East Timor continued to be a non-selfgoverning territory, with Portugal as the administering power. Portugal acknowledged that Indonesia's occupation of East Timor entailed de facto limitations on its own powers,24 but insisted continuously on its capacity as administering power. In particular, Portugal carried out several initiatives to solve the problem of East Timor, including the 1995 application to the ICJ,25 in which it tried to challenge the validity of the 18

19 20 21 22

23

24

25

The Indonesian parliament approved a bill on the incorporation of East Timor which became effective on 17 July 1976. See R. S. Clark, "East Timor, Indonesia and the International Community", Temp. Int'l & Comp. L. J. 14 (2000), 75 et seq., (81) and Linton, see note 4,126. Cf.Toole,seenotel7,213. S/RES/384 (1975) of 22 December 1975, paras 1-2. S/RES/389 (1976) of 22 April 1976, para. 2. These states include Australia, Bangladesh, India, Iran, Iraq, Jordan, Malaysia, Marocco, Oman, the Philippines, Saudi Arabia, Singapore, Surinam and Thailand. The Member States of the European Union, for example, never accepted Indonesia's dejure or de facto sovereignty over East Timor. See on the position of European states R. Goy, "L'independance du Timor Oriental", A.ED.I. 45 (1999), 203 et seq., (212 et seq.). For an analysis of the Portuguese position, see M.C. Maffei, "The Case of East Timor before the International Court of Justice - Some Tentative Comments" EJIL 4 (1993), 223 et seq. See Case concerning East Timor (Portugal v. Australia), Advisory Opinion of 30 June 1995, ICJ Reports 1995, 90 et seq. See on this decision T.D. Grant, "East Timor, the U.N. System, and Enforcing Non-Recognition in International Law", Vand. J. Transnat'l L. 33 (2000), 273 et seq., (298 et seq.); R. Burchill, "The ICJ Decision on the Case Concerning East Timor: The illegal use of force validated", Journal of Armed Conflict Law 2 (1997),

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Timor Gap Treaty, concluded between Australia and Indonesia, by claiming the treaty legitimized Indonesia's annexation of East Timor and violated the right of self-determination of the people of East Timor. However, neither the ICJ, nor the international community finally solved the issue. Instead, Portugal and Indonesia came to a political compromise, which left the issue of the territorial status open.26 In a Tripartite Agreement of 5 May 1999 between Indonesia, Portugal and the United Nations,27 both parties agreed to hold a referendum under United Nations auspices, in which the people of East Timor were to be asked whether they wished to accept autonomy within Indonesia28 or pursue independence. Portugal agreed to remove East Timor from the list of non-self-governing territories, if the people of East Timor voted in favour of the Indonesian autonomy proposal.29 Indonesia, on the other hand, affirmed its responsibility to "take the constitutional steps necessary to terminate its links with East Timor, thus restoring under Indonesian law the status held prior to July 17, 1976", if the people of East Timor voted against a status of autonomy within Indonesia.30 In the latter case, both parties also agreed to make "arrangements for a peaceful and orderly transfer of authority in East Timor to the United Nations", which would be charged with "enabling East Timor to begin a process of transition towards independence."31 A key feature of the agreement is that both sides maintained their divergent position concerning the status of East Timor. This is clearly reflected in paras 5 and 6 of the preamble of the agreement, in which the panics note the position of the Government of Indonesia on the one hand, according to which "the proposed special autonomy should be

26 27

28

29 30 31

1 et seq; R. S. Clark, "Obligations of Third States in the Face of Illegality Ruminations Inspired by the Weeramantry Dissent in the Case Concerning East Timor", in: A. Anghie/ G. Sturgess (ed.), Legal Visions of the 21st Century: Essays in honour of Judge Christopher Weeramantryy 1998, 631 et seq. See also Clark, see note 18, 83. Agreement between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor of 5 May 1999, Doc. S/1999/513, including Annexes I-III. For a survey of the autonomy proposal, see J.-M. Sorel, "Timor Oriental: Un resume de 1'histoire du droit international", RGDIP 104 (2000), 37 et seq., (46 et seq.) See article 5 of the Agreement of 5 May 1999. See article 6 of the Agreement of 5 May 1999. Ibid.


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implemented only as an end solution to the question of East Timor and with full recognition of Indonesian sovereignty over East Timor", and acknowledge the position of Portugal on the other hand, according to which "an autonomous regime should be transitional, not requiring recognition of Indonesian sovereignty over East Timor or the removal of East Timor from the list of Non-Self-Governing Territories of the General Assembly, pending a final decision on the status of East Timor by the East Timorese people through an act of self-determination under United Nations auspices." The United Nations administered referendum was held on 30 August 1999. Despite intimidation by Indonesian and militia forces, 78 per cent of the voters rejected the autonomy proposal.32 The Security Council regarded the outcome of the popular consultation as "an accurate reflection of the views of the East Timorese people."33 Immediately after the vote for independence, pro-Indonesian militias started a violent campaign of terror against the East Timorese population. Notable features of the violence were systematic attacks on the civilian population, including murder, torture, rape and forcible deportations of civilians and widespread plunder.34 The Security Council reacted to the violence on 15 September 1999 by adopting Resolution 1264 (1999), in which the Council determined that the systematic, widespread and flagrant violations of international humanitarian and human rights law constituted a threat to peace and security. Acting under Chapter VII of the Charter, the Security Council authorized the establishment of a multinational force under a unified command structure, which became known as the International Force for East Timor (INTERFET).35 Moreover, on 25 October 1999, shortly after the Indonesian People's Consultative Assembly had recognized the results of the referendum and repealed the legislation that declared East Timor to be a province of 32

33 34

35

98 per cent of the registered voters went to the polls. 94.388 (21,5 per cent) voted for autonomy and 344. 580 (78,5 per cent) voted against it. See UN Press Release, GA/9691 of 17 December 1999. See para. 3 of the preamble of S/RES/1264. See Report of the International Commission of Inquiry to the SecretaryGeneral, Doc. A/54/726-S/2000/59 of (2000) of 31 January 2000. See also the Report on the situation of human rights in East Timor, Doc. A/54/660 (1999) of 10 December 1999. See on the legal problems encountered by INTERFET M. Kelly/ T. McCormack/ P. Muggleton/ B. Oswald, "Legal aspects of Australia's involvement in the International Force for East Timor5", Int'lRev. of the Red Cross 83 (2001), lOl et seq.

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Indonesia,36 the Security Council created UNTAET. Following the recommendations of the Secretary-General in his report of 4 October 1999,37 the United Nations administration was vested with a comprehensive civilian mandate, complementing the military mandate previously exercised by INTERFET. It is important to note that the establishment of UNTAET was not unilaterally imposed by the Security Council. On the contrary, Resolution 1272 must be conceived as a direct implementation of article 6 of the Agreement of 5 May 1999, in which Indonesia and Portugal agreed to transfer the authority over East Timor to the United Nations.38 Legally speaking, one may have doubts whether as an illegal occupying power, Indonesia had any legal standing whatsoever to "cede" authority to the United Nations. One may very well argue that the relations between Indonesia and East Timor have always been international in nature.39 In practice, however, Indonesia was treated by the United Nations as if it had powers over East Timor.40 Both parties were asked to reiterate their agreement for the transfer of authority to the United Nations in a meeting of 28 September 1999.41 Moreover the Resolution stresses the "importance of cooperation" between UNTAET and both Indonesia and Portugal "in the implementation of this resolution", although the report of the Secretary-General of 4 October 1999 had ob-

36

37

38

39 40

41

The Indonesian People's Consultative Assembly revoked the law integrating East Timor within the Unitary State of the Republic of Indonesia on 19 October 1999. See para. 39, Doc. A/54/654 of 13 December 1999 "Question of East Timor". See also the reference to that date in para. 4 of the preamble of S/RES/1272. Report of the Secretary-General on the situation in East Timor UN Doc. S/l 999/24 of 4 October 1999. See the reference to the Agreements of 5 May 1999 in para. 2 of the preamble of S/RES/1244. Cf. Tomuschat, see note 3, sub. 5.2. But see Chopra, see note 4, 29, who notes that when a delegation of Indonesian representatives met UN officials on 20 October 1999 to deliver their acceptance of the August election results, "the Secretary-General's Personal Representative for East Timor, Jamsheed Marker, informed them that no such formality was required since the UN had never recognised the Indonesian occupation as legitimate." See para. 25 of the Report, see note 37.


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viously been more restrictive.42 Portugal confirmed on 20 October 1999 that it would relinquish its legal ties to East Timor.43 Accordingly, it is beyond doubt that the United Nations has taken over responsibility over East Timor by way of agreement with the competent authority. Furthermore, one may argue that UNTAET has become the only lawful administering authority of East Timor after the transfer of powers to the United Nations in accordance with the terms of the Agreement of 5 May 1999. UNTAET's role goes far beyond the mere assistance of a foreign government. It is in fact, at least under the provisional framework created by Resolution 1272, the government of the territory itself. The competencies of the United Nations Transitional Administration include all the classical powers of a state. In addition, other than in the cases of UNMIK or UNTAES, the United Nation administration in East Timor acts independently of any competing territorial sovereign.44 Most notably, East Timor has formally remained on the list of non-self-governing territories, but with UNTAET as the administering power.45 b. Kosovo

In the case of Kosovo, the link between the establishment of the United Nations administration and a disputed territorial status is less obvious, because Kosovo has remained part of Yugoslavia since the reconstitution of the Yugoslav state after World War II. However, Kosovo en42

43

44

45

See paras 36 and 37, ibid. "UNTAET will also establish a mechanism for consultation with Portugal, given its special responsibilities. Consultation will also be organized with Indonesia, as necessary" (emphasis added). See J. Chopra, "Introductory Note to UNTAET Regulation 13 (2000)", ILM 39 (2000), 936 et seq. (937): "On 20 October 1999, Lisbon's representative in New York, Ambassador Antonio Monteiro, expressed to UN officials that Portugal would relinquish its legal ties to East Timor and consider UNTAET its successor with the passage of the Security Council mandate." See also Chopra, see note 4,29. Chopra takes the view that "Resolution 1272 ... became the instrument for bestowing sovereignty over East Timor to the UN, even though it did not explicitly use the word. " Chopra, see note 4,29. See The United Nations and Decolonization, under http://www.un.org/ Depts/dpi/decolonization "The current administering powers are France, New Zealand, the United Kingdom and the United States. East Timor is now administered by the United Nations Transitional Administration in East Timor (UNTAET)."

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joyed a privileged status in the Socialist Federal Republic of Yugoslavia (SFRY). Although formally being part of the Republic of Serbia, Kosovo was an autonomous province, vested with a status similar to that of the other six republics of the SFRY under the 1974 Constitution.46 This privileged status was systematically abrogated by the institutions of the Republic of Serbia in the late 1980s. The Serbian authorities started to enact discriminatory legislation vis-a-vis Kosovo Albanians47 and forced the Kosovo Assembly to approve amendments to the Serbian Constitution, reducing Kosovo's autonomy to a level below that of a municipality.48 The members of the Kosovo Assembly responded to these acts of repression by drafting a Constitution for an 46

47

48

For a discussion of Kosovo's legal status under different SFRY constitutions, see J. Marko, "Die staatsrechtliche Entwicklung des Kosovo/a von 1913-1995", in: J. Marko (ed.), Gordischer Knoten Kosovo/a: Durchschlagen oder entwirren?, 1999, 15 et seq; E. Pichl, "Kosovo in den jugoslawischen Verfassungssystemen: 1974 bis 1998", in: Marko, ibid., 75 et seq. In 1990, the Serbian parliament issued a number of discriminatory decrees suppressing the rights of Kosovo Albanians. The decrees prohibited the sale of property to Albanians, shut down Albanian newspapers and created municipalities reserved to Serbian citizens. Furthermore, the Serbian parliament implemented a Serb-orientated, uniform education programme for all elementary and secondary schools. Cf. on the removal of Kosovo's autonomy rights under the Milosevic era, N. Malcolm, A Short History of Kosovo, 1998, 343 et seq.; A. J. Bellamy, "Human Wrongs in Kosovo 197499", International Journal of Human Rights, Special Issue: The Kosovo Tragedy: The Human Rights Dimensions, 2000,105 et seq. Article 110 of the Serbian Constitution of 1990 provided that "the statute is the highest legal act of the autonomous province". The adoption of the statute, however, was made dependent on the prior approval of the Serb National Assembly. The powers of the Assembly of Kosovo were limited to the adoption of "decisions and general enactments in accordance with the [Serbian] Constitution and the law". See article 109 of the 1990 Constitution of Serbia, Furthermore, the amendments transferred both the control over the Kosovar security forces and the Kosovo judicial system to the government of Serbia. See on the key elements of the constitutional changes Bellamy, see note 47, 113. Marko writes: "[The] provisions concerning the legal status of the Autonomous Provinces were a clear violation not only of the Federal constitution's provisions of 1974, but also of the Serb Republic's constitutional amendment XLVII § 2, adopted in 1989 which stated unequivocally that the "position, rights and duties of the autonomous provinces regulated by the federal constitution must not be altered by amendments of the Serbian constitution" See J. Marko, "Kosovo/a - A Gordian Knot?", in: Marko, see note 46,261 et seq., (265).


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independent "Republic of Kosovo", which was approved by an overwhelming majority of the population of Kosovo in a secret referendum.49 Following the vote on independence, parliamentary and presidential elections were held, in order to determine the institutions of the newly proclaimed Republic. The leader of the Democratic Union, I. Rugova, was elected president and his party achieved an overwhelming majority in the elections. But the elected parliament was never convened. The Republic of Serbia continued to assume the sole responsibility for the administration and the judiciary in Kosovo, while the Rugova government remained an unofficial, parallel structure of authority in the territory.50 Moreover, the "Republic of Kosovo" failed to attract international recognition. The claim of the people of Kosovo to an independent status was not accepted by the international community.51 All efforts to address the Kosovo crisis focused on restoring autonomy or creating other forms of internal self-determination. The Interim Agreement for Peace and Self-Government in Kosovo of 23 February 1999 (Rambouillet Agreement),52 which was declined by the FRY authorities before the military intervention by NATO, granted Kosovo far-reaching autonomy and self-government, without however relinquishing its territorial bonds to the Republic of Serbia.53 Kosovo would have enjoyed responsibilities equivalent to the powers of the two Republics of the FRY, though formally being part of Serbia. The independence of Kosovo was also rejected by the United Nations Security 49

50

51

52

53

Marko speaks of "a 87 per cent participation rate and an approval by 99 per cent of the voters". Cf. Marko, see above, 265. The electorate was asked to vote on "Kosovo as a sovereign and independent state with the right of constitutive participation in an alliance of sovereign Republics (in Yugoslavia) on the basis of freedom and full equality of the sovereign republics in the alliance". Oeter speaks of a "shadow government", see S. Oeter, "Yugoslavia, Dissolution", in: Bernhardt, see note 7, 1563 et seq., (1591 et seq.). See on the parallel structure also R. Caplan, "International Diplomacy and the Crisis in Kosovo", Int'lAff. 74 (1998), 451 et seq. But see the recognition of Albania, Keesing's Record of World Events^ 1991, 38513. Doc. S/1999/648 of 7 June 1999. Cf. on the agreement M. Weller, "The Rambouillet Conference on Kosovo", Int'lAff. 75 (1999), 211 et seq. See Section I, article I, para. 4 of the Rambouillet Accord. Kosovo's final status, however, was to be decided on the basis of a number of criteria, including inter alia "the will of the people". Cf. article I, para. 3 of Chapter 8 of the Rambouillet Accord.

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Council. The Council expressly confirmed the sovereignty and territorial integrity of the Federal Republic of Yugoslavia in its Resolution 1160, and indicated that "a solution to the Kosovo problem should be based on the territorial integrity of the Federal Republic of Yugoslavia and should be in accordance with OSCE standards." The same approach is reflected in Resolution 1244, in which the Council authorized the Secretary-General "to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia*(emphasis added).54 At the same time, however, the Security Council refrained from making binding determinations with respect to Kosovo's future status. The Council charged UNMIK with the task of "facilitating a political process", which shall lead "towards the establishment of an interim political framework agreement providing for substantial self-government in Kosovo "(emphasis added), "taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia".55

2. The Internationalized Status of Kosovo and East Timor While it would arguably go beyond the powers of the United Nations Security Council to unilaterally determine the future territorial status of a territory and its inhabitants,56 one cannot fail to note that both 54 55 56

See para. 10 of S/RES/1244 (1999) of 10 June 1999. See para. 11 of S/RES/1244, its Annex 1 and para. 8 of Annex 2. See E. Klein, Statusvertrage im Volkerrecht, 1980, 107 and 110. See also the Dissenting Opinion of Judge Sir G. Fitzmaurice in the Namibia Case, Legal Consequences for States of the Continued Presence of South Africa in Namibia notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, 16 et seq., (294): "Even when acting under Chapter VII of the Charter, the Security Council has no power to abrogate or alter territorial rights ... Even a war-time occupation of a country or territory cannot operate to do that. It must await the peace settlement... The Security Council might, after making the necessary determinations under Article 39 of the Charter, order the occupation of a country or piece of a territory to restore peace and security, but it could not thereby, or as part of that operation, abrogate or alter territorial rights." For a broader understanding of the powers of the Security Council under Chapter VII, cf. Matheson, see note 3, 85: "[T]here can in fact be situations in which the Security Council would be


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Kosovo and East Timor have acquired a special territorial status under United Nations administration. Pending the final settlement of the territorial status, the United Nations has, in both cases, assumed the classical powers of a state within the respective territories. Nevertheless, this does not mean that the United Nations is at the same time the lawful sovereign over the territory. Quite apart from the theoretical question as to whether the concept of sovereignty may be applied to international organizations, its exercise would require an unfettered right of the United Nations to control and to dispose of the territory in question. Such a power, however, would run counter to the mandate of the UN administrations which is located in the context of peacemaintenance and limited to the development of democratic selfgoverning institutions.57 One must rather assume that in the cases of Kosovo and East Timor, sovereignty and administering authority do not coincide. Several theories may be invoked in order to explain the special status thus created. One may take the position that the establishment of a United Nations administration with exclusive administering authority over a territory creates a situation in which the sovereignty of the former sovereign is in abeyance and suspended until the United Nations has accomplished its task. An alternative argument would be that sovereignty resides in the people who are temporarily deprived of its exercise under United Nations rule. Technically, the term "internationalized territory" appears to be the most accurate notion, reflecting the current status of Kosovo and East Timor. Although this term covers a broad variety of the territories under international protection, supervision or guarantee, it is more appropriate than the notion of "protectorate", which is traditionally limited to state-to-relations, by which a protected state surrenders at least the conduct of its foreign relations to a protector state, without, however,

57

justified in directing a permanent change in some aspects of the 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". Similarly, the powers of the administrators of non-self-governing territories have been compared "with the powers under civil law of a guardian over a ward." In 1954, some UN Member States observed that one can no more speak of the sovereignty of an administering power over a non-selfgoverning territory than one can speak of a guardian's ownership of his ward's property. See Doc. A/PV.485 (1954), 146.

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being annexed by the latter.58 The concept of "internationalized territories", on the contrary, refers to the exercise of control over a territory by an international organization or a group of states.59 The disjunction of sovereignty and exclusive administering authority in both, Kosovo and East Timor, has created an unusual situation. Kosovo has, de facto, lost its legal ties to the Federal Republic of Yugoslavia (FRY), although forming part of it. Unless invited by UNMIK, the FRY is pre-empted from exercising public authority in Kosovo. Pending a final settlement of the future status of the territory, UNMIK is, in the words of the Secretary-General, the "the only legitimate authority in Kosovo".60 But UNMIK is not entitled to dispose of the territory, which is arguably the ultimate attribute of sovereignty.61 The special internationalized legal status of Kosovo, arising from the disjunction of sovereignty and exclusive administering authority, has also been recognized by the Constitutional Framework for Provisional SelfGovernance in Kosovo (Constitutional Framework), promulgated by the Special Representative of the Secretary-General as Regulation No. 2001/9 on 15 May 2001.62 The drafters of the Constitutional Framework have decided to define Kosovo "as an entity under interim international administration, which, with its people, has unique historical, legal, cultural and linguistic attributes" (emphasis added).63 Moreover, the Constitutional Framework contains no reference to the authority of the FRY organs in Kosovo at all. Instead, the document assigns to the Special Representative and KFOR the powers which typically are run

58

59

60

61

62

63

See G. Hoffmann, "Protectorates", in: R. Bernhardt (ed.), EPIL III (1997), 1153etseq. Cf. Ydit, see note 8, 21: "Internationalised territories are special State entities in which supreme sovereignty is vested in (or de facto exercised by) a group of States or in the organised international community". See also H. Hannum, Autonomy, Sovereignty and Self-Determination, 1996,17. See Report of the Secretary-General on the United Nations Interim Administration in Kosovo, Doc. S/1250/1999 of 23 December 1999, para. 35. It is therefore difficult to assume that "sovereignty over Kosovo" is temporarily vested with the UN. For a different view, see Ringelheim, see note 3.

See Regulation No. 2001/9 on a Constitutional Framework for Provisional Self-Government in Kosovo, available under http://www.un.org/peace/ kosovo-for a full account see Stahn, Constitution without a State, see note 3. Cf. Chapter 1, para. 1.1. of the Constitutional Framework.


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by a federal government, such as foreign affairs, cross-border control, monetary policy, civil aviation, defence and emergency powers.64 East Timor, on the other hand, is since the transfer of authority to the United Nations neither part of Indonesia, nor part of Portugal. In fact, its status may be compared to the status of Namibia after the termination of South Africa's Mandate over the territory and the take-over of "direct responsibility" by the United Nations. In that case, the United Nations General Assembly established the United Nations Council for South West Africa, later to be renamed the Council for Namibia "to administer South West Africa until independence** and "to promulgate such laws, decrees and administrative regulations as are necessary for the administration of the Territory until a legislative Assembly is established".65 While the United Nations acted as the international administering authority of Namibia, the territory enjoyed an international status sui generis.66 As opposed to Namibia, however, which remained under the control of South Africa, East Timor is not only de jure, but also de facto governed by the United Nations. The United Nations administrator formally acts as a head of state of the territory. One of the most impressive illustrations of the United Nations' legal status is the fact that in an exchange of notes constituting an agreement with Australia, UNTAET has assumed all rights and obligations under the Timor Gap Treaty previously exercised by Indonesia. UNTAET acted on behalf of East Timor, limiting its contractual obligations "until the date of independence of East Timor".67 Moreover, UNTAET concluded a grant agreement with the World Bank's Inter-

364 65 66

67

See Chapter 8, para. 8.1 of the Constitutional Framework. See A/RES/2248 (XXII) of 19 May 1967. Cf. Klein, see note 56, 304. See Id., "Namibia", in: Bernhardt, see note 58, 485 et seq., (487 et seq.); A. Junius, Der United Nations Council for Namibia, 1989, 89; ICJ Reports 1971, 16 et seq., (57 para. 131 "territory having an international status"). See Exchange of Notes constituting an Agreement between the Government of Australia and the United Nations Transitional Administration in East Timor (UNTAET) concerning the continued Operation of the Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia of 11 December 1989, entered into force on 10 February 2000, Australian Treaty Series 2000, No. 9.

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national Development Association, which designates UNTAET and East Timor as 'recipient'.68 One may therefore very well take the position that since the transfer of authority to the United Nations by both Indonesia and Portugal, East Timor constitutes in fact a non-self-governing territory under the full legal authority of the United Nations, which acts as the only legitimate administering power until the independence of the territory. Some confusion may arise from the fact that the Security Council reaffirms "respect for the sovereignty and territorial integrity of Indonesia" in para. 12 of the preamble of Resolution 1272. However, since the United Nations has always refrained from recognizing the legality of the integration of East Timor into Indonesia, this reference cannot be interpreted as a recognition of the sovereignty of Indonesia over East Timor but must be conceived as an affirmation of the obligation of United Nations authorities to respect the existing territorial border between East Timor and West Timor.

III. Historical Precedents Looking back in history, it is difficult to identify precedents in which the establishment of an international administering authority had such a tremendous impact on the administration of the territory as in the cases of Kosovo and East Timor. In quite a number of cases, the United Nations has been charged with the exercise of administering authority within a model of co-governance and power-sharing with the territory's domestic authorities.69 This has even led to situations in which the United Nations assumed the final authority with respect to certain areas of governance and public administration.70 But the cases in which in68

69

70

Cf. Chopra, see note 4, 30. Pursuant to the International Development Association-UNTAET Trust Fund for East Timor Grant Agreement, UNTAET established a system of village and sub-district councils for the allocation of development funds. See Regulation No. 2000/13 of 10 March 2000. The most recent examples are the United Nations Transitional Authority in Cambodia (UNTAC) and the establishment of the Office of the High Representative (HR) in Bosnia and Herzegovina, endorsed by the Security Council. In Cambodia, the United Nations operation was governed by the Paris Agreement on a Comprehensive Political Settlement of the Cambodia Conflict of 23 October 1991, cf. in this respect A. Rapp/ C. Philipp, "Con-


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ternational organisations have exercised the sole and exclusive authority over a territory are rare and mostly related to particular historical circumstances.

1. The Administration of the Saar Territory by the League of Nations An early and very impressive example of a complete take-over of governmental authority by an international organization is the administration of the Saar Territory by the League of Nations between 1920 and 1935. The Treaty of Versailles entrusted the government of the Saar Territory to an "International Governing Commission" representing the League of Nations.71 The Governing Commission exercised executive and legislative powers, without considering itself bound by the opinion of the local legislative bodies.72 It was even authorized "to ensure by such means and under such conditions as it deemed suitable, the protection abroad of the inhabitants of the Saarland."73 Legally, the League of Nations assumed the government of the Saar Territory in the capac-

71

72

73

flicts Cambodia/Kampuchea", in: R. Wolfrum, United Nations Law Policies and Practice, 1995, Vol. 1, 200 et seq. Article 3 of the Accord vested sovereignty in a Supreme National Council (SNC) composed of representatives of Cambodian factions. Article 6 then went on to state: "The SNC hereby delegates to the United Nations all powers necessary to ensure the implementation of these Agreements, as described in Annex 1." The Paris Agreement is reproduced in: ILM 31 (1992), 180 et seq. For a legal study of the agreements, see S. R. Ratner, "The Cambodia Settlements Agreements", AJIL 87 (1993), 1 et seq.; Hufnagel, see note 5, 85 et seq. The High Representative in Bosnia was vested with the "final authority" to interpret the civilian aspects of Annex 10 of the Dayton Peace Agreement. For a full account, cf. Stahn, International Territorial Administration, see note 3, 165 et seq. On the particularities of the Bosnian constitutional system, see id., "Die verfassungsrechtliche Pflicht zur Gleichstellung der drei ethnischen Volksgruppen in den bosnischen Teilrepubliken - Neue Hoffnung fur das Friedensmodell von Dayton?", ZaoRV6Q (2000), 663 et seq. See Treaty of Versailles, see note 6, 189 et seq., Part. Ill, Section IV, Annex, Art. 16. The only real restriction on the legislative power of the Governing Commission related to mines. See on the practice of the Commission, Ratner, see note 5,91 et seq. See Treaty of Versailles, see note 6, Part III, Section IV, Annex, article 21.

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ity of a trustee.74 While Germany remained the official sovereign over the territory,75 the League of Nations was charged with its administration and the organization of a referendum on the status of the territory. In its early stages, the Governing Commission focused its activities on the re-establishment of civilian structures and local assemblies, replacing the French military administration. Later, the Commission adopted a number of decrees on issues such as public property, revenue collection or transportation. The mandate of the League of Nations ended in 1935 when the population of the Saar territory voted in a plebiscite of 13 January 1935 in favour of immediate reunification with Germany.

2. The "Free City of Danzig" A slightly different model of territorial administration was applied in the case of the administration of the "Free City of Danzig". The city was placed under the protection of the League of Nations by article 102 of the Treaty of Versailles. But the League of Nations did not assume exclusive administrative authority over the territory. Rather, it acted as a "guarantor" of the territory.76 Amendments of the Constitution of Danzig were subject to the approval of the Council of the League of Nations.77 Moreover, the High Commissioner for the territory of Danzig was entrusted with "the duty of dealing in the first instance with all differences arising between Poland and the Free City of Danzig".78 But the main legislative and executive responsibilities remained within the authority of the local institutions, i.e. the Legislative Assembly ("Volks-

74

75

76

77

78

See also Ydit, see note 8, 224 ("a temporary trusteeship on behalf of the League of Nations"). See Treaty of Versailles, Part III, Section IV, Annex, article. 49. Ydit notes that "what really remained for Germany was only the nudum jus to the territory itself", Ydit, see note 8, 45. Some authors therefore took the view that sovereignty was vested with the League of Nations or that there was no sovereignty at all over the Saar Territory. Ydit concludes that "the sovereign power - although formally vested in the people (article 3 of the Danzig Constitution) - was shared by Danzig, Poland and the League of Nations". For a full discussion of the disputed status of Danzig, see id., see note 8,224-228. See arts 47-49 of the Constitution of the Free City of Danzig, in: League of Nations Official Journal, Special Suppl. No. 7, July 1922. See article 103 of the Treaty of Versailles.


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tag") and Senate of the "Free City of Danzig".79 The Polish Government was charged with "the conduct of the foreign relations of the Free City of Danzig as well as the diplomatic protection of citizens of that City when abroad".80

3. The Proposed Internationalization of the "Free Territory of Trieste" and the City of Jerusalem The first attempts to place territories under the administration of the United Nations in the aftermath of World War II proved to be less successful. Despite detailed proposals for the internationalisation of the Territory of Trieste and the City of Jerusalem, both projects were finally not carried out in practice. The Treaty of Peace with Italy of 10 February 194781 placed the "Free Territory of Trieste" under the direct authority of the United Nations Security Council. Trieste was to be governed by the Security Council on the basis of the "Permanent Statute" of the "Free Territory of Trieste"82 embodied in Annex VI and VII of the Peace Treaty with Italy. The Statute vested the United Nations administrator (the "Governor of Trieste"83) with broad powers. In fact, the Governor was authorized to intervene in all matters of public interest, by initiating legislation or administrative measures.84 Furthermore, the Statute empowered the Governor to veto and actively prevent the execution of 79

80 81 82

83

84

The Legislative Assembly was the supreme legislative power in all matters. The Senate held the executive authority. Most notably, the Senate represented the City of Danzig in its relations with the League of Nations and Poland and signed international treaties on behalf of Danzig. Ydit, see note 8,191-193. See article 104, para. 6 of the Treaty of Versailles. Treaty of Peace with Italy, 10 February 1947, UMTS Vol. 49 No. 747. The Statute was adopted by the Security Council at its 91th Sess. held on 10 January 1947 by ten votes to one. Australia objected to the adoption of the Statute by arguing that it imposed functions on the Security Council, which the Council was not authorized to assume under the United Nations Charter. See Repertoire of the Practice of the Security Council, 1946-1954, 482 et seq. The Governor of Trieste should have been appointed by the Security Council, after consultation with Italy and Yugoslavia. See arts 19 and 20 of the Permanent Statute of the Free Territory of Trieste, Annex VII of the Peace Treaty with Italy.

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legislative and administrative measures which he deemed contrary to the Constitution of Trieste, the "Permanent Statute" or the responsibilities of the Security Council in Trieste.85 Finally, the Governor would have been responsible for the conduct of foreign affairs and the appointment and the removal from office of high governmental officials.86 Given the proposed take-over of almost all-embracing authority by the United Nations, the status of Trieste under the Permanent Statute has even been described by one author as that of "a state-like community under the sovereignty of the United Nations".87 However, the plan for the administration of Trieste by the Security Council, which would have established an early case of comprehensive United Nations territorial administration, was never implemented, due to the failure to agree on the appointment of an international governor for the territory in the Security Council at the beginning of the "Cold War".88 The second territory, which became a candidate for United Nations administration, was the City of Jerusalem. According to the Palestine Partition plan, approved by the United Nation General Assembly in its Resolution 181 of 29 November 1947,89 Jerusalem should have been transformed into an internationalized territory under the authority of the United Nations Trusteeship Council, separate from both the Jewish and the Arab state. The Trusteeship Council drafted a "Statute" for the City of Jerusalem,90 which conferred broad powers upon a United Nations Governor for Jerusalem. As in the case of Trieste, the Governor would be authorized to initiate and enact legislation without, or contrary to the will of the local Legislative Assembly.91 At the same time he was to act as the chief administrator, assuming control over the preservation of public order, the conduct of foreign affairs and the protection of holy places.92 Furthermore, in his capacity as a United Nations rep85

86

87 88 89 90

91 92

See arts 10,20 and 22 of the Permanent Statute of the Free Territory of Trieste. See arts 16,24 and 27 of the Permanent Statute of the Free Territory of Trieste. See H. Kelsen, The Law of the United Nations, 1961, 832. For a detailed analysis, cf. Ydit, see note 8,256 et seq. A/RES/181 (II) of 29 November 1947. Statute for the City of Jerusalem, Draft Prepared by the Trusteeship Council, UN TCOR, 2nd Sess., Third Part, Annex, 4, Doc. T/118/Rev.2 of 21 April 1948. See arts 15 and 20-24 of the Statute for the City of Jerusalem. For a survey of the powers of the Governor, cf. Ydit, see note 8,288 et seq., 295 et seq.


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resentative, the Governor was to be exempted from the jurisdiction of the courts of the city or its Legislative Council.93 He should have been appointed by and exclusively accountable to the United Nations Trusteeship Council. The protection abroad of the interests and the citizens of Jerusalem was to be ensured by the Trusteeship Council or the Governor. But the proposed internationalization of Jerusalem was finally not put into practice, because it failed to get a sufficient majority in the General Assembly after the Arab-Israeli war 1948-1949.94

4. The United Nations Temporary Executive Authority (UNTEA) The administration of West Irian (1962-1963)95 turned to be the first case in which the United Nations assumed direct and exclusive responsibility over a territory. West Irian was a Non-Self-Governing Territory under Chapter XI of the United Nations Charter, administered by the Netherlands. In an agreement concluded with Indonesia on 5 August 1962,96 the Netherlands government agreed to pass sovereignty over the territory to Indonesia, subject to the holding of a referendum on the question of whether the inhabitants of the territory wished to remain or sever their ties with Indonesia.97 The act of self-determination was to be carried out under the auspices of the United Nations. At the same time, the United Nations were asked to facilitate the transfer of West Irian from Dutch to Indonesian rule, by establishing an interim United Nations administration in the territory (the United Nations Temporary Executive Authority) "with full authority ... to administer the territory" for a period of six months.98 The United Nations administrator 93 94

95

96

97 98

See article 12 of the Statute for the City of Jerusalem. On the non-implementation of the Statute, see Ydit see note 8, 297 et seq. See also C. Toussaint, The Trusteeship System of the United Nations, 1956, 208. The city was divided between Israel and Jordan between 1949 and 1967. See on this issue Ratner, see note 5, 109 et seq.; Chopra, see note 5, 44; R. Higgins, United Nations Peacekeeping 1946-1967, Documents and Commentary, Vol. 2,1970,91 et seq. Agreement between the Republic of Indonesia and the Kingdom of the Netherlands Concerning West New Guinea (West Irian) of 15 August 1962, UNTS Vol. No. 437 No. 6311. See article XVIII of the Agreement. See article V of the Agreement.

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was empowered "to promote new laws and regulations or amend them within the spirit and framework of the Agreement".99 Moreover, he was authorized to appoint governmental officials100 and to guarantee civil liberties and property rights.101 Although the United Nations administration of West Irian was a short-term operation with a clearly determined mandate, it marked an important precedent within the legal practice of the United Nations in several ways. As later in the case of East Timor,102 the territory of West Irian was not linked to a state during the period of United Nations administration, but was under the sole responsibility of the United Nations,103 because the Netherlands had transferred its powers as administering authority to the United Nations,104 the authority of which ended only "at the moment of transfer of full administrative control to Indonesia".105 Furthermore, the operation constituted an early example of a "non-Trusteeship Council administration of territory" by the United Nations.106 The mission was 99 100 101 102

103

104

105 106

See article XI of the Agreement See article IX and XIII of the Agreement. See article XXII of the Agreement. For a historical comparison, see N. Schrijver, "Some aspects of UN involvement with Indonesia, West Irian and East Timor", International Law Forum 2 (2000), 26 et seq. Even the United Nations flag was to be flown during the period of United Nations administration. See article VI, para. 1 of the Agreement. See article I of the Agreement (a[T]he Netherlands will transfer administration of the territory to a United Nations Temporary Executive Authority (UNTEA)... The UNTEA will in turn transfer the administration to Indonesia in accordance with article XII".) See also para. 6 b and c of the Memorandum on the Future and Development of Netherlands New Guinea, reprinted in: Higgins, see note 95, 97 (B(b) [T]he Netherlands is prepared to transfer its sovereignty to the people of Netherlands New Guinea; (c) In this connexion, the Netherlands is prepared to agree that its present powers should, to the extent required for the above purpose, be exercised by an organization or international authority, established by and operating under the United Nations, which would be vested with executive powers and which could gradually take over tasks and responsibilities and thus prepare the population for early self-determination under stable conditions." See article XII of the Agreement. See M. Kelly, Restoring and Maintaining Order in Complex Peace Operations, 1999, 100. Higgins speaks of "a sort of trusteeship (though the term "trusteeship" was not explicitly used), until the people of the territory could be prepared for a plebiscite". See Higgins, see note 95,95.


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conducted under the overall authority of the United Nations General Assembly, which approved the Agreement concluded between the Indonesia and the Netherlands government and authorized the SecretaryGeneral in Resolution 1752 (XVII) of 21 September 1962 "to carry out the tasks entrusted to him in the Agreement".107

5. The United Nations Council for Namibia A few years later, the General Assembly again assumed administrative authority over a territory, but this time without the express agreement of the party or parties directly concerned. Following the termination of South Africa's League of Nations Mandate over South West Africa by General Assembly Resolution 2145 (XXI) of 27 October 1966,108 later recognized by the Security Council in its Resolutions 264 and 269 of 20 March and 12 August 1969 respectively and the by the ICJ,109 the General Assembly with Resolution 2248 (S-V) of 19 May 1967 created the UN Council for Namibia "[t]o administer South West Africa until independence, with the maximum possible participation of the people of the Territory". The intention of the General Assembly was to place the Council in the position of the full legislative and administrative authority of Namibia. From a legal point of view, this was possible, because the world organization exercised the de jure control over Namibia after South Africa had lost its title over the territory.110 However, South Africa's continued presence in Namibia deprived the Council of the possibility to exercise its powers effectively. Most importantly, the Council

107

108

109

110

See para. 3 of A/RES/I 752 (XVII) of 21 September 1962. For a full account, see Higgins, see note 95,120 et seq. A/RES/2145 (XXI) of 27 October 1960, adopted by 119 affirmative to 2 negative votes (South Africa, Portugal), with 3 abstentions (United Kingdom, France, Malawi). See on the practice of the Security Council with respect to Namibia, Klein, see note 66, 487. On the 1971 Advisory Opinion of the ICJ upon request by the Security Council, see ICJ, see note 66, 16. For an analysis of the judgment, see R. Zacklin, "The Problem of Namibia in International Law", RdC 171 (1981), 225 et seq., (288 et seq.). See I. Sagay, The Legal Aspects of the Namibian Dispute, 1975,271. See also Klein, see note 66, 487; L. Herman, "The Legal Status of Namibia and the United Nations Council for Namibia", CYIL 13 (1975), 306 et seq., (322).

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was prevented from exercising any de facto authority in the territory.111 Accordingly, its legislative and executive activities remained rather limited. The Council for Namibia enacted, inter alia, a decree on the exploitation of Namibia's natural resources, the implementation of which encountered serious factual and legal obstacles.112 Moreover, the Council issued travel documents to Namibians in exile.113 Perhaps the biggest achievement of the Council was the external representation of Namibia. The Council represented Namibia as a full member in the ILO, UNESCO and the FAO. Moreover, it participated in international treaty conferences on behalf of Namibia, including e.g. the United Nations Conference on the Law of the Sea.114

6.UNOSOMII The first operation in which the United Nations exercised far-reaching administrative responsibilities within the framework of a Chapter VII mandate was the United Nations Operation in Somalia II (UNOSOM II). Based on the assumption that there was no sovereign authority in the country, United Nations Security Council Resolution 814 charged UNOSOM II with a broad mandate, including the reconstruction of the police and justice system, the establishment of regional councils and the maintenance of law and order. UNOSOM II was tasked to "assist the people of Somalia to promote and advance political reconciliation, through broad participation by all sectors of Somali society, and the reestablishment of national and regional institutions and civil administration in the entire country" and to "create conditions under which the Somali civil society may have a role at every level, in the process of reconciliation and in the formulation and realisation of rehabilitation and reconstruction programmes."115

111

112

113 114 115

See R. Dreyer, "The United Nations and Namibia: An Overview (19461990)", International Geneva Yearbook 1991, Vol. V, 27 et seq., (29 et seq.). See Zacklin, see note 109, 318 et seq. For a discussion of the binding force of the decree and its recognition by national courts, see also H.G. Schermers, "The Namibia Decree in National Courts", ICLQ 26 (1977), 81 et seq.; Junius, note 66,137 et seq. For a survey of the practice of the Council, see Junius, ibid., 194 et seq. For a survey of the practice of the Council, see Zacklin, see 109,311 et seq. See S/RES/814 (1993) of 26 March 1993, para. 4 c) and g).


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According to the Addis Ababa Agreement, concluded by the leaders of the different Somali political groups on 8 January 1993,116 the so called Transitional National Council (TNC) should exercise the administrative and legislative authority in Somalia.117 But the United Nations assumed these functions until the creation of the TNC, over one year, after the conclusion of the agreement.118 Before the establishment of the TNC, UNITAF (Unified Task Force) and UNOSOM II acted as the provisional governmental authorities in Somalia,119 supported by a national 'consultative body'.120 The focus of attention was devoted to the re-establishment of the judicial systems in Somalia. UNOSOM II adopted administrative measures to create an independent judiciary121 and a functioning prison system.122 Moreover, the Secretary-General's Special Representative to Somalia promulgated the former Somali Penal Code of 1962 as the criminal law in force in Somalia, while adding special habeas corpus guarantees derived from international human rights instruments.123 Finally, the United Nations assisted in the drafting of a new constitution for Somalia.124 However, given the very imprecise mandate of the Security Council which did not make any mention of a legislative mandate for UNOSOM II125 and taking into account that the above-mentioned tasks were 116

117

118

119

120

121

122 123 124 125

See article 1 Sec. 4 of the General Agreement signed in Addis Ababa on 8 January 1993, Doc. S/25168 Annex II (1993). See on the Addis Ababa Conference and the General Agreement, Chopra, see note 5,156. See the Reports of the Secretary-General on the situation in Somalia, Report of 12 November 1993, Doc. S/26738, para. 28 and Report of 6 January 1994, Doc. S/1994/12, para. 14. See Hufnagel, see note 5, 175 and 185. See also Chopra, see note 5, 142: "[I]n the absence of an existing infrastructure ... the UN had effectively the power of a governor-in-trust". See Report of the Secretary-General of 12 November 1993, Doc. S/26738, para. 28. See Report of the Secretary-General of 17 August 1993, Doc. S/26317, Annex I, paras. 29 et seq. Cf. Report, see above, paras 42 et seq. Cf. Report, see note 121, paras 29,31 and 36. Cf. Report, see note 121, paras 25-29. The Commission of Inquiry established by S/RES/885 (1993) of 16 November 1993 to investigate armed attacks against UNOSOM II noted in its report: "[TJhe promulgation of the Somali Penal Code of 1962 as the criminal law in force in Somalia by the Special Representative of the Secre-

132


only carried out by UNOSOM II whilst awaiting the creation of the TNC, it is questionable whether the operation in Somalia fully qualifies as a case of exclusive administering authority by the United Nations.

7. The United Nations Transitional Administration for Eastern Slavonia (UNTAES) A more recent, but less well known United Nations operation, vesting an international administrator with extensive powers over a territory is the United Nations Transitional Administration for Eastern Slavonia (UNTAES).126 The Basic Agreement signed on 12 November 1995 by the Croatian Government and Serbian political leaders from Croatia127 requested the United Nations Security Council to establish a transitional administration for the territories of Eastern Slavonia, Baranja and Western Sirmium, which formed pan of the formerly Serb controlled Republika Srpska Krajina and should be reintegrated into Croatia. The parties to the agreement authorized the United Nations administration to "govern the region during the transitional period [of 12 months] in the interests of all persons resident in or returning to the region".128 On 15 January 1996, acting under Chapter VII of the Charter, the Security Council adopted Resolution 1037 creating UNTAES.129 The Security Council reaffirmed in its resolution "that the territories of Eastern Slavonia, Baranja and Western Sirmium are integral parts of the Republic of Croatia."130 The purpose of the operation was to "achieve the peaceful reintegration of the region into the Croatian legal and constitutional system".131 In order to prepare the local population for the full transfer of authority to Croatian rule, the United Nations transitional

126

127

128 129

130 131

tary-General was capable of being interpreted by the USC/SNA as an overstepping of the UNOSOM II mandate". See Doc. S/1994/653,17. Its mandate ended on 15 January 1998, when the Croatian Government resumed control over the UNTAES region. See Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium, Doc. S/1995/951, Annex, entered into force on 22 November 1995, reproduced in: ILM 35 (1996), 184 et seq. See para. 1 of the Agreement. See S/RES/1037 (1996) of 15 January 1996. See also the Report of the Secretary-General pursuant to S/RES/1025 (1995) of 30 November 1995, Doc. S/1995/1028 of 13 December 1995, para. 5. See para. 2 of the preamble of S/RES/1037. See Report, see note 129, para. 6.


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administration had to supervise the demilitarization of the region, to facilitate the return of refugees, to organize local elections and, most notably, to re-establish the normal functioning of all public services in the region.132 To that end, the United Nations transitional administrator was endowed with "the overall authority over the civilian and military components of UNTAES".133 The tasks of the transitional administrator were mainly executive in nature. But he was also authorized to restore Croatian law in the territory and to enact regulations the validity of which would expire at the end of the transitional period.134 The United Nations administered the territories of Eastern Slavonia, Baranja and Western Sirmium together with advisory transitional councils, composed of local representatives.135 Moreover, in order to provide reassurances for the post-UNTAES period, the United Nations administration negotiated several agreements with Croatia providing the people of the region with comprehensive political and institutional guarantees under Croatian rule.136 In terms of its objective, UNTAES may be best compared to the United Nations Mission in West Irian. UNTAES was a short-lived, two year project137 with a very specific goal, namely the peaceful transfer of Eastern Slavonia from Serb to Croatian control. The United Nations acted as an authority-in-trust, exercising governmental functions on behalf of and for the benefit of Croatia. But the powers of the transitional administrator did not quite reach the level of authority assumed by the United Nations a few years later in the cases of Kosovo and East Timor in which the United Nations Transitional Administrator would exercise all legislative and executive authority, including the administration of justice. 132 133 134 135 136

137

See paras 10 and 11 of S/RES/1037. See para. 2 of S/RES/1037. See para. 17 of the Report, see note 129. See para. 14 of the Report, see note 129. Among these agreements are: The Agreement by the Croatian Pension Fund on Pension Services of 29 May 1997; the Declaration on Educational Certificates of 11 March 1997; the Declaration on Minority Education Rights of 6 August 1997; the Joint Statement on Reintegration of the Employment System of 11 September 1997; the Organization of Joint Councils of Municipalities of 23 May 1997 and the Declaration on Conditions for Judicial Reintegration of 30 September 1997. See Report of the Secretary-General to the Security Council of 4 December 1997, Doc. S/1997/953. The mandate of UNTAES ended on 15 January 1998.

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IV. Authorization under the Charter From a legal point of view, the take-over of direct administrative authority by the United Nations is a highly remarkable development, because the United Nations Charter does not expressly provide for the conduct of the United Nations in an executive capacity such as territorial administration. The only reference to a direct form of territorial administration by the organization itself may be found in the context of the United Nations Trusteeship System. Article 81 of the Charter permits the administering authority to be one or more states or the United Nations itself.138 But the United Nations has never exercised this function on a formal basis. The Draft Statute for the City of Jerusalem contained a provision, according to which the responsibility for the administration of the City should be discharged by the Trusteeship Council.139 But, as was expressly stated in a subsequent report to the Trusteeship Council, the City was not to be a trust territory, and Chapters XII and XIII of the Charter were not generally applicable.140 In its following practice, the United Nations never acted itself as an administering authority under the Trusteeship System. Instead, single states have been appointed as administering authorities, with the exception of Nauru

138

139 140

The idea that the UN itself should become an administering authority was based on the belief that, in some cases, the organization might be more impartial or would have a broader outlook than a single member state. See L. M. Goodrich et al., Charter of the United Nations, Commentary and Documents, 1969,501. See article 3 of the Statute for the City of Jerusalem. The Report of the Working Committee on Jerusalem, established in accordance with a resolution of the Trusteeship Council passed at the 6th Mtg. of its 2nd Sess., on 1 December 1947 (Doc. T/122) contains the following statements: "Although the General Assembly of the United Nations vested the Trusteeship Council with power to define, to constitute and to administer the international regime of the City of Jerusalem, it is obvious that the City is not a trust territory and that the provisions of Chapters XII and XIII of the Charter are not generally applicable to the case. Therefore the Committee tried to avoid any arbitrary resemblance to the Trusteeship system; it considered rather that the legal status of this territory was a new one; Jerusalem would come, as it were, directly under the authority of the United Nations and it would be governed on behalf of the community of nations. Such would be the entirely original sense which might suitably be given to the term: Special International Regime."


135

where the United Kingdom, Australia and New Zealand became the official administrators.141

1. A Diversity of Views The question whether the United Nations is authorized to assume direct administering powers outside the context of the Trusteeship System, such as in the above-mentioned cases, has been a subject of legal controversy.142 In particular H. Kelsen proved to be an early supporter of a restrictive interpretation of the powers under the Charter claiming that "the Organization is not authorized by the Charter to exercise sovereignty over a territory, which has not the legal status of a trust territory".143 Moreover, an analysis of statements expressed by state representatives in the context of both the adoption of the "Permanent Statute for the Free Territory of Trieste" and the creation of the Council for Namibia presents a diversified picture of legal views. When discussing the approval of the "Permanent Statute for the Free Territory of Trieste" by the Security Council in 1947, some members of the Council were of the opinion that the Council was not entitled to act as supreme governing body of the territory with the ultimate authority over its functioning, because these functions would have no direct connection with the maintenance of peace and security.144 In response to these ob141

142

143 144

See D. Rauschning," On Article 81", in: B. Simma, Charter of the United Nations, 1994,955 et seq., (956). See Kelsen, see note 87, 832 et seq.; O. Schachter, "The Development of International Law through the Legal Opinions of the United Nations Secretariat", BYIL 25 (1948), 95 et seq.; F. Seyersted, "United Nations Forces: Some legal problems", BYIL 37 (1961), 451 et seq. Cf. Kelsen, see note 87,651. See the statements of the Representatives of Australia and Syria on the question of the Statute of the Free Territory of Trieste, Repertoire of the Practice of the Security Council, 1946-1951, 482. See also Kelsen, see note 87, 833: "When the Permanent Statute comes into force, the Council has to exercise - partly directly, partly through the Governor - functions usually conferred upon a head of state, which functions have nothing in common with anything the Council has to do under the Charter, except in case the Organisation itself is established as administering authority of a trust territory under Art. 81. This is the only case where the United Nations is authorised by the Charter to exercise rights of sovereignty over a territory, But the Free Territory of Trieste is certainly not a trust territory".

136


jections, attention was drawn by other representatives either to implicit powers of the Council or to the spirit of the Charter. The SecretaryGeneral held the opinion that the words, "primary responsibility for the maintenance of international peace and security" in Article 24 of the Charter, coupled with the phrase, "acts on their behalf", constitute a sufficiently wide grant of power, because the United Nations members had thereby conferred upon the Council "powers commensurate with its responsibility for the maintenance of peace and security", limited only by the fundamental principles and purposes of the Charter.145 The Security Council finally took a decision in line with this view and adopted the Permanent Statute.146 The second case147 in which the authority of the United Nations to assume governmental authority of a territory became a subject of concern, was the establishment of the United Nations Council for Namibia. General Assembly Resolution 2248 (S-V) of 19 May 1967 establishing the Council for Namibia was adopted by 85 votes to 2 with 30 abstentions. The large number of abstentions underlines the controversial nature of the decision. Many states abstained because they feared that the resolution could not be implemented in practice. But doubts were also expressed with regard to the competence of the General Assembly to confer extensive legislative powers on the Council.148 In its 145

See statement made by the Secretary-General on 10 January 1947, Repertoire of the Practice of the Security Council, 1946-1951,483. 146 See S/RES/16 (1947) of 10 January 1947. 147 It is surprising that the authority of the United Nations to establish UNTEA as a subsidiary body of the General Assembly has not been called into question. Higgins notes: "Those nations which explained the reason for the abstention from the vote in favour of the Agreement [between the Republic of Indonesia and the Kingdom of the Netherlands Concerning West New Guinea] explained their case largely in terms of fears that the Agreement did not sufficiently provide for self-determination by the Papuans. France, who abstained, did not voice any objection to the effect that the General Assembly was unable to authorize the UN to participate in a governmental venture. And, as has been said, the Soviet Union, who might also have been expected to object, voted for the resolution." See Higgins, see note 95,121. 148 The representative of Sweden e.g., considered that Resolution 2248 was flawed because "it did not command the broad persuasive support of resolution 2145 (XXI) and possibly was not a firm basis for further United Nations action". See GAOR 5th Special Sess., 1518th Mtg. See on the attitude of governments towards Resolution 2248 also the Report by the Secretary-General "Compliance of Member States with the United Nations Resolutions and Decisions relating to Namibia, taking into account the

Stabn, UN Administrations in Kosovo and East Timor

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1971 advisory opinion in the Namibia Case, the ICJ did not directly address the legal basis of the establishment of the Council for Namibia. The Court merely observed that "Article 24 of the Charter vests in the Security Council the necessary authority to take action such as that taken in the present case."149 However, some more explicit answers were given in legal doctrine. Some authors took the view that the creation of the Council could be based on a direct150 or an analogous151 application of Article 81 of the Charter, despite the lack of a trusteeship agreement within the sense of Article 79 of the Charter. Other scholars placed the emphasis on the previous practice adopted by both the League of Nations and the United Nations in the field of territorial administration.152

2. Arguments in Favour of a direct United Nations Administering Authority A number of arguments support the view that the United Nations may generally assume tasks of temporary governance. First, it is not very convincing to argue that the provisions of the United Nations Trusteeship System, namely Arts 77 and 81 of the Charter constitute a conclusive set of rules precluding e contrario the exercise of a trusteeship authority in any other form than the United Nations Trusteeship System. Such a restrictive systematic interpretation of the Charter would not be in line with the concept of implied powers governing the interpretation of competencies accorded by the Charter.153

149 150 151

152

153

Advisory Opinion of the International Court of Justice of 21 June 1971**, Doc. A/AC.131/37 of 12 March 1975. See ICJ Reports 1971,16 et seq., (52). See Schermers, see note 112, 85. See Klein, see note 56, 303: "Territorial zustandig sind ... die Vereinten Nationen, ... die in analoger Anwendung von Art. 81 SVN zur Administration befugt sind. In Ausiibung dieser Befugnis hat die Generalversammlung den 'Council for Namibia* errichtet...". For a detailed discussion, see Sagay, see note 110. See also Zacklin, see note 109,310; Junius, see note 66,92 et seq. See on the concept of implied powers Reparation for Injuries Suffered in the Service of the United Nations, ICJ Report 1949, 174 et seq., (182) and Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, ICJ Reports 1954,47 et seq., (56).

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Moreover, it can hardly be denied that the United Nations may administer a territory or a state where the express consent to do so has been granted by the authority in control.154 The protection of sovereignty and the prohibition of interference in the domestic affairs of a state (Article 2 para. 7 of the Charter) cannot be invoked against this form of territorial administration, because sovereign rights are generally disposable.155 Furthermore, the main purpose of a United Nations territorial administration is precisely to restore an institutional framework in the territory and thus permit the exercise of sovereign powers by the territorial state. Finally, using its authority under Chapter VII of the Charter, the Security Council may even establish a United Nations administration without the consent of the territory or the state in question.156 Article 2 para. 7 second sentence of the Charter allows the infringement on "the domestic jurisdiction" of a state even against its will, if the state is subject to measures under Chapter VII. Moreover, the powers of the Security Council under Chapter VII are wider than the powers of the United Nations within the framework the United Nations Trusteeship System. The absolute requirement of a trusteeship agreement with the territorial state, contained in Article 79 of the Charter, can in no way be interpreted as a limitation to unilateral action by the Security Council in the context of maintenance of international peace and security, because the preservation of national sovereignty, which this provision seeks to protect, may be overcome in situations qualifying as a threat to peace.157 Last but not least, even the drafting history of the Charter may be invoked, in order to establish that measures of territorial administration come within the ambit of Chapter VII. During the consideration of military enforcement measures at the San Francisco Conference, an amendment presented by the Norwegian delegation, to provide that the Security Council may "take over on behalf of the Organization the administration of any territory of which 154

155

156 157

See also D. Sarooshi, The United Nations and the Development of Collective Security, 1999,59 et seq.; Klein, see note 56,110. In its Wimbledon ruling, the PCIJ stated in 1923 that the voluntary surrender of sovereign rights by way of an international agreement is not unlawful per se, but rather a legitimate act by which the contracting state makes use of its sovereign powers. See PCIJ, Case of the S.S. Wimbledon, Sen A, Vol. 1 (1923-1927), 25. See also Sarooshi, see note 154,62; Ratner, see note 70,9. See also Hufnagel, see note 5,304.


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the continued administration by the state in possession is found to constitute a threat to the peace", was withdrawn, after it had been indicated that such a reference to a particular procedure could be interpreted as restrictive and of such nature as to limit the field of application of measures at the disposition of the Council.158

3. The Different Legal Foundations in the Charter Technically, several provisions of the Charter may be invoked in order to justify the establishment of UN territorial administrations outside the context of the Trusteeship System. In most cases, such as in Kosovo or East Timor, a measure will be taken in response to a "threat to the peace" within Article 39 of the UN Charter which has been interpreted broadly so as to encompass situations of civil strife and grave violations of human rights.159 Should the Security Council authorize the establishment of a territorial authority under these circumstances, a number of different situations must be distinguished. If the United Nations administering authority is established with the consent of the state concerned, it would seem that a legal basis for the civil administration component of the operation may be found in Article 39 in conjunction with Article 29 or Article 98 of the Charter, which allow the delegation of powers from the Security Council to subsidiary organs of the Council or to the Secretary General;160 otherwise, the creation of civilian institutions may fall within the ambit of Article 41161 which covers a wide and non exhaustive162 range of measures not involving the use of armed force. The military components of the operation, however, can only be

158

159 160

161

162

See Commission III, Committee 3, Session of 23 May 1945, UNCIO Vol. 12, 353 et seq., 54-355, Doc. 539 III/3/24. Cf. J.A. Frowein, " On Article 39", in: Simma, see note 141,610 et seq. The organizational power to create subsidiary organs (Article 29) or to entrust certain functions to the Secretary-General (Article 98) is applicable to both, Chapter VI and Chapter VII operations. See M. Bothe, "Peacekeeping", in: Simma, see note 141, 590. See also Bothe/ Marauhn, see note 3, sub. III.1 See also Matheson, see note 3, 83-84; Bothe/ Marauhn, see note 3, sub. III.1; Ruffert, see note 3,620-621. See J.A. Frowein, "On Article 41", in: Simma, see note 141, 625.

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based on Article 42163 which, in turn, applies in conjunction with Article 48, if the Council authorizes individual states to use force. The situation is less clear when action is taken by the General Assembly, such as in the case of West Irian164 or Namibia.165 It has been clearly established by the jurisprudence of the ICJ that the General Assembly does generally have the authority to initiate peace operations with the consent of the government on whose territory the mission shall be stationed.166 Article 98 of the Charter allows for functions to be entrusted to the Secretary-General by the General Assembly. However, a substantial limitation on the General Assembly's powers is that it cannot authorize Chapter VII operations which fall exclusively in the competence of the Security Council.167 Action involving the creation of military organs would therefore have to be effected through the Council.168

V. Nature of Authority Although the United Nations transitional administrations in Kosovo and East Timor were formally established outside the context of the 163 164

165

166

167

168

See also Bothe, see note 160, 590. Higgins sees the legal basis in Article 14 of the Charter. See Higgins, see note 95,120. See also Kelly, see note 106,100. Sagay invokes the concept of implied powers. See Sagay, see note 110, 271: "Since it is clear that the establishment of the Council for South West Africa, and the appointment of a Commissioner for the Territory, was deemed necessary by the General Assembly for the performance of its functions in the mandated Territory, and that the Authority granted to the Commission does not exceed that of the General Assembly ... the constitutional or legal validity of the establishment of the Council cannot be in any doubt". Cf. Case Certain Expenses of the United Nations, ICJ Reports 1962,151 et seq.,(163). The main problem lies in the limitation which Article 11 para. 2 of the Charter imposes on the powers of the General Assembly. For a discussion of what constitutes "action" which has to be referred to the Security Council, see Bothe, see note 160, 591-592. Cf. Bothe, see note 160, 592 "... the exclusion of the GA from the creation of such military organs now seems to be an established rule ... But this does not preclude the GA from authorizing the inclusion of some kind of security element in an essentially non-military mission, e.g. human rights or election monitoring."


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trusteeship system under the Charter, they share many of the features which are typical for the administration of territories under the Mandates System of the League of Nations or the United Nations Trusteeship System. Territorial administration under Article 22 of the Covenant of the League of Nations and Chapters XII and XIII of the United Nations Charter was essentially based on a tripartite relationship between the territories placed under the mandates or the Trusteeship System, a state or a group of states acting as administering authority on behalf of the League of Nations or the United Nations, and the League or the United Nations itself retaining the powers of supervision and ultimate control.169 The administering states exercised their powers subject to the conditions and limitations provided for in the mandate or the Trusteeship agreement with the United Nations. The theoretical foundation of this model of territorial administration may be found in the institution of the "trust", namely the holding of rights and powers by a person (the "trustee") for or on behalf of another person (the "trustor") in order to accomplish the specific purposes which are at the heart of the mission of the trustee and the establishment of the trust.170 The concept of trusteeship used in both the Covenant of the League of Nations and the United Nations Charter as an institution of public international law, is closely related to a trust under private law.171 The difference is that other than in private law relations, the trustee is not a private person but a state or an international organization and that the object of the trust is not the administration of property but the administration of territories inhabited by peoples.172 Article 22 of the Covenant of the League of Nations contained a direct reference to the institution of the trust by providing that the wellbeing and development of the administered peoples "form a sacred trust of civilisation".173 In terms of legal theory, trusteeship was twofold. The League of Nations held all mandated territories as a trustee on behalf of 169

170

171

172 173

For a survey see R. N. Chowdhuri, International Mandates and Trusteeship System: A Comparative Study, 1955; D. Rauschning, "Mandates", R. Bernhardt (ed.), EPIL II (1995), 280 et seq.; J. Crawford, Creation of States, 1980, 225 et seq.; Kelsen, see note 87, 566 et seq., D. Rauschning, "On Article 75", see note 141, 933 et seq. and Sagay, see note 110,1 et seq. For an insight into the legal concept of the trust, see Sagay, see note 110, 17 et seq. See the Separate Opinion of Sir Arnold Mc Nair in the International Status of South West Africa Case, ICJ Reports 1950,128 et seq., (149). See also Kelsen, see note 87, 566. See Article 22 para. 1 of the Covenant.

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the international community, while each mandatory state administered the territory as a trustee on behalf of the League of Nations.174 The trust had a double function. It served the rights of the inhabitants of the mandated territories and the collective interests of the international community.175 As opposed to Article 22 of the Covenant of the League of Nations,176 the United Nations Charter did not expressly provide that the administering authorities exercise their functions "on behalf " of the organization.177 But trusteeship under the Charter was built on the same premises as trusteeship under the Covenant. Article 76 of the Charter obliges the administering authorities to act for the benefit of the population of the administered territory.178 Furthermore, the United Nations assumes the role of a "trustor" by acting as supervising authority179 and "master" of the trusteeship agreement.180 A number of arguments lend support to the view that the concept of trusteeship as an institution of public international law is not only at the heart of the mandates and the Trusteeship System, but also an overarching principle of complex peace-keeping and peace-enforcement operations involving the take-over of comprehensive administrative 174 175

176

177

178

179 180

Cf. Sagay, see note 110,26. See International Status of South West Africa Case, ICJ Reports 1950, 128 et seq., (132) "The mandate was created in the interests of the inhabitants of the territory, and of humanity in general, as an international institution with an international object - a sacred trust of civilisation" (emphasis added). Article 22 para. 2 of the Covenant stated that the mandated territories were to be administered "on behalf of the League". See also the statement of the representative of Australia at the 22nd Mtg. of the Trusteeship Council, emphasizing that "the Charter establishes the administering authority as an authority in its own right" and that "neither the Charter nor the [trusteeship] agreements use the phrase 'on behalf of the United Nations'", Doc. T/RV. 95, 87 et seq. See in particular Article 76 lit.(b), requiring "to promote the political, economic, social and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence...". See Article 87 of the Charter. See Article 79 of the Charter. In particular, any disposition of the trust territory requires the approval of the United Nations. For a discussion of the question of sovereignty over trust territories, see Kelsen, see note 87, 688 et seq., and D. Rauschning, "On Article 75", see note 141,933 et seq., (937).


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authority over a territory by the United Nations.181 The establishment of the United Nations transitional administrations in Kosovo and East Timor provides an excellent example of this practice.182

1. The Fiduciary Character of the United Nations Administering Authority Even though the terms and principles guiding the administration of Kosovo and East Timor are not laid down in a formal Trusteeship agreement, but determined by the Security Council Resolutions 1244 and 1272 and the subsequent regulations adopted by the United Nations representatives, the United Nations exercises authority over the respective territories on the basis of a list of general principles approved by the former administering powers. These basic principles are included in Annex 2 of Security Council Resolution 1244 which contains the agreement of the FRY to the establishment of UNMIK, and article 6 of the Agreement of 5 May 1999, which provides for the transfer of authority in East Timor to the United Nations. Furthermore, in both cases the territories were placed under the authority of the United Nations without making them in the ordinary sense a possession of the United Nations. This is evident in the case of Kosovo, where the FRY remains the official "sovereign" over the territory.183 But the same may be said of East Timor, which was handed over to the United Nations, in order "to initiate the procedure enabling East Timor to begin a process of transition towards independence".184 181

182

183 184

Cf. Stahn, International Territorial Administration, see note 3, 132 et seq. For a similar view, Hufnagel, see note 5, 216. See also the Report of Amnesty International on the situation in East Timor of July 2000, East Timor: Building a New Country Based on Human Rights: "The effect of the 5 May 1999 Tripartite Agreement and the result of the 30 August 1999 vote was to entrust legal responsibility for East Timor to the UN in a relationship that is analogous to a Trusteeship under the UN Charter." For an excellent discussion, see Bothe/ Marauhn, see note 3, sub. I and II. See on the resemblance between the Trusteeship System and UNMIK also E. Franckx/ A. Pauwels/ S. Smis, "An International Trusteeship for Kosovo: Attempt to Find a Solution to the Conflict, in: Studia Diplomatica, 1999,156 et seq., (164-165). See para. 10 of the preamble of S/RES/1244 and para. 10. See article 6 of the Agreement of 5 May 1999 and para. 3 of the preamble of S/RES/1272.

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As has been asserted with regard to the rights of a trustee,185 the rights of the United Nations over the administered territories are limited by its duties and obligations. The United Nations exercises only as much powers as necessary for the administration of the territory. But it does not acquire a title over the territory. Moreover, unlike a sovereign authority, the United Nations administration does not administer the territories of Kosovo and East Timor for its own benefit, but carries out its functions primarily in the interests and for the benefit of the territories, which has interests of its own, such as the realization of basic human rights protection and democratic governance or even further reaching claims, ranging from self-governance to the attainment of independence. In fact, both in Kosovo and in East Timor, the United Nations transitional administration is designed to provide individuals, minorities or peoples with the help and protection necessary to enable them to manage their own affairs in accordance with the basic principles of "good governance".186 Finally, in both cases the authority of the United Nations is of a temporary nature. The duration of the United Nations presence is limited by the fulfilment of its mandate, which consists in the creation of a stable political and legal environment in the territory and the establishment of a settled legal status.187 Once this is achieved, the United Nations must allow the local authorities to resume full and exclusive authority. All of these factors show that the role of the United Nations in Kosovo and East Timor is that of an authority-in-trust assuming governmental authority in the interests of the inhabitants of the territory.188

185

186 187

188

See J. Briefly, "Trusts and Mandates", BYIL 10 (1929), 217 et seq., (218219): "The trust is not a species of ownership, but an institution to be contrasted with ownership ... the rights of the trustee have their foundation in his obligations: they are tools given to him in order to achieve the work assigned to him." See para. 11 of S/RES/1244 and paras 2 and 8 of S/RES/1272. The duration of the United Nations administration may vary from case to case. See para. 11 lit.(b) of S/RES/1244, allowing UNMIK to perform "basic civilian administrative functions where and as long as required" and para. 17 of S/RES/1272, establishing UNTAET "for an initial period until 31 January 2001". See also Bothe/ Marauhn, see note 3, sub. I and II. See with respect to Kosovo Franckx/ Pauwels/ Smis, see note 182, 164 ("de facto Trusteeship"). For a similar conclusion with respect to the Council for Namibia,


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2. Functional Duality The special legal situation created by the exercise of fiduciary authority by the United Nations in Kosovo and East Timor is reflected in the legal order of the territories. In their capacity as administering powers UNMIK and UNTAET have taken significant legal action in order to re-establish a legal and social environment in which a comprehensive peace settlement may emerge. Most notably, the internationalization of the existing legal system has been used by the United Nations as an instrument of conflict resolution. When taking over administrative authority, the United Nations administrations in both Kosovo and East Timor have transformed the legal system of the territory, by complementing it with additional sources and rules of law. In both cases, the national laws in force in the territories before the establishment of UNMIK and UNTAET were declared applicable, but only insofar as they did not conflict with the legislation adopted by the United Nations administration ("regulations") and internationally recognized human rights standards defined by the transitional administrations.189 At the same time, special attention was given to the establishment of human rights guarantees facilitating the return and care of refugees and displaced persons and to the revocation of discriminatory legislation. The United Nations Special Representative in East Timor repealed existing Indonesian security laws in his first Regulation.190 Furthermore, the United Nations Special Representatives in Kosovo decided in his Regulation No. 1999/24 that, in addition to his own regulations, the law applicable in Kosovo would be the law in force before the abrogation of Kosovo's autonomy status by the FRY.191 Technically, the internationalization of municipal law was both in Kosovo and in East Timor achieved most effectively through the incorporation of directly applicable international legal norms and acts into the domestic legal system. Following the model used by the Bosnian

189

190 191

cf. Sagay, see note 110, 268-269. See with regard to UNTEA, Higgins, see note 95,95 ("a sort of trusteeship"). See Section 2 of UNMIK Regulation 1999/1; Section 1.2 and 1.3 of UNMIK Regulation 1999/24, as amended by UNMIK Regulation 2000/59 and Section 3.1 of UNTAET Regulation 1999/1. See Section 3.2 of UNTAET Regulation 1999/1. See Section 1 of UNMIK Regulation 1999/24, as amended by UNMIK Regulation 2000/59.

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Constitution,192 UNMIK Regulation 1999/24 and UNTAET Regulation No. 1999/1 declared the adherence of the United Nations administrations to human rights standards set forth in international treaty instruments such as the two International Human Rights Covenants or the Convention on the Elimination of All Forms of Racial Discrimination. The instruments listed in both regulations are therefore selfimposed and binding through their incorporation in the domestic legal system, without requiring a treaty accession by the territories to the relevant legal instruments.193 However, the main source of law in the United Nations transitional administrations are the legislative acts ("regulations") adopted by the Special Representatives of the Secretary-General. These regulations are formally international legal acts enacted by subsidiary organs of the Security Council within the meaning of Article 29 of the Charter. They shall "remain in force until repealed" by the international transitional administrations or "superseded by such rules as are issued" either by the "institutions established under a political settlement" for Kosovo194 or "upon the transfer of UNTAET's administrative and public service functions to the democratic institutions of East Timor".195 Their qualification as "regulations", differing from domestic "laws",196 reveals that the acts of the United Nations administration constitute a specific source of law, placing Kosovo and East Timor provisionally under the legal order of the United Nations.197 Furthermore, the regulations adopted by the United Nations Special Representatives enjoy direct applicability. In the case of Kosovo, where the FRY has remained the official territorial sovereign over the territory, the direct applicability of UNMIK legislation may be justified by interpreting Security Council Resolution 1244 as a legal instrument, which in conjunction with the approval of the FRY expressed in Annex 1 of the resolution, opened the legal order of the FRY so as to allow for a direct application of acts of the United Nations administration within Kosovo. In the case of East Timor, the direct applicability of UNTAET regulations may be ex192 193 194 195 196

197

See article II2 of the Bosnian Constitution and its Annex I. See Chapter 3.3 of the Constitutional Framework. See Section 4 of UNMIK Regulation 1991/1. See Section 4 of UNTAET Regulation 1999/1. For the differentiation between "laws" and "regulations", see Section 1 of Regulation 1999/24 on the law applicable in Kosovo. See also Ruffert, see note 3, 622 et seq.; Bothe/ Marauhn, see note 3, sub. II.3.


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plained by way of a transfer of governmental authority to the United Nations by the former administering powers, agreed upon in the Agreement of 5 May 1999 and finally implemented by the United Nations in Security Council Resolution 1272. At the same time, the acts of the United Nations do not only form part of the legal order of the United Nations, but constitute also internal acts of the administered "internationalized" territories. There is authority to argue that the United Nations Special Representative acts in a dual capacity198 when adopting legislation, namely as an organ of the United Nations and as an international authority, representing or replacing the national institutions during the period under administration. Within the legal order of the United Nations, UNMIK and UNTAET function as the legal administering authorities of Kosovo and East Timor with all legislative and executive authority. In the absence of both a functioning internal legal system and domestic authorities capable of taking action, the United Nations administrations may be conceived as provisional representatives of the domestic governmental in-

198

In what might be called a Bosnian version of the US Supreme Court's Marbury v. Madison decision, the Constitutional Court of Bosnia and Herzegovina recently introduced the notion of 'functional duality', by holding that the High Representative acts both as a national organ of Bosnia and Herzegovina and as an international authority when adopting decisions in the form of national laws. A description of this concept is given in para. 5 of the judgment where the court notes that "... the legal role of the High Representative, as agent of the international community is not unprecedented ... Pertinent examples are the mandates under the regime of the League of Nations and, in some respects, Germany and Austria after the Second World War. Though recognised as sovereign, the States concerned were placed under international supervision, and foreign authorities acted in these States, on behalf of the international community, substituting themselves for the domestic authorities. Acts 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." See Constitutional Court of Bosnia and Herzegovina, Decision in the Case No. U 9/00 of 3 November 2000, reprinted in ZaoRV 61 (2001), 173 et seq. For an analysis of the decision, see Stahn, International Territorial Administration, see note 3, 166 et seq. The same idea has been expressed by some authors with reference to the authority of the Allied powers in Germany after 1945. They argued that the occupying powers exercised both military and public authority in Germany. See W. Grewe, Ein Besatzungsstatut fur Deutscbland, 1948, 82.

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stitutions.199 Furthermore, considering their object and purpose, the regulations of the United Nations administrators in Kosovo and East Timor differ from acts concerning exclusively the internal legal order of the United Nations. UNMIK or UNTAET regulations are intrinsically linked to the inhabitants and the territory of Kosovo and East Timor. In fact, one may argue that the existing municipal law and the "new" United Nations law form a functional unity, creating the law of the internationalized territory which constitutes a legal entity of its own, separate from the United Nations. Finally, a parallel may be drawn to the Decree of the Commissioner for Namibia, which has been characterized as a stti generis legal instrument, but was at the same time assimilated to a law of a foreign state by the Member States of the United Nations.200

VI. Regulatory Framework UNMIK and UNTAET have been created by the Security Council with the overall objective to establish democratic governmental structures and a functioning political and legal system in the administered territories. In exercising their functions, both transitional administrations have encountered similar challenges and obstacles. Therefore, it does not come as a surprise that the regulatory framework and the legal mechanisms used by UNMIK and UNTAET in the course of their activities reveal a number of striking parallels. However, when comparing the legal action of the United Nations in Kosovo and in East Timor one may observe that in a number of cases the practice of UNTAET deviates from the approach adopted by UNMIK.

199

200

The Ombudsperson Institution argues that Security Council Resolution 1244 established UNMIK as "a surrogate state", see Special Report No. 1 on the Compatibility with recognised international standards of UNMIK Regulation No. 2000/47 of 26 April 2001, 8 and Special Report No. 2 on Certain Aspects of UNMIK Regulation No. 2000/59 Amending UNMIK Regulation No. 1999/24 on the Law Applicable in Kosovo of 30 May 2001, 4. For a summary see, Ombudsperson Institution in Kosovo, First Annual Report 2000-2001 of 18 July 2001. See Klein, see note 66,488, Schermers, see note 112, 90.


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1. The Development of Joint Governing and Administrative Structures One of the first steps of both administrations has been to develop governing institutions involving UN and local representatives. In Kosovo, a joint administrative structure was established by the United Nations in an Agreement on Joint Interim Administration in Kosovo of 15 December 1999, the terms of which were later implemented by UNMIK Regulation 2000/1 of 14 January 2000. Local representatives were given a share in the provisional administrative management of Kosovo, while the United Nations administrators retained the full legislative and executive authority.201 The Kosovo Transitional Council (KTC), a common institution of representatives of the different political parties and ethnic groups in Kosovo, was charged with a consultative role in the decision-making process.202 Furthermore, an Interim Administrative Council (IAC) composed equally of members appointed by UNMIK and local representatives,203 was vested with the power to recommend the adoption of new legislation or amendments to the existing legal framework. But the Special Representative of the Secretary-General maintained the authority to reject such proposals.204 In addition, UNMIK Regulation 2000/1 established Administrative Departments under the supervision of a Kosovar and an UNMIK Co-Head of Department, responsible for making policy recommendations to the IAC.205 Although the powers of the joint administrative bodies were finally rather limited, the early participation of local actors in the decisionmaking process at the central level served an important function, namely the dissolution of the Albanian "shadow" government, elected under the proclaimed Constitution of the "Republic of Kosovo". Regulation 2000/1 provided that the parallel political institutions of the Albanian community, be they executive, legislative or judicial such as

201 202 203 204

205

See Section 1 a) of UNMIK Regulation 2000/1. See Section 2.1 of UNMIK Regulation 2000/1. See Section 4 of UNMIK Regulation 2000/1. See Sections 6.2 of UNMIK Regulation 2000/1: " [T]he Special Representative of the Secretary-General shall accept such decision unless he advises the Interim Administrative Council otherwise in writing within seven days explaining the reasons for his differing decision". See Section 7 of UNMIK Regulation 2000/1.

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the Provisional Government of Kosovo or the Presidency of the Republic of Kosovo should "cease to exist" by 31 January 2000.206 Regulation 2000/45 of 11 August 2000 on Self-Government of Municipalities in Kosovo conferred broader powers upon the authorities at the local level. Municipalities were authorized to regulate and manage a substantial share of public affairs under their own responsibility. Areas such as urban and rural planning, primary and secondary education, health care or tourism were placed under the authority of municipalities. But the municipalities continued to operate under the overall supervision of UNMIK. Municipal Administrators were obliged to "ensure that municipal decisions are in compliance with United Nations Security Council Resolution 1244 and the applicable law".207 The Special Representative of the Secretary-General remained empowered to "set aside any decision of a municipality", which he considered "to be in conflict" with these rules or which did "not sufficiently take into account the rights and interests" of the minority communities living in the municipality.208 The re-establishment of the judiciary in Kosovo was also effected under close scrutiny of UNMIK.209 In the beginning of the operation, the United Nations administration set up district courts and public prosecutors offices in some cities, while other areas were simply served by mobile units consisting of "flying judges".210 The judges and prosecutors were appointed by UNMIK. Later, UNMIK established the Advisory Judicial Commission to advise the Special Representative on the appointment of judges and prosecutors on a permanent basis.211 Again, the Special Representative retained the final authority over the judiciary which was clearly reflected in the rules on the nomination of prosecu-

206 207

208 209

210

211

See Section 1 b) of UNMIK Regulation 2000/1. See Section 48.1 of UNMIK Regulation 2000/45. On the appointment of regional and municipal administrators, see also UNMIK Regulation 1999/14 of 21 October 1999. See Section 47.2 of UNMIK Regulation 2000/45. For a survey of the problems arising in the context of the reconstruction of the judicial system in Kosovo, see Stromeyer, see note 3, 51 et seq. See the report of the OSCE Mission in Kosovo "Review of the Criminal Justice System", 11, available under http://www.oesce.org/kosovo - See also UNMIK Regulation No. 1999/5 on the establishment of an ad hoc Court of Final Appeal and an ad hoc Office of the Public Prosecutor. See Section 1 of UNMIK Regulation 1999/7, as amended by UNMIK Regulation 2000/57 of 6 October 2000.


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tors and judges. Regulation 2000/6, which spells out the legal framework governing the appointment and removal from office of international judges and international prosecutors contains almost no safeguards for international judges and prosecutors against their removal from office. According to the terms of the regulation, the removal from office does not even require a specific procedure; it is merely based on a decision by the Special Representative, which may be based on such indeterminate grounds as "serious misconduct" or "failure in the due execution of office".212 The very same vague criteria were deployed in the context of the removal from office of national judges and prosecutors. In this case, however, the Special Representative was asked to "consult" the Advisory Judicial Commission213 before taking his decision. Section 7 of Regulation 1999/7 endows the Commission with the task of submitting "an appropriate recommendation" to the Special Representative, who may then remove a judge or prosecutor from office "after taking into account the recommendation of the Commission". It is obvious that this procedure does not offer significantly greater safeguards for the independence of the judiciary. UNMIK has shown some more willingness to establish mechanisms of shared governance and administration by transferring legislative and executive powers to the domestic authorities in the Constitutional Framework on Provisional Self-Government in Kosovo. The document creates a number of legislative, executive and judicial bodies which are charged with the main tasks of public administration in Kosovo on the basis of a catalogue of enumerated competencies.214 The Provisional Institutions of Self-Government are institutions, which would normally be associated with a state or the sub-entities of a federation, namely a Parliamentary Assembly, a President, a Government and a Supreme 212

213

214

Section 4.1 of UNMIK Regulation 2000/6 reads: "The Special Representative of the Secretary-General may remove from office an international judge or international prosecutor on any of the following grounds: a. physical or mental incapacity which is likely to be permanent or prolonged; b. serious misconduct; c. failure in the due execution of office; or d. having been placed, by personal conduct or otherwise, in a position incompatible with the due execution of office". The Commission is composed of eight local and three international experts. See Section 2 of Regulation 1999/7, as amended by UNMIK Regulation 2000/57 of 6 October 2000. For the responsibilities of the Provisional Institutions of Self-Government, see Chapter 5 of the Constitutional Framework. See on this issue also Stahn, Constitution without a State, see note 3.

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Court with a Special Chamber on "Constitutional Framework Matters".215 Furthermore, the powers attributed to the institutions provide the local authorities with the opportunity to administer their daily affairs. They encompass regulatory powers in fields such as economic and financial policy, domestic and foreign trade, labour and family policy, transport and telecommunication issues and agricultural and nonresident-affairs. At the same time, however, one cannot fail to note that key areas of responsibility such as external relations,216 the maintenance of law and order217 and ultimate budgetary control218 remain under the direct authority of the Special Representative. Moreover, the exercise of the responsibilities of the provisional institutions of self-government does in no way affect the ultimate authority of the Special Representative. This is not only explicitly stated in the preamble of the Constitutional Framework,219 but also reiterated in Section 12 of the document according to which the Special Representative is empowered to oversee "the Provisional Institutions of Self-Government, its officials and its agencies" and to take "appropriate measures whenever their actions are inconsistent with UNSCR Resolution 1244 (1999) or this Constitutional Framework".220 It would therefore be premature to assume that the promulgation of the Constitutional Framework has brought about a permanent transfer of public authority to local control. UNMIK's reluctance to cede its administering powers at the central level to local institutions may be explained by two factors: the ongoing security challenges and ethnic divisions on the hand, and the unsolved territorial status of Kosovo on the other hand. These premises make UNMIK's mandate more difficult to accomplish than the task of the United Nations Transitional Administration in East Timor, which has been charged with a very specific mission, namely the smooth transition of East Timor from Indonesian rule to independence.

215 216 217 218 219

220

See Chapter 1.5 of the Constitutional Framework. See Chapter 8 o) of the Constitutional Framework. See Chapter 6 of the Constitutional Framework. See Chapter 8 c) and e) of the Constitutional Framework. See para. 9 of the preamble, which reads: "Affirming that the 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 for the implementation of UNSCR 1244 (1999)." Moreover, the Special Representative may, on his own initiative, amend the legal framework document. See Chapter 14.3 of the Constitutional Framework.


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When comparing the governing structure established by UNMIK with the system of administration developed by UNTAET, one may note that the United Nations administration in East Timor has placed greater emphasis on the participation of local actors in the central administration than the corresponding United Nations Mission in Kosovo.221 UNTAET responded to East Timorese criticism that it failed to take due account of the views of the local population by creating the National Council and the Cabinet of the Transitional Government in East Timor. While retaining the ultimate executive and legislative authority conferred upon him by the Security Council, the Special Representative has delegated important parts of his powers to these two institutions. The Cabinet, a special administering body comparable to a national government, was not only authorized to recommend to the Transitional Administrator the approval and promulgation of regulations,222 but also charged with the supervision of the East Timor Administration.223 Furthermore, in its Regulation No. 2000/24 of 14 July 2000, the Special Representative established the National Council "to act as a forum for all legislative matters related to the exercise of the legislative authority of the Transitional Administrator".224 The Council, a body entirely composed of East Timorese,225 was inter alia empowered to initiate, to modify and to recommend draft regulations and to amend existing regulations.226 Section 2.3 of Regulation 2000/24 added that the "Transitional Administrator shall approve a draft regulation or amendment endorsed by the Council upon the recommendation of the Cabinet where, in his sole discretion, the draft regulation is consistent with the fulfilment of his mandate under Security Council Resolution 1272 (1999)" (emphasis added). Moreover, Section 2.1 of Regulation 2000/24 introduced a mechanism of parliamentary control, by authorizing the National Council to "require the appearance of Cabinet Officers appointed pursuant to UNTAET Regulation No. 2000/23 to answer questions regarding their respective functions".

221 222 223 224 225

226

Cf. Ruffert, see note 3,625. See Section 4 d) of UNTAET Regulation 2000/23. See Section 4 b) of UNTAET Regulation 2000/23. See Section 1.1 of UNTAET Regulation 2000/24. The National Council consisted of 36 members representing the 13 districts of East Timor, different political parties, civic organizations and religious groups. See Section 2.1 a) of UNTAET Regulation 2000/24.

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Like in Kosovo, international and local administrative structures were not only combined at the central, but also at the local level. A particularly interesting example is the establishment of village and subdistrict development councils for the allocation of development funds granted to UNTAET by the World Bank for the purposes of the implementation of Security Council Resolution 1272. The Grant Agreement concluded by the IDA and UNTAET made the payment of the funds dependent on the adoption of a regulation creating development councils at the village and sub-district levels.227 The Special Representative laid down a system for the establishment of Village Development Councils and Sub-District Developments in UNMIK Regulation 2000/13. The councils were created as special administering bodies228 with autonomous decision-making power concerning the allocation of funds.229 But they were at the same time obliged to cooperate with the UNTAET District Administrators.230 Another institution reflecting the interaction of international and local administrative structures in East Timor is the Public Service Commission, created by UNTAET Regulation 2000/3. The Commission was established as an independent administering body "charged with the oversight of the proper functioning of the East Timor Administration".231 Its main task was the recruitment, appointment and supervision of civil servants.232 The Commission was composed of international and East Timorese members.233 Although being "independent in the exercise of its functions", the Commission remained accountable to

227

228

229 230

231 232 233

See IDA-UNTAET: Trust Fund for the East Timor Grant Agreement of 21 February 2000, article 6.01 c), Schedule 4. Section 1.3 of UNTAET Regulation 2000/13 states that the Village Councils and Sub-District Councils "shall not exercise the legislative, executive and judicial power of government". Furthermore, Section 1.4 of the Regulation provides that the councils "shall not duplicate or replace the role of the traditional and local leaders of such villages and sub-districts." See Sections 7.1,7.2,11.1 and 11.2 of UNTAET Regulation 2000/13. See Sections 5.4, 9.3, 11.3, 11.6, 12.4, 13 and 14 of UNTAET Regulation 2000/13. See Section 1.1 of UNTAET Regulation 2000/3. See Section 1.2 of UNTAET Regulation 2000/3. The Commission comprised 7 members appointed by the Transitional Administrator. At least two of them had been international experts.


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the United Nations Transitional Administrator and the National Council.234 Furthermore, the internationalization and the supervision of the local judiciary have turned out to be features common to both the United Nations operation in Kosovo and the transitional administration in East Timor. UNTAET created a civil law court system with districts courts and a Court of Appeal in East Timor,235 which was soon complemented by a public prosecutor's office.236 UNTAET also established special serious crimes panels within the District Court of Dili with exclusive and "universal jurisdiction" to adjudicate cases of genocide, war crimes and crimes and against humanity committed between 1 January 1999 and 25 October 1999.237 Section 10.3 of UNTAET Regulation 2000/11 provides that these panels shall "be composed of both East Timorese and international judges". But similar to the situation in Kosovo, the judicial system in East Timor continued to be subject to strict monitoring by the United Nations administration. The Special Representative retained the "final authority" to decide on a removal from office of judges on grounds such as the "serious violation of professional responsibilities" or "the acceptance of bribes or other emoluments beyond the granted remuneration, as determined by the Transitional Administration".238 Moreover, Section 9.5 of Regulation 2000/11 allowed him to "decide to vest jurisdiction on matters of particular concern, including matters related to public administration ... exclusively into individual District Courts, where the interests and efficacy of justice so requires". A change of direction, however, reflecting the gradual decline of UNTAET's powers in the process of East Timor's access to independence, may be found in Regulation 2001/2. The Constituent Assembly charged with the preparation of a Constitution for an independent and democratic East Timor may consider "such draft regulations as may be referred to it by the Transitional Administrator", but is in no way compelled to abide by these proposals.239 It is also clear that the authority of the United Nations will diminish significantly, once East Timor has gained independence. In fact, it has even been stated by the Secretary234 235 236 237 238

239

See Section 2.1 and 4 of UNTAET Regulation 2000/3. See Sections 4 and 7 of UNTAET Regulation 2000/11. See UNTAET Regulation 2000/16 of 6 June 2000. See Sections 1.3 and 2 of UNTAET Regulation 2000/15. See Section 29 1 a) of UNTAET Regulation 2000/11 referring to article 13.3 of UNTAET Regulation 1999/3. See Section 2 of UNTAET Regulation 2001/2.

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General that a United Nations successor mission in East Timor would be vested with a much more limited mandate than UNTAET.240

2. The Definition of the Applicable Law Both in Kosovo and in.East Timor, a number of problems have emerged with respect to the definition of the applicable law. In their regulations establishing the foundations of the legal system of the administered territories, UNMIK and UNTAET have failed to set up a clear hierarchy between the different sources of law. UNMIK Regulation 2000/59 mentions four sources of law applicable in Kosovo: 1.) Regulations promulgated by the Special Representative, 2.) the law in force in Kosovo on 22 March 1989, 3.) the law applied in Kosovo between 22 March 1989 and 12 December 1999 (the date Regulation 1999/24 came into force), provided that it is not discriminatory and 4.) recognized internationally human rights standards. Unfortunately, the rank of these different bodies of law in the legal system of Kosovo is not entirely clear from the wording of the Regulation. Section 1.1 of Regulation 2000/59 states that regulations "shall take precedence" over 1989 law. Furthermore, it is pointed out that the law in force in Kosovo after 22 March 1989 must comply with the internationally recognized human rights standards listed in Section 1.3 of the Regulation. But the hierarchy between the other sources of law remains unclear.241 In particular, it has not been specified whether human rights law takes precedence over domestic laws or UNMIK regulations. Section 1.3 of Regulation 2000/59 confines itself to state that "in exercising their functions, all persons undertaking public duties or holding public office in Kosovo shall observe internationally recognised human rights standards as defined in the Regulation".242 Section 2 of 240

241

242

Planning for such a post UNTAET United Nations presence in East Timor has been undertaken by a working group. The Secretary-General notes in his progress report on the United Nations Transitional Administration in East Timor of 24 July 2001 that there would be "a substantial reduction in the overall presence" once East Timor has reached independence. See Report of the Secretary-General of 24 July 2001, Doc. S/2001/719, para. 53 et seq. See also the analysis of the Ombudsperson Institution in Special Report No. 2, see note 199, paras 9 et seq. See also the critical remarks by the Ombudsperson Institution noting that international human rights obligations "do not only attach to public offi-


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the Regulation adds that the "courts in Kosovo may request clarification from the Special Representative of the Secretary-General in connection with the implementation of the present regulation". The Special Representative was finally forced to set out the meaning of Section 1.3 of Regulation 1999/24 in a letter to the Belgrade Bar Association, confirming thereby that human rights law takes precedence over the provisions of the domestic law.243 The same principle has now been codified in the Constitutional Framework, which states that the "Provisional Institutions of Self-Government shall observe and ensure the internationally recognized human rights and fundamental freedoms" set forth in Chapter 3 of the document. Furthermore, Chapter 9.4.11 of the Constitutional Framework authorizes the Special Chamber of the Supreme Court to examine whether "any law adopted by the Assembly is incompatible with this Constitutional Framework, including the international legal instruments specified in Chapter 3 on Human Rights" (emphasis added). UNMIK, on the contrary, appears to be the "final arbiter" of the lawfulness of its own legislation. While the general precedence of the applicable human rights law above UNMIK regulations may be inferred from Section 3 of Regulation 2000/38 on the Establishment of the Ombudsperson Institution in Kosovo, which provides that "... the Ombudsperson may provide advice and make recommendations to any person or entity concerning the compatibility of domestic laws and regulations with recognized international standards" (emphasis added), there are no institutions to invalidate UNMIK legislation for violation of human rights standards. In particular, the courts in Kosovo are not authorized to declare UNMIK regulations null and void and therefore inapplicable for non-conformity with the human rights instruments listed in Section 1.3. of Regulation 1999/57. The right to file complaints concerning an abuse of authority by UNMIK is restricted to the procedure before the Ombudsperson.244 Furthermore, Section 9.4.11 of the Constitutional Framework exempts UNMIK regulations from the ju-

243 244

cials in their official capacities, but to the institutions on behalf of whom they exercise their public functions". However, neither UNMIK Regulation 2000/59 nor any other law codifies this principle of state responsibility. See para. 11 of Special Report No. 2. Cf. OSCE, Justice System, see note 210, page 15. See Sections 3 and 4 of UNMIK Regulation 2000/38.

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risdiction of the Special Chamber of the Supreme Court on Constitutional Framework Matters.245 Similar uncertainties concerning the applicable law have also arisen under the legal framework established by UNTAET in East Timor. In particular, Section 2 of UNTAET Regulation 1999/1 repeats the equivocal formula contained in UNMIK Regulation 2000/59 by providing that "all persons undertaking public duties or holding public office in East Timor shall observe internationally recognized human rights standards" as listed in the Regulation. Section 3.1 of Regulation 1999/1 provides some more specific information by stating that "[u]ntil replaced by UNTAET regulations or subsequent legislation of democratically established institutions of East Timor, the laws applied in East Timor prior to 5 October 1999 shall apply in East Timor insofar as they do not conflict with the standards referred to in section 2, the fulfilment of the mandate given to UNTAET under United Nations Security Resolution 1272 (1999), or the present or any other regulation and directive issued by the Transitional Administrator." It follows directly from the wording of the Regulation that all domestic laws must comply with UNTAET regulations and the human rights standards declared applicable in East Timor by Section 2 of Regulation 1999/1. The regulatory framework established by UNTAET is therefore, at least in this regard, much clearer than the legislation adopted by UNMIK. However, UNTAET Regulation 1999/1 remains silent on the question of whether UNTAET legislation itself must be in accordance with the self-imposed human rights standards. The general obligation of the United Nations administration to secure and promote human rights in East Timor, as laid down in Security Council Resolution 1272, would support such a view.246 But, just as in Kosovo, the jurisdiction of the 245

246

The jurisdiction of the Court is limited to the control of acts adopted by the Provisional Institutions of Self-Government. The Special Representative, however, does not form part of this group of institutions defined in Chapter 1.5 of the Constitutional Framework. For a clear affirmation of this obligation under S/RES/1244, see para. 8 of Special Report No. 2 of the Ombudsperson Institution: "Resolution 1244 establishes the premise that the SRSG has an obligation to observe internationally recognised human rights standards in fulfilling his mandate ... It follows that when exercising his legislative authority to promulgate regulations and subsidiary instruments issued thereunder (cf. Section 1.1 a of UNMIK Regulation 2000/59), the SRSG should ensure internationally recognised human rights standards which are entrenched in such legal enactments. It also follows that when exercising his executive authority in any


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East Timorese courts is limited to the review of the legality of domestic laws. Section 5 of UNTAET Regulation 2000/11 states that "in exercising their jurisdiction, the courts in East Timor shall apply the law of East Timor as promulgated by Section 3 of UNTAET Regulation 1999/1". A special mechanism, which would allow the courts to control the conformity of UNTAET Regulations with human rights standards, was not introduced. One must therefore assume that, while being obliged to comply with the applicable human rights law in East Timor, UNTAET Regulations "remain in force until repealed by the Transitional Administrator or superseded" by the rules of the democratic institutions of an independent East Timor.247

3. The Legal Status of the Interim Administration Another issue, which has given rise to legal controversies is the status of the United Nations administration within the administered territories. Within the framework of a UN led peace-keeping operation, the different international actors usually enjoy far-reaching immunities. But it is questionable whether the same standards may be applied, if the United Nations acts as a provisional government of a territory, assuming the classical powers of a state. The question has been tackled differently in Kosovo and in East Timor. In its Regulation 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and their personnel, the United Nations administration in Kosovo has conferred wide immunities upon UNMIK and KFOR, making it very difficult, if not impossible, for individuals to defend their rights against these authorities. In a democratic state, immunity is normally conferred upon individuals who act as members of the government or members of parliaments. In Kosovo, however, immunity is granted to UNMIK as an institution.248 Section 3.1 of Regulation 2000/47 provides that "UNMIK, its property, funds and assets

247 248

capacity, the SRSG should do so within the parameters defined by the international human rights canon and with regard to any law in force in Kosovo, without distinction". See Section 4 of UNMIK Regulation 1999/1. See also Section 6.1 of Regulation 2000/47, which reads "The immunity from legal process of KFOR and UNMIK personnel and KFOR contractors is in the interests of KFOR and UNMIK and not for the benefit of the individuals themselves."

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shall be immune from any legal process". The same immunity standard applies to KFOR. Section 2.1 of Regulation 2000/47 states that "KFOR, its property, funds and assets shall be immune from any legal process". Similar privileges are usually accorded to international organizations, in order to protect them against the interferences of the government of a state in which they are located.249 However, the absence of legal accountability is rather unusual in the relationship between an administering authority and the individuals under its jurisdiction. In fact, Regulation 2000/47 left individuals largely without a remedy against acts taken by UNMIK or KFOR.250 Attempts to challenge the occupation or the damage of private property by UNMIK and KFOR or to claim compensation for financial and material losses suffered from action conducted by their personnel have been frustrated by the immunities granted under Regulation 2000/47. This lack of administrative or judicial remedies is highly questionable from a legal perspective. UNMIK and KFOR are not ordinary peace-keeping forces, but international authorities exercising tasks of public administration for the benefit of the local population. UNMIK, for example, administers the movable and immovable property, which is in the territory of Kosovo.251 KFOR carries out police tasks. A selfaccorded grant of immunity from any administrative, civil or criminal responsibility for actions carried out in this capacity is hardly justifiable.252 It is one of the basic principles of democratic states that the executive and legislative branches of power are bound by the law. The degree of accountability may be reduced in situations of emergency. But the absence of mechanisms for the protection against arbitrary exercises of public authority is hardly compatible with principles of democratic governance253 and the rule of law.254 249

250 251

252

253

For a recent analysis of the immunity of international organizations, see European Court of Human Rights, Waite and Kennedy v. Germany, Reports of Judgments and Decisions, 1999-1, para. 63. See OSCE, Justice System, see note 210, page 19. See Section 6 of UNMIK Regulation 1999/1, as amended by Regulation 2000/54. See also Chopra see note 5, 54 "the peace-maintenance authority must be accountable itself, and not in some way above the law", and at 55 "Consequently, civil officials and military contingents participating in peacemaintenance operations are subject to an interim rule of law, no less than is the local population". See on this principle, T. M. Franck, "The Emerging Right to Democratic Governance", AJIL 46 (1992), 86 et seq. For the proclamation of the right


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The Ombudsperson Institution addressed the issue of the immunities granted under Regulation 2000/47 in Special Report No. 1, following a large number of individual applications concerning the occupation or damage of private or socially-owned property by UNMIK and KFOR.255 The Ombudsperson found that the wholesale removal of UNMIK and KFOR from the jurisdiction of the courts of the territory in which they operate, violates several provisions of the European Convention on Human Rights (ECHR), namely article 6 ECHR, in that individuals have no adequate judicial forum to raise civil claims against UNMIK and KFOR;256 article 1 of Protocol 1, in that KFOR and UNMIK may occupy or damage property without compensating the owners;257 article 8 ECHR, in that KFOR and UNMIK may deprive individuals of access to their homes258 and article 15 ECHR, in that KFOR and UNMIK have limited these and other rights beyond what is strictly necessary.259 UNTAET, on the contrary, seems to have taken a different approach. While a Status of Forces Agreement (SOFA) concluded between Australia and Indonesia260 established that INTERFET, its property, funds, assets and its members were to enjoy immunity from Indonesian criminal and civil jurisdiction,261 UNTAET and Indonesia have not entered into a similar arrangement.262 Furthermore, the United Nations administration in East Timor has refrained from adopting a regulation spelling out the status, privileges and immunities of UNTAET.

254

255

256

257 258 259

260

261 262

to democracy as a human right, see the United Nations Commission on Human Rights, Res. 1999/57 of 27 April 1999. See also Ombudsperson Institution, Special Report No. 1, see note 199, paras 23-24. For the number of complaints lodged with the Ombudsperson, see Annual Report, see note 199,8-9. See Ombudsperson Institution, Special Report No. 1, see note 199, paras 52 et seq. See Ombudsperson Institution, Special Report No. 1 ibid., paras 29 et seq . See Ombudsperson Institution, Special Report No. 1, ibid., paras 45 et seq. See Ombudsperson Institution, Special Report No. 1 ibid., paras 18 et seq. and 82. The Agreement was negotiated by Australia as the lead nation of INTERFET. New Zealand, however, took the view that the SOFA was a bilateral issue between Australia and Indonesia, because it not recognized that Indonesia had sovereign rights over East Timor. See Kelly /McCormack/ Muggleton /Oswald, see note 35,137. See Kelly/ McCormack/ Muggleton/ Oswald, ibid., 118.

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Instead, the United Nations administrator has laid down in several regulations that executive decisions taken by organs of the administration may be challenged before the courts. An identical clause may be found in UNTAET Regulations 2000/17 and 2000/19. It reads: "Pending the establishment of adequate judicial procedures for administrative matters, a person or legal entity may challenge a decision of the Deputy Transitional Administrator to uphold the original decision adverse to their interests with the competent judicial authorities in East Timor. In any court proceeding arising out of or in connection with the present regulation against UNTAET or a servant of UNTAET, the court shall apply the same substantive norms as would be applicable under the procedures for administrative matters**.263 Moreover, UNMIK Regulation 2000/10 provided for a review of decisions taken by the UNTAET procurement policy body before a court of competent jurisdiction.264 These few examples show that UNTAET obviously considered itself rather as a surrogate government of East Timor than as a foreign ruler vested with far-reaching immunities.

VII. Observance of Human Rights Standards The question of the observance of human rights standards by the United Nations Interim Administrations has been another subject of debate. It is quite clear that as UN bodies both UNTAET and UNMIK have to comply with the human rights standards embodied in the United Nations Charter and international customary law. This is expressly stated in Section 11 lit.(j) of Security Council Resolution 1244 which provides that "the main responsibilities of the international civil presence will include ... protecting and promoting human rights". In the case of East Timor, the corresponding formulation265 may be found in Part IV of the Report of the Secretary-General of 4 October 1999, to

263

264 265

See Sections 6.4 and 6.5 of UNTAET Regulation 2000/17 of 8 June 2000 and Sections 8.4 and 8.5 of UNTAET Regulation 2000/19 of 30 June 2000. See Section 42 of UNTAET Regulation 2000/10 of 6 March 2000. Para. 29 h) of the Report of the Secretary-General of 4 October 1999 notes that UNTAET will have the objective to "ensure the establishment and maintenance of the rule of law and to promote and protect human rights". See Doc. S/1999/1024, page 7.


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which paragraph 3 of Security Council Resolution 1272 refers.266 Furthermore, building upon the idea of the automatic succession into the human rights treaties, one may argue that the human rights guarantees enshrined in the treaties applicable and Kosovo and east Timor before the establishment of the United Nations administrations are building upon UNMIK and UNTAET, because they form an itegral part of the status of the territory and the acqttis of the population.267 However, as peace-keeping missions operating in a post-conflict environment, both United Nations administrations had to face the question, to what extent security concerns may take precedence over the strict observance of human rights standards. This issue has, in particular, been raised in the context of detentions carried out in Kosovo and east Timor. UNMIK's general legal position is reflected in a paper entitled "Security and the Rule of Law in Kosovo" of 12 January 2000.268 It describes the position of UNMIK as follows: "Human rights principles should not be viewed as operating to dogmatically bar action that must be taken to address urgent security issues. A number of rights, including the rights to privacy, freedom of expression, freedom of assembly and freedom of movement, are subject to limitations which are necessary in a democratic society in the interests of national security or public safety, for the maintenance of public order [and] for the prevention of crime. Within the framework of human rights, there is flexibility to take the necessary steps to promote public peace and order, even where such steps may constrain individual rights." It should also be noted that both the ECHR and the International Covenant on Civil and Political Rights (ICCPR) contain a provision on "public emergency". This permits states, which are in a declared state of public emergency, to take measures derogating from human rights standards. For instance, it may be noted that a declaration of public emergency was accepted by the European Court of Human Rights in the 266

267

268

Para. 3 of S/RES/1272 provides that "UNTAET will have the objectives and a structure along the lines set out in part IV of the report of the Secretary-General". See on this concept with respect on the territorial application of the International Covenant on Civil and Political Rights, General Comment 26 of the Human Rights Committee, Doc. HRI/GEN/l/Rev.5 of 26 April 2001. Cf. generally in this respect the article of T. Buergenthal in this Volume. See UNMIK, Security and the Rule of Law in Kosovo, document issued by the Special Representative of the Secretary-General on 12 January 2000.

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case of Northern Ireland, where low-intensity, irregular violence was established. It is clear, on its face, that Kosovo falls within this category of a public emergency given the security situation and the need for an international military force to maintain peace and order. Further consideration should, however, be given to how the principles of derogation may apply to the current situation in Kosovo".269 Following the legal view adopted in this report, UNMIK has adopted a number of Regulations, placing security interests over the rights of individuals. One of the first Regulations of UNMIK, namely Regulation 1999/2, provides for a temporary detention or restriction on the freedom of movement of individuals who may pose a "threat to public peace and order".270 Section 2 of the Regulation reads: "The relevant law enforcement authorities may temporarily detain a person, if this is necessary in the opinion of the law enforcement authorities and in the light of the prevailing circumstances on the scene, to remove a person from a location, or to prevent access by a person to a location in accordance with Section 1 of the present regulation." Accordingly, UNMIK has on several occasions carried out preventive detentions, arguing that the individual poses a "threat" to the safe and secure environment or to the public safety and order. This approach, however, is incompatible with the standards of the ECHR.271 Under article 5 para. 1 ECHR, a threat to the public order is not a sufficient ground to justify the detention of a person, unless there is a concrete suspicion that the person will commit an offence.272 A "preventive de-

269 270

271

272

See UNMIK Security and the Rule of Law, see above, page 5. According to Section 1.2 of the Regulation 1999/2 such a threat to public peace and order may be posed by any act that jeopardizes the rule of law, the human rights of individuals, public and private property and the unimpeded functioning of public institutions. See also Ombudsperson Institution, Special Report No. 3 on the Conformity of Deprivations of Liberty under "Executive Orders" with Recognised International Standards of 29 June 2001, para. 10. See article 5 para. 1 lit.(c) "No one shall be deprived of his liberty save in the following cases ... c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so".


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tendon" for general security purposes, on the contrary, does not meet the requirements of article 5 para. 1.273 Moreover, the United Nations Special Representative in Kosovo has issued a number of Executive Orders extending detention periods without providing the detainee or his or her legal counsel with information about the grounds for the continued detention, and without giving the detainee the opportunity to challenge the lawfulness of the detention. This practice is in accordance with UNMIK Regulation 1999/26 on the extension of pre-trial detention which fails to provide for a mechanism allowing the detainee to challenge the lawfulness of an order for continued detention. However, it is a clear breach of international human rights standards.274 Article 5 para. 3 of the ECHR and article 9 para. 3 of the ICCPR require that anyone who has been arrested or detained be brought promptly before a judge in order to determine the lawfulness of the arrest or the detention. In addition article 5 para. 4 of the ECHR and article 9 para. 4 of the ICCPR demand that all persons, who have been deprived of their liberty by arrest or by detention be entitled to take proceedings by which the lawfulness of their detention may be decided speedily by a court. National authorities are therefore under an obligation to provide a forum by which the lawfulness of a detention may be challenged during the entire period of pretrial detention. This includes, inter alia, the duty to secure a periodic review of the detention order within short intervals.275 Both the preventive detentions carried out by UNMIK and the absence of sufficient judicial control over deprivations of liberty have been criticized by the Ombudsperson Institution in its Special Report No. 3276 on the Conformity of Deprivations of Liberty under "Executive Orders'* with Recognised International Standards of 29 June 2001. 273

274

275

276

See most recently ECHR, Jecius v. Lithuania, Appl. No. 34578/97, 31 July 2000. See on the case law also W. Peukert, "Article 5", in: J.A. Frowein/ W. Peukert, Europaische Mensckenrecktskonvention, 1996,68 et seq., (111). Cf. OSCE, Report No. 6, Extension of Custody Time Limits and the Rights of Detainees: The Unlawfulness of Regulation 1999/26, 29 April 2000, available under http://www.osce.org/kosovo - See also Ombudsperson Institution, Special Report No. 3, paras 25 et seq. See ECHR, Bezicheri, Series A, No. 164, para. 24 et seq., 25 October 1989. The UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment also provide for a right to a review of continued detention by a court or other authority at reasonable intervals. See Principles 11 (3) and 39. Cf. Report, see note 271.

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The Ombudsperson found, in particular, that these practices do not conform with the above-mentioned provisions of the ECHR.277 UNMIK, on the contrary, denied a violation of internationally recognized standards, when it reacted to the findings of the report. Interestingly, UNMIK did not call into legal concern the legal reasoning under the European Convention itself. Instead, it invoked the derogation clause under the Convention and argued that Security Council Resolution 1244 had authorized it to deviate from the strict observance of the Convention. In a Press Briefing, held on 2 July 2001, the UNMIK Representative stated the following: "Our position is that the authority for law and order and public safety is vested in the SRSG acting on behalf of the SecretaryGeneral and the Security Council, according to Resolution 1244. Article 15 of the European Convention on Human Rights recognizes that there may be exceptions to the conventions principles in certain emergency situations. This is acceptable in European courts. The situation in Kosovo is analogous to emergency situations envisioned in the human rights conventions. We emphasize that UNMIK's mandate was adopted under Chapter VII, which means that the situation calls for extraordinary means and force can be used to carry out the mandate. Any deprivation of liberty by an Executive Order is temporary and extraordinary, and its objective is the effective and impartial administration of justice".278 This reasoning is hardly convincing. While the Security Council may exempt peace-keeping missions from the observance of certain human rights standards under a Chapter VII Resolution, in particular, if they are derogable in a state of emergency,279 such a derogation can only be assumed in exceptional circumstances, given both the proclaimed adherence of the United Nations to international human rights instruments and standards within the framework of international UN Peace operations280 and the general obligation to notify derogations from

277 278

279

280

See para. 29 of the Report, see note 271. See UNMIK Press Briefing of 2 July 2001, Statement on the Ombudsperson's report. See article 15 ECHR and article 4 ICCPR. The right to challenge the lawfulness of a detention before a court is a derogable right. See para. 6 of the recent report of the Panel on United Nations Peace Operations, which stressed ""the essential importance of the United Nations system adhering to and promoting international rights instruments and


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human rights law under the relevant international treaty law.281 One may even argue such an exemption needs to be declared expressly by the Council or its subsidiary bodies,282 if the United Nations acts as a surrogate government, assuming the classical powers of a state within a specific territory. In the case of Kosovo, however, a declaration indicating the scope of the derogation and the reasons for the specific measures has not been made by UNMIK or the Security Council itself.283 In particular, UNMIK has abstained from derogating certain human rights guarantees when defining the applicable law in Kosovo. Regulation 2000/59 declares the ECHR and the ICCPR applicable in their entirety.284 Furthermore, it can hardly be invoked that a state of "public emergency" in Kosovo would allow UNMIK to impose severe restrictions on the rights guaranteed in article 5 ECHR and article 9 ICCPR. Under article 15 para. 1 ECHR and article 4 para. 1 ICCPR, human rights obligations continue to apply in principle even in an active state of war. Derogations from these obligations must be temporary and "strictly required by the exigencies of the situation".285 It is highly questionable, whether both, the absence of adequate remedies to challenge the lawfulness of a detention, and the performance of preventive detentions may be justified on the basis of their strict necessity, once a functioning legal system has been established in the respective territory, which includes domestic courts and prosecutors to effectively combat crimes.286 It seems that UNTAET has paid greater respect to the strict observance of human rights standards in the area of detentions. The current regulatory framework of UNTAET is largely based on the ICCPR.

281 282

283

284 285

286

standards and international humanitarian law in all aspects of its peace and security activities." See article 15 para. 3 ECHR and article 4 para. 3 ICCPR. See also J. Cerone, "Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo", EJIL 12 (2001), 469 et seq. who argues that this duty would derive from "the general principle of interpretation that obligations should be construed, where possible, so as to avoid conflicting obligations". Cf. Cerone, 478 at note 50. See on the absence of a derogation of human rights law in Kosovo also Cerone, see note 281, under VI. See Sec. 1.3 of Regulation 2000/59. See also Ombudsperson Institution, Special Report No. 1, see note 199, paras 19-20. See also Ombudsperson Institution, Special Report No. 3, see note 271, paras 10,24 and 29.

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UNTAET Regulation 2000/30 on Transitional Rules of Criminal Procedure contains detailed regulations of the procedures to be followed at all stages of criminal proceedings. Pre-trial detention is allowed only for crimes carrying a sentence of over one year.287 Furthermore, Section 20.9 of Regulation 2000/30 provides that an Investigating Judge shall review the detention of a suspect every thirty days. In addition, Section 47 of the Regulation introduces a special habeas corpus procedure, allowing one to challenge unlawful arrest or detention. Even more critical288 is Section 20.12 of the Regulation which provides that: "On exceptional grounds, and taking into account the prevailing circumstances in East Timor, for particularly complex cases of crimes carrying out imprisonment of ten years or more under the law, a panel of the District Court may, at the request of the public prosecutor order the continued detention of a suspect, if the interests of justice so require, and as long as the length of pre-trial detention is reasonable in the circumstances, and having due regard to international standards of fair trial". The Regulation fails to adequately define what may be regarded as "exceptional grounds" or "interests of justice", justifying a pre-trial detention. Furthermore, it is questionable if the "prevailing circumstances in East Timor" provide a sufficient ground to extend the period of detention.289 Article 4 ICCPR allows the derogation of the rights to liberty and to a fair trial only in the case of a public emergency which "threatens the life of the nation and the existence of which is officially proclaimed." Much will therefore depend on the question to what extent "international standards of fair trial" are given full and not only "due" regard. Furthermore, some problems have emerged with respect to the lapse of time between the appointment of the first judges, prosecutors and defenders and the final creation of the District Court of Dili. The court was established three months after the first judges and prosecutors had been appointed by the SRSG.290 The judges and prosecutors, however, 287

288

289 290

See Section 12 a. 1 of UNTAET Regulation 2000/11, as amended by UNTAET Regulation 2000/14. See also Amnesty International, East Timor: Building a New Country Based on Human Rights 2000,4.12. See also Linton, see note 4,145 The District Court of Dili was established on 6 March 2000 by UNTAET Regulation 2000/11. The first judges, prosecutors and defenders were established on 7 January 2000. See Notification on the Appointment of


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were authorized to act from the moment of their appointment, without being affiliated to an existing court.291 Regulation 2000/14 solved this problem, by retroactively validating the arrests and detentions ordered before the creation of the District Court of Dili by Regulation 2000/11. Section 12.a.) 10 of Regulation 2000/14, amending Regulation 2000/14 provides: "Pursuant to Security Council resolutions 1264 (1999) and 1272 (1999) and taking into consideration the prevailing circumstances in East Timor, all warrants for detention issued by the Investigating Judge or Public Prosecutor prior to the coming into force of the present Regulation shall be deemed valid and in accordance with the present Regulation." Finally, a number of other difficulties have arisen in the period before the establishment of UNTAET. INTERFET, the UNTAET predecessor force deployed under Security Council 1264 was faced with a large number of crimes, including serious offences such as violent assault, rape and murder, without being vested with an adequate legal mechanism to deal with arrests and detentions. The Status of Forces Agreement with Indonesia authorized INTERFET to arrest and detain persons, but required that the detainees be handed over to the Indonesian police.292 This mechanism proved to be unsatisfactory, because the civilian legal and administrative order in East Timor had collapsed. Detainees were promptly released by the Indonesian police after their transfer of custody. INTERFET established therefore a temporary detention centre (the Detention Management Unit, in the following DMU) on 21 October 1999, which served as an interim legal mechanism to deal with persons suspected of the commission of serious criminal offences pending the re-establishment of a civil judiciary.293 Individuals taken in custody by INTERFET were held in the Detention Centre and granted an initial hearing within 24 hours. Furthermore, the detention order was to be reviewed within 96 hours by the Reviewing Authority of the DMU, which could extend the detention

291 292 293

Judges and Prosecutors of 7 January 2000, Official Gazette of East Timor, UNTAET/GAZ/2000/1, page 25. See also Linton, see note 4, 134. See Kelly/ McCormack/ Muggleton/ Oswald, see note 35,130. See Report of the Secretary-General of 4 October 1999, para. 13. For a full account, see Kelly/ McCormack/ Muggleton/ Oswald, see note 35, 131 et seq.

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indefinitely.294 The conduct of trials was reserved to UNTAET. A Detainee Ordinance declared Indonesian law as the criminal law applicable in East Timor, while suspending all provisions of Indonesian law that were incompatible with the DMU's own provisions on detention and arrest.295 In the absence of any other legal basis for the establishment of an interim arrest and detention mechanism, which would under normal circumstances fall within the exclusive competence of the local authorities, the creation of the DMU and the Detainee Ordinance were based on the framework of the Fourth Geneva Convention,296 which was designed to regulate the relationship between foreign military forces and a civilian population in cases in which the military forces assume comprehensive control over the foreign territory.297

VIII. The Prosecution of War Crimes and Other Serious Offences UNMIK and UNTAET have chosen similar approaches to prosecute war crimes and other serious offences committed in the administered territories. Both United Nations administrations have in principle charged domestic institutions with the adjudication and prosecution of serious crimes, while providing them with international staff. The creation of internationalized court chambers is fully in line with the developments in Cambodia298 and Sierra Leone,299 which have both vested

294 295

296

297

298

299

See also Strohmeyer, see note 3,51 note 22. For a discussion of the Ordinance, see Kelly/ McCormack/ Muggleton/ Oswald, see note 35,133 et seq. Cf. Geneva Convention (TV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949. For a discussion of its applicability, see Lin ton, see note 4, 131. See also B. Levrant, "Le droit international humanitaire au Timor oriental: entre theorie et pratique", Int'l Rev. of the Red Cross 83 (2001), 77 et seq., (80 et seq., 96 et seq.). See generally on application of the IV. Geneva Convention to United Nations operations, Kelly, see note 106,162 et seq. See Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes available under: http://www.cambodian-parlianient.org See Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, 4 October 2000, Doc. S/2000/915. See also M. P. Scharf, "The Special Court for Sierra Leone", ASIL Insights, October 2000;


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mixed national-international courts with the prosecution and trial of classical international crimes such as genocide, crimes against humanity and war crimes.

1. The Panels with Exclusive Jurisdiction over Serious Criminal Offences The Extraordinary Chambers in the Court of Cambodia or the Special Court for Sierra have obviously served as a model for the establishment of the Panels with exclusive jurisdiction over serious criminal offences in East Timor.300 The International Commission of Inquiry on East Timor had recommended the establishment of an international criminal tribunal to try the atrocities committed in East Timor.301 The SecretaryGeneral, however, took a different view, arguing that priority be given to the domestic courts, in order to strengthen UNTAET's own capacities.302 This approach was finally adopted. On 6 June 2000, UNTAET adopted Regulation 2000/15 creating the panels of judges with exclusive jurisdiction as partly internationalized institutions, acting under the authority of the District Court of Dili. The panels are composed of two international judges and one East Timorese judge.303 Furthermore, UNTAET Regulation 2000/16 vested the "Deputy General Prosecutor for Serious Crimes" with the exclusive prosecutorial authority to direct and supervise the investigation and prosecution of serious crimes.304 The jurisdiction of the special panels covers two main groups of serious criminal offences: first, a number of classical international crimes, namely genocide, crimes against humanity, war crimes and torture;305 second, murder and sexual offences, as defined in the applicable Indo-

300 301

302

303 304 305

M. Frulli, "The Special Court for Sierra Leone: Some Preliminary Comments", EJIL 11 (2000), 857 et seq. See also Linton, see note 4,146. See Report of the International Commission of Inquiry on East Timor to the Secretary-General, Doc. A/54/726, S/2000/59 (2000), at 153. See Letter of 31 January 2000 from the Secretary-General to the President of the General Assembly, the President of the Security Council and the Chairperson of the Commission on Human Rights, accompanying UN Doc. A/54/726, S/2000/59 (2000). See Section 22.1 of UNTAET Regulation 2000/15. See Section 14.4 of UNTAET Regulation 2000/16. See Sections 4 to 7 of UNTAET Regulation 2000/15.

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nesian law.306 When defining the crimes contained in the first group and the general principles of criminal law applicable to serious offences, UNTAET relied heavily on the provisions of the Rome Statute of the International Criminal Court. The rules and definitions laid down in UNTAET Regulation 2000/15 were almost verbatim modelled after the corresponding provisions of the Rome Statute.307 However, the scope of jurisdiction was extended.308 The panels exercise "universal jurisdiction" over genocide, war crimes, crimes against humanity and torture. The term "universal jurisdiction" was more closely defined in Section 2.2 of the Regulation so as to encompass - a. serious criminal offences "committed within the territory of East Timor" (territoriality principle), b. serious criminal offences "committed by an East Timorese citizen" (principle of active personality) and c. serious criminal offences committed against an East Timorese citizen (principle of passive personality). A different regime applies to murder and sexual offences,309 which are classical domestic offences. They are not covered by the "universal jurisdiction"- clause of UNTAET Regulation 2000/15. Instead, in these cases, the jurisdiction of the panels is exclusively limited to crimes committed in East Timor.310 Moreover, these charges may only be tried by the panels, if they have been committed in the immedi-

306 307 308

309

310

See Section 8 to 9 of UNTAET Regulation 2000/15. For a full analysis, see Linton, see note 4,150 et seq. See article 12 para. 2 of the Rome Statute for the International Criminal Court, which does not provide for "universal jurisdiction". See on the jurisdiction of the International Criminal Court also C. Stahn, "Zwischen Weltfrieden und materieller Gerechtigkeit: Die Gerichtsbarkeit des Standigen Internationalen Strafgerichtshofs, EuGRZ 25 (1998), 577 et seq., (586 et seq.). See generally on the Rome Statute, A. Zimmermann, "The Creation of a Permanent International Criminal Court", Max Planck UNYB 2 (1998), 169 et seq., (206 et seq.). See also the critique by Linton, see note 4, 169-170, pointing out that international law has become more progressive in this area than the Indonesian Criminal Code. See Section 2.4 of UNTAET Regulation 2000/15 referring to Section 3.1 of UNTAET Regulation 1999/1, which declares Indonesian criminal law applicable. Indonesian law provides that "if a person commits a criminal offence abroad which can be judged by the law of the Republic of Indonesia, the Jakarta Court of Justice shall be competent to judge the case." See Dili District Court, Special Panel for Serious Crimes, Case of The Prosecutor v. Lenardus Kasa, Judgment of 5 May 2001, Case No. 1 l/CG/2000.


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ate context of the vote on East Timorese independence, namely in the period between 1 January 1999 and 25 October 1999.311 The provisions contained in Regulation 2000/15 provide the special panels with the opportunity to try a great variety of crimes, ranging from large-scale crimes to less significant offences. However, cooperation with Indonesia proved to be a difficult issue. Many of the key suspects, including Indonesian governmental officials, military personnel or militia leaders have returned to Indonesia in the aftermath of the post-referendum conflict. UNTAET requested assistance from the Government of Indonesia in extraditing identified suspects at large in Indonesia. But the Indonesian Government refused to extradite suspects to East Timor or to allow UNTAET investigators to question suspects in Indonesia,312 despite the existence of a Memorandum of Understanding with UNTAET in which both parties agreed to provide each other with assistance in investigations and court proceedings.313 Instead, Indonesia established its own mechanism to investigate the serious human rights violations committed in East Timor. Following the pressure of the international community, pushing Indonesia to try those responsible for the violence in East Timor, Indonesia's parliament adopted a Law on Human Rights Courts to prosecute the human rights abuses related to the East Timorese referendum on independence.314 Fi311

312

313

314

See Section 10.2 of UNTAET Regulation 2000/11 and Section 2.3 of UNTAET Regulation 2000/15: "With regard to the serious criminal offences listed under Section 10.1 d) [murder] to e) [sexual offences] of UNTAET Regulation 2000/11 ... the panels established within the District Court of Dili shall have exclusive jurisdiction only insofar as the offence was committed in the period between 1 January, 1999 and 25 October 1999." See Amnesty International, East Timor, Justice Past, Present and Future, Report of 27 July 2001,9.3. See Memorandum of Understanding between the Republic of Indonesia and UNTAET Regarding Cooperation in Legal, Judicial and Human Rights Related Matters of 6 April 2000. See on the lack of implementation of Section 9, which allows the transfer of persons for purposes of prosecution, Progress Report of the Secretary-General on the United Nations Transitional Administration in East Timor of 24 July 2001, Doc. S/2001/719, para. 30. See also Report of the Secretary-General on the United Nations Transitional Administration in East Timor of 15 January 2001, Doc. S/2001/42, para. 25. See Republic of Indonesia, House of Representatives, Act No. 26/2000 on Human Rights Courts. See also the Amnesty International Documents, Indonesia, Comments on the Draft Law on Human Rights Tribunals, AI Index: ASA 21/25/00, June 2000 and Indonesia, Comments on the Law on

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nally, on 23 April 2001, President Wahid enacted Presidential Decree No. 53/2001 establishing an ad hoc human rights court at the Jakarta District Court with the authority to try cases of gross human rights violations committed after the 1999 ballot.315 It is therefore unlikely that military personnel and civilians residing in Indonesia will be tried by the East Timorese Special Panels with exclusive jurisdiction.

2. The Situation in Kosovo Although both UNTAET and UNMIK have opted for a model of domestic prosecution of war crimes and other related offences, the situation in Kosovo differs from that in East Timor in that it has been clear since September 1999 that the ICTY would exercise its jurisdiction with respect to crimes committed in the Kosovo crisis. Carla Del Pome, the Chief Prosecutor of the ICTY declared in a statement of 29 September 1999 that the ICTY would try "high level, civilian, police and military leaders, of whichever party to the conflict who may be held responsible for crimes committed during the armed conflict in Kosovo".316 Furthermore, the prosecutor announced that investigations would also be initiated against other individuals responsible for particularly serious crimes, adding however that the primary investigative and prosecutorial responsibility would lie with UNMIK. UNMIK had plans to establish an extraordinary domestic tribunal with jurisdiction over war crimes and other serious violations of international humanitarian law and serious ethnically motivated crimes (the "Kosovo War and Ethnic Crimes Court"). The Court should have enjoyed concurrent jurisdiction with domestic courts, while being composed of at least one international and two international judges.317 The

315

316

317

Human Rights Courts (Law No. 26/2000), AI Index ASA 21/005/2001, February 2001. See Decree of the President of the Republic on Indonesia No. 53/2001 concerning the Establishment of an ad hoc Human Rights Tribunal at the Central Jakarta District Court of 23 April 2001. See on the Decree also M. Othman, "Peacekeeping Operations in Asia, Justice and UNTAET", International Law Forum 3 (2001), 114 et seq., (120). See ICTY, Statement on the Investigation and Prosecution of Crimes Committed in Kosovo, The Hague, 29 September 1999, available under http://www.icty.org See OSCE, Justice System, see note 210, at 71-72.


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basic rationale underlying the creation of a special Kosovo War Crimes Court was to ensure an impartial and neutral conduct of politically sensitive trials outside the existing judicial institutions. However, due to budgetary restraints and delays in the establishment of the court, the project was finally dropped. Instead, efforts were made to provide international judges and prosecutors to the domestic courts.318 The general framework for the assignment of international judges and prosecutors to cases is laid down in Regulations 2000/64 and 2000/6, as amended by Regulation 2000/34. Sections 1.2 of Regulation 2000/6 provides that international judges shall have "the authority to select and take responsibility for new and pending criminal cases within the jurisdiction of the court" to which they are appointed. Similarly, Section 1.3 of the Regulation vests international prosecutors with the authority to conduct criminal investigations and to select and take responsibility for new and pending criminal investigations.319 Moreover, Section 1 of Regulation 2000/64 grants the competent prosecutor, the accused or the defence counsel the right to submit a petition to the UNMIK Department of Judicial Affairs for the assignment of international prosecutors and judges "where this is considered necessary to ensure the independence and impartiality of the judiciary or the proper administration of justice". This may, for example, be the case if the appointment of an international judge or prosecutor is likely to have an impact upon a trial which has an ethnically motivated background.320 In cases in which the Special Representative of the Secretary-General approves the petition, the Department of Judicial Affairs may decide to assign an international prosecutor or an international investigating judge to the case or establish a panel composed of three judges, including at least two international judges (the "Regulation 64 panel").321 However, a restriction is contained in Section 2.4 of Regulation 2000/64. Regulation 64 panels may not be convened, once a trial session 318

319

320

321

See OSCE, Justice System, see note 210, 72. See also OSCE, Kosovo, A Review of the Criminal Justice System, 1 September 2000 - 28 February 2001, Section 8. These powers remain unaffected by the adoption of Regulation 2000/64. See Section 3.2 of Regulation 2000/64. Unfortunately, UNMIK Regulation 2000/64 does not contain more specific criteria concerning the rejection or approval of an application filed under Section lof the Regulation. See generally on the problems arising in the context of Regulation 2000/64, OSCE, Review of the Criminal Justice System, see note 318, Section 8, sub. I. See Section 2.1 of Regulation 2000/64.

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or appeal session has already commenced. In these cases, defective proceedings may be remedied on appeal or by extraordinary legal remedies.322 The domestic courts have conducted quite a number of trials involving war and ethnically related crimes.323 The proceedings were, in most cases, related to charges of genocide, war crimes, murder and rape.324 The trials were held either before Regulation 64 panels or panels of judges involving at least one international judge.325 Regulation 2001/1 specified that no person may be tried in absentia for serious violations of international humanitarian law.326

IX. International Legal Personality The last issue which shall be addressed in this comparative overview of the practice of the United Nations Transitional Administrations in Kosovo and East Timor is the question of the international legal personality of the UN administered territories. It has been contended that Kosovo and East Timor have been transformed into internationalized territories by Security Council Resolutions 1244 and 1272 and the subsequent practice of the United Nations administrations. There is also authority to argue that the administered territories enjoy limited international legal personality, which is exercised by TJNTAET and UNMIK in their capacity as governmental authorities of the respective territories. In case of non-state entities, legal personality may, generally be founded upon functional criteria, such as the powers necessary to fulfill the mandate of the entity.327 The administration of internationalized 322 323

324

325

326 327

See Section 2.1 lit.(a) and (b) of Regulation 2000/64. For a full analysis, see OSCE, Justice System, see note 210, 70 and OSCE, Review of the Criminal Justice System, see note 318, Section 8, sub. II to IV and Section 9 ("genocide charges"). For a statistical survey, see OSCE, Justice System, see note 210, 74 and OSCE, Review of the Criminal Justice System, see note 318, Section 8, Annex I. See OSCE, Review of the Criminal Justice System, see note 318, Section 8, sub. II to IV and Section 9 ("genocide charges"). See Section 1 of UNMIK Regulation 2001/1. See with respect to international organizations, H. Mosler, "Subjects of International Law", in: R. Bernhardt (ed.), EPILIV (2000), 710 et seq.,(722).


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territories such as Kosovo and East Timor requires the establishment of external relations with subjects of international law, such as international organizations or neighbouring states. This necessity has, in particular, been recognized by Security Council Resolution 1272 which authorizes "UNTAET to take all necessary measures to fulfil its mandate".328 Resolution 1272 thereby refers to para. 35 of the SecretaryGeneral's Report on the Situation in East Timor of 4 October 1999,329 which makes specific mention of UNTAET's power to "conclude such international agreements with states and international organisations as may be necessary for the carrying out of the functions of UNTAET in East Timor." UNTAET has made use of its treaty-making power when concluding the Trust Fund for the East Timor Grant Agreement330 or negotiating the Exchange of Notes constituting an Agreement between the Government of Australia and the United Nations Transitional Administration in East Timor concerning the Continued Operation of the Timor Gap Treaty.331 Furthermore, Australian and the East Timorese Cabinet ministers initialled the Timor Sea Arrangement on 5 July 2001, which provides East Timor with 90 per cent of the oil and gas production in the area covered under the Timor Gap Treaty. The negotiations were jointly led by an international and an East Timorese Cabinet member. The Agreement will come into force as a treaty after its approval, signature and ratification by the elected Government of East Timor.332 At the same time, UNTAET has institutionalized its relationship with foreign states, by providing for the establishment of Representative Offices of foreign governments in East Timor. The functions of these offices are largely identical to those of a diplomatic mission under the Vienna Convention on Diplomatic Relations of 18 April 1961.333 UNTAET Regulation 2000/31 provides that the Representative Offices shall, inter alia, represent and conduct the relations of a foreign government with the Transitional Administration and protect the inter-

328 329

330 331

332

333

See para. 4 of Security Council Resolution 1272. See Report of the Secretary-General on the Situation in East Timor, 4 October 1999, para. 35, Doc. S/1999/1024. See on this issue Chopra, see note 4, 30. See note 67. See on this issue also G. Triggs, "Legal and Commercial Risks of Investment in the Timor Gap", Melbourne Journal of International Law 1 (2000), 99 et seq., (100 et seq.). See Report of the Secretary-General on the United Nations Transitional Administration in East Timor of 24 July 2001, para. 12. See Vienna Convention on Diplomatic Relations, UNTS Vol. 500 No.7310.

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ests of this government and its nationals in East Timor.334 Moreover, the Representative Office and its staff enjoy far-reaching immunities. Section 16 of Regulation 2000/31 grants members of the representative staff the immunities from jurisdiction and legal process granted to diplomats under article 31 of the Vienna Convention on Diplomatic Relations.335 Section 19 of the regulation adds that "the premises and assets of a Representative Office shall be immune from search, seizure or any other form of interference, whether by legislative, judicial or executive action.336 It is more difficult to establish that Kosovo enjoys limited international legal personality while being administered by the United Nations. Security Council Resolution 1244 does not contain a specific reference to the conduct of foreign relations by UNMIK. However, the capacity to entertain such relations must be regarded as an implicit power of the United Nations administration, required by its mandate. UNMIK has, in particular, interpreted its powers under Resolution 1244 so as to encompass treaty-making power. It has concluded international agreements with the territory's neighbouring states in the field of economic co-operation337 and agreements with other third parties on the repatriation of Kosovars,338 acting on behalf of United Nations administered Kosovo. Furthermore, a large number of states and international organisations have, in the meantime, opened liaison offices in Pristina. The legal status of these offices is largely identical to the status of the Representative Offices under UNTAET Regulation 2000/31.339 Finally, the Constitutional Framework has confirmed the external affairs powers of UNMIK by providing that the Special Representative remains exclusively responsible for "concluding agreements with states

334

335

336

337

338

339

See Section 3.1 of UNTAET Regulation 2000/31. See also article 3 of the Vienna Convention on Diplomatic Relations. The wording of Section 16 of UNTAET Regulation 2000/31 and article 31 of the Vienna Convention on Diplomatic Relations is almost identical. This provision is even more specific than article 22 of the Vienna Convention on Diplomatic Relations. See the cooperation agreement on cross-border economic issues with Macedonia of 7 March 2000, Doc. S/2000/538 of 6 June 2000, para. 20. See UNMIK Press Release of 7 April 2000 on the agreement with the Swiss government on the return of refugees. See Section 2.2 of UNMIK Regulation 2000/31 on the functions of the liasion offices and Sections 2.3 to 2.8 of the regulation on the immunities of these offices.


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and international organizations in all matters within the scope of UNSCR1244(1999)".340 Considering the practice of the United Nations in Kosovo and in East Timor, one may observe that partial legal personality is an important element of internationalization. Both the mandates of UNTAET and UNMIK have involved tasks requiring the enjoyment of limited international legal personality.341 Moreover, since both United Nations administrations have been established under a binding Chapter VII Resolution of the Security Council, one may even argue that unlike the case of international organizations, this international legal personality does not even require a separate (explicit or implicit) recognition by third states.342

X. Conclusions A first analysis of the mandate and the practice of the United Nations Transitional Administrations in Kosovo and East Timor confirms both the complexity and the challenges of the task, which the Security Council inflicted on the organization, when adopting Resolutions 1244 and 1272. UNMIK and UNTAET are landmark operations, marking the preliminary culmination of a number of state-building missions involving the world organization in the supervision and reconstruction of post-conflict-democracies.343 This far-reaching engagement of the United Nations in the process of state-building and democratization is the result of the changed security architecture in the post-cold war era, characterized by a growing use of the powers under Chapter VII of the

340 341 342

343

See Chapter 8, para. 8 (m) of the Constitutional Framework. Ruffert, see note 3, sub. IV. 2 speaks of "functional legal personality". See also Zimmermann/ Stahn, see note 3. See generally on the recognition of international organisations by third states I. Seidl-Hohenveldern/ G. Loibl, Das Recht der Internationalen Organisationen einschlieftlich der Supranationalen Gemeinschaften, 1996, 82 et seq. See also the Statement of the Secretary-General in the Report on the United Nations Transitional Administration in East Timor of 26 July 2000, Doc. S/2000/738, para. 64: "The last six months have also made clearer how daunting the task is that the United Nations has undertaken in East Timor. The Organization had never before attempted to build and manage a State. Nor did it have an opportunity to prepare for this assignment".

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Charter on the hand, and the invention of various new forms of enforcement measures under Article 41 of the Charter on the other. From a legal perspective, the establishment of UNMIK and UNTAET is remarkable in several ways. First of all, it is worth noting that the regulatory framework of the United Nations administrations in Kosovo and East Timor has not only laid the foundations for the creation of democratic political institutions and the restoration of justice in the administered territories, but also brought about a provisional internationalization of their legal and political status. This approach sheds a new light on the concept of internationalization,344 which has become a familiar notion in the 19th and 20th century. Originally, internationalization was applied to territorial entities with special strategic importance, such as harbour cities or outlets to the sea, which were — mostly in the aftermath of a conflict — exempted from the authority of the states to which they previously belonged, while being placed under the administration of a group of states or an international organization.345 In most cases, such as the Free Territory of Danzig, the administration of the Saar Territory or the proposed United Nations oversight of Trieste, the objective of the internationalization was to create independent political entities, in order to balance the conflicting interests of competing states.346 The legal status of the territories was established on the basis of treaties between the powers concerned. Later, the concept of internationalization has, inter alia, been extended to common spaces outside the national jurisdiction, such as Antarctica, the High Seas, the Deep Sea-Bed and outer space.347 In this context, the development of international regimes was largely motivated by the goal of utilizing and distributing natural resources of areas beyond national jurisdiction. At the same time, elements of internationalization were introduced, in order to meet the needs and interests of the international community as whole.348 The establishment of

344

345 346

347 348

See generally on the concept of internationalization, R. Wolfram, Die Internatwnalisierung staatsfreier Raume, 1984,10 et seq.; R. Beck, Die Internationalisierung von Territorieny 1962, 60 et seq. See Ydit, see note 8,11 et seq. For a detailed analysis, of. Beck, see note 344, 17 et seq., 30 et seq., 41 et seq. and Ydit, see note 8,44 et seq., 185 et seq., 231 et seq. For a full account, see Wolfrum, see note 344,30 et seq. This approach is most clearly reflected in the common heritage principle governing the Sea-Bed and its resources. See article 136 of the United Na-


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the United Nations administrations in Kosovo and East Timor may be conceived as a new variation of the concept of internationalization. The technique was slightly modified. In the cases of Kosovo and East Timor, internationalization was brought about by a Chapter VII Resolution of the Security Council rather than by way of an international agreement. Furthermore, the objective of internationalization has shifted. Within the framework of Chapter VII peace-building, internationalization is not primarily designed to preserve state guidedinterests, such as a right balance of power between nations or the use and distribution of natural resources, but rather used as an instrument to serve the interests and needs of the population of the territory, namely reconstruction and the realization of human rights. At the same time, following the earlier examples of administration of territories by the League of Nations or the creation of international regimes for common spaces, internationalization is carried out in the name of the international community as a whole. Several basic features characterize what may be referred to as the "internationalization of territories under Chapter VII of the Charter". First, the take-over of exclusive administrative authority by the United Nations over the territory, involving comprehensive regulatory powers and the provisional disjunction of the territory of its former administering power;349 second, the special purpose of the international authority, which is to serve the interests and benefits of the local population;350 third, the juxtaposition of different legal orders, namely the domestic legal order and the legal order of the United Nations, bringing about changes in the applicable law and imposing obligations on both the domestic and the international actors;351 fourth, the internationalization of the institutional system of the territory, consisting in the creation of international or mixed national-international governing bodies and courts at the central and the local level352 and fifth, the grant of limited international personality to the territories, allowing the international authorities to enter into relations with international organizations and states for the purpose of the administration.353

349 350 351 352 353

tions Convention on the Law of the Sea of 10 December 1982. For a discussion, cf. Wolfram, see note 344, 389 et seq. See on this aspect under II. See on this aspect under V. 1. See under V. 2 and VI. 2. See under VI. 1, VII. and VIII. See under IX.

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The second remarkable aspect of the exercise of governmental powers by the United Nations in the cases of Kosovo and East Timor is that it draws on the tradition of the administration of territories practised under the Mandates System of the League of Nations or the United Nations Trusteeship System. Conceptually the assumption of exclusive administering authority by the United Nations under Chapter VII may be regarded as a modern form of trusteeship.354 Given the experiences made in Kosovo and East Timor, the concept of "Chapter VII based trusteeship administration"355 may serve as a useful model to deal with claims to external or internal self-determination or issues of protection of minorities. Cases like Bosnia and Herzegovina, Kosovo and East Timor provide evidence that under some circumstances, only a temporary internationalization of a territory may re-establish the environment in which a comprehensive peace settlement may emerge. However, taking into account the current practice, some shortcomings need to be overcome. While UNMIK and UNTAET deserve great respect for their diligent and constructive activism in law-making and institution-building in a large number of areas, they are to be blamed for a lack of accountability and power-sharing.356 The exercise of public authority cannot be disconnected from the take-over of corresponding responsibilities. Every modern system of governance is built upon lawmaking, administration and adjudication. If international institutions assume functions and powers which are usually those of a state, they must, in principle, be subject to similar checks and balances as a state. UNMIK and UNTAET have not fully complied with this principle. They have adopted a number of measures of a constitutional dimension without however providing for adequate mechanisms of control concerning the legality of their actions. Furthermore, they have been reluctant to grant domestic actors a substantial role in the process of decision-making. Admittedly, a full concentration of powers within the hands of the international administering authority may be acceptable in the first months after the take-over of the mandate or in a state of emergency; yet, a growing stabilization of law and order in the territory and progress in the development of national governmental institutions must go hand in hand with greater direct accountability towards these insti354 355 356

See under V. For a conceptualization, see Bothe/ Marauhn, see note 3, sub. II. See in this sense Chopra, see note 4, 29; S. Chesterman, East Timor under Transition: From Conflict Prevention to State-Building, 2001, 21, available under http://www.ipacademy.org


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tutions and the individuals affected by the acts of the international administration.


Keeping Track of UN Peace-keeping — Suez, Srebrenica, Rwanda and the Brahimi Report Manuel Frohlich' I. II.

Introduction The Evolution of Classical Peace-keeping: The Case of the Suez Crisis 1. Background of the Crisis 2. Diplomatic Moves out of the Crisis 3. Peace-keeping Principles and Pragmatism 4. Keeping the Force on the Rails with Member States 5. Principled Improvisation sets a Precedent III. The Challenges of "Classical Peace-keeping" 1. Defining Consent 2. Distinguishing Impartiality and Neutrality 3. Balancing Coercion and Persuasion IV. Responding to Challenges: Improving Capacities, Resources and Commitment 1. Proposed Changes at the Level of the Organization a. Improving Command, Control and Communication b. Reform of Peace-keeping Infrastructure 2. Proposed Changes at the Level of Member States V. Conclusion: Building on Experience

*

The author wishes to dedicate this article to the memory of Franz Bar (1915-2001) who, despite the hardships the twentieth century had in store for him, never lost his confidence. 185

J.A. Frowein and R. Wolfram (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 185-248. © 2001 Kluwer Law International Printed in the Netherlands.

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I. Introduction Writing to his wife in August 1960, the UN Under-Secretary-General, Ralph Bunche chose a fitting image to define peace-keeping: "It's like trying to give first aid to a wounded rattlesnake."1 From the early developments of the concept in the fifties and sixties, the award of the Nobel Peace Prize for the so called Blue Helmets in 1988 up until the contrast both of high hopes and tragic failure in the 1990s, the United Nations has encountered and tamed a variety of "snakes" while at the same time it was "bitten" several times and constantly tried to adapt its "aid" to the specific wounds and venoms of different conflict situations. Few treatments, however, turned out to be severely dangerous to the very concept of peace-keeping itself and the organization as a whole. In recent years three cases in particular had a possible lifethreatening impact on the world organization: Somalia, Bosnia and Rwanda.2 These names not only provide associations with failures by the international community to cope with violent conflicts, but also epitomize new patterns of conflict in the post-Cold War era: failed states, ethnic cleansing and genocide seemed to prove themselves incompatible with United Nations peace-keeping principles and practice. Faced with the breakdown of the conceptual framework of peacekeeping and the obvious shortcomings of its procedure, a "doctrinal void"3 emerged between rather frequent pleas to engage in heavy fighting or even war on the one side and warnings to steer clear of the pitfalls of any peace-enforcement. Kofi Annan already in his position as Under-Secretary-General of the Department of Peace-keeping Operations (DPKO) summed up: "At no time since its inception has the nature of the concept of peace-keeping been as open to redefinition as it is at the present juncture."4 In three remarkable reports, on its action, failures and potential, the United Nations, under the stewardship of the current Secretary1 2

3

4

B. Urquhart, Ralph Bunche. An American Odyssey, 1993,322. For an overview of developments and events in this period see e.g. W. Shawcross, Deliver us from evil Peacekeepers, Warlords and a World of Endless Conflict, 2000 as well as the account by the UN Secretary-General Boutros Boutros-Ghali, Unvanquished. A U.S. - U.N. Saga, 1999. J.G. Ruggie, "Wandering in the Void. Charting the U.N.'s New Strategic Role", Foreign Aff. 72 (1993), 26 et seq., (29). Kofi Annan, "UN peace-keeping operations and cooperation with NATO", NATO Review October 1993,3.

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General Kofi Annan, tries to find orientation in the ongoing quest for peace. The first report in this context was the Secretary-General's report on the Fall of Srebrenica, issued 15 November 1999,5 followed by the Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda6 published a month later. Both reports were "brutally honest accounts"7 of the responsibilities that the United Nations shared in the developments of these tragedies: in Srebrenica Bosnian Serbs deported about twenty thousand women and children and killed thousands in the middle of a UN declared "safe Report of the Secretary-General Doc. A/54/549 of 15 November 1999 (to be cited as SR para.). For additional accounts of the Srebrenica tragedy see J.W. Honig/ N. Both, Srebrenica. Record of a War crime, 1996; J. Gow, Triumph of the lack of will International Diplomacy and the Yugoslav War, 1997; WJ. Durch/ J. A. Schear, "Faultlines: UN operations in the former Yugoslavia", in: WJ. Durch (ed.), UN Peace-keeping, American politics and the uncivil wars of the 1990s, 1997, 193 et seq.; W. Biermann/ M. Vadset (eds), UN Peace-keeping in Trouble: Lessons learned from the Former Yugoslavia. Peacekeepers' Views on the Limits and Possibilities of the United Nations in a Civil War-like Conflict, 1998. For personal accounts see e.g. M. Rose, Fighting for Peace. Lessons from Bosnia, 1998 and R. Holbrooke, To end a war, 1998. There have been several national debates and parliamentary hearings on the subject. The Dutch Ministry of Defence asked the Netherlands Institute for War Documentation to prepare a report on the Dutch role. Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, Doc. S/1999/1257 of 15 December 1999 (to be cited as RR page). Members of the Inquiry were Ingvar Carlsson (Sweden), Han Sung-Joo (Korea), Rufus M. Kupolati (Nigeria). There has also been an investigation by the Organization of African Unity: International Panel of eminent personalities to investigate the 1994 genocide in Rwanda and the surrounding events (http://www.oau.org). For an overview of the UN operation see also Department of Public Information (ed.), The United Nations and Rwanda 1993-1996, 1996; L. Melvern, "The Security Council: behind the scenes",J. Int'lAff. 77 (2001), 101 et seq. and J. M. Vaccaro, "The Politics of Genocide: peace-keeping and Disaster Relief in Rwanda", in: Durch, see note 5, 367 et seq. A detailed account can be found in L. Melvern, A people betrayed: the role of the West in Rwanda's genocide, 2000. As in the case of Srebrenica there have been national investigations, most notably in Belgium. See K. van Brabant, "Security and Protection in Peace-keeping: A Critical Reading of the Belgian Inquiry into Events in Rwanda in 1994", International Peace-keeping 6 (1999), 143 et seq. B. Urquhart, "In the name of humanity", in: The New York Review of Books of 27 April 2000.

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area". The Red Cross speaks of over 7000 men who are unaccounted for. In Rwanda the Hutu population slaughtered approximately 800.000 Tutsi within days and with virtually no hindrance from the international community. While stressing the UN failure the reports also point, with utmost clarity, to the responsibility of Member States acting (or rather not acting) through the organization. Annan, who does not shy away from blaming himself and the DPKO in the SR expresses the intention of this effort: "The fall of Srebrenica is replete with lessons for this Organization and its Member States — lessons that must be learned if we are to expect the peoples of the world to place their faith in the United Nations."8 Seeing the report as a starting point not only for further analysis and discussion but also concrete reform proposals he adds: "To ensure that we have fully learned the lessons of the tragic history detailed in this report, I wish to encourage Member States to engage in a process of reflection and analysis, focused on the key challenges the narrative uncovers. The aim of this process would be to clarify and to improve the capacity of the United Nations to respond to various forms of conflict. I have in mind addressing such issues as the gulf between mandate and means; the inadequacy of symbolic deterrence in the face of a systematic campaign of violence; the pervasive ambivalence within the United Nations regarding the role of force in the pursuit of peace; an institutional ideology of impartiality even when confronted with attempted genocide; and a range of doctrinal and institutional issues that go to the heart of the United Nations ability to keep the peace and help protect civilian populations from armed conflict."9 This process has in a way manifested itself most prominently in the Report of the Panel on United Nations Peace Operations which was published on 21 August 2000.10 The so-called Brahimi Report partly 8 9 10

SR para. 498. SR para. 505. Report of the Panel on United Nations Peace Operations, Doc. A/55/305 S/2000/809 (to be cited as BR para.). Members of the Panel were J. Brian Atwood (United States); Lakhdar Brahimi (Algeria); Colin Granderson (Trinidad and Tobago); Dame Ann Hercus (New Zealand); Richard Monk (United Kingdom); Klaus Naumann (Germany), Hisako Shimura (Japan); Vladimir Shustoiv (Russian Federation); Philip Sibanda (Zimbabwe); Cornelio Sommaruga (Switzerland). Cf. also S.R. Ratner, The new UN peace-keeping. Building Peace in Lands of Conflict after the Cold War, 1995, 210 et seq. whose recommendations surprisingly often coincide with or parallel the ones that the Brahimi Report puts forward. For a useful sur-


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adopts the conclusions of Srebrenica and Rwanda but clearly goes beyond them in an effort to provide a full-scale evaluation of existing UN capacities, impediments and procedures along with recommendations for substantial reform in this area. In his accompanying letter to the report, Kofi Annan remarks: "The Panel's analysis is frank yet fair; its recommendations are far-reaching yet sensible and practical. The expeditious implementation of the Panel's recommendations, in my view, is essential to make the United Nations truly credible as a force for peace."11 But enthusiasm for constructive measures to transform the peace-keeping capacity in order to suit the needs of new conflict patterns is not generally shared. For Michael Ignatieff the conclusions from the cases of Bosnia or Rwanda are bitter but blunt: "It's time to bury peace-keeping before it buries the U.N."12 And many commentators link the failures and problems of UN peace-keeping to an overburdening of the organization with what has been labelled second-generation peace-keeping.13 In fact, this muchquoted formula of second-generation peace-keeping does not always adequately describe the multitude of and variety of factors making up

11 12

13

vey of principal aspects of the report see W. Kuhne, "Zukunft der UNFriedenseinsatze. Lehren aus dem Brahimi-Report", in: Blatter fur deutsche und Internationale Politik 11/2000,1355 et seq. Doc. S/2000/809 of 21 August 2000. M. Ignatieff, "A bungling U.N. undermines itself", The New York Times of 15 May 2000. Cf. J. Mackinlay/ J. Chopra, "Second Generation Multinational Operations", The Washington Quarterly 15 (1992), 113 et seq., the detailed legal analysis by F.E. Hufnagel, UN-Friedensoperationen der zweiten Generation. Vom Puffer zur Neuen Treuband, 1996; S. Gohlert, Der gemeinsame zu verteidigende Standard. Der Menschenrechtliche Anspruch in UNMissionen der 90er Jahre, unpublished manuscript - Jena; M. Hirsh, "Calling all Regio-Cops. Peace-keeping's Hybrid Future", Foreign Aff. 79 (2000), 2 et seq., (6) argues for the UN to focus on authorizing local/regional actors. M.N. Barnett, "The United Nations and Global Security: the Norm is Mightier than the Sword", Ethics and International Affairs 9 (1995), 37 et seq., (38), sees the UN role more as "builder rather than enforcer of law". Cf. also I.L. Claude Jr., "Collective Legitimization as a Political Function of the United Nations", in: L.M. Goodrich/ D.A Kay (eds), International Organization. Politics and Process, 1973, 209 et seq.; M.W. Doyle, "Conclusion: International organizations, peace, and security", in: M. Allagoppa/ T. Inoguchi (eds), International Security Management and the United Nations, 1999,445 et seq.

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an individual mission.14 But it has also supported the thesis of a "return to basics" which during the Yugoslav War found a somewhat cynical echo in General Mladic insisting that UNROFOR should return to "United Nations principles for the creation of peace".15 The plea for a return to principles thus makes up for a political argument and in this respect, apart from the current reports and discussions, it should be useful to have a closer look at those very "basics" and origins of peacekeeping.16 14

15 16

A. James, "Is there a second generation peace-keeping?", International Peace-keeping 1 (1994), 110 et seq. criticizes the term. The debate cannot be conducted in detail here. A very useful typology is offered by J.T. Wentges, "Force, Function and Phase: Three Dimensions of UN peace-keeping", International Peace-keeping 5 (1998), 58 et seq., who comprises three types of peace-keeping each further subdivided into three criteria: classical (consensual, uni-functional, static), wider (consensual, multi-functional, dynamic), assertive (enforcing, uni-functional, quasi-static). By this distinction, the sometimes disturbing simultaneity of success and failure of socalled "second-generation peace-keeping" can be more easily explained: "It also should be noted that by this measure UNPROFOR, UNOSOM and UNAMIR would not be classified as second generation since they exhibited merely the more limited pre-ceasefire conflict allevation, with little attention to prevention, reduction or settlement." (67). SR para. 194. Among the huge wealth of literature on the subject cf. e.g. Department of Public Information (ed.), The Blue Helmets. A Review of United Nations Peace-keeping, 1996; R. Higgins, United Nations Peace-keeping 1946-1967. Documents and Commentary, 1969; WJ. Durch (ed.), The evolution of UN peace-keeping. Case studies and comparative analysis, 1993; J.J. Hoist, "Enhancing Peace-keeping operations", Survival 32 (1990), 264 et seq.; W. Kuhne (ed.), Blauhelme in einer turbulenten Welt, 1993; A. Roberts, "The Crisis in UN Peace-keeping", Survival 36 (1994), 93 et seq.; C. Dobbie, "A Concept for Post-Cold War Peace-keeping", Survival 36 (1994), 121 et seq.; C. Tomuschat, "Ein neues Modell der Friedenssicherung tut Not. Blauhelmeinsatze der zweiten Generation", EA 49 (1994), 677 et seq.; M. Bothe, "Peacekeeping and the Use of Force-Back to the Charter or Political Accident", International Peace-keeping 1 (1994), 2 et seq.; J. Grinberg, "Can UN Peacekeepers do the Job?", in: D. Bourantonis/ J. Winer (eds), The United Nations in the New World Order. The World Organization at Fifty, 1995,187 et seq.; D. Warner (ed.), New Dimensions of Peace-keeping, 1995; A. Roberts, "From San Fransisco to Sarajevo: the UN and the Use of Force", Survival 37 (1995), 7 et seq.; B. Benton (ed.), Soldiers for Peace. Fifty Years of United Nations Peace-keeping, 1996, 209 et seq.; M. Pugh (ed.), The UN, Peace and Force, 1997, 82 et seq.; D. Bratt, "Explaining


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Peace-keeping, however, is not a static concept to be neatly defined in one sentence. It rather represents a delicate connection of various principles and prerequisites whose fragile balance does not allow much generalization. Against this background, the following sections will try to keep track of peace-keeping amidst continuing transformations and recent challenges. This is done by pursuing two objectives: first, to reconstruct the "classical" concept of peace-keeping with the aim of generating analytical tools that help to structure the diverse material from the three reports. This is primarily done by a detailed reconstruction of the "first"17 UN peace-keeping mission, the United Nations Emergency Force (UNEF I) deployed in the context of the Suez-crisis in 1956. Second, to bring the separately issued reports into perspective and reflect upon the lessons they provide for further UN efforts by measuring them against the original evolvement and intention of "classical" peace-keeping.18 The method does not imply a logic of proposition (establishment of UNEF I), antithesis (failures of UNPROFOR and UNAMIR) and synthesis (BR). While some of the arguments made and developments observed would fit into such a pattern, it will eventually be seen that the original concept of peace-keeping in some cases simply

17

18

Peace-keeping Performace: the UN in internal conflicts", International Peace-keeping 4 (1997), 45 et seq.; O. A. Otunnu/ M. W. Doyle (eds), Peacemaking and Peace-keeping for the New Century, 1998; W. Kuhne, "Peace Support Operations: how to make them succeed", Internationale Politik und Gesellschaft 4 (1999), 358 et seq.; D. Bratt, "Peace over Justice: developing a Framework for UN Peace-keeping Operations in Internal Conflicts", Global Governance 5 (1999), 63 et seq.; R. Khan, "United Nations Peace-keeping in Internal Conflicts", Max Planck UNYB 4 (2000), 53 et seq.; S. Ryan, "United Nations Peace-keeping: a Matter of Principles?", T. Woodhouse/ O. Ramsbotham (eds), Peacekeeping and Conflict Resolution, 2000,27 et seq. See also the inside account by M. Eisele, Die Vereinten Nationen und das internationale Konfliktmanagement. Ein Insider-Bericht, 2000. There are a lot of "forerunners" and peace-keeping efforts, most notably UNTSO which was established in 1948. Its composition of a relatively small number of unarmed observers as well as its evolution out of the UN mediator mission and the eventual truce mark peculiarities which seem to indicate a preference in identifying UNEF as the first major "classical" mission, although - as will be shown - UNEF also has its very own characteristics. Cf. also T.F. Arnold/ H.R. Ruland, "The 'Prehistory' of Peace-keeping", in: Benton, see note 16, 11 et seq. as well as M. Ghali, "United Nations Truce Supervision Organization", in: Durch, see note 16, 84 et seq.

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shows itself outdated whereas in other cases it calls for transformation and sometimes even offers a remarkable potential for orientation. Need for orientation in this field is of paramount importance for the United Nations, as a quote by former UN Ambassador Richard Holbrooke demonstrates: "(T)he UN will ultimately be judged by its peacekeeping scorecard more than anything else."19 In the following sections analysis will accordingly reconstruct the evolvement of peace-keeping principles and prerequisites. This is followed by an analysis of the changes with regard to the principles of consent, impartiality and the use of force as described in the reports. Based on these observations, the need and recommendations to respond to new challenges will be outlined, referring both to UN infrastructure and Member States. The conclusion then summarizes the results with an emphasis on combining the peace-keeping experience old and new.

II. The Evolution of Classical Peace-keeping: The Case of the Suez Crisis The UN Charter as such does not provide for any explicit legal basis for what later came to be known as "Blue Helmets":20 "Peace-keeping began as an unplanned response to a particular set of problems at a particular time."21 The first mission in a classical sense falls into the tenure of the second UN Secretary-General, Dag Hammarskjold.22 It directly stems from Hammarskjold's broader notion of a "UN Presence" and was modelled according to the political and military aspects of the Suez

19

20

21 22

R. Holbrooke, "Statement in the Fifth Committee of the General Assembly on United Nations Peace-keeping" of 16 May 2000 (http://www. un.int/usa). See also N.D. White, "The UN Charter and Peace-keeping Forces: Constitutional Issues", in: Pugh, see note 16,43 et seq. Ryan, see note 16,27. For an overview on the background and development of the concept see among others: L. Gordenker, The UN Secretary-General and the Maintenance of Peace, 1967, 235 et seq.; M.C. Smouts, Le Secretaire General des Nations Unies. Son role dans la solution des conflicts internationaux, 1971, 72 et seq.; B. Urquhart, "United Nations Peace Forces and the Changing United Nations: An Institutional Perspective", in: Goodrich/ Kay, see note 13, 223 et seq. as well as the M. Goulding, "The evolution of United Nations peace-keeping", International Affairs 69 (1993), 451 et seq.


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crisis in 1956.23 Its specific combination of unsolved regional conflict patterns, economic interests and questions over prestige and influence in world politics in times of bi-polarity formed the background to a kind of prototype for further endeavours by the United Nations in serving its task of maintaining international peace and security in this region.24 In order to reconstruct the conceptual framework from the origins of the very notion of "peace-keeping" and its practical application in the Suez crisis, it is necessary to try not to read the established practices and common assumptions of peace-keeping into the historical situation, but rather to remain sensitive to the peculiarities of events and developments. This is best achieved by simply trying to "tell the story" of UNEF I based on published sources as well as material from UN archives.

1. Background of the Crisis On 26 July 1956 Gamal Abdel Nasser nationalized the Suez Canal area. He understood this unilateral action as an answer to several frustrations he had experienced with western powers. Just recently the United States had withdrawn large financial contributions for the Aswan High Dam project. The nationalization for its part intensified feelings in western capitals that Nasser was a reckless, ego-driven dictator who in an unpredictable way sought to realize his personal ambition. Most directly affected were France and the United Kingdom which both had strategic commitments and economic interests in the region. They soon contemplated military options to reverse Nasser's move. France, moreover, contacted Israel and initiated a massive delivery of weapons. 23

24

The considerations in this chapter draw from parts of the author's forthcoming book on Dag Hammarskjold und die Vereinten Nationen, 2001. For further background cf. H. Thomas, The Suez Affair, 1967; K. Kyle, Suez, 1991 as well as A. Eden, Memoiren 1945-1957, 1961; B. Urquhart, Hammarskjold, 1994, 159 et seq. and B. Urquhart, A Life in Peace and War, 1987, 131 et seq. Further information along with selected documents can be found in A. Cordier/ W. Foote (eds), Public Papers of the Secretaries-General of the Unted Nations. Volume III: Dag Hammarskjold 19561957,1973,304 et seq. (to be cited as CF III). Cf. further Ghali, see note 18, 104 et seq. as well as A.L. Schild et al., "Conflicts, Middle East", in: R. Wolfrum (ed.), United Nations: Law, Policies, Practice, Volume 1,1995,286 et seq.

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London was only later on informed of this cooperation which then amounted to something like an unofficial alliance.25 All this evolved against the background of simultaneous negotiations at United Nations headquarters where Hammarskjold was conducting a series of talks with the foreign ministers of the United Kingdom, France and Egypt. It came as a surprise when out of these private talks in the Secretary-General's office a list of six principles emerged that could in the future organize and guarantee the rights of access and use of the Suez Canal. These principles were officially endorsed by the Security Council on 13 October.26 But on the very next day France directly approached Prime Minister Eden with the idea of a joint military plan named "Operation Musketeer".27 This plan built upon an attack by Israel on Egypt across the Sinai peninsula. With the Israeli troops pushing forward deep into Egyptian territory, France and the United Kingdom would enter the scene by occupying the Canal zone in order to separate the combatants and secure safe passage through the Canal. As a possible consequence of this move the unofficial alliance could also imagine the eventual fall of Nasser's regime. Eden accepted the plan and instantly drew back his obviously surprised foreign minister from the New York talks. The Israeli attack came on 29 October and was soon followed by the British-French ultimatum to both parties of the conflict to end hostilities within twelve hours or to face intervention by them. News of these developments burst into a session of the Security Council on 30 October. Hammarskjold was profoundly shocked by the turn of events and felt himself cheated by those very countries which up until then also had officially cooperated with him in the search for a solution along the six principles. On the afternoon of 31 October he rose to speak in the Security Council in an effort to outline his position in the present crisis: "The principles of the Charter are, by far, greater than the Organization in which they are embodied, and the aims which they are to safeguard are holier than the policies of any single nation or people. As a servant of the Organization, the Secretary-General has the duty to maintain his usefulness by avoiding public stands on conflicts between Member Nations unless and until such an action might help to resolve the conflict. However, the discretion and impartiality thus imposed on the Secretary-General by the character of his immediate task, may not degener25 26 27

On the following paragraphs cf. CF III, see above, 8 et seq. See the texts in CF III, see note 24,292 et seq. Cf. Urquhart, Hammarskjold, see note 24,159.


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ate into a policy of expediency. He must also be a servant of the principles of the Charter, and its aims must ultimately determine what for him is right and wrong."28 Just at the moment when the framework of the United Nations was brutally cast aside, Hammarskjold re-established a role for the world organization by a statement of principles, to which — through the Charter — Member States had committed themselves. Following the "paradox of an attacker yielding power to the victim"29 and implicitly hinting at possible resignation (an option he had definitely excluded in talks with his aides before the statement)30 he transformed the crisis into a vote of confidence by the Security Council. His risky course of action proved successful: the representatives in the Security Council unanimously (including the United Kingdom and France) expressed their appreciation of the work of Hammarskjold — a position he had attained with diplomatic successes in the past years of his tenure.31

2. Diplomatic Moves out of the Crisis Notwithstanding their pledge to support the Secretary-General, the two powers involved in Suez blocked any step towards a United Nations involvement by threat of their veto. In these circumstances, the procedure according to the "Uniting for Peace" Resolution32 allowed a way out of the political deadlock in the Security Council by transferring the case to the General Assembly which convened on 1 November for an emergency special session. But in the General Assembly the situation remained as difficult and complicated as it had been in the Security Council: the United States in particular disapproved the action of its allies while at the same time it was searching for a face-saving way of 28 29

30

31 32

CF III, see note 24, 309. Cf. the text of an interview with S. Ahmann, "Impressions of Dag Hammarskjold", Oral History Research Office, Columbia University 1963, 9, to which Hammarskjold on the day before his speech said that this option would not come into question for him. M. J. David, "The Papacy and the Secretary-Generalship: A Study of the Role of the exceptionally-situated individual actor in the international system", Co-existence 7 (1970), 172 et seq. Most notably with his Peking mission in 1955. See Frohlich, see note 23. B. Nolte, "Uniting for Peace", in: Wolfram, see note 24, Volume 2, 1341 et seq.; J. Delbruck, Die Entwicklung des Verhaltnisses von Sicherheitsrat und Vollversammlung der Vereinten Nationen, 1964, 87 et seq.

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ending the crisis. In this context, more and more support built up around the proposal by Canadian Foreign Minister Lester Pearson, who took up an idea that he already had proposed after the Korean War: an international force with a mandate to keep peace in a conflict situation.33 Hammarskjold at the beginning turned out to be highly skeptical of this proposal. Pearson not only tried to convince the Secretary-General but also had frequent contacts with the United States. This led to a concerted move in the General Assembly, when Pearson gave a speech demanding the establishment of a "truly international peace and police force"34 and was asked to draft a concrete proposal for the idea.35 In the meantime, even the United Kingdom sent positive signals. Prime Minister Eden, thinking aloud about the possibility of an international force taking over from the British and French, stated: "If the United Nations were then willing to take over the physical task of maintaining peace in that area, no one would be better pleased than we."36 But the new force was far from being realized yet. Debates continued and Hammarskjold in particular showed reluctance to support the Pearson idea.37 Many questions remained unanswered for him: would the legal questions that such an operation implied be answered, how could it be organized and would it manage to avoid the impression of being regarded as a mere subsequent legitimisation of the BritishFrench action? It was in this respect that Hammarskjold and Pearson at first did not agree, since the Canadian Foreign Minister envisaged the force as being formed in large part by British and French elements.38 And it was not until the 3 November,39 that the idea of an international

33

34 35 36 37 38

39

For Pearson's plans see his memoirs: M. Lester Pearson, The Memoirs of the Right Honourable Lester B. Pearson, Volume 2 (1948-1957); A. Munro/ A.I. Inglis (eds), 1973, 244 et seq. as well as M. Lester Pearson, "Force for UN", Foreign Aff. 35 (1957), 395 et seq. Cf. Urquhart, see note 1,265 et seq. Cf. Pearson, see note 33,247. Cited according to CF III, see note 24,316. For the following paragraphs see CF III, see note 24,319 et seq. A.W. Rovine, The First Fifty Years. The Secretary-General in World Politics 1920-1970,1970,288. In this context also see Eden, see note 24,611,645. A. Cordier, Recollections of an International Civil Servant, Series of Interviews at Yale University, unpublished manuscript, 424.

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force was agreed on as the option which the United Nations should pursue in the present crisis.40 The decision being taken, Hammarskjold engaged himself in a series of coordinating talks with many representatives of Member States.41 For the idea to gain a majority in the Assembly according to the "Uniting for Peace" Resolution, Hammarskjold had to convince various delegations before it was put to vote. In this effort he worked with a group of key representatives from the various regional groups who also supported the idea of an international force, among them Hans Engen of Norway, Arthur Lall of India and Francisco Urrutia of Columbia.42 Lall was of special importance because he provided the contact with the group of non-aligned countries. He also was the person to inform Pearson that, through Egypt's UN ambassador, he had received word from Nasser that the president would, in principle agree on such a possible UN force.43 All these preliminary diplomatic moves resulted in a Canadian draft resolution that was adopted with 57 votes in favour and 19 states abstaining.44 The resolution contained the following paragraph: "The General Assembly, (...) Requests as a matter of priority, the Secretary-General to submit to it within forty-eight hours a plan for the setting up, with the consent of the nations concerned, of an emergency international United Nations force to secure and supervise the cessation of hostilities in accordance with all the terms of the aforementioned resolution."45

3. Peace-keeping Principles and Pragmatism Beginning with this resolution principles and guidelines evolved amidst the highly pragmatic urge to find a fast option out of the present crisis. The scope of the UN effort was already defined by the sole purpose to "secure and supervise the cessation of hostilities" — a relatively re40 41

42 43 44

45

E. Kelen, Dag Hammarskjold: A Biography, 1969, 75. Cf. J.P. Lash, Dag Hammarskjold. Ein Leben fur den Frieden, 1962, 97 et seq. Cf. CF III, see note 24,319. Pearson, see note 33,251. Among the abstentions were the Soviet Block, Egypt, the United Kingdom, France, Israel, Austria, Laos, Portugal, South Africa, Australia and New Zealand. Cf. CF III, see note 24,322. A/RES/998 (ES-I) of 3 November 1956.

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stricted task formulation stemming from the desire to secure support for the resolution. Hammarskjold was confronted with a 48 hour deadline and he immediately set up a United Nations command. He still showed ambivalence towards the adventurous journey the United Nations was embarking on, which can be seen from a remark in a cable at that time: "My personal lack of optimism is of course no excuse for not exploring the field."46 The next constitutive element of the "emergency force" was then articulated in Hammarskjold's interim report, which he presented on 4 November: "(A)s a matter of principle, troops should not be drawn from countries which are permanent members of the Security Council."47 Interestingly enough, this provision to exclude the five permanent members of the Security Council was not primarily formulated in order to keep the peace-keeping function away from both the United States and the Soviet Union. It emerged as a direct consequence of the British-French involvement in the Suez crisis. Hammarskjold used the recesses of the Assembly to work on his final report consulting also with Pearson, the Chief of the Secretary-General's Executive Office, Andrew Cordier, the legal adviser, Constantin Stravopolous and the Under-Secretary-General for Special Political Affairs, Ralph Bunche.48 Meanwhile, events in Egypt had further increased the pressure for fast action by the U.N. On the day before, British and French paratroopers had landed at Port Said thus officially commencing the invasion of Egypt. This move caused further disturbance and condemnations from various sides. The Soviet Union even invited the United States to threaten military steps of Soviet and American troops against the two NATO allies.49 The United States for its pan increased the diplomatic pressure on the United Kingdom which was under additional demands from Commonwealth countries to stop the intervention. Cordier sum46 47 48

49

Cited according to Urquhart, Hammarskjold, seee note 24,178. Cited according to CF III, see note 24, 335. Cf. Urquhart, Bunche, see note 1, 267 and Pearson, see note 33, 257-259 who additionally reports the following incident: "As a footnote to the history of these times, the original draft of the report by Hammarskjold and Bunche used the phrase 'to enforce and supervise the cessations of hostilities' and it managed to slip through our revision during the early hours of 6 November. However, I spotted it an hour or so later, just as the draft was going off to be reproduced. We changed it to 'to secure and supervise'. Thank goodness I noticed it, because we would have soon been in the soup if this force had been charged with the job of 'enforcing' anything". Cf. CF III, see note 24,337.


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marized: "(The report) provided a line of retreat at a moment when the various pressures to halt the ill-started military adventure had built to overwhelming proportions."50 This report, a just-in-time product of hectic diplomatic initiatives, laid down principles for the "emergency force" that proved to be constitutive for further U.N. peace-keeping missions.51 Right at the centre of it was the necessity to have UNEF I led by an exclusively international command. Hammarskjold's model went as follows: "(I)ts chief responsible officer should be appointed by the United Nations, and (...) he, in his functions, should be responsible ultimately to the General Assembly and/or the Security Council. His authority should be so defined as to make him fully independent of the policies of any one nation. His relations to the Secretary-General should correspond to those of the Chief of Staff of the United Nations Truce Supervision Organization (,..)."52 By appointing the UNTSO commander General Burns, the General Assembly facilitated taking over various guidelines that so far applied to UNTSO — once again a pragmatic move had left its print on the principles of peace-keeping. The taking-over of mission principles, among other things, for Hammarskjold meant: "On the one hand, the independence of the Chief of Command in recruiting officers is recognized. On the other hand, the principle is established that the force should be recruited from Member States other than the permanent members of the Security Council."53 It was this principle that allowed Hammarskjold to decline British and French efforts to have a say in the composition of the U.N. force. Hammarskjold then underlined the character of the force as one of emergency and once again stressed its mandate, which was limited "to secure and supervise the cessation of hostilities". But from the somewhat meagre formulation of the General Assembly resolution which was meant as the least common denominator in an effort to gain a majority, Hammarskjold drew a conclusion: "It follows from its terms of reference that there is no intent in the establishment of the Force to influence the military balance in the present conflict and, thereby, the political balance affecting efforts to settle the conflict."54 And still another seemingly self-evident fact had implications for Hammarskjold. Since the force resulted from General Assem50 51 52 53 54

CF III, see note 24, 340. Doc. A/3302 of 6 November 1956. CF III, see note 24, 345. CF III, see note 24, 346. CF III, see note 24, 347.

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bly action according to the "Uniting for Peace" Resolution, Hammarskjold made explicit that this precluded the force to draw from Chapter VII powers which could only be invoked by the Security Council. This in turn meant that the force rested on the consent of the parties concerned. Of special importance was the approval to enter Egyptian territory and in this respect also its functions were modestly shaped: "The force obviously should have no rights other than those necessary for the execution of its functions, in cooperation with local authorities. It would be more than an observers' corps, but in no way a military force temporarily controlling the territory in which it is stationed; nor, moreover, should the force have military functions exceeding those necessary to secure peaceful conditions on the assumption that the parties to the conflict take all necessary steps for compliance with the recommendations of the General Assembly."55 Hammarskjold's report then dealt with a couple of organizational, logistical and financial questions which in this context cannot be analyzed further, although they provided the pretext for various political struggles over the force's nature and legitimacy.56 In summary, the Secretary-General had formulated five essential principles, which from now on, constituted something of a basic pattern for future peace-keeping-missions of the United Nations: 1. As an Emergency measure, the Force's functions are limited in time. 2. The Mission is to be conducted in a strictly impartial manner. Its deployment must not lead to any change or prejudice concerning the political or military relations of power at work. The use of force, therefore, is limited to self-defence. 3. Permanent Members of the Security Council are barred from taking part in the composition of the troops. 4. The Mission is to be conducted under an unified international command structure by the United Nations.

55 56

CF III, see note 24,348. For the developments and crises in this context up to the Advisory Opinion on Certain Expenses of the UN by the ICJ, see B. Nolte,"Conflicts, Congo", in: Wolfram, see note 24, Volume 1,225 et seq., (231).


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5. Deployment of the troops is linked to consent by the parties involved, especially with respect to the country allowing the U.N. to enter its territory according to a "good faith"57-agreement.58

4. Keeping the Force on the Rails with Member States Hammarskjold underlined the "exploratory character"59 of his report and reminded Member States that a lot of questions still remained open and would only be solved in concrete steps while implementing the mandate. In this context he proposed the establishment of an "advisory committee to the Secretary-General for questions relating to the operations" stating: "If the force is to come into being with all the speed indispensable to its success, a margin of confidence must be left to those

57 58

59

A. D'Amato, "Good Faith", EPIL 7 (1984), 107 et seq. The continuing relevance of these principles can be seen when compared with a 1995 definition of peace-keeping by the Under-Secretary-General for peace-keeping operations M. Goulding: "Field operations established by the United Nations, with the consent of the parties concerned, to help control and resolve conflicts between them, under United Nations command and control, at the expense collectively of the member states, and with military and other personnel and equipment provided voluntarily by them, acting impartially between the parties and using force to the minimum extent necessary." Cf. Goulding, see note 22, 455. More specifically Goulding writes: "First, peace-keeping operations were United Nations operations." (453); "Second, it had become established over time that peace-keeping operations could be set up only with the consent of the parties to the conflict in question." (454); "Third, it had been established that the peacekeepers must be impartial between the parties." (454); "The fourth principle related to the troops required for United Nations peace-keeping operations. It was recognized that it would not be practicable for the United Nations to maintain a standing army." (455); "The fifth principle concerned the use of force. (...) (I)t had become an established principle that they should use force only to the minimum extent necessary and that normally fire should be opened only in self-defence." (455). Goulding then furthers distinguishes six types of peace-keeping mission: preventive deployment, traditional peace-keeping, implementation of a comprehensive settlement; protecting the delivery of humanitarian relief supplies; deployment of a United Nations force in a country where the institutions of state have largely collapsed; cease-fire enforcement. CF III, see note 24,350.

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who will carry the responsibility for putting the decisions into effect."60 The final authorization of the Secretary-General to assemble and deploy such a force was then based on a draft resolution presented by the Tunisian representative Mongi Slim. Slim was a trusted diplomat of Hammarskjold and both had worked on the wording of the resolution in advance,61 thus allowing the Hammarskjold-principles to shape the contents of the General Assembly resolution. Following several rounds of discussion, the resolution, establishing UNEF I was approved by 64 votes to none, with 12 abstentions. The Soviet Union raised doubts about the conformity of the Force with the United Nations Charter but choose to abstain because Egypt had approved the measure. At the same time the General Assembly established an Advisory Committee composed of Brazil, Canada, Ceylon, Columbia, India, Norway and Pakistan.62 This institution was, from now on, the place where questions of legal, operational and also of political nature were to be discussed and decided. The Committee should assist the Secretary-General in his responsibilities and it could request the convening of the General Assembly if necessary. The meetings of the committee were strictly confidential but can be reconstructed on the basis of verbatim records in the United Nations archives.63 The debates offer a useful supplement on some of the roughly formulated principles that UNEF I was supposed to operate on. The Secretary-General and some of his aides were of major importance in this context since they provided the pace and sense of direction for this new experiment in international conflict resolution. Hammarskjold saw the Advisory Committee as an opportunity to get fast advice and feedback from a selection of Member States which would, so to say, speak for the whole membership, sparing the Secretariat the need to convene the General Assembly at large. So the Committee was "an ad hoc executive organ (...) which is entitled to function for the General Assembly and where, of course, matters can be clarified, understood and analyzed in an entirely different way and where it is 60 61

62 63

CF III, see note 24,350-351. A/RES/1001 (ES-I) of 7 November 1956; see also T.M. Franck, "Finding a Voice: How the Secretary-General makes himself heard in the Councils of the Nations", in: Essays in international law in honour of Judge Manfred Lacks, 1984,482 et seq., (484). Cf. CF III, see note 24,355-357. Later on Yugoslavia joined the group. The verbatim records can be found at UNA DAG-1 5.0.1.0. Box 1 (cited as AC UNEF Date, page).


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not a matter for this or that kind of public scrutiny."64 In this context it could possibly release or share some of the burden the SecretaryGeneral had taken over according to the General Assembly and Security Council resolutions. Hammarskjold made this explicit by stating that "every responsibility in this whole Middle Eastern context that falls on me automatically falls on this Committee."65 The confidentiality of sessions was time and again underlined by the Secretary-General remarking "that certainly at present no closed meetings are held at the United Nations which have more interesting political overtones than our discussions here".66 At the same time members of the Committee were expected to inform — within their judgment — their respective governments and other delegations on the proceedings of the Committee. This style of "open" confidentiality with unwritten rules was explained by Hammarskjold's aide, Andrew Cordier, saying that the ultimate aim of the Committee was to keep the actions of the SecretaryGeneral "on the rails" within the expectations of Member States.67 It was Hammarskjold who dominated the sessions with rather long elaborations on his procedures and actions.68 He started by giving an introductory report and asked his respective aides to inform the committee on current developments. On the rare occasions that Hammarskjold did not attend the meetings, Andrew Cordier acted in his place. Apart from the informative aspect of these meetings, Hammarskjold deliberately used the members as a kind of sounding board for concrete proposals, initiatives and even the wording of letters or further texts. While generally pursuing a policy of asking the members in advance, he occasionally justified personal arrangements — for example with General Burns, that he took without prior consultation with the Committee — a procedure that was not challenged by Committee Members. His result-oriented approach represents a rather suc-

64

65 66 67

68

Hammarskjold in a session on 20 November 1956. AC UNEF of 20 November 1956,1. AC UNEF of 20 November 1956,20. AC UNEF of 12 March 1957,5. AW. Cordier, "The Role of the Secretary-General", in: R.N. Swift (ed.), Annual Review of United Nations Affairs 1960-1961,1960,1 et seq., (10). Cf. CF III, see note 24, 355-357. The committee met for the first time on the evening of 14 November and its members were the UN-ambassadors of Brazil (Cyro de Freitas Valle), Canada (Lester Pearson), Ceylon (R.S.S. Gunewardene), Columbia (Francisco Urruttia), India (Arthur Lall), Norway (Hans Engen) and Pakistan (Muhammad Mir Khan).

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cessful tool of international diplomacy used on a variety of topics.69 The Committee even prepared several draft resolutions. Drafts eventually were submitted by one of the members but the wording, to a great extent, came from the Secretariat which then was fine-tuned in frequent debates on different interpretations of specific formulations. Soon the members of the Committee took over different roles.70 Critical investigations on Secretariat or western motives were regularly made by Lall who meticulously guarded the rights of Egypt and defended its national interests. Political arguments were generally balanced by rather technical reports on organizational and other matters. In this context one can not underrate the role of Ralph Bunche, who right from the beginning was endowed with a special responsibility.71 In the committee Bunche was responsible for organizational, logistical and technical questions. Amongst other things, he had to deal with the problem of how to achieve a common sign of identification for the diverse troops. In this context the idea first evolved to have blue helmet liners.72 At the same time Bunche coordinated the troop requests and offers of Member States — a task that went surprisingly well, prompt-

69

70 71

72

R. Wolfram, "Consensus", in: Wolfram, see note 24, Volume 1, 350 et seq. Examples can be found in K. Dicke, "Deciding upon the Budget of the United Nations: A Comparison", in: R. Wolfram (ed.), Law of the Sea at the Crossroads: The Continuing Search for a Universally Accepted Regime, 1991,189 et seq. Over the years the composition changed. Bundle's role takes on even more significance when one takes into account his role in outlining the principles of UNTSO in 1948 - those very principles which Hammarskjold had also invoked for UNEF I. Cf. Urquhart, see note 1,266.

See Bundle's remarks in: AC UNEF of 14 November 1956, 27: "I might say, in conclusion, that we are trying to give some kind of common identification to the Force so that it can be readily identified as a United Nations Force. In addition to the arm bands and shoulder patches, we are purchasing a considerable supply of what is known as helmet liners - the liners that go in the steel helmets. These were considered by the military group yesterday. They will be painted in United Nations blue. They are light in weight, they are made of plastic, and they will look quite nice when painted with United Nations blue, with the letters 'UN' in white on each side and the UN seal in front. In addition we are having UN blue berets made so that the national units, while wearing their own uniforms, will have common headdress."


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ing him to remark in November 1956: "This is the most popular army in history — an army which everyone fights to get into."73 A lot of questions, inevitably, remained open to improvisation in the field. The Committee had its difficulties in trying to keep track with the multitude of events and decisions.74 Hammarskjold very consciously acknowledged this fact: "I felt it was better to establish a fait accompli of an acceptance in principle of the arrival of the force, even if there might be things which still had to be cleared up; that is to say, in order to gain the necessary time, I accepted a certain lack of clarity."75 Hammarskjold explicitly saw the "good faith" agreement76 with Egypt as a constitutive element of the situation — being even more important than some of the legal terms involved: "I feel myself that this is an operation where the exact legal text is much less important than the moral and political factors — that is, the good faith point — is more valuable. Because if Egypt — which I do not believe — would do something here, which certainly goes against what was the intention of the General Assembly, with this kind of registration on the stands, the attack would be less one for saying 'Well, this is against the letter of the law', than This is bad faith' and, for that reason, to be outlawed and condemned. Therefore, this is a stronger stand."77 The "good-faith"-agreement re73 74

75 76

77

AC UNEF of 14 November 1956,29. In this context see cf. Hammarskjold's observation in: AC UNEF of 23 April 1957, 6: "I wonder if we will be able to write the exact story of all these matters, because there is such a wealth of information, more or less misleading, that it will be somewhat difficult to dig out and present the real story. But that is, of course, not in any way unique to this case. It happens only too often in politics." AC UNEF of 14 November 1956, 7. Cf. CF III, see note 24, 371. Hammarskjold put down the agreement in a number of aide-memoires, especially in a text that was annexed to his report of 20 November "The Government of Egypt declares that, when exercising its sovereign rights on any matter concerning the presence and functioning of UNEF, it will be guided, in good faith, by its acceptance of General Assembly resolution 1000 (ES-I) of November 5, 1956 (...). The United Nations takes note of this declaration of the Government of Egypt and declares that the activities of UNEF will be guided in good faith, by the task established for the Force in the aforementioned resolutions; in particular, the United Nations, understanding is to correspond to the wishes of the Government of Egypt, reaffirms its willingness to maintain UNEF until its task is completed." Cited according to CF III, see note 24, 375-376. AC UNEF of 19 November 1956,13.

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ferring to the modalities of a UNEF I withdrawal was an issue that had been frequently discussed at the beginning of the mission. Hammarskjold insisted on a link between the withdrawal and the fulfillment of the mandate and functions of UNEF I. A unilateral abrogation of the agreement in this reading would not have been possible. This link, however, could not have been laid down in exact legal terms without touching upon Egypt's jealously guarded sovereignty. Any such move would most probably also have provoked opposition by various Member States. The compromise that developed out of these considerations, however, in the end did not forestall the Egyptian abrogation of the agreement in 1967 and the subsequent withdrawal of UNEF I.78 Hammarskjold clearly seems to have been aware of this inherent flaw in such a construction when in November 1956 he said: "If we cannot base the United Nations action on a reasonable degree of good faith, then, of course, we have embarked on an extremely dangerous adventure."79 The modalities of the good-faith construction also had to do with the legal foundation of UNEF I in the Charter — a question that was a constant issue in the committee. Which articles formed the basis of the new tool of conflict resolution? Ambassador Lall speaking on different claims on the Gaza strip said the organization in a way acted in a grey area — certainly not working under Chapter VII of the Charter and clearly going beyond Chapter VI which contains no provisions for an operation like UNEF I.80 Hammarskjold spoke of a vacuum. 81 It was then the Brazilian representative, Freitas-Valle, who coined a classic formulation: "[I] think we are in Chapter six and a half."82 Hammarskjold took up this argument and related it to the "Uniting for 78

79 80 81 82

Cf. Y. Tandon, "UNEF, the Secretary-General, and International Diplomacy in the Third Arab-Israeli War", International Organization 22 (1968), 529 et seq.; H. Morgenthau, "U Thant", in: H. Morgenthau, Essays of a Decade 1960-1970, 1970, 121 et seq.; Pearson, see note 33, 260-261 recalls a discussion with Hammarskjold after the Secretary-General had negotiated with Nasser and the Egyptian leader and insisted on his right to bring about the withdrawal of UNEF I: "I remember reacting quite strongly, but not violently. I said, 'This is going to cause trouble in the future/ Hammarskjold said: 'Oh, don't worry about it, because I told him (Nasser, M.F.) that condition was quite inadmissible.' It did not turn out to be inadmissible eleven years later." AC UNEF of 14 November 1956,24. AC UNEF of 14 March 1957,14. AC UNEF of 14 March 1957,21. AC UNEF of 14 March 1957,25.

Frohlicb, Keeping Track of UN Peace-keeping

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Peace" Resolution. He further stated: "[T]he trouble is that it does not give us the rights of Chapter VII, although it presents us with some of the problems of Chapter VII."83 The vagueness of the legal basis and mandate at the same time could be an asset in rendering the necessary amount of flexibility to the concrete work in the field. But this would last only so long as the UN's actions were not challenged; should this be the case, then the fragile foundations of its actions would reveal themselves with utmost clarity.

5. Principled Improvisation sets a Precedent The improvised deployment of UNEF I did not settle all the difficulties that emerged once the troops reached Egypt. The Secretary-General had to defend the special status of the Force concerning very concrete and even banal decisions. So, for example, the force was continuously in danger of losing its international character in favour of a subsequent approval of the British-French intervention. A similar issue came up when the transportation of troops to Egypt had to be organized. Hammarskjold declined the offer by the United States in spite of the U.S. capacities providing the fastest and most efficient way of getting troops on the ground. In order to avoid political undertones and diplomatic difficulties, he, instead, established an assembly point for UNEF I at Naples. The troops generally were brought to Naples by U.S. planes, but the crucial passage from Italy to Egypt then was undertaken by Swissair.84 A similar problem arose when the Canadian government chose to offer an infantry battalion called "The Queen's Own Rifles".85 The technical equipment of this contingent would have fitted well into UNEF I but Hammarskjold had to avoid political difficulties even taking into account irritations with the Canadian government. On the other side he had to resist Egyptian pleas for an exclusion of the NATO powers Norway, Denmark or Canada in UNEF I. This point was crucial, because Hammarskjold used this debate to underline that UNEF I should not be considered as a sum of diverse national contingents but rather constituted an integrated international entity. In honoring the Egyptian reservations he made sure that Yugoslav and Indonesian contingents were also included to outbalance 83 84 85

AC UNEF of 14 March 1957,25. CF III, see note 24, 362. CF III, see note 24, 370 et seq.

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criticism of a western overweight.86 The most obvious practical step to underline the special international status of UNEF I was Hammarskjold's decision to personally accompany the first units of UNEF I to Egyptian territory in order to underline their character as an international force.87 Hammarskjold was very much concerned with the perception of UNEF I and this for him also meant regarding the UN operation as an ethically motivated action. In a speech given before UNEF I soldiers he said: "As members of the United Nations Emergency Force you are taking part in an experience that is new in history. You are soldiers of peace in the first international force of its kind. You have come from distant homelands, not to fight a war but to serve peace and justice and order under the authority of the United Nations. Thus the opportunity for service which is yours is not to be measured by your numbers or your armor. You are the front line of a moral force which extends around the world, and you have behind you the support of millions everywhere."88 UNEF I for Hammarskjold was the realization of a moral force in action whose moral status had to be constituted and defended in a very practical manner. In his Annual Report 1961 he explicitly spoke of the Charter as incorporating "some basic rules of international ethics by which all Member States have committed themselves to be guided": "To a large extent, the rules reflect standards accepted as binding for life within States. Thus, they appear, in the main, as a projection into the international arena and the international community of purposes and principles already accepted as being of national validity. In this sense, the Charter takes a first step in the direction of an organized international community, and this independently of the organs set up for international co-operation."89 These rules have three different roots: the bitter experiences of two World Wars, already established norms on the national level and a potential of commonly shared convictions that found its expression in the 86 87

88

89

CF III, see note 24,363. K.R. Gray, "United Nations Notebook. The Relationship of Dag Hammarskjold with the Press", in: Development Dialogue 1987,45. Message to the United Nations Emergency Force 10 December 1956, in: CF III, see note 24, 405. Introduction to the Sixteenth Annual Report of 17 August 1961, in: A. Cordier/ W. Foote (eds), Public Papers of the Secretaries-General of the United Nations, Volume V: Dag Hammarskjold 1960-1961, 1975 (to be cited as CF V), 543-544. For Hammarskjold's view on political ethics in efforts for world organization cf. Frohlich, see note 23.

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very creation of the organization of the United Nations. Hammarskjold saw the rules and convictions of the Charter not only as imperatives out of the international tensions in his time but as an attempt to work for a demanding concept of peace which he phrased under the heading of "reconciliation". With this concept of values respected on the national level and slowly transgressing into the international sphere the struggle for a world organization in Hammarskjold's view, "has deep roots in the history of the efforts of man to eliminate from international life the anarchy which he had already much earlier overcome on the national level".90 In the final analysis, it is the task of Member States to transform the Charter into "living reality in practical political action".91 This implies that the United Nations is indeed representing a normative position which precludes neutrality and inaction in the face of disregard and destruction of its guiding principles. Hammarskjold's insistence on principles clearly stemmed from his conviction that the United Nations and UNEF I were establishing precedents for future missions.92 The experiences with UNEF I were analyzed by Hammarskjold in two major reports in 195793 and 1958.94 Moreover, he laid down his personal account of the talks, debates and negotiations in various memoranda and notes possibly in order to publish them later on.95 Right from the start he was concerned that UNEF I "get[s] the start it deserves and set[s] a precedent which the United Nations needs."96 The precedent-character of UNEF I was also the subject of a report of Hammarskjold's Legal Adviser.97 Urquhart sums 90 91 92

93

94

95

96 97

Annual Report, see above, 546. Annual Report, see note 89, 552. On the Congo see Urquhart, Hammarskjold, see note 24 , 389 et seq., 494 et seq., 545 et seq. Doc. A/3694 of 9 October 1957; cited according to CF III, see note 24, 670 et seq. Doc. A/3943 of 9 October 1958; cited according to A. Cordier/ W. Foote (eds), Public Papers of the Secretaries-General of the United Nations. Volume IV: Dag Hammarskjold 1958-1960, 1974, 230 et seq. (to be cited as CF IV) For this context cf. Frohlich, see note 23. Various documents in this context can be found in the Manuscript Division of the Royal Library Stockholm. See for example "Notes on part of my personal participation in the developments 29 October - 28 November", of 2 August 1957. Press Conference of 12 November 1956, CF III, see note 24, 367. AC UNEF of 8 December 1956, 11 where Hammarskjold comments on this report: "I believe that we can all at least agree on the general judgment

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up: "While the original conception of the emergency force was not his, Hammarskjold clearly was the chief agent in its construction and the formulation of its basic principles, and was of course its primary administrative officer."98 Pearson retrospectively attributes to Hammarskjold the greatest part of the establishment of UNEF I." Pearson's idea, together with the organizational capacities of Bunche and the principled stand and leadership of Hammarskjold created this new option in peace-keeping. But all their efforts probably would have been futile if the international environment had not been favourable for the UN undertaking. Above all, the role of the United States needs to be mentioned since UNEF I offered a more or less unique way of getting its allies out of a precarious situation while at the same time not supporting their actions. Thus, apart from the above mentioned explicit five principles which Hammarskjold laid down in his reports, the eventual "success" of UNEF I relied on a couple of further conditions and prerequisites. Among these factors were the active support of (one or more) permanent members of the Security Council, the ability to deploy a major force by logistical and technical improvisation, the will of Member States to contribute to the force, the personal engagement of the Secretary-General himself with the force right from its beginning by a continual attention throughout its existence, and the essential linkage of the concrete form of the operation with the "basic rules of international ethics" expressed in the Charter. Together with the principles described above they make up for a mixture100 of what Urquhart calls "interconnected basic assumptions": "(...)- the consent of the parties involved in the operation, to its mandate, to its composition and to its appointed commanding officer; the continuing and strong support of the operation by the mandating

98 99

100

that if this agreement, as I believe, will be signed, it will be not only very satisfactory, but an extremely valuable precedent for the future as to the arrangements for United Nations organs of this nature. It represents considerable progress, beyond what we have had, for example, in the case of the Truce Supervision Organization, and it is with some regret that I note that it is not until now that we have got something which, in this way, is so clear and clean." Rovine, see note 38,291. L. Pearson, "The Four Faces of Peace". Nobel Prize Lecture of 11 December 1957, in: L. Pearson (ed.), Diplomacy in the Nuclear Age, 1959, 104. See also Bratt, Performance, see note 16.


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authority, the Security Council; - a clear and practicable mandate; - the non-use of force except in the last resort in self-defence - self-defence, however, including resistance to attempts by forceful means to prevent the peace-keepers from discharging their duties; - the willingness of troop-contributing countries to provide adequate numbers of capable military personnel and to accept the degree of risk which the mandate and the situation demand; - (less often noted) the willingness of the member states, and especially the permanent members of the Security Council, to make available the necessary financial and logistical support."101 This set of constitutive features can now be applied to the developments that are dealt with in the three contemporary reports.

III. The Challenges of "Classical Peace-keeping" Looking at Hammarskjold's five principles one has to realize that not a single one is unchallenged any more.102 Annan summarized in an article in 1996: "[T]he prerequisites of traditional peace-keeping will not exist in the majority of cases."103 An option which already emerged in the context of the UN action in Cyprus in 1964 and which runs counter to the above mentioned principles is that troops from the permanent members can also take part in a peace-keeping operation and since 1992 all permanent members have participated in a peace-keeping operation.104 Decisive are the changes with regard to consent, impartiality and use of force. These aspects should help us to see in more precise terms what kind of transformations the recent peace-keeping operations have gone through.105 According to the findings from UNEF I these principles will have to be supplemented by further aspects dealing with political, ethical and plain operational issues that point to the role of the Secretariat's infrastructure and the responsibility of Member States. So the material offered in the three reports will be assembled and analyzed with a view to their effect on the theory and practice of peace-keeping. 101

102

103

104 105

B. Urquhart, "Beyond the 'sheriff's posse", Survival 32 (1990), 196 et seq., (198). Especially Roberts, Crisis, see note 16, 93 et seq. and Kuhne, Peace Support, see note 16,358 et seq. Kofi Annan, "Challenges of the New Peace-keeping", in: Otunnu/ Doyle, see note 16,171. Roberts, Crisis, see note 16,105. Id.

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1. Defining Consent The question of consent is a key principle in UN peace-keeping which led the experts of the BR to place this question prominently on their agenda: "The Panel concurs that consent of local parties, (...) should remain the bedrock principle(s) of peace-keeping. Experience shows, however, that in the context of intra-State/transnational conflicts, consent may be manipulated in many ways by the local parties."106 The "experience" mentioned can easily be drawn from the Srebrenica Case. The SR speaks of the Army of Bosnia and Hercegovina as a strange mix of "territorial defense units, police forces, paramilitary forces and criminal elements."107 This characterization seems to fit nearly all other parties as well. In the case of the Bosnian Serbs there were additional overlapping groups between the Serb army and the renamed Bosnian Serb part of the former Yugoslav armed forces. The diverse patterns of military organization, local peculiarities and ad-hoc arrangements led to a profoundly irritating situation. Moreover, right from the beginning the different parties had different and mutually exclusive perceptions and expectations of the role of a potential United Nations Force in Bosnia. President Alija Izetbegovic in the early stages of the conflict called for a peace-enforcement operation to "restore order"108 whereas Radovan Karadzic and Franjo Tudjman first saw no need and use of a UN force. This led the SecretaryGeneral to conclude in definite terms on 12 May 1992: "I do not believe that in its present phase this conflict is susceptible to the United Nations peace-keeping treatment. Any successful peace-keeping operation has to be based on some agreement between the hostile parties."109 He furthermore stressed the fact that respect of the panics for a possible peace-keeping force was non-existent. This opened the door to mutually exclusive perceptions of the peacekeepers which had to face attempts of instrumentalization. The acronym UNPROFOR (United Nations Protection Force) — at least for the warring parties on the ground — stood for a broad range of things from a welcome humanitarian convoy, an obstruction to effective self-defence, a chess piece in the game of international opinion and fig-leaf for ethnic cleansing to a NATO mission in disguise. Depending on the military balances and the 106 107 108 109

BR para. 48. SR para. 17. SR para. 25. SR para. 26.

Frohlichy Keeping Track of UN Peace-keeping

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region in which it was deployed, the difference of UNPROFOR being loved and loathed could be a matter of days and kilometers thus rendering impossible a stable, continuing contribution to the overall peace effort. The complex and ever-changing hierarchies of the parties involved further complicated the situation when for example the Bosnian Serbs agreed to a cease-fire or agreement at the military level which then was formally supported at the government level but finally rejected at parliamentary level, even hinting at a further level of possible referenda. The BR in this context states: "A party may give its consent to United Nations presence merely to gain time to retool its fighting forces and withdraw consent when the peace-keeping operation no longer serves its interests."110 During the Suez crisis and the Cold War era, approval of the parties was often reached by diplomatic, economic or other pressure employed on one party by its respective Super Power, but this somewhat ironic potential of conflict supervision is no longer available in the post-Cold War era. The Panel of Experts of the BR sees this as a crucial difference in comparison with classical peace-keeping.111 The case of Rwanda further illustrates the difficulties of the Yugoslav situation. During the genocide, there was no attempt to disguise or maintain some identification as a party or distinguishable group, but rather sheer brutality and violence beyond rules and limits which ultimately contributed to the overall aim of genocide that was supported by hate speeches on a national radio station. In the face of such developments and the obvious absence of "consent" in the traditional sense, should the United Nations then refrain from acting? Annan already dealt with the "consent" question before he became Secretary-General.112 His answer to this problem was a new type of operation, namely "Inducement Operations".113 Annan counts the Unified Task Force (UNITAF) in Somalia in these new types of operations, stressing their function to establish the pre-condition for traditional peace-keeping, i.e. demilitarization of the warring parties and stabilization of the military and political situation. "Consent" for Annan in this context needs to be redefined as the (presumed) consent of 110 111 112 113

BR para. 48. BR paras 18,20. Kofi Annan, see note 103,169 et seq. Kofi Annan, ibid., 173 following a concept by Donald C. F. Daniel and Bradd C. Hayes.

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the majority of the population and not consent of this or that tiny (but powerfully armed) faction or government organs which disrespect their duties towards the population. The principle of not affecting the political or military relations in the country is even turned round in Annan's "Inducement Operations" whose aim should be "to forward political objectives: to gain people's support for a UN operation and to provide leverage in favor of reconciliation".114 But UNITAF clearly did not make up a reasonable case for peace-keeping even in a broader definition. It was conceived as a temporary interposition between the two peace-keeping missions UNOSOM (United Nations Operation in Somalia) I and UNOSOM II. Apart from such a rather extraordinary mission of its own, the "inducement"-element has entered many UN operations — and in this context the language of the BR is very telling since it prefers to speak of "peace operations" instead of limiting its scope to "peace-keeping" or distinguishing between peace-keeping and various levels of peace enforcement.115 The Security Council's reference to Chapter VII in any case marks a crucial difference to UNEF I which was based on General Assembly action. In fact, Hammarskjold's accentuation of the consent principle directly stemmed from the fact that UNEF I could not refer to Chapter VII competences. But the consent principle is not rendered superfluous: Chapter VII was designed for classical breaches of international peace by state-to-state violence whereas nowadays the Security Council has to confront more and more intra-state violence. He did this by giving new meaning and relevance to Article 39 as the defining moment for any further measures under Chapter VII.116 The consent principle in this respect touches upon a new understanding of sovereignty and intervention in international relations.117 In 114 115 116

117

Kofi Annan, ibid., 176. Kiihne, see note 10,1355. K. Dicke, "National Interest vs. the Interest of the International Community - A Critical Review of Recent UN Security Council Practice", in: J. Delbriick (ed.), New Trends in International Lawmaking — International Legislation in the Public Interest, 1997,145 et seq. For this question see for example C. Greenwood, "Gibt es ein Recht auf humanitare Intervention?", EA 48 (1993), 93 et seq.; A. Roberts, "Humanitarian Wan Military Intervention and Human Rights", International Affairs 69 (1993), 429 et seq.; O. Schachter, "Sovereignty and Threats to Peace", in: T.G. Weiss (ed.), Collective Security in a Changing World. A World Peace Foundation Study, 1993,19 et seq.; K. Dicke, "Interventionen zur Durchsetzung internationalen Ordnungsrechts: Konstitutives Element


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a number of speeches and reports Annan juxtaposed two antagonistic concepts of sovereignty: "The Charter protects the sovereignty of peoples. It was never meant as a license for governments to trample on human rights and human dignity. Sovereignty implies responsibility, not just power."118 In another context he relates the sovereignty of a state to the sovereignty of the individual and the people as a whole.119 Member States in such a situation have to decide which concept they would appreciate most in case of doubt and so "consent" remains a crucial re-

118 119

der neuen Weltordnung?", Jabrbucb fiir Politik 2 (1993), 259 et seq.; T. Hoppe, "Zur Problematik 'humanitarer Intervention'. Politisch-ethische Reflexionen", in: K. Graf Ballestrem (ed.), Sozialetbik und politiscbe Bildang. Festschrift Bernbard Stttor, 1995, 447 et seq.; S. Hoffmann, "The Politics and Ethics of Military Intervention", Survival 37 (1995), 29 et seq.; T. Schilling, "Die 'neue Weltordnung' und die Souveranitat der Mitglieder der Vereinten Nationen", AYR 33 (1995), 67 et seq.; M. Barnett, "The New United Nations Politics of Peace: From Juridical Sovereignty to Empirical Sovereignty", Global Governance 1 (1995), 79 et seq.; K. Dicke, "Friedenswahrung durch Interventionen. Die Notwendigkeit eines internationalen Ordnungsrechts", Internationale Politik 50 (1995), 21 et seq.; B. Parekh, "Towards the just world order", The Times Literary Supplement of 26 September 1997, 14 et seq.; T. Knudsen, "Humanitarian Intervention Revisited: Post-Cold War Responses to Classical Problems", in: Pugh, see note 16, 146 et seq.; S. Hobe, "Der kooperationsoffene Verfassungsstaat", Der Stoat 34 (1998), 521 et seq. as well as NJ. Wheeler, "Humanitarian intervention after Kosovo: emergent norm, moral duty or the coming anarchy?",/ Int'lAff. 77 (2001), 113 et seq. This context cannot be explored further at this place. Annan has made this a topic of several of his major speeches. Cf. the Ditchely Foundation Lecture of 26 June 1998, Doc. SG/SM/6613/Rev. 1. "Nothing in the UN charter precludes a recognition that there are rights beyond borders. What the charter does say is that 'armed force shall not be used, save in the common interest'. But what is the common interest? Who shall define it? Who shall defend it? Under whose authority? And with what means of intervention?". See also Kofi Annan, "Two Concepts of Sovereignty", in: The Economist of 18 September 1999,49-50 where he outlines four impediments to and conditions for a reasonable policy of intervention: not to limit "intervention" to a military understanding; apart from a new concept of sovereignty there has to be a redefinition of national interests; the will by the Security Council to resolutely fulfil its role as the central authority in the maintenance of international security and the will to keep up the responsibility for a conflict region once the military intervention has ended. Doc.SG/SM/6613/Rev.l,page3. Cf. his speech at the occasion of introducing his Annual Report for 1999 (Doc. SG/SM/7136).

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quirement for peace-keeping. Problems emerge when an already deployed consent-oriented mission experiences a "downgrading of the consent".120 The problem of so-called "spoilers"121 in peace processes points to the fact that consent given for deployment may not automatically guarantee consent for implementation. Tharoor, in this context notes that "(...) classical, consensual peace-keeping does not respond fully to the nature of the world we live in and the challenges the new world disorder poses to the international community."122 Obviously, there may be cases where the need to do something coincides with a lack of consent. While not totally abandoning the principle of consent and the condition of a cease-fire, terms like "cooperative environment" as used in the BR indicate cautious adjustments.123. But, as generally with peace-keeping, adjustment of one principle also has direct consequences for other principles.

2. Distinguishing Impartiality and Neutrality The transgression of the classical borderline of impartiality need not come about as a sudden and conscious change of policy by one of the parties concerned, as both Srebrenica and Rwanda amply demonstrated. Even the distribution of humanitarian aid can put a question mark behind impartiality: "The use of UN peacekeepers in the delivery of humanitarian aid inevitably, even if unconsciously, leads to a shift in a conflict's balance of power. Decisions regarding aid become decisions about which parties benefit and which do not."124 Dobbie adds: "Like consent, impartiality will be far from exact or absolute. It will not be enough for a peace-keeping mission to operate impartially — it must be 120 121

122

123

124

Roberts, Crisis, see note 16,99. Cf. S.J. Stedman, "Spoiler Problems in Peace Processes", International Security 22 (1997), 5 et seq. The spoiler problem is also mentioned in the Brahimi Report with reference to Sierra Leone and Somalia (BR para. 21). S. Tharoor, "The Changing Face of Peacekeeping", in: Benton, see note 16, 210. BR para. 27. In a first report on the implementation of the BR (Doc. A/55/502) Annan significantly felt the need to clarify that consent for development remained a corner stone for peace operations and that he does not interpret the Panel's recommendations as a plea "to turn the United Nations into a war-fighting machine or to fundamentally change the priciples according to which peacekeepers use force." Bratt, Peace, see note 16,69.


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seen to operate impartially."125 And impartiality is already challenged when due to existing threats and the situation on the ground UN forces give an implicit or explicit pledge simply to protect people. This was not only done e.g. by the mandates of the various resolutions establishing safe areas in the Yugoslav Conflict but constituted a constant feature in the peacekeepers daily work. Therefore the Secretary-General stated: "Several of the newer tasks have placed UNPROFOR in a position of thwarting the military objectives of one party and therefore compromising its impartiality, which remains the key to its effectiveness in fulfilling its humanitarian responsibilities".126 The Dutch battalion (Dutchbat) in Srebrenica was soon in a situation where there was little doubt as to which party did violate the agreements since it organized a kind of medieval siege on the town which also included withholding supplies from the peacekeepers. In late June, the commander reported: "My battalion is no longer willing, able and in the position to consider itself as being impartial due to the (...) policy of the BosnianSerb government and the BSA."127 This report (which did not reach the level of command in Zagreb because of problems in command and control that will be outlined below) is an authentic expression of the factual erosion of the impartiality condition. Going back to Suez and Hammarskjold, the notion of impartiality can be conceptualized with somewhat greater clarity. Hammarskjold saw the UN as the "detached element" in world politics, standing above partisan interests and having the task of preventing the involvement of the great powers into smaller conflicts. In such a situation the UN's role was definitely limited but also facilitated by the discipline forced on contesting parties by the East and West Bloc powers.128 The possibility to attribute one party to one power bloc not only made impartiality a necessity but also offered a relatively easy way of definition: impartiality more or less meant equi-distance. This supported the impression that the UN while being "impartial" also had to be "neutral" because it could not take a stand on the political or normative arguments at stake. The equation of impartiality and neutrality, however, proved to be a consequence of international relations at the time and not a definite statement of principle. On the contrary, the decline of the East-West 125 126 127 128

Dobbie, Concept, see note 16,135. SR para. 219. SR para. 235. E. Newman, The UN Secretary-General from the Cold War to the New Era. A Global Peace and Security Mandate, 1998, 94.

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conflict brought both the limitation of supportive bloc power discipline and the enlargement of the scope of action to be taken by the UN. It is allowed more and more and is also asked to articulate its own point of view in conflicts going beyond the geometrical definition of "impartiality".129 Although Hammarskjold, in his days, was very restricted in exercising this function of the United Nations, he nonetheless provided the conceptual basis for such action in a distinction between impartiality and neutrality: the UN, in his view, could not afford "neutrality" in relation to the principles of the Charter. The decision to go beyond equal treatment of the parties therefore has to stand upon ethical reasons. In this context, one point of orientation emerges from the reports. Both the Rwanda Inquiry and the SR deal with a situation in which people perceive the United Nations as protection, seeking refuge on UN premises or putting their trust in a UN-declared "safe area". The Inquiry states: "Whether or not an obligation to protect civilians is explicit in the mandate of a peacekeeping operation, the Rwandan genocide shows that the United Nations must be prepared to respond to the perception and the expectation of protection created by its very presence." (RR page 51). The BR directly takes up this recommendation and further introduces a rule that one could call the "witness principle": "Indeed, peacekeepers — troops or police — who witness violence against civilians in conflict situations should be presumed to be authorized to stop it, within their means, in support of basic United Nations principles and, as stated in the report of the Independent Inquiry on Rwanda, consistent with the 'perception and the expectation of protection created by [an operation's] very presence'." (BR para. 62). While there is considerable uncertainty which violation of norms and principles in which circumstances can be regarded as sufficient reason to overcome the duty to observe impartiality, the concept is definitely rendered impossible when encountering ethnic cleansing or genocide. This observation is even more plausible and obligating for an international institution that considers itself to have introduced new patterns of conduct in international relations,130 which led Hammarskjold to say that the UN Charter embodies a basic set of international ethics. This reasoning is taken even further in the SR where Annan, speaking of the challenges of peace-keeping reforms put emphasis on the problems of "an institutional ideology of impartiality even when con129

130

R.K. Betts, "The Delusion of Impartial Intervention", Foreign Aff. 73 (1994), 20 et seq. Kiihne, Peace Support, see note 16, 363.


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fronted with attempted genocide."131 The RR, in a similar vein, addresses this aspect: "Faced in Rwanda with the risk of genocide, and later the systematic implementation of genocide, the United Nations had an obligation to act which transcended traditional principles of peacekeeping. In effect, there can be no neutrality in the face of genocide, no impartiality in the face of a campaign to exterminate part of a population."132 The ethical impulse that once motivated the establishment of a peace-keeping operation risks becoming a caricature of itself when it transforms into indolence and indifference while carrying out the mandate. The BR gets even more explicit: "Impartiality for United Nations operations must therefore mean adherence to the principles of the Charter: where one party to a peace agreement clearly and incontrovertibly is violating its terms, continued equal treatment of all parties by the United Nations can in the best case result in ineffectiveness and in the worst may amount to complicity with evil. No failure did more to damage the standing and credibility of United Nations peacekeeping in the 1990s than its reluctance to distinguish victim from aggressor."133 This will directly lead to the third principle being challenged: the use of force.

3. Balancing Coercion and Persuasion The use of force is a recurring issue in all three reports and represents a crucial feature not only of the missions in the former Yugoslavia and Rwanda.134 In Rwanda a concrete problem arose when the UNAMIR (United Nations Assistance Mission for Rwanda) force commander in January 1994 received notice from an informant who was involved in preparing plans for a full-scale effort to exterminate the Tutsi population. He asked for the approval of UNAMIR not only offering protection to the informant, but also to actively move against a selection of leaders engaged in the plot and their suspected weapon-collection points. Headquarters expressed caution and even the subsequent Inquiry "does not see reason to criticize the decision taken by the Secre-

131 132 133 134

SR para. 505. RR page 50. BR Executive Summary, ix. J. Ciechanski, "Enforcement Measures under Chapter VII of the UN Charter: UN Practice after the Cold War", in: Pugh, see note 16,82 et seq.

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tariat on the mandate issue."135 With hindsight, such a step could have been the last chance to substantially influence the later course of events with the capacities of UNAMIR. After the plane crash of 6 April 1994 in which the presidents of Rwanda and Burundi were killed, fighting broke out and seemed to follow the script of which the informant had warned the United Nations. Now, UNAMIR was quickly overwhelmed by events and brutality. Moreover — as foreshadowed in the informant's account — the peacekeepers themselves were targeted.136 This situation clearly would have been a case of "self-defence" since the lives of UN troops were directly threatened in a calculated move to bring about the withdrawal of the Belgium contingent. But as often in peace-keeping operations, the problem is not solved by identifying the application of "self-defence" in theory. The question is always practical in that it presupposes the military ability to effectively resort to force. In Kigali, this was not the case and the Security Council, instead of increasing UN manpower chose to withdraw the mission. This move also had direct consequences for the people who had hoped for UN protection: about 2000 people sought refuge at a school in a suburb of Kigali where Belgian soldiers where stationed. But the "protection" they sought turned into a tragic catastrophe when French and Belgian soldiers were evacuated from the school, leaving behind the assembled refugees. The assumption of UN protection also proved fatal for a number of high-ranking politicians who were especially sought after by the murderous gangs. The Prime Minister hid in a building of the United Nations Volunteers in Kigali where ultimately he was found and shot. Overwhelmed in terms of manpower and brutality, there were also several incidents of peace-keepers fleeing the sites they were expected to guard. The hasty evacuation with its priority on safeguarding non-Rwandese people further added to the picture of confusion and disintegration. The Belgium plea to downsize or even terminate the UNAMIR mission and its unilateral decision to withdraw its contingent (which had been a vital component for the mission) practically dissolved the UN effort in Rwanda. In a structural dimension, the situation in Bosnia very much resembled these problems since the very concept of "safe areas" brought with it the need to think about exactly how "safety" was to be guaranteed in 135 136

RR page 34. A group of Belgian soldiers that tried to protect the Prime Minister was surrounded, disarmed and taken away from the residence by Hutu soldiers. Then they were brutally beaten and finally killed after they had been separated from their fellow peace-keepers from Ghana and Togo.


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the case of attack. The concept itself emerged more because of different opinions in the Security Council (which will be analyzed below) rather than because of a pre-meditated plan on how to implement "safety". Thus it directly confronted military leaders and UN personnel on the ground with the question of how much force should be employed without giving them detailed guidance. Warnings and doubts in this respect were expressed from the beginning when first plans were discussed in 1992/1993. The Secretariat rightly foresaw the crucial question whether "traditional peace-keeping rules of engagement would be sufficient to discourage any violations of the safe areas."137 In this context, the diplomatic compromise concerning the wording of the resolutions had important repercussions for troops on the ground. Resolution 836 of 4 June 1993 which was based on a French memorandum, invoked Chapter VII, but only authorized the Force "to deter attacks" on the safe areas. Getting more specific it stated that UNPROFOR was mandated to "acting in self-defence, (...) take the necessary measures, including the use of force, in reply to bombardments against the safe areas by any of the parties or to armed incursion into them or in the event of any deliberate obstruction in or around those areas."138 The phrase "necessary measures" applied to the use of air power. But Resolution 836 brought no change in the intensity of Serb bombardments. The Secretariat had outlined the necessity to deploy round about 32.000 troops to have a chance of coercively implementing the 836 mandate on the ground. Since it was clear that such an increase in troops would not come about, the Secretariat held on to another approach in defining UNPROFOR tasks, stating that "UNPROFOR's major deterrent capacity, rather than being a function of military strength, would essentially flow from its presence in the safe areas"139 thereby applying methods of persuasion instead of force. The Secretariat in this way made a virtue out of necessity: even the very sponsors of Resolution 836 did not offer substantial increases of troops.140 The question of force, therefore, was primarily directed towards the use of air power. Air power seemed to provide an option for Member States which did not have the will and the ability to engage 137 138 139 140

SR para. 50. S/RES/836 (1993) of 4 June 1993. SR para. 95. Instead the Secretariat got offers from countries with political stakes in the conflict - a situation that resembled the Suez case. When the Canadian unit at Srebrenica had to be replaced, Sweden first refused to take over, resulting in the eventual deployment of a Dutch contingent.

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lightly armed troops that were committed for peace-keeping purposes into heavy fighting and peace enforcement. The use of air power furthermore was expected both to be less dangerous in terms of casualties and to provide the chance to detach the UN operation from enforcement that was to be done by NATO. But air power did not offer itself as the all-encompassing answer to the question of force. Eisele expresses the problems of such an arrangement by pointing to the fact that this in a way meant applying Chapter VII from the air while sticking to Chapter VI on the ground.141 Much debate concentrated on the distinction between "close air support" as an immediate enlargement of the self-defence capabilities of peacekeepers on the one hand and "air strikes" that included action in retaliation against the violation of agreements on the other. The latter could include a broad range of targets of strategic nature not only in the immediate surroundings of endangered peacekeepers. Air strikes from a UN perspective had to be applied very cautiously in order not to escalate the situation and loose control over the process. So target verification and the avoidance of "collateral damage" held a high position in the conditions that the UN wanted to see observed by NATO. This, for example, had the consequence that the military might of NATO, in a way, was restricted when pilots were asked to double-check on their targets with which they were supposed to have visual contact before attacking. Such a procedure more easily exposed the planes to attack from the ground and was the reason for aircrafts being shot down. The logic of a primarily military and a mainly diplomatic institution inevitably clashed. NATO from its point of view wanted to have the ability to identify targets for itself, thus harmonizing the aims with its military means and way of operation. This would have included knocking out Serb air defence assets before any campaign. So, even in order to allow for efficient "close air support," it would have been useful for NATO to conduct "air strikes" in advance.142 As may be imagined, such differences of opinion can eventually have significant consequences when military forces have already shifted gear to full-scale combat readiness. The situation was further impaired by command and control problems outlined below. 141 142

Eisele, see note 16,169. After the attack on Bihac, the different approaches became visible when the Udbina airfield was targeted on 21 November. NATO wished to neutralize the airfield and associated facilities altogether, but UNPROFOR insisted that only the airstrip should be struck, and not the aircraft operating from it. (SR para. 159).


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Because of the cautious approach taken by the Secretariat and the Force Commander, as well as the vagueness of the resolutions' wording, various incidents occurred without adequate reaction by UNPROFOR. The Force Commander read Security Council resolutions as an expression of the "light option". This, for instance, led him to not react to the Markale massacre on 5 February 1994 because such a risk might "drag the United Nations into war".143 In other instances, as for example concerning violations of the safe area in Gorazde, a request by UNPROFOR for close air support was not realized because of severe failures in communication and subsequent delays. When the first use of air power came about on 10 April 1994 it was partly hampered by bad weather conditions. Its result was twofold: it stopped Serb activity in the region and was directly answered by General Mladic threatening to take hostage or kill UN personnel. This, among other things, led the UNPROFOR Commander in August 1994 to oppose the wider use of force. The problem became a central issue at a Secretariat meeting of troop-contributing countries on 28 November 1994 where the position of the Secretary-General was portrayed as being prepared "to cross the line that divides peace-keeping from peace enforcement."144 The dilemma facing the United Nations was exposed even more visibly with the turn of the year: it brought the first hostage taking of about 100 UNPROFOR personnel (committed by Bosnians in January) and Mladic's warning to the new UN Commander for Bosnia and Herzegovina that he might take action against the eastern enclaves. With the restructuring of the UN effort and the installment of General Rupert Smith in Sarajevo, the latter chose to pursue a more robust attitude. In May 1995 he asked for air strikes around Sarajevo which were dismissed. The conflict between the "robust" attitude on the one side and the "cautious"145 attitude of Special Representative Yasushi Akashi on the other side dominated the developments. Then the hostage crisis in May changed the overall picture with UN troops even being used as human shields against any air attacks by NATO. During the hostage crisis Akashi issued a statement that "the execution of the mandate was to be secondary to the security of United Nations personnel"146 and there has been suspicion as to whether the UNPF (United Nations Peace Forces — the collective organization of peace operations in the 143 144 145

146

SR para. 118. SR para. 162. Cf. his view in Y. Akashi, "Managing United Nations Peace-keeping", in: Bierman/ Vadset, see note 5,125 et seq. SR para. 193.

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former Yugoslavia since March 1995) Commander entered into a kind of secret deal with Mladic trading the release of hostages with a promise not to order further NATO air strikes.147 The hostage crisis also led the United Kingdom, France and the Netherlands to work on their plan of a Rapid Reaction Force in order to have a better chance of protecting their troops. These confusing signals and lack of clearness made up the background against which the Srebrenica tragedy was to unfold. Annan, as the responsible Under-Secretary-General, summarizes the reasons for the cautious use of air force.148 But he ultimately acknowledges that the United Nations deprived itself of a crucial option in reacting to the intensified violations of cease-fire agreements. The UN thus became calculable and exposed itself to the cynical game of provocation and partial withdrawal that the Bosnian Serbs in particular, played: "We were, with hindsight, wrong to declare repeatedly and publicly that we did not want to use air power against the Serbs except as a last resort, and to accept the shelling of the safe areas as a daily occurrence. We believed there was no choice under the Security Council resolutions but to deploy more and more peacekeepers into harm's way. The Serbs knew this, and they timed their attack on Srebrenica well. The UNPROFOR Commander in Sarajevo at the time noted that the reluctance of his superiors and of key troop contributors to 'escalate the 147 The report could not find anything to support this theory. Mladic had prepared an agreement in this respect but the Force Commander refused to sign it (SR para. 197). Mladic also proposed access of UNHCR humanitarian aid into Sarajevo on the condition that an equal amount of supplies were delivered to Serb communities in the East (SR para. 200) - a proposal that led to substantial disagreements between UNHCR and UNPF. 148 "What is clear is that my predecessor, his senior advisers (among whom I was included as Under-Secretary-General for Peace-keeping Operations), his Special Representative and the Force Commander were all deeply reluctant to use air power against the Serbs for four main reasons. We believed that by using air power against the Serbs we would be perceived as having entered the war against them, something not authorized by the Security Council and potentially fatal for a peace-keeping operation. Second, we risked losing control over the process - once the key was turned we did not know if we would be able to turn it back, with grave consequences for the safety of the troops entrusted to us by Member States. Third, we believed that the use of air power would disrupt the primary mission of UNPROFOR as we then saw it; the creation of an environment in which humanitarian aid could be delivered to the civilian population of the country. Fourth, we feared Serb reprisals against our peacekeepers." (SR para. 482).


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use of force' in the wake of the hostage crisis would create the conditions in which we would then always be 'stared down by the Serbs/149 The eventual fall of Srebrenica was partly televised in the grim pictures of Dutchbat being "hopelessly outnumbered and outgunned"150 assisting in bringing Bosnians from the UN compound to buses. Although they tried to keep track of the civilians by names and escorting buses, they were quickly overburdened and seem to have lost their overview. Information on the ground relating to the scope and intensity of the killings was lacking at this time. It was only later on, that the United States provided satellite images showing the sites of suspected mass graves. After the fall of Srebrenica, the crucial turning point in the attitude of the UN and Member States towards the use of force came when the Markale marketplace was shelled once again. Operation "Deliberate Force" then began on 30 August, just when most of the Blue Helmets were withdrawn from exposed sites from within the country. At this time the line between peace-keeping and peace enforcement at least for the Secretariat was still valid.151 On the other hand a spokesman for UNPROFOR said that the Force was now engaged in "peace enforcement" and the commander stated: "As a result of our enforcement action, UNPROFOR abandoned its peace-keeping mission — at least in the Sarajevo area. We remain, for the time being, in the position of combatants: coercing and enforcing our demands on the BSA." Consequently he asked for new rules of engagement based on the conviction that "we need to be prepared to fight".152 The Dayton peace process and the subsequent deployment of IFOR/SFOR (Implementation/Stabilization Forces) spared the UN the effort of harmonizing the different interpretations concerning the use of force. Based on the Rwanda and Srebrenica experiences, the BR formulates a central principal for further UN action: "There are many tasks which United Nations peace-keeping forces should not be asked to undertake 149 150

151 152

SR para. 483. Urquhart, see note 7. Boutros-Ghali and the Force Commander had asked for about 34.000 troops for the protection of the safe areas. The Security Council authorized a mere 7.600 of which only 4.800 where deployed when the fall of Srebrenica occurred. Military rationale would even have argued for a strength of about 50.000 troops. At the fall of Srebrenica 300 lightly armed blue helmets faced 15.000 heavy armed Bosnian Serbs. Cf. Eisele, see note 16,171-177. SR para. 445. Smith cited according to Shawcross, see note 2,160. See also SR para. 454.

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and many places they should not go. But when the United Nations does send its forces to uphold the peace, they must be prepared to confront the lingering forces of war and violence, with the ability and determination to defeat them."153 The dilemmas of UN peacekeepers experienced in Rwanda and Srebrenica form the background against which the report calls for a doctrinal shift in the application of force: "This means that United Nations military units must be capable of defending themselves, other mission components and the mission's mandate."154 In this context it is interesting to note that there is reason to support the view that Hammarskjold originally did not want to have self-defence restricted to cases of an attack on UN personnel or troops. Oscar Schachter who had advised Hammarskjold on some of the questions relating to troop status recalls that Hammarskjold insisted "to include the defense of decisions as well as self-defense in the criminal law sense of somebody being shot at in being able to use arms."155 And starting with ONUC (United Nations Operation in the Congo) which was partly based on Chapter VII measures by the Security Council,156 there have been further cases where defence of the mandate was agreed on.157 Hammarskjold already in his UNEF I Report took the stand that "self-defence" covered the defence of the force's mandate as long as troops did not engage in taking the initiative with hostile intentions.158 153 154 155

156 157 158

BRpara.l. BR para. 49. O. Schachter, "Interview", United Nations Oral History Programme 1985, 13. Ratner, see note 10,232. Goulding, see note 22,455. In his Report on UNEF I Hammarskjold dealt with open questions relating to the authority of UNEF I "to fire during darkness at infiltrators approaching the line from either direction, which would be somewhat broader than its unquestioned right to fire in self-defence" (678). In his Summary Study of 9 October 1959, in: CF IV, see note 94, 251 he then argued: "UNEF troops have a right to fire in self-defence. They are never to take the initiative in the use of arms, but may respond with fire to an armed attack upon them, even though this may result from a refusal on their part to obey an order from the attacking party not to resist; a proper refusal, since they are to take orders only from the Commander. UNEF is authorized to apprehend infiltrators and persons approaching the demarcation line in suspicious circumstances." M. Goulding, "The Use of Force by the United Nations", International Peacekeeping 3 (1996), 8 et seq., cites UNEF II as further evidence when in 1973 self-defence was clearly linked with the execution of the mandate.


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But the BR's recommendations not only point to a (somewhat forgotten) re-consideration of "classical peace-keeping". In recent years the scope of the actions possible under mandate defence based on Chapter VII resolutions is much wider and more explicit causing some observers to speak of Chapter VI3/4.159 The BR supports this development and argues even further: "Rules of engagement should not limit contingents to stroke-for-stroke responses but should allow ripostes sufficient to silence a source of deadly fire that is directed at United Nations troops or at the people they are charged to protect, and, in particularly dangerous situations, should not force United Nations contingents to cede the initiatives to the attackers."160 This ties in with the above mentioned "witness principle" and has direct consequences for the Force's structure: "It means that mandates should specify an operation's authority to use force. It means bigger forces, better equipped and more costly, but able to pose a credible deterrent threat, in contrast to the symbolic and nonthreatening presence that characterizes traditional peace-keeping."161 It was the Danish contingent of UNPROFOR which already in 1994 secured its humanitarian convoys with heavy tanks — a strategy that went beyond the UN rationale at the time but proved successful and served as a model for the relatively strongly armed capacities of UNTAES (United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium).162 Once again, it should be noted that these observations will not apply to all future peace-keeping operations; there may be more "classical" and even intra-state bufferfunction forces. But the problems faced by the three reports occur (rather frequently) in new types of environment and conflict patterns. Recommendations in these directions would easily recall Brian Urquhart's warning that "(a) peace-keeping force which descends into the conflict may well become part of the problem instead of the solution to it."163 Urquhart's successor in the responsibility for peace-keeping operations, M. Goulding, also argued for various conditions which should be met in order to successfully resort to the use of force, e. g. to overcome obstruction of humanitarian deliveries or enforce ceasefires: evident military superiority, readiness to use force in proportion and 159

160 161 162 163

This term is used for example by L. Gordenker/ T.G. Weiss, "The Collective Security Idea and Changing World Politics", in: T.G. Weiss (ed.), Collective Security in a Changing World, 1993,15. BR para. 49. BR para. 51. Cf. Eisele, see note 16,107. Urquhart, see note 101,201.

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against any party concerned as well as absence of further (political) mandates which in the end depend on the continuing commitment of Member States.164 Apart from Goulding's conditions, any approach to re-define the scope of force in UN peace operations — on the assumptions of circumstances that would vindicate it — requires serious changes and improvements both at the level of Member States and the organization itself. What kind of demands have to be met by the peacekeeping infrastructure on various levels in order to cope with the transformation of the consent, impartiality and force as depicted above?

IV. Responding to Challenges: Improving Capacities, Resources and Commitment The reports offer a wealth of recommendations and suggestions addressed not only at the institutional setting of the UN but also at Member States and primarily at the members of the Security Council. These recommendations again tie in with the legal, operational and political conditions for the successful conduct of a peace-keeping operation outlined above. They will be dealt with separately.

1. Proposed Changes at the Level of the Organization The analysis and recommendations concerning the United Nations organization as such can be subdivided into two fields: the problems relating to command, control and communication in peace-keeping operations and the broader proposals for reform of the institutional setting and administrative structures of the Secretariat. a. Improving Command, Control and Communication As was described in the development of UNEF I, the unity of command that was to be established under exclusive United Nations authority had to be created by means of improvisation and right from the beginning encountered the difficulties of placing diverse national troops under a single command. In the case of Suez, however, this problem — although it had to be managed for the first time — did not 164

Goulding, see note 158, 16-18.


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evolve into a major stumbling-block for the operation. With the variety of national interests at stake and the diversification of tasks and functions and the experience gathered over time, the command and control problem stayed on the agenda of peace-keeping operations. Again, the severe test of the very principles of peace-keeping in Srebrenica and Rwanda highlighted an aspect that for most operations did not play a dramatic role. The SR for example concludes that there were "command-and-control-problems from which UNPROFOR suffered throughout its history".165 Concerning the communication problems within the United Nations, the cable by UNAMIR commander Dallaire probably is one of the most striking examples. His request for the protection for the informant, who informed him about the planned genocide166 was sent to New York on 11 January and there went to the Military Adviser of the Secretary-General (Boutros-Ghali claims to have learned of the cable only three years later).167 It was also seen by then Under-SecretaryGeneral Kofi Annan and his Assistant-Secretary-General. Annan's first reaction urged for caution and restraint. With a further telegram Dallaire was reminded that despite mounting evidence of the informant being trustworthy, an operation to intervene and take measures against the plot would go beyond the mandate of UNAMIR.168 Instead of UN action the information was shared with Belgium, France and the United States in order to collectively convince President Habayarimana of the threat portrayed by the informant's testimony. But Habayarimana did not show himself much impressed. As has been noted above, the inquiry found reason for a restrictive reading of the mandate excluding forceful action against the plot. But at the same time it "believes serious mistakes were made in the follow-up to the cable."169 This not only points to the responsibilities of Member States: much the same as the commander of UNPROFOR in Yugoslavia, Dallaire in November 1993 had issued a draft on Rules of Engagement for UNAMIR to be approved by the Secretariat including the use of force in cases of specific crimes.170 His draft never received an answer and later it became

165 166 167 168 169 170

SR para. 471. RR page 10. Boutros-Ghali, see note 2,130. RR page 11. RR page 34. RRpage9.

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clear that "Headquarters did not have a procedure in place for the formal approval of draft Rules of Engagement."171 The difficulties of a unified command then became obvious with the beginning of the genocide and the subsequent mission to evacuate inhabitants from particular countries. In one remarkable incident troops from Bangladesh did not let their Belgian colleagues into a stadium for refuges.172 The presence of evacuation troops under national command and UN peacekeepers from the same country further complicated matters. Although the report acknowledges "courageous acts" by some troops, at the height of the crisis, UNAMIR was judged to be "not functioning as a cohesive whole": "(...) consistent testimony points to a lack of political leadership, lack of military capacity, severe problems of command and control and lack of coordination and discipline".173 The BR in what seems to be a direct reference to this kind of problem argued: "Troop contributors must ensure that the troops they provide fully understand the importance of an integrated chain of command, the operational control of the Secretary-General and the standard operating procedures and rules of engagement of the mission. It is essential that the chain of command in an operation be understood and respected, and the onus is on national capitals to refrain from instructing their contingent commanders on operational matters."174 But the "chain of command" in Srebrenica for example had its own pitfalls. Concerning the use of air power the story of Srebrenica can be told as a continuous delay caused by rather unimaginable deficits in command and communication. There has been much criticism of the appropriateness of the "dual-key" structure for the approval of such strikes which required both the United Nations and NATO to agree on such a move. At a closer look the coordination of NATO and the United Nations was not that problematic apart from the different approaches described above. What was adding to this problem of coordination was that the UN "key" turned out to be a whole bunch of keys within the military hierarchy of UNPROFOR/UNPF. When the attack on Srebrenica started on 6 July, the Dutchbat commander asked for close air support after Bosnian Serbs repeatedly fired directly at a UN observation post. The chain of command that had to be observed in this case illustrates the difficulties of command and control: the Com171 172 173 174

RR page 35. RR page 36. RR page 30. BR para. 267.


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mander in Srebrenica had to contact the UNPROFOR commander for the Sector North East in Tuzla who (if he agreed with the request) would have to contact the UNPROFOR commander in Sarajevo who, at the time, was on leave. His deputy in charge discouraged the request because it — in his view — did not fulfil the criteria for close air support.175 Even if he had consented with the request he would have had to transmit it to the UNPF Commander in Zagreb. He then would have had to recommend close air support to Akashi who eventually would have to ask Secretary-General Boutros-Ghali to decide the matter before it was NATO's turn to implement the request.176 But on that day, the civilian side of UNPROFOR, the UN Secretariat in New York as well as NATO did not even know of a request and consequently held a totally misconceived view of the situation with disastrous consequences on the ground. The Dutchbat commander repeated his request on the evening of 7 July asking for "assistance by all means: ground and air"177 but this request, for some reason, was not put through to Zagreb. Meanwhile, the Blue Helmets found themselves right in between the conflicting parties with Serbs in front and Bosnians behind their observation post shooting at each other. The UNPROFOR chief of staff on 8 July once again turned down the request for close air support on the assumption that the Bosnian Serbs did not want to take the town. Dutchbat received orders to withdraw rather than to engage in combat. The Serbs meanwhile took over further observation posts and the weapons of the peacekeepers. Being confronted with the advancing Serbs and defending Bosnians behind them, even withdrawal was not risk-free. The UNPROFOR commander on leave was recalled on 8 July when still no information of the events had reached New York. Further Dutchbat troops were overrun and disarmed and the Bosnian Serbs forced them to leave the combat zone.178 On 9 July the UNPROFOR commander in Sarajevo handed in a written request for close air support to his superior, the UNPF Force Commander in Zagreb. The re175 176

177 178

SR para. 243. Boutros-Ghali had largely delegated his authority to Akashi and only after Srebrenica delegated his authority further to the UNPF commander. Cf. Boutros-Ghali, see note 2,241. SR para. 249. The responsible military commander, General Tolimir, made a number of cynical comments on their status and whereabouts while at the same time denying that his troops were in offensive action in Srebrenica.

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quest also included information on possible targets.179 When finally all preparations for the close air support were in place, the Dutchbat commander who initially had pledged for air support expressed doubts because of the extent that the Bosnian Serb Army had moved forward into Srebrenica thus risking the lives of not only his troops but also those of the civilians in Srebrenica. At the same time in New York, a representative of the Secretary-General180 briefed the Security Council but his report was based on wrong information, namely that the attack had stopped. In Srebrenica the Dutch soldiers, from their blocking position, fired over the heads of the advancing Bosnian Serbs but to no avail since they were eventually outflanked and had to fall back. On 10 July, the request for close air support still was not decided. NATO planes were on stand-by, but the Force Commander said he did not have targets for them. When he learned of the concerns of Dutchbat that air strikes might affect civilians and UN personnel, he contacted the Netherlands Ministry of Defence181 which did not claim any restrictions and said it would support all appropriate action. After this further consultation it was too dark for air strikes and they were postponed till the following morning.182 But on the morning of 11 July the support was further delayed because there was uncertainty in Zagreb as to whether the request of Dutchbat was still valid.183 By the time Zagreb had double-checked on this, NATO planes had to refuel. When four hours later, the planes were ready again, the Serb flag already had been raised in suburbs of Srebrenica184 and the Bosnian Serbs immediately threatened that they would shell the town and especially places were large numbers of people had assembled around the UN personnel, in a "sitting duck position".185 By then the Netherlands Ministry of Defence also had changed its mind and now asked for the ending of close air support. Once again as in Rwanda, a national request decided the action of the UN operation as a whole, but this came only after the UN command had missed the opportunity to act. The above outlined difficulties concerning the communication within an operation as such might have had less dramatic consequences 179 180 181 182 183 184 185

SR para. 273. SR para. 282. SR para. 287. SR para. 295. Ibid. SR para. 304. SR para. 315.


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if, from the very beginning, in Rwanda as well as in Srebrenica the Member States had shared the information they had from their respective intelligence services. The SR bitterly complains about the unwillingness of those very states that were shaping the course of action for United Nations peacekeepers to adequately share their nationally acquired intelligence information with the organization: "This failure of intelligence-sharing was also not limited to the fall of Srebrenica, but an endemic weakness throughout the conflict, both within the peacekeeping mission, and between mission and Member States."186 The Secretary-General in particular pointed to the fact that the attack on the safe area came as a surprise for the UN: "I can confirm that the United Nations, which relied on Member States for such intelligence, had no advance knowledge of the Serb offensive. Indeed, the absence of an intelligence-gathering capacity, coupled with the reluctance of Member States to share sensitive information with an Organization as open, and from their perspective, as 'insecure* as the United Nations, is one of the major operational constraints under which we labour in all our missions."187 The BR in this context recommends that the SecretaryGeneral should establish within a special unit for information and strategic analysis the Executive Committee on Peace and Security (ECPS) because at the moment there is a lack of "significant knowledge generation and analytic capacity" without which the Secretariat will remain an reactive institution.188 This leads to the concrete reform measures and recommendations concerning peace-keeping infrastructure which make up the biggest part of the BR. b. Reform of Peace-keeping Infrastructure The BR offers a whole range of concrete administrative and operational reform measures for the peace-keeping infrastructure at UN Headquarters189 which cannot be dealt with in detail here. Summarizing, one could arrange the various proposals into four groups of measures aiming at (a) enhancing the speed of UN action, (b) increasing the financial resources for peace-keeping, (c) improving coordination and 186 187 188 189

SR para. 474. SR para. 486. BR para. 67. Cf also J.O.C. Jonah, "The Management of UN Peacekeeping", in: I.J. Rikhye/ K. Skjelsbaek (eds), The United Nations and Peace-keeping. Results, Limitations and Prospects: the Lessons of 40 Years of Experience, 1990, 75 et seq.

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management practices as well as (d) adjusting to new demands in the area of peace building. A first group of reform measures aims at enhancing the speed and quality of UN action. According to the BR, the UN should define rapid and effective deployment capacities by specific time frames: full deployment of a traditional peace-keeping mission within 30 days and 90 days for a complex operation. Member States for this purpose are encouraged to form several coherent brigade-size forces, with necessary enabling forces, ready for effective deployment, within the context of the UN Stand By Arrangement System. There should be lists of military and police officers as well as experts and civilian specialists available.190 Troop contributing countries that cannot meet the terms of the Memoranda of Understanding, should so indicate to the UN and should refrain from deployment. The Secretary-General should be given the resources and support needed to assess potential troop contributors preparedness prior to deployment.191 Addressing the lack of coherence in a number of missions, the report states that in order to function as a coherent force, the troop contingents themselves should at least have been trained and equipped according to a common standard, supplemented by joint planning at the contingents command level. A second group of measures deal with the financial resources for peace-keeping. In the face of the above described pre-deployment activities it recommends that the ACABQ approves the commitment of up to US$ 50 million from the Peace-keeping Reserve Fund "once it became clear that an operation was likely to be established" and also that the level of procurement authority be increased.192 As regards preliminary planning, the Report also calls for the Secretary-General to be given the resources to conduct a "preliminary site survey" (BR para. 58). An interesting use of further financial resources is argued for in the context of peace-building: "Effective peace-building requires active engagement with local parties, and that engagement should be multidimensional in nature. First, all peace operations should be given the capacity to make a demonstrable difference in the lives of the people in their mission area, relatively early in the life of the mission. The head of the mission should have authority to apply a small percentage of mission funds to 'quick impact projects' aimed at real improvements in 190 191 192

BR para. 96. BR para. 109. BR para. 169.


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quality of life, to help establish the credibility of a new mission." (BR para. 37). This in a way echoes the Hammarskjold concern that UNEF got the "start it deserves" and may be looked at "the right way". But the most dramatic plea regarding the financial aspect of peace-keeping is the proposal to include the expenses for peace-keeping into the regular budget of the organization:"In general, there is a need to rethink the historically prevailing view of peace-keeping as a temporary aberration rather than a core function of the United Nations."193 With regard to finances, the Report "therefore recommends that Headquarters support for peace-keeping be treated as a core activity of the United Nations, and as such that the majority of its resource requirements be funded through the mechanism of the regular biennial program budget of the Organization."194 A third group of measures aims at improving coordination and management within the administrative structure of the Secretariat. The report makes an urgent plea for a substantial improvement and enlargement of the supporting structures: "No national government would send 27.000 troops into the field with just 32 officers back home to provide them with substantive and operational military guidance. No police organization would deploy 8.000 police officers with only nine headquarters staff to provide them with substantive and operational policing support" (BR para. 181). Stressing the primary importance of the Department of Peace-Keeping Operations (DPKO) consideration should be given to increasing the number of Assistant-SecretariesGeneral from two to three.195 The Panel's recommendations, at the same time, introduce a new flexible way of organizing administrative structures for peace-keeping missions, the Integrated Mission Task Forces (IMTF): "Task Force Members should be formally seconded to IMTF for such duration by their home division, department, agency, fund or program. That is, an IMTF should be much more than a coordinating committee or task force of the type now set up at Headquarters. It should be a temporary but coherent staff created for specific purpose, able to be increased or decreased in size or composition in response to mission needs."196 According to this scheme, the primary administrative structure would no longer be regional. Traditional peacekeeping operations could be regrouped into one IMTF, while large and 193 194 195 196

BR para. 133. BR para. 193. BR Executive Summary, x. BR para. 209.

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complex operations would make up for a separate IMTF. The Panel directly builds on the management reforms initiated by Annan and the reform of the peace-keeping sector is inherently linked to the overall reform of the organization. Finally, the panel is convinced that the necessary people will only be attracted to the UN if its system of recruitment and career prospects is profoundly transformed. Generally speaking, the report hints at the deficits of a recruitment system that gives undue consideration to diplomatic or regional criteria.197 The fourth group of measures addresses the variety of new tasks put before UN missions. In one of the rather rare references to the "Agenda for Peace", the BR takes over the definition that "United Nations peace operations entail three principal activities: conflict prevention and peacemaking; peacekeeping and peace-building". The latter is a strong concern of the Panel. Police forces in this respect should take on special responsibilities and the report calls for a "doctrinal shift in the use of civilian police and related rule of law elements in peace operations...".198 The report then goes a long way to deal with the multitude of demands which might come up together with post conflict peacebuilding.199 The Panel undoubtedly expresses reservations in this respect speaking of the "the larger question of whether the United Nations should be in this business at all, and if so whether it should be considered an element of peace operations or should be managed by some other structure."200 Concerning the question of the "post conflict applicable law" the Report recommends convening a panel of international experts to evaluate the feasibility and utility of developing an interim legal code for the use by such operations based on agreed international standards pending the re-establishment of local rule of law.201 Far-reaching as they are, the Panel believes that its recommendations "balance principle and pragmatism" and constitute "the minimum threshold of change needed to give the United Nations system the opportunity to be an effective, operational, twenty-first century institu197 198 199 200 201

BR para. 95. BR Executive Summary, ix. BR para. 77. BR para. 78. BR para. 82. In this context, the report further states: "Property law would probably remain beyond reach of such a 'model code', but at least an operation would be able to prosecute effectively those who burned their neighbours' homes while the property law issue was being addressed." (BR para. 82)


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tion."202 For these recommendations to become reality they, to a large extent, need the cooperation and approval of Member States. But the responsibility of Member States does not exhaust itself in supporting reform measures as will be outlined below.

2. Proposed Changes at the Level of Member States Time and again, fundamental problems that arose in the field could be traced back to inadequate orientation and supplies from Member States. Both the Srebrenica and Rwanda Report, while not hesitating to identify the responsibility and failures of the Secretariat, also place a decisive amount of responsibility on their action or inaction. Criticism centres on the members of the Security Council which in various ways fell short of their obligation for international peace and security. This, of course, has to do with different national attitudes and interests in the conflicts. In the case of the former Yugoslavia, the Security Council was in many ways divided: there was not only Russia which for a long time — much the same as China — opposed too tough "interventionist" measures in general and too strong condemnations of the Serbs.203 The dividing line between the western powers and Russia/China was further complicated by a majority of the non-aligned and especially Muslim countries definitely taking sides with the Bosnians. They favoured lifting the arms embargo and were ready to support UN action to reverse Bosnian Serb aggression. Amidst these rudiments of old conflict-lines and conflicting favours, another faultline had to be observed and divided the western countries (France and the United Kingdom against the United States) themselves: "Those countries which opposed lifting the arms embargo committed increasing numbers of troops to UNPROFOR, but resisted efforts to expand the UNPROFOR mandate in such a way as to bring the Force into direct military confrontation with the Bosnian Serbs. Those countries which favoured more robust action, but which did not have troops on the ground, sought pro202 203

BR para.7. Cf. S. Lavrov, "The Russian View of Peace-keeping: international Activity for Peace", Brown Journal of World Affairs 3 (1996), 23 et seq. and B. Gill/ J. Reilly, "Sovereignty, Intervention and Peace-keeping: The View from Beijing", Survival 42 (2000), 41 et seq., which also sees some changes in perception.

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gressively to expand the UNPROFOR mandate and to use Force directly to confront the Serbs."204 Out of these differences and shifting majorities developed a huge number of resolutions whose half-measure character at the same time guaranteed the considerable frequency with which the Council adjusted and readjusted its course of action. More or less open-eyed the urge to do something did materialize in the deployment of a peace-keeping operation. Right up until the Dayton peace accord, different peace plans and initiatives with the aim of securing those very conditions that should have been the condition upon which any peace-keeping operation could be based, tried to catch up with the escalation of the military conflict. The safe area concept is another example of diverging attitudes among the Member States. The Security Council could only agree on the formulation to "deter attacks" on the safe areas.205 France had called for the inclusion of the phrase "to use all necessary means" in 1993.206 And Boutros-Ghali initiated a stronger stand, when in a Report of 9 May 1994 he changed the wording: "The conscious use of the word 'protect' was aimed at obtaining the Council's acquiescence in a broader interpretation of the safe area mandate than the initial resolutions had warranted."207 But even when wording got tougher, the results remained discouraging: "Chapter VII of the Charter was invoked with increasing frequency, though often without specifying what that implied in terms of UNPROFOR operations."208 It is not a great surprise that subtleties of a diplomatic game were not compatible with the situation on the ground especially when it had no effect in terms of augmenting strength and resources. But the effect on the parties involved was similar. At some stages the Council devaluated its own action by stating that the very resolutions it had just released could easily be supplemented by further moves and did not rule out any future op204

205 206 207 208

SR para. 43. Boutros-Ghali, see note 2, 87 indirectly criticizes the US attitude in this context: "To some observers at the United Nations, it seemed that Washington had devised a way to gain domestic political benefit from tough talk about air strikes, knowing that it was shielded from acting because its European allies would never agree to put their personnel serving with the United Nations in Bosnia in danger." SR para.3. SR para. 72. SR para. 150. SR para. 43.


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tions — so apparently one could interpret some kind of further leeway regarding the actions of the parties concerned. Concerning lack of commitment, difficulties resulting from ambiguous wording and the least-common-denominator approach, the Rwanda experience in many ways paralleled the developments during the debates on the former Yugoslavia. A particular difficulty of the Council sessions during the Rwanda conflict was the fact that Rwanda was a member of the Security Council at the time, which led to the situation whereby only one of the conflicting parties took part in the deliberations on United Nations action. A further distinctive feature of Security Council action was the shadow of Somalia that loomed over the discussions. The Inquiry makes reference to the UN commission of inquiry for Somalia which stated that "the UN should refrain from undertaking further peace enforcement actions within the internal conflicts of States".209 When the crisis finally broke out, the UN effort was not only downsized, but the role of the United Nations more generally was sidelined: "Thus the lack of political will to react firmly against the genocide when it began was compounded by a lack of commitment by the broader membership of the United Nations to provide the necessary troops in order to permit the United Nations to try to stop the killing."210 Plans on the deployment of a UN force in a hostile environment were discussed, but preparations for that did not get far because of the slow reaction to a plea for troop contributions, so that the Security Council fell back on a French proposal to insert an interim force which was mandated as a Chapter VII measure later known as "Operation Turquoise". The report notes: "The Inquiry finds it unfortunate that the resources committed by France and other countries to Operation Turquoise could not instead have been put at the disposal of UNAMIR II."211 The aversion to the word "protect" in Yugoslavia was echoed by the aversion to the word "genocide" in Rwanda. Whereas for Srebrenica the conscious use of "protect" would have implied actual military action, the reference to "genocide" had a specific legal implication because the Genocide Convention of 1948 held in store the obligation to act against the emergence of such situations. In the words of the Inquiry: "Arguably, in this context, the members of the Security Council have a 209 210 211

RR page 41. RR page 25. RR page 49.

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particular responsibility, morally if not explicitly under the Convention to act against a situation of genocide."212 The report consequently put the blame on the Council for the "delay in identifying the events in Rwanda as a genocide" and chose unambiguous language to express its evaluation: "The overriding failure in the response of the United Nations before and during the genocide in Rwanda can be summarized as a lack of resources and a lack of will to take on the commitment which would have been necessary to prevent or to stop the genocide."213 The BR for its part draws unambiguous conclusions reflecting both the Rwanda and Srebrenica problems: "The Secretariat must tell the Security Council what it needs to know, not what it wants to hear."214 The crucial link of a decision on a resolution and the necessary means to fulfil that resolution which appeared as a major problem in Rwanda and Yugoslavia causes the Panel to recommend a significant transformation in the procedure of the Security Council: "The Panel is of the view that, once realistic mission requirements have been set and agreed to, the Council should leave its authorizing resolution in draft form until the Secretary-General confirms that he has received troop and other commitments from Member States sufficient to meet those requirements."215 The overall aim of this procedure would be to avoid "commitment gaps"216 by Member States that ultimately will affect the credibility of the organization. To facilitate this aim, the report urges again to institutionalize the interaction of troop contributing countries and the Security Council.217 This recommendation leads back to Ham-

212 213 214

215 216 217

RR page 38. RR page 30. BR Executive Summary, x. The wording later on is more diplomatic: "In advising the Council on mission requirements, the Secretariat must not set mission force and other resource levels according to what it presumes to be acceptable to the Council politically." (BR para. 59). BR Executive Summary, x. BR para. 61. "Troop contributor advice to the Security Council might usefully be institutionalized via the establishment of ad hoc subsidiary organs of the Council, as provided for in Article 29 of the Charter. Member States contributing formed military units to an operation should as a matter of course be invited to attend Secretariat briefings of the Security Council pertaining to crises that affect the safety and security of the mission's personnel or to a change or reinterpretation of a mission's mandate with respect to the use of force." (BR para. 61).


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marskjold's institution of the Advisory Committee in the Suez crisis and offers a starting point for some concluding remarks.

V. Conclusion: Building on Experience The conclusions from the experience at Srebrenica and Rwanda as well as the recommendations of the three reports point to manifold directions and identify a whole set of reform measures. The Suez experience and an analysis of the way the Hammarskjold Secretariat framed constitutive principles for peace-keeping could be used as a critical scale to measure the more recent failures, achievements and challenges of peacekeeping. Even if there has been a fundamental change in scope and content of these principles they are still a useful analytical tool to illustrate the difficulties UN peace-keeping encountered in the 1990s. The primary difference between classical peace-keeping and new challenges as confronted in Srebrenica and Rwanda may be that the relatively clear-shaped principles and the political framework of interstate conflicts all show themselves in a different light in intra-state conflicts. "With the benefit of hindsight, one can see that many of the errors the United Nations made flowed from a single and no doubt wellintended effort: we tried to keep the peace and apply the rules of peacekeeping when there was no peace to keep. Knowing that any other course of action would jeopardize the lives of the troops, we tried to create — or imagine — an environment in which the tenets of peacekeeping — agreement between the parties, deployment by consent, and impartiality — could be upheld. We tried to stabilize the situation on the ground through cease-fire agreements, which brought us close to the Serbs, who controlled the larger proportion of the land. We tried to eschew the use of force except in self-defence, which brought us into conflict with the defenders of the safe areas, whose safety depended on our use of force."218 But new types of conflicts not only challenged the principles of UN peace-keeping but also the political prerequisites. As has been shown in the case of Suez, UN involvement materialized in order to prevent the fervour and sparks of a local or regional conflict from igniting the explosive atmosphere of bloc-power rivalry. Peace-keeping thus func-

218

SR para. 488.

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tioned primarily as a "shock absorber".219 This meant, that a failure or even abandonment of a given "small" conflict in many cases would automatically have meant a failure in preventing greater international tensions. It may be that someday the simultaneous overburdening and eventual lack of will and resources in peace-keeping operations during the 1990s may be attributed to the consequence that a failure in a local or intra-state conflict did not so manifestly threaten own national interests as did inter-state conflicts in the fifties and sixties. The "enlightened" self-interest that Member States have in participating and supporting UN peace-keeping may not be so easily justified in some cases. At the same time this effort may just as well be regarded as a litmus test on how far talks of globalization can be substantiated with political action in the field of international peace and security that goes beyond a reflex to momentarily paying tribute to the CNN factor on national electorates. It should not be underrated, however, that with the lack of respect and authority for United Nations personnel (both civilian and military) and the simultaneous increase in situations where the use of force may become necessary, peace-keeping missions have become even more risky and dangerous undertakings. All this, of course, is a far cry from the "most popular army in history" of which Bunche spoke. And it is typical of the BR not to shy away from stating the consequences of such an approach: "Willingness of Member States to contribute troops to a credible operation of this sort also implies a willingness to accept the risk of casualties on behalf of the mandate."220 But the report at the same time recognizes that "memories of peacekeepers murdered in Mogadishu and Kigali and taken hostage in Sierra Leone help to explain the difficulties Member States are having in convincing their national legislatures and public that they should support the deployment of their troops to United Nationsled operations, particularly in Africa."221 This, then, seems to be the singular most important "lesson learned" in the 1990s: after the events in Somalia,222 Member States did not show themselves inclined to start new missions in similar circumstances. But 219

220 221 222

Ryan, see note 16, 27. See also I.L. Claude Jr., "United Nations Use of Military Force", in: D.A. Kay (ed.), The United Nations Political System, 1967,201 et seq. BR para. 52. BR para. 105. V. Matthies, "Zwischen Retrungsaktion und Entmundigung. Das Engagement der Vereinten Nationen in Somalia", VN 41 (1993), 45 et seq.


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the "lesson" from one disaster in peace-keeping prepared the ground for another one. It is not only Boutros-Ghali who sees "a direct connection"223 between Mogadishu and Rwanda. The Rwanda Inquiry "finds the campaign to secure the complete withdrawal of UNAMIR difficult to understand".224 The reason of course was the shadow of Somalia that was present in the Council debates. In retrospect, it is even more disturbing to note that apart from a reluctance to send troops into high-risk situations, the financial costs of any operation made up a crucial argument in the debates.225 Somalia also brought about a fundamental shift in the U.S. attitude towards the United Nations226 that found a manifestation in "The Clinton administration's policy on reforming multilateral peace operations" or FDD 25 as it came to be known. This document allowed "only the easiest, cheapest and safest peace-keeping operations",227 thus effectively ruling out much of what would get on the future agenda of possible UN involvement. This change of policy is significant in that it severely limited U.S. support for UN peace-keeping — a condition that had already proved to be vital for UNEF I but that since then has even become more important because of the singular role of the United States in post Cold-War international relations. It remains to be seen how this change of policy will influence future UN efforts. The temporary cordial U.S.-UN relations that characterized the cooperation during the Suez crisis are clearly far away from the process of deterioration which Secretary-General Boutros-Ghali chose to make the leitmotif of his memoirs. With Kofi Annan in office, the working relations have been mended again228 — even with the chance of finally receiving the U.S. arrears in UN contributions. But the mate223 224 225 226

227 228

Boutros-Ghali, see note 2,129. RR page 37. Melvern, Council, see note 6,104. For a detailed account see M.G. MacKinnon, The Evolution of US Peacekeeping Policy under Clinton. A Fairweather Friend?, 2000 as well as I.H. Daalder, "Knowing when to say No: the Development of US Policy for Peace-keeping", in: Durch, see note 5, 35 et seq. and M. Knapp, "Die Macht der USA und die Moral der Staatengemeinschaft: Zur UN-Politik der Clinton-Administration", in: M. Berg et al. (eds), Macht und Moral Beitrage zur Ideologic und Praxis amerikanischer Aufienpolitik im 20. Jahrhundert. FS Knud Krakau, 1999,295 et seq. Boutros-Ghali, see note 2,134. See M. Frohlich, "The Old and the New UN Secretary-General", Aussenpolitik 48 (1997), 301 et seq.

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rial from the reports also offer consequences for the role of the UN Secretary-General in peace-keeping. The first thing to observe is that, unlike in Hammarskjold's days, the Secretary-General cannot possibly micro-manage all the operations under way. The vast amount of institutionalization of peace-keeping — which Hammarskjold in his days was highly skeptical of229 — is a natural development in this respect. Expectations of Member States, the constant threat of financial bankruptcy and the various calls for reform will guarantee that time does not allow for a special role at every mission by the Secretary-General of today. The establishment of a Deputy Secretary-General probably eases the burden placed upon him, but does not create a fundamentally different situation. So, for example the participation of the Secretary-General in Security Council sessions as often as possible emerges as one of the key duties of the Secretary-General. The representation even by people of the stature of a Special Political Adviser or representatives etc. cannot substitute his prominent role as embodiment of the institution as such. As has been shown, BoutrosGhali in various circumstances tried to push the international will to a more resolute answer. The method by which he pursued this aim - frequent reports that outlined different (but generally mutually exclusive) options on which Member States had to decide - certainly deserves credit. On the other hand, his absence from New York in the first weeks of the genocide in Rwanda230 led to a serious lack of information and diplomatic momentum. In particular, at the point when the strengthening of UNAMIR was debated, there seems to have been a lack of orientation as to which option the Secretary-General preferred. The RR concludes: "Although the Secretary-General has argued that he made his preference for strengthening UNAMIR clear through a statement by his spokesman to the press, the Inquiry believes that the Secretary-General could have done more to argue the case for reinforcement in the Council."231 Hammarskjold (with far fewer missions under his responsibility) not only participated personally to a greater extent in Security Council sessions. In various unofficial discussions in his office he probably would have outlined the UN preference which by the time of the Council session would most probably have been framed into a draft resolution. The Inquiry in a similar vein concludes: "BoutrosGhali was absent from New York during much of the key period of the 229 230 231

Urquhart, Life, see note 24,137. Cf. Melvern, Council, see note 6,108. RR page 37.


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genocide. The Inquiry understands that Secretaries-General cannot be present at every meeting of the Security Council. (...) However, the role of the Secretary-General in relation to the Council in true crisis situations such as that of the Rwandan genocide, is one which can only to a limited extent be performed by proxy. Without the opportunity of direct personal contacts between the Secretary-General and the Security Council as a whole, and with its members, the role of the SecretaryGeneral in influencing Council decision making cannot be as effective as if he were present."232 The era of such a prominent personal role233 as Hammarskjold played when bringing in the first peace-keepers to the spot or driving along demarcation lines may be over and would today merely create an even tighter schedule for the Secretary-General. The personal engagement by the Secretary-General is a precious asset that also can be devalued by over-emphasis. But there may be situations when the SecretaryGeneral probably will face events that call for his involvement although the risk of failure may be high. The plea of the Dutchbat commander in the crucial hours before the fall of Srebrenica at least seems to point in such a direction. Maybe a Secretary-General would not get even near the place where the principles of the international community are at stake; but even then such a situation would probably help to clarify the political and moral claims in a given conflict. In sum, all the information and recommendations in the various reports do not chart a definite course for the variety of present and future peace-keeping missions. While stressing the structural similarities between Rwanda, Srebrenica and even Suez, it has also become abundantly clear that every mission has its own special status, environment and "reality**. Annan concludes that "it is almost impossible to define a technique that has differed nearly every time that it has been practised."234 Therefore, it is likely that any peace-keeping effort will bring about hard choices to be made. Experiences in Rwanda and Srebrenica point to the fact that the detachment of the peacekeepers "remaining 232 233

234

RR page 48. Hammarskjold's role and his philosophy of the United Nations were deeply inspired by a variety of sources and personal convictions that he modeled to become a sort of political ethics to permeate the theory and practice of the United Nations. This aspect encompassing such diverse elements as Christian Mysticism, the philosophies of Albert Schweitzer, Martin Buber or Henri Bergson cannot be dealt with here. For further details see Frohlich, see note 23. Kofi Annan, see note 4,3.

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above the conflict"235 from the warring parties may perhaps not only be established by refraining from the use of force but also perhaps that there could arise situations where even disproportionate force could underline the fact that an attack on UN peacekeepers and the people the international community pledged to protect is not the same (or even less risky for the aggressor) as attacking the military units of its rival party. The experience of the NATO bombardments and action by the Rapid Reaction Force in Yugoslavia on the other hand cannot be read as an unambiguous proof of generally following this course of action. While the approach in the case of the former Yugoslavia seemed inevitable and paved the way to the Dayton peace accords, it also happened in the special circumstance that the UN peace-keeping force handed over to NATO after this escalation. But the crucial point for any use of force by peacekeepers is the question on how to get back to work with the parties once force has been applied with great intensity. Decisions in this context will inevitably have an ethical nature. The dilemma appears even more clearly with the SR hinting at the fact that UN inaction may not only have failed to prevent or hinder the planned massacre but may also have facilitated the realization of this plan.236 In this context three concluding observations can be drawn from the present analysis and comparison: First, peace-keeping is not scheduled to easily apply its constitutive principles without encountering conflicting choices between defending the mandate and not putting peacekeepers at risk, between saving lives and not supporting ethnic cleansing, between demilitarizing safe areas and depriving people of their right of self-defence, between offering face-saving compromise even for the "aggressor" party and not losing 235

236

B. Urquhart, "Mission Impossible", in: The New York Review of Books of 18 November 1999,28. "Documents later obtained from Serb sources appear to suggest that this assessment was correct. Those documents indicate that the Serb attack on Srebrenica initially had limited objectives. Only after having advanced with unexpected ease did the Serbs decide to overrun the entire enclave. Serb civilian and military officials from the Srebrenica area have stated the same thing, adding, in the course of discussions with a United Nations official, that they decided to advance all the way to Srebrenica town when they assessed that UNPROFOR was not willing or able to stop them** (SR para. 264). Later on the report states: "Information from Serb sources appears to suggest that the decision to kill the men of Srebrenica may have been taken only after the fall of Srebrenica." (SR para. 345).


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its own face or being humiliated by hostage-taking. It may also have to choose between providing humanitarian aid and not supporting criminal gangs which make a living out of the continuity of crisis and violence. Faced with hard choices like these a partial way out is offered by prevention. In this respect the above mentioned strengthening of the analytical and intelligence-gathering capacities of the organization is of vital importance. The RR in full acknowledgment of the difficulties UNAMIR faced when confronted with genocide strongly endorses plans for an early warning mechanism and an "action plan to prevent genocide".237 Secretary-General Annan's pleas for a "culture of prevention"238 therefore should not be misread as some illusionist formula. Prevention is a constitutive feature of any effort to breathe life into the concept of collective security by the United Nations.239 Again this effort can be traced back to Hammarskjold who conceptualized preventive diplomacy: "Corrective action, as you know, is infinitely more costly than preventive action."240 Second, peace-keeping means a fragile balance of ethical and legal principles based on the Charter kept alive by political and diplomatic support while partially employing military means. In order to keep the delicate equilibrium between principles and prerequisites, it has to work on improvisation and pragmatism. In that, it is as much a political as a military effort. As the case of Suez has already demonstrated, the problems, demands and commitments do not altogether cease but rather begin once the mission is deployed. The effort is not self-sustaining and neglect, erosion or absence of one of the principles or prerequisites cannot be compensated by abundance of others. Hammarskjold's prognosis that existence of "good faith" is irreplaceable urges for a constant need "of nurturing the political support".241 Otherwise, Boutros-

237 238

239

240

241

RR page 54. Cf. his speech before the Carnegie Forum on the prevention of deadly conflict Doc. SG/SM/6454 of 5 February 1998. The thought permeates his Annual Report for 1999, Doc. A/54/1. K. Dicke, "Bedeutungswandel kollektiver Sicherheit in der neuen Weltpolitik?", in: D.S. Lutz (ed.), Globalisierung und national* Souveranitat. FS Wilfried Rohrich, 2000, 399 et seq. See also M.S. Lund, "Underrating Preventive Diplomacy", Foreign Aff 74 (1995), 160 et seq. Document in the Manuscript Division of the Royal Library Stockholm: Secretary-General, Statement Committee of Experts 24 June 1960. B. Urquhart, "Peace-keeping: we need serious Rethinking", UN Chronicle 35 (1998), 36 et seq.

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Ghali's concern for orphan conflicts in world politics may be supplemented by orphan peace-keeping missions. Third, peace-keeping after Srebrenica and Rwanda cannot be conceptualized as the tool to bring about a new world order. Five years after his predecessor's "Agenda for Peace"242 Annan judged this document to come from a different time. Boutros-Ghali himself had made several adjustments to the original concept in his supplement to the agenda.243 The three reports analyzed above may well constitute an alternative "Agenda" building on experience. While not having all the answers for peace-keeping efforts they still offer a remarkable potential for orientation. "Srebrenica" in this respect does not denote "a village in Europe"244 but has become a landmark in the geography of "a vaguely defined no-man's-land lying somewhere between traditional peacekeeping and enforcement"245 much the same as "Rwanda" indicates "a turning point in United Nations peace-keeping".246 In other words, just as there is a "Mogadishu line" (which has been meticulously observed) there is also a "Srebrenica line" and a "Rwanda line" drawn by bitter political experience. It is by experience that a social institution like the United Nations develops its capacities and functions. As Hammarskjold argued in his 1959 Annual Report on the work of the organization: "The statement of objectives in the Charter is binding and so are the rules concerning the various organs and their competence, but it is not necessary to regard the working methods indicated in the Charter as limitative in purpose. Thus, they may be supplemented by others under the pressure of circumstances and in the light of experience if these additional procedures are not in conflict with what is prescribed. (...) In this respect, the United Nations, as a living organism, has the necessary scope for continuous adoption of its constitutional life to the needs."247

242

243 244

245 246 247

Doc. A/47/277 - S/24111 of 17 June 1992. See also T. G. Weiss, "Problems for Future U.N. Military Operations", in: Kiihne, Blauhelme, see note 16, 177 et seq. Doc. A/50/60 - S/1995/1 of 3 January 1995. F. Ajami, "The Mark of Bosnia. Boutros-Ghali's Reign of Indifference", Foreign Aff. 75 (1996), 162 et seq., (164) citing Boutros-Ghali. Ruggie, see note 3,26. RR page 39. Introduction to the Fourteenth Annual Report 20 August 1959, in: CF IV, see note 94,448-449.

State Cooperation with the International Criminal Tribunals for the Former Yugoslavia and for Rwanda Dagmar Strob* When establishing the International Criminal Tribunals for the Former Yugoslavia (Yugoslav Tribunal) and for Rwanda (Rwanda Tribunal) in 1993 and 1994, the United Nations Security Council was aware of the fact that the success of the Tribunals would depend primarily on the cooperation of national states with these Tribunals. The contributions of states to the Tribunals' investigations, and national assistance to international court proceedings were considered, and later proved to be, the key factor in fulfilling the Tribunals* mandate — the prosecution of violations of international humanitarian law committed during the conflicts in former Yugoslavia and Rwanda in the beginning of the 1990ies. Today, the Tribunals are fully operating, having overcome initial difficulties as well as several difficult interim problems. Even so, the cooperation of states remains an indispensable requirement for efficient proceedings of both Tribunals. This article focuses on state cooperation with the International Criminal Tribunals from the national perspective. State responsibilities, compiled under the heading "state cooperation" will be presented, followed by a presentation of the legal implications that these responsibilities hold for states. Finally, this paper will highlight both the implementation of these responsibilities into national law, as well as state willingness to cooperate with the Tribunals in practice thus far.

*

I am grateful for the helpful criticism and comments from Mate S. Johnson. 249

J.A. FroweinandR. Wolfram (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 249-283. © 2001 Kluwer Law International Printed in the Netherlands.

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I. Legal Authorization of the International Criminal Tribunals In response to the atrocities which accompanied the dissolution of the former multinational State of Yugoslavia beginning in June 1991 and the ineffectiveness of other measures to restore peace,1 the UN Security Council, decided in Resolution 808 (1993) to establish an international tribunal to prosecute the most serious violations of international humanitarian law committed during the Yugoslav conflict.2 It accordingly requested the Secretary-General to submit a report to the Council on all aspects of this matter, including specific proposals and appropriate options for the effective and expeditious implementation of the aforementioned decision.3 On 3 May 1993, the Secretary-General submitted a report4 which contained in its Annex a draft Statute for an International Tribunal for the Former Yugoslavia. This Statute was formally adopted in its entirety by Resolution 827 (1993). The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY) was called into being.5 The Security Council's decision to establish the Tribunal under Chapter VII had the advantage that it would be effective immediately and would create binding obligations for all states.6 This decision qualifies as a matter short of the use of armed force under Article 41 of the Charter. Although Article 41 does not expressly authorize the Security Council to establish a war crimes tribunal, the Charter has been inter-

1

See for example S/RES/743 (1992) of 21 January 1992 establishing the United Nations Protection Force (UNPROFOR) and S/RES/771 (1992) of 13 August 1992 where the Security Council condemned grave breaches of international humanitarian law, among others the so-called "ethnic cleansing". 2 S/RES/808 (1993) of 22 February 1993. 3 S/RES/808 (1993), para. 2. 4 Doc. S/25704. 5 S/RES/827 (1993) of 25 May 1993. In the following, the Tribunal will be referred to as Yugoslav Tribunal or, shortly, ICTY. 6 Arts 2 para. 6 and 25 of the Charter.

Stroh, State Cooperation with the ICTY and the ICTR

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preted as conferring on the Council all powers necessary to fulfill its responsibility for the maintenance of international peace and security.7 According to article 31 of its Statute, the ICTY has its seat at The Hague, the Netherlands. In September 1993, the Judges of the Tribunal were elected by the UN General Assembly according to article 13 para. 2 of the Statute. They held their first session in The Hague nearly two months later, on 17 November 1993. A short time later, in April 1994, the world witnessed another conflict in which provisions of international humanitarian law were blatantly disregarded. The fighting in Rwanda between members of the Hutu-dominated governmental party and members of the Tutsidominated Rwandan Patriotic Front (RPF) escalated, culminating in the mass killing of more than 1 million people over the next three months. More than two million Rwandans became refugees, many of whom sought shelter in neighbouring states.8 Since the mass killing of the Tutsi population had assumed the dimensions of genocide, the Security Council decided to establish another criminal tribunal charged once again with the prosecution of the most serious violations of international humanitarian law. The International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994 (ICTR), came into being by virtue of Resolution 955 (1994).9 Again, the Security Council acted under Chapter VII of the UN Charter.10 Annexed to Resolution 955 was the Statute of the Tribunal. 7

8

9 10

An instructive summary of the legitimacy of the Yugoslav Tribunal and the power of the Security Council to establish such tribunal is given by the Decision of the Appeals Chamber of the Yugoslav Tribunal of 2 October 1995, in the Case of Prosecutor v. D. Tadic, IT-94-1-72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction. Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, Doc. S/1999/1257 of 15 December 1999. S/RES/955 (1994) of 8 November 1994. In contrast to the Yugoslav conflict, which, after separation of several states from the former Federation, became an international conflict and therefore constituted a threat to international peace and security as defined by Article 39 of the UN Charter, see in this respect C. Greenwood, "The Devel-

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The provisions of the Statute of the ICTR (Rwanda Statute) are almost identical to those of the Statute of the ICTY (Yugoslav Statute), particularly in structural organization and procedure. Both Tribunals consist of three organs — the Registry, which is responsible for the administration and servicing of the Tribunal,11 the Chambers,12 and the Office of the Prosecutor which is in charge of investigations and the preparation of indictments.13 The few provisions on procedural law that are contained in the Statutes, are identical, too.14 They only provide for some basic rights of the accused. More specific provisions on procedural matters are to be found in the Rules of Procedure and Evidence (RPE) which were enacted by the Judges of the Tribunals according to article 15 of the Yugoslav Statute and article 14 of the Rwanda Statute. The provisions of the RPE of both Tribunals are for the most part identical, too.15 A special link between the International Criminal Tribunals is created by the Office of the Prosecutor and by the Appeals Chamber of the Tribunals. According to article 15 para. 3 of the Rwanda Statute, the Prosecutor of the ICTY also serves as Prosecutor of the Rwanda Tribunal. A similar provision is set out in article 12 para. 2 of the Rwanda Statute for the Appeals Chamber. Consequently, there is only one Prosecutor and one Appeals Chamber serving both Tribunals. The rules of international law applicable in armed conflict vary depending on whether the conflict is international or internal in character. The rules of law that govern an internal armed conflict are found primarily in common article 3 of the 1949 Geneva Conventions, which provide the minimum standard of conduct in such conflicts and in Ad-

11 12 13

14

15

opment of International Humanitarian Law by the International Criminal Tribunal for the Former Yugoslavia", Max Planck UNYB 2 (1998), 96 et seq., (113 et seq.). The character of the Rwanda conflict in contrast was a mere national one. Nevertheless, a threat to international peace and security could be justified with serious violations of human rights law, as well as with enormous streams of refugees heading for shelter in the neighbouring states of Rwanda. See article 11 of the Yugoslav Statute and article 10 of the Rwanda Statute. Ibid. See ibid, and in particular article 16 of the Yugoslav Statute and article 15 of the Rwanda Statute. See article 20 et seq. of the Yugoslav Statute and article 19 et seq. of the Rwanda Statute. The Rules are amended frequently. The author has used those of 14 July 2000 resp. 26 June 2000.


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ditional Protocol II to the Geneva Conventions. Out of that reason the Ratione Materiae of the ICTR covers genocide, crimes against humanity and violations of article 3 common to the Geneva Conventions of 1949 and of the Additional Protocol II, whereas article 2 of the Yugoslav Statute refers to Grave Breaches of the Geneva Conventions in general.16

II. Contents of State Cooperation 1. General Obligation to Cooperate In para. 4 of S/RES/827 (1993) and para. 2 of S/RES/955 (1994), the Security Council decided that: "all States shall cooperate fully with the International Criminal Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 (resp. Article 28) of the Statute... " Because of the binding nature of this provision, states are obliged to grant the International Tribunals any assistance they need. However, the founding Resolutions speak only in general terms about the duty of states to cooperate with the Tribunals. Specific responsibilities, compiled under the heading "cooperation", are delineated in the provisions of the Statutes and, more particularly, in the RPE. In contrast to the Statutes, the RPE are derivative law and, therefore, have no binding effect per se. However, insofar as they are in harmony with the Statutes, the RPE are likewise binding. Furthermore, in the case of the ICTY the obligation to cooperate also results from the General Framework

16

For the applicable law of the Rwanda Tribunal see D. Shraga/ R. Zacklin, "The International Criminal Tribunal for Rwanda", EJIL 7 (19%), 507 et seq. See also P. Akhavan, "The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment", AJIL 90 (1996), 501 et seq.

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Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement) and its Annexes, concluded in 1995.17 Within the Statutes, it is article 29 of the Yugoslav Statute and article 28 of the Rwanda Statute which are the central provision of state cooperation. These virtually identical provisions read as follows: "1. States shall cooperate with the International Tribunal ... in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. 2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to: (a) the identification and location of persons; (b) the taking of testimony and the production of evidence; (c) the service of documents; (d) the arrest or detention of persons; (e) the surrender or the transfer of the accused to the International Tribunal...." Para. 1 of arts 29 Yugoslav Statute and 28 Rwanda Statute merely repeats a general request for cooperation that is already mentioned in the founding Resolutions and affects every UN Member State. In contrast, para. 2 refers to requests addressed to individual states whose cooperation is sollicited on a case by case basis. The power of the Tribunals to issue orders and requests is not limited to those enumerated under para. 2; the Tribunals can request the help of states in any respect they consider necessary.18 The obligation to comply with such requests is equally incumbent upon any UN Member State receiving an order, regardless of the role it played during the conflict in former Yugoslavia or in Rwanda. Its neutrality or even its active participation in those conflicts has no bearing on a state's obligation to cooperate with the International Tribunals. It is a fundamental principle that international law can only prescribe the aim a state must accomplish; it may not prescribe the method 17

18

For the General Framework Agreement see inter alia P. Gaeta, "The Dayton Agreements and International Law", EJIL 7 (1996), 147 et seq. P. Akhavan, "The Yugoslav Tribunal at Crossroads: The Dayton Peace Agreement and Beyond", HRQ 18 (1996), 259 et seq. To discuss the General Framework Agreement would go beyond the scope of this article. E.g. Doc. S/25704, para. 125.


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or the means the state has to apply.19 A state usually has broad discretion to decide in what manner it will implement an international duty. Consequently, a state to whom a request for cooperation is directed by an International Tribunal is under strict obligation to comply, although its flexibility in implementing the request is preserved.

2. The Various Responsibilities of State Cooperation According to the provisions of the Statutes of the International Tribunals, state cooperation is mainly required in four areas: a.- State cooperation is required for the Prosecutor's pre-trial investigations, including production of evidence, conducting of on-site investigations, service of documents, questioning of victims and witnesses, and the identification and location of persons. b.- State cooperation is further required when it comes to the execution of the Tribunals' arrest warrants and transfer orders. c.-For the deferral of national court proceedings. d.- Finally, state cooperation is needed in enforcing the final sentences pronounced by the Tribunals. a. State Cooperation in Pre-trial Investigations According to para. 1 of arts 18 Yugoslav Statute and 17 Rwanda Statute, investigation and preparation of an indictment lies with the Chief Prosecutor and his or her Office. Like any authority charged with criminal investigation, the Prosecutor must collect evidence, interview witnesses, victims, and suspects, and conduct on-site investigations to prepare an indictment. Article 18 respectively 17 empowers the Prosecutor to conduct such investigations on his own account. Because this necessarily takes place on "foreign" soil, host states must defer their sovereignty in the field of criminal investigation to the Prosecutor, either by simple grants of permission or by direct delegation of these specific powers to the Tribunals. If required, the Prosecutor may solicit the assistance of the state authorities concerned. Whereas arts 29 Yugoslav Statute and 28 Rwanda Statute confer to the Tribunals' Chambers the 19

An exception from this rule is made when international law, in particular an international treaty, expressis verbis, prescribes the way an international duty is to be implemented.

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competence to address binding orders and requests to states, the Office of the Prosecutor is confined to seek national assistance in an informal way. Ideally, a state empowers its national authorities to comply with requests of the Office of the Prosecutor. If this is not the case, the Prosecutor must ask a Trial Chamber to formally request a state to bring about the cooperation of the authority concerned. Such formal requests states have to carry out according to para. 2 of article 29 Yugoslav and article 28 Rwanda Statute. In addition to the competences granted by the Statutes, Rule 39 (i) of both RPE enable the Prosecutor and his Office to summon suspects, victims and witnesses and to record their statements. Such competence is necessary and in harmony with the Statutes. The power to question witnesses, victims and suspects granted by arts 18 respectively 17 of the Statutes would be void if the Prosecutor could not put those persons under the obligation to appear before him or if he could not record their statements. According to Rule 39 (ii) of the Rules, the Prosecutor can undertake any other steps deemed necessary for completing the investigation and the preparation and conduct of the prosecution at the trial, including the taking of special measures to provide for the safety of potential witnesses and informants. To that end, the Prosecutor can seek not only the assistance of state authorities but also the assistance of any relevant international body, including the International Criminal Police Organization (INTERPOL).20 Rule 39 (iv) of the Rules reiterates the power of the Prosecutor to request orders from a Trial Chamber or a Judge; however, before an order can be issued, the indictment of the person concerned must be confirmed by a Judge.21 Since preparation for and confirmation of an indictment consumes valuable time, the Prosecutor risks losing both evidentiary material and suspects. Rule 40 of the Rules consequently empowers the Prosecutor to request in case of urgency a state to take provisional measures to safeguard investigation proceedings. If so requested, a state shall provide for the provisional arrest of a suspect, seize or safeguard evidence, and protect witnesses and victimes against injury or intimidation. Official requests for such provisional measures are just as binding on states as orders from a Trial Chamber under article 29 Yugoslav Statute and 28 Rwanda Statute. Nevertheless, provi-

20 21

Rule 39 (iii) of the Rules. See para. 2 arts. 19 Yugoslav Statute and 18 Rwanda Statute.


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sional measures should be requested only in a case of urgency, when the usual procedure could not be adhered to. b. Arrest and Transfer of Persons to the International Tribunals Another obligation incumbent upon states is as mentioned above to carry out arrest warrants and transfer orders. Procedural aspects are regulated by Rules 55 et seq. of the Rules. According to Rule 55 (D) RPE of the ICTY and Rule 55 (B) RPE of the ICTR an arrest warrant is transmitted by the Registrar of the respective Tribunal to the national authorities of the state in whose territory or under whose jurisdiction or control the accused was last known to reside, together with a statement of rights and cautions to be read at the time of arrest, in a language the accused understands. A state receiving an arrest warrant and transfer order is obliged to ensure that national authorities execute the order promptly and effectively.22 According to article 59 bis RPE of the ICTY, arrest and transfer orders can further be transmitted to international authorities or institutions with the capacity to search for and arrest accused persons. This provision was inserted during the 9th General Assembly of the Yugoslav Tribunal to enable an arrest and transfer order to be forwarded to the former Implementation Force (IFOR) and later to the Stabilization Force (SFOR), which were established by the General Framework Agreement for Peace in Bosnia and Herzegovina to safeguard the peace process in Bosnia and Herzegovina.23 Whether IFOR and SFOR were not only authorized but legally obliged to carry out an international arrest warrant of the Yugoslav Tribunal was heavily disputed, given the hesitation of IFOR to do so.24 The question remains academic, however, since, in practice, SFOR/KFOR demonstrated both a willingness and capacity to carry out such international arrest warrants. At the time of an arrest, a member of the Office of the Prosecutor may be present to guarantee that the rights of the accused are protected. This also prevents the accused from subsequently raising objections that could invalidate an indictment. Immediately following the arrest, national authorities must arrange for the transfer of the accused 22 23 24

See Rule 56 RPE. See note 17. See K. Ambos, "Zur Rechtsgrundlage der Festnahme mutmaBllicher Kriegsverbrecher durch die SFOR im ehemaligen Jugoslawien", Juristenzeitung 53 (1998), 887 et seq.

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through the Registrar of the respective Tribunal. Also involved in such arrangements are the national authorities of the Tribunals' host state.25 The accused remains in custody while these arrangements are made. Since the Statutes require that transfer is made without undue delay,26 any delay can only be accepted if the reason lies within the arrangements themselves, for instance if it turns out to be difficult to get a third state's permission to allow the accused to be transferred through its territory. Once the necessary arrangements are met, the Registrar informs the detention unit of the competent Tribunal of the day the accused will arrive. Rules 55 et seq. RPE only authorize the arrest and transfer of an accused person to the International Tribunals. A suspect does not become an accused before the indictment is officially confirmed by a judge, at which time a formal accusation concerning the crime in questions is brought against the accused.27 During the time between the preparation and confirmation of an indictment, the Prosecutor is immobilized for lack of an arrest warrant. To avoid the escape of suspects and ensure their future arrest, as mentioned above, the Prosecutor can request a state to provisionally arrest.28 Furthermore, Rule 40 bis RPE29 provides the Prosecutor with the option of requesting a judge to order an arrest and transfer of a suspect, provided the following requirements are met: (i) the person concerned must have already been taken into custody (or, at least, the Prosecutor must have asked the state to do so), (ii) the judge must conclude that the suspect could indeed have committed a crime under the jurisdiction of the Tribunal, and 25 26 27

28 29

See Rule 57 RPE. See para. 2 arts 20 Yugoslav Statute and 19 Rwanda Statute. Before such confirmation is given, the Prosecutor has to establish a primafacie case; he/she will prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute. The indictment will be transmitted to a judge who will review it and eventually confirm it if he or she is satisfied that the Prosecutor has been able to establish a prima facie case. If not satisfied, the indictment will be dismissed. As aforementioned, such confirmation is preconditional for the issuance of an arrest and transfer order as well as for any other order that may be required for the conduct of the trial. See arts 18 and 19 of the Yugoslav as well as arts 17 and 18 of the Rwanda Statute. See Rule 40 (i) RPE. Rule 40 bis RPE was added at the 1 Oth Plen. Assembly of the Yugoslav Tribunal in April 1996; the Rules of the Rwanda-Tribunal were amended in like manner on 15 May 1996.


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(iii) the judge must agree that an arrest is necessary to prevent the suspect from fleeing, intimidating witnesses, or hampering proceedings in any other way. If requested, states not only have to surrender supposed criminals to the International Tribunals but also witnesses who may be detained in their national prisons. A fair trial requires both the presence of the accused and anyone who might contribute to the exploration of the accused's guilt or innocence. If necessary, a judge may summon a witness currently serving a prison sentence in another state on the basis of Rule 90 bis (A) and (B) RPE. However, the transfer of detained witnesses should only be requested if their presence is no longer required in national proceedings and if their stay at the Tribunal will not exceed their term of confinement. The procedure for transferring a detained witness to an International Tribunal is comparable to the transfer of an accused or suspect. c. Deferral of National Court Proceedings According to para. 2 of article 9 Yugoslav Statute and article 8 Rwanda Statute, the International Tribunals have primacy over national courts. Due to this primacy, national courts may, at any stage of the procedure, be formally requested to defer to the competence of the International Tribunals. As set out in Rules 8 et seq. of the Rules, deferral proceedings are initiated by request of the Prosecutor. When a crime that has been the subject of investigation or criminal proceedings in a court of a given state appears to fall within the jurisdiction of a Tribunal, the Prosecutor may request the forwarding of any relevant data.30 If the prerequisites of Rule 9 RPE are met,31 the Prosecutor submits a formal request for deferral to the President of the respective Tribunal, who then forwards it to a Trial Chamber for review. If the Chamber considers a deferral appropriate, it will formally request the state to defer its current court proceedings. Once a trial has been deferred to a Tribunal, a completely new trial begins. Any previous determination of a national court has no binding effect on the Tribunals.32

30 31

32

Rule 8 RPE. For those prerequisites see below. Rule 12 RPE.

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The Tribunals determine whether or not to exercise their competence in deferring pending national court proceedings. If they do, national courts are obliged to defer. Such obligation does not exclude national courts from prosecuting crimes that belong within Tribunal jurisdiction. In this way, the International Tribunals and national courts share concurrent jurisdiction.33 Because of the universality principle, national courts can declare their jurisdiction over serious violations of international humanitarian law, regardless of where those crimes were committed. The mere existence of an international institution charged with the prosecution of such crimes does not automatically exclude national jurisdiction; rather, both systems — one at the national, the other at the international level — complement each other.34 National courts lose their jurisdiction only if the Tribunals exercise their primacy. Since national courts of any state can exercise their jurisdiction over crimes contained in the Statutes of the Tribunals, the competence of the latter to interrupt and absorb national proceedings represents a significant limitation of national sovereignty in the field of criminal prosecution. When passing the Statute of the Yugoslav Tribunal, Member States of the Security Council recommended a narrow interpretation of article 9 of the Statute. The Tribunals do not possess absolute competence to absorb national court proceedings. Rather, they may exercise this competence only if certain conditions set out in Rule 9 RPE are met. In case of the RPE of the ICTY, those conditions are: (i) the act being investigated or which is the subject of national court proceedings is treated as an ordinary crime (ii) there is a lack of impartiality or independence, or if the investigations or proceedings are designated to shield the accused from international criminal responsibility, or if the case is not diligently prosecuted, or (iii) what is in issue is closely related to, or otherwise involves, significant factual or legal questions which may have implications for investigations of prosecutions before the Tribunal...35 33 34

35

See para. 1 arts 9 Yugoslav Statute and 8 Rwanda Statute. R. Wblfrum, "The Decentralized Prosecution of International Offences through National Courts", in: Y. Dinstein, War Crimes in International Law, 1996,233 et seq. Cf. also Rule 9 RPE of the ICTR.


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The purpose of Rule 9 RPE is to assure that national proceedings against alleged war criminals are not trivialized. Besides, the Tribunals should be given the opportunity to exercise its jurisdiction in all cases in which legal or factual questions of a general importance are raised. The Tribunals do have a legitimate interest in exercising their primacy in all cases in which a person's alleged criminal behaviour may have legal or factual consequences for the investigations, prosecutions and convictions in other cases. Questions involving international law should be settled by the International Tribunals to ensure uniformity and consistency of decision-making. The International Tribunals cannot exercise their primacy if the principle non bis in idem hinders a further trial. This principle, widely accepted on both the national and international level, has been incorporated into arts 10 Yugoslav Statute and 9 Rwanda Statute and is repeated by article 13 of the Rules. However, non bis in idem does not apply to the International Tribunals to the same degree as it does to national courts. According to para. 1, arts 10 Yugoslav Statute and 9 Rwanda Statute, no person shall be tried before a national court for crimes which have previously been tried by an International Tribunal. In contrast, para. 2 of the provisions permits the International Tribunals to prosecute an individual who has already been tried by a national court. However, such exceptions to the non bis in idem principle are restricted to exceptional cases. Should the Tribunals receive reliable information showing that a national court has brought criminal proceedings against a person who was previously tried by a Tribunal, a Trial Chamber will order that court to permanently drop its charges.36 d. Enforcement of Sentences Another responsibility which requires state cooperation is the enforcement of the Tribunals' final sentences (see in this respect also under Section V. 3 d.) Since the International Criminal Tribunals do not operate prison facilities, sentences can only be served in national prisons. Tribunal detention units hold accused persons only before or during a trial. As soon as the time-limit for appeal has elapsed, a convicted person is transferred to the state were he has to serve his prison term.37 36 37

See Rule 13 RPE. See Rule 103 (B) RPE.

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In theory, states could be compelled to carry out Tribunal sentences. However, when the Statutes were adopted, this idea of compulsion was rejected, since the execution of sentences is likely to cover a long period of time. For this reason states should voluntarily assume this responsibility. States that are willing to place their prisons at the Tribunals' disposal should indicate their willingness to the Security Council.38 From the Council's list, the Tribunals may select a state each time the question of enforcement arises. Such imprisonment shall be in accordance with the applicable law of the state concerned, subject to the supervision of the International Tribunal. In making the selection, the Tribunals will take the following items into consideration: the distances between the enforcement state, the state in which the conflict occurred, and the home country of the convicted person; the state's neutrality during the Yugoslav or the Rwanda conflict; its compliance with international prison standards; and the capacity of the state to cope with the financial burdens of the imprisonment.39 The Tribunals supervise the execution of sentences and are at liberty to intervene when enforcement states do not appropriately fulfil their duty. According to Rule 104 RPE the Tribunals can also designate or appoint a separate body that will be in charge of the supervision of sentences.40

38 39

40

See arts 27 Yugoslav Statute and 26 Rwanda Statute and Rule 103 RPE. See in this respect V. Morris/ M. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol. 1,1995,305. In contrast to article 26 Rwanda Statute, which allows imprisonment in Rwanda, article 27 Yugoslav Statute does not provide for imprisonment being served in the successor states of the Former Yugoslavia. Given the nature of the crimes committed during the Yugoslav conflict and given the international character of the Yugoslav Tribunal the framers of the Yugoslav Tribunal decided to have sentences enforced outside the former Yugoslavia. However, comments on the founding resolution of the Rwanda Tribunal remain silent why these reasons would not likewise apply to persons convicted by the Rwanda Tribunal. Because of language and cultural differences, the enforcement of sentences in a different state may be harder than the enforcement in the home country. However, enforcement in a neutral country seems indispensable if one wants to assure that the Tribunals' sentences are properly enforced. It is not completely out of question that third persons are trying to interfere with the enforcement of the Tribunals' sentences, if they sympathize with the convicted person, or if they sympathize with the victims.


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As soon as national law declares a convicted person eligible for pardon or commutation of a sentence, the enforcement state shall notify the respective Tribunal.41 In contrast to bi- or multi-lateral agreements on the enforcement of sentences, a state enforcing the sentence of one of the Tribunals does not posses an exclusive right to pardon. The final decision rests with the respective Tribunal. According to article 28 Yugoslav Statute and article 27 Rwanda Statute, the President of the Tribunal, in consultation with the judges, "decides on the basis of the interests of justice and the general principles of law".42 This procedure guarantees that prisoners serving sentences in different states are treated equally and are considered for pardon based on the same criteria. Despite arguments to the contrary, the Tribunals' right to pardon does not restrict the competence of a national head of state, whose exclusive right it is to pardon any prisoner within his own jurisdiction.43 Although the state enforcing a Tribunal sentence gains direct power over the convicted person, he or she is still considered a prisoner of the Tribunal that passed the sentence. Regardless of the primary responsibility resting with national authorities to execute the sentence, the prisoner indirectly remains in custody of the Tribunal throughout the term of imprisonment.44

41 42

43

44

See arts 28 Yugoslav Statute and 27 Rwanda Statute. According to Rule 125 RPE, the President, in determining whether pardon or commutation is appropriate, must take into account the gravity of the crime or crimes for which the prisoner was convicted, the treatment of similarly-situated prisoners, the prisoner's demonstration of rehabilitation, as well as any substantial cooperation of the prisoner with the Prosecutor. See article 60 para. 2 of the German Basic Law; article 17 of the French Constitution; article 122 of the Dutch Constitution. Moreover, it would not be in accordance with the mandate of the Tribunals, if the final decision on pardon or commutation of sentences could be made by a state. The International Tribunals were entrusted with the mandate to prosecute serious violations of international humanitarian law. Prosecution also implies the execution of prison sentences insofar as the Tribunals consider it necessary. An individual state cannot be in the position to change a decision which the International Tribunals have made on behalf of the International Community.

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e. Additional Responsibilities of States The Rules of Procedure and Evidence contain some additional responsibilities requiring the cooperation of states with the International Tribunals: -According to Rule 74 RPE, a Trial Chamber may under certain circumstances invite a state, organization or person to appear before it and to offer legal opinions or any other contribution that could facilitate the proper determination of a case (so-called amicus curiae). -The assistance of national courts might be necessary in determining the ownership of property. Para. 3 of arts 24 Yugoslav and 23 Rwanda Statute enables a Trial Chamber to order the return of any property or proceeds acquired by criminal conduct to the rightful owner.45 The details of restitution proceedings are set out in Rule 105 RPE. If the Trial Chamber is able to determine the rightful owner on the balance of probabilities, it will either order the restitution of the property or proceeds or determine some other appropriate course of action. If ownership cannot be determined by the Tribunals, they will leave judgment to the competent national authorities. It is not the mandate of the International Tribunals to solve problems of private law. This responsibility resides with national authorities which, for factual and legal reasons, are in a better position to do so.46 National assistance is further required in the compensation of victims.47 Although the Tribunals cannot directly rule on compensation, their sentences do form the basis of compensatory national court decisions. According to Rule 106 (B), a victim, or persons claiming through 45

46

47

The duty to restitute is partially seen as an additional punishment besides imprisonment; in fact, its character is comparable to a civil law duty of compensation. If national courts or authorities are not able to determine rightful ownership either, it is proposed that the Security Council establishes a further institution, exclusively charged with the determination of property in cases of ethnic cleansing. During the elaboration of the Yugoslav Statute, proposals to grant the Tribunal the competence to decide on the matter of compensation were rejected. According to Resolution 808 (1993), the Tribunal was only vested with the power to prosecute serious violations of international humanitarian law. No mention was made of a power to compensate victims. Furthermore, compensation proceedings and investigation would require an enormous reservoir of financial and personal means, exceeding the limited means of the Tribunals.

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the victim, may bring an action in a national court or other competent body for compensation. For the purposes of such a claim, the judgment of the Tribunal shall be final and binding as to the criminal responsibility of the convicted person for such injury. In addition to the provisions of the Statutes and RPE, the Annexes to the General Framework Agreement for Peace in Bosnia and Herzegovina contain further responsibilities that fall upon some of the successor states of Former Yugoslavia.48 Of major interest are the duties to grant free movement and unrestricted access to members of the Yugoslav Tribunal,49 to exclude from public office50 and from amnesty51 persons who are under indictment of the Yugoslav Tribunal, and to exclude such persons from repatriation until the Yugoslav Tribunal has been notified.52 The host states of the Tribunals, the Netherlands and Tanzania, are obliged to cooperate even in a wider sense. In allowing the Tribunals to operate in their countries, these states have made significant concessions which limit their own sovereign rights. The various arrangements are set out in the Headquarter Agreements between the United Nations and the Kingdom of the Netherlands and the Republic of Tanzania respectively.53

III. Nature of State Cooperation According to para. 2 arts 29 Yugoslav Statute and 28 Rwanda Statute, states must comply with any request for assistance or order issued by a 48

49 50 51 52 53

The Annexes to the General Framework Agreement have been signed by and are therefore binding upon the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska. See article XIII para. 4 of Annex 6 and article II para. para. 8 of Annex 4. See article IX of Annex 4. Article VI of Annex 7. Article IX and Annex 1 A. Agreement between the United Nations and the Kingdom of the Netherlands Concerning the Headquarters of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, of 27 May 1994; Agreement between the United Nations and the United Republic of Tanzania Concerning the Headquarters of the International Criminal Tribunal for Rwanda of 31 August 1995.

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Trial Chamber of the International Tribunals. There is no legal difference between "order" and "request", both are equally binding. Consequently, "request"(s) stemming from the International Tribunals carry a different legal meaning from those made by states within the traditional framework of international assistance in criminal matters. In contrast to para. 2, para. 1 of arts 29 respectively 28 speaks of cooperation between states and the International Tribunals. The term "cooperate" refers to a joint action which is accomplished on the same level. If several units are cooperating, none of them is subordinated to the will of another. However, para. 2 clearly indicates that this cooperation between the Tribunals and states does not take place on the same level. States are unilaterally obliged to carry out the Tribunals' orders and requests. States cannot invoke national law to evade an order or request of the International Tribunal. State interests are not considered when the Tribunals issue orders or requests. The interests of a state are subordinated to the will of the Tribunals. Thus, the relationship between states and the International Tribunals is not horizontally, but hierarchically organized. In view of such hierarchy, the term "cooperate" is not entirely accurate. It would be more appropriate to speak of national assistance. Given the establishment of the International Tribunals on the basis of Chapter VII of the UN Charter and the absolute necessity of national action54 for the success of the Tribunals, this hierarchical relationship is not only appropriate but essential. When a state refuses to comply with an order or request of the International Tribunals, the President can notify the Security Council.55 Whether the Security Council decides to take action against the state concerned remains to be seen.

IV. Necessity of State Cooperation The cooperation of states is indispensable if the International Criminal Tribunals for the Former Yugoslavia and for Rwanda are to fulfil their mandate. Though the Statutes grant the Prosecutor power to conduct on-site investigations, gather evidence, and question witnesses, victims, and 54 55

See below. See Rules 7 his, 11,13, 59 and 61 RPE.


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suspects in his own authority,56 this competence cannot be exercised without the assistance of the state in whose territory such pre-trial investigation takes place. Criminal investigation activities are sovereign acts belonging exclusively to the state on the territory of which those acts are being performed (principle of territoriality). Without permission of the respective state, other states — or non-state entities like the International Criminal Tribunals — are excluded, in principle, from carrying out sovereign acts on the territory of a foreign state. An exception to the principle of territoriality can be made by international agreements. In fact, such exception is constituted by article 18 para. 2 Yugoslav and article 17 para. 2 Rwanda Statute. However, these provisions do not automatically become effective in the national legal systems of UN Member States. National law requires authorization delegating the competence of national criminal authorities to the International Tribunals. Since arts 18 and 17 are part of a Security Council Resolution under Chapter VII of the UN Charter, Member States are bound by international law to implement or grant such authorization. However, without such authorization, the Prosecutor cannot become active in any foreign state. Furthermore, the Tribunals may not coerce the implementation of their decisions. Neither the Prosecutor nor any other organ of the Tribunals is authorized to force witnesses to make statements, execute an arrest warrant, or seize documents or objects. Those measures must be carried out by national authorities which are authorized to do so under national law. The assistance of national authorities is especially important for the successful execution of arrest warrants and transfer orders. If a state refuses to comply with an arrest and transfer order, or if it shields someone from international prosecution, the Tribunals are paralyzed. Without the presence of the accused at the International Tribunals, criminal proceedings cannot be initiated. The Statutes do not provide for a trial in absentia. The only option the Tribunals can fall back on if a state refuses to execute an arrest and transfer order, is to initiate a socalled Rule-61 proceeding, which permits the Trial Chamber to issue an international arrest warrant, although it can never conclude a verdict about the guilt or innocence of the accused.57

56 57

See para. 2 of article 18 Yugoslav Statute and 17 Rwanda Statute. See P.P. King/ A.M. La Rosa, "The Jurisprudence of the Yugoslavia Tribunal 1994-1996", EJIL 8 (1997), 123 et seq., (216 et seq.).

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National assistance is likewise essential when national court proceedings are deferred. National law usually does not allow for deferral of state court proceedings to a court not linked in the chain of the national stages of appeal. States must empower their courts to defer their proceedings to the International Criminal Tribunals, or there is no possibility for the Tribunals to absorb them. The Security Council could vest the Tribunals with the competence to order the deferral of national court proceedings, but it could not reach into national systems and empower state courts to defer a case to the Tribunals. A request for deferral can only be executed if states have enabled national courts to comply with requests for deferral. States are obliged to enact such authorization because of the binding character of the Tribunals' founding Resolutions. However, if states do not abide by this obligation, the Tribunals have no possibility to close national court proceedings and to initiate a trial of their own. For the successful enforcement of sentences, the Tribunals again depend on state cooperation. Though states are not obliged to indicate their willingness to accept convicted persons (in contrast to other areas where assistance is a strict duty), here, cooperation is nevertheless essential. Without the willingness of states to open their national prison facilities, Tribunal sentences cannot be enforced. In his speech before the UN General Assembly in 1995, Antonio Cassese, First President of the Yugoslav Tribunal, stressed the absolute need of state cooperation when he declared that: "the decisions, orders and requests of the International Tribunals can only be enforced by others, namely national authorities. Unlike domestic courts, the Tribunal has no enforcement agencies at its disposal: without the intermediary of national authorities, it cannot execute arrest warrants, it cannot seize evidence, it cannot compel witnesses to give testimony, it cannot search the scene where crimes have been allegedly committed. For all these purposes, it must turn to State authorities and request them to take action. Our Tribunal is like a giant who has no arms and no legs. To walk and work, he needs artificial limbs. These artificial limbs are the State authorities; without their help, the Tribunal cannot operate."


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V. National Law and State Cooperation 1. Necessity of a "Cooperation Act" The enactment of special legislation which enables national authorities to cooperate with the International Criminal Tribunals for The Former Yugoslavia and for Rwanda was (and still is) necessary in most legal systems for two reasons. First, the obligations contained in the Statutes and RPE are of such nature that national authorities from a legal point of view usually will need a separate legal authorization to act accordingly. For example, the transfer of accused and the deferral of national court proceedings touch upon questions as fundamental as the right of the accused to due process and a trial by a judge. The execution of an arrest warrant encroaches upon the accused's right to personal freedom which is guaranteed by most constitutions. The power to question witnesses and seize evidentiary material usually lies with national authorities of the state on whose territory such acts are carried out. If such rights are conferred upon the Prosecutor of the International Tribunals, this necessarily implies a restriction of national sovereign rights for which many constitutions require legal authorization. It is inadequate to fall back on laws of judicial assistance in criminal matters. The legal instruments existing in most national systems to regulate bi- and multilateral assistance in criminal matters cannot serve as a basis for assistance to the International Tribunals. The differences between inter-state cooperation in criminal matters and the national assistance required by the International Criminal Tribunals are too large. Traditional requests for judicial assistance in criminal matters are usually influenced by the equality of states as well as by the exclusive sovereignty of states in their own territory. Agreements regarding legal assistance in criminal matters usually contain numerous grounds allowing states to either reject a request or to set conditions. The requested state is usually permitted to review the request and refuse it if certain conditions are not met. In contrast to traditional requests for judicial assistance in criminal matters, as shown above, requests of the International Criminal Tribunals can neither be reviewed nor rejected. States are not equipped with a discretion allowing them to review cooperation requests of the International Tribunals. When requested to transfer a person to the International Tribunals, national courts may only review whether formal requirements are met and match the identity of the person requested by the Tribunal for transfer with the person appre-

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hended. Neither the Statutes nor the RPE provide any grounds upon which states could justify a refusal to comply.58 Furthermore, bi- or multilateral arrangements on judicial assistance in criminal matters usually follow the principle of reciprocity; this is not the case with the International Criminal Tribunals. States are unilaterally bound to comply with orders and requests of the International Tribunals, yet a similar obligation placed upon the Tribunals could hardly be realized and would not be in consistency with their mandate. As for the transfer of persons, the Statutes stress the difference between traditional extradition requests and the request of the Tribunals by avoiding the term "extradition". Extradition treaties usually stipulate grounds upon which requests for extradition may be rejected, including such grounds as the nationality of a person and affiliation with various religious, racial, or minority groups. States are often granted the right to review whether the crime for which extradition is requested would be punishable under the law of the requested state. Furthermore, extradition treaties generally include a clause stipulating the punishment of only those crimes for which extradition was requested. When requested to transfer a person to the International Tribunals, states have to comply with that request. They cannot invoke national law or reasons contained hi extradition treaties to refuse compliance. With exception of the aforementioned formalities, national authorities do not possess a discretion which would allow them to review a request of the International Tribunals. Given the fundamental differences between general international assistance in criminal matters and the assistance to the International Tribunals as such, the Security Council decided in the founding Resolutions that: "all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute...".59 58

59

As mentioned above, requests of the Tribunals do have the same binding effect as orders which the Tribunals can issue on the basis of para. 2 of arts 29 Yugoslav Statute and 28 Rwanda Statute. See para. 4 of Resolution 827 (1993); para. 2 of Resolution 955 (1994). To facilitate national legislation, the Registry of the Yugoslav Tribunal published the so-called "Tentative Guidelines for National Implementing Legislation of United Nations Security Council Resolution 827 of 25 May 1993". These Guidelines are mere proposals of the Registry of the Yugoslav Tribunal and do not have any binding effect upon states. Their intention is

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2. Existence of "Cooperation Acts" As of summer 2000 twenty three states have enacted a law or a similar legal instrument which authorizes national authorities to cooperate with the Yugoslav Tribunals.60 A couple of states have done so concerning the Rwanda Tribunal.61 In some cases, such legislation applies to both Tribunals. In some cases, where a cooperation act regarding the Yugoslav Tribunal already existed, its provisions have simply been declared applicable for the Rwanda Tribunal. In other cases, separate legislation has been enacted but the provisions of both acts are virtually identical. Concerning the ICTY a number of states have indicated that they do not require implementing legislation to carry out their responsibilities, including the Russian Federation, the Republic of Korea, Singapore and Venezuela.62 In addition, several states have indicated that they intend to adopt implementing legislation shortly.63

60

61

62

63

to indicate those areas in which amendment of national law may be required to enable an effective cooperation between a state and the Yugoslav Tribunal. Although the Guidelines only concern cooperation with the Yugoslav Tribunal, they can also serve as guiding principle for legislation regarding cooperation with the Rwanda Tribunal. Those states are Australia, Austria, Belgium, Bosnia and Herzegovina, Croatia, Denmark, Germany, Greece, Finland, France, Hungary, Iceland, Ireland, Italy, New-Zealand, the Netherlands, Norway, Romania, Sweden, Switzerland, Spain, the United Kingdom and the United States. (7th Anual Report of the ICTY, Doc. A/55/273 of 7 August 2000-each year in November the President of the Tribunal submits the Report covering the activities of the Tribunal during the preceding period 1 August-31 July). E. g. Austria, Australia, Belgium, Denmark, Germany, France. NewZealand, the Netherlands, Norway, Sweden, Switzerland, the United Kingdom and the United States. 6th and 7th Annual Report of the ICTY, Docs A/54/187 of 25 August 1999 and A/55/273 of 7 August 2000. Ibid.

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3. Implementation of Cooperation a. Cooperation in Pre-trial Investigations of the Prosecutor Most cooperation acts contain a provision enabling national authorities to conduct on-site investigations and interrogations of victims and witnesses if so requested by the Prosecutor.64 Generally, national authorities are placed under the obligation to comply with such requests. Two exceptions include cases wherein national authorities are vested with the authority to review a request. For example under article 26 para. 3 of the Australian International War Crimes Tribunals Act. The Attorney-General, the direct recipient of the Tribunal's requests, is entitled to judge if the execution of a request might endanger Australian sovereignty, security, or other national interests. If it does, or if further "special circumstances" justify the rejection of a request, the Attorney-General is obligated not to carry it out. A similar provision can be found in article 57 of New-Zealand's cooperation act.65 It is doubtful that these provisions are in conformity with the unrestricted obligation to execute as demanded by the Statutes of the Tribunals. Many cooperation acts allow a representative of the Prosecutor's Office to be present when national authorities carry out a request of an International Tribunal.66 However, with very few exceptions, these acts do not enable the Prosecutor or the representatives to take action themselves. Only two cooperation acts authorize the Prosecutor to act independently on national territory. Article 7 of the Finnish cooperation act and article 3 para. 3 of the Norwegian act allow investigators from the Yugoslav Tribunal to question witnesses, victims, and suspects, and 64

65

66

As far as responsibility remains with national authorities, this kind of judicial assistance is general practice in mutual assistance in criminal matters. From a national perspective, it can be sufficient to expand such regulation to the Tribunals. To allow the Prosecutor to undertake independent investigations, new legislation will be required. Article 57 of the New-Zealand Cooperation Act grants the AttorneyGeneral of New-Zealand the competence to reject the enforcement of a request if enforcement would endanger the sovereignty, security or other national interests of New-Zealand. See article 8 of the French and article 10 para. 2 of the Belgium Cooperation Act.


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conduct an investigation without the mediation of national authorities. If they wish, they can also seek national assistance. The German and Austrian cooperation acts require that national authorities be notified before the Prosecutor may begin independent investigation.67 The Swiss and the Croatian cooperation act, the latter only applies for the ICTY, rule that the Office of the Prosecutor first seeks permission before it begins its activities on national territory.68 Whereas simple notification of national authorities seems consistent with the intention and provisions of the statutes it is doubtful that the requirement to obtain permission is in harmony with international provisions. Given that national authorities are more familiar with people and locations, such notification can also be of advantage for the Tribunals. Permission proceedings, in contrast, can cause unnecessary delay, even if national authorities are placed under a strict obligation to grant permission. It is a matter of particular concern, that the cooperation act of Croatia, whose assistance is of special interest to the Yugoslav Tribunal, requires that permission first be granted by the Croatian Government.69 Enforcement measures are usually left in the hands of the national authorities. Since the Statutes of the International Tribunals do not empower the Prosecutor to apply coercion, national cooperation acts can nevertheless be fully in accordance with international requirements. However, it is indispensable that national cooperation acts provide for the authorization of national authorities to take coercive measures if requested by the International Tribunals. Many cooperation acts are progressive and innovative — para. 23 of the Swiss and para. 11 of the Austrian cooperation act enable the Tribunals to send a summon directly to its addressee. According to arts. 8 and 9 of the Finnish cooperation act, witnesses are under a strict obligation to follow a summon of the International Tribunal; he or she can be penalized for perjury. According to article 7 para. 2 of the Spanish and para. 11 of the Austrian cooperation act, witnesses can be paid in 67

68 69

See article 9 para. 1 of the Austrian and article 4 para. 4 of the German Cooperation Act. Article 22 of the Swiss and article 7 of the Croatian Cooperation Act. Article 7 of the Croatian Cooperation Act reads: (English version) "The Tribunal and the Prosecutor may with the approval of the Government of the Republic of Croatia undertake specific actions on the territory of the Republic of Croatia in order to investigate the crimes under its jurisdiction, except the actions which require force or encroach upon the fundamental rights and freedoms of citizens."

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advance for their travel expenses to the International Tribunals. And arts 36 et seq. of the New-Zealand and arts 41 et seq. of the Australian cooperation acts contain provisions permitting the Tribunals to sit in their territory should the Tribunals no longer be hosted by the Netherlands or by Tanzania. b. Arrest and Transfer of Persons Nearly all the cooperation acts implement the obligation of states to carry out arrest warrants and transfer orders of the International Tribunals. Each contain a provision, with one exception,70 authorizing national authorities to arrest a person on the basis of a Tribunal's arrest warrant and to transfer him or her to the respective Tribunal.71 Due to their binding character, transfer orders of the International Tribunals could be interpreted to the effect that national authorities can execute them directly and automatically, without the involvement of a judge or a national court which could guarantee that the rights of the accused are observed. The requirements of the Statutes and the Rules of Procedure and Evidence regarding transfer proceedings are few. Rule 55 (E) RPE of the ICTY only prescribes that the accused at the time of arrest must be informed of his rights and of the crimes he is charged with. However, national law requires more than simply informing accused persons about their rights and the crimes laid to their charge. Most legal systems require the observation of basic rights if a person's subjective rights are going to be encroached.72 With the exception of Australia and New-Zealand, all cooperation acts provide for the involvement of a judge or a national court so that the person concerned at least obtains the possibility to claim a mistake of identity. Some acts grant the right

70 71

72

The Hungarian Cooperation Act simply refers to national law. Although the majority of the Tribunals' indictees will very likely sojourn in the territory of the Successor States of the Former Yugoslavia or in Rwanda and its neighbouring states, this must not always be the case. Suspects and accused of both Tribunals have been arrested in different states all over the world. Even if the arrest of an accused seems to be unlikely because of the state's distance to the scene of the crimes, states need to have a regulation which allows the arrest and the transfer of the person concerned. Furthermore, the Tribunals can issue international arrest warrants on the basis of Rule 61 RPE which have binding effect on each UN Member State. Chr. Tomuschat, Sitzungsbericht Q - des Deutscken Juristentags, 1994, 53 et seq., (66).


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to appeal against the decision of the court of first instance.73 Article 23 of the Croatian cooperation act even permits a constitutional claim against the decision of the court of appeal. However, those courts are not entitled to review legal aspects of the arrest warrant. Due to the unconditional and unrestricted obligation of states to execute the Tribunals' transfer orders, the discretion of a judge or court for review is reduced to a limited number of formal questions.74 Particular problems may arise when a state is requested to transfer one of its own citizens. Numerous constitutions prohibit the extradition of nationals. This mainly applies to states that follow the continental system. Common law states usually do permit the extradition of nationals;75 they make exceptions only on the basis of the principle of reciprocity. Common law states refuse the extradition of nationals if, within the framework of a bi- or multilateral agreement, the state requesting extradition does not extradite its own nationals. The problem of transferring nationals is treated differently by different cooperation acts. States whose national law generally allows the extradition of nationals either permit the transfer of nationals to the Tribunals or have not ruled on the matter at all.76 Some states whose 73

74

75

76

See article 12 § 1 para. 4 and 5 of the Belgian Cooperation Act; article 26 Cooperation Act of Bosnia and Herzegovina; article 13 of the French; article 11 para. 2 of the Italian and article 3 para. 2 of the German Cooperation Act in connection with § 42IRG. With view to transfer proceedings, some cooperation acts fall back on provisions regulating interstate extradition proceedings and hereby render inapplicable those provisions which are not consistent with the binding character of a transfer request. See, for instance, the Cooperation Acts of Germany, Denmark, Finland, Norway, the Netherlands and Sweden. Other Cooperation Acts have introduced special transfer proceedings; see the Cooperation Acts of Australia and New-Zealand, Belgium, BosniaHerzegowina, France, Italy, Croatia and the United States. If formal requirements are met, national authorities are obliged to transfer the person in question to the requesting Tribunal. For reasons other than that, a transfer order cannot be rejected. However, the cooperation acts of Australia and New-Zealand allow the rejection of a transfer order in cases where national authorities determine "special circumstances". See article 16 para. 2 of the Australian and article 12 para. 2 of the New-Zealand Cooperation Act. M. Bassiouni, International Extradition: United States Law and Practice, 1996. See the Cooperation Acts of Australia, New-Zealand, the United States and the United Kingdom.

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constitutions principally forbid the extradition of nationals consider the transfer to the Tribunals as a new legal instrument to which extradition laws do not apply. Therefore, a special regulation in their cooperation acts was considered unnecessary.77 Other states consider the transfer of nationals to the Tribunals as a subcase of extradition to which national extradition law generally applies. The prohibition of extradition of nationals, however, cannot be applied because the law of the Tribunals does not provide for such exception. Those states,78 therefore, did not consider it necessary to implement a special permission of extradition of nationals. Still other states are of the opinion that prohibiting the extradition of nationals would also apply to the transfer of persons to the International Tribunals.79 Those states have had to amend their national law to allow the transfer of nationals to the Tribunals. Their cooperation acts expressly provide for an authorization on the basis of which national authorities are empowered to transfer nationals to the International Tribunals.80 c. Deferral of National Court Proceedings A deferral of national court proceedings can have a fundamental impact on the rights of the accused, in particular on his or her right to due process. Furthermore, numerous constitutions contain a prohibition against exceptional courts. National courts or judicial authorities81 requested to defer a case to the Tribunals usually need legal authorization to comply with such a request. Even so, only a small number of cooperation acts provide for special deferral proceedings.82 According to such regulation, national courts have to review whether the crime for 77

78 79 80

81

82

This is the case for the Belgium, the French, the Croatian, the Dutch and the Spanish Cooperation Act. Denmark, Finland, Norway, Sweden and Hungary. Germany, Switzerland and Austria. See article 5 of the Austrian and article 10 para. 2 of the Swiss Cooperation Act. Article 3 para. 1 of the German Cooperation Act. In some states, investigations are carried out by authorities that are not connected to a court. According to Rule 8 RPE, those authorities are obliged to comply with the Tribunals' requests for deferral, too. These are the cooperation acts of Belgium, Germany, France, Italy, Croatia, Austria, Spain, Switzerland, Sweden and the United Kingdom. Other acts authorize national courts to close pending proceedings if the same case is tried before one of the International Tribunals, but they do not empower them to defer to the Tribunals.


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which a deferral is requested belongs within the jurisdiction of the Tribunal, and whether the deferral concerns the crime that is subject of the present proceedings. If both conditions are met, courts are not only authorized but obliged to defer proceedings to the requesting Tribunal. Some cooperation acts provide for a hearing before deferral is granted in order to give all parties the opportunity to present their opinion.83 Against this decision, parties have the right to appeal.84 Some cooperation acts provide for the re-opening or continuation of national proceedings in case an International Tribunal decides not to commence a trial of its own.85 d. Enforcement of Sentences Though states cannot be compelled by unilateral order to enforce the Tribunals' sentences, they are expected to indicate such willingness because of their general duty to cooperate with the International Tribunals, according to para. 1 of arts 29 Yugoslav and 28 Rwanda Statute respectively. The Secretary-General and the International Tribunals through their Presidents and their Registries have addressed several letters to states in which they asked for national assistance regarding the enforcement of sentences. In the first years, some states had indicated to the Yugoslav Tribunal their willingness to enforce sentences of the Yugoslav Tribunal.86 Some had indicated that they are not in the position to enforce sentences of the Yugoslav Tribunal.87 Others have made certain reservations, such as 83

84

85

86

87

See e.g. article 6 of the Belgium and article 9 para. 3 of the Croatian cooperation act. The latter provides for a hearing even in the absence of the accused. According to article 9 paras 4 and 5 of the Croatian Cooperation Act and article 3 para. 2 of the Italian act, all participants have the right to appeal to the Supreme Court within 8 days after the court of first instance issued its decision. The Supreme Court can confirm the decision of first instance, or it can amend or reject it. During the appeal, the case is suspended, i.e. it cannot be deferred to the requesting Tribunal. See for instance article 8 of the Belgian and article 4 para. 4 of the Austrian Cooperation Act. Pakistan, Bosnia and Herzegovina, Germany, Finland, the Islamic Republic of Iran, Italy, Croatia, Denmark, Spain and Sweden. See Yearbook of the ICTY 1996,196 et seq. Bahamas, Belize, Burkina Faso, Ecuador, France, Liechtenstein, Malaysia, Poland and Slovenia. See Yearbook of the ICTY 1996,197.

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when the convicted person is a national of or has comparable link to the enforcement state.88 Others have limited the number of persons they would be willing to accept.89 The Netherlands, as the host state of the Yugoslav-Tribunal, has asked not to be the first state to enforce a sentence of the Yugoslav Tribunal.90 Other states have indicated their general willingness to accept convicted persons but reserve the right to decide upon a case by case decision.91 As for enforcing the sentences of the Rwanda Tribunal, most African states, where the enforcement should preferably be done, have declared themselves unable to execute the Tribunal's sentences.92 During 1999 three states have concluded agreements with the United Nations on the enforcement of sentences concerning the ICTY. On 23 July 1999, Sweden signed an agreement. In addition, an agreement with Spain was initialled on 18 June 1999. At the end of 1999 a total of five states had signed agreements: Austria, Finland, Italy, Norway and Sweden. The number increased in 2000 to seven after France and Spain signed Agreements.93 Other states have indicated in 1999 and 2000 their willingness to either the Security Council, the SecretaryGeneral or the President of the Tribunal, to enforce sentences of the Tribunal, although an agreement has not yet been concluded. These are Bosnia and Herzegovina, Croatia, Denmark, Germany, the Islamic Re88

89

90

91

92

93

See notification of Sweden to the Registrar of the Yugoslav Tribunal of 19 December 1994, see Yearbook of the ICTY 1994,163 (French version). See notification of Norway of 1 February 1995, see Yearbook of the ICTY 1995, 320. See A. Klip, "Nederland en de Internationale strafgerechtshoven voor Rwanda en het voormalige Joegoslavie", Tijdsckrift voor de Recbterlijke Macht 1997,22 et seq. See notification of Denmark to the Registrar of the Yugoslav Tribunal of 6 December 1994, see Yearbook of the ICTY 1994,162, footnote 4. But on 12 February 1999, the Registrar of the Tribunal and the Government of Mali signed an agreement on the enforcement of the Tribunal's sentences. This made Mali the first country to provide prison facilities for the enforcement of the Tribunal's sentences. The Republic of Benin became the second country to sign such an agreement on 26 August 1999. The Kingdom of Swaziland became the third country, and the agreement was signed on 30 August 2000. Belgium, Denmark, Norway and some African countries have also indicated their willingness to incarcerate (Fact Sheet of the ICTR No. 6). 6th Annual Report of the Tribunal, Doc. A/54/187 of 25 August 1999 and 7th Annual Report Doc. A/55/273 of 7 August 2000.


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public of Iran, and Pakistan.94 The provisions of those Agreements, which were elaborated according to a "model" agreement, indicate the authority to which enforcement requests must be directed, and describe the procedure for transferral of the convicted person to the enforcement state.95 Another provision allows the International Committee of the Red Cross (ICRC) to regularly check the conditions of the imprisonment.96 According to article 13 of the Enforcement Agreements, the Agreements themselves remain in force for the duration of the imprisonment. Article 13 is of major significance since the Yugoslav Tribunal, will be in existence only for a limited time. The question arose whether its sentences could still be enforced once the Tribunal has been dismantled. Article 13 of the Enforcement Agreements has solved this problem since one party of the Agreements is the United Nations Organization, not the Yugoslav Tribunal. Therefore, a state is answerable to the UN in its duty to enforce a sentence of the Yugoslav Tribunal.

VI. State Cooperation in Practice Requests for deferral are rare. Since their financial and personal means are limited, the Tribunals make use of their primacy only in exceptional cases. Unless deferral is due to one of the reasons set out in Rule 9 RPE, trials are preferably left with national courts. In very few cases where states have been requested to defer, they have complied without hesitation. As to the enforcement of sentences, it has already been pointed out that the Tribunals cannot issue binding orders to states. In practice, state cooperation in pre-trial investigations and the execution of arrest and transfer orders are of primary interest. The necessity of state cooperation and the consequences of a state's failure to cooperate became evident during the so-called subpoena issue that took place before the Yugoslav Tribunal in 1997 in the case of Prosecutor v. T. Blaskic.97 Upon request of the Prosecutor, a Judge directed an order to Bosnia and Herzegovina and Croatia, and their respective state officials.98 They were requested to produce certain docu94 95 96 97 98

See above. See arts 2 and 3 of the Agreements on the Enforcement of Sentences. See article 6 para. 1 of the Agreements on the Enforcement of Sentences. CaseNo.IT-95-14-PT. The competent state officials were the Croatian Defence Minister, and for Bosnia and Herzegovina, the "Custodian of the records of the Central Ar-

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ments that would serve as evidence in the Blaskic Case. Whereas Bosnia and Herzegovina tried its best to comply with the order, Croatia denied the competence of the Yugoslav Tribunal to address a subpoena duces tecum to a state and its officials. Thereafter, special proceedings took place in which the parties to the Blaskic Case as well as various other states and scholars could present their legal opinions about the competence of the Yugoslav Tribunal to bring about the cooperation of a state, and the state's duty to respond to Tribunal orders. Since Croatia appealed against the decision of the Trial Chamber, it took the Tribunal more than half a year to determine the limits of its competences and even longer to obtain (some of) the documents requested." As the subpoena issue shows, even one state reluctant to cooperate with the International Tribunals can hamper their proceedings and can become a stumbling block in fulfilling their mandate.100 In practise, the carrying out of the Tribunals' arrest and transfer orders is varied. States to whom arrest and transfer orders of the Yugoslav Tribunal have been addressed (mainly successor states of the former Yugoslavia) have initially been unable or unwilling to execute such or-

99

100

chive of what was formerly the Ministry of Defense of the Croatian Community of Herceg Bosna." Since the Ministry of Defence of the former Croat Community Herceg-Bosna had ceased to exist, both the Bosnian Government and the ordering judge held the Custodian was responsible for cooperation with the Yugoslav Tribunal. "Similarly, the Appeals Chamber found that the Tribunal did not have the inherent judicial power to subpoena a State or its officials whereas they did have the power to subpoena an individual by virtue of this source of power", D. Sarooshi, "The Powers of the United Nations International Criminal Tribunals", Max Planck UNYB 2 (1998), 141 et seq., (153), with further references. See also P. Malanczuk, "A note on the Judgement of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia on the Issuance of Subpoena Duces Tecum in the Blaskic Case", Yearbook of International Humanitarian Law 1 (1998), 229 et seq. Although the Rwanda Tribunal is not bound expressis verbis by the decisions and statements of the Yugoslav Tribunal, the decisions of the subpoena issue can also be applied by the Rwanda Tribunal since they concern very basic questions about the Tribunals' basic law. When establishing the Rwanda Tribunal, the Security Council wanted to equip it with exactly the same competences as the Yugoslav Tribunal. Therefore, the competences of the Rwanda Tribunal should be defined in the same way as those of the Yugoslav Tribunal. Practise has already shown, that the Rwanda Tribunal is keen on following general decisions and statements of the Yugoslav Tribunal.


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ders.101 It took a long time before the Yugoslav Tribunal could get hold of its first accused. IFOR also hesitated to execute international arrest warrants of the Yugoslav Tribunal.102 103 Arrest and transfer warrants of the Rwanda Tribunal have been executed promptly and willingly by nearly all states to which such orders have been addressed. Arrest and transfer orders of the Rwanda Tribunal have mostly been addressed to African States, in particular to Kenya, Cameroon, Zambia and the Ivory Coast, but also to some European states as Belgium and Switzerland. Mention should be made of the spectacular Naki (Nairobi-Kigali) operation of 1997, in the course of which seven accused or suspects of the Rwanda Tribunal were arrested and transferred to the Rwanda Tribunal.104 Among those were the former minister of Rwanda for Family and Women's Affairs, the first women ever to be accused by an international tribunal.105

VII. Conclusion As practice shows, it depends for the most part on the cooperation of states whether the International Criminal Tribunals for the Former Yugoslavia and for Rwanda can fulfil their mandate and prosecute serious violations of international humanitarian law committed during the Yugoslav and the Rwanda conflicts. The Tribunals have been equipped with far-reaching legal and institutional means to guarantee an efficient 101

102

103

104

105

In particular Bosnia and Herzegovina seemed to be willing but did not have the necessary means to carry out arrest warrants of the Yugoslav Tribunal. The attitude of Croatia, which in the beginning was rather reluctant to execute such orders, seems to be changing. Only the Republic of Serbia and Montenegro has demonstrated that it is not willing to cooperate with the Yugoslav Tribunal. As mentioned above, SFOR/ KFOR is undoubtedly authorized to execute international arrest warrants of the Yugoslav Tribunal. Whether it is put under obligation to do so, remains a contentious issue. However, this issue has lost its practical importance since SFOR had proved its willingness to execute arrest warrants of the Yugoslav Tribunal. The Yugoslav Tribunal has expressed it appreciation of the cooperation in it 5th Annual Report as well as in the 6th. and 7th. See C. Cisse, "The End of a Culture of Impunity in Rwanda?", Yearbook of International Humanitarian Law 1 (1998), 161 et seq. See for further developments the 5th Annual Report of the Tribunal, Doc. A/ 55/435 of 2 October 2000.

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prosecution of such crimes. If the Tribunals are unable to fulfil their mandate, it will be the fault of the International Community. The Tribunals remain paralyzed if their orders are not carried out. It is especially important that states cooperate in executing arrest warrants and transfer orders. If they do not, an international organization or institution, as a last resort, can step in and remedy the situation. Thanks to the efforts of SFOR/KFOR, the Yugoslav Tribunal successfully initiated criminal proceedings against some (major) criminals of the Yugoslav conflict. On the other hand, the example of the Rwanda Tribunal demonstrates that such an international force is not necessary if states fulfil their part and assist the Tribunal as prescribed by the Statutes. The example of the Rwanda Tribunal further shows that a cooperation act is not necessarily needed to foster successful cooperation between the International Tribunals and states. Not one of the African states that have executed arrest and transfer orders of the Rwanda Tribunal had a legal instrument at their disposal authorizing national authorities to comply with such order. On the contrary the Yugoslav example made clear that the mere existence of a cooperation act is not necessarily an indication of a state's willingness to cooperate with the Tribunals. Some European states have enacted very clear cooperation acts, but when asked to execute an order, they claimed that compliance might threaten national security or similar national interests. It is noteworthy that the persons currently facing trial at the Rwanda Tribunal are, without exception, the main instigators of the atrocities committed during the Rwanda conflict. Most of them held key positions in politics, media or the economy before and during the civil war. Until recently those standing trial before the Yugoslav Tribunal, were merely pawns of those who were primarily responsible for the atrocities. This is not to say that minor war criminals should not be prosecuted; every participant in the crimes should be subject to prosecution. However, because the resources of the International Tribunals are limited and their credibility is at stake, minor criminals should be left to the national courts which can exercise their jurisdiction according to the principle of universality. The extradition of Slobodan Milosevic to the ICTY in July 2001 and the fact that B. Plavsic, formerly a member of the Presidency of the so called Serbian Republic of Bosnia and Herzegovina, and a member of the supreme command of the armed forces of the Serbian republic, who is indicted currently at the ICTY, have changed the picture for the ICTY. Should serious violators of international humanitarian law principally be prosecuted by an international court? It may be argued that


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leaving this task with national courts would preserve valuable resources. However, to ensure the equal dispensation of justice, to contribute to national reconciliation, and because of the preventative function of a criminal court, prosecution of violations of international humanitarian law should be handled by an international court. Even so, the aim of an international court should be the prosecution and conviction of the key figures.


Counter-Terrorism — A New Approach The International Convention for the Suppression of the Financing of Terrorism Anthony Aust1 On 10 January 2000 at United Nations Headquarters in New York the International Convention for the Suppression of the Financing of Terrorism2 was opened for signature. It had been negotiated in two twoweek sessions in New York in 1999. This was particularly remarkable since, unlike the previous nine counter-terrorism conventions3 the new 1

2 3

Author of Modern Treaty Law and Practice, 2000 and "Lockerbie: the other case", ICLQ 49 (2000), 278 et seq. about how the two accused of the Lockerbie crime were brought to trial before a Scottish court sitting in the Netherlands. The views expressed are personal, not those of the United Kingdom Government. ILM 39 (2000), 270 et seq.; A/RES/54/109 of 9 December 1999. Hague Convention for the Suppression of Unlawful Seizure of Aircraft 1970 (UNTS Vol. 860 No.12325; UKTS (1972) 39); Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971 (UNTS Vol. 974 No. 14118; UKTS (1974) 10); Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents 1973 (UNTS Vol. 1035 No. 15410; UKTS (1980) 3); International Convention against the Taking of Hostages 1979 (UNTS Vol. 1316 No. 21931; ILM 18 (1979), 1460 et seq.; UKTS (1983) 81); Convention on the Physical Protection of Nuclear Material 1980 (ILM 18 (1979), 1419 et seq.; UKTS (1995) 61); Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Montreal Convention, 1988 (ILM 27 (1988), 627 et seq.); Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 and Protocol for the Sup285

J.A. FroweinandR. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 285-306. © 2001 Kluwer Law International. Printed in the Netherlands.

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one is quite different in nature in that it is not concerned with terrorist crimes, like planting a bomb on board a civil aircraft, but with the financing of such crimes. Although financing aids the commission of terrorist crimes, because it is not itself a terrorist act the drafters of the new convention encountered some unusual problems. The two main ones were, first, the precise scope of the new offence, in particular how to define the terrorist acts the financing of which would be criminalised; and, secondly, how to deal with corporate bodies involved in terrorist financing. There were other problems of a lesser order which will also be discussed.

I. The Negotiations The new convention was a French initiative. The initial draft was first considered at meetings in Brussels of European Union Member States and at meetings in London and Paris of the G8.4 Most of the work was done by government legal experts. The draft went through several versions before it was tabled at the United Nations.5 It was then considered at a meeting of an ad hoc Committee from 15 to 26 March 1999.6 The work was continued by a Working Group of the Sixth Committee

4 5 6

pression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf 1988 (UMTS Vol. 1678 No. 29004); International Convention for the Suppression of Terrorist Bombings 1997 (ILM 36 (1997), 251 et seq.). On the present status of the conventions, see Doc. A/55/179,14-23. Negotiations for an International Convention for the Suppression of Acts of Nuclear Terrorism (originally proposed by Russia to fill lacunae in the 1980 Convention), were concluded in 1998, except for, in particular, the question whether to exclude from the scope of the convention the activities of armed forces. At the time of writing (December 2000) the negotiations on that question have still not been concluded (see Doc. A/55/37). For the 55th Sess. of the General Assembly in 2000 India tabled a draft Comprehensive Convention on Terrorism: see Docs A/C.6/55/l(draft) and A/C.6/55/L.2 (Working Group Report). The Group of Seven, plus the Russian Federation. Doc. A/C.6/53/L.4. The Committee was established by A/RES/51/210 of 17 December 1996 as an inter-sessional committee, originally to consider the draft convention on terrorist bombings and, subsequently the drafts on nuclear terrorism and terrorist financing. For its report on the latter, see Doc. A/54/37.

Aust, Counter-Terrorism — A New Approach

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which met from 27 September to 8 October 1999.7 Given the subject, Liechtenstein, Luxembourg and Switzerland8 naturally played a rather bigger role than usual. The meetings of the ad hoc Committee and the Working Group were chaired by Philippe Kirsch of Canada, ably assisted by Sylvia Fernandez of Argentina in the Working Group's informal negotiations on key article 2. After an insubstantial discussion as is usual on such occasions,9 the Sixth Committee recommended, by 116 votes for, none against and three abstentions,10 that the General Assembly adopt the text of the Convention,11 and on 9 December 1999 it did so without a vote. The Convention will enter into force thirty days after the deposit of the twenty-second instrument of ratification, acceptance, approval or accession.12 Most of the draft followed precedent, in particular the International Convention for the Suppression of Terrorist Bombings 1997 (Terrorist Bombings Convention), which has become the benchmark for new UN counter-terrorism conventions. However, as will be explained, the nature of the offence to be created by the new convention required creative thinking to overcome some new problems.

II. Definitions Article 1 contains only three definitions. The first, "Funds", is drawn deliberately wide: ...assets of every kind, whether tangible [e.g. cash] or intangible [e.g. a bank account], movable [e.g. diamonds] or immovable [e.g. land], however acquired [i.e. legally or illegally], and legal documents or 7 8

9 10 11 12

For its report to the Sixth Committee, see Doc. A/C.6/54/L.2. Although Switzerland is not a member of the United Nations, the mandates of the ad hoc Committee and the Working Group allowed it to participate as a full member at their meetings, not merely as an observer, though for some years the distinction has in practice not been particularly important in such subsidiary bodies. A/C.6./54/SR. 31 -2, 34,35 and 37. Benin, Lebanon and Syria. Doc. A/54/615. Doc. A/54/PV. 76; A/RES/54/109 of 9 December 1999. The Convention was opened for signature from 10 January 2000 to 31 December 2001. It can be acceded to at any time. By 1 December 2000 it had been signed by 35 states, of whom two had ratified.

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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. The first half of the definition is based largely on article 1 (g) of the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (Vienna Drugs Convention).13 The list at the end is only illustrative. The second definition, "State or government facility" is drawn word for word from the Terrorist Bombings Convention.14 It is also taken from the Vienna Drugs Convention, article 1 (p). The last definition, "Proceeds", is relevant only to article 8.15

III. Defining the New Offence An unexpected threshold issue was raised by representatives of certain Western European states. They questioned whether there was need for a new convention, since, in their view, the financier of a terrorist act would commit the ancillary offence of being an accomplice, and existing counter-terrorism conventions provide for the offence of being an accomplice. They also had difficulty with the concept that financing a terrorist act is as serious a crime as committing the terrorist act itself, though the whole point of the new convention is to tackle the difficult problem of financial "godfathers", without whom most terrorist crimes would not be possible. Their reluctance may, however, have had more to do with perceived domestic problems in enacting the necessary implementing legislation. Other Western European states, and states from other regions, saw no problem in creating a new principal offence. They considered that the provisions on accomplices in existing conventions were not enough, and that those who finance terrorist crimes should be treated as severely as those who commit the crimes.16

13 14

15 16

ILM 28 (1989), 493 et seq.; UKTS (1992) 11. Since it is relevant only to article 7 para. 2 (b) it would have been more practical to have located it there. See Modern Treaty Law, see note 1,343. And should have been placed there. See the Report of the ad hoc Committee (Doc. A/54/37), Annex IV. B, para. 84.


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The United Nations has for the last thirty years been much concerned with the problem of terrorism,17 yet the resolutions of the General Assembly and the Security Council from 1969 refer either to specific types of terrorist crimes, such as hijacking, or to particular incidents, or to terrorism generally. They do not contain any general definition of terrorism; and there is still no universally agreed definition, although many states have defined terrorism for the purposes of their domestic law: Section 1(1) of the (UK)Terrorism Act 2000 defines terrorism as: (1) the use or threat of action where(a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. (2) Action falls within this subsection if it(a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person's life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system [e.g. a computer network]. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (l)(b) is satisfied. (4) In this section(a) "action" includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and

17

See the Hague Academy lectures by G. Guillaume, "Terrorisme et Droit International", RdC2l5 (1989), 287 et seq.

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(d) "the government" means the government of the United Kingdom, or of a Part of the United Kingdom [e.g. Scotland] or of a country other than the United Kingdom. (5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation. It should be noted, however, that this is a definition for the purposes of the Act; it is not the definition of a criminal offence. The Act does not create an offence of terrorism as such, since terrorist activities generally involve the commission of "ordinary" criminal acts, but the Act makes it easier for the police to investigate and frustrate terrorist acts.18 Reaching an internationally agreed definition has proved elusive.19 The main obstacle now is the insistence of a few states that violent acts done for the purposes of national liberation movements should be excluded.20 The vast majority of states regard indiscriminate acts of violence done for the purpose of intimidating ordinary people as deserving of punishment whatever the motive, and are therefore unwilling to accept any such exception. The impasse is illustrated by the series of resolutions of the General Assembly on the general subject of terrorism, beginning in 1972 after the attack by Black September at the Munich Olympic Games.21 Each one was the subject of lengthy, and often acrimonious, informal negotiations. The Resolution of 9 December

18

19 20 21

The definition is particularly relevant to the much expanded provisions of Section 3 enabling the Government to add to the list of organisations which are proscribed because they are concerned in terrorism. Foreign terrorist organisations operating from the United Kingdom can now be proscribed. In addition, there are some specific terrorist offences in the Act, for example in Part III in relation to the property of terrorists, which are of particular relevance to the Convention. The further legislation to enable the United Kingdom to ratify the Convention is in Section 63 of the Act. See J. Lambert, Terrorism and Hostages in International Law, 1990, 29-45. See note 28 for example. A/RES/3034(XXVII) of 18 December 1972; A/RES/31/102 of 15 December 1976; A/RES/32/147 of 16 December 1977; A/RES/34/145 of 17 December 1979; A/RES/36/109 of 10 December 1981; A/RES/38/130 of 19 December 1983; A/RES/40/61 of 9 December 1985; A/RES/42/159 of 7 December 1987; A/RES/44/29 of 4 December 1989; A/RES/46/51 of 9 December 1991; A/RES/49/60 of 9 December 1994; A/RES/51/210 of 17 December 1996; A/RES/53/108 of 8 December 1998; A/RES/54/110 of 9 December 1999.


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1994,22 adopted by consensus, was the first which, by avoiding any language about the underlying causes of terrorism, shut the door to any argument that the United Nations implicitly recognised that some terrorist acts could be justified by the aims of the perpetrators. The Declaration on Measures to Eliminate International Terrorism, annexed to the resolution, contains a general description of terrorism in its solemn reaffirmation by the members of the United Nations of their: "unequivocal condemnation of all acts, methods and practices of terrorism, as criminal and unjustifiable, wherever and by whomever (sic) committed" and that "criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious, or any other nature that may be invoked to justify them." These formulas have been repeated in subsequent resolutions, and were recalled in the preamble to the new convention. None of the previous counter-terrorism conventions had attempted to define terrorism. Instead, they follow a "segmental", "sectoral" or "piecemeal" approach. Each deals with a specific terrorist act, such as hijacking, hostage-taking or aircraft sabotage. The problem facing the drafters of the new convention was that, unlike previous conventions, they would not be able simply to define the new offence by reference to a specific category of act. Instead they would have to define an offence of financing terrorism. Some thought that one might be able to define the new offence simply by including a list of the specific terrorist offences defined in the nine existing conventions and any further ones. This approach was similar to that adopted in the European Convention on the Suppression of Terrorism 197723* which lists a number of serious offences and provides that, for the purposes of extradition, they are not be regarded as political. From the beginning of the negotiation of the new convention the listing approach was acceptable to all, although there were certain technical problems which will be discussed later. But other states wanted to go further and include also what would be, in effect, a mini-definition of terrorism. The proponents of this argued that there was a lacuna in the existing conventions since they did not cover terrorist acts such as murder done by shooting, bludgeoning,

22 23

A/RES/49/60 of 9 December 1994. UNTS Vol. 1137 No. 17828; ILM 15 (1976) 255 et seq.; UKTS (1978) 93.

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stabbing, strangulation, suffocating, poisoning, drowning and suchlike. It was said the lacuna could represent as much as 30 per cent of terrorist crimes and so had to be filled. But it was pointed out by others that the new convention would not "internationalise" such crimes, only the financing of them; it was therefore rather illogical to make it an "international offence" to finance an act which would be unlikely to be such an offence for the foreseeable future. Those advocating the mini-definition seemed sometimes to forget the limitations of the immediate exercise, though, as it turned out, they were right to persist.24 But the main argument against trying to include a mini-definition was that it would inevitably reopen the dormant debate on what is terrorism, and thereby complicate and delay, perhaps even prevent, the adoption of an important new convention. As it turned out we were wrong. The inclusion of a mini-definition was achieved without too much difficulty. At the meeting of the ad hoc Committee a few states spoke of the need to distinguish between "legitimate national liberation movements" and terrorist groups.25 At the Working Group there was little pressure to omit the mini-definition.26 When the draft convention was considered by the Sixth Committee27 certain states mentioned the need to "differentiate between acts of terrorism committed by individuals, groups or states, and the legitimate acts of resistance undertaken by peoples subjected to colonial rule, oppression and foreign occupation with a view to regaining their legitimate rights".28 The first three paragraphs of article 2 read as follows: 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: 24

25 26

27 28

The Indian proposal for a comprehensive convention on terrorism is much more ambitious (see the end of note 3). Report of the ad hoc Committee (Doc. A/54/3 7, para. 38). Report of the Working Group (Doc. A/C. 6/54/L.2, Annex III, paras 2 and 81). Doc. A/C.6./54/SR.31-2, 34,35 and 37. UAE statement. Others who made a similar point were Cuba, Iraq, Lebanon, Libya, Oman, Qatar, Pakistan and Syria. At the 55th Sess. of the General Assembly in 2000, the terrorism resolution (A/RES/55/158 of 12 December 2000) was, for the first time for some years, put to the vote. There were no negative votes, but Lebanon and Syria abstained.

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(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 organisation 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).29 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. 3. For an act to constitute an offence set forth in paragraph 1 [i.e. financing terrorism], it shall not be necessary that the funds were actually used to carry out an offence referred to in paragraph 1, subparagraphs (a) or (b).30 The reports of the ad hoc Committee, containing as they do the texts of all the many drafting proposals, well illustrate the complex business of negotiating even a relatively short multilateral treaty. A blow-by-blow account of the tortuous path leading to the final text of article 2 might

29

30

This idendfication of the Annex should have been made earlier in the subparagraph. The mistake was not corrected by die depositary. There are few multilateral treaties today which do not contain (mainly drafting) errors, large and small: see Modern Treaty Law, see note 1,270-273. As used in the other articles, the references to "offences set forth in article 2" relate to the new offences of financing terrorism; and references to "offences referred to in article 2, paragraph 1, subparagraphs (a) or (b)w relate to offences under the existing conventions or acts coming within the minidefinition of terrorism. What these references mean does not exactly leap off the page, but they were preferred to a suggestion for more intelligible and concise formulations, such as "financing offences" and "terrorist offences".

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be interesting to some, but will not be attempted. Instead, only the most difficult or contentious issues will be discussed.

Paragraph 1 "any person" As in existing counter-terrorism conventions, this phrase encompasses anyone, whether private individuals or public or government officials. Because of the particular nature of the new offence, article 5 extends the scope of the Convention to legal entities, such as companies (see below). "by any means, directly or indirectly" This comprehensive phrase was adopted so as to prevent a loophole. Thus, it does not matter bow funds get to a terrorist so long as the person supplying the funds — whether as originator or intermediary — has the necessary intention or knowledge (see below). "unlawfully and wilfully* There were lengthy discussions as to whether "unlawfully" should be included. Some said that, since providing or collecting funds for the purposes of terrorism constituted the offence, it was tautological to qualify it by "unlawfully". Such a qualification had certainly been needed when defining offences in the earlier conventions. In the Terrorist Bombings Convention it had been necessary because there could be cases where law enforcement authorities might have to cause explosions in a public place. Although such cases would be exceptional, it had to be made clear that they were outside the scope of the offence. On the other hand, others pointed out that law enforcement agencies might wish to provide funds to a terrorist organisation as part of a plan to infiltrate it and trap its members, or money might be paid as a ransom (though in the latter case the purpose of the payment would seem to take it out of the scope of the offence). Others favoured retention of "unlawfully" so as not to criminalise unintentionally lawful acts of financing which might have the unintended result of aiding the commission of terrorist offences, such as giving money to a national liberation movement when only part of the movement is believed to be involved in terrorism (Hamas was often quoted). Given the nature of their activities, the International Committee of the Red Cross and the United

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Nations High Commissioner for Refugees had similar concerns.31 It was therefore decided that, rather than rely solely on any prosecutorial discretion (which does not exist in all legal systems), it should be made absolutely clear that in such cases no financing offence would be committed. For similar reasons "wilfully" was added to emphasise that the financing had to be done deliberately, not accidentally or negligently, though the following elements of intention or knowledge are probably sufficient. "provides or collects funds" Various formulations were suggested for this element of the offence. Of special concern to some was the possibility (perhaps probability) that a person could receive funds which he might know are likely to be used, at least in part, for terrorism. Once again the example of national liberation movements was given. Although the elements of intention or knowledge might be sufficient protection, it was thought that the more active concept of providing or collecting funds would better protect the innocent receiver of funds. Some had wanted to include the receiving of funds, even though it is the providing of funds, either as a principal or an intermediary, which is the main concern. Suggestions that the text should specify types of fund-raising were not adopted as they could have created a loophole. "with the intention that they should be used or in the knowledge that they are to be used" The United Kingdom had proposed, on the basis of its existing legislation,32 that it should be sufficient for the purposes of the offence if a

31

32

See Docs A/AC.252/1999/INF/2(ICRC) and A/C.6/54/WG.1/INF/1 (UNHCR). Prevention of Terrorism (Temporary Provisions) Act 1989, Section 9. See now the Terrorism Act 2000, Section 57 (1) and (2): (1) A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism. (2) It is a defence for the person charged with an offence under this section to prove that his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism.

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person provides funds in circumstances where there is a reasonable suspicion that they will be used for terrorist purposes, unless the person can prove otherwise. This was opposed by those who felt that it shifted the burden of proof on to the accused contrary to fundamental human rights principles. However, in many of today's serious crimes (e.g. drug trafficking) such a reverse burden of proof is sometimes essential; the prosecution still has to establish certain facts (such as the possession of bomb-making equipment), before the accused is required to convince the court or the jury that he had no reason to believe they would be used for terrorist attacks.33 And the prosecution still has to prove all other elements of the offence "beyond reasonable doubt". But for the new convention the two alternatives (intention or knowledge) were felt to be as far as one should go. Paragraph 3 It is convenient to deal with this paragraph now since it is related to the last point. To say, as the paragraph does, that in order to prove the offence the funds in question do not in fact have to be used to carry out a terrorist offence (for that is what the somewhat opaque wording means), may seem strange. But it was readily accepted that the elements of intention, that the funds should be used for — perhaps unspecified — terrorist purposes, or the knowledge that they are to be so used, are what is important for constituting the offence. Whereas it can be possible to trace the supplier of a physical object used in an terrorist attack, such as a gun, given the secrecy with which attacks are planned it would be virtually impossible to prove that a particular sum of money had

33

During the Parliamentary debates on the draft of the Act the above provisions were criticised, albeit wrongly, for shifting the burden of proof of the crime on to the accused. Therefore, in relation to Section 57 and certain other provisions, Section 118 provides (though not in the most pellucid prose) that where the prosecution has established an evidential presumption regarding a certain matter, if the accused produces evidence which is sufficient to raise an issue with respect to that matter, the court or jury shall assume that the defence has rebutted the presumption, unless the prosecution disproves beyond reasonable doubt that it has not. Article 6 para. 2 of the European Convention on Human Rights (UNTS Vol. 213 No. 2889; UKTS (1953) 71) does not prohibit presumptions of fact that may operate against the accused: see D. Harris/ M. O'Boyle/ C. Warbrick, Law of the European Convention on Human Rights, 1995, 243-244, and the judgment of the English Court of Appeal (Criminal Division) of 31 July 2000 in: R. v. Lambert, London Times of 5 September 2000.


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been used to finance a. particular attack or even a. particular category of terrorist act. Thus para. 3 avoids the need to prove that the accused knew the precise destination of the funds or that they would be used to finance a particular terrorist act (e.g. the planting of a bomb in a particular airport on a particular day) or even a specific category of terrorist act. It therefore removes what might have been a serious obstacle to proving the new offence. An early draft included the financing of preparations for the commission of terrorist acts, since most of the money given to terrorists is naturally spent on preparations. Although this was deleted, it is clear from the design of paras 1 and 3 that the new offence covers preparations. We can now go back to subparas 1 (a) and (b). Subparagraph 1 (a) This refers to an act which constitutes an offence within the scope of, and as defined in, one of the treaties listed in the Annex to the Convention. The Annex lists the nine existing counter-terrorism conventions. Three explanations are called for. First, the Tokyo Convention on Offences and Certain other Acts Committed on Board Aircraft 196334 is not included, though it is sometimes thought of as the first of the conventions. However, it is primarily concerned with offences "against the penal law" (i.e. "ordinary" offences) or acts, whether or not they are offences, which could jeopardise the safety of the aircraft or good order and discipline on board, like being extremely drunk. Hijacking is referred only in one short article concerned with ending such incidents. Secondly, the Convention on the Physical Protection of Nuclear Material 1980 is listed since it includes offences relating to the unlawful taking or use of nuclear material. Thirdly, the offences referred to are not only the principal offences under the listed treaties; all the ancillary offences, such as attempts and complicity, are included. Some thought this was unnecessary, but in the end it was generally felt that there would be no harm in including them, and possibly some danger in not doing so. There was a great and continuing fear of loopholes. Subparagraph 1 (b) The substance of this mini-definition of terrorism is more or less the same as in the first draft tabled by France,35 except that it emphasises 34 35

UNTS Vol. 704 No. 10106; ILM 2 (1963) 1042 et seq.; UKTS (1969) 126. See the Report of the ad hoc Committee (Doc. A/54/37), Annex II.

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more clearly the purpose of the terrorist act. This was necessary so as to distinguish such acts from "ordinary" crimes of violence. It also excludes acts against a person "taking an active part in the hostilities in a situation of armed conflict". This is a simpler form of the so-called "military carve-out". This transatlantic term has been coined for a clause which excepts from the definition of a terrorist offence acts performed by members of armed forces during an armed conflict, and for which international humanitarian law (i.e. the laws of armed conflict) already makes provision. Such an exception was included in article 19 para. 2 of the Terrorist Bombings Convention, since some of the acts which would amount to an offence for the purposes of that convention could well be committed legitimately by members of armed forces. There was no need for such an elaborate clause in the new convention. Although described in this article as a mzm-definition of terrorism, the scope of subpara.1 (b) is potentially quite wide ("Any other act intended to cause death or serious bodily injury"), and would cover any means of attack, including acts which constitute offences under some of the earlier conventions, such the Terrorist Bombings Convention. The criteria for judging the purpose of the act is objective. This is made clear by the references to the "nature" of the act and its "context". Some acts make their purpose only too clear, such as the murder of the Israeli athletes at the Munich Olympics. If the nature of the act is not a clear indication of its purpose, the context in which it was done may be. These criteria have to be read with the closing words which limit the purpose of the act to intimidating a population or compelling a government or an international organisation to do or to abstain from doing any act. This is in a sense narrower than in the International Convention Against the Taking of Hostages 1979 (Hostages Convention^, where the purpose is expressed to be to compel a third party, namely a state, an international intergovernmental organisation, a natural or juridical person, or a group of persons, to do or abstain from doing any act, but broader in that it is wide enough to cover acts which have no political or ideological rationale, in other words, what could be seen as "ordinary" crimes. However, like the other earlier conventions, the Hostages Convention did not provide that hostage-taking shall not be regarded as a political offence for the purposes of mutual legal assistance or extradition, whereas article 14 of the new convention and article 11 of the Terrorist Bombings Convention do so provide. But it must be remembered that although the definition of terrorism in the new convention is not comprehensive, it was devised only for that convention, and solely for the purpose of defining the new offence


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of financing terrorism. Whether it will be used as the basis of an internationally accepted definition of terrorism remains to be seen. The Sixth Committee has now before it an Indian proposal for a Comprehensive Convention on International Terrorism.36 Its proposed general definition of terrorism is intended to fill the lacuna in the complex of the existing counter-terrorism conventions by covering terrorist acts such as murder by shooting. Before we leave the dissection of the definition of the new offence, we need to look briefly at two other matters concerning the Annex.

Paragraph 2 Discussion of this paragraph took an inordinate length of time. Not all states which wish to become parties to the new convention will necessarily be parties to all the previous conventions. But becoming a party to the new convention would, of course, not make them parties to a convention listed in the Annex if they are not already a party to it. The conventions are listed for the sole purpose of defining the offence of financing terrorism. Nevertheless, some states were concerned that they should not be required to accept a definition of terrorism which referred to offences specified in treaties to which they are not parties. Their concern was not lessened by the fact that by becoming party of the new convention they would not become bound by such treaties, or that the offences embodied in existing conventions may already be offences under their own domestic law. Their problem seemed to be more political. Although they well understood these points, their representatives may have been concerned that their parliamentarians might not; and negotiating parliamentary obstacles can be every bit as exhausting as negotiating a multilateral treaty. Therefore, the paragraph gives a state, when consenting to be bound by the new convention, the option of making a declaration to exclude in the application to it of the Annex any treaties to which it is not a party. If it subsequently becomes bound by any of those treaties the declaration lapses automatically. If it later ceases to be a party to one of the treaties, it can opt to exclude it from the Annex in its application to itself. The provisions may seem rather clumsy, but they are technically correct and were unavoidable politically.

36

See the end of note 3.

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When states come to consider whether to become parties to the new convention many who are not parties to all the previous conventions may conclude that they have no problem with defining the offence by reference to conventions to which they are not yet bound, and that they therefore can ratify the new convention without making a declaration. Hopefully, they may also decide to become party to those conventions as well. Amendment of the Annex In view of the importance of the Annex, an efficient means was needed for adding new treaties to the list. Article 23 thus provides that "relevant" treaties may be added if they are open to participation by all states (i.e. are universal), have entered into force, and have been adhered to by at least twenty-two States parties to the Convention. A State party must propose the addition of a new treaty by writing to the depositary, who will circulate the proposal the other States parties and seek their views. The proposal is deemed to have been adopted unless one-third of the States parties object in writing within 180 days. The amendment to the Annex will then come into force thirty days after the deposit of the twenty-second instrument of ratification etc. For other States parties it will come into force thirty days after deposit of their instruments. Paragraphs 4 and 5 These paragraphs contain the — by now fairly usual — provisions regarding attempts (para. 4), accomplices (para. 5 (a)), organising and directing others to commit the offence (para. 5 (b)) and conspiracies (para. 5 (c)). All but para. 5 (c) follow closely article 2 para. 3 of the Terrorist Bombings Convention. Although a provision on conspiracies had been devised and adopted for that Convention by the United Nations as recently as two years before, some civil law states questioned the inclusion of it since, so they argued, their law did not recognise the concept of conspiracy. However, it became clear in discussion that many civil law states did have a similar concept. They included states as diverse as Algeria, China, Cuba, Ecuador, France, Germany, Russia and Turkey. But the negotiators were eventually reminded, by Canada, that the provision in the Terrorist Bombings Convention had been copied, but improved upon, in article 25 para. 3 (d) of the Rome Statute of the Inter-


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national Criminal Court 1998.37 The new convention therefore contains that formulation, which makes it clear that there is an option between subparas (a) and (b). The first subparagraph reflects the civil law concept of association malfaitettr, the second the common law concept of conspiracy. Most of the other articles of the new convention will be familiar to the connoisseur of counter-terrorism conventions, and follow largely provisions of the Terrorist Bombings Convention. Only those provisions which are specific to the new convention will therefore be discussed.

IV. Liability of Legal Entities Article 5 is an important complement to article 2, and is unique for a counter-terrorism convention: 1. Each State Party, in accordance with its domestic legal principles, shall take the necessary measures to enable a legal entity located in its territory or organised under its laws to be held liable when a person responsible for the management or control of that legal entity has, in that capacity, committed an offence set forth in article 2. Such liability may be criminal, civil or administrative. 2. Such liability is incurred without prejudice to the criminal liability of individuals who have committed the offences. 3. Each State Party shall ensure, in particular, that legal entities liable in accordance with paragraph 1 above are subject to effective, proportionate and dissuasive criminal, civil or administrative sanctions. Such sanctions may include monetary sanctions. There had been no need for such a provision in previous counterterrorism conventions, since the acts they were concerned with were of such a tangible nature as to be liable to be committed only by individuals. In contrast, the financing of terrorism, although it will usually involve some handling of cash or other physical assets, is essentially intangible in nature. Moreover, when large amounts of money are involved it is likely that at some stage a legal entity, such as a bank or trust, will be the means by which the money is made available, directly or indirectly, to the terrorists. When that has been done with the help of a person responsible for the management or control of the entity, it is 37

ILM 37 (1998) 1002 et seq., (1016).

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important that the entity itself should be held accountable. Of course, in all this the purpose is primarily to deter such activities, in this case by giving a clear warning to those in charge of banks and suchlike that they must ensure that they are not being used, with the active involvement or knowledge of persons in management or control of them, to transmit funds to terrorists. But such a provision was viewed warily. The first main problem was to gain acceptance of the concept that, although the legal entity cannot itself commit the offence of financing, it can nevertheless be held vicariously liable if a person who is responsible for the management or control of the entity commits the offence. This is the position in various legal systems, although expressed in different ways. In English law the criminal liability of corporations is still developing.38 Their liability is vicarious, since they can act only through a director or employee. The acts of controlling officers of a corporation, such as a director or manager who are the embodiment of the corporation, and done in the course of the business, as well as their state of mind, are regarded as those of the corporation for which it can be made liable. When a statute makes it an offence for "a person" to do or to omit to do anything, a corporation can commit the offence (e.g. conspiracy to defraud involving a managing director), unless a contrary intention appears from the statute. A contrary intention can be inferred where the nature of the act could not be committed by controlling officers in the course of business, bigamy being an obvious example. If a statute imposes strict liability (i.e. no mens rea), it is sufficient for the act to be done by an employee or agent. For a corporation to be criminally liable, the offence must be subject to a fine. Therefore it cannot be guilty of murder, for which the only sentence is life imprisonment, but it can be guilty of manslaughter.39 Many other countries, including Canada, the Netherlands and the United States, have similar provisions. Although French law has been slower to recognise that corporations could be criminally liable, the Nouveau Code Penal 1994 made a notable innovation in the criminal law. Articles 121-122 provide that corporate bodies can be criminally liable if it is so specified by statute or decree for offences committed on their behalf by their organs or representatives. Organs include the general meeting of the corporation, the board of directors or the governing board. The representatives include the managing director. The offence must, however, be committed for the benefit of the corporation. Nevertheless, and subject to those cave38 39

See J. Smith/ B. Hogan, Criminal Law, 1999,179-187. See Meridian Global Funds (1995) 2 AC 500.


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ats, offences such as genocide, involuntary homicide, wounding, drug trafficking, money laundering, theft, fraud, treason, espionage, currency and environmental offences and price-fixing can all be committed by corporations.40 The other main problem was that the law of some states still does not enable legal entities to be prosecuted for a criminal offence. This was overcome fairly easily by providing that each State party has a discretion to apply criminal, civil or administrative liability, according to its own legal principles. For the purposes of the new convention it is not necessary that the entity should have benefited from the transaction, but the offence must be committed by a "senior" person, not just any employee, such as a clerk in the back office. There is one other safeguard. A legal entity will only be liable if the person in management or control committed the offence in that capacity. In other words, if a bank manager merely uses his access to the bank's computer system in order to transfer funds to terrorists, that will not make the bank liable if the manager did it in a private capacity. Determining whether it was a private or official act may not be easy. There would seem, however, to be at least an evidential presumption that if a manager makes use of the bank he works for to commit the offence, he is doing it by virtue of his official position since he would not have access to the computer as a private person. The position would be different if a bank messenger without authorised access to the computer system used it to commit the offence.

V. Seizure of Funds Article 8 provides that each State party shall, for the purpose of forfeiture, take appropriate measures, "in accordance with its domestic legal principles", to identify, detect and freeze, or seize, any funds used or allocated for the purpose of financing terrorist offences. This applies also to any proceeds deriving from terrorist financing. It also envisages States parties entering into bilateral agreements on the sharing of funds derived from forfeitures, either on a regular basis or case-by-case. State parties are encouraged to consider establishing mechanisms whereby such funds are used to compensate the victims of terrorist offences. The 40

See, F. Desportes/ F. Le Gunehec, Le nouveau droit penal, 5th edition 1998, Vol. 1, paras 569-626; J. Bell/ S. Boyron/ S. Whittaker, Principles of French Law, 1998,239-41.

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rights of third parties acting in good faith are protected. Thus, if assets derived from the financing of terrorism have been transferred to an innocent third party they could not be forfeited.

VI. Bank Secrecy Article 12 para. 2 prohibits the refusal of a request for mutual legal assistance on the ground of bank secrecy. Criminals increasingly abuse bank secrecy, by which is meant all aspects of the confidentiality of customers' accounts, not just secret or numbered bank accounts. More and more exceptions are being made for those cases, such as drugtrafficking and money-laundering, where the serious nature of the crimes outweighs the otherwise legitimate interest of an individual in keeping his financial affairs private. Article 12 para. 2 was taken from article 7 para. 5 of the Vienna Drugs Convention 1988.41

VII. New Offences Are Not Fiscal Offences Article 13 provides that the new offences of financing terrorism shall, for the purposes of extradition or mutual legal assistance, not be regarded as fiscal offences; and a request for extradition or mutual legal assistance may not be refused on the sole ground that it concerns a fiscal offence. In this context "fiscal" means relating to money or public revenue. Tax evasion is a typical fiscal offence, for which a person cannot usually be extradited or be the subject of mutual legal assistance. The provision was drawn from article 1 of the Additional Protocol to the Council of Europe's Convention on Mutual Assistance in Criminal Matters 1978.42 After some initial resistance by certain Western European states, it was accepted that financing terrorism should not be a fiscal offence, and that it was desirable that there shall be no doubt on the matter.

41 42

ILM 28 (1989), 493 et seq.; UKTS (1992) 26. UKTS (1992) 24; ILM 17 (1978), 801 et seq.


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VIII. International Cooperation Article 18 contains detailed provisions intended to enhance further practical cooperation between the States parties to prevent and counter preparations for terrorist financing, whether inside or outside their territory. Although several states already have the necessary legislation, those which do not may need to consider adapting theirs. The measures include identification by financial institutions of their usual or "occasional" customers; paying special attention to unusual or suspicious transactions; and reporting transactions suspected of stemming from crime. Based on "The Forty Recommendations" of the Financial Action Task Force on Money Laundering (FATF) of the OECD,43 the States parties are required to consider: prohibiting the opening of accounts if the holders are "unidentified or unidentifiable", and requiring financial institutions to verify the identity of the "real owners", in particular of legal entities;44 requiring financial institutions to report promptly "all complex, unusually large transactions and unusual patterns of transactions, which have no apparent economic or obviously lawful purpose"; and "requiring financial institutions to keep records of transactions, both domestic and international, for at least five years".45 The States parties are also required to cooperate further by "considering": supervisory measures, such as the licensing, of all money-transmission agencies (including bureaux de change)', measures to detect or monitor the physical cross-border transportation of cash and bearer negotiable instruments; exchanging accurate and verified information concerning all aspects of terrorist financing; and

43 44

45

See http://oecd.org/fatf/40Recs_en.htm FATF is very stringent. In May 2000 it severely criticised Austrian plans for the future of anonymous bank accounts, going so far as to say that if the plans were not tightened up by 20 May, Austria would be expelled from FATF as early as 15 June. Austria revised its plans that May. For members of the European Union these measures are already required by the Directive of 10 June 1991 on the prevention of the use of the financial system for the purpose of money laundering (91/308/EEC).

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conducting inquiries with respect to terrorist financing concerning the identity, whereabouts and activities of suspected persons and the movement of funds involved. For these purposes information may be exchanged through the International Criminal Police Organisation (INTERPOL).

IX. Conclusion Some draft resolutions are promoted in the UN General Assembly for domestic or regional political reasons, rather than because they answer to a truly international need. Yet it is not easy to prevent them being adopted, albeit in an emasculated form. This fact of international life also applies, though fortunately less so, to multilateral treaties. The motive which prompts a state to propose a new treaty is not always clear. Sometimes the state may feel that, since a rival has been successful in promoting a treaty, it is time that it had a similar success. But if there is no topic which is immediately suitable for such treatment, the proposed treaty may receive a somewhat half-hearted reception. Fortunately this was not the case with the draft convention. It clearly met a need, and the doubts about the ambitious mini-definition of terrorism turned out to be mistaken. The negotiations were therefore a good example of what can be achieved in the space of only one year when there is a proposal of substance; the need is generally accepted; the first draft is carefully prepared; and the negotiators, in particular the proposers and their supporters, are open-minded, flexible and imaginative.

UNESCO's Contribution to the Progressive Development of Human Rights Janusz Symonides

I. Introduction The obligation to promote and protect human rights is formulated in article 1 of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) Constitution which states that: "The purpose of the Organization is to contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law and for human rights and fundamental freedoms..." To further universal respect for human rights, the Organization, through education, information, and documentation, as well as research and reflection, promotes human rights and makes them known and better understood. Human rights can be protected if they are known and understood by people, as well as by professionals having special responsibilities in this field (lawyers, judges, police and army officers, etc.). Consequently, the promotion of the knowledge of human rights became an essential part of UNESCO's activities from the very first years of its existence.1 1

Activities and programmes of UNESCO aimed at the creation of a comprehensive system of education for human rights are presented in a number of publications: D. Chitoran/ J. Symonides, "UNESCO's Approaches to Promoting International Education at the Level of Higher Education", in: 307

JA. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 307-340. © 2001 Kluwer Law International. Printed in the Netherlands.

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It may be recalled that, on 10 December 1948, immediately after the proclamation of the Universal Declaration of Human Rights, the General Conference adopted a resolution which acknowledged the importance of this cornerstone instrument for all UNESCO's activities. Moreover, the General Conference asked the Director-General to actively disseminate information concerning the Universal Declaration within the Secretariat to ensure that all units of the Organization were inspired by its provisions. To give an impetus to the development of human rights education, UNESCO organized a series of international congresses on this subject: in Vienna, Austria (1978), Malta (1987), and Montreal, Canada (1993). The Montreal International Congress on Education for Human Rights and Democracy adopted the World Plan of Action on Education for Human Rights and Democracy based on the assumption that education on human rights is itself a human right and is a prerequisite for the full realization of the ideals of democracy, social justice, peace, development, and human rights, which are universal and indivisible. The Plan presents a framework of action to be tailored and executed by states, intergovernmental, and non-governmental organizations and other social actors. UNESCO is also actively involved in the implementation of the Plan of Action for the United Nations Decade for Human Rights Education (1995-2004). The Organization is now working to encourage the preparation and adoption of national plans for developing human rights education; to support the elaboration of manuals, textbooks, and teaching aids and to reinforce networks of institutions active in education for peace, human rights, and democracy. These questions are discussed at regional meetings on human rights education convened by UNESCO. The long-term goal of UNESCO is the creation of a culture of human rights by the establishment of a comprehensive system of education and training for peace, human rights, and democracy for all groups of people that embrace all levels of education, whether formal or non-formal. J. Calleja (ed.), International Education and the University, 1995, 9 et seq.; J. Symonides/ V. Volodin, "Education for Human Rights and Democracy in the New International Context", Education for Human Rights and Citizenship in Central and Eastern Europe, 1995, 38 et seq.; J. Symonides, "UNESCO and Education for Human Rights", in: E. Verhellen (ed.), Understanding Children's Rights, 1998, 708 et seq.; J. Symonides, "United Nations and Human Rights Education", in: D. Bourantonis/ M. Evriviades (eds), A United Nations for the Twenty-First Century, 1996,361 et seq.

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In order to protect human rights the Organization elaborates international instruments. Standard-setting has thus always played an important role in UNESCO's activities. During more than half a century of existence, about sixty Conventions, Declarations and Recommendations have been elaborated and adopted by the General Conference of UNESCO. A majority of these instruments is linked directly or indirectly with human rights. It is obvious that they concern primarily those human rights which are within UNESCO's fields of competence (education, culture, science, as well as communication and information). Though a number of UNESCO instruments are not designed specifically for human rights protection, nevertheless they establish guarantees for the rights of persons belonging to various professional groups and concern the implementation of the rights which are within UNESCO's fields of competence. Such normative instruments deal with the right to participate in cultural life, access to education, science and information.2 The normative instruments adopted by the Organization can be divided into two categories: on the one hand, Conventions and, on the other, Declarations and Recommendations. The adoption of an international Convention demands a two-third majority at the General Conference, whereas in the case of Recommendations and Declarations a simple majority is sufficient. Conventions, after ratification, acceptance or accession by states, are binding. Though Declarations and Recommendations are not formally binding, Member States are invited to implement them. The fact that a state is not party to a given instrument does not mean that its provisions can be completely disregarded. Member States have an obligation to submit standardsetting instruments (Conventions, Recommendations and Declarations), adopted by the General Conference, "... to its competent authorities within a period of one year from the close of the session of the General Conference at which they were adopted". It presumes that the provisions of these instruments are taken into account in national legislation and practice. Apart from monitoring the implementation of adopted instruments through the reporting system, the Executive Board of UNESCO at its 104th Sess. in 1978, laid down a confidential procedure for the examination of communications (complaints) received by

Recommendation concerning the Status of Teachers, 1966; Recommendation concerning the Status of Scientific Researchers, 1974; Recommendation on the Legal Protection of Translators and Translations and the Practical Means to Improve the Status of Translators, 1976; Recommendation concerning the Status of the Artists, 1980.

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the Organization concerning alleged violations of human rights in its field of competence namely education, science, culture and information. This procedure is set out in 104/EX Decision 3.3 of the Executive Board. The main objective of this article is not to present numerous UNESCO's activities aimed at the promotion of human rights but to answer the question whether and to what extent UNESCO has contributed to the progressive development of human rights. This means that standard-setting instruments and monitoring and supervisory procedures will be closely analyzed.

II. UNESCO Standards Setting Instruments3 1. Standards Concerning Education a. The Right to Education In accordance with its mandate, UNESCO has adopted a number of normative instruments: Conventions and Recommendations ensuring the enjoyment of the education for everyone. The best known among these is the Convention Against Discrimination in Education, 1960, which entered into force in 1962. The Convention is not only directed at the elimination of discrimination in education but also concerns the adoption of measures aimed at promoting equality of opportunity and treatment in this field. At the same time as the Convention, the General Conference also adopted the Recommendation Against Discrimination in Education, in order to avoid difficulties which Member States might have — for various reasons, in particular those due to their federal structure, in ratifying the Convention. The right to education is intimately linked with the right to teach. In 1966 an intergovernmental conference convened by UNESCO, with the participation of the ILO, adopted the Recommendation Concerning the Status of Teachers. In its preamble it underlines that the right to education is a fundamental human right and recognizes the essential

UNESCO's Standard-Setting instruments are presented in: J. Symonides/ V. Volodin (eds), UNESCO and Human Rights, Standard-Setting Instruments, Major Meetings, Publications, 2nd edition, 1999.


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role of teachers in educational advancement and the importance of their contribution to the development of man and modern society. A joint ILO/UNESCO Committee of Experts on the Application of the Recommendation Concerning the Status of Teachers was set up by the 14th Sess. of the UNESCO General Conference and the 167th Sess. of the Governing Body of the ILO. The Committee's terms of reference are to examine the reports received from governments on action taken by them on the Recommendation. Several of the Recommendation's provisions are directly connected with the exercise of human rights, particularly those relating to non-discrimination in the training and employment of teachers and the right of association of teachers. b. UNESCO's Recommendations and Declarations Developing the Obligation to Educate Human Rights4 In 1950, the ECOSOC invited UNESCO to encourage and facilitate teaching about the Universal Declaration of Human Rights in schools and adult education programmes, and through the media: press, radio and films. The International Conference on Human Rights, which met in Teheran in 1968, called upon UNESCO to develop its programmes aimed at making children aware of respect for the dignity and rights of man and at ensuring that the principles of the Universal Declaration prevail at all levels of education, particularly in institutions of higher learning, where the future teachers are trained.5 The United Nations Commission on Human Rights, in 1971, urged UNESCO to examine the desirability of envisaging the systematic study and the development of an independent scientific discipline of human rights. In 1973 the Commission encouraged UNESCO to develop education for human rights for all and at all levels. Responding to these requests UNESCO adopted at the 18th Sess. of the General Conference of UNESCO in 1974, the Recommendation Concerning Education for International Understanding, Cooperation and Peace and Education Relating to Human Rights and Fundamental Freedoms. It describes human rights as being those defined by the United Nations Charter, the Universal Declaration of Human Rights and the InternaSee J. Symonides, "The State Duty to Promote Human Rights Education", in: S. S. Akermark (ed.), Human Rights Education, Achievements and Challenges, 1998,11 et seq. Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968.

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tional Covenants on Human Rights, that is the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights of 1966. The Recommendation called upon Member States to take steps to ensure that the principles of the Universal Declaration of Human Rights and the International Convention on the Elimination of All Forms of Racial Discrimination become an integral part of the developing personality of each child, adolescent, young person or adult, by applying these principles in the daily conduct of education of each level and in all its forms. Member States should encourage a wider exchange of textbooks, especially those concerning history and geography, and should take measures for the reciprocal study and revision of textbooks and other educational materials in order to ensure that they are accurate, balanced, up-to-date, without prejudice, and enhance mutual knowledge and understanding between different peoples. The Intergovernmental Conference on Education for International Understanding, Cooperation and Peace and Education Relating to Human Rights and Fundamental Freedoms, held in Paris in 1983, recommended extending the scope of the 1974 Recommendation to the whole of the education system, including non-formal and higher education. In accordance with the decision taken by the General Conference during its 23rd Sess. in 1985, the permanent system of reporting on steps taken by Member States to apply the 1974 recommendation was adopted. The first synthesis of national reports covering both the achievement of, and problems identified by Member States in promoting education for international understanding, cooperation and peace, and education for human rights and fundamental freedoms, was submitted to the General Conference at its 25th Sess. in 1989.6 To develop education for human rights UNESCO organized a series of international conferences: the International Congress on the Teaching of Human Rights in Vienna 1978, The International Congress on Human Rights Teaching, Information and Documentation in Malta in 1987, and the International Congress on Education for Human Rights and Democracy in Montreal in 1993.

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UNESCO Doc. 25C/30.

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The main result of the Montreal Congress was the World Plan of Action on Education for Human Rights and Democracy.7 It is introduced by a recommendation which states that, in spite of major progress achieved in the field of education for human rights, serious efforts still need to be made to overcome present obstacles and shortcomings as well as to meet new challenges. The Congress emphasized the responsibility of the international community, the United Nations and its specialized agencies, in particular UNESCO, to initiate and support educational programmes and activities relevant to human rights. The International Conference on Education which was held in Geneva in 1994, unanimously adopted a Declaration in which Ministers of Education acknowledged their responsibilities for citizens' education committed to the promotion of peace, human rights and democracy in accordance with the letter and spirit of the Charter of the United Nations, the Constitution of UNESCO, the Universal Declaration of Human Rights, and in accordance with the Recommendations Concerning Education for International Understanding, Cooperation and Peace and Education Relating to Human Rights and Fundamental Freedoms. The International Congress on Education for Human Rights and Democracy (Montreal, 1993) stated that "the education for human rights and democracy is itself a human right and is a prerequisite for the full realization of social justice, peace and development. The exercise of such a right would contribute to the safeguarding of democracy and its comprehensive meaning." The General Assembly resolutions8 concerning the United Nations Decade for Human Rights Education, adopted in 1993, 1994 and 1995, contain the same phrase: Considering the World Plan of Action on Education for Human Rights and Democracy, adopted by the International Congress on Education for Human Rights and Democracy convened by the United Nations Educational, Scientific and Cultural Organization at Montreal from 8 to 11 March 1993, according to which education for human rights and democracy is itself a human right and a pre-

7

8

See "International Congress on Education for Human Rights and Democracy", in: Human Rights Teaching, VIII (1993). See also Appendix 4 to this volume. A/RES/48/127 of 20 December 1993; A/RES/49/184 of 23 December 1994; and A/RES/ 50/177 of 22 December 1995.

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requisite for the realization of human rights, democracy and social justice.

2. Standards Relating to Science a. The Right to Participate in Scientific Progress. Human Rights Implications of Scientific and Technological Progress The Recommendation on the Status of Scientific Researchers adopted by the General Conference in 1974 underlines that each Member State should strive to use scientific and technological knowledge for the enhancement of the cultural and natural well-being of its citizens and to further the ideals and objectives of the United Nations. Member States should actively promote the interplay of ideas and information among Scientific Researchers throughout the world, which is vital to the healthy development of science and technology and, to this end, should take all possible measures to ensure that Scientific Researchers are able, throughout their careers, to participate in international scientific and technological gatherings and to travel abroad. Scientific Researchers should have the right to publish the results obtained and enjoy appropriate legal protection, in particular that afforded by copyright law. The Organization has shown concern for the human and cultural implications of scientific and technological progress. At the conference organized by UNESCO in Brasilia (Brazil) in 1985, participants urged the use of science and technology for peaceful ends, and rejected "any application that places the survival of humanity in jeopardy". In its activities concerning bioethics, UNESCO has attached special attention to the human genome. In 1997, the UNESCO General Conference adopted a Universal Declaration on the Human Genome and Human Rights? The Declaration, the result of four years of deliberations and work of the UNESCO International Bioethics Committee, provides an answer to several ethical and legal concerns linked, in particular, with the threat that research on the human genome may open the door to dangerous deviations contrary to human dignity and fundamental human rights. It establishes limits on interventions in the genetic heritage of humanity and in individuals which the international community has a moral obligation not to transgress. Among the rights Adopted unanimously and by acclamation by the General Conference of UNESCO at its 29th Sess. on 11 November 1997.

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of individuals, the Declaration enumerates the following; prior consent to all research, treatment or diagnosis,10 prohibition of any discrimination based on individual characteristics; confidentiality of genetic information associated with an identifiable person; and the right to "just reparation for an damage sustained as a direct and determining result of an intervention affecting his or her genome".11 With regard to the crucial question of research on the human genome, it takes a balanced position, underlining that, on the one hand, no research or application concerning the human genome in biology, genetics and medicine should prevail over the respect for human rights, fundamental freedoms and human dignity. It states, on the other, that freedom of research, which is necessary to the progress of knowledge, is part of the freedom of thought. However, certain practices, as observed in article 11, contrary to human dignity, such as reproductive cloning of human beings, shall not be permitted. States, as provided by the Declaration12 should respect and promote solidarity towards individuals, families and population groups who are particularly vulnerable to or affected by disease or disability of a genetic character. b. Academic Freedom The question of academic freedom has been for a long time discussed by UNESCO mainly from the point of view of the professional status of various groups. The Recommendation concerning the Status of Teachers, 1966, contains a stipulation that "the teaching profession should enjoy academic freedom in the discharge of professional duties". However, the Recommendation does not give any clarifications as to how the term "academic freedom" should be understood and interpreted. The Recommendation on the Status of Scientific Researchers, 1974, provides that Scientific Researchers have the responsibility and right "(a) to work in a spirit of intellectual freedom to pursue, expound and defend the scientific truth as they see it."

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11 12

The Declaration explains: "If according to the law a person does not have the capacity to consent, research affecting his or her genome may only be carried out for his or her direct health benefit, subject to the authorization and the protective conditions presented by law", article 5 lit.(e). Articles. Arts 17-19 of the Declaration, Part E: Solidarity and International Cooperation.

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In 1989, UNESCO, in cooperation with the World University Service, organized an international seminar on Factors and Conditions Conducive to Academic Freedom. The meeting agreed that, although there were extensive international instruments and guidance in the field of human rights in general, there was a lack of these in the field of higher education which covered academic freedom and autonomy. Though the efforts to adopt a special international normative instrument dealing in a comprehensive way with all aspects of academic freedom have until now not been crowned with success, an important step in this direction was taken in 1997, with the adoption by the General Conference at its 29th Sess. of the Recommendation concerning the Status of Higher-Education Teaching Personnel.13 In fact, this is the first intergovernmental instrument presenting academic freedom in a developed form. The Recommendation declares that, apart from the rights enjoyed by all human beings, higher-education teaching personnel are entitled to the maintaining of academic freedom. This freedom is defined as the right to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, freedom from institutional, censorship and freedom to participate in professional or representative bodies. Higher-education teaching personnel have the right to teach without any interference, subject to accepted professional principles. Research work should be free from any interference, or any suppression, and should be in accordance with professional responsibility and subject to nationally and internationally recognized professional principles of intellectual rigour, scientific inquiry and research ethics. Research work is linked with the right to publish the results. The proper enjoyment of academic freedom requires the autonomy of institutions of higher education, that is, that degree of self13

The decision to elaborate this Recommendation was adopted by the General Conference at its 27th Sess. in 1993. A preliminary draft was prepared by Donald Savach, Executive-Director of the Canadian Association of University Professors. The ILO and non-governmental organization specializing in higher education were consulted. The second draft was adopted by the Governmental Experts' Meeting which took place at UNESCO on 8-9 October 1996. See New Papers on Higher Education, Meeting Documents,^, Governmental Experts' Meeting to Examine Draft Recommendation concerning the Status of Higher-Education Teaching Personnel, UNESCO, Paris, Final Report, ED-96/45.41.


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governance which is necessary for effective decision-making regarding academic work, standards, management and related activities. Teaching personnel, as stressed by the Recommendation, have not only rights but also duties inherent in academic freedom.14 It is worth noting that, in the part concerning its implementation, the Recommendation provides that the Director-General of UNESCO will prepare a comprehensive report on the world situation with regard to academic freedom on the basis of the information supplied by Member States, or any other information supported by reliable evidence.

3. Standards Developing Cultural Rights a. The Right to Cultural Identity During the World Conference on Cultural Policies which took place in Mexico City in 1982, delegates emphasized people's growing awareness of their cultural identity, of the pluralism stemming from it, of their right to be different and of the mutual respect of one culture for another, including that of minorities. It was observed that the affirmation of cultural identity had become a permanent requirement, both for individuals and for groups and nations. The Mexico City Declaration on Cultural Policies states, inter alia, that the assertion of cultural identity contributes to the liberation of peoples. Cultural identity is a treasure which vitalizes mankind's possibilities for self-fulfillment by encouraging every people and every group to seek nurture in the past, to welcome contributions from outside compatible with their own characteristics, and so to continue the process of their own creation. In the Recommendation on cultural identity, the Conference called upon Member States to:

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Para. 34 of the Recommendation concerning the Status of Higher-Education Teaching Personnel enumerates these dudes very comprehensively in 12 points. They embrace, inter alia, the obligation to achieve the highest possible standards in professional work; to teach students effectively and without any discrimination; to conduct scholarly work of academic colleagues and students; to ensure that research is conducted according to the laws and regulations of the state concerned and that it does not violate international standards of human rights.

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a. Respect and work to preserve the cultural identity of all countries, regions and peoples and oppose any discrimination with regard to the cultural identity of other countries, regions and peoples. b. Promote the development of cultural identity through all appropriate means. b. The Right to Participate in Cultural Life As formulated by the Recommendation on Participation by the People at Large in Cultural Life and their Contribution to it, 1976: "By access to culture is meant the concrete opportunities available to everyone, in particular through the creation of the appropriate socio-economic conditions, for freely obtaining information, training, knowledge and understanding and for enjoying cultural values and cultural property".15 This formulation thus stressed rather the passive side of participation in culture. Among other instruments which are linked with this right is the Recommendation concerning the Most Effective Means of Rendering Museums Accessible to Everyone, 1960 which urges that, in order that museums may contribute to the education of the public through all stages of life, a permanent link should be established between museums, industrial and commercial enterprises and the like. The accessibility of museums entails not only the granting of material facilities, particularly with regard to admission charges and opening hours, but also measures which ensure that collections are easy to appreciate. An active approach to culture is reflected in the right of participation which is dealt with separately from the right of access in the above mentioned Recommendation on Participation by the People at Large in Cultural Life which defines it as: "the concrete opportunities guaranteed for all — groups or individuals — to express themselves freely, to act and engage in creative activities with a view to the full development of their personalities, a harmonious life and cultural progress of society".16 The Recommendation concerns everything that should be undertaken by Member States to democratize the means and instruments of cultural activity. Participation in cultural life presupposes involvement of the different social partners in decision-making related to cultural policy as well as in the conduct and evaluation of relevant activities. 15 16

Art. 1.2 lit.(a). Art.I2.1it.(b).


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c. The Right to Creativity and the Right to Benefit from the Protection of the Moral and Material Interest Resulting from any Literary or Artistic Production The concept of creativity is very closely linked with that of participation a nd may be seen as part of the right of participation. Nevertheless, due to the fact that this was especially stressed by the Recommendation concerning the Status of the Artist, 1980, it is presented under a separate heading. Creativity lays stress on the maintenance and development of individual and group attitudes and opportunities, rather than on the product of their activities. The Recommendation calls upon Member States to encourage all measures tending to strengthen respect for artistic creation and emphasizes that governments should help to create and sustain not only a climate encouraging freedom of artistic expression but also the material conditions facilitating the release of creative talents. It stipulates that: "Since freedom of expression and communication is the essential perquisite for all artistic activities, Member States should see that artists are unequivocally accorded the protection provided for in this respect by international and national legislation concerning human rights".17 A number of normative instruments adopted by the General Conference of UNESCO are of direct relevance in promoting the right of everyone to benefit from the protection of interests resulting from intellectual property, the principal one being the Universal Copyright Convention of 1952, as revised in 1971. Both Conventions require that each Contracting State protect the rights of authors and other copyright holders. Article 1, identical in both conventions, provides that: "Each Contracting State undertakes to provide for the adequate and effective protection of the rights of authors and copyright proprietors in literary, scientific and artistic works, including writings, musical, dramatic and cinematographic works, and paintings, engravings and sculpture". The 1952 Convention imposed on States parties an obligation to adopt measures to bring its laws and practices into harmony with its provisions. An Intergovernmental Committee was established to study problems related to its application and periodic revision. UNESCO has also sponsored the International Convention for the Protection of Performers and Producers of Phonograms and Broadcasting Organizations, 1961 and the Convention for the Protection of Producers of Phonographs Against Unauthorized Duplication of Their Phonograms, 1971. 17

Art. III. 6.

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d. The Right to the Protection of Cultural Property and the World Cultural Heritage The largest number of UNESCO instruments dealing with cultural rights are those devoted to the protection of cultural property both in time of peace and of war. In 1954 UNESCO convened in The Hague an Intergovernmental Conference which worked out the Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Convention contains provisions for the safeguarding of movable or immovable property of great importance to the cultural heritage of peoples, irrespective of its origin or ownership, and makes respect for such property obligatory. The safeguarding of such property implies that the state, within the territories of which it is situated, will take all necessary protective measures in time of peace. Respect for protected property is an obligation for both, the territorial state and its enemies in time of armed conflict. The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property y 1970 developed the principles and standards set forth in the Recommendation on the same subject adopted by the General Conference in 1964. It defines cultural property qualifying for protection not only on historical, archaeological or artistic grounds but also in the interest of science. The transfer of ownership, the import and the export of all property covered by this definition is not automatically prohibited. It is for each State party to establish regulations and decide which operations are lawful, and which are, illicit. Measures should be adopted to prevent museums from acquiring illegally exported cultural property and to prohibit the import of cultural property stolen from a museum or a public institution after the entry into force of the Convention. The General Conference adopted a number of recommendations dealing, inter alia, with archeological excavations (1956), safeguarding of the beauty and character of landscapes and sites (1962), preservation of cultural property endangered by public or private works (1968), protection of movable cultural property (1978) and safeguarding and preservation of moving images (1980). The Convention concerning the Protection of the World Cultural and Natural Heritage was adopted by the General Conference on 16 November 1972.18 Article 7 defines international protection of the world cultural and natural heritage as: "... the establishment of a system 18

ILM 11 (1972), 1358 et seq.


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of international cooperation and assistance designed to support States parties to the Convention in their efforts to conserve and identify that heritage." The items protected by the Convention are those of outstanding universal value from the point of view of history, art, science or aesthetics. The Convention lays down two basic principles: that each State party recognizes the duty of ensuring the conservation of elements of the world heritage situated on its territory and that it is the duty of the international community as a whole to cooperate in ensuring the conservation of the heritage which is of a universal character. The World Heritage Committee designates the items which, being regarded as forming a part of the world heritage, fall under protective measures provided for by the Convention. e. The Right to International Cultural Cooperation The Declaration of the Principles of International Cultural Cooperation adopted by UNESCO, 1966, states, in its article I, that every people has the right and duty to develop its culture. It explains in article V that cultural cooperation is a right and duty for all peoples and all nations, which should share with one another their knowledge and skills. The aims of international cultural cooperation, bilateral or multilateral, regional or universal, are, inter alia, to spread knowledge, to stimulate talent, to enrich cultures, to develop peaceful relations and friendship among the peoples, and to raise the level of the spiritual and material life of man in all parts of the world. In accordance with the ideals set forth in its Constitution, UNESCO has special responsibility for the promotion of international cultural cooperation at national, regional and international levels. It assists Member States in promoting the various aspects of their cultural policies and thus provides intellectual, technical and financial assistance for a wide variety of activities, including the formulation of cultural policies, strategies or programmes and training of specialized personnel. f. The Right to Information Freedom of information is rightly regarded as one of the prerequisites for the exercise of human rights and constitutes a very potent confidence-building measure. Accordingly, article 1 para. 2 lit.(a) of the UNESCO Constitution stipulates that the Organization will: "collabo-

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rate in the work of advancing the mutual knowledge and understanding of peoples, through all means of mass communication and to that end recommend such international agreements as may be necessary to promote the free flow of ideas by word and image". In implementing the right to information, UNESCO strives to eliminate various barriers to the free movement of books, publications and other printed materials. Four agreements have been prepared for this purpose.19 The end of ideological rivalry between East and West allowed the organization to adopt a clear-cut strategy concerning freedom of information and free flow of ideas. The organization took an unequivocal position on this subject, foreseeing the encouragement of the free flow of information and promotion of its wider and better balanced dissemination, without any obstacle to the freedom of expression. The Major Programme on Communication, Information and Informatics is inspired by the principle of freedom of expression and its corollary: freedom for all to choose their information. This is reflected in action aimed at promoting press freedom, pluralism and media independence, and at supporting efforts in Member States to set up independent, pluralist media. The ultimate aim of this strategy is to provide practical responses to the challenges arising from the process of democratization going on in many countries and the demands of sustainable development. Declarations on promoting independent and pluralistic media were adopted at the meetings in Windhoek, Alma-Ata and Sofia. UNESCO has made the promotion of a free and independent press the cornerstone of its communication development strategy. It also supports the 19

In 1948 the General Conference adopted an Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific and Cultural Character. This agreement introduced exemption from all customs duties and quantitative restrictions for materials originating in the territory of any Contracting State. In 1950 the Florence Agreement on the Importation of Educational, Scientific and Cultural Materials was designed to abolish customs duties and remove the trade barriers which impede exchanges of visual and auditory materials and of several other items. Twenty-six years later a Protocol was added to this Agreement. Furthermore, under the provisions of the Convention Concerning the International Exchange of Publications of 1958, the Contracting States grant exemption from customs duties for both imported and exported material. A Convention Concerning the Exchange of Official Publications and Government Documents between States of 1958 facilitated the international exchange of official publications.


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International Freedom of Expression Exchange (IFEX), an international communication network which disseminates information about attacks on freedom of speech and press freedom.

4. UNESCO's Contribution to the Elimination of all Forms of Discrimination a. UNESCO Statements and the Declaration on Race and Racial Prejudice The UNESCO stand against racism has already been determined by its Constitution which declares: "...the great and terrible war which has now ended was a war made possible by the denial of the democratic principles [...], and by the propagation, in their place through ignorance and prejudice, of the doctrine of the inequality of men and races". In 1948, the ECOSOC urged UNESCO to adopt a programme, concerning discriminatory scientific facts, designed to remove racial prejudice. In response to this appeal, the Organization undertook a number of studies which brought to light the completely unscientific foundations of racism. UNESCO convened several meetings of specialists to consider various manifestations and aspects of racism. In 1950, a group of eminent experts prepared a Statement on Race, following in 1951 by a Statement on the Nature of Race and Race Differences. Both statements emphasized that biological differentiation of races is without foundation. Race is not a biological phenomenon but a social myth. Therefore it would be better, when speaking of humankind, to drop the term "race** and to speak of ethnic groups. In 1964, a Proposal on Biological Aspects of Race was elaborated. This text emphasized the predominance of historical, social and cultural factors over biological factors in the explanation of physical differences between populations living in different geographical areas of the world. The fourth Statement on Race and Racial Prejudice was worked out in 1967 and contained the elucidation of the racist theories and racial prejudice. In 1972, the UNESCO General Conference called for the preparation of a Declaration which would take into account the findings of the Statements and present a set of universally applicable principles which could be recommended to Member States. Consequently, the General

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Conference, at its 20th Sess. 1978, solemnly adopted, by acclamation, the Declaration on Race and Racial Prejudice which states that all human beings belong to a single species and are descended from a common stock; that they are born equal in dignity and rights and all form an integral part of humanity. Racial prejudice, historically linked with inequalities in power and reinforced by economic and social differences between individuals and groups, is qualified by this instrument as being totally without justification. The Declaration proclaims that diversity of life styles and the right to be different may not in any circumstances serve as a pretext for racial prejudice. The State has prime responsibility for ensuring human rights and fundamental freedoms and it should take all appropriate steps to prevent, prohibit and eradicate racism, racist propaganda, racial segregation and apartheid. b. The 1978 Declaration In the efforts aimed at the consolidation of peace, in the elimination of all forms of discrimination, in the promotion of human rights and fundamental freedoms, in the shaping of behaviour patterns, the mass media, radio, television, newspapers may and should play an important role. This idea led to the adoption in 1978 by the General Conference of the Declaration on Fundamental Principles Concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War. The Declaration in its preamble recalls the provisions of international conventions20 which oblige States parties to adopt immediate and positive measures assigned to eradicate all incitement to, or acts of, racial discrimination, and agree to prevent any encouragement of the crime of apartheid and similar segregation policies or their manifestations. Article I states that the strengthening of peace, and international understanding, the promotion of human rights and the countering of racialism, apartheid and incitement to war demand a free flow and a wider and better balanced dissemination of information.

20

Inter alia, article 4 of the Convention on the Elimination of All Forms of Racial Discrimination, and the International Convention on the Suppression and Punishment of the Crime of Apartheid.


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The Declaration does not call for state control of the media and does not speak about governmental responsibilities. It stresses that it is indispensable, with due respect for constitutional provisions and for the applicable international instruments, to create and maintain throughout the world the conditions which make it possible for the organizations and persons professionally involved in the dissemination of information to achieve the objectives of this Declaration. Therefore it should be rather seen as a help in the application of a code of ethics by professional organizations, educators, journalists and other agents of the mass media and those who assist them in performing their functions. c. Elimination of Discrimination against Women UNESCO has been very active in combating all forms of inequalities based on gender within its fields of competence. Apart from incorporating into standard-setting instruments numerous provisions aimed at the elimination of discrimination in education, professional, and public life, the Organization has promoted research yielding fuller knowledge of the situation of women throughout the world and better understanding of the nature of existing inequalities. All its activities are based on the assumption that international organizations can contribute to the emancipation of women and girls through research, information, education, and training. The Organization continues to support action to combat violence against women. More specifically, UNESCO gives priority attention to women and girls in countries ravaged in the recent past by armed conflict, with the aim of alleviating the effect of violence, and providing education to refugees and displaced persons. Thus, for example, it has provided assistance to women and children who were victims of rape as a tool of war in Bosnia and Herzegovina.21

21

Bearing in mind that, with very few exceptions, illiteracy rates are higher for women than for men, UNESCO has launched a number of operational activities known as literacy, functional literacy, legal literacy, and civic education for women. UNESCO participated actively in the Beijing Conference on Women and has undertaken a programme to implement the Beijing Declaration and Platform of Action.

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d. The Declaration of Principles on Tolerance Discrimination and intolerance often go hand in hand. The Organization has taken steps to organize a real "crusade" against intolerance within the United Nations system. The General Assembly, at the initiative of UNESCO, proclaimed 1995 the United Nations Year for Tolerance and invited it to assume the role of lead organization for the Year. It called upon Member States to cooperate with UNESCO in the observance of national and international programmes and requested it to prepare for the conclusion of the year a declaration of principles and a programme of action as a follow-up to the year. Research carried out throughout the world on new forms of discrimination and ways of combating them, served as a basis for UNESCO's efforts to involve an increasing number of partners in promoting the idea, and above all, the practice of "active" tolerance, which implies the desire to get to know other people, to understand what makes others different and to show respect for those differences. Tolerance is one of the great challenges of our time, as, in principle, all societies are pluralistic, diverse and diversified and many of them are multi-cultural and multi-religious. The Declaration of Principles on Tolerance, foreseen by a General Assembly resolution, was adopted by the General Conference of UNESCO as its 28th Sess. in 1995. In article 1, it explains that: "Tolerance is respect, acceptance and appreciation of the rich diversity of our world's culture, our forms of expression and ways of being human. It is fostered by knowledge, openness, communication and freedom of thought, conscience and belief. Tolerance is harmony in difference. It is not only a moral duty, it is also a political and legal requirement". Article 2 stresses that tolerance requires the economic and social opportunities be made available to each person without any discrimination. States should ratify existing international human rights conventions and draft new legislation where necessary to ensure equality of treatment and opportunity for all groups and individuals in society. Education, as stated in article 4, is the most effective means of preventing intolerance. The General Conference urged Member States to communicate to the Director-General any information that they would like to share in order to increase understanding of the phenomenon associated with intolerance and the ideologies which preach intolerance, such as racism,


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fascism and anti-semitism, and the most effective measures for addressing these issues.22

III. UNESCO's Procedures for the Implementation of Human Rights 1. UNESCO's Reporting System UNESCO instruments envisage the monitoring of their implementation. A general provision to this end is formulated in the Constitution which stipulates that: "The General Conference shall receive and consider the reports sent to the Organization by Member States on the action taken upon the recommendations and conventions ... or, if it so decides, analytical summaries of these reports".23 Apart from this general request, more specific provisions may be also formulated by standard-setting instruments. Article 7 of the Convention on Technical and Vocational Education 1989 provides: "The Contracting States shall specify, in periodic reports submitted to the General Conference [...] at the dates and in the form determined by it, the legislative provisions, regulations and other measures adopted by them to give effect to this Convention". Declarations and Recommendations are in some cases supplemented by special resolutions requesting additional action from states in order to observe their provisions. Thus the General Conference, at its 20th Sess. in 1978, adopted a resolution concerning the implementation of the Declaration on Race and Racial Prejudice 1978, which urges Member States: "... to communicate to the Director General all necessary information concerning the steps they have taken to give effect to the principles set forth in the Declaration". This resolution invites the Director-General to prepare, on the basis of the information supplied by

22

23

The Plan of Action for the follow-up to the United Nations Year for Tolerance, also adopted by the General Conference, presents the causes and factors contributing to manifestations of intolerance around the world. The aim of the Plan is to transpose the most successful components of the United Nations Year for Tolerance into more enduring strategies and structures, by which promotion and sensitization of tolerance may be improved in every region of the world. UNESCO Constitution, article IV, para. B.6.

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Member States, a comprehensive report on the world situation in the fields covered by the Declaration.24 a. Reporting System Linked with the Convention and Recommendation against Discrimination in Education, 1960 As foreseen by article 7 of this Convention, the States parties shall, in their periodic reports submitted to the UNESCO General Conference on dates and in a manner to be determined by it, give information on the legislative and administrative priorities which they have adopted and other actions they have taken for its appreciation. Since the Convention's entry into force in 1962, the Secretariat has organized six periodic consultations of Member States party to the Convention and of all Member States with regard to the Recommendation against Discrimination in Education. Consultations ended with the preparation of the final report to the Executive Board's Committee on Conventions and Recommendations considered thereon by the General Conference. The last of the six consultations was initiated by resolution of the General Conference in 1993.25 It was decided to focus the consultation process and final report on the basic education of four population groups: (a) women and girls, (b) persons belonging to minorities, (c) refugees, and (d) indigenous people. In response to the circular letter sent by the Director-General, 56 Member States presented reports. Supplemented for the first time by the comments of non-governmental organizations and information sent by Member States to the International Bureau of Education (IBE), these reports, together with the analytical reports of the Secretariat, were submitted to the Executive Board for examination prior to submitting them with the Executive Board's comments to the General Conference at its 30th Sess. in 1999. During the examination of the reports and responses received at the sixth consultation, the members of the Committee on Conventions and Recommendations unanimously emphasized that the struggle against discrimination in education is particularly important in the light of UNESCO's Constitution and of the Organi-

24

25

Since the adoption of the Declaration the Director-General has submitted five reports on its implementation to the General Conference at its 1980, 1983,1987,1991 and 1995 Sess. Resolution 27C/1.9 adopted by the 27th Sess. of the General Conference in 1993.


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zation's role in the United Nations system regarding the right to education for all.26 To be adequately tackled, this problem demands that new measures and monitoring mechanisms be devised and applied by UNESCO. The present system, which is based only on periodic reporting by Member States, is rather weak and very far from comprehensive. Reports should reflect the situation critically, and the relevant reports submitted to the United Nations should be taken into account. UNESCO should not only report on reports received from Member States but also organize dialogue with individual Member States. Information provided by Member States should be evaluated on the basis of agreed criteria. It was recommended that the Committee on Conventions and Recommendations strengthen its original monitoring role. The Executive Board invited Member States which have not yet done so to become parties to the Convention and recalled that the submission of periodic reports concerning the implementation of conventions and recommendations adopted by the General Conference is a constitutional obligation. The Director-General has also been invited to strengthen UNESCO's action against discrimination and to study, in view of the seventh consultation and in cooperation with the United Nations: "the possibility of creating a coherent mechanism of reporting on and monitoring of the right to education as set down in various United Nations conventions on human rights, and to inform the Executive Board about measures undertaken to this end". This decision opens the way for a profound, far-reaching change in the reporting system linked with the Convention and Recommendation against Discrimination in Education. b. The Permanent System of Reporting on Education for Peace, Human Rights, Democracy, International Understanding and Tolerance In 1985, the UNESCO General Conference, at its 23rd Sess. as has been already mentioned, agreed that the Permanent System of Reporting on steps taken by Member States should also apply to the 1974 Recom26

See Executive Board, examination of the reports and responses received in the 6th consultation of Member States on the implementation of the Convention and Recommendation against Discrimination in Education, Doc. 156 EX/21 of 17 March 1999.

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mendation concerning Education for International Understanding, Cooperation and Peace and Education relating to Human Rights and Fundamental Freedoms. In 1995, during its 28th Sess. the General Conference decided to update the Permanent System of Reporting in the context of a number of new UNESCO and United Nations instruments and action plans regarding education for peace, human rights, democracy, international understanding and tolerance. The draft questionnaire for the Permanent System of Reporting was examined by the Advisory Committee on Education for Peace, Human Rights, Democracy, International Understanding and Tolerance.27 The Committee on Conventions and Recommendations in its debate on this subject underlined the necessity of sending the questionnaire not only to governments but also to parliaments and nongovernmental organizations maintaining official relations with UNESCO, and to take into account data existing in the United Nations system when preparing the third report within the framework of the Permanent System of Reporting, to be submitted to the General Conference at its 31st Sess., 2001. The Executive Board adopted the proposed questionnaire, which is unique within the United Nations system, as it applies not only to instruments concerning education for peace, human rights, democracy, international understanding and tolerance adopted by UNESCO but also to those adopted by the United Nations. It is also unique because it requests from Member States comprehensive reports on a totality of actions aimed at the building of a culture of peace through education.

2. Communications (Complaints) Procedure In 1978, the Executive Board of UNESCO, by its Decision 104 EX/3.3,28 instituted a special procedure for the examination of cases and 27

28

Doc. ED-98/CONF.501 of 7 October 1998. Advisory Committee on Education for Peace, Human Rights, Democracy, International Understanding and Tolerance, 4th Sess, Paris, 21-23 September 1998. Study of the procedures which should be followed in the examination of cases and questions which might be submitted to UNESCO concerning the exercise of human rights in the spheres of its competence, in order to make its action more effective: Report of the working party of the Executive Board (104 EX/Decision 3.3 of the Executive Board of UNESCO adopted


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questions submitted to UNESCO concerning the exercise of human rights in its sphere of competence. In the exercise of its competence, UNESCO is called upon to examine cases concerning violations of human rights which are individual and specific and questions of massive, systematic or flagrant violations of human rights and fundamental freedoms which result either from a policy contrary to human rights applied de iure or de facto by a state or from an accumulation of individual cases forming a consistent pattern. To be considered admissible, a communication has to meet ten conditions set out in paragraph 14 of the Decision 104 EX/3.3. Thus, it must not be anonymous, must originate from a person or a group of persons who can be reasonably presumed to be victims, or a person or group of persons or organization having reliable knowledge of an alleged violation of human rights falling within UNESCO's fields of competence. It must concern violations of human rights falling within the Organization's competence and must be compatible with the principles of the Organization, the Charter of the United Nations, the Universal Declaration of Human Rights, the international covenants on human rights and other international instruments in the field of human rights. Communications which are manifestly ill-founded, offensive, are based exclusively on information disseminated through mass media, are not submitted within a reasonable time-limit and have not exhausted available domestic remedies shall not be considered. Communications relating to matters already settled by the states concerned shall not be considered. The Executive Board decision did not specify which human rights fall within UNESCO's fields of competence. In practice, it has been accepted that the following cultural rights belong to this category: -

the right to education;

-

the right to share in scientific advancement and enjoy its benefits;

-

the right to participate freely in cultural life;

-

the right to information, including freedom of opinion and expression.29

29

at the 104th Sess. of the UNESCO Executive Board (24 April-6 June 1978)). These rights may imply the exercise of others, in particular: - the right to freedom of thought, conscience and religion, - the right to seek, receive and impart information and ideas through any medium and regardless of frontiers, - the right to protection of the moral and material interests resulting

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When the grievance of an alleged victim comes within UNESCO's fields of competence, there is a presumption that there is a link between the alleged violation and UNESCO's fields of competence. The procedure to examine cases is confidential and takes place in private meetings of the already above mentioned Committee on Conventions and Recommendations, which is one of the permanent subsidiary bodies of the Executive Board and at present it is composed of 30 members from all the electoral groups. The examination of questions by the Executive Board and the General Conference should be public. However, until now questions of massive, systematic or flagrant violations of human rights have not been examined. Before any complaint is referred to the Committee on Conventions and Recommendations, it passes through preliminary stages. The Secretariat is first authorized by the Committee to make, if necessary, a prior selection. Allegations that do not fall within UNESCO's competence, are ill-founded or from authors mentally unbalanced are not passed on to the Committee. The Committee has often recalled that its sole object is, for purely humanitarian reasons, to establish a dialogue with the governments concerned in order to consider with them what might be done on behalf of alleged victims in the event of having suffered violations of human rights in UNESCO's fields of competence. Concluding its work, the Committee adopts a confidential report containing the decision and all relevant information arising from its examination of the communication. One of the most important features of the procedure laid down in 104 EX/Decision 3.3 is its confidentiality. Consequently, the sessions at which the Committee examines the communications submitted under this procedure take the form of closed meetings. The public, the press, radio, television are not allowed to participate. Sessions are attended only by members of the Committee or their deputies and Secretariat staff, whose presence is essential. Representatives of the government which is the subject of a complaint are invited to attend the session, but only for that part reserved for the presentation by them of their government's position and for answering questions from members of the Committee. In cases where the principle of confidentiality is not observed by the author of the communication, it is up to the Committee to decide whether such indiscretion constitutes an abuse of the right to from any scientific, literary or artistic production, and - the right to freedom of assembly and association for the purposes of activities connected with education, science, culture and information.


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submit a communication and then to strike the communication from its list, as a kind of penalty. In practice, communications whose authors had already breached the confidential character of the procedure have been declared inadmissible. a. Specific Characteristics of UNESCO's Procedure The procedure laid down in 104 EX/Decision 3.3 has specific characteristics in comparison with similar procedures in other organizations of the United Nations system.30 In accordance with 104 EX/Decision 3.3, a complaint may be directed at any Member State, for the very reason that it is a member of UNESCO. The right to present communications does not result from any specific human rights instruments adopted by the Organization. The Committee's competence to examine individual communications concerning alleged violations of human rights in UNESCO's fields of competence has been gradually recognized by practically all UNESCO's Member States, and an increasing number of the governments concerned by the communications send representatives to the Committee and cooperate with it, although they are under no legal obligation to do so. While the other procedures seem most often to take a conflictual and accusatory form, the UNESCO procedure — although it is largely similar — has, from the very beginning been deliberately applied exclusively with a view to seeking a solution with the state concerned. The desire shown by the Committee to 30

See on this subject: Ph. Alston, "UNESCO's procedure for dealing with human rights violations", Santa Clara L. Rev. 20 (1980), 665 et seq.; S. Bastid, "La mise en oeuvre d'un recours concernant les droits de 1'homme dans le domaine relevant de la competence de 1'UNESCO", in: Festschrift H. Mosler, 1983, 45 et seq.; F. Coomans, "UNESCO and Human Rights", in: R. Hanski/ M. Suksi, (eds), An Introduction to the International Protection of Human Rights, 1997, 186 et seq.; G.H. Dumont, "Une action concrete de 1'UNESCO en matiere des droits de 1'homme", Revue Internationale des sciences sociales 122 (1989), 651 et seq.; St. Marks, " The complaint procedure of UNESCO", in: H. Hannum, (ed.), Guide to International Human Rights Practice, 2nd edition, 1992, 89 et seq.; K.J. Partsch, "La mise en oeuvre des droits de 1'homme par 1'UNESCO - remarques sur un systeme particulier", AFDI 36 (1990), 482 et seq.; M. Paszkowski, "UNESCO's Unknown Human Rights Procedure", Polish Quarterly of International Affairs 1 (1996), 1 et seq.; P. Rolland, "La nouvelle procedure d'examen des communications concernant la violation des droits de 1'homme a 1'UNESCO", Revue Internationale des sciences administratives 46(1996), let seq.

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take its decisions solely by consensus is no doubt a reflection of the same concern. However, what is perhaps the overriding characteristic of the UNESCO procedure is the emphasis, or indeed the insistence, on its strictly confidential nature, even after cases have been settled. In 104 EX/Decision 3.3, the Executive Board recognized and confirmed the role of the Director-General as regards UNESCO action in the field of promotion of human rights in general and, more specifically, in initiating consultations in conditions of mutual respect, confidence and confidentiality to help reach solutions to particular problems concerning human rights. From 1978 to 2000, about 500 communications from individuals, as well as from such non-governmental organizations as Amnesty International, the International Association of Democratic Lawyers, the International Human Rights Law Group, the World Federation of Teachers' Unions, the Women's International Democratic Federation were examined by the Committee on Conventions and Recommendations. Though the number of communications presented to UNESCO is relatively small, nevertheless the procedure is relatively effective.31 b. Decisions Aimed at the Improvement of the Communications Procedure At its 154th Sess., 1998 the UNESCO Executive Board invited the Director-General to seek views and comments of Member-States concerning the examination of the methods of work of the Committee on Conventions and Recommendations. In order to draw up proposals for improving the communications procedure and the working methods of the Committee, which would lead to an improvement in the situation of alleged victims of human rights violations, a working group comprising six members was created.32 The working group examined 21 proposals in the light of Deci31

32

From 1978 to 1998 of 482 communications which were examined, 280 were positively settled. As the result 153 persons were liberated; 54 persons obtained permission to leave or to enter the interested states; 12 received passports or diplomas; 29 could find employment. In 15 cases, publications were permitted and in 8 a discriminatory legislation in the field of education has been amended. The working group comprised members representing six electoral groups: Belgium, Russian Federation, Brazil, India, Senegal and Libyan Arab Jamahiriya.


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sion 104 EX/3.3. Taking into account the working group's recommendations, the Committee on Conventions and Recommendations agreed on five points.33 1. As to the admissibility of communications, the Committee stressed that the recognition of a communication's admissibility does not imply any condemnation of the government concerned. In order to speed up decisions concerning the admissibility of communications, only the governments concerned are requested to make their position known within a time limit of three months from the transmission of the communication by the Secretariat. 2. When a communication submitted to the Committee is being examined or has already been examined by another body in the United Nations system, the Secretariat will check with this other body whether there is any unnecessary duplication or incompatibility. If there is any doubt, the Secretariat will submit the question to the Committee. 3. When the government concerned fails to cooperate, the Committee may, in its report to the Executive Board, draw the board's attention to such a case and suggest a debate in the Executive Board in private meeting. 4. Confronted with the fact that the very existence of the Committee and the communication procedure are not very well known, the Committee underlined the need to continue efforts by the Secretariat and the Member States to make the procedure better known. 5. On the question of the publication of its annual report, the Committee did not adopt any general rule but decided that it will determine under what circumstances each of its annual reports may be made public. Decisions taken by the Committee and notes by the Executive Board do not change the basic principles on which the communications procedure is based; nonetheless, they may improve its effectiveness and the speed with which alleged violations of cultural rights are dealt with.

33

Report of the Committee on Conventions and Recommendations, Doc. 156 EX/52 of 7 June 1999.

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IV. Conclusions The analysis of UNESCO standard-setting instruments allows us to state that the Organization has no doubt contributed to the progressive development of human rights, in particular those which can be qualified as cultural rights.34 Thanks to UNESCO's normative action, provisions of the Universal Declaration and the Covenants concerning cultural rights are not only clarified and elucidated but also further developed. However, cultural rights are formulated by UNESCO in instruments of different legal nature. Some, provided by ten binding conventions, may be recognized as "hard law", whereas those proposed by twenty declarations or recommendations can only be qualified as "soft law". The adoption of certain instruments has not been free from disputes and opposition. For example, the Recommendation on Participation by the People at Large in Cultural Life and Their Contribution to it of 1976 was not universally accepted. Before the vote on the Recommendation, delegations from Belgium, Canada, the Federal Republic of Germany, France, Guatemala, Italy, Portugal, the United Kingdom and the United States objected to terminology, meanings, implied restrictions on freedom of expression and of individual creativity and possible control of creativity by the governmental bureaucracy. The Controversial Declaration of Guiding Principles on the Use of Satellite Broadcasting for the Free Flow of Information adopted in 1972 under pressure from the Soviet Bloc and developing countries was recognized after the end of the Cold War as contradicting the freedom of expression and freedom of press. The difference between hard and soft law means that UNESCO has contributed first of all to the progressive development of those rights like the right to education, the right to the protection of the moral and material interest resulting from any literary or artistic production and the right to the protection of cultural heritage where binding conventions were elaborated and adopted.35 This is clearly acknowledged by the Committee on Economic, Social and Cultural Rights which in its General Comment No. 13 (21st Sess. 1999) declared that article 2 paras 2 and 3 of the Covenant are in34

35

Broadly understood, cultural rights also embrace the right to education, the right to benefit from the scientific progress and the right to information. However, even the best known UNESCO Convention against Discrimination in Education, 1960 is far from being universal, as in the year 2000 it is binding in only 88 State parties.


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terpreted "in the light of the UNESCO Convention against Discrimination in Education". It further "...affirms article 2 of the UNESCO Convention..." and "...takes note...of Article 3 (e) of the UNESCO Convention...".36 UNESCO Declarations and Recommendations in particular those adopted by consensus and relating to the Organization's field of competence also contribute to the progressive development of human rights. This is recognized by the United Nations, which in an official publication: Human Rights. A Compilation of International Instruments37, apart from the UNESCO Convention against Discrimination in Education, lists the following Declarations and Recommendations: Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War; Declaration of the Principles of International Cultural Cooperation; Recommendation concerning Education for International Understanding, Cooperation and Peace and Education relating to Human Rights and Fundamental Freedoms.38 Though the UNESCO reporting and communications procedures may be criticized, and in recent years the need for their improvement has been recognized by the Committee on Conventions and Recommendations, the Executive Board and the General Conference, nevertheless they have unique features. They establish important precedents and can be seen as contribution to the progressive development of the United Nations supervisory mechanism. Thus the permanent system of reporting of education for peace, human rights, democracy, international understanding and tolerance, as already mentioned, applies not only to instruments adopted by UNESCO, but also to those adopted by the United Nations. This is rather a unique solution. It is true that the UNESCO complaints procedure is not well known and not so often used. Nonetheless, this does not change the fact that until now UNESCO created the only complaints mechanism relating to cultural rights. It is worth noting that the Committee on 36 37

38

Doc. E/C.12/1999/10 of 8 December 1999,71-72. Human Rights. A Compilation of International Instruments, I (First Part) and II (Second Part), 1993. Next addition of this Compilation should add to this list such important UNESCO human rights instruments like the Declaration of Principles on Tolerance, 1995; the Universal Declaration on the Human Genome and Human Rights, 1997.

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Economic, Social and Cultural Rights decided to present to the United Nations Conference on Human Rights in Vienna 1993 a document suggesting the need to reflect on the possibility of elaborating and adopting an optional protocol to the Covenant which would allow individuals to present petitions concerning alleged violations of their economic, social and cultural rights. The World Conference on Human Rights encouraged the Commission on Human Rights, in cooperation with the Committee on Economic, Social and Cultural Rights, to continue the examination of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. During its 15th Sess., 1997, the Committee adopted a report on a draft optional protocol which is still under consideration by the Commission on Human Rights. Needless to add that this proposed Protocol is entirely optional, whereas the UNESCO procedure has been recognized by Member States and applies not to a specific human rights instrument but, in general, to human rights which are in the UNESCO field of competence. In the context of the monitoring of cultural rights it is worth noting that UNESCO took part in the elaboration of the procedure for the implementation of the International Covenant on Economic, Social and Cultural Rights.39 Subsequent to the entry into force of the Covenant, the Executive Board examined, in May 1979 and June 1980, the question of UNESCO's participation in the procedure for the implementation of the Covenant. The Executive Board invited the DirectorGeneral to communicate to the United Nations suggestions regarding the guidelines that the Secretary-General was to establish for the States parties with reference to arts 13 to 15 of the Covenant. The Executive Board underlined that these suggestions should take account of UNESCO's normative instruments and its experience in collecting information on the implementation of human rights which fall within its sphere of competence. Proposals were communicated to the SecretaryGeneral by the Director-General in a letter dated 10 October 1980. In accordance with the decisions of the Executive Board the DirectorGeneral sent to the ECOSOC two reports on the implementation of

39

In its Resolution E/RES/1988 (LX) of 11 May 1976, the ECOSOC laid down more detailed rules of procedures concerning supervision of the implementation of the Covenant. The Secretary-General, in cooperation with the Specialized Agencies concerned, was requested to draw up general guidelines for the reports to be submitted by the States parties to the Covenant and the Specialized Agencies.


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the Covenant. The first report was transmitted in 1982 and the second in!988.40 As far as UNESCO's programmes are concerned, the second report noted the importance of the World Conference on Cultural Policies (MONDIACULT) held in Mexico in August 1982. In accordance with the proposal of UNESCO, the United Nations General Assembly, proclaimed on 8 December 1986, the World Decade for Cultural Development for the period 1988-1997. Three of four objectives of the Decade: affirming and enriching cultural identities, broadening participation in culture, and promotion of international cooperation are intimately linked with the observance of cultural rights. In 1992, UNESCO established the World Commission on Culture and Development chaired by Javier Perez de Cuellar. The Commission's mandate obliged it to prepare a World Report on Culture and Development and "proposals both for urgent and long-term action to meet cultural needs in the context of development". During the fourth meeting, the World Commission discussed cultural rights and the right to development. The report of the World Commission on Culture and Development, under the title Our Creative Diversity, was published in 1995. Among its ten recommendations for international cooperation, Action 7 is entitled "Protecting cultural rights as human rights".41 Answering the question on how to assure the better protection of cultural rights, and how to eliminate their violation, the World Commission, proposed a whole range of steps from the establishment of an inventory of cultural rights, the preparation of an International Code of Conduct and the setting up of an International Office of the ombudsman for cultural rights, to the establishment of an international court to hear cases brought before it by individuals and groups prosecuted over matters involving cultural rights. Indeed, though a fair number of standard-setting instruments adopted by the United Nations, UNESCO and regional organizations formulate states' obligation to implement cultural rights, the necessity 40

41

With respect to each of the three articles (13-15) dealt with, an indication was provided by the relevant major normative instruments adopted by UNESCO in connection with the implementation of the Covenant's provisions. The report also contained overall references to the relevant programme activities being pursued by UNESCO, without any attempt to present a full and complete picture of the Organization's activities. Our Creative Diversity, Report of the World Commission on Culture and Development, 1996,281 et seq.

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for their "inventory" or, in other words, "codification" can not be questioned. The adoption of a special normative instrument could not only contribute to the further elucidation of cultural rights but also help to make them better known. However, such a perspective seems to be rather remote. By the dawn of the 21st century, cultural rights are gaining new importance. They are today "empowering rights". Without their recognition and observance, without implementation of the right to cultural identity, to education, to creativity or to information, neither may human dignity and human development be guaranteed nor may other human rights be fully implemented. Without the recognition of cultural rights, cultural plurality and diversity cannot be respected, and democratic societies cannot function properly.

The U.N. Human Rights Committee Thomas Buergenthal

I. Introduction II. Normative Content and Institutional Structure: An Overview III. State Reports 1. The Committee's Role 2. Sources of Information 3. Contents and Examination of State Reports 4. Special Reports 5. Reporting Obligations and State Succession IV. Inter-State Communications V. Individual Communications 1. The Normative Framework 2. Follow-Up 3. Applying the Optional Protocol VI. General Comments VII. Conclusions 1. Delinquent State Reports 2. Working Methods and Financial Problems 3. Norm-Setting and Quasi-Judicial Role 4. Binding Decisions under the Optional Protocol

I. Introduction The United Nations Human Rights Committee is not the oldest UN human rights treaty body. That distinction belongs to the Committee on the Elimination of Racial Discrimination (CERD).1 Over time, though, the Human Rights Committee has emerged as the most active 1

See generally R. Wolfrum, "The Committee on the Elimantion of Racial Discrimination,1' Max Planck UNYB 3 (1999), 489 et seq. 341

J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 341-398. © 2001 Kluwer Law International. Printed in the Netherlands.

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and innovative of these institutions. Although it is difficult to fully explain why the Committee acquired this special status, a number of factors may have contributed to it. One has to do with the fact that the Committee has the broadest subject-matter jurisdiction or competence of any of these treaty bodies.2 Another factor may be attributed to the Cold War and the perception then current that CERD, with its jurisdiction over racial discrimination, offered the Soviet Union and its allies as well as many non-aligned third world nations a propaganda tool to be used against the West. The Human Rights Committee, by contrast, provided these groupings of states with no comparable propaganda advantage. The East must consequently have decided that it had an interest in ensuring that the Committee not become an East-West battle ground, whereas the West no doubt concluded that its interests in promoting civil and political rights were best served by not politicizing the Committee.3 Thus, despite the fact that the West and nations aligned with it at different times tended to have a majority in the Committee, the members from these countries appeared to have decided early on that little would be gained in the long run by attempting to impose their will on the Committee as a whole. The unstated compromise not to politicize the Committee produced a body that manoeuvred around the shoals of the East-West conflict without making too many waves: it did not threaten the East while advancing the interests of the West, albeit only minimally, in promoting The International Covenant on Civil and Political Rights, whose entry into force gave birth to the Committee, guarantees a comprehensive catalogue of civil and political rights. The other United Nations treaty bodies have a more limited jurisdiction, dealing as they do with racial discrimination, rights of children or women, and torture. The Committee on Economic and Social Rights, which administers the implementation of the International Covenant on Economic, Social and Cultural Rights and whose jurisdiction within its sphere of competence matches that of the Human Rights Committee, is not a treaty body. It was established by a resolution of the ECOSOC. Symptomatic of Cold War paranoia is the fact that the same states (the Soviet bloc and many so-called non-aligned nations), which supported a mandatory inter-State complaint mechanism and a reference of disputes to the ICJ as well as an optional individual petition system for the International Convention on the Elimination of All Forms of Racial Discrimination, strongly opposed the inclusion in the Covenant of the very same mechanisms. See A.H. Robertson, "The Implementation System: International Measures," in: L. Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights, 1981, 332 et seq., (336).

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civil and political rights. This compromise was reflected in the Committee's decision to work by consensus, if at all possible.4 The fact that the Committee was perceived as not being a Cold War battleground enabled it during those formative years to attract a distinguished group of Committee members — well-known international lawyers, human rights scholars and national judges — who labored hard to strengthen the Committee's mandate by a process that put a premium on nonthreatening gradualism. What might today be mistaken for timidity, probably preserved the Committee's credibility during the first decade of its existence and laid the foundation for the institutional advances the Committee made over the years.5 This article will analyze the manner in which the Committee discharges its mandate under the Covenant and the Optional Protocol to it. It will describe the functions of the Committee under these two instruments and provide a brief overview of the rights the Covenant guarantees. The main focus will be on the Committee's practice or modus operandi. The article will conclude with some reflection on the challenges confronting the Committee.

II. Normative Content and Institutional Structure: An Overview The Covenant was adopted by the United Nations General Assembly on 16 December 1966 and entered into force on 23 March 1976, three months after the required 35 instruments of ratification had been de-

Human Rights Committee, Rules of Procedure, Rule 51, where the Committee, in a footnote to that provision, agreed "that its method of work normally should allow for attempts to reach decisions by consensus before voting." On the Human Rights Committee generally, T. Opsahl, "The Human Rights Committee," in: P. Alston (ed.), The United Nations and Human Rights: A Critical Appraisal, 1992, 369 et seq.; D. McGoldrick, The Human Rights Committee, 1994. See also W. v. d. Wense, Der UN-Menscbenrechtsausschuss und sein Beitrag zum universetten Schutz der Menschenrechte, 1999; E. Klein, "The Reporting System under the International Covenant on Civil and Political Rights," in: E. Klein (ed.), The Monitoring System of Human Rights Treaty Obligations, 1998.

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posited.6 The Optional Protocol entered into force at the same time as the Covenant.7 The Second Optional Protocol to the Covenant, which aims at the abolition of the death penalty, was adopted on 15 December 1989 and entered into force on 11 July 1991. The Covenant guarantees a comprehensive catalogue of individual civil and political rights as well as two so-called peoples' or group rights. The latter category consists of the right of "all peoples to self-determination" and of their right to "freely dispose of their natural wealth and resources."8 The list of individual civil and political rights is set out in Part III of the Covenant and consists of 21 articles.9 These provisions guarantee the right to life, the prohibition of torture and slavery, and various due process guarantees. They proclaim such basic rights as freedom of expression, assembly, association, privacy and movement as well as the right to participate in government. The Covenant contains a broad equal protection and non-discrimination clause and a provision that deals with the rights of persons belonging to ethnic, religious or linguistic minorities. Part II of the Covenant contains an additional non-discrimination clause, tailored to the enjoyment of the rights guaranteed in the Covenant, and a provision in which the States parties undertake "to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant."10 Part II of the Covenant also permits the States parties temporarily to suspend the enjoyment of certain rights the Covenant guarantees when such action is necessary during situations of national emergency.11 The Covenant provides for the establishment of the Human Rights Committee and stipulates that it should consist of 18 members who are 6

7

8 9

10 11

See International Covenant on Civil and Political Rights (hereinafter cited as Covenant), article 49 para. 2. Pursuant to article 9 para. 1 of the Optional Protocol to the International Covenant on Civil and Political Rights (hereinafter cited as Optional Protocol or Protocol) ten ratifications were required to bring that instrument into force subject to the entry into effect of the Covenant. Covenant, article 1 paras 1 and 2. For an analysis and legislative history of these provisions, M.J. Bossuyt, Guide to the "Travaux Preparatoires* of the International Covenant on Civil and Political Right, 1987; M. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 1993. Covenant, article 2 para. 1 and article 3. Covenant, article 4.


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to serve in their personal capacity and be persons of "high moral character and recognized competence in the field of human rights."12 In the election of the members of the Committee, "consideration shall be given to equitable geographical distribution of membership and to the representation of different forms of civilization and of the principal legal systems."13 Committee members are elected to a term of four years; they may be re-elected.14 Over the years, there has not been a very dramatic turnover of the Committee's membership. For example, three individuals who were first elected to the Committee in 1977 when that body was established, continued to serve on the Committee twenty years later, two of them without interruption and one after a brief absence. A substantial number of former and current members have remained on the Committee for at least two or three terms, providing it with considerable institutional continuity. As far as geographic representation is concerned, prior to the 1996 elections Latin America and the Caribbean had five members on the Committee, Western Europe and Others had six, whereas Africa was represented by two, Asia by three, and Eastern Europe by one. Israel, which is not part of any UN grouping of states, also had a member on the Committee. The 1996 elections changed this picture somewhat: while Asia, Africa and Eastern Europe retained the same number of seats, Western Europe and Others gained two seats at the expense of Latin America and the Caribbean. As this list indicates, Africa and Asia tend to be underrepresented on the Committee, although the situation improved substantially for Africa in the 2000 elections, when it gained two new members. The under representation of Africa in prior years can no doubt be attributed to the fact that Africa has fielded a large number of candidates, rather than agreeing on a few that all African States parties to the Covenant would support. Since most African States are parties to the Covenant, they could easily have elected additional candidates had they not split their vote. Asia, of course, is also underrepresented. That is due in part to the much smaller number of Asian States parties to the Covenant; for example, neither China, Indonesia, Malaysia nor Pakistan are parties to the Covenant. The Covenant confers two major functions on the Committee; the Optional Protocol adds another one. The Covenant requires all States parties to submit reports to the Committee "on the measures they have 12 13 14

Covenant, article 28. Covenant, article 31 para. 2. Covenant, article 32 para. 1 and article 29 para. 3.

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adopted which give effect to the rights" it guarantees and "on the progress made in the enjoyment of those rights."15 In addition to the reporting obligation, which is mandatory for all States parties, the Covenant establishes an optional inter-State or State-to-State dispute settlement mechanism.16 The Optional Protocol enables any State party to the Covenant to recognize the competence of the Committee to deal with "communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant."17 As its name indicates, the individual petition system is optional; it can be invoked only after a State party has ratified the Protocol. Of the 148 countries that have become parties to the Covenant, 98 have to date ratified the Optional Protocol. 47 states have made the declaration under article 41 para. 1, accepting the competence of the Committee to receive inter-State complaints filed by other States parties which have made the same declaration. No state has as yet invoked the procedure envisaged by article 41. On the other hand, by the end of 2000 the Committee had received close to 1000 individual communications. Here it is important to note that a State party which does not voluntarily subject itself to the optional dispute resolution schemes described above, is bound only by the Covenant's reporting requirement.

III. State Reports An analysis of the manner in which the Committee has administered the reporting system established by article 40 of the Covenant18 should start with the recognition that states traditionally have been very reluctant to make mandatory any so-called international measures of implementation19 or supervision in human rights treaties that might have 15 16 17 18

19

Covenant, article 40 para. 1. Covenant, arts 41 and 42. Optional Protocol, article 1. On this subject generally see I. Boerefijn, The Reporting Procedure under the Covenant on Civil and Political Rights, 1999. On the use of this term of art, which has come to mean measures for the international supervision of the observance of (human rights) commitments, see E. Schwelb, "The International Measures of Implementation of the International Covenant on Civil and Political Rights and of the Optional Protocol," Tex. Int'lLJ. 12 (1977), 141 et seq., (142).


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"teeth," viz., be effective. But while states have tended to believe that inter-State and individual petition systems would threaten their freedom of action, reporting systems have on the whole not been seen by them as involving much of a risk in that regard. This explains why most human rights treaties adopted within the United Nations framework provide for a mandatory reporting system. Dispute resolution mechanisms are less common and usually optional, particularly those that give individuals a right of action, which states consider as particularly threatening. These same considerations entered into the drafting of the measures of implementation of the Covenant and explain why only the reporting requirement is mandatory.20 It should be emphasized, however, that the assumption that the reporting requirement is "harmless* is not necessarily valid. Whether or not it is, will frequently depend upon the composition of the supervisory body, its commitment to the cause of human rights, its creativity and the larger political climate within which it exercises its functions. In fact, experience suggests that there is nothing inherently weaker about a reporting system compared with other measures of implementation such as quasi-judicial mechanisms of settlement or investigation, which are sought by their very nature to be better suited to achieve results in the human rights field. Whether one or the other implementation measure will produce the desired result in terms of improving a given country's human rights situation — that, after all, is the object of the exercise — depends on a variety of factors. It is therefore important to look at the Covenant's reporting mechanism, to analyze the manner in which the Human Rights Committee has implemented it and to explore how it might evolve in the future.

1. The Committee's Role In article 40 para. 1 of the Covenant, the States parties undertake "to submit reports on the measures they have adopted which give effect to the rights recognized [in the Covenant] and on the progress made in the enjoyment of those rights." Article 40 para. 2 specifies that these reports "shall indicate the factors and difficulties, if any, affecting the implementation" of the Covenant in the reporting countries. The State reports are to be submitted to the Committee "for consideration."21 The 20 21

Robertson, see note 3. Covenant, article 40 para. 2.

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Committee is to "study" the reports and submit "its reports, and such general comments as it may consider appropriate, to the States Parties." It may also transmit these comments to the UN Economic and Social Council "along with the copies of the reports it has received from the States Parties...."22 Article 40 para. 5 gives the States parties the right to submit their observations to the Committee on the latter's general comments. The Secretary-General of the UN is authorized under article 40 para. 3, in consultation with the Committee, to transmit to the specialized agencies of the UN "copies of such parts of the [State] reports as may fall within their field of competence." With regard to the timetable for the submission of State reports, the Covenant provides that they shall be submitted "within one year of the entry into force of the present Covenant for the States Parties concerned" and "thereafter whenever the Committee so requests."23 As rule the Committee requests the submission of such reports every five years. The language of article 40 indicates that those who drafted this provision did not wish to spell out very clearly what powers the Committee was to exercise in dealing with State reports. While the Committee was mandated "to study" these reports, article 40 fails to specify the object or purpose of the study. It provides that after studying the State reports, the Committee is to "transmit its reports, and such general comments as it may consider appropriate, to the States Parties."24 In other words, left unstated or vague is the function the Committee is to exercise in studying the State reports, what issues the Committee's reports may consider, and whether its comments may be addressed to individual states rather than to all States parties in general.25 The Committee debated these issues at great length in 1980.26 A majority of its membership, led by Professor Torkel Opsahl of Norway, took the position that the purpose of the study to which article 40 para. 4 of the Covenant refers was "to ascertain whether the State party had 22 23 24 25

26

Covenant, article 40 para. 4. Covenant, article 40 para. 1 lit.(a) and (b). Covenant, article 40 para. 4. On the rather ambiguous nature of the legislative history of article 40 para. 4, see Nowak, see note 9, 568-571. For the summary records of the debate, see (1979-1980) Yearbook of the Human Rights Committee (hereinafter cited Yearbook HRC), Vol. 1,397 et seq. For a summary of the debate, see (1979-1980) Report of the Human Rights Committee (hereinafter cited HRC Report), GAOR, Suppl. No. 40 (Doc. A/35/40), 83-87 (1980).


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reported as it should and, on that basis, whether it had implemented or was implementing the Covenant as it had undertaken to do."27 According to Opsahl and those who supported him, "... the study should lead to the adoption of separate reports by the Committee on each State party's report. The exercise would, however, be conducted in such a way as not to turn the reporting procedure into contentious or inquisitory proceedings, but rather to provide valuable assistance to the State party concerned in the better implementation of the provisions of the Covenant. The reports to be adopted by the Committee as a result of its study of each individual State report should not be seen as identical with its annual report ... to the General Assembly under article 45 of the Covenant... These reports would be transmitted separately to each individual State party concerned and that State party would be entitled to submit to the Committee under article 40(5), observations on any comments made by the Committee in its report."28 This interpretation of the function to be exercised by the Committee under article 40 was unacceptable to Mr. Bernhard Graefrath of the German Democratic Republic and some of his colleagues. They argued that: "... the study the Committee was required to undertake under paragraph 4 of article 40 was limited to the exchange of information, the promotion of co-operation among States, with the purpose of maintaining a steady dialogue and assisting States in overcoming difficulties, and that the study did not have in it any element of assessment or evaluation... [T]he primary functions of the Committee under article 40 of the Covenant were to assist States parties in the promotion of human rights, and not in pronouncing on whether the States parties were or were not implementing their undertaking under the Covenant .... [T}he Committee was not empowered under the Covenant to interfere in this manner in the internal affairs of States parties".29

27 28

29

HRC Report, see above, 85. Id. Id., 86. See also B. Graefrath, "The Reporting and Complaint Systems in Universal Human Rights Treaties," in: A. Rosas/J. Helgesen (eds), Human Rights in a Changing East/West Perspective, 1990,290.

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Although a majority of Committee members were in agreement with the interpretation advanced by Mr. Opsahl, the Committee's practice of operating by consensus enabled the minority to block its acceptance. In 1984 a partial compromise solution was adopted. It allowed individual members to voice their own assessment or observations with regard to a State report at the conclusion of its review by the Committee.30 These individual observations were then summarized and reproduced in the Committee's annual report to the UN General Assembly.31 Finally, in 1992, after again reviewing its functions under article 40 para. 4, the Committee decided that "observations or comments reflecting the views of the Committee as a whole at the end of the considerations of any State party report should be embodied in a written text, which would be dispatched to the State party concerned as soon as practicable."32 This is the current practice of the Committee. It consists of the adoption by the Committee of so-called "Concluding Observations." These observations consist of an assessment of the state's human rights situation in light of the information provided in the State report, the answers the Committee received to the questions posed by its members during the examination of the report, and information available to the members from other sources, all analyzed in terms of the country's obligations under the Covenant. The Committee transmits its concluding observations to the State party concerned shortly after the hearing; they are also reproduced in the Committee's annual report to the General Assembly.33 The format of the document adopted by the Committee for this assessment consists as a rule of the following parts: 1.) introduction, 2.) factors and difficulties affecting the application of the Covenant, 3.) positive aspects, 4.) principal subjects of concern, 5.) suggestions and recommendations.

30

31

32

33

(1983-1984) HRC Report, GAOR, Suppl. No. 40 (Doc. A/39/40), 10-12 (1984). In 1994, the Committee decided to discontinue summarizing the discussions of the Committee's review of State reports after it had already decided in 1992 to substitute the Committee's "Concluding Observations" for these summaries, (1993-1994) HRC Report, GAOR, Suppl. No. 40 (Doc. A/49/40), 9,12 (1994). (1991-1992) HRC Report, GAOR, Suppl. No. 40 (Doc. A/47/40), 3 (1994). This decision was formalized by the Committee at its next session. Id., 4. See e.g. (1999-2000) HRC Report, GAOR, Suppl. No. 40 ( Doc. A/55/40), 22 et seq. (2000), for examples of these final observations.


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Concluding observations are adopted by the Committee as a whole in closed meetings after a thorough paragraph-by-paragraph discussion of a draft text prepared by a country rapporteur, working alone or with a small country working group. Given their formal character and the care with which they are increasingly being drafted by the Committee, the findings set out in concluding observations must be viewed as authoritative pronouncements on whether a particular state has or has not complied with its obligations under the Covenant. What we have here is a type of Committee "jurisprudence," which provides some insights about the manner in which the Committee interprets the Covenant.34

2. Sources of Information For a substantial period of time the Committee was divided on the question of the sources of information it could draw on in examining State reports. Article 40 is silent on this subject, although it does authorize the Secretary-General of the UN "to transmit to the specialized agencies concerned copies of such parts of the [State] reports as may fall within their field of competence."35 While some Committee members thought that this provision authorized the Committee to receive comments on the State reports from UN specialized agencies, this view did not find the necessary support in the Committee.36 The Committee did decide, however, that information from the specialized agencies on the manner in which they apply and interpret provisions similar to those of the Covenant should be made available to members of the Committee on a regular basis. It was also decided that "information of any other kind may be made available to them on request during meetings of the Committee which were attended by representatives of the specialized agencies."37

34

35 36 37

For a useful analysis of this "jurisprudence," see S. Joseph, "New Procedures Concerning the Human Rights Committee's Examination of State Reports," NQHR 13 (1995), 5 et seq., (8-12). See also E. Tistounet, "Amelioration des procedures conventionnelles des Nations Unies en matiere de droits de 1'homme," RUDH 5 (1993), 145 et seq. Covenant, article 40 para. 3. (1978) HRC Report, GAOR, Suppl. No. 40 (Doc. A/33/40), 105 (1978). (1979-1980) HRC Report, GAOR, Suppl. No. 40 (Doc. A/35/40), 86-87 (1980).

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These decisions were made in the late 1970's and early 1980's and continued for years to reflect the Committee's practice in relation to the specialized agencies. A dramatic change occurred in the early 1990's, when the Committee "... modified its working methods so as to enable the specialized agencies and other United Nations organs to take an active part in its activities. The Committee accordingly decided that a meeting would be scheduled at the beginning of each session of the presessional working group38 so that it might suitably receive oral information provided by these organizations. Such information should thus relate to the reports to be considered during the Committee's session and, if need be, supplement the written information already provided."39 This continues to be the Committee's practice. It enables the Committee to receive valuable information relating to the human rights situation in the reporting countries. The Committee also draws with increasing frequency on the studies and resolutions of various UN organs, particularly those prepared by country and thematic rapporteurs appointed by the UN Commission on Human Rights. In the past there was even greater controversy in the Committee regarding information provided by non-governmental human rights organizations (NGOs).40 While some members argued in the early years of the Committee's existence that this information could not be resorted to even by Committee members, not to mention the Committee itself, the members and the Committee have over time made ever greater use of NGO material. Initially, Committee members would draw on this information in formulating their questions without, however, attribution as to its source. In recent years, Committee members increasingly refer by name to the NGO source relied upon and even ask the State representative to confirm or deny the information.41 Some

38

39

40 41

The pre-sessional working group usually meets one week before each session of the Committee to make the necessary preparations for the review of the State reports due to be considered at that session. Now it also prepares the draft list of issues for the succeeding session. (1994-1995) HRC Report, GAOR, Suppl. No. 40, (Doc. A/5 0/40), 17 (1995). D. McGoldrick, The Human Rights Committee, 1994,77-79. See F. Pocar, "Current Development and Approaches in the Practice of the Human Rights Committee in Consideration of State Reports," in: A. Eide/


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NGOs even submit so-called "alternative reports" in which the information provided in the State report is contradicted. In 1995, moreover, the Committee initiated a practice of giving NGOs an opportunity to meet with inter-sessional working groups of the Committee prior to the Committee session to exchange information on the human rights situation in countries whose reports would be considered at that session. NGOs now also hold informal briefings for Committee members. These tend to be scheduled during lunch hours or early in the morning before the start of the formal Committee meetings.

3. Contents and Examination of State Reports Article 40 para. 1 requires the States parties to submit their first or socalled initial report to the Committee within one year after they have ratified the Covenant. Reports are due thereafter "whenever the Committee so requests."42 These periodic reports must now be submitted to the Committee roughly every five years. Initial and periodic reports are to be drafted in accordance with the instructions of the Committee, set out in its "Guidelines" on the subject.43 The guidelines have been amended over the years in light of the Committee's experience in examining reports. The Committee requires both types of reports to deal with a country's domestic law and practice by reference to the obligations the state has assumed under the Covenant, and to do so on an article-by-article basis. The reports are to be comprehensive and to include, inter alia, information regarding the nature or types of restrictions or limitations on rights, if any. They should describe factors or difficulties affecting the enjoyment of the right by persons within the jurisdiction of the state, including any factors affecting the equal enjoyment by women of that right. The Committee now also requires each State party to include information about measures it took or what remedies it granted in compliance with the Committee's decisions in individual cases lodged

42 43

J. Helgesen (eds), The Future of Human Rights Protection in a World of Change: Essays in Honour of Torkel Opsakl, 1991, 51 et seq., (57-58). Covenant, article 40 para. 1 lit.(b). For the latest version, see Consolidated Guidelines for States Parties' Reports Under the International Covenant on Civil and Political Rights, (hereafter cited as Consolidated Guidelines), (1999-2000) HRC Report, GAOR, Suppl. No. 40 (Doc. A/55/40), 112-17 (2000).

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against it. In filing their periodic reports, states are asked to address the concerns raised by the Committee in connection with its review of the State's previous report. The Committee's guidelines emphasize throughout the need for it to receive information not only about the relevant legislation, but also about the practices of the courts and administrative organs of the State party and other facts bearing on the actual enjoyment of rights recognized by the Covenant. These instructions reflect the Committee's frustration with the many State reports that focus on the texts of national laws and constitutions rather than on the actual human rights situation in the country, which often bears very little resemblance to what the laws and constitutions provide. On the whole, periodic reports have become more comprehensive in recent years. The examination of State reports take place as follows: after a report has been received and entered on the Committee's agenda, it is studied by a so-called country rapporteur and a small country working group of the Committee. They prepare a draft set of questions to be addressed by the Committee to the state. Designed to obtain more detailed information on specific human rights concerns, these questions are reviewed by a pre-sessional working group and submitted for adoption to the Committee as a whole. In the past they were transmitted to the state a few days prior to the Committee hearing on the report with the request that they be answered orally by its representative. In 1999, the Committee decided to prepare a list of issues at the session prior to the examination of the report in order to give the state more time to respond to the Committee's concerns.44 The Committee examines the country reports in public session. Following the oral presentation by the state's representative, individual members may ask additional questions and comment on the answers. One full day is usually devoted to the public examination of the country reports, although more time may be set aside for initial reports, particularly if the country's human rights problems warrant it. Once the oral phase is over, the Committee meets in private and adopts its "concluding observations." Their contents will as a rule reflect many of the concerns Committee members expressed at the public hearing during the question and answer period. Although article 40 makes no reference to the presence of State representatives during the Committee's examination of a country's report, their participation in this review process dates back to the earliest days of the Committee's activities. A similar practice was pioneered by the 44

Id., 16.

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Committee on the Elimination of Racial Discrimination for the examination of State reports under the Convention on the Elimination of All Forms of Racial Discrimination, which also made no provision for it.45 Impressed by CERD's experience, the Human Rights Committee incorporated the relevant provision of CERD's Rules of Procedures into its own.46 The text of the Committee's rule on the subject - Rule 68 has remained the same over the years.47 Although it merely authorizes, but does not require, states to send representatives to the Committee meetings at which their reports will be examined, their attendance record has been exceptionally good. This result can be attributed to the fact that the Committee expects State representatives to be present and will postpone consideration of a report when it appears that no representative will attend.48 This practice makes a great deal of sense because an examination of a State report in the absence of State representatives willing to respond to questions would certainly not promote the constructive dialogue between the State party and the Committee which, in the latter's view, constitutes the essence of the reporting procedure. It is in the state's interest, moreover, to be represented before the Committee when it examines the country's report. This is often the only way for the state to prevent or clarify misunderstandings about its human rights situation. The nature of the dialogue between the States parties and the Committee has changed over the years. The Committee members' questions have become more probing and intrusive than in the past. Compared with the Committee's practice during the Cold War, when it was not uncommon for certain states, regardless of their human rights record, to be treated with "kid gloves" during the examination of their reports, the Committee's current practice is at once more honest, even-handed and certainly more inquisitorial in style. The net result is a public review of a state's human rights situation that leaves few relevant human rights is45

46 47

48

See T. Buergenthal, "Implementing the UN Racial Convention," Tex. Int'l L. J. 12 (1977), 187 et seq., (199-201), which describes the evolution of this practice in CERD. (1977) HRC Report, GAOR, Suppl. No. 44 (Doc. A/32/44), 10 (1977). Compare Rule 68 of the 1977 Rules of Procedure, ibid., 60, with the same provision in the current Rules of Procedure. Nowak, see note 9, 563, who reports that in dealing with the one State Guinea - which had sent no representative, the Committee postponed taking up that country's report until a representative eventually appeared. The Committee took the same position in 1995, when the representative of Afghanistan failed to reach Geneva in time to present his country's report.

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sues unexplored. It also exposes, probably more than other existing measures of implementation, the achievements and failures of a state's human rights policies. This said, it must be emphasized that the great weakness of the reporting system lies in the failure of certain states, frequently the biggest violators of human rights, to submit their reports to the Committee in a timely fashion. As a matter of fact, while a majority of states may be a year or two behind in getting their initial or periodic reports to the Committee, there are those whose reports are overdue by more than eight to ten years. In 1993, the Committee reported, for example, that: "The situation facing the Committee has worsened over the years, particularly since third periodic reports became due in 1988. The number of overdue reports, as at 1 May 1993, reached 15 initial, 26 second periodic and 37 third periodic reports, involving a total of 65 States parties .... The fact that, since 1993, fourth periodic reports have also started to become due is expected to lead to a further increase in overdue reports."49 In 2000, the Committee identified 44 states whose reports were at least five years overdue, and some states on the list had reports overdue by more than ten years.50 There are various reasons why states are delinquent in complying with their reporting obligations. Although some of them have poor human rights records and wish to avoid public scrutiny, that is certainly not true of all delinquencies. Some smaller, poorer states lack the necessary resources or professional staff to prepare their reports within a reasonable period of time. Civil wars or disruptive internal turmoil often also play a role, as does bureaucratic inertia. The large number of overdue reports obviously weakens the effectiveness of the reporting system, for it prevents the Committee from engaging the

49

"Document Submitted by the Human Rights Committee to the [Vienna] World Conference on Human Rights," (1992-1993) HRC Report, GAOR, Suppl. 40 (Doc. A/48/40), Part 1, Annex X, 218 et seq., (220-21) (1993). By September 1998 the number of delinquent States parties had climbed to 86, almost two thirds of all States parties, (1987-1998) HRC Report, GAOR, Suppl. No. 40 (Doc. A/53/40), 10 (1998). For a comprehensive up-to-date list, see "Recent Reporting History Under the Principal International Human Rights Instruments," Doc. HRI/GEN/4/ Rev.l (2001). 50 (1999-2000) HRC Report, GAOR, Suppl. No. 40 (Doc. A/55/40), 19-20 (2000).


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delinquent states in a dialogue designed to promote compliance with their treaty obligations.51 Although the Committee appears thus far to have proceeded on the assumption that it lacks the power to exercise its article 40 mandate in the absence of a State report, the large number of reporting delinquencies might compel it to reexamine that assumption if the reporting situation continues to be unsatisfactory. Were it to do so, it could redefine what is meant by the concept of a "State report" for the purpose of article 40 of the Covenant. For example, in dealing with delinquent periodic reports, the Committee might take up the State's initial or previous periodic report and analyze it in light of current information from non-state sources. Whether "no report" or a report originating from non-state sources could also be considered a State report is a more difficult question. Some such approach might prompt the states concerned to finally submit their reports. In this connection, it is interesting to note that the Committee recently reported that "it is working on procedures which would enable it... to consider compliance by States parties which have failed to submit reports under article 40. "52 This discussion would be incomplete if it failed to call attention to the fact that the large number of overdue reports has made it possible for the Committee to avoid having to deal with a difficult problem: if all or almost all States parties did submit their reports in a timely fashion, the Committee would face a serious backlog caused by its inability to process these reports within a reasonable period of time. The Committee now meets in three annual sessions of three weeks each. Experience indicates that the Committee cannot deal effectively with more than five to six State reports per session and complete its other work, especially the processing of the growing number of individual communications. Serious financial problems at the United Nations have reduced the Committee's professional support staff and resulted in substantial delays in the translation of incoming State reports, all of which affects the Committee's ability to discharge its mandate expeditiously. Unless these conditions improve or the Committee's sessions are expanded, which is most unlikely in the foreseeable future, the Committee may well have to reassess the manner in which it deals with State reports. One solution might be to limit the number of rights states would be 51

52

See generally, J. Connors, "An Analysis and Evaluation of State Reporting," in: A. Bayefsky (ed.), The UN Human Rights Treaty System in the 21st Century, 2000,3. (1999-2000) HRC Report, GAOR, Suppl. 40 (Doc. A/55/40), 20 (2000).

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asked to report on in any given reporting period. Another might be to establish different reporting periods or distinct reporting obligations geared to a selected number of rights for different states, depending upon the Committee's assessment of problems and achievements that had been revealed in the examination of their earlier reports. The Committee's latest reporting guidelines appear to move in that direction. 53

4. Special Reports In 1991, the Committee began to request certain States parties to submit special reports if there existed exceptional situations in those countries with regard to the enjoyment of human rights. The first such request was addressed to Iraq in April 1991.54 The Committee formalized the practice in 1993 by amending its Rules of Procedure accordingly.55 The amendment came on the heels of the Committee's 1992 decision to request the Governments of Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia "to submit special reports on events affecting human rights protected under the Covenant in respect of persons and events now coming under their jurisdiction."56 The Committee's request to these states was accompanied by a series of questions, drafted by reference to specific provisions of the Covenant, which the Committee wanted to have addressed. Between 1991 and after the amendment of its Rules of Procedure, the Committee requested special reports from Angola and Burundi (1993), Rwanda and Haiti (1994), Nigeria (1995), and the United Kingdom with regard to Hong Kong (1996). While the affected States parties are usually given a period of three months within which to comply with the request for a special re53 54

55

56

See Consolidated Guidelines, see note 43. (1990-1991) HRC Report, GAOR, Suppl. No. 40 (Doc. A/46/40), 10 (1991). The amendment added a new paragraph 2 to Rule 66 of its Rules of Procedure. This paragraph reads as follows: "Requests for submission of a report under article 40, paragraph 1 (b), of the Covenant may be made in accordance with the periodicity decided by the Committee or at any time the Committee may deem appropriate. In the case of an exceptional situation when the Committee is not in session, a request may be made through the Chairman, acting in consultation with the members of the Committee." Id., 9.


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port, not all of them have done so on time and some have failed to comply altogether.57 It is probably too early to say how the special reports practice will evolve. It is possible that it might usher hi a gradual change in the Committee's modus operandi under article 40. Rather than requiring all states to report every five years with regard to all articles of the Covenant, the Committee might begin to request special reports from countries that have serious human rights problems while limiting the scope and frequency of periodic reports from states with less serious problems. This approach could be justified on the ground that the Committee's limited time and resources call for a greater focus on problem states. Here, it might also be asked whether the Committee is the proper institution to deal with the type of "emergency situations" that have prompted it to request special reports. Other UN bodies, such as the Commission on Human Rights, the UN High Commissioner for Human Rights and even the Security Council, would not only have jurisdiction to deal with these situations, they would be in a better position to do so more effectively than the Committee. The Committee's limited resources, expertise and institutional legitimacy could be put to better use if employed to promote a general climate of compliance with the Covenant in all States parties instead of competing with or attempting to complement the work of other UN bodies with more "political muscle" and resources. It is by no means clear that by seeking special reports from Rwanda, Haiti, Nigeria or the former Yugoslavia, for example, the Committee had any meaningful impact on the human rights situation in those countries or effectively complemented the actions of other UN bodies with regard to these countries. The Committee might therefore consider whether it should not stay out of these situations in order to avoid disrupting and weakening its normal article 40 functions, particularly when other UN bodies already assumed jurisdiction over these situations or are likely to do so.

57

For a useful analysis, see I. Boerefijn, "Towards a Strong System of Supervision: The Human Rights Committee's Role in Reforming the Reporting Procedure under Article 40 of the Covenant on Civil and Political Rights," HRQ 17 (1995), 766 et seq., (776-782); Boerefijn, see note 18.

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5. Reporting Obligations and State Succession In exercising its functions under article 40 of the Covenant, the Committee has had to address some important questions relating to the membership status of so-called new or successor states, that is, states that acquired their independence as a result of the break up of a State party to the Covenant. These issues have arisen in the context of the break-up of the Soviet Union and of Yugoslavia, the agreed upon transfer of Hong Kong to the Peoples Republic of China, and the purported denunciation of the Covenant in November 1997 by the Democratic Peoples Republic of Korea (DPRK). The Committee has taken the position that the emergence of new states from the territory of a State party does not deprive the people previously under the protection of the Covenant of those rights, even though the new entities have not formerly ratified or acceded to the Covenant. With regard to the states that had been part of Yugoslavia, for example, the Committee determined "that all the peoples within the territory of the former Yugoslavia are entitled to the guarantees of the Covenant," having found "that the new States within the boundaries of the former Yugoslavia succeeded to the obligations of the former Yugoslavia under the Covenant in so far as their respective territories were concerned ,..."58 In the Committee's view, moreover, the former Yugoslav states and the former Soviet Republics "were bound by the obligations under the Covenant as from the date of their independence."59 The situation of Hong Kong, which reverted to the Peoples' Republic of China in July 1997, raised a somewhat different issue. Here the Committee had to determine whether the inhabitants of Hong Kong would continue to be protected by the Covenant once the transfer had occurred, and if so, whether China, which is not a party to the 58

59

(1992-1993) HRC Report, GAOR, Suppl. No. 40 (Doc. A/48/40), Vol. 1, 15 (1993). Here it should be emphasized that the principle underlying the Committee's decisions relating to the former Soviet republics and to the former Yugoslavia apply with equal force to article 41 declarations (interstate communications) and the Optional Protocol (individual communications). For the time being, however, this issue has arisen only in the context of State reports. Id., 14. This finding did not apply to the Ukraine and Belarus, which had been UN Member States prior to the break up of the Soviet Union, nor to the three Baltic States (Estonia, Latvia and Lithuania) whose incorporation into the Soviet Union was not recognized by the international community. The latter states subsequendy acceded to the Covenant.

Bttergenthal, The U.N. Human Rights Committee

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Covenant, or the Hong Kong Government, would have to file a report under article 40 with regard to that territory. The Committee answered the first question in the affirmative, relying on the precedents it established in dealing with the former Yugoslavia and Soviet Union, as well as on the Joint Declaration concluded by the United Kingdom and China.60 The Joint Declaration provides that "the provisions of the ... Covenant... as applied to Hong Kong shall remain in force."61 With regard to the second question, the Committee determined that the reporting requirement would continue to be applicable to Hong Kong after the transfer, leaving it to the parties to the Joint Declaration to decide which authority would file the report. Subsequently China filed the report. In its concluding observations on the Hong Kong report, the Committee thanked "the government of China for its willingness to participate in the reporting procedure under Article 40...." At the same time, the Committee affirmed "its earlier pronouncement on the continuity of the reporting obligations in relation to Hong Kong."62 The Committee's practice relating to the above issues indicates that the Committee considers that individuals subject to the jurisdiction of a State party to the Covenant acquire an independent or vested right — independent of the state — to the protection of the guarantees and measures of implementation set out in the Covenant. The Chairman of the Committee, speaking on behalf of the Committee and with its authorization, put the matter as follows: "The Human Rights Committee — dealing with cases of dismemberment of States parties to the International Covenant on Civil and Political Rights has taken the view that human rights treaties devolve with territory, and that States continue to be bound by the obligations under the Covenant entered by the predecessor State. 60

61

62

Statement by the Chairperson on Behalf of the Human Rights Committee Relating to the Consideration of the Part of the Fourth Periodic Report of the United Kingdom Relating to Hong Kong, Doc. CCPR/C/79/Add.57, page 6 (1995). The Committee reaffirmed this position in its Concluding Observations to the 1996 Report of the United Kingdom relating to Hong Kong, Doc. CCPRX/79/Add.69 (1996). Section 156 of Annex 1 to the Sino-U.K. Joint Declaration on the Question of Hong Kong, which entered into force on 27 May 1985, and reads as follows: "The provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall remain in force." (1999-2000) HRC Report, GAOR, Suppl. No. 40 (Doc. A/55/40), 40 (2000).

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Once the people living in a territory find themselves under the protection of the International Covenant on Civil and Political Rights, such protection cannot be denied to them by virtue of the mere dismemberment of that territory or its coming within the jurisdiction of another State or of more than one State."63 The Committee restated and expanded its position on this subject in the following terms in its General Comment No. 26: "The rights enshrined in the Covenant belong to the people living in the territory of the State party. The Human Rights Committee has consistently taken the view ... that once the people are accorded the protection of the rights under the Covenant, such protection devolves with the territory and continues to belong to them, notwithstanding a change in government of the State party, including dismemberment in more than one State or State succession or any subsequent action of the State party designed to divest them of the rights guaranteed by the Covenant."64 The reference in General Comment No. 26 to "subsequent action of the State party designed to divest them of the rights guaranteed by the Covenant," was prompted by the Committee's rejection of the Democratic People's Republic of Korea's (DPRK) purported denunciation in 1997 of the Covenant on the ground that the Covenant is a treaty which, once ratified, cannot be denounced.65 Interestingly enough, the DPRK seems to have accepted the Committee's interpretation in that it submitted its second periodic report on 20 March 2000.66 Although it remains to be seen whether the views expressed by the Committee in General Comment No. 26 will find general acceptance, the Human Rights Committee is not alone in espousing them. For example, the Meeting of Persons Chairing Human Rights Treaty Bodies took the position that "successor States were automatically bound by 63

64

65

66

Statement of the Chairperson, see note 60, 6. See also, Concluding Observations on the 1996 United Kingdom Report on Hong Kong, Doc. CCPR/C/Add.69 (1996). General Comment No. 26 (Continuity of Obligations), by the Human Rights Committee, adopted on 29 October 1997, reproduced in: "Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies," Doc. HRI/GEN/l/Rev.5 of 26 April 2001, page 163. For the full text of General Comment No. 26, see above. (1999-2000) HRC Report, GAOR, Suppl. No. 40 (Doc. A/55/40), 100, footnote 3 (2000).


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obligations under international human rights instruments from the respective date of independence and that observance of the obligations should not depend on a declaration of confirmation made by the Government of the successor State."67 Whether this view is shared by the UN Secretariat, which acts as the depositary for these treaties, or by other UN bodies is not altogether clear. In addressing this issue, the Commission on Human Rights appears not to have gone as far as the Human Rights Committee, although the language of its resolution on this subject is rather ambiguous.68 In one of the operative paragraphs of the resolution, the Commission "reiterates its call to successor States which have not yet done so to confirm to appropriate depositaries that they continue to be bound by the obligations under international human rights treaties." In another paragraph, it requests the human rights treaty bodies "to consider further the continuing applicability of the respective international human rights treaties to successor States, with the aim of assisting them in meeting their obligations." In yet another paragraph, the Commission "requests the Secretary-General to encourage States to confirm their obligations under international human rights treaties to which their predecessor States were a party." Some parts of the foregoing language seem to suggest that the successor states are bound by these treaties, whether or not they confirm their continuing adherence. But other language conveys the impression that "confirmation" is necessary for these states to continue to be bound. Moreover, in the Secretary-General's Report on the Status of the International Covenants on Human Rights,69 some former Soviet republics are listed as having "acceded" to these treaties, whereas the former Yugoslav republics as well as the Czech Republic and Slovakia are deemed to have "succeeded" to these instruments.70 Equally ambiguous is "General Recommendation XII on Successor States", adopted by the Committee on the Elimination of Racial Discrimination in 1993, which "encourages successor States that have not yet done so to confirm to the Secretary General... that they continue to be bound by the obligations under that

67

68 69 70

Report of the UN Secretary-General on Succession of States in Respect of International Human Rights Treaties, Doc. E/CN.4/1996/76, page 3 (1996). UN Human Rights Commission, Res. 1995/18 (1995). Doc. E/CN.4/1996/76 (1996). Id., 5 et seq. It is worth noting too that the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, Doc. SL/LEG/8 (1994), provides no clear answer to the question raised above and contains no special section on human rights treaties.

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Convention, if predecessor States were parties to it."71 The obvious ambiguity that exists on this entire subject calls for a uniform UN position relating thereto.

IV. Inter-State Communications The Covenant establishes an optional inter-State communication system set out in arts 41 and 42 thereof.72 To date no State party has invoked this mechanism. The only Committee practice applicable to it consists of the rules of procedure governing inter-State communications. These rules were adopted by the Committee shortly after it was constituted and have not been amended since that time.73 The inter-State mechanism applies only to States parties that have made the requisite declaration under article 41 para. 1 of the Covenant, recognizing "the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the ... Covenant." The Committee may only consider these communications if both states have made the declaration under article 41 para. 1. Article 41 does not establish a judicial or quasi-judicial dispute resolution mechanism. Rather, it creates a conciliation procedure, which assigns a very limited role to the Committee. Assuming that states X and Y have made the requisite declarations under article 41 para. 1, this mechanism would function in the following manner: If X believes that state Y is violating the Covenant, state X is free to make this allegation in a formal note addressed to state Y, which must answer it within a period of three months. If the two states do not resolve their differences within a period of six months after the receipt by Y of Xs original communication, either state has the right to bring the matter to the attention of the Committee. The Covenant does not require the initial communication from X to Y to be copied to the Committee. The Committee will therefore be unaware of the initiation of the proceedings under article 41 until one of the two states decides, after the expiration of the six-months period, to bring the 71

72

73

"Compilation of General Comments and General Recommendations Adopted by the Human Plights Treaty Bodies," Doc. HRI/GEN/l/Rev.5, page 182 of 26 April 2001. For an analysis of these provisions, Nowak, see note 9, 580 et seq.; Schwelb, see note 19,160; Robertson, see note 3,351. See Human Rights Committee, Rules of Procedure, Rules 72-77 E.


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matter to its attention. When this issue was discussed by the Committee, some members suggested the inclusion in the relevant rules of procedure of a provision enabling either state when starting the proceedings to provide the Committee with copies of the initial communication. This view did not prevail, in part because some members considered that article 41 did not confer any competence on the Committee until the matter was referred to it by one of the states on the expiration of the six-months period.74 The Committee's Rules of Procedure consequently do not address the proceedings prior to this formal submission. The Committee may deal with the case only after ascertaining that all available domestic remedies "have been invoked and exhausted ..., in conformity with the generally recognized principles of international law."75 This requirement would presumably apply only in those cases where the complaining state alleges a violation of some of the rights guaranteed in the Covenant. But since article 41 para. 1 is broader and applies to claims generally that a State party "is not fulfilling its obligations under the present Covenant", it could be invoked also with regard to disputes concerning compliance with other provisions of the Covenant, for example, the failure of a State to comply with its reporting requirement under article 40. Here it would obviously not be necessary to show the non-exhaustion of domestic remedies. Once the Committee has concluded that domestic remedies have been exhausted or need not be exhausted, it "shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for human rights and fundamental freedoms as recognized in the ... Covenant."76 The Committee has the right also to call on the states concerned to supply any information it considers relevant in addition to the written and oral submissions the parties are free to make under article 41. The proceedings are closed to the public. The Committee must prepare a report within 12 months after the case has been referred to it. Two types of reports are envisaged. If the matter has been resolved, the Committee's report is to confine itself "to a brief statement of the facts and the solution reached."77 In cases where no solution was reached, the report is to contain a brief statement of the facts, supplemented by the written and oral submissions of the parties, 74 75 76 77

(1978-1979) HRC Report, GAOR, Suppl. No. 40 (Doc. A/34/40), 9 (1979). Covenant, article 41 para. 1 lit.(c). Covenant, article 41 para. 1 lit.(e). Covenant, article 41 para. 1 lit.(h)(i).

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which are to be attached to the report. Both types of reports are to be transmitted to the State parties concerned. The Covenant makes no reference to the publication of the reports, and neither do the here relevant Rules of Procedure. This fact would not, however, prevent the Committee from describing the proceedings in its annual report to the UN General Assembly where it is required to report "on its activities."78 The Committee would be able also to follow up on the substance of the claimed violations in its examination of the periodic reports of the states concerned. The proceedings between state X and state Y need not, however, end with one of the two reports envisaged under article 41. This is so because under article 42, if the matter has not been resolved to the satisfaction of the parties, the Committee may with their consent appoint a five-member ad hoc Conciliation Commission, which will attempt to reach an amicable solution. If such a solution is arrived at, the Commission will prepare a report containing a brief statement of the facts and an indication of the nature of the settlement. If the Commission is unable to bring about an amicable solution, it will have to draw up a report "that shall embody its findings on all questions of fact relevant to the issues between the States Parties concerned, and its views on the possibilities of an amicable solution of the matter."79 The written and oral submissions of the parties are to be appended to this report, which is to be submitted to the Chairperson of the Human Rights Committee for transmission to the parties. Although nothing is said about the publication of the Commission's report, neither article 41 nor article 42 prohibits the States parties concerned or any one of them from publishing the report once the proceedings under these two provisions have been concluded. The fact that arts 41 and 42 envisage a rather weak conciliation mechanism for inter-State disputes is counterbalanced in part by article 44 of the Covenant, which indicates that the Covenant dispute machinery is not exclusive. Article 44 reads as follows: "The provisions for the implementation of the present Covenant shall apply without prejudice to the procedures prescribed in the field of human rights by or under the constituent instruments and the conventions of the United Nations and of the specialized agencies and shall not prevent the States Parties to the ... Covenant from having recourse to other procedures for settling a dispute in accor78 79

Covenant, article 45. Covenant, article 42 para. 7 lit.(c).


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dance with general or special international agreements in force between them." This language appears to permit States parties to the Covenant, among other options, to take a dispute relating to the interpretation or application of that instrument to the ICJ, either before or after the conclusion of the procedures envisaged under arts 41 and 42. It would also make it possible, for example, for those States parties to the Covenant that are Member States of the Organization of American States to seek an advisory opinion on the same subject from the Inter-American Court of Human Rights under article 64 of the American Convention on Human Rights.80

V. Individual Communications 1. The Normative Framework The Optional Protocol to the Covenant establishes a complaint mechanism that permits individuals to submit communications to the Committee against States parties to the Covenant that have ratified the Protocol. 98 states have to date become parties to it. Unlike the inter-state machinery provided for by arts 41 and 42 of the Covenant, which sets up a conciliation procedure, the Protocol's individual petition system resembles a quasi-judicial dispute resolution mechanism. Whether or not it meets all the criteria of a quasi-judicial system is probably less important than that the Committee has increasingly structured this remedy along quasi-judicial lines as far as concerns the procedures for dealing with individual communications and the form in which Committee decisions are drafted. The individual communication or petition system provided for by the Optional Protocol can be described in a few sentences.81 It permits 80

81

On the relevant jurisdiction of the Inter-American Court of Human Rights, see Advisory Opinion OC-1/82 of 24 September 1982 ("Other Treaties" Subject to the Advisory Jurisdiction of the Court); InterAmerican Court of Human Rights, Advisory Opinion OC-16/99 of 1 October 1999 ("The Right to Consular Information"). On the relationship between article 44 and the European Convention on Human Rights, see Nowak, see note 9,619. See generally M. Schmidt, "The UN Human Rights Committee: Process and Progress," Human Rights Forum (Philippines) 5 (1995), 31;

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victims of a violation of the rights guaranteed in the Covenant committed by a State party to the Optional Protocol to file a so-called "communication" with the Committee, provided they have exhausted all available domestic remedies. To be considered admissible, the communications must also not be anonymous, abusive of the "right of submission" or "incompatible with the provisions of the Covenant."82 The Committee may not consider a communication unless it has ascertained that "the same matter is not being examined under another procedure of international investigation or settlement."83 The Committee examines all communications in private sessions on the basis of the written information submitted to it by the parties.84 The proceedings end with the adoption by the Committee of so-called "Views" that is, its findings or decisions.85 Over the years, the Committee has been able to transform this skeletal structure into a rather substantial individual petition system. What is interesting about the evolution of this system is that Cold War ideological battles had much less of an inhibiting impact on this process than on the reporting mechanism. One explanation may well be the optional character of the mechanism established by the Protocol. Its optional nature reduced the risk for states not wishing to open themselves up to international scrutiny, permitting their nationals on the Committee to be much less concerned about efforts to strengthen the individual petition system. Even so, major breakthroughs in the implementation of the Protocol, such as the establishment of Special Rapporteurs on New Communications and for Follow-Up on Views, did have to await the end of the Cold War. Until relatively recently, the Committee considered the admissibility of communications first, before addressing the merits of the case. Beginning on an ad hoc basis in 1995, the Committee began to consider

82 83 84 85

McGoldrick, see note 5, 120; R. Higgins, "Admissibility under the Optional Protocol to the International Covenant on Civil and Political Rights," Canadian Human Rights Yearbook 1992, 57 et seq., (58); J. Moller, "Recent Jurisprudence of the Human Rights Committee," ibid., 79; A. De Zayas et al., "The Application of the International Covenant on Civil and Political Rights under the Optional Protocol by the Human Rights Committee," GYIL 28 (1985), 9 et seq. Optional Protocol, article 3. Optional Protocol, article 5 para. 2 lit.(a). Optional Protocol, article 5 paras 1 and 3. Optional Protocol, article 5 para. 4.


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admissibility and merits together, unless the State Party concerned objected. Two years later, the Committee formalized its decision to treat admissibility and merits in a single proceeding unless the special aspects of the case justified dealing with admissibility separately.86 In its first few years, the Committee as a whole passed on all admissibility issues. In the late 1980's this task was divided between it and pre-sessional Working Groups on Communications and, in certain cases, the Special Rapporteur on New Communications.87 But only the plenary Committee has the power to declare a communication inadmissible,88 whereas a finding of admissibility may be made by the Working Group, provided all five of its members agree with the decision.89 If there is no such agreement in the Working Group, the Committee must decide. By the same token, if a communication raises a number of admissibility issues and the Working Group considers some to be admissible and others not, it must refer the communication to the Committee on the latter issues. The Special Rapporteur on New Communications, who acts as a sort of clearing house for all new communications, may recommend to the Committee that a communication be declared inadmissible.90 But here again, the power to decide the issue is vested in the Committee. The position of the Special Rapporteur on New Communications was established in 1989 to enable the Committee to deal more expeditiously with individual communications, especially with urgent cases involving capital punishment, extradition and expulsion.91 Since the Committee meets only for a period of three weeks three times a year, all action on incoming communications, including requests for additional information, had to be delayed until the Committee or its pre-sessional Working Group could deal with the matter. Today all new communications are referred to the Special Rapporteur, who determines whether they need to be amplified for admissibility purposes and/or whether to refer them to the States parties concerned for their observations on issues of admissibility and merits. Here it should be noted that no case may be 86 87 88 89 90

91

See Rules of Procedure, Rule 91. See Rules of Procedure, Rules 87 to 92. See Rules of Procedure, Rule 92. See Rules of Procedure, Rule 87 para. 2. See Mandate of the Special Rapporteur on New Communications, (19901991) HRC Report, GAOR, Suppl. No. 40 (Doc. A/46/40), 218 (1991). (1988-1989) HRC Report, GAOR, Suppl. No. 40 (Doc. A/44/40), para. 619-620 (1989).

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declared admissible unless the State party concerned has received the text of the communication and been given an opportunity to address the questions raised.92 The Special Rapporteur has another important function. Although the Optional Protocol is silent on the question of emergency or socalled interim measures, Rule 86 of the Committee's Rules of Procedure, which dates back to the first rules it adopted, empowers the Committee to issue interim measures to "avoid irreparable damage to the victim of the alleged violation." The Committee, in turn, has authorized the Special Rapporteur to exercise this function in appropriate cases falling within the scope of his/her mandate.93 This procedure permits the Committee through the Special Rapporteur to act in emergency situations even before a communication has been ruled admissible. The Special Rapporteur may also exercise this function whether or not the request for interim measures is made at the time a new communication is submitted or at a later stage.94 Over the years, States parties have displayed a relatively high degree of compliance with the interim measures issued by the Special Rapporteur. The pre-sessional Working Groups do not only deal with communications at the admissibility stage.95 On receipt of a communication by the Committee, the parties are informed and the State party is given a period of six months within which to submit its arguments on the merits of the case.96 The individual then has an opportunity to reply within a period of time fixed by the Committee. Where the State party concerned has an objection relating to admissibility alone (usually, inadmissibility for formal or procedural reasons), it has two months within which to submit an application for rejection of the communication on those grounds. The Committee (or Working Group or Special Rapporteur on New Communications) may decide to extend the time limit for

92 93

94

95

96

Rules of Procedure, Rule 91 para. 2. See Mandate of the Special Rapporteur on New Communications, see note 90,218. Subparagraph (b) of the Special Rapporteur's Mandate, see note 90, which declares that the Special Rapporteur shall have the following mandate: "... (b)To issue rule 86 requests, whether coupled with a request under rule 91 or not." See Rules of Procedure, Rules 93 and 94, which apply to the examination of the merits of a communication. Rules of Procedure, Rule 91.


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the proceedings on the merits while admissibility is decided.97 Once the admissibility proceedings have concluded and the case has been ruled admissible, it will be studied by a pre-sessional Working Group, which will make its recommendations to the Committee in the form of a draft view. The Committee analyzes the draft and adopts its decision, usually after extensive discussion. While the chair will attempt to bring about a decision by consensus, individual members of the Committee are free to append dissenting and concurring opinions, and frequently do so.98 As a result, consensus plays a much less important role in the application of the Optional Protocol than it does in the Committee's other activities. Although the Committee's decision at this stage usually involves a finding on the merits, it retains the power to dismiss the case as inadmissible if justified as a result of additional information developed during the proceedings.99 Until April 1997, all deliberations of the Committee and its working groups relating to the admissibility and the merits of a case were confidential.100 So were most of the interlocutory decisions adopted by it before the decision on the merits or during the admissibility stage, including a decision ruling a case admissible. However, the Committee's inadmissibility decisions and its views on the merits were always published after their transmission to the parties. This continues to be the practice, which is also applied to decisions on discontinuance.101 The general rules relating to confidentiality were relaxed somewhat in April 1997. Although communications continue to be examined in closed session, and although summary records together with the Committee's own working documents, summaries and drafts remain confidential (unless the Committee decides otherwise), the author of a communication or the State party concerned now has the right to make public any submissions or information bearing on the proceeding.102 Noteworthy, 97 98

99 100

101 102

Rules of Procedure, Rule 91 para. 3. On the Committee's practice, see P. Ghandi, The Human Rights Committee and the Right of Individual Communication: Law and Practice, 1998. Rules of Procedure, Rule 93 para. 4. On the issue of confidentiality, see Rules of Procedure, Rules 96-97. Rule 96 as adopted at the 1585th Mtg. of the Committee on 10 April 1997, replaces old rules 96, 97 and 98 which reflected a relatively strict secrecy regime. Rules of Procedure, Rule 96 para. 5. Rule 96 paras 1-3. Rule 96 para. 3 provides in part: "However, the Committee, the Working Group ... or the Special Rapporteur... may, as deemed appropriate, request the author of a communication or the State party con-

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too, is the fact that the Committee's decisions ordering interim measures are made public.103 This practice permits public pressure to be put on states to comply with interim measures. The Optional Protocol is not too clear on what may and may not be published. One provision declares that "the Committee shall hold closed meetings when examining communications under the present Protocol." 104 Another provides that "the Committee shall forward its views to the State Party concerned and to the individual."105 Finally, article 6 of the Protocol stipulates that "the Committee shall include in its annual report under article 45 of the Covenant a summary of its activities under the present Protocol." Reading these provisions together, it appears that the confidentiality rules as amended by the Committee in 1997 are consistent with the requirements imposed by the Protocol. By the same token, although there was some doubt when the Committee was first constituted whether its Views could be published (the Protocol only calls for their transmittal to the parties), these doubts were resolved in favor of publication when the Committee, relying on the language of article 6, included its first Views in its annual report to the General Assembly.106 The Committee has followed this practice ever since and now also reports decisions on inadmissibility and discontinuance.107 Since the Committee's final Views include a summary of its admissibility decision, all of its actions in the matter will eventually be

cerned to keep confidential the whole or part of any such submissions or information." And Rule 96 para. 4 provides: "When a decision has been taken on the confidentiality pursuant to paragraph 3 above, the Committee, the Working Group ... or the Special Rapporteur ... may decide that all or part of the submissions and other information, such as the identity of the author, may remain confidential after the Committee's decision on inadmissibility, merits or discontinuance has been adopted." 103 Rules of Procedure, Rule 96 para. 5. 104 Optional Protocol, article 5 para. 3. 105 Optional Protocol, article 5 para. 4. 106 (1979) HRC Report, GAOR, Suppl. No. 40 (Doc. A/34/40), 124 (1979). 107 All of these decisions are now published in volume two of the Committee's annual report to the General Assembly as well as in the Yearbook of the Human Rights Committee. To date, the Committee has also published two volumes of decisions under the title of "Selected Decisions of the Human Rights Committee under the Optional Protocol," Vol. I (1985), Vol. II (1990), the former covering sessions two through sixteen, the latter seventeen through thirty-two. Volume III in this series is in the process of being edited.


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published, although they may remain confidential in the special circumstances envisaged in Rules 96 paras 3 and 4.108

2. Follow-Up The Optional Protocol is silent on the issue of the Committee's role subsequent to the adoption of its Views in a case.109 Article 6 of the Protocol does, however, require the Committee to provide the UN General Assembly with a summary of its activities under the Protocol. This provision enables the Committee to call the Assembly's attention to the failure of states to comply with the Committee's Views. In the early 1990's the Committee decided to include this information in its annual report to the Assembly and to take two additional steps designed to prod states to give effect to its Views under the Protocol: first, it established the position of a Special Rapporteur for the Follow-up of Views and, second, it imposed the requirement that in their reports under article 40 of the Covenant, States parties indicate what measures they have taken to give effect to the Committee's Views in cases requiring such action.110 Noteworthy, too, is the fact that in drafting Rule 97 of its Rules of Procedure, the Committee decided to exclude from the confidentiality requirement information furnished by the parties in the context of the follow-up process. The same is true of the Commit108 109

110

See note 102. For the Committee's practice, see M. Schmidt, "Follow-up Mechanisms Before UN Human Rights Treaty Bodies and the UN Mechanism and Beyond," in: Bayefsky, see note 51,233. See "Measures adopted at the thirty-ninth session of the Human Rights Committee to monitor compliance with its views under article 5, paragraph 4 of the Optional Protocol to the International Covenant on Civil and Political Rights," (1989-1990) HRC Report, GAOR, Suppl. No. 40, (Doc. A/45/40), Vol. 11,205 (1990). See also "Follow-up on Views adopted under the Optional Protocol to the International Covenant on Civil and Political Rights," Documents Submitted by the Human Rights Committee to the World Conference on Human Rights, reprinted in: (1992-1993) HRC Report, GAOR, SuppLNo. 40 ( Doc. A/48/40), Annex X, 222 (1993). The mandate of the Special Rapporteur for Follow-up can be found in the Committee's Rules of Procedure, Rule 95. See M. Schmidt, "The UN Human Rights Committee: Process and Progress," Human Rights Forum (Philippines) 5 (1995), 31 et seq., (44); A. de Zayas, "The Follow-Up Procedure of the UN Human Rights Committee," Review of the Int'l Comm. Jurists, 47 (1991), 28 et seq.

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tee's decisions "relating to follow-up activities." In its submissions to the Vienna World Conference on Human Rights, the Committee explained the reasons for these decisions in the following terms: "Publicity for follow-up activities would not only be in the interest of the victims of violations of provisions of the Covenant, but could also serve to enhance the authority of the Views and provide an incentive for States parties to implement them. Those States unwilling to cooperate under the follow-up procedure would be listed in an appendix to the annual report; in appropriate instances, and notably when States Parties challenge the Committee's findings, the Committee would adopt an official response to the State party concerned."111 These considerations prompted the Committee in 1994 to initiate the practice of including in its annual report a separate and highly visible chapter on follow-up activities under the Optional Protocol and to adopt other measures designed to give publicity to the failure of states to cooperate with the Committee's follow-up activities.112 This practice has been further developed and strengthened in recent years.113 Article 95 para. 2 of the Committee's rules of procedure authorize the Special Rapporteur for Follow-Up to "make such contacts and to take such action as appropriate for the due performance of the followup mandate." In reliance on this mandate, the Special Rapporteur conducted the Committee's first in loco follow-up mission by visiting Jamaica at its Government's invitation in June 1995.114 This action was taken because a large number of Views relating to Jamaica had not been acted upon by the Government. During his visit to Jamaica, the Special Rapporteur met with members of the Government, judges, and officials 111

(1992-1993) HRC Report, GAOR, Suppl. No. 40 ( Doc. A/48/40), Annex X, 224 (1993). 112 (1994.1995) HRC Report, GAOR, Suppl. No. 40 ( Doc. A/50/40), 99 (1995). 113 In 1996, a "blacklist" of uncooperative states was for the first time included in the follow-up chapter of the Committee's annual report. However inadequate staff resources precluded systematic follow-up consultations in the Committees 62nd and 63rd sessions, with the result that no "blacklist" could be included. (1998) HRC Report, GAOR, Suppl. No. 40 (Doc. A/53/40), 72 and 79 (1998). For the current list, see (1999-2000) HRC Report GAOR, Suppl. No. 40 (Doc. A/55/40), 90 (2000). 114 (1994-1995) HRC Report GAOR, Suppl. No. 40 (Doc. A/50/40), 100 (1995).


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of non-governmental organizations and, among other things, inspected the prison where death row inmates were being held. (Many of the Committee's Views relating to Jamaica concern the treatment of prisoners on death row). After hearing his report, the Committee expressed guarded satisfaction with the improved compliance by Jamaica with the Committee's Views, but urged the Special Rapporteur to maintain contact with the Government in order to bring about "greater compliance."115 This first and to date only in loco follow-up mission sets an important precedent. As a result, the Committee has repeatedly asked the Office of the United Nations High Commissioner for Human Rights (OHCHR) to budget for at least one such mission every year.116 These requests have thus far not been acted upon. Less dramatic followup activities consist of meetings in Geneva and New York by the Special Rapporteur with the heads of diplomatic missions to the United Nations of states whose governments have failed to comply with Committee Views. These visits are designed to encourage the diplomatic missions to urge their governments to give effect to the Views and to call their attention to the adverse publicity non-compliance may produce. In some cases these meetings have had the desired result. In reporting on the effectiveness of the follow-up process, the Committee recently observed: "Attempts to categorize follow-up replies are necessarily imprecise. Roughly 30 per cent of the replies received could be considered satisfactory in that they display the State party's willingness to implement the Committee's Views or to offer the applicant an appropriate remedy. Other replies cannot be considered satisfactory in that they either do not address the Committee's recommendations at all or merely relate to one aspect of them. Certain replies simply indicate that the victim has failed to file a claim for compensation within statutory deadlines and that, therefore, no compensation can be paid to the victim. The remainder of the replies either explicitly challenge the Committee's findings, on either factual or legal grounds, constitute much belated submissions on the merits of the case, promise an investigation of the matter considered by the Committee or indicate that the

115 116

Id., 101. Id.

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State party will not, for one reason or another, give effect to the Committee's recommendations.1'117 These observations and the Committee's follow-up activities indicate, first, that state compliance with its Views and Follow-up process still leave much to be desired and, second, that the Committee is becoming increasingly more activist in its efforts to compel compliance.118 Among the obstacles encountered by the Committee is the fact that the Optional Protocol does not make 'Views binding on the States Panics to it. Some states consequently do not feel obliged to give effect to them. Other states claim that under their domestic law they cannot pay compensation or take other mandated measures in compliance with nonbinding recommendations of international bodies. These considerations prompted the Committee in its submissions to the 1993 Vienna World Conference on Human Rights to endorse a proposal to add a new paragraph to article 5 of the Protocol, which would read as follows: "States Parties undertake to comply with the Committee's Views under the Optional Protocol."119 No action has been taken on this proposal. It has also not been seriously promoted by the Committee, probably because its members do not believe that it is likely to be adopted any time soon. Instead, the Committee has for a number of years attempted to strengthen the normative character of its Views by relying on article 2 of the Covenant. In those cases where the Committee's decision in a case requires a State party to grant the individual a remedy, its views now routinely contain the following language: "In accordance with article 2, paragraph 3(a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy. In the Committee's opinion, this entails guaranteeing [there follows the remedy prescribed in the case].... Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to Article 2 of the Covenant, the State party has 117 (1999.2000) HRC Report, GAOR, Suppl. No. 40 (Doc. A/55/40), 90 (2000). 118 On this subject generally, see C. Tomuschat, "Making Individual Communications an Effective Tool for the Protection of Human Rights," in: U. Beyerlin et al., Recht ziviscken Umbruch und Bewahrung, Festschrift fur Rudolf Bernhardt, 1995,615 et seq. 119 (1992-1993) HRC Report, GAOR, Suppl. No. 40 (Doc. A/48/40), Vol. II, Annex X, 225 (1993).


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undertaken to ensure to all individuals within their territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy in case a violation has been established, the Committee wishes to receive from the State party, within ninety days, information about the measures taken to give effect to the Committee's Views." This language reflects the Committee's conviction that its mandate under the Optional Protocol, read together with article 2 of the Covenant, endows its Views with a normative and institutional legitimacy that carries with it the justifiable expectation of compliance. In short, Views may not be legally binding as such, but neither are they devoid of legal significance.

3. Applying the Optional Protocol This is not the place to examine the Committee's vast jurisprudence interpreting the rights guaranteed in the Covenant in cases coming to it under the Optional Protocol. It is useful, however, to focus briefly on some important aspects of the Committee's case law that interprets and applies the Optional Protocol itself. Article 1 of the Protocol empowers the Committee to consider communications from individuals subject to the "jurisdiction" of a State party to the Protocol who claim to be "victims" of a violation of the Covenant by that state. The meaning of jurisdiction in this provision raises two interrelated issues. The first has to do with the fact that in the past some states tried to argue that individuals had standing to refer cases to the Committee only if they were subject to the jurisdiction of these states at the time of the filing of the case. The Committee rejected this rather absurd interpretation by holding that the jurisdictional requirement was met as long as the individual applicant could demonstrate that he/she was subject to the state's jurisdiction when the alleged violation of the Covenant took place.120 The second issue concerns the relationship between article 1 of the Protocol and article 2 para. 1 of the Covenant. In the latter provision each State party "undertakes to re120

A. Viana Acosta v. Uruguay, Comm. No. 110/1981,2 Selected Decisions of the Human Rights Committee under the Optional Protocol (hereinafter cited as Selected Decisions), 148, at para. 6 (1990). Cf. E.M.E.E v. France, Comm. No. 409/1990, (1990-1991) HRC Report, GAOR, Suppl. No. 40 (Doc. A/46/40), 318 (1991).

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spect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant...." In a case dealing with the interrelationship of these two provisions, the Committee made clear that an individual communication was not necessarily inadmissible because the alleged violation of the Covenant took place outside the territory of the State party concerned. The case involved the refusal of the State party to grant a valid passport to one of its nationals who was living abroad. In rejecting the State party's argument that the Committee was not competent to deal with the communication because the author did not fulfil the requirements of article 1 of the Optional Protocol, the Committee determined that the issuance of a passport to a national is clearly a matter within the state's jurisdiction and that for that purpose he was subject to the state's jurisdiction even though he was outside the country at the time. Relating that conclusion to the provisions of article 2 para. 1 of the Covenant, the Committee continued as follows: "Moreover, a passport is a means of enabling him - to leave any country, including his own-, as required by article 12 (2) of the Covenant. Consequently ... it followed from the very nature of that right that, in the case of a citizen resident abroad, article 12 (2) imposes obligations both on the State of residence and on the State of nationality and that, therefore, article 2 (2) of the Covenant could not be interpreted as limiting the obligations of Uruguay under article 12 (2) to citizens within its own territory."121 The Committee made this point even clearer in a case in which an individual alleged that he was detained and mistreated by Uruguayan security forces in Argentina before being transported to Uruguay. The Committee held that it was "not barred either by virtue of article 1 of the Optional Protocol... or by virtue of article 2 (1) of the Covenant... from considering these allegations...."122 In its view, the reference in article 1 of the Optional Protocol to "individuals subject to its jurisdiction" referred to the "relationship between the individual and the State in relation to the violation of any of the rights set forth in the Covenant..." rather than to the place where the violation occurred.123 121

122

123

Lichtensztejn v. Uruguay, Comm. No. 77/1980, 2 Selected Decisions 102, 104. Lopez Burgos v. Uruguay, Comm. No. 52/1979, 1 Selected Decisions 88, para. 2.1 (1985). Id. at para. 12.2. With reference to article 2 para. 1 of the Covenant, the Committee emphasized that provisions should not be read to "imply that


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The requirement of article 1 of the Optional Protocol that the claimant must be a "victim" of a violation of the Covenant raises a number of distinct issues. Thus, with regard to the question whether the victim alone must file a communication or whether others may do so for the victim, the Committee has recognized that although the communication should be submitted by the victim or his/her representative, "a communication submitted on behalf of an alleged victim may, however, be accepted when it appears that he is unable to submit the communication himself."124 The Committee has also held that associations have no standing to file cases on behalf of their members or individuals on behalf of corporations.125 On another occasion, the Committee ruled that to qualify as a victim under article 1 of the Protocol, a person must make a showing that he/she has already been adversely affected by the alleged violation or that "such effect is imminent."126 Recognizing that the "imminent effects" test is too restrictive, the Committee modified this test in a later case by requiring only that the danger of such an effect be real.127

124

125

126

127

the State party concerned cannot be held accountable for violations of rights which its agents commit upon the territory of another State, whether with the acquiescence of the Government of that State or in opposition to it." Id. at para. 12.3. See also the Individual Opinion in that case by C. Tomuschat, who explained the legislative history of article 2 para. 1. On this subject generally, see T. Meron, "Extraterritoriality of Human Rights Treaties," AJ1L 89 (1995), 78 et seq.; T. Buergenthal, "To Respect and to Ensure: State Obligations and Permissible Derogations," in: Henkin, see note 3, 72 et seq., (73). The Committee very strongly reaffirmed the views it expressed in the Lopez Burgos case in its Concluding Observations on the Initial Report of the United States of America, (1994-1995) HRC Report, GAOR, Suppl. No. 40 (Doc. A/50/40), Vol. I, 52, para. 284 (1995). Rules of Procedure, Rule 90 lit.(b). But see A.B. v. Italy, Comm. No. 565/1993, (1993-1994) HRC Report, GAOR, Suppl. No. 40 (Doc. A/49/40), Vol. II, 360 (1994), where the author failed to provide proof that he was authorized to act on behalf of the alleged victim, resulting in the inadmissibility of the communication. SM. v. Barbados, Comm. 502/1992, (1993-1994) HRC Report, GAOR, Suppl. No. 40, (Doc. A/49/40), Vol. II, 318 (1994); A Group of Associations v. Italy, Comm. No. 163/1984, (1983-1984) HRC Report, GAOR, Suppl. No. 40 (Doc. A/39/40), 197 (1994). E. W. v. The Netherlands, Comm. No. 429/1990, (1992-1993) HRC Report, GAOR, Suppl, No. 40 (Doc. A/48/40), Vol. II, 198, para. 6.4 (1993). Hopu and Bessert v. France, Comm. No. 549/1993, (Doc. CCPR/C/60/D/549/1993) Rev.l of 29 December 1997.

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In reviewing the manner in which the Committee deals with individual communications, it is useful to look at arts 2 and 3 of the Optional Protocol together. Article 3 requires the Committee to reject as inadmissible any communication which is anonymous, an "abuse of the right of submission," or incompatible with the provisions of the Covenant. Article 2 declares that "individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration." Although these admissibility grounds track those found in regional human rights instruments, such as the European Convention on Human Rights and the American Convention on Human Rights, the latter treaties contain an additional ground that permits applications to be declared inadmissible because they are "manifestly ill-founded" or "manifestly groundless."128 This requirement has been interpreted to mean that a communication, to be admissible, must contain allegations that are sufficient to state a, prima facie case, viz., that the communication must contain allegations which, if proved, would amount to a violation. Over the years, the Committee has interpreted article 2 of the Optional Protocol to permit it to dismiss a communication as inadmissible when it fails to state a prima facie case.129 In these cases, the Committee usually declares that the author of the communication, having failed to substantiate the allegations of a violation of the Covenant, "has no claim under article 2 of the Optional Protocol."130 What we have here, unlike in the other grounds of inadmissibility, is a determination on the merits that the claim made by the author of the communication, regardless of how well substantiated from an evidentiary point of view, does not amount to a violation of the Covenant.131 But if the communication presents only sketchy allegations that suggest, but do not adequately document, acts that amount to a violation, the Committee or the Special Rapporteur on New Communications will usually ask for additional information without dismissing the case out of hand. Of course, if that infor-

128

European Convention on Human Rights, article 35 para. 3; American Convention on Human Rights, article 47. 129 (1989-1990) HRC Report, GAOR, Suppl. No. 40 (Doc. A/45/40), Vol. I, 135 (1990). 130 (1994-1995) HRC Report, GAOR, Suppl. No. 40 (Doc. A/50/40), Vol. I, 85 (1995). 131 See the summary of cases described in (1991-1992) HRC Report, GAOR, Suppl. No. 40, (Doc. 149-50 (1992).


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mation is subsequently not supplied, the case will be dismissed under article 2. It is not always easy to distinguish the dismissal of a case under article 2 or on the ground of incompatibility spelled out in article 3 of the Optional Protocol. Traditionally, the latter ground is used in circumstances where the complaint is against a state that is not a party to the Covenant and the Protocol or to one or the other of these instruments at the time the violation of the Covenant is alleged to have taken place.132 It is also applied where the communication invokes rights not guaranteed in the Covenant. The latter ground can often not be distinguished from a determination that the author failed to make out a prima facie case under article 2. This is so because the Committee sometimes applies article 3 to cover cases in which it had to interpret the meaning of a specific provision of the Covenant in order to find that the claimed right was not guaranteed by the Covenant.133 Article 3 also deals with anonymous communications and those that are abusive. The former concept is self-explanatory, while the latter requires some explanation as far as its application by the Committee is concerned. In a 1991 decision, the Committee based its inadmissibility ruling on this latter ground with the following argument: "The Committee has noted that the author generally complains that the Canadian judiciary is not subject to any supervision and, more particularly, that he charges bias and misconduct on the part of the judge of the provincial court of Montreal and the Committee of Enquiry .... These allegations are of a sweeping nature and have not been substantiated in such a way as to show how the author qualifies as a victim within the meaning of the Optional Protocol. This situation justifies doubts about the seriousness of the author's submission and leads the Committee to conclude that it constitutes an 132

133

See e.g., S.E. v. Argentina, Comm. No. 275/1988, (1989-1990) HRC Report, GAOR, Suppl. 40 (Doc. A/45/40), Vol. II, 159 (1990). Here it should be noted that the Committee has consistently taken the position that it has jurisdiction under the Optional Protocol only with regard to violations of the Covenant taking place after the state in question has ratified the Protocol. While one may question the legal soundness of this conclusion, it is probably no longer open to challenge. I.S. v. Hungary, Comm. No. 389/1989, (1989-1990) HRC Report, GAOR, Suppl. No. 40, (Doc. A/46/40), 316 (1990). See also the cases described in (1991-1992) HRC Report, GAOR, Suppl. No. 40 (Doc. A/47/40), 150-51 (1992), which seem to involve determinations of no prima facie violations.

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abuse of the right of submission, pursuant to article 3 of the Optional Protocol."134 This communication could have been dismissed under article 2 for lack of substantiation rather than article 3 — Canada had invoked both of these grounds — but the Committee preferred to base itself on abuse of the right of submission. It is open to question whether that ground should be used for unsubstantiated communications that are not verbally abusive or intentionally misleading. Article 5 para. 2 declares that the Committee shall not consider individual communications unless it has determined that "(a) the same matter is not being examined under another procedure of international investigation or settlement [and]; (b) the individual has exhausted all available domestic remedies." Article 5 para. 2 also indicates that the requirements spelled out in subparas (a) and (b) may be disregarded "where the application of the remedies is unreasonably prolonged." Article 5 para. 2 thus applies not only to the domestic remedies, but also to the international procedures referred to in article 5 para. 2 lit.(a). Where an international body unreasonably delayed acting on an applicant's case, the Committee held that it was free to deal with it.135 With regard to unreasonably prolonged domestic remedies, the Committee has held that a delay of over three and a half years between arrest and trial and acquittal justified the conclusion that the pursuit of domestic remedies had been 'unreasonably prolonged* within the meaning of article 5(2)(b).136 In dealing with subpara. (a) of article 5 para. 2, the Committee made clear in one of its earlier decisions that "another procedure of international investigation or settlement" can refer only to those international mechanisms that address charges of violations of individual 134

135

136

J.J.C. v. Canada, Comm. No.367/1989, (1991-1992) HRC Report, GAOR, Suppl. No. 40 (Doc. A/47/40), 372, para. 5.2 (1992). See also Z.P. v. Canada, Comm. No. 341/1988, (1990-1991) HRC Report, GAOR, Suppl., No. 40 (Doc. A/46/40), 302, para. 5.5 (1991). See e.g., Polay Campos v. Peru, Comm. No. 577/1994. CCPR/C/61/D/577/1994 of 9 January 1998. The Committee found the communication to be admissible in 1996, although it had been filed in 1992 with the Inter-American Commission on Human Rights. The Committee's conclusion was facilitated by the Inter-American Commission's statement that it "had no plans to prepare a report on the case within the next 12 months." Isidora Barroso v. Panama, Comm. No. 473/1991, reprinted in Doc. CCPR/C3 7/WP. 1,46 (1996).


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rights.137 Hence, proceedings under ECOSOC Resolution 1503, which is not an individual complaint procedure because it applies only to situations that reveal a consistent pattern of gross violations of human rights, are not covered by article 5 para. 2 lit.(a) of the Optional Protocol.138 By the same token, if a case is pending before the bodies established under the European Convention or the American Convention, for example, which deal with and have the power to act on claims by individuals, article 5 para. 2 lit.(a) would apply provided the subjectmatter of the claim is the same.139 Article 5 para. 2 lit. (a) applies only to cases "being examined" under other international procedures and not to those that were previously examined or decided. That omission has prompted various States parties to the European Convention on Human Rights to attach a reservations to their ratifications of the Optional Protocol that bar the consideration by the Committee also of communications that "have already been examined" under such international procedures. Although these reservations resolve some issues, they raise other questions, for example, whether they apply to all determinations made by another body, including procedural rulings, or only to decisions on the merits. That is, will the Committee have to reject a communication that was ruled inadmissible under another international procedure? This question was first considered by the Committee in 1982, when it held a communication inadmissible on the basis of the European reservation after the European Commission of Human Rights rejected the same case as manifestly ill-founded.140 One Committee member argued in a separate opinion that the reservation should not be deemed to apply to cases that were ruled inadmissible rather than decided on the merits.141 This ar137

138

139

140

141

A. et al v. State S, Comm. No. 1/1976, 1 Selected Decisions 17 (1985). It should be noted, in this connection, that the "procedures for international investigation or settlement" to which this provision refers embrace not only international human rights procedures; its language indicates that it would apply also to international judicial or arbitral proceedings instituted, for example, on the individual's behalf by the state of his/her nationality, provided this was done with the individual's consent. Id. On this subject, see Duilio Fanali v. Italy, Comm. 75/1980, 2 Selected Decisions 99, para. 7.2 (1990). For earlier cases, see (1983-1984) HRC Report, GAOR, Suppl. No. 40 (Doc. A/39/40), 115-16 (1984). AM v. Denmark, Comm. No. 121/1982, (1981-1982) HRC Report, GAOR, Suppl. No. 40 (Doc. A/37/40), 212 (1982). Id., 214.

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gument overlooks the fact that an inadmissibility decision on the manifestly ill-founded ground is in fact a decision on the merits, which would explain why the Committee reached a similar conclusion in a later case.142 What is less clear is whether an inadmissibility decision on grounds other than manifestly ill-founded would also be governed by the European reservation. Here the Committee would presumably have to determine whether these grounds correspond to those that could also be invoked under the Covenant. Thus, for example, under article 35 of the European Convention a case must be lodged within a period of six months after the exhaustion of domestic remedies. The Covenant contains no such time limit. Hence, if the European Court were to hold a case inadmissible under the six-months rule and the applicant then referred it to the Committee, the European Court's decision should not prevent the Committee from hearing the case notwithstanding the reservation. It should also be noted that an inadmissibility decision grounded on the finding that the claimed-for right is not guaranteed under the European Convention, for example, should not prevent its consideration by the Committee if that right is in fact guaranteed in the Covenant. The Optional Protocol establishes the requirement for the exhaustion of domestic remedies in article 2 and then again in article 5 para. 2 lit.(b). These provisions are cumulative in the sense that if one were omitted it would not affect the basic obligation. It is true, of course, that under article 5 domestic remedies need not be exhausted if they are unduly prolonged, but this is a basic international law rule that the Committee would apply even if it were not spelled out in the Optional Protocol. In interpreting the exhaustion of domestic remedies requirement, the Committee has consistently held that a state which claims that domestic remedies have not been exhausted, has the obligation to demonstrate the availability of these remedies and to submit evidence that "there would be a reasonable prospect that such remedies would be effective."143 The Committee has also ruled that a state cannot claim that a domestic remedy is effective when the state fails to provide the

142

Thierry Trebutien v. France, Comm. No. 421/1990, (1993-1994) HRC Report, GAOR, Suppl. No. 40 (Doc. A/49/40), Vol. II, 250 (1994). 143 W. Torres Ramirez v. Uruguay, Comm. No. 4/1977, 1 Selected Decisions 4, para. (b).


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legal aid necessary to enable an indigent defendant to properly invoke the remedy.144 In Kennedy v. Trinidad and Tobago145 the Committee had to deal with the effect to be given to a reservation attached by Trinidad and Tobago to its re-ratification of the Optional Protocol. The issue presented itself because Trinidad, having previously ratified the Protocol without a reservation, withdrew from the Protocol by denouncing its initial ratification, only to rejoin shortly thereafter with a new instrument containing the reservation. In Trinidad's view, its reservation divested the Committee of jurisdiction to hear the instant case. It stipulated that the Committee: "shall not be competent to receive and consider communications relating to any prisoner who is under sentence of death in respect of any matter relating to his prosecution, his detention, his trial, his conviction, sentence or the carrying out of the death sentence on him and any matter connected therewith."146 The Committee held that the reservation was incompatible with the object and purpose of the Protocol, because it "singles out a certain group of individuals for lesser procedural protection than that which is enjoyed by the rest of the population."147 In the Committee's view, the consequence of the incompatibility of the reservation with the object and purpose of the Protocol was that "the Committee is not precluded from considering the present communication under the Optional Protocol."148 The soundness of this conclusion was questioned in a compelling joint dissenting opinion by four Committee members.149 The decision of the Committee prompted Trinidad and Tobago to denounce the Optional Protocol effective 27 June 2000. Some time earlier, Jamaica had denounced the Protocol as well.150 Unlike the Covenant, which

144

145

146 147

148

149

150

A. Peart & G. Peart v. Jamaica, Comm. Nos. 464 & 482/ 1991, Doc. CCM/C37/WPA, 36 (1996). Comm. No. 845, (1999-2000) HRC Report, GAOR, Suppl. No. 40 (Doc. A/55/40) Part II, 258 (2000). Id., 263. Id., 266. Id. Four Committee members joined in a separate dissenting opinion, rejecting the Committee's assertion of jurisdiction. Id., 268. For the reasons that motivated some of the Commonwealth Caribbean countries to take this action, see N. Schiffrin, "Jamaica Withdraws the

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contains no provision concerning denunciation,151 article 12 of the Protocol permits it.

VI. General Comments The Committee's so-called "General Comments", are frequently treated as part of the reporting procedure established by article 40 of the Covenant. There is considerable logic to this approach because the general comment as a concept has its origin in the reporting procedure. Thus, the only mention of the phrase "general comments" is found in article 40 para. 4 of the Covenant, which reads as follows: "The Committee shall study the reports submitted by the States Parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties. The Committee may also transmit to the Economic and Social Council these comments along with the copies of the reports it has received from the States Parties to the present Covenant." (Emphasis added) It is also true that initially at least the Committee's practice in developing general comments was directly related to the reporting procedure and the debates that raged in the Committee about its authority to comment on the failure of individual states to live up to their obligations under the Covenant.152 But all that is ancient history because over time the general comment has become a distinct juridical instrument, enabling the Committee to announce its interpretations of different provisions of the Covenant in a form that bears some resemblance to the advisory opinion practice of international tribunals. These general comments or "advisory opinions" are relied upon by the Committee in evaluating the compliance of states with their obligations under the Covenant, be it in examining State reports or "adjudicating" individual communications under the Optional Protocol. They would play the same function in the Committee's examination of any inter-State communications that might be referred to it. In addition, States parties and individuals increasingly rely on general comments to support their legal

151

152

Right of Individual Petition under the International Covenant on Civil and Political Rights," AJIL 92 (1998), 563 et seq. On this subject, see discussion regarding General Comment No. 26, see note 64,27-29. See generally Opsahl, see note 5,407-12; McGoldrick, see note 5,92-96.


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arguments before the Committee. General comments consequently have gradually become important instruments in the lawmaking process of the Committee, independent of the reporting system. That is why it is treated separately in these pages. General comments have their origin in the Committee's failure, in the early years of its existence, to examine State reports in order to determine whether a given state was in violation of its Covenant obligations. When it became clear that some Committee members were unwilling to interpret article 40 para. 4 so as to permit the Committee to address comments to individual states at the conclusion of the examination of their reports, the Committee in 1980 agreed on a statement setting out guidelines for the promulgation of general comments.153 Although this statement was intentionally vague in its formulation, it was designed to make clear that the reference to general comments in article 40 para. 4 would be interpreted as envisaging guiding principles relating to the reporting process and the implementation of the Covenant, and that they would be addressed to the States parties in general rather than to any one of them individually. This conception of the role or function of the general comment has not changed since 1980, despite the fact that as we have seen, the Committee now adopts so-called "Concluding Observations" addressed to states individually after the examination of their initial or periodic reports. But, what has changed significantly over the years is the character and content of general comments.154 The first few general comments were quite short — never longer than a page — and they tended to be rather laconic and hesitant in their interpretation of the Covenant. Controversial matters and the finer points of law were as a rule not addressed or papered over with generalities on which consensus could be reached. Since it was often impossible during the Cold War to reach a consensus on issues touching on matters of ideological sensitivity, those parts of draft general comments that dealt with these subjects were simply omitted, which explains why the early general comments were rather bland and uninspiring. The quality of general comments began to improve significantly in the late 1980's, in large measure because the end of the Cold War made it easier

153 (1980-1981) HRC Report, GAOR, Suppl. No. 40 (Doc. A/36/40), 101-102 (1981). For a summary of the discussion relating to the adoption of these guidelines, see id., 81-84. 154 For a compilation of the Committee's general comments, see Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, see note 64, at 110.

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for the Committee to reach the desired consensus on the interpretation of the Covenant provisions. General comments are now, as a rule, longer and more analytical, and frequently address difficult issues of interpretation. But since consensus is still an inherent part of the drafting process of these instruments, they remain compromise instruments that tend to gloss over issues in need of clearer interpretative guidance. One of the problems here is that the Committee has not as yet developed a procedure enabling individual members to attach concurring or dissenting views to general comments. The absence of such a mechanism results in a stricter application of the consensus rule, since the majority is reluctant to impose its interpretation on a minority that has no outlet for the expression of opposing views. The Committee usually discusses the advisability of drafting a general comment on a specific article of the Covenant after receiving a recommendation to that effect from one of its working groups. When the decision has been made to proceed with the drafting process, a small working group or an individual member of the Committee is designated to prepare an outline, usually followed by a preliminary draft. These documents are considered by the Committee and guide the working group or Rapporteur in the preparation of a revised draft. The revised draft is discussed paragraph-by-paragraph in the Committee. The Committee deliberations relating to general comments take place in public sessions. While NGOs do not have a formal input into this drafting process, they are free to express their views on the subject to the working group or Rapporteurs; in recent years they have done so with increasing frequency. At present no formal mechanism exists for States parties to have an input into the drafting process,155 although they have the right under article 40 para. 5 to "submit to the Committee observations on any comments that may be made in accordance with paragraph 4 of this article." In the past, states have only rarely availed themselves of this op-

155

If States parties wished to have an input into the drafting process of general comments, they could do so in a number of ways. Since the draft general comments are public documents, states have access to them and could express their views on the subject in an official communication to the Committee chair. They also have access to the Committee's annual report and summary records, which track the Committee's discussion of the contents of the general comment. Since the drafting process usually takes at least two years, there is time for states to react to proposed interpretations or to advance their own.


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portunity.156 In a dramatic departure from this historic passivity by States parties, the United States, the United Kingdom and France exercised their right under article 40 para. 5 of the Covenant and objected to various parts of the Committee's General Comment No. 24 on Reservations, adopted in 1994.157 In General Comment No. 24 (1994),158 the Committee formulated a set of principles governing reservations to the Covenant and Optional Protocol that would guide it in discharging its functions under these treaties. The aforementioned states criticized various parts of the Comment.159 The Committee did not respond to these criticisms. No formal procedure or precedent exists for such an exchange of views. However, the Committee authorized its Chairman to respond in a very general way to the United States observations. He was able to do so because a text of the observation was presented to him by the United States representative during the public hearing on the United States report.160 The absence of a formal procedure enabling the Committee to respond to objections by governments to views expressed in general comments does not mean that they cannot be taken 156

See McGoldrick, see note 5, 94. The United States and United Kingdom observations are reprinted in (1994-1995) HRC Report, GAOR, Suppl. No. 40 (Doc. A/50/40), Vol. I, 131 and 135, respectively (1995). For the observations of the French Government, see (1995-1996) HRC Report, GAOR, Suppl. No. 40 (Doc. A/51/40), (1996) (not as yet published). 158 General Comment No. 24 is reproduced in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, see note 64,150. 159 The ILC also took up the matter and adopted a statement that appeared to reject some of the propositions enunciated by the Committee. See International Law Commission, "Preliminary Conclusions of the International Law Commission on Reservations to Normative Multilateral Treaties Including Human Rights Treaties," Report of the International Law Commission on the Work of its Forty-Ninth Session, GAOR, Suppl. No. 10 (Doc. A/52/10), 126 (1997). For a discussion of the controversy engendered by General Comment No. 24, see B. Simma, "Reservations to Human Rights Treaties - Some Recent Developments," in: G. Hafner et al. (eds), Liber Amicorum Professor I. Seidl-Hohenveldern, 1998,659 et seq.; see also R. Higgins, "Introduction," in: J. Gardner (ed.), Human Rights as General Norms and a State's Right to Opt Out: Reservations and Objections to Human Rights Conventions XV, 1997, for a critical analysis of the British, French and US objections to the General Comment. 160 For the chairman's Statement, see Doc. CCPR/C/SR/ 1406 of 31 March 1995. 157

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into account by the Committee. Opportunities for such reconsideration present themselves in the Committee's Concluding Observations on State reports, in its decisions under the Optional Protocol as well as formal modifications of specific provisions of general comments and in sub silencio departures therefrom.161

VII. Conclusions The UN Human Rights Committee confronts four major challenges as it attempts to discharge and strengthen its mandate under the Covenant and the Optional Protocol. There is first the problem of getting the States parties to comply with their obligation to submit initial and periodic reports in a timely fashion. Next there is the Committee's growing inability to deal efficiently and effectively with State reports under the Covenant and with individual communications under the Optional Protocol. Its third challenge arises because the Committee is for all practical purposes the principal "quasi-judicial" human rights body within the UN human rights system. This fact requires it to rethink the role it should perform in light of the changes that the end of the Cold War era has ushered in. Finally, the Committee's efforts to ensure that its decisions in cases brought to it under the Optional Protocol are complied with run up against legal and practical problems that need to be addressed.

1. Delinquent State Reports A growing number of States Parties either delay the submission of initial or periodic State reports for substantial periods of time or fail to file them altogether. Not all of these delinquencies are attributable to the poor human rights record of the states concerned, although many certainly are. These states delay submitting their reports in order not to expose their poor human rights record to international scrutiny, which in some ways is a compliment to the prestige of the Committee. Other delinquencies are due to bureaucratic inertia or a shortage of qualified 161

For example, it is interesting to note that in its examination of the initial report of the United States and its Concluding Observations thereon, the Committee made only a passing reference to General Comment No. 24 without formally relying on it.


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governmental personnel to work on the reports. Sometimes two or all three of these factors combine to explain the failure of a state to file in a timely fashion. Here it needs to be noted that many states have ratified all or most UN human rights treaties and that a large number of these instruments impose extensive reporting obligations. Smaller, poorer states may have legitimate problems complying with these multiple reporting obligations. Some of these states, including those with poor human rights records, frequently ratify human rights instruments without intending to comply with the substantive and procedural obligations these instruments impose or without giving much thought to their ability to do so. They tend to assume these obligations because of domestic or international pressures or for a variety of political reasons without seriously believing that they will be expected to comply. If the reporting mechanism established by the Covenant is to continue to evolve into an important implementation tool, which it certainly could be, a way will have to be found to deal with the problem of delinquent reports.162 For if groups of states, for whatever reason, increasingly avoid having their human rights records examined by the Committee, the resultant selective impunity and the cynicism it fosters will gradually have a serious adverse effect on the entire Covenant machinery. Some states might then ask why they should subject themselves to what has become an ever more intrusive and aggressive scrutiny of their human rights practice when many other countries evade their reporting obligations altogether. Moreover, to the extent that states with poor human rights records are more likely to delay the submission of their reports, the Committee will increasingly be forced to engage in a compliance dialogue only with the "better" states. This problem must be addressed much more imaginatively than it has been to date. The reporting mechanism developed by the Committee has evolved into an important implementation or compliance tool, which forces the States parties to expose their entire human rights policies and practices to international scrutiny. But, it can only have long term beneficial consequences if all States parties to the Covenant comply with their reporting obligations. In confronting the issue of delinquent reports, the Committee will have to take a number of cumulative steps. It is not enough merely to list in the Committee's annual report to the UN General Assembly the 162

Here it should be noted that by February 1999, a total of 1143 State reports were overdue under the six existing State reporting procedures of the UN. See generally Bayefsky, see note 51.

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names of states whose reports are overdue. The Committee must develop a procedure, in cooperation with the Office of the High Commissioner for Human Rights (OHCHR), to assist states to prepare their reports and to familiarize them with the practice and jurisprudence of the Committee, thus helping states to comply with their reporting obligations. While it is true that the OHCHR provides some such assistance to States parties, a much more aggressive policy will have to be developed to get states to seek this assistance and act on it. The Committee itself must also be involved in the process. Of course, this approach will not help with states that do not wish to report or are reluctant to do so. To encourage these states to reconsider their position, the Committee may in extreme cases and as a last resort, have to develop a procedure permitting it to examine the human rights situation of a state even in the absence of its formal report.

2. Working Methods and Financial Problems It is ironic that while this article suggests the need for procedures capable of reducing the number of delinquent State reports, it is clear that if all States parties were to comply promptly with their reporting obligations, the Committee would not be able to examine them within a reasonable period of time. It would face a similar problem in disposing of individual communications under the Optional Protocol. The Committee already has a substantial backlog of such communications and would fall even further behind if it received merely a few communications from each of the nearly 100 countries that have ratified the Protocol.163 There are various reasons why that is so. The financial crisis at the UN has not only reduced the Committee's professional staff. It has also resulted in a substantial reduction of available language services, making it difficult for the Committee to receive timely translations of State reports and individual communications. Moreover, the Committee has failed thus far to fully adjust its working methods to the requirements of an ever increasing number of state accessions to the Covenant and to the Optional Protocol. The Committee meets in three threeweek sessions annually, that is, for 45 working days. Given its current working methods, the Committee cannot deal effectively with more than four to six State reports and some 15 individual communications at 163

D. Kretzmer, "The Human Rights Committee," in: Bayefsky, see note 51, 163.


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any given session, besides devoting additional time to follow-up issues and work on general comments. The cumulative effect is a growing backlog of State reports and communications. To reduce that backlog, the Committee will have to make some serious changes in its working methods. Although it has already begun the process, recent changes are not enough to address the problem. The Committee normally devotes one full day to the public examination of an individual State report. It requires the reports, whether initial or periodic, to describe all relevant law and practice by reference to an article-by-article analysis of the rights guaranteed in the Covenant. Although the Committee as a whole now adopts "concluding observations" with regard to each report and submits written questions to the State party prior to the public-hearing, individual members continue to ask a large number of additional questions and to make extensive comments. While it is important for members to preserve the right to ask follow-up questions when a State has failed to address certain issues raised in the Committee's list of written questions, the large number of additional comments disguised as questions posed by members at the hearing itself results in considerable confusion and wasteful repetition. This could be avoided if Committee members took seriously the request of their working groups to submit their questions for inclusion in the Committee's list of written questions. There might still be a need for follow-up questions, but their number could be significantly reduced. One of the most significant recent improvements has been the formal discontinuance of the practice which enabled all members of the Committee to take the floor at the end of the discussion to make their own concluding remarks. This practice had become completely unnecessary with the adoption of concluding observations by the Committee as a whole. The Committee will have to continue to review what information it wants states to provide in their reports. While it makes a great deal of sense to require all new States parties to submit an initial report providing an article-by-article overview of its compliance with the relevant provisions of the Covenant, all subsequent reports should be made to focus on specific problem areas. The Committee has recently begun to move in that direction by declaring that "in their periodic reports States parties need not report on every article, but only on those which are identified by the Committee in its concluding observations and those articles concerning which there have been important developments

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since the submission of the previous report."164 This new approach is to be welcomed. The Committee might also give some thought to developing procedures permitting the Committee to forgo public hearings with regard to periodic reports from countries with few human rights problems. These reports could be dealt with through a written exchange of views and the adoption of concluding observations. Such a dual track approach is admittedly more difficult to administer. To the extent, however, that it would serve to reward states with sound human rights policies and diligent reporting habits, it would provide incentives that might in the long run benefit the Covenant system as a whole. Turning now to working methods applicable to the Optional Protocol, the Committee must take the steps necessary to substantially increase the number of individual communications it deals with in one session in order to reduce the growing backlog. Although the Committee has recently made some progress in streamlining the manner in which it acts on communications at the admissibility stage, these innovations must be extended to the merits of the case. At this time, the Committee as a whole, that is 18 members, discuss and decide each case in a plenary session, usually after a working group has already examined the matter. As a result and because a growing number of these cases raise complex legal issues, it becomes ever more difficult for the Committee to dispose of a reasonable number of communications on the merits in one session. One solution, which would increase substantially the number of cases decided by the Committee, would allow panels or chambers of seven or nine Committee members to formulate final decisions on the merits. It is true, of course, that in the absence of an amendment to the Optional Protocol permitting chambers to decide cases on the merits, the Committee as a whole would have to retain the formal authority to approve these decisions. It could decide, however, to establish a. pro forma approval procedure that would call for an actual review of a chamber's action only under certain circumstances, for example, if the chamber's decision was not unanimous or if a certain number of Committee members asked for a reconsideration of the decision. 165

164 (1999.2000) HRC Report, GAOR, Suppl. No. 40 (Doc. A/55/40), 16 (2000). 165 For suggestions calling for a more differentiated and selective approach to individual communications, see H. Steiner, "Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee," in: P.


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3. Norm-Setting and Quasi-Judicial Role Besides streamlining its working methods, the Committee must now also decide on what issues it should focus in the future. This reassessment of its future role has become necessary because of the dramatic expansion of UN human rights institutions and mechanisms. Particularly relevant, in this connection, is the creation of the position of the UN High Commissioner for Human Rights, the appointment by the Commission on Human Rights of an ever growing number of country and thematic Rapporteurs, supplemented by other procedures for dealing with large-scale violations of human rights, developed by the Commission and the Sub-Commission on the Promotion and Protection of Human Rights. Equally relevant is the entry into force of newer UN human rights treaties with their own treaty bodies and with jurisdiction over rights which the Covenant also guarantees. Given these developments, it should be asked whether the Committee has a special role to play in the ever more complex web of overlapping UN institutions and legal norms. One obvious answer is that the Committee should avoid duplicating activities other bodies are better equipped to perform.166 The Committee must not let itself be drawn into the political thicket of UN human rights activities. That means that it must work hard to be perceived as being what in reality it is: an independent, non-political body of experts that interprets and applies the Covenant in an objective and legally sound manner. The Committee must therefore take special care that its decisions interpreting and applying the Covenant and Optional Protocol are perceived as being culturally neutral and legally beyond reproach. To satisfy this requirement the Committee may have to spell out in greater detail the legal reasons justifying its decisions and to assure itself that the principles enunciated do in fact have universal applicability. The principal focus of the Committee should be legal in character, that is, it should focus on practice-oriented articulation and development of the law of the Covenant and not seek to compete with other Alston/ J. Crawford, The Future of UN Human Rights Treaty Monitoring, 2001, I5 et seq. 166 For example, an important step towards co-ordination involves the decision to hold the Meetings of the Chairpersons of UN Human Rights Treaty Bodies concurrently with meetings of the Special Rapporteurs and Chairpersons of the Working Groups of the Commission on Human Rights.

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UN bodies. Hence, for example, the Committee probably should not make it a habit to request special or emergency reports from states that have attracted international attention due to some sudden or persistent practice of large-scale human rights violations. In the recent past, the Committee has sought such reports from various states, including states comprising the former Yugoslavia, Rwanda, Haiti and Nigeria, even though other UN bodies were already seized of these cases. Here the Committee has less to contribute than the Security Council, the Commission on Human Rights or the High Commissioner for Human Rights. The Committee could use its time better by dealing with regular State reports and individual communications. For the same reasons, the Committee should resist the temptation of embarking on in loco investigatory missions. The Committee's broad competence over civil and political rights requires it to be constantly aware of the fact that its decisions interpreting and applying the relevant Covenant provisions will in one way or another also affect the interpretation and application of comparable provisions of other more specialized UN human rights treaties. This special position of the Committee among UN human rights treaty bodies, most of which have a narrower legal competence, present difficult lawmaking challenges. One of these involves the task of ensuring that the Committee's pronouncements on the scope of civil and political rights not limit or unduly restrict the normative evolution of UN human rights law in general or the parallel provisions of other UN instruments. In the absence of a UN human rights court with jurisdiction over all UN human rights treaty bodies, the Committee is best equipped to play a comparable role within the UN human rights system. It can and should discharge some of the normative functions such a tribunal would perform, particularly when adopting general comments and rendering decisions on individual communications. To this end it will have to promote a much greater institutional and personal interaction with the other UN treaty bodies and seek a better understanding of the legal issues confronting these entities. There now exists a vast body of UN human rights treaty law that needs to be fully understood, interpreted and applied. The Committee is uniquely suited to contribute to this process and to assist with the development of other relevant legal principles of relevance for UN human rights institutions in general.


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4. Binding Decisions under the Optional Protocol The decisions or so-called Views the Committee adopts in dealing with individual communications under the Optional Protocol are not legally binding. The Optional Protocol contains no provisions making Views binding, and the very use of the word "Views" in article 5 para. 4 of the Protocol167 is designed to indicate that they are advisory rather than obligatory in character. This does not mean, of course, that these decisions have no normative effect or that they can be disregarded with impunity. After all, by ratifying the Optional Protocol the States parties have recognized the competence of the Committee to determine whether a state has violated a right guaranteed in the Covenant. As States parties to the Covenant, these states have also undertaken to give effect to Covenant rights on the domestic plane and to provide an effective remedy for their violation. A Committee determination that a state has violated a right guaranteed in the Covenant therefore enjoys a normative and institutional legitimacy that carries with it a justifiable expectation of compliance. It is clear, nevertheless, that the absence of an unambiguous undertaking in the Protocol requiring the States parties to comply with the Committee's decisions has a number of adverse consequences as far as compliance is concerned. In some countries the government lacks the power to compensate victims of a violation of the Covenant without a legally binding determination mandating such payment. The fact that the Committee's Views are not binding is used by some governments as an excuse for taking no action to give effect to them. It is also much more difficult for litigants in domestic courts to rely on Committee decisions as legal precedents when they are considered to lack obligatory character. These considerations have the cumulative consequence of leaving many Committee Views and the remedies they prescribe totally or partially unimplemented or without much effect on the domestic adjudicatory process. The adoption of an amendment to the Protocol making the Committee's decisions binding on the States parties would go a long way towards addressing these problems, but it is not likely to be adopted. Even if it were adopted, it would not necessarily have an immediate dramatic effect on state compliance with Committee decisions under the Protocol, although it would lead to a gradual improvement of the situation and strengthen the Committee's hand in dealing 167

Article 5 para. 4 of the Optional Protocol declares that "the Committee shall forward its views to the State Party concerned and to the individual."

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with non-complying states. In the long run, it would probably also substantially increase the precedential value on the domestic plane of Committee decisions and thus help to bring domestic law into compliance with the Covenant. Whether the creation of additional regional human rights courts with jurisdiction to deal with individual complaints will in time reduce the need to resort to the Protocol machinery remains to be seen. For the time being, therefore, and in the absence of a UN Human Rights Court,168 the Committee has no choice but to continue to redouble its efforts to strengthen the normative and institutional legitimacy of its decisions under the Protocol, thus making it increasingly more difficult politically for the States parties not to comply with them.

168

See T. Buergenthal, "A Court and Two Consolidated Treaty Bodies," in: Bayefsky, see note 51,299.

Domestic Implementation of the International Covenant on Civil and Political Rights Pursuant to its article 2 para. 2 Anja Seibert-Fohr I. II.

Introduction Obligation to Implement: Immediate or Progressive Obligation? 1. The Drafting of arts 2 para. 2 and 40 para. 1 2. Pronouncement of the Human Rights Committee on Immediate Implementation 3. Assessment of the Covenant's Progressive Element III. Relationship between the ICCPR and Domestic Law 1. ICCPR as Directly Applicable Treaty? 2. Duty to Make the ICCPR Directly Applicable? a. Textual Interpretation of article 2 b. Drafting History of article 2 para. 2 c. Purpose and Context of article 2 d. Interpretation by the Human Rights Committee 3. Domestic Normative Rank of the Covenant 4. Article 2 and the Reservations, Understandings and Declarations of the United States IV. Specific Measures of Implementation 1. Legislative Measures 2. Other Measures of Implementation a. Law Enforcement b. Institutional Safeguards c. Procedural Safeguards d. Monitoring and Control Mechanisms e. Contextual Measures f. Information and Education V. Conclusion 399 J.A. Frowein and R. Wotfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 399-472. © 2001 Kluwer Law International. Printed in the Netherlands.

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I. Introduction The International Covenant on Civil and Political Rights of 1966 (ICCPR) contains a comprehensive catalogue of civil and political rights which the States parties pursuant to its article 2 para. 1 have accepted to "respect and to ensure".1 The enjoyment of these rights depends on the implementation measures taken by the States parties. In fact, domestic implementation is the primary mechanism envisaged by the Covenant to give effect to the rights of individuals that it enshrines while international implementation, that is the reporting system2 as well as the inter-state3 and individual complaint system,4 is set up as a secondary means of implementation providing for a control system.5 The way States parties need to implement the Covenant domestically is outlined in article 2 para. 2.6 This article has given rise to a numInternational Covenant on Civil and Political Rights, 16 December 1966, UNTS Vol. 999 No. 14668, ILM 6 (1967), 368 et seq., entered into force 23 March 1976, (hereinafter ICCPR or Covenant). Pursuant to article 40 of the ICCPR the States parties to the Covenant undertake to submit periodic reports on the measures adopted which give effect to the Covenant rights and on the progress made in the enjoyment of those rights. Pursuant to article 41 of the ICCPR a State party to the Covenant may declare that it recognizes the competence of the Human Rights Committee to receive and consider communications to the effect that a State party claims that another State party is not fulfilling its obligations under the Covenant. The individual complaint system is set up by the Optional Protocol. Pursuant to article 1 of this Protocol, States parties to it recognize the competence of the Committee to receive and consider communications from individuals claiming to be victims of a violation of any of the Covenant rights. Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966, UNTS Vol. 999 No. 14668, entered into force 23 March 1976, (hereinafter Optional Protocol). Pursuant to arts 2 and 5 para. 2 lit.(b) of the Optional Protocol domestic remedies need to be exhausted before an individual may submit a communication to the Human Rights Committee. Article 2 para. 2 provides: "Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant."

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ber of questions as to when and to what extent the Covenant requires a particular act of implementation. The starting point for answering this question is that, considering the objective of the Covenant, the rights of individuals (and the corresponding obligation of the States parties) are to become reality in law and practice. The challenge faced when implementing the Covenant becomes apparent if one considers the vast differences between the legal systems of the States parties to the Covenant throughout the world. The Covenant provides standards envisaged as a common denominator with which the legal systems of the States parties need to be harmonized. A dominant issue as to the implementation of the Covenant is whether it creates only duties of result, as the duty to refrain from human rights violations, or also duties of conduct, as the enactment of specific safeguards against violations.7 The ILC in its Draft Articles on State Responsibility, adopted on first reading, in arts 20 and 21, distinguished between "an international obligation requiring the adoption of a particular course of conduct" and "an international obligation requiring the achievement of a specified result".8 According to the ILC "[t]here is a breach by a State of an international obligation requiring it to achieve, by means of its own choice, a specified result if, by the conduct adopted, the State does not achieve the result required of it by that obligation."9 (emphasis added). Hence, while an obligation of result leaves open the means to be adopted to achieve the mandatory result, an obligation of conduct determines specifically the action through which

For a detailed account of this classification of international duties, see B.G. Ramcharan, "The Emerging Jurisprudence of the Human Rights Committee", Dalhousie Law Journal 6 (1980), 7 et seq., (14 - 20). Arts 20, 21 of the Draft Articles on State Responsibility adopted on first reading at its 48th Sess. 1996, ILC Report 1996, hi: GAOR 51st Sess., Suppl. 10, Doc. A/51/10 Chapter 3, State Responsibility. Recently, these articles were deleted by the drafting Committee of the ILC on second reading. See draft articles provisionally adopted by the Drafting Committee on second reading Doc. A/CN.4/L.600. For the discussion of the ILC on the deletion of arts 20, 21 see Report of the ILC, in: GAOR 54th Sess., Suppl. 10, Doc. A/54/10, paras 132-186. Cf also Wolfrum who distinguishes a third category, namely goal-oriented obligations. R. Wolfrum, "Means of ensuring compliance with and enforcement of international environmental law", RdC 272 (1998), 25 et seq., (34). Article 21, note 208, para. 1, ILC Report, see above.

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a result shall be achieved.10 Most of the Covenant provisions, however, contain substantive rights of individuals without spelling out a particular course of conduct and thus seem to constitute obligations of result.11 This does not put into question that states are under an obligation to provide for an implementation of the said rights and that this implementation has to be effective.12 Article 2 para. 2 explicitly mandates the adoption of legislative or other measures to give effect to the rights recognized. However, the required conduct, that is the adoption of "legislative or other measures" does not seem to be a particular one, whereas the aforementioned draft article 20 of the ILC speaks of a "particular course of conduct". Some commentators have argued that article 2 para. 2 of the Covenant speaking of "the necessary steps, in accordance with its constitutional processes" leaves the States parties so much leeway in the implementation of the Covenant that it hardly differs from a mere obligation of result.13 Taking the different constitutional processes of States parties into consideration article 2 para. 2 seems to leave the choice how to implement the Covenant to the States panics as long as

10

11

12

13

For example, article 20 para. 1 of the Covenant obliges the States parties to prohibit any propaganda for war "by law". While the overall goal is to preserve freedom, a particular course of conduct, that is the adoption of legislation prohibiting propaganda for war, is mandated. The mere nonadoption of this course of conduct is a breach of the international obligation irrespective of the consequences of the non-adoption of legislation. The obligation is breached even if no specific instance of war propaganda has been found. For example, article 22 para. 1 of the Covenant sets out: "Everyone shall have the right to freedom of association with others, including the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests." Pursuant to article 12 para. 2 "[e]veryone shall be free to leave any country, including his own". These provisions do not spell out any particular measures how to implement the respective rights. According to Schachter, article 2 para. 1 establishes an obligation of result. See in this respect O. Schachter, " The Obligation to implement the Covenant in Domestic Law", in: L. Henkin (ed.), The International Bill of Rights, 1981, 311 et seq., (311); see also Ramcharan, see note 7,11 et seq.; F. Capotorti, "The International Measures of Implementation including the Covenants on Human Rights"; in: A. Eide/ A. Schou (eds), International Protection of Human Rights, 1968, 311 et seq., (312). M. Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary, 1993, 54.

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the Covenant rights become effective.14 Accordingly, the ILC in 1977 named this provision as an example for an obligation of result, which does not require recourse to a specified means by indicating a preference for one means or another.15 Meanwhile there seems to be a trend towards the assumption of obligations of conduct apart from the obligations of result in the area of human rights. While the ILC treated article 2 para. 1 of the International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR) in 1977, which is similar to article 2 para. 2 of the ICCPR, as an obligation of result, members of the Commission recently pointed out that this provision "contain[s] a delicate mix of obligations of conduct and obligations of result."16 Others maintained that the trend to incorporate human rights into domestic legislation, the need for international regulation of certain human rights offences, the growing global acceptance of certain democratic values and the joint efforts to promote 14

15

16

According to O'Flaherty it is the prerogative of each State party to choose its own manner of incorporation or implementation. M. O'Flaherty, "The Reporting Obligation under Article 40 of the International Covenant on Civil and Political Rights: Lessons to be learned from consideration by the Human Rights Committee of Ireland's First Report", HRQ 16 (1994), 515 et seq., (534). The ILC explained: "There can be no doubt that [in the case of Article 2 (2) of the Covenant] legislative means are expressly indicated at the international level as being the most normal and appropriate for achieving the purpose of the Covenant in question, though recourse to such means is not specifically or exclusively required. The State is free to employ some other means if it so desires, provided that those means also enable it to achieve in concrete the full realization of the individual rights provided for by the Covenant*. ILC Report on its 29th Sess., ILCYB 1977, Vol. 2, Part Two, 21. Article 2 para. 1 of the International Covenant on Economic, Social and Cultural Rights reads: "Each State Party to the present Covenant undertakes to take steps ... with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.* (emphasis added), 16 December 1966, UNTS Vol. 993 No. 14531, ILM 6 (1967), 360 et seq., entered into force 3 January 1976, (hereinafter ICESCR). For the earlier qualification of article 2 para. 1, cf. ILC Report on its 29th Session, ILCYB 1977, Vol. 2, Part Two, 20-21, para. 8. For the new qualification by some ILC members, cf. Report of the ILC, in: GAOR 54th Sess., Suppl. 10, Doc. A/54/10, para. 152.

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the rule of law had greatly restricted the margin in which states were free to choose the means of fulfilling their international obligations.17 It has to be kept in mind that article 2 para. 1 ICCPR obliges States parties "to respect and to ensure". It imposes an independent obligation apart from the respective rights.18 Opsahl refers to it as a "double duty of implementation".19 The implementation of the Covenant requires that the rights are not violated (respected) and that they are ensured. The latter obligation requires active measures of implementation apart from the negative duty of forbearance. The Human Rights Committee over the years has specified and elaborated a variety of the measures to be adopted by the States parties to the ICCPR. As will be explained below, nowadays, its is no longer enough not to infringe upon the rights protected but it is required to guarantee them by means of a specified conduct. As to the form in which the Covenant needs to be implemented the question which will be addressed first is the one of immediate obligation. To understand this four different mechanisms are to be distinguished. An immediate obligation means a duty to implement the obligations undertaken under a treaty upon becoming a State party. Differently, the term directly applicable is used if a norm of international law can be applied by domestic courts. If this is the case by virtue of domestic law the norm is described as "self-executing". This term is to be distinguished from the term "self-operative" which is used to describe a norm which, as a matter of international law, does not require any further steps. Given the wording of article 2 para. 2 of the Covenant "... each State Party to the present Covenant undertakes to take the necessary steps..." and the fact that the catalogue of civil and political rights of the Covenant is so comprehensive that virtually no State party can claim to be in full compliance with the Covenant the question arises whether the Covenant creates immediate obligations of implementation or whether it merely envisages a progressive implementation process.

17

18

19

Report of the ILC, in: GAOR 54th Sess., Suppl. 10, Doc. A/54/10, para. 160. This is why the Human Rights Committee, if it finds a violation of a Covenant right also cites article 2 as a provision violated. T. Opsahl, "International Obligations and National Implementation", Scandinavian Studies in Law 23 (1979), 149 et seq., (159).


405

II. Obligation to Implement: Immediate or Progressive Obligation? There is an assumption that civil and political rights create immediate state obligations while economic, social and cultural rights require a progressive implementation.20 An immediate obligation means a duty to implement the obligations undertaken under a treaty upon becoming a State party to the Covenant irrespective of the available resources. A progressive implementation, however, entails a mere promotional type of commitment to enhance a certain objective and to realize it progressively depending on the availability of the necessary resources. A comparison with the ICESCR21 seems to support the assumption that the ICCPR creates immediate and stringent (i.e. unconditional) obligations of implementation. Article 2 para. 1 of the ICESCR requires the States parties "to take steps" to achieve the full realization of the rights recognized in the ICESCR "progressively".22 The wording of article 2 para. 1 of the ICCPR is different. It provides that each State party undertakes to "respect and to ensure" the Covenant rights without making reference to progressive realization as in the ICESCR.23 20

21 22

23

Doc. A/CONF.32/5, para. 63 (1967); ILO Doc. G.B. 174/21/7. This difference in principle between civil and political rights on the one hand and economic, social and cultural rights on the other led the General Assembly to decide for the drafting of two separate Covenants. Cf. A/RES/543 (VI) of 5 February 1952. Also Doc. A/2929 (1955), in: GAOR 10th Sess., Annexes, Agenda Item 28, Part II, Ch.II, para. 9. ICESCR see note 16. Article 2 para. 1 of the ICESCR provides: "Each State Party to the present Covenant undertakes to take steps individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures", (emphasis added). However, the Committee on Economic, Social and Cultural Rights stated in its General Comment No. 3 (1990) that the ICESCR creates certain obligations of immediate effect namely the duty "to take steps" and the prohibition of discrimination and the so-called "minimum core rights", Report of the Committee on Economic, Social and Cultural Rights, 5th Sess., Doc. E/1991/23, Doc. E/C. 12/1990/8, page 23. Article 2 para. 1 ICCPR reads: "Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Cove-

406


The difference in wording and in nature of the rights recognized in the two Covenants gives ground for the conclusion that the ICCPR creates immediate obligations.24 A further argument can be gained from article 2 para. 3 ICCPR requiring domestic remedies in case of Covenant rights violations.25 It is questionable whether one could speak of violations of the rights if they did not create stringent legal obligations. There would also be no need for the provision on derogations in article 4 ICCPR if the States parties were only required to enhance the realization of the Covenant rights according to their particular abilities. In that case states could base derogations on the grounds of their lacking ability to implement the Covenant rights in times of public emergency without the need for a derogation clause such as article 4 para. 1.26 Finally, if certain rights cannot even be derogated from in times of public emergency (article 4 para. 2), non-compliance with them in times of peace cannot be justified on the ground of lack of available resources.27 On the other hand, pursuant to article 2 para. 2 of the ICCPR, each State party "undertakes to take the necessary steps" to give effect to the rights.28 Article 40 para. 1 of the ICCPR obliges States parties to report

24

25

26

27

28

nant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". C. Tomuschat, "Die Bundesrepublik Deutschland und die Menschenrechtspakte der Vereinten Nationen", Zeitscbrift fur die Vereinten Nationen 26 (1978), 1 et seq., (4); T. Buergenthal, "To Respect and to Ensure State Obligations and Permissible Derogations", in: Henkin, see note 12, 72 et seq., (77). Tomuschat points out, e.g. that the right to life, the prohibition of torture and slavery, servitude and forced labor create obligations by which states can abide without any transitory period. C. Tomuschat, "National Implementation of International Standards on Human Rights", Canadian Hitman Rights Yearbook 1984-1985,31 et seq., (40-41). C. Tomuschat, "Equality and Non-Discrimination under the Covenant on Civil and Political Rights", in: I. von Munch (ed.), Festschrift fur H.-J. Schlochauer. Staatsrecht, Volkerrecht, Eutroparecht, 1981,691 et seq., (694). Different from the ICCPR, the ICESCR does not include a derogation clause. But this does not mean that derogations from the ICCPR rights are lawful without any limitation. P. Alston/ G. Quinn, "The Nature and Scope of States parties' Obligations under the International Covenant on Economic, Social and Cultural Rights", HRQ 9 (1987), 156 et seq. It is interesting to note that the non-derogable rights in article 4 para. 2 are not only the very basic ones but, at the same time, the ones which can be enforced immediately through forbearance. Article 2 para. 2 reads, see note 6.


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on the measures giving effect to the Covenant rights and "on the progress made in the enjoyment of those rights" (emphasis added). Terms like "to undertake the necessary steps" and "progress made" seem to imply a progressive implementation. Therefore, some commentators have argued that the Covenant is based on the idea of progressive implementation.29 However, the majority of commentators have pointed out that the term "progress made" refers not to the measures undertaken but to the results of these measures and that the duty to report within one year therefore leads to an immediate obligation.30 In the following, the seeming contradiction between article 2 para. 1 on the one hand and arts 2 para. 2 and 40 on the other hand will be analyzed by referring to the drafting history of these provisions and by elaborating the interpretation given to these provisions by the Human Rights Committee.

1. The Drafting of arts 2 para. 2 and 40 para. 1 According to the original draft of article 2 para. 2 before the Commission on Human Rights which was in charge of drafting the ICCPR, States parties undertake to take the necessary steps within "reasonable time". The advocates of this provision stressed the importance of the phrase "reasonable time" and intended to provide with it for a progressive implementation.31 They argued that the Covenant was so comprehensive that no state could claim its legislation to be in complete har-

29

30

31

F. Jhabvala, "The Practice of the Covenant's Human Rights Committee", HRQ 6 (1984), 81 et seq., (96, 100-101). Robertson argued that the Covenant is based on the idea of progressive implementation. A. H. Robertson, "The U.N. Covenant on Civil and Political Rights and the European Convention on Human Rights", BYIL 21 (1968/69), 21 et seq., (26). He changed his view later pleading for an immediate implementation. A.H. Robertson, "The Implementation System: International Measures", in: Henkin, see note 12,332 et seq., (500, note 48). E. Schwelb, "The Nature of obligations of the States parties to the International Covenant on Civil and Political Rights", in: R. Cassin, Amicorum Discipulorumque Liber, 1969, 301 et seq., (308); C. Tomuschat, "Die Bundesrepublik Deutschland und die Menschenrechtspakte der Vereinten Nationen", see note 24,4; J.P. Humphrey, Letter to the Editor, HRQ 6 (1984), 539 et seq., (539), Nowak, see note 13, 557. Doc. E/CN.4/SR.329, page 8.

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mony with all its provisions.32 Since time was needed for a complete implementation, the reporting system should prevent excessive delays in the implementation. This system would help the exchange of information between the States parties and make them more conscious of their obligations undertaken under the Covenant.33 Other drafters objected arguing that the expression of immediate obligations in article 2 para. 1 would be taken back implicitly with the provision of para. 2.34 According to a general principle of international law, the States parties were obliged to adopt the necessary domestic legislation before or upon ratification.35 The reporting system was also rejected on the basis that it would detract from the immediate obligation undertaken by States parties to the Covenant.36 Eventually, a compromise was agreed upon in the final draft of the Commission.37 The idea of a previous implementation of the Covenant was given up. On the other hand the words "reasonable time" providing for a progressive implementation of the Covenant were deleted. A progressive implementation was only provided for the equality of spouses (article 23 para. 4).38 The reporting system was incorporated as a procedure for the implementation of the Covenant because the system of inter-state communications was considered to be insufficient.39 The article on the reporting system did not yet include the phrase "and on the progress made in the enjoyment of those rights" as today's article 40 para. 1.40 The members of the Third Committee of the General Assembly finalizing the drafting process agreed that the notion of progressiveness should not be incorporated into the ICCPR. They held that the enjoyment of civil and political rights — different from the enjoyment of 32

Ibid., 5.

33

Doc. A/2929, in: GAOR (X), Annexes, Agenda item 28, Part II, Ch. VII, para. 163. Doc. E/CN.4/SR.329, pages 8,11. Doc. E/CN.4/SR.138,6, para. 16; Doc. E/CN.4/SR.329, pages 7,9,15. Doc. A/2929, in: GAOR (X), Annexes, Agenda item 28, Part II, Ch. VII, para. 162. ESCOR XVIII Sess., Suppl. 7, Annex I, B, 62-72. Cf. article 49 II of the Commission's draft. Humphrey, see note 30, 539. For the text of the provision, Draft Covenant on Civil and Political Rights, article 49, in: Report of the 10th Sess. of the Commission on Human Rights, ESCOR (XVIII) Suppl. No. 7, Annex I, 71.

34 35 36

37 38 39 40

Seihert-Fohr, Domestic Implementation of the ICCPR

409

economic, social and cultural rights — could not be delayed. Therefore, the Covenant was supposed to create almost immediate obligations.41 Still at issue was whether article 2 para. 2 and the reporting system should be retained. Some members of the Third Committee disagreeing with these provisions argued that they would introduce the notion of progressive implementation.42 The majority, however, endorsed article 2 para. 2.43 With this provision they intended to take into account the fact that the legal order of many Member States was not in complete harmony with the Covenant44 and that effective steps were needed to ensure the Covenant rights.45 Due to the comprehensive scope of the Covenant a certain degree of delay in the implementation was to be expected.46 Article 2 para. 2 was meant to express that a reasonable time limit, but not unlimited flexibility, was at the States parties' disposal for the implementation of the Covenant.47 Certain minimum guarantees needed to be complied with upon ratification otherwise the complaint system would make no sense.48 It was commonly agreed that the Covenant would not allow a prolonged period of time for its implementation 41

42

43

44 45 46

47

48

Doc. A/C.3/SR.1181, in: GAOR (XVII), Agenda item 43, 237 para. 23; Doc. A/C.3/SR.1257, in: GAOR (XVIII), Agenda item 48, 238, para. 12; Doc. A/C.3/SR.1427, in: GAOR (XXI), Agenda item 62, para. 2. Cf. Schachter, see note 12, 323-324. Only the representatives of China, the Ukraine and Iraq took a different view. Cf. Doc. A/C.3/SR.1258, in: GAOR (XVIII), Agenda item 48, 244, para. 31; Doc. A/C.3/SR.1183 of 14 November 1962, in: GAOR (XVII), Agenda item 43, 245, para. 9, Doc. A/C.3/SR.1427, in: GAOR (XXI), Agenda item 62, para. 3. Doc. A/C.3/SR.1181, in: GAOR (XVII), Agenda item 43, paras 2, 4; Doc. A/C.3/SR.1257, in: GAOR (XVIII) Agenda item 48, paras 2,7. Doc. A/C.3/SR.1181, in: GAOR (XVII), Agenda item 43, para. 3; Doc. A/C.3/SR. 1182, in: GAOR (XVII), Agenda item 43, para. 35. Doc. A/C.3/SR.1258, in: GAOR (XVIII), Agenda item 48, para. 6. Doc. A/C.3/SR. 1182, in: GAOR (XVII), Agenda item 43, para. 7. Doc. A/C.3/SR.1181, in: GAOR (XVII), Agenda item 43, paras 23, 35; Doc.A/C.3/SR. 1257, in: GAOR (XVIII), Agenda item 48, 237, para. 12; Doc. A/C.3/SR.1427, in: GAOR (XXI), Agenda item 62, para. 3. Doc. A/C.3/SR.1181, in: GAOR (XVII), Agenda item 43, para. 35; Doc.A/C.3/ SR.1182, in: GAOR (XVII), Agenda item 43, 243, para. 35; Doc. A/C.3/SR.1183, in: GAOR (XVII), Agenda item 43, 247, para. 19; Doc. A/C.3/SR.1257, in: GAOR (XVIII) Agenda item 48, para. 12; Doc. A/C.3/SR.1258, in: GAOR (XVIII), Agenda item 48, 241, para. 6; Doc. A/C.3/SR.1426, in: GAOR (XXI), Agenda item 62, para. 33. Doc. A/C.3/SR.1426, in: GAOR (XXI), Agenda item 62, para. 33; Doc. A/C.3/SR.1427, in: GAOR (XXI), Agenda item 62, para. 2.

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but would, in principle, create immediate obligations for the States parties.49 The reporting system was also incorporated into the Covenant. Criticism on an early draft of article 40 para. 1 before the Committee led to substantive changes.50 Instead of submitting reports on "the progress made in giving effect to the rights" as initially proposed, States parties are now obliged to report on "the progress made in the enjoyment of those rights."51 After the clarification that the term "progress made" did not refer to the measures to be adopted but to the result of these measures, the members of the Third Committee voted unanimously (with two abstentions) in favor of article 40 para. 1.52 The reporting system was intended to prevent inappropriate delays in the implementation of the Covenant.53 At the same time it was incorporated to make States parties adopt further measures necessary to ensure the rights of the Covenant in law and practice.54 The one year period until the first report was considered necessary for the implementation of the Covenant.55

49 50

51

52

53

54 55

Also Schachter, see note 12,323-324. For this criticism, see Doc. A/C.3/SR.1181, in: GAOR (XVII), Agenda item 43, para. 4; Doc. A/C.3/SR.1257, in: GAOR (XVIII), Agenda item 48, para. 7; Doc. A/C.3/SR.1426, in: GAOR (XXI), Agenda item 62, para. 32; Doc. A/C.3/SR.1427, in: GAOR (XXI), Agenda item 62, paras 2, 8. For the change of the draft, see Doc. A/C.3/SR.1427, in: GAOR (XXI), Agenda item 62, para. 36. The initial draft of article 40 para. 1 read: "The States parties to this Covenant undertake to submit reports on the measures they have adopted and the progress made in giving effect to the rights recognized herein (emphasis added)". Doc. A/C.3/L.1379/Rev.l, para. 1; Doc. A/6546, para. 86. Doc. A/C.3/SR.1427, in: GAOR (XXI), C.3, Agenda item 62, paras 35-37, 45-46. Article 16 of the ICESCR, in contrast, refers to the progress made in achieving the observance of the rights recognized. Doc. A/C.3/SR.1181, in: GAOR (XVII), Agenda item 43, page 237, paras 23-24; Doc. A/C.3/SR.1257, in: GAOR (XVIII), Agenda item 48, paras 12, 21. Doc. A/C.3/SR.1427, in: GAOR (XXI), C.3, Agenda item 62, para. 22. Ibid, para. 27.


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2. Pronouncement of the Human Rights Committee on Immediate Implementation Under the individual complaint system, the Human Rights Committee has made it clear that the Covenant creates in principle immediate and unconditional obligations.56 In numerous cases the Committee has held that a State party had violated the Covenant.57 Without the assumption of legal obligations the Committee could not have found such violations.58 In Brocks v. The Netherlands, the Dutch Government asserted that if the Committee should decide that article 26 entails obligations with regard to legislation in the economic, social and cultural field, such obligation could only be the one of progressively taken measures to eliminate discrimination to the maximum of the state's available resources.59 But the Committee rejected this interpretation observing that what was at issue was not "whether or not social security should be progressively established ... but whether the legislation providing for social security violates the prohibition against discrimination contained in article 26 of the International Covenant on Civil and Political Rights and the guarantee given therein to all persons regarding equal and effective protection against discrimination."60 With this statement the Committee clarified that article 26 does not create a progressive but an immediate obligation for States parties which is violated in case of discrimination. Using the terms "violate" and "guarantee" the Committee emphasized the stringent and immediate legal obligation undertaken by States parties under article 26. An "effective protection" against discrimination requires immediate compliance. Otherwise the Committee could not have found a violation of article 26 in Broeks v. The Netherlands.61 Consequently, in E. and A.K. v. Hungary, the Committee

56 57

58

59

60 61

Tomuschat, see note 25,691 et seq., (694); Humphrey, see note 30, 540. From its early days the Human Rights Committee has done so. Cf. Selected Decisions under the Optional Protocol, Vol. 1, CCPR/C/OP/1 (1985) and Vol. 2, CCPR/C/OP/2 (1990). C. Tomuschat, "Der Ausschufi fur Menschenrechte, Recht und Praxis", Zeitscbriftfur die Vereinten Nationen 29 (1981), 141 et seq., (145). Comm. No. 172/1984 (1987), in: Selected Decisions of the Human Rights Committee under the Optional Protocol, Vol. 2, Doc. CCPR/C/OP/2, pages 196,199-200, para. 8.3. Ibid., 201, para. 12.5. Ibid., 201, para. 15.

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pointed out that "the State party's obligations under the Covenant apply as of the date of its entry into force."62 (emphasis added) Under the reporting system the Committee has urged States parties to take immediate steps to prevent and combat human rights violations in various Concluding Observations.63 Such demands are based on the assumption that the Covenant creates immediate obligations. Without such legal obligations laid down in the ICCPR the Committee could not urge States parties to take immediate steps to prevent human rights violations. If a State party is temporarily unable to render its own law and practices compatible with a Covenant right, the Committee points to the option to enter a temporary reservation.64 The Committee has applied the duty to take immediate steps to almost all rights provided for in the Covenant, for example the right to life,65 the right to be free from torture,66 the right to liberty and security of person,67 the right to

62 63

64

65

66

67

Comm. No. 520/1992 (1994), Doc. GAOR 49 Sess., Suppl. No. 40,336. In its Comments on Brazil of 1996 the Committee urged "the Government of Brazil to take immediate and effective steps to prevent and combat human rights violations by members of the security forces". Doc. CCPR/C/ 79/Add.66, para. 19. Such pronouncement refute the assertion of Alston and Quinn that the standards in fact applied "with the implicit but certainly unstated endorsement of the Human Rights Committee, is one of progressive achievement." Alston/ Quinn, see note 26,173. General Comment No. 24/52 on Reservations (1994), in: HRI/GEN/1/ Rev.2,42, para. 20. In its Comments on Brazil the Committee in 1996 urged immediate steps to prevent summary and arbitrary executions, see note 63, para. 19. In its Comments on Brazil the Committee urged immediate steps to prevent acts of torture and excessive use of force. Ibid., 19. Also Concluding Observations on Japan of 1998, Doc. CPR/C/79/Add.l02, para. 22; Concluding Observations on the Libyan Arab Jamahiriya of 1998, Doc. CCPR/C/79/Add.lOl, para. 11. In its Comments on Brazil the Committee in 19% urged immediate steps to prevent arbitrary detention and for immediate steps to ensure that convicted persons are released without delay on completion of their sentence. See note 63, paras 19, 21. In its Comments on Peru of 1996 the Committee urged the State party to take immediate measures with a view to releasing innocent prisoners and to providing them with compensation, Doc. CCPR/C/79/Add.67, para. 21, also Comments on Bosnia and Herzegovina of 1992, Doc. CCPR/C/79/Add.l4, para. 7; Concluding Observations on Japan of 1998, see note 66, para. 22.


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a fair and speedy trial,68 the right of detainees to be treated with humanity,69 the rights of individuals belonging to ethnic minorities,70 the right to freedom of opinion, expression and information,71 the rights to freedom of association and assembly,72 and to political rights.73 As already indicated it is not only the duty not to violate the rights enshrined in the ICCPR, but also to take steps to implement these rights effectively. Accordingly, the Committee has stressed unconditionally obligations of States parties to adopt measures that will ensure 68

69

70

71

72

73

In its Comments on Peru of 1996 the Committee urged that public trials be reinstated immediately, see note 67, para. 25. The Committee also recommended immediate measures to reduce the backlog of persons in detention awaiting trial in the Dominican Republic, Doc. CCPR/C/79/Add.l8, para. 10. Also Concluding Observations on Japan of 1998, see note 66, para. 22. In its Comments on Estonia of 1995 the Committee urged "immediate steps to ensure that all persons deprived of their liberty are treated with humanity and with respect for the inherent dignity of the human person in conformity with arts 7 and 10 of the Covenant, Doc. CCPR/C/79/Add.59, para. 33 (1995). In its Comments on the United Kingdom and Northern Ireland of 1995 (Hong Kong) the Committee urged the Government "to take immediate steps to ensure that living conditions in Vietnamese Refugee detention centers be improved," Doc. CCPR/C/79/Add.57, para. 24 (1995). In its Comments on Brazil of 1996 the Committee not only recommended "immediate steps to guarantee the rights of individuals belonging to racial minorities and indigenous communities, especially with regard to their access to quality health services and education", but also recommended "that in the light of article 27 of the Covenant, all necessary measures should be taken to ensure that the process of demarcation of indigenous lands be speedily and justly settled.", see note 63, para. 32. Concluding Observations on the Libyan Arab Jamahiriya of 1998, see note 66, para. 11. In its Comments on the United Kingdom and Northern Ireland (Hong Kong) of 1995 the Committee recommended that "immediate steps be taken to ensure that the electoral system be put in conformity with article 21,22 and 25 of the Covenant", see note 69, para. 25. In its Comments on Nigeria of 1996 the Committee recommended immediate steps to restore democracy in Nigeria, Doc. CCPR/C/79/Add.64, para. 26. In its Comments on the United Kingdom and Northern Ireland (Hong Kong) of 1995 the Committee recommended, see above. The Committee in its Comments on Burundi of 1994 believed it essential to take urgent measures to reorganize public institutions and to permit all citizens to have access to public service in Burundi, Doc. CCPR/C/79/Add.41, para. 14.

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compliance with provisions of the ICCPR.74 This has also become apparent in various pronouncements of the Committee in connection with States reports. The Committee has urged States parties "to ensure that the provisions of the Covenant are fully implemented" in accordance with their obligations under article 2.75 This unconditional demand would not have been made if the Committee did not think that full implementation was immediately required by the ICCPR.

3. Assessment of the Covenant's Progressive Element As already indicated the provisions of article 2 para. 2 and 40 ICCPR contain a progressive element.76 Article 2 para. 2 was intended to express that real steps are needed to put the Covenant rights into effect.77 In addition, the Covenant enshrines a set of abstract legal principles which require elaboration according to the prevailing living conditions. Taking into account that article 2 calls for an effective protection of human rights, the implementation of the Covenant can never be static.78 Constantly changing living conditions create new dangers for the enjoyment of the rights recognized in the Covenant.79 These changes may be due to technical innovations or new developments in society. For example, increasing migration throughout the world creates new problems which need to be addressed in order to protect human rights effectively.80 Traditionally the freedom of information was primarily concerned with print media. Nowadays, due to technological development, 74

75 76 77 78

79

80

In its Comments on Brazil of 1996 the Committee stated that "the State party is under an obligation to adopt measures that will ensure compliance with article 10." See note 63, para. 25. Comments on Brazil of 1996, ibid., para. 16. Nowak, see note 13, 556. Doc. A/C.3/SR. 1182, in: GAOR (XVII), Agenda item 43, para. 7. Robertson commented that "it would be foolish to pretend that no further progress can be made in the enjoyment of human rights in any country, even after it has ratified the Covenant." A.H. Robertson, "The Implementation System: International Measures", in: Henkin, see note 12,332 et seq., (500, note 48). A. Seibert-Fohr, "The Role of the Reporting System in Respect of the Development of Human Rights Treaties' Application", in: E. Klein (ed.), The Monitoring System of Human Rights Treaty Obligations, 1998, 111 et seq., (118-119). Ibid., 119.


415

new means of information (for example the Internet) bring along new forums and challenges for human rights. Changes in the implementation of human rights may also be due to new convictions in society. It is beyond doubt that the implementation and realisation of genderequality has changed throughout the last decades due to new concepts of gender-equality. Accordingly, the Covenant needs a continuing adjustment of the measures of protection according to the prevailing living conditions. This has been acknowledged by the Human Rights Committee. In its Comments on Brazil the Committee acknowledged the Government's "commitment to ensuring that national legislation is in full conformity with the provisions of the Covenant" and trusted "that it will continue to give high priority to the adoption and implementation of amendments to existing laws ... in order to ensure compliance with the State party's international human rights obligations."81 The need for continuing efforts of implementation is particularly valid for the affirmative obligations under the Covenant. The Human Rights Committee has repeatedly stressed that specific acts are needed in order to ensure the enjoyment of rights enshrined in the Covenant.82 The recognition of such positive rights necessarily involves a dynamic element in the implementation of the Covenant.83 The continuous obligation of implementation is reflected in the state reporting system. Article 40 para. 1 emphasizes that a single act of implementation is not sufficient. It provides for an initial report within one year of the entry into force of the Covenant for the States parties and for subsequent reports "whenever the Committee so requests". Pursuant to its Guidelines the Human Rights Committee requests periodic reports from States parties to the Covenant.84 The continuing reporting duty was intended to induce States parties to adopt further measures to guarantee the effective enjoyment of the rights in law and practice.85 The Human Rights Committee generally welcomes "information on any significant 81 82

83

84

85

Doc. CCPR/C/79/Add.66, para. 17. General Comment No. 3/13 on article 2 (1981), in: HRI/GEN/1/Rev.l, page 4. See also General Comment No. 6/16 on article 6 (1982), ibid., page 7; Buergenthal, see note 24,77. M. Nowak, "Inhalt, Bedeutung und Durchsetzungsmechanismen der beiden UNO-Menschenrechtspakte", in: W. Kalin/ G. Malinverni/ M. Nowak, Die Scbweiz und die UNO-Mensckenrecktspaktey 1991, 3 et seq., (9); Nowak, see note 13,556-557. For the latest Guidelines regarding the form and contents of periodic reports from States parties, see Doc. CCPR/C/20/Rev.2. Doc. A/C.3/SR.1427, in: GAOR (XXI), C.3, Agenda item 62, para. 22.

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new development in regard to the rights referred to in the Covenant" in the reporting system.86 In the periodic reports, the Committee expects modifications of laws and practices affecting the Covenant rights.87 In accordance with article 40 para. 1 it attaches importance to the description of the progress made in the enjoyment of the rights recognized in the Covenant since the last report.88 Equally States parties are required to indicate the difficulties affecting the implementation of the Covenant.89 With the assertion of this progressive element the immediate obligations of States parties arising out of the Covenant is not called into question.

III. Relationship between the ICCPR and Domestic Law The relationship between the Covenant and domestic law of the States parties to the Covenant is crucial when it comes to the question how the Covenant is to be implemented. Three questions are to be distinguished: whether an individual may directly invoke the Covenant provisions before a domestic court, whether the State party is required to incorporate the Covenant into its domestic legal system or whether it is obliged to make it self-executing.90 What rank does the Covenant need to be accorded within the domestic legal system? 86

87

88 89

90

Guidelines regarding the form and contents of initial reports from States parties to the Committee, Doc. CCPR/C/5/Rev.2, para. 7. In its Guidelines regarding the form and contents of periodic reports from States parties it asks that periodic reports describe such modifications. See note 84, para. 6 c. Ibid., para. 6 (f). But the mere fact that difficulties may arise in the implementation of the Covenant does not mean that it only requires progressive implementation. But see Jhabvala, see note 29,96. The term directly applicable is used in this article if a norm of international law can be applied by domestic courts, be it on the basis of domestic law or on the basis of international law, the latter being rather an exception as will be seen below. The term is to be distinguished from the domestic law concept of self-executing treaties though they may at times overlap. Whether a norm of international law is self-executing is merely a question of domestic law. See T. Buergenthal, "Self-Executing and Non-self Executing Treaties in National and International Law", RdC 235 (1992), 309 et seq., (317, 319 et seq.); B. Graefrath, "How Different Countries Implement International


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Even if there is an international obligation to make a treaty directly applicable,91 this does not mean that it can be invoked as a source of law in domestic law because according to the traditional concept it does not automatically transform the treaty into domestic law eo ipso.92 The PCIJ held in 1928 in its Advisory Opinion on the Jurisdiction of the Courts of Danzig that international treaties "cannot, as such, create direct rights and obligations for private individuals."93 According to this concept, an international treaty provision can only be applied by domestic courts if it acquires the status of domestic law and if it is considered to be self-executing pursuant to the domestic law of the respective State party. In practice the methods of implementation vary broadly, not only depending on whether a State party is a monist or dualist country.94 Whether this practice is in accordance with the exigencies under the Covenant will be analyzed below.

1. ICCPR as Directly Applicable Treaty? The traditional view that international law itself does not create any rights or obligations directly enforceable in domestic courts has been somewhat put aside in the context of European Community law.95

91

92 93

94

95

Standards on Human Rights", Canadian Human Rights Yearbook 19841985,3 et seq., (9). For the exigencies for an obligation to make a treaty directly applicable, see under III. 2. Buergenthal, see note 90,320-321. PCIJ Ser. B No. 15 (1928), 3 et seq., (17-18). For a detailed analysis of the Court's holding, see Buergenthal, see note 90,322-325. For a detailed account of the different ways of legislative and judicial implementation, see C. A. Cohn, "The Early Harvest: Domestic Legal Changes Related to the Human Rights Committee and the Covenant on Civil and Political Rights", HRQ 13 (1991), 295 et seq. The Court of Justice of the European Community in the Van Gend en Loos Case concluded that a provision of the Community treaty (article 12) was directly applicable Community law in all EC Member States and therefore created rights enforceable by individuals in the national courts. The Court held that Community law does "not only impose obligations but is also intended to confer rights [upon nationals] which become part of their legal heritage." CML Reports 2 (1963), 129-130.

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The wording of article 2 of the Covenant seems to exclude any direct applicability. Article 2 para. 1 provides that "[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant...". While para. 1 could be read to provide for directly applicable rights, para. 2 seems to contradict this assumption. It requires necessary steps of implementation in accordance with the States parties' constitutional processes to give effect to the Covenant rights. It could be concluded that measures of implementation are necessary before the Covenant becomes applicable on the domestic plane. Taking into account the States parties' constitutional processes, article 2 para. 2 seems to make room for the practice of dualist countries in which international treaties are not per se a source of law, thereby excluding an automatic direct applicability. On the other hand, arguably in reference to the reasoning of the Court of Justice of the European Community in the Van Gend en Loos Case, the Covenant also created a "new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals."96 It is beyond dispute that the universal protection of civil and political rights by a legally binding treaty such as the Covenant created a new legal order of international law and that by ratifying this instrument the States parties limited their sovereignty over a matter which, on such large scale, was previously considered a sole matter of domestic affairs.97 With the entry into force of the Covenant, the individual became a focus of international concern and obligations. Taking into account the individual complaint system under the Optional Protocol to the Covenant,98 it is hard to perceive the individual as being merely an object of this order, rather than a subject entitled to its own rights. While this argument might provide a point of departure for the future interpretation of the Covenant, one has to bear in mind, however, that the concept pronounced by the Court of Justice of the European Community is still considered to be an exception in international law, which seems to be reserved for a supranational organization such as the 96

Ibid.

97

For a description of the evolution of modern international human rights law, see T. Buergenthal, "The Evolution of International Human Rights", in: H. Gros Espiell, Amicorum Liber, Vol. 1,1997,123 et seq. See note 4.

98


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European Community with its own comprehensive powers. This particularity might have been the point of departure of the European Court when it based the new concept on the "new legal order of international law"99 and it would exclude the applicability of the concept under the regime of the Covenant which does not provide for such supranational powers. The Court may also have meant that such a "new legal order of international law" can only be assumed when the drafting State parties intended to create a special regime designed to ensure that individuals can invoke the treaty provisions in domestic courts.100 In that case one needs to look into its drafting history. As mentioned before, the drafters of the Covenant adopted article 2 para. 2 to underscore that the Covenant is not self-operative, but requires legislation to give it domestic effect.101 There was a dispute in the drafting committee as to whether the Covenant could become applicable as part of domestic law at all. The United States proposed a provision according to which a[t]he provisions of this Covenant shall not themselves become effective as domestic law".102 Other drafters did not object to a direct application of the Covenant.103 Therefore, the United States proposal was rejected by the drafting committee.104 The decision not to exclude explicitly domestic effects can be taken as an indication that a direct application was at least deemed to be possible. However, one cannot conclude that the drafters wanted to make the Covenant directly applicable as a matter of international law. State representatives wanted to clarify with the adoption of article 2 para. 2 that the Covenant rights could not be claimed in domestic courts without any incorporating domestic mechanism.105 They tried to exclude any form of automatic transformation of the Covenant 99

100 101 102 103 104 105

An indication of this interpretation can be found in the Court's holding in Costa v. Ente Nazionale Energia Elettrica, "By contrast with ordinary international treaties, the E.E.C. Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply." CML Rev. 2 (1964-1965), 197-198. Buergenthal, see note 90, 328. Doc. E/CN.4/AC. 1/SR.33, page 4; Doc. E/CN.4/AC. 1/SR.43, page 2. Doc. E/CN.4/224. Doc. E/CN.4/SR. 125, pages 7-9. Ibid. 17-19. Doc. A/C.3/SR.1258, in: GAOR (XVIII), Agenda item 48, 245, para. 40; Doc. A/C.3/SR.1182, in: GAOR (XVII), Agenda item 43, 239, paras 4, 7; Doc. A/C.3/ SR.1258, in: GAOR (XVIII), Agenda item 48,242, para. 16.

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into domestic law without consideration of the domestic constitutional processes to transform international treaties. By obliging States parties in article 2 para. 2 to take steps "in accordance with its constitutional processes" to give effect to the Covenant rights, the drafters demonstrated that they did not want to interfere with the varying domestic implementation mechanisms. The drafters who rejected the United States proposal left the question whether the Covenant can be applicable as part of domestic law to the States parties. A direct application by courts of States parties was deemed to be possible. However, a direct application as a matter of international law, that is by virtue of the Covenant itself, was not intended. To sum it up, the drafting history rather contradicts the assumption that the Covenant was drafted to be directly applicable eo ipso.

2. Duty to Make the ICCPR Directly Applicable? Even if the Covenant does not create any rights or obligations directly enforceable in domestic courts, does it mandate to ensure that the treaty provisions as such will be applicable on the domestic plane? To phrase it differently, does the Covenant mandate its incorporation into domestic law so that its provisions are accorded the force of domestic law? Or is it enough to merely adapt municipal law to the provisions of the Covenant? The point of departure should be the above cited Advisory Opinion of the PCIJ on the Jurisdiction of the Courts of Danzig. There the Court held that the question whether the international treaty at issue created an international obligation to confer directly enforceable rights on individuals had to be determined according to the object of the treaty.106 The Court found that the States parties had intended to create a "special legal regime" which required immediate resort to the provisions of the agreement. Whether it is the object of the Covenant to confer directly enforceable rights on individuals will be analyzed below.

106

See note 93.


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a. Textual Interpretation of article 2 There is no explicit obligation to confer on the Covenant the status of domestic law. While a duty to make the Covenant directly applicable could be based on the undertaking of States parties to respect and ensure the Covenant rights to the individual pursuant to article 2 para. 1, article 2 para. 2 provides that the States panics to the Covenant undertake "to adopt such legislative or other measures as may be necessary to give effect" to the Covenant rights. For the Covenant's interpretation it is useful to look at the interpretation given to similar provisions in other human rights instruments. Article 2 para. 2 of the ICCPR has its counterpart in article 2 of the American Convention on Human Rights.107 The Inter-American Court of Human Rights has not so far clearly answered the question of direct applicability.108 In an advisory opinion request by Costa Rica the Court was asked whether article 14 of the Convention is guaranteed to all persons under its jurisdiction by virtue of the obligation assumed by the country. The Court held that there is an internationally enforceable right to reply and that the State party is required to adopt appropriate legislation or other measures giving effect to that right if not already ensured.109 But the court did not explicitly address the issue of direct applicability.110 The European Convention for the Protection of Human Rights and Fundamental Freedoms does not refer to measures of implementation such as article 2 para. 2 of the ICCPR. Pursuant to article 1 of the European Convention the States parties "shall secure to everyone within their jurisdiction the rights and freedoms" of the Convention. 107

Where the exercise of any of the rights or freedoms referred to in article 1 is not already ensured by legislative or other provisions, the States parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those right or freedoms. 108 For a detailed analysis of the Court's jurisprudence on this matter, see Buergenthal, see note 90,338-340. 109 Enforceability of the Right to Reply or Correction (arts 14 paras 1 and 2, American Convention on Human Rights), Advisory Opinion OC-7/86, Inter-Am. Ct. H.R., Sen A, Judgments and Opinions, No. 7, 1986, paras 14, 35. 110 Buergenthal, see note 90, 339-340. But see, J. de Arechaga, "Self-Executing Provisions in International Law", in: K. Hailbronner et al. (eds), Staat und Volkerrechtsordnttng: Festschrift fur Karl Doebring, 1989,409 et seq.

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The argument can be made that this article provides for a duty to make the Convention directly applicable.111 If the States parties "shall secure" the conventional rights pursuant to article 1 it seems to be a fair assumption that the rights need to be made directly applicable, especially because the Convention does not refer to "legislative or other measures" as a step towards implementation as does the Covenant. With directly applicable rights the conventional rights would be secured to all people within a State party's jurisdiction. Article 13 with its guarantee for an effective national remedy in case of a violation of the Convention has also been interpreted as requiring a direct application of the European Convention on the domestic plane.112 Article 13 of the Convention which is similar to article 2 para. 3 of the ICCPR provides for an effective remedy in case its rights, as set out in the Convention, are violated. Another argument for a duty to make the European Convention directly applicable is the way the respective rights have been formulated. Its provisions are precise enough to be directly applied by courts. But this theory was rejected by the European Court of Human Rights in the Swedish Engine Drivers Union Case which left it to the States parties how to implement the Convention. The Court declared that "neither Article 13 nor the Convention in general lays down for the Contracting States any given manner for ensuring within their internal law the effective implementation of any provisions of the Convention".113 However, in Ireland v. United Kingdom, the Court has acknowledged that the conventional rights were intended to be "directly secured to anyone within the jurisdiction of the Contracting States" and that "[t]hat intention finds a particular faithful reflection in those instances where the Convention has been incorporated into domestic law..."114 Despite this seeming preference of a national application of the Convention's provisions, the Court stated that "[t]he absence of a law expressly prohibiting this or that violation does not suffice to establish a breach [of the Convention] since such a prohibition does not represent 111

112 113 114

T. Buergenthal, "The Effect of the European Convention on Human Rights on the Internal Law of Member States", ICLQ, Suppl. No. 11 (1965), 79 et seq., (80-83). See also A. Z. Drzemczewski, European Human Rights Convention in Domestic Law, 1983, 34 et seq.; but see Opsahl, see note 19,160. H. Golsong, Das Rechtsscbutzsystem der EMRK, 1958,8. 20 Eur. Ct. H.R. Ser. A, 1976,1 et seq., (18). 25 Eur. Ct. H.R. Ser. A, 1978,5, (91).


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the sole method of securing the enjoyment of the rights and freedoms guaranteed.1*115 The leeway given to the States parties in the implementation of the European Convention therefore continues to be fairly broad. It could be argued that if direct applicability has not been acknowledged to be required by the European Convention, the wording of which seems to be more open to this theory, it can hardly be deduced from the Covenant which explicitly refers to legislative or other measures of implementation. On the other hand, the Covenant is a different human rights instrument with an autonomous meaning. It may very well be that the Covenant has to be interpreted differently. Article 2 para. 2 calling for legislative or other measures seems to leave the States parties with a considerable amount of latitude in the domestic implementation.116 This has allowed some commentators to assert that article 2 leaves open the status of the Covenant in domestic law.117 Article 2 para. 2 mandates measures to give effect to the rights "[w]here not already provided for by existing legislative or other measures." Therefore, it could be argued that if domestic law already provides for the effective enjoyment of the rights recognized by the Covenant no additional measures are necessary. Inspite of this, the Covenant may mandate legislative and other measures in article 2 para. 2 as additional tools of implementation to elaborate the meaning of the Covenant rights side by side with the Covenant's direct application. The wording of article 2 para. 2 does not necessarily exclude a duty to make the Covenant directly applicable118 which could be based on the duty to respect and to ensure the Covenant rights pursuant to article 2 para. 1 or on the purpose of article 2 in

115 116

117 118

Ibid., 61 Eur. Ct. H.R. Ser. A, 1981,42. F. Jhabvala, "Domestic implementation of the Covenant on Civil and Political Rights", NILR 32 (1985), 461 et seq., (463, 466). See also Cassese who points out that one cannot infer from article 2 para. 2 any argument in favour or against the way the Covenant should be implemented by each state. A. Cassese, "Modern Constitutions and International Law", RdC 185 (1985), 331 et seq., (458, note 113) See also Tomuschat, "National Implementation of International Standards on Human Rights", see note 24, 39. Schachter, see note 12, 312. Tomuschat, "National Implementation of International Standards on Human Rights", see note 24,42.

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general.119 In fact, the provisions of the Covenant requiring States parties not to interfere with individual rights are drafted in such a way that they can be applied by courts.120 However, some of the Covenant's rights may not be detailed enough to provide the courts with the necessary legal standards for judicial application while implementing domestic legislation would.121 b. Drafting History of article 2 para. 2 In order to further elaborate the meaning of article 2, it is useful to go back once again to its drafting history and the intentions expressed during the drafting. As already pointed out, the Commission on Human Rights and the Third Committee wanted to underscore with the adoption of article 2 para. 2 that the Covenant was not self-operative but required measures to give it domestic effect. They undoubtedly held specific steps of implementation to be necessary to give effect to the Covenant rights. Knowing the differences between monist and dualist states, the drafters did not want to interfere with the different concepts of transformation prevalent in the States parties to the Covenant.122 Even if some drafters wanted to clarify with article 2 para. 2 that the Covenant rights could not be claimed before domestic courts per se without any domestic incorporating measure,123 this does not rule out an obligation of the States parties to incorporate the Covenant into domestic law in accordance with their constitutional processes, be it through legislative act or by automatic incorporation. As already demonstrated, by rejecting the proposal according to which the provisions of the Covenant should not themselves become effective as domestic law,124 a direct application of the Covenant was at least not ruled out. This rejection has been interpreted as an expression of the drafters' intention to avoid any provision which might affect the domestic con-

119 120

121 122 123

124

See under IIL 2. c. Tomuschat, "National Implementation of International Standards on Human Rights", see note 24, 58. For a solution of this problem, see under V., text accompanying note 371. Graefrath, see note 90,6. Doc. A/C.3/SR.1258, in: GAOR (XVIII), Agenda item 48, 245, para. 40; Doc. A/C.3/SR.1182, in: GAOR (XVII), Agenda item 43, 239, para. 4, 7; Doc. A/C.3/SR.1258, in: GAOR (XVIII), Agenda item 48,242, para. 16. See text accompanying note 104.

Seibert-Fobr, Domestic Implementation of the ICCPR

425

stitutional processes to transform international treaties.125 Therefore, at least the way of transformation needs to be for the States parties to choose. While the drafting history does not evidence the intention of the drafters to require States parties to make the Covenant directly applicable on the domestic plane, the option of direct application was not explicitly ruled out. The major objectives of the drafters, namely to give room for different constitutional processes to transform international treaties and to require additional steps of implementation, can be reconciled with an obligation to make the Covenant directly applicable in domestic law. c. Purpose and Context of article 2 The overriding purpose of article 2 and of the entire Covenant is the most effective protection of its human rights.126 The effective enjoyment and protection of the rights enshrined in the Covenant is the ultimate yardstick to which the implementation measures need to measure up. It has been argued that the ICCPR as a universal instrument seeking the protection of human rights in countries with different legal and political structures requires that the States parties are free to chose how to implement the treaty obligations into their domestic systems so that their diversity is not abolished.127 However, there is a tension between the goal to make room for different constitutional processes and the goal to ensure the effective enjoyment of the Covenant rights so that neither of these maxims can claim absolute validity. Even if the Cove125

126

127

Nowak, see note 13, 54. Other commentators have interpreted the drafters' intention to leave the question whether to incorporate the Covenant into domestic law to national law. Schachter, see note 12, 314. Pursuant to article 2 para. 2 the States parties undertake "to give effect". Article 40 sets up a state reporting system to "give effect to the rights recognized" and speaks about the "enjoyment of those rights". Furthermore, article 2 para. 3 of the Covenant obliges States parties "to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy". Graefrath, a former member of the Human Rights Committee, based this assertion on article 1 of the Covenant which provides for the right to selfdetermination. B. Graefrath, Menschenrechte und Internationale Kooperation, l0 Jahre Praxis des Internationalen Afenschenrecbtskomitees, 1988, 62; Graefrath, see note 90,6 seq.

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nant needs to be made applicable by domestic courts to make the Covenant rights more effective, this can be done by making allowance for different methods of transformation of international treaties. There seems to develop a preference for the Covenant's direct application in order to ensure the most effective protection of the Covenant rights. Tomuschat, a former member of the Human Rights Committee, while acknowledging that the Covenant does not contain a clause mandating a certain form of incorporation points out that an incorporation of the Covenant in form of a domestic statute "is the simplest way to ensuring that everyone is able to invoke any right" of the Covenant.128 He elaborated that the Covenant was apt for incorporation and for enforceability as such with direct effect because it provides for individual rights immediately exercisable, not merely state obligations to create such rights.129 He went so far to assert that an incorporation of the Covenant provides a higher degree of legal stability and reliability than keeping it outside the national legal order.130 Similarly, according to Jhabvala, an incorporation, while not formally required would probably be preferable wherever possible.131 The argument could be made that the emphasis on the effective enjoyment of the Covenant rights together with the need for an effective remedy requires States parties to make the Covenant directly applicable on the domestic plane. Article 2 para. 3 clarifies that the Covenant creates rights, which can be enforced directly through domestic remedies.132 Arguably the ultimate yardstick needs to be the Covenant itself and therefore a direct applicability is required to ensure an effective remedy. On the contrary, it has been argued that it is enough if the individual can invoke national law reflecting the Covenant rights and thereby indirectly the Covenant.133 If a national system takes international obligations as self-evident, or if courts in dualist countries consider the Covenant as an interpretative guidance, the effect may be similar to the one 128

129 130 131 132 133

Tomuschat, "National Implementation of International Standards on Human Rights", see note 24,39 seq. Ibid., 40. Ibid., 51. Jhabvala, see note 116,463,483. Nowak, see note 13, page XXII, para. 14. This is the position of the United Kingdom, see Summary Record of the 1433rd Mtg. Consideration of the United Kingdom's fourth periodic report, Doc. CCPR/C/SR.1433, para. 15.


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of monist countries where the Covenant can be applied directly.134 Therefore, if a direct application of the Covenant is not mandated, article 2 para. 2 at least requires that national authorities interpret domestic law in such a way as to make the Covenant applicable at the national level in order to give effect to the Covenant.135 However, it has been held that domestic remedies do not seem to be effective as required by article 2 para. 3 if the remedy organ is not authorized to apply the international provision directly at the national level.136 If a statute transforms the provisions of the Covenant into domestic law without any formal reference to the Covenant itself the courts are not required to interpret the provisions by reference to the jurisprudence of the Human Rights Committee.137 This opens the way for discrepancies between the interpretation of implementing domestic law and of the Covenant itself.138 Furthermore, if a national legal system does not provide for a right recognized in the Covenant, it is not possible to fill such a gap without the Covenant's incorporation into domestic law because there is no point of reference for an indirect application of the Covenant.139 A direct application of the Covenant could be the ultimate safeguard in a case of incomplete or lacking measures of implementation. Another advantage of the Covenant's direct application is its prevalence over older legislation, which is incompatible with the Covenant.140 It has been argued that making the Covenant part of domestic law is the more effective method of implementation of human rights standards in cases where the provisions are not self-executing under domestic law

134 135 136

137

138

139 140

Buergenthal, see note 90,319. Cassese, see note 116,458. Opsahl, see note 19,176; J. J. Paust, "Avoiding "fraudulent" executive policy: Analysis of non-self-execution of the Covenant on Civil and Political Rights", DePaul Law Review 42 (1993), 1257 et seq., (1259). A similar situation arose in the former colonies of the United Kingdom which incorporated into their constitutions many of the rights proclaimed in the European Convention on Human Rights without any explicit reference to this international instrument. T. Buergenthal, "Modern Constitutions and Human Rights Treaties", Colum. J. Transnat'l L. 36 (1997), 211 et seq., (220). Tomuschat, "National Implementation of International Standards on Human Rights", see note 24,49 seq. Ibid., 50. Ibid., 51.

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or if they require affirmative action.141 However, if there is a duty to make the Covenant directly applicable by domestic courts States parties are required to make it self-executing or to incorporate it in a way that it can be applied directly on the domestic plane. Since state authorities rather apply rules which form part of the domestic legal order than refer to international instruments which are not formally incorporated, this may be the more effective method of implementation. Once incorporated into domestic law the Covenant rights compete with domestic law even if no further implementing legislation is enacted. It is beyond doubt that a direct application of the treaty cannot be the sole measure of implementation, especially where positive steps are required as in arts 2 para. 3, 9 para. 5, 14 para. 6,23 and 24.142 But while incorporation would not make additional measures of implementation unnecessary, it would certainly strengthen the implementation of the Covenant mandated by article 2 para. 2 as a supplementary measure. Coming back to the theory of the PCIJ in its Advisory Opinion on the Jurisdiction of the Courts of Danzig, one can conclude that the object of the ICCPR is "to create a special legal regime" governing the relations between individuals and States parties which requires immediate resort to its provisions.143 It can be argued that, pursuant to the specific nature of the Covenant as a human rights instrument and its purpose to make the Covenant rights effective, a direct applicability is required. This interpretation is based rather on the general purpose than on an explicit intent of the drafters or an explicit textual obligation. Admittedly, it is true that in traditional international law the duty to make a treaty directly applicable on the domestic plane is the exception rather than the rule. However, this rule does not seem to be adequate in the area of human rights where international treaties deal with the relationship of the States parties to individuals and therefore necessarily target domestic issues. Since human rights treaties reach into domestic areas the traditional strict distinction between national and international law cannot be as strict as in other areas of international law focusing on the relationship between states. The conventional ways of implementation of international treaties do not seem to be adequate for the Covenant

141 142

143

Graefrath, see note 90,11. Tomuschat, "National Implementation of International Standards on Human Rights", see note 24,44. This was the reason why the Court held the Beamtenabkommen in this case to be directly applicable. See note 93.


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because of this blurred line between domestic and international law.144 Correspondingly, a trend towards alignment of domestic and international law can be observed in practice.145 d. Interpretation by the Human Rights Committee In its early statements the Human Rights Committee pointed out that the choice of how to implement the Covenant is largely left to the States parties. In its General Comment on "Implementation at the national level" from 1981 the Committee noted that "article 2 of the Covenant generally leaves it to the States parties concerned to choose their method of implementation in their territories within the framework set out in that article."146 As to specific rights, the Committee in its General Comment on article 17 in 1988 acknowledged that "it is for each State to determine [the measures to be adopted to protect minors] in the light of the protection needs of children in its territory and within its jurisdiction."147 Pursuant to the General Comment on nondiscrimination of 1989 "[i]t is for the States parties to determine appropriate measures to implement the relevant provisions" on nondiscrimination.148 In 1998 in A, and S.N. v. Norway, the Committee rejected the author's assertion that since the Covenant had not been incorporated into the Norwegian legal system, a complaint before Norwegian courts was a priori not an effective remedy.149 Mr. Ganji, a member of the Committee, said during the consideration of an early 144

145

146

147

148

149

Tomuschat, "National Implementation of International Standards on Human Rights", see note 24,31. For cases of reception of human rights treaties and international jurisprudence, see T. Buergenthal, "International Tribunals and National Courts: The Internationalization of Domestic Adjudication", in: U. Beyerlin et al. (eds), Recht zwiscben Umbruch und Bewahrung. Festschrift R. Bernhardt, 1995,687 et seq., (687-703). Also Buergenthal, see note 137,216-220. General Comment No. 3/13, see note 82, para. 1; HRC Report, in: GAOR, Suppl. No. 40, Doc. A/33/40, para. 117: "The method used to integrate the provisions of the Covenant in domestic law is a matter of each State party to decide in accordance with its legal system and practice". General Comment No. 17/35 on article 24 (1989), in: HRI/GEN/1/Rev.l, 24, para. 3. General Comment No. 18/37 on Non-discrimination, in: HRI/GEN/1/ Rev. 1,26, para. 4. Comm. No. 224/1987 (1988), para. 6.2, HRC Report, in: GAOR, Suppl. No. 40, Doc. A/43/40, para. 246. See also Schachter, see note 12,315.

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Danish report that "[t]he incorporation of treaty provisions into domestic law became necessary only when such provisions were not in keeping with a pre-existing legal situation.150 However, the Committee has never seen an obstacle in article 2 for States parties, inferring directly enforceable obligations from the Covenant.151 In more recent pronouncements, the Human Rights Committee has also left the States parties with a certain leeway in the implementation of the Covenant. In 1993 in Araujo-Jongen v. The Netherlands, it noted that there are various methods applied by States parties to incorporate the Covenant.152 Hence, the Committee did not require a single method of incorporation. It further held that the question of whether a provision of the Covenant acquires direct effect in a State party is a "matter of domestic law" outside the competence of the Committee.153 The dualist approach according to which the status of the Covenant in domestic law is determined by national law therefore persists. In 1994 the Committee in Roberts v. Barbados accepted that the Covenant itself was not made part of domestic law as long as the provisions of the Covenant were made effective. It declared that "while the Covenant is not part of the domestic law of Barbados .., the State party has nevertheless accepted the legal obligation to make the provisions of the Covenant effective".154 In several instances the Committee left the States parties with the choice between making the Covenant itself part of domestic law or giving effect to the rights of the Covenant in a more indirect way, that is by giving due consideration to the Covenant in the elaboration and interpretation of domestic law. This became apparent in the Committee's Comments on Sri Lanka in 1995 where it did not require a direct application but recommended that "due consideration be given to the provisions of the Covenant" during the reform of the Constitution.155 Accordingly, in its Comments on Hungary in 1993 the Committee recommended that the State Party should fully incorporate 150

151

152

153

154 155

Summary Record of the 54th Mtg., Consideration of the report of Denmark, Doc. CCPR/C/SR.54, para. 47. Tomuschat, "National Implementation of International Standards on Human Rights", see note 24,42. Comm. No. 418/1990 (1993), HRC Report, in: GAOR, Suppl. No. 40, Doc. A/49/40, Vol. II, 114, (118). Ibid., see also APL v. The Netherlands, Comm. No. 478/1991 (1993), para. 6.5. Comm. No. 504/1992 (1992), Doc. CCPR/C/51/D/504/1992, para. 6.3. Comments on Sri Lanka, Doc. CCPR/C/79/Add.56, para. E.


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the Covenant into domestic law or give direct effect to it.156 In its Comments on Ireland in 1993, noting that the Covenant cannot be directly invoked in Irish courts, the Committee demanded that "the need to comply with the international obligations should be taken fully into account by the judiciary".157 The Committee thereby made the judiciary also responsible for the implementation of the Covenant. However, during these years the leeway accorded to the States parties by the Human Rights Committee had already diminished. If a state decided not to make the Covenant directly applicable, the measures of implementation were clearly defined by the Committee: the Committee criticized legal systems for not containing all the rights set forth in the Covenant158 and recommended the incorporation of the provisions of the Covenant into domestic law.159 This makes clear that article 2 at least requires that all rights set forth in the Covenant need to be part of the domestic legal system. According to the Committee it is not enough to rely on unwritten rights. Codification of the Covenant rights is required. In its Concluding Observations on the United Kingdom of Great Britain and Northern Ireland of 1995 the Committee expressed its concern that "implementation of the Covenant is impeded" by the non-incorporation of the Covenant into domestic law and the absence of a constitutional Bill of Rights.160 It emphasized the need for incorporation or a bill of rights "under which legislative or executive encroachment on Covenant rights could be reviewed by the courts" giving the States parties the choice between the two measures.161 This was a harsh criticism of the British legal tradition of unwritten fundamental rights and showed a clear preference for codification. Concluding its consideration of the second periodic report of Ireland the Committee in 2000 urged that country to 156 157 158

159

160

161

Comments on Hungary, Doc. CCPR/C/79/AddJ22, para. E.I. Comments on Ireland, Doc. CCPR/C/79/Add.21, para. 18. Comments on Sri Lanka, see note 155, para. D; Comments on Ireland, see above. Comments on Iceland, Doc. CCPR/C/79/Add.26, para. 11 (1993). An indirect incorporation was sought hereby. Concluding Observations on the United Kingdom of Great Britain and Northern Ireland, Doc. CCPR/C/79/Add. 55, para. 9, HRC Report, in: GAOR, Suppl. No. 40, Doc. A/50/40, paras 408-435. Meanwhile the United Kingdom enacted the Human Rights Act of 1998 with regard to the European Convention on Human Rights. Ibid. para. 20.

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incorporate the Covenant into its domestic legislation. Similarly, in its Comments on Iceland's second periodic report in 1993 the Committee expressed its concern that there were no written fundamental human rights in the Icelandic Constitution but only "reliance on unspecified unwritten fundamental rules" which did not "adequately meet the requirements of Article 2 (2)". It went on to point out: "No matter how effective the Icelandic constitutional tradition of relying on unwritten fundamental rules and principles may be, codification of the rules governing the protection of human rights is an important element of protection".162 This statement is rather striking. It is doubtful why codification should be an important element of protection when reliance on unwritten rules would be also effective. After all, the effective protection of civil and political rights is the ultimate purpose of article 2. If it is not the effectiveness which requires codification, what is it that demands codification? It seems hard to justify such an interpretation if the obligation of codification can neither be deduced from the wording of article 2 para. 2 nor from its purpose. The reason for this statement seems to be a general suspicion among the members of the Committee that unwritten rules do not provide as much protection as codified ones.163 Some members of the Committee early were in favor of making the Covenant part of domestic law and its direct application by domestic courts, at least where it is not incorporated into domestic legislation. During an early consideration of the legal situation in the United Kingdom some members of the Committee thought it was advisable to confer upon the Covenant the legal force of statutory law.164 They argued that despite the principle of freedom of states as to how to discharge their international obligation, the States parties were obliged under article 2 para. 1 to respect all rights of the Covenant. Because of the fragmentary character of the case law in the United Kingdom, there was a high probability that the substance of the Covenant was not entirely

162 163

164

See note 159, para. 6. However, in its latest Concluding Observations on the British Crown dependencies of Jersey, Guernsey and the Isle of Man the Committee merely urged the State party "to ensure that all Covenant rights are given effect in domestic law", Doc. CCPR/C/79/Add.ll9, para. 8. Summary Record of the 69th Mtg., Consideration of the periodic report of the U.K., Doc. CCPR/C/SR.69, para. 83.


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protected by British domestic law.165 Therefore it should be possible to invoke the provisions of the Covenant before domestic tribunals and administrative agencies. As early as 1978, during the consideration of the Swedish report, Tomuschat stressed that in a country which had chosen to bring domestic legislation into line with the Covenant without formally incorporating it into domestic law and without making the Covenant part of its domestic law, an individual should have the right directly to invoke its provisions before the courts.166 He argued that the rights accorded by the Government to the individual could not depend upon the method of implementation in various countries.167 Later he elaborated that individuals are not limited to claim that national law enacted to implement the Covenant be correctly applied. The legal entitlement under article 2 para. 3 related directly to the Covenant and therefore the right to a remedy included the right of access to the text of the Covenant.168 He further recommended that the courts of states which have chosen to incorporate the Covenant in its domestic legal order should not hesitate to consider the Covenant rights as self-executing provisions.169 In sum, the arguments by the Committee members for a direct application are based on article 2 paras 1 and 3, as well as on more general considerations of equality and effective protection. Direct application is deemed to be a safeguard. The preference by some of its members of an obligation to make the Covenant directly applicable has gradually gained ground in the Human Right Committee in recent years. In its Concluding Observations on Nepal in 1994 the Human Rights Committee stated "the need to clearly define the place of the Covenant within the Nepalese legal system to ensure that domestic law[s] are applied in conformity with the 165

166 167

168

169

As already pointed out, this argument later led the Committee to require the codification of the Covenant rights in the United Kingdom. See text accompanying notes 160-161. HRC Report, in: GAOR, Suppl. No. 40, Doc. A/33/40, para. 70. Summary Record of the 52th Mtg., Consideration of the periodic report of Sweden, Doc. CCPR/C/SR.52, para. 38. Tomuschat, "National Implementation of International Standards on Human Rights", see note 24, 59. However, he recognized that the question whether a provision possesses a sufficient degree of precision to be directly applied by domestic courts is to be determined by each domestic system according to its own criteria. Ibid., 44. Tomuschat, "National Implementation of International Standards on Human Rights", see note 24,42.

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provisions of the Covenant."170 The principle of direct applicability of the Covenant and the possibility of invoking it directly before the courts was welcomed by the Committee in the case of the Libyan Arab Jamahiriya.171 Regularly the Committee asks States parties to indicate cases in which the provisions of the Covenant were directly invoked before state organs, including the courts172 and it expresses its concern that the Covenant rights cannot be invoked directly before domestic courts.173 Recently, in its Concluding Observations on Mongolia, the Committee recommended that the public should be informed that the Covenant may be relied on in the courts in order to obtain remedies.174 While up to 1993 the Committee only asked that the Covenant itself be given direct effect or for incorporation of the rights into domestic law so that the Covenant can be applied indirectly,175 it now requires the Covenant's direct application whether it is incorporated or becomes part of domestic law upon ratification. This became clear in the following pronouncements: in its Comments on Nepal the Committee stressed the "need the provisions of the Covenant to be fully incorporated into domestic law and made enforceable by domestic courts" (emphasis added).176 In its 1996 Concluding Observations on Gabon the Committee expressed its regrets that the Gabonese Constitution did not make a specific reference to the Covenant177 and recommended "that the Covenant be incorporated in the domestic legal order and that its provisions be made directly applicable before the courts" (emphasis added).178 Recently, in its Concluding Observations on Guyana of 2000 the Committee was concerned that "not all Covenant rights have been 170 171

172

173

174

175 176 177 178

Concluding Observations on Nepal, Doc. CCPR/C/79/Add.42, para. 6. Concluding Observations on the Libyan Arab Jamahiriya of 1998, see note 66, para. 4. Summary Record of the 1426th Mtg. Consideration of the 4th periodic report of the Russian Federation, Doc. CCPR/C/SR.1426, para. 14 I. (b); Comments on Latvia, Doc. CCPR/C/79/Add.53, para. E., Comments on Estonia, see note 69, para. 24. Concluding Observations on Zimbabwe, HRC Report, in: GAOR, Suppl. No. 40, Doc. A/53/40, Vol. I, H., para. 211; Concluding Observations on Israel, ibid. L., para. 305. Concluding Observations on Mongolia, Doc. CCPR/C/79/Add.l20, para. 7. Comments on Hungary, see note 156, para. E.1. See note 170, para. 12. Concluding Observations on Gabon, Doc. CCPR/C/79/Add.71, para. 8. Ibid., para. 18.


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included in the current Constitution and therefore cannot be directly enforced".179 It recommended that Mongolia should explain to the public that the Covenant may be relied on in domestic courts in order to obtain remedies.180 With regard to article 9 para. 4 of the Covenant, the Committee in A v. Australia held that domestic courts charged with the review of the lawfullness of detention must have the power to order release if the detention is incompatible with the Covenant itself.181 Pursuant to article 9 para. 4, anyone deprived of his liberty shall be entitled to take proceedings before a court, in order that the court may decide on the "lawfulness of his detention". The Committee interpreted "lawfulness" not only as compliance with domestic law but also as compliance with the provisions of the Covenant. Accordingly, domestic courts need to be able to apply the Covenant directly even if it has not been incorporated into domestic law in order to determine the lawfulness of the detention. States parties that traditionally do not incorporate international treaties have attracted criticisms from the Committee, as already seen in the case of the United Kingdom and Ireland. In 1996 the Committee went so far to recommend to Denmark to "take appropriate measures to ensure the direct application of the provisions of the Covenant into domestic law" (emphasis added).182 If international treaties are not considered to be self-executing by a State party, as in the case of India, the Committee recommends "that steps be taken to incorporate fully the provisions of the Covenant in domestic law, so that individuals may invoke them directly before the courts" (emphasis added).183 In its Concluding Observations on Israel in 1998 the Committee noted "with regret that, although some rights provided for in the Covenant are legally protected and promoted through the Basic Laws, municipal laws, and the jurisprudence of the courts, the Covenant has not been incorporated in Israeli law and cannot be directly invoked in the courts.184 In its Concluding Observations on the United Republic of Tanzania in 1998 the Committee even went so far as to say: "While the Committee is encouraged to hear that the courts are beginning to refer 179 180 181 182

183 184

Doc. CCPR/C/79/Add.l21, para. 6. Concluding Observations on Mongolia, see note 174. Comm. No. 560/1993 (1997), Doc. CCPR/C/59/D/560/1993, para. 9.5. Concluding Observations on Denmark, Doc. CCPR/C/79/Add.68, para. 17. Concluding Observations on India, Doc. CCPR/C/79/Add.81, para. 13. See note 173, para. 305.

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to the Covenant in judgments, it recommends that the Covenant be given formal recognition and applicability in domestic law (art. 2)" (emphasis added).185 This shows that it is no longer enough if domestic law protects the rights recognized by the Covenant so that the Covenant has its counterpart in domestic law which can be invoked in domestic courts. States parties need to ensure that the Covenant itself can be applied directly by domestic courts. The Covenant needs its own formal place in the domestic legal system so that the Covenant provisions themselves become enforceable by domestic courts. To sum up, there has been a development in the practice of the Human Rights Committee. While originally the choice of the method of implementation was left to the States parties, the Human Rights Committee in recent years has increasingly elaborated the standards for implementation. Earlier, the Covenant did not need to be part of the domestic legal system. Since 1993 the Committee started to require incorporation or direct application of the Covenant. The following years brought a period of transition. The requirements for incorporation were expanded. States parties were asked to codify all Covenant rights domestically. The intention of the Committee was to ensure that individuals are able to have encroachments on Covenant rights reviewed by the courts, either on the ground of incorporation or a bill of rights containing the rights outlined by the Covenant.186 Gradually the Committee started requesting not only the incorporation of the Covenant rights but also the direct application of the Covenant provisions themselves. Today States parties are left with the choice between considering the Covenant self-executing or incorporating it into domestic law so that the Covenant can be directly invoked in the courts. The reason for this development in the interpretation of article 2 by the Human Rights Committee from free choice of implementing measures to more stringent requirements for incorporation is a new focus on the effectiveness of the implementation and on the effective domestic remedies to challenge violations of the Covenant. By requiring that all rights set forth in the Covenant be contained in the States parties' legal systems the Committee wants to make sure that individuals are not prevented from invoking the rights conferred under the Covenant be185

186

Concluding Observations on the United Republic of Tanzania, Doc. CCPR/C/Add.97, in: HRC Report, GAOR, Suppl. No. 40, Doc. A/53/40, Vol. 1, P, para. 394. Concluding Observations on the United Kingdom of Great Britain and Northern Ireland, see note 160, paras 408-435.


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fore national courts.187 The requirement that the Covenant rights need to be directly enforceable by domestic courts is meant as a safeguard for the effective enjoyment of all Covenant rights by the individual. Generally speaking this instrumentalizes the national enforcement systems as mechanisms for the enforcement of international human rights. There is a general mistrust by the members of the Committee as to the effectiveness of an indirect application of the Covenant. For example Mrs. Medina Quiroga pointed out during the consideration of the fourth periodic report of the United Kingdom that British courts only very rarely referred to the Covenant.188 Buergenthal pointed to the disadvantages of the British system, according to which the Covenant and the European Convention did not create a formal cause of action.189 As Prado Vallejo, another member of the Committee, during the consideration of Ireland's initial report put it, the Covenant can be applied much more easily if the provisions of the Covenant can be invoked before national courts.190 According to his colleague, Eckhardt Klein, being able to influence the application of the law if invoked before the

187

188

189

190

As pointed out earlier, the Human Rights Committee criticized the Sri Lanka legal system for not containing all the rights set forth in the Covenant because it prevented individuals from invoking the rights conferred under the Covenant before national courts. Comments on Sri Lanka, see note 155 para. D. Also Concluding Observations on Zimbabwe, see note 173, para. 211. Summary Record of the 1432th Mtg., Consideration of the 4th periodic report of the United Kingdom and Northern Ireland, Doc. CCPR/C/SR.1432, para. 82. However, the British representative during the consideration of this report pointed to statistics indicating that courts in some states which had incorporated the Covenant referred to the Covenant even less frequently. Summary Record of the 1433rd Mtg., see note 133, para. 15. Summary Record of the 1432rd Mtg., see above, para. 90. More recently, the United Kingdom enacted the Human Rights Act of 1998 enabling British citizens to petition British courts for protection under the European Convention on Human Rights. Summary Record of the 1239th Mtg., Consideration of Ireland's initial report, Doc. CCPR/C/SR.1239, para. 95. His colleague Herndl even went so far as to maintain that if an international instrument is not incorporated into domestic legislation the administrative authorities and courts cannot apply it. Cf. Summary Record of the 1235th Mtg., Doc. CCPR/C/SR.1235, para. 46.

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courts was not the same as having to be applied as domestic law.191 Therefore, by asking the States parties to take measures so that the Covenant itself can be invoked and applied in the domestic courts, the Committee wants to ensure that there are effective domestic remedies to challenge violations of the Covenant. This reflects an interpretation that, as outlined above, is based rather on the purpose than on an explicit obligation of article 2 or a definite intent of its drafters. The obligation to respect and ensure the Covenant rights pursuant to article 2 para. 1 and the right to an effective remedy pursuant to article 2 para. 3 play a vital role in this concept. It goes without saying that the Committee still requires further steps of implementation beyond the incorporation of the Covenant. But if the legislature fails to enact implementing legislation, individuals shall not be prevented from invoking the Covenant rights in court. While a number of States parties traditionally have refused to make the Covenant part of their domestic law, more and more States parties now comply with the recently elaborated requirements for implementation. Examples of States parties where the Covenant can be invoked directly before the courts are France,192 Finland,193 the Czech Republic194 and the Libyan Arab Jamahiriya.195 With regard to the European Convention, the United Kingdom enacted the Human Rights Act under which British citizens are able to petition British courts for protection under the European Convention. The Act gives effect to rights and freedoms guaranteed under the Convention and requires all courts to take Convention rights into account. A similar step might be taken in future with regard to the ICCPR. 191

192

193

194

195

Summary Record of the 1534th Mtg., Consideration of the periodic report of Denmark, Doc. CCPR/C/SR.1534, para. 52. Article 55 of the French Constitution of 4 June 1958. International treaties take precedence over French domestic law, see Concluding Observations on France of 1996, Doc. CCPR/C/79/Add.80. See also Faurisson v. France, Comm. No. 550/1993 (1996), Doc. CCPR/C/58/D/550/1993. Finland has incorporated the Covenant into domestic law, see Finland's observations in Sara et al v. Finland, Comm. No. 431/1990 (1994), Doc. CCPR/ C/50/D/431/1990, para. 4.7. Article 10 of the Czech Constitution, article 36 of the Charter of Fundamental Rights and Freedoms, see Josef Frank Adam v. The Czech Republic, Comm. No. 586/1994 (1996), Doc. CCPR/C/57/D/586/1994, para.8.9. Also Malik v. Czech Republic, Comm. No. 669/1995 (1998), Doc.CCPR/ C/64/D/669/1995. For further examples, cf. Nowak, see note 13, 54. See note 66.


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3. Domestic Normative Rank of the Covenant Another question raised is which normative rank the Covenant rights require within the domestic legal order, that is, the place in the hierarchy of sources of law of the State party. Accordingly, the Human Rights Committee in Tae Hoon Park v. Republic of Korea found "it incompatible with the Covenant that the State party has given priority to the application of its national law over its obligations under the Covenant."196 Recently, the Committee expressed its concern about "the increasing trend [in Zimbabwe] to enact parliamentary legislation and constitutional amendments to frustrate decisions of the Supreme Court that uphold rights protected under the Covenant and overturn certain laws incompatible with it."197 According to the Committee the Covenant requires its "effective precedence over any inconsistent legislative act".198 Such approach is mandated by the overarching principle of the Vienna Convention on the Law of Treaties, namely that treaty based obligations must be complied with in good faith. In order to ensure conformity between national law and international obligations of States parties, the Committee frequently instructs States parties to review draft legislation and existing legislation to ensure their compatibility with the Covenant199 and welcomes domestic recognition of the Covenant's supremacy over domestic law.200 As the Committee in its General Comment No. 24 pointed out, "[d]omestic laws may need to be altered properly to reflect the requirements of the Covenant".201 The status of the Covenant in the domestic legal system needs to be clearly defined to ensure that domestic laws are applied in accordance with the provisions of the Covenant.202 Domestic law must

196 197 198 199

200

201 202

Comm. No. 628/1995 (1998), Doc. CCPR/C/64/D/628/1995, para. 10.4. Concluding Observations on Zimbabwe, see note 173, para. 211. Comments on Estonia, see note 69, para. D. 10. Comments on Ireland, see note 157, paras 9, 18; Comments on Estonia, see note 69, para. 24; Concluding Observations on Zimbabwe, see note 173, para. 213; Concluding Observations on Mongolia, see note 174, para. 7. Concluding Observations on Belarus, HRC Report, in: GAOR, Suppl. No. 40, Doc. A/53/40, Vol. 1, E., para. 142; Concluding Observation on Costa Rica, Doc. CCPR/C/79/Add.l07, para. 3; Concluding Observation on Slovakia, Doc. CCPR/C/79/Add.79, para. 4. General Comment No. 24/52, see note 64, para. 12. Concluding Observations on Nepal, see note 170, para. 6. Also Concluding Observations on the Libyan Arab Jamahiriya, see note 66, para. 6; Con-

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be interpreted and applied in accordance with the obligation under the Covenant.203 Therefore, States panics are asked whether courts may declare invalid legal norms which are inconsistent with the Covenant. Most States parties have undertaken a wide range of reforms, from constitutional amendments, new codes, to the repeal of single provisions to ensure the compatibility of domestic law with the Covenant.204 Some states have developed specific mechanisms to check new legislation for its compatibility with the Covenant.205 Not only legislation but even the Constitution needs to be in accordance with the Covenant. The Human Rights Committee has repeatedly expressed its concern over the lack of clarity concerning the resolution of conflicts between the Covenant and the Constitution of a State party.206 One might argue that in case of a conflict between the Covenant and the Constitution of a State party the consent to be bound by the Covenant is invalid, as a violation manifest and concerning a rule of the state's internal law which is of fundamental importance pursuant to article 46 para. 2 of the Vienna Convention.207 The Human Rights Committee, however, requires a rank that is higher than the Constitution. In its Concluding Observations on Morocco the Committee noted that "steps remain to be taken to harmonize the Constitution with the Covenant".208 In 1998 the Committee in its Concluding Observations on Jamaica expressed its appreciation "that in the envisaged review of the Jamaican Constitution, any provision in contradiction with the Covenant... would be eliminated".209

203 204

205

206

207

208

209

eluding Observations on Lithuania, HRC Report, in: GAOR, Suppl. No. 40, Doc. A/53/40, Vol.1, E, para. 166. Comments on Ireland, see note 157, para. 9. For a detailed account of legislative reforms in States parties to the Covenant, see Cohn, see note 94,304 seq. For examples, see ibid., 314 seq. For the obligation to establish monitoring and control mechanisms, see under IV. 2. d. Comments on Iceland, see note 159, para. 7; Concluding Observations on Slovenia, Doc. CCPR/C/79/Add.40, para. 8. It is questionable whether such a conflict is "manifest" and "objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith." Cf. Convention, article 46 para. 2. Concluding Observations on Morocco, Doc. CCPR/C/79/Add.44, para. B 4. Concluding Observations on Jamaica, HRC Report, in: GAOR, Suppl. No. 40, Doc. A/53/40,0Vol.1,B., para. 72.


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The reasons for requiring the compatibility of the Constitution with the Covenant were given by the Committee in its Concluding Observations on Armenia in 1998. The Committee explained its "grave concern" about the incompatibility of several provisions of the Constitution with the Covenant with the fact that "[t]he inconsistency of domestic law with provisions of the Covenant not only engenders legal insecurity, but is likely to lead to violations of rights protected under the Covenant."210 This statement indicates that the Covenant not merely creates obligations of result but also obligations of conduct. It is not enough to refrain from violations of the rights. The States parties need to make sure that their legal order is set up in such a way that it unlikely leads to violations. This has an impact on the question how and at which level of domestic law the Covenant needs to be incorporated. Whereas Tomuschat and Graefrath, both early members of the Committee, in 1984 and 1988 held that a state may introduce the Covenant at different levels within the hierarchy of its legal sources,211 the Committee meanwhile has gone much further. States parties have the choice between either fully incorporating the Covenant into domestic law with a rank superior to that of domestic legislation or giving it the status of domestic law, so that in case of conflict between a provision of the Covenant and domestic law the former prevails.212 If the Covenant is not made self-executing the Committee now envisages an incorporation of the Covenant rights into the Constitution. In its Comments on Iceland of 1993 the Committee recommended "amending the national Constitution in order to reflect adequately the provision of the International Covenant on Civil and Political Rights."213 The Committee criticized Nigeria in 1996 for not 210

211

212

213

Concluding Observations on Armenia, Doc. CCPR/C/79/Add.lOO, para. 7. Tomuschat, "National Implementation of International Standards on Human Rights", see note 24,42. Graefrath, see note 127,56. Comments on Ireland, see note 157, para. 18; cf. Comments on Latvia, see note 172, paras D, £; Comments on Hungary, see note 156, paras D.6 and E 1; Comments on Ireland, see note 157, para. 10; Concluding Observations on Malta, Doc. CCPR/C/79/Add.29, para. 4(1994), HRC Report, in: GAOR, Suppl. No. 40, Doc. A/49/40, paras 117-131. For examples of higher normative status of international treaties in countries, see Buergenthal, see note 137,215 seq. See note 159, paras 6, 12; Comments on Sri Lanka, see note 155, para. E; Comments on Norway, Doc. CCPR/C/79/Add.27, para. 8; Comments on Cameroon, Doc. CCPR/C/79/Add.33, para. E. 17; Comments on Latvia,

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legally protecting the rights guaranteed under the Covenant in Nigeria because the applicable Constitution did not include basic rights.214 It expressed its appreciation for giving the Covenant a status equal to that of the Constitution in its Concluding Observations on Colombia in 1997 215 If a State party does not consider the Covenant to be automatically part of its legal order, one option to meet this new standards is to incorporate the Covenant, by virtue of a reference to the Covenant, into the Constitution so that it becomes part of the internal legal order which cannot be changed by domestic legislation so that its provisions may be directly invoked before the courts. For example, article 15 of the Russian Constitution now establishes that international treaties including the Covenant are part of the Russian legal system and that the Covenant can be invoked directly in Russian courts.216 Article 10 para. 2 of the Spanish Constitution provides that the norms relative to basic human rights recognized by the Constitution, shall be interpreted in conformity with the Universal Declaration of Human Rights and international treaties and agreements on those matters ratified by Spain.217 Hereby the Covenant was incorporated for the purpose of interpretation of the Constitution. In its Concluding Observations on Spain in 1996 the Committee noted as a positive aspect that many decisions of Spanish courts refer to the Covenant as a legal basis in accordance with this constitutional provision.218 The Committee welcomed the method of reference in its Concluding Observations on the former Yugoslav Republic of Macedonia219 and expressed its regrets that the opportunity was not taken to include a reference to the Covenant into the 1994

214 215

216

217 218 219

see note 172, para. D; Concluding Observations on Jamaica, see note 209, para. 72. Concluding Observations on Nigeria, Doc. CCPR/C/79/Add.65, para. 14. Concluding Observations on Colombia, Doc. CCPR/C/79/Add.75, para. 7. See the explanations of the Russian representative during the consideration of Russia's 4th periodic report, see note 172, para. 24. Cf. also Concluding Observations on the Russian Federation, Doc. CCPR/C/79/Add.54, para. 7. Constitution of Spain (1978), cf. Buergenthal, see note 137,217. Concluding Observations on Spain, Doc. CCPR/C/79/Add.61, para. 9. Concluding Observations on the former Yugoslav Republic of Macedonia, Report of the Human Rights Committee, HRC Report, in: GAOR, Suppl. No. 40, Doc. A/53/40, Vol. I, O., para. 372.


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Constitution of Gabon.220 To accord to the Covenant a constitutional status by reference to its provisions in national constitutions is a frequent phenomenon that has developed recently.221 Another option is to incorporate the provisions of the Covenant into the Constitution by spelling out these rights and making sure that the Covenant can be directly invoked in court. Often the Covenant language is used as a model for domestic legislation. The use of Covenant terminology in domestic legislation promotes its direct application on the domestic plane.222 This was done in the Finnish Constitution of 1995 with the later approval of the Committee.223 Similarly, Iceland adopted Constitutional Act No. 97/1995 amending the human rights provisions of the Constitution.224 In its Concluding Observation on Slovakia, the Committee welcomed the inclusion of an extensive and elaborate catalogue of fundamental rights in the Slovak Constitution and the application of provisions of the Covenant by the Constitutional Court.225

4. Article 2 and the Reservations, Understandings and Declarations of the United States The United States entered a number of reservations, understandings and declarations to the Covenant.226 A particular problem as to the direct application of the Covenant by domestic courts is posed by the declaration of the United States "[t]hat the provisions of Articles 1 through 27 of the Covenant are not self-executing".227 While international treaties which the United States is a party to have the status of U.S. law pursuant to article VI of the Constitution, their applicability in United 220 221 222 223

224 225 226

227

Concluding Observations on Gabon, see note 177, para. 8. For a detailed survey Buergenthal, see note 137,217 seq. Cohn, see note 94,302. Concluding Observations on Finland, HRC Report, in: GAOR, Suppl. No. 40, Doc. A/53/40, Vol. I, J., para. 253. Concluding Observations on Iceland, Doc. CCPR/C/79/Add.98. Concluding Observations on Slovakia, see note 200, para. 4. Senate Comment on Foreign Relations, Report on the ICCPR, S. Exec. Rep. No. 23, 102d Cong., 2d Sess. 6-20 (1992), in: ILM 31 (1992), 645 et seq., (651-657). Text of Resolution and Ratification, III (1). For the text of the declaration, see ibid., 18,23, in: ILM 31 (1992,), 657 et seq., (659).

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States courts depends on whether their provisions are considered to be self-executing. Because of the non-self-executing declaration the Covenant does not, by itself, create individual rights enforceable in U.S. courts.228 In the absence of appropriate implementing legislation, the Covenant does not give rise to a cause of action.229 The declaration has been subject to objections.230 It was argued that the declaration was in contradiction to the object and purpose of the Covenant and violated it.231 In contrast thereto the declaration was described as not affecting international obligations of the United States under the Covenant because it was entirely an issue of domestic law and merely concerned the modalities of domestic implementation.232 As already pointed out, the Committee does not criticize states that do not consider the Covenant to be self-executing as long as they take steps to incorporate the provisions of the Covenant into domestic law so that individuals may invoke them directly before the courts.233 There is no per se obligation to consider a treaty self-executing. Even if there is an obligation to make the Covenant directly applicable, this can be achieved through incorporating legislation without the need to consider the treaty self-executing. Therefore, a non-self-executing declaration in itself does not constitute a violation of the Covenant, but combined with other factors it may run counter to the obligations under article 2. The problem lies in the combination of the non-self-executing declaration with the apparent intention of the reservations to make sure 228

229 230

231

232 233

D. P. Stewart, "U.S. Ratification of the Covenant on Civil and Political Rights: The Significance of the Reservations, Understandings and Declarations", HRLJ14 (1993), 77 et seq., (79). For an interesting interpretation of reservations, understandings and declarations as permitting state judges to apply the Covenant directly on the basis of the "federalism understanding" the U.S. Senate attached to the instrument of ratification, see Buergenthal, see note 137,221-222. See Senate Comment, see note 226,19 (1992). For the U.S. constitutional issues raised by the reservations, understandings and declarations, see Buergenthal, see note 137, 221; L. Henkin, "US. Ratification of Human Rights Conventions: The Ghost of Senator Bricker", AJIL 89 (1995), 341 et seq.; Lawyers Committee for Human Rights, "Statements on U.S. ratification of the CCPR", HRLJ 14 (1993), 125. Paust found the declaration to be in violation of the Covenant's arts 2,4, 5, 9,14,50 and its Preamble. Cf. Paust, see note 136,1259. Stewart, see note 228, 79 and 83. See e.g., Concluding Observations on India, see note 183, para. 13.


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that the Covenant does not require any changes in United States law or practice.234 An example is the reservation to article 7 *[t]hat the United States considers itself bound by Article 7 to the extent that 'cruel, inhuman or degrading treatment or punishment' means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States." With regard to arts 10 and 14 of the Covenant a reservation states "[t]hat the policy and practice of the United States are generally in compliance with and supportive of the Covenant's provisions regarding treatment of juveniles in the criminal justice system." The proviso which was not included in the instrument of ratification provides: "Nothing in this Covenant requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States." Though the reservations have been entered to particular provisions of the Covenant, the totality of the reservations, understandings and declarations gives the impression that the status quo under U.S. law shall be preserved and that no additional legislation is therefore required.235 In fact, the spokesman of the former Bush administration declared that implementing legislation was not necessary, because, as a result of the reservations such legislation was unnecessary.236 The U.S. reservations limiting the obligation undertaken to the status quo have been criticized as violating the rule that a party may not invoke its domestic law to justify non-compliance with a treaty and posing serious questions of good faith237 and to be contrary to the object and purpose of the Covenant.238 The Covenant is not intended to describe a status quo but to set standards to which the States parties need to measure up. To limit the obligations undertaken by a State party in general to existing legal standards so that no changes are neces-

234

235

236 237

238

This interpretation of the reservations is shared by Henkin. Henkin, see note 230,342. T. Buergenthal, International Human Rights in a Nutshell, 2nd edition, 1995,297. See Senate Comment, see note 226,657; Henkin, see note 230,348. Schachter, see note 12, 322; F. C. Newman/ D. Weissbrodt, International Human Rights, 1990,590. Henkin, see note 230,343.

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sary contradicts article 2 para. 2 which envisages steps to be taken, that is domestic changes.239 A reservation to article 2 is not permissible.240 That a state may not perpetuate its domestic standards was acknowledged by the Human Rights Committee in its General Comment relating to reservations where it pointed out that "[d]omestic laws may need to be altered properly to reflect the requirements of the Covenant".241 The Committee criticized that "[reservations often reveal a tendency of States not to want to change a particular law"242 and went on: "So that reservations do not lead to a perpetual non-attainment of international human rights standards, reservations should not systematically reduce the obligations undertaken only to those presently existing in less demanding standards of domestic law. Nor should interpretative declarations or reservations seek to remove an autonomous meaning to Covenant obligations, by pronouncing them to be identical, or to be accepted only insofar as they are identical, with existing provisions of domestic law."243 This General Comment which seems to address implicitly a number of problems of the United States reservations, understandings and declarations in a critical way was criticized by the United States, France and the United Kingdom.244 The United States questioned whether the Committee is vested with the legal authority to make determinations

239

240 241 242 243 244

According to Schachter the U.S. reservations intent to deprive the requirement to adopt measures wherever necessary to give effect to the Covenant for the United States because it reduces U.S. obligations to the level of existing law. Schachter, see note 12, 322. For the continuous obligation of implementation, see II. 3. General Comment No. 24/52, see note 64, para. 9. Ibid. para. 12. Ibid. Ibid. para. 19. Observations by the United States of America on General Comment No. 24/52 relating to Reservations, (1994-1995), HRC Report, in: GAOR, Suppl. No. 40, Doc. A/50/40, Vol. 1, 131, in: HRLJ 16 (1995), 422 et seq., (423); Observations by France on General Comment No. 24/52 relating to Reservations, (1995-1996), HRC Report, in: GAOR, Suppl. No. 40, Doc. A/51/40; Observations by the United Kingdom on General Comment No. 24/52 relating to Reservations, (1994-1995), HRC Report, in: GAOR, Suppl. No. 40, Doc. A/50/40, Vol.1,135, in: HRLJ 16 (1995), 424 et seq.


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concerning the permissibility of specific reservations.245 The Human Rights Committee in its General Comment No. 24 maintained that "[i]t necessarily falls to the Committee to determine whether a specific reservation is compatible with the object and purpose of the Covenant ... because ... it is an inappropriate task for States Parties in relation to human rights treaties, and ... because it is a task that the Committee cannot avoid in the performance of its functions."246 According to the Committee "[b]ecause of the special character of a human rights treaty, the compatibility of a reservation with the object and purpose of the Covenant must be established objectively... and the Committee is particularly well placed to perform this task..."247 Pursuant to article 20 para. 4 and article 21 of the Vienna Convention on the Law of Treaties the acceptability of a reservation is left to the individual appraisal of each State party to a treaty. According to the United States, divesting States parties of any role in determining the extent of their treaty obligations was contrary to the Covenant scheme and the Vienna Convention on the Law of Treaties. As pointed out by the United Kingdom in its observations on General Comment No. 24, another Contracting State always has the right formally to object to a reservation according to the Vienna regime.248 In the case of reservations potentially incompatible with the object and purpose of a treaty as a whole, the availability of binding third-party procedures could be of great importance.249 It has been argued by legal scholars that when a human rights treaty creates a control body, such a body should be entitled to determine the legality of reservations in order to discharge its functions.250 This has

245

246 247 248

249 250

Observations by the United States of America on General Comment No. 24/52 relating to Reservations, see above, 422. General Comment No. 24/52, see note 64, para. 18. Ibid. Observations by the United Kingdom on General Comment No. 24/52, see note 244,425, para. 9. Ibid. 425, para. 10. M. Rama-Montaldo, "Human Rights Conventions and Reservations to Treaties", in: H. Gros Espiell, Amicorum Liber, Vol. II, 1997, 1261 et seq., (1272); Nguyen Quoc Dinh et al., Droit International Public, 5th edition, 1994, 181. See also W.A. Schabas, "Is the United States still a party?", Brook. J. Int'l L 21 (1995/96), 277 et seq., (315); H. Gros Espiell, "La Convention americaine et la Convention europeenne des droits de I'homme", RdC2l8 (1989), 167 et seq., (382 et seq.).

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been recognized by the European Court of Human Rights.251 With regard to the Human Rights Committee it has been argued that in the course of an inter-state complaint, the Committee charged with adjudicating such complaints must take a position on the question whether a reservation is valid if a petitioner State party invokes the invalidity of a reservation.252 However, while the United Kingdom accepted that the Committee must be able to take a view of the status and effect of a reservation where this is required in order to carry out its substantive functions under the Covenant, it denied any general power conferred on the Committee by the Covenant to determine whether a reservation is compatible with the object and purpose of the Covenant.253 Such a determination could not be binding on the States parties unless a legal obligation to accept such determinations had been entered previously.254 The United Kingdom preferred determinations on the validity of reservations on the basis of decisions judicially arrived after full legal argument. The question has also been dealt with by the ILC since 1993 when it included the law and practice relating to reservations in its agenda and appointed Mr. Pellet as Special Rapporteur. After deliberations on his Second Report, the Commission, in its Preliminary Conclusions on reservations to normative multilateral treaties including human rights of 1997, recognized that when the respective treaties are silent on the matter, monitoring bodies are competent to "comment upon and express recommendations" with regard to the admissibility of reservations "in order to carry out the functions assigned to them".255 However, the legal force of the treaty bodies' findings "cannot exceed that resulting from the powers given to them for the performance of their general monitoring role".256 Apart from the question whether the Committee has the power to determine the admissibility of reservations, the United States in its Observations on General Comment No. 24 acknowledged that it is "nei251 252

253

254 255

256

Belilos v. Switzerland, 132 Eur. Ct. H.R. Ser. A, 1, (18). Schabas, see note 250, 316; General Comment No. 24/52, see note 64, para. 18. Observations by the United Kingdom on General Comment No. 24/52, see note 244,425, para. 11. Ibid., 425, para. 12. ILC Report 1997 Chapter 5, in: GAOR 52nd Sess., Suppl. No. 10, Doc. A/52/10,126 seq., para. 5. Ibid., para. 8.


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ther appropriate nor lawful" to generally subordinate the Covenant to the "full unspecified range of national law".257 Though, the United States does not seem to consider its reservations to be that broad. The proviso excluding legislation required by the Covenant which is prohibited by the U.S. Constitution is not in accordance with the status the Covenant requires in domestic law according to the Committee.258 As elaborated above, the Committee asks states to harmonize the Constitution with the Covenant. Therefore, in case of a conflict between the Covenant and the Constitution — for example if the Covenant requires legislation prohibited by the Constitution — it is not the Constitution but the Covenant that needs to prevail under these international standards.259 One could argue that because of the proviso, only obligations which are in accordance with the U.S. Constitution were undertaken by the United States. However, the Senate explicitly declared it not to be a reservation but a proviso and advised the President not to include it in the instrument of ratification. Even if the proviso had to be considered to be a reservation because of its effects on the Covenant's application to the United States,260 it would be doubtful whether under the above cited standards of the Committee such a broad reservation was compatible with the object and purpose of the Covenant and therefore valid pursuant to article 19 para. 3 of the Vienna Convention on the Law of Treaties. What is equally troubling is that the concept underlying the reservations, understandings and declarations seems to be that the national legal order needs only to be in accordance with the Covenant and that if this is the case no additional steps are required. The Government explicitly deemed implementing legislation to be unnecessary in the United States.261 This is contrary to article 2 para. 2 which according to 257

258

259

260

261

Observations by the United States of America on General Comment No. 24/52, see note 244,423. The question whether the proviso is in accordance with the Covenant has to be distinguished from its validity under U.S. domestic law according to which the U.S. may not enter into international obligations not in accordance with the Constitution. As to the question whether the consent to the Covenant is valid as to obligations violating the Constitution, see text accompanying notes 207-209. According to the General Comment on Reservations the declaration of a statement by a State party is irrelevant if it purports to modify the legal effects of a treaty. General Comment No. 24/52, see note 64, para. 3. Also Vienna Convention on the Law of Treaties, article 2 para. 1 lit.(d). See note 236.

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the Human Rights Committee requires in any case, even if the domestic legal order of a State party does not contradict the Covenant, implementing legislation to elaborate the meaning of the Covenant rights.262 As outlined above, it is the understanding of the Committee that the Covenant creates obligations of conduct apart from duties of forbearance. To render the Covenant non-self-executing and to exclude any further legislation of incorporation is not in accordance with the new standards of the Human Rights Committee according to which individuals need to be able to invoke the Covenant directly in domestic courts.263 The aforementioned argument that the non-self-executing declaration merely is concerned with domestic issues is not accurate. It is true that the question whether an international treaty provision is self-executing is a question of domestic law. However, if the Covenant obligates States parties to make the Covenant directly applicable by domestic courts as stated by the Human Rights Committee in recent years, a state which neither considers the Covenant to be self-executing nor incorporates it in a way that its provisions can be invoked in domestic courts violates its obligations under international law. As seen in the above analysis of the Committee's pronouncements in the state reporting system, it is not enough to declare that the rights set forth in the Covenant are guaranteed in domestic law and can be protected by the judiciary on that basis, as asserted by the United States in its observations on General Comment No. 24.264 If a State Party chooses to make the Covenant part of its national law but denies it self-executing effects, it needs to adopt legislation which can provide the basis for invalidation of legislative acts because of their violation of the Covenant.265 This is why the Committee requires clarity as to which of these provisions are self-executing within domestic law and which require specific legislation if a State party has made the Covenant part of its domestic legal system.266 Ac262 263

264

265 266

See under IV.l. For the assertion that the reservations, understandings and declarations violate article 2 para. 3, see Henkin, see note 230,341, note 31. Observations by the United States of America on General Comment No. 24/52, see note 244,423. This argument has also been made by Stewart, see note 228, 79. For the way this needs to be done, see under III. 3. Concluding Observations on Cyprus, Doc. CCPR/C/79/Add.39, para. 4 (1994), HRC Report, in: GAOR Suppl. No. 40, Doc. A/49/40, paras 312333; Concluding Observations on Cyprus, HRC Report, in: GAOR, Suppl. No. 40, Doc. A/53/40, Vol. I, G., para. 193.


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cording to the Committee's understanding, all branches of government are charged with the implementation of the Covenant.267 Therefore, the purported intention of the declaration to make clear that the legislative and executive branch will oversee domestic implementation of the Covenant, rather than the judicial branch,268 is in contradiction of the concept developed under article 2. To sum up, the totality of the reservations, understandings and declarations seems to deprive the individual of any effect from the Covenant by limiting its obligations to the status quo of U.S. law, negating the need for implementing legislation and denying individuals a cause of action under the Covenant. As Henkin concluded, they leave the Covenant "without any life in United States law".269 This can hardly be deemed to be in accordance with the requirements under article 2. The reservations, understandings and declarations, therefore, have been subject to objections by other States panics to the Covenant.270 The Human Rights Committee in its General Comment on reservations criticized such action by States parties in general. It pointed out: "Of particular concern are widely formulated reservations which essentially render ineffective all Covenant rights which would require any change in national law to ensure compliance with Covenant obligations. No real international rights or obligations have thus been accepted. And when there is an absence of provisions to ensure that Covenant rights may be sued on in domestic courts, and further, a failure to allow individual complaints to be brought to the Committee under the first Optional Protocol, all the essential elements of the Covenant guarantees have been removed."271 This General Comment which seems to address implicitly a number of problems of the reservations of the United States, understandings and declarations in a critical way was, as already mentioned, criticized by the United States with the argument that the choice of the "most appropriate means of implementation is ... left to the internal law and 267 268 269 270

271

See text accompanying note 157. Stewart, see note 228, 9. Henkin, see note 230,349. For objections against reservations designed to keep the status quo under U.S. law, see, e.g., the objections of Finland, 1993, of the Netherlands, 1993. Some states interpret these reservations as not affecting the obligations assumed by States parties on the basis of article 2. See Objections of Italy, 1993 and of Germany 1993. General Comment No. 24/52, see note 64, para. 12.

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process of each State party."272 The United Kingdom did not accept the assertion of the Committee that no real international obligations were undertaken if reservations excluded the acceptance of obligations requiring changes in national law. In such cases States parties at least accepted the Committee's supervision of those Covenant rights guaranteed by their national law.273 So far the Human Rights Committee has not criticized the declaration of the United States concerning the alleged non-selfexecuting character of the Covenant. In 1995, a year after the adoption of General Comment No. 24, it held in its Comments on the initial report of the United States that "[w]hether or not courts of the United States eventually declare the Covenant to be non-self-executing, information about its provisions should be provided to the judiciary".274 It noted positively that "American courts are not prevented from seeking guidance from the Covenant in interpreting American law".275 The Committee thereby clarified that the decision whether the Covenant is selfexecuting is for the domestic courts to decide. However, the question whether the declaration in association with the other reservations and the proviso violates article 2 was not addressed. Nor did the Committee formally rely on General Comment No. 24. In view of its pronouncements on the direct application of the Covenant outlined above, it is questionable whether the Committee will in future not raise the issue of the declaration concerning the non-selfexecuting character of the Covenant. Merely seeking guidance from the Covenant in interpreting American law is no longer sufficient. There seems to be a development as to the willingness of the U.S. government to implement the Covenant. According to a more recent Executive Order of the Clinton administration it will be the "policy and practice [of the United States] ... to fully respect and implement its obligations under the human rights treaties to which it is a party" including the Covenant.276 It sets up coordinating bodies for the imple272

273

274

275 276

Observations by the United States of America on General Comment No. 24/52, see note 244,423. Observations by the United Kingdom on General Comment No. 24/52, see note 244, para. 8. Comments on the initial report of the United States of America, Doc. CCPR/C/79/Add. 50, para. 15. Ibid., para. 11. Executive Order on Implementation of Human Rights Treaties of 10 December 1998.


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mentation in the different departments and agencies and initiates the development of mechanisms to review legislation for conformity with human rights obligations. Though not reversing the reservations, understandings and declarations or the proviso it indicates a general willingness of the U.S. government to implement the Covenant and to promote conformity of domestic legislation and executive action with the Covenant. The defective rule of the judiciary in the implementation of the Covenant due to the non-self-executing declaration and the nonincorporation of the Covenant, however, is not altered.

IV. Specific Measures of Implementation To ensure all aspects of the Covenant rights and their effective enjoyment, it is not enough to make it directly applicable and to bring domestic law into line with the Covenant.277 The constitutional provisions incorporating the Covenant need to be implemented.278 The precise content of the Covenant rights needs to be elaborated. This becomes particularly apparent in broadly formulated provisions such as article 23 para. 1 pursuant to which families are entitled to the protection by the state. It is not enough not to violate (respect) the Covenant rights, they need to be secured. As the Human Rights Committee in its General Comment on article 2 of 1981 emphasized, "the obligation under the Covenant is not confined to the respect of human rights, but ... States parties have also undertaken to ensure the enjoyment of these rights".279 It therefore asked for "specific activities by the States parties".280 Pursuant to arts 23 para. 4 and 24 para. 1, States parties shall make provision for the necessary protection of any children. These provisions request specific steps of protection by the States parties in order to give meaning to these rather broad fundamental rights in law and practice. The Committee asks for specific activities not only in regard of rather broad articles, such as article 3 on gender equality, but in regard of all rights set forth in the Covenant.281 The Covenant in article 2 para. 2 explicitly requires "legislative or other measures as may be 277

278 279 280 281

Tomuschat, "National Implementation of International Standards on Human Rights", see note 24,44. Comments on Estonia, see note 69, para. D. 10. General Comment No. 3/13, see note 82, para. 1. General Comment No. 3/13, see above. Ibid.

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necessary to give effect to the rights recognized in the present Covenant".

1. Legislative Measures Some provisions of the Covenant explicitly require protection by law. Pursuant to article 6 para. 1 the right to life "shall be protected by law". Article 17 para. 2 lays down "the right to the protection of the law" against interferences with one's privacy, family, home or correspondence and against unlawful attacks on one's honor and reputation. The Human Rights Committee explained that "legislation must specify in detail the precise circumstances in which such interferences may be permitted."282 This is not limited to the articles explicitly requiring protection by law. The Committee regularly asks States parties for legal measures designed to protect each of the Covenant rights.283 Other provisions demand legislative prohibitions. Article 8 para. 1, for example, provides that "slavery and slave-trade in all their forms shall be prohibited". Pursuant to article 26 "the law shall prohibit any discrimination". Article 20 requires the penal prohibition of any propaganda for war and of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. The need for a law prohibiting such actions and providing for appropriate sanctions in case of violation has been stressed by the Human Rights Committee in its General Comment on article 20.284 Sanctions in penal legislation are considered necessary in order to discourage violations. Similarly, the International Convention on the Elimination of All Forms of Racial Discrimination in article 4 lit.(a) and (b) mandates States parties to penalize all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, acts of violence or incitement to such acts, assistance to racist activities, and participation in organizations promoting and inciting racial discrimination. In its Comments on the Dominican Republic of 1993, the Human Rights Committee held that "[m]uch more severe sanctions are needed to ef282

283

284

General Comment No. 16/32 on article 17 (1988), in: HRI/GEN/1/Rev.l, page 22, para. 8. General Comment No. 9/16 on article 10 (1982), in: HRI/GEN/1/Rev.l, page 9, para. 1. General Comment No. 11/19 on article 20 (1983), in: HRI/GEN/1/Rev.l, page 12, paras 1,2.


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fectively discourage torture and other abuses by prison and law enforcement officials."285 In its Comments on Guinea, the Committee demanded that appropriate penalties should be imposed on perpetrators of violations.286 The Committee also asked for preventive disciplinary and punitive measures to prevent the excessive use of force.287 Apart from the general requirement of protection by law and legislative prohibitions, the Covenant itself spells out some specific legal steps to be taken to ensure respective rights. Article 9 para. 5, for example, requires that victims of unlawful arrest or detention "shall have an enforceable right to compensation". Similarly, article 14 para. 6 provides for compensation "according to law" in certain cases of miscarriage of justice. This provision prompted the Human Rights Committee to call for corresponding legislation.288 Pursuant to article 14 para. 5 "everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law" (emphasis added). The Human Rights Committee has extended the obligation to elaborate rights in domestic law in some cases where the Covenant itself does not explicitly call for legislative measures. In its General Comment on article 23 the Committee asked the States parties to prescribe the conditions for the free consent of intending spouses by law.289 It also asked for an elaboration of the right to take part in the conduct of public affairs in law and in the constitution of States parties: in its General Comment on article 25 the Committee stated that " [t]he allocation of powers and means by which individual citizens exercise the right to participate in the conduct of public affairs protected by article 25 should be established by the constitution and other law",290 that the right to vote and to be elected pursuant to article 25 lit.(b) should be

285 286 287 288

289

290

Comments on the Dominican Republic, see note 68, para. 10. Comments on Guinea, Doc. CCPR/C/79/Add.20, para. E. 6. Comments on Argentina, Doc. CCPR/C/79/Add.46, para. 18. General Comment No. 13/21 on article 14 (1984), in: HRI/GEN/1/Rev.l, page 17, para. 18. General Comment No. 19/39 on article 23 (1990), in: HRI/GEN/1/Rev.l, page 29, para. 4. General Comment No. 25/57 on article 25 (1996), Doc. CCPR/C/21/ Rev.l/Add. 7, para. 5.

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guaranteed by law291 and that abusive interferences with registration or voting should be prohibited by penal law.292 Not only the rights but also restrictions of the rights need to be spelled out in a norm. Pursuant to arts 12 para. 3,18 para. 3 and 19 para. 3 restrictions on the freedom of movement, the freedom of religion and belief as well as on the freedom of expression and information must be prescribed "by law". The Covenant apparently attaches much importance to the law and trusts that law — though not exclusively — provide for an effective protection of the rights recognized. It has been argued that the Covenant in its article 25 shows a preference for law as a product of a democratic process.293 However, this view might be influenced by the preference of civil law countries for parliamentary acts. The reason for the emphasis on law is the importance attributed to the rule of law and the fact that it provides stability reducing the risk of arbitrariness. This became apparent in the General Comment on article 17 where the Human Rights Committee emphasized that for the protection against unlawful and arbitrary interferences with one's privacy "it is precisely in State legislation above all that provision must be made". Law provides for strict control and unambiguously limits the circumstances of restrictions.294 Therefore, most rights and restrictions need to be elaborated by a law. Which specific norms are necessary for the implementation depends on the respective rights.295 It is important to note that the leeway given to states in the elaboration of the rights is broad enough so that the legislative steps can be adjusted to the specific features of the respective domestic systems.296 291 292 293

294 295

296

Ibid., para. 9. Ibid., para. 11. Tomuschat, "National Implementation of International Standards on Human Rights", see note 24,42. General Comment No. 6/16, see note 82, page 6, para.3. Since the purpose of this article is to elaborate the common denominators for the implementation of all Covenant rights this is not the place to deal with the specific requirements. The requirements for the particular rights have been elaborated in a number of publications. See, e.g., Nowak, see note 13; D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights, 1994. Tomuschat, "National Implementation of International Standards on Human Rights", see note 24,42.


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In general States panics have the choice between a general-abstract parliamentary act or a similar unwritten norm of common law.297 A certain degree of political discretion is also certainly necessary for the implementation of the Covenant in order to allow for diversity.298 To make sure that the provisions of the Covenant become effective, the Human Rights Committee does not only ask for legislative measures with regard to the text of the Covenant. The Committee also requires that States parties adopt "appropriate measures to give legal effect to the views of the Committee as to the interpretation and application of the Covenant in particular cases arising under the Optional Protocol" (emphasis added).299 Thereby the Committee seeks to ensure the compatibility of the Covenant's domestic application with its own interpretation.

2. Other Measures of Implementation In its General Comment on article 2 of 1981 the Human Rights Committee had already stressed that legislative enactment often is not sufficient per se.300 As mentioned earlier, specific activities are necessary enabling individuals to enjoy their rights as provided for in para. 1.301 Repeatedly the Committee has called for steps to ensure that the Covenant rights are established by law and guaranteed in practice.302 Accordingly, in the reporting system the Committee does not only inquire about the implementation measures undertaken by States parties to the Covenant but also about actual practices.303 All three branches of government — the legislature, the judiciary and the administration — are 297

298

299

300

301 302

303

For the meaning of the term "law" in the Covenant, see Nowak, see note 13,208-209. Tomuschat, "National Implementation of International Standards on Human Rights", see note 24,44. Thompson v. Panama, Comm. No. 438/1990 (1994), Doc. CCPR/C/52/D/ 438/1990, para. 5.3; Roberts v. Barbados, Comm. No. 504/1992 (1994), Doc. CCPR/C/51/D/504/1992, para. 6.3. General Comment No. 3/13, see note 82, page 4, para. 1. See also General Comment No. 4/13 on article 3 (1981), in: HRI/GEN/1/Rev.l, 4, para. 2. Ibid. General Comment No. 13/21 on article 14 (1984), in: HRI/GEN/1/Rev.l, page 17, para. 3. General Comment 18/37, see note 148. General Comment No. 4/13, see note 300, page 4, para. 2.

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charged with the implementation of the Covenant. Therefore, the Committee asks for administrative, judicial and other measures apart from legislative steps in order to prevent and punish violations of Covenant rights.304 The active prevention of violations plays a vital role in this regard.305 Often practical steps are required.306 The range of possible measures is as far-reaching as the Covenant's area of application. The Covenant rights play a role in virtually every area of life. a. Law Enforcement It is not enough to incorporate the Covenant and to elaborate its provisions in domestic law. The legal steps undertaken to give effect to the Covenant rights need also to be enforced. Apart from judicial measures, administrative enforcement measures are necessary. For example, to combat threats to life as provided for by article 6, strict police measures may be required.307 b. Institutional Safeguards States parties need to develop institutions which remove impediments to the realization of the Covenant rights.308 One example is an independent judicial system as required by arts 9 and 14.309 Pursuant to article 13 a competent authority needs to be set up to review cases of expulsion in order to protect aliens against arbitrary expulsions. According to the Committee's General Comment on article 1 political processes which allow the exercise of the right to self-determination are necessary.310 Article 25 lit.(b) requires that periodic elections are held. In recent years the Human Rights Committee has put an emphasis on the 304

305

306 307 308 309

310

General Comment No. 20/44 on article 7 (1992), in: HRI/GEN/1/Rev.l, page 31, para, 8; General Comment No. 18/37, see note 148,27, para. 9. In its General Comment No. 6/16 the Committee obligated States parties to prevent deprivation of life and disappearances. See note 82, 6, paras 3,4. General Comment No. 9/16, see note 283, page 10, para. 3. Tomuschat, "National Implementation of International Standards on Human Rights", see note 24, 53. Schachter, see note 12,319. Tomuschat, "National Implementation of International Standards on Human Rights", see note 24,44; Graefrath, see note 127,66. General Comment No. 12/21 on article 1 (1984), in: HRI/GEN/1/Rev. 1, page 13, para. 4.


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development of democratic institutions. In its Concluding Observations on Morocco of 1994, for example, it pointed out that "steps remain to be taken to ... develop democratic institutions and human rights machinery for better implementation of the Covenant".311 In 1996 it recommended immediate steps to restore democracy in Nigeria.312

States parties also need to guarantee the existence and freedom of institutions set up by private individuals enabling them to fully enjoy their rights recognized by the Covenant. In its General Comment on article 25 the Committee held that to ensure the full enjoyment of the political rights protected by this article, a free press is necessary.313 That the prevention of control over the media is equally important for the freedom of expression was stressed in the General Comment on article 19.314 c. Procedural Safeguards Since there is a focus on the prevention of violations, state procedures that individuals are subject to need to be shaped in a way that violations are avoided. Article 9 sets up in detail the procedure as to how persons arrested or detained shall be treated and article 14 spells out procedural guarantees in civil and criminal trials. Detainees are treated with humanity pursuant to article 10. The Human Rights Committee has elaborated procedural obligations to ensure the openness of procedures where the individual is at particular risk of violations of his rights. For example, to protect the rights of detainees pursuant to article 10 there should be readily accessible registers and records about the persons responsible for detention, about the time and place of interrogations and about persons present.315 These records should be made available for purposes of judicial or administrative proceedings. Such measures are intended to be safeguards for the legality of proceedings dealing with individuals in order to discourage violations. Another procedural safeguard elaborated by the Committee is the requirement that the use of statements or confessions obtained through 311 312 313 314

315

Concluding Observations on Morocco, see note 208, para. B 4. Comment on Nigeria, Doc. CCPR/C/79/Add.65, para. 26. General Comment No. 25/57, see note 290, para. 25. General Comment No. 10/19 on article 19 (1983), in: HRI/GEN/1/Rev.l, page 11, para. 2. General Comment No. 20/44, see note 304, para. 11.

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torture in judicial proceedings should be prohibited as inadmissible.316 State officials thereby shall be discouraged in the first place from resorting to measures not in accordance with the Covenant. d. Monitoring and Control Mechanisms In order to prevent violations and to ensure effective protection of the Covenant rights the Committee requires domestic control mechanisms.317 Any kind of barrier to the effective enjoyment of the Covenant rights needs to be examined.318 For example, in its Concluding Observations on Bosnia and Herzegovina of 1992 the Human Rights Committee recommended the systematical monitoring of measures to ensure that "ethnic cleansing" does not take place.319 In its General Comment on article 25 the Committee recommended an independent electoral authority to supervise the electoral process so that it is conducted in accordance with the Covenant.320 It stressed repeatedly that the supervision of state officials is crucial to prevent violations.321 Especially in areas where the state exercises control over individuals — as for example over detainees — constant control and supervision of state officials are necessary.322 In case of an alleged violation States parties need to allow complaints, conduct a prompt investigation and provide for adequate compensation in the event of a violation.323 This was stressed by the Human 316 317

318 319 320 321

322

323

Ibid., 32, para. 12. General Comment No. 7/16 on article 7 (1982), in: HRI/GEN/1/Rev.l, page 7, para. 1. This Comment was replaced in 1992 by General Comment No. 20/44, see note 304. Schachter, see note 12,311,320. Comments on Bosnia and Herzegovina of 1992, see note 67. General Comment No. 25/57, see note 290, para. 20. General Comment No. 20/44, see note 304, page 32, para. 11; General Comment No. 21/44 on article 10 (1992), in: HRI/GEN/1/Rev.l, 34, para. 6. General Comment No. 20/44, see note 304, 32, para. 11; Tomuschat, "National Implementation of International Standards on Human Rights", see note 24, 54. General Comment No. 21/44, see note 321, 34, para. 7. For an analysis of article 2 para. 3 with its requirement of an effective remedy, see Nowak, see note 13, 57 et seq.; Tomuschat, "National Implementation of International Standards on Human Rights", see note 24, 55 seq.; McGoldrick, see note 295,279-280,285-287.


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Rights Committee in its General Comment on article 7 asking for investigations in case of complaints of maltreatment prohibited by article 7.324 With regard to the right to vote, the Committee elaborated that there should be access to judicial review or an other equivalent process to ensure the compliance of the electoral process with article 25.325 To a large extent states fulfill their obligation of implementation by establishing such remedies because individuals are better qualified to decide when their rights have been violated.326 In order to ensure systematic implementation and conformity of domestic law with the Covenant the Committee considers it helpful for States parties to appoint bodies or institutions to review domestic law and measures.327 The effective application of national legislation concerning the rights laid down in the Covenant also needs to be monitored.328 For example, in its Comments on Estonia the Committee expressed its concern that the "Covenant's effective precedence over any inconsistent legislative act" was affected by a lack of implementation of constitutional articles implementing the Covenant329 and recommended measures "to ensure that all domestic provisions inconsistent with the Covenant be repealed".330 Courts play a vital role in the supervision of the compatibility of domestic laws with the Covenant. During the consideration of the Gabonese report in 1997 the state delegation was asked whether the Constitutional Court or the Supreme Court could examine the laws enacted by Parliament and, if necessary declare them incompatible with the Covenant.331 In its Comments on Latvia of 1995 the Committee expressed its concern over the absence of a body, such as a Constitutional Court, charged with determining the conformity of domestic laws with

324 325 326

327

328 329 330 331

General Comment No. 20/44, see note 304,32, para. 14. General Comment No. 25/57, see note 290, para.20. Tomuschat, "National Implementation of International Standards on Human Rights", see note 24, 54. General Comment No. 4/13, see note 300, page 5, para. 4. The absence of such an institutional mechanism was criticized by the Committee in its Concluding Observations on Zimbabwe, see note 173, para. 211. General Comment No. 21/44, see note 321, 34, para. 6. Comments on Estonia, see note 69, para. D. 10. Ibid., para. 24. T. Buergenthal in: Summary Record of the 1541st Mtg., Consideration of the initial report of Gabon, Doc. CCPR/C/SR.1541.

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the provisions of the Covenant.332 It is not clear whether the Committee thereby declared itself in favor of in abstracto review even without personal injury. Such remedies against parliamentary acts exist only in a number of countries.333 At least if someone is adversely affected by an alleged violation based on legislation, a court needs to be charged with the determination of the domestic law's conformity with the provisions of the Covenant pursuant to article 2 para. 3. The Committee is in favor of an action which may be brought to the constitutional court of a State party. This became apparent not only in the just cited Comments on Latvia but also in the Concluding Observations on Armenia. In the latter the Committee was concerned that only representatives of the executive and legislative branches could have recourse to the Constitutional Court and recommended an amendment to the Constitution so as to enable individuals to bring questions concerning human rights guaranteed in the Constitution which are also protected in the Covenant to the Constitutional Court.334 In recent pronouncements the Committee favored the additional institution of an Ombudsman with powers to initiate investigations suo motu as an effective independent mechanism for monitoring the implementation of the Covenant and for ensuring the integration of the Covenant rights in law and practice.335 As an alternative the Committee recommends the establishment of a National Commission on Human Rights to study the conflicts between domestic law and the Covenant, to make recommendations with a view to amending legislation and to monitor the effective implementation of the Covenant.336 e. Contextual Measures There is a wide range of measures to establish a benign context in order to enable individuals to exercise their rights. This applies especially to provisions of the Covenant obligating States panics to take positive 332 333

334 335 336

Comments on Latvia, see note 172, para. D. One example is Germany where a constitutional procedure for the review of statutes challenged as violating the Constitution exists. Concluding Observations on Armenia, see note 210, para. 9. Concluding Observations on Zimbabwe, see note 173, paras 212-213. This proposal was made, for example, by Buergenthal during the consideration of Gabon's initial report, Summary Record of the 1543st Mtg., Doc. CCPR/C/SR.1543; Concluding Observations on Gabon, see note 177, para. 18.


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steps of protection. According to the Human Rights Committee, to fulfill the obligation to protect children pursuant to article 24 "every possible measure should be taken to foster the development of [children's] personality and to provide them with a level of education that will enable them to enjoy the rights recognized in the Covenant".337 To promote the rehabilitation of prisoners pursuant to article 10 para. 3, measures such as teaching, education, re-education, vocational guidance and training, as well as work programs for prisoners may be necessary.338 Another example is the obligation to ensure gender equality pursuant to article 3. The Committee in its General Comment No. 4 held that the articles dealing with the prevention of discrimination require "not only measures of protection but also affirmative action designed to ensure the positive enjoyment of rights."339 Positive measures are also necessary to protect the right to life340 and to facilitate the realization of and respect for the right of peoples to self-determination.341 Apart from social and cultural measures, even certain economic conditions need to be established in order to enable individuals to exercise their civil and political rights. In its General Comment on article 24 the Committee pointed out that measures to protect children, "although intended primarily to ensure that children fully enjoy the other rights enunciated in the Covenant, may also be economic, social and cultural."342 Accordingly, in its General Comment on article 25 it recommended that positive measures should be taken to overcome specific difficulties, such as illiteracy, language barriers, poverty and impediments to freedom of movement which prevent persons entitled to vote from exercising their rights effectively.343 To reduce infant mortality and increase life expectancy in accordance with the right to life the Committee considered it to be desirable for States parties to adopt measures to eliminate malnutrition and epidemics.344 Graefrath, a previous member of the Committee from the former German Democratic Republic, even went so far to demand generally from States parties to the ICCPR to raise the level of education, to eliminate educational 337 338 339 340 341 342 343 344

General Comment No. 17/35, see note 147,24, para.3. General Comment No. 21/44, see note 321, 34, para. 11. General Comment No. 4/13, see note 300,4, para. 2. General Comment No. 6/16, see note 82,7, para. 5. General Comment No. 12/21, see note 310,13 , para.6. General Comment No. 17/35, see note 147,24, para.3. General Comment No. 25/57, see note 290,12. General Comment No. 6/16, see note 82,7, para. 5.

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privileges, to overcome illiteracy and to satisfy basic needs of the people.345 The Committee has not gone that far, though its pronouncements clearly demonstrate that there is, as acknowledged by the preamble of the Covenant, an interdependence between civil and political rights on the one side and economic, social and cultural rights on the other side. f. Information and Education The Human Rights Committee has always put an emphasis on measures of information for individuals and State authorities.346 The Committee regularly asks for the translation of the Covenant into all languages spoken in a State party, its wide publication and its inclusion in school curricula to ensure that the provisions are widely known to members of the legal profession, the judiciary, law enforcement officials and to the general public.347 In order to effectively exercise their rights, individuals need to know what their rights under the Covenant are.348 Detained persons, for example, should be given access to information on their rights.349 Electors should be fully informed of the guarantees of article 25 lit.(b); information and materials about voting should be available in minority languages.350 Even the State reports to the Committee on the domestic implementation of the Covenant should be published so that individuals know what the legal provisions giving effect to the Covenant rights are.351 In order to prevent violations by individuals educational measures are recommended to change practices detrimental to the enjoyment of civil rights. As to the effective application of article 2 and 3 regarding non-discrimination, for example, the Committee stated that there is a need for the "adoption of administrative and educational measures designed to eliminate traditional practices and customs detrimental to the 345 346 347

348 349 350 351

Graefrath, see note 90,17. This was the position of the socialist countries. General Comment No. 3/13, see note 82,4, para. 2. Ibid.; Concluding Observations on Nepal, see note 170, para. 12; Comments on Spain, where the Committee recommended information campaigns, see note 218, para. 16. General Comment No. 3/13, see note 82,4, para. 2. General Comment No. 21/44, see note 321, 34, para. 7. General Comment No. 25/57, see note 290, paras 20 and 12. Tomuschat, "National Implementation of International Standards on Human Rights", see note 24,60.


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well-being and status of women and vulnerable groups of the ... society."352 In comparison, a working group of the former Sub-Commission on the Prevention of Discrimination and Protection of Minorities specified educational measures to implement the International Convention on the Elimination of All Forms of Racial Discrimination.353 The working group recommends classes to develop awareness of human rights at schools, colleges and universities, instruction of teachers, lectures, political parties, trade unions and NGOs, access to education at all levels to persons belonging to minorities and the promotion of knowledge of history, language and culture of the society and its ethnic groups. An action-oriented national plan for education and the use of different channels of culture and information are also deemed necessary.354 As to specific rights, the Human Rights Committee recommends media campaigns against xenophobia355 and obligates States parties to disseminate to the population relevant information concerning the ban on torture.356 Information and training is also an important feature in the prevention of human rights violations by State officials. The Committee, therefore, recommends detailed information of the judicial and administrative authorities on the Covenant and the Optional Protocol "in order to ensure their effective application".357 In its Comments on Brazil in 1996, for example, it asked for education and sensitization of law enforcement officials about human rights through campaigns, programs and the systematic incorporation of human rights education in all training activities.358 Specific instruction and training of State officials is 352

353

354 355 356 357

358

Concluding Observations on Nepal, see note 170, para. 13; Concluding Observations on Morocco, see note 208, para. B 4; Concluding Observations on Mauritius, Doc. CCPR/C/79/Add.60, para. 23. Joint working paper on article 7 of the International Convention on the Elimination of All Forms of Racial Discrimination, prepared by J. Bengoa/ I. Garvalov/ M. Mehedi/ S. Sadiq Ali, Doc. E/CN.4/Sub.2/1998/4, para. 164 seq. Ibid., paras 164-178. Comments on Sweden, Doc. CCPR/C/79/Add.58, para. 23. General Comment No. 20/44, see note 304,31, para. 10. Concluding Observations on Cyprus, Doc. CCPR/C/79/Add.39, para. 5, HRC Report, in: GAOR, Suppl. No. 40, Doc. A/49/40, paras 312-333. Comments on Brazil, see note 63, para. 19. As to the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination, cf. Committee on the Elimination of Racial Discrimination,

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required in areas where individuals are particularly vulnerable because of State custody, for example with regard to the prohibition of torture, cruel, inhuman or degrading treatment or punishment and with regard to the protection of the rights of detainees under article 10.360 To ensure consistency between the Covenant and its implementation, states should establish mechanisms designed to follow the developments at the international level and to bring them regularly to the attention of the national authorities.361

V. Conclusion Though article 2 para. 2 outlining the necessary implementation of the Covenant seems to be rather vague on first sight, it has found an extensive elaboration in the work of the Human Rights Committee. The implementation envisaged by the ICCPR in article 2 para. 2 is an immediate and very comprehensive one. The Covenant incorporates the concept of immediate obligations. As the drafting history of the Covenant shows, the idea of progressive implementation was — with the exception of article 23 para. 4 — rejected for the Covenant. The drafters wanted to create almost immediate obligations. Arts 2 para. 2 and 40 were not intended to put this into question. This has been acknowledged by the Human Rights Committee in various pronouncements under the individual complaint procedure and under the state reporting system stressing the immediacy of obligations undertaken by States parties under the Covenant. This observation does not mean that the obligations created under the Covenant are static and that development is excluded. The obligation to undertake steps to give effect to the Covenant rights under article 2 para. 2 and the reporting system evidence that the rights require steady realization. There is no contradiction between these provisions and article 2 para. 1 because they form part of an overall concept of an immediate obligation which cannot be defined in terms of radical and

359 360 361

General Recommendation XII on the Training of Law Enforcement Officials in the Protection of Human Rights, Doc. CERD/C/365; Joint working paper, see note 353, para. 168. General Comment No. 20/44, see note 304,32, para. 10. General Comment No. 21/44, see note 321, 34, para. 7. Tomuschat, "National Implementation of International Standards on Human Rights", see note 24,37,39.


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absolute immediacy. The progressive element entailed herein reflects the peculiarity of any human rights system which can never be static. While the Committee always has considered the obligation to implement the Covenant to be an immediate one, there has been a remarkable development in the conception of article 2 by the Human Rights Committee with regard to the necessary measures to implement the Covenant. The leeway given to States parties regarding the choice of implementation measures has been reduced gradually. This is particularly true for measures defining the relationship between the Covenant and domestic law. Even if, according to the Committee, the Covenant does not per se create any rights or obligations directly enforceable in domestic courts, States parties are now obliged to give formal recognition and applicability to its provisions in domestic law.362 The differentiation between monist and dualist states prevails so far and the question whether the ICCPR is self-executing is for the States parties to decide. However, the Committee has substantially limited the choice of measures of implementation by requiring that the Covenant acquires the status of domestic law upon its domestic legislative approval and ratification or that it is incorporated into the Constitution with a status superior to that of domestic legislation. The difference between these two methods of implementation is only a gradual one allowing dualist and monist states to reconcile the implementation with their constitutional processes as provided for in article 2 para. 2. In any case, the Covenant has to be made directly applicable by domestic courts according to the Committee. In the case of incorporation, the enacted legislation needs to provide for the rights to become immediately binding as part of domestic law. Therefore, the assertion that the Covenant creates only obligations of result is no longer true under this interpretation of article 2 by the Committee. Apart from the obligation to make the Covenant directly applicable, the Committee has elaborated a whole series of obligations of conduct concerning the status of the Covenant in domestic law, i.e. the obligation to codify the Covenant rights, to accord to it a status superior to domestic legislation, to ensure the conformity of domestic law including the Constitution with it and to incorporate it into the Constitution. Specific measures to prevent and punish violations of the Covenant as elaborated by the Committee in the reporting system (i.e. law enforcement, institutional and procedural safeguards, monitoring and control 362

Concluding Observations on the United Republic of Tanzania, see note 185, para. 394.

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mechanisms, contextual measures, information and education) are additional examples of obligations of conduct. The development in the conception of article 2 by the Committee has resulted in a process of reforms in the implementation measures undertaken by States parties to the Covenant including constitutional reforms. There is little left of the seeming choice provided for in article 2 para. 2 between "legislative or other measures" regarding the incorporation of the rights recognized in the Covenant.363 Both types of measures seem to be required to give effect to the Covenant rights. While there clearly needs to be a legislative act to transform the Covenant into domestic law, be it in the form of legislative approval of the Covenant or in the form of its incorporation, other steps are required to spell out the meaning of the respective Covenant provisions. Though the Covenant and the Committee attach great importance to the protection of the Covenant rights through law to elaborate their meaning, the Covenant rights also need to be guaranteed in practice. As noted earlier, constant efforts are necessary to fulfill this requirement. The Human Rights Committee has elaborated a very comprehensive list of "other measures" pursuant to article 2 para. 2, from law enforcement, institutional and procedural safeguards, monitoring and control mechanisms, contextual measures to information and education. It puts a great emphasis on the obligation of states to prevent human rights violations and to provide active protection to individuals in the implementation process. States parties need to build institutions which remove impediments to the realization of the rights recognized by the Covenant, develop procedural safeguards and set a benign context for the enjoyment of the Covenant rights. The implementation measures envisaged by the Committee are far-reaching. The legislature, the executive, and the judiciary are all assigned an important role in the implementation of the Covenant rights. While the legislature is responsible for the proper transformation of the rights into domestic law, the executive is called upon to enforce the law and the judiciary needs to be involved in the enforcement of the Covenant by its direct application as an additional safeguard. All branches may be involved in the elaboration of the Covenant rights. It is interesting to note that the importance of the Covenant's legislative and judicial implementation was already stressed during the drafting of the Covenant. Therefore a proposal was introduced according to which the States par363

Schachter earlier argued that article 2 para. 2 leaves open whether legislative or other measures are necessary, Schachter, see note 12, 312.


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ties should report "on legislative, judicial or other action taken" to give effect to the Covenant's rights.364 While article 2 para. 2 provides for implementing measures "in accordance with its constitutional processes" the Human Rights Committee seems to put increasing emphasis on the effectiveness of the implementation, mandating steps which might even not be in accordance with the State party's constitutional processes. The reason lies in article 2 para. 2 itself which obligates the States to give effect to the rights recognized in the Covenant. However, there is still considerable leeway for the States parties in the elaboration of the content of the rights. Despite an emphasis on legislative measures, the Committee allows for legislative, administrative, judicial or other measures often leaving the choice to the States parties as long as the implementation is effective.365 Legislative measures can be adjusted to the specific features of the particular domestic legal systems. This is due to the wording of article 2 para. 2 which speaks about "necessary steps" and "in accordance with ... constitutional processes" and it corresponds to the intention of the drafters. Particularly with regard to "other measures" there is an extensive range of possible steps to put the rights into practice. In sum, the Committee has developed a progressive interpretation of the obligation of States parties to implement the ICCPR. The shift from free choice to detailed requirements on how to implement the Covenant is due to the special character of human rights treaties. While free choice of implementing measures represents the traditional rule under international law, this concept does not seem to be adequate for the effective protection of human rights under the experience of the Committee. The new interpretation of article 2 by the Human Rights Committee will have an impact on the implementation of the Covenant in the United States. Because of the recent development in the Committee's 364

365

Report of the Third Committee, in: GAOR 21st Sess., Annexes, Agenda Item No. 62, 37, para. 372 and 38, paras 376-377. However, the amendment was criticized as restrictive and later withdrawn. Ibid., paras 377 and 384; Jhabvala, see note 29,101. General Comment No. 18/37, see note 148, 26, para. 5; General Comment No. 19/39, see note 289,29, para. 3; General Comment No. 23/50 on article 27 (1994), in: HRI/GEN/1/Rev.l, 40, para. 6.1. Sometimes the Committee asks for legislative and other measures, cf. General Comment No. 20/44, see note 304, 30, para. 2; General Comment 18/37, see note 148,27, para. 9; General Comment No. 25/57, see note 290, para. 1.

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pronouncements, the United States reservations, understandings and declarations face a couple of problems. The idea underlying the reservations, understandings and declarations that neither domestic legal changes nor implementing legislation are necessary is incompatible with the standards developed by the Committee. Contrary to the U.S. understanding, the Covenant needs to be made directly applicable and the judicial branch needs to be involved in the implementation of the Covenant. The status accorded to the Covenant in U.S. domestic law will need to be modified.366 These problems have not yet been explicitly addressed by the Committee but they are likely to be addressed in future considerations of U.S. periodic reports. With its interpretation of article 2 the Committee has gone further than the European Court of Human Rights which — despite a seeming preference for the incorporation of the European Convention into domestic law — leaves the States parties with a fairly broad leeway in the implementation of the Convention. The Committee's new standards for incorporation may eventually have an impact on other human rights systems in future. The European and Inter-American institutions charged with the interpretation of their respective conventions may follow the example of the Committee in the interpretation of provisions on implementation similar to article 2 of the Covenant. In the more distant future, the Human Rights Committee may even use the concept developed by the Court of Justice of the European Community and consider the Covenant to be directly applicable even without its transformation into domestic law by States parties. Admittedly, this would be a huge step leaving the traditional distinction between international and domestic law behind. However, there is a trend of convergence of the two areas of law anyway367 and as pointed out several times before, the protection of human rights requires new methods of implementation. Taking into account that human rights treaties are living instruments which led the European Court of Human Rights to adopt a dynamic method of interpretation which is informed by the purpose (telos) of the Convention rather than by its drafting

366

367

While international treaties enjoy the same normative rank as federal statutes according to the U.S. Constitution, the Committee requires a higher status. It regularly asks for an incorporation into the Constitution. See text accompanying notes 212-215. Buergenthal, see note 145.


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history,368 it could be argued in future that the ultimate goal of an effective protection of human rights necessitates a direct application of the Covenant in domestic courts (irrespective of national systems regarding incorporation) side by side with an active implementation of the Covenant into the domestic structure. Such a direct application seems to be desirable in order to avoid situations where the Covenant is not considered to be self-executing and at the same time cannot be directly applied because the legislature prevents the implementation of the Covenant all together by simple non-action. It has to be kept in mind that article 2 para. 2 obliges States parties to take the necessary steps to adopt measures necessary to give effect to the Covenant rights. It is beyond question that even if one considers the Covenant to be directly applicable more steps are necessary to guarantee full compliance.369 In particular, when it comes to the obligation to "secure" the rights and to actively accord protection to the individual, the legislature is called upon. But this does not necessarily exclude any directly applicable effect of the Covenant as a safeguard in case of failure to implement.370 The Covenant rights are drafted in such a way that they can be applied by courts, at least with regard to the very core of the rights with their duty of forbearance.371 It could be argued that the measures of implementation are an addition to the Covenant's direct application and that the latter is the ultimate safeguard when measures

368 Tyrer v. United Kingdom (1978), 26 Eur. Ct. H.R. Ser. A, 15-16, para. 31. Also Dudgeon v. United Kingdom (1981), Vol. 45, 23-24, para. 60. However, in Feldbrugge and Deumeland the Court stressed that a dynamic interpretation is not available to read completely new concepts into the Convention. Feldbrugge v. The Netherlands (1987), Vol. 124, 1; Deumeland v. Germany (1986), Vol. 100, 1. Also ICJ Advisory Opinion on Namibia which also takes into account changes. Even the Court of Justice of the European Community's holding that Community law was intended to confer rights upon individuals was based rather on the purpose (objective intent) of the treaty than on the drafter's intent. 369 It has been argued that article 2 para. 2, with the undertaking to take steps excludes a direct effect of the Covenant per se on domestic law. Cf. Robertson, "The U.N. Covenant on Civil and Political Rights and the European Convention on Human Rights", see note 29,25. 370 The arguments made for a duty to make the Covenant directly applicable can equally be raised for its direct application without domestic transformation. 371 Tomuschat, "National Implementation of International Standards on Human Rights", see note 24,44,58.

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of implementation are not sufficient to guarantee the Covenant rights on the domestic plane. In this case individuals could directly refer to the Covenant rights in domestic courts even if the State party has not complied with its obligation of implementation under article 2 para. 2.

The World Bank Inspection Panel in its Seventh Year: An Analysis of its Process, Mandate, and Desirability with special reference to the China (Tibet) case Stefanie Ricarda Roos I. II. III.

Introduction China: Western Poverty Reduction Project (Quinghai Component) The Inspection Panel Mechanism and the Panel's Mandate 1. Panel Membership and Independence 2. The General Functioning of the Panel Mechanism a. Eligibility Criteria in General b. The Eligibility of the Requesters: Representation of Affected People c. Affected Rights and Interests 3. The Mandate and Legal Nature of the Inspection Panel a. Compliance Monitoring within the World Bank b. The Inspection Panel as a "quasi-judicial supervisory body" IV. The Applicable Standards in the Inspection Panel Process, their Legal Effects and Proper Interpretation 1. The Substantive Standards against which a Bank Project is Reviewed by the Panel 2. Interpretation, Application and Enforcement of Bank Policies and Procedures a. Flexibility of Interpretation, Application and Enforcement b. Methods of Interpretation of Bank Policies and Procedures aa. The Grammatical, Systematic, and Teleological Approach bb. Experience or Precedent in the Country in Question or Elsewhere c. The Panel's Role in Assessing and Interpreting the Bank's Policies and Procedures V. Consequences of Inspection Panel Investigations and Recommendations: Benefits and Challenges VI. Assessment and Concluding Observations

473 JA. FroweinandR. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 473-521. © 2001 Kluwer Law International. Printed in the Netherlands.

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I. Introduction The world of international law saw the establishment of a variety of new types of entities during the last decade of the twentieth century. One such entity is the World Bank1 Inspection Panel which has the competence to investigate complaints brought by private parties in borrowing countries alleging that the World Bank has failed to follow its own policies and procedures when designing, appraising and/or implementing Bank-financed projects. The Inspection Panel was created by the Bank's Executive Directors2 on 22 September 19933 in an attempt to increase the World Bank's accountability vis-a-vis non-state actors, and to improve compliance with, inter alia, its social and environmental policies.4 Since Panel operations began in September 1994,5 the Inspection Panel has received 21 Requests for Inspection of Bank-financed projects in Nepal, Ethiopia, Tanzania, Brazil, Chile, Bangladesh, Ar-

As used in this article, the term "World Bank" or "Bank" covers both the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA). There are 24 Executive Directors. Five Directors are appointed by members with the largest number of shares. These are France, Germany, Japan, the United Kingdom, and the United States. The other 19 are elected every two years by the Governors of the remaining members. Normally, the Executive Directors meet twice a week to oversee the Bank's business. Resolution establishing the Inspection Panel (No. 93-10 for the IBRD and 93-6 for IDA) of 22 September 1993, circulated as document No. SecM93988 (IBRD) and SecM93-313 (IDA), hereinafter the Resolution. The Resolution was published in ILM 34 (1995), 520 et seq. with an introductory note by M. Ragazzi, and is available on the Bank's website at (http://www.worldbank.org). For a detailed account of the discussions on and motives for the establishment of the Inspection Panel, see LEI. Shihata, The World Bank Inspection Panel- In Practice, 2nd edition, 2000,1 et seq. Cf. The Centre for International Environmental Law (CIEL), "The World Bank Inspection Panel," available at (http://www.ciel.org); also S. Schlemmer-Schulte, "Introductory note to the conclusions of the second review of the World Bank Inspection Panel," ILM 39 (2000), 243 et seq.; The Inspection Panel Annual Report 1998-1999, 3. The first three Panel Members were appointed in April 1994; they took office in August 1994, and the Inspection Panel's office opened for business in September 1994. Cf. S. Schlemmer-Schulte, "The World Bank Inspection Panel: A Record of the First International Accountability Mechanism and Its Role for Human Rights," Human Rights Brief 6 No. 2 (1998), available at (http://www.wcl.american.edu)

, The World Bank Inspection Panel

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gentina/Paraguay, India, Lesotho/South Africa, Nigeria, China, Kenya, and Ecuador.6 Most requests concerned infrastructure and environmental and land reform projects, and two requests were on adjustment operations.7 This article covers the period up to March 2001. It examines the general functioning of the Panel mechanism, the Panel's mandate, and its costs and benefits through a case study of the Quinghai component of the China: Western Poverty Reduction Project (China-Tibet). The Quinghai Project, which was challenged by a Request for Inspection in June 1999, was chosen for various reasons. First, it is one of the Bank's most controversial projects because of its serious social and environmental effects. The Request for Inspection regarding the Quinghai Project does not only deserve closer examination because of the attention it has attracted, but also because it was the first request that went through a full investigation process. Second, the Panel review of the Quinghai Project makes an interesting case study because of the outcome: In the end, China withdrew its loan application and announced that it would pay for the project itself. Finally, and most importantly, the Quinghai Project has not been the subject of significant academic analysis to date unlike earlier Inspection Panel cases. This is despite the fact that the Panel, in its Investigation Report, deals with fundamental questions concerning, inter alia, the interpretation and application of Bank policies and procedures, and the approach it has taken in this regard is worth examining more closely. The following section summarizes the background to the Quinghai case. Part III describes the Inspection Panel mechanism, and discusses special issues and developments regarding the assessment of the eligibility of a Request for Inspection. It will also deal with the Panel's mandate and its legal nature in general. A succeeding section will address the limits of the Panel's mandate, particularly with regard to the interpretation, application, and enforcement of Bank policies and procedures. Part V considers the consequences of Inspection Panel Investi-

For a list of all Panel Requests, see The Inspection Panel, "Panel Request: Notices of Registration from requests received by the Inspection Panel," available at the World Bank's website. For a summary of the Panel's cases covering the period until 30 June 1999, see Shihata, see note 3, 99 et seq. See also S. Schlemmer-Schulte, "The World Bank's Experience With Its Inspection Panel," ZaoRV 58 (1998), 353 et seq.; R.E. Bissel, "Recent Practice of the Inspection Panel of the World Bank,"4//Z, 91 (1997), 741 et seq.

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gallons and Recommendations, particularly for cases resulting in the cancellation of the Bank's support of specific projects. A concluding section assesses the Panel's desirability.

II. China: Western Poverty Reduction Project (Quinghai Component) The China: Western Poverty Reduction Project, which is the 6th World Bank-assisted poverty reduction program in China,8 aims at reducing absolute poverty in remote and inaccessible villages of three Chinese provinces: the Inner Mongolia Autonomous Region, Gansu and Quinghai, the latter being located in western China.9 Only the Quinghai component of the Poverty Reduction Project (henceforth: Quinghai Project) was the subject of both a Request for Inspection and an investigation by the Inspection Panel. The Quinghai Project aims to alleviate poverty through the resettlement of 57.775 farmers who currently practice high-altitude rain-fed agriculture in the mountainous areas of five counties in Haidong Prefecture and one county in Xining City Prefecture (Move-out area). The farmers are to be resettled to the dryland area of the Haixi Tibetan and Mongolian Autonomous Prefecture in Dulan County (Move-in area), where the renovation of an existing eight meter dam, the construction of a new 40 meter dam and of two canals, 29 and 56 km, respectively, are planned to supply water to irrigate some 26.500 ha of land.10 In late spring 1999, the World Bank Management, responding to harsh external criticism of the Quinghai Project by environmental activists, human rights advocates, Tibet Support Groups, and other civil society groups opposed to the Bank's involvement in the Quinghai 8

9 10

Previous programs were supported in the Southwest, the Gansu-Hexi Corridor, the Quinba Mountains, Shanxi and the Ningxia Hui Autonomous Region. Cf. The Inspection Panel Investigation Report: The Quinghai Project - A Component of the China: Western Poverty Reduction Project, Credit No. 3255-CHA and Loan No. 4501-CHA of 28 April 2000, 2, note 1. The China: Western Poverty Reduction Project became pan of the Bank's China portfolio in January 1997; preparatory work on the project began early in the 1990s. Cf. The World Bank, China: Strategies for Reducing Poverty in the 1990s, Report No. 10409-CHA of 29 June 1992. Cf. The Inspection Panel Investigation Report, see note 8,2. Ibid., 3-4.

Roos, The World Bank Inspection Panel

477

Project, primarily because of the project's severe social and environmental effects,11 conducted an internal review of the project's environmental and social aspects. The review resulted in the proposal of refinements and improvements, fresh negotiations with the Chinese Government, and, following agreement on modifications, a revised loan package.12 On 18 June 1999, however, after a series of meetings with the Bank Management and a barrage of complaints from concerned individuals, organizations, and parliamentarians failed to result in the Bank's withdrawal from the Quinghai Project, a Request for Inspection was filed with the Inspection Panel.13 The Requester's main claim was that "the resettlement of the new migrants... [would] directly and adversely impact 4.000 local people..., [and] have indirect impacts on the entire county, including a serious risk of escalation of ethnic tension and conflicts over resources."14 They attributed the alleged harm to Management's failure to comply with Bank policies and procedures, in particular those on Indigenous Peoples, Involuntary Resettlement, and Environmental Assessment.15 Notwithstanding the Request for Inspection, the World Bank, on 24 June 1999, decided to finance with US$ 160 million the entire Western Poverty Reduction Project,16 US$ 40 million of which were intended for

11

12 13

14

15 16

Public controversy regarding the Quinghai Project was triggered by the publication of an article by the Tibet Information Network (TIN), criticising particularly the proposed resettlement of non-Tibetans into the Tulan Mongolian and Tibetan Autonomous Prefecture in Quinghai Province. Cf. Tibet Information Network, "World Bank Funds Controversial Population Transfer Scheme," News Update of 27 April 1999. Cf. The Inspection Panel Investigation Report, see note 8,6. Cf. Press Release by the International Campaign for Tibet, "World Bank Approves Chinese Population Transfer ICT Inspection Panel Claim Delays Project Implementation & Funding," 24 June 1999, available at (http://www.tibet.com) Cf. The Inspection Panel, Report and Recommendation on Request for Inspection; Re: Request for Inspection China: Western Poverty Reduction Project, Credit No. 3255-CHA and Loan No. 4501-CHA of 24 August 1999,2, para. 6. Ibid., 2 et seq., paras. 6 et seq. Of this amount, US$ 100 million were to be provided in concessional funds through a credit by IDA, No. 3255-CHA and US$ 60 million through a loan by IBRD, No. 4501-CHA. For the entire poverty reduction project, US$ 311 million were required. Cf. The Inspection Panel Investigation Report, see note 8,6.

478


the benefit of people in Quinghai, for the people who were being resettled, those who were staying, and those who live in and around the Move-in area.17 It is important to note, however, that the Executive Directors "in an unusual move"18 approved this loan and credit with the proviso "that no work be done and no funds be disbursed for the ... Quinghai component of the project until the Board decides on the results of any review by the ... Inspection Panel."19 On 9 September 1999, the Executive Directors, following the Inspection Panel's Recommendation of 24 August 1999, authorized the Panel to investigate whether the Bank has violated one or more of the following operational directives (OD) and procedures (OP) in the preparation (design and appraisal) of the Quinghai Project: Disclosure of Information (Bank Procedure (BP) 17.50), Environmental Assessment (OD 4.01), Indigenous Peoples (OD 4.20), Involuntary Resettlement (OD 4.30), Pest Management (OP 4.09), Safety of Dams (OP/BP 4.37), Retroactive Financing (OD 12.10), and Investment Lending: Identification to Board Presentation (OD 10.00).20 The investigation was undertaken between September 1999 and January 2000 and included a field visit to Beijing and Quinghai Province.21 The Inspection Panel Investigation Report, which was presented to the Executive Directors on 28 April 2000, concluded that Bank Management had violated seven of ten safeguard policies, inter alia, Operational Directives regarding Environmental Assessment, Indigenous Peoples, and Involuntary Resettlement, as well as Operational Procedures concerning Pest Management and Investment Lending, and Bank Procedure 17.50 regarding Disclosure of Information.22

17

Ibid.

18

Cf. The World Bank, "World Bank approves China Western Poverty Reduction Project: Quinghai Component Delayed for Inspection Panel Review," Press Release of 24 June 1999, para. 1. Ibid. IDA and IBRD, Proposed Decision on Request for Inspection - China Western Poverty Reduction Project (Credit No. 32550 CHA and Loan No. 4501 - CHA), INSP/R99-6/2, of 7 September 1999. For further information on the investigation process, see The Inspection Panel Investigation Report, see note 8,9-14. With regard to the provisions of OD 4.00 Environmental Policy for Dam and Reservoir Projects; OP/BP 4.37 Safety of Dams; BP 10.00 Investment Lending: Identification of Board Presentation; and OP/BP 12.10 Retroactive Financing, no violation was noticed.

19 20

21

22


479

In a statement issued on 6 July 2000, the Chinese Government harshly criticized the Inspection Panel Report, putting, inter alia, forward, that "[t]he Panel [in the investigation of the Quinghai component] takes on the role of a critic of the Chinese government and the social and political system of China, rather than carry out a review of Bank staff and Management's compliance with Bank policies," and that it "is being used as an instrument to oppose China politically, acting as a proxy for those who are waging a campaign against the sovereignty and integrity of the country."23 The World Bank Executive Directors, after an extensive debate on 6 July 2000,24 failed to reach a decision on the Inspection Panel's recommendation and agreed to resume talks the following day. The choices the Directors faced were (a.) to go ahead with the project, (b.) to cancel it, or (c.) to carry out further environmental and social studies over the following 15 to 18 months before providing any funds.25 On 7 July 2000, however, before the Executive Directors were able to reach a consensus, China withdrew its application for the US$ 40 million Quinghai loan on the grounds that new conditions were unacceptable as the loan conditions had already been agreed upon, and noted that it would pay for the project itself.26 China's withdrawal lead to the Bank's departure from the Quinghai Project.27

23

24

25 26

Chinese Government's Statement on the Inspection Panel Investigation Report for the China: Western Poverty Reduction Project (Quinghai Component) of 6 July 2000,1 and 3 et seq. Cf. San Jose Mercury News, "World Bank still mulling resettlement loan to China" of 7 July 2000. The Bank's President, James Wolfensohn, favored the third choice. Cf. ibid. The Chinese Executive Director, Zhu Xian, read the following statement to the Executive Directors on behalf of his authorities: "China accepts no conditions beyond Management's original recommendations that had been agreed between Management and my authorities .... It is unacceptable to my authorities that other Bank shareholders would insist on imposing additional conditions on Management's recommendations - namely coming back to the Board for approval again for a project that was already approved last year. If that is the case, China will therefore turn to its own resources to implement the Quinghai Component of the project, and in its own way. ... We regret that because of political opposition from some shareholders the World Bank has lost a good opportunity to assist some of the poorest people in China, probably in the world." The World Bank Group, "China to Implement Quinghai Component of the China Western

480


III. The Inspection Panel Mechanism and the Panel's Mandate The Inspection Panel's mandate and the Panel's basic operating principles are laid out in the Resolution which founded the Panel and the two Clarifications thereto.28 The Panel's Operating Procedures, adopted by the Panel members on 19 August 1994 to implement the Resolution, provide details of the Resolution's operational provisions.29

1. Panel Membership and Independence As required of different pointed by President.30

27

28

29

30

by the Resolution, the Panel is composed of three members nationalities from Bank member countries, who are apthe Executive Directors upon nomination by the Bank's Minimum qualifications relating to the expertise of the

Poverty Reduction Project with its own Resources," News Release No. 2001/004/EAP of 7 July 2000. See, e.g. J. Peterson, "Tibet supporters celebrate decision," Los Angeles limes of 8 July 2000 in the San Jose Mercury News. Pursuant to para. 27 of the Resolution, the Executive Directors shall review the experience of the inspection function. Thus far, the Inspection Panel has been subject to two general reviews by the Bank's Executive Directors. The first review was concluded on 17 October 1996 with the approval of the 1996 Clarifications of the Resolution. In April 1999, the second review of the Panel's operations which had been launched by the Executive Directors in March 1998, ended with the approval of the second Clarifications of the Resolution. For the full text of the 19% and 1999 Clarifications, see: The Inspection Panel, "Resolution - Review of the Resolution Establishing the Inspection Panel: Clarifications of Certain Aspects of the Resolution" of 17 October 1996, and "Resolution - Conclusions of the Board's Second Review of the Inspection Panel" of 20 April 1999, respectively, available at the World Bank's website. For a comprehensive analysis of the 1996 Clarifications, see Shihata, see note 3, 156-172. For a discussion of the 1999 Clarifications, see Schlemmer-Schulte, see note 4,243 et seq. Operating Procedures as adopted by the Panel on 19 August 1994, available at the World Bank's website. The Operating Procedures comprise, inter alia, guidance on how to prepare a request (Annex 2), together with an attached model form. Resolution, see note 3, para 2. The first three Panel Members were Mr. Ernst-Gunther Broder (Germany), who served as the Panel's first Chairperson from August 1994 to July 1996, Mr. Richard E. Bissell (United


481

Panelists are stipulated in the Resolution.31 Thus far, one Inspector, the Chairperson, works on a full-time basis, and the other two Inspectors work part-time.32 Since the creation of the Inspection Panel, the Executive Directors repeatedly affirmed the importance of the Panel's independence.33 Their concern in this respect is reflected in the Resolution which contains various requirements to assure the independence of the Panelists.34 The Resolution provides, first, that former Executive Directors, Alternate Executive Directors, Advisors and staff members of the Bank Group may only serve on the Inspection Panel, if two years have passed since the end of their service in the World Bank Group.35 Secondly, Panelists shall serve a single non-renewable five year term of office.36 Thirdly,

31

32 33 34

35

36

States), Chairman from 1 August 1996 to 31 July 1997, and Mr. Alvaro Umana Quesada (Costa Rica), Chairman from 1 August 1997 to 31 July 1998, who was replaced by Mr. Edward S. Ayensu in 1998. Mr. Bissell was replaced by Mr. Jim MacNeill on 1 August 1998. The current Panel Members are Mr. MacNeill, who was unanimously re-elected by the members of the Inspection Panel to serve as Chairman of the Panel effective 1 March 2001 until 28 February 2002, (cf. The Inspection Panel, Press Release, "Canadian Continues to head the World Bank's Inspection Panel" of 1 March 2001), Mr. Ayensu, and Ms. Maartje van Putten who was appointed October 1999. These minimum qualifications are that the Panel Members (a.) are able to "deal thoroughly and fairly with the request," (b.) have integrity and be independent of Bank's management, and (c.) that they have "exposure to developmental issues and to living conditions in developing countries." Finally, it would be "desirable" for the Panelists to have knowledge and experience of the Bank's operations. Resolution, see note 3, para.4. See Operating Procedures, see note 29, Composition. See, e.g. the 1999 Resolution-Conclusions of the Board ..., see note 28. Cf. D. D. Bradlow, "The World Bank's Independent Inspection Panel," IJIL 33 (1993), 59 et seq., (61). Resolution, see note 3, para. 5. Current Inspection Panel Members, prior to serving on the Panel, have been, inter aha, policy advisor on the environment, energy, management, and sustainable development to international organizations, governments, and industry, Mr. MacNeill; Senior Advisor to the President of the African Development Bank and the Bank's Director for Central Projects, Mr. Ayensu, and both a member of the European Parliament and of the Committee on Development and Cooperation, Ms. van Putten. Cf. The World Bank Group, The Inspection Panel, "Member Biographies," available at the World Bank's website. Resolution, see note 3, para. 3.

482


Panel Members, after their term of office expires, will be ineligible for employment with the World Bank Group.37 And fourthly, Panelists may only be removed from office by a decision of the Executive Directors.38 It must be emphasized from the outset, however, that unlike national or international courts of law, the Panel is not a truly independent body despite these safeguards for independence. The Panel's independence is primarily "counterbalanced by the fact that it only has advisory powers."39 As will be explained later in this paper, the Panel has only the power to make a recommendation to the Executive Directors as to whether the matter of request should be investigated.40 It can not start an investigation of the request without prior approval by the Executive Directors.41

2. The General Functioning of the Panel Mechanism The inspection process is to be performed in two phases. In the first phase, the Panel determines the eligibility of the requesters and the registered42 Request for Inspection after Management has responded to the 37 38 39 40 41

42

Ibid., para. 10. Ibid., para. 8. Cf. Bradlow, see note 34,61. Cf. Resolution, see note 3, para. 19. Cf. Th. Bufi, "Zwischen Immunitat und Rechtsschutz: Das Inspection Panel innerhalb der Weltbankgruppe," Recht der internationalen Wirtschaft 5 (1998), 352 et seq., (357). Bufi argues that, although the Panel's independence would have further been emphasized if the final decision on whether to investigate the matter lied with the Panel, this distribution of competences is acceptable as long as the Executive Directors do not simply ignore or disregard the final Inspection Panel Report. Pursuant to para. 16 of the Panel's Operating Procedures "(w)hen the Panel receives a Request the Chairperson, on the basis of the information contained in the Request, shall either promptly register the Request, or ask for additional information, or find the Request outside the Panel's mandate." The wording of this provision suggests that the Panel registers the request only after having decided that it is prima facie not barred from Panel consideration. This assumption is confirmed by para. 22 of the Operating Procedures which stipulates that the Panel's Chairperson notifies the Requesters of his/her refusal to register the Request if he/she finds "that the matter is without doubt manifestly outside the Panel's mandate." In its Notices of Registration, the Panel's current Chairperson, Mr. MacNeill, pointing to the fact "that the Panel's 'registration' process is often misunderstood,"


483

concerns expressed in the claim.43 If the Panel decides the request is meritorious, this phase concludes with a Panel Recommendation to the Executive Directors, to be followed by a decision of them on whether or not to approve an investigation.44 If the Panel does not recommend an investigation and the Executive Directors agreed, the case is considered closed. The Executive Directors may, however, authorize an investigation against the Panel's recommendation if it so warrants.45 If the Board approves an investigation, the second phase begins. In this phase, the Inspection Panel carries out a formal investigation on the merits of the request. The investigation stage46 ends with the submission of a Panel Report to the Bank's President and the Executive Directors. The Report includes the Inspectors' findings on whether the Bank has complied with the relevant Bank policies and procedures, as

43

44

45 46

emphasizes that "registration" is a purely administrative procedure established by the Panel which implies no judgment whatsoever concerning the eligibility of the request. Cf., e.g. The Inspection Panel, Notice of Registration - Re: Request for Inspection - Proposed China: Western Poverty Reduction Project of 18 June 1999. Bank Management has 21 working days to respond to the allegations of the Requesters, Resolution, see note 3, para. 18. Pursuant to para. 3 of the 1999 Clarifications, Management, in its initial response to the Request for Inspection, must provide evidence that "it has complied with the relevant Bank operational policies and procedures; or that there are serious failures attributable exclusively to its own actions or omissions in complying, but that it intends to comply with the relevant policies and procedures, or that the serious failures that may exist are exclusively attributable to the borrower or to other factors external to the Bank, or that the serious failures that may exist are attributable both to the Bank's non-compliance with the relevant operational policies and procedures and to the borrower or other external factors." As required by the Resolution, a Request for Inspection presupposes that the Requester has already taken actions to bring the issue to the attention of the Management. The - necessarily - written request must explain Management's response to such action. Cf. Resolution, see note 3, para. 16. In nine registered cases, the Inspection Panel recommended investigations. In five cases, the Executive Directors approved the recommendations for investigation, which had subsequently been conducted. The Panel's Report (including the Request for Inspection and Management's Response) is made publicly available at the Bank's InfoShop and the respective Bank Country Office three days after the Board's decision on whether to approve an investigation or not. See The Inspection Panel Annual Report 1998-1999,3. Cf.ibid. Panel investigations are not time-bound. Cf. ibid.

484


well as all relevant facts.47 Within six weeks from receiving the Panel Report, Bank Management has to provide the Executive Directors with its recommendations regarding the Panel's findings.48 Based on both the Panel and the Management Report, they then make a final decision on how to respond to the investigation report.49 The Executive Directors must inform the complainants about the Panel Report and subsequent actions taken by the Bank.50 As the Complaint Process has been well described elsewhere,51 only some aspects of the Panel's assessment of the eligibility of a complaint ("admissibility" stage) will be discussed in the following section. a. Eligibility Criteria in General The Resolution provides for certain eligibility criteria which, in any case, must be fulfilled to establish the Panel's competence or "jurisdiction."52 The 1999 Clarifications for the application of the Resolution53 expressly stipulate the following "technical eligibility criteria": (1) The affected party consists of two or more persons with common interests or concerns, who are in the borrower's territory (Resolution para. 12). (2) The request asserts in substance that a serious violation by the Bank of its operational policies and procedures has or is likely to have a material adverse effect on the requester (Resolution paras. 12 and 14 lit.(a)).

47 48 49

50 51

52 53

Resolution, see note 3, para. 22. Ibid., para. 23. Pursuant to the Resolution, "the Bank shall, within two weeks of the Executive Directors' consideration of the matter, inform such party of the results of the investigation and the action taken in its respect, if any." Ibid. Ibid. See e.g. LEI. Shihata, The World Bank Inspection Panel, 1994, 53 et seq.; id., see note 3, 55 et seq.; Bradlow, see note 34, 59 et seq.; id., "International Organizations and Private Complaints: The Case of the World Bank Inspection Panel," Va. J. Int'l L 34 (1994), 553 et seq., (581 et seq.); D. D. Bradlow/S. Schlemmer-Schulte, "The World Bank's New Inspection Panel: A Constructive Step in the Transformation of the International Legal Order," ZaoRV 54 (1994), 392 et seq., (396 et seq.). Resolution, see note 3, paras. 12-14. See note 28.


485

(3) The request asserts that its subject matter has been brought to Management's attention and that, in the requester's view, Management has failed to respond adequately by demonstrating that it has followed or is taking steps to follow the Bank's policies and procedures (Resolution para. 13). (4) The matter is not related to procurement (Resolution para. 14 (5) The related loan has not been closed or substantially disbursed (Resolution para. 14 lit.(c)). (6) The Panel has not previously made a recommendation on the subject matter or, if it has, the request asserts that there is new evidence or circumstances not known at the time of the prior request (Resolution para. 14 lit.(d)). Pursuant to para. 7 of the 1999 Clarifications, the Panel visits the project country if it believes that this is necessary to establish the eligibility of the request.54 b. The Eligibility of the Requesters: Representation of Affected People Under the Resolution, the term "affected party ... which is not a single individual" covers "a community of persons such as an organization, association, society or other grouping of individuals" living in the project area, but not a single individual.55 The Request for Inspection can either be submitted by the affected party itself or by a representative acting for and on behalf of the affected party.56 Although the representative should, as a rule, be local, foreign representatives may be allowed to file a claim if appropriate representation is not locally available.57 Complaints by external NGOs acting on their own are, however, not eligible.58 Although the question of "non-local" representation concerns the admissibility of the complaint, it is not the Panel which decides on whether the Requester's contention that appropriate local representation is not available is convincing, but the World Bank's Executive Di54

Ibid.

55

Resolution, see note 3, para. 12. Ibid. Ibid. Cf. Shihata, 1994, see note 51, 58.

56 57 58

486


rectors.59 The agreement on the requirement of the Executive Directors' approval of foreign representation as embodied in the Resolution was a compromise solution. The Executive Directors who, in August 1993, considered draft resolutions in a Committee of the Whole,60 were split on the question whether an affected party may have a foreign representative, with some Executive Directors representing developed countries being in favour of such representation and other Executive Directors representing borrowing countries opposing it.61 The Panel's legal architect, Ibrahim Shihata, remarked on this discussion: "The issue was obviously of great importance to the concerned NGOs in developed countries which wanted to be in a position to represent affected parties in borrowing countries who, in the judgment of these NGOs, may not always be able to present their case against the Bank. It was also an important issue for some of the governments of borrowing countries which feared intervention of foreign parties in the relationship between these governments and their citizens and the increased politicization and internationalization of their domestic issues."62 According to Shihata, the solution was "meant to assure those who feared abuse of this arrangement that the Board remained the final arbiter on whether the situation justified it."63 Notwithstanding the reasons for the agreement on the current solution, the decision of the Executive Directors drafting the Resolution to have the politically motivated Executive Directors, who are, inter alia, responsible for policy decisions affecting the Bank's operations,64 rather than the independent

59 60

61

62 63 64

Resolution, see note 3, para. 12. For a detailed account on the preparatory work in the Bank's Management and Board leading to the adoption of the Resolution, see Shihata, 1994, see note 51,30 et seq. Cf. ibid., 57. It may be interesting to note that in earlier draft resolutions, no reference was made to representation of the affected party in the submission of Requests for Inspection to the Panel. Cf. ibid. Ibid., 57 et seq. Ibid., 58. See The World Bank Group, "Executive Directors and Voting Power," available at the Bank's website. The Executive Directors primary responsibility is to conduct the general operations of the Bank, and, for this purpose, to exercise all the powers delegated to them by the Board of Governors. The Executive Directors are also responsible for the approval of loans. Cf. IBRD, Articles of Agreement (as amended effective 16 February


487

Inspection Panel determine whether the exceptional circumstances requirement for non-local representation has been met shows, that the Inspection Panel cannot be regarded as a truly judicial, independent body, but as a "quasi-judicial supervisory body"65 at best.66 An examination of the Requests for Inspection received by the Panel to date depicts an interesting development, which not only regards the Inspection Panel complaint process, but a universal evolution concerning growing participation of non-governmental organizations (NGOs) and other organizations of civil society67 in international institutions and processes.68 Although the majority of the altogether 21 formal Requests for Inspection submitted to the Panel as of 1 March 200169 were filed by individuals — groups of citizens/residents living in the borrower's territory,70 or associations and organizations representing them-

65

66 67

68

69

70

1989), Article V, Section 4. Executive Directors, IDA, Articles of Agreement (effective 24 September 1960), Article VI, Section 4. Bradlow, see note 51, 602. Cf. also B. Kingsbury, "Operational Policies of International Institutions as Part of the Law-Making Process: The World Bank and Indigenous Peoples," in: G. S. Goodwin-Gill/ St. Talmon (eds), The Reality of International Law: Essays in Honour of Ian Brownlie, 1999, 323 et seq., (330). Cf. infra III. 3.b. As to the terminological differences between these two groups, see, e.g., the World Bank's definition of NGOs and civil society organisations. According to GP 14.70, "(t)he term 'NGO' refers to a myriad of different types of organizations. At its broadest, it includes all groupings of individuals that fall outside the public and non-profit sectors, whether legally constituted or informal, established or transient." In contrast, "civil society," is understood by the Bank to consist of "non-profit organizations and special interest groups, either formal or informal, working to improve the lives of their constituents. Civil society organizations (CSOs) include local parliamentarians, media, and policy development and research institutes." GP 14.70 - Involving Nongovernmental Organizations in Bank-Supported Activities (February 2000) (note 1 of GP 14.70). For an analysis of the emergence of NGO's in general, see Ch. Ku, "The Developing Role of NGO's in Global Policy and Law-Making," Proceedings of the International Law Association - First Asian-Pacific Regional Conference, 1996,408 et seq. Cf. The Inspection Panel, Press Release, "Canadian Continues to head the World Bank's Inspection Panel" of 1 March 2001, available at the World Bank's website. In the following cases, Requests for Inspection were submitted by a group of citizens or individuals residing in the project area: The very first Request

488


selves71 — who claimed that their rights/interests had been adversely affected by acts and omissions of either the IDA or the IBRD, the more recent claims have been filed by NGOs acting for and on behalf of af-

71

for Inspection, concerning the Nepal Arun HI Hydroelectric Project was filed by citizens of Nepal, two of whom had been represented by individuals as they wished to remain anonymous, see The Inspection Panel, Notice of Registration - Re: Request for Inspection - Nepal: Arun HI Hydroelectric Project of 3 November 1994; the second Request for Inspection regarding the Tanzania: Power VI Project was submitted by six residents of Tanzania representing themselves, see: The Inspection Panel, Notice of Registration - Re: Request for Inspection - Tanzania: Power VI Project (Cr.2489-TA) of 16 June 1995; and the request regarding the Bangladesh: Jute Sector Adjustment Credit was submitted by a group of citizens of Bangladesh who are shareholders/CEOs of private sector jute mills, see: The Inspection Panel, Notice of Registration - Re: Request for Inspection Bangladesh: Jute Sector Adjustment Credit 2567-BD of 13 November 1996. In addition, Requests for Inspection regarding the following projects were submitted by a group of about 121 Brazilian individuals; by residents of Singrauli, India; by residents of the township of Alexandria, Guateng Province, South Africa; and by, inter aba, 853 individuals living in the project area, respectively: The Brazil: Itaparica Resettlement and Irrigation Project, Loan 2883-1-BR of 12 March 1997; the India: NTPC Power Generation Project, Loan 3632-IN of 1 May 1997; the Lesotho/South Africa: Proposed Loan for Phase IB of Lesotho Highlands Water Project of 6 May 1998, and the Brazil Land Reform and Poverty Alleviation Pilot Project, first Request for Inspection: 14 December 1998; second Request for Inspection: 14 September 1999, respectively. All documents are available at the World Bank's website. This was the case for the Requests for Inspection regarding (a.) the Nigeria: Lagos Drainage and Sanitation Project which was submitted by an organization called the Social and Economic Right Action Center (SERAC) which represented, inter alia, themselves, see: The Inspection Panel, Notice of Registration - Re: Request for Inspection - Nigeria: Lagos Drainage and Sanitation Project, IDA Credit No. 2517of 25 June 1998; and (b.) the Brazil: Land Reform and Poverty Alleviation Pilot Project see: The Inspection Panel Notice of Registration - Re: Request for Inspection - Brazil Land Reform and Poverty Alleviation Pilot Project, Loan No. 4147 BR of 14 December 1998. The third Request for Inspection concerning the Brazil: Rondonia Natural Resources Management Project was submitted by various Brazilian associations, community centres, and institutes as well as by "Seringueiros de Machandinho", see The Inspection Panel, Notice of Registration - Re: Request for Inspection - Rondonia Natural Resources Management Project, Loan 3444-BR of 19 June 1995, available at the World Bank's website.


489

fected parties in the project area.72 The most noteworthy request in this connection is, as already mentioned, the Request for Inspection regarding the Quinghai Project. Whereas in the preceding cases of representation, the requests were submitted by local representatives, in the Quinghai case, the inspection process was triggered by a U.S.-based NGO, the International Campaign for Tibet (ICT), which acted for and on behalf of "Tibetan and Mongolian ethnic peoples" living in the project area.73 ICT claimed that its representational authority was:

72

73

These Requests are the following: The Request for Inspection concerning the controversial China: Western Poverty Reduction Project, submitted by the International Campaign for Tibet (ICT) on 18 June 1999; the Request regarding the Argentina: Special Structural Adjustment Loan, Loan 4405AR of 26 July 1999 which was filed by a group of attorneys of the Centro de Estudios Legales y Sociales - GELS (Center for Legal and Social Studies), a distinguished Argentine NGO, representing about 418 beneficiaries of the Pro-Huerta program which provides food and nutrition assistance to the absolute poor; the request concerning the Kenya: Lake Victoria Environmental Management Project which was submitted by RECONCILE (Resources Conflict Institute), a Kenyan NGO, which also represented a OSIENALA (Friends of Lake Victoria), an NGO located in Kisumu, and the Kenya Chapter of Ecovic (the East African Communities Organization for Management of Lake Victoria Resources) which represent communities living along the Kenya side of Lake Victoria; and the request concerning the Ecuador: Mining Development and Environmental Control Technical Assistance Project filed by DECOIN, Defensa y Conservacion Ecologica de Intag (Defense and Ecological Conservation of Intag), an Ecuadorian NGO, which submitted the request together with four representatives of the Associacion de Caficultores Rio Intag (Association of the Coffee Growers of Rio Intag), all residents in the project area. See: The Inspection Panel, Notice of Registration - Re: Request for Inspection - Proposed China Western Poverty Reduction Project; Notice of Registration - Re: Request for Inspection - Argentina: Special Structural Adjustment Loan, Loan 4405AR; The Inspection Panel, "Press Release - Kenya Lake Victoria Environmental Management Project: Inspection Panel Investigation to begin 8 May 2000, and The Inspection Panel, Press Release - World Bank Authorizes an Inspection Panel Investigation of 16 May 2000, respectively. All documents are available at the Bank's website. See International Campaign for Tibet (ICT), Request for Inspection: China Western Poverty Reduction Project, Credit No. 32550 CHA and Loan No. 4501-CHA, INSP/R99-6 of 18 June 1999. With regard to that case, the Inspection Panel also received a letter from the International Committee of Lawyers for Tibet (ICLT) to which a 5 page report was attached detailing legal arguments against the project. Cf. The Inspection Panel, Report and

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"based on its long-standing involvement in the project area and its mandate to advocate on behalf of the interests of the Tibetan people. In this capacity, the ICT has received letters from inside the project area seeking international assistance in raising concerns about the devastating impacts of this project on local peoples. In addition, the Tibetan Government in Exile and a Tibetan spiritual center in New York have sought ITC's assistance in filing a claim to the World Bank Inspection Panel. Given the location of this project and the situation faced by local people, this claim meets the exceptional circumstances requirement for non-local representation."74 The Inspection Panel, in its Report on the eligibility of the Request and the Requesters concluded "that the Request met all eligibility criteria required under the Resolution ..., except that the Board itself had to decide on whether external representation was appropriate."75 In its August 1999 Memorandum to the Executive Directors, the Chairman of the Inspection Panel did, therefore, request that the Executive Directors agreed that "appropriate representation" was not locally available "for purposes of eligibility of the requesters under paragraph 12 of the Resolution."76 Interestingly, the Executive Directors authorized the Panel to conduct an investigation into the Quinghai Project without deciding on the question of appropriate representation on the grounds that: "Board determination of the issue of eligibility of the requesters...[would] require obtaining and considering additional information and the careful analysis of a number of important issues. This process... [was] likely to delay investigation by the Panel. Consequently, in order to expedite Panel investigation, it... [was] proposed that [...] the Executive Directors ... instruct the Panel to conduct an investigation... ,"77

74

75 76

77

Recommendation on Request for Inspection, Re: Request for Inspection China: Western Poverty Reduction Project, Credit No. 3255-CHA and Loan No. 4501-CHA, 2 (note 1). Cf. The Inspection Panel, Notice of Registration - Re: Request for Inspection - Proposed China Western Poverty Reduction Project of 18 June 1999, available at the World Bank's website. See The Inspection Panel Investigation Report, see note 8,8, para. 15. Cf. Request for Inspection - Panel Report and Recommendation, INSP/R99-6 of 24 August 1999. IDA and IBRD, Proposed Decision on Request for Inspection - China: Western Poverty Reduction Project, Credit No. 32550 CHA and Loan No.


491

The above example calls attention to a number of interesting points: First, it clearly illustrates the growing role that NGO's play at the beginning of the twenty-first century both in international law in general, as regards, inter alia, their participation in international dispute settlement,78 judicial79 and quasi-judicial proceedings, and their participation in global policy and the operations of international organisations. Their "mandates" are no longer limited to mere advocacy work,80 but extend to legal representation, such as in the Inspection Panel process, partici-

78

79

80

4501 - CHA, INSP/R99-6/2 of 7 September 1999. By way of contrast, the Inspection Panel in its Report and Recommendation on Request for Inspection found that the ICT, "(a)s required by the Resolution ... presented the Panel with 'written evidence that (it) is acting as agent of the party on behalf of which the request is made.' Several Requesters living in the Project area have signed letters appointing the ICT to so act on their behalf. Based on this information, the Panel is satisfied that the ICT is acting on behalf of a group of people living in the Project area who feel that they may be seriously and adversely affected as a result of the design and execution of the Project." The ICT offered "evidence of why, in its judgment, the people in the Project area are not able to present their own case or use local representatives to do so. In light of the information received, the Panel believes that the Requesters genuinely feel that 'appropriate representation is not locally available'." Panel Report and Recommendation, see note 76, 6, paras. 23,25-26. Cf. the participation of NGOs in the WTO dispute settlement process, in particular NGO participation in procedures of the Appellate Body through the submission of an amicus cttriae brief. Cf. also Amicus Curiae Status of NGOs in arbitrations under Chapter eleven of the North American Free Trade Agreement (NAFTA). See, e.g. the 16 January 2001 preliminary ruling by a NAFTA tribunal in the Metbanex~US Case on its authority to accept third party amicus curiae briefs, available at (http://www.iisd.org/ trade/investment_regime.htm) Both the European and the Inter-American Court of Human Rights have accepted amicus curiae briefs from NGOs, the latter since 1982. Cf. CH. Moyer, "The Role of Amicus Curiae in the Inter-American Court of Human Rights," in: Corte Interamericana de Derechos Humanos (ed.), La Cone Interamericana de Derechos Humanos - Estudios y Documentos, 1999,119 etseq. It may be interesting to note in this context that NGOs, in particular the Washington D.C. based environmental protection group "Friends of the Earth," played an instrumental role in the World Bank's development of the Inspection Panel. Cf., e.g. Friends of the Earth, "Accountability to the Public - The World Bank's Inspection Panel," available at (http://www.foe.org)

492


pation in international rule- and law-making processes,81 and in decision-making processes, particularly the policy and internal law design of international institutions.82 The World Bank has, for example, been increasing the inclusion of NGO's in the Bank's rule-making processes in recent years. Examples of this are the participation of NGOs in (a.) the process of modifying the Panel's Operating Procedures in order to create an "effective, independent, and impartial" Panel process, and (b.) the invitation for NGOs to submit comments on proposed draft Bank policies and procedures. Whereas Operational Manual Statements (OMSs) and Operational Policy Notes (OPNs), which contained the Bank's earlier operational policies, were, with the exception of OMS 2.32 (1985) on Projects on International Waterways, not even discussed by the Executive Directors,83 external consultations on Operational Policy and Bank Procedure drafts are the rule today.84 Representative of this trend are the recent external consultations on the draft OP/BP 4.12, regarding the Bank's converted policy on involuntary resettlement. The Bank has received about three hundred substantive comments from, inter alia, NGOs from around the world. The draft Operational Policy was revised in light of the comments received, and a summary of the comments together with the Bank's response thereto is posted on the Bank's website.85 With regard to the modification of the Panel's Operating Procedures, the Bank did not only ask interested parties to submit comments on the proposal of the Working Group of the Bank's Executive Directors to correct the inadequacies in the Panel's Operating Pro-

81 82

83 84

85

Cf., e.g. Ku, see note 68,408 et seq. For a comprehensive analysis of the legal nature, mandate, and competencies of NGOs, see W. Hummer, "Internationale Nichtstaatliche Organisationen im Zeitalter der Globalisierung - Abgrenzung, Handlungsbefugnisse, Rechtsnatur," in: K. Dicke (ed.), Volkerrecht und Internationales Privatrecbt in einem sich globalisierenden System — Auswirkungen der Entstaatlichung transnationaler Recktsbeziehungen, 2000,45 et seq. Shihata, 1994, see note 51,42 et seq. Cf. Kingsbury, see note 65, 325. As to the difference between OMSs, OPs and BPs, see infra IV. 2. a. The World Bank, "World Bank's Revised Draft Policy on Involuntary Resettlement (OP/BP 4.12)," available at (http://www.worldbank.org)


493

cedures, but also held an unprecedented meeting with NGOs to discuss the proposal.86 Second, the Request for Inspection submitted by the International Campaign for Tibet is representative for the phenomenon of globalization and its implications for an international organization's work in a particular country: Whereas in the past, information disadvantageous to the organization's international reputation was concealed from the public, in the age of information technology, which is characterized by an increase in transborder communication and activity, such information can no longer be suppressed. In this respect, the fear of the opponents of foreign representation of affected parties, namely that "nonlocal" representation might lead to the intervention of foreign parties in the internal affairs of the borrowing countries as well as to the "increased politicization and internationalization of their domestic issues,"87 was not unfounded. The third interesting aspect of the Quinghai Project case is the Executive Directors' authorization of an investigation without final determination of all eligibility criteria. This could favourably be interpreted as demonstrating the Directors' basic attitude of not preventing an investigation from being conducted because of mere formal, or rather procedural requirements. If this interpretation is correct, the Executive Directors' conduct would be a welcome development. It contrasts with their earlier practice of requiring the Panel to undertake an extensive preliminary investigation of each Request for Inspection to determine its eligibility.88 It is hoped that the Inspection Panel will, in future cases, interpret the right of complainants to make use of "non-local" representatives, which can be regarded as being analogous to the granting of the right to counsel in legal proceedings,89 as generously as it did with regard to the claim filed by the International Campaign for Tibet. Such an interpretation would, as has rightly been put forward by Bradlow in an article 86

87 88

89

Cf. D.D. Bradlow, "Precedent-Setting NGO Campaign Saves the World Bank's Inspection Panel," Human Rights Brief 6 No. 3 (1999), available at (http://www.wcl.american.edu) Shihata, 1994, see note 51, 57 et seq. The result of such a preliminary investigation was often that the Bank's Management submitted a remedial action plan directly to the Executive Directors before the Directors had had an opportunity to decide whether to authorize a full investigation. Cf. Bradlow, see note 34,63.

494


published before the Panel became operational, "advance the Bank's objective of creating a forum which is available to the largest possible number of potential complainants. It also may help to reduce the risk of reprisals against vulnerable complainants."90 c. Affected Rights and Interests Pursuant to the Resolution, the affected party must demonstrate "that its rights or interests have been or are likely to be directly affected" by the Bank's failure to follow its operational rules and procedures.91 The function of this eligibility requirement is two-fold. First, it is meant to exclude requests which are based on an alleged public interest in which the requester has no personal stake.92 In this respect, it is analogous to the exclusion of the so-called actio popularis, as known, for example, in administrative law claims. Second, its purpose is: "to broaden the scope of coverage ... so as to include not only titles, powers, and privileges protected by law but also substantiated claims to such titles, powers, and privileges and the avoidance of harm (in the sense of bodily injury or financial loss) that otherwise may affect the requester. Alleged rights by an affected party have to be based on the law applicable in the territory where the alleged harm has taken place, including treaties incorporated in that law to the extent that they directly extend rights to private parties."93 Thus far, the requirement to demonstrate an affected right or interest hardly played a role in the Panel's assessment of the eligibility of complaints. In most cases, such as in its conclusions regarding eligibility of Requests for Inspection concerning the Quinghai Project, the Panel did 90

91 92 93

Ibid. The Panel's procedures attempt to make private complaints as easy as possible. A Request for Inspection can be submitted any-time up to the closing date of the project, i.e. the date on which the last part of the Bank's loan is disbursed. Although English is the preferred language, the Request can be filed in any language either at the Bank's headquarters in Washington, D.C., or at any regional office. Finally, the complaint need not be in any special form, although using the sample form prepared by the Panel is recommended. Cf. A. Escher, "World Bank Withdraws from Arun III Project at Inspection Panel's Recommendation,'' Human Rights Brief 3 No.l (1995), available at (http://www.american.edu) Resolution, see note 3, para. 12. Cf. Shihata, see note 3, 56 et seq. Ibid., 57.


495

not even mention this requirement.94 The Panel's neglect of this requirement fits with its change of focus in the assessment. The Panel now places more emphasis on the alleged non-compliance by the Bank with its policies and procedures and less on harm suffered by the Requesters, as prescribed by the 1999 Clarifications.95 It also highlights the fact that a complaint brought to the Inspection Panel is different from a complaint filed with a court of law as in the latter, the successful demonstration of an "affected right or interest" is a crucial requirement both for the admissibility and the merits of the case. This requirement is a corollary to the general outcome of a court procedure, which — unlike in a Panel investigation — is the redress of harm.96

3. The Mandate and Legal Nature of the Inspection Panel a. Compliance Monitoring within the World Bank With the World Bank Inspection Panel a new mechanism of accountability97 of and supervision in international organizations was created. The precedent set by the World Bank with the creation of an operations inspection function was shortly after followed by multilateral development banks.98 Within the World Bank, the Inspection Panel is not the 94 95

96 97

98

Cf. Report and Recommendation, see note 76,5, para. 21. Cf. Schlemmer-Schulte, see note 4, 243 et seq. By means of the 1999 Clarification, the Board of Executive Directors reinforced the distinction to be made between the Bank's failures and the Borrowers' failures in the Management Response to a Request for Inspection and in the Panel's eligibility Report. Cf. The Inspection Panel Annual Report 1998-1999, 5. Cf. The Inspection Panel Annual Report, ibid. For an analysis of the distinction between the three concepts "accountability," "legal liability," and "international responsibility," see S. SchlemmerSchulte, "The World Bank, its Operations, and its Inspection Panel," Recht der internationalen Wirtschaft 3 (1999), 175 et seq., (180 et seq.). The discussion of accountability of large multilateral financial organizations which led to the creation of the World Bank Inspection Panel, has been regarded as being the counterpart to the "current debate on legal restraints concerning the activities of international organizations," such as, in particular, the United Nations. See A. Reinisch, International Organizations Before National Courts, 2000,320 et seq. The Inter-American Development Bank (IDB) and the Asian Development Bank (ADB) established an inspection function in 1994 and 1995, respec-

496


only mechanism for supervision of Bank staff implementation and compliance with Bank policy. Compliance Monitoring is, for example, also the responsibility of the Operations Policy and Strategy Vice Presidency (OPS), which, in 1997, launched a policy reform program to, inter alia, strengthen the systems for monitoring compliance." Furthermore, in 1998, in a significant move to address the issue of staff accountability, the Quality Assurance and Compliance Unit was established. Its responsibility is to review Bank projects brought to the Unit's attention by NGOs and others to determine the level of compliance with the Bank's safeguard policies.100 Finally, some internal review of Bank staff implementation and compliance with Bank policy is also provided by the Operations Evaluation Department, and the Legal Department.101 Pursuant to the Inspection Panel's Operating Procedures, "[t]he role of the Panel is to carry out independent investigations. [...] Its function

99

100

101

lively. The inspection mechanisms set up by those Banks have been patterned on the World Bank's Inspection Panel in most respects. They do, however, differ from the Panel in that, unlike the Bank's Panel, they do not consist of a standing panel with a separate Secretariat, but a roster of names from which, in an actual case, members of the Panel will be selected to investigate a complaint. The IDB Investigation Mechanism procedures can be found on the web at (http://www.iadb.org) As to the ADB's Inspection Committee, see Asian Development Bank, "ADB's Inspection Policy: A Guidebook," 2000, available at (http://www. adb.org). For a brief description of both investigation mechanisms, see D.L. Clark, A Citizen's Guide to the World Bank Inspection Panel, 2nd edition, 1999,23 et seq. OPS has thus far worked to strengthen compliance monitoring by the Bank units responsible for safeguard and fiduciary policies. Cf. The World Bank Group, "What We Do: Policies," available at the Bank's website. The detection of non compliance with a safeguard policy leads to the issuance of a prompt resolution by the Bank's regional team, and can result in sanctions. For a more detailed account on and analysis of the Quality Assurance and Compliance Unit, see Bank Information Center, "The World Bank's Policy Framework: The 'Safeguard' Policies, Compliance and the Independent Inspection Panel," available at (http://www.bicusa.org) Kingsbury, see note 65, 329. The Bank's Legal Vice Presidency monitors compliance with the policies addressing international waterways and disputed areas. Cf. The World Bank Group, "What We Do: Policies," see note 99.


497

[...] is to inquire and recommend."102 In this regard, supervision of Bank compliance with its operational policies and procedures by the Inspection Panel differs from internal supervision "through direct lines of managerial authority and through involvement of different departments and units," such as the Legal Department or the Operations Evaluation Department in that the former "has an important role in authorizing project documents and certain types of decisions,"103 but, unlike the Inspection Panel, is not an investigating body, and the latter "is oriented toward lessons to be drawn from the experience, rather than strict accountability."104 b. The Inspection Panel as a "quasi-judicial supervisory body" In an explanatory memorandum of 3 January 1995, the Senior Vice President and (then-) General Counsel of the World Bank, Ibrahim Shihata, emphasized that the Inspection Panel is not a judicial body.105 In light of the Panel's legal mandate as laid down in the Resolution, the Clarifications and the Panel's Operating Procedures, and the Panel's operations thus far, this position must be followed. As has already been pointed out, the Panel can be viewed as a "quasi-judicial supervisory body"106 at best. According to Bradlow, quasi-judicial supervision as compared to judicial and non-judicial supervision107 includes elements of both of the latter categories. "It usually involves a relatively independent body that reaches either binding or non-binding decisions by 102

103 104 105

106 107

"Introduction," Operating Procedures, The Inspection Panel for the International Bank for Reconstruction and Development/International Development Association, ILM 34 (1995), 510 et seq., (511). Kingsbury, see note 65. Ibid. "Role of the Inspection Panel in the Preliminary Assessment of Whether to Recommend Inspection - A Memorandum of the Senior Vice President and General Counsel," ILM 34 (1995), 525 et seq., (526). The same argument has been put forward by ILM Corresponding Editor for the World Bank, M. Ragazzi, see M. Ragazzi, "Introductory Note," ILM 34 (1995), 503 et seq. Bradlow, see note 51,602. For an analysis of the three recognized mechanisms of international supervision - judicial, quasi-judicial, and non-judicial supervision -, cf. G.J.H. van Hoof/ K. de Vey Mestdagh, "Mechanisms of International Supervision," in: P. van Dijk (ed.), Supervisory Mechanisms in International Financial Organisations, 1984,1 et seq., (15-20).

498


applying law to facts."108 According to this description, the Panel is still a rather weak quasi-judicial supervisory body "lying closer to the nonjudicial end of the supervisory spectrum than to the judicial end"109: The Panel's mandate is limited to (a.) recommending to the Executive Directors that the challenged project be formally investigated, and (b.) when such a recommendation had been approved by the Board and an investigation is conducted, to submit an Investigation Report including the Panel's findings and recommendations to the Board. Unlike the findings of a court of law, the Panel's findings and recommendations are, however, not binding on the parties.

IV. The Applicable Standards in the Inspection Panel Process, their Legal Effects and Proper Interpretation The Panel's supervisory power is clearly defined in the Resolution pursuant to which the Inspection Panel can only investigate complaints that the Bank has failed to follow its own policies and procedures in its operational work.110 Accordingly, the substantive standards against which the Panel reviews Bank performance, are internal rules only.111 Unlike local or international courts, the Panel does not apply domestic or general international law.112 One may well argue that it would be desirable for the Panel to review a Bank project not only against internal but also against international law standards. In other words, "such standards might properly be invoked as part of the corpus of norms and practice that may guide

108 109 110 111

112

Bradlow, see note 51,602. Ibid. Resolution, see note 3, para. 12. The authorization by the Executive Directors to investigate a request (cf. Resolution, see note 3, paras. 19 and 20) usually prescribes the focus of the investigation, i.e. what exactly the Panel has to determine. The Executive Directors enumerate the Bank policies and procedures, the violation of which the Panel is to investigate. Cf., e.g., Press Release of 17 September 1999, "Board wants Panel to investigate whether the Bank has observed its policies and procedures in the preparation of the China Western Poverty Reduction Project," Proposed Decision on Request for Inspection, see note 20. Cf. also supra, part II. Cf. Schlemmer-Schulte, see note 7, 387.


499

the Panel in making useful recommendations"113 to the Board of Directors. Such a broad approach has been taken by Bradford Morse114 and Thomas Berger115 in the Morse-Berger Report of 1992116 which contained the findings of the very first independent review of World Bank projects, a panel which examined the controversial Sardar Sarovar Projects in India,117 and which contributed to the process culminating in the creation of the Inspection Panel.118 According to the Terms of Reference of 14 March 1991 issued by the then President of the World

113

Kingsbury, see note 65,331. Mr. Morse is a retired Administrator of the United Nations Development Programme (UNDP) and former U.S. Congressman. 115 Mr. Berger headed the British Columbia Commission on Family and Children's Law 1973-1974; the Mackenzie Valley Pipeline Inquiry, 1974-1977; the Alaska Native Review Commission, 1983-1985; and served on the Supreme Court of British Columbia, 1971-1983. 116 B. Morse/ T.R. Berger, Sardar Sarovar: The Report of the Independent Review, 1992. 117 The Sardar Sarovar Project (SSP) in India is an enormous irrigation and hydroelectric project, including the 535-foot-high Sardar Sarovar dam and more than 3.000 others, 47.000 miles of canals and a plan to provide 1.450 megawatts of power. According to a New York Times article, the irrigation and hydroelectric project could produce enough energy "to provide electricity to 1.4 million American homes for a year, irrigation for 4.4 million acres of land and drinking water to 40 million people" (St.A. Holmes, "India Cancels Dam Loan from World Bank," The New York Times International of 31 March 1993, A 5). The World Bank approved financial support for the project in 1985 without having conducted a full environmental study. Concerns raised by environmental groups forced the bank to undertake its first independent review of a bank-financed development project. The Morse-Berger review cited a number of environmental and resetdement problems and called the Bank to step back from the project and consider it anew. The Bank Board, while it kept funding for the project alive, gave India until 31 March 1993 to meet a series of standards regarding environmental and social concerns. The World Bank finally withdrew from the project after the Indian government cancelled much of the US$ 450 million Bank loan on the grounds that it could not meet the Bank's environmental and resettlement standards. Cf. ibid. For an analysis of the Morse/ Berger panel review, see Th.R. Berger, "The World Bank's Independent Review of India's Sardar Sarovar Projects," Am. U. J. Int'l L & Pol'y 9 (1993), 33 et seq. 118 Kingsbury, see note 65,330. 114

500


Bank, Barber Conable,119 the objective of the review was "to conduct an assessment of the implementation of the ongoing Sardar Sarovar projects as regards (a.) the resettlement and rehabilitation of the population displaced/affected ... and (b.) the amelioration of the environmental impact of all aspects of the project, with reference to "existing Bank operational directives and guidelines."120 In their Report, Morse and Berger departed from the Terms of Reference and did not simply assess compliance with the Bank's own policies and with the terms of loan agreements and other project documents, but applied Bank policies "in the context of wider public international law standards to which they relate."121 In considering impacts on tribal peoples, for example, the report referred to standards prescribed in ILO Convention No. 107, and advocated evaluation of Bank policies by reference to relevant standards of general international law.122 As desirable as the broad approach taken by Morse and Berger might be, it must be borne in mind that the Inspection Panel neither is nor was intended to be an international court, but that it was set up as an internal inspection mechanism to achieve accountability and transparency in Bank operations. However, the current status of the Panel does not preclude it from gradually developing into a true international judicial body. In the following sections, the substantive standards against which the Inspection Panel reviews Bank performance, the legal effects of those standards, and their interpretation by the Panel will be examined.

1. The Substantive Standards against which a Bank Project is Reviewed by the Panel Thus far, the Inspection Panel has not followed the approach recommended by the Morse-Berger Report, but has operated strictly within its formal mandate as regards the applicable set of rules. The standards to be and having been invoked by the Panel in the investigation process, that are operational policies and procedures, are defined in the Resolu-

119

120 121 122

Mr. Morse was appointed Chairman of the Independent Review of the Sardar Sarovar Project in June 1991. Mr. Berger was appointed Deputy Chairman in September 1991. Cf. Shihata, 1994, see note 51,11. See Kingsbury, see note 65, 330. Ibid.


501

tion to consist of the Bank's Operational Policies (OPs),123 Bank Procedures (BPs),124 and Operational Directives (ODs),125 as well as earlier similar documents.126 Compliance with Guidelines, Good or Best Practices,127 and comparable documents is not subject to Panel investigation.128 Most of the cases the Panel has dealt with to date have revolved

123

Operational Policies "are short, focused statements that follow from the Bank's Articles of Agreement, the general conditions, and policies approved by the Board. OPs establish the parameters for the conduct of the operations; they also describe the circumstances under which exceptions to policy are admissible and spell out who authorizes exceptions." OPs "aim to ensure that Bank-financed operations are economically, financially, socially, and environmentally sound." See The World Bank Group, "What we do: Policies," see note 99. Currently, there are 49 Operational Policies. 124 Bank Procedures "explain how Bank staff carry out the policies set out in the OPs. They spell out the procedures and documentation required to ensure Bank-wide consistency and quality." See The World Bank Group, The World Bank Operational Manual, available at the Bank's website. Currently, 45 Bank Procedures are in force. 125 Sixteen Operational Directives are still in effect. They are: 2.00 - Country Economic and Sector Work; 4.15 - Poverty Reduction; 4.20 - Indigenous Peoples; 4.30 - Involuntary Resettlement; 8.60 - Adjustment Lending Policy; 9.01 - Procedures for Investment Operations under the Global Environment Facility; 10.70 - Project Monitoring and Evaluation; 11.00 - Procurement; 11.01 - Country Procurement Assessment Reports; 11.02 - Procurement Arrangements for Investment Operations; 11.03 - Procurement Arrangements for Adjustment Operations; 11.04 - Review of Procurement Documentation and Decisions for Lending Operations; 11.10 - Use of Consultants; 13.05 - Project Supervision; 13.60 - Dissemination and Utilization of the Operations Evaluation Department (OED) Findings; and 14.30 - Aid Coordination Groups. 126 Resolution, see note 3, para. 12. 127 Pursuant to the World Bank's Operational Manual, "Good Practices (GPs) contain advice and guidance on policy implementation for example, the history of the issue, the sectoral context, analytical framework, best practice examples." The World Bank Operational Manual, see note 124. 128 This exclusion has been criticized because of its possible negative implications: "In empowering the inspection panel to investigate the Bank's project performance by reference to Bank policies and procedures [only], ... the Bank arrangements appear to provide some incentive for management to try to attenuate policies by, for example, incorporating the more demanding provisions in statements of good practice rather than in operational policies, or including phrasing to add wide managerial discretions in obligatory provisions." Kingsbury, see note 65,331. It should be recalled in

502


around four sets of operational policies and procedures: Environment, Resettlement, Indigenous Peoples and Project Supervision. The policies against which Bank performance is primarily reviewed are the Bank's so-called "safeguard policies." This category of policies and procedures which has only recently been created,129 consists of ten of the Bank's environmental and social policies "which together are designed to protect the environment and vulnerable populations from negative effects of Bank-financed operations."130 The safeguard policies include: OP 4.01 Environmental Assessment, OP 4.04 Natural Habitats, OP 4.36 Forestry, OP 4.09 Pest Management, OD 4.30 Involuntary Resettlement, OD 4.20 Indigenous Peoples, OPN 11.03 Cultural Property, OP 4.37 Safety of Dams, OP 7.50 Projects on International Waterways, and OP 7.60 Projects in Disputed Areas.131 Most of these policies, many of which have been in place for almost ten years, were developed in response to world-wide criticism, primarily by NGOs and some donor governments, that Bank projects often irreversibly harm the environment, displace people and negatively affect their livelihoods.132 The policies undoubtedly have the potential to mitigate damage which might be and often has been caused by economic development as promoted by the Bank. They are necessary for the Bank to bridge the traditional contradiction between environmental sustainability and social protection on the one hand and economic development on the other, even if this means that they increase the costs of projects. The Panel's record shows that the project requirements prescribed in the "safeguard policies" are of supreme concern to project-affected groups that might have previously been neglected.

129

130 131

132

this respect that under the Terms of Reference of the Morse-Berger Panel, the Sardar Sarovar Projects were to be evaluated by guidelines also. Cf. Bank Information Center, "The World Bank's Policy Framework - The 'Safeguard' Policies, Compliance and the Independent Inspection Panel," available at the Centre's website (http://www.bicusa.org) Ibid. For a table of the safeguard policies, their key features, and conversion status, see ibid. Cf.ibid.


503

2. Interpretation, Application and Enforcement of Bank Policies and Procedures Throughout its work, the Inspection Panel has been faced with the serious problem that there is still no consensus among the World Bank staff as to how the Bank's operational policies and procedures should be interpreted, applied, and enforced. According to the Panel, the differences on this issue do not only "pervade all ranks of the staff, from senior management to front-line professionals," but also apply to "virtually all of the major decisions required by the policies."133 a. Flexibility of Interpretation, Application and Enforcement One of the issues on which opinions diverge, is the question of whether the Bank's policies allow for flexibility of interpretation, application and enforcement, and if so, to what degree. As Benedict Kingsbury has stated in the context of operational policies on issues affecting indigenous peoples: "Episodes of non-compliance with policies relating to indigenous peoples and involuntary resettlement seem often to have been dealt with flexibly by superiors as part of the overall structure of management, with the focus usually on ameliorating project failures and learning for the future. The Operational Directives have thus been understood to be 'binding' on Bank staff within the Bank management structure, but applied and enforced flexibly rather than 'legalistically'".134 This approach to the implementation of and compliance with Bank policies was adopted most commonly before the Inspection Panel was created. It was, however, widely followed after 1993 as well, as can be seen from the Panel's most recent Investigation Report regarding the Quinghai Project. According to that Report, the views among Bank staff on the extent of the binding force of Bank policies and procedures still range from arguments that "the Bank's Operational Directives and other policies were simply idealized policy statements, and should be seen largely as a set of goals to be striven after"135 with little, if any 133

134 135

The Inspection Panel, Inspection Panel's Report And Findings on the Quinghai Project - Executive Summary of 28 April 2000, xiv, para. 9. Kingsbury, see note 65,329. The Inspection Panel Investigation Report, see note 8, 19 et seq., para. 35. According to proponents of this view, "(w)hat would be more important is the overall trend in the Bank, which should work toward the achievement of these goals. In the meantime, one may have to accept what might appear

504


mandatory effect, to opposing views by more senior ranks that such an interpretation "could render the policies virtually meaningless and certainly incapable of being employed as benchmarks against which to measure compliance."136 The Inspection Panel raised serious concerns about the implications of such wide divergencies of opinion for Bank Management's ability to apply the policies "with any reasonable degree of consistency."137 In view of these differences, the Panel deemed it necessary to re-examine its approach towards and experience with Bank policies and compliance.138 It carefully studied the arguments put forward by Bank Management, staff and consultants in defence of the actions or omissions under review, such as claims of "precedent," a point which will be discussed in more detail later. In the end, the Panel followed the same approach to compliance as in its earlier reports.139 As regards the flexibility of interpretation in general, the Panel adopted the position taken by Ibrahim Shihata, that there was room for some flexibility of interpretation but that operational directives themselves provided the limits of flexibility with regard to their application, and that "[t]he staff are accountable to management for the observance of the ODs, with such latitude as their text may explicitly indicate".140 Whereas Shihata's approach to the question of flexibility of interpretation is widely followed by scholars who have written on this subject-matter,141 the question whether the standards provided for in the ODs are legally binding is still disputed. Making reference to the preambular paragraph of the ODs, Shihata has maintained that "ODs are general instructions from management to staff issued for their guidance".142 According to Shihata "not all the standards provided for in the ODs are binding (it depends on the wording of each standard), those stated in binding terms create a duty for the staff to exert their best ef-

136 137

138 139

140 141 142

to be failures in achieving the sometimes high standards embodied in the policies." See ibid. Ibid., 20, para. 35. Ibid., 16, para. 25; 19, para. 34; and Executive Summary, see note 133, xiv, para. 9. Cf. ibid., Executive Summary, see note 133, xv, para. 15. Cf. ibid., xv, para. 15, and The Inspection Panel Investigation Report, see note 8,22, para. 45. Shihata, 1994, see note 51,44. See, e.g., S. Schlemmer-Schulte, see note 97,178. Shihata, 1994, see note 51,43 et seq.


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forts to achieve them. The actual achievement of these standards may depend on the action of other parties, notably the potential borrower or the borrower, as the case may be."143 Unlike Shihata, SchlemmerSchulte argues, that Bank policies and procedures "are binding on staff and must, therefore, be followed by staff."144 The Chinese Government, in its statement of 6 July 2000 on the Inspection Panel Investigation Report for the Quinghai Project, criticized the Panel for its approach on the legal effect of safeguard policies. In the view of the Chinese Government, "[t]he safeguard policies have not been written as strict law to be applied mechanistically,"145 as — according to the Chinese Government — the Panel had suggested. The Panel members did not "distinguish between mandatory procedures and best practices,"146 but did nevertheless pretend that there was a clear understanding of what was mandatory.147 The uncertainty about the legally binding effect of Operational Directives is mainly due to the fact that ODs include a mixture of policies, procedures, and guidance which are not always easy to differentiate.148 However, in order to facilitate the work both of the Bank staff and the Inspection Panel, as well as for the benefit of outside parties, the Bank initiated a process in the early 1990s with the aim of gradually convening ODs into a new system of Operational Policies (OPs) and Bank Procedures (BPs), both mandatory rules, on the one hand, and Good Practices (GPs) — that is guidelines which clarify what is international best practice149 and which are not necessarily mandatory — on the other hand. This process is expected to result in more certainty. b. Methods of Interpretation of Bank Policies and Procedures The Inspection Panel, in reviewing the Bank's project performance by reference to Bank policies and procedures, is confronted with the difficult question of what determines what exactly is required substantively 143 144 145

146 147 148 149

Ibid., 45. Schlemmer-Schulte, see note 97,178. Chinese Government's Statement on the Inspection Panel Investigation Report for the China: Western Poverty Reduction Project (Quinghai Component) of 6 July 2000,3. Ibid. Ibid. See The World Bank Group, What we do: Policies, see note 99. See The Inspection Panel Investigation Report, see note 8,18, para. 30.

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by the applicable policies. In other words, the Panel must decide which methods of interpretation to apply in order to work out the exact project requirements spelt out in the policies and procedures. In the Quinghai Project Investigation Report, the Panel stated that "[d]uring the course of examining some 20 projects over the past five years,... [it] has gained much experience in determining how the Bank's operational policies and procedures should be applied."150 In the following section, the methods most frequently used by the Panel will be analyzed.151 aa. The Grammatical, Systematic, and Teleological Approach One of the approaches of interpretation used by the Inspection Panel in determining the project requirements of the applicable policies and procedures is the "letter and intent" interpretation. When this method is adopted, the Panel follows the approach regarding the interpretation of international treaties which is supported by the jurisprudence of the ICJ152 and adopted in substance in the relevant provisions of the Vienna Convention on the Law of Treaties.153 In the Quinghai Project Investigation Report, the Panel members, referring to the meaning of the Operational Directives on Environmental Assessment (OD 4.01), Indigenous Peoples (OD 4.20), and Involuntary Resettlement (OD 4.30) concluded that: a [i]n the Panel's view, given the letter and intent of ODs 4.01, 4.20 and 4.30, the actual scale of the area to be impacted by the Quinghai Project, the ethnic composition of the Project's impacted populations, the boundaries of the 'project area' were far too narrowly defined by Management. As a result, the assessments fail to address 150 151

152

153

Ibid. 16, para. 25. In this context it should be noted that it is not clear from the Panel's past Investigation Reports whether, as may be presumed (cf. Kingsbury, see note 65, 329), Guidelines, Best Practices, and comparable Bank documents which, pursuant to the Resolution, are not subject to Panel investigation, may nevertheless be consulted in interpreting and assessing compliance with Operational Policies and Procedures. Cf. I. Brownlie, Principles of Public International Law, 4th edition, 1990, 627. Article 31 of the Vienna Convention on the Law of Treaties states as a general rule of interpretation that "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." (ILM 8 (1969), 679 et seq.).


507

many of the most significant social and environmental impacts of the Project on the potentially affected populations, including those who are members of minority nationalities. The Panel finds that this is not in compliance with these ODs."154 In the same case, the Panel, in reviewing the Bank's social compliance, determined what was required by OD 4.20 on Indigenous Peoples by adopting both the systematic and the teleological approach of interpretation, to which, in the context of treaty law interpretation reference is usually only made if the textual approach leaves the meaning ambiguous.155 In the Quinghai case, the central question regarding social compliance was whether the Quinghai Project as a whole constituted the Indigenous Peoples Development Plan (IPDP) required by Operational Directive 4.20 or whether separate, free-standing IPDPs were required to bring the Project into compliance with OD 4.20. The relevant para. 13 of said Directive states that: "[f]or an investment project that affects indigenous peoples, the borrower should prepare an indigenous development plan that is consistent with the Bank's policy. Any project that affects indigenous peoples is expected to include components or provisions that incorporate such a plan. When the bulk of the direct project beneficiaries are indigenous peoples, the Bank's concerns would be addressed by the project itself and the provisions of this OD would thus apply to the project in its entirety."156 The Bank Management, while acknowledging that an IPDP was required for the Quinghai Project, referred to the letter of the last sentence of para. 13 quoted above and asserted that the Project as a whole constituted the necessary IDPD as a majority of the Project's beneficiaries were minorities.157 The Panel, however, was of the view that, irrespective of the clear wording, Management's interpretation of this one sentence of para. 13 "cannot be accepted."158 It based its conclusion both on the system and the objective of OD 4.30 and argued that Management's interpretation was "inconsistent with other parts of the OD and especially inconsistent with the objective of Bank policy towards 154 The Inspection Panel, Executive Summary, see note 133, xvii, para. 23. As to the teleological approach in the context of treaty interpretation, see, e.g. Brownlie, see note 152, 631. 156 IBRD/IDA, OD 4.20 on Indigenous Peoples (September 1991), published in: Shihata, see note 3,401 et seq. 157 Cf. The Inspection Panel, Executive Summary, see note 133, xxvi, para. 62. 158 Ibid., para. 63. 155

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indigenous people,"159 the latter being "... to ensure that the development process fosters full respect for their dignity, human rights, and cultural uniqueness ..." and to "ensure that indigenous peoples do not suffer adverse effects during the development process ..., and that they receive culturally compatible social and economic benefits."160 The Panel argued that "as a result of Management's choice not to develop self-standing IPDPs for the different minority groups" which are affected by the Quinghai Project, "the cultural uniqueness and needs of some groups ... seem inadequately to have been addressed."161 Management's interpretation of the last sentence of para. 13 of OD 4.20 "was never intended and should not be allowed to stand,"162 as the result of such an approach may be "that a Bank-financed project could legitimately overwhelm the hopes and aspirations of an indigenous population, so long as the project benefits a larger population of some other indigenous people. And the 'project in its entirety' could constitute the ... IPDP required by the OD since 'the bulk of the direct project beneficiaries' would be indigenous people."163 This example illustrates that the Inspection Panel, even in cases in which the meaning of a Bank provision seems to be clear, nevertheless has recourse to the teleological approach trying to determine the true project requirements as set out by the applicable policies and procedures by implementing the objectives of a Bank policy as determined by the Panel. bb. Experience or Precedent in the Country in Question or Elsewhere In the Investigation Report on the Quinghai Project, the Panel dealt at length with the question whether past experience or precedent can be seen as evidence that Bank policies and procedures were followed in the case under review. The starting point of this analysis was the question whether the Bank was in compliance with OD 4.01, Environmental Assessment,164 which has been replaced by OP and BP 4.01, Environ-

159 160 161 162 163 164

The Inspection Panel Investigation Report, see note 8,110, para. 280. IBRD/IDA, OD 4.20 on Indigenous Peoples (September 1991), para. 6. The Inspection Panel Investigation Report, see note 8,108, para. 275. Ibid., para. 276. Ibid. OD 4.01, Environmental Assessment (October 1991), published in: Shihata, 1994, see note 51,149 et seq.


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mental Assessment of January 1999 together,165 but was nevertheless the standard against which Bank performance regarding the Quinghai project had to be reviewed given that the Bank actions and omissions at issue fell within a period of time prior to the conversion of OD 4.01. Pursuant to OD 4.01, the Bank requires environmental assessment (EA) of projects proposed for Bank financing to help ensure "that the project options under consideration are environmentally sound and sustainable."166 According to the Inspection Panel "[o]ne of the most important decisions (perhaps the most crucial) that Management must make concerning the environmental assessment of any project is the category of the assessment that will be undertaken,"167 as this determines the appropriate extent and type of EA: Under OD 4.01, a project can either be classified a Category "A", "B", or "C".168 The first category regards projects which are "likely to have significant adverse impacts that may be sensitive, irreversible, and diverse. The impacts are likely to be comprehensive, broad, sector-wide, or precedent-setting."169 In such a case, a full EA is required.170 A proposed project is classified a Category "B" if it "may have adverse environmental impacts that are less significant than category A impacts."171 For a Category B project, no full EA, but an environmental analysis is required.172 For a Category C project, which is unlikely to have adverse impacts,173 no EA or environmental analysis is required.174 An Annex to OD 4.01 provides illustrative lists of the types of projects best classified in each category.175 In the Quinghai case, a Category "B" was assigned to the project although several components of the Project fell within the list of "A" 165

166 167 168

169 170 171 172 173 174 175

IBRD/IDA, OP 4.01, Environmental Assessment (January 1999), Note, published in: Shihata, see note 3,345 et seq. Paragraph 2 of OD 4.01, Environmental Assessment. The Inspection Panel, Executive Summary, see note 133, xx-xxi, para. 38. Cf. para. 17 of OD 4.01, and para. 1 of OD 4.01 - Annex E, Environmental Screening (October 3,1991), published in: Shihata, 1994, see note 51,172 et seq. Para. 5 of OD 4.01 - Annex E. Para. 17 of OD 4.01, and para. 1 of OD 4.01 - Annex E. Para. 6 of OD 4.01-Annex E. Para. 17 of OD 4.01. Para. 7 of OD 4.01-Annex E. Para. 17 of OD 4.01. OD 4.01 - Annex E, supra.

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projects, e.g. dams and reservoirs, irrigation, resettlement and all projects with potentially major impacts on people.176 The Panel also found that the impacts qualified as "sensitive" since vulnerable ethnic minorities were affected and involuntary resettlement was involved.177 It concluded that the Environmental Assessment of the Quinghai Project was not in compliance with Bank policies as set out in OD 4.01.178 The interesting point, in the context of policy interpretation, is that the Inspection Panel, in making its recommendation regarding the Quinghai Project, was confronted with both the Management Response and views expressed by Bank staff and consultants that Management's past experience and precedents from other approved projects in China, or from other social and environmental assessments within China, could be cited as sufficient evidence that Bank policies and procedures concerning Environmental Assessment were followed in the case of the Quinghai Project as well. The Bank Management, in defense of the criticised assignment of a Category "B" rather than "A", referred to "... past practice with ... a large number of similar integrated agricultural development projects financed by the Bank in China over the last 10 years."179 The Panel did, however, reject the view that precedent could determine what is required by Bank policies and procedure. It concluded that: "Management's past experience in a country is obviously important. It can provide the basis for a certain level of comfort that the work that is required by the policies will be undertaken successfully. It is an entirely different matter, however, to suggest that experience and precedent can determine what is required by the policies.180... The Panel has carefully examined the policies and has failed to find any grounds for the view that precedents in a country... can in any way determine what is required by the policies."181 The Panel likewise disapproved of a similar argument regarding the significance of precedents for the interpretation and application of policies 176 177

178 179 180 181

Cf. The Inspection Panel, Executive Summary, see note 133, xxiii, para. 46. Ibid. Footnote 18 to para. 1 of OD 4.01 - Annex E explains that impacts qualify, inter alia, as sensitive if they "affect vulnerable ethnic minorities, or involve involuntary resettlement." The Inspection Panel, Executive Summary, see note 133, xxv, para. 56. IDA and IBRD, Management Response to the Request for Inspection Submitted to the Inspection Panel of 18 June 1999,18, footnote 21. The Inspection Panel Investigation Report, see note 8,22, para. 42. Ibid., para. 43.


511

and procedures, namely the assertion that precedents in a country, or a country's political and social system could determine the content of the rules under review.182 The Panel refused to make exceptions to what was otherwise required by the policies and procedures based on precedents within a country as "[n]either the OD nor the Annex provide[d] for exceptions on the basis of past experience or precedent in the country in question, or the area of the project relative to the area of the geographic or political jurisdiction involved."183 In this regard, the Panel followed Shihata who stated that: "[e]xceptions which are not authorized by the text of the OD must be kept to a minimum, if the ODs are to serve their purpose and if the Bank is to avoid undue differentiation among its borrowers. After all, the ODs are not meant to be "marching orders" for a specific operation but a "general operational code" which is written to apply in different situations and allows for the differentiations and exceptions deemed acceptable at the time of its issuance."184 c. The Panel's Role in Assessing and Interpreting the Bank's Policies and Procedures Unlike judges in various national and supra-national legal systems who are called to judge decisions of the legislator and to, if and where necessary, correct them,185 the Inspection Panel, under its formal mandate, is to investigate the Bank's project performance and to make recommendations, but not to assess the adequacy of Bank policies and procedures

182

183 184 185

Ibid. The Panel stated that "(I)nterviews with some staff were punctuated by the refrain that 'in China things are done differently', and that what may not be accepted elsewhere as compliance had always been accepted for China. This refrain echoed the Management Response where, on page 1, Management states that: 'The level and quality of preparation and analysis for this Project were very much in line with Bank practice in applying social and environmental policies and projects in China in the context of its political and social system." Ibid. The Inspection Panel, Executive Summary, see note 133, xxi, para. 39. Shihata, see note 3,45. This is, for example, the approach taken by the German Federal Constitutional Court, the Bundesverfassungsgericht. See, e.g., G. Schwerdtfeger, Offentliches Recbt in der Fallbearbeitung, 9th edition, 1993, 201, para. 481, with further references. This function becomes especially relevant where so-called political law is questioned.

512


themselves.186 Up to now, the Inspection Panel exercised its powers within its formal mandate and has, accordingly, not gone so far as to evaluate the content of the Bank policies and procedures in question or to recommend amendment thereof. As regards the Panel's interpretation of the applicable Bank rules one may join Bradlow in speculating that "[t]he role of the Panel in interpreting the Bank's operating policies and procedures could increase as the Bank converts its Operational Directives into Operational Policies."187 As the conversion process has not been concluded yet, it is still too early to determine whether the Panel's practice will confirm this prediction which was made in 1996. The Panel's most recent Investigation Report regarding the Quinghai Project does, in part, support Bradlow's prediction; it does, however, also suggest that guarded optimism may be appropriate. Bradlow's prediction is confirmed by the Panel's approach with regard to the Bank policies on indigenous peoples as described above: The Panel seems to have felt bound to ignore the wording of the policy provision in question, and instead to interpret it according to the apparent objective of the policy on indigenous peoples. The Panel's approach regarding the interpretation and implementation of Bank Safeguard Policies has been harshly criticized by the Chinese Government. In its statement of 6 July 2000, the Chinese Government alleged that "the Inspection Panel has grossly overstepped its authority by seeking to interpret and establish policy requirements — a matter that falls into the prerogative of the Board." In the view of the Chinese Government, "(t]he Panel sets new and unimplementable standards for safeguard policies," and "gives instructions to the Board and Management as to how poverty reduction projects are prepared and implemented."188

186

187

188

Cf. Kingsbury, see note 65, 331. Kingsbury argues that "it is conceivable that it would be proper for the panel to make a general recommendation for amendment if requested by the board to consider such a question or even, as practice evolves and new understanding emerge, if its work on a specific case discloses such a need." Ibid. D.D. Bradlow, "A Test Case for the World Bank," Am. U. J. Int'l L & Pol'y 11 (1996), 247 et seq., (287, note 297). Chinese Government's Statement on the Inspection Panel Investigation Report for the China: Western Poverty Reduction Project (Qinghai Component) of 6 July 2000,3.


513

The Chinese Government's criticism is, however, invalid in light of the Panel's rather cautious approach to determine compliance with policies on involuntary resettlement. In the Quinghai Project investigation, one of the core issues regarding involuntary resettlement was whether the nearly 60.000 migrants from the Move-out area were "voluntary" resettlers, as Bank Management contended,189 or whether they were "involuntarily" affected. This distinction is crucial as OD 4.30 on involuntary resettlement applies only to involuntary resettlement.190 The Panel, in determining Bank compliance with OD 4.30, had to decide which requirements had to be fulfilled for a resettlement to be considered "voluntary." The impression which the Panel got from its discussions with people in the Move-out area was that "they felt they had a choice whether they could move or not, and most interviewed wanted to move."191 The Panel did, however, also find that most people "were not informed ... of the desert climate, poor soils, danger of salinization, and the long start-up time needed before farms would be functioning in the new irrigation areas."192 For this reason, the Panel called into question whether the resettlers' choice was an "informed" one and whether, therefore, the resettlement could be considered "voluntary." It must be noted in connection to this that OD 4.30 does not contain a definition of "involuntary." The Panel, therefore, oriented itself by the definition of Draft OP 4.12: Involuntary Resettlement, according to which "involuntary" means "without the displaced person's informed consent or power of choice, or where that consent or choice is being exercised in the absence of reasonable alternative options."193 This definition did, however, not help the Panel. Instead of using this opportunity to further interpret the meaning of "involuntary," for example by making recourse to the teleological approach, the Panel simply concluded that a [i]n any event, OD 4.30 does not give clear guidance on the quality of full and informed choice that is needed to consider a resettlement as

189 190

191 192 193

See The Inspection Panel Investigation Report, see note 8,137, para. 353. Cf. para. 1 of OD 4.30: "This directive describes Bank policy and procedures on involuntary resettlement, as well as the conditions that borrowers are expected to meet in operations involving involuntary resettlement." IDA/IBRD OD 4.30 on Involuntary Resettlement (June 1990), published in: Shihata, see note 3,413 et seq. The Inspection Panel Investigation Report, see note 8,137, para. 354. Ibid. Draft OP 4.12: Involuntary Resettlement, note 9.

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Voluntary'."194 It did, therefore, accept the Bank Management's view that OD 4.30 did not apply to the migrants from the Move-out area.195 As stated at the outset, the Resolution seems neither to envisage the Panel assessing the adequacy of a Bank policy, nor does it authorise the Panel to enter into policy-making activities, such as the establishment of policy requirements. It does, however, not prevent the Panel from interpreting the policies and procedures, the compliance of which it has to review. The Panel's future challenge will be to, on the one hand, provide for reasoned interpretations of key aspects of the applicable Operational Directives and Policies in their analysis of the Bank performance under investigation without, on the other hand, overstepping its authority by seeking to read policy requirements into the safeguard policies which might be very desirable, but not intended by the Bank's policy makers. By failing to find reasoned interpretations in cases in which the operational policies and procedures do not give clear guidance, the Panel stresses its non-judicial, technical nature instead of enhancing its jurisprudence and its own role. By seeking to establish policy requirements not intended by the policies' authors, however, it clearly oversteps its authority. Given this inconsistency, the Board should review and clarify the Panel's role in the interpretation and implementation of Bank policies and procedures.

V. Consequences of Inspection Panel Investigations and Recommendations: Benefits and Challenges Roughly half of all complaints filed with the Inspection Panel to date resulted in some favourable outcome not only for the Requesters, but also for other project-affected people, and often the environment, too. In some cases, the Request for Inspection ended in the World Bank or the borrowing country taking some remedial actions, such as the development of action plans, the appointment of independent investigators other than the Panel Inspectors,196 or the creation of a local monitoring 194 195

196

The Inspection Panel Investigation Report, see note 8,138, para. 355. Ibid., 139, para. 356, and Inspection Panel, Executive Summary, see note 133, xxviii, para. 69. In November 1995, a claim was submitted to the Inspection Panel regarding the Pangue Dam in Chile. As the case concerned an IFC project for which the Panel has no jurisdiction, the Request was not eligible. Hence, the Panel did not recommend an investigation. World Bank President

/Zoos, The World Bank Inspection Panel

515

panel.197 It is important to note that the Requesters did not only receive benefits if the request resulted in the Panel recommending an investigation. In the case regarding a project to build a bridge over the Jamuna River in Bangladesh, for example, Bank Management did not recognize violations and the Inspection Panel refrained from recommending an investigation. The claim, nevertheless, resulted in the development of an action plan to remedy obvious problems in the project: Inter alia, approximately 70. 000 people who were originally excluded from the resettlement plan were included.198 A second category of Panel proceedings lead to additional financing to address adverse social and environmental impacts of Bank-funded projects in Argentina and Brazil.199 Finally, two Panel proceedings ended in the Bank cancelling or withdrawing from an offer of funding: The proceeding regarding the controversial Arun III Proposed Hydroelectric Project in Nepal,200 and the proceeding concerning the aforementioned Quinghai Project.

197

198

199 200

Wolfensohn did, however, appoint Dr. Jay Hair as independent investigator to examine the situation. Cf. Bank Information Center, Table 1: Official Responses to the World Bank Inspection Panel Claims, available at (http://www.bicusa.org) In the Singrauli Coal Case (India), a local monitoring panel was created after the Panel had recommended an investigation which had been approved by the Executive Directors with the restriction, however, that a limited desk review was permitted only. Cf. ibid. Bradlow, see note 86. See also Bank Information Center, Table 1, see note 196. Cf. Bradlow, see note 86. Cf. Escher, see note 90. The Arun III Proposed Hydroelectric Project in Nepal was the very first claim filed with the Inspection Panel. The planned Arun III Project was expected to produce about 200 megawatts of electricity for consumption in the capital and urban areas. The World Bank had originally offered a US$ 175 million loan to go toward the US$ 770 million project. The Request for Inspection (filed in October 1994) which triggered the investigation process alleged, inter alia, non-compliance by IDA with its Operational Directives on environmental assessment, indigenous peoples, and involuntary resettlement during the preparation and appraisal of the project. Following the Panel's submission of its Investigation Report, in which it validated most of the complaints submitted by the local people (cf. Arun Concerned Group, Request for Inspection, submitted to the Inspection Panel on 21 October 1994), the Bank Management reassessed the project as proposed and, in June 1995, decided to withdraw its support for financing. Before the Executive Board reached the stage of designing a remedy in response to the Panel's Investigation Report, World Bank President

516


The cancellation of the Bank's support for the Arun III Project has been regarded by scholars as a "benefit" which the Requesters received,201 or even as "an extraordinary success which illustrated both the significance and the necessity of the Panel."202 There is certainly some truth in this assessment, and the argument may be made that, as Handl has put it in the context of multilateral development banks and their contribution to sustainable development, "a refusal by an MDB to participate in an environmentally questionable project can undeniably carry a potent symbolic message: it may well, and indeed should, discourage other potential lenders, be they private or public entities, from going ahead with an investment project that has been found wanting in light of the environmental and social development criteria that the bank is obliged to follow as a matter of public international law and policy."203 However, effusive optimism — which, of course, not all academics cited express —204 should be warned against. The cancellation of a Bank offer gives rise to the question whether withdrawal is really desirable given that the government in charge of the project will complete the project on its own, that is without surveillance from the World Bank, as in the case of the Quinghai Project. In response to China's withdrawal of its loan application, Clare Short, the UK Secretary of State for International Development, regarded the termination of World Bank financing as a "pyrrhic" victory won by pro-Tibet protesters, because China would now go ahead with the project with its own cash under its own terms. Short put forward, however, that they regretted that the project "will no longer be taken forward with the support of World Bank [which] would have ensured that high social and environmental stan-

201 202 203

204

Wolfensohn cancelled the Bank's support for the project. Cf. Inspection Panel, Investigation Report, Nepal: Arun III Proposed Hydroelectric Project and Restructuring of IDA Credit - 2029 - NEP, Doc. INSP/SecM95-3 of 21 June 1995; and World Bank, President's Memorandum to the Executive Directors on "Management Response to the Inspection Panel's Investigation Report dated June 21, 1995," Doc. INSP/SecM95-5 of 2 August 1995; cf. also Clark, see note 98, 15. For a comprehensive discussion of the Arun Ill-case, see also Bradlow, see note 187,247 et seq. This view is expressed by, Bradlow, see note 86. Translation by the author. Bufi, see note 41, 352 et seq., (357). G. Handl, "The Legal Mandate of Multilateral Development Banks As Agents For Change Toward Sustainable Development," AJIL 92 (1998), 642 et seq., (665). Cf., in particular the critical comments made by Bufi, see note 41, (357).


517

dards were adhered to."205 Bufi questions, with regard to this problem, whether the Bank should be content with lower standards in such sensitive areas as environment, involuntary resettlement, indigenous peoples, protection of cultural heritage, etc., when there is a clear risk that if the Bank withdraws, the project in question will be sponsored by private investors who do not, or do only to a much lesser extent, adhere to the Bank's principles as enshrined in its safeguard policies.206 The question points to a fundamental dilemma with which the World Bank is confronted in cases like this. On the one hand, the Bank's discretion is restricted by the environmental and social development criteria that it is obliged to follow as a matter of public international law and policy.207 These international law standards restrain the Bank from funding projects that are in flagrant violation of the project requirements set out in the Bank's policies and procedures in so far as they, themselves, reflect international law standards. On the other hand, the Bank, if it continued to finance projects that are — in some respect — inconsistent with established Bank policies, could at least exercise some control over the projects to prevent them from being executed with little or no regard to safeguard policies. In light of the current criticism that the Bank's strict social and environmental requirements not only make its projects more complicated, but also more costly — leading to a loss of the Bank's competitive position208 — it will be interesting to see how the Bank will find a solution to the dilemma described above.

205

206 207

208

See S. Sanghera/ N. Dunne, "China drops request to World Bank for Tibetan scheme," Financial Times of 7 July 2000. Bufl,seenote41. Cf. Handl, see note 203. For a detailed account and analysis of the question to which extent the World Bank is bound by international human rights standards, see U. Suchsland-Maser, Menschenrechte und die Politik multilateraler Finanzinstititte, 1999,9 et seq. See, e.g. P. Pinzler, "Der Reformer duldet keinen Widerspruch: Mitarbeiter der Weltbank rebellieren gegen den Fuhrungsstil von Prasident James Wolfensohn," Die Zeit, 07/2001, available at (http://www.de/2001/07/ weltbank)

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VL Assessment and Concluding Observations With the exception of the complaint mechanisms set up by Human Rights Instruments,209 individuals still lack direct access to international judicial petition procedures to vindicate their basic rights.210 In particular, victims of human rights abuses, which can and at times do occur in projects funded by multilateral financial institutions such as the IBRD and the IDA, were often left without effective protection and remedies. As international development banks do not enter into contractual relationships with the people who are potentially affected by bank-financed projects, the Bank's policies do not provide for enforceable rights against the Bank.211 Individuals can only rely on domestic remedies which are often not available for the asserted infringements. Any attempt to find a foreign state to champion the victims' cause —

209

210

211

E.g. European Convention on Human Rights, text in: I. Brownlie (ed.), Basic Documents in International Law, 4th edition, 1995, 328 et seq., American Convention on Human Rights, Organization of American States (OAS) Treaty Series No. 36 (1), OAS Official Records OEA, Ser. K/XVI/1.1, Doc. 65, Rev. 1, Corr. 1 (1970), reprinted in: OAS Handbook of Existing Rules Pertaining to Human Rights (Handbook) OEA. Ser. L/V/11.50, Doc. 6 (1980), 27-52. For an analysis of the complaint mechanism under the European Convention on Human Rights, see, e.g. E. Klein (ed.), The European Court of Human Rights-Organisation and Procedure: Questions concerning the Implementation of Protocol No. 11 to the European Convention on Human Rights, 1997. For an analysis of the complaint mechanism under the American Convention on Human Rights, see, e.g. D. Shelton, "Implementation Procedures of the American Convention on Human Rights," GYIL 26 (1984), 238 et seq. It should be noted that unlike the European Convention on Human Rights - on 1 November 1998 a fulltime Court was established, replacing the original two-tier system of a part-time Court and Commission -, the American Convention on Human Rights does not allow for a direct application of an individual to the InterAmerican Court of Human Rights, but for the lodging of petitions with the Commission only. See, e.g. P. Malanczuk, Akehurst's Modern Introduction to International Law, 7th edition, 1997, 217, for an explanation of the reasons for this lacuna. Malanczuk puts forward that: "Conflicting ideologies and interests, and mutual distrust, make it difficult to reach agreement at the United Nations about human rights" and that: "Agreement is easier to reach at the regional level, where states are more likely to trust one another and to have common values and interests." Cf. Schlemmer-Schulte, see note 5.


519

assuming that such a possibility exists in law —212 will most likely be in vain: states generally refrain from bringing complaints of human rights violations by another state under any international procedure.213 These circumstances have not changed with the creation of the World Bank Inspection Panel. With the establishment of the Panel, the World Bank has set an important precedent for offering non-state actors the possibility of triggering a compliance monitoring mechanism which may, in the end, result in the correction of failures resulting from non-compliance with its own environmental and social project requirements. The Panel does not, however, represent "a legal remedy mechanism through which positions described in the Bank's policies or rights referred to in the Resolution could be enforced against the Bank."214 The Resolution grants individuals standing before an independent investigatory body or accountability mechanism. It does not accord them the remedy of a legal action in a court.215 The creation of the Panel was the World Bank's response to a growing international movement demanding greater transparency, accountability, and citizen participation at international financial institutions such as the World Bank, the IMF, and the World Trade Organization, which are accused of making decisions that affect the lives of people all over the world, in particular the lives and livelihoods of the poor and defenceless, without a clear system for accountability and demo212

213 214 215

Cf. Th. Hutchins, "Using the International Court of Justice to Check Human Rights Abuses in World Bank Projects," Colum. Hum. Rts. L. Rev. 23 (1991-92), 487 et seq., who argues that, in theory, there are various avenues open to states championing the cause of victims of human rights abuses in projects funded by the IBRD to bring their case before the ICJ, namely "(1) a suit against members of the World Bank who have signed the compulsory jurisdiction clause of the Court's Statute, claiming that the World Bank violates international law when human rights abuses take place in its projects, and that member states share responsibility for those abuses; (2) a suit against members of the World Bank which have become parties to international human rights covenants with compromissory clauses granting jurisdiction to the Court, making the same claim as in (1); and (3) a plea to members of the World Bank to pressure the Bank into requesting an advisory opinion of the Court on whether the Bank and its members violate international law when human rights abuses occur in its projects." Ibid., 488. Shelton, see note 209. Schlemmer-Schulte, see note 5. Cf.ibid.

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cratic participation.216 The Inspection Panel demonstrates the World Bank's willingness to increase its accountability and transparency. According to the Panel members themselves, the mere existence of the Panel has already enhanced Bank staff awareness that they are accountable for the Bank's compliance with its own policies and procedures.217 Currently, the Panel's authority encompasses only the operations of the IBRD and the IDA. Private sector projects by the IFC and the Multilateral Investment Guarantee Agency (MIGA) are not subject to Panel review.218 Various non-governmental organisations including Friends of the Earth, a US-based NGO, as well as some scholars are demanding that the Panel's authority expand to encompass the operations of the entire World Bank.219 An alternative suggestion is for a separate, independent review panel for the IFC/MIGA to be established.220 Either solution seems to be not only desirable but also necessary in order to extend the concept of accountability of international financial institutions to the public.221 The creation of the World Bank's Inspection Panel could, inter alia, be seen as a serious attempt by the World Bank to create a convincing solution to a fundamental dilemma that development finance institutions which provide funding and advice for development projects are faced with — a dilemma that has traditionally been considered to be irreconcilable. The dilemma is caused by two seemingly conflicting mandates — to help developing countries allocate and use their resources to maximise public welfare, and to ensure that the majority does not advance at the expense of a minority group or the environment. The underlying problem has been poignantly summarised by Bradlow: "[A]ll development projects, whether they be the building of new dams, highways, power systems, or sports stadiums, involve conflict 216

217 218

219

220 221

Cf., e.g., Manifesto of the World Social Forum on 25th to 30th January 2001 in Porto Alegre, Southern Brazil, (http://www.forumsocialmundial. org) Cf. Escher, see note 90. For the IFC and MIGA, a Compliance Advisor/Ombudsman (CAO) was created. It can be reached at (http://www.ifc.org) Cf. Center for International Environmental Law (CIEL), "Discussion Paper on Extension of Inspection Panel to IFC and MIGA," (http://www.igc. apc.org) Cf.ibid. For a discussion of the proposed models for an IFC/MIGA inspection mechanism, see Bufi, see note 41.


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between those who believe that legitimately chosen policy makers have the right to except that their decisions regarding development will be respected and those who believe that development projects imposing an unfair burden on any specific group of people are unacceptable. This dispute often also becomes a dispute between national policy makers, who believe that sovereignty should protect their decisions from outside interference, and those who believe that certain internationally recognized standards of good practice are universally applicable. This latter group also contends that project decision makers who fall below these standards in their decisions and actions should be held internationally accountable."222 Although the Inspection Panel, thus far, has not specifically invoked international law standards other than Bank policies and procedures, as would be desirable, the Panel is an important means of holding an international finance organisation directly accountable for compliance with its own policies, and for the adverse effects that their decisions and actions may have on the environment and the people who live in the project areas.

222

Bradlow, see note 86.


Protection of the Environment in International Armed Conflict Yoram Dinstein

I. Introduction The importance of the environment is universally acknowledged. As the ICJ proclaimed in 1996, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons: "the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn".1 Attacks in wartime against military objectives2 often impact upon the environment. Oil facilities as military objectives can serve as a prime example. When an oil refinery is struck, this may give rise to toxic air pollution. When an oil storage facility is demolished, the oil may seep 1

2

Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996,226 et seq., (241, para. 29). Military objectives are authoritatively defined as "those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage", article 52 para. 2 of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977, reproduced in: D. Schindler/ J. Toman (eds), The Laws of Armed Conflict: A Collection of Conventions, Resolutions and Other Documents, 1988, 3rd edition, 621 et seq., (645). 523

JA. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 523-549. © 2001 Kluwer Law International Printed in the Netherlands.

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into the ground and poison water resources. When an oil tanker is sunk at sea, the resultant oil spill may be devastating for marine life.3 The ICJ, in the above mentioned case, went on to say: "States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality".4 Proportionality means that the collateral harm must not be "excessive in relation to the concrete and direct military advantage anticipated" when an attack is launched against a military objective.5 It follows from the Court's dictum that, in accordance with the principle of proportionality, "an attack on a military objective must be desisted from if the effect on the environment outweighs the value of the military objective".6 Thus, the legal position consistent with present-day customary jus in bello is that, when an attack is launched, environmental considerations must play a role in the targeting process. Hence, even if an attack is planned in an area with little or no civilian population, it may have to be called off if the harm to the environment is expected to be excessive in relation to the military advantage anticipated.7 Conversely, "if the target is sufficiently important, a greater degree of risk to the environment may be justified".8 Once due regard is given to environmental considerations and proportionality is observed, it must be borne in 3

4 5 6

7 8

In the course of the Iran-Iraq War, hundreds of oil tankers were attacked by both sides in the Persian Gulf. As a result, in 1984 alone more than 2 million tons of oil were spilled into the sea. See P. Antoine, "International Humanitarian Law and the Protection of the Environment in Time of Armed Conflict", Int'lRev. of the Red Cross 32 (1992), 517 et seq., (530). Advisory Opinion on Nuclear Weapons, see note 1,242 para. 30. Cf. article 51 para. 5 lit.(b) of Protocol I, see note 2,651. L. Doswald-Beck, "International Humanitarian Law and the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons", Int'l Rev. of the Red Cross 37 (1997), 35 et seq., (52). See ibid., id. International Criminal Tribunal for the Former Yugoslavia (ICTY): Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, 2000, ILM 39 (2000), 1257 et seq., (1263).

Dinstein, Protection of the Environment in International Armed Conflict

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mind that an attack against a military objective is liable to produce legitimate collateral damage to the environment.9 These are the general norms pursuant to customary international law. The question to be discussed in this article is to what degree conventional international law confers upon the natural environment a special protection.

II. The International Legal Texts We shall not examine here the status during armed conflict of peacetime environmental treaties dealing, e.g., with oil dumping into the ocean or the use of substances that deplete the ozone layer.10 Nor shall we address the jus in hello injunctions against certain weapons the use of which is prohibited in general (whether or not they affect the environment). We shall focus instead on treaties directly apposite to the protection of the environment in warfare. There are two major international legal instruments (one generated within the framework of the United Nations and the other as part of the "Red Cross law"), and three supplementary texts (all related to the UN).

1. The ENMOD Convention Article I para. 1 of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (adopted by the UN General Assembly in 1976 and opened for signature in 1977; hereinafter: "ENMOD Convention") prescribes: "Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification

9

10

A.R. Thomas/ L.J.C. Duncan (eds), Annotated Supplement to the Commander's Handbook on the Law of Naval Operations, International Law Studies 73 (1999), 405. On this issue, see E.B. Weiss, "Opening the Door to the Environment and to Future Generations", in: L. Boisson de Chazournes/ P. Sands (eds), International Law, the International Court of Justice and Nuclear Weapons, 1999, 338 et seq., (347-348).

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techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party".11 Article II of the ENMOD Convention sets forth: "As used in Article I, the term "environmental modification techniques" refers to any technique for changing — through the deliberate manipulation of natural processes — the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space".12 An Understanding relating to article II is attached to the ENMOD Convention, listing on an illustrative basis the following phenomena that could be caused by environmental modification techniques: "earthquakes; tsunamis; an upset in the ecological balance of a region; changes in weather patterns (clouds, precipitation, cyclones of various types and tornadic storms); changes in climate patterns; changes in ocean currents; changes in the state of the ozone layer; and changes in the state of the ionosphere".13 In conformity with the ENMOD Convention, not every use of an environmental modification technique is forbidden. The combined effect of arts I and II is that several conditions have to be met: (i) Only "military or any other hostile" use of an environmental modification technique is forbidden. It does not matter whether resort to an environmental modification technique is made for offensive or defensive purposes.14 But the proscribed use must be either military or hostile.15 Article III para. 1 of the ENMOD Convention expressly states: "The provisions of this Convention shall not hinder the use of environmental modification techniques for peaceful purposes and

11

12 13 14

15

Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD Convention), 1976, reproduced in: Schindler, see note 2,163 et seq., (164). Ibid., 165. Ibid., 168. See J. Muntz, "Environmental Modification", Harv. Int'l L. J. 19 (1978), 385 et seq., (388). "Military" and "hostile" do not necessarily overlap. On the difference between the two adjectives, see C.R. Wunsch, "The Environmental Modification Treaty", ASILS International Law Journal 4 (1980), 113 et seq., (126).


527

shall be without prejudice to the generally recognized principles and applicable rules of international law concerning such use".16 It must be perceived that the activities excluded from the prohibition of the ENMOD Convention consist of either: (a) Benign stimulation of desirable environmental conditions, such as relieving drought-ridden areas or preventing acid rain;17 or (at the other end of the spectrum): (b) Measures causing destruction, damage or injury to another state when the use of the environmental modification technique is non-hostile and non-military.18 As the last part of article III para. 1 clarifies, the ENMOD Convention does not necessarily legitimize such activities (which may be illicit on other international legal grounds),19 but they do not come within the framework of its prohibition. (ii) The proscribed action must consist of "manipulation of natural processes". The natural process, then, is the instrument manipulated (as a weapon) for wreaking havoc. (iii) The prohibited conduct must be "deliberate". Differently put, the manipulation of natural processes must be intentional, and mere collateral damage resulting from an attack against a military objective is not included.20 Consequently, a bombing of a chemicals factory leading to toxic air pollution would not count under the ENMOD Convention.21

16 17

18

19

20

21

ENMOD Convention, see note 11,165. Cf. H.H. Almond, "The Use of the Environment as an Instrument of War", Yearbook of International Environmental Law 2 (1991), 455 et seq., (462). See M.J.T. Caggiano, "The Legitimacy of Environmental Destruction in Modern Warfare: Customary Substance over Conventional Form", Boston College Environmental Affairs Law Review 20 (1992-1993), 479 et seq., (489). See L. Juda, "Negotiating a Treaty on Environmental Modification Warfare: The Convention on Environmental Warfare and Its Impact upon Arms Control Negotiations", International Organization 32 (1978), 975 et seq., (984). See R.G. Tarasofsky, "Legal Protection of the Environment during International Armed Conflict", NYIL 24 (1993), 17 et seq., (47). See A.P.V. Rogers, Law on the Battlefield, 1996,116.

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(iv) The interdicted action must have "widespread, long-lasting or severe effects" (on the meaning of these crucial terms, see infra, III.). Consequently, if such effects are not produced, the use of an environmental modification technique (albeit hostile) would be excluded from the scope of the prohibition.22 By not forbidding a lower-level manipulation of natural processes for hostile purposes, the ENMOD Convention appears to condone military preparations for such activities.23 (v) The banned conduct must cause destruction, damage or injury. Three points should be appreciated: (a) Not every use of an environmental modification technique for military or hostile purposes must necessarily bring about destruction, damage or injury. For instance, an environmental modification technique employed for the dispersal of fog above critical enemy areas may be harmless as such.24 (b) Should there be destruction, damage or injury, the victim of the modification technique need not inevitably be the environment itself (although this would be a plausible outcome).25 If a tsunami or an earthquake can be induced by human beings in the future, the likely target would be a major industrial complex or a similar non-environmental objective. (c) The destruction, damage or injury must, of course, be generated by a deliberate manipulation of natural processes; but it may go far beyond what was intended or even foreseen by the

22

23

24

25

See L.I. Sanchez Rodriguez, "1977 United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques", in: N. Ronzitti (ed.), The Law of Naval Warfare: A Collection of Agreements and Documents with Commentaries, 1998, 651 et seq., (664). See A.H. Westing, "Environmental Warfare", Environmental Law 15 (1984-1985), 645 et seq., (663-664). See J. Goldblat, "The Environmental Modification Convention of 1977: An Analysis", in: A.H. Westing (ed.), Environmental Warfare: A Technical, Legal and Policy Appraisal, 1984, 53 et seq., (54). See W.D. Verwey, "Protection of the Environment in Times of Armed Conflict: In Search of a New Legal Perspective", LJIL 8 (1995), 7 et seq., (17).


529

acting state.26 This does not matter, as long as there is a causal nexus between the deliberate act and the result.27 (vi) The destruction, damage or injury must be inflicted on another state party to the ENMOD Convention. It does not matter whether that state is a belligerent or a neutral one, provided that it is a contracting party to the instrument. The destruction, damage or injury does not come within the ambit of the ENMOD Convention if it affects solely (a) The territory of the acting state (i.e. when the victim is the state's own population).28 (b) The territory of a state not party to the ENMOD Convention. Proposals at the time of drafting to make the text applicable erga omnes failed.29 Similar proposals did not carry the day in a Review Conference held in 1984.30 (c) Areas outside the jurisdiction of all states, like the high seas. 31 Unless, of course, the destructive activities on the high seas affect the shipping of a state party to the ENMOD Convention.32

26

27

28

29

30

31

32

See EJ. Yuzon, "Deliberate Environmental Modification through the Use of Chemical and Biological Weapons: 'Greening* the International Laws of Armed Conflict to Establish an Environmentally Protective Regime", Am. U.J. Int'lL&Pol'y 11 (1995-1996), 793 et seq., (807). See A. Leibler, "Deliberate Wartime Environmental Damage: New Challenges for International Law", CaL W. Int'l L. J. 23 (1992-1993), 67 et seq., (83). See S.N. Simonds, "Conventional Warfare and Environmental Protection: A Proposal for International Legal Reform", Stanford]. Int'l L. 29 (19921993), 165 et seq., (187). See G. Fischer, "Le Convention sur 1'Interdiction d'Utiliser des Techniques de Modification de 1'Environnement a des Fins Hostiles", AFDI23 (1977), 820 et seq., (830-831). See K. Korhonen, "The ENMOD Review Conference: The First Review Conference of the ENMOD Convention", Disarmament 8 (1985), 133 et seq., (137). See W. Heintschel von Heinegg/ M. Donner, "New Developments in the Protection of the Natural Environment in Naval Armed Conflicts", GYIL 37 (1994), 281 et seq., (294-295, 308). See G.K. Walker, The Tanker War, 1980-88: Law and Policy, International Law Studies 74 (2000), 514.

530


Exceptionally, environmental modifications can be spawned by conventional means and methods of warfare. A hypothetical example would be the systematic destruction by fire of the rain forests of the Amazon River Basin, thereby inducing a global climatic change.33 But by and large, the phenomena catalogued illustratively in article II (maninduced earthquakes, tsunamis and suchlike measures) can only be accomplished with unconventional weapons. For the most part, these techniques do not even reflect existing capabilities,34 and they are therefore future-oriented. Weather manipulation through "cloud seeding" has already been attempted, albeit not with spectacular results.35 Since, as indicated, the framers of the ENMOD Convention decided that its application should be circumscribed to the relations between states parties, it is manifest that they deemed the text innovative (rather than declaratory of customary international law). Nothing has happened since the adoption of the ENMOD Convention to suggest that the legal position has changed in this regard.

2. Protocol Additional to the Geneva Conventions of 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) This Protocol deals with the issue of the environment twice. Article 35 para. 3 proclaims the basic rule: "It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment".36 Article 55 para. 1 goes on to state: "Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the 33 34

35

36

See Rogers, see note 21,110. See W. Heintschel von Heinegg, "The Law of Armed Conflicts at Sea", in: D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, 1995,405 et seq., (423). See H. McCoubrey, International Humanitarian Law: Modern Developments in the Limitation of Warfare, 1998,2nd edition, 229. Protocol I, see note 2,645.


531

natural environment and thereby to prejudice the health or survival of the population".37 The first sentence of article 55 para. 1 reflects the underlying concept, to wit, the need to protect the natural environment in warfare, and it is interesting that the word "warfare" is retained in the text: ordinarily it was avoided by the framers of the Protocol (who preferred the phrase "international armed conflict").38 The second sentence in essence replicates article 35 para. 3. However, apart from slight stylistic changes, the second sentence adds the verb "includes" and the rider "thereby to prejudice the health or survival of the population". Both additions are problematic. The first may imply that the prohibition incorporated in article 55 para. 1 is "just an example for the scope of application and not a definition or interpretation of the foregoing sentence".39 Yet, it has never been seriously contended that the protection of the natural environment under article 55 para. 1 breaks any new ground as compared to article 35 para. 3.40 By contrast, the second addition to the second sentence of article 55 para. 1 appears to restrict its range to environmental damage that specifically prejudices human health or survival. Apparently, the desire of the framers of the Protocol was to reflect two conflicting standpoints: one advocating the notion that the protection of the environment in wartime is an end in itself (cf. article 35 para. 3), and the other subscribing to the view that the protection is only designed to guarantee the survival or health of human beings (cf. article 55 para. I).41 The present writer believes that the best way to construe the Protocol is to read the two additions to the second sentence of article 55 para. 1 as interlinked. By bringing to the fore cases in which damage to the natural environment would prejudice human health or survival, the prohibition in article 55 para. 1 is not reduced to them. The injury to 37 38

39

40 41

Ibid., 653. See P. Bretton, "Le Probleme des 'Methodes et Moyens de Guerre ou de Combat' dans les Protocoles Additionnels aux Conventions de Geneve du 12 Aout 1949", RGDIP 82 (1978), 32 et seq., (68). E. Rauch, The Protocol Additional to the Geneva Conventions for the Protection of Victims of International Armed Conflicts and the United Nations Convention on the Law of the Sea: Repercussions on the Law of Naval Warfare, 1984,140. See Verwey, see note 25,13. See G. Herczegh, "La Protection de 1'Environnement Naturel et le Droit Humanitaire", in: C. Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, 1984, 725 et seq., (729).

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human beings should be regarded not as a condition for the application of the injunction against causing environmental damage, but as the paramount category included within the bounds of a larger injunction.42 Article 55 para. 1 refers to the "health or survival" of the population. It follows that "mere survival of the population" is not enough: when the population's health is prejudiced, the ban is applicable.43 Unlike many other clauses of the Protocol, article 55 para. 1 employs the expression "population" unaccompanied by the adjective "civilian". This was a purposeful omission underscoring that the whole population, "without regard to combatant status", is alluded to.44 In any event, the replication of the same prohibition in article 35 para. 3 — forming part of a section of the Protocol related to methods and means of warfare — shows that civilians are not the sole beneficiaries of the protection of the natural environment. Moreover, in light of the condition that the environmental damage be "long-term", its effects are likely to outlast the war, and then any distinction between civilians and combatants becomes anachronistic.45 Some commentators criticize the text of article 55 para. 1 for not elucidating whether the whole population of a country is referred to or only a segment thereof (for instance, those persons who are in the vicinity of a battlefield).46 But this is not very persuasive. The Protocol's interdiction is phrased in a manner accentuating what is "intended" or "may be expected" to occur. The "may be expected" formula has also

42

43

44

45

46

H. Blix, "Arms Control Treaties Aimed at Reducing the Military Impact on the Environment", in: J. Makarczyk (ed.), Essays in International Law in Honour of Judge Manfred Lachsy 1984, 703 et seq., (713). See R. Carruthers, "International Controls on the Impact on the Environment of Wartime Operations", Environmental and Planning Law Journal 10 (1993), 38 et seq., (47). F. Kalshoven, "Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: The Diplomatic Conference, Geneva, 1974-1977, Part II", NYIL 9 (1978), 107 et seq., (130-131). See A. Kiss, "Les Protocoles Additionnels aux Conventions de Geneve et la Protection de Biens de 1'Environnement", in: Swinarski, see note 41,181 et seq., (190). See G.B. Roberts, "The New Rules for Waging War: The Case against Ratification of Additional Protocol I", Va. J. Int'l L. 26 (1985-1986), 109 et seq., (148 note 213).


533

been disparaged.47 Still, what the text does is accentuate prognostication (in the sense of both premeditation and foreseeability) rather than results. Hence: (i) On the one hand, "mere inadvertent collateral environmental effect of an attack" does not come within the compass of the prohibition.48 As long as the damage to the natural environment (and the consequential prejudice to the health and survival of the population) is neither intended nor expected, no breach of the Protocol occurs. (ii) On the other hand, where such an intention or expectation exists, it is immaterial that in fact only a portion of the population has been adversely affected. Indeed, if the intention or expectation can be established, it does not matter if ultimately there are no victims at all (although, in the absence of any damage, there may be insuperable obstacles in proving the intention or the expectation).49 After all, the text posits "prejudice" to health or survival of the population, not actual injury. Although article 55 para. 1 does not expressly designate the natural environment as a civilian object,50 it is noteworthy that the clause features in a Chapter of the Protocol entitled "Civilian Objects".51 In comparison to civilian objects in general, the natural environment is granted special protection (jointly with cultural objects and places of worship, objects indispensable to the survival of the civilian population, and works and installations containing dangerous forces). But the point is that, once classified as a civilian object, the natural environment must not be the object of attack.52 47

48

49 50

51 52

See W.A. Wilcox, "Environmental Protection in Combat", Southern Illinois University Law Journal 17 (1992-1993), 299 et seq., (308,313). M. Bothe, "War and Environment", in: R. Bernhardt (ed.), EPIL 4 (2000), 1342 et seq., (1344). See Rogers, see note 21,113. See B. Baker, "Legal Protections for the Environment in Times of Armed Conflict", Va.J. Int'lL. 33 (1992-1993), 351 et seq., (364). Protocol I, see note 2,652 (Chapter III of Part IV, Section I). See article 52 para. 1 of Protocol I, ibid., id. The treatment of the environment as a civilian object has been criticized for being too anthropocentric by K. Hulme, "Armed Conflict, Wanton Ecological Devastation and Scorched Earth Policies: How the 1990-91 Gulf Conflict Revealed the Inadequacies of the Current Laws to Ensure Effective Protection and Preservation of the Natural Environment", Journal of Armed Conflict Law 2

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This general observation is subject to an important caveat. Whereas it is correct to say that the natural environment in its plenitude must not be the object of attack, the legal status of specific elements of the environment would depend on changing circumstances. A forest, for instance, can become a military objective owing to enemy use (especially for concealment purposes) or even due to its strategic location (as in a mountain pass).53 If so, it would be exposed to attack. Article 55 para. 1 appears in a Section of the Protocol, which affects the civilian population, individual civilians and civilian objects on land only (even if attacked from the sea or from the air).54 The exclusion of naval and air warfare (not affecting land) from the reach of article 55 para. 1 is emphasized by some scholars.55 But considering that article 35 para. 3 is not similarly circumscribed, it appears clear that the Protocol's protection of the natural environment applies to all types of warfare. The Protocol does not define the phrase "natural environment". The ICRC Commentary suggests that it "should be understood in the widest sense to cover the biological environment in which a population is living" — i.e. the fauna and flora — as well as "climatic elements".56 There is no doubt that arts 35 para. 3 and 55 para. 1 constituted an innovation in international humanitarian law at the time of their adoption.57 It is sometimes alleged that the provisions have in the meantime been accepted as part and parcel of customary international law.58 But this is wrong. As late as 1996, the ICJ — in the above mentioned Nuclear Weapons Advisory Opinion — enunciated that the provisions of the Protocol "provide additional protection for the environment" and

53

54 55 56

57

58

(1997), 45 et seq., (59). But the criticism misses the point: a civilian object is an object which in principle is immune from attack. Cf. M. Bothe, "The Protection of the Environment in Times of Armed Conflict", GYIL 34 (1991), 54 et seq., (55). Cf. also the definition of military objectives, see note 2. Protocol I, see note 2,650 (article 49 para. 3). See Walker, see note 32, 517-518. C. Pilloud/J. Pictet, "Article 55", in: Y. Sandoz et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949,1987,661 et seq., (662). See C. Greenwood, "Customary International Law and the First Geneva Protocol of 1977 in the Gulf Conflict", in: P. Rowe (ed.), The Gulf War 1990-91 in International and English Law, 1993,63 et seq., (86). See, e.g., S. Gupta, "Iraq's Environmental Warfare in the Persian Gulf", Geo. Int'L EnvtL L Rev. 6 (1993-1994), 251 et seq., (260).


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*[t]hese are powerful constraints for all the States having subscribed to these provisions".59 Surely, states which have not subscribed to the provisions (by becoming contracting parties to the Protocol) are not bound by these constraints.60 In other words, the relevant Protocol's clauses have not yet crystallized as customary international law. In 2000, the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia opined that article 55 "may" reflect current customary law, while noting that "the International Court of Justice appeared to suggest that it does not".61

3. Supplementary Texts a. The Rome Statute Article 8 para. 2 lit.b (iv) of the 1998 Rome Statute of the International Criminal Court stigmatizes as a war crime "Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to concrete and direct overall military advantage anticipated".62 This text is based on the language of the Protocol, but there are two significant modifications as regards the protection of the environment: (i) the Statute requires both intention and knowledge of the outcome, rather than either intention or expectation as set forth in the Protocol; and (ii) for the war crime to crystallize, the damage to the natural environment must be clearly excessive in relation to the military advantage anticipated. The first modification is warranted by the labelling of the 59 60

61 62

Advisory Opinion on Nuclear Weapons, see note 1,242. Some scholars, relying on the Court's words that the Protocol's provisions "embody a general obligation" (ibid., id.), arrive at the conclusion that this is an implied recognition of customary international law; see T. Marauhn, "Environmental Damage in Times of Armed Conflict - Not 'Really' a Matter of Criminal Responsibility", Int'l Rev. of the Red Cross 82 (2000), 1029 et seq., (1031). But such conclusion misses the pivotal reference to states which have subscribed to these provisions. Final Report to the Prosecutor by the Committee, see note 8,1262. Rome Statute of the International Criminal Court, 1998, ILM 37 (1998), 999 et seq., (1006).

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act as a war crime, namely, the establishment of individual criminal responsibility and liability for punishment. Only an individual acting with both knowledge and intent would have the necessary mens rea exposing him to penal sanctions.63 The second modification is derived from the amalgamation in one paragraph of the materia of the protection of civilians (or civilian objects) and that of the natural environment. The principle of proportionality has already been mentioned (supra, I.): a balance must be struck between the military advantage anticipated (from an attack against a military objective) and any incidental injury to civilians or civilian objects. This is true also of the natural environment as a civilian object (unless an element of the environment — like a forest — is deemed a military objective in the circumstances prevailing at the time64). But the special regime, set up for the protection of the natural environment in arts 35 para. 3 and 55 para. 1 of the Protocol, brings in the three cumulative conditions of "widespread, long-term and severe damage" in lieu of proportionality. Under the Protocol, no action in warfare is allowed to reach the threshold of "widespread, long-term and severe damage" to the natural environment, irrespective of any other considerations.65 Should the three cumulative criteria be satisfied, the action will be in breach of the Protocol even if it is "clearly proportional".66 This is not the case in the Rome Statute where damage to the environment (however "widespread, long-term and severe") is explicitly added "as an element in the proportionality equation".67

63

64

65

66

67

See M.A. Drumbl, "Waging War against the World: The Need to Move from War Crimes to Environmental Crimes", Fordham Int'l L J. 22 (19981999), 122 et seq., (126,130-131). See D. Fleck, "Legal and Policy Perspectives", in: H. Fox/ M.A. Meyer (eds), Effecting Compliance, 1993,143 et seq., (146). See PJ. Richards/ M.N. Schmitt, "Mars Meets Mother Nature: Protecting the Environment during Armed Conflict", Stetson Law Review 28 (19981999), 1047 et seq., (1061-1062). See M.N. Schmitt, "The Environmental Law of Wan An Invitation to Critical Reexamination", Rev. Dr. Mil. Dr. Guerre 36 (1997), 11 et seq., (35). W.J. Fenrick, "Article 8(2)(b)(iv)w, in: O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 1999, 197 et seq., (id.).


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b. Protocol III, Annexed to the Weapons Convention

The Preamble of the 1980 Convention on Prohibitions or Restrictions of the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects repeats verbatim (by "recalling") the text of arts 35 para. 3 of Protocol I (without citing the source).68 Article 2 para. 4 of Protocol III, annexed to the Convention, lays down: "It is prohibited to make forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives, or are themselves military objectives".69 This provision is, of course, very limited in scope. It relates to only a small part of the natural environment: forests or other kinds of plant cover. Also, it grants protection not against attacks in general, but only against attacks by specific (incendiary) weapons. And the protection ceases when the enemy is using the forests for cover, concealment or camouflage; or when they constitute military objectives. In reality, "plant cover is most likely to be attacked precisely when it is being used as cover or camouflage".70 It has therefore been contended that the provision has little or no practical significance.71 But the protection of civilians or civilian objects in general is contingent on non-abuse, and there is no reason to protect a forest from attack when the enemy is conducting military operations under cover. The reference in the text to forests as military objectives presumably relates either to their actual use by the enemy or to their strategic location (see supra, II. 2.). Protocol III is not accepted as customary international law.72

68

69

70

71 72

Convention on Prohibitions or Restrictions of the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, 1980, reproduced in: Schindler, see note 2,179 et seq., (id.). Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), 1980, ibid., 190 et seq., (191). J. Goldblat, "Legal Protection of the Environment against the Effects of Military Activities", Bulletin of Peace Proposals 22 (1991), 399 et seq., (403). See F. Kalshoven, Constraints on the Waging of War, 1987,157. B.A. Harlow/ M.E. McGregor, "International Environmental Law Considerations during Military Operations Other than War", in: R.J. Grunawalt et al. (eds), Protection of the Environment during Armed Conflict, International Law Studies 69 (1996), 315 et seq., (318).

538


c. The Chemical Weapons Convention The use of herbicides (chemicals defoliants) for military purposes — primarily, in order to deny the enemy sanctuary and freedom of movement in dense forests — caught wide attention during the Vietnam War, owing to the magnitude of American herbicide operations and the fact that they stretched over a long period of time.73 The United States conceded that resort to herbicides can come within the purview of the prohibition of the ENMOD Convention, but only if it upsets the ecological balance of a region.74 Even this proposition has been challenged on the ground that recourse to herbicides, albeit destructive of an element of the environment, does not amount to a "manipulation of natural processes".75 However, the interpretation that the use of herbicides can under certain conditions "be equated with environmental modification techniques under Article II of the Convention" was authoritatively reaffirmed in a Review Conference in 1992.76 Evidently, the conditions listed in article I para. 1 of the ENMOD Convention must not be ignored. In particular, "widespread, long-lasting or severe" environmental damage is a prerequisite. A sporadic spread of herbicides might not cause environmental damage that is "widespread, long-lasting or severe", in which case it would not be in breach of the ENMOD Convention. It is therefore significant that the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (CWC) states in its 7th preambular paragraph:

73

74

75

76

See A.H. Westing, "Herbicides in Wan Past and Present", in: A.H. Westing (ed.), Herbicides in War: The Long-Term Ecological and Human Consequences, 1984,3 et seq., (5). See J. Goldblat, "The Environmental Modification Convention: A Critical Review", HuV6 (1993), 81 et seq., (82). See J.G. Dalton, "The Environmental Modification Convention: An Unassuming but Focused and Useful Convention", HuV 6 (1993), 140 et seq., (142). A. Bouvier, "Recent Studies on the Protection of the Environment in Time of Armed Conflict", Int'l Rev. of the Red Cross 32 (1992), 554 et seq., (563).


539

"Recognizing the prohibition, embodied in the pertinent agreements and relevant principles of international law, of the use of herbicides as a method of warfare".77 This paragraph was part of a "compromise package", whereby herbicides were simultaneously omitted from the definition of banned chemical weapons in the operative clauses of the CWC.78 Interestingly, the United States — although considering the CWC's prohibitions to be inapplicable to herbicides — "has formally renounced the first use of herbicides in time of armed conflict" (except within US installations or around their defensive perimeters).79 The allusion in the Preamble of the CWC to "the pertinent agreements" is somewhat vague, but it seems that the framers had in mind both the ENMOD Convention and Protocol I.80 Of greater weight is the reference to the "relevant principles of international law" and the use of the expression "[r]ecognizing". The inescapable connotation is that the prohibition is now predicated on customary international law.

III. The Dissimilarities between the ENMOD Convention and Protocol I It is worth recalling that the ENMOD Convention and Protocol I — although negotiated separately (the former in the context of the UN and the other as part of the process of updating the Geneva "Red Cross" Conventions) — were both signed in 1977. Needless to say, the framers of each text were fully cognizant of the other. The two instruments were designed to achieve different purposes, and there is no overlap in substance.

77

78

79

80

Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 1993, ILM 32 (1993), 800 et seq., (804). W. Krutzsch/ R. Trapp, A Commentary on the Chemical Weapons Convention^ 1994,8, 30. Annotated Supplement to the Commander's Handbook on the Law of Naval Operations, see note 9,477. See A. Gioia, "The Chemical Weapons Convention and Its Application in Time of Armed Conflict", in: M. Bothe/ N. Ronzitti/ A. Rosas (eds), The New Chemical Weapons Convention - Implementation and Prospects, 1998,379 et seq., (387).

540


In its temporal sphere of application, Protocol I is narrower in scope than the ENMOD Convention. Although Protocol I draws no distinction between enemy territory and the territory of the belligerent causing the environmental damage,81 the instrument applies only to international armed conflicts.82 The counterpart instrument governing noninternational armed conflicts — Protocol II83 — does not incorporate a provision parallel to arts 35 para. 3 and 55 para. I.84 For its part, the ENMOD Convention is germane to any situation in which an environmental modification technique is deliberately resorted to for military or hostile purposes and inflicts sufficient injury on another state party. The phraseology would cover the case of a hostile use of an environmental modification technique in the course of a non-international armed conflict, where the weapon is wielded intentionally against a domestic foe but causes cross-border environmental damage to another state party.85 Where weaponry is concerned, the Protocol has a wider scope than the ENMOD Convention. Whereas the ENMOD Convention is confined to one single type of weaponry, i.e. an environmental modification technique, the Protocol protects the natural environment (within prescribed circumstances) — and the population — against damage inflicted by any weapon whatsoever.86 This can be looked at from an additional angle. In its thrust, the Protocol protects the environment ("the environment as victim1*), whereas the ENMOD Convention protects from manipulation of the environment ("the environment as weapon3*).87 The Protocol goes much further than the ENMOD Convention in protecting the natural environment not only against intentional (or 81

82

83

84

85 86 87

See C. Stannard, "Legal Protection of the Environment in Wartime", Sydney Law Review 14 (1992), 373 et seq., (375). Article 1 para. 3 of Protocol I, see note 2, 628. But see also article 1 para. 4, ibid, id. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1977, reproduced in: Schindler, see note 2,689. See M. Sassoli/ A.A. Bouvier, How Does Law Protect in War: Cases, Documents, and Teaching Materials on Contemporary Practice in International Humanitarian Law, 1999,437. See Fischer, see note 29,830. J. de Preux, "Article 35", in: Sandoz, see note 56,389 et seq., (414-415). Bothe, see note 53,57.


541

"deliberate") infliction of damage in the course of warfare, but also against "purely unintentional and incidental damage" which, however, can be "expected".88 The Protocol accordingly provides protection also against "non-intentional ecological war", provided that the consequences for the natural environment are foreseeable.89 Neither the Protocol nor the ENMOD Convention applies in every case of destruction or damage. A threshold is set up in the two instruments, and remarkably both use the same (or virtually the same) qualifying adjectives: "widespread", "long-term" (or "long-lasting") and "severe". This ostensible resemblance between the two texts is deceptive for the following reasons: (i) In the ENMOD Convention the three terms are enumerated alternatively ("widespread, long-lasting or severe effects"), whereas in the Protocol they are listed cumulatively ("widespread, long-term and severe"). Thus, under the ENMOD Convention suffice it for one of the three yardsticks to be met, but under the Protocol all three conditions must be satisfied concurrently.90 Since environmental damage often meets one or even two of the conditions yet not the third, the Protocol sets a barrier which may prove too high91 (see infra, IV.). (ii) The three conditions, whether conjunctive or disjunctive, govern the scope of area affected, duration and degree of damage.92 But the ENMOD Convention and the Protocol "attribute different meanings to identical terms".93 In conformity with an Understanding relating to article I, attached to the ENMOD Conven88

89 90 91

92

93

See S. Oeter, "Methods and Means of Combat", in: Fleck, see note 34, 105 etseq.,(117). De Preux, see note 86,419. See ibid., 418. Schmitt gives as an example of "the destruction of all members of a species which occupies a limited region": this would be long-term and severe (since it is irreversible) but perhaps not widespread. M.N. Schmitt, "War and the Environment: Fault Lines in the Prescriptive Landscape", AYR 37 (1999), 25 et seq., (43-44). See W.A. Solf, "Article 55", in: M. Bothe/ KJ. Partsch/ W.A. Solf (eds.), New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949,1982, 343 et seq., (346). A. Bouvier, "Protection of the Natural Environment in Time of Armed Conflict", Int'lRev. of the Red Cross 31 (1991), 567 et seq., (575-576).

542


tion, "widespread" encompasses "an area on the scale of several hundred square kilometres"; "long-lasting" endures "for a period of months, or approximately a season"; and "severe" involves "serious or significant disruption or harm to human life, natural and economic resources or other assets".94 The first two criteria, defined in quantitative terms, are clear enough; the third is more ambiguous.95 In any event, the Understanding explicitly states that its definitions are intended "exclusively" for the ENMOD Convention and they do not "prejudice the interpretation of the same or similar terms" when used in any other agreement.96 The Understanding's definitions are therefore inapplicable to the Protocol where the position is radically divergent.97 The meaning of the adjective "severe" in the Protocol is not sufficiently clear.98 However, it is accepted that the extent of "widespread" may well be less than several hundred square kilometres.99 Above all, "the time scales are not the same": while in the ENMOD Convention "long-lasting" effects are counted in months, "for the Protocol 'long-term' was interpreted as a matter of decades".100 Where injury to the health of the population is concerned, it is discerned that - since shortterm effects are beyond the ambit of the prohibition - what is meant is acts causing, e.g., "congenital defects, degenerations or

94

ENMOD Convention, see note 11,168. See A.S. Krass, "The Environmental Modification Convention of 1977: The Question of Verification", in: Westing, see note 24,65 et seq., (67). 96 ENMOD Convention, see note 11,168. 97 Some commentators hold that the definitions in the Understanding attached to the ENMOD Convention are applicable also to the Protocol. See, e.g., B.K. Schafer, "The Relationship between the International Laws of Armed Conflict and Environmental Protection: The Need to Reevaluate What Types of Conduct Are Permissible during Hostilities", CaL W. Intl'L J. 19 (1988-1989), 287 et seq., (309 note 110). But the claim is untenable. 98 It has been suggested that "severe" in the Protocol means "causing death, ill-health or loss of sustenance to thousands of people, at present or in the future", Leibler, see note 27, 111. 99 See Antoine, see note 3, 526. 100 De Preus, see note 86, 416-417. 95


543

deformities".101 The trouble is that it is impracticable to calculate in advance the likely durability of environmental damage.102

IV. A Case Study: Setting Fire to Oil Wells in the Gulf War During the Gulf War, Iraq maliciously released large quantities of oil into the Persian Gulf by opening the valves of oil terminals, causing "the largest oil spill ever".103 Above all, in February 1991, it set on fire more than 600 Kuwaiti oil wells (damaging numerous others), casting a huge smoke plume over a huge area.104 The smoke had serious crossborder effects regionally (although not globally, as initially feared), and the heavy atmospheric pollution in Kuwait had adverse effects for a long time.105 The oil wells continued to blaze for months, and the last fire was extinguished only in November 1991. As a rule, oil wells may be regarded as military objectives, the use of which can legitimately be denied to the enemy.106 Still, considering that the oil wells set on fire by Iraq were located in an occupied country (Kuwait) being evacuated by a defeated army, their systematic destruction — which could not possibly affect the progress of the war — did not offer a definite military advantage in the circumstances ruling at the time. The only possible military advantage to Iraq (on a purely tactical level) was the creation of thick smoke obscuring its ground forces from view by Coalition aviators, but the measure had little impact on mili-

101 102

103

104 105 106

Pilloud/ Pictet, see note 56,663-664. See G. Plant, "Environmental Damage and the Laws of Wan Points Addressed to Military Lawyers", in: Fox, see note 64,159 et seq., (169). A. Roberts, "Environmental Issues in International Armed Conflict: The Experience of the 1991 Gulf War", in: Grunawalt, see note 72, 222 et seq., (247). For a legal analysis of the Iraqi action, see C.C. Joyner/ J.T. Kirkhope, "The Persian Gulf War Oil Spill: Reassessing the Law of Environmental Protection and the Law of Armed Conflict", Case W. Res. J. Int'l L. 24 (1992), 29 et seq. See Roberts, ibid., 248. See ibid., 250. See L.C. Green, "The Environment and the Law of Conventional Warfare", CYIL 29 (1991), 222 et seq., (233).

544


tary operations.107 Even if the oil wells constituted military objectives in the circumstances prevailing at the time, and there was a limited military advantage in the smoke screen reducing visibility, the Iraqi action was subject to the application of the principle of proportionality.108 The monstrous air pollution throughout Kuwait was tantamount to excessive injury to the environment and to the civilian population in breach of that principle. On balance, the Iraqis appear to have been motivated not by military considerations but by sheer vindictiveness.109 In the absence of a military rationale, the Iraqi conduct was in violation of several humanitarian norms of general application. Article 23 lit.(g) of the 1899 Convention (II) and 1907 Convention (IV) Respecting the Laws and Customs of War on Land prohibit the destruction of enemy property when not "imperatively demanded by the necessities of war".110 Article 53 of Geneva Convention (IV) of 1949 Relative to the Protection of Civilian Persons in Time of War forbids the destruction by an Occupying Power of (private or public) property in an occupied territory, "except where such destruction is rendered absolutely necessary by military operations".111 Under article 147 of the same Convention, an "extensive destruction ... of property, not justified by military necessity and carried out unlawfully and wantonly" is defined as a grave breach.112 If a grave breach was perpetrated, it constituted a war crime under article 8 para. 2 lit.(a) (iv) of the (subsequently crafted) Rome Statute of the International Criminal Court.113 107

108

109 110

111

112 113

See J.P. Edwards, "The Iraqi Oil 'Weapon' in the 1991 Gulf War A Law of Armed Conflict Analysis", Naval Law Review 40 (1992), 105 et seq., (121). See J.H. McNeill, "Protection of the Environment in Time of Armed Conflict: Environmental Protection in Military Practice", in: Grunawalt, see note 72,536 et seq., (541). See ibid., id. Hague Regulations Respecting the Laws and Customs of War on Land, Annexed to 1899 Hague Convention (II) and 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, reproduced in: Schindler, see note 2,63 et seq., (83). Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 1949, reproduced in: Schindler, see note 2, 495 et seq., (517). On the linguistic difference between "the necessities of war" (the Hague wording) and "military operations" (the Geneva version), see R.J. Zedalis, "Burning of the Kuwaiti Oilfields and the Laws of War", Vand. J.Transnat'lL 24 (1991), 711 et seq., (749-750). Geneva Convention (IV), ibid, 547. Rome Statute, see note 62,1006.


545

In 1992, the General Assembly adopted without vote Resolution 47/37 on the "Protection of the Environment in Times of Armed Conflict", where it is stressed that "destruction of the environment, not justified by military necessity and carried out wantonly, is clearly contrary to existing international law".114 In its Nuclear Weapons Advisory Opinion, the ICJ cited this passage.115 The Court noted that General Assembly resolutions are not binding as such, but added that they can "provide evidence important for establishing the existence of a rule or the emergence of an opinio juris".116 The prohibition of damage or destruction to the natural environment, "not justified by military necessity and carried out wantonly", is reiterated in the San Remo Manual of 1995 on International Law Applicable to Armed Conflicts at Sea.117 This is an accurate reflection of customary international law today.118 The most intriguing question is whether — by setting fire to the Kuwaiti oil wells — Iraq acted in breach of Protocol I and the ENMOD Convention. The simple answer is negative, since Iraq was not a contracting party to the two instruments and they do not reflect customary international law. It is nevertheless worthwhile to raise the issue of principle whether (had Iraq been a contracting party) the action taken would have run counter to the strictures imposed by the two instruments. As far as Protocol I is concerned, the pivotal problem is the requirement to fulfill the three cumulative conditions of "widespread, long-term and severe damage" to the natural environment. In the immediate aftermath of the Iraqi action, it was almost taken for granted that all three conditions were actually met in this egregious instance.119 114

115 116 117

118

119

General Assembly Resolution 47/37, reproduced in: UNYB 46 (1992), 991, id. Advisory Opinion on Nuclear Weapons, see note 1,242. Ibid., 254-255. L. Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 1995,119. See D. Momtaz, "Le Recours a l'Arme Nucleaire et la Protection de 1'Environnement: L'Apport de la Cour Internationale de Justice", in: Boisson de Chazournes, see note 10,355 et seq., (364-365). P. Fauteux, "L'Utilisation de 1'Environnement comme Instrument de Guerre au Koweit Occupe", in: B. Stern (ed.), Les Aspects Juridiques de la Crise et de la Guerre du Golfe, 1991, 227 et seq., (260-262); D. Momtaz,

546


But since then many scholars have adhered to the view that — while the damage caused by Iraq was undeniably widespread and severe — the "long-term" test (measured in decades) was not satisfied.120 This was also the conclusion arrived at officially by the U.S. Department of Defense in reviewing the Gulf War.121 The position may be different as regards the ENMOD Convention. Although not required to be satisfied cumulatively, all three conditions of "widespread, long-lasting or severe effects" (as construed in the Understanding accompanying article I) were met, bearing in mind that even "long-lasting" is measured here only in months.122 As for the Understanding attached to article II (apart from the fact that the catalogue of phenomena listed there is not exhaustive), it covers changes in weather patterns, which definitely occurred in Kuwait.123 The relative primitiveness of the means employed by Iraq should not by itself rule out the applicability of the ENMOD Convention. After all, "arson falls within Article IPs notion of 'any technique'",124 and as pointed out (supra, II. 1.) setting fire to the tropical rain forests would qualify as such a technique. It has been maintained that, inasmuch as Iraq exploded man-made installations (the well-heads) to produce the results, there was no "deliberate manipulation of natural processes".125 The rationale is that a[t]he direct cause of the environmental destruction was the detonation of explosives on the well-heads, and the

120 121

122

123

124

125

"Les Regies relatives a la Protection de 1'Environnement au cours des Conflits Armes a PEpreuve du Conflit entre 1'Irak et le Koweit", AFDI37 (1991), 203 et seq., (209-211). See Rogers, see note 21,124. United States: Department of Defense Report to Congress on the Conduct of the Persian Gulf War - Appendix on the Role of the Law of War, ILM 31 (1992), 612 et seq., (636-637). See M.A. Ross, "Environmental Warfare and the Persian Gulf War: Possible Remedies to Combat Intentional Destruction of the Environment", DickJ. Int'L L. 10 (1991-1992), 515 et seq., (531). See M.T. Okorodudu-Fubara, "Oil in the Persian Gulf Wan Legal Appraisal of an Environmental Warfare", St. Mary's Law Journal 23 (19911992), 123 et seq., (176). L. Lijnzaad/ G.J. Tanja, "Protection of the Environment in Times of Armed Conflict: The Iraq-Kuwait War", NILR 40 (1993), 169 et seq., (196). See L. Edgerton, "Eco-Terrorist Acts during the Persian Gulf Wan Is International Law Sufficient to Hold Iraq Liable?", Go. J. Int'l & Comp. L. 22(1992), 151 et seq., (172).


547

fact that those well-heads have been constantly supplied with inflammable oil to feed the fire triggered by those explosions by virtue of the pressures in the strata below them is a secondary, not a causative, matter. Explosives, not oil pressure, were manipulated".126 That is to say, this was an instance "of damage to the environment, but not necessarily damage by the forces of the environment".127 Yet, the matter is by no means free of doubt. The manipulation of natural forces is frequently brought about through the use of man-made implements. Not surprisingly, a commentator denying that setting the oil wells ablaze is covered by the ENMOD Convention is apt to acknowledge that recourse to incendiary herbicides (such as napalm) is.128 Incontestably, Iraq did manipulate the natural pressure of the crude oil underground.129 The Iraqis actually "blasted the valves that could normally choke the oil flow to the wellhead".130 The sabotage of man-made installations does not detract from the fact that, had it not been for that natural flow under pressure, the "darkness at noon" calamity could not have been contrived by the Iraqis. The lack of clarity of the language of the ENMOD Convention generated much criticism in 1991, against the background of the Iraqi conduct in the Gulf War. The principal complaint was that the ENMOD Convention highlights unconventional futuristic techniques and ignores damage caused by conventional methods of warfare.131 However, proposals to revise the text were not adopted in a Review Conference convened in 1992.132 Security Council Resolution 687 (1991) — which set out the ceasefire conditions in the Gulf War — reaffirmed that Iraq "is liable under international law for any direct loss, damage, including environmental 126

127 128

129

130

131 132

G. Plant, "Introduction", in: G. Plant (ed.), Environmental Protection and the Law of War: The 'Fifth Geneva' Convention on the Protection of the Environment in Time of Armed Conflict, 1992,3 et seq., (24 note 69). Roberts, see note 103,250. See, e.g., N.A.E Popovic, "Humanitarian Law, Protection of the Environment, and Human Rights", Geo. Int'l Envtl L Rev. 8 (1995-1996), 67 et seq., (81). See N.A. Robinson, "International Law and the Destruction of Nature in the Gulf War", Environmental Policy and Law 21 (1991), 216 et seq., (220). J.E. Seacor, "Environmental Terrorism: Lessons from the Oil Fires of Kuwait", Am. U. J. Int'l L & Pol'y 10 (1994-1995), 481 et seq., (489). See Bouvier, see note 76,561. See ibid., 562-563.

548


damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq's unlawful invasion and occupation of Kuwait".133 A Compensation Fund (generated by revenues from Iraqi petroleum exports) and a Compensation Commission were established by the Security Council in Resolution 692 (1991).134 The Compensation Commission has already awarded Kuwaiti authorities hundreds of millions of dollars for the cost of extinguishing the well-head fires.135 Resolution 687 is legally valid despite the triple consideration that (i) Iraq was not a contracting party to Protocol I or to the ENMOD Convention; (ii) the ENMOD Convention does not reflect customary international law, nor do the environmental protection provisions of Protocol I; and (iii) even had the two instruments applied to Iraq, there is no consensus about their legal repercussions. Resolution 687 has a binding effect on Iraq, having been adopted under Chapter VII of the UN Charter.136 As for its substance, Resolution 687 predicates "the wrongful act which has engaged Iraq's State responsibility under international law" for any environmental damage on the illegal invasion of Kuwait in breach of the UN Charter and customary international law, rather than on the laws of warfare.137 In other words, Iraq's obligation to pay compensation for environmental damage (in conformity with Resolution 687) is derived from a flagrant violation of the jus ad bellum and not from any possible breach of the jus in bello.138

133

134

135

136 137

138

Security Council Resolution 687 (1991), reproduced in: ILM 30 (1991), 847 et seq., (852). Security Council Resolution 692 (1991), reproduced in: ILM 30 (1991), 864 et seq., (865). See R.P. Alford, "Well Blowout Control Claim", AJIL 92 (1998), 287 et seq., (288). The decision is reproduced in: ILM 36 (1997), 1343 et seq. Security Council Resolution 687, see note 133, 849. C. Greenwood, "State Responsibility and Civil Liability for Environmental Damage Caused by Military Operations", in: Grunawalt, see note 72, 397 et seq., (406). See L. Low/ D. Hodgkinson, "Compensation for Wartime Environmental Damage: Challenges to International Law after the Gulf War", Va. J. Int'l L 35 (1994-1995), 405 et seq., (456).


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V. Conclusion It is a regrettable fact that customary international law has not yet developed to the point where adequate protection is provided for the environment in wartime. The treaty law is more advanced, but (as demonstrated by the case study of the Gulf War) the threshold set by Protocol I is too high — especially where durability of the environmental damage is concerned — and the ENMOD Convention lends itself to restrictive interpretations. There is no doubt that some intentional and direct damage to the environment is not covered by either the ENMOD Convention or Protocol I, and is consequently still permissible.139 A number of scholars have called for a completely new convention, devoted exclusively to the subject and addressing it systematically.140 However, such a dramatic metamorphosis of the lex scripta is not likely at the present juncture. One well-versed commentator, who thought for a while that the formulation of such a treaty was timely,141 has in the meantime concluded that "governments are not at present ready to accept significant new obligations in this field".142 Regardless of the advisability of adopting a comprehensive and innovative treaty, what is clearly necessary is putting an end to any current controversy in identifying the threshold of environmental damage amounting to a breach of international law.143 This would be a worthwhile goal that could be accomplished by the United Nations.

139

140

141

142

143

See M.D. Diederich, "'Law of War' and Ecology - A Proposal for a Workable Approach to Protecting the Environment through the Law of War", Military Law Review 136 (1992), 137et seq., (152). See G. Plant, "Elements of a 'Fifth Geneva' Convention on the Protection of the Environment in Time of Armed Conflict", in: Plant, see note 126, 37 et seq. See P.C. Szasz, "Environmental Destruction as a Method of Warfare: International Law Applicable to the Gulf War", Disarmament 15 (1992), 128 et seq., (151-153). P.C. Szasz, "Comment: The Existing Legal Framework, Protecting the Environment during International Armed Conflict", in: Grunawalt, see note 72,278 et seq., (280). See RJ. Parsons, "The Fight to Save the Planet: U.S. Armed Forces, 'Greenkeeping', and Enforcement of the Law Pertaining to Environmental Protection during Armed Conflict", Geo. Int'l. EnvtL L Rev. 10 (19971998), 441 et seq., (460).


The Determination of Compatible Conservation and Management Measures for Straddling and Highly Migratory Fish Stocks Alex G. Oude Elferink*

I. Introduction Many fish stocks are not confined to the maritime zones of one state, but either are present in the maritime zones of more than one coastal state or both in coastal state zones and the high seas. In such a situation, effective management may in many cases require that measures in respect of the stock take into account the stock as a whole. International law has recognized for a long time that this situation requires cooperation between the coastal state(s) and/or states fishing on the high seas. For instance, the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas indicated in broad terms the circumstances under which states fishing on the high seas were to cooperate

*

Part of the research for this article was carried out at the Food and Agriculture Organization (FAO) under FAQ's Visiting Experts from the Academic and Research Institutions Programme in October and November 1998. The author wishes to thank Dr. W. Edeson of the Legal Office of the FAO and an anonymous reviewer for their comments on an earlier version of this article. The author remains solely responsible for the text of the paper. An earlier version of this article is posted on the web site of the Legal Office of the FAO (http://www.fao.org/legal/Prs-OL/elferink.pdf) (12 December 2000). 551

J.A. Frowein and R. Viol/nan (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 551-607. © 2001 Kluwer Law International. Printed in the Netherlands.

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with each other or with a coastal state.1 Similar obligations to cooperate were included in the United Nations Convention on the Law of the Sea.2 However, this basic legal framework does not indicate how the rights and interests of the states involved have to be reconciled in adopting measures in one maritime zone, in case these also have impacts in other maritime zones. A number of conflicts between coastal states and states fishing on the high seas at the end of the 1980s and the beginning of the 1990s highlighted the inadequacy of the global legal regime in this respect.3 Negotiations to address these shortcomings resulted in the adoption of the Fish Stocks Agreement in 1995.4 To further the compatibility of conservation and management measures for coastal state zones and the high seas, article 7 of the Fish Stocks Agreement sets out criteria, which have to be taken into account by coastal states and states fishing on the high seas in the determination of such measures. The present analysis seeks to establish to what extent the Fish Stocks Agreement in general and its article 7 in particular provide an effective tool for resolving conflicts that may arise between coastal states and states fishing on the high seas in establishing conservation and management measures for straddling fish stocks and highly migratory fish stocks.5 Although the analysis is primarily legal in nature, the Adopted on 29 April 1958; entered into force on 20 March 1966, UNTS Vol. 559 No. 8164. Hereinafter LOS Convention, adopted on 10 December 1982; entered into force on 16 November 1994, ILM 21 (1982), 1261 et seq.; UNTS Vol. 1833 No. 31363. See especially the articles 63 to 67 and 116 to 120 of the Convention. The focus in this respect has been on stocks occurring both in the high seas and areas under national jurisdiction, with little attention for the development of the framework for cooperation in respect of stocks occurring in more than one area under national jurisdiction. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 4 August 1995 (not yet entered into force), Law of the Sea Bulletin No. 29,25 et seq. For an overview of the development of international fisheries law in the 1990s see e.g. E. Hey (ed.), Developments in International Fisheries Law, 1999; F. Orrego Vicuna, The Changing International Law of High Seas Fisheries, 1999; D. Vignes/ G. Cataldi/ R. Casado Raigon, Le Droit International de la Peche Maritime, 2000.

Oude Elferink, The Determination of Compatible Measures

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impact of the framework for the application and interpretation of article 7 also has to be considered. This will be done by discussing the practice of fisheries management organizations and arrangements and by analyzing the provisions on provisional arrangements and dispute settlement of the Fish Stocks Agreement. Article 7 para. 2 of the 1995 Fish Stocks Agreement can be considered to be the linchpin of the scheme contained in this article. This paragraph provides that conservation and management measures for straddling fish stocks and highly migratory fish stocks for the high seas and areas under national jurisdiction shall be compatible. In six subparagraphs, article 7 para. 2 lists the factors to be taken into account in the determination of such measures.6 Article 7 para. 2 can be expected to raise complex issues of interpretation. The article states the factors that have to be taken into account in determining compatible conservation and management measures without explicitly specifying how these factors have to be balanced. This article analyzes these factors contained in article 7 para. 2 and will suggest considerations which can be taken into account in balancing them. One possibility in this connection is the use of equity and the need to arrive at an equitable result. The characteristics of each of the factors listed in article 7 para. 2 lit.(a) to (f) also can provide guidance in this respect. An analysis of article 7 para. 2 has to take into account its linkage to other provisions of the Fish Stocks Agreement and the LOS Convention. Apart from the other paragraphs of article 7, inter alia arts 5 and 6 of the Fish Stocks Agreement and arts 61, 63, 64, 116 to 119 and 297 of the LOS Convention are relevant in this context. Compatible conservation and management measures will be established in the framework of mechanisms for international cooperation established by the states concerned. The form such a mechanism takes, e.g. its membership, area of application or mandate, may influence the contents of compatible conservation and management measures. Part III of the Fish Stocks Agreement establishes mechanisms for internaThe issue of compatible conservation and management measures is also addressed in the FAO Code of Conduct for Responsible Fisheries of 31 October 1995 (Code of Conduct), International Fisheries, Instruments with an Index, 1998, 56 et seq., Sections 6.12, 7.3.1 and 7.3.2. These provisions not only apply to straddling fish stocks and highly migratory fish stocks, but also to transboundary stocks (stocks that straddle the exclusive economic zones of two or more states) and high seas stocks.

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tional cooperation concerning straddling fish stocks and highly migratory fish stocks. The mandate and activities of some regional fisheries management organizations and arrangements in respect of the compatibility of conservation and management measures is analyzed to assess what similarities and differences can be ascertained in practice. Although states have a duty to cooperate for the purpose of achieving compatible measures, agreement may not always be forthcoming. To mitigate the negative effects of the absence of an agreement on compatible measures, article 7 para. 5 of the Fish Stocks Agreement provides for the possibility of provisional arrangements or measures. Article 7 para. 6 lists a number of considerations in connection with the adoption of such arrangements or measures, including their relationship to compatible conservation and management measures. The analysis of provisional arrangements and measures will focus on whether their availability may either contribute to or hinder agreement on compatible conservation and management measures. In addition, the impact that third party dispute settlement can have on the determination of compatible measures will be assessed. In this connection it is relevant that the possibility to assess all the aspects of disputes over compatible measures and provisional arrangements is restricted by article 32 of the Fish Stocks Agreement. This article stipulates that article 297 para. 3 of the LOS Convention also applies to the Agreement. Article 297 para. 3 lit.(a) provides that the coastal state shall not be obliged to accept the submission to binding dispute settlement procedures of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone (EEZ) or the exercise of those rights. As the exercise of such sovereign rights by the coastal state is one of the key aspects of the scheme of article 7, article 297 para. 3 lit.(a) of the LOS Convention seems to restrict significantly the possibility for compulsory settlement of disputes concerning compatible measures or the indication of provisional measures. Section II. of this article discusses different aspects of article 7 para. 2, including its linkage to article 7 para. 1, the definition of the term "compatible", the factors mentioned in lit.(a) to (f) of article 7 para. 2 and possible considerations for balancing these factors. Section III. will shortly discuss the relevance of Part III of the Agreement for the determination of compatible conservation and management measures and looks at the activities of regional fisheries management organizations and arrangements in this respect. Section IV. will assess the aspects of provisional arrangements and measures indicated above, and Section V. the issues raised by the Agreement's dispute settlement procedures in


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the context of article 7. A final Section evaluates the main findings of the article.

II. Article 7 para. 2 of the Fish Stocks Agreement 1. Article 7 para. 1 of the Fish Stocks Agreement The provision on the compatibility of conservation and management measures in article 7 para. 2 is preceded by a paragraph which reaffirms the respective rights of coastal states and states fishing on the high seas contained in the LOS Convention. Article 7 para. 1 of the Fish Stocks Agreement can be seen as a specific application of the general provision contained in article 4 of the Agreement to the effect that nothing contained in it shall prejudice the rights, jurisdiction and duties of the states under the LOS Convention and that the Agreement has to be applied in a manner consistent with the Convention. The introductory part of article 7 para. 1 recognizes that it is without prejudice to the sovereign rights of coastal states for the purpose of exploring and exploiting, conserving and managing the living marine resources within areas under national jurisdiction as provided for in the Convention, and the right of all states for their nationals to engage in fishing on the high seas in accordance with the Convention. This formulation recognizes the rights of states as formulated in in arts 56 para. 1 lit.(a) and 116 of the LOS Convention respectively. Lit.(a) and (b) of article 7 para. 1 recapitulate the provisions of arts 63 para. 2 and 64 para. 1 of the LOS Convention regarding cooperation concerning straddling fish stocks and highly migratory fish stocks. Thus, article 7 para. 1 reaffirms the distinction in this respect between both types of stocks contained in the LOS Convention. However, equally important, in the light of the present discussion concerning the determination of compatible conservation and management measures, is the place of article 7 para. 1 in the Agreement, directly preceding the key provision on the compatibility of conservation and management measures. This makes article 7 para. 1 an important part of the context for the interpretation of article 7 para. 2 of the Agreement.7 If the terms of article 7 para. 2 would leave uncertainty as

Article 31 para. 1 of the Vienna Convention on the Law of the Treaties of 23 May 1969 (entered into force on 27 January 1980), UNTS Vol. 1155 No. 18232 provides that:

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to whether in determining compatible conservation and management measures preference has to be given to coastal state rights or high seas fishing states rights, the inclusion of para. 1 in article 7 indicates that, in making this assessment, the balance contained in the LOS Convention in this regard has to be respected. This suggests that any interpretation of article 7 para. 2 should be extremely careful to avoid tilting the balance in favour of either of the interests involved.8

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. This provision and the other articles of the Convention on the interpretation of treaties can be considered to reflect customary international law on the matter, see e.g. Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment of 3 February 1994, ICJ Reports 1994, 6 et seq., (21-22, para. 41); Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain); Jurisdiction and Admissibility, Judgment of 15 February 1995, ICJ Reports 1995, 6 et seq., (18, para. 33). Part of the problem in this respect is that coastal states and states fishing on the high seas did not agree on the interpretation of the relevant provisions of the LOS Convention in the first place, especially in respect of straddling fish stocks. Some authors have maintained that under the LOS Convention the coastal state has special rights over straddling stocks; see e.g., W. T. Burke, The New International Law of Fisheries; UNCLOS 1982 and Beyond, 1994, 133-135; B. Kwiatkowska, "Creeping Jurisdiction Beyond 200 Miles in the Light of the 1982 Law of the Sea Convention and State Practice", Ocean Development and International Law 22 (1991), 153 et seq., (167-173). In a later publication, Burke has observed that an interpretation of these provisions to give significant control to coastal states has been mostly disregarded, W.T. Burke, "Compatibility and Precaution in the 1995 Straddling Stocks Agreement", in: N. Scheiber (ed.), Law of the Sea; The Common Heritage and Emerging Challenges, 2000, 105 et seq., (108). Another view is that the coastal state is not granted any special rights over straddling stocks, other than the duty to cooperate of the states fishing on the high seas; see e.g., R. Lagoni, "Principles Applicable to Living Resources Occurring both within and without the Exclusive Economic Zone or in Zones of Overlapping Claims (Report of the International Committee on the EEZ of the International Law Association)", Report of the SixtyFifth Conference, London, The International Law Association, 1993, 254 et seq., (272-274 and 276-277); S. Oda, International Control of Sea Resources, 1989, xxi-xxii; Vignes et ah, see note 5, 209-210; see also J. Ziemer, Das Gemeinsame Interesse an einer Regelung der Hochseefischerei; Dargestellt am Beispiel des Fish Stocks Agreement, 2000,118.


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2. Meaning of the Term "Compatible" The Fish Stocks Agreement does not define the term "compatible". Generally, this term is used to qualify rights or obligations attributed under a provision by requiring their exercise or observance to be compatible with another provision.9 This implies that the provision, which has to be compatible, shall be applied in such a way that it does not result in a derogation of rights or obligations existing under the provision with which it has to be compatible. Article 7 para. 2 of the Fish Stocks Agreement uses the term "compatible" differently. Instead of restricting the scope of application of one provision by reference to another provision, it provides that conservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible inter se. This requires the balancing of these two sets of measures, with the possibility that either one can be adjusted.10 Article 7 para. 2 provides guidance on how to determine the content of compatible measures in two ways. The article defines the objective to be met by the establishment of compatible measures and it indicates factors to be taken into account in determining such measures. Article 7 para. 2 defines the objective of the compatibility requirement by providing that: 9

10

See e.g. the use of the term "compatible" in arts 18 para. 4 and 44 para. 1 of the Fish Stocks Agreement and arts 56, 58, 240 and 266 of the LOS Convention. The Code of Conduct uses the same approach in respect of compatibility, providing that states should: ensure effective conservation and protection of living aquatic resources throughout their range of distribution, taking into account the need for compatible measures in areas within and beyond national jurisdiction (Section 6.12). Another view is that the fact that article 7 para. 2 lit.(a) of the Fish Stocks Agreement requires that states ensure that high seas measures do not undermine the effectiveness of coastal states measures "resolves the issue of orientation of compatibility - high seas measures are compatible when they do not undermine the effectiveness of coastal State measures", Burke, "Compatibility", see note 8, 114. However, subsequently an important qualification is made to this conclusion, ibid., 115. A similar view on compatibility seems to be implicit in writings which attach particular significance to the wording of article 7 para. 2 lit.(a), see further note 27 and the text at that note.

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"[c]onservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of the straddling fish stocks and highly migratory fish stocks in their entirety."11 The use of the word "shall" indicates that guaranteeing this objective is a binding obligation. The term "conservation and management", employed in the objective to be achieved by compatible measures, has to be interpreted in the light of arts 2, 5 and 6 of the Fish Stocks Agreement. Article 2 defines the objective of the Agreement as "to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of the [LOS] Convention". Article 5 sets out in detail the obligations of States parties in order to conserve and manage straddling fish stocks and highly migratory fish stocks. Article 6 obliges states to apply the precautionary approach to conservation, management and exploitation of straddling fish stocks and highly migratory fish stocks.12 These detailed provisions can contribute significantly to assessing whether compatible measures ensure the objective of conservation and management of stocks as required by article 7 para. 2. However, the definition of the maximum sustainable yield in article 5 lit.(b) of the Fish Stocks Agreement, which refers to this yield "as 11

12

This objective was generally accepted by the participants at an early stage of the Fish Stocks Conference see e.g. "Statement Made by the Chairman of the Conference at the Conclusion of the General Debate on 15 July 1993", Doc. A/CONF.164/2 of 21 July 1993, reproduced in: J. Levy/ G.G. Schram, United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks; Selected Documents, 1996, 69 et seq., (69-70); D. Balton, "Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks", ODILA 27 (1996), 125 et seq., (137). However, the mechanisms to be established for achieving the implementation of this objective were controversial. Article 3 of the Agreement establishes that, unless otherwise provided, the Agreement applies to the conservation and management of straddling fish stocks and highly migratory fish stocks beyond areas under national jurisdiction. An exception is made in respect of arts 6 and 7, which also apply to areas under national jurisdiction, subject to the different legal regimes applicable to these areas. The general principles enumerated in article 5 of the Agreement shall be applied mutatis mutandis by the coastal state within areas under national jurisdiction.


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qualified by relevant environmental and economic factors, including the special requirements of developing States",13 indicates that states may have different views on the considerations to be taken into account in assessing whether this objective is met.14 For instance, in multi-species fisheries, larger harvests of one species may require lesser harvests of other species. This may become a contentious issue if the states involved are not interested to the same extent in the same species. A problem may also arise if some states are interested in higher levels of exploitation, with lower value per unit, and others are interested in restricting catches to attain higher value per unit. Some guidance to resolve such questions can be found in the reference to the special requirements of developing states and the factors mentioned in article 7 para. 2 lit.(d) and (e).15 In any case, this is an issue which requires careful consideration of all relevant circumstances of the particular case. The inclusion of the term "in their entirety" in the objective of article 7 para. 2 seems intended to reconfirm that conservation and management concerns the stocks as a whole, without distinguishing between parts of the stock on the basis of their occurrence in areas under national jurisdiction or the high seas.16 This interpretation is supported 13 14

15 16

See also article 61 para. 3 and 119 para.l lit.(a) of the LOS Convention. See also L. Juda, "The 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: A Critique", ODILA 28 (1997), 147 et seq., (152-154); O. Thebaud, "Transboundary Marine Fisheries Management. Recent Developments and Elements of Analysis", Marine Policy 21 (1997), 237 et seq. See further infra. The term "in their entirety" replaced the term "overall" contained in earlier drafts of the Agreement, see Draft Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Prepared by the Chairman of the Conference), Doc. A/CONF.164/22 of 23 August 1994, reproduced in: Levy, see note 11, 621, article 7 para. 2; Draft Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Prepared by the Chairman of the Conference), Doc. A/CONF.164/22/Rev.l of 11 April 1995, reproduced in: ibid, 671, article 7 para. 2. Reportedly, it was considered that the term "stocks overall" was unclear and that a better term was "stocks as a whole or in their entirety", see Earth Negotiations Bulletin (ENB) http://www.iisd.ca/linkages/vol07/ 700000e.html (22 March 1999), Vol. 7, issue 47; see also A. Tahindro, "Con-

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by the Code of Conduct, which requires that in order to conserve and manage stocks throughout their range measures should be compatible.17

3. The Factors to be Taken into Account in the Determination of Compatible Measures Lit.(a) to (f) of article 7 para. 2 list a number of factors to be taken into account in the determination of compatible conservation and management measures. This concerns a closed list, excluding the possibility of including further factors without the agreement of all the states concerned. In assessing the significance of these factors for the determination of compatible conservation and management measures, a distinction has to be made between the second element of lit.(a) and lit.(f) and the other factors listed in the subparagraphs. In determining compatible conservation and management measures states shall "take into account" the latter factors. In respect of the second element of lit.(a) and (f) the word "ensure" is used instead of "take into account". The requirement to "take into account" a factor implies that depending on the specific case it can be given only limited weight or no weight at all in establishing compatible measures. On the other hand, the use of the term "ensure" indicates that an objective is concerned, which always has to be attained in determining compatible measures. a. Existing Measures Lits.(a), (b) and (c) of article 7 para. 2 require that in determining compatible conservation and management measures, states shall "take into account" existing conservation and management measures. Lit.(a) requires states to take into account the conservation and management

17

servation and Management of Transboundary Fish Stocks: Comments in Light of the Adoption of the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks" ODILA 28 (1997), 1 et seq., (15), who suggests that "in their entirety" refers to the stocks concerned "throughout their geographical range". Code of Conduct, Section 7.3.2. Furthermore, Section 7.3.1 of the Code, addressing effective management, refers to the "whole stock unit over its entire area of distribution" and the "area through which it migrates during its life cycle".


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measures adopted and applied in respect of the same stocks by coastal states within areas under national jurisdiction and to ensure that measures established in respect of such stocks for the high seas do not undermine the effectiveness of such measures; lit.(b) to take into account previously agreed measures established and applied for the high seas in respect of the same stocks by relevant coastal states and states fishing on the high seas; and lit.(c) to take into account previously agreed measures established and applied in respect of the same stocks by a subregional or regional fisheries management organization or arrangement.18 An important qualification of these existing measures is that they have to be adopted and applied "in accordance with article 61 of the [LOS] Convention" (lit.(a)) or established and applied "in accordance with the [LOS] Convention" (lit.(b) and (c)). In case of lit.(b) and (c) the relevant provisions of the LOS Convention are arts 63 para. 2, 64 and 116 to l19.19 Article 7 para. 2 lit.(a) differs from the two other paragraphs on existing measures in one important respect. It not only enjoins states to take the measures of the coastal state into account, but also to ensure that measures adopted for stocks on the high seas do not undermine the effectiveness of the measures adopted and applied by the coastal state. The existence of these two requirements under lit.(a) raises the question how they relate to each other. An interpretation of lit.(a) of article 7 para. 2 in accordance with the ordinary meaning of its terms seems to result in a contradiction between the two requirements. The obligation to take into account coastal state measures entails that such measures are one of the elements to be balanced to determine compatible measures and as such can be adjusted. On the other hand, the obligation to ensure that measures established for the high seas do not undermine the effectiveness of such measures, seems to imply that these same coastal state measures have to be accepted as they stand.20 If this were the case,

18

19

20

Existing measures in general are an important element in determining conservation and management measures in all fisheries as these are expressive of the state of the stock and the interests involved in a fishery. For an analysis of these articles see e.g. S. Nandan/ S. Rosenne, United Nations Convention on the Law of the Sea 1982; A Commentary, Vol. II, 1993, 639 et seq.; ibid, Vol. III, 1995, 279 et seq.; The Law of the Sea; The Regime for High-Seas Fisheries; Status and Prospects, 1992,6-12. The words "such measures" in article 7 para. 2 lit.(a) refer to the conservation and management measures adopted and applied by the coastal state.

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only high seas measures can be adapted in determining compatible measures. If article 7 para. 2 lit.(a) is read in its context and in the light of the object and purpose of the Fish Stocks Agreement it seems that the contradiction between its two elements should not be resolved by adopting the latter interpretation.21 Article 7 para. 2 requires the mutual compatibility of measures adopted for areas under national jurisdiction and for the high seas and not that measures adopted for the high seas have to be compatible with measures adopted for areas under national jurisdiction.22 States, in determining compatible measures, taking into account the factors set out in lit.(a) to (f) of article 7 para. 2, may reach agreement that the objective of article 7 para. 2 requires some adjustment of the measures adopted by the coastal state for areas under national jurisdiction. Such agreement can only be reached with the consent of the coastal state, as the Fish Stocks Agreement is without prejudice to the

21

22

The drafting history of article 7 para. 2 lit.(a) may be considered to provide support for the interpretation that the internal cross-reference to coastal states measures in article 7 para. 2 lit.(a) does not necessarily imply that this concerns exactly the same set of measures. An earlier draft of this subparagraph read: take into account the conservation and management measures established in accordance with article 61 of the Convention in respect of the same stock(s) by coastal States within areas under national jurisdiction and ensure that measures established in respect of the high seas do not undermine the effectiveness of those measures established in respect of the same stock(s) by coastal States in areas under national jurisdiction (Draft Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Prepared by the Chairman of the Conference)), Doc. A/CONF.164/22/Rev.l of 11 April 1995, reproduced in: Levy, see note 11, 671. According to the Chairman of the Conference, the changes made by the Secretariat to this version of article 7 para. 2, which resulted in the text included in the Agreement, were editorial, see ENB, Vol. 7, issue 47. This earlier draft does not suggest the same measure of identity between the two references to national measures in article 7 para. 2 lit.(a) as article 7 para. 2 lit.(a) of the Agreement. See supra; see also P. Davies/ C. Redgwell, "The International Legal Regulation of Straddling Fish Stocks", BYIL 67 (1997), 199 et seq., (262-263 and 269); Tahindro, see note 16,17.


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sovereign rights of the coastal state in its area under national jurisdiction.23 If it is accepted that article 7 para. 2 lit.(a) does not exclude the adjustment of measures established by the coastal state, without prejudice to the coastal state's sovereign rights,24 the question remains what implications the second part of this subparagraph has. The term "undermine the effectiveness" indicates that there is some room for divergence between measures applicable to areas under national jurisdiction and the high seas. This terminology requires the absence of negative impacts of a certain magnitude on the conservation and management measures of the coastal state.25 Measures for the high seas may have some negative impact on coastal state measures, but nevertheless, do not undermine their effectiveness. For instance, measures for the high seas allowing for an annual catch which is equal to part of the increase of total catches of a stock over the preceding year in principle can hardly be

23

24

25

As is noted by Orrego Vicuna, citing Ambassador Nandan: It is clear from the wording of [article 7(2)] that the question is not that of high seas measures being applied under national jurisdiction, nor of national measures being applied in the high seas, but quite simply that both, adopted under their respective jurisdictional authority, will ensure compatibility by relying on similar standards of management that will not unbalance the system as a whole, Orrego Vicuna, see note 5, 188; see also P. Orebach,/ K. Sigurjonsson/ T.L. McDorman, "The 1995 United Nations Straddling and Highly Migratory Fish Stocks Agreement: Management, Enforcement and Dispute Settlement", International Journal for Marine and Coastal Law 13 (1998), 119 et seq., (127-128). This is supported by article 3 of the Agreement, which provides that article 7 also applies to the conservation of highly migratory stocks and straddling fish stocks in areas under national jurisdiction. The term "undermine the effectiveness" has also been used in connection with the activities of fishing vessels, see e.g. article 18 para. 1 of the Fish Stocks Agreement; article III para. 1 of the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas of 24 November 1993 (not yet entered into force; ILM 33 (1994), 968 et seq.). The context in which the term is used in both cases is different. In one case, the impact of measures applicable in one area on measures applicable in another area has to be established. In the other case, this concerns the effect of the activities of individual fishing vessels on the measures applicable to the area. In the latter context, a more restrictive interpretation of the term would seem to be desirable than in the present context.

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considered to undermine the effectiveness of the management measures of the coastal state. The requirement not to undermine the effectiveness of measures is missing in lit.(b) and (c) of article 7 para. 2. The absence of this requirement can be explained by the fact that article 7 para. 2 addresses coastal states and states fishing on the high seas, whereas only the coastal state is competent in regard of the adoption of measures for its area under national jurisdiction. Inclusion of a provision in article 7 that the states addressed by it shall ensure that coastal state measures are not to undermine the measures adopted for the high seas or by a (sub)regional organization or arrangement would contradict this exclusive coastal state competence.26 Too much weight should not be attached to the above-mentioned difference in formulation in lit.(a) and (b) of article 7 para. 2.27 In the

26

27

Orrego Vicuna notes in this respect that: [i]t is precisely because the coastal state is the sole authority in the exclusive economic zone that the [Fish Stocks] Agreement is only concerned with ensuring that measures adopted for the high seas do not undermine the effectiveness of those adopted by the coastal state and not the other way round, Orrego Vicuna, see note 5,194. Looking at this issue from a different angle Stokke observes that: [c]ompatibility highlights the spatial scope of agreed regulations and the extent to which they embrace all significant user states. Sovereignty concerns, in the form of coastal state reluctance to accept international premises for EEZ management, presents one impediment to spatial compatibility; but there are sometimes ways to overcome this barrier. While the agreement regulating pollock fisheries in the [Bering Sea] applies only to international waters, a non-binding but politically compelling Record of Discussions ensures an adequate level of compatibility with measures taken inside the EEZs of the coastal states (O.S. Stokke, "Managing Straddling Stocks: The Interplay of Global and Regional Regimes", Ocean and Coastal Management 43 (2000), 205 et seq., (212). See also infra text at note 103. For the argument that this difference is significant and gives a superior right to the coastal state see Burke, "Compatibility", see note 8, 114; G. Hewison, "Balancing the Freedom of Fishing and Coastal State Jurisdiction", in: Hey, see note 5, 161 et seq., (186); G. Vigneron, "Compliance and International Environmental Agreements: A Case Study of the 1995 United Nations Straddling Fish Stocks Agreement", Geo. Int'lEnvtl. L Rev. 10 (1998), 581 et seq., (598-599); Vignes et al., see note 5, 211-212; see also Stokke, see note 26, 212. Some of these authors indicate that this superior right of the coastal state is qualified by other provisions of the Agreement, see e.g. Hewison, see above, 186-187.


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case of lit.(b) the relevant coastal states and the states fishing on the high seas have agreed upon measures. This involvement of the relevant coastal states suggests that such measures already reflect their interests and that they have an obligation to respect such measures for the time they have been agreed upon.28 A final question in respect of existing measures as listed in article 7 para. 2 lit.(a) to (c) is to what extent they actually differ from compatible measures. Article 7 provides for a procedure in two stages to establish conservation and management measures for straddling fish stocks and highly migratory fish stocks. Under article 7 para. 1 the relevant coastal states and the states fishing on the high seas shall seek to agree upon the measures necessary for the conservation of straddling fish stocks in the area of high seas adjacent to areas under national jurisdiction. In respect of highly migratory fish stocks the relevant coastal states and states fishing in the region shall cooperate with a view to ensuring conservation and promoting the objective of optimum utilization of such stocks throughout the region, both within and beyond areas under national jurisdiction. Under article 7 para. 2 coastal states and high seas fishing states shall cooperate for the purpose of achieving compatibility of measures for both types of stocks for the high seas and areas under national jurisdiction. Although article 7 makes a distinction between these two stages in the decision making process, in many cases, it may not be possible to distinguish them in practice, because among other reasons, both concern the same actors. In fact, it would seem that under article 7 para. 1, which in its two subparagraphs copies the obligations of arts 63 para. 2 and 64 para. 1 of the LOS Convention for coastal states and states fishing on the high seas to cooperate with respect to straddling fish stocks and highly migratory fish stocks, measures adopted by the coastal state for the same stocks are already taken into consideration, requiring a consideration of their relationship to the measures to be agreed upon under article 7 para. 1. In respect of highly migratory fish stocks, refer-

28

Other publications, do not seem to consider this difference of wording that relevant as they conclude that article 7 provides a balance between the interests of coastal states and distant water fishing states, see e.g. Orebach, see note 23, 128; R. Rayfuse, "The Interrelationship between the Global Instruments of International Fisheries Law", in: Hey, see note 5, 107 et seq., (133); Ziemer, see note 8,118-119. Cf. Fish Stocks Agreement, article 34.

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ence is made to conservation and optimum utilization within and beyond areas of national jurisdiction. Measures agreed upon under article 7 para. 1 already have to meet the general principles applicable to the conservation and management of straddling fish stocks and highly migratory fish stocks contained in arts 5 and 6 of the Agreement. This implies that such measures at the time they are adopted in principle also meet the objectives of article 7 para. 2. The inclusion of a separate paragraph on compatible conservation and management measures in article 7 seems, at least in part, to be explained by the need to leave the legal framework for the conservation and management of straddling and highly migratory fish stocks established by the LOS Convention unaffected. Article 7 para. 1 reaffirms the respective rights of coastal states and states fishing on the high seas and the continued significance of arts 63 para. 2 and 64 para. 1 of the LOS Convention. The need for compatibility between measures for areas under national jurisdiction and for the high seas is given content in the separate article 7 para. 2. This has avoided the risk that, in the elaboration of a mechanism to coordinate coastal state and high seas fishing state conservation and management measures, the above-mentioned provisions of the LOS Convention would have been amended.29 b. The Factual Circumstances Listed in arts 7 para. 2 lit.(d) and (e) Article 7 para. 2 lit.(d) and (e) list a number of factual circumstances which states shall take into account in determining compatible conservation and management measures. Lit.(d) first of all refers to the biological unity and other biological characteristics of the stocks concerned. The reference to the biological unity of the stocks concerned implies that states, in determining compatible conservation and management measures, have to take into account the impact of conservation and management measures on a stock throughout its geographical range, instead of looking only at the impact of the measures in their area of application.30 Other biological characteristics of the stocks concerned include a stock's diffusion, and ontogenetic and seasonal migration.31 To the extent that these other biological characteristics indicate a 29 30 31

Cf.ENBVol.7,issue41,partIL See also Vigneron, see note 27, 587; see also supra text at note 16. See "Some High Seas Aspects relating to Straddling Fish Stocks and Highly Migratory Fish Stocks", Doc. A/CONF.164/INF/4 of 15 June 1993, reproduced in: Levy, see note 11,377, Annex V.


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geographical or seasonal differentiation of relevance for the conservation and management of a stock, this would have to be translated into geographically or seasonally differentiated conservation and management measures. The other factors listed in lit.(d) — distribution of the stocks, the fisheries and the geographical particularities of the region concerned, including the extent to which the stocks occur and are fished in areas under national jurisdiction — have to be viewed jointly, as reference is made to the relationships between them. These factors indicate the relevance of the zonal attachment of the stocks concerned, looking both at the distribution of the stocks between the high seas and areas under national jurisdiction and the fishing effort in both areas.32 Although such a comparative perspective is not explicitly included, it is implicit in the structure of this part of lit.(d), which first refers to distribution of stocks and fisheries of the region concerned and next specifies that this includes the extent to which the stocks occur and are fished in areas under national jurisdiction.33 Lit.(d) does not indicate how the factors of occurrence and fishing of stocks are to be balanced. The fact that reference is made to their relationship suggests that they should be correlated to a reasonable extent. However, as these are only two of the factors to be taken into account in determining compatible measures, such a reasonable degree of correlation does not necessarily have to result from the compatible measures eventually determined. Article 7 para. (2) lit.(e) requires states to take into account the respective dependence of the coastal states and the states fishing on the high seas on the stocks concerned. Some indication for the interpretation of the term "dependence" can be found in arts 11 and 24 of the Fish Stocks Agreement. Arts 11 para. 1 lit.(d) and (e) provide that in determining the nature and extent of participatory rights for new members of a subregional or regional fisheries management organization, or 32

33

Both the "other biological characteristics" of the stocks concerned and these other factors listed under lit.(d) concern the distribution of stocks throughout their range, but they have different implications for conservation and management measures. The former factor can indicate the need for geographically differentiated measures, the latter would seem to be primarily intended to provide guidance in dividing shares in a stock between the interested states. See also infra text at note 86 and following for a qualification of the usefulness of this approach in certain instances.

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for new participants in a subregional or regional fisheries management arrangement, states shall take into account: (d) the needs of coastal fishing communities which are dependent mainly on fishing for the stocks; (e) the needs of coastal States whose economies are overwhelmingly dependent on the exploitation of living marine resources;... Article 24 on the recognition of the special requirements of developing states reads in relevant part: 2. In giving effect to the duty to cooperate in the establishment of conservation and management measures for straddling fish stocks and highly migratory fish stocks, States shall take into account the special requirements of developing States, in particular: (a) the vulnerability of developing States which are dependent on the exploitation of living marine resources, including for meeting the nutritional requirements of their populations or parts thereof; (b) the need to avoid adverse impacts on, and ensure access to fisheries by, subsistence, small-scale and artisanal fishers and women fishworkers, as well as indigenous people in developing States, particularly small island developing States;... These provisions suggest that dependence on stocks mentioned in article 7 para. 2 lit.(e) can be made operational by reference to the importance of the stocks to the state concerned in relation to its national economy and the dependence of specific groups on the stocks concerned. For developing states an additional relevant consideration is meeting the nutritional requirements of their populations or parts thereof. That dependence may be expressed by reference to both the state as such and specific interests within the state is also indicated by the judgment of the ICJ in the Fisheries Jurisdiction Cases between the United Kingdom and Iceland and the Federal Republic of Germany and Iceland.34 In these cases, the Court recognized the relevance of the special dependence of Iceland's people upon the fisheries in the seas around its coasts for its livelihood and economic development.35 On the

34

35

Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland), Merits, Judgment of 25 July 1974; ICJ Reports 1974, 3 et seq.; Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ibid, 175 et seq. Ibid., 34, para. 79 and 206, para. 77.


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other hand, the Court found that dependence of sections of the British fishing industry on the fisheries concerned also was of relevance.36 Although both types of dependence can be taken into consideration, it would seem to be equitable to give greater consideration to the relative dependence of the states concerned, if the absolute dependence is of comparable magnitude. This seems justified by the consideration that a state which to a larger extent depends on the fisheries in relative terms will be harder hit by the negative impacts of diminished fishing activities. In establishing the dependence of the coastal state and the states fishing on the high seas under article 7 para. 2 lit.(e) another consideration can be whether alternative fishing grounds are available for the vessels involved in the fisheries.37 Whether this is the case may depend on

36

37

Ibid., 28-29, paras 64-66 and 34, para. 79; for the same conclusion with respect to the Federal Republic see ibid., 206, para. 77. Dependence on fisheries also figured in two cases concerning maritime delimitation before the ICJ and in one arbitration. In the Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America) (Gulf of Maine Case), Judgment of 12 October 1984, ICJ Reports 1984, 246 et seq., the Chamber recognized the potential significance of the livelihood and economic well-being of the population of the countries concerned for the case, ibid, 342, para. 237. In this case dependence of fisheries was only argued in respect of coastal communities and not of the states involved as such. In the Case Concerning Maritime Delimitation in the Area between Greenland and Jan May en (Denmark v. Norway), Judgment of 14 June 1993, ICJ Reports 1993, 38 et seq., the Court took into account the geographical distribution of certain fisheries resources to delimit part of the fishery zone boundary between Greenland and Jan Mayen ibid., 72, para. 76. In this connection the Court referred to the fact that Denmark had argued the importance of fisheries for the whole of Greenland and had also stressed the dependence of the Inuit population of Greenland on the fisheries, and that Norway had argued that fishing activities in the Jan Mayen area accounted for more than 8 per cent of the total quantity of Norwegian catches, and that they contributed to the fragile economy of Norwegian coastal communities, ibid., 71, para. 74. In the Case Concerning the Delimitation of Maritime Areas between Canada and the French Republic the Court of Arbitration defined dependence by reference to coastal communities, ILM 31 (1992), 1149 et seq., (1173, paras 83 et seq.). See also Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports 1974, 3 et seq., (28, para. 64).

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the possibility of access to other fisheries and whether the characteristics of the vessels involved make participation in such fisheries viable. The factor of dependence may in certain instances exclude the participation of re-flagged vessels in a fishery. If a vessel is re-flagged to a state with which it has no links (e.g. the fish is not processed or marketed in this state and the crew and beneficial owner of the vessel do not have its nationality), this state would be hard pressed to argue its dependence on the fishery.38 c. The Impact on Living Marine Resources Lit.(f) of article 7 para. 2 of the Fish Stocks Agreement requires states to ensure that compatible management and conservation measures "do not result in harmful impact on the living marine resources as a whole".39 Lit.(f) provides a benchmark against which to evaluate any system of management and conservation measures. Any such system which does not meet the requirement set out in lit.(f) would require amendment to guarantee that no harmful impact on the living marine resources as a whole results. Article 7 para. 2 lit.(f) reconfirms that in conserving and managing fisheries resources states have an obligation to protect living marine resources.40 The reference to living marine resources as a whole indicates that not only no harmful impact should result on individual species but

38

39

40

However, it is likely that such vessels would be operating outside the management regime in the first place. A concern for the marine environment is expressed in the 7th pre-ambular paragraph of the Fish Stocks Agreement, which reads: Conscious of the need to avoid adverse impacts on the marine environment, preserve biodiversity, maintain the integrity of marine ecosystems and minimize the risk of long-term or irreversible effects of fishing operations. Article 5 lit.(g) of the Agreement enjoins states to protect biodiversity in the marine environment and article 6 para. 1 provides for the application of the precautionary approach to the conservation, management and exploitation of straddling fish stocks and highly migratory fish stocks in order to protect the living marine resources and preserve the marine environment. These obligations are elaborated in more detail in other instruments, such as the Convention on Biological Diversity (adopted on 5 June 1992; entered into force on 29 December 1993); ILM 31 (1992), 818 et seq. See also article 5 lit.(e) of the Fish Stocks Agreement.


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also that no such impact should result on the ecosystems of which they form a part.41 Assessing whether specific conservation and management measures have a harmful impact on the living marine resources as a whole may be complicated because of the limited information on these resources, to the extent they are not target species of fishing efforts. Under the Fish Stocks Agreement two responses to this lack of information are envisaged. States are obliged to assess the impact of fishing on associated, dependent and non-target stocks.42 Where the status of such stocks is of concern states shall subject them to enhanced monitoring.43 Secondly, article 6 para. 1 of the Fish Stocks Agreement provides that: States shall apply the precautionary approach widely to conservation, management and exploitation of straddling fish stocks and highly migratory fish stocks in order to protect the living marine resources and preserve the marine environment. Article 6 para. 2 enjoins states to be more cautious when information is uncertain, unreliable or inadequate. These provisions indicate that uncertainties concerning the harmful impact on the living marine resources under article 7 para. 2 lit.(f) have considerable consequences for the formulation of compatible conservation and management measures. The need to prevent harmful impact on living marine resources under article 7 para. 2 lit.(f) may influence the content of conservation and management measures in two ways. A harmful impact may result from the way in which a fishery is being conducted. For instance, fishing gear may result in bycatches of a level having a harmful impact, or fishing areas or the fishing season may have to be adjusted to prevent such harmful impact. Guidance in this respect is provided by article 5 lit.(f) of the Agreement, which lays down a number of specific measures to minimize pollution and protect living marine resources. The Code of Conduct contains more detailed provisions in this respect.44 Secondly, catch and/or effort level for the target species may have to be adjusted if

41 42 43 44

See also note 39. Fish Stocks Agreement, article 5 lit.(d); see also article 6 para. 3 lit.(d). Ibid., article 6 para. 5. Code of Conduct, Sections 6.5 to 6.8, 7.2.2, 7.2.3, 7.6.9 and 8.5. For an evaluation of different management options to address the issue of bycatches see S. Pascoe, Bycatch Management and the Economics of Discarding, FAO Fisheries Technical Paper No. 370; FAO Fisheries Department, 1997.

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it is found that these levels as such have a harmful impact on the living marine resources as a whole.

4. Considerations for Balancing the Factors Mentioned in article 7 para. 2 Article 7 para. 2 does not indicate explicitly how the factors to be taken into account in determining compatible conservation and management measures have to be balanced. Some guidance in this respect is provided by the fact that article 7 para. 2 states the object of establishing such compatible measures. Moreover, in determining compatible measures states shall ensure that measures established for the high seas do not undermine the effectiveness of measures of the coastal state for areas under national jurisdiction (article 7 para. 2 lit.(a)) and that no harmful impact on the living marine resources as a whole results (article 7 para. 2 lit.(f)). However, these provisions only set limits to the range of compatible measures possible. Within these limits, compatible measures can be achieved by balancing the factors listed in the subparagraphs of article 7 para. 2 in different ways.45 Two considerations seem to provide a benchmark to balance the factors to be taken into account in determining compatible conservation and management measures. The balancing process can be viewed as a process requiring the application of equity in the light of the need to arrive at an equitable solution.46 Secondly, the nature of the factors mentioned in the subparagraphs of article 7 para. 2 also gives some indication how they have to be balanced.

45

46

See also Juda, see note 14, 154-155; Tahindro, see note 16, 17 and supra notes 14 and 15. Effective management of high seas resources also depends on equity in a broader sense: [t]he basic question of equity is this: do individuals get a reasonable and fair return on their contribution to a collective undertaking to regulate a commons? [...] Indeed, the presence of inequities may lead to the collapse of collective efforts, resulting in inefficiency. Equity problems are exacerbated by asymmetries among users, which create opportunities for some to benefit at others' expense. This, in turn, can lead to costly conflict where all parties lose, RJ. Oakerson, cited in Orebach, see note 23,121, n. 5.

Oude Elferinky The Determination of Compatible Measures

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a. Equity The relevance of equity for international law is generally recognized. The relationship between international law and equity has been defined as: [c]onsiderations of equity form part of the underlying moral basis for rules of law. In this sense equity may be regarded as a material source of law, but not as a formal source, nor in itself constituting a legal rule. It is perhaps in this sense that equity has its widest significance for international law. In a more strictly legal sense, however, equity may be regarded as forming part of certain specific rules of law or even as part of international law generally. Thus it may be regarded as incorporated in and forming a necessary part of certain general principles of law, such as, for example, the principle of good faith. [...] Similarly, a rule of law, if not actually embodying equitable principles, may require their application. In that case equity acquires a legal character, and is applied not just as equity but as part of a legal rule.47 Taking into account this definition, there are a number of arguments indicating that equity and the need to arrive at an equitable solution can be considered as relevant in the application of article 7 para. 2.48 First of all, the structure of article 7 para. 2 indicates the possibility to take into 47

48

R.Y. Jennings/ A. Watts (eds), Oppenbeim's International Law, 9th edition, 1992, 43-44; for further reading on equity and international law see ibid., 43 at note 1. Whether equity and need to arrive at an equitable solution will have a significant impact in practice may be open to some doubt. Generally, their elaboration has been carried out primarily by the judiciary. In international law this has been done mostly in the context of cases concerning the delimitation of maritime boundaries. The provisions on the compulsory setdement of disputes of the Fish Stocks Agreement (as those of the LOS Convention) may exclude the possibility of such a development in respect of the establishment of compatible conservation and management measures, see further infra Section V. Even if there will be an important role for the judiciary, it should be realized that equity and the need to arrive at an equitable solution can only give general guidelines and leave room for different interpretations in their application to the specific case , see e.g. Gulf of Maine Case, ICJ Reports 1984, 246 et seq., (290, paras 80-81 and 299, para. 1ll); Affaire de la Delimitation de la Frontiere Maritime entre la Guinee et la Guinee-Bissau; Sentence du 14 Fevrier 1985, RIAA Vol. XIX, 181182, para. 88.

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account these considerations. Article 7 para. 2 requires the balancing of a number of distinct factors, without providing any further guidance. In a similar situation involving the delimitation of the continental shelf between states, the judiciary has employed equity and the requirement that the outcome of the delimitation process has to be equitable.49 The need for an equitable solution in resolving disputes over fisheries between coastal states and states fishing on the high seas has been explicitly mentioned by the ICJ in one instance. In the Fisheries Jurisdiction Cases the Court observed that: It follows from the reasoning of the Court in this case that in order to reach an equitable solution of the present dispute it is necessary that the preferential fishing rights of Iceland, as a State specially dependent on coastal fisheries, be reconciled with the traditional fishing rights of the Applicant.50

49

50

The 1958 Geneva Conventions on the Law of the Sea addressed the delimitation of the territorial sea and the continental shelf by reference to equidistance/the median line and the possibility of a boundary delimited by another method if this were indicated by the presence of special circumstances, Convention on the Territorial Sea and the Contiguous Zone of 29 April 1958 (entered into force on 10 September 1964), UNTS Vol. 516 No. 7477, article 12; Convention on the Continental Shelf of 29 April 1958 (entered into force on 10 June 1964), UNTS Vol. 499 No. 7302, article 6. For an overview of the relevant case law see e.g. L. Lucchini/ M. Voelckel, Droit de la Mer, Tome 2, Vol. I, 19%, 207 et seq.; P. Weil, The Law of Maritime Delimitation - Reflection^ 1989, 191 et seq.; Jennings and Watts, see note 47, 776-782 and 804-807; Research Centre for International Law (ed.), International Boundary Cases: The Continental Shelf", 1992,10-55. Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports 1974, 3 et seq., (30, para. 69); Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ibid, 175 et seq., (198, para. 61). The Court summarized its reasoning referred to at the beginning of the citation as follows in the case between the United Kingdom and Iceland: that Iceland's extension of its exclusive fishery jurisdiction beyond 12 miles is not opposable to the United Kingdom; that Iceland may on the other hand claim preferential rights in the distribution of fishery resources in the adjacent waters; that the United Kingdom has also established rights with respect to the fishery resources in question; and that the principle of reasonable regard for the interests of other States enshrined in Article 2 of the Geneva Convention on the High Seas of 1958 requires Iceland and the


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Although the legal framework existing in 1974 differs significantly from the legal regime contained in the LOS Convention and the Fish Stocks Agreement, similarities are also apparent. These concern the existence of interests of coastal states and states fishing on the high seas in the same stocks, the need for conservation and management measures applicable to the whole stock, which straddles a jurisdictional limit, and arguments concerning the dependence of the states involved on the fisheries. A final consideration indicating the relevance of equity and the need to arrive at an equitable solution in determining compatible conservation and management measures is the importance these considerations have been attributed generally in the law of the sea and the LOS Convention.51 In itself this is not an argument for employing these considerations to a particular case if this is not required by the applicable law. It does, however, make it likely that these considerations will be of relevance for a case that lends itself for such application, such as article 7 para. 2 of the Fish Stocks Agreement. The following discussion on the implications of equity and the need to arrive at an equitable solution in the context of article 7 para. 2 draws upon the 1974 Fisheries Jurisdiction Cases and the case law on the delimitation of maritime boundaries. Although the application of general principles to the specific case in both instances differs, these general principles themselves to a large extent are equally applicable to both cases.52 A recent discussion on allocation criteria in the framework of the International Commission for the Conservation of Atlantic Tunas

51

52

United Kingdom to have due regard to each other's interests, and to the interests of other States, in those resources, ibid., 29, para. 68. See e.g. LOS Convention, 4th pre-ambular consideration, arts 59, 69, 70, 74, 76, 82, 83,140,155,266 and 269. See also North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. the Netherlands) (North Sea Continental Shelf Cases), Judgment of 20 February 1969, ICJ Reports 1969, 3 et seq., (48, para. 88); Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland), Merits, Judgment of 25 July 1974, ibid., 1974, 3 et seq., (33, para. 78); Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ibid, 175 et seq., (202, para. 69).

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(ICCAT) provides an example of the use of a reference to the need for an equitable solution in the context of fisheries management.53 In the Fisheries Jurisdiction Cases, the ICJ made an important qualification to the need to arrive at an equitable solution, noting that this is "not a matter of finding simply an equitable solution, but an equitable solution derived from the applicable law".54 In the Libya/Malta Continental Shelf Case the ICJ addressed the implications of this proposition, observing that in establishing considerations to be taken into account in the delimitation process: ... it is evident that only those [considerations] that are pertinent to the institution of the continental shelf as it has developed within the law, and to the application of equitable principles to its delimitation, will qualify for inclusion. Otherwise, the legal concept of continental shelf could itself be fundamentally changed by the introduction of considerations strange to its nature.55 In the context of article 7 para. 2 of the Fish Stocks Agreement, this finding confirms the importance of respecting the legal framework as established by the LOS Convention and reconfirmed by the Fish Stocks Agreement in determining compatible conservation and management measures. Another pronouncement on equity of relevance for the process of determining compatible conservation and management measures is that it does not necessarily imply equality. In the North Sea Continental Shelf Cases the ICJ observed that this implies that:

53

54

55

See Report of the 1st Meeting of the ICCAT Working Group on Allocation Criteria (ICCAT Report, 1998-99 (II), Annex 6), para 6.8 and the Opening Statement by Japan, ibid., Appendix 3 to Annex 6. Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports 1974, 3 et seq., (33, para. 78); Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ibid, 175 et seq., (202, para. 69). Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta) (Libya v. Malta Continental Shelf Case), Judgment of 3 June 1985, ICJ Reports 1985, 13 et seq., (40, para. 48); see also Case Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports. 1982, 18 et seq., (43, para. 36); Arbitration between the United Kingdom and France on the Delimitation of the Continental Shelf, Decision of 30 June 1977, ILR 54 (1979), 11 et seq., (115, para. 246).


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... There can never be any question of completely refashioning nature, and equity does not require that a State without access to the sea should be allotted an area of continental shelf, any more than there could be a question of rendering the situation of a State with an extensive coastline similar to that of a State with a restricted coastline. Equality is to be reckoned within the same plane, and it is not such natural inequalities as these that equity could remedy.56 The question how to balance different considerations was addressed by the ICJ in the North Sea Continental Shelf Cases. The Court observed that: ...more often than not it is the balancing-up of all such considerations that will produce [an equitable] result rather than reliance on one to the exclusion of all others. The problem of the relative weight to be accorded to different considerations naturally varies with the circumstances of the case.57 The importance of the circumstances of the case was also noted by the ICJ in the Fisheries Jurisdiction Case between Iceland and the United Kingdom when it pointed out that: ... both in regard to merits and jurisdiction the Court only pronounces on the case which is before it and not on any hypothetical situation which might arise in the future.58 These pronouncements indicate the importance of considering the factual circumstances of each particular case in applying the general legal framework provided by article 7 para. 2. All the factors mentioned in lit.(a) to (f) of article 7 para. 2 have a specific value in each particular case. b. The Characteristics of the Factors Listed in article 7 para. 2 A second possibility to assess how to balance the factors to be taken into account in determining compatible conservation and management 56 57

58

ICJ Reports 1969,49-50, para. 91. Ibid., 50, para. 93; see also Gulf of Maine Case, ICJ Reports 1984, 246 et seq., (313, para. 158). Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports 1974, 3 et seq., (32, para. 73); see also Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ibid, 175 et seq., (201, para. 65).

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measures is to look more closely at the characteristics of each of them. A distinction can be made between lit.(a) to (c), which concern existing management measures, and lit.(d) and (e), which concern factual circumstances related to the stocks concerned and the coastal states and the states fishing on the high seas. The logical starting point for determining compatible conservation and management measures is to establish to what extent existing conservation and management measures already ensure the objectives of article 7 para. 2 and appropriately take into account the factors mentioned in lit.(d) and (e). If this is the case, there is in principle no need for adjusting such existing measures. In order to establish whether this is actually the case, these measures will have to be evaluated in conformity with the requirements and procedures set out in article 7 para. 2 and other relevant provisions of the Fish Stocks Agreement. If existing measures do not ensure that the objectives of article 7 are attained or do not appropriately take into account the factors mentioned in lit.(d) and (e), their adjustment is required in determining compatible measures. As was argued above, existing measures in principle should be able to guarantee the objectives of article 7 para. 2. This indicates that the need for adjustment of existing measures to achieve compatibility in this case would in principle arise from new circumstances, which cause that such existing measures no longer ensure these objectives of article 7 para. 2. This need for more stringent measures indicates that in determining compatible conservation and management measures in this case the less stringent measures should be made compatible with the more stringent measures. If such a step still would not realize the objectives of article 7 para. 2 modification of all measures would be required. If existing measures do not take the factors mentioned in lit.(d) and (e) of article 7 para. 2 into account appropriately, existing measures for areas under national jurisdiction and the high seas can be adjusted to a different extent to reflect these factors to a larger extent. Such adjustment in principle does not require the establishment of more stringent measures. As some of the factors mentioned in lit.(d) and (e) in a specific case may result in giving more weight to coastal state interests and others to the interests of high seas fishing states, their balancing may give limited weight to each of these factors. The biological unity and other biological characteristics of the stocks concerned are of relevance for regulating catches. As was noted above, these biological factors may also result in different measures being applied to different zones or seasons. The other considerations in

Oude Elferink, The Detemiination of Compatible Measures

579

lit.(d) concern the distribution of the stocks concerned and fishing effort of the states concerned. In taking into account these factors, it would seem that there has to be achieved a correspondence between the zonal and seasonal distribution of stocks (if relevant for the stocks concerned) and the share of the states involved in the fisheries. The requirement of lit.(e) to take into account the respective dependence of the coastal states and the states fishing on the high seas on the stocks concerned is primarily of relevance for the distribution of stocks by setting a total allowable catch (TAG) or other measures. This respective dependence can, for instance, be a consideration to adjust the division of the TAC between the states involved in the fisheries established on other considerations. Such an adjustment can be achieved between the coastal states and the states fishing on the high seas or between the states fishing on the high seas. As the Fish Stocks Agreement recognizes the special requirements of developing states, for these states a larger role may be assigned to the factor of dependence than for developed states in a comparable situation. Apart from para. 2 of article 24 referred to above, article 24 para. 1 is relevant in this respect. This provision requires states to give full recognition to the development of fisheries by developing states. This obligation may require the adjustment of conservation and management measures to allow for such development.59 If conservation and management measures as defined in lit.(a) to (c) of article 7 para. 2 are not in place, the reasons for this absence have to be taken into consideration in establishing compatible conservation and management measures. If a coastal state has not adopted conservation and management measures for areas under its national jurisdiction, it also seems unlikely that such measures have been adopted under the other subparagraphs of article 7 para. 2. In this case, measures adopted by the states fishing on the high seas without involvement of the coastal state would probably become relevant for the determination of compatible conservation and management measures. In the absence of measures under lit.(b) and (c) coastal state measures would gain impor-

59

Implementation of this obligation may give rise to major controversy, especially if other states have a vested interest in the fishery and the stocks concerned are fully exploited, see e.g. the discussion in this respect in Report of the 1st Meeting of the ICCAT Working Group on Allocation Criteria, Annex 6 to ICCAT Report, 1998-99 (II), 84-113 (http:// www.iccat.es/Manage.html) (12 February 2001), 85 et seq.

580


tance in establishing compatible measures.60 However, in this case it also would seem relevant to inquire into the reasons for the absence of measures under lit.(b) and (c). If a coastal state has previously refused to participate in the establishment of such measures, the significance of coastal state measures for establishing compatible measures would be diminished.

III. The Framework for Implementation of article 7 para. 2 1. Mechanism for Cooperation under the Fish Stocks Agreement Under article 7 of the Fish Stocks Agreement, states have a duty to cooperate in respect of highly migratory fish stocks and straddling fish stocks.61 This duty to cooperate is elaborated in considerable detail in Part III of the Fish Stocks Agreement. Although states can also cooperate directly, the main thrust of Part III is towards the establishment of effective subregional or regional fisheries management organizations or arrangements. In principle, the conservation and management of any straddling fish stock or highly migratory fish stock has to be addressed through such an organization or arrangement.62 Part III sets out the circumstances in which states have to cooperate towards the establishment of such organizations and arrangements and lays down their functions.63 Only states which are members of such organizations or par60

61

62 63

On the interaction between the measures adopted under lit. (a), (b) and (c) see also Orrego Vicuna, see note 5,193. For a discussion of the implications of the duty to cooperate under article 7 of the Fish Stocks Agreement see the paper cited in note *, Section 3; EJ. Molenaar, "The Concept of "Real Interest" and Other Aspects of Cooperation through Regional Fisheries Management Mechanisms" International Journal of Marine and Coastal Law 15 (2000), 475 et seq., (477-484). See Fish Stocks Agreement, article 8. Fish Stocks Agreement, arts 8 and 10. In fulfilling their obligation to cooperate through subregional or regional fisheries management organizations or arrangements, states shall inter alia agree on and comply with conservation and management measures to ensure the long-term sustainability of straddling fish stocks and highly migratory fish stocks; agree, as appropriate, on participatory rights such as allocations of allowable catch or levels


581

ticipate in such arrangements, or which agree to apply the measures established by such organizations or arrangements, shall have access to the fishery resources to which those measures apply.64 In view of the functions of subregional or regional fisheries management organizations or arrangements, they will have a fundamental role in applying and interpreting the rules on compatibility contained in article 7 of the Fish Stocks Agreement.65 This consideration is not only important from a practical point of view, but also has important legal implications. Subsequent practice of states can be of relevance for the interpretation of the Fish Stocks Agreement.66 One requirement for such practice to be relevant is that it is sufficiently uniform. If practice on a specific point is not uniform between organizations and arrangements, it cannot contribute to the interpretation of provisions on compatibility. One important aspect of the provisions on cooperation contained in Part III of the Agreement is that they allow regional idiosyncrasies to be taken into account.67 For instance, article 8 para. 1 provides for cooperation, "taking into account the specific characteristics of the subregion or region". Article 9 para. 1 elaborates in more detail what considerations can be taken into account in establishing subregional and regional fisheries management organizations and arrangements. Reference is made to inter alia the biological characteristics of the stocks concerned and the characteristics of the subregion or region, including so-

64 65

66

67

of fishing effort; and adopt and apply any generally recommended international minimum standards for the responsible conduct of fishing operations, Fish Stocks Agreement, article 10 lit.(a) to (c). Fish Stocks Agreement, article 8 para. 4. See also Burke, "Compatibility", see note 8, 115; Vigneron, see note 27, 587. Article 31 para. 3 of the Vienna Convention on the Law of Treaties provides, that: There shall be taken into account, together with the context [of the terms of a treaty]: [...] (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; [...]. See also A.C. de Fontaubert, "The Politics of Negotiation at the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks", Ocean & Coastal Management 29 (1995), 79 et seq., (88); Thebaud, see note 14,249-250.

582


cio-economic, geographical and environmental factors. Part III also contains provisions on two particular types of regions. Article 15 addresses the situation of enclosed and semi-enclosed seas, and article 16 that of areas of high seas surrounded entirely by an area under the national jurisdiction of a single state.68 Moreover, the differences in the regime applicable to straddling fish stocks and highly migratory fish stocks are also of relevance in this respect.69 These considerations imply that there may only be uniformity of practice between organizations and arrangements at a high level of abstraction in the application of article 7 of the Agreement or that it may be difficult to draw generalizations from their activities altogether.

2. Recent Practice of Fisheries Management Organizations and Arrangements70 Before the adoption of the Fish Stocks Agreement in 1995, the question how to achieve consistency between measures applicable to areas under national jurisdiction and the high seas was also being considered in the framework of fisheries management organizations and arrangements. Since 1995, states have started to make specific reference to article 7 of the Fish Stocks Agreement in this connection. In looking at the practice of fisheries management organizations and arrangements, two aspects can be distinguished. The constitutive in68

69 70

However, these articles hardly develop on the legal framework the Agreement otherwise establishes, see also M. Hayashi, "The 1995 Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: Significance for the Law of the Sea Convention", Ocean and Coastal Development 26 (1996), 51 et seq., (64-65); E. Hey, "Global Fisheries Regulations in the First Half of the 1990s", International Journal of Marine and Coastal Law 11 (1996), 459 et seq., (474-475); A. Oude Elferink, "The Sea of Okhotsk Peanut Hole: De Facto Extension of Coastal State Control", in: O.S. Stokke (ed.), Governing High Seas Fisheries: Regime Interplay and Straddling Stocks Management, forthcoming, 2001, Chapter VI. Nonetheless, in practice the regime in one of the areas, which falls under the definition of article 16, has developed in a way that differs from most other regions, see further infra. See Balton, see note 11,128-129. This Section is not intended to give an overview of all practice, but serves to illustrate how the issue of compatibility has been discussed in the framework of fisheries management organizations and arrangements.


583

strument of such organizations and arrangements can address the question of compatibility in general terms. Once they become operative, organizations and arrangements apply these provisions in adopting conservation and management measures. The Northwest Atlantic Fisheries Organization (NAFO), which was established in 1979, manages a number of straddling fish stocks.71 The NAFO Convention defines a "Convention Area" and a "Regulatory Area". The Convention Area includes parts of the maritime zones of Canada, Denmark (Greenland), France (St. Pierre and Miquelon) and the United States and adjacent areas of high seas. The Regulatory Area is that part of the Convention Area which lies beyond the areas in which coastal states exercise fisheries jurisdiction.72 The Fisheries Commission of NAFO is responsible for the conservation and management measures of the Regulatory Area.73 The NAFO Convention provides that in the exercise of its functions the Fisheries Commission shall seek to ensure consistency between: a) Any proposal that applies to a stock or group of stocks occurring both within the Regulatory Area and within an area under the fisheries jurisdiction of a coastal State, or any proposal that would have an effect through species interrelationships on a stock or group of stocks occurring in whole or in part within an area under the fisheries jurisdiction of a coastal State; and b) Any measures or decisions taken by the coastal State for the management and conservation of that stock or group of stocks with respect to fishing activities conducted within the area under its fisheries jurisdiction. The appropriate coastal State and the Commission shall accordingly promote the coordination of such proposals, measures and decisions. Each coastal State shall keep the Commission informed of its measures and decisions for the purpose of this Article.74 This provision on consistency already prefigures the structure of article 7 of the Fish Stocks Agreement. It does not indicate any hierarchy be71

72 73 74

NAFO was established under the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (NAFO Convention) of 24 October 1978, entered into force 1 January 1979, UNTS Vol. 1135 No, 17799. Ibid., articles 1(1) and 1(2). Ibid., article XI(1). Ibid., article XI(3).

584


tween coastal state measures and measures adopted for the high seas, but recognizes that the appropriate coastal state and the Commission bear responsibility for areas under national jurisdiction and the Regulatory Area respectively. The provision does not indicate what considerations have to be taken into account to achieve consistency.75 A recent discussion involving the application of the consistency provision of the NAFO Convention, in which reference was also made to the concept of compatibility, took place at the 1999 Meeting of the Fisheries Commission.76 During the Meeting contracting parties other than Canada expressed their serious concern that management measures for the cod stock in the Convention subareas 2J3KL might not be consistent throughout its range in the Convention Area in the year 2000. No directed fishery of cod in the part of the subareas 2J3KL in the Regulatory Area was admitted, but Canada had set a 9.000 tons TAC for the inshore cod fishery in the subareas 3KL for 1999. At the same time, Canada had maintained the moratorium for offshore cod. In the Meeting, Canada presented a number of considerations explaining its decision. The inshore fishery was very limited, and was subject to strict management measures and controls. The decision only took place after extensive scientific review and the cod fishery was being conducted so as to improve confidence in management and rebuilding of the stock. Canada believed that its approach was consistent with conservative management of the resource. The representative of the European Union expressed disagreement, noting that the 2J3KL cod stock was a single 75

76

A number of considerations are listed in connection with the allocation of catches in the Regulatory Area. These considerations are similar to those contained article 7 para. 2 of the Fish Stocks Agreement. The provision concerned reads: Proposals adopted by the Commission for the allocation of catches in the Regulatory Area shall take into account the interests of Commission members whose vessels have traditionally fished within that Area, and, in the allocation of catches from the Grand Bank and Flemish Cap. Commission members shall give special consideration to the Contracting Party whose coastal communities are primarily dependent on fishing for stocks related to these fishing banks and which has undertaken extensive efforts to ensure the conservation of such stocks through international action, in particular, by providing surveillance and inspection of international fisheries on these banks under an international scheme of joint enforcement (NAFO Convention, see note 71, article XI(4). The following account is based on Northwest Atlantic Fisheries Organization (NAFO); Annual Report 1999 (http://www.nafo.ca/annrep.htm) (18 January 2001), 57, 77-81 and 101.


585

stock and was very depleted with very weak yearly yields since the beginning of the 1990s. There was no supporting data to the contrary. Inshore fishing primarily comprised juveniles and any fishing on one portion of the stock could seriously impact on the recovery of the stock in its entirety. By-catch of cod in other fisheries could also have an impact on the rebuilding of the cod. He concluded that there was no scientific basis for Canada to open the inshore fishery. Following this discussion, the Fisheries Commission referred two questions to the Scientific Council of NAFO: to evaluate the impact of catch in the range of 5.000 to 10.000 tons yearly on the recovery of the cod in 2J3KL; and to evaluate the impact of by-catches of cod in other fisheries in the Canadian 200 nautical mile zone and the Regulatory Area. In its response the Scientific Council observed that the information it had access to did not place it in a position to indicate risks associated with fishing at different levels. However, the Council noted that the size of the stock as a whole remained at a very low level. Any removals including directed catch and by-catch in other fisheries would hamper recovery of the resource, although the extent of this delay could not be determined with available data. In response, Canada acknowledged that there was a lack of good scientific data for inshore areas. The data being collected in the inshore fishery would contribute to filling that gap and allowing for more reasoned and scientifically based decisions. In respect of the issue of shared stock, it was suggested that the preponderance of interest resided with Canada as the coastal state, noting that the allocation for cod in 2J3KL was 95 per cent for Canada and 5 per cent for other NAFO parties. In setting the TAC for 2J3KL cod Canada had operated in a manner consistent with its rights and obligations and had not put the sustainability of the stock at risk. NAFO did not have the authority to approve or reject Canada's decision but rather to decide whether it choose to set a TAC for this stock in the NAFO Regulatory Area. The EU repeated its concern over the fact that the stock had become subject to conflicting conservation and management measures, although there were no indications of different stock components for the inshore and offshore. This situation was contrary to the consistency requirement of the NAFO Convention, the precautionary approach and fell short of the compatibility requirement of the Fish Stocks Agreement. The EU suggested that Canada in its capacity as a coastal state could request the Scientific Council of NAFO for scientific advise. This would allow for a more transparent situation and provide good scien-

586


tific advice, on the basis of which both the Fisheries Commission and Canada could operate. ICCAT provides an example of an organization involved in the management of highly migratory fish stock.77 The ICCAT Convention applies to all waters of the Atlantic Ocean, including the adjacent seas78 and the Commission is responsible for the conservation of tunas and tuna-like species. The ICCAT Convention does not explicitly address the relationship between management measures adopted for the high seas and those adopted for areas under national jurisdiction.79 However, language in the Convention indicates the importance of looking at stocks in their entirety and the interdependence of stocks.80 Some of the recommendations of ICCAT indicate further considerations, which have been taken into account in the management of stocks. For instance, Recommendation 98-3 makes reference to the rights of developing coastal states in developing their own fisheries.81 Recommendation 98-5 recognizes the need to reconcile conservation of a stock with the needs of coastal fishing communities which are dependent mainly on fishing for this stock.82 A final example is Recommendation 98-6, which as a consideration lists the highly migratory characteristics of

77

78

79

80 81

82

ICCAT was established under the International Convention for the Conservation of Atlantic Tunas (ICCAT Convention), adopted on 14 May 1966; entered into force on 21 March 1969; UNTS Vol. 673 No. 9587. The ICCAT Convention contains two safeguarding clauses in respect of maritime zones under national jurisdiction. Nothing in the Convention is considered to affect the rights, claims or views of any party in respect of the extent of jurisdiction over fisheries under international law (article II). The system of enforcement to be applied to the Convention area does not apply to the territorial sea and other waters in which a state is entitled to exercise fisheries jurisdiction under international law (article IX). At the time the Convention was adopted most of the states involved only had a territorial sea and continental shelf. See e.g. ICCAT Convention, article VI. Recommendation by ICCAT on the Bigeye Tuna Conservation Measures for Fishing Vessels Larger than 24 m Length Overall (LOA), entered into force on 21 June 1999, Section 7. Recommendation by ICCAT on the Limitation of Catches of Bluefin Tuna in the Eastern Atlantic and the Mediterranean, entered into force on 20 August 1999.


587

bluefin tunas, including juveniles, as well as the appearance of these juveniles at different times in different areas of the Mediterranean Sea.83 A further example of ICCAT practice is provided by the ICCAT Working Group on Allocation Criteria.84 The main reason for establishing the working group was dissatisfaction with the current allocation practice of ICCAT, based mainly on historical catch.85 The main disagreement during the discussion in the Working Group in fact concerned the weight to be given to historical catch. States seeking to diminish the role of this factor pointed to the interest of coastal states, particularly developing states, in developing their fishery. In this connection reference was made to preferential rights of coastal states in their EEZ and the concept of zonal attachment.86 These arguments were rejected by other states, pointing to the changing distribution of tuna biomass and the fact that due to the migratory character of the stocks concerned they do not belong to one zone in particular.87 Moreover, article 64 of the LOS Convention and article 7 of the Fish Stocks Agreement required cooperation between fishing states and coastal states, instead of recognizing coastal state preferences.88 To support the inclusion of specific allocation criteria in the list to be drawn up, reference was also made to both the LOS Convention and the Fish Stocks Agreement, in particular its articles 7 and 11.89 A number of delegations expressed concern that a discussion of legal interpretations would not be conducive to progress and that the focus should 83

84

85 86

87

88 89

Recommendation by ICCAT concerning the Changes of the Closed Season for the Purse Seine Fishery for Bluefin Tuna in the Mediterranean, entered into force on 21 June 1999. The following account is based on the Report of the 1st Meeting of the ICCAT Working Group on Allocation Criteria, see note 59, 84-113. The 2nd Mtg. of the Working Group took place in April 2000. The Report of the 2nd Mtg. was not available at the time of writing of this article. Molenaar, see note 61,518. See e.g. Report of the 1st Meeting of the ICCAT Working Group on Allocation Criteria, see note 59, 85, para. 4.9,87, para. 6.12. See e.g. ibid, at 90, paras 6.47 and 6.50-6.51. The Chairman of the Standing Committee on Research and Statistics noted that the stock biomass estimates are inferred from catch data, and that it is nearly impossible to predict precisely the proportion of a stock that will be in a particular area, especially given the yearly changes in migratory patterns, ibid., 92, para. 6.76. Ibid., 88, para. 6.17; see also ibid., 86, para. 6.7. Three proposals on lists of allocation criteria in large part are based on these two articles, see ibid., 108-110.

588


rather be on the list of criteria.90 One issue on which there seemed to be a large degree of agreement was that allocation criteria had to be of a general nature and that they should be applied on a case by case basis.91 Since the adoption of the Fish Stocks Agreement, a number of agreements for the management for highly migratory fish stocks and straddling fish stocks have been negotiated. These agreements, to a greater or lesser extent, reflect the impact of the Fish Stocks Agreement, including its article 7. A first example in this respect is the Framework Agreement for the Conservation of Living Marine Resources on the High Seas of the Southeast Pacific (hereinafter Galapagos Agreement).92 The Agreement has as its objective the conservation of living marine resources, with special reference to straddling fish stocks and highly migratory fish stocks.93 This Agreement, which was negotiated by the coastal states of the Southeast Pacific, in some respects differs considerably from the Fish Stocks Agreement.94 The Galapagos Agreement applies exclusively to high seas areas of the Southeast Pacific.95 On the 90

91 92 93 94

95

See e.g. the statement by Canada, ibid., 89, para. 6.29. An example of a difference of opinion over a provision of the Fish Stocks Agreement is the partial inclusion of its article 7 para. 2 lit.(d) in a proposal on elements for allocation by Brazil, ibid., 110, para. 2. The omission of reference to the phrase "biological characteristics" was criticized by Japan, ibid., 112; see also the statement by the United States, ibid., 113. See e.g. ibid., 108 and 110. Adopted on 14 August 2000 (on file with the author). Article 2. Chile and the European Community had submitted a dispute over swordfish stocks in the Southeastern Pacific Ocean to a Chamber of the International Tribunal for the Law of the Sea (ITLOS). One of the questions submitted to the Chamber was whether the Galapagos Agreement was negotiated in keeping with the provisions of the LOS Convention, including its arts 64 and 116 to 119. The Chamber would have been able to deal with this issue to the extent that it was subject to compulsory dispute settlement procedures under Part XV of the Convention, see Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community); Order 2000/3 of 20 December 2000 (http://www.un.org/Depts/los/ITLOS/ SWORDFISH_STOCKS.htm) (24 January 2001), para. 3. On 25 January 2001, Chile and the European Community reached a negotiated settlement, resulting in the suspension of the proceedings before ITLOS. Article 3 of the Agreement defines the area as encompassed by the outer limits of coastal state zones and a line traced along the meridian 120° W and the parallels 5° N and 50° S.

Oade Elferink, The Determination of Compatible Measures

589

other hand, article 7 of the Fish Stocks Agreement also applies to the conservation and management of highly migratory fish stocks and straddling fish stocks within areas under national jurisdiction, subject to the different legal regimes that apply in these areas and on the high seas as provided for in the LOS Convention. The Galapagos Agreement contains a provision on compatibility, which provides that: The measures adopted shall not be less strict than those established for the same species in the zones under national jurisdiction adjacent to the Agreement's area of application, shall not undermine the effectiveness of the same, and shall be fully compatible with them in all cases.96 This provision differs significantly from article 7 para. 2 of the Fish Stocks Agreement. Compatibility is not required between the two sets of measures, but measures adopted for the high seas have to be compatible with those adopted for areas under national jurisdiction. In addition, the reference to compatibility is qualified by the word "fully". The requirement that measures applicable to the high seas be no less strict than those established for zones under national jurisdiction had been espoused by coastal states in the negotiations on article 7 but had been opposed by distant water fishing states.97 Finally, the compatibility provision of the Galapagos Agreement does not provide criteria to be taken into account in determining compatible measures.98 The Fish Stocks Agreement did play an important role in the negotiations of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (hereinafter Honolulu Convention).99 This is reflected in the text of the Convention, which provides that it shall be interpreted and applied in the context of and in a manner consistent with the LOS Convention and the Fish Stocks Agreement.100 The Convention applies to all stocks of highly migratory fish stocks throughout their range within the Convention Area, or to specific areas within the Convention Area, as de-

96 97 98

99 100

Galapagos Agreement, article 5 para. 1 lit.(e). See Vigneron, see note 27,598. In view of the extent to which measures adopted for the high seas have to be aligned with measures adopted for areas under national jurisdiction, such a list would to a large extent appear to be superfluous. Adopted on 5 September 2000 (on file with the author). Articled

590


termined by the Commission to be established under the Convention.101 Articles 8 para. 1 and 8 para. 2 of the Honolulu Convention on compatibility of conservation and management measures basically reproduce article 7 para. 2 of the Fish Stocks Agreement.102 Differences mainly result from the need to adapt article 7 para. 2 of the Fish Stocks Agreement to the context of the Honolulu Convention. Two further paragraphs of article 8 of the Convention differ from the Fish Stocks Agreement. Article 8 para. 3 of the Convention requires that coastal states shall ensure that the measures adopted and applied by it within 101

Article 3 para. 3. The Convention Area is defined in article 3 para. 1 of the Convention and includes areas under national jurisdiction. 102 These articles read: 1. Conservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of highly migratory fish stocks in their entirety. To this end, the members of the Commission have a duty to cooperate for the purpose of achieving compatible measures in respect of such stocks. 2. In establishing compatible conservation and management measures for highly migratory fish stocks in the Convention Area, the Commission shall: (a) take into account the biological unity and other biological characteristics of the stocks and the relationships between the distribution of the stocks, the fisheries and the geographical particularities of the region concerned, including the extent to which the stocks occur and are fished in areas under national jurisdiction; (b) take into account: (i) the conservation and management measures adopted and applied in accordance with article 61 of the 1982 Convention in respect of the same stocks by coastal States within areas under national jurisdiction and ensure that measures established in respect of such stocks for the Convention Area as a whole do not undermine the effectiveness of such measures; (ii) previously agreed measures established and applied in respect of the same stocks for the high seas which form part of the Convention Area by relevant coastal States and States fishing on the high seas in accordance with the 1982 Convention and the Agreement; (c) take into account previously agreed measures established and applied in accordance with the 1982 Convention and the Agreement in respect of the same stocks by a subregional or regional fisheries management organization or arrangement; (d) take into account the respective dependence of the coastal States and the States fishing on the high seas on the stocks concerned; and (e) ensure that such measures do not result in harmful impact on the living marine resources as a whole.


591

areas under its national jurisdiction do not undermine the effectiveness of measures adopted by the Commission under the Convention in respect of the same stocks.103 Article 8 para. 4 borrows certain language from article 16 of the Fish Stocks Agreement on areas of high seas surrounded entirely by an area under the national jurisdiction of one state. However, article 8 para. 4 is applicable to areas of high seas completely surrounded by the EEZ of members of the Commission. There are a number of extensive areas of high seas completely surrounded by areas of EEZ of more than one state in the Convention Area. The regime for fisheries in the Barents Sea and the Sea of Okhotsk has been classified as a "bilateral, or coastal state approach".104 There are small areas of high seas in the Barents Sea and the Sea of Okhotsk, which are completely surrounded by the EEZs of the coastal states (in the latter case the Russian Federation and in the former case this state and Norway). In both cases, states fishing for straddling fish stocks on the high seas have refrained from this activity in exchange for access to fisheries in the EEZ of the coastal states. This arrangement obviates the need for compatibility of measures in the two areas, as fisheries are exclusively carried out in the EEZ in accordance with the conservation and management regime adopted by the coastal states.

IV. Provisional Arrangements and Measures During the negotiations on the article on compatible conservation and management measures it was recognized that in the absence of an agreement over such measures there existed a need for provisional arrangements. Article 7 paras 5 and 6 of the Fish Stocks Agreement addresses this issue. Para. 5 provides that pending agreement on compatible conservation and management measures, the states concerned shall make every effort to enter into provisional arrangements of a practical nature. In case they are unable to agree on such arrangements, any of the states concerned may submit the dispute to a court or tribunal in 103

104

A similar provision is contained in article 19 of the draft of November 2000 of the Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (on file with the author). See Oude Elferink, see note 68. For a detailed discussion of these cases see further ibid.; R.R. Churchill, "The Barents Sea Loophole Agreement: A "Coastal State" Solution to a Straddling Stock Problem", International Journal of Marine and Coastal Law, 14 (1999), 467 et seq.

592


accordance with the procedures for the settlement of disputes provided for in Part VIII of the Agreement, to obtain provisional measures. Article 7 para. 6 prescribes the conditions that provisional arrangements or measures have to meet, providing that they: shall take into account the provisions of this Part, shall have due regard to the rights and obligations of all States concerned, shall not jeopardize or hamper the reaching of final agreement on compatible conservation and management measures and shall be without prejudice to the final outcome of any dispute settlement procedure. As this definition indicates, provisional arrangements or measures are intended to be of a transitional nature, only to be applied until compatible conservation and management measures are agreed upon. The present analysis of provisional arrangements and measures seeks to establish to what extent their contents differ from those of compatible conservation and management measures and how they are related to such measures and to conservation and management measures already in place to which reference is made in lit.(a) to (c) of article 7 para. 2. Another issue, which is addressed in Section V below, is in which instances a court or tribunal can indicate provisional measures. The indication of provisional measures is a mechanism widely applied in international dispute settlement. For instance, the ICJ, under Article 41 of its Statute, has the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. The Fish Stocks Agreement provides, apart from article 7 para. 5, for the establishment of provisional arrangements or measures under articles 16 para. 2 and 31. Under this latter article, the court or tribunal to which a dispute has been submitted may prescribe any provisional measures which it considers appropriate under the circumstances of the case to preserve the respective rights of the parties to the dispute or to prevent damage to the stocks which are the subject of the dispute.105 Provisional measures under article 7 para. 5 differ from provisional measures under article 31 para. 2 of the Fish Stocks Agreement, Article 41 of the Statute of the ICJ and article 290 of the LOS Convention in that they can be requested outside the framework of a dispute which has been submitted for compulsory settlement. This may make a request for provisional measures under article 7 para. 5 in certain in-

105

Fish Stocks Agreement, article 31 para. 2.


593

stances an interesting alternative to submitting a dispute over compatible measures as such. A first question concerning provisional arrangements and measures is what is meant by the qualification "of a practical nature", which is only used in connection with provisional arrangements entered into by the states concerned and not for provisional measures indicated by a court or tribunal. This difference can be explained by the fact that provisional measures are to be prescribed by a court or tribunal, which is to decide on the basis of the applicable law. A similar consideration is not applicable to states involved in negotiations, which can adopt, within certain margins, any arrangement they agree upon.106 In agreeing upon provisional arrangements, states have to respect their obligations concerning the conservation and management of stocks under the Fish Stocks Agreement and other international instruments and the rights of third states. Apart from this consideration, the nature of provisional arrangements and provisional measures would not seem to be different.107 Article 7 para. 6 is applicable to provisional arrangements and measures without distinction. Provisional arrangements or measures are to be entered into or to be prescribed if the states involved cannot agree upon compatible conservation and management measures. Disagreement can concern either the condition of the stock concerned or how the stock is to be divided between the states involved. In the former case, it would seem to be justified to adopt or prescribe cautious management and conservation measures, which are more stringent than existing measures. In the latter 106

107

Cf. Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland); Continuance of Interim Measures of Protection; Order of 12 July 1973, ICJ Reports 1973, 302 et seq., (303, paras 6-8); Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland); Continuance of Interim Measures of Protection; Order of 12 July 1973, ibid., 313 et seq., (314, paras 6-8). In these cases, the ICJ seems to have suggested that the parties in direct negotiations could arrive at a more detailed interim arrangement than the measures indicated by the Court. At the same time, the existence of such negotiations, and the fact that Iceland did not appear before the Court, may explain the restraint exercised by the Court. Cf. Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland); Continuance of Interim Measures of Protection; Order of 12 July 1973, ICJ Reports 1973, 302 et seq., (303, paras 6-7); Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland); Continuance of Interim Measures of Protection; Order of 12 July 1973, ibid., 313 et seq., (314, paras 6-7).

594


case, it would, in principle, seem to be justified to arrive at a compromise solution between the positions of the states concerned, taking into account to what extent these positions are in conformity with the relevant provisions of the Fish Stocks Agreement. For instance, a claim for a share of the TAG which is based on non-sustainable catches in previous years should not be given the same weight as a claim based on sustainable catches in previous years. Any provisional measure or arrangement has to be in conformity with the obligations under Part II of the Fish Stocks Agreement concerning the conservation and management of stocks. The importance of this latter consideration in case a court or tribunal prescribes provisional measures is confirmed by the fact that article 31 para. 2 makes separate mention of the prevention of damage to stocks as a title for prescribing such measures.108 This standard set by article 31 para. 2 seem to be lower than that of "serious harm" set out in the LOS Convention.109 In its order for provisional measures, indicated under article 290 para. 5 of the LOS Convention, in the Southern Bluefin Tuna Cases, ITLOS considered that "the parties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna" and to avert further deterioration of the stock.110 Taking into account the considerations indicated by the Tribunal, there certainly

108

109

110

Similarly, article 30 para. 5 of the Fish Stocks Agreement stipulates a court or tribunal to which a dispute has been submitted to apply the relevant rules of international law "with a view to ensuring the conservation of the straddling fish stocks and highly migratory fish stocks concerned". In his Separate Opinion in the Southern Bluefin Tuna Cases (Southern Bluefin Tuna, Cases (New Zealand v. Japan) - Case No. 3, (Australia v. Japan) - Case No. 4; Request for Provisional Measures, Order of 27 August 1999 (http://www.un.org/Depts/los/ITLOS/Order-tuna34.htm) (9 February 2001), Judge Treves indicated that this was the case, para. 11. Southern Bluefin Tuna Cases, para. 77 and 80. The Tribunal pointed out that the conservation of living resources of the sea is an element of the protection and preservation of the marine environment, ibid, para. 70, bringing it within the scope of the provision on the marine environment of article 290 para. 1 of the Convention, see also the Separate Opinion of Judge Treves, para. 6; M. Hayashi, "The Southern Bluefin Tuna Cases: Prescription of Provisional Measures by the International Tribunal for the Law of the Sea", Tul Envtl L.J. 13 (2000), 361 et seq., (381).


595

seems room for different outcomes under articles 290 para. 5 and article 31 para. 2 Fish Stocks Agreement.111 The reference to "damage to the stock" (or "serious harm to the marine environment") does not provide an independent title for indicating provisional measures.112 A court or tribunal may prescribe, modify or revoke provisional measures only at the request of a party to the dispute and after the parties have been given an opportunity to be heard.113 Although this provision does not require a court or tribunal to prescribe the measures as requested,114 it cannot go beyond what is requested by a party solely to prevent damage to the stock.115 111

112

113 114

115

The Tribunal observed that there was no disagreement between the parties that the stock was severely depleted and at its historically lowest levels and that this was a cause for serious concern (Southern Bluefin Tuna, Cases, para. 71). The parties differed about the impact of the experimental fishing program conducted by Japan. Australia and New Zealand contended that it could endanger the existence of the stock, whereas Japan considered that the program was necessary to reach a more reliable assessment of the stock to recover, ibid., paras 73 and 74. The Tribunal noted there was scientific uncertainty regarding measures to be taken to conserve the stock and that the parties did not agree as to whether measures taken so far had improved the stock. Finally, the Tribunal observed that catches of the stock by other states had increased considerably since 1996, ibid., para. 76. See also Southern Bluefin Tuna Cases Separate Opinions of Judge Laing, para. 18 and Judge Treves, para. 6. In respect of the similar provision in article 30 para. 5 of the Fish Stocks Agreement it has been observed that: allowing conservation/environmental issues to trump well established legal rules [as this] may encourage unilateral state action under the guise of conservation and thus encourage chaotic high seas practices [...]. The real hope of article 30(5) must be, not that resource morality will trump the law, but that legal rules will be interpreted and developed to take into account more fully the needs of marine living resource conservation. T. McDorman, "The Dispute Settlement Regime of the Straddling and Highly Migratory Fish Stocks Convention", CYIL 25 (1997), 57 et seq., (72-73). LOS Convention, article 290 para. 3. See e.g., Sh. Rosenne, The International Court of Justice; An Essay in Political and Legal Theory, 1961, 329. In the Southern Bluefin Tuna Cases, ITLOS prescribed Australia, Japan and New Zealand inter alia to ensure, unless they agreed otherwise, that their annual catches did not exceed the annual allocations at the levels last agreed upon by them. In calculating these figures for 1999 and 2000 account was to be taken of the catch during 1999 as part of an experimental fishing program. The three states were also charged to refrain from conducting an experimental fishing program involving southern bluefin tuna,

596


The fact that provisional arrangements and measures cover the same subject matter as compatible conservation and management measures makes the relationship between the two of particular interest. Article 7 para. 6 lists three considerations which are relevant in this respect, indicating that provisional arrangements or measures shall have due regard to the rights and obligations of all states concerned, shall not jeopardize or hamper the reaching of final agreement on compatible conservation and management measures and shall be without prejudice to the outcome of any dispute settlement procedure.116 These provisions imply

116

expect with the agreement of the other parties or unless catches under such a program were counted against the annual national allocation of the state involved (Southern Blue/in Tuna Cases, para. 90 (c) and (d)). These provisional measures differed in part from those requested by the parties, but did not materially go beyond what was requested (for the measures requested by the parties see ibid, paras 28-35; see also the Separate Opinion of Judge ad hoc Shearer in the Southern Bluefin Tuna Cases). The formulation in respect of catches indicate the parties remain at liberty to change the catch level agreed upon by them and prescribed by the Tribunal. This autonomy of the parties is also confirmed by the joint declaration of VicePresident Wolfram and Judges Caminos, Marotta Rangel, Yankov, Anderson and Eiriksson, who observe that: In the circumstances, a reduction in the catches of all those concerned in the fishery in the immediate short term would assist the stock to recover over the medium to long term. Article 64 of the [LOS] Convention lays down, as stated in the Order, a duty to cooperate to that end. In the Fisheries Jurisdiction Cases the ICJ indicated a number of provisional measures, including an annual catch for the United Kingdom and the Federal Republic in the "Sea Area of Iceland" (Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland); Request for the Indication of Interim Measures of Protection; Order of 17 August 1972, ICJ Reports 1972,12 et seq., (17, para. 26); Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland); Request for the Indication of Interim Measures of Protection; Order of 17 August 1972, ibid., 30 et seq., (35, para. 27). In establishing these measures the Court adopted a catch figure below the figure suggested by the United Kingdom and the Federal Republic. This figure was intended to reflect the present situation concerning fisheries of different species in the Iceland area, ibid, 17, paras 25 and 26; 34-35, paras 25-27. The United Kingdom has requested 185.000 tons and Germany 120.000 tons. The figures indicated by the Court were respectively 170.000 and 119.000 tons, see ibid In this case, Iceland, which did not participate in the proceedings, had different views on these catch levels. There seems to be some overlap between these elements of article 7 para. 6. This may be explained by the wish to include all the elements of articles 74


597

that provisional arrangements or measures do not have any legal effect on the outcome of any dispute concerning the conservation and management of straddling fish stocks or highly migratory fish stocks. Nonetheless, the practical impact of provisional arrangements or measures can be considerable,117 especially if the time the settlement of an underlying dispute may require is taken into consideration.118 The possibility for a party to ask a court or tribunal to modify or revoke existing measures makes this less problematic,119 although it may be difficult to achieve this in practice. There is a margin of appreciation in establishing such measures and to modify or revoke them would seem to require a significant change in the circumstances existing at the time of their adoption. For instance, a deterioration in the condition of the stock could require a downward adjustment of effort or catch levels previously agreed upon. Another possibility for their modification or revocation could be the fact that the measures are not effective.

117

118

119

para. 3 and 83 para. 3 of the LOS Convention, on which article 7 para. 6 was based (for this latter point see M. Hayashi, "The 1995 Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: Significance for the Law of the Sea Convention", Ocean and Coastal Development 26 (1996), 51 et seq., (64)). In this latter case a similar overlap is not present, as these articles are structured differently. See also R. Lagoni, "Interim Measures Pending Maritime Delimitation Agreements", AJIL 78 (1984), 345 et seq., (358); Orrego Vicuna, see note 5, 192. For instance, over two years passed between the institution of proceedings and the judgment on the merits in the Fisheries Jurisdiction Cases in 1974. In the Fisheries Jurisdiction Case (Spain v. Canada), the ICJ gave its judgment on whether it had jurisdiction to adjudicate upon the dispute brought before it by Spain on 28 March 1995 on 4 December 1998. The assumption is that provisional arrangements can be terminated unilaterally if there is no clause about their termination and they have been concluded for an indefinite period, see also Lagoni, see note 117, 358-359. Nonetheless, if the alternative is the absence of any arrangement, states may be reluctant to take such a step. Measures indicated by a court or tribunal can only be modified or revoked in accordance with the applicable procedural rules.

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V. Procedures for the Settlement of Disputes Arising under article 7 Article 7 of the Fish Stocks Agreement explicitly provides for the possibility of compulsory settlement of disputes in two instances. Under article 7 para. 4 any of the states involved may, if no agreement can be reached on compatible conservation and management measures, invoke the procedures for the settlement of disputes provided for in Part VIII of the Agreement. Under article 7 para. 5 any of the states concerned may, in the event that they are unable to agree on provisional arrangements pending agreement on compatible conservation and management measures, submit the dispute to a court or tribunal in accordance with the procedure for the settlement of disputes provided for in Part VIII of the Agreement. Moreover, Part VIII provides that the provisions relating to the settlement of disputes set out in Part XV of the LOS Convention apply mutatis mutandis to any dispute concerning the interpretation or application of the Fish Stocks Agreement.120 This makes it, for instance, possible for states to submit disputes concerning articles 7 para. 1 lit.(a) and (b) to the compulsory dispute settlement mechanisms of the Agreement. Part VIII of the Fish Stocks Agreement sets one very significant limitation on the applicability of procedures for the settlement of disputes. This concerns the provision of article 32 to the effect that article 297 para. 3 of the LOS Convention also applies to the Agreement. Article 297 para. 3 lit.(a) of the LOS Convention provides that the coastal state shall not be obliged to accept the submission to dispute settlement of any dispute relating to its sovereign rights with respect to the living resources in the EEZ or their exercise, including its discretionary powers for determining the allowable catch.121 120 121

Fish Stocks Agreement, article 30. In a number of cases in which the coastal state has not accepted submission to compulsory dispute settlement there is a possibility to submit such disputes to conciliation under Annex V of the LOS Convention. One such case arises when it is alleged that a coastal state has manifestly failed to comply with its obligations to ensure through proper conservation and management measures that the maintenance of the living resources in the EEZ is not seriously endangered (LOS Convention, article 297 para. 3 lit.(b)(i)). The competence of a conciliation commission under Annex V is limited by the requirement that it shall in no case substitute its discretion for that of the coastal state, ibid., article 297 para. 3 lit.(c). Moreover, con-

Ottde Elferink, The Determination of Compatible Measures

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This limitation on the possibilities for the compulsory settlement of disputes is especially relevant for article 7 of the Fish Stocks Agreement, which addresses the issue of compatibility of conservation and management measures for areas under national jurisdiction and the high seas.122 Most disputes under article 7 supposedly will concern the question how compatibility of such measures has to be achieved. In this context, an evaluation of conservation and management measures established for the high seas cannot be carried out in isolation, but has to be performed in conjunction with an evaluation of the measures adopted for areas under national jurisdiction. This linkage between the two sets of measures indicates that the application of Part VIII to resolve disputes over the contents of conservation and management measures adopted for the high seas is not possible if the coastal state does not accept the submission to dispute settlement of the measures it has adopted for its area under national jurisdiction.123 If the coastal state rejects the inclusion in the dispute of questions involving its sovereign

122

123

ciliation excludes the indication of provisional measures upon request of one the parties, see also LOS Convention, article 290; Fish Stocks Agreement, article 31 para. 2. Some authors consider that dispute settlement should apply to all aspects of disputes over straddling fish stocks and highly migratory fish stocks, see A. Boyle, "Problems of Compulsory Jurisdiction and the Settlement of Disputes relating to Straddling Fish Stocks" International Journal of Marine and Coastal Law 14 (1999), 1 et seq., (25); and the literature cited in Orrego Vicuna, see note 5, 286, n. 91. Orrego Vicuna concludes his discussion of this issue by noting that: If at any point in time the [Fish Stocks] Agreement is construed in a way amounting to the derogation of a coastal state's sovereign rights in the exclusive economic zone, either directly by means of the expansive interpretation of the principle of compatibility or indirectly by means of restricting the limitation that safeguards these rights in the context of dispute settlement, the end result will be the breakdown, not of the exclusive economic zone that has ample backing in the [LOS] Convention, state practice, and customary international law, but of the [Fish Stocks] Agreement itself, since it would have failed to maintain the essential balance that made possible its very existence, ibid., 286-287. Cf. A Boyle, "Settlement of Disputes relating to the Law of the Sea", Thesaurus Acroasium Vol. 26, 295 et seq., (328); D. Vignes, "Le Gommage de Differences entre Haute Mer et Zone Economique Exclusive Opere par 1'Accord du 4 Decembre 1995 sur les Stocks Chevauchants et de Grand Migrateurs: Vers 1'Assimilation de la Haute Mer a la Zone de 200 Milles et la Disparition de la Liberte de la Peche en Haute Mer", Revue de I'Indemer 4 (1996), 93 et seq., (108).

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rights, it is not possible to rule on questions concerning measures established for the high seas, to the extent that they also require an evaluation of measures adopted by the coastal state for areas under its national jurisdiction.124 A court or tribunal also cannot take measures adopted by the coastal state into account as a factual element to determine compatible measures for the high seas. Such an approach would contradict the terms of article 7 para. 2 which require the compatibility of both sets of measures and not that high seas measures are compatible with coastal state measures.125 The exclusion of disputes relating to the coastal state's sovereign rights from compulsory procedures for the settlement of disputes under article 297 para. 3 lit.(a) of the LOS Convention is optional. As this article indicates, the coastal state "shall not be obliged" to accept submission of such disputes. This leaves the coastal state the possibility to decide whether or not in a particular case to accept submission of such a dispute, giving it an important leverage in negotiations over compatible conservation and management measures.126 The coastal state's position in this respect is clear if it explicitly accepts or rejects the submission of a dispute involving its sovereign rights. However, in some cases the position of the coastal state may not be altogether clear. If the coastal state submits a question concerning compatible measures for the high seas to compulsory dispute settlement, the issue of measures adopted for areas under national jurisdiction may also be raised. The doctrine of forum 124

125

126

In certain circumstances it may be possible to look at measures established for the high seas without looking at the same time at measures adopted for areas under national jurisdiction. For instance, it can be alleged that specific measures established for the high sea always result in the non-sustainable conservation and management of stocks, independendy of the question what measures are applicable to areas under national jurisdiction. However, in such cases the compatibility of measures is not at issue. In this connection it is relevant to note that in the Diversion of Water from the Meuse Case (Netherlands v, Belgium) the PCIJ held that: It would only be possible to agree with the contention of the Netherlands Agent that the Treaty had created a position of inequality between the contracting Parties if that were expressly indicated by the terms of the Treaty; but the text of article I is not sufficient to justify such an interpretation. The text of this article is general; it furnishes no evidence of any differentiation between the two Parties (PCIJ, Judgments, Orders and Advisory Opinions, Series A/B, No. 70,20). See also McDorman, see note 112,66-67.


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prorogatum as developed by the PCIJ and the ICJ indicates that such measures can then become the subject of adjudication.127 Under this doctrine, jurisdiction may be conferred by the tacit consent of the parties, deduced from their conduct in pleading to the merits of a claim (including a counter-claim) without raising the question of jurisdiction.128 In case of doubt about the existence of tacit consent, the assumption would seem to be that the coastal state has accepted the submission of such measures to dispute settlement. The formulation of article 297 para. 3 lit.(a) of the LOS Convention indicates that a coastal state has to indicate explicitly that it does not accept submission of any dispute relating to its sovereign rights. Silence on this point can in principle be construed as acceptance of submission.129 Tacit consent will not be presumed in certain instances. A court will not exercise jurisdiction if the whole of a state's conduct in the case is consistent with an intent that the court should not exercise jurisdiction.130 Although article 297 para. 3 of the LOS Convention potentially limits the possibility for compulsory dispute settlement with respect to compatible conservation and management measures, any question concerning the interpretation of aspects of article 7 para. 2 not involving the coastal state's sovereign rights can be the subject of compulsory dispute settlement. This can include such important questions as how states are to balance the different considerations mentioned in this article's subparagraphs. There would seem to be a "grey area" concerning the reach of article 297 para. 3 of the LOS Convention in this respect. In considering how the factors mentioned in the subparagraphs of article 7 para. 2 have to be balanced, a court or tribunal may be called upon to give an interpretation of article 7 para. 2 lit.(a). There may be different views on the question at what point an interpretation of article 7 para. 2 lit.(a) involves issues falling under article 297 para. 3 lit.(a) of the LOS Convention.

127

128 129

130

For an overview of the development of this doctrine see Sh. Rosenne, The Law and Practice of the International Court, 1920-1996; 3rd edition, 1997, 696 et seq. Ibid., 714. For the limitations on prorogated jurisdiction see ibid, 716. However, as is noted by Rosenne there is a need for restraint in applying the doctrine of forum prorogatum because of the grave political consequences this may entail, ibid, 711. Ibid., 718.

602


The cross-reference to article 297 para. 3 of the LOS Convention in article 32 of the Agreement also raises the question to what extent it limits the possibilities for a court or tribunal to prescribe provisional measures pending agreement on compatible conservation and management measures. Article 32 is applicable to the prescription of provisional measures, indicating that, in this case, the same considerations apply as in case of disputes involving the establishment of compatible conservation and management measures. The ICJ has held that it ought not to indicate provisional measures for the protection of any disputed rights other than those which might ultimately form the basis of a judgment in the exercise of the jurisdiction it has established to have prima, fade.131 There is no reason to suppose that the situation is different in this respect in the case of provisional measures pending agreement on compatible measures. If the court or tribunal has no jurisdiction to rule on measures adopted and applied by the coastal state for its area under national jurisdiction, it also cannot prescribe provisional measures for this area.

VI. Conclusions At the level of the basic legal framework, article 7 of the Fish Stocks Agreement can be seen as an attempt to leave the balance between the rights of coastal states and distant water fishing states as contained in the LOS Convention intact. The present analysis suggests that article 7 has been successful in this respect. What is more, it provides a tool which can be used by states and courts alike in addressing issues of compatibility, by listing a number of considerations to be taken into account. This approach, which gives pride of place to the circumstances of each specific fishery, should make it possible to go about the business of establishing conservation and management measures, without revisiting the basic legal framework of international fisheries management.

131

Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)); Further Requests for the Indication of Provisional Measures; Order of 13 September 1993, ICJ Reports 1993, 325 et seq., (342, para. 35); see also Fisheries Jurisdiction Case (United Kingdom v. Iceland), Interim Protection Order of 17 August 1972, ICJ Reports 1972, 12 et seq., (16, para. 21).


603

A further achievement of article 7, and the Fish Stocks Agreement in general, is that the significance of protecting the marine environment and living marine resources as a whole in conserving and managing such stocks is clearly recognized. This consideration, especially as it includes the obligation to apply the precautionary approach to the conservation, management and exploitation of straddling fish stocks and highly migratory fish stocks, indicates that states have to be cautious in adopting compatible conservation and management measures. This can inter alia have an impact in situations where there is a difference over the division of the TAG. Sometimes, such differences have been resolved by establishing a TAG above the level recommended by scientists.132 The need for caution under the Fish Stocks Agreement may make it more difficult to justify such compromises in certain cases. The analysis of article 7 para. 2 points out that there does not exist ipso facto precedence for either measures applicable to areas under national jurisdiction or the high seas in determining compatible measures. The difference in formulation in article 7 para. 2 lit.(a) as compared to the other two subparagraphs should not be accorded too much weight. This is confirmed by the inclusion of similar obligations for coastal states in respect of high seas measures in two recent agreements on regional management mechanisms. The analysis also indicates that there has to be compatibility between the different sets of measures and not that one set of measures has to be made compatible with another set of measures. The balancing of these measures always depends on the circumstances of the specific case, including the contents of the measures concerned. Article 7 para. 2 should result in according precedence to those measures that ensure the sustainable management and conservation over measures that do not. This does not resolve cases in which all existing measures in principle are sustainable, but are not compatible because states have, for instance, a preference for the exploitation of different stocks in a multi-species fishery. The factors listed in article 7 para. 2 should provide guidance for these cases. Article 7 para. 2 defines the factors to be taken into account in determining compatible conservation and management measures in some detail. Existing conservation and management measures listed in lit.(a) to (c) of article 7 para. 2, in principle, provide the starting point for the 132

See e.g. S. Sen, "The Evolution of High-Seas Fisheries Management in the North-East Atlantic", Ocean & Coastal Management 35 (1997), 85 et seq., (90-91).

604


determination of compatible measures. If existing measures ensure the objective of article 7 para. 2 and reflect appropriately the other factors to be taken into account under article 7 para. 2, there is no need for their adjustment. This objective can be defined in considerable detail, with regard to other provisions of the Fish Stocks Agreement and international law in general. In establishing how all factors listed in article 7 para. 2 can be balanced, the present analysis indicates the potential role of equity and the need to arrive at an equitable solution and the nature of the factors involved. The analysis shows that these mechanisms are complementary, as both indicate the need to take all the factors involved into account simultaneously, instead of focussing on one factor to the exclusion of others. The position of developing states, to some extent, forms an exception to the rule that all factors have to be considered equally, to the extent the Agreement recognizes the special position of these states. Both equity and the factors listed in the subparagraphs of article 7 para. 2 reconfirm the importance of the circumstances of the particular case to establish the contents of compatible conservation and management measures. The importance of factual circumstances particular to different regions also follows from the nature of the Fish Stocks Agreement, which is of a global nature, but has to be implemented at the regional level.133 Regional differences may lead to diverging outcomes in this respect. For instance, negotiations can be influenced by the structure of a regional organization or arrangement, the number of states participating in them and the characteristics of the stocks concerned (including the distinction between highly migratory stocks and straddling stocks), as is also illustrated by the experience of existing regional organizations and arrangements. The use of equity in maritime boundary delimitation by the judiciary has been criticized on the ground that it has resulted in treating each delimitation as a unicum, detracting from the predictability of the law.134 It seems that this criticism, to the extent it is justified, may be less relevant for article 7 para. 2 of the Fish Stocks Agreement. In the case of maritime boundary delimitation there has never been drawn up a closed list of the considerations to be taken into account in applying 133

134

See also "Statement made by the Chairman of the Conference at the Closing of the Fourth Session. Held on 26 August 1994", Doc. A/CONF.164/24 of 8 September 1994, reproduced in: Levy, see note 11, 653, para. 5. See e.g. Weil, see note 49,13,160 and 213.


605

equity. On the other hand, article 7 para. 2 gives a closed list of factors to be taken into account in determining compatible conservation and management measures. Moreover, a court or tribunal that has to rule on article 7 para. 2 can take advantage of the experience that has been gained in the context of maritime boundary delimitation in striking a balance between the predictability of the law and the particulars of the individual case.135 If equity were to be applied in the interpretation of article 7 para. 2, it can be expected that the general principles outlined above will be given further content. This can also be of assistance to states which have to balance the factors mentioned in article 7 para. 2. The practice of fisheries management organizations and arrangements shows that it can provide a significant contribution to the interpretation of the compatibility provision of the Fish Stocks Agreement. At the same time, the Galapagos Agreement in particular, points out that the compromise on this point contained in the Fish Stocks Agreement is not generally accepted. Practice in other regional organizations and arrangements also indicates the continued differences in views over the division of rights between coastal states and high seas fishing states. Nonetheless, this practice also indicates that these differences need not obstruct the agreement on conservation and management measures, taking into account similar considerations as contained in article 7 of the Fish Stocks Agreement. The discussion of the application of the factors contained in article 7 to the individual case can contribute significantly to an understanding of that article's practical implications. At the same time, the specificity of each case makes it difficult to generalize such findings. The analysis of the practice of organizations and arrangements indicates the existence of significant differences in their management regime. It has been observed that this freedom of action may result in a legal regime of atomized legal decisions at the level of organizations and arrangements.136 The establishment of provisional arrangements and measures to a large extent requires the taking into account of similar considerations as compatible conservation and management measures. This suggests that if states cannot agree on the latter, they will have also serious difficulty to agree on the former. The significance provisional arrangements or 135 136

Cf. O. Schachter, International Law in Theory and Practice, 1991, 59-60. Orebach, see note 23,128-129.

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measures can take on in practice, notwithstanding the saving clause in article 7 para. 6, may be another factor impeding their adoption. It may be difficult to amend or revoke provisional arrangements once they have been established, making states hesitant to enter into them. The possibility for a court to indicate provisional measures is limited if the coastal state does not accept the submission of the part of the dispute related to the measures applicable to its area under national jurisdiction. This gives the coastal state some leverage in negotiations over compatible conservation and management measures. The fact that provisional measures under article 7 para. 5 can be requested outside the framework of a dispute which has been submitted for compulsory settlement, may make a request for such measures in certain instances an attractive alternative to submitting a dispute on compatible measures. As is also pointed out by the Order of the ITLOS in the recent Southern Bluefin Tuna Cases, the views of the parties remain the main consideration in establishing what provisional measures to prescribe. This is not changed by the reference to considerations other than the rights of the parties in Part VIII of the Agreement. The possibility for the compulsory settlement of disputes related to the establishment of compatible conservation and management measures is limited by the cross-reference to article 297 para. 3 of the LOS Convention in article 32 of the Fish Stocks Agreement. If the coastal state uses its power under this article to exclude measures established by it under article 61 of the LOS Convention from compulsory dispute settlement, the close link between such measures and compatible measures for the high seas also excludes any ruling on the latter. Although this limitation on compulsory dispute settlement might be regretted, it is explained by the need to preserve the legal framework contained in the LOS Convention as a necessary prerequisite for reaching agreement on the Fish Stocks Agreement. Even if all disputes within the scope of article 297 para. 3 were to be excluded, there still remains significant scope to submit questions regarding the interpretation of article 7 to dispute settlement. This concerns, for instance, how specific terms employed in article 7 have to be interpreted or how the balancing of the factors mentioned in article 7 para. 2 has to be achieved. At times, this may give rise to a dispute over the applicability or not of article 297 para. 3 of the Convention. The impact of the judiciary on the further elaboration of article 7 para. 2 may depend on its willingness to uphold those measures which result in the sustainable use of the resources involved, instead of seeking


607

a compromise between the states involved in a dispute.137 If the former approach is adopted, coastal states having an effective management and conservation policy may more easily submit disputes involving their sovereign rights to compulsory dispute settlement.138 In any case, the discretionary power of the coastal state under article 32 of the Agreement gives it an important leverage in negotiations over the establishment of compatible measures, especially if measures for its area under national jurisdiction ensure sustainable conservation and management of the stocks involved and those for the high seas do not. To sum up, the analysis of article 7 para. 2 indicates that it offers, both to states and the judiciary, more detailed rules for determining compatible measures than previously existed, without upsetting the delicate balance between coastal state rights and rights of states fishing on the high seas. The analysis also shows that it is possible to clarify how the compatibility of conservation and management measures for areas under national jurisdiction and the high seas is to be achieved, balancing the factors listed in article 7 para. 2. If this process gathers momentum, it can significantly contribute to the attainment of long-term sustainable conservation and management of straddling fish stocks and highly migratory fish stocks in their entirety.

137

138

Cf. D.W. Bowett "The Conduct of International Litigation", in: J.P. Gardner/ C. Wikremasinghe (eds), The International Court of Justice: Process, Practice and Procedure, 1997,1 et seq., (11). Even if states will not easily submit their disputes to the procedures for compulsory dispute settlement, see also McDorman, see note 112, 59-60, the existence of these mechanisms may have an impact on the willingness of states to reach agreement on compatible measures, see Balton, see note 11, 137.


Law and Politics in the WTO — Strategies to Cope with a Deficient Relationship Armin von Bogdandy* I. II.

Introduction The Deficient Relationship between the Political and the Adjudicative Function 1. Principles of the Division of Functions in WTO Law 2. Treaty-Making as Deficient Legislation a. Treaty-Making and the Democratic Principle b. Treaty-Making and Legislative Efficiency c. Legislation and Judicial Law-Making 3. Functional Equivalents? a. Rule-Making by WTO Organs aa. The GATT 1947 as a Rule-Making Organization bb. Politics under the WTO Agreement cc. What Role for Councils and Committees? b. Outsourced Rule-Making aa. Incorporation of Standards of other Organizations bb. Scientific Evidence 4. Comparative Notes a. The Standard Situation in International Law b. Law and Politics under the EC-Treaty 5. Conclusions III. Strategies to Cope with the Missing Legislator 1. Three Approaches: Liberalism, International Governance and Coordinated Interdependence 2. The Objectives of WTO Law 3. The Scope and Meaning of Discrimination and Exceptions 4. A Procedural Conception of Substantive Law IV. Conclusions 609 J.A. Frowein and R. Wolfiwn (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 609-674. © 2001 Kluwer Law International. Printed in the Netherlands.

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I. Introduction In modern societies law and politics are different and separate, and yet closely interlinked.1 One of the great achievements of modern political and legal thought has been the conceptualization of their relationship and the development of stable forms of separation and interaction as essentials for the operation of contemporary societies. The dominant approach theorizes this relationship in the separation of powers doctrine: centralized parliamentary legislation, executive enforcement and judicial review. These three powers are often considered as the institutional basis of a fully fledged legal system.2 If international law has been considered as an inferior form of law, it is because it historically lacks such types of institutions and procedures.3 Since World War II, a number of international legal regimes have developed which institutionalize some kind of centralized legislation (rule-making)4 or execution or adjudication in an attempt to enhance

.

1

2

3

4

I am grateful for the helpful criticisms and comments from Michael Bothe and Petros Mavroidis on an earlier draft and for the help from my assistants Felix Arndt, Jiirgen Bast, Eric Pickett and Uwe Sauberlich in the preparation of this article. The usual disclaimers apply. This article has been developed in the context of a DFG Schwerpttnktprogramm which studies governance in the European Union and is headed by Beate Kohler-Koch. A comparison between the EU and the WTO is considered to be of help for a better understanding of both systems. That, at least, appears to be the common ground of most strands of legal and constitutional theory, cf. E.W. Bockenforde, "Entstehung und Wandel des Rechtsstaatsbegriffs", in: id., Reckt, Stoat, Freiheit, 1991,143 et seq.; M. Loughlin, Public Law and Political Theory, 1992,138 et seq. J. Locke, The Second Treatise of Government, 1690, Chap. XII f.; G. de Vergottini, Diritto costituzionale comparato, 5th edition, 1999, 346 et seq.; for an exhaustive analysis H. Seiler, Gewaltenteilung: Allgemeine Grundlagen und schweizerische Ausgestaltung, 1994. W. Graf Vitzthum, "Begriff, Geschichte und Quellen des Volkerrechts", in: id., Volkerrecbt, 1997,41. H. Schermers/ N. Blokker, International Institutional Law, 3rd edition, 1995, paras 389 et seq.; throughout this text, legislation means rule-making. This equation might appear questionable since contemporary political and legal thought often reserves the term legislation for parliamentary rulemaking. However, given the function of many WTO provisions to provide for general rules, this equation is defensible. On the transnational level, the terms legislation and legislator are generally applied to any rule-making

v. Bogdandy, Law and Politics in the WTO

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international law's capability to cope with an ever increasing need for international cooperation. However, the new institutions never simply repeat the organizational and procedural set-up found in most constitutional systems of government. Rather, new and often puzzling set-ups can be found which put politics and law in a different relationship, calling for exploration. A most striking example of this new relationship can be found in the WTO, which — irrespective of the question of direct effect — is a body of law with increasing influence on domestic economic law and its everyday practice.5 The WTO's particular importance stems from a widespread impression that it is a crucial element of an ongoing process which separates law from politically accountable institutions, with profound implications and perhaps even substantial harm for democratic self-determination.6 This is all the more so if one sees WTO law as a body of rules that provides private actors with the opportunity to build up private legal frameworks filling the space created by the WTO's deregulatory impact.7 These private legal frameworks satisfy

5

6

7

body, even if not a parliamentary institution, see ECJ, Case C-280/93, Germany/Council, ECR 1994,1 - 4973, para. 47. P. Eeckhout, "The domestic legal status of the WTO Agreement: interconnecting legal systems", CML Rev. 34 (1997), 11 et seq.; S. Griller, "Judicial Enforceability of WTO Law in the European Union", JIEL 3 (2000), 441 et seq.; A. v. Bogdandy/ T. Makatsch, "Collision, Coexistence, or Cooperation?", in: G. de Bruca/ J. Scott (eds), The EU and the WTO, 2001, (forthcoming). R. Dahrendorf, "Anmerkungen zur Globalisierung", in: U. Beck (ed.), Perspektiven der Weltgesellschaft, 1998, 31, 46 et seq., whose disquieting prediction is that the 21st century might become a century of authoritarianism because of globalization; J.M. Guehenno, "From Territorial Communities to Communities of Choice: Implications for Democracy", in: W. Streek (ed.), Internationale Wirtschaft, nationale Demokratie, 1998, 137, 140 et seq.; K. Giinther, "Alles Richtig", Rechtshistorisches Journal 19 (2000), 232 et seq., (242,244); D. Rodrik, Has Globalization Gone too Far?, 1997, 70. J. Drexl, "Unmittelbare Anwendbarkeit des WTO-Rechts in der globalen Privatrechtsordnung", in: B. Grossfeld (ed.), Festschrift W. Fikentscher, 1998, 822 et seq., (841); J. Esser, "Der kooperative Nationalstaat im Zeitalter der Globalisierung", in: D. Doring (ed.), Sozialstaat in der Globalisierung, 1999, 117, 134, 137; G. Teubner, "Privatregimes: Neo-Spontanes Recht und duale Sozialverfassung in der Weltgesellschaft", in: D. Simon/ M. Weiss (eds), Liber amicorum Spiros Simitis, 2000, 437, 446. The projected and much criticized OECD Multilateral Agreement on Investment

612


some core functions of law, in particular the stabilization of normative expectations and the resolution of conflicts. By their nature, however, such private and mostly contractual regimes often fall short of meeting public interests and those of third parties. The criticism that WTO law is the vanguard of neo-liberal globalization goes in the same direction.8 There is an urgent need to investigate the relationship between law and politics in the WTO. In the first part, this article, inspired by European constitutional thought, will outline the mismatch between the cumbersome political institutions and procedures on the one hand and the WTO's often far-reaching rules applied by compulsory adjudication on the other. In the second part, it will present ways of responding to this mismatch. It will be shown that the dispute settlement organs and above all the Appellate Body are engaged in a process to meet dangers resulting from the mismatch. That attempt might even be considered a Leitmotiv of the jurisprudence built up over the last five years.9 Some further proposals on how to tackle the mismatch in the future are also discussed. The author holds that the fears directed at the WTO are not without foundation. At the same time, this paper builds on the premise that both international trade and the international division of labour are, in principle, beneficial and in need of a multilateral framework.10 In order to avoid the dangers and to realize the potentials of this body of law it

8

9

10

has been seen as part of the WTO-process, E. Altvater/ B. Mahnkopf, Grenzen der Globalisierung. Okonomie, Okologie und Politik in der WeltgeseUschaft, 4th edition, 1999, with reference to WTO Director-General Renato Ruggiero. U. Brand/ A. Brunnengraber/ L. Schrader/ C. Stock/ P. Wahl, Global Governance. Alternativen zur neoliberalen Globalisierung?, 2000, 104; see also the critique of Public Citizen L. Wallach/ M. Sforza, Whose Trade Organization*', 1999, 3,217 et seq. So far, 32 Reports of the Appellate Body and 53 Panel Reports are published on the WTO web site (as on 30 November 2000). This premise, although sometimes challenged, is supported by sound scientific evidence and strong democratic legitimacy since the WTO agreements have been endorsed by all national legislatures. However, no principle can command absolute dominance and the challenging question is how to decide in the many cases of conflict with other principles and policy objectives. S. Longer, Grundlagen einer international Wirtschaftsverfassung, 1995, 10, "Die Frage nach einer internationalen Wirtschaftsverfassung ist mit dem Hinweis auf das Theorem der komparativen Kosten also nicht beantwortet, sondern im Grunde erst (sinnvoll) gestellt."

V. Bogdandy, Law and Politics in the WTO

613

is suggested that the relationship between the legislative (rule-making) function and the adjudicative function as it pervades WTO law must be continuously reflected in the interpretation and application of its provisions. The key to the WTO's lasting success lies in recognizing its limits and adequately transposing this insight into legal interpretative practice. This argument, which lies at the heart of the model developed here (termed the coordinated interdependence model), will lead to two interpretative principles. The first proposal states that substantive WTO law should in principle (with some clear exceptions) be understood as concretizing the principle of non-discrimination; it should not be interpreted as aiming at market integration or deregulation. Second, in situations of normative vagueness, WTO provisions should be interpreted in a rather procedural way. Interests which would otherwise have no standing in the internal political and legal processes shall be taken into consideration by a state in its public activities, whether legislative, executive, or adjudicative. Only in core fields should WTO law be developed into a substantive, closely knitted body of law. This approach underscores the importance of in dubio mitius as defining the background against which the interpretation of WTO rules should take place.11 On this reading, WTO law does not aim at market integration or regulatory competition. Rather, its goal is first, avoiding circumvention of tariff reductions, and, second — and theoretically more important — meeting the core challenge of globalization. Globalization has one crucial element in all understandings:12 that borders are growing increasingly porous and that a decision taken at a given place has important effects outside the borders of the state to which the place belongs. This is one of the undemocratic features of globalization if democracy means that those affected have a say. WTO law responds to this feature of globalization with multilateralism: when a sovereign decision affects economic interests of people in other Member States, their interests must be taken into account, either through a negotiated solution between the affected members, or, if impossible, through "simulated multilateralism" in the domestic legislative process. This might be a specific contribution of WTO law to "good and responsible government*' in economic affairs. 11

12

On "in dubio mitius" in general see, R. Bernhardt, "Interpretation in International Law", in: id. (ed.), EPIL 7 (1984), 318 et seq., (321). D. Held/ A. McGrew/ D. Goldblatt/ J. Perraton, Global Transformations, 1999,16; U. Beck, Was ist Globalisierungt, 1998, 55 et seq.

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II. The Deficient Relationship between the Political and the Adjudicative Function 1. Principles of the Division of Functions in WTO Law The WTO Agreement reproduces the traditional conceptual distinctions developed by the theory of the state with respect to the functions of public authority in a surprisingly faithful way. That theory considers legislation, execution and adjudication as the three public functions with respect to the state's inner sphere.13 Beyond these three internal functions, considered as all-comprehensive, sometimes a further external power is postulated.14 Article III WTO, which lays out the functions of the WTO, closely follows this traditional distinction and provides a first hint as to what extent the WTO shall exercise the various activities of public authority. Article 111:1 WTO concerns executive function, article 111:2 WTO the legislative function, and article 111:3 WTO the adjudicative function. Article 111:4 WTO can be considered as a new strategy of implementation which embraces elements of execution and adjudication,15 and article 111:5 WTO concerns foreign relations. A closer analysis of article IIL2 WTO already reveals the peculiar relationship between politics and law in the WTO. With respect to the legislative process the WTO "shall provide the forum for negotiations", and with respect to the executive function it "shall facilitate the implementation, administration and operation" (article 111:1). Therefore, the WTO Agreement is not meant to institutionalize any autonomous political process. In its official presentation, the organization emphasizes 13

14

15

G. Jellinek, AUgemeine Staatslebre, 3rd edition, 1928, 609 et seq.; G. Zimmer, Funktion - Kompetenz - Legitimation: Gewaltenteilung in der Ordnung des Grttndgesetzes, 1979,33 et seq. Mostly, that function is considered as inherent part of the executive function, Locke, see note 2, Chapter XIV; for the increasing parlamentarisation of the external power R. Wolfrum, "Kontrolle der auswartigen Gewalt", WDStRL 56 (1996), 38 et seq. M. Bothe, "Neue und alte Konzepte der Durchsetzung des Humanitaren Volkerrechts", in: V. Epping (ed.), Festschrift Knut Ipsen, 2000, 23, 37 et seq.; T. Marauhn, "Towards a Procedural Law of Compliance Control in International Environmental Relations", ZaoRV 56 (1996), 696 et seq., (707). This strategy is a specific and quite successful method in international law to achieve compliance without centralized enforcement.


615

its "serving" function to its members, considering itself a "member driven institution".16 This contrasts with institutions such as the IMF which — due to the far greater operational autonomy of the IMF Executive Board than that of the WTO Director-General — can be considered "institution driven". The picture changes completely when it comes to adjudication.17 Article 111:3 WTO states that the WTO "shall administer the Understanding on Rules and Procedures Governing the Settlement of Disputes" (hereinafter referred to as the Dispute Settlement Understanding or DSU). Therefore the WTO has an autonomous function with respect to adjudication; it is not limited to "providing a forum" or "facilitation". This autonomy is not a simply formal element, but has a most important substantive quality. Just three outstanding pieces of evidence shall be tabled. First, according to article 6.1 DSU, the adjudicative procedure does not depend on the consent of the respondent member. Second, according to arts 8.6 DSU and 8.7 DSU, the nomination of the panelists is a function of the Secretariat and the Director-General, respectively. Given that in the small world of international trade law the opinion of possible panelists on the issues at stake is often more or less known, this competence provides some control over the development of the body of law, at least at the level of panel reports. In fact, it is said that the technical assistance of the WTO Secretariat to the panelists can result in shaping the report, thereby enhancing the Secretariat's influ-

16

17

http://www.wto.org/english/thewto e/whatis e/lOmis e/lOmOl e.htm "In fact: it's the governments who dictate to the WTO." On the dispute settlement procedure in detail F. Feliciano/ P. Van den Bossche, "The Dispute Settlement System of the World Trade Organization", in: N. Blokker/ H. Schermers (eds), Proliferation of International Organizations, 2001, 297; R. Hudec, "The New WTO Dispute Settlement Procedure", Minn. J. Global Trade 8 (1999), 1 et seq.; P. Mavroidis/ D. Palmeter, Dispute Settlement in the World Trade Organization, 1999; E.U. Petersmann, The GATT/WTO Dispute Settlement System, 1997; A. Ligustro, Le Controversie Tra Stati Net Diritto Del Commercio Internazionale: Dal Gatt All'OMC, 1996, 439 et seq.; for a comparative analysis R. Keohane/ A. Moravcsik/ A.M. Slaughter, "Legalized Dispute Resolution: Interstate and Transnational", International Organization 54 (2000), 457 et seq.; A. Ziegler, "Scope and Function of the WTO Appellate System: What Future after the Millenium Round", Max Planck UNYB 3 (1999), 439 et seq.

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ence on legal development.18 Third, and most important, political blockage of the dispute settlement procedure is prevented by arts 16.4 and 17.14 DSU, perhaps the most famous provisions of the whole Marrakesh Protocol. Although formally the adjudication function remains a competence of a political organ composed by representatives of the members, there is hardly any political grasp on what eventually becomes the decision, due to the principle of "reverse consensus".19 From these — hardly original — considerations flows the fact that the reporting institutions (the Panels and the Appellate Body) must be considered as independent adjudicative organs.20 The WTO has created a body of law21 which is applied through independent and compulsory judicial adjudication. The domestic law of some members further enhances the autonomous development of the dispute settlement system: the mechanisms through which private parties can bring about an adjudicative procedure. Certainly, only states can be parties before the adjudicative bodies, arts 1.1 and 10.2 DSU.22 There are, however, a number of mechanisms which give private enterprises important influence over the initiation and continuation of a dispute, the most important being Section

18

19

20 21

22

J. Weiler, "The Rule of Lawyers and the Ethos of Diplomats: Reflections in the Internal and External Legitimacy of WTO Dispute Settlement", Harvard Jean Monnet Working Paper 09/00. From the point of view of transparency, this set-up is not convincing since responsibilities are obfuscated. The institution to which the decision is attributed, i.e. the Council, has almost no control. If this scheme were applied to the national plane, it would be convincing to call the U.S. President (rather than Congress) the American legislator given his veto power, article I Sec. 7(2) US. Constitution. See furthermore arts 8.9, 8.11,13 and 17.7 DSU. The term "body of law" instead of "legal order" or "legal system" underlines the fact that WTO provisions, principles and practices belong to international public law; see Appellate Body Report of 20 May 1996, WT/DS2/9, United States - Standards for Reformulated and Conventional Gasoline, page 17. For earlier tendencies to consider the GATT as a proper legal order, see W. Benedek, Die Rechtsordnung des GATT aus volkerrechtlicber Sicht, 1990. With respect to their role in the dispute settlement procedure in detail B. Jansen, "Die Rolle der Privatwirtschaft im Streitschlichtungsverfahren der WTO", ZEuS 3 (2000), 293 et seq., (295 et seq.).


617

301 of the U.S. Trade Act 197423 and the EU Trade Barriers Regulation.24 Also from this point of view, the dispute settlement enjoys some autonomy in the sense that no member enjoys absolute discretion as to whether or not to bring a case. The dispute Japan - Measures Affecting Consumer Photographic Film and Paper, commonly known as Kodak/Fuji, is a telling example of who stands behind the State parties to a dispute settlement procedure.25 Summing up, the WTO Agreement draws conceptually on the traditional separation of powers doctrine and yet establishes an organization that exercises only one of those powers. Given the underlying logic of the separation of powers, a tension is created. This tension appears, at first glance, to be diminished because WTO law follows another basic element of the traditional separation of powers doctrine: the nonpolitical nature of judicial adjudication. According to the traditional understanding, the judicial branch is not considered as part of the political realm: the political process, with its logic of power and interests, is transformed through the process of legislation (with its specific requirements of democratic legitimacy) into law, which is adjudicated according to the deductive logic of the legal sphere. The DSU presupposes that it is possible to oblige the adjudicative organs to proceed strictly according to the deductive logic of legal reasoning, leaving the development of the body of law to the political processes. Article 3.2 DSU requires the dispute settlement organs "to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law", and prohibits "addfing] or diminishfing] the rights and obligations provided in the covered agreements". Article 3.2 DSU was probably framed with an eye on the jurisprudence of the ECJ and the determination to exclude a similar development. It will be discussed whether this provision is more than wishful thinking.

23

24

25

In detail M. Nettesheim, "Sec. 301 of the Trade Act of 1974", in: E. Grabitz/ A. von Bogdandy (eds), £7.5. Trade Barriers. A Legal Analysis, 1991, 353 et seq. In detail see G. Berrisch/ H.G. Kamann, "Die Handelshemmnis-Verordnung. Ein neues Mittel zur Offnung von Exportmarkten", EuZW 10 (1999), 101 et seq. Panel Report of 31 March 1998, WT/DS44/R, Japan - Measures Affecting Consumer Photographic Film and Paper.

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2. Treaty-Making as Deficient Legislation In comparison to traditional forms of international adjudication, the WTO represents an enormous step towards an efficient international exercise of public functions. This step is not paralleled with respect to legislation. Although WTO law foresees an almost continuous process of rule-making,26 such rules cannot be enacted by the WTO organs. Nowhere in the WTO Agreement (or in any of the other agreements and instruments mentioned in article 11:2 - 4 WTO) can one find an explicit competence to legislate. This represents one of the main differences with respect to the European Union, where legislation is one of the main tasks. According to article 111:2 WTO, the WTO simply provides a "forum for negotiations among its Members". Accordingly, there is a WTO competence to organize negotiations, but not a competence to amend its rules or to enact new ones on international economic law. The enactment happens through new treaties, mostly the fruit of most complex, tedious and protracted negotiation rounds, of which the Uruguay-Round was the last. The main legislative (i.e. rule-making) procedures for treaty amendments are those of article X WTO; the extension of WTO law through new agreements proceeds according to the standard forms of international treaty-making.27 In both cases, acceptance by members, usually after parliamentary approval, is required.28 a. Treaty-Making and the Democratic Principle The drawbacks of the above-outlined form of rule-making are well known.29 With respect to the democratic principle, legislation through international treaties is problematic from a static perspective, and even 26

27

28

29

See, e.g. article XIX GATS; important examples of so called "built-in agends" are to be found with respect to financial services and telecommunication, D. Earth, "Die GATS 2000-Verhandlungen zur Liberalisierung des internationalen Dienstleistungshandels", ZEttS 3 (2000), 273 et seq., (280). On the organizational features J. Jackson, The World Trade Organization. Constitution and Jurisprudence, 1998,41 et seq. In the EU, however, trade policy decisions do not need parliamentary assent, article 133.3, article 300.3 EC. For the respective U.S.-American debate cf. J. Jackson, "The Great 1994 Sovereignty Debate: United States Acceptance and Implementation of the Uruguay Round Results", Colum.]. Transnat'lL. 36 (1997), 157 et seq.


619

more so in a dynamic one. From the static perspective, the drawback can be found in the fact that, although national (and consequently democratic30) sovereignty is formally respected, the content of the rules is determined in intergovernmental negotiations according to traditional diplomatic procedures. An open public discourse that can influence the rules, an essential element for democratic legitimacy according to most theories, is severely limited.31 The autonomy of the bureaucratic-governmental elites is far greater than in the national political process. If this is a general feature of international relations, it is particularly so in international trade relations: the GATT 1947 and WTO have so far been one of the most secretive in the world, and this secrecy is considered as an instrument to strengthen national negotiators who are in favour of trade liberalization.32 Furthermore, with the possible exception of the US-Congress, national parliaments show a far greater deference to governmental proposals if they concern international treaties rather than autonomous domestic legislation. As the discussion on the role of national parliaments in the EU legislative process has clearly revealed, there is also little hope of improving the input of national parliaments into transnational rule-making during negotiations.33 Moreover, the lack of knowledge about the WTO further weakens the legitimizing force of national ratification. John Jackson states that "the implications of the UR [Uruguay Round] Agreement are undoubtedly not fully understood yet by any government that has accepted them";34 this is particularly critical since the agreement "has such potentially profound effects on the economic well-being and activity of billions of citizens".35 In order to grasp the full extent of these 30

31

32

33

34 35

My entire argument only applies to WTO members whose internal structures can be considered democratic. The problem with respect to citizens living under autocratic rule needs a separate investigation. For attempts to further the participation of NGOs in the work of the WTO, G. Marceau/ P. Pedersen, "Is the WTO Open and Transparent?", /WT33(1999),5etseq. J. Goldstein/ L. Martin, "Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note", International Organization 54 (2000), 603 et seq., (612). P. Norton, "National Parliaments and the European Union: where to from here", in: P. Craig/ C. Harlow (eds), Lawmaking in the European Union, 209; D. Judge, "The Failure of National Parliaments?", West European Politics 18 (1995), 79. Jackson, see note 27, pages 33, similarly, 1 and 100. Jackson, see note 27, 51; Similarly Goldstein/ Martin, see note 32, 605.

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effects, article XVL4 WTO must be considered: it requires adapting the domestic legal order to WTO law. Irrespective of a possible direct effect of WTO law, this entails a profound influence on the domestic legal order. The democratic problem grows even worse from a dynamic perspective. In modern times, law means positive law.36 The main feature of the positivity of law is the legislature's grasp of and responsibility for the law:37 the law is made by a legislature or is at least — in case of the common law or other judge made law — under its responsibility due to the legislature's competence to intervene at any given moment, amending or derogating a rule which an autonomous adjudicative process has developed.38 This positivity of the law is an important aspect of the democratic sovereignty of a state: in democratic societies, the majority, usually conceived as a unitary subject organized through the elected government, can at any moment intervene in the body of law and change it.39 Under all constitutional systems, the economic process is subject to rules that can be enacted by a simple majority or through delegated legislation: the possibility of fast intervention is a leading principle in framing the respective rule-making competence.40 WTO law undermines the positivity of law in this sense. Once a treaty is set up, the political grasp on its rules is severely restricted — not normatively, but in all practical terms. Although international legislation respects the democratic principle insofar as treaties are negotiated and concluded by democratically elected governments, mostly 36 37

38

39

40

G.W.F. Hegel, Grundlinien der Philiosophie des Rechts, 1821 (1970), s 3. E.W. Bockenforde, "Demokratie als Verfassungsprinzip", in: id., Staat, Verfassung, Demokratie, 1991,289,322. For the specific situation in Common Law countries P. Atiyah/ R. Summers, Form and Substance in Anglo-American Law, 1991,141 et seq. A. v. Bogdandy, Gubernative Recbtsetzung, 2000, 35 et seq. The guarantee of an efficient legislature is a leitmotiv of many constitutional developments in the last fifty years. In more specific terms see A. Scherzberg, *Risiko als Rechtsproblem", Verwaltungsarchiv 84 (1993), 484 et seq., (490 et seq.). In detail M. Hilf/ M. Reufi, "Verfassungsfragen lebensmittelrechtlicher Normierung", Zeitschrift fur das gesamte Lebensmittelrecbt 1997, 289 et seq., (290 et seq.); R. Schmidt, "Staatliche Verantwortung fur die Wirtschaft", in: J. Isensee/ P. Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutscbland, Vol. Ill, 1988, § 83; on the economic constitution in Germany and the European Union, see D. Gerber, Law and Competition in Twentieth Century Europe, 1998,232 et seq.


621

even with parliamentary assent, it totally modifies the relationship between law and politics. By ratifying WTO law the current majority in a state puts its decision largely outside the reach of any new majority.41 This restriction is particularly important in the case of the "WTO since "corrective" political influence, i.e. noncompliance, becomes difficult because of the obligatory WTO adjudication. Certainly, the democratic autonomy of the new majority is preserved to some extent through the right of withdrawal, article XV WTO. However, this right supports the democratic legitimacy of the WTO as much as the individual's right to emigrate does the democratic legitimacy of a state.42 It can hardly be considered as sufficient as it is not a realistic option. One might say that this limitation of democratic self-governance inevitably comes with the need for treaty-based international cooperation. This argument can also take the form that this kind of limitation has been generally accepted as intrinsic to international law. Yet, necessity and inevitability are bad normative grounds since they collide with the principle of freedom. Moreover, it has to be borne in mind that WTO law has an impact on democratic self-government far beyond most international rules: very few other international rules constrain domestic legislation on the economic process beyond the principle of non-discrimination.43 Even most international environmental law instruments — which in many respects can be considered as providing cutting-edge mechanisms for international governance — do not prescribe specific regulative instruments or prohibit others, but operate with objectives that must be attained.44 41

42

43

44

K. Abbott/ D. Snidal, "Hard and Soft Law in International Governance", International Organization 54 (2000), 421 et seq., (439); J. Goldstein/ M. Kahler/ R. Keohane/ A. Slaughter "Introduction: Legalization and World Politics", International Organization 54 (2000), 385 et seq., consider this a common political strategy. See article 13 para. 2 Universal Declaration of Human Rights, A/RES/217 A (III) of 10 December 1948; article 12 para. 2 of the International Covenant on Civil and Political Rights, A/RES/2200 A (XXI) of 16 December 1966; article 2 para. 2 Protocol No. 4 of the European Convention on Human Rights; see P. Weis/ A. Zimmermann, "Emigration", in: R. Bernhardt (ed.), EPIL Instalment Vol.II, 1995, 74 et seq. See in particular the friendship, trade and shipment treaties or on the protection of investment, D. Blumenwitz, "Treaties of Friendship, Commerce and Navigation", in: Bernhardt, see note 11,484. In detail M. Bothe, "Environment, Development, Resources", Hague Academy of International Law, 2001 (forthcoming).

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WTO law must be regarded as an unprecedented step in the development of international economic law which goes far beyond the GATT 1947.45 One need only recall the importance of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs Agreement), the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), the Agreement on Technical Barriers to Trade (TBT Agreement), the Agreement on Subsidies and Countervailing Measures and the new dispute settlement procedures. One could challenge this thesis by pointing to the treaties aiming at international harmonization of private law, in particular international private law and intellectual property law.46 The difference between these fields and many parts of WTO law is, however, that these areas of law do not call for frequent political intervention. Moreover, given the lack of a centralized adjudication in these treaties, the domestic legal orders keep some autonomy in the evolution of these instruments.47 Also in this respect, WTO law leads to a diminution of domestic autonomy because TRIPs incorporates many intellectual property treaties into the WTO adjudicative mechanism (arts 1-39 TRIPs). Summing up, the lack of legal procedures which establish a solid and efficient political grasp on WTO law cannot be sufficiently justified by pointing to the general nature of international law because WTO law far more strictly circumscribes and determines the domestic political process with respect to the economic process. The problem becomes even worse if this issue is considered from the perspective of legislative efficiency.

45

46

47

On the main innovations see W. Benedek, "GATT- The Uruguay Round to WTO", in: R. Wolfrum/ C. Philipp (eds), United Nations: Law, Policies and Practice, 1995, 532 et seq.; on the development see R. Senti, "Die neue Welthandelsordnung. Ergebnisse der Uruguay-Runde, Chancen und Risiken", Zeitscbrift der ordoliberalen Schule (ORDO) 45 (1994), 301; T. Stoll, "Die WTO: Neue Welthandelsorganisation, neue Welthandelsordnung", Zao'RV 54 (1994), 241 et seq.; W. Meng, "WTO-Recht als Steuerungsmechanismus der neuen Welthandelsordnung", in: M. Klein/ W. Meng/ F. Rode (eds), Die neue Welthandelsordnung der WTO, 1998,19. For an overview G. Kegel/ K. Schurig, Internationales Privatrecht, 8th edition, 2000,69 et seq. Ibid., 5, 8 et seq.


623

b. Treaty-Making and Legislative Efficiency Legislative efficiency is a constitutional value in most constitutional systems.48 Treaty-making procedures are slow and cumbersome, a feature that becomes particularly problematic if the social sector in question is in rapid evolution as is the case with the national and international economy. This entails the danger that rules become inadequate or anachronistic, a danger the authors of the WTO were aware of, as proven by clauses which require periodic revision of a number of provisions.49 Given the acknowledged probability of the need to amend legislation, the procedures of article X WTO are deeply inadequate. This perspective brings another peculiarity of WTO law to light. Despite the need for legislative intervention, article X WTO is even more respectful of national sovereignty than the UN Charter. Whereas an amendment of the UN Charter applies to all Member States once it has been ratified by two-thirds of its members (including all permanent members of the Security Council, Arts 108, 109 UN Charter), this is the case in WTO law only when the amendment "would not alter the rights and obligations of the Members" (article X:4 WTO). With respect to other changes, a member cannot be bound without its assent (article X:2-3, 5 WTO). That difference indicates that the law of the WTO affects far more real political autonomy of a state than the law of the UN Charter. Whereas with respect to international security only very few de facto sovereign states exist, the autonomy to regulate the national economic process has been real. Considering article X WTO on the one hand and Article 108 UN Charter on the other, sovereignty is better entrenched with respect to economic policy than with respect to international security.

48 49

v. Bogdandy, see note 39. E.g., article 15.4 TBT Agreement stipulates that the TBT Committee must review the implementation and operation of the agreement every three years. The first report has just been published, http://www.wto.org/ english/ tratop_e/tbt_e/tbt5.htm For further evidence cf. article 20 Agreement on Agriculture; article 12.7 SPS Agreement; article 15.3, 15.4 TBT Agreement; article 9 Agreement on Trade-Related Investment Measures; article 7.1 Agreement on Import Licensing Procedures; article 31 Agreement on Subsidies and Countervailing Measures; article 71.1 TRIPs.

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c. Legislation and Judicial Law-Making The necessity of an efficient democratic legislator has been argued so far with respect to the need to adopt rules to changing social conditions, fears and convictions. A further aspect must be considered: the need of an adjudicative body to have a political counterpart when developing a body of law through reasoned dispute settlement decisions. At a first glance, the DSU appears to minimize this need through provisions such as article 3.2 DSU, which curtail the adjudicative bodies' opportunities to "creatively develop" the law. Such a clause might effectively exclude decisions that introduce "revolutionary" principles such as the direct effect of WTO law or its supremacy over domestic law.50 It can not, however, exclude the creation of a body of law through reasoned reports. Rather, such a development is inevitable if the adjudicative organs obey the DSU. Article 11 DSU requires an "objective assessment of the matter". An "objective assessment" requires giving reasons.51 Any reasoned decision will, however, inevitably lead to the creation of a body of law.52 The building of such case law is normatively supported by article 3.2 DSU, which sets out the objective of "providing security and predictability to the multilateral trading system." From here flows — as the Appellate Body pointed out — the obligation to take previously adopted reports and interpretations into consideration.53 Even though reports do not have a binding force in and of themselves, they create legitimate expectations and must therefore be taken in account.54 In a system with compulsory adjudication, this objective can only be attained through consistent adjudicative practice.

50

51

52

53

54

On the lack of direct effect explicitly WT/DS152/R United States - Sections 301-310 of the Trade Act of 1974, Report of the Panel, para. 7.72. For an earlier attempt to introduce direct effect and supremacy cfr. DS 23/R United States-Measures affecting alcoholic and malt beverages, Report by the Panel adopted on 19 June 1992, BISD 39 (1991-1992), 206 et seq., (297). In detail A. Ross, Tbeorie der Rechtsqttellen, 1929, 283 et seq.; M. Kriele, Theorie der Rechtsgewinnttng, 2nd edition, 1976,167 et seq. M. Shapiro, "The European Court of Justice", in: P. Craig/ G. de Burca (eds), The Evolution ofEULaw, 1999,321,340. Appellate Body Report of 4 October 1996, WT/DS8/AB/R, WT/DS10/ AB/R, WT/DS1 l/AB/R,Japan - Taxes on Alcoholic Beverages, 15. Ibid. For the common ground between civil law systems and common law systems on this point cf. J. Esser, Grundsatz tend Norm, 4th edition, 1990.


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The adjudicative mechanism is in itself a law generating procedure, and some even consider it the engine driving neo-liberal globalization.55 The WTO sets up not only a substantive body of law, but moreover one which is autonomously developing. In fully developed legal systems, the creative function of the judges is democratically embedded since the legislator can intervene at any given moment. This possibility of intervention entails political responsibility and, consequently, democratic legitimacy for those developments. As pointed out, such a legislator does not exist for the WTO law.56 In brief, treaty-making is unsatisfactory legislation from both the democratic and the efficiency perspective. At least with respect to the second problem, autonomous rulemaking by the institutions of the WTO might provide some relief.

3. Functional Equivalents? There might be functional equivalents to a centralized legislator that counterbalance the shortcomings of the treaty amendment procedure. In order to determine the precise relationship between the political and the adjudicative process in the WTO, those further procedures which might allow political processes to influence WTO law need exploration. As further avenues both autonomous decisions of WTO organs and the incorporation of rules set up outside the WTO are to be considered. Moreover, science might help to keep the body of rules in touch with a rapidly changing social and technological world. a. Rule-Making by WTO Organs An apparently obvious response to the efficiency problem is to allow for autonomous rule-making of the international organization. Even though the WTO Agreement does not formally institutionalize a legislative body, there are elements which appear to lay down a certain competence to legislate. For example, article VI:4 GATS (General Agreement on Trade in Services) allows the Council to develop guidelines for national regulations on professional services.57 Article X:8 WTO pro55 56

57

Brand et al., see note 8,105. On the question whether the WTO should be considered a constitutional order and would therefore lead to a different conclusion see below, Part III, 1. Barth, see note 26,273 et seq., (288).

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vides a competence for autonomous rule-making on the dispute settlement procedure.58 There are also general provisions, of which the most important is article XXV: 1 GATT. Such rule-making could be used in order to concretize vague provisions or to correct the understanding given to a provision by the dispute settlement organs. There are also provisions that can be understood as allowing the political organs to determine the application of a rule to single cases. aa. The GATT 1947 as a Rule-Making Organization To what extent does WTO law allow for rule-making by its institutions? The current legal situation can best be developed by first presenting the relevant discussion under the GATT 1947. Before the WTO Agreement entered into force, it was argued that the GATT had a farreaching legislative competence under article XXV: 1 GATT. The most forceful proponent of this thesis was Frieder Roessler, counselor of the legal section of the GATT Secretariat. In his ground-breaking article of 1987, he argued that there is a broad decision-making competence under GATT 1947.59 His proposal conceived GATT as a dynamic international organization which solved the problem of effective legislation through an autonomous rule-making competence. As GATT 1947 was not conceived as an international organization, the Agreement foresaw only the assembly of the CONTRACTING PARTIES, acting jointly — designated by uppercase letters (article XXV: 1) in contrast to the sum of the individual contracting states (contracting parties), designated by lowercase letters — as a rule-making organ. The other institutions of GATT 1947 owe their existence and scope of competences to an act of delegation by the CONTRACTING PARTIES. This includes the Council of Representatives, which was created in 1960 to perform GATT functions between the CON58

59

Given the overwhelming importance of the dispute settlement procedure, the comparative ease with which the DSU can be changed is surprising. It can best be explained historically: the dispute settlement procedures under article XXIII GATT were set up through decisions of the CONTRACTING PARTIES under article XXV: 1 GATT. This tradition lives on in article X:8 WTO, but with an important modification: whereas according to article XXV: 1 GAIT the majority of votes cast decides, article X:8 WTO requires consensus. E Roessler, "The Competence of GATT",JWTL 21 (1987), 73 et seq. Beyond being an analysis of positive law, his contribution can be understood as a proposal for a possible further development of the world trade regime.


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TRACTING PARTIES' sessions. Roessler concludes from this that the scope of the CONTRACTING PARTIES' competences as an organ is the same as the GATT's competences as an organization.60 Roessler identifies article XXV: 1 GATT as the central norm conferring competences to the CONTRACTING PARTIES. It can be used "for the purpose of giving effect to those provisions of this Agreement which involve joint action" and "with a view to facilitating the operation and furthering the objectives of this Agreement". Considering all relevant provisions under GATT (in particular article XXIIL2 and article XXV:5 GATT) he infers a broad competence conferred on the CONTRACTING PARTIES, in particular the competence "for the creation of new rights and obligations".61 This competence to unilaterally enact binding norms regards above all the implementation of the existing framework of rights and obligations; Roessler calls it the regulatory competence.62 However, the competence of GATT is not limited to this already far-reaching rule-making competence. Roessler argues that the wording of article XXV: 1 GATT — "facilitating the operation and furthering the objectives" — provides the competence to enact further reaching legislation: a competence to autonomously enact rules to the same extent as the GATT's competence to organize negotiations.63 The only limits to this competence result from the words "facilitating the operation" or "furthering the objectives" (article XXV: 1 GATT).64 According to Roessler, the element "objectives" is to be understood not only as a reference to the preamble of the General Agreement, but also to the Havana Charter, which is also referred to in article XXIX GATT. However, even these aims must be interpreted dynamically: "What is decisive is whether in the current circumstances the discussion of the subject-matter furthers the objectives of the General

60 61

62 63 64

Ibid., 74. Ibid., 77; the possibility of Roessler's interpretation is confirmed by Jackson, see note 34,42; for a general account on autonomous rule-making cf. I. Seidl-Hohenveldern/ G. Loibl, Das Recht der Internationalen Organisationen einschlieftlich der Supranationalen Gemeinschaften, 6th edition, 1996,212etseq. Ibid., 76-77. Ibid., 74-75. Ibid., 75.

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Agreement."65 In practice, this reading implies the autonomy of the CONTRACTING PARTIES to determine their competence. Roessler's contribution can be understood as an attempt to push the decision-making competences to edge of what is legally justifiable, and consequently to allow for a dynamic interpretation of the General Agreement based on its aims and objectives. The development of the EEC, characterized by its autonomous rule-making authority, i.e. its power to set secondary law, might have served as an implicit model for Roessler's proposal. In Roessler's view, article XXV: 1 GATT 1947 functions analogously to article 235 EC, which in the 1970s and 1980s allowed the Community organs, based on the Member States' consensus, to open up new fields for supranational regulatory activity. bb. Politics under the WTO Agreement Against the background of Roessler's proposal, a number of provisions in the WTO Agreement and the DSU can only be understood as prohibiting such an understanding and such a development in institutional practice. The generic competence of article XXV: 1 GATT has been concretized and circumscribed in the WTO Agreement.66 If there are opportunities for autonomous rule-making, they are carefully limited. Article X:8 WTO provides the competence for autonomous rulemaking with regard to the dispute settlement procedure. Another form of autonomous rule-making is permitted through article IX:2 WTO, which concerns the competence of authentic interpretation.67 As the various "Understandings on the Interpretation" of provisions such as article II:l(b) GATT, article XVII GATT, the Balance-of-Payments Provisions, article XXTV GATT, article XXV:5 GATT or article XXVIII GAIT show, authentic interpretation allows for some rule-making, i.e. legislation. However, even this competence is curtailed in various forms with respect to what was possible under article XXV: 1 GATT 1947: it is exclusive to the Ministerial Conference and General Council, a decision requires a three-quarters majority of the members, and the provision may not lead to a circumvention of article X WTO (see article IX:2 WTO, article 3.2 DSU). One can clearly deduce the intent of the members to channel legislation through the treaty amendment procedure. 65

Ibid., 76.

66

Jackson, see note 34, 43. WTO provisions prevail over the unchanged GATT provisions, article XVI:3 WTO. On this Bernhardt, see note 11, 325.

67


629

In founding the WTO, the contracting parties to GATT have implicitly rejected Roessler's proposal for making WTO law more dynamic through conferring a competence for autonomous rule-making. This rejection is well-founded. In contrast to article XXV: 1 GATT, article 308 EC (ex article 235) possesses specific legal safeguards that protect the Member States and affected citizens from abuse. Moreover, the institutional system of the EU, which provides procedural safeguards which go beyond the consensus of the Member States, is far more complex than that of the GATT. Noteworthy among these safeguards are the Commission's monopoly on proposals, which is designed to uphold a specific supranational perspective, and the European Parliament's right to consultation, which introduces an (admittedly weak) democratic-parliamentary element into the legislative process. Furthermore, the competences conferred by the EC Treaty are conditional upon qualified majorities or even unanimity of the Council, whereas under the GAIT regime the general decision-making method required only a simple majority of the votes cast (article XXV:3,4 GATT). Another important difference lies in the fact that EC measures are subject to comprehensive judicial review by the ECJ. An equivalent institution within GATT or the WTO does not exist.68 The law of the Union is thus endowed with a safeguard against informal amendment and, relatedly, the circumvention of the prescribed amendment procedures (article 48 EU, ex article 236 EEC). Roessler also sees the fact that this is not secured by the General Agreement as a problem. His reference to the CONTRACTING PARTIES' consensus-based, reserved practice does not satisfactorily resolve the issue. Also with respect to the application of a provision in a single case, the WTO Agreement limits the competence of its organs more than the GATT 1947 did. Most important has been the refinement of the socalled waiver clause. Article XXV:5 GATT, which provided for the relevant competence, has been superseded through article IX:3 WTO.69 Article XXV:5 GATT was understood as providing unrestricted discre-

68

69

The Appellate Body has, however, introduced some indirect control, see Appellate Body Report of 9 September 1997, WT/DS27/AB/R, EC — Regime for the Importation, Sale and Distribution of Bananas, paras 179 -188. This form of control does not, however, appear sufficient if the organization is to develop a fully functional legislator. The supremacy of the WTO Agreement with respect to the GATT results from article XVL3 WTO.

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tion to the CONTRACTING PARTIES.70 By contrast, article IX:3 WTO and the "Understanding in Respect of Waivers of Obligations under the General Agreement on Tariffs and Trade 1994" lay down substantive and — even more importantly — procedural requirements for granting such a waiver. Moreover, the juridification of WTO law and the limits of the WTO organs was underscored by the Appellate Body's restrictive interpretation of such a waiver.71 Its decision can be understood as an indication that the Appellate Body might assume the competence to review implicitly the legality of such a waiver.72 cc What Role for Councils and Committees? The WTO Agreement and most of its Multilateral and Plurilateral Trade Agreements set up councils and committees. These councils and committees provide the institutional framework for intense and continuous political activity within the WTO as can be seen from the WTO website.73 From an organizational point of view, the councils and committees are sub-organs of the Ministerial Conference and General Council, article IV:5 and article IV:7 WTO. They are composed of representatives of the members. At this point, two questions with respect to the relationship between the political and the adjudicative procedures need clarification: whether in case of conflict one procedure is exclusive, and second, if not, which procedure prevails in case of conflict. Under GATT 1947, the relation between accepted panel reports and other decisions by the CONTRACTING PARTIES was — given that their basis was usually article XXV: 1 GATT — governed by the principle of lex posterior. Un-

70 71 72

73

J. Jackson, The Jurisprudence of GATT & the WTO, 2000,186. WT/DS27/AB/R, 1997, see note 68, paras 183,185,187. On the parallel discussion how to control the UN Security Council when enacting legislation see J. Alvarez, "Judging the Security Council", AJIL 90 (1996), 1 et seq.; B. Martenczuk, Rechtsbindung und Rechtskontrolle des Weltsicberbeitsrates, 1996. Cf. e.g. the work from 30 October - 3 November 2000. The following bodies met in that week: Trade Policy Review Body; Informal Working Party on the Accession of Russia; Committee on Anti-Dumping; Committee on Rules of Origin; for the - disappointing - work of the important Committee on Trade and Environment see R. Tarasofsky, "The WTO Committee on Trade and Environment: Is it making a Difference?", Max Planck UNYB 3 (1999), 471 et seq.


631

der this principle, the autonomous political process kept the control over a court-based development of GAIT 1947 law.74 In the WTO Agreement there is no explicit provision regarding this relationship. The question surfaced in a complaint by the United States against India's quantitative restrictions due to balance-of-payments difficulties. One of India's defences was that the matter belonged to the exclusive competence of the Balance of Payments (BOP) Committee and that the resolution of the dispute therefore belonged exclusively to the political process.75 In the case at hand, there had been no decision by the relevant committee. India's main argument claiming an exclusive competence of the BOP Committee or the General Council to determine a violation was weak, and convincingly rebuffed by the Appellate Body on the basis of article 1 DSU. The more interesting question of how article XVIII Section B GATT can be adjudicated if the relevant committee had already established the legality of the measure76 is only touched upon in passing. In this respect an interesting divergence between the panel and the Appellate Body comes to the fore. The panel assumes that a positive decision of the General Council or the competent committee could influence its decision.77 On this reading, there would be a political control over the WTO legal order by the WTO political institutions. The Appellate Body remained ambiguous as to the legal position in the case of a conflict between the dispute settlement organs and the political institutions.78 Nevertheless, the subtext of the decision seems to indicate

74

75

76

77

78

The regular procedure and quorum for decisions are laid down in article IX: 1 WTO in a surprising formula: consensus shall be the practice. If, however, consensus cannot be attained, the majority of the votes cast shall decide. As the tedious procedure leading to the nomination of DirectorGeneral Moore proves, consensus is sought even in cases that appear almost impossible; majority decisions, although legally possible, appear to be largely theoretical. Appellate Body Report of 23 August 1999, WT/DS90/AB/R India Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products. Such a decision would need to be taken according to the rules of article IX WTO, i.e. by consensus or a majority of the votes cast. WT/DS90/AB/R, see note 75, para. 5.114; "It is also clear that panels could not ignore determinations by the BOP Committee and the General Council". Ibid., paras 18,25.

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that the adjudicative organs would remain autonomous.79 This line of interpretation is strongly supported by article IX:2 WTO. Since this provision sets up specific requirements for a decision on authentic interpretation, a decision taken by a political body under another procedure cannot yield comparable effects.80 Therefore, the only possibility to correct a development introduced by the adjudicative organs is by authentic interpretation through the General Council. In light of the critical relationship between law and politics within the WTO, this political ability to correct a line of jurisprudence should be developed into a working mechanism; consequently, the consensus requirement for the respective proceedings of the General Council should be curtailed. Even though a majority decision within the Council is certainly problematic in light of the democratic principle, it is much less worrying than the one raised through an adjudicative development if the latter could only be corrected through treaty amendment. It would help the legitimacy of the dispute settlement organs if the procedure of authentic interpretation became a credible mechanism through which politics could correct judge-made developments. What, then, is the proper role for the impressive institutional framework of councils and committees? On my reading, they should be operational forums to discuss WTO law, to devise adequate means for its implementation and to reconcile diverging opinions; that could help to diminish the heavy case load of the adjudicative organs. But there could be another, even more important role: they could become the laboratory for developing new forms of international governance. Perhaps the genius of practical innovation in these groups can bring about those patterns of multilateral action which might help to meet the challenges of globalization. Patterns which might provide the basis for institutional settings which are more attuned to the principles of democracy and efficiency could be experimented with in these groups. As the development of European integration proves, further steps in the institutional development of the WTO could institutionalize patterns of interaction already tested in the organization's practice. 79

80

Identical to the reading by R. Howse/ P. Mavroidis, "Europe's evolving regulatory strategy for GMO's - the issue of consistency with WTO Law: Of Kine an Brine", 7 (manuscript), Fordbam Int'l L.J., 2001, forthcoming. This majority does not collide with the rule of reverse consensus in article 16.4 and article 17.14 DSU because the authoritative decision would not affect the settlement in a disputed case.


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The above has demonstrated various pieces of evidence which demonstrate that the rule-making competence of WTO organs has been severely restricted compared with the previous situation under the GATT 1947; the same is true for political decisions affecting the application of a WTO provision in a specific case. In fact, all of these phenomena are nothing but aspects of the much lauded victory of "law" above "diplomacy" in international trade law.81 As a result of this victory there are no efficient political procedures within the WTO. b. Outsourced Rule-Making aa. Incorporation of Standards of other Organizations If legislation through treaty-making or by WTO decisions does not provide for sufficiently effective and democratic political control of WTO law, the incorporation of binding rules and non-binding standards set up by other international organizations, whether public or private, might be a third way to meet the WTO's mismatch between politics and law. WTO law explicitly refers to such standards in important agreements such as the SPS Agreement, the TBT Agreement and the Agreement on Subsidies and Countervailing Measures. Moreover, such standards can play a role in defining legitimate measures under article XX GATT. The incorporation of standards can, however, have different purposes: either the harmonization of the relevant provisions of the domestic legal orders or simply the development of a common ground that helps frame the domestic orders. Harmonization, the first possible understanding, is an obvious desideratum if the WTO aimed at easy market access and even more so if market integration were the objective.82 Regulatory differences, even if totally non-discriminatory, can represent formidable trade barriers. Given the density of non-discriminatory regulation in many WTO members in order to further important public goods (health, environment, consumers protection etc.), significant liberalization would re-

81

82

E.U. Petersmann, "The Transformation of the World Trading System through the 1994 Agreement Establishing the World Trade Organization", EJIL 6 (1995), 161 et seq., (186, 208); sceptical about the benefits of legalization Goldstein/ Martin, see note 32, 630 et seq.; see on the costs also Weiler, see note 18,7 et seq. On the question, whether this is an aim of the WTO, see below HI 2 a.

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quire international guidance for the national regulatory process. This applies all the more to market integration. WTO law on its own cannot achieve this, unless one views the WTO as promoting radical deregulation and regulatory competition.83 For other approaches, a fundamental dilemma comes to the fore. If the WTO requirements for the domestic regulatory process are framed in abstract and vague norms, much discretion is left to individual members; diverging and therefore trade-restrictive legislation is the probable result. The opposite response, i.e. the stipulation of more concrete requirements in treaty law, is not convincing since the political system of the WTO is not able to provide swift legislative answers to changing needs, insights or circumstances. In important areas WTO law would risk becoming rapidly outdated without the possibility of adaptation. Detailed guidance for the domestic regulatory process — and even more so for common rule-making — cannot be sufficiently achieved through the cumbersome WTO treaty amendment procedures or the limited rule-making competence of the WTO institutions. International and supranational economic law have developed three main strategies to cope with this problem, which can be well demonstrated in the regulatory approach of the TBT Agreement and the SPS Agreement. First, the preamble and in particular article 3 SPS sets out the objective of international harmonization through specified, more agile bodies outside the WTO (similarly article 2.4 TBT). Second, article 4 SPS lays down the aim of mutual recognition between countries of different but comparable regulatory regimes (similarly article 2.7 TBT).84 Third, article 5.2 SPS stipulates the requirement of a scientific basis for restrictive measures. Since market access and especially market integration are best guaranteed if domestic legislation is harmonized, the incorporation of rules of other, more dynamic rule-making bodies appears as an attractive instrument to achieve trade liberalization and adequate public regulation. In the early 1980s the European Community adopted the so-called "new approach": Community legislation is limited to basic requirements while private standardization organizations concretize those requirements. This approach, a constitutive part of the Common Market 83 84

On these positions in more detail below, III. 1. This strategy has, however, not even worked properly within the European Union, E. Vos, "Market Building, Social regulation and Scientific Expertise", in: C. Joerges/ K.H. Ladeur/ E. Vos (eds), Integrating Scientific Expertise into Regulatory Decision-Making, 1997,127,134.


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legislation, is generally considered to be successful.85 The standardization work of CEN (European Committee for Standardization), CENELEC (European Committee for Electrotechnical Standardization), ETSI (European Telecommunications Standards Institute) and the Codex Alimentarius is an integral part of supranational legislation. Similarly, the TBT and SPS Agreements refer in various provisions (e.g. Annex A Definitions 3 (a) SPS) to rules of other bodies, such as the Codex Alimentarius Commission (CAC), International Office of Epizootics (IOE), International Plant Protection Convention (IPPC). The respective provisions are among the most problematic and most discussed of the whole of WTO law.86 What they entail for the relationship between politics and law shall now be examined. The Hormones Case provides an example of the difficulties arising from the incorporation of the rules or standards produced by other bodies. The Appellate Body's response was, as shall be seen, farsighted.87 One crucial question in this dispute was the extent to which 85

86

87

Report of the EU-Commission on the European Single Market 1995, http://europa.eu.int/en/agenda/sm/smr95.htm Section 1; in detail, A. v. Bogdandy/ D. Meehan, "Zugangserschwernisse durch Vermarktungsregelungen fur Waren" in: E. Grabitz/ A. v. Bogdandy/ M. Nettesheim, EuropdiscbesAuflenwirtschaftsrecht, 1994,383,412 et seq. B. Eggers, "Die Entscheidung des WTO Appellate Body im Hormonfall", EuZW 9 (1998), 147 et seq., (148); M. Hilf/ B. Eggers, "Der WTOPanelbericht im EG/USA-Hormonstreit", EuZW 8 (1997), 559 et seq.; R. Howse/ P. Mavroidis, see note 79; A. Quick/ R. Bluhtner, "Has the Appellate Body Erred 1", Journal of International Economic Law 2 (1999), 603 et seq., (637); M. Ritter, "Das WTO-Ubereinkommen und seine Auswirkungen auf das Deutsche und Europaische Lebensmittelrecht", EuZW 8 (1997), 133 et seq., (136 et seq.); G. Sander, "Gesundheitsschutz in der WTO - eine neue Bedeutung des Codex Alimentarius im Lebensmittelrecht?", ZEuS 3 (2000), 335 et seq.; J. Pauwelyn, "The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures as applied in the first three SPS disputes. EC - Hormones, Australia - Salmon and Japan - Varietals",/o«rnal of International Economic Law 2 (1999), 641 et seq. Report of the Panel on EC Measures Concerning Meat and Meat Products (Hormones) of 18 August 1997, WT/DS26/R/USA; EC and Report of the Appellate Body of 16 January 1998, WT/DS26/AB/R, WT/DS48/AB/R. A similar issue was discussed in the Appellate Body Report of 20 August 1999, WT/DS46/AB/R Brazil - Export Financing Programme for Aircraft. The Appellate Body held that the Brazilian export finance regime for Brazilian aircraft violated article 3.1. lit.(a) Agreement on Subsidies and Countervailing Measures (SCMA) because it was "used to secure a material

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article 3.1 SPS bound the European Union88 to follow the standard set forth by the Codex Alimentarius.89 That standard was set up by the CAC, a common body of the FAO and the WHO.90 Its main aim is standardization, in particular the implementation of the Joint FAO/ WHO Food Standards Programme, article 1 Statute. Things become problematic if one looks more closely at the operative level of the CAC and its rule-making practice.91 Just two elements will be investigated: the importance of private actors in establishing a standard, and the mechanisms for safeguarding national regulatory autonomy.92 The CAC's substantive work is done by various committees, which prepare draft standards. A committee is usually hosted by a member country, which provides its chairperson and is chiefly responsible for the cost of the committee's maintenance and its administration.93 The host country thus obtains substantial influence.94 In the case

88

89

90

91

92

93

advantage in the field of export credit terms" which, according to the definition under lit.(k) of the illustrative list in Annex I SCMA, is a prohibited export subsidy. As a possible benchmark for the definition of a material advantage the Appellate Body referred to the "Commercial Interest Reference Rate" developed by a sub-body of the OECD, even though this standard appears nowhere in the SCMA and even though the defendant, Brazil, was not a member of the OECD and had therefore not participated in the development of this standard (para. 181). The Union acts in the WTO under the legal personality of the European Communities, in detail, A. v. Bogdandy, "Organisational Proliferation and Centralisation under the Treaty on European Union", in: Blokker/ Schermers, see note 17,177. WT/DS26/R/USA, see note 87, paras 8.59, 8.69; Appellate Body Report of 16 January 1998, WT/DS26/AB/R, WT/DS48/AB/R, see note 87, para. 162 etseq. Established through the llth Sess. of the Conference of FAO in 1961 and the 16th World Health Assembly in 1963 during which both passed resolutions to establish the Codex Alimentarius Commission. The two bodies also adopted the Statutes and Rules of Procedure for the Commission; http://www.fao.org/docrep/w9114e/W9114e04.htm Article 7 CAC-Statute; article IX No. 5 Rules of Procedure http://www.fao.org/WAICENT/FAOINFO/ECONOMIC/ESN/codex/ Manual/statutes.htm For an extensive analysis see T. Makatsch, Gesundheitsschutz und Lebensmittelhandel im Recbt der WTO, 2001 (forthcoming). Rule 11.3 Rules of Procedure of the Codex Alimentarius Commisssion (Procedural Manual, llth edition, FAO and WHO, 2000); No. 4 and 5 Guidelines for Codex-committees.


637

concerning the standards for hormones (hereafter "Hormone Standardization Case"), the Codex Committee on Residues of Veterinary Drugs in Food (CCRVDF) was of crucial importance; the host was the United States, whose industry had the keenest interest in those standards. The regular procedure to establish a standard has eight steps.95 Two elements come to the fore: the Secretariat arranges for the preparation of a proposed draft standard, and the decision to adopt a standard can be taken through majority voting. In the process of creating a standard, any member can send a delegate. The delegate may bring with him any person he chooses. The U.S. delegate often brings representatives of important American food enterprises and lobbyists with him.96 Some states have even appointed a representative of their national food industry as their delegate to the CAC.97 A thorough empirical study revealed an impressive presence of private enterprises in the Codex-committees and a negligible one of consumer interest groups.98 The Hormone Standardization Case is a good example of how this procedure can be used in order to favour special interests. In 1991, the CAC failed to adopt a standard for hormones because some members felt that the proposed standard did not meet the needs of precaution, consumer protection and moral arguments.99 It was then decided within the CAC — against the will of the Member States of the EC — that "the food standards [...] shall be based on the principle of sound scien-

94

D. Eckert, "Zur Hannonisierung des Lebensmittelrechts, 1. Teil: Bilanz der letzten 10 Jahre", Zeitschrift fur das gesamte Lebensmittelreckt 1984, 1 et

95

For a detailed description see the CAC's presentation of its procedure in: Procedures for the Elaboration of Codex Standards and Related Texts, http://www.fao.org/WAICENT/FAOINFO/ECONOMIC/ESN/codex/ Procedl.htm "Weniger Lebensmittelschutz durch GATT", Siiddeutsche Zeitung of 24 June 1993, 2. G. Sander, "Gesundheitsschutz in der WTO - eine neue Bedeutung des Codex Alimentarius im Lebensmittelrecht?", ZEuS 3 (2000), 335 et seq., (345). N. Avery/ M. Drake/ T. Lang, Internationale Hannonisierung lebensmittelrechtUcber Normen, epd-Entwicklungspotitik: MateriaUen 11/93, Frankfurt 1993, 13, 23; 49 per cent of the official delegates of the U.S. during the 19th Sess. of the CAC were representatives of the national food industry. In the Swiss delegation this portion was even 61 per cent. ALINORM 91/40, No. 154 et seq. Ritter, see note 86, 137.

96

97

98

99

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tific analysis and evidence".100 Therefore, aspects such as precaution, moral aspects and consumer protection have had a very difficult standing ever since.101 The new standards on hormones favourable to the U.S. meat industry were subsequently enacted by 33 against 29 votes and 7 abstentions.102 This was a victory of the U.S. meat industry and the imposition of its standard. The behaviour of the U.S. delegate can be easily explained by the theory of agency capture: often a department identifies itself with the interests of the respective group.103 Certainly, the phenomenon of agency capture also exists at the national level. However, in national politics (and supranational politics as well, although in a different form), there are procedural safeguards in order to transform an important standard into binding law: either a parliamentary statute or a governmental (and not simply a ministerial) regulation is required.104 Since a governmental regulation generally entails the participation of the whole cabinet, the interests considered are broader when only one ministry is involved.105 Moreover, it is telling that the Amsterdam Treaty explicitly shifted this regulatory field from article 37 EC to article 152. 4 b EC, thereby subjecting it to parliamentary co-decision. One might argue that the Hormone Standardization Case is special. Perhaps, yet there is another structural problem which stems directly from the deficient political process within the WTO. The incorporation of a standard into national and supranational law is embedded in substantive and procedural requirements and safeguards that are wanting in WTO law. First, Community legislation under the new approach sets out far more precise requirements for standards.106 Second, and more important in our context, Community legislation allows the political organs to intervene rapidly. For example, in the Directive on the Hy100

101 102 103

104

105 106

Codex Alimentarius Commission, Report of the 21st Sess. of the Joint FAO/WHO Codex Alimentarius Commission 61 app. (1995), ALINORM 95/8,3. Ritter, see note 86,137; Sander, see note 97, 352. Hilf/ Eggers, see note 86,560. K. v. Beyme, Der Gesetzgeber: Der Bundestag als Entscheidungszentrum, 1997,148 et seq.; Schermers/ Blokker, see note 4, para. 558. E. Denninger, Verfassungsrechtlicbe Anforderungen an die Normsetzung im Umwelt-und Technikrecht, 1990,122 et seq. In detail v. Bogdandy, see note 39,166 et seq., 385 et seq. See, for example, Appendix I to Directive 98/73/EC Machines O. J. 1998, L 207/1.

v. Bogdandy, Lw La an d PcoitilPo s ni th eWT O TO

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giene of Foodstuffs article 13 stipulates that "amendments to references to international standards, such as those of the Codex Alimentarius [...] may be adopted in accordance with the procedure laid down in Article 14» 107 The procedure under article 14 is dominated by the Commission of the European Union; swift action is therefore possible. An effective political organ controls the incorporation of standards. None of this obtains under the procedures of the WTO. At a first glance, these deficiencies appear of little importance because the standards are non-binding and thus wholly within the member's discretion to adopt them or not.108 At this point, however, WTO law comes into play. Article 3.1 SPS requires members to "base their sanitary or phytosanitary measures on international standards". This provision can be understood as transforming those standards into binding law. Such was the interpretation given by the panel. It was claimed that article 3.1 SPS imposes a general obligation on the members to use international standards.109 According to the panel, even though international standards are not, in their own right, binding, they become binding by means of article 3.1 SPS,110 so that any inconsistency with the international standard in question is inconsistent with article 3.1 SPS and can only be justified under article 3.3 SPS and the strict requirements of article 5 SPS.111 The panel stated that the party imposing the sanitary measure also therefore bears the burden of justifying the exception.112 This understanding of the Codex standards is in accordance with the CAC's.113 The panel decision therefore confirmed what the critics had assumed: that the WTO transforms rules, which — given the process of their formation — are one-sided in favour of particular industrial interests, into binding law. This increase of the Codex's standards provoked severe criticism even before the appeal, the arguments coming from a civil rights and democratic perspective.114 The Appellate Body's re-

107

93/43/EEC, O. J. 1993, L 175/1. In detail for the forms of acceptance, ALINORM 95/7,2 et seq., 6 et seq. 109 WT/DS26/R/USA, see note 87, para 8.44; 8.86. 108

110 111 112

Ibid., para. 8.44. Ibid., para. 8.83. Ibid., para. 8.87.

113

CAC Document of 24 May 1995, ALINORM 95/7, Particle 1 (Revised), 6.

114

Hilf/ Eggers, see note 86, 565; Sander, see note 97, 366; Ritter, see note 86, 135.

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sponse to these issues was farsighted, revising the Panel report on the critical issues and thus assuaging the critics. The Appellate Body began by reversing the panel's finding that the term "shall base (...) on" (article 3.1 SPS) was identical in meaning to "conform to" (article 3.2 SPS) and thereby vested international standards with a general obligatory force and effect. The Appellate Body reasoned as follows.115 Article 3.1 SPS does not impose an obligation to use international standards for SPS measures. In particular, the preamble to the SPS Agreement indicates that the goal of harmonization is to be realized in the future.116 It cannot be assumed that sovereign states wanted to legally bind themselves to the existing standards in the here and now. Such a far-reaching interpretation would require far more specific treaty language than found in article 3.1 SPS.117 The introduction of higher standards is not, in itself, inconsistent with article 3.1 SPS. Rather, a member has the right under article 3.3 SPS autonomously to establish a higher level of protection.118 This is an autonomous right and does not represent an "exception" to a "general obligation" imposed by article 3.1 SPS. It is, however, conditioned upon a scientific justification under article 5.1 SPS.119 With its reversal of the panel report, the Appellate Body was able to take the above-mentioned problems concerning democracy and transparency in the CAC's procedures into account. Its interpretation is more respectful to the members' freedom of action, without, however, losing sight of world trade law's objective of addressing protectionist measures.120 One must conclude that in its current shape, international standardization can substitute for the lack of proper rule-making within the WTO only to a very limited extent. The structural differences between the various organizations with respect to objectives, instruments, procedures, voting requirements and membership are simply too important. The incorporation of such standards in the EU Common Market program cannot serve as a model for the WTO given the outlined legal, procedural and institutional differences. The incorporation of international standards should not be understood as an instrument to harmo115 WT/DS26/AB/R; WT/DS48/AB/R, see note 87, para. 163 et seq. 116 Ibid., para. 165. 117 Ibid., para. 165. 118 Ibid., para. 172. 119 Ibid., para. 173. 120 Eggers, see note 86,150 et seq.; Sander, see note 97,370.


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nize the respective parts of the domestic legal orders. Rather, their proper role is simply to develop a common ground that helps in framing of the domestic orders.121 bb. Scientific Evidence The laws of nature are universal and indisputable. Therefore their "incorporation" into WTO law appears to be an obvious way to limit members' discretion. Scientific evidence could therefore be used to concretize vague normative stipulations by establishing minimum requirements.122 Science appears to have become the third pillar of WTO law standing along side the Most Favored Nation Principle and the Principle of Non-Discrimination. Recourse to the laws of nature could enrich the law of the WTO. Several provisions can be understood in this way. The Hormones Case provides a telling example of the limits of such "incorporation". The proper use of science as a source that enriches WTO law is a core issue, in particular with respect to the SPS Agreement, and therefore has been the major battleground in the cases related to it. Article 2.2 SPS requires sanitary and phytosanitary measures introduced by the members for the protection of human, animal or plant life or health (socalled "SPS measures") to be "based on scientific principles". Article 5.1 and 5.2 SPS concretize the prohibition of unscientific protection measures by requiring a risk assessment which takes the "available scientific evidence" into account. If the scientific evidence is insufficient, article 5.7 SPS provides narrow cumulative conditions under which the measure may nevertheless be "provisionally adopted".123 WTO law thus places the members' entire domestic food and health regimes, insofar as their scopes extend to imported goods, under a "scientific reservation". The logic of these provisions is seductive. If an orientation to multilateral guidelines is not possible because either they do not exist or be121 122

123

On this in more detail below, Part III. 3. For the legal discussion on the national level cf. J. Barcelo, "Product Standards to Protect the Local Environment", Cornell Int'l L. J. 27 (1994), 755 et seq.; K.H. Ladeur, "The Integration of Scientific and Technological Expertise into the Process of Standard-Setting According to German Law", in: Joerges/ Ladeur/ Vos, see note 84, 77. On 5.7 SPS Agreement see Appellate Body Report of 22 February 1999, WT/DS76/AB/R Japan - Measures Affecting Agricultural Products, para. 86 et seq.

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cause they do not provide the desired level of protection (cf. article 3.3 SPS), then a member's measures should at least satisfy the objectivity of science and the laws of nature. Scientific evaluation in general, and "taking into account risk assessment techniques developed by the relevant international organizations" (article 5.1 SPS) in particular promises to tame unilateral protectionism. Science as a substitute for multilaterism may be the solution. The problems of this approach are obvious: the world view of the natural sciences are often one-sided and biased by the peculiarities of their own, specialized scientific community.124 The fields of risk assessment and safety necessarily involve questions of discretion and value judgments which science cannot answer. Moreover, even on their own grounds, scientific evidence is often disputed, and it is an old maxim that the "scientification" of politics leads to the politicization of science. The Appellate Body must have had these problems in mind in the Hormones Case when it overturned the panel's far-reaching interpretation concerning risk assessment. The Appellate Body found that there must be "a rational relationship between the measure and the risk assessment"125 and not a "monolithic conclusion".126 Neither must a risk assessment embody the mainstream scientific view, nor can scientific uncertainty be entirely eradicated. The Appellate Body cautiously found that whether such a rational relationship is present "is to be determined on a case-by-case basis and will depend upon particular circumstances of the case".127 Nevertheless, one cannot speak of a rational relationship if the party does not provide any relevant scientific evidence justifying its measure, as was the case for the EC according to the panel's finding of facts in the Hormones Case. The Appellate Body's interpretation of the definition of risk assessment in Australia - Salmon can be understood as concretizing this. In this case, which concerned the protection of animals, a risk assessment based on scientific evidence within the meaning of article 5.1 SPS must evaluate the likelihood of entry, establishment or spread of identified diseases according to the SPS

124

In detail J. Scott, Jean Monnet Papers 3 (1999), 24 et seq. at http://www. law.harvard.edu/programs/JeanMonner/papers/index.html - D. Wirth, . Annotation, AJ1L 92 (1998), 755 et seq., (759). 125 WT/DS26/AB/R; WT/DS48/AB/R, see note 87, para. 193. 126 Ibid., para. 194. 127 WT/DS76/AB/R, see note 123, para. 84.


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measures which might be applied.128 This interpretation was confirmed in the Japan - Agricultural Products Case. A risk assessment conforming to WTO law is therefore not given if the scientific studies brought forward do not "discuss or even refer to" the relevant measures which are to be evaluated.129 The Appellate Body thereby limits the legal impact of scientific evidence by requiring only a rational relationship between the measures and the scientific evidence brought forward, thus allowing legislative discretion with regard to the choice of scientific reference points. Nevertheless, it treats the requirement of a risk assessment within the meaning of article 5.1 SPS as fully justiciable: if the member has not made a complete evaluation of the SPS measure, a trade-restricting SPS measure cannot be justified by a mere reference to a desired level of protection or to the precautionary principle. The background for this rigorous scrutiny is clean "We note that a finding that an SPS measure is not based on an assessment of the risks to human, animal or plant life or health ... is a strong indication that this measure is not really concerned with the protection of human, animal or plant life or health but is instead a trade-restrictive measure taken in the guise of an SPS measure".130 There is, consequently, a fine line between a — from a democratic point of view unacceptable — limitation on the WTO members' room for manoeuvre, on the one hand, and the indisputable capability of scientific rationality, on the other. Science's abilities to solve problems are overburdened if one demands that it function as a substitute legislator, finding "objective solutions" to such conflicts as between health protection and open world trade. Norms of the WTO system that make reference to a scientific basis, such as arts 2.2 and 5.1 SPS, should be interpreted as concretizing the principle of non-discrimination and not as a further principle of WTO law. Discrimination can be assumed if a national measure cannot muster any scientific support that the danger or risk it addresses is real.131 Yet science cannot provide the answer to the

128

Cf. WT/DS18/AB/R, Australia Measures Affecting Importation of Salmon, partV. B., para. 10. 129 WT/DS76/AB/R, see note 123, para. 113. 130 WT/DS18/AB/R Australia - Measures Affecting Importation of Salmon, part V. C. 3., para 8. 131 This rule is nevertheless of great significance since it is probable that domestic legislation so far has only occasionally been based on scientific evi-

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question of what constitutes an (un)acceptable risk. Science can inform the legislator, but can neither substitute as a legislator nor fill the political void in the WTO. In the end, it has to be concluded that the missing legislator within the WTO cannot be replaced through "outsourcing".

4. Comparative Notes The initial thesis of this article has been confirmed: the WTO represents an enormous step towards an efficient international exercise of adjudication. This development has not, however, been paralleled with respect to legislation, resulting in a number of serious problems. In a comparative analysis, the peculiar and problematic situation under WTO law becomes even more evident. a. The Standard Situation in International Law The structural weakness of all three "branches of government" — the legislative, executive and adjudicative — remains the standard situation in international law.132 Compulsory adjudication as in the WTO remains the exception in global institutions. With respect to the ICJ, only 64 states out of 190 parties to the ICJ Statute have currently made declarations under Article 36 para. 2 ICJ Statute recognizing the compulsory jurisdiction of the ICJ.133 This finding is further emphasized if one focuses on the most influential states. Among the permanent members of the Security Council, only the United Kingdom has recognized the jurisdiction of the ICJ as compulsory.134 Similarly, only three of the G-8

132

133

134

dence in accordance with the Appellate Body's stringent interpretation of the SPS Agreement. For a broad comparative analysis see N. Blokker/ H. Schermers (eds), Proliferation of International Organizations. Legal Issues, 2001; Goldstein/ Kahler/ Keohane/ Slaughter, see note 41. See the overview on the website of the ICJ at http://www.icj-cij.org (visited 1 November 2000). The most recent declaration was made by Lesotho on 6 September 2000. Declaration of 1 January 1969. This is in notable contrast to the fact that all five Permanent Members of the Security Council always have had a judge at the ICJ, P. Malanczuk, Modern Introduction to International Law, 7th edition, 1997,284.


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states have made such declarations.135 The effectiveness of adjudication under the optional clause is further weakened by various reservations attached by states.136 Moreover, dispute settlement by the ICJ is usually only effective if specific consent to its jurisdiction for the case in question has been made. Otherwise, it is quite possible that one party will not fully cooperate in the process.137 It is even possible that a party will modify its declaration under the optional clause for the purpose of avoiding the jurisdiction of the ICJ in a specific case.138 The United States withdrew their original acceptance during the Nicaragua crisis in 1985.139 The function and impact even of compulsory adjudication under Article 36 para. 2 ICJ Statute is thus limited.140 Besides declarations under Article 36 para. 2 ICJ Statute, several hundred international treaties contain provisions for establishing the ICJ's jurisdiction. Most of these treaties are bilateral agreements, while just over a hundred are multilateral agreements.141 The most recent multilateral agreements providing for procedures for creating compulsory adjudication of the ICJ include the Convention on Biological Diversity,142 the Framework Convention on Climate Change143 and other 135

136

137

138

139

140

141

142

Besides the United Kingdom the other two are Canada, Declaration of 10 May 1994, and Japan, Declaration of 15 September 1958. On the reservations see J. Merrills, "The Optional Clause Revisited", BYIL 64 (1993), 197 et seq. M. Schroder, "IGH - Internationaler Gerichtshof", in: R. Wolfrum (ed.), Handbucb Vereinte Nationen, 2nd edition, 1991, 321 et seq., para. 13; S. Rosenne, The World Court, 1989,92. See the Fisheries Case (Spain v. Canada), in which Canada had modified its declaration when facing possible proceedings before the Court, in detail K. Oellers-Frahm, "Probleme und Grenzen der obligatorischen internationalen Gerichtsbarkeit", AVR 27 (1989), 443 et seq. See U.S. Department of State, Letter and Statement Concerning Termination of Acceptance of ICJ Compulsory Jurisdiction of 7 October 1985, ILM 24 (1985), 1742 et seq.; A. D'Amato, "Modifying U.S. Acceptance of the Compulsory Jurisdiction of the World Court", AJIL 79 (1985), 385 et seq. Since 1951, 12 declarations accepting the jurisdiction of the ICJ as compulsory have been withdrawn. R. Jennings, "The International Court of Justice after Fifty Years", AJIL 89 (1995), 493 et seq., (495). See the list of treaties on the homepage of the ICJ, which is based on the UN Treaty Series, http://www.icj.cij.org/icjwww/ibasicdocuments/ ibasictext/ibasictreatiesandotherdocs.htm (visited 1 November 2000). Convention on Biological Diversity of 5 June 1992, ILM 31 (1992) 818 et seq., article 27 para. 3 lit.(b).

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environmental regimes.144 Other prominent examples of treaties which bring disputes to the ICJ include the optional protocol to the Vienna Convention on Consular Relations, which provided jurisdiction of the ICJ in the death-penalty cases brought by Paraguay and Germany against the United States,145 the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, on which Libya relied in the Lockerbie Case against the United Kingdom and the United States,146 and the Convention on the Prevention and Punishment of the Crime of Genocide, which Yugoslavia invoked during the Kosovo crisis.147 Moreover, in order to fully evaluate the difference, the readiness to use these procedures has to be borne in mind: the number of cases brought before the WTO is ten times higher than the number of cases referred to the ICJ.148 This further underlines the fact that the ICJ is mainly used as an adjudicator in various regulatory regimes where the role of judicial dispute settlement remains marginal. In view of the developments in the WTO as well as in the United Nations Convention on the Law of the Sea and the various international human rights regimes, one can conclude that there is a tendency to create regime-

143

144

145

146

147

148

United Nations Framework Convention on Climate Change of 9 May 1992, ILM 31 (1992), 849 et seq., article 14 para. 2 lit.(a). Convention on Environmental Impact Assessment in a Transboundary Context of 25 February 1991, ILM 30 (1991), 802 et seq., article 15 para. 2; Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on further Reduction of Sulphur Emissions of 14 June 1994, ILM 33 (1994), 1542 et seq., article 9. Vienna Convention on Consular Relations of 24 April 1963, UNTS Vol. 596 No. 8638; Optional Protocol article I; see the Order of 9 April 1998, Paraguay v. United States of America (Case discontinued by order of 10 November 1998), and the order of 3 March 1999, Germany v. United States (LaGrand). Montreal Convention of 23 September 1971 for the Suppression of Unlawful Acts against the Safety of Civil Aviation, ILM 10 (1971), 1151 et seq.; Case Libya v. United Kingdom/ United States of America, Judgments of 27 February 1998. Convention on the Prevention and Punishment of the Crime of Genocide, A/RES/260 A (III) of 9 December 1948, article IX; Yugoslavia had brought ten NATO countries before the ICJ on these grounds. The proceedings against Spain and the United States were removed from the docket, as Spain and the United States had made reservations with respect to article IX and the ICJ thus lacked jurisdiction. Calculation based on the years 1995-2000.


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specific adjudicative organs when dispute settlement becomes a central feature. b. Law and Politics under the EC-Treaty The advocates of a decisive and courageous interpretation of substantive WTO law might point to the ECJ's forceful adjudication, in particular the well developed and detailed jurisprudence concerning the basic freedoms of the EC-Treaty (arts 28, 29 etc. EC). That body of jurisprudence, often with deregulatory effect, has been of crucial importance for European integration and continues to be the cornerstone of the Common Market, the most impressive practical achievement of European integration so far. Within this context, the ECJ has adjudicated on such sensitive issues as the admissibility of national standards for food safety and environmental protection. It appears as a natural example that the WTO should emulate. In particular my argument that adjudication needs an accompanying political process appears to be refuted, since the Member States can usually only affect primary law pursuant to the cumbersome procedure of article 48 EU. The parallels appear to find further substance in the fact that the relevant provisions in the ECTreaty were framed on the basis of the relevant GATT provisions. However, there are numerous reasons why the jurisprudence of the ECJ cannot serve as a model. First, the objectives of European treaties are different to the WTO treaties: whereas the first aim at integration, this objective is not mentioned in the second. Furthermore, the European societies united within the European Union are far more homogeneous than the societies participating in the WTO; that — relative — homogeneity is an important factor for adjudication.149 A further difference — the one that matters most in this context — is the crucial role that the relevant jurisprudence gives to the supranational political process: the whole jurisprudence on the four freedoms is based on the premise that the political process can correct judicial decisions, a possibility the WTO lacks. Since this aspect, crucial to our topic, is little studied, it shall be explored in greater detail. The ECJ has not used the basic freedoms to act as a constitutional court that guides and limits the supranational political process. The basic freedoms do not provide — with the exception of free movement of

149

In detail A. v. Bogdandy, "The EU as a human rights organization?", CML Rev. 37 (2000), 1307 et seq.

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workers and their access to employment150 — fundamental rights.151 An often overlooked reservation the ECJ makes, builds the basis for the most important difference between its jurisprudence on human rights and that of the basic freedoms: the Court applies the basic freedoms only if there is no secondary instrument.152 This signifies in substance that the Council can regulate the issue differently from the way it was decided by the Court on the basis of the basic freedom. Any decision of the Court that a national obstacle is illegal because it violates a basic freedom is not written in stone because it can be overturned through a later regulation or directive. Therefore — and this is a crucial difference to a human rights decision either by the ECJ or the ECHR or a national constitutional court — a decision on the basis of the four freedoms does not put the issue out of the reach of the normal political process.153 The balancing of interests is, in the end, left to the political process of the Union. The relevant decision is a settlement of the issue that can be overturned or corrected by secondary law. The ECJ's line of jurisprudence can be interpreted as follows. The ECJ clearly sees the numerous disadvantages in guiding the economic and social process through constitutional adjudication which — given the rigidity of the procedure under article 48 EU — is most difficult to reform. This line of argument also explains why the basic freedoms are not applied with respect to Council legislation unless the basic tenets of the Common Market are jeopardized through Community acts: only flagrant violations of the principles of the Common Market are prohib-

150

151

152

153

Case C-415/93, Bosman, ECR14921, para. 129; Case C-416/96, El-Yassini, ECR 1999,11209, para. 45. This understanding is confirmed by the Charter. In Consideration 3 it distinguishes clearly between common values and human rights, on the one hand, and the freedoms, on the other. Furthermore, no freedom except the freedom of movement and residence (article 44) is mentioned in the Charter. Case 120/78, Cassis de Dijon, ECR 1979, 649, 662, para. 8; Case C-51/94, Sauce Hollandaise, ECR 1995,1 3599,3627, para. 29; Case C-470/93, Mars, ECR 1995,11923,1940, para. 12; this formula does not appear in all judgments, see, e.g., Case C-412/93, Leclerc, ECR 1995, 209, 216, para. 18 et seq. The same is true for the two other important bodies of primary law, namely competition law and gender discrimination law: they do not affect the discretion of the Union's legislature.


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ited, above all discrimination,154 as are — of course — violations of competences, procedures, fundamental rights and general principles. The forceful adjudication of the ECJ on the basic freedoms reflects the fact that there is — at least in principle — a working legislator who can correct the consequences of a judgment through a political process which is desired by the EC Treaty. Within the WTO, however, this legislator is missing. Therefore, the supranational law of the EU cannot serve as a model for the WTO.

5. Conclusions The comparison between WTO law and other international or supranational treaties which set up compulsory adjudicative organs gives further account of the specificity of the WTO.155 In most cases, such organs adjudicate on the basis of specific and limited obligations with little impact on the domestic legislative and regulatory process or on the basis of international human rights obligations, which have a special standing.156 WTO law is similar to other international instruments insofar as it is a body of law that is difficult to change. This general feature of international law is, however, especially problematic with respect to WTO law because it addresses a dynamic, rapidly changing field. The WTO does not set up politico-legislative mechanisms to 154

155

156

Cases 80 and 81/77, Ramel, ECR 1978, 927, para. 37; Case C-47/90, Etablissements Delhaize freres, ECR 1992, 1-3669, para. 44; Case C-350/97, Monsees, ECR 1999,1 - 2921, para. 24; M. Poiares Maduro, We, the court The European Court of Justice and the European Economic Constitution, 1998, 76 et seq., (78); a tighter control is exercised with respect to movement of workers, given its human rights dimension, Case 41/84, Pinna, ECR 1986,17, para. 21. This is also the evidence from Goldstein/ Kahler/ Keohane/ Slaughter, see note 41, 385 et seq., (389, 398), analyzing a number of international agreements under the categories of "obligation, precision, and delegation". The international law of human rights appears to have taken a separate development since the total submission of politics to essential human rights standards has become an established feature, A. Cassese, I diritti umani nel tnondo contemporaneo, 4th edition 1999,5 et seq., 85 et seq.; C. Tomuschat, "Das Straf gesetzbuch der Verbrechen gegen den Frieden und die Sicherheit der Menschheit", EuGRZ 25 (1998), 1 et seq.; A. Zimmermann, "The Creation of a Permanent International Criminal Court", Max Planck UNYB 2 (1998), 169 et seq.

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tackle this dynamism, for sound reasons. For example, there are still no international procedures which guarantee sufficient democratic legitimacy at the global level.157 Since the Member States remain the crucial actors, far more than at the EU level, it is only consequent that the proper form of law-making for the WTO remains the treaty amendment procedure. As a consequence we have a body of law which is linked to the political process only through extremely cumbersome procedures. Once this body of rules has been ratified, corrections by the political process are very difficult.158 Changes in the will of the majority of citizens within a state (or the European Union) will hardly ever lead to changes in the relevant WTO law. The possibility of withdrawal pursuant to article XV WTO will generally be prohibitively expensive.159 In traditional international law, a possible inroad of national politics was noncompliance with international law. This inroad has become severely restricted owing to the W'l'O's compulsory jurisdiction.160 The relationship between law and politics in the WTO calls for an interpretation of WTO law that exhibits a deference to the sovereignty of the members. Or does it? Perhaps this straitjacket to politics in general and national politics in particular is a great achievement.

157

158

159

160

On the relationship to Civil Society see J. Scholte/ R. O'Brien/ M. Williams, "The WTO and Civil Society", JWT 33 (1999), 107 et seq.; in more general terms D. Bodansky, "The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?", AJIL 93 (1999), 596 et seq. Some scholars assume that for that reason the most important processes of forming new law have moved from the traditional institutions to societal actors, Teubner, see note 7, 437; see also K. Ipsen, Volkerrecht, 4th edition, 1999, § 3, paras 29,30. It is telling that only the U.S. - the most influential member of the WTO is considering withdrawal, Abbott/ Snidal, see note 41,438 et seq. The substantive debate today is whether a WTO member is free to choose between fulfilling the recommendations of a dispute settlement report and thus being obliged to adapt its internal order - or mere compensation, article 22 DSU. The opinion that a member must adapt appears more convincing, Jackson, see note 34, 85 et seq.; for the opposite view J. Sack, "Von der Geschlossenheit und den Spannungsfeldern in einer Weltordnung des Rechts", EttZW 8 (1997), 650 et seq., (688). Also the debate on direct applicability of WTO law can be understood in this light.


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III. Strategies to Cope with the Missing Legislator 1. Three Approaches: Liberalism, International Governance and Coordinated Interdependence There is a possibility of various and even contradictory interpretations of important WTO provisions, as proven by regular divergences between the panels and the Appellate Body. Given this scope of disagreement, general understandings of the nature and objective of WTO law influence the meaning attributed to disputed provisions in many instances. Drawing on similar discussions on the European economic constitution, three ideal types of understandings161 of transnational trade law can be distinguished: the model of economic liberalism, the federal or governance model, and the coordinated interdependence model162 The last one is, as shall be seen, the most convincing for responding to the specific relationship between law and politics in the WTO. On this basis, some interpretative proposals will be tabled. It will also be shown that the coordinated interdependence model best explains some of the reports of the adjudicative organs and scholarly production. The first conception (the liberal model) interprets WTO law as an instrument to substantially restrain the grasp of domestic politics on the economy and — in different variants — to increase international competition and deregulation. What this article has so far considered to be a substantial problem of the WTO — limiting the (domestic) political interference in the economic propcess — is, from this perspective, a crucial asset. The liberal model represents the most elaborate position in international trade law, and corresponds to the dominant positions in international trade theory.163 It comes in various alternatives.

161

162

163

M. Weber, "Die 'ObjektivitaV sozialwissenschaftlicher Erkenntnis", in: id., Gesammelte Aufsatze zttr Wissenschaftslehre, 7th edition., 1988,146 et seq., 190 et seq.; for its usefulness in legal scholarship cf. E. Grabitz, Gemeinschaftsrecht bricht nationales Recbt, 1966,28 et seq. This part has been inspired by Maduro, see note 154,103 et seq.; see also A. v. Bogdandy, "A Bird's Eye View on the Science of European Law", ELJ 6 (2000), 208 et seq., (224 et seq.), (235 et seq.) The Economist, "World Trade Survey", 22 September 1990, 5 et seq.; The Economist, "A Survey of World Trade", 3 October 1998, 4 et seq.; B. S. Frey, Internationale Politische Okonomie, 1985, 12 et seq.; H. Glismann/

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John Jackson is the best known, although cautious representative of the traditional variant. Albeit sometimes ambiguous, he usually presents WTO law in the liberal light: "The basic purpose of GATT is to constrain governments from imposing or continuing a variety of measures that restrain or distort international trade".164 The basic rational comes from economic theory on which he relies when he cites Coase's thesis that "Economic policy consists of choosing those legal rules, procedures and administrative structures which will maximize the value of production".165 WTO law is seen as an instrument to limit intervention in the markets. Settled insights from mainstream economic theory provide the main interpretative horizon with few intermediate steps. A theoretically more developed variant of the liberal model is presented by private law scholars who consider WTO law as instrumental to rolling back regulatory public law interfering in the private law domain of shaping economic relations. Also from this point of view states are an "interference factor" (Storfaktor) in international trade.166 The private law approach sees WTO law as instrumental in fostering the "global private law society" (globale Privatgesellschafi). According to this model, social integration largely occurs through the triad of contractual freedom, competition and property.167 The global private law society is formed through transnational private law relationships, and is conceptually distinguished from the discrete political communities with

164

165

166

167

E.J. Horn/ S. Nehring/ R. Vaubel, Weltwirtschaftslehre, Vol. I, 4th edition, 1992,72 et seq. Jackson, see note 34,22-23, similarly, ibid., 102: ..."to prevent member nation states from abusing their national powers when those would damage the operation of world markets". Sometimes, however, he presents the objective of GATT as far more limited, being simply "to prevent arbitrary and unfair decisions or policies from undermining the other rules of GAIT"; ibid., 23; id., The World Trading System, 1989, 305; this latter position corresponds to the understanding proposed in this article. Jackson, ibid., 102, quoting R. Coase in his authority as a Nobel Prize winner. W. Fikentscher, Wirtschaftsrecbt, Vol. I, 1983, 255. Fikentscher's great monograph interprets the whole of international economic law as parts of an emerging world competition order, ibid., 204 et seq. E.J. Mestmacker, "Der Kampf urns Recht in der offenen Gesellschaft", Rechtstheorie 1989,273; id., "Die Wiederkehr der biirgerlichen Gesellschaft und ihres Rechts", Recbtshistorisches Journal 10 (1991), 177; for a criticism see K. Giinther, "Ohne weiteres und ganz automatisch? Zur Wiederentdeckung der "Privatrechtsgesellschaft", Rechtsbistorisches Journal 11 (1992), 473.


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their different regulatory schemes which interfere with the private law relations. According to this understanding, which reads WTO law as the basis of a global economic constitution, the WTO substantive law obliges members to follow an liberal economic policy.168 Securing this private law society endows transnational law with a purpose, form and legitimacy. On this reading, WTO law is to allow only those public interventions which maintain the framework of an efficient market and of the global private law society.169 This does not completely exclude regulatory intervention for social or environmental protection, but it requires doing so by the means least detrimental to the operation of markets. From a public law perspective, the most important contribution is that of Ernst-Ulrich Petersmann's constitutional reading of the WTO. On this reading, WTO law respects the principle of the separation of powers and is based on an adequate relationship between law and politics. According to him, the critique developed in this article is therefore misguided. His conception has some strong foundations. It is beyond dispute that there is a specific relationship between politics and constitutional law. There is also agreement that constitutional law should stand beyond the "normal" political process. In fact, there is a difference between the legislator's ability to change "normal" law and its much more limited ability to alter constitutional law. Constitutional law guides and channels the "normal" political process and provides the core mechanism to convincingly stabilize the separation and interaction of law and politics in contemporary societies.170 Even though constitutional rules are also subject to constitutional politics, it is the essence of the separation of powers doctrine that the constitutional political process be much more burdensome, requiring specific majorities and/or procedures.171 If WTO law had a constitutional function, its remoteness

168 For a thorough theoretical review cf. Gerber, see note 40,232 et seq. 169 Drexl, see note 7, 841, 846; for the theoretical underpinning cf. C. Goodhart, "Economics and the Law: Too Much One-Way Traffic?", Modern Law Review 60 (1997), 1 et seq., (17 et seq.). 170 For a theoretical account N. Luhmann, Das Recbt der Gesellschaft, 1995, 407 et seq. 171 De Vergottini, see note 2,206 et seq., 234 et seq.

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from the normal political process would be in accordance with established constitutional principles and political thinking.172 In order to attribute to the WTO law a constitutional function, Petersmann considers — in a Kantian tradition173 — substantive WTO law as functional to realizing the basic individual freedom of choice of entrepreneurs and consumers.174 The main thrust of this argument so far has been to interpret WTO provisions as giving rights to individuals against domestic legislation and other acts of public authorities.175 Yet Petersmann also assumes that the WTO is an integration agreement with the internal European economic constitution — understood as a deregulatory constitution — as a model.176 The basic argument of the liberal model in all its different variants is economic rationality, which asserts that there are optimal and suboptimal instruments to correct market failures.177 The protection of the operation of the economic process in its wealth-creating function against interfering political majorities using sub-optimal instruments is

172

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For further uses of this category on the international level cf. B. Fafibender, UN Security Council Reform and the Right of Veto. A Constitutional Perspective, 1998,25 et seq. E.U. Petersmann, "The WTO Constitution and Human Rights", JIEL 3 (2000), 19 et seq., (24). The leading work is E.U. Petersmann, Constitutional Functions and Constitutional Problems of International Economic Law, 1991; in particular 210 et seq.; furthermore H. Hauser, "Domestic Policy Foundation and Domestic Policy Function on International Trade Rules", Aussenwirtschaft 41 (1986), 171 et seq.; F. Roessler, "Competition and Trade Politics", Aussenwirtschaft 41 (1986), 467 et seq.; J. Tumlir, "International Economic Order and Democratic Constitutionalism", Zeitschrift der ordoliheralen Schule (ORDOJ 34 (1983), 71 et seq. The question of the direct effect of WTO law is the subject of the richest and most controversial discussion in international trade law; its adequate presentation is not the object of this contribution; see Advocate General A. Saggio, Conclusions of 25. February 1999 in Case C-149/96, Portugal v. Council, para. 14 et seq., para. 24; W. Meng, "Gedanken zur Frage unmittelbarer Anwendung von WTO-Recht in der EG", in: U. Beyerlin/ M. Bothe/ R. Hofmann/ E.U. Petersmann, Festschrift fiir R. Bernhardt, 1995, 1063 et seq., (1064); see also references in note 5. Petersmann, see note 81,189. In detail Meng, see note 175,1080 et seq.; E.U. Petersmann, "International Trade Order and International Trade Law", in: T. Oppermann/ E.U. Petersmann (eds), Reforming the International Economic Order, 1997.


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an old demand of liberal economic theory.178 This school of thought gives a broad scope to most obligations under the WTO, while granting only a narrow scope to the exceptions. They thus limit regulatory and legislative intervention by the domestic political systems. On a radical reading, WTO law shall help to bring to an end a historic interplay whose main feature has been the close grip of politics on the economy through law. The restriction of public interference and even deregulation at the domestic level would be the consequence, in particular since WTO requires not only avoiding a concrete collision (the standard requirement under international law), but also adapting the domestic legal order, article XVI:4 WTO. In contrast to the EU, a re-regulation at the global level would not take place in view of the cumbersome WTO political process. Law's function as a political instrument to forward political aims in the sphere of economics would therefore atrophy. At the same time, it would re-establish its more basic functions of providing a stabilization of expectations and a forum for conflict resolution. Regulatory competition is, in this light, a WTO objective.179 This is an impressive model. Yet, ultimately, I do not find it convincing.180 To the extent that it draws on economic theory one might question to what extent that science's models are capable of grasping the real world where "people live and work and die".181 Also the assertion that protectionist lobbies are usually stronger than free trade lobbies182 is not beyond doubt.183 The normative quality appears equally 178

M. Friedman, Kapitalismus undFreiheit, 1962,11; see also Mestmacker, see note 167; this vision is shared by powerful economic actors, see the chairman of Deutsche Bank, R. Breuer, "Offene Burgergesellschaft in der globalisierten Weltwirtschaft", Frankfurter Allgemeine Zeitung of 4 January 1999,9. 179 For a discussion of costs and benefits cf. E.U. Petersmann, "International Competition for Governments and for Private Business", JWT 30 (1996), 5 et seq., (12,15 et seq.) 180 In detail Langer, see note 10, 18 et seq.; R. Howse/ K. Nicolaidis, "Legitimacy and Global Governance: Why Constitutionalizing the WTO is a Step Too Far", http://www.ksg.harvard.edu/cbg/trade/howse.htm 181 WT/DS26/AB/R, WT/DS48/AB/R, see note 87, para. 187; for the relationship between internal economic policies and international trade law cf. A. v. Bogdandy/ M. Nettesheim, "Access to the Internal Market. The System of the European Community's Legal Instruments", World Competition 17 (1993), 27 et seq. 182 Petersmann, see note 174,96 et seq. 183 Goldstein/ Martin, see note 32, 609 f.

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questionable. It is not convincing to fasten the interpretation of a body of law which is hard to change to an economic theory which is — different to human rights — fiercely disputed.184 At this point, legal research should be careful: neither constitutional theory nor legal theory possess the tools to decide the involved controversies. They should, however, for the sake of the legitimacy of the body of rules they investigate, fend off attempts to seize the field in the name of a particular theory.185 Moreover, under domestic constitutional law, it is quite legitimate for a political community to opt for less wealth and less integration in the global market and give preference to other values to be realized through economically sub-optimal instruments. It is unconvincing to interpret an international treaty in a way that severely hampers the ratifying parties to do what their constitutions consider perfectly legitimate. Even if a member should deliberately and democratically decide to be a "competition state* rather than a "welfare state",186 there is no constitutional ground to assume that this choice should be "written in stone**, out of the reach of later majorities. It is also telling that WTO law does not provide any hint that its provisions, even the most central ones, should be considered as international human rights. In fact, human rights is a simply non-issue in WTO law. Beyond this more ideological confrontation, there are also important arguments which are more focussed on specific problems of adjudication. There are inherent limits to any adjudicative process convincingly drawing the line between political intervention and economic freedom:187 regulatory problems can only exceptionally be settled through litigation. In general, adjudicative organs lack the expertise for such policies; their information is dependent on those who participate in the adjudicative process and issues may be decided without hearing affected interests which do not participate. The total costs of adjudica184

185

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In detail D. Irwin, Against the Tide: An Intellectual History of Free Trade, 1996, 180 et seq.; E. Hobsbawm, Das Zeitalter der Extreme, 1995, 703; C. Lofdahl, "On the Environmental Externalities of Global Trade", International Political Science Review 19 (1998), 339 et seq., (351); P. Perkins, "Sustainable Trade", in: R. Keil/ L. Fawcett (eds), Political Ecology, 1998, 46, 51; see also the references in note 7. As the economist Goodhart, see note 169, 2, puts it: "Economics has become an increasingly and unashamedly imperialist social science in recent decades. And you in the law provide one of our finest colonies." On this distinction Altvater/ Mahnkopf, see note 7, 45, 63 et seq., 133 et seq., 219 et seq. In detail Maduro, see note 154, 59 et seq.


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tive procedures are usually far higher than those of administrative procedures.188 All these considerations are confirmed by the ECJ's approach. As set out above,189 an analysis of the ECJ's jurisprudence on the basic freedoms discourages an interpretation of WTO law that aims at negative integration and deregulation. The ECJ's jurisprudence is based on the premise that legislative correction is possible at the supranational level. That possibility does not obtain within the WTO. The second model, here called the federal or governance model, aims to complement the international legal regimes with more policy functions. It comes in different variants: one variant calls for federal elements, another variant proposes still vaguely defined forms of international governance.,190 The federal understanding aims to reproduce the relationship between law and politics of more developed political communities at the transnational level. There are those who argue in favour of a global federation.191 Those who — more realistically — propose that the WTO develops similar to the European Union, are more numerous in trade law.192 This position is not necessarily in opposition to the first reading; new forms of international policy-making can be integrated into the liberal model's understanding.193 The very idea is that the political process within the WTO should be organized in such a way that necessary legislation can be enacted on a global level. Roessler's proposed interpretation of article XXV GATT 1947 provides an example.194 However, given the restricted possibilities of the WTO's

188 189 190

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192

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For further arguments cf. Maduro, see note 154,145 et seq. See II. 4 b above. The Report of the Commission on Global Governance, Our Global Neighbourhood, 1995, 9 et seq.; M. Ziirn, Regieren jenseits des Nationalstaates, 1998,329 et seq.; Altvater/ Mahnkopf, see note 7,397. O. Hoffe, Demokratie im Zeitalter der Globalisierung, 1999, 310 et seq.; convincing the critique by Giinther, see note 6, 232 et seq.; similarly the ideas of a cosmopolitan democracy, D. Held, "Rethinking Democracy: Globalization and Democratic Theory", in: Streek, see note 6,59. D. Messner/ F. Nuscheler, "Global Governance. Herausforderungen an der Schwelle zum 21. Jahrhundert", in: D. Senghaas (ed.), Frieden machen, 1997, 337, 351; G. Shell, "Trade Legalism and International Relation Theory", Duke Law Journal 44 (1995), 829 et seq. Petersmann has made important proposals, see e.g. see note 81, 221; as a possible model for future development Langer, see note 10, 330; Howse/ Nicolaidis, see note 180,13 et seq. See above, II. 3. a. aa.

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autonomous political procedures,195 the federal or governance model cannot inform the interpretation of the current law: the simple possibility that sometime in the future adequate policy mechanisms might develop does not permit an interpretation of current WTO law as if such mechanisms actually existed. The third understanding — termed the coordinated interdependence model — tries to find another balance between the increasingly transnational nature of the economy and the members' responsibilities under their respective constitutions.196 It considers those parts of WTO law affecting the domestic regulatory processes as merely an instrument to prevent (intentional) protectionism and to force members to take the economic interests of other members into account.197 When it comes to internal regulation, WTO law is an instrument to politically coordinate different regulatory systems, not an instrument to curtail such regulatory systems for the sake of wealth-creation or in the name of economic freedom. The coordinated interdependence model is predicated on the widespread conviction that non-discrimination is the central principle of WTO law.198 Members remain free to regulate their national economy, and neither deregulation nor regulatory competition are among the objectives of the WTO. Unlike the liberal model, in this conception WTO law has neither a domestic policy function nor constitutional function. This model corresponds best to the deficient relationship between politics and law which this article has analyzed. The following sections will flesh out some plausible responses to this situation.

195 196

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See above, II. 3. To my knowledge, those fundamentally critical of the WTO have not yet proposed a scholarly model for interpretation. Langer, see note 10, 65, et. seq.; Robert Howse, with his concept of "embedded liberalism" proposes what is, perhaps, the most elaborate position within this school of thought, cf. Howse/ Nicolaidis, see note 180; R. Howse, Democracy, Science, and Free Trade: Risk Regulation on trial at the World Trade Organization (forthcoming); R. Howse, "Eyes Wide Shut in Seattle: The Legitimacy of the World Trade Organization1', in: Heiskanen and Coicaud (eds), The Legitimacy of International Institutions, 2001, forthcoming United Nations University Press-; on related works quoted in this article, see notes 86,180. Ibid.


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2. The Objectives of WTO Law The proposed reading of WTO law is based on understanding its objectives as being rather limited. It collides with other conceptions which assume that the WTO aims at free trade199 or even market integration.200 Yet "free trade" and "market integration" do not appear anywhere as a WTO objective. In the first recital of the preamble to the WTO Agreement, the objective is "expanding the production of and trade in goods and services". This does not determine to what extent impediments to trade should be removed. More precise information about the aims is laid down in the third recital of the WTO preamble, according to which the WTO agreements are "directed to the substantial reduction of tariffs and other barriers to trade and the elimination of discriminatory treatment in international trade relations".201 Accordingly, not even with respect to specific trade restrictive measures does WTO law aim at their elimination, but rather aims only at their "substantial reduction". Judging by its own standards laid down in article XXIV:8 GATT, WTO law does not aim at market integration and "is [...] not a free trade instrument".202 Free trade could nevertheless be the objective, if the words "substantial reduction of [...] other barriers to trade" meant that international trade flows should not be hampered. Yet the recital continues: "and to the elimination of discriminatory treatment in international trade relations". Obviously, the Contracting Parties had a narrow understanding of the term "trade barriers", as a broad understanding would include discriminatory measures. Consequently, to interpret the preamble as including free trade as an objective would render the second part of the recital meaningless, thus violating a basic rule of interpretation.203 Accordingly, such an interpretation is unconvincing. The understanding proposed here finds further support in a comparative analysis which takes article 2 EU and article 2 EC into ac-

199 200 201

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This is often assumed by critics, Altvater/ Mahnkopf, see note 7,396. Petersmann, see note 176. Similarly the 2nd recital of GATT; see also the 2nd and 4th recitals of GATS, 1st recital of TRIPs. J. Tumlir, "GATT Rules and Community Law", in: M. Hilf/ F. Jacobs/ E.U. Petersmann (eds), The European Community and GATT, 1986, 1, 7, with respect to GATT, of course. F. Bydlinski,/Kratodn? Methodenlehre, 2nd edition, 1991,444.

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count.204 These two treaties aim at economic and political integration. Article 2 EC supports far-reaching interpretations of treaty provisions which force Member States to grant market access to products originating in other Member States irrespective of questions of discrimination. However, article 2 EC aims at the establishment of a "Common Market", whereas WTO law only aims at "substantial reduction of barriers to trade" and the "elimination of discrimination". The difference is even more striking when considering the relevant normative context. Article 2 EC has been continuously enriched through complementary objectives, such as cohesion, solidarity and numerous regulatory policies; WTO law lacks this entirely. As already set out above, cohesion, solidarity and regulatory policies complement the creation of new spheres of economic freedom, at least according to current constitutional thought. The gulf separating EU law from WTO law grows even greater when looking at the preambles of the EC- and EU-Treaties, which aim at an "ever closer union of the European peoples" in order to further peace, democracy and human rights. None of this is contained in the WTO Agreement. One can assume that this omission was deliberate, because European integration — so far the most successful attempt to liberalize international trade — must have been in the minds of the negotiating parties. Moreover, the WTO lacks the political mechanisms to accompany liberalization and deregulation brought about by adjudication.205 This vision of limited ambitions and objectives of the WTO finds further support in a telling omission in the Appellate Body's reasoning: it never assumes a "WTO interest"; rather, it appears that only the members have an interest to be considered.206 Hereby the Appellate Body distances itself from understandings which aim at the creation of

204 This part draws on my analysis of arts 2 and 3 EC, v. Bogdandy, in: E. Grabitz/ M. Hilf (eds), EU-Kommentar, 2000, article 2 EC, para. 1, 19 et seq. 205 For further differences see C.D. Ehlermann/ G. Campogrande, "Rules on Services in the EEC: A Model for Negotiating World-Wide Rules?", in: E.U. Petersmann/ M. Hilf (eds), The New GATT Round of Multilateral Trade Negotiations, Vol. 5,1988,481,482 et seq. 206 See, e.g., WT/DS2/9, see note 21, 22; WT/DS58/AB/R United States - Import Prohibition of Certain Shrimp and Shrimp Products, para. 164,167.


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a new polity.207 According to the Appellate Body, WTO law only serves its members and no further interest. The assumption of a "Community interest" and a "Community common good" is, in contrast, a core concept of European Union law (e.g. article 43.1 lit. (a) EU, article 86.2 EC) and is among the most important argumentative tools in the ECJ's jurisprudence.208 This also speaks for the coordinated interdependence model. A similar result comes to the fore with respect to the question of whether harmonization of domestic rules is a WTO objective. Certainly, some parts of WTO law leave members little discretion in shaping legal instruments. For example, any WTO conform anti-dumping instrument or countervailing duties instrument will have to closely follow the detailed rules in the respective WTO agreements. The same might happen with national subsidies under the relevant WTO provisions.209 TRIPs is even more stringent. Legally TRIPs does not impose an obligation on the members to harmonize their legislation.210 Yet any implementation limited to foreigners may result in reverse discrimination against the member's own citizens: a result which is obviously politically untenable. It can therefore be expected that TRIPs will result in a substantial restructuring of the domestic legal systems: they will have to bow to some form of de facto harmonization. Given this article's analysis, the rush towards harmonization should be contained, and it is important to emphasize that harmonization does

207

The assumption of a global common good or interest is crucial for those who argue in favor of the development of global governance D. Messner/ F. Nuscheler, "Global Governance. Organisationselemente und Saulen einer Weltordnungspolirik", in: id. (eds), Wehkonferenzen und Weltberichte. Ein Wegweiser durch die Internationale Diskussion, 1996,12,21. 208 Case 26/62, van Gend & Loos, ECR 1963, 1, 24; M. Heintzen, "Die Legitimation des Europaischen Parlaments", ZEuS 3 (2000), 377 et seq., (381 et seq.). 209 For an interpretation in the sense of "coordinated interdependence" Langer, see note 10,264 et seq. 210 TRIPs only sets up certain minimum standards for the treatment of foreigners and does not address the treatment of nationals. According to article 1.3 TRIPs "Members shall accord the treatment provided for in this Agreement to the nationals of other Members". See also A. Schafers, "Normsetzung zum geistigen Eigentum in internationalen Organisationen, WIPO und WTO - ein Vergleich", Gewerblicber Recbtsscbutz und Urheberrecht Int., 1996, 763 et seq., (770 et seq.).

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not appear as an overall objective in the WTO preamble.211 This cautious analysis also finds support in the Appellate Body's reports on the SPS Agreement. This may appear surprising, as the SPS Agreement aims — according to its preamble — "to further the use of harmonized sanitary and phytosanitary measures between Members". The Appellate Body, however, interprets even this agreement in such a manner that the members retain the autonomy to regulate their national economy. The Appellate Body reversed the panel report in the Hormones Case, in which the panel held that members were obliged to adopt harmonized international standards on phytosanitary measures.212 Instead, the Appellate Body reasoned that the harmonization mentioned in the preamble of the SPS is "a goal, yet to be realized in the future"21* The Appellate Body understands the relevant SPS provision as simply preventing "the use of such measures for arbitrary and unjustified discrimination between Members"214 without hindering them to regulate their national economies according to their legitimate needs.215 This confirms the position proposed in this article: that most substantive and procedural WTO law is limited to upholding the principle of nondiscrimination. This principle should not, however, be underestimated. In addition to its economic dimension it also has an important political function.216 The perception that products are being discriminated against on the basis of nationality is offensive to political and moral sensibilities. The principle of non-discrimination thus helps to maintain at least the appearance of impartiality. Consequently it facilitates not only trade but also political stability between the trading partners. Summing up, the preamble of the WTO confirms the proposed reading that WTO law — beyond the reduction of tariffs and of trade measures of a similar nature and, of course, the elimination of discrimination — does not aim at the general elimination of barriers as envisaged in the ECJ's Cassis de Dijon doctrine or at market integration or at 211

Cf. Howse/ Mavroidis, see note 86,2 (manuscript). 212 WT/DS26/AB/R, see note 87, para. 165. 213 WT/DS26/AB/R, WT/DS48/AB/R, see note 87, para. 165, emph. in original. 214 Ibid., para. 177. 215 Similarly WT/DS58/AB/R, see note 206, para. 193; WT/DS2/9, see note 21, 30. 216 W. Culbertson, International Economic Policies, 1925,185-192; R. Gardner, Sterling-Dollar Diplomacy, 1956,16,17.


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regulatory competition or at free trade. They are not even envisaged in the recitals which set out the overall aims which the Contracting Parties want to achieve through further negotiations (article 111:2 WTO). They cannot a fortiori guide the interpretation of current WTO law. All this supports the coordinated interdependence model.

3. The Scope and Meaning of Discrimination and Exceptions A crucial provision for determining the scope of WTO law is article 111:4 GAIT and the meaning given to the words "like products" and "shall be accorded treatment no less favourable". It is easy to give to these two elements a meaning which has the consequence that important parts of domestic law come within the scope of international trade law. For example, "treatment no less favourable" is synonymous with "discrimination" and can therefore easily be construed as encompassing almost any internal measure that is a burden for imports under such headings as "de-facto" or "indirect" or "disguised" or "mediated" discrimination, as European Union law proves.217 This construction might be justified in the EU as the aim is to create a Common Market. The primary function of article III GAIT, by contrast, is to sustain negotiated commitments to tariff bindings.218 It thus becomes clear that the WTO context is much more limited. Therefore, although some forms of "disguised" discrimination must be addressed, such issues should be handled with care. There is a similar problem with respect to "likeness". The dispute settlement organs, conscious of this problem, have adopted a careful approach. The Appellate Body has emphasized that the degree of likeness is to be determined on a case-by-case basis, with the relevant factors depending on the specific context.219 Nevertheless, it is conventional wisdom that the comparison between products has to be limited to the characteristics regarding the product itself and cannot be extended to the product's production method. Likeness would, on this 217 218

219

Maduro, see note 154,35 et seq. R. Hudec, Developing Countries in the GATT Legal System, 1987, 133; on the centrality of discrimination P.T. Stoll, "Freihandel und Verfassung", ZaoRV57 (1997), 83 et seq., (119). Appellate Body Report of 4 October 1996, WT/DS8/AB/R, WT DS10/AB/R, WT/DS11/AB/R,/*;>*» - Taxes on Alcoholic Beverages, 2122.

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view, be determined solely on the basis of the physical similarity of two products.220 Consequently, products which differ only in their production methods and are otherwise identical would be considered "like products", and even origin-neutral measures would constitute zprima facie violation of article 111:4 GATT. This understanding is challenged by Howse and Regan, who lessen the impact of article 111:4 GATT by arguing that the distinction between product and production oriented measures should be abandoned.221 In their view, article III GATT should also be applicable to process-based measures, thereby not automatically placing them within the scope of article XI GATT.222 They argue that the conventional distinction has little grounding in the text of article III GATT, and they consider their understanding to be supported by Note Ad article III GAIT on the interpretation of article III GATT and article XI GATT. The conventional understanding over-emphasizes the abstract insight that products which are physically similar are more likely to be "like"; an insight which, however, does not provide a workable standard in a concrete case, especially if one does not only consider cases in which a production method is prohibited entirely.223 The thrust of this argument is that GATT does not provide for a general right of access, but only for specific rights against discrimination.224 Howse and Regan thus suggest a definition which allows for the evaluation of all circumstances of a measure. In their view, "like" means "not differing in any respect relevant to an actual non-protectionist

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223 224

In detail on the cases F. Altemoller, Moglicbkeiten und Grenzen der Beriicksichtigung von Umweltschutzzielen in den Vertragstexten der Weltbandelsorganisation, 1996, 87 et seq., 213 et seq.; see also e.g. United States - Restrictions on Imports of Tuna, ILM 30 (1991), 1594 et seq. and ILM 33 (1994), 936 et seq.; v. Bogdandy, "Internationaler Handel und nationaler Umweltschutz: Eine Abgrenzung im Lichte des GATT", EuZW 4 (1992), 243 et seq. R. Howse/ D. Regan, "The Product/Process Distinction - An Illusory Basis for Disciplining 'Unilateralism' in Trade Policy", EJIL 11 (2000), 249 et seq. Such a proposition does not conflict with the Appellate Body's decision in Shrimps/Turtles, as the delineation between article III and article XI was not at issue there, WT/DS58/AB/R, see note 206; the measure in Shrimps/Turtles was country-based and not origin-neutral. Howse/ Regan, see note 221,259-261. Ibid., 257.


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regulatory policy".225 Along that line, country-based restrictions are generally suspect under article III GATT whereas origin-neutral measures are not. This crucial distinction also rests on the different economic effects of country-based restrictions as opposed to origin-neutral ones226 which is sometimes overlooked.227 Process-based trade restrictive measures are often thought to constitute illegitimate unilateral behaviour.228 Such an understanding, however, neglects the fact that the choice often is not between unilateralism and multilateralism but rather between unilateralism and inaction.229 Process-based regulations are also not extra-territorial measures in the classical sense.230 And most critically, the problem of extra-territoriality is not limited to process-based measures but can also arise in relation to product-based regulations.231 Therefore the process/productdistinction is hardly capable of coherently preventing protectionism. The approach of Howse and Regan ensures that domestic regulatory policy is non-protectionist, while at the same time addressing some of the critical deficiencies of the WTO system developed in this article. While their proposal has encountered a certain amount of scepticism,232 if their theory convincingly addresses these reservations their approach may substantially enrich the coordinated interdependence model. A further important interpretative device to meet the shortcomings of WTO law concerns the question, under substantive law, of how to interpret exceptions. In this respect, an important divergence between the Appellate Body and the ECJ comes to the fore. The ECJ has con-

225 226 227

228 229

230 231 232

Ibid., 261. Ibid., 269-272. See the discussion of the Belgian Family Allowances Case by B. Jansen, "The Limits of Unilateralism from a European Perspective", EJIL 11 (2000), 309 et seq., (311); Howse/ Regan, see note 221,262-263. See Jansen, see above, 311. D. Bodansky, "What's so Bad about Unilateral Action to Protect the Environment?", EJIL 11 (2000), 339 et seq. Howse/ Regan, see note 221,274. Ibid., 279. See e.g., J. Jackson, "Comments on the Shrimp/Turtle and the Process/Production Distinction", EJIL 11 (2000), 303 et seq.; Jansen, see note 228,309 et seq.

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strued the exceptions to the basic freedoms narrowly.233 By contrast, the Appellate Body has explicitly refused to apply this interpretation. "[M]erely characterizing a treaty provision as an "exception" does not, by itself, justify a "stricter" or "narrower"" interpretation"".234 This conception is convincing, in particular in view of the goal of sustainable development and the measures that its realization might entail.235 In the Hormones Case, the Appellate Body wrote: One can conclude that WTO law does not lay down a principle that trade must take precedence in case of a collision with other private or public interests.236

4. A Procedural Conception of Substantive Law It is the nature of the domestic political process that the interests of the state's citizens enjoy a priority over those of foreigners. Even when the process does not aim at protectionism, home interests tend to be favoured and foreign interests neglected. Information, participation and regulatory traditions are control-elements of the regulatory process that reflect domestic interests.237 Foreign interests, sometimes deeply affected through domestic decisions, do not generally have a standing in domestic procedures. As already pointed out, this situation is one of the undemocratic features of globalization: more and more purely "domestic" decisions are having a transnational impact with ever greater significance. This contribution suggests that the Appellate Body's interpretation of WTO law can be understood as helping to rectify this feature of globalization with multilateralism: when a sovereign decision affects the economic interests of people in other states, their interests must be taken into account, either through a negotiated solution between the affected states, or, if impossible, through "simulated multilateralism" in the domestic process of legislation.

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236

237

Case 7/61, Commission/Italy, ECR 1961, 695, 720; Case 113/80, Commission/Ireland, ECR 1981, 1625, 1637, in detail: H. Matthies/ R. v. Borries, in: Grabitz/ Hilf, see note 204, note 3 et seq. WT/DS26/AB/R, WT/DS48/AB/R, see note 87, para. 104. For possible steps see the proposals in: Wuppertal Institut fur Klima, Umwelt, Energie, Zukunftsfahiges Deutschland, 1996,153 et seq. M. Hilf, "Freiheit des Welthandels contra Umweltschutz?", Neue Zeitschriftfiir Verwaltungsrecbt 19 (2000), 481et seq., (483 et seq.) Maduro, see note 154,146 et seq.


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Dependence on external factors, including decisions made in foreign jurisdictions, has become greater. Similarly, the network of international obligations has become more close-knit. External relations have therefore become more important to the democratic principle, and a selfrespecting democracy can no longer afford to keep foreign relations outside the mechanisms of democratic accountability. The Appellate Body's decisions can be understood as an attempt to respond to this situation. In a series of reports, panels and the Appellate Body have interpreted WTO law as requiring members who are in non-compliance with basic obligations to seek multilateral solutions with the negatively affected members, without, however, giving concrete guidance as to the substantive prerequisites.238 This approach is particularly decisive for the analysis of domestic rules primarily aimed at the protection of noneconomic interests, e.g. the environment or consumer protection. In critical situations the Appellate Body proceduralizes the substantive WTO obligations and compels the members to try to achieve a multilateral consensus. The members are thus spared from being forced to harmonize their domestic legal orders according to substantive WTO rules. This is not to suggest that a general transformation of substantive obligations into procedural requirements should occur: such an understanding is not supported by the reports thus far issued and would contradict the system of many WTO treaties. Procedural requirements have the function of serving the accomplishment of substantive obligations and cannot function as a general substitute for them. This general rule does not, however, exclude interpreting a substantive provision in such a way that it lays down certain procedural and organizational requirements which further the aim of the provision in question.239 The procedural requirements, which aim at a multilateral solution to the conflict, have two steps, though the relationship between them remains ambiguous. First, the Appellate Body forces the members to pursue multilateral cooperation as a means of keeping the effects of trade restrictive measures arising from domestic rules to a minimum.240 The 238 WT/DS2/9, see note 21, 27; WT/DS58/AB/R, see note 206, para. 174 et seq. 239 Most important in this respect is the discussion which derives organizational and procedural standards from fundamental rights, T. Vesting, Froze durales Rundfunkrecht, 1997,94 et seq. 240 WT/DS2/9, see note 21, 27; WT/DS58/AB/R, see note 206, para. 174 et seq.

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negotiations should not only be conducted with the other Member States, but also directly with the affected exporters.241 By requiring negotiations to be conducted with the trading partners as well as with affected private interests, the Appellate Body introduced a procedural prerequisite which extends an important element of the democratic principle to foreign interests. The WTO thus induces an international political process that occurs outside of its institutional framework for the purpose of coming to an international agreement aimed at coordinating domestic rules, something which could hardly be achieved by WTO law on its own. If the efforts to achieve a multilateral solution to the conflict fail, then the member may proceed to the second step. In this case, WTO law requires that the member, in its domestic proceedings, takes the interests of the affected members and their citizens into account, even if there is no special international obligation to do so.242 This is especially evident in the Appellate Body's report in the Reformulated Gasoline Case. There the Appellate Body found that "while the United States counted the cost for its domestic refiners [...], there is nothing [...] to indicate that it did other than disregard that kind of consideration when it came to foreign refiners."243 It concluded that this "goes well beyond what was necessary for the Panel to determine that a violation of Article 111:4 [GATT] had occurred"244 and that there had been arbitrary discrimination. In other words, the costs and appropriateness of the measures for the trading partners must be included in the policy. This was confirmed in the United States - Shrimps Case, when the Appellate Body, in finding that there had been arbitrary discrimination, gave weight to the fact that there was no inquiry into the appropriateness of the program for the conditions prevailing in the exporting countries.245 The application of this regulatory program imposed "a single, rigid and unbending requirement" with "little or no flexibility" and consequently also constituted arbitrary discrimination within the meaning of the chapeau to article XX GATT.246 The implication is that such measures must be designed and applied flexibly, i.e., so that they acknowledge 241 WT/DS2/9, see note 21,27. 242 WT/DS2/9, see note 21, 28; WT/DS58/AB/R, see note 206, para. 169, 172 et seq. 243 WT/DS2/9, see note 21,26. 244 WT/DS2/9, see note 21,26. 245 WT/DS58/AB/R, see note 206, para. 177. 246 Ibid.


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comparable policies adopted by other members. Although taking foreign interests into account when creating domestic regulations does not achieve "real" multilateralism, it does achieve a "simulated" form of multilateralism. This "simulated multilateralism" preserves the democratic principle by insuring that affected foreign interests are adequately recognized and taken into account in policy formulation. Only after the domestic legislative process has taken these interests into account is it permissible to restrict imports to protect a recognized public good. The Appellate Body has not only created prerequisites for the legislative process but also for the application of the norms. The main criteria are the principles of due process and basic fairness, which the Appellate Body developed on the basis of article X:3 GATT. In znaforteriori conclusion, the Appellate Body applied these principles to measures based on the provisions providing exceptions to GATT.247 Thus the protection of other members is to be ensured by procedural means, as is highlighted in the United States - Shrimps Case. Here the United States relied on an origin-based method to exclude the import of shrimps from its market that were caught with nets not certified as being "turtle friendly" by the U.S.248 In concluding that arbitrary discrimination had occurred, the Appellate Body attached great significance to the "singularly informal and casual" nature of the certification process, concluding that it resulted in a denial of both basic fairness and due process.249 The Appellate Body found that: "there is no formal opportunity for an applicant country to be heard, or to respond to any arguments that may be made against it, in the course of the certification process before a decision to grant or deny certification is made. Moreover, no formal written, reasoned decision, whether of acceptance or rejection, is rendered [...]. Countries which are granted certification [...] are not notified specifically. Countries whose applications are denied also do not receive notice [...]. No procedural review of, or appeal from, a denial of an application is provided".250 This led the Appellate Body to conclude that the minimum standards for transparency and procedural justice established by article X:3 247 248

249 250

Ibid., para. 190. The importing countries had to comply with the guidelines under Section 609(b)(2)(A) and (B). In practice this meant that they were required to use turtle extractor devices. See e.g., ibid., para. 177 et seq. Ibid., para. 181. Ibid., para. 180, footnotes deleted.

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GATT had not been met.251 From the foregoing it can be concluded that, in terms of the application of domestic regulatory programs, foreign interests must enjoy a right to be heard. Furthermore, members are obliged to give reasons in proceedings for the permission to import and sufficient legal protection against the denial of such permission. The farreaching scope of the publication requirement also serves to protect other members.252 The Appellate Body thus extended basic elements of the democratic principle and the rule of law to aliens. Only after these procedural requirements have been met, does the importing member remain free to pursue its domestic preferences and interests.253 The Appellate Body thereby avoids the extremely problematic situation of establishing substantive requirements through concretizing WTO provisions; however, it remains to be seen whether and how far these procedural prerequisites can be implemented effectively in domestic legislative and administrative procedures.

IV. Conclusions International trade is essential to enhancing the global wealth urgently needed by the poor countries and vigorously demanded by most citizens in the richer ones. Multilateral rules which ease market access and which combat discriminatory practices are a precondition of a viable trading system. Such rules, in order to fulfill their purpose, must address domestic economic policies. Given the growing global economic interdependence, such domestic policies often regulate cross-border economic transactions and therefore affect the respective policies of

251

Ibid., para. 183. An important provision of this type is article 7 SPS in conjunction with Annex B SPS Agreement. It contains a publication requirement, obliges the members to create a national information office and provides for a special notification procedure. The Appellate Body gives significant weight to these provisions. In WT/DS76/AB/R Japan - Measures Affecting Agricultural Products it decided that the publication requirement for measures regulated by the SPS Agreement was not only applicable to legally enforceable instruments but also to other instruments which are applicable generally and similar in character to those explicitly mentioned, paras 102 - 108. This publication requirement goes well beyond what is constitutionally required in most Member States, v. Bogdandy, see note 39,484 et seq. 253 WT/DS58/AB/R, see note 206, para. 169 et seq. 252


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other states.254 Precisely for that reason, however, WTO law has the potential to profoundly alter the relationship between politics and law, since it is a body of economic law on which (democratic) political processes have little impact. Yet WTO law can be interpreted in a way that limits this shortcoming while realizing the potential benefits the WTO system has to offer. Some developments in the jurisprudence of the dispute settlement organs can be understood as heading in this direction. The thrust of the coordinated interdependence model's approach is to give high priority to the regulatory autonomy of WTO members, to focus substantive WTO law on concretizing the principle of nondiscrimination, and, in situations of normative vagueness, to interpret WTO provisions in a procedural way: to force a state to take account of the legitimate foreign interests which otherwise have no standing in the domestic political and legal processes. Relevant proposals for interpretation have been presented in this text.255 In this sense, international trade law should develop along the lines of international environmental law. It is one of environmental law's (soft, customary, treaty) greatest achievements that domestic decision-makers have to take foreign interests affected by the decision adequately into account.256 International trade law might be on the way to developing a concept analogous to shared natural resources257 for the economic realm. With respect to future developments, this article is sceptical as to whether further broadening the scope of WTO law by introducing 254

255

256

257

R. Schmidt, "Der Verfassungsstaat im Geflecht der internationalen Beziehungen", VVDStRL 36 (1977), 66, 69; or, in an pointed formulation: "Each state is the whole world from a different perspective", Langer, see note 10, 29. A further field of crucial importance for the development of the coordinated interdependence model are the issues of the burden of proof and the standard of review. Given their complexity, they are not addressed in this article, though the model's general thrust as applied to these issues should be rather evident. This is the principle of non-discrimination, environmental variety, as developed by the OECD. In detail M. Bothe, "Grenzuberschreitender Verwaltungsrechtsschutz gegen Umwelt belastende Anlagen", Umwelt- and Plannngsrecbt 3 (1983), 1 et seq.; id., "Le Tribunal administratif federal allemand reconnait le principe de 1'egalite d'acces", Revue juridique de I'environnement 1988, 186 et seq.; M. Haedrich, "Internationaler Umweltschutz und Souveranitatsverzicht", Der Stoat 39 (2000), 547 et seq., (554 et seq.). Doc. UNEP/IG 12/2 of 2 February 1978.

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rules on environmental protection, labour standards, human rights or competition (beyond the principle of non-discrimination) is desirable given the current situation.258 Environmental protection, labour standards and competition are policy areas subject to changing needs, convictions and approaches which the WTO could not meet because of the deficiencies discussed above. Human rights with all their intricate questions appear even less suited to becoming a proper subject for the WTO.259 Rather, the development of the WTO should focus on meeting deficiencies in the current body of law. Interesting attempts have been made to open the dispute settlement procedure so that actors other than the states and the specific interest groups which have triggered the state action can feed information into the adjudicative process.260 Such efforts to increase the transparency and legitimacy of what was heretofore notoriously one of the most secretive international organizations are encouraging.261 One should also consider improving the operation of the councils, the many committees and the working groups, not in the sense of providing them authority for unilateral binding decisions, but as bodies in which networks are developed that tackle the challenges of globalization on a multilateral basis. These networks might institutionalize procedures whereby public 258

259

260

261

For the positions cf. the website of the Centre for International Development of Harvard University, http://www.cid.harvard.edu/cidtrade on the far reaching European position see "Mitteilung der Kommission an den Rat und das Europaische Parlament, Das Konzept der EU fur die WTOJahrtausendrunde", KOM 99,331 endg.; B. May, "Die deutsch-europaische Verhandlungsposition bei der WTO-Handelsrunde", Aus Pol & Zeitgesch. B 46-47/99, 27; for the position of developing countries see J. Wiemann, "Die Entwicklungslander vor der neuen WTO-Runde", Aus Pol & Zeitgesch. B 46-47/99,32. For the profound impact that human rights can have on a transnational institution cf. v. Bogdandy, see note 149; therefore, one should shy away from using the WTO as an instrument to install or further democracy in WTO members; in this direction Howse, see note 197,312 et seq. For the last step cf. the Appellate Body's Report of 8 November 2000 WT/DS135/9 containing procedures for non-party - or 'amicus curiae brief - submissions to the dispute between Canada and the European Union over asbestos. This move has, however, flared into a serious issue among the members see BRIDGES Weekly Trade News Digest, Vol. 4 No. 44, 21 November 2000, http://www.ictsd.org/html/weekly/story 1.21-11OO.htm Goldstein/ Martin, see note 32, 612; Weiler, see note 18, 11 et seq.; for farreaching strategies cf. Howse/ Nicolaidis, see note 180,11 et seq.


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authorities are led to consider the interests of all those affected, including those living outside the borders of the WTO member's jurisdiction.262 Among all approaches, the coordinated interdependence model is the one with the least impact on the domestic legal and political systems. And yet, even on this limited reading, WTO law calls on domestic legislatures to introduce major reforms in domestic law. Important changes will have to be introduced into domestic procedures if the requirements of "multilateralism" and of "more objective and rational rule-making" should become a reality.263 Democratic politics do not always lead to what from a legal or scientific perspective appears as objective and rational rule-making. Moreover, these procedural requirements might present even greater challenges for the WTO members than substantive requirements.264 Considerable resistance is to be expected, since preferential treatment of the state's own citizens is a basic feature of most current constitutions. To my knowledge, the relevant reforms have yet to be introduced, and even worse: the relevant provisions are still to be invented. From this point of view WTO law could have a revolutionary impact because it may require a re-thinking and re-framing of the principle of democracy, the most basic of the principles of the constitutional system of government.265 From another perspective, however, it could simply bring about a logical extension of a well-established constitutional principle: that sovereignty entails responsibility. For the domestic dimension of sovereignty, constitutional sovereignty entails constitutional responsibility for those affected. This concept, applied to the external side of sovereignty in an interdependent world, entails some constitutional responsibility also for people living outside the polity.266 262

263

264

265

266

For a dramatic picture of what could happen otherwise J.M. Guehenno, "Demokratie am Wendepunkt?", Internationale Politik 4 (1998), 13 et seq., (16). With respect to the European Union, it probably entails that the Directorate-General for Agriculture loses its competence to develop policies on health issues and consumer protection, given its protectionist bias. For the challenges see S. Cassese, "Gli stati nella rete internazionale dei poteri pubblici", Rivista Trimestrale di Diritto Puhhlico 49 (1999), 321 et seq., (326 et. seq.). For example, Howse's attempt to reconcile these requirements with the democratic principle, see note 197, 309 et seq., is largely outside constitutional orthodoxy. Ground-breaking Langer, see note 10,23 et seq., (51).

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Hence, the requirements of WTO law could be construed as concretizing what is implicit in an adequate constitutional understanding of a state in an interdependent world. Under the coordinated interdependence model's interpretation, WTO law might then complement rather than conflict with the principle of sovereignty.267 The fundamental changes brought about by this paradigm shift might represent the true constitutional dimension of the WTO.

267

On this aspect of sovereignty G. Dahm/ J. Delbriick/ R. Wolfram, Volkerrecht I/I, 2nd edition, 1989, s 23 IV 1.

Transcending the Nation-State? Private Parties and the Enforcement of International Trade Law Stefan Ohlhoffand Hannes Schloemann I. Introduction II. Participation of Non-State Actors in International Judicial Proceedings III. Private Parties and the Enforcement of International Trade Rules within the WTO Framework 1. Amicus Curiae Briefs a. Panels b. Appellate Body c. Briefs as Part of Member Submissions 2. Member Representation by Private Counsels and Other Private Sector Representatives 3. Conclusion IV. The (Supra-)National Level 1. Direct Effect ? International Trade Law within the EC a. Overview: The ECJ's present position on WTO law aa. Consistent Interpretation bb. Incorporation by Reference cc. Act of Transformation b. Before 1995: GATT 1947 hi Community Law c. After 1995: Same Result, (slightly) different Reasons 2. Administrative Mechanisms for Private Parties 3. Conclusion V. Concluding Remarks 675 JA. FroweinandR. Wolfram (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 675-734. © 2001 Kluwer Law International Printed in the Netherlands.

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I. Introduction International trade law is public international law. Trade agreements such as the WTO Agreement and the range of agreements concluded under its umbrella, namely the GATT 1994, the GATS (General Agreement on Trade in Services) and the TRIPs Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights) are public international law treaties. The subjects of public international law are states, not private parties — the classical schism of public international law, the dichotomy of the spheres of national law, where private parties are subjects and agents of the law, and international law, where states and their organisations are (nearly) the sole members of the so-called international community. Is it different for international trade law? Could it, should it be different? Quite naturally, since the law's subjects are states, its substance concerns first and foremost state actions and state omissions, such as tariffs, technical barriers to trade and subsidies. Yet, quite different from many, though by no means all other areas of public international law, the state actions and omissions regulated by international trade rules concern directly and primarily private persons. It is their economic activity that is affected by those actions or omissions, or trade regulation measures. The constraints that international trade law puts on states thus directly benefit, or concern, private parties. International trade law shares this characteristic with human rights law. It is not surprising that Petersmann, among others, keeps pointing to its function to protect individuals from unjustified state interference.1 There is, however, an arguably significant difference between the two subjects. While human rights law is intended to protect the individual primarily because of his or her human nature and inherent, inalienable dignity, international trade law protects individual economic activity primarily based on the belief that free trade furthers economic and political gains for the societies and states involved. Individual activity is thus protected not for its own sake but because it serves a greater good. Of course one may contest both the correctness of these

1

See e.g. E.U. Petersmann, "Darf die EG das Volkerrecht ignorieren?", EuZW 8 (1997), 325 et seq.; id., "Rights and Duties of States and Rights and Duties of Their Citizens", in: U. Beyerlin et. al. (eds), Recht zwiscben Umbruch und Bewahrung - Festschrift fiir Rudolf Bembardt, 1995,1087 et seq.

Ohlboff/Schloemann, Transcending the Nation-State?

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deliberations2 and their relevance. However, the function of international trade law may help to come to grips with its currently hybrid status in the limbo between international and national (or European Community) law, namely the refusal of leading trading nations to give direct effect to international trade law provisions in their national legal systems and to give private parties a direct say in the enforcement of those provisions. One does not have to look far to discover the immediate relevance of international trade law for private parties, and vice versa. Recent cases before the WTO Dispute Settlement Body, its panels and its standing Appellate Body, have amply demonstrated that (some) companies have realized that their vital interests are concerned and may be significantly affected or furthered by the functioning of those rules. The driving forces behind these cases are virtually always companies whose interests are at stake. In the (in)famous Bananas Case,3 it was Chiquita which guided the hand of the United States Trade Representative (USTR) in successfully challenging the EC's Banana import regime. The regime itself, to start with, was built (inter alia) around the interests of French banana importers. In the Kodak-Fuji dispute,4 the two companies pitted against each other through their respective governments (United States and Japan) even gave the case its popular name. Similarly in ami - dumping cases often a small number of producers in the importing country use their government to keep equally few foreign competitors out of their market, which then, of course, often turn to their government to challenge the other government's measure in the WTO fora.5 2 3

4 5

Also human rights serve certain "functions", and the right to trade may be considered a human right. Appellate Body Report of 9 September 1997, WT/DS27/AB/R, European Communities - Regime for the Importation, Sale and Distribution of Bananas, complaints by Ecuador, Guatemala, Honduras, Mexico and the United States. Panel Report of 31 March 1998, WT/DS44/R, Japan - Measures Affecting Consumer Photographic Film and Paper. Anti-dumping, it is worth noting in passing, is also one of those areas where the immediacy and, at the same time, the distance between WTO law and private parties becomes apparent. Dumping is a private (purportedly) anti-competitive activity (as opposed to subsidization, a statesponsored anti-competitive practice). WTO law, however, does not outlaw dumping, i.e. does not regulate the private behaviour as such. It merely allows for, regulates, and restricts the members' reactions to dumping,

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A number of states have reacted to the discrepancy between the private (company to company/state) nature of the interests immediately concerned and the public (state to state) structure of international trade law. They offer administrative channels, such as the U.S. "Section 301 "6 or the EC Trade Barriers Regulation7 procedures, through which private parties can submit their complaints — based on an alleged violation of international trade law by another state — to their respective national authorities. Prominent recent users of the EC Trade Barriers Regulation, have been Spanish swordfishers complaining about discriminatory treatment in Chilean ports and European shipbuilders fighting against subsidies for their Korean counterparts.8 While businesses are immediately affected, other private parties have strong interests in economic regulation, and thus the operations of international trade law, too. Virtually all players of the so-called "civil society" may have such legitimate interests, out of which the most vociferous are environmental NGOs and labour rights proponents. Their participation in the operations9 of trade law has found its manifestation in particular in an active use of amicus curiae briefs. International trade law, in other words, concerns private parties and their business with other private parties. They have a strong and immediate interest in the creation and the application, namely the enforcement, of international trade law. But is it a tool in their hands? Is it "their" law, despite its public international law nature? To what extent can they transcend the nation-state and use international trade law like other (national) law that concerns them? Beyond the question of interests involved, it is worth noting that many provisions in international trade law are designed for the private party, with the private party in mind and more or less structurally "ap-

6 7 8 9

namely the conduct of anti-dumping investigations and the imposition of anti-dumping measures. Trade Act of 1974, paras 301-06, codified as amended in 19 U.S.C. paras 2411-2416. Council Regulation (EC) No. 3286/94 of 22 December 1994, O. J. No. L 349 of 31 December 1994, 71-78. For details of the cases see the European Commission's DG Trade's website at http://europa.eu.int/comm/trade/policy/traderegul/cases.htm Their sometimes very visible attempts to influence the creation of trade law by influencing trade negotiations ("Seattle") are another important part of their participation in this area, but not the subject of this analysis which concentrates on the operation of (existing) rules.

Ohlhoff/Schloemann, Transcending the Nation-State?

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plicable" to the private party. The WTO agreements contain numerous provisions that address "rights" for private parties — provisions that could, as they stand, be applied directly to private parties. While this is arguably less clear in provisions such as arts I (Most Favoured Nation Treatment - "MFN") and III (National Treatment - "NT") of GATT 1994, which address "products of another Member", the GATS and the TRIPs Agreement expressly establish certain obligations vis-a-vis, e.g., "service providers"10 and "nationals of other Members."11 The focus on the private actor is clearest in a number of procedural provisions, inter alia those regarding judicial protection. The Anti-Dumping Agreement, for example, addresses in some detail the procedure for notification of the companies involved, their right to be heard, and the treatment of their confidential information in the investigation.12 The GATS provides, e.g., for judicial, arbitral or administrative review of regulatory measures affecting services upon application by a service provider.13 The TRIPs Agreement, beyond professing in its preamble that "intellectual property rights are private rights", contains detailed prescriptions, e.g., for procedures to be made available to private parties under national law for the enforcement of those rights. These provisions, such as article 50 of the TRIPs Agreement concerning provisional measures, could be applied directly to the respective situations they intend to regulate. In other words: many provisions of WTO law are drafted in a way that would allow for their immediate and direct application. Judging by their structure, form and content, they could, in particular, be understood as conferring individual rights on private parties. Whether they do so is a matter of debate. How and to what extent can private parties make use of international trade law? In the following, we will try to sketch the various angles from which private parties can take part in, or influence, the operations of international trade law. Setting the stage, we will start with a brief overview over private party participation in international regimes at large (II.), before looking at the international level of trade law enforcement, namely WTO dispute settlement where private party par10

11 12

13

Cf., e.g., arts II para. 1 (Most Favoured Nation) and XVII para. 1 (National Treatment) of the GATS. Cf., e.g., article 3 of the TRIPs Agreement. Cf. arts 6.1,6.2,6.4 and 6.5 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 ("Anti-Dumping Agreement"). Article VI of the GATS.

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ticipation and influence manifests itself in the form of amicus curiae briefs and, in an indirect way, through the work of private counsel as representatives of state parties to disputes (III.). Looking at the function of international trade law on the member, i.e. national and, in the case of the EC, supranational level, we will take the European Court of Justice's (ECJ) jurisprudence as an example of how international trade law may or may not operate within a (supra-)national system through direct and/or indirect effect (IV. 1.). We will conclude this overview with a brief look at the aforementioned administrative mechanisms such as U.S. "Section 301" and the EC Trade Barriers Regulation which provide private parties with a procedure to engage their authorities in the fight against other states' violations of international trade law (IV. 2.). A few concluding remarks shall provide a look at, and perspective within, the overall picture as it stands to date (V).

II. Participation of Non-State Actors in International Judicial Proceedings The participation of non-state actors in international judicial or other enforcement proceedings has generally been limited to two areas, the protection of human rights14 and international economic relations.15 In

14

15

See e.g. as regards access of individuals to the European Court of Human Rights under article 34 of the European Convention on Human Rights as amended by the Eleventh Protocol which entered into force on 1 November 1998, see also Rule 61 paras 3 to 5 of the ECHR's Rules of Conduct on Third Party Intervention. Within this contribution, however, we will focus on dispute settlement mechanisms in the context of international economic relations. Of course, also in the field of international criminal justice, individuals may become part of proceedings before an international tribunal. For serious violations of international humanitarian law the ad-hoc tribunals for the former Yugoslavia and Rwanda as well as the future Permanent International Criminal Court are there to address individual criminal responsibility as defined through norms of public international law. For details on the statutes of these international tribunals see the UN website http://www.un.org/law/. However, our focus here is on active private party use of law rather than on the coverage of individual private behaviour by prohibitions, and their enforcement, under international humanitarian law.

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general international law non-state actors have, with a few exceptions,16 generally been precluded from access to the relevant international fora. A brief overview shall provide the background for our further analysis. In general international law proceedings, before the ICJ, only states may appear as parties.17 International organisations have access to the ICJ only in so far as they can request the court to give an advisory opinion on a question of law.18 Also, non-party participation by private actors in proceedings before the ICJ has been very limited. While the ICJ in 1950 permitted the International League for Human Rights19 to submit a written amicus curiae statement on the pertinent legal questions in the Soutb-West Africa advisory proceeding, it rejected the same organisation's request for participation as amicus curiae in the contentious Asylum Case between Colombia and Peru. The Court's Registrar argued that the difference in wording between Article 66 para. 2 of the Statute of the ICJ (participation of "international organization" in advisory proceedings) and Article 34 para. 2 (participation of "public international organizations" in contentious proceedings) indicated that NGOs had to be excluded from contentious proceedings. Later, in both the Namibia and the Nuclear Weapons advisory proceedings, the ICJ rejected requests from NGOs to be given the opportunity to submit written or oral statements in advisory proceedings. In the Namibia advisory proceedings, the Court also refused an individual's request to submit an amicus curiae brief. In the Registrar's view, the reference of 16

17 18

19

See notably the Central American Court of Justice for an early example of a regional court to which non-state actors had access. See C. Tomuschat, "International Courts and Tribunals with Regionally Restricted and/or Specialized Jurisdiction", in: Judicial Settlement of International Disputes, Beitrage zum auslandischen offentlichen Recht und Volkerrecht, 1974, 285 et seq., (315-322). Private parties also have access to a number of claims tribunals in the area of compensation for damages suffered as a consequence of war, see, e.g., the Iran-US Claims Tribunal and the United Nations Compensation Commission for Damages suffered as a Consequence of the second Gulf War. See D. Caron, "The Nature of the Iran-United States Claims Tribunal and the Evolving Structure of International Dispute Resolution", AJ1L 84 (1990), 104 seq.; D.J. Bedermann, "The United Nations Compensation Commission and the Tradition of International Claims Settlement", N.Y.U. J. Int'lL & Pol. 27 (1994), 1 et seq. See Article 34 para. 1 of the Statute of the ICJ. See Article 96 of the Charter of the United Nations and Arts 65 et seq. of the Statute of the ICJ. At the time the International League for the Rights of Man.

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Article 66 para. 2 of the Statute to international organisations precluded the Court from accepting submissions from individuals because "the expression of its powers in Article 66, paragraph 2, is limitative, and that expressio unius est exdusio alterius." In sum, the Court appears to limit its discretionary power to accept and consider submissions of non-state actors to amicus cttriae briefs from international NGOs in advisory proceedings. It will not accept briefs from individuals or other non-governmental organisations in advisory proceedings and does not accept amicus curiae briefs from non-state actors at all in contentious proceedings.20 In international economic relations, however, access of non-state actors to judicial proceedings has become a common feature. International investment disputes involving private parties and states are frequently resolved through international arbitration. For this purpose, international arbitration institutions, including the International Chamber of Commerce, ICSID, and many others, provide an appropriate framework. Also, the arbitration rules of the Permanent Court of International Arbitration provide for arbitration between a state and a private party or an international organisation and a private party.21 The World Bank Inspection Panel is another example of private party involvement in quasi-judicial review of compliance with standards to be applied in international economic relations. The Panel has jurisdiction over complaints against the World Bank submitted by an "affected party in the territory of the borrower which is not a single individual." The Inspection Panel's jurisdiction is however strictly limited to actions or omissions of the Bank. It examines cases where the complainant alleges that there is "a failure of the Bank to follow its own operational policies and procedures with respect to the design, appraisal and/or implementation of a project financed by the Bank (including situations where the Bank is alleged to have failed in its follow-up on the bor-

20

21

For a detailed account of NGOs' participation as amid curiae in proceedings before the ICJ see D. Shelton, "The Participation of Non Governmental Organizations in International Judicial Proceedings", AJIL 88 (1994), 611 et seq., (619-628); see also G. Marceau/ M. Stilwell, "Practical Suggestions for Amicus Curiae Briefs before WTO Adjudicating Bodies", JIEL 4 (2001), 155 et seq., (165). See Permanent Court Of Arbitration Optional Rules For Arbitrating Disputes Between Two Parties Of Which Only One Is a State, Permanent Court Of Arbitration Optional Rules For Arbitration Between International Organizations And Private Parties.

Ohlhoff/Scbloemann, Transcending the Nation-State?

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rower's obligations under loan agreements with respect to such policies and procedures)."22 The United Nations Convention on the Law of the Sea (UNCLOS) is yet another example in point. It illustrates that international negotiators are increasingly aware that non-state actors should have access to international judicial proceedings if their economic interests are at stake. Under article 292 UNCLOS, private parties can bring cases for prompt release of a vessel detained and not released by a state on behalf of the flag state if empowered by that state to do so. Also, the International Tribunal for the Law of the Sea may have jurisdiction over cases brought by private parties against the Deep Sea-Bed Authority concerning the exploitation of the deep sea-bed.23 Finally, the Statute of the International Tribunal for the Law of the Seas generally provides that "the Tribunal shall be open to entities other than States Parties [...] in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case."24 Regional economic organisations and associations frequently provide for judicial proceedings involving private parties, states and international organisations. The most obvious, and most developed example of this is the European Court of First Instance and, on appeal, the ECJ25 which can hear cases brought by, or involving, natural or legal persons.26 Moreover, both before the Court of First Instance and the ECJ any person establishing an interest in the result of any case sub22

23

24 25

26

Resolutions establishing the Inspection Panel (IBRD Resolution No. 93-10 and IDA Resolution No. 93-6), para. 12. On the World Bank Inspection Panel see I. Shihata, The World Bank Inspection Panel, 1994; D.D. Bradlow/ S. Schlemmer-Schulte, "The World Bank's New Inspection Panel: A Constructive Step in the Transformation of the International Legal Order", ZaoRV 54 (1994), 392 et seq.; S. Schlemmer-Schulte, "The World Bank's Experience with its Inspection Panel", ZaoRV 58 (1998), 353 et seq. Cf. also the article of S. Roos in this Volume. Article 187 UNCLOS. See also the similar provisions in the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities, article 59. Article 20. See on the respective jurisdictions, Protocol on the Statute of the Court of Justice of the European Community as amended by Council Decision of 24 October 1988 Establishing a Court of First Instance of the European Communities (88/591/ECSC, EEC, EURO ATOM), O.J. No. L 319 of 25 November 1988,1 et seq., as subsequently corrected and amended. Arts 230 para. 4,232 para. 3,234,235, and 238 of the EC Treaty.

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mitted to the courts may intervene, save in cases between Member States, between institutions of the EC or between Member States and institutions of the EC.27 Any person whose application to intervene in a proceeding before the Court of First Instance has been refused, can appeal to the ECJ.28 Further examples of regional economic organisations or associations in which non-state actors have been given access to the courts include the Andean Court of Justice, established in 1979,29 and the court of the Common Market of Eastern South Africa (COMESA).30 Private parties have access to judicial proceedings under NAFTA and its side agreements such as, e.g., the North American Agreement of Environmental Co-operation.31 The proposed Caribbean Court of Justice will have jurisdiction to issue preliminary rulings upon referral by national courts and can hear cases brought by natural and legal persons. It is also envisaged that the court will have appellate jurisdiction over decisions of national courts and will act as a regional supreme court, thus a full substitute to the Judicial Committee of the Privy Council which currently serves as the highest court of appeal for the former British colonies in the Caribbean.32 Finally, the regime established by the Southern American Common Market (Mercosur) also provides for a mechanism under

27

28 29

30

31

32

Arts 37 (2) and 46 (1) of the Protocol on the Statute of the Court of Justice of the European Community as amended (see above note 25). Article 50(1) ibid. Tribunal como Organo Judicial del Sistema Andino de Integracion Subregional, established on 28 May 1979. See 17, 19, 25, 31, 32 et seq., 37, 38 et seq. of the Treaty Creating the Court of Justice of the Cartagena Agreement as amended by the Protocol Amending the Andean Subregional Integration Agreement (Cartagena Agreement), approved in Trujillo, Peru on 10 March 1996, between Bolivia, Colombia, Ecuador, Peru and Venezuela; see http://www.altesa.net/tribunal/trib2.htm, and http://www.comunidadandina.org/english /andean/ande_trie2.htm Article 26 of the Treaty Establishing the Common Market for Eastern and Southern Africa. For a detailed account of the procedure under the NAAEC see e.g. F. Abbott, "The NAFTA Environmental Dispute Settlement System as Prototype for Regional Integration Arrangements", Yearbook of International Environmental Law 4 (1993), 3 et seq. See for details of the proposal J. Lehmann, "An Outside View of the Caribbean Court of Justice", Caribbean Law Review 10 (2000), 297 et seq., and http://www.caricom.org/ expframes2.htm


685

which complaints by natural and legal persons will be heard.33 Others, however, such as the East African Common Market Tribunal34 and the mechanism established for the settlement of economic disputes within the Association of Southeast Asian Nations (ASEAN) are not open to natural and legal persons.35 Likewise, the rules governing the Court of Justice for the Economic Community of West African States (ECOWAS) do not provide for direct access of non-state actors. Only Member States of the organisation can institute proceedings on behalf of their nationals against ECOWAS organs or other Member States.36 So far this court has not commenced its work.37 Thus, as of now, the participation of non-state actors in international judicial proceedings has not been addressed in a consistent way. In the realm of general international law, the ICJ has accorded non-state actors only very limited access. In international economic law, in particular in respect of investment-related disputes and in the context of a number of regional integration regimes, participation of private parties is reasonably developed. The same applies to a number of human rights regimes. In general, however, private party participation has not yet been advanced beyond an incongruous patchwork.

III. Private Parties and the Enforcement of International Trade Rules within the WTO Framework Only Members of the WTO can participate as parties or third parties in dispute settlement within the WTO framework. However, on a number of occasions, private parties have submitted their views directly to the panels or the Appellate Body in the form of so-called amicus atriae 33

34 35

36 37

Article 21 and Annex of the Protocolo Adicional al Tratado de Asuncion sobre la Estructura Insdtucional del Mercosur of 16 December 1994 to the Tratado de Asuncion of 26 March 1991, http://www.mercosur.com/in/ info/tratados_acuerdos. jsp Tomuschat, see note 16,375-377. Protocol of 20 November 1996 on Dispute Settlement Mechanism, to the Framework Agreement of 28 January 1992 on Enhancing ASEAN Economic Cooperation, as amended by the Protocol of 15 December 1995 to Amend the Framework Agreement on Enhancing ASEAN Economic Cooperation, see http://www.aseansec.org/economic/dsm.htm Article 9 para. 3 of the ECOWAS Protocol. Lehmann, see note 32,297,298.

686


briefs. Also, private sector advisors have participated as members of WTO Member delegations and have appeared in oral hearings before panels and the Appellate Body. However, both forms of participation have been the subject of intense discussions both within the WTO and the NGO and business communities. A number of panels and the Appellate Body were asked to rule on, or react to, various issues of private participation. We will first address the admissibility and treatment of unsolicited amictts curiae briefs and will then deal with the representation of private parties on member delegations at dispute settlement hearings.

1. Amicus Curiae Briefs In the absence of clearly stated rules, the submission of unsolicited amicus curiae briefs raises a number of delicate questions. Are panels or the Appellate Body obliged to accept and consider amictts curiae briefs? Are they required to reject such submissions? Is the decision on whether to accept and consider amicus briefs at their discretion? Based on which criteria? Should there be a special interest requirement? Until when should private parties be allowed to submit briefs? Should the panel or the Appellate Body notify the parties to the dispute in advance if they intend to take into account information submitted by private parties? We will examine the answers various panels and the Appellate Body have given so far to these questions as regards amicus curiae briefs submitted to a panel and, at the review stage, to the Appellate Body. While, at the stage of panel proceedings, submissions of private parties may constitute an element of fact-finding their significance in proceedings before the Appellate Body is logically limited to interpretations of the law.38

38

On amicus curiae briefs submitted to WTO panels or the Appellate Body, see Marceau/ Stilwell, see note 20,155 et seq.; A.E. Appleton, "Amicus Curiae Briefs in the Carbon Steel Case: Another Rabbit from the Appelate Body's Hat?", JIEL 3 (2000), 691 et seq.; S. Ohlhoff, "Beteiligung von Verbanden und Unternehmen in WTO - Streitbeilegungsverfahren. Das Shrimp-Turtle-Verfahren als Wendepunkt?", EuZW 10 (1999), 139 et seq.


687

a. Panels Accordingly, at the stage of panel proceedings, panels and the Appellate Body have resolved to categorise and judge the issue under article 13 of the DSU (Dispute Settlement Understanding) on the panels "Right to Seek Information." Article 13 reads as follows: 1. Each panel shall have the right to seek information or technical advice from any individual or body which it deems appropriate. However, before a panel seeks such information or advice from any individual or body within the jurisdiction of a Member it shall inform the authorities of that Member. A Member should respond promptly and fully to any request by a panel for such information as the panel considers necessary and appropriate. Confidential information which is provided shall not be revealed without formal authorization from the individual, body, or authorities of the Member providing the information. 2. Panels may seek information from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter. With respect to a factual issue concerning a scientific or other technical matter raised by a party to a dispute, a panel may request an advisory report in writing from an expert review group. Rules for the establishment of such a group and its procedures are set forth in Appendix 4. In United States - Import Prohibitions of Certain Shrimp and Shrimp Products ("United States - Shrimp"),39 the first case in which a panel and, on appeal, the Appellate Body dealt with the issue,40 the Panel received two unsolicited amicus curiae briefs from environmental NGOs.41 The four parties that had initiated the panel proceedings, 39 40

41

See on this case in more detail Ohlhoff, see above, 139 et seq. Unsolicited amicus curiae briefs were first submitted to WTO panels in: United States - Standards for Reformulated and Conventional Gasoline (WT/DS2) and in: European Communities - Measures Concerning Meat and Meat Products (WT/DS26). The panels in these cases did not consider the briefs. See Marceau/ Stilwell, see note 20,158. One of the briefs was submitted jointly by the World Wide Fund for Nature International (WWF), and the Foundation for International Environmental Law and Development (FIELD). The other brief was authored jointly by the Center for International Environmental Law (CIEL), the Center for Marine Conservation (CMC), the Environmental Foundation, the Philippine Ecological Network, and Red Nacional de Accion Ecologica.

688


Thailand, Pakistan, India and Malaysia, asked the Panel not to consider these documents. The United States, however, argued that the Panel, under its authority to seek information from any relevant source according to article 13 of the DSU, should avail itself of any pertinent information in the two amicus briefs and in any other similar communications.42 The Panel eventually decided not to take the two briefs into consideration because it was of the view that it did not have the authority to do so. In its view, "the initiative to seek information and to select the source of information rests with the Panel. In any other situations, only parties and third parties are allowed to submit information directly to the Panel. Accepting non-requested information from non-governmental sources would be [...] incompatible with the provisions of the DSU as currently applied."43 However, the Panel informed the parties "that it was usual practice for the parties to put forward whatever documents they considered relevant to support their case."44 Thus, the Panel authorised the parties to submit these briefs as part of their own submissions and thereby introduce them into the dispute. The Panel also informed the parties that, in such case, the other parties would be given two weeks to respond to the additional material. The United States availed itself of this opportunity by designating part of one of the briefs as an annex to its second submission to the Panel. The United States appealed the findings of the Panel and asked the Appellate Body to find that the Panel erred in finding that it would be barred from accepting non-requested information received from nongovernmental sources by the DSU.45 In its view, the Panel, contrary to the pertinent provisions of the DSU, had restricted its discretion regarding the establishment of the relevant facts in deciding that the DSU required it not to consider non-requested information from nongovernmental organisations. The United States argued that such a restriction could not be found in the rules of the DSU. The other parties argued that the wording of article 13 ("each panel shall have the right to 42

43 44 45

Panel Report of 15 May 1998, WT/DS58/R, para. 7, United States - Import Prohibition of Certain Shrimp and Shrimp Products (United States Shrimp). Panel Report, ibid., para. 8. Italics added. Panel Report, ibid., para. 7. Appellate Body Report of 12 October 1998, WT/DS58/AB/R, para. 98 United States - Import Prohibition of Certain Shrimp and Shrimp Products (United States - Shrimp).

Oblhoff/Schloemann, Transcending the Nation-State?

689

seek information [and] may seek information") indicated that a panel could only consider such information it had actively sought rather than received without a prior request. The Appellate Body essentially confirmed the United States' view.46 It noted that access to the WTO dispute settlement system is limited to members of the WTO. It is not available to other entities such as individuals or organisations, whether governmental or not: "Thus, [...] only Members who are parties to a dispute, or who have notified their interest in becoming third parties in such a dispute to the DSB, have a legal right to make submissions to, and have a legal right to have those submissions considered by, a panel."47 Accordingly, the Appellate Body concluded that the Panel was not under an obligation to accept and consider the two amicus curiae briefs it had received. However, does this imply that the Panel was required to reject the amicus curiae briefs as it had felt? The Appellate Body answered in the negative, pointing to the panels' authority and duties under arts 11, 12 and 13 of the DSU. According to article 11, a panel has the duty to "make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability and conformity with the relevant covered agreements...". Articles 12 and 13 provide the instruments which invest the panel with "ample and extensive authority to undertake and to control the process by which it informs itself of both of the relevant facts of the dispute and of the legal norms and principles applicable to such facts."48 Article 12 authorises panels, after consultation with the parties to the dispute, to develop their own Working Procedures and provides further that "panel procedures should provide sufficient flexibility so as to ensure high-quality panel reports while not unduly delaying the panel process." Accordingly, the Appellate Body noted that it had, in a number of other cases,49 held that article 13 invests panels with very wide discretion as to 46

47 48 49

See below Section III.I.e. on the admissibility of amicus curiae briefs submitted as part of the parties' submission in the proceedings before the Appellate Body. Appellate Body, see note 45, para. 101. Emphasis added. Appellate Body, ibid., para. 106. Appellate Body Report of 16 January 1998, WT/DS26&48/AB/R, para. 147, European Communities - Measures Concerning Meat and Meat Products (Hormones), Appellate Body Report of 27 March 1998, WT/DS56/AB/R, paras 84 et seq., Argentina - Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items.

690


whether or not to seek information, as to the source of information, its acceptability, relevancy, and weight.50 Therefore, "in the present context, authority to seek information is not properly equated with a prohibition on accepting information which has been submitted without having been requested by a panel. A panel has the discretionary authority either to accept and consider or to reject information and advice submitted to it, whether requested by a panel or not [...]. The amplitude of the authority vested in panels to shape the process of fact-finding and legal interpretation makes clear that a panel will not be deluged, as it were, with non-requested material, unless that panel allows itself to be so deluged."51 The Appellate Body, having found that panels are required neither to accept and consider nor to reject unsolicited amicus curiae briefs, went on to stress that the panels* discretionary authority to deal with such briefs was very wide: a [Acceptance and rejection [...] need not exhaust the universe of possible appropriate dispositions" of amicus briefs. It found that the Panel had acted within the authority of article 13 of the DSU when it suggested that the parties designate the amicus briefs or parts thereof as part of their own submissions.52 In United States - Imposition of Countervailing Duties on Certain Hot-Rotted Lead and Bismuth Carbon Steel Products Originating in the United Kingdom ("United States - British Steel"), an NGO representing the interests of the United States' steel industry53 submitted an amicus curiae brief to the Panel. However, the Panel, while acknowledging its discretionary power to accept the brief, chose to reject it because the "brief was submitted after the deadline for the parties' rebuttal submissions, and after the second substantive meeting of the Panel with the parties. Thus, the parties have not, as a practical matter, had adequate opportunity to present their comments on the [...] brief to the Panel. In [the Panel's] view [this] raises serious due process concerns to the extent to which the Panel could consider the brief."54

50 51 52 53 54

Appellate Body, see note 45, paras 103 et seq. Appellate Body, ibid., para. 108. Appellate Body, ibid., para. 109. The American Iron and Steel Institute (AISI). Panel Report of 23 December 1999, WT/DS138/R, para. 6.3, United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom.


691

The Panel in Australia - Measures Affecting Importation of Salmon (Recourse to Article 21.5 by Canada) received a letter from a group of Australian fishermen and processors. This letter addressed the alleged discrimination between imports of pilchards for use as bait or fish feed and imports of salmon. Considering the Appellate Body's ruling in United States - Shrimp, the Panel held that the information submitted "has a direct bearing on a claim that was already raised by Canada, namely inconsistency in the sense of article 5.5. of the SPS Agreement in the treatment by Australia of pilchard versus salmon imports." Therefore, the Panel "accepted this information as part of the record."55 There are two further instances where amicus curiae briefs were submitted to the panels: European Communities - Antidumping Duties on Imports of Cotton-Type Bed Linen from India and European Communities - Measures Affecting Asbestos and Asbestos-Containing Products ("European Communities - Asbestos"). In the first case, the Panel received a brief from an NGO56 before its first meeting and invited the parties to comment on the brief. In its report it held that it did not find it necessary to consider the brief.57 The Panel in European Communities - Asbestos received one amicus brief before and a further three amicus briefs after the first meeting.58 The EC incorporated two of the briefs into its submission and asked the Panel to consider these briefs and reject the other two which, in the view of the EC, lacked relevance; Canada requested the Panel to reject all four amicus briefs. The Panel decided to consider the briefs incorporated by the EC in its submissions and chose, without giving reasons, not to take into account the

55

56 57

58

Panel Report of 18 February 2000, WT/DS18/RW, paras 7.8 et seq., Australia - Measures Affecting Importation of Salmon - Recourse to Article 21.) by Canada. The Foreign Trade Association. Panel Report of 30 October 2000, WT/DS141/R, para. 6.1, European Communities - Antidumping Duties on Imports of Cotton-Type Bed Linen from India. From Collegium Ramazzini, Ban Asbestos Network, Institute Mexicano de Fibro-Industrias AC, and American Federation of Labor and Congress of Industrial Organizations.

692


remaining two briefs. The Panel did not accept a fifth arnicas brief59 received after the Interim Report was issued.60 b. Appellate Body While the phenomenon of amicus curiae briefs submitted in panel proceedings has thus found a secure home in article 13 of the DSU, the issue is less clear at the stage of Appellate Body proceedings. Article 13 deals with fact-finding by the panels. It is not applicable to appellate review. However, the Appellate Body found it sufficient that nothing in the DSU prevents it from considering amicus curiae briefs and built its jurisprudence on the issue on its rule-making power as regards appropriate additional procedures addressed neither in the DSU nor in the Working Procedures. The Appellate Body has received non-requested amicus curiae briefs in a number of instances. While the United States attached statements authored by environmental NGOs as exhibits to its own submission in United States - Shrimp^ the Appellate Body first dealt with true amicus curiae briefs in United States - British Steel.62 The EC argued that amicus curiae briefs were inadmissible in appellate review proceedings as article 13 of the DSU did not apply to the Appellate Body. Even if it did, the provision was limited to factual information and technical advice, and thus excluded legal arguments or interpretations received from non-members.63 Moreover, the confidentiality of the proceedings might be threatened. Brazil and Mexico supported this view. The United States urged the Appellate Body to accept the amicus curiae briefs and emphasized the Appellate Body's authority under article 17 para. 9 of the DSU — the power to draw up its own Working Procedures — to consider them. 59 60

61 62

63

From Only Nature Endures. Panel Report of 18 September 2000, WT/DS135/R, para. 6.2, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products. See below Section III.l.c. From the American Iron and Steel Institute and the Speciality Steel Industry of North America.

Appellate Body Report of 10 May 2000, WT/DS138/AB/R, para. 36 United States - Imposition of Countervailing Duties on Certain Hot-rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom (United States - British Steel - AB).


693

In the provisions of the DSU and the Working Procedures, the Appellate Body found nothing that would require it either to accept and consider or to reject amicus curiae briefs. As held previously in United States - Shrimp,64 it found that access to WTO dispute procedures is limited to WTO Members acting as parties or as third parties to a dispute. Only parties and third parties have a legal right to make submissions and to have their submissions considered.65 However, the Appellate Body found that article 17 para. 9 of the DSU which vests the Appellate Body with the authority to draw up its own Working Procedures gives it broad authority to adopt rules to the extent that they are consistent with the provisions of the DSU and any covered agreement.66 The Working Procedures, in Rule 16 (1), allow the Appellate Body to develop appropriate procedures where a situation arises which is not addressed by the Working Procedures. The Appellate Body concluded that this gave it the legal authority under the DSU to accept and consider amicus curiae briefs in an appeal in which it finds it useful and pertinent to do so. In this case, it did not find that such a situation existed and rejected the two briefs.67 The issue was recently elevated to a new level in European Communities - Asbestos. Noting that a number of NGOs had submitted amicus curiae briefs to the Panel and that the same had to be expected at the stage of the Appellate Body proceedings, the Appellate Body asked the parties and third parties in this case to comment on its proposal to adopt a formalised request for "leave procedure" for the purposes of this appeal. In the Appellate Body's view, the adoption of such additional procedures would help to ensure the fair and orderly conduct of the appeal. Canada, the EC and Brazil were of the view that such procedures would best be dealt with by the WTO members; the United States, however, welcomed the adoption of a request for "leave procedure". Zimbabwe stated that it had no reason to oppose the adoption of such a procedure.68

64 65 66 67

68

See above. Appellate Body, see note 63, para. 40. Appellate Body, ibid., para. 39. Appellate Body, ibid., para. 42. See for a detailed, and critical, analysis of the Appelate Body's reasoning, Appleton, see note 38,694-698. Appellate Body Report of 12 March 2001, WT/DS135/AB/R, para. 50 European Communities - Measures Affecting Asbestos and Asbestos Containing Products (EC - Asbestos).

694


The Appellate Body adopted, on the basis of Rule 16 (1) of the Working Procedures, an Additional Procedure laying down the procedure to be followed by NGOs to request leave to submit an amicus curiae brief. The Appellate Body transmitted the Additional Procedure to the parties and third parties in a communication dated 7 November 2000 and posted it on the WTO website on 8 November 2000:69 "1. In the interests of fairness and orderly procedure in the conduct of this appeal, the Division hearing this appeal has decided to adopt, pursuant to Rule 16 (1) of the Working Procedures for Appellate Review, and after consultations with the parties and third parties to this dispute, the following additional procedure for purposes of this appeal only. 2. Any person, whether natural or legal, other than a party or a third party to this dispute, wishing to file a written brief with the Appellate Body, must apply for leave to file such a brief from the Appellate Body by noon on Thursday, 16 November 2000. 3. An application for leave to file such a written brief shall: (a) be made in writing, be dated and signed by the applicant, and include the address and other contact details of the applicant; (b) be in no case longer than three typed pages; (c) contain a description of the applicant, including a statement of the membership and legal status of the applicant, the general objectives pursued by the applicant, the nature of the activities of the applicant, and the sources of financing of the applicant; (d) specify the nature of the interest the applicant has in this appeal; (e) identify the specific issues of law covered in the Panel Report and legal interpretations developed by the Panel that are the subject of this appeal, as set forth in the Notice of Appeal (WT/DS135/8) dated 23 October 2000, which the applicant intends to address in its written brief; (f) state why it would be desirable, in the interests of achieving a satisfactory settlement of the matter at issue, in accordance with the rights and obligations of WTO Members under the DSU and the other covered agreements, for the Appellate Body to grant the applicant leave to file a written brief in this appeal; and indicate, in particular, in what way the applicant will make a contribution to the resolution of this dispute that is not likely to be re69

Appellate Body, see above, para. 51.

Ohlhoff/Schloemann,

Transcending the Nation-State?

695

petitive of what has been already submitted by a party or third party to this dispute; and (g) contain a statement disclosing whether the applicant has any relationship, direct or indirect, with any party or any third party to this dispute, as well as whether it has, or will, receive any assistance, financial or otherwise, from a party or a third party to this dispute in the preparation of its application for leave or its written brief. 4. The Appellate Body will review and consider each application for leave to file a written brief and will, without delay, render a decision whether to grant or deny such leave. 5. The grant of leave to file a brief by the Appellate Body does not imply that the Appellate Body will address, in its Report, the legal arguments made in such a brief. 6. Any person, other than a party or a third party to this dispute, granted leave to file a written brief with the Appellate Body, must file its brief with the Appellate Body Secretariat by noon on Monday, 27 November 2000. 7. A written brief filed with the Appellate Body by an applicant granted leave to file such a brief shall: (a) be dated and signed by the person filing the brief; (b) be concise and in no case longer than 20 typed pages, including any appendices; and (c) set out a precise statement, strictly limited to legal arguments, supporting the applicant's legal position on the issues of law or legal interpretations in the Panel Report with respect to which the applicant has been granted leave to file a written brief. 8. An applicant granted leave shall, in addition to filing its written brief with the Appellate Body Secretariat, also serve a copy of its brief on all the parties and third parties to the dispute by noon on Monday, 27 November 2000. 9. The parties and the third parties to this dispute will be given a full and adequate opportunity by the Appellate Body to comment on and respond to any written brief filed with the Appellate Body by an applicant granted leave under this procedure." The Appellate Body's measures provoked intense and purportedly highly controversial discussions at subsequent meetings of the DSB. Many WTO Members took the view that the Appellate Body had overstepped the limits of its competence in taking this rather creative step.

696


In the end, however, the Appellate Body accepted none of the numerous amicus curiae briefs and requests for leave received. In the course of the proceeding, before the Additional Procedures had been published, the Appellate Body received 13 amicus curiae briefs from various NGOs. The Appellate Body returned these submissions to their authors informing them about the Additional Procedures and inviting them to request leave according to the procedures adopted. Pursuant to these Additional Procedures the Appellate Body received 17 requests for leave. The Appellate Body rejected six of them without further consideration because they were filed after the specified deadline.70 The remaining 11 applications were rejected without any detailed reasons given.71 The applicants were informed in short letters that they had failed to comply with the requirements. One brief which was submitted by a number of environmental organisations72 despite having been denied leave was not accepted.73

70

71

72

73

Association of Personal Injury Lawyers (United Kingdom); All India A.C. Pressure Pipe Manufacturer's Association (India); International Confederation of Free Trade Unions/European Trade Union Confederation (Belgium); Maharashtra Asbestos Cement Pipe Manufacturer's Association (India); Roofit Industries Ltd. (India); and Society for Occupational and Environmental Health (United States). Professor Robert Lloyd Howse (United States); Occupational & Environmental Diseases Associations (United Kingdom); American Public Health Association (United States); Centro de Estudios Comunitarios de la Unversidad Nacional de Rosario (Argentina); Only Nature Endures (India); Korea Asbestos Association (Korea); International Council on Metals and the Environment and American Chemistry Council (United States); European Chemical Industry Council (Belgium); Australian Centre for Environmental Law at the Australian National University (Australia); Associate Professor Jan McDonald and Mr. Don Anton (Australia); and a joint application from Foundation for Environmental Law and Development (United Kingdom); Center for International Environmental Law (Switzerland); International Ban Asbestos Secretariat (United Kingdom); Ban Asbestos International and Virtual Network (France); Greenpeace International (The Netherlands); World Wide Fund for Nature International (Switzerland), and Lutheran World Federation (Switzerland). Foundation for International Environmental Law and Development; Ban Asbestos (International and Virtual) Network; Greenpeace International; International Asbestos Secretariat, and World Wide Fund for Nature International. Appellate Body, see note 68, paras 53 to 57.


697

Those Members warning against increased transparency of the dispute settlement proceedings for non-Members found their views confirmed in Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland, where the confidentiality of the proceedings became an issue. Consuming Industries Trade Action Coalition (CITAC), a coalition of United States companies and trade associations, had submitted an amicus curiae brieP4 in which it had referred to specific arguments in Thailand's appellant submission, making explicit reference to "Section III.C.5 of the Thailand Submission". In Thailand's view it therefore appeared on the face of the CITAC brief that CITAC had had access to Thailand's brief, contrary to arts 17 para. 10 and 18 para. 2 of the DSU and that CITAC's submission should be rejected.75 The Appellate Body informed Poland and the third parties about Thailand's concerns and requested them to indicate whether any of its officials, or other representatives, counsel or consultants had provided a copy, or disclosed or otherwise communicated, the contents of Thailand's submission to any person not participating in these proceedings. The Appellate Body also requested Poland to respond to Thailand's allegation that the law firm acting as counsel to Poland had a client relationship with CITAC.76 In the end, the circumstances under which CITAC had been informed about the details of Thailand's submission could not be clarified. Poland explained that it had put into place "substantial internal confidentiality procedures" and that its law firm had withdrawn as its legal counsel in this appeal although, in Poland's view, there had been no proof of wrongdoing on the firm's part.77 The United States took the opportunity to raise a broader point regarding the transparency of the dispute settlement process. In its view, this matter "exemplified the need for enhanced transparency in WTO dispute settlement. [T]he practice of claiming confidential treatment for submissions that did not contain confidential business information corroded public support for the WTO dispute settlement system and inhibited the ability of mem74

75 76 77

Appellate Body Report of 5 April 2001, WT/DS122/AB/R, para. 62 Thailand — Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland (Thailand - Anti-Dumping Duties on Steel). Appellate Body, ibid., para. 63 et seq. Appellate Body, ibid., paras 68 et seq. Appellate Body, ibid., paras 71 et seq.

698


bers to represent fully the interests of their stakeholders."78 As in earlier cases, the Appellate Body found a prudent way out: it rejected the amicus cttriae brief received from CITAC noting that it found it to be irrelevant to its task. c. Briefs as Part of Member Submissions Another, indirect form of the introduction of private party statements in WTO proceedings has already been mentioned. In United States Shrimp the United States attached to its appellant's submission three exhibits which contained comments by, or "amicus curiae briefs" submitted by, three groups of environmental NGOs.79 In their joint appellees' submission, India, Pakistan, and Thailand, argued that the Appellate Body should reject the exhibits. In their view, "a number of the factual and legal assertions contained in the Exhibits go beyond the position taken by the United States".80 Therefore, the incorporation of the briefs into the United States' submission "gives rise both to contradictions and internal inconsistencies, and raises serious procedural and systemic problems."81 Malaysia also asked the Appellate Body not to admit the exhibits.82 In a communication to the parties the Appellate Body informed them that it had decided to accept for consideration the legal arguments made by the NGOs in the briefs attached as exhibits to the United States' submission to the extent that they may be pertinent. It also asked the United States to clarify to what extent it agreed with or adopted the legal arguments set out in the exhibits. The United States responded that: "[t]he main U.S. submission reflects the views of the United States on the legal issues in this appeal [...] The United States is not adopt78 79

80 81 82

Appellate Body, ibid., para. 73. First, the Earth Island Institute; the Humane Society of the United States; and the Sierra Club; second, the Center for International Environmental Law ("CIEL"); the Centre for Marine Conservation; the Environmental Foundation Ltd.; the Mangrove Action Project; the Philippines Ecological Network; Red Nacional de Accion Ecologica, and Sobrevivencia; and, third, the Worldwide Fund for Nature and the Foundation for International Environmental Law and Development. Appellate Body, see note 45, para. 80. Appellate Body, ibid., para. 81. Appellate Body, ibid., para. 82.


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ing [the NGOs'] views as separate matters to which the Appellate Body must respond. The United States agrees with the legal arguments in the submissions of the [NGOs] to the extent those arguments concur with the U.S. arguments set out in our main submission." The Appellate Body found: "that the attaching of a brief or other material to the submission of either appellant or appellees, no matter how or where such material may have originated, renders that material at least prima facie an integral part of that participant's submission. On the one hand, it is of course for a participant in an appeal to determine for itself what to include in its submission. On the other hand, a participant filing a submission is properly regarded as assuming responsibility for the contents of that submission, including any annexes or other attachments."83 However, given the United States' tentative and qualified endorsement of the NGOs' views, the Appellate Body thought it appropriate to focus on the legal arguments in the main U.S. appellant's submission.84

2. Member Representation by Private Counsels and Other Private Sector Representatives Another very intermediate form of private party involvement is worth mentioning in particular because of its practical significance. A number of WTO Members have availed themselves of the help of private counsels or other private sector representatives in the conduct of dispute settlement proceedings. Private sector involvement can provide both valuable support to WTO Members, in particular, those with limited financial or personal resources, and an opportunity for the private sector to make itself heard in settlement of disputes in which it has a particular interest. It was long disputed whether private counsels or other private 83

84

Appellate Body, ibid., para. 89. The Appellate Body also had to decide the same question on appeal as regards the submission of amicus curiae briefs as part of the United States' submission to the Panel. It decided that the Panel was right to allow the United States to designate the amicus briefs or parts thereof as integral part of its own statement. Thus, the Panel could consider those briefs like any other documents filed by the United States, para. 109. Appellate Body, see note 45, para. 90.

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sector representatives should be admitted to act as counsel to the Members before panels or the Appellate Body. In European Communities Regime for the Importation, Sale and Distribution of Bananas (European Communities - Bananas) the Panel did not admit private lawyers to appear before it as counsels to a developing country Member. The Appellate Body, on appeal, admitted the lawyers. The Panel had argued that it had been common practice to reject private counsel in GATT and WTO dispute settlement proceedings if one party objected. The Panel expressed concerns about the confidentiality and the fairness of the proceedings. It also referred to its working procedures which it felt excluded private lawyers from Panel meetings. If private counsel were admitted, the Panel argued, the intergovernmental character of WTO dispute settlement proceedings would change.85 In the appellate proceedings, Santa Lucia again requested that its private counsel be admitted to the oral hearing. It argued that, in its view, private lawyers as such should be allowed to represent a state before a panel or the Appellate Body. Further, a WTO Member had the sovereign right to decide who was part of its official delegation and therefore a governmental representative and was free to extend that status to its lawyers. In contrast, the United States, Mexico and the other complaining parties argued that there was no basis for the WTO to change its established practice in the area. "WTO dispute settlement [...] is dispute settlement among governments, and it is for this reason that the DSU safeguards the privacy of the parties during recourse to dispute settlement procedures". Also, neither the Vienna Convention on Diplomatic Relations nor general rules on diplomatic relations gave states carte blanche as to whom they may appoint to their delegations. As regards the presence of private lawyers before other international tribunals, this was based on specific rules to be agreed between the parties to the pertinent international agreements. Moreover, developing countries were entitled to assistance from the WTO Secretariat if necessary. Finally, if private lawyers were allowed to participate, a number of issues concerning "lawyers' ethics", conflicts of interest, representation of multiple governments and confidentiality would need to be resolved.86

85

86

Panel Report of 22 May 1997, WT/DS27/R, para. 7.11, European Communities - Regime for the Importation, Sale and Distribution of Bananas. Appellate Body, see note 3.

Oblhoff/Schloemann, Transcending the Nation-State?

701

The Appellate Body eventually accepted that Saint Lucia be represented at the oral hearing by private counsel. It noted that nothing in the Marrakesh Agreement, the DSU nor the Working Procedures, nor in customary international law or in the prevailing practice of international tribunals, gave conclusive indications as to the composition of a Member's delegation in WTO appellate proceedings. Accordingly, "it is for a WTO Member to decide who should represent it as a member of its delegation in an oral hearing of the Appellate Body. Representation by counsel of a government's own choice may well be a matter of particular significance — especially for developing-country Members — to enable them to participate fully in dispute settlement proceedings. Moreover, given the Appellate Body's mandate to review only issues of law or legal interpretation in panel reports, it is particularly important that governments be represented by qualified counsel in Appellate Body proceedings. "87 The Appellate Body's view was later followed by panels. In Indonesia - Certain Measures Affecting the Automobile Industry, Indonesia declared that two private lawyers were members of its delegation. The United States requested the Panel to exclude them from the Panel meeting. The Panel decided to admit the lawyers. In line with the Appellate Body's analysis in the Bananas Case, it concluded that it was "for the government of Indonesia to nominate the members of its delegation to the meetings". However, it emphasized that "all members of parties' delegations — whether or not they are government employees — are present as representatives of their government, and as such are subject to the provisions of the DSU and of the standard working procedures". In particular, those provisions required confidentiality of all submissions to the Panel and all information so designated by other members as well as for the closed sessions. Therefore, the Panel expected all delegations to "fully respect those obligations" and to "treat these proceedings with the utmost circumspection and discretion". It stated that the Members would be held responsible for all actions of their nominated and so confirmed

87

Appellate Body, ibid., paras 10 et seq. See generally J.M. Lang, "The Role of Private Legal Admissions in International Economic Disputes", in: U. Immenga/ N. Liibben/ H.P. Schwintowski (eds), Conflict Resolution in a Global Economy, 2001,39 et seq.

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representatives of their governments and that they had to abide by all of the applicable provisions.88 As in the context of amicus curiae briefs, the protection of confidentiality was also the focus of discussions on the participation of private counsel. In Korea - Taxes on Alcoholic Beverages, for example, Korea indicated that it intended to retain expert counsel. The European Communities emphasized the importance of preserving the confidentiality of panel proceedings and insisted on Korea's assurance of full responsibility for its private counsels. The United States was of the view that private lawyers should not be admitted. In any case, appropriate measures should insure the confidentiality of the proceedings.89 The Panel admitted Korea's lawyers during the proceedings. However, it stressed that "the private counsel concerned are official members of the delegation of Korea, that they are retained by and responsible to the government of Korea, and that they will fully respect the confidentiality of the proceedings and that Korea assumes full responsibility for confidentiality of the proceedings on behalf of all members of its delegation, including non-government employees."90 The Panel further stressed that, in the event that confidential written submissions should be provided to non-governmental advisors who are not official members of the delegation, the duty of confidentiality extends to them as well.91 The protection of confidential information, although lawyers' bread and butter, nonetheless remains an important issue, as exposed recently at some length in the Appellate Body report in Thailand - Antidumping Duties on Steel. In this case, Thailand's appellant submission became to be known by a non-governmental organisation representing U.S. business interests. The organisation was a client of the law firm representing Poland, the complaining party in this dispute. Although wrong-doing by the law firm was not proven, Poland, in an apparently symbolic gesture, withdrew the firm as its counsel from the case.92

88

89

90 91 92

Panel Report of 2 July 1998, WT/DS55/R, para. 14.1 Indonesia - Certain Measures Affecting the Automobile Industry. Panel Report of 17 September 1998, WT/DS75/R, paras 10.27 et seq., Korea - Taxes on Alcoholic Beverages (Korea - Alcoholic Beverages'). Panel Report, ibid., para. 10.31. Panel Report, ibid., para. 10.32. Appellate Body, see note 74, paras 62-78, and above Section Ill.l.b.


703

3. Conclusion While the issue of private lawyer presence at hearings of the dispute settlement institutions of the WTO appears to have been settled and accepted by WTO Members in principle, the admissibility, and the treatment of, amicus curiae briefs in panel or appellate proceedings is still, and will be for some time, a matter of intense debate. Panels and the Appellate Body have resolved that they have the discretionary right to accept and consider such briefs where appropriate. The approach taken appears concise and consistent in theory.93 In practice, however, panels and the Appellate Body have accepted and considered amicus curiae briefs only in a very limited number of instances; mostly, they were rejected, in many cases without any apparent reason. More importantly, however, as evidenced by the opposition of WTO Members in the Asbestos Case, the Appellate Body, in the view of many WTO Members, has stretched its judicial tasks and powers to interpret the WTO agreements, in particular the DSU, to their constitutional limits within the WTO system. While those concerned in the private sector pressed hard to get their hands on the WTO's dispute settlement system, many WTO Members did not appear to be prepared to render even a small part of control over the proceedings, and over their subject matter, to anyone but their peers in the system. They feel that the decision to accept and consider amicus curiae briefs goes beyond the Appellate Body's scope of powers under the DSU. In their view, the matter is to be considered a matter which directly bears on WTO Members' rights and obligations. It should therefore, taking into account the limits to the WTO's judicial system resulting, in particular, from article 3 para. 2 of the DSU, be decided by WTO Members rather than by the WTO judiciary. Indeed, there are a number of arguments which can be made to support the view that WTO Members should continue to maintain exclusive control over the dispute settlement proceedings. There is the risk of politicising disputes if the public were granted unlimited access to voice its views in the court house. Also, the more the public gets access to dispute settlement proceedings the more difficult it becomes to protect the confidentiality of information in proceedings concerning sensitive matters involving, for example, business secrets of the industries concerned. Moreover, small developing countries with only little, if any, resources to conduct dispute settlement proceedings may be over93

See, however, for a critical analysis Appleton, see note 38,691 et seq.

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whelmed by the amount of information they might have to manage in high-profile cases attracting a lot of interest. Without knowing which information the dispute settlement institutions will rely on, responding to the material in front of them becomes a game of Russian Roulette. Also, and more systematically, the WTO is an organisation of states; its legal system is a regime with rights and obligations exclusively granted to, and imposed on states. Its dispute settlement system serves to resolve disputes between the members of the organisation about their understanding of the rights and obligations existing between them. Important and justified as it may be, giving the public a say, it might be argued, is in the absence of rights and obligations for the private sector, an alien element and should be treated with restraint in a still state-driven system. However, who but those concerned by the subject-matter of a proceeding are better suited to comment on it ? How could the WTO's credibility and legitimacy in the public sphere be increased without opening the doors to a secretive dispute settlement mechanism which is at the heart of the constitutionalised WTO? Many of the developing country members and other WTO Members' concerns are of a practical nature; they could be remedied by practical solutions. The Appellate Body's attempt to formalise, and clarify, its dealings with amicus curiae briefs in the Asbestos Case provides a first illustration of how the number of such briefs and their volume can be limited to manageable portions. Also, in the same case, the Appellate Body presented a model which put it in a position to ensure that only such briefs which are relevant to its task, as defined by its terms of reference, would reach the stage of consideration. The issue requires, and will most likely receive, clarification by WTO Members in the ensuing reform of the WTO dispute settlement mechanism. Doing so will not be the most important matter for WTO members to resolve in the area of dispute settlement in the next few months; yet, so as to reassert the confidence of both WTO Members and the public in the WTO's dispute settlement, a viable answer is needed to both WTO Members' legitimate concern to preserve the dispute settlement system as a tool in their hands and the private sector's legitimate interest in increasing the system's transparency and its ability to render fair and equitable decisions.


705

IV. The (Supra-)National Level Private parties, as seen in the preceding sections, may in some form or another be empowered to have a part in the process of enforcement of international trade law as it takes part between its subjects, the states. There, however, their role is limited to voicing their immediate interest in a mediate manner. They are not, really, part of the game. They may argue their somehow recognised interests within the law, but the law is not theirs, they are not part of it, only the pawns in the states' game. They are not players on the (public) international legal stage, but spectators who by their applause or booing may influence the players and/or the referee. The reason is their lack of "subjectivity" in public international, and therefore international trade law. So the focus shifts: if private parties cannot come to international trade law, can — and does — international trade law come to them? The question is whether and to what extent international trade law is, may be, or may become part of national law so as to be applicable to, and usable by, private parties, subjects of national law.94 The role and function of international trade law in national law has been the subject of much debate under the old GAIT 1947. With the inception of the WTO in 1995 and the significant step towards constitutionalization95 of the multilateral trading system it entailed, however, the question received new substance. WTO law was now law and no longer a mere framework of diplomatic guidelines, and hence would offer itself to legal applications rather than mere political consideration. After all, the application of stated law, as such, can be performed in all 94

95

National law in this sense, of course, includes EC and other supranational law directly applicable to private citizens of the respective legal realm. See, e.g. H. Schloemann/ S. Ohlhoff, "Constitutionalization and Dispute Settlement in the WTO: National Security as an Issue of Competence", AJIL 93 (1999), 424 et seq., footnote 1, with further references. Other terms used to describe the development from the GATT to the WTO system include, e.g. "legalization" and "juridicization" (see ibid for references). We consider that while all these are useful and correct, they do not fully capture what has happened, or rather is happening in the international trading system and beyond, i.e., in our view, the emergence of a constitutional realm of international economic and to some extent non-economic political relations. See also S. Ohlhoff/ H. Schloemann, "Rational Allocation of Disputes and Constitutionalization: Forum Choice as an Issue of Competence", in: J. Cameron/ K. Campbell (eds), Dispute Resolution in the WTO, 1998,302 et seq.

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legal systems, national just as well as international. Pointedly put: with the advent of the WTO, direct effect of its law became a question of political will, not one of legal possibility. Of course the question of applicability of public international law, including treaties, in national systems is a matter of national constitutional (and other national) law. But whether and to what extent international trade law can be received into the national realm, if the constitution (and/or other national law) so provides, may depend strongly on the structural characteristics of the treaties and customary law norms in question. It is this point that has nurtured most of the debate within the EC, and before the ECJ. One may envisage different forms in which international trade law may take effect in national law. First, it may become part of national law and be directly applicable so as to produce direct effect, i.e., create legal rights and obligations inter alia for private parties. This may happen directly through a monist national constitutional setting or through implementing legislation. Second, implementing legislation may incorporate parts of international trade law into specific regulations, e.g., in anti-dumping or other areas, thereby creating a selective applicability. Third, international trade law may take indirect effect in national systems through the institution of consistent interpretation. Of course, a multitude of variations of the interplay of national and international law are imaginable. In our analysis we will take the reception of WTO law into national systems as an example. Other trade agreements of all sorts have received individual treatment that has, in some instances, differed, depending on a multitude of legal, but mostly more political factors. We concentrate on WTO law because it aspires to universality and is therefore arguably the key to our subject question: is the nation-state being transcended?

1. Direct Effect? International Trade Law within the EC In its legislation implementing the Uruguay Round agreements, the United States has left nothing to chance, i.e., to national courts: it has expressly ruled out that private parties may rely on WTO law before national U.S. courts.96 The situation in many other Members, however, 96

1994 Uruguay Round Agreements Act, 19 USC § 3511, Pub. L. No. 103 465 (1994), § 102(c).


707

is more complex. One example is the EC, where the question of the internal effect of WTO law has led to a rich debate on the underlying systematic issues and to a less rich but nonetheless interesting ECJ jurisprudence. In the following we will concentrate on this example as it highlights the attempt of a differentiated approach. Can private parties use international trade law as "their" law within the EC? Different forms of "use" are imaginable: 1. Claims based on immediately applica 2. ble rights conferred by international trade law — in EC parlance: "direct effect". This presupposes that individual rights can be extracted from the treaty in question. 3. Claims based on rights conferred by national law (e.g. constitutional liberties) which have been restricted by national measures which are incompatible with applicable international trade law. Here, trade law itself does not confer individual rights but is a yardstick for the validity, or applicability, of a rights restricting national measure. 4. Claims based on rights provided by national law by express or implied reference to international trade law as a whole or to specific treaty provisions. Examples of this are the EC Trade Barriers Regulation and the U.S. "Section 301 ".97 5. Claims based on rights conferred by national law as interpreted in conformity with international trade law ("consistent interpretation"). a. Overview: The ECJ's present position on WTO law Article 300 para. 7 of the EC Treaty (formerly article 228 para. 7) provides the basis for considering whether WTO law is EC law. It reads as follows: "Agreements concluded under the conditions set out in this Article shall be binding on the institutions of the Community and the Member States." The issue, on the face of it, is straightforward: Community agreements (such as the WTO Agreement and the agreements under its umbrella98) 97 98

See above notes 6 and 7. While the EC's "membership" in GATT 1947 was a difficult issue which the Court had to resolve in International Fruit (International Fruit Com-

708


are Community law, and their hierarchical status is between primary and secondary law." The Community, in other words, subscribes to a form of monism. But what exactly that means for the applicability of the WTO agreements under Community law to Member States and private parties alike is a matter of debate. After the inception of the WTO, many assumed, hoped or feared that the ECJ would allow WTO law to become part of everyday EC law, in contrast to its earlier position on the GATT 1947 and despite the Council stating in the preamble of its decision on the conclusion of the WTO agreements that "by its nature, the Agreement establishing the World Trade Organization, including the Annexes thereto, is not susceptible to being directly invoked in Community or Member States courts."100 The new legal quality of the WTO regime as a whole, and the ECJ's earlier jurisprudence on the status and effect of Community treaties in Community law, many argued, would compel the ECJ to accord immediate applicability, in particular "direct effect," to WTO law. In this view, an importer may directly rely on the EC's GATT commitments to obtain a certain customs classification or tariff rate, or a foreign service provider may attack discriminatory licensing practices of Member States' regulatory authorities before Community courts by direct reference to the EC's GATS commitments.

99

100

pony NV and others v. Produktschap voor Groenten en Fruit, Judgement of 12 December 1972, ECR 1972, 1219) (concluding that the Community has assumed membership from and through its Member States), the EC (as well as the European Community for Coal and Steel and Euratom) is now, alongside and parallel to its Member States, a Member of the WTO and a party to all agreements under its umbrella. The exact reach of the Community's and the Member States' respective competences to conclude the agreements was clarified in the ECJ's Advisory Opinion 1/94 of 15 November 1994, ECR 1994,1-5267. Permanent position of the ECJ since International Fruit Company, see above, paras 5 et seq. Cf. A. Ott, GATT ttnd WTO im Gemeinscbaftsrecht, 1997, 68 et seq.; A. Epiney, "Zur Stellung des Volkerrechts in der EU", EuZW 10 (1999), 5 et seq., (6 et seq.). Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994), OJ. 1994, L 336/1.


709

The ECJ, however, did not do this. It avoided the question as long as it could. This became most apparent in Hermesm in 1998, when to the surprise of observers, it found it unnecessary to decide the question of direct effect despite extensive treatment of the matter (and pleas in favour of direct effect) by the Advocate General Tesauro. When the Court was finally forced to pronounce itself on the status of WTO law in Community law in Portugal v. Council in November 1999, it outright denied WTO law's direct applicability in, or as, EC law, in this case even in a claim by a Member State against the Council. Echoing its earlier jurisprudence on GAIT 1947, the Court made a reasonably unambiguous statement of principle: "[Hjaving regard to their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions."102 Ever since, the ECJ and the Court of First Instance have repeated this mantra more or less verbatim whenever the need arose, most recently in the joint cases Dior and Assco103 and the parallel cases Cordis, T. Port and Bocchi.104 Despite fierce opposition from some legal scholars,105 it must by now be seen as established ECJ jurisprudence that WTO law as a whole cannot be directly invoked either by a Member State or a private party against a Community or a Member State measure as a matter of Community law. In the above classification, this applies (without differentiation or visible discussion by the ECJ) to modes (1) and (2). Starting from the principle of non-applicability (or non-invocability), the ECJ accepts three exceptional cases in which WTO law may be invoked before Community courts: - If Community law leaves room for WTO compatible interpretation - If Community law expressly incorporates WTO law; and - If a Community measure aims to implement WTO law. 101

102

103 104 105

Hermes International v. FHT Marketing Choice BV, Judgement of 16 June 1998, ECR 1998,1-3637. Case C-149/96, Portuguese Republic v. Council, Judgement of the Court of 23 November 1999, para. 47. See note 155 and accompanying text. See notes 155,157,158 and accompanying text. Petersmann, see note 1 (before Portugal v. Council, referring mainly to Bananas).

710


At a closer look, however, all three cases are not really exceptions to the rule the ECJ's mantra establishes, namely that secondary Community law is not subject to compatibility with WTO law, or more pointedly: that for purposes of rights of individuals and EC Member States alike, secondary Community law trumps WTO law. WTO law only becomes applicable, or rather: invocable, where it "doesn't hurt" (in the first case: consistent interpretation) or by virtue of an act of the community legislator (in the latter two cases). CM. Consistent Interpretation The first case is, of course, not specific to WTO law. The principle of "consistent interpretation" (of Community law with international law binding the Community) is not new but has been pronounced most clearly recently in Commission v. Germany where the Court put it in context with other cases where consistent interpretation is due: "When the wording of secondary Community legislation is open to more than one interpretation, preference should be given as far as possible to the interpretation which renders the provision consistent with the [EC] Treaty. Likewise, an implementing regulation must, if possible, be given the interpretation consistent with the basic regulation (see C-90/92 Dr. Tretter v. Hauptzollamt Stuttgart-Ost [1993] ECRI-3569 paragraph 11). Similarly, the primacy of international agreements concluded by the Community over provisions of secondary Community legislation means that such provision must, so far as possible, be interpreted in a manner that is consistent with those agreements."106 The principle is, in varying forms, applied in many other jurisdictions.107 As Cottier/ Schefer point out, consistent interpretation is an important means to avoid unnecessary conflict between national and

106

107

Commission v. Federal Republic of Germany, Case C-61/94, ECR 1996,13989,1-4021, para. 52. A year earlier, in Fritz Werner GmbH v. Federal Republic of Germany, Case C-70/94, Judgement of 17 October 1995, ECR 1995,1-3189, the Court had referred to a GATT provision as support for its interpretation of a Community regulation on export controls (para. 23). The U.S. Supreme Court has established the same for U.S. law very early in 1804, in the famous Charming Betsy Case, where Chief Justice Marshall held that "an act of Congress shall never to be construed to violate the law of nations if any other construction is possible." 2 Cranch 64 (1804).

Ohlboff/Scbloemann, Transcending the Nation-State ?

711

international law that is independent of whether the interpreting judge is bound by a monist or dualist constitution.108 The mechanism is, of course, putty in the hands of courts, specifically the ECJ. As in the case of horizontal (in)direct effect of not or insufficiently transformed Community directives,109 the limits of interpretation are themselves a matter of interpretation. In spite and because of this, the relevance and potential of this form of application of WTO law for private parties should not be underestimated. In fact, WTO rule language may often be more precise than national legislation110 and therefore operate as a welcome clarification tool even in the eyes of reluctant judges. bb. Incorporation by Reference The latter two "exceptions", in fact, go back to earlier decisions under GATT 1947, namely Fediol III111 and Nakajima,112 and have been reaffirmed by recent decisions under the WTO, namely Portugal v. Council.113 In Fediol ///, the Court had to decide whether the reference in the "New Trade Policy Instrument"114 to "illicit commercial practice" and the rules of international law, in particular those of GATT, meant that these rules were thereby included into the regulation and were thus open to application by private petitioners and ultimately reviewed by the Court. The Court, rebuffing the Commission which had attempted to rely on the International Fruit jurisprudence that GAIT rules were not fit to be invoked by private parties before Community courts, answered in the affirmative: 108

109

110 111

112

113 114

T. Cottier/ K. Nadakavukaren Schefer, "The Relationship between World Trade Organization Law, National and Regional Law",//EZ. 1 (1998), 83 et seq.,(90). See in particular the landmark case C-106/89, Marleasing SA v. La Comerdal International de Alimentation SA, Judgement of 13 November 1990, ECR 1990,1-4135, paras 6-9. Cottier/ Schefer, see note 108,90. Case 70/87, Federation de Industrie de I'huilerie de la CEE (Fediol) v. Commission, Judgement of 22 June 1989, ECR 1989,1781. Case C-69/89, Nakajima All Precision Co. Ltd v. Council of the European Community, Judgement of the Court of 7 May 1991, ECR 1991,1-2069. See note 102, para. 49. Council Regulation 2641/84, OJ. 1984 L 252, page 1.

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"It follows that, since Regulation Nr. 2641/84 entitles the economic agents concerned to rely on the GATT provisions in the complaint which they lodge with the Commission in order to establish the illicit nature of the commercial practices which they consider to have harmed them, those same economic agents are entitled to request the Court to exercise its powers of review over the legality of the Commission's decision applying those provisions."115 The rationale is straightforward: where Community law expressly incorporates WTO law by reference, it becomes thereby, i.e., by virtue of that incorporation, applicable secondary Community law and may consequently be invoked before Community courts. This is no different from other cases of inclusion by reference, e.g., of technical data or the like. Of course, while this mechanism opens certain areas of (then) direct application of international trade law, the fact that WTO in this case comes in the guise, and assumes the status, of secondary Community legislation, cannot invalidate or trump other secondary law (except through application of general principles applying to conflicting rules on the same hierarchical level, namely lex posterior and lex specialis). This technique — incorporation by reference — now finds its most prominent example in the Trade Barriers Regulation (TBR), the successor of the New Trade Policy Instrument, which takes a violation on international trade law as the triggering requirement for the TBR procedure. This mechanism serves in particular to address, through Community institutions, violations of international trade law by third countries.116 cc Act of Transformation The last "exception", first stated in Nakajima, is more complicated. Where Community law is explicitly or implicitly conceived to implement WTO law, the ECJ assumes it must be understood to aim to do so without limitation and without exception, unless explicitly stated. Based on this assumption, the Court measures the validity of the measure in question against the very WTO law it aims to implement. The rationale for applicability and invocability of WTO law, again, is the —

115 116

See note 111, para22. See Section IV. 2 below.


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in this case assumed — will of the community legislator to incorporate WTO law.117 How did the ECJ arrive at this point? In the following, we will sketch the development of the Court's jurisprudence on the issue from the old GAIT days until today. We will discuss certain points and elements of reasoning and, where appropriate, look at contradictions, or at least inconsistencies, in the Court's jurisprudence. Other authors have provided excellent studies exploring in detail the legal and political pros and cons of the direct effect of WTO law. In view of the practical focus of this overview, we can therefore restrict ourselves to brief comments and otherwise refer to those studies.118 117

118

By this act of transformation WTO law, thus, assumes the status of directly applicable EC law, but only in a negative function. However, an awkward edge remains: why would WTO law suddenly be accorded its higher place in the hierarchy of EC law (above, e.g., the regulation that aims to transform it) in accordance with article 300 para. 7 of the EC Treaty and thereby affect the validity of a piece of Community legislations, while it otherwise does not? The mechanism of article 300 para. 7 of the EC Treaty is straightforward: a Community treaty is applicable Community law. If the ECJ thinks that WTO by virtue of its nature is not fit to confer legal positions, it denies it, in effect, the legal status provided for by article 300 para. 7. If that is correct and fair, then it is strange that the Community legislator by virtue of its assumed will to transform WTO law correctly reinstates that status vis-a-vis the very act of transformation. If the legislator's will is the power that makes WTO law applicable, it cannot be used against, or outside of, that very act of will that gives it life. But of course, one may argue that it is simply a matter of inconsistency of the measure itself, that the will to transform correctly makes it inherently flawed if it does not. If this is the rationale it would have helped to say so clearly. See in particular (before Portugal v. Council) Cottier/ Schefer, see note 108, who provide a helpful overview of the different schools of thought and an equally helpful list of pros and cons in the annex; P. Eeckhout, "The Domestic Legal Status of the WTO Agreement: Interconnecting Legal Systems", CML Rev. 34 (1997), 11 et seq.; W. Meng, "Gedanken zur Frage unmittelbarer Anwendbarkeit von WTO-Recht in der EG", in: U. Beyerlin, see note 1, 1063 et seq.; J. Berkey, The European Court of Justice and Direct Effect for the GATT: A Question Worth Revisiting, http://www. jeanmonnetprogram.org/papers/98/98-3-.htm; (after Portugal v. Council); M. Hilf/ F. Schorkopf, WTO und EG: Rechtskonflikte vor dem EuGH?, Europarecht 2000, 74 et seq. Most recently, J. Bourgeois, "The European Court of Justice and the WTO: Problems and Challenges", in: J. Weiler (ed.), The EU, The WTO and The Nafta - Towards a Common Law of International Tradet 2000, 71 et seq.

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b. Before 1995: GATT 1947 in Community Law Looking at the status of GATT 1947 in EC law requires a slightly broader look at the general ECJ jurisprudence on the status of Community treaties in EC law. We have already seen the rather straightforward rule established by article 300 para. 7: Community treaties are Community law (and may be used as such before Community courts). The ECJ established this as early as 1972 in the International Fruit119 decision, albeit a fortiori; when it held that even the GAIT 1947, to which the Community as such had not been a signatory, was nonetheless binding on it. In this decision, the Court established a two step test for private parties invoking Community treaties: the international agreement must be binding on the Community, and the relevant provision must establish a right for Community citizens to rely on it. The GATT 1947 passed the first test, but failed the second. For the purposes of this analysis, it is useful to take a rather extensive look at this first pronouncement by the Court on the question of the direct effect of GATT: "19. It is also necessary to examine whether the provisions of the general agreement confer rights on citizens of the community on which they can rely before the courts in contesting the validity of a community measure. 20. For this purpose, the spirit, the general scheme and the terms of the general agreement must be considered. 21. This agreement which, according to its preamble, is based on the principle of negotiations undertaken on the basis of "reciprocal and mutually advantageous arrangements" is characterized by the great flexibility of its provisions, in particular those conferring the possibility of derogation, the measures to be taken when confronted with exceptional difficulties and the settlement of conflicts between the contracting parties. 22. Consequently, according to the first paragraph of article XXII "each contracting party shall accord sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, such representations as may be made by any other contracting party with respect to all matters affecting the operation of this agreement". 23. According to the second paragraph of the same article, "the contracting parties" — this name designating "the contracting par119

See note 98.


715

ties acting jointly" as is stated in the first paragraph of article XXV — "may consult with one or more contracting parties of any question to which a satisfactory solution cannot be found through the consultations provided under paragraph (1)". The reasoning for denying direct effect, thus, starts from "the spirit, the general scheme and the terms" of the GATT 1947 as the treaty under scrutiny and then finds essentially three points which carry the Courts thereafter constantly recalled statement that the rules of GATT 1947 were characterized by "great flexibility", so great that they were not fit to be invoked by private parties before Community courts: - reciprocity and (ongoing) negotiation as the basic principle, found in the preamble; - the diplomatic and flexible dispute settlement under arts XXII and XXIII of GATT 1947 and the equally flexible enforcement, allowing for the continuation of violations; and - the possibility for safeguards justifying violations of substantive GATT rules. It is worth keeping in mind, however, the starting point: the "spirit and general scheme" — it is this point that has allowed the Court to justify its continued denial of direct effect even under the WTO, as the "great flexibility" argument as such was significantly reduced. Parallel to, and in contrast with, its consequent rejection of the direct effect of the GATT 1947, the ECJ, in a series of judgements, showed itself favourable towards direct effect of other Community agreements, both association agreements and trade agreements, reaffirming that Community agreements are an "integral part" of the Community legal order subject to Court review. In its 1974 Haegeman II decision, the Court held that: "an Agreement concluded by the Council under Articles 228 and 238 of the EEC Treaty is, as far as it concerns the Community, an act of one of the institutions of the Community in the meaning of subparagraph (b) of the first paragraph of Article 177. From the date it comes into force, its provisions form an integral part of Community law."120

120

Case 181/73, R. V. Haegeman v. Belgian State ("Haegeman II") Judgement of the Court of 30 April 1974, ECR 74,449,1. The Court has subsequently reiterated this language, e.g., in Case 104/81, Hauptzollamt Mainz v. C.A.

716


In 1982, the ECJ held in Kupferberg that a German company could directly rely on a provision of the Free Trade Agreement between the (then) EEC and (the then non-Member State) Portugal. In this case, the Court stressed that, of course, the parties to a treaty were free to agree with one another on the executability of treaty provisions when concluding the treaty or otherwise. In the absence of such an agreement, i.e., if and when the question of direct effect is not addressed by the treaty itself, the Court was called upon to decide whether a provision should be applied as a matter of Community law.121 In this respect, the Court, referring to the public international law obligation to perform in good faith, stated that parties to a treaty are generally free to determine how to do so, "unless the agreement, interpreted in the light of its subject-matter and purpose, itself specifies those means", and went on to explicitly deny that reciprocity at this point was relevant: "Subject to that reservation, the fact that the Courts of one of the parties consider that certain of the stipulations in the agreement are of direct application whereas the courts of the other party do not recognize such direct application is not in itself such as to constitute a lack of reciprocity in the implementation of the agreement."122 The Court also rejected other possible arguments against the direct effect, namely the existence of an institutional framework for consultations123 and of a safeguards clause.124 After having concluded that the nature of the agreement thus did not prevent traders from relying on it, the Court went on to examine

121

122 123 124

Kupferberg ("Kupferberg"), Judgement of the Court of 26 October 1982, ECR 1982,3641, para. 13. Kupferberg, see above, para. 17. This is to be seen in contrast to the Council's attempt to rule out direct effect of WTO law through a unilateral and purely internal statement in the preamble of its decision on the conclusion of the Uruguay Round Agreements, see above. While Advocate General Tesauro in his opinion in Hermes (correctly) found the statement plainly irrelevant for the Court's analysis (ECR 1998,1-3606, para. 24 (1-3623), the Court referred obiter to the statement without further elaboration after it had found its mantra rejecting "invocability" in Portugal v. Council, see note 102, para. 48 ("That interpretation corresponds, moreover, to what is stated in the final recital in the preamble..."). Kupferberg, see note 120, para. 18. Ibid, para. 19-20. Ibid., para. 21.


717

whether the specific provision in point was "sufficiently precise" and "unconditional".125 In the 1986 Demirel decision, the ECJ distilled its jurisprudence on the internal effect of Community agreements into the principle: "A provision in an agreement concluded by the Community with non-member countries must be regarded as being directly applicable when, regard being had to its wording and the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of a subsequent measure."126 Despite its general openness towards direct application of Community agreements, the GATT 1947 continued to remain off limits, as established in International Fruit. The Court reaffirmed this in the most prominent of its many pronouncements in the Bananas cases, namely in the 1994 Germany v. Commission127 decision. This judgement is remarkable not because it reiterates the Court's understanding of the inappropriateness of direct effect of GATT law but because it also extends this rationale to Member States which are, strictly speaking, not subject to the subjective right requirements applicable to their citizens. Direct effect, in other words, had nothing to do with it. Nonetheless, the ECJ was undeterred and held that Germany could not rely on the GATT 1947 vis-a-vis Community institutions, even though this put Germany in the awkward position of being forced to breach the GATT (by virtue of the Community acting for it) with no chance of forcing the Community to comply. Both Member States and private parties

125

126

127

As stated earlier, it is rather clear for many GATT and WTO rules that they meet that standard. Consequently, the crucial step - where GATT failed at the time and WTO law fails today, in the eyes of the ECJ - is the "nature", "general spirit" and/or "general scheme" step, opened by the ideological interpretation ("object and purpose"). Needless to say: this particular interpretative step is rather accessible for, or vulnerable to, the injection of general (political) considerations. Case 12/86 Meryem Demirel v. Stadt Schwabiscb Gmiind, Judgement of 30 September 1987, ECR 1987, 3719, para 14. The agreement in point was the EC-Turkey Association Agreement. Case C-280/93, Federal Republic of Germany v. Council ("Bananas"), Judgement of 5 October 1994, ECR 1994,1-4973, paras 110-112.

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were thus in the same boat — they still are since the Court clarified the same result for WTO law in Portugal v. Council.129 By the time of the Banana decision, the canon of the rule (of no direct effect/no direct applicability) with its "exceptions" — explained above — was already complete. In 1989, the Court had ruled in Fediol 7//129 that international trade law becomes law invocable by private parties (and presumably Member States) if and when it is included in secondary Community law by reference. In 1991, the Court had established the second "exception" in its Nakajima130 judgement, namely that Community law will be measured against international trade law if and when it aims to implement it. Finally in Chiquita Italia,131, the Court was asked to rule on the compatibility of an Italian internal taxation law with certain GATT 1947 provisions. The decision, although rendered in 1995, dealt with a time period that concluded before the entry into force of the Uruguay Round agreements, so that these played no role. The Court, without further examination, reiterated its principle that the GATT 1947 was unfit to confer individual rights invocable in Community courts, referring back to its pronouncements in the 1994 Banana decision.132 Interestingly, however, this contrasts sharply with the Court's treatment of 128

129 130 131

132

See below Section IV 1. c. This indeed puts the Member States in a tricky situation: they are, like the Community itself, members of the WTO and are therefore bound vis-a-vis third parties as a matter of public international law. But as a matter of Community law, the EC is exclusively competent for international trade matters (article 133 of the EC Treaty). If the Member State is unable to force the Community to act in accordance with WTO law, the Member State is forced without recourse to act in violation of its public international law obligations. The ECJ does not address this point, although it would have been worth considering as one of the inherent problems of mixed agreements. A. v. Bogdandy/ T. Makatsch, "Kollision, Koexistenz oder Kooperation", EuZW 11 (2000), 261 et seq., defending the ECJ's denial of direct effect (for private parties) in principle, suggest allowing Member States to rely on WTO law vis-a-vis the Community. See for a general critique also M. Hahn/ G. Schuster, "Le droit des Etats membres de se prevaloir en justice d'un accord liant la communaute", RGDIP 99 (1995), 367 et seq. See note 111. See note 112. Case C-469/93, Amministrazione delle Finanze dello Stato v. Chiquita Italia, Judgement of 12 December 1995, ECR 1995,1-4533. Ibid., paras 26-29.

Ohlhoff/Schloemann, Transcending the Nation-State ?

719

the fourth ACP-EEC Convention in the same context. The Court went on at length to establish that a simple standstill provision contained in an additional protocol to the Convention had, in fact, direct effect.133 c. After 1995: Same Result, (slightly) different Reasons Looking at the reasons for the Court to reject direct effect of GATT 1947, there were indeed a few good reasons to expect that it may change, or rather adapt, its position in view of the new circumstances. In particular in view of the significant transition "from diplomacy to law" through the inception of the DSU which established a clearly adjudicatory, mandatory system with two instances, strict legal procedures and the negative consensus principle closing any escape route the GATT 1947 had offered. In fact, few international treaty systems, if any, have achieved that level of de jure and de facto binding law. The criteria used by the Court for denying direct effect to GATT 1947 — while being generous in giving direct effect to other Community agreements — as set out in International Fruit, namely the "great flexibility" of the rules in light of the object and purpose of the GATT and their "not unconditional"134 nature, seemed to have lost their bite. Could an international treaty be tougher than the WTO regime? But the Court did not make this step and instead adopted, or rather continued, what von Bogdandy/ Makatsch have appropriately labelled a "conflict avoidance strategy".135 For those who were waiting for the above sketched move, the Court's 1996 judgement in Commission v. Germany™ supported their expectations. The Court agreed with the Commission that Germany was, based on article 228 (now 300) of the EC Treaty, as a matter of applicable Community law, bound to conform to an agreement on dairy products concluded by the Community in the GATT Tokyo Round,137 i.e., an agreement under the GATT 1947. Without further ado, thus, the Court subjected Germany to the legal obligations of a Community agreement as a matter of Community law. Let it be recalled, in this context, that article 300 makes no distinction between Community in133 134 135 136

137

Ibid., paras 54-63. Bananas, see note 127, para. 110. v. Bogdandy/ Makatsch, see note 128,265. Case C-61/94, Commission v. Federal Republic of Germany^ Judgement of 10 September 1996, ECR 1996,1-3989. Id., para. 15

720


stitutions and Member States: both are equally bound (or not bound) by Community treaties. When the Hermes Case was to be decided, everyone expected a clear word from the Court.138 A Dutch court, faced with an application to render a ruling based on article 50 para. 6 of the TRIPs Agreement on a case involving an internationally registered (non-Community) trademark right (inter alia for the Netherlands), had asked the ECJ whether a measure under certain general provisions of Dutch procedural law was to be understood as a provisional measure in the sense of article 50 of the TRIPs Agreement. Advocate General Tesauro139 had gone to great length to demonstrate that after the changes made in the Uruguay Round, it was now time to consider direct effect. In his deliberations, worth reading in detail, Tesauro carefully addressed all of the Court's "old" reasons for denying direct effect to GATT 1947 and concluded that they are no longer applicable to WTO law: - the "great flexibility" that may have characterized the old GAIT 1947 was certainly no inversion of the system of rules and exceptions — he refers in particular to the Understanding on Balance of Payment provisions in GATT140 and the Safeguards Agreement141 so that the "fabric" of the system was now clearly comparable to other binding treaties142; - theflexibleGATT dispute settlement allowing for a blockage by the violating state had been replaced by the DSU providing for the 138

139 140

141

142

A few months before, the Court had already once declined to answer the question of direct effect in T. Port GmbH & Co. v. Hauptzollamt Hamburg-Jonas, joined cases C-364/95 and C-365/95, para. 66, this time with good reason, as the question by the Finanzgericht Hamburg had been conditional upon applicability of article 234 of the EC Treaty (now article 307) - priority for earlier agreements vis-a-vis the EC Treaty - which the Court denied as Ecuador, the relevant state in this case, had not been a GAIT 1947 contracting party and had joined the WTO only in 1996, i.e., after the relevant events of the case. See note 121. Understanding on the Balance-of-Payments Provisions of the General Agreement on Tariffs and Trade 1994 (complementing arts XII and XVIII of GATT 1994). Agreement on Safeguards (complementing arts XII and XIX of GAIT 1994). See note 121, ECR 1998,1-3606, paras 28,29.


721

"negative consensus" rule, i.e., providing for mandatory and binding dispute settlement without escape;143 - and the possibility of compensation instead of performance in the case of an adverse panel decision only offered temporary relief and did not make the obligations non-binding.144 Tesauro concluded that the Court in his view would have to change its position in light of its overall jurisprudence regarding direct effect of international agreements. Finally, interestingly, he hinted that if the Court wanted to deny direct effect because of the lack of reciprocal jurisprudence of other member's courts, it should do so openly under the principle of "reciprocity of implementation" — or even generally defer to the "political organs" prerogative to "administer" international agreements.145 Despite this unusually passionate plea from the Advocate General, the Court showed itself unimpressed and simply denied that it even had to answer the question of direct effect — apparently because the Dutch court had only asked for an interpretation of article 50 para. 6 of TRIPs. But this was an escape: as Tesauro had explained in his opinion, the Dutch court apparently presupposed that the provision had direct effect, hence the question had to be addressed.146 In general, it was unusual for the Court to be overly restrained when called to assist national courts in article 234 (then article 177) proceedings. The Court, thus, limited itself to an interpretation of article 50 TRIPs, strictly answering the Dutch court's question. In effect, the Court's evasion seems awkward. It seems clear that the question of direct effect was directly relevant to the case and should have been decided there and then. If the provision was directly applicable as a matter of Community law, it was clearly necessary for the Dutch court to know this. Even more so in the opposite case. Perhaps the most interesting decision for the entire debate was rendered on the very same day as Hermes and had nothing to do with WTO law: in Rackey the Court decided that a private party could rely on general rules of customary international law on the termination of treaties — in this case the clausula rebus sic stantibus147 — to claim the 143 144 145 146 147

Ibid Ibid. Ibid., para. 35. Ibid., paras 8,24. As reflected in article 62 of the Vienna Convention on the Law of Treaties.

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invalidity (or inapplicability) of a norm of secondary Community law.148 Through a regulation based on the termination of the ECYugoslavia Agreement, the Council had amended earlier regulations based on the Agreement on which Racke wanted to rely to its benefit. If this quite impressive judgement giving "indirect direct" effect to customary international law is to hold, it arguably puts the Court at odds with its continued denial formula regarding WTO law: the question of "direct effect" is perhaps beside the point, after all.149 According to Racke, the question is one of the legality of secondary Community law — which is simply illegal if it violates superior international law. If that is the issue, then the question whether WTO law is able to confer individual rights is in most cases irrelevant, as the individual right in question (say: the import of Bananas unrestricted by the Banana regime) which is affected by the secondary legislation under scrutiny may actually be rooted in Community law. If and when that is the case, WTO law should be at least as good as customary international law to serve as a measure of legality of such restricting measure, independent of whether it is itself able to confer individual rights. In Racke, thus, it became apparent that although the Court in its pronouncements on GAIT seemed to revolve around private rights, it actually didn't really do so. Under the (misleading) label of "direct effect Vdirect applicability", the issue was looked at much more broadly as the general question whether the treaty in question (here WTO agreements) is meant to be applicable as national (Community) law or not. In his opinion in Portugal v. Council in 1998, Advocate General Saggio put his finger in the wound. Portugal had contested the validity of a Council decision on the conclusion of bilateral textile agreements with Pakistan and India, inter alia claiming that they (and thus the decision) violated WTO obligations. Saggio exposed the central flaw in the Court's jurisprudence on GATT: the rules of the WTO are by virtue of article 300 para. 7 of the EC Treaty "parametres de legalite" of secondary Community law150 — a question quite distinct from the problem of whether these rules conferred individual rights. Just as the Community institutions, as decided in Racke, were bound to observe general rules of customary international law, they were equally bound to ob148

Case C-162, A. Racke GmbH & Co. v. Hauptzollamt Mainz ("Racke"), Judgement of the Court of 16 June 1998, in particular paras 42-43. 149 The Court even stated so ibid, para. 47. 150 Case C-149/96, Opinion of the Advocate General of 25 February 1999, in particular para. 18.

Ohlhoff/Schloemann,

Transcending the Nation-State?

723

serve Community treaties. These are, thereby, conditions of legality (validity or applicability151) of secondary Community law. If they are, the question of whether they confer individual rights (in this case even, as in Bananas, individual rights of Member States) is immaterial: the individual (or Member State) may find the rights affected by the relevant secondary Community law most notably in the constitutionally guaranteed basic rights, e.g., of freedom of profession or of property etc. Basic constitutional understanding establishes that these rights may only be affected (if at all) by properly conceived laws. If WTO is a "parameter of legality" for secondary Community law, then individuals and Member States negatively affected by such law in the exercise of their otherwise guaranteed rights may claim its invalidity (or inapplicability, as the case may be). The Court, however did not bow. Just as in International Fruit 26 years earlier, the Court set out to analyse whether WTO law as a package met the standard of an agreement that could be invoked before Community courts (not making any distinction between private parties and Member States). In a visible attempt to establish (the semblance of) jurisprudencial continuity, the Court referred a number of times to its Kupferberg decision and extracted namely the criterion of whether the Community agreement at issue "interpreted in the light of its subjectmatter and purpose", itself specifies the means of its implementation.152 Acknowledging that the DSU and the WTO agreements had introduced major changes, the Court nonetheless found generally that "the system resulting from those agreements nevertheless accords considerable importance to negotiation between the parties" — a variation of the "great flexibility" label attached to GATT 1947. The Court then found that the principle of openness to negotiation notably in article 22 para. 2 of the DSU which allows for negotiations on (temporary) compensation in lieu of specific performance if a member cannot, or chooses not to, bring itself into conformity with a panel or Appellate Body ruling, and concluded: "Consequently, to require the judicial organs to refrain from applying the rules of domestic law which are inconsistent with the 151

152

For the purposes of this sketch of the issues, it is immaterial what exactly "parameter of legality" would mean. In line with the general principles of the relationship between Community law and Member State law, one may tend towards assuming a relationship of priority of application rather than of strict conditions for validity. Ibid., para. 35, referring to Kupferberg, see note 120, para. 18.

724


WTO agreements would have the consequence of depriving the legislative or executive organs of the contracting parties of the possibility afforded by Article 22 of [the DSU] of entering into negotiated arrangements even on a temporary basis."153 From this, the Court concludes that the WTO agreements do not themselves provide how they are to be implemented154 (i.e., that they do not establish, as such, immediately binding rules). Such an argument is rather weak, if not a complete failure. The fact that the parties to international agreements may at any time enter into negotiations with a view to modify their terms, agree on enforcement etc., is not only quite distinct from the question of whether an agreement is substantively binding but also applies to each and every treaty. Does it make a treaty (or a private contract) less clear or less binding that the parties may agree to settle on different terms at any time? Certainly not. Of course, the issue here is article 300 para. 7 of the EC Treaty which has the effect of binding political organs internally to the terms of treaty — the dilemma of monism, in a way. But there are ways to solve this more in line with the applicable law. Within the application of a Community agreement through article 300 para. 7, one could imagine that the Court takes, depending on the circumstances of the case, fully into account all measures taken or to be taken by the political organs within their external (treaty making) powers as part of the agreement it applies. A direct/indirect application by the Court, in other words, could well accommodate fully the institutional balance. The Court's backpeddeling from the far reaching consequences of article 300 para. 7 may be politically (and even somehow systematically) correct, but it does not fit with the applicable law. The Court's jurisprudence at this point, in other words, may be seen as a rather awkward attempt to use a political questions doctrine without saying so. The Court offered further support for its findings, namely variations of the reciprocity argument. The agreements found having direct effect were characterized by a certain asymmetry which allowed for according them direct effect without excessive regard to reciprocity (the courts of the other party doing the same) — which was not the case in the strictly reciprocal WTO system. Again, one is tempted to find this argument awkward. While it makes political sense, it is difficult to reconcile with both the letter of article 300 para. 7 of the EC Treaty and the principles established namely in Kupferberg — unless one stretches the teleologi153 154

Ibid., para. 40. Ibid., para. 41.


725

cal interpretation, as the Court seems to do, to a maximum, offering space for the desired political considerations. Be that as it may, the Court had fixed its line. Since then, it has stuck to its mantra that the WTO agreements as a whole are not of such a nature as to be invoked by private parties or Member States vis-a-vis Community institutions, namely the Commission and the Council. Without further discussion, this dogma has been applied consistently, recently in the joined cases Dior and Assco155 by the Court itself and in the largely parallel cases Cordis,156 T. Port157 and Bocchi158 by the Court of First Instance. In Dior, a case largely similar to Hermes, also involving the interpretation and application of article 50 of the TRIPs agreement, the Court gave another interesting note of differentiation to its jurisprudence on the application of WTO law in the Community. While it confirmed that it had broad powers of interpretation over mixed agreements (i.e. agreements concluded by both the Community and its Member States due to split external competences, i.e., inter alia, GATS, the TRIPs Agreement and the WTO Agreement itself) justified in particular by the need for uniformity within the Community, the Court explicitly deferred to Member States courts (and constitutions) to decide the question whether a mixed agreement, applied in a case not touching on Community issues and thereby played out within the exclusive realm of Member States, may be accorded direct effect in such cases. While this is consequent from a constitutional European law perspective, it is curious that the agreements which the Court finds by their nature incapable of having effect under the strong monist link established by article 300 para. 7 may, in the eyes of the same Court, be so as to be capable of doing just that in national systems. In the area of TRIPs, for instance, where the Community may occupy progressively more areas, this may lead to the awkward situation that Member States courts, having used the TRIPs Agreement directly on a given set of cir155

156

157

158

Joined cases C-300/98 and C-392/98, Parfurms Christian Dior S.A. v. Tuk Consultancy B.V. and Assco Gerüste GmbH, Rob von Dijk v. Wilhelm Layher GmbH & Co. KG, Layher B. V, Judgement of 14 December 2000. Case T-18/99, Cordis Obst und Gemüse Großhandel GmbH v. Commission, Judgement of the Court of First Instance of 20 March 2001. Case T-52/99, T. Port GmbH & Co. KG v. Commission, Judgement of the Court of First Instance of 20 March 2001. Case T-30/99, Bocchi Food and Trade International GmbH v. Commission, Judgement of the Court of First Instance of 20 March 2001.

726


cumstances for a while (as long as it was governed by national laws), may find themselves without that recourse in exactly the same cases once the Community has spoken, although the substantive law may be identical. In fact, the German Government, e.g., has stated in its comments on the ratification of the Uruguay Round agreements by the German parliament that "a part of the agreements, in any case of the TRIPs Agreement" (excluding Title III) were directly applicable in the Federal Republic.159 The cases Cordis et al.,160 finally, have damped hopes nurtured by some that even if primary recourse against Community measures was "not available in the absence of direct effect", there may be secondary relief against WTO incompatible Community measures, namely damages. The plaintiffs in these cases had sought damages for losses suffered due to the new Banana regime of 1998,161 the Community's reaction to its defeat before the WTO Appellate Body.162 They based their claim on a range of arguments, the most promising being that the Community organs had abused their discretion by purposefully "implementing" the WTO dispute settlement decisions in a WTO incompatible way — which was a case of wrongful implementation as declared actionable in Nakajima.163 But the Court of First Instance did not falter. Relying heavily on the Court's reasoning in Portugal v. Council, the Court of First Instance concluded that as the WTO agreements did not create individual rights for individuals, their violation could not sustain secondary claims for damages.164 As to the Nakajima claim, the Court of First Instance stated in apodictic brevity that the Panel and Appellate Body Reports' findings did not constitute obligations in the sense of the Nakajima

159

160 161

162 163

164

Deutscher Bundestag, Drucksache 12/7655 (neu), 337, 345, 347. The Swiss Government has done likewise, cf. Cottier/ Schefer, see note 108, 109, footnote 103. See notes 156,157,158. Council Regulation (EC) No. 1637/98 of 20 July 1998, and Commission Regulation (EC) No. 3262/98 of 28 October 1998. See note 3. A recently brought case by Chiquita Brands International, Inc., Chiquita Banana Company B.V. and Chiquita Italia S.p.A. against the Commission before the Court of First instance seems to rely essentially on the same reasoning. Case T-19/01, cf. OJ. 2001/C 108/23. Cordis, see note 156, paras 45-46 et seq.


727

ruling, so that their incorrect implementation was equally not actionable.165 This last conclusion is of considerable importance and warrants several question marks. Not only does it seem at odds with the claim of "great flexibility" of the WTO agreements barring their applicability, but also it is the very function of panel and Appellate Body reports to clarify existing obligations, so that once such a decision is existent and binding, at least the Nakajima exception, one may argue, should take hold, if not direct effect altogether, as argued by some.166 If anything, one may suspect that this conclusion may well hold before the ECJ, but perhaps not without a fresh reasoning. The balance sheet, thus, looks as follows: WTO law cannot be invoked as such before Community courts by private parties except in three confined cases, namely (1) in the course of consistent interpretation, (2) if and insofar as Community law refers to it, or incorporates it by reference (Fediol HI "exception"), and (3) if the Community measure in question is a clear attempt to transform it into Community law (Nakajima "exception"). The Community courts seem to reject any attempt to differentiate, with regard to invocability of WTO law, between primary and secondary (damages) claims. 2. Administrative Mechanisms for Private Parties Despite this rather limited booty from a private party point of view as far as direct effect is concerned, a closer look reveals that this concerns primarily the lack of protection of (primarily) citizens against their own government, or more precisely: the impossibility (for both citizens and foreign private parties) of forcing the Member government — in this case the Community and its institutions — to adhere to its international trade law commitments through actions before its own courts.

165 166

Cordis, see note 156, para. 59. Eeckhout, e.g., see note 118, 53, in his differentiated analysis worth reading, advocates considering direct effect for final dispute settlement reports in contrast to the agreements themselves which may be denied the same for a number of reasons: "Where a violation is established the binding character of the agreement and the principle of legality should in my view trump any lack of direct effect. (...) The reasons for not granting direct effect whether it is the agreement's flexibility, or the division of powers between the legislature and the judiciary, or the respect for the appropriate dispute forum - cease to be valid where a violation is established."

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The situation is different when it comes to the outward looking perspective, i.e. to actions of foreign governments. Some WTO Members have instituted formalized administrative procedures to allow private parties to bring cases of alleged breaches of international trade law before their national institutions with a view to, ultimately, challenge, or rather make the government challenge the foreign government's action on the international level. Two prominent examples are the U.S. "Section 301" and the Community's "Trade Barriers Regulation". While it goes beyond the scope and purpose of this overview to analyse the instruments in detail,167 a brief look may illustrate the operational principles. The (in)famous "Section 301" of the U.S. Trade Act of 1974168 provides that private parties may bring cases where their interests are affected by trade measures of third countries inter alia if these measures violate international trade agreements — a good idea that other members, notably the European Community, took up. The provision's notoriety stems from the fact that it goes well beyond the function to address violations of international trade law: other possible causes of action are measures by foreign governments that are "unjustifiable", "discriminatory" or "unreasonable".169 "Unreasonable" are measures that are "otherwise unfair and inequitable". It is for these requirements, which allow for the invocation of nationally defined standards such as labour standards, that the provision has brought the United States the, to some extent justified, reproach of excessive unilateralism and has tainted the section with the aura of being an aggressive rather than a defensive instrument. The 1994 EC "Trade Barriers Regulation",170 focusing on the defence against actual violations of international trade law, is perhaps the better example of such administrative mechanisms. The Regulation allows three types of petitioners to raise such violations by foreign governments, namely the Member States, persons representing Community 167

168

169 170

For a detailed description and analysis, see S. Ohlhoff/ H. Schloemann, "Durchsetzung internationaler Handelsregeln durch Unternehmen und Verbande - Im Blickpunkt: EG-Verordnung gegen Handelshemmnisse", Recht der Internationalen Wirtscbaft 45 (1999), 649 et seq, See note 6 . For its genesis see, e.g., J. Bliss, "The Amendments to Section 301: An Overview and Suggested Strategies for Foreign Responses", Law and Policy in International Business 20 (1989), 501 et seq., (504 et seq.) Cf. s 301 (a) (1) and (b). See note 7.


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industries (in particular associations) and individual enterprises. The violations that may be addressed are those of all trade agreements concluded by the Community, both multilateral agreements such as the WTO agreements and bilateral agreements — with the caveat that individual companies may not rely on bilateral treaties. In a stringent procedure consisting of several steps, the Commission, once the petitioner has supplied sufficient evidence to warrant an examination, is charged with conducting such examination into the actions of foreign governments and, if violations are found and further requirements are met, with taking action for redress. This action can consist, for example and if necessary, of instituting dispute resolution proceedings before the competent bodies, namely the WTO Dispute Settlement Body. Although the procedure is quite straightforward, a caveat remains for the private petitioner: the Commission and (when it comes to taking counter-action) the Council are to act only if this is in the "Community interest". This requirement acts, pointedly put, as a "trade policy filter"171 in an otherwise technical legal procedure, equivalent to a state's discretion as to whether to act on the basis of diplomatic protection. Nonetheless, both Commission practice and ECJ jurisprudence suggest that this does not mean unlimited discretion. In regular cases, the "Community interest" is established automatically through the violation of international trade law. The requirement acts as a negative controlling criterion rather than as a positive requirement.172 The actions taken by the Community organs under the Regulation are, in principle, fully subject to judicial review by the community courts. Even the "Community interest" criterion is justiciable to the extent that the Community institutions are called to justify their assessment based on facts whose existence is reviewable.173 The procedure is thus a reasonably strong weapon in the hands of an aggrieved private party. It may induce, and to some extent force, the Community institutions to act on its behalf and go, if necessary, through WTO dispute settlement and subsequent enforcement.

171 172

173

Ohlhoff/ Schloemann, see note 167,653. See, on the predecessor instrument, the "New Trade Policy Instrument" (Council Regulation (EEC) No. 2641/84 of 17 September 1984), Advocate General Van Gerven in Fediol, see note 111, ECR 1989, 1811. The text of the Regulation itself does not indicate this inversion. So far the ECJ has not been forced to rule on the issue. Ohlhoff/ Schloemann, see note 167,656-57.

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While the U.S. Section 301 has been used very actively by petitioners and has led to a number of prominent WTO cases, notably the Bananas Case, European companies have only recently discovered the enormous potential that lies in the Trade Barriers Regulation mechanism. One reason for this is that the Regulations predecessors, the "New Trade Policy Instrument" of 1984, did not provide for petitions by individual companies. But the train has started to roll: the most prominent examples of TBR use are the Chile-Swordfish and the KoreaShipbuilders' cases.174

3. Conclusion On the (supra)national level, private parties who wish to realize advantages on the basis of international trade law rules face a twofold situation. Their opportunities to force governments to conform to international trade law through action in their own national courts are, at present, still very limited. In virtually all major trading nations, governments have successfully defended themselves against attempts to hold them accountable for violations of international trade law. Courts have resisted claims to accord direct effect of those rules. In the case of the ECJ, this comes at the price of an arguably less than convincing jurisprudence which tries to fend off the consequences of a strongly monist constitutional basis, namely article 300 para. 7 of the EC treaty. At the same time, more political than legal constitutional arguments based on the institutional balance and the need for reciprocity in external trade relations arguably provide good reason for an overall balanced result.175 In very limited cases, indirect use of international trade law rules is pos174 The Commission's Directorate General for Trade maintains a well organized website that offers a good overview over the cases brought, as well as guidelines for petitioners at http://europa.eu.int/comm/trade/policy/ traderegul/index_en.htm 175 The political argument, as Kuijper put it somewhat compellingly, is simple: "In the case of [the WTO] treaty, the party whose constitutional and judicial system does not know the mechanism of direct effect of treaty provisions - or worse still: specifically excludes such direct effect - places itself in such favourable position that it becomes fundamentally unfair to its trading partners." P.J. Kuijper, "The New WTO Dispute Settlement System - The Impact of the European Community ",JWT 29 (1995), 49 et seq., (64).


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sible, namely where there is room for "consistent interpretation", where Community law incorporates international trade law by reference and where legislation expressly aims to implement international trade law but does so badly. However, in certain countries and with regard to certain provisions in trade agreements, namely in the field of TRIPs, direct effect has taken hold. The situation is significantly better (from a private party perspective) when it comes to addressing international trade law violations of foreign countries, or rather: to enlisting a government's support to attack other government's international trade law violations. Fairly well developed administrative mechanisms such as the U.S. "Section 301" and the EC "Trade Barriers Regulation" procedures offer a powerful tool for private parties to induce, and to some extent force, their governments to address their grievances vis-a-vis third countries. Here, the ECJ has been significantly more forthcoming and has assumed a reasonably dense judicial control over the operation of the Trade Barriers Regulation. However, the instrument remained one of diplomatic protection with the state, the Community, ultimately controlling the international process. Hence, in both cases the classical "schism" remains largely intact: states have defended their decisive position at the intersection between international law and national law, or between subjects of national law (individuals) and subjects of international law (governments). The nation state, in other words, is not (yet) being transcended.

V. Concluding Remarks The role of private party actors in the operations of international trade law is, alas, still a very sketchy one. On the international level, the public international law nature of the trade law rules, namely the WTO agreements, have allowed so far only for one official way for private parties to participate, namely by way of submitting amicus curie briefs in WTO dispute settlement proceedings. Another more intermediate form of "privatisation" of the operations of international trade law is the participation of private lawyers as members of government delegations in WTO proceedings. While of course this possibility is not meant to protect private party interests but is meant to ensure high quality legal representation of governments, it nonetheless offers the opportunity for governments and interested private parties to team up in, and coordinate, their legal representation. Both of these forms of participation

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are intermediate. The interested private parties do not enjoy any rights and remain on the sidelines of the game. As stated earlier, they remain spectators whose applause or booing may influence the main players, the states. On the national plane, the question whether international trade law steps down into the national sphere to be usable by private parties within national legal systems calls for a mixed response. Looking at the EC as an example of a major trading block's attempt to come to grips with the questions involved, the ECJ's jurisprudence both historically and at present shows itself as a "conflict-avoidance strategy". The ECJ categorically, although with shaky reasoning, denies direct effect to WTO rules, but has allowed for three scenarios in which these rules may be invoked before Community courts, namely if they are included by reference in Community legislation, if Community law explicitly aims to transpose them and if and when there is room for consistent interpretation which then is to prevail. In contrast to these highly limited possibilities to force a government into WTO conformity through action in its own courts, outward aiming administrative mechanisms such as the U.S. "Section 301" and the EC "Trade Barriers Regulation" offer reasonably efficient means to induce proceedings against third country measures. These proceedings may lead to international dispute settlement and enforcement. Is the nation-state being transcended in international trade law? The answer at this point must be negative. Despite the above sketched instances of participation and ways to make use of certain elements, parts or principles of international trade law, private parties are, when push comes to shove, still very much limited to a spectator's role. Of course, international trade law rules have so-to-say "transpired" into many national law rules; and of course, private parties are being taken very seriously by the state actors in the formation and the enforcement of international trade law. But the operations of international trade law, at this point in time, remain firmly in hands of the states. They are the uncontested sole actors on the international scene; and they have overall control over the operations of international trade law in their domestic legal systems, as our sample case of the EC demonstrates. There, the ECJ has admitted a certain enforcement of WTO rules only if and when the executive/legislative organs have sanctioned this "transcendence". Even if and when EC law is subjected to WTO "consistent interpretation", this is a confirmation of the primacy of (in this case supra-) national law. Even in the outward looking administrative mechanism of the "Trade Barriers Regulation", the EC Commission and Council re-


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tain significant influence through the built-in "trade policy filter", the requirement of "Community interest". In the end, these mechanisms remain instruments of diplomatic protection in the hands of governments. Nonetheless, they are highly developed and forceful weapons in the hands of private parties whose potential is yet to be discovered and used by most of those concerned. In the same sense, it is crucial to note that these limitations on technical legal enforcement possibilities must not be confused with the enormous range of "political" possibilities for private parties to influence both the creation and the operation of international trade law. The above sketch of legal mechanisms, in other words, does not reflect the political and economic reality. Despite their dominant role, governments very much depend on private party input. When it comes to enforcement of trade rules vis-a-vis other governments, it is crucial that private parties bring their cases to the attention of their government and that they do so in a qualified way. The input, however, is in no way limited to the initiation of action. Even purportedly powerful government agencies such as the United States Trade Representative rely heavily on continued input from interested private parties, in particular if and when formalised dispute settlement proceedings are on the way. The aforementioned is even more true when it comes to negotiations. Private parties should never assume that their government will take their concerns and interests into full consideration when going to the negotiation table unless, and insofar as, they have told them to do so. Detailed and high-quality input from private parties is crucial in the formative stage of international trade law rules. Well-founded position papers and oral representations, both from individual companies and groups, trade associations and other "civil society" actors, are usually more than welcome in understaffed trade ministries, and may have considerable influence on the respective government's position. Relevant negotiations are under way at almost any time, and private party actors are well advised to monitor closely when and where their interests are concerned. At present, in particular the "built-in agenda" of mandated negotiations in agriculture and services ("GATS 2000") are important. If the governments decide to launch a new multilateral round of negotiations, a multitude of issues immediately relevant to private parties will be up in the air. Perhaps most important, however, is a largely neglected field of negotiations, namely accession negotiations. Here, market access to, and conditions for competition in, the new member are defined for the future. It is this enormous importance of the "first shot" that has made the accession of China such an arduous process.

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In sum, the influence of private parties on both the operations and the creation of international trade law is significant, despite legal limits. The rules are highly relevant for their business and/or their political concerns. They are well-advised to make use of the multitude of possibilities, within which the legal mechanisms are limited but significant elements. Looking into the future, these elements are sure to become more and more refined and developed. However, it is open whether private actors and international trade law will ever "transcend" the nation-state. For the time being, the question mark in the article's title is there to stay.

Book Reviews Peter H. Sand: Transnational Environmental Law: Lessons in Global Change Kluwer Law International, 1999. XXII + 385 pages. The book by Peter H. Sand covers a collection of twenty essays by the author, which he has written over a period of the last thirty years. Consequently, the essays span the entire history of modern international environmental law, addressing a very broad selection of environmental issues in the transnational context. Sand has accompanied the evolution of transnational environmental law in a variety of key functions with many international institutions. As a result his written work combines theoretical background with practical experience. This valuable combination becomes particularly apparent in this collection of essays on different environmental topics. Peter H. Sand is now a Professor at the Law School of Munich University in Germany. The essays in this collection are divided into four broad Chapters: I. New Ways of Making International Law; II. The Impact of Innovative National Law; III. New Focal Areas; IV. A New Emphasis on Effectiveness of Legal Institutions. These four broad themes are envisaged to be the major distinct levels on which transnational environmental law operates and experiments. The introduction by the author exemplifies some of the practical value of the volume, since he not only records the most important bibliographies and collections on international environmental law, but also lists a selection of websites, the exploration of which serves as a valuable basis either for in-depth research on specific environmental issues or to keep up with the (rapid) development of environmental law. The first category of articles, five essays altogether, focuses on the development of instruments that characterise innovative environmental law-making. The essays, inter aliat cover the issues of eco-standards and other tools of transnational environmental law and the changed ap735

J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 5, 2001, 735-750. © 2001 Kluwer Law International. Printed in the Netherlands.

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proach to the settling of disputes over environmental law. Furthermore, the articles analyse the questions as to whether a treaty is a viable instrument of international environmental law and what changes in lawmaking result from the UN Conference on Environment and Development in 1992. The essay on eco-standards, although drafted for the SecretaryGeneral of the Stockholm Conference in 1972, i.e. at the birth of international environmental law, exemplifies the focus on innovation and progressive development of environmental law that runs like a thread through the whole collection. It is remarkable to discover that directions for the future envisaged in Sand's early essays in this collection have proved practical and viable tools by the recent developments in international environmental law. The concept of standard setting, for example, that is developed in one of his early articles is now common practice in a variety of modern treaties. The second Chapter consists of three essays. It discusses in particular the issues of national pollution sanctions as an alternative to the traditional system of civil liability, the influence domestic procedures have on transnational disputes and the development of the precautionary principle from a domestic principle to a widely recognised international concept. The approach taken by these essays is innovative in itself, since it is usually the effect that international law has on the national legal order that is the subject of review and not vice versa. Sand, by using case studies to illustrate his approach, manages to look at environmental and procedural issues from an angle that is thought-provoking. Again, theory and practice are expertly combined to make the essays a viable source for readers with different backgrounds and/or interests. Furthermore, the elements of comparative law with examples, inter alia, from the U.S., German, French and Italian case law and legislation that are included in these essays deepen the understanding of the issues addressed. This is particularly so in regard to the essay on the role of domestic procedures in transnational environmental disputes and the one on the precautionary principle. The third Chapter deals with new focal areas. In this context five essays have been chosen that focus on different aspects of international environmental law. The first essay deals with trade in endangered species. This issue is not usually considered a new focal area since it was addressed by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) in 1973. Yet, the author, having been designated Secretary General of CITES for many years, offers

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new insights into this important aspect of transnational species protection, particularly, with a view to compliance assistance and the future development of CITES. The following three essays in the this Chapter focus on regional agreements for marine environment protection, transboundary air pollution and the protection of the ozone layer, respectively. These essays are comparably short but still illustrate the specific background, difficulties and approaches of mitigation and protection in a comprehensive manner. The respective sections in these essays on policy criteria and the potential impact of legal techniques that the regimes incorporate enable the reader to draw conclusions for a broader context of transnational environmental law. While the first four essays in the third Chapter specifically address certain environmental problems and transnational approaches thereto, the fifth essay deals in a cross-sectoral fashion with financial mechanisms in global environmental agreements. The issue of financial mechanisms and assistance for environmental protection has developed to be one of the most important issues in current international environmental law. The subject also comes up again in the essays of the fourth Chapter: here in respect of the effectiveness of legal institutions. The author developes in his essays on financial mechanisms and assistance, again, thought-provoking approaches to the establishment of financial mechanisms and their contribution to effective transnational environmental protection. Apart from the issue of financial mechanisms, technical assistance and their contribution to the effectiveness of legal institutions, the fourth and last category of essays also deals with the experiences of the author with the compliance with CITES at customs (this three page article on the "migratory cactus" is a hilarious treat for everyone interested in the effectiveness of species protection by trade controls), innovations in international environmental governance, economic instruments for environmental protection and a general assessment of effectiveness of environmental agreements. The second essay of the fourth Chapter deals with specific forms of technical assistance. Instead of focusing on assistance for the implementation of international conventions the author covers transnational assistance for legislative information, the drafting of national environmental law and its implementation. This truly transnational subject is rarely discussed in the usual realm of international environmental law and can also serve as an acknowledgement for Sand's preference for the term "transnational" instead of "international" environmental law.

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This last category of essays is surely the most relevant when considering outlooks for the future of transnational environmental law, since effectiveness and approaches to improve effectiveness must be the central focus of any efforts to establish a world-wide system of environmental protection. With regard thereto not only the essay on taking stock of the effectiveness of environmental agreements that was originally drafted as part of the "Rio Baseline" for the Earth Summit, but also the articles on institution-building for compliance assistance and the one on environmental governance show directions for the future. The only potential critical note concerning the book rather addresses a formality. While the number and extent of footnotes are helpful for further research on the respective topics, at times they are more extensive than the substantial text itself, which can seem slightly distracting to the reader. Sand's innovative thoughts that are based on profound theoretical knowledge and spiced with practical experience make even those articles a valuable source of research and information that would otherwise, judging by their date of first publication, be considered outdated. Furthermore, it is the variety of issues addressed in this book that makes its value for the reader. As Professor Oran Young says in his Foreword: "The result in an extraordinary combination of insights that avoid the pitfalls of particularism because they are based on a range of practical experience..." As a result the book is able to prove a valuable source of information for academics as well as for the practitioner. The collection of Sand's essays in one volume illustrates the development of transnational environmental law to such a degree that cannot be achieved by the reading of single essays in their original publications only. In this respect, the "whole is more than the sum of its parts". Nele Matz, LL.M., Ph.D. Candidate, Germany

Linos-Alexandre Sicilianos: L'ONU et la democratisation de 1'Etat Systemes regionaux et ordre juridique universe!; Preface de Boutros Boutros-Ghali Editions Pedone, 2000. 321 pages. The democratization process that has been initiated after the end of the Cold War has assumed two dimensions, the democratization of states and the debate for the democratization of the international community.

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The book of L.-A. Sicilianos deals with the first aspect and examines the relevant practice of international organizations on a regional and universal level. The book is composed of two parts, each divided into two Chapters. In the first part ("La mutation conceptuelle: L'universalisation progressive de 1' "imperatif democratique"), the author examines the transition from the principle of equivalence of regimes to the principle of pluralist democracy. In the second ("devolution des activites operationnelles: Uintensification de 1'action en faveur de la democratization") he deals with the UN practice after the end of the Cold War. In the first Chapter of Part 1, the principle of equivalence of the political regimes, as it has been "codified" in the Nicaragua Judgement and in the Western Sahara Advisory Opinion of the ICJ, is juxtaposed with the new emerging principle of democratic governance. The author underlines that the principle of equivalence of regimes was established on the external aspect of the principle of self-determination, which was reinterpreted, as far as the political status is concerned, as conferring a right to "States" to determine their internal regime, rather than to peoples (page 45). The author stresses the important exceptions to the above principle, namely "the attachment of the member states of the Council of Europe to the democratic legitimacy as a continuing legal obligation" (page 48). The dynamics of that obligation have been amplified since the end of the Cold War so far, that we could speak of a "political conditionally" on the terms of admission of the new democracies to the Council of Europe, in particular as far as these terms are derived from the opinions of the Parliamentary Assembly requesting even constitutional amendments from the candidates (page 52 et seq.). As the author emphasizes, at the end of that evolution, the ECHR stated in its Judgement of 30 January 1998 (United Communist Party of Turkey v. Turkey) that "democracy (...) appears to be the only political model contemplated by the Convention, and, accordingly, the only one compatible with it" (page 61). This is a development of major political and legal significance and marks the emergence of a full right to democratic governance as a regional treaty — eventually also customary — law in Europe; this is also the author's conclusion (pages 282-283). The second regional exception to the principle of equivalence of political regimes is to be found in the OAS Charter. Sicilianos stresses that the inter-American system has connected the principle of non-intervention with the right to self-determination in both in its external and its internal dimensions; thus, respect for human rights is the counter-

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part of the right of the member states to develop their political, cultural and economic systems (pages 70-71). In the comparison between the two regional exceptions, it is necessary to note not only that the normativity of the OAS's democratic principle has not been as strong as that of the Council of Europe, having until 1992 only a programmatic character (pages 71-72) and still a long way from the crystallization of a regional custom (page 283), but also that this "normative status" corresponded to the social realities in Latin America. Although the states of the region succeeded in bringing the transition to democracy at the end of the 1980s, a number among them have still difficulties in managing situations of extreme poverty and in effectively establishing the rule of law. Thus, strong presidential regimes, weak societal structures and inherent political instability diminish the normative density of the democratic principle, as it is stipulated in the OAS Charter. In the second Chapter of Part 1, the author describes the reinvention of democracy on a pan-European level, as well as the democratization in the conceptual apparatus of the United Nations. This part of the book occupies a "mediating" place in its structure. The Chapter on the re-invention of democracy in Europe through the CSCE/OSCE process is systematically correlated with the previous Chapter concerning the European "regional exception" to the principle of equivalence of regimes, while the Chapter on the conceptual analysis on democratization within the United Nations framework prepares the ground for the second pan of the book, which refers to the pertinent UN practice. The end of the Cold War was marked first and foremost by the instigation of democratic regimes in the actual theatre of the conflict between East and West in Europe. The "iron curtain" and the Berlin Wall were torn down and the conflict ended with the definite victory of the political model of the Western democracies. Two "superstructures" defining the democratic principle in Europe emerged from that development, namely the CSCE/OSCE framework and the EU practice towards the new democracies of Central and Eastern Europe. Sidlianos describes the different steps of the transformation of the philosophy of the CSCE/OSCE after 1989 from the Copenhagen Document (1989) to the Charter of Paris (1990) and to the Moscow Document (1991) and the EU association and cooperation agreements, as well as the principles for the adhesion of new members to the Union (pages 90-120). The picture derived from that evolution, which is very accurately described by the author, is asymmetric. On the one hand, despite its political character, or perhaps because of it, the CSCE process has

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played a major role in a critical moment facilitating the transition of the Central and Eastern European states to democracy until the final breakdown of the Soviet Union. However, the commitments undertaken by the states participating in that process have not evolved into legal obligations. On the other hand, EU practice is future-oriented and normatively strong, in particularly with regard to the association and cooperation agreements with the Central and Eastern European countries, and even provides for the suspension of the relevant obligations towards the contracting party, if it commits grave violations of human rights or interrupts the democratic process ("Baltic" clause, "Bulgarian" clause, see pages 110-111). Democracy has been also re-evaluated in the conceptual framework of the United Nations. In Part 1, the author describes the different stages of that conceptual "revision" (pages 121-160). The Organization has adopted the extensive interpretation of the right to self-determination, referring not only to the accession to independence, but also to the exercise of political authority by the people. The internal selfdetermination is closely related to the exercise of the political rights, as they are defined in article 25 of the International Covenant on Civil and Political Rights; the democratic principle is interrelated with the overall human rights complex and with the process of development. The democratic principle has been codified in acts of UN organs, such as the General Comment 25 of the Human Rights Committee, the Resolutions 1999/57 and 2000/47 of the Commission on Human Rights and the Agenda for Democratization of the UN Secretary-General. The emphasis of the book's analysis lies in the implementation of the democratic principle in the UN practice. The second Chapter of Part 1 introduces the reader smoothly to Part 2 of the book that deals with the operational activities of the United Nations for the enhancement of the democratization. The two Chapters of Part 2 examine the electoral assistance and the changing attitude of the United Nations towards coups d'Etat, the operations for the maintenance of peace and the reinforcement of the rule of law respectively. Sicilianos underlines the ambivalent approach of the UN General Assembly vis-a-vis the monitoring of elections. Although the General Assembly has affirmed, since the end of the Cold War, the democratic entitlement, it continues to support, in a second series of resolutions, the right of states to determine the electoral process according to their constitutional and national legislation (pages 162-169). The author correctly criticizes these resolutions as "anachronistic" (page 165). Thomas Franck had already proposed, in 1992, that states should have the duty

742


to be monitored and this duty should be linked to the right to nonintervention. Despite the diversification of the different forms of electoral assistance (organization and control of elections, supervision, verification) which are systematically presented in the book, a "duty" to be monitored has not yet emerged. In that sense, an essential element of a right to democracy on the universal level is still missing. The author further stresses the change in the UN's attitude towards coups d'Etat. The two coups d'Etat in Burundi (1993,1996) constituted the first important example in that respect. Nonetheless, despite the condemnation of the coups by the organs of the United Nations, including the Security Council, no drastic measures were taken (page 182-187). On the contrary, the UN's response towards the Haitian crisis was very decisive and culminated in the authorization for the use of force against the "de-facto" authorities of Port-au-Prince. Discussing the issue from the ambiguous language of the Security Council in the Haitian crisis, the author examines the fundamental question, whether the violation of the democratic principle as such was the basis of the Security Council's activism, or whether the decisive moment was the refugee exodus or the massive displacement of population (pages 193201). His standpoint is that the violation of the principle of democratic legitimacy cannot constitute the only justification for the activation of Chapter VII of the Charter, but there has to exist also a threat to the peace. A coup d'Etat constitutes an additional, but important justification for an action under Chapter VII, because, as a general rule, it is accompanied by systematic and massive violations of human rights (page 198). After examining the involvement of the Council in the crisis in Sierra Leone, Sicilianos states his conclusion: he maintains that, given the close relationship between peace and democracy, it seems even more natural to consider that the violation of the democratic legitimacy constitutes a threat to the peace and that a coup d'Etat could constitute such a threat to international peace and security (page 206). In evaluating S/RES/1132 of 8 October 1997, he then goes the "extra mile", and states that "the threat to the peace can arise from the destabilizing effects that are inherent in the violation of the principle of democratic legitimacy" (page 208). In successive steps, the author examines the cardinal issue concerning the relationship between the democratic principle and the destabilization of peace. Although it can be inferred from international practice that a coup d'Etat can be the origin of a serious destabilization, it might be questioned, whether the destabilizing effects are inherent to the violation of the democratic principle. In the light of the lack of any notable

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international response to the 1999 Pakistani coup, the conclusion the author has drawn from the Haitian crisis seems to be more compatible with the realities of the international relations than the "inherent effects" theory. Even if the overthrow of a corrupt and malfunctioning democratic government would constitute a violation of the international human rights law, this does not mean that it would necessarily create a threat to the peace. This depends on the situation "on the ground", i.e. on the active resistance by, or the tacit support of, the population towards the new regime. There are exceptional moments in the life on nations, when revolutionary changes should be left to take their course, without meeting with strong international response; the exception is here a means to revitalize and reaffirm the principle. The position of Sicilianos has the important merit of illustrating the potentialities of the democratic principle and of extrapolating a possible evolution towards a full "right to democratic governance" under general international law: assuming that such a right emerges under universal customary law, which cannot be excluded, and that, furthermore, this firmly established right acquires the quality of a jus cogens norm, then it is clear that destabilizing effects would be inherent in the violation of the principle. Until that time, however, the overthrow of a democratic regime remains one major factor to be balanced against others, as far as international peace and security is concerned. In another important point, the author stresses that in the crisis of Sierra Leone, Resolution 1132 authorized ex post the coercive measures which had been taken by ECOWAS for the implementation of the economic embargo against the rebels and considers, albeit with some hesitancy, that the Council has not exceeded its competence in that respect (pages 204,211-212). His voice can be added to that part of the legal literature that favours the enlargement of the powers of the Council under Chapter VIII of the Charter to enable that organ to directly or indirectly legitimize armed activities by regional organizations for the restoration of peace, including humanitarian interventions, even if they had been initiated without a prior mandate of the Council. The tacit acknowledgement of the necessity of the Kosovo intervention by S/RES/1244 of 10 June 1999 constitutes an example of that power. In the last Chapter of Part 2, the author examines the action for the consolidation of democracy in the UN practice. In the first place, he examines the multifunctional peace-keeping operations, which fulfill an interrelated series of tasks. The democratization of a state is a transversal aspect of these operations and it is related to the organization of the

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electoral process, to the restructuring of the state apparatus, including the army, the police, the administration and the judiciary, as well as the creation of institutions for the protection of human rights (pages 219249). Sicilianos traces here another major issue when he points out that the consent of the respective governments is a necessary aspect of the action for democratization, and he contends that the legal basis for that action is rather Chapter VI or Chapter VI bis, than Chapter VII (pages 229-232). It is an important element of the peace-making efforts of the international community that the restoration or instigation of democracy is not the result of a program or process imposed by the Security Council, but should be based on the consent of the parties. This should not necessarily lead to the legal construction of a Chapter VI bis, or to the separation of the legal bases of Chapter VI and VII. Under Chapter VII, the Security Council is not obliged to use exclusively coercive measures, but its potential instruments of intervention are enriched, as the author explicitly notes (page 231). Therefore, although the Council often applies in practice Chapters VI and VII simultaneously, depending on the kind of action taken or recommended, it is preferable to consider that Chapter VII, once activated, is the exclusive legal basis, which offers the Council the choice between coercion and consent. Nonetheless, after the determination of the existence of a threat to the peace, consent will never be as "free" as it was before. The last issue dealt with by the book is the UN's concept of the rule of law, which has progressively emerged since 1993. Although the exact contours of that concept cannot yet be defined, there is a close conceptual relationship with the protection of human rights and the democratic principle. For the author, the rule of law implies practically the limitation of the discretionary powers of the state ("substantial aspect") and the creation of institutions proper to guarantee the good functioning of law ("instrumental aspect" page 278). The author is right to conclude the book with that issue, which can be considered as the "coronation" of the democratic principle. If we read Resolution 2000/47 of the Commission on Human Rights on "promoting and consolidating democracy", we see that the rule of law is a constituent element of the democratic state. The acknowledgement by the UN organs that democracy and the rule of law are inextricably connected as the two aspects of a single historical process, is a major evolutionary achievement of our era. This was not always the case: the French Revolution gave birth to democracy without the rule of law; Napoleon and Bismarck created the rule of law without democ-

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racy. Nowadays, both aspects are destined either to evolve together, or to fail. The complexities of the modern global industrial and postindustrial society necessitate democracy and the rule of law as elements of "good governance". These are in turn essential elements for the preservation of order and "rationality" in the international system. The work of Sicilianos is an indispensable source for the understanding of the overall process of the democratization of states. The author has succeeded in describing the, often incongruous, paths the democratic principle has traced in the 1990s, without omitting to go back to the origins, as far as necessary. The reader gets the picture of a complex process giving birth to a principle of "variable geometry", depending on the applicable normative framework. Differentiations and nuances do not permit a persuasive argumentation in favour of the emergence of a universal customary rule of democratic governance; the author's caution (page 283 et seq.) is supportive of this view. Assistant Professor Achilles Skordas, Faculty of Law, University of Athens, Greece

Gabrielle Kirk McDonald/ Olivia Swaak-Goldman (eds): Substantive and Procedural Aspects of International Criminal Law — The Experience of International and National Courts Kluwer Law International, 2000. Volume I: Commentary, XVI + 705 pages. Volume II, Part 1 and 2: Documents and Cases, XVIII + 2451 pages. With the adoption of the Rome Statute of the International Criminal Court, international criminal law has come of age. Accordingly, one cannot but welcome the timely publication of the work, edited by Gabrielle Kirk McDonald, the former outspoken President of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and by Olivia Swaak-Goldman, a former legal assistant of the ICTY. As indicated by the title, Volume I attempts to take stock of the current status of international criminal law with regard to both, more general (individual criminal responsibility, defences, procedural questions) and more specific questions (e.g. the crime of aggression, grave breaches of the Geneva Conventions, other forms of war crimes, genocide, crimes against humanity).

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It is not quite clear, however, whether the different authors were supposed to address the current status of the questions they had been assigned under the statute of the two ad-hoc tribunals, according to the Rome Statute of the International Criminal Court, or whether instead they were supposed to describe the state of the law under current customary international law. Thus, it is not surprising that the approach used by the different authors is less than uniform. K. Ambos gives a broad outline (pages 3-31) of the general concept of individual criminal responsibility in international criminal law. Notwithstanding the fact that the author accomplishes this goal, one cannot but mention that the language used is, at least from time to time, somewhat awkward and that sometimes references are less than complete (see e.g. page 11, note 28 where the reader is unable to understand which ordinance the author is referring to). Chapter 2 by B. Ferencz on the crime of aggression tells the seemingly never-ending story of defining the crime of aggression. Given that the crime of aggression is closely intertwined with the prohibition of the use of armed force under general international law, the author obviously had to discuss the latter issue as well. To some extent, however, the author is not always able to clearly distinguish the two concepts. Besides, he has a style of writing which — at least for this reviewer — tends to be not always precise and also somewhat picturesque (see e.g. page 39 where the author refers to "little Luxembourg"; page 45 "sneak attack on Pearl Harbour" or page 51 "slow and bumpy ride"). Furthermore, on page 58, the head of the German delegation is referred to as "Foreign Ministry spokesman" and his first name is quoted in the wrong way in note 133. More to the point, B. Ferencz sometimes makes broad statements, which are, to say the least, somewhat contentious. For example, he states that there is a duty of the Security Council to determine whether aggression has been committed. Likewise he also states — without any further references or arguments — that the General Assembly, too, could create a criminal tribunal. Chapter 3 and 4 then deal with war crimes. While Chapter 3, written by H. Fischer on grave breaches of the 1949 Geneva Conventions (pages 65-93) is a precise and concise overview of the content and current interpretation of the provisions, the article on other violations of the laws and customs of war written by H. Aldrich attempts, in thirteen pages, to give a complete analysis of a very complex array of questions. In particular, one would have hoped that author would have further elaborated on the question as to what extent provisions and prohibitions of Additional Protocol I have passed into the general corpus of

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customary law so as to give rise to individual criminal responsibility and where, accordingly, even nationals of non-state parties to the Protocol could be punished for having behaved contrary to the rules contained therein. Chapter 5 (pages 116-140), written by D. Ntanda Nsereko, deals with genocide. Notwithstanding the fact that the work was published in 2000, the landmark decision of the International Criminal Tribunal for Rwanda (ICTR) in the Akayesu Case of 1998 (!), not to mention of the later jurisprudence of the tribunal, is only referred to in a footnote quoting a newspaper article rather than the decision itself which was, only days after the decision, available on the official internet site of the ICTR and which is also published in Volume II Part 2, pages 1573 et seq. of the work itself! Furthermore, it remains unclear why a book devoted to international criminal law deals with matters of state responsibility (pages 135-136) and why, when dealing with article VI of the Genocide Convention, the author does not discuss the pertinent question of whether universal jurisdiction has in the meantime developed outside the framework of the Convention but simply states that "the Convention does not provide for universal jurisdiction". Chapter 6 (pages 143-168) then deals with crimes against humanity (O. Swaak-Goldman). This Chapter contains a thorough discussion of most of the current issues relating to the concept of crimes against humanity. The different parts of Chapter 7 then deal with different crimes which can be either committed in the form of war crimes or crimes against humanity, such as murder/ wilful killing, torture, persecution and severe forms of sexual violence. As to murder/ wilful killing, the authors, both having a criminal law background, largely refer to domestic criminal codes to explain the different elements of this crime. Thus it might not be surprising that they take it for granted that the Geneva Conventions, when using the term 'wilful killing', refer to the domestic law of the respective contracting party (page 187) without even taking into account the possibility that the Conventions themselves had used a generic term. Besides, it is hard to understand, why the authors refer to the German translation of this term (ibid.), given that German is not an authentic text version of the Conventions. As to the crime of torture (A. Byrnes, pages 197-245), one cannot but state that this part contains an excellent review of the state of the law, referring in detail to the jurisprudence of both international human rights bodies and international criminal tribunals. One might have hoped that all of the different Chapters would have abided by this stan-

748


dard. Similar considerations might apply to the two following parts on persecution and sexual violence. With regard to the last one of these two articles, one might only mention as critique that here, the important attempt to define sexual violence as a separate crime under the Rome Statute, is neither mentioned, nor analysed. In turn, Chapter 8 written by M.-C. Bourloyannis-Vrailas on crimes committed against United Nations and associated personnel does not only give ample details as to the development of the law in that area (see e.g. the description of a very interesting incident on page 357) but also a very straightforward analysis of the jurisprudence of the ad-hoc tribunals and the drafting of the Statute of the International Criminal Court. Chapter 9 on defences, written by Y. Dinstein (pages 367-388), contains a brief, but again straightforward and very thoughtful analysis of possible defences. Here again, given that the author has a very clear international law background, no references to domestic criminal legal systems may be found. R. Wegdwood then deals in Chapter 10 with the relationship between national and international courts when it comes to the prosecution of war crimes (pages 393-413), which again is full of relevant details. But one might wonder how she came to argue that under the Rome Statute, the Security Council would be able to renew its deferral of an ongoing investigation for a longer period than another twelve months. Also, it is interesting to note that the author (wrongly) criticises the model adopted in arts 93 and 72 of the Rome Statute, which deals with the production of evidence related to national security matters, as being — as she argues — not in line with the Blaskic judgement of the ICTY, while at the same time being very sovereignty-oriented, when it comes to the position of the United States vis-a-vis the International Criminal Court. Chapters 11-15 (pages 415-668) all deal with different aspects of procedure, ranging from the rights of suspects and accused (M. Wladimiroff), the protection of victims and witnesses (C. Chinkin), pre-trial procedures and practices (Judge Chand Vorah), trial procedures and practices Judge Kirk McDonald) and appeal procedures and practices (Justice Karibi-Whyte) and all largely focus on the relevant practice of the two ad-hoc tribunals as developed over time. On the whole, one might say that — as indicated above — the quality of the different Chapters varies significantly. In addition, uniformity in the style of citation has not always been achieved, e.g. with regard to the way ICTY and ICTR decisions are quoted. Also, some references

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are uncommon, e.g. the decisions of the ICJ, where one would have expected references to the official series of ICJ Reports (but see page 80, note 43). Finally, a list of abbreviations used would have been useful, if not mandatory — at least this reviewer would then know what "7 App. Cas. 741 (H.L.)" or "1 All NLR 237" stand for, without needing to look them up elsewhere. On the other hand, non-German-speaking readers would not necessarily know that "BGHSt 41, 101" refers to Volume 41 of the official series of decisions of the German Supreme Court in criminal matters. The index is also less than satisfactory. For example, one might wonder why under the heading "UN Security Council", readers are not also referred to the respective pans of the analysis made by Wegdwood (see above). On the whole, Volume I may be considered a mixed menu, ranging from first class dishes to rather mediocre home-made food. It might indeed very well be the case, that it is not sufficient merely to look for good cooks, but also to make sure that they invest sufficient time and energy in the preparation of the meal; besides the persons choosing the menu must make sure that the different courses match each other. Volume II/ Part 1 contains relevant documents, ranging from the Hague Regulations of 1907 to the Rome Statute, most of which were also largely available somewhere else, beforehand. Besides, one wonders why certain documents such as, inter alia, the Anti-Apartheid Convention, have not been included. Furthermore, one might ask why the respective human rights conventions, such as e.g. the Covenant on Civil and Political Rights, the ECHR, the American Convention on Human Rights and the African Charter have also been included, given that their focus is significantly different since they are not criminal law instruments. Finally, as to texts of domestic origin, one is more than puzzled to note that only texts originating in the United States are reproduced but not, inter alia, relevant war crime provisions of other countries. This is even more true since the US Alien Tort Claims Act (pages 555558) only deals with civil actions and has therefore nothing to do with the overall topic of the work. Similar considerations apply at least to some extent with regard to Volume II/ Part 2 containing relevant case law. It should be stated, however, that the (partial) reproduction of both the Nuremberg and Tokyo case law as the case law that has arisen under Control Council Law No. 10 is quite helpful. But one wonders why that last jurisprudence is listed only after decisions rendered by the ICTY/ICTR since it occurred earlier.

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The reproduction of summaries of selected ECHR decisions, on the other hand, is basically useless since the summaries in question do not give any legal arguments why the respective cases have been decided in the way they have been. Finally, as to the domestic decisions reproduced on pages 2237 et seq., one might very well question again the criteria of the selection, given that only eleven decisions are reproduced at all, seven of which originate in Anglo-Saxon jurisdictions, while e.g. most recent German, Danish or Swiss decisions on war crimes and genocide committed in the former Yugoslavia or Rwanda of 1994, 1996 and 1997 (rightly referred to by Wedgwood in Volume I, page 401) are simply missing! And once more, it is hard to understand why civil cases, such as Filartiga and Kadic v. Karadzic, have also been included. On the whole, this reviewer cannot — notwithstanding some very positive points mentioned above — but express his overall disappointment with the work, even more since the price of NLG 1433, being approximately equivalent to 1208 DM — does seem to be almost prohibitive. Indeed, one might have wished that the editors should have simply concentrated on Volume I and would have thus been able to come up with a work, which, in all its parts, would have been as solid and thorough, as some of the articles already are. Assistant Professor Andreas Zimmermann, Heidelberg, Germany

Beitrage zum auslandischen offentlichen Recht und Volkerredit N.Kruger

Anwendbarkeit von UmweltschutzvertragenintterAntarktis The recent tendency toward increasingly ample international environmental regulation overlapping and inconsistency among treaties, paricularly asregardscommonspaces,Thepurpos study is to examine to what extent contemporary internationaj treaty law provides for environmental protectionwithinthecontext of the unique legal Antartic. The book analyzes ingondifferent sourcesi^f pollution, liability regulation ofenvironmentalconservation tion.The treaty survey demonstrates the complexity existing to relation to the Antarctic Treaty System and regimes to a legally the difficulties of applying and environmentally distrincion 2000. XXII, 360 pp. (Vol.144) Hardcover "DM 159,90; £ SS^FF 60V;tk. 176.590;sFr138 as of Jan, 2002: €79,95 ISBN 3-540-67058-0

R.Grote,T.Marauhn(Eds.) Religionsfreihelt zwischen individueller Selbstbestimmung, Minderheritenschutz und Staatskirchenrecht - Volker-und verfassungsrechtliche Perspektiven The protection of religious freedom has resurfacedasan issueoffundamentalimportanceor^t^ world during the last decade. There-emergence of reli-

gionincludingreligiousextremism,as a potent social and political force in increasingly multi-religious societies has started to undermine many of the established assumption on the proper relationship between the state, the

church and religious shortly groups,|hepresent volume analyses in a comparative and international perspective the quesion if and to what extent these principles and

rules have to be reformulated in order to meet the challenges of religious pluralismat the dawn of the twentyfirst century.

Published seperately not within the Beitrage K. Oellers-Frahm, A. Zimmermann {Eds,}

Dispute Settlement in Public International Law Texts and Materials

Over the last years, institutions for dispute settlement have multiplied. Thus it became necessary to envisage a revised and considerably enlarged second edition of the compilation of texts and materials on dispute settlement in public international law, first published in 1984 and which must now be considered to be one of the standard works dealing with the settlement of the dispute in international law. Continuing that tradition, the second edition has largely retained the concept of the publication, namely to make available a comprehensive collection of documents which are sometimes rather difficult to find elsewhere. Inter alia, it covers areas such as general and universal dispute settlement procedures, mechanisms related to protection of human rights on an universal or regional level; international and regional economic institutions but also dispute settlement procedures with regard to subjects such as the law of the sea, the environment and other more technical areas.The work includes not only the respective treaty provisions instituting the respective court or tribunal, but also the respective Statute and Rules of Court.The collection also contains specific bibliographical notes and indications to case collections in order to facilitate further research in specific fields, thus making it an indispensable working tool for everybody interested in the field. 2nd compl. rev. and updated ed. 2001. XXXVIII, 2254 pp. (2-volume-set, not available separately). Hardcover •DM 374,-; L 138,-; FF 1508,-; Lit. 419700; sFr 322,-; as of Jan. 2002: € 187- ISBN 3-540-41743-5 Please order from Springer • Customer Service • Haberstr. 7-69126 Heidelberg, Germany Tel: +49 (0) 6221-345-217/8 • Fax: +49 (0) 6221-345-229 • e-mail: [email protected] or through your bookseller All prices are net-prices subject to local VAT, e.g. in Germany 7% VAT for books and 16% VAT for electronic products. Exception: prices quoted in FF and Lit. include local VAT. Prices and other details are subject to change without notice, d&p • 7687.MNT/SFb

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Max Planck Institute for Comparative Public Law and International Law

Zeitschrift fur auslandisches offentliches Recht und Volkerrecht -ZaoRVHeidelberg Journal of International Law Founded by Victor Bnins Edited in cooperation with Rudolf Bernhardt, Karl Doehring, Giinther Jaenicke, Hermann Mosler, Helmut Steinberger by Jochen Abr. Frowein, Riidiger Wolfrum Managing editor: Professor Dr. Ulrich Beyerlin The editorial programme of the ZaoRV Articles and notes on fundamental and topical issues of public international law, European law, and foreign and comparative public law. Among the main topics are the United Nations collective security system, the international protection of human rights, as well as recent developments in international economic law, the law of the sea and international environmental law. The spectrum of analyses in comparative law reaches from the East and Central European states and the USA to South Africa, Israel and Japan. Annual reports on government practice and jurisprudence concerning international law in the Federal Republic of Germany are provided in each volume. Manuscripts and review copies should be sent to: Redaktion MPI fur Volkerrecht, Im Neuenheimer Feld 535, D-69120 Heidelberg, e-mail: [email protected]. Manuscripts will only be accepted if they have not been published elsewhere; the views expressed are strictly those of the author. Prices: 4 issues and index per year (about 900 pages): DM 310.-/ 6S 2263.-/SFr 310.- (postage and handling included) Single issues: DM 81.-/6S 591.-/SFr 81.Index: DM 43.-/6S 314.-/SFr 43.W. Kohlhammer GmbH, Hefibriihlstrafie 69, 70565 Stuttgart

The Virtual Institute ("www.virtual-institttte.de0 or "www.mpiv-hd.mpg.de") The Max Planck Institute for Comparative Public Law and International Law (Heidelberg, Germany) has recently made available a new internet offer. The idea underlying the so-called "Virtual Institute" is to include all relevant web-based information in the field of comparative public law, European law and international law. This includes the catalogue of the Institute's library in the form of an online public access catalogue (opac), an electronic version of the "World Court Digest" and a collection of links relevant for research in comparative public law and international law. The Institute's website also offers general information about the Institute, its departments, its library (which enjoys the status of European Documentation Centre and UN Depositary Library). The website is available in English and German. The Institute's OPAC includes references to monographs, journals and articles. At present there are approximately 20,000 references to articles on comparative public law and international law. The Institute's library includes around 460,000 volumes, most of which are included in the OPAC. Apart from the traditional criteria for a catalogue search (author, title, year of publication) the Institute's OPAC offers a subject search in international law. This is based on the Institute's systematic library catalogue and on the system underlying the bibliography "Public International Law" edited by the directors of the Institute. The World Court Digest represents a reproduction, in a systematic arrangement, of the views on questions of international law which are expressed in the judgements, advisory opinions and orders of the International Court of Justice as well as in the separate opinions of individual judges. Its online version makes available a subject search the scope of which goes far beyond a traditional index. The collection of links is also based on a systematic arrangement, taken from the bibliography "Public International Law". It covers four areas: international law, European law, foreign public law and international organizations. In the field of foreign public law sources related to about 80 states have been included so far. The Institute plans to expand its offer on the basis of a network of cooperation with international lawyers around the world.

ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW Published under the Auspices of the Max Planck Institute for Comparative Public Law and International Law under the Direction of Rudolf Bernhardt Advisory Board

RUDOLF L. BINDSCHEDLER, THOMAS BUERGENTHAL, KARL DOEHRING, JOCHEN ABR. FROWEIN, GUNTHERJAENICKE, HERBERT MIEHSLER, HERMANN MOSLER, FRITZ MUNCH, DANIEL P. O'CONNELL, KARL JOSEF PARTSCH, PIERRE PESCATORE, HENRY G. SCHERMERS, ULRICH SCHEUNER, HANS-JURGEN SdHLOCHAUER, MAX S0RENSEN, HELMUT STREBEL

Assistant General Editor PETER MACALISTER-SMITH The Encyclopedia was first published in twelve instalments between 1981 and 1990. Volumes I - IV of the consolidated Library Edition were published from 1992 to 2000 and contain 5425 pages of lexicon format (18 x 26 cm). The Library Edition comprises the articles published in the instalments together with 500 addenda and 48 entirely new entries. All 1317 articles are arranged in continuous alphabetical order. An index volume is in preparation and will provide additional help for the use of this unique Encyclopedia. Published volumes of the Library Edition: Volume I (initial letters 'A' - 'D')« Aaland Islands to Dumbarton Oaks Conference (1944). 1992. - xxiii, 1117 p. Volume II ('E' - 'I'). East African Community to Italy - United States Air Transport Arbitration (1965). 1995. - xix, 1510 p. Volume III ('J' - 'P'). Jan Mayen to Pueblo Incident. 1997. - xvii, 1165 p. Volume IV ('Q' - 'Z'). Quirin, ex parte to Zones of Peace. 2000. - xix, 1650 p. Among the new entries are articles on the following subjects: Atmosphere, Protection; Data, Transborder Flow and Protection; Free Trade Distortions; Sahara; Soft Law; Soviet Union, Dissolution; United Nations High Commissioner for Human Rights; World Trade Organization; Yugoslavia, Dissolution; Zones of Peace. -

Further information and order forms can be obtained from: Amsterdam: Elsevier Science, Customer Service Department, P.O. Box 211, NL - 1000 AE Amsterdam, The Netherlands, Tel: +31 20 485 3757, Fax: +31 20 485 3432. E-mail: . New York: Elsevier Science, Customer Service Department, P.O. Box 945, New York, NY 10159-0945, USA, Tel: +1 212 633 3750, Fax: +1 212 633 3764. E-mail: <[email protected]>.

Max Planck Yearbook of United Nations Law

Max Planck Yearbook of United Nations Law

Max Planck Yearbook of United Nations Law