Max Planck Yearbook of United Nations Law

Max Planck Yearbook of United Nations Law, Volume 1 Jochen A. Frowein Rüdiger Wolfrum Editors KLUWER LAW INTERNATIONAL...

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Max Planck Yearbook of United Nations Law, Volume 1

Jochen A. Frowein Rüdiger Wolfrum Editors

KLUWER LAW INTERNATIONAL

Max Planck Yearbook of United Nations Law Volume 1 1997

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Max Planck Yearbook of United Nations Law Volume 1 1997 Editors Jochen A. Frowein Riidiger Wolfrum Assistant Editor Christiane Philipp

Max-Plandc-Institut fiir ausliindisches off entliches Recht und Volkerrecht

LONDON -THE HAGUE - BOSTON

Published by Kluwer Law International Ltd Sterling House 66 Wilton Road London SWlV 1DE United Kingdom

Sold and distributed in the USA and Canada by Kluwer Law International 675 Massachusetts Avenue Cambridge MA 02139 USA

Kluwer Law International Ltd incorporates the publishing programmes of Graham & Trotman Ltd Kluwer Law L? Taxation Publishers and Martinus Nijhoff Publishers

In all other countries sold and distributed by Kluwer Law International PO Box 322 3300 AH Dordrecht The Netherlands

ISBN 90 41 1 0700-2 Series ISBN 90-411-0730-4

0 Kluwer Law International 1997 First published 1998

British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloguing-in-Publication Data is available

This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publishers.

Printed and bound in Great Britain by Arrowhead Books Ltd, Reading, Berkshire.

Foreword by the Editors The Max Planck Institute for Comparative Public Law and International Law already publishes on a permanent basis the "Zeitschrift fiir auslandisches offentliches Recht und Volkerrecht" ("Heidelberg Journal of International Law"), founded in 1929, a monograph series "Beitrage zum auslandischen offentlichen Recht und Volkerrecht" ("Contributions on Comparative Public Law and International Law"), a "World Court Digest" (formerly "Fontes Iuris Gentium"), as well as a similar digest of decisions of German courts relating to public international law, and a semi-annual current bibliography of books and articles "Public International Law". The decision to start yet another permanent publication was guided by the consideration that a yearbook published in English would supplement the existing publications of the Institute. It is further the intention of the editors to provide a forum where particularly the development of the United Nations as well as of the Specialized Agencies and other United Nations fora and their impact on the shaping of international relations will be discussed in depth. It is generally recognized that in recent years the impact of the United Nations on international relations has increased. The end of the Cold War, in particular, has made it possible for the Security Council to assume the responsibilities entrusted to it by the founders of the United Nations Charter. The Security Council was instrumental in bringing the Iran-Iraq conflict to an end, and in the withdrawal of Soviet troops from Afghanistan and of Cuban troops from Angola. U N peace-keeping forces were stationed in the former Yugoslavia, Africa and Central America. The General Assembly has had a major impact on the progressive development of international law by initiating world conferences such as those on Environment and Development (l W), Human Rights (1993), Population and Development (1994), Women (1995), Social Development (l995), Habitat I1 (1996) and the World Food Summit (1996). Apart from that the United Nations is undergoing significant changes as are regional organizations. By focusing this Yearbook on issues connected with the United Nations and developments initiated by it the editors hope to assist in creating a forum in which the potential existing in international organizations for the

V1

Max Planck Yearbook of United Nations Law

further development of international relations can be assessed and discussed. Jochen Abr. Frowein Heidelberg, June 1997

Riidiger Wolfrum

Foreword I am pleased to welcome the publication by the Max Planck Institute for Comparative Public Law and International Law of a Yearbook of United Nations Law. In the past, authoritative works on individual articles of the Charter of the United Nations have contributed to a better knowledge and application of the basic provisions regulating the Organization and interState relations. This new publication constitutes the first regular academic periodical to focus on activities of the United Nations in the field of international law. This is a noteworthy development, not only because it is evidence of an increased interest in the Organization's activities, but also because it takes place during the United Nations Decade of International Law. The main goals of the Decade are to promote acceptance of and respect for the principles of international law and the means and methods for the peaceful settlement of disputes between States, and to encourage both the progressive development of international law and its codification and the teaching, study, dissemination and wider appreciation thereof. A thorough appraisal of what has been achieved can be invaluable to any organization. The evolving needs of the international community have inevitably influenced the United Nations and its institutions. With the passage of time, one might overlook and take for granted the evolutionary steps developed to meet these needs. The Max Planck Yearbook of United Nations Law will facilitate a better appreciation of the changes the United Nations has undergone throughout its first half-century in a constantly changing reality. Not only has the United Nations changed; the law it has codified and developed through international conventions has become a vital element in the transformation of the international community. This is demonstrated by the substantial advances made in a number of fields, such as human rights, the law of the sea, the protection of the environment, the law of treaties, and diplomatic and consular relations. A strengthened role for law in international relations is the foundation upon which the structure of the world order for the twenty-first century should rest. The United Nations constitutes the universal forum where the global concerns in the new millennium can best be addressed. Despite

V111


setbacks, there are prospects for international cooperation which provide an excellent opportunity to further the cause of peace through international law. This Yearbook provides testimony of the means by which the international community meets the challenges of an ever-changing world. The Max Planck Institute is to be congratulated for undertaking this task. Boutros Boutros-Ghali

Contents Foreword by the Editors . . . . . Foreword by Boutros Boutros-Ghali List of Contributors . . . . . . . Abbreviations. . . . . . . . . .

. . . . . . . . . . . . . . V . . . . . . . . . . . . . V11 . . . . . . . . . . . . . XI . . . . . . . . . . . . XI11

Duptry, Pierre-Marie, The Constitutional Dimension of the Charter of the United Nations Revisited . . . . . . . . . . . . . . . . . 1 Winkelmann, Ingo, Bringing the Security Council into a New Era . . . . . . . .

35

Doebring, Karl, Unlawful Resolutions of the Security Council and their Legal Consequences . . . . . . . . . . . . . . . .

91

Schermers, Henry G., We the Peoples of the United Nations . . . . . . . . . . . 111 Walter, Christian, Security Council Control over Regional Action . . . . . . . 129 Oeter, Stefan, Civil War, Humanitarian Law and the United Nations . . . . 195 Wood, Michael C., Participation of Former Yugoslav States in the United Nations and in Multilateral Treaties . . . . . . . . . . . . . . . . 231 Wolfrum, Riidiger, The Protection of Regional or Other Interests as Structural Element of the Decision-Making Process of International Organizations . . . . . . . . . . . . . . 259 Ortega, Martin C., The ILC Adopts the Draft Code of Crimes Against the Peace and Security of Mankind . . . . . . . . . . . . . . . . . 283


X

F&&chhauer,Cad-August, The Relationship Between the International Court of Justice and the Newly Created International Tribunal for the Law of the Sea in Hamburg . . . . . . . . . . . . . . . . 327 Book Reviews . . . . . . . . . . . . . . . . . . . . 335 Documents

. . . . . . . . . . . . . . . . . . . . 347

Investigating Powers of the International Criminal Tribunal for the Former Yugoslavia vis-A-vis States and High Government Officials Amicus Curiae Brief Submitted by the Max Planck Institute for Comparative Public Law and International Law to the International Criminal Tribunal for the Former Yugoslavia in the Case of The Prosecutor v. Tihomir Blaskic . . . . . . . . . . . 349 by Jochen Abr. Frowein/Georg NolteIKarin OellersFrahmIAndreas Zimmermann Subpokna Duces Tecum of 15 January 1997 The Prosecutor v. Tihomir Bhskic . . . . . . . . . . . 399 Draft Articles on the Draft Code of Crimes against the Peace and Security of Mankind . . . . . . . . . . . . 405 Concluding Observations adopted in 1996 by the Committee on Economic, Social and Cultural Rights, . . . . . 4 15 HumanRigbts Committee, . . . . . . . . . . . . . . 479 Committee on the Elimination ofRaciul Discrimination . . . . 539 Decisions/Resolutions adopted in 1996 by the Committee on the Elimination of Racial Discrimination

. . . .

General Recommendations adopted in 1996 by the Committee on the Elimination ofRucialDiscrimination

. . . . 635

625

List of Contributors Boutros-Ghali, Boutros Former Secretary-General Doehring, Karl Dr. iur., Professor em. of Public International Law, University of Heidelberg, former Director at the Max Planck Institute for Comparative Public Law and International Law Dupuy, Pierre-Mark Professeur i1'Universiti Panthion-Assas (Paris 2), Directeur de 1'Institut des Hautes Etudes Internationales de Paris Fleischhauer, Carl-August Dr. iur., Judge of the International Court of Justice Frowein, Jochen Abr. Dr. iur., M.C.L., Professor of Public Law, University of Heidelberg, Director at the Max Planck Institute for Comparative Public Law and International Law Nolte, Georg Dr. iur., Fellow at the Max Planck Institute for Comparative Public Law and International Law Oellers-Frahm, Karin Dr. iur., Fellow at the Max Planck Institute for Comparative Public Law and International Law Oeter, Stefan Assistant Professor, Member of the Max Planck Institute for Comparative Public Law and International Law

XI1


Ortega, Martin C. Lecturer in Public International Law and International Relations at the University of Salamanca (Spain) Schermers, Henry G. Professor of Law of International Organizations, Rijks Universiteit Leiden Walter, Christian Dr. iur., Fellow at the Max Planck Institute for Comparative Public Law and International Law Winkelmann, Ingo Dr. iur., Ph.D. (University of Freiburg), First Secretary, Permanent Mission of the Federal Republic of Germany to the United Nations, New York Wolfrum, Riidiger Dr. iur., Professor of Public Law, University of Heidelberg, Director at the Max Planck Institute for Comparative Public Law and International Law Wood, Michael C. Deputy Legal Adviser, Foreign and Commonwealth Office London Zimmermann, Andreas Dr. iur., LL.M. (Harvard), Fellow at the Max Planck Institute for Comparative Public Law and International Law

Abbreviations AFDI

Annuaire Frangais de Droit International

AJD A

Actualit6 Juridique-Droit Administrutif

AJIL

American Journal of International Law

Am.U.J.Int'1 L. & Pol'y

The American UniversityJournal of International Law and Policy

Am.U.L.Rev.

The American University Law Review

Anu.Der.Internac.

Anuario de Derecho International

Arch.de Phi1os.d~Droit

Archives de Philosophie du Droit

Aus Pol. & Zeitgesch.

Aus Politik und Zeitgeschichte

Austr.Yb.IntYlL.

Australian Yearbook of International Law

Austrian J.Publ.Int. Law Austrian Journal of Public International Law AVR

Archiv des Volkewechts

B.U.Int'1 L.J.

Boston University International Law Journal

Brook.J.Int'1 L.

Brooklyn Journal of International Law

BVerfGE

Decisions of the German Federal Constitutional Court

BYIL

British Yearbook of International Law

Cal.W.Int'1 L.J.

California Western International Law Journal

Cal.W.L.Rev.

California Western Law Review

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

Case Western Reserve Journal of International Law

Colum. Hum.Rts.L. Rev. Columbia Human Rights Law Review Colum. J. Transnat'l L.

Columbia Journal of Transnational Law

Comunith Internaz.

La Comunita Internazionale

XIV

CYIL


Canadian Yearbook of International Law

Den.J.Inr'1 L. & P O ~ ' ~ 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. DukeJournal of Comparative and Intemational Law EA

Europa- Arcbiv

ECOSOC

Economic and Social Council

ed.

editor

eds

editors

EJIL

European journal of Internationd Law

Envtl. L. Rep.

Environmental Law Reports

EPIL

Encyclopedia of Public Irttemational Law

et al.

et alii

et seq.

et sequentes

etc.

et cetera

FAO

Food and Agriculture Organization

Fordham Int'l L.J.

Fordham International Law Journal

Forelgn Aff.

Foreign Affairs

Foreign Pol'y

Foreign Policy

Ga.J.Int'1 & C0mp.L.

Georgia Journal of International and Comparative Law

Geo.Wash.J.Int'lL.&Econ. George Washington Journal of International Law und Economics

GYIL

German Yearbook of International Law

Harv.Int'1 L.J.

Haward International Law Journal

H RQ

HuV-I

Human Rights Quarterly Hurnanitiires Volkewecht-lnformationsscbr;ft

1.e.

id est; that is to say

Abbreviations

XV

IAEA

International Atomic Energy Agency

ibid.

ibidcm; in the same place

IBRD

International Bank for Reconstruction and Development

ICJ ICLQ

International Court of Justice

International and Comparative Law Quarterly

id.

idem; the same

IFAD

International Fund for Agricultural Development

IJIL

Indian Journal of International Law

ILC

International Law Commission

ILCYB

Yearbook of the International Law Commission

ILM

International Legal Materials

ILR

International Law Reports

ILSA J.IntJl L.

ILSA Journal of International Law (International Law Stttdents Association)

IMF

International Monetary Fund

1nd.L.J.

Indiana Law Journal

Int'l Aff.

International Affairs

Int'l Rev.of the Red Cross International Review of the Red Cross Iowa L. Rev.

Iowa Law Review

IP

Die Internationale Politik

1sr.Y.B. Hum.Rts.

Israel Yearbook on Human Rights

J.Int'1 Aff.

Journal of International Affairs

JIR

Jahrbuch fur internationales Recht Journal of Peace Research

JPR LJIL McGill L. J.

Leiden Journal of International Law McGill Law Journal

XVI


Mich.J.Int'1 L.

Michigan Journal of International Law

Mich.L.Rev.

Michigan Law Review

Mil. L. Rev.

Military Law Review

N.Y.U.J.IntJl L. & Pol.

N e w York UniversityJournal of International Law and Politics

N.Y.U.L. Rev.

N e w York University Law Review

NATO

North Atlantic Treaty Organization

NILR

Netherlands International Law Review

Nord.J.Int'1 L.

Nordic Journal of International Law

NYIL

Netherlands Yearbook of International Law

OZoRV

Osterreichische Zeitschr$t fur offentliches Recht und Volkerrecht

Pol.Sci.

Political Science

RBDI

Revue Belge de Droit International

RdC

Recueil des Cours de 1'AcadPmir de Droit International Revista Espmiola de Derecho Internaclonal Revue de Droit Militdire et de Droit de la Guerre

Rev.ICR

Revue Internationale de la Crozx-Rouge

RGDIP

Revue Ge'ne'rale de Droit International Public

Riv.Dir.Int.

Rivista di Diritto Internazionale

San Diego L. Rev.

San Diego Law Review

Stanford J. Int'l L.

Stanford Journal of International Law

SZIER/RSDIE

Schweizerische Zeitschrift f i r internationales und europaisches Recht/Revue Suisse de Droit International et de Droit EuropP'en

Temp. Int'l & C0mp.L.J. Temple International and Comparative Law Journal

XVII

Abbreviations Transnat'l L. & Contemp.Probs.

Transnational Law and Contemporary Problems Tulane Journal of International and Comparative Law

UNCIO

United Nations Conference on International Organization

UNDP

United Nations Development Programme

UNESCO

United Nations Educational, Scientific and Cultural Organization

UNFPA

United Nations Population Fund

UNHCR

United Nations High Commissioner for Refugees

UNICEF

United Nations Children's Fund

UNIDO

United Nations Industrial Development Organization

UNOSOM

United Nations Operation in Somalia

UNPROFOR

United Nations Protection Force in (former) Yugoslavia

UNTS

United Nations Treaty Series

UPU

Universal Postal Union

Va. J. Int'l L.

VirginiaJournal of International Law

VN

Vereinte Nationen, Zeitschrift fiir die Vereinten Nationen und ihre Sonderorganisationen

Vol.

Volume

Wash.L.Rev.

Washington Law Review

WMO

World Meteorological Organization

ZaoRV

Zeitschrift fur auslandisches offentliches Recht und Volkerrecht

ZRP

Zeitschrift fur Rechtspolitik


The Constitutional Dimension of the Charter of the United Nations Revisited Pierre-Marie Dupuy

The Charter as the Substantial Constitution of the International Community: Basic Principles of the United Nations and > rules of the international community and the same norms existing in general international law retain a separate identity, as rightly pointed out by the Court in the above mentioned Nicaragua Case. Legally speaking, they are not merged one with the other, each one staying with its o w n legal regime (see above under 1.A.bb.h). We then come to the conclusion that the substantially aonstitutional>>dimension of the Charter gives rise to some important unresolved questions. It is, at the same time, irrefutable and uncompleted.

bb. The Charter and the International *Crime* of a State 13. This paradoxical reality has been one of the reasons why, in particular, the I L C has met so many difficulties in assessing what could be the consequences of the commission of an international >when appreciating the necessity to intervene in a concrete ~ i t u a t i o n ' ~ . In recent practice, the striking fact is that the Security Council did not deem it necessary to demonstrate o r justify the effective existence of a threat to the international peace including in some situations in which it was not necessarily self-evident that such a threat did exist at the international scale. Such was, in particular, the case with regard to the situation prevailing in Somalia in December 1994, when S/RES/794 (1992) of 3 December 1992 was adopted. The humanitarian crisis left n o doubt. But its cross-border effects were not discernible, at least at first view75. I n the same way, SIRES1748 (1992) of 31 March 1992 does not demonstrate in which respect the alleged conduct of Libya in the Lockerbie context creates a real threat t o the international peace. As said by a qualified American author, "mere allegations that a particular government supports terrorism d o not make the case"76. O t h e r examples of such a practice could easily be found in recenr times7'.

See in particular J.A. Frowein, "On Art. 39", 605 et seq., in: Simma, see note 31; G. Cohen-Jonathan, "Article 39", in: Cot, Pellet, see note 31,645 et seq. See B. Conforti, "Le pouvoir discritionnaire du Conseil de sicuriti en matikre de constatation d'une menace contre la paix, d'une rupture de la paix ou d'un acte d'agression", in: Le dkveloppernent ..., see note 69, 51 et seq.; J. Combacau, Lepouvoir de sanction de l'O.N.U., 1974,104-106; J. Arntz, Der Begriff der Frieden~bedrohun~ In Satzung und Praxis der Vereinten Nationen, 1975, 24 et seq.; U. Beyerlin, "Sanctions", in: R. Wolfrum (ed.), United Nations: Law, Policies and Practice, Vol. 2, 1995, 1111 et seq. See Kirgis, note 64, 513; R. Gordon, "United Nations Intervention in Internal Conflict: Iraq, Somalia and Beyond", Mich. J. Int'l L. 15 (1994), 519 et seq. Kirgis, note 64, 516. Another issue which may be noticed here is the proportionality one, as applied to the reaction decided by the Security Council in response to what it determines as being a "threat to the international peace". See M . Bothe, "Les limites des pouvoirs du Conseil de sicuriti", in: Le dkveloppement ... , see note 69, 76 et seq.; more generally, see Sociiti fraqaise pour le droit international, Colloque de Rennes, Le chapitre VIZ de La Charte des Nations Unies, 1995, see in particular, J.M. Sorel, "L'ilargissernent de la notion de menace contre la paix", 3 et seq., et P. Daillier, "Elargissement et diversification de l'intervention des Nations Unies au

The Constitutional Dimension of the Charter Revisited

27

-The second technical reason to the alleged constitutional crisis of the United Nations is the absence of checks and balances in the Charter itself. The way in which the Charter apportions competences among the Genera1 Assembly and the Security Council, in particular as to the maintenance of peace leaves room for some concurring action, as demonstrated by the ICJ in its Advisory Opinion in the Certain Expenses Case78.However, there is no constitutional* way in which one would be able to control the action of the other. The recent period (i.e. from 1990 onward) has revealed the contrast between an overactive Security Council and a rather discreet General Assembly, which seems far from the time when it used to be the cradle of many far reaching normative innovations, which gave rise to the controversial -hltg., paras. 76 et seq. and 106.


40

to have fairer representation for the countries of Asia and Africa. Germany was still divided and relatively weak and Japan did not count for much in the world economy ..."l7. Resistance t o the amendment largely came from some permanent members and their a l l i e ~ ' Through ~. the amendment, the ratio of the general membership of the United Nations to the membership of the Council increased to 7.53 to 1 (113 to 15), the ratio of potential non-permanent members to available non-permanent seats to 10.8 to 1 (108 to 10), respectively. The allocation agreement of 1946 was replaced. N o w Asian and African States were allocated five, Latin American and Caribbean States two, Eastern European States one, and Western European and other states two non-permanent seats. Ninety-seven member states (84.6 per cent) voted in favour, 11 against19 and 4 abstained2'. All permanent members except China abstained or voted against the increase but later ratified the charter amendment that came into force on 31 August 196521.

In 1971 the Republic of China (Taiwan) left the United Nations, after the Assembly recognised the People's Republic of China as one of the five permanent Council members and decided to expel the representatives of the Republic of China2'. The People's Republic of China took over its permanent seat in the Security Council without an amendment to Article 23 para. 123. By 1979 the membership of the United Nations had risen to 152. Ten countries, most of them developing countries, proposed24 that Council

M. Seara-Vazquez, "The UN Security Council at Fifty: Midlife Crisis or Terminal Illness?", Global Governance 1 (1995), 285 et seq., (287). J. Teja, "Expansion of the Security Council and its Consensus Principlen, N I L R 16 (1969), 349/350; see also J. Delbriick, "Die Vereinten Nationen in der Zeit vorn 1.7.1961 bis 30.6.1969",jlR 14 (1969), 345 et seq., (351). Bulgaria, Belarus, Cuba, Czechoslovakia, France, Hungary, Mongolia, Poland, Romania, Ukraine, Union of Soviet Socialist Republics. Portugal, South Afrtca, United Kingdom, United States of America. After deposition of the last necessary instrument of ratification of the permanent members. A/RES/2758 (XXVI) of 25 October 1971. The resolution states in a concise manner: " ... the People's Republic of China is one of the five permanent members of the Security Council" and ... the representatives of Chiang-Kai-shek are expelled from the place which they unlawfully occupy at the United Nations ...". "

Bringing the Security Council into a New Era

41

The ratio of the general memmembership be increased from 15 to bership of the United Nations to the Council membership (152 to 21) would thus have been narrowed down from 7.53 t o 7.23 to l , the ratio of potential non-permanent members to available non-permanent seats (147 t o 16) from 10.8 to 9.18 to 1. The intention was to allocate the nonpermanent seats as follows: Africa (five), Asia (four), Latin America and the Caribbean (three), Eastern Europe (one), Western Europe and others (two). I n 1980, ten more countries, exclusively developing countries, cosponsored the pertinent resolution26 but the necessary majority did not materialize in the Assembly. Until 1992, the resolution was dealt with as a matter of form and postponed year after yea?'. I n 1991, the President of the Russian Federation, Boris Yeltsin, informed the Secretary-General28 that the Russian Federation would continue the membership of the Union of Soviet Socialist Republics in the United Nations, including the Security Council, and maintain full responsibilities for all the rights and obligations under the Charter, including the financial obligations. Neither the permanent members of the Council nor any member of the Assembly objected29.

Doc.A/34/246. Letter of 14 November 1979 from Algeria, Argentina, Bangladesh, Bhutan, Guyana, India, Maldives, Nepal, Nzgeria and Sri Lanka. Draft resolution Doc.A/34/L.57 of 11 December 1979 (and Add. 1 of 14 December 1979) presented by Algeria, Bangladesh, Bhutan, Cuba, Grenada, Guyana, India, Japan, Maldives, Mauritius, Nepal, Nigeria, Sri Lanka, Syrzan Arab Republic. Benin, Cuba, Ghana, Grenada, Iraq, Kenya, Libyan Arab Jamahiriya, Seychelles, Tunisia, Cameroon and Zambia: see Doc. A/25/L.34/Rev.2 of 15 December 1980. General Assembly Decisions 35/450 of 17 December 1980,36/460 of 18 December 1981,37/450 of 21 December 1982; cf. also E. Kourula/T. Kanninen, "Reforming the Security Council: The International Negotiating Process Within the Context of Calls to Amend the U N Charter to the Ncw Realities of the Post-Cold War Era", LJIL 8 (1995), 337 (338). Letter of 24 December 1991, transmitted by the Russian Permanent Representative, I: Vorontsov, to the Secretary-General (verbal note of 24 December 1991). Member States were informed about both texts by verbal note of the Secretary-General 91/733 of 24 December 1991. The texts do not exist as official United Nations documents. In the Council records, the name Union of Soviet Socialist Republics (3024th Mtg. of 23 December 1991, Doc.S/PV.3024) was changed into Russian Federation (3025th Mtg. of 31 December 1991, Doc.S/PV.3025). N o member of the Council made a reference to the aforementioned letters during these meetings or the consultations on 27 December 1991.


42

3. Conclusions: Pragmatic Attitudes towards Council Membership Events since 1945 have shown a pragmatic attitude o n all sides towards changes in both categories of Council membership. The membership agreed to de facto replacements of t w o permanent members. It also agreed to additional non-permanent members. While the Charter was formally amended in connection with the latter, the wording of Article 23 para. 1 was not adapted with regard to the permanent members and the new factual situation. I n both cases, existing resistance b y a few members at the time when the changes took place were consecutively overcome o r evaporated.

11. The Present Discussion: Moving Closer to Reform After the politicalupheavals of the late eighties, the issue of Council reform moved slowly30to the fore once again, due o n the one hand t o the apparent willingness of Japan and the united Germany3' t o assume greater global

Cf. T. Daley, Russia? "Continuation" of the Soviet Council Membership and Prospective Policies Toward the United Nations, 1992, 5. See also W. Kiihne, Reform des VN-Sicherheitsrats z u m JOjahrigen Jubilaum, 1995,9; E . - 0 . Czempiel, "Der Sicherheitsrat - Ruine einer vergangenen Welt?", V N 40 (1992), 5/6. Kourula/Kanninen, see note 27,338. See Federal Minister for Foreign Affairs Klaus Kinkel in a first cautious statement before the General Assembly during its 48th General Debate in 1992 (" ... if a change in the Council's composition is actually considered we too shall make known our intention to seek a permanent seat ..."), Official Records, Doc.A/47/PV. 8, 59 of 23 September 1992; German reply to the Secretary-General of 30 June 1993 (Doc.A/48/264 of 20 July 1993,43); see also G. Altenburg, "Deutschland auf dem Priifstand", E A 49 (1994), 693 et seq., (698); H. Heberlein, "Rechtliche Aspekte einer standigen Mitgliedschaft Deutschlands im UN-Sicherheitsrat", Z R P 27 (1994), 358 et seq., (359). The national discussion is reflected by C. Tomuschat, "Deutschland und die Vereinten Nationen", in: K. Kaiser/J. Krause (eds.), Deutschlands neue Auj3enpolitik, 1996,97 et seq.; T. Eitel, "Am I My Brother's Keeper? A German View on U N Peacekeeping", The Brown Journal of World Affairs 3 (1996), 45 et seq., (48); V. Weyel, "Yes, but ... Germany's desire for a permanent seat in the Security Council", in: H . d'orville (ed.), Beyond Freedom. Letters to Olesegun Obasanjo, 1996, 555 et seq.; B. Fassbender, "Wieder kein Platz an der Sonne?", Die Politische Meinung 41 (1996), 61 et seq.; M. Schaefer, "Die


43

responsibility32 and, o n the other hand, the readiness of the five permanent members to discuss enlargement of the Council. Following an initiative by Japan and 34 developing countries, member states were invited in 1992 t o send written comments o n a possible review of Council membership to the Secretary-GeneraP3. A total of 79 replies from member states and regional groups34 were received b y the Secretary-General and incorporated into his report to the Assembly3j. These comments, some of which named Germany and Japan for the first time as possible new permanent members36,proved that the envisaged expansion of the Council would be of a different quality and significance than the one in 196311965. The possibility of new permanent members and the new rights and obligations associated with this status (right of veto, financial obligations) affected a variety of national interests37,which marked the debates that followed.

1.1993-1994: First Trends. Brainstorming I n response t o the Secretary-General's report, the Assembly established with resolution of 3 December 1993 an Open-ended Working Group on

the Question of the Equitable Representation on and Increase in the Membership of the Security Council and other Matters Related to the neue Rolle des Sicherheitsrates - Warum sol1 Deutschland standiges Mitglied werden?", in: E. Aderhold et al. (eds.), Festschrift fur Hans Hanisch, 1994,191 et seq.; V. Rittberger, Statusve~anderun~en im Sicher-

heitsrat der Vereinten Nationen unter besonderer Berucksichtigung der Aufnahme/Integration Deutschlands als Standiges Mitglied mit allen Rechten und Pflichte, DASA-Studie (Zwischenbericht), May 1994; M. Kreile, "Verantwortung und Interesse in der deutschen A d e n - und Sicherheitspolitik", Aus Pol. & Zeitgesch. 5 (1996), 3 et seq., (5); K. Kaiser, "Die standige Mitgliedschaft im Sicherheitsrat", EA 48 (1993), 551 et seq.; W. Wagner, "Der standige Sitz im Sicherheitsrat", EA 48 (1993), 533 et seq. R. Panda, "Japan, Germany and the U N Security Council", J.Int'lAff: 48 (1992), 51 et seq.; cf. also G. van Well, "Germany and the United Nations", in: Wolfrum, see note l, Vol.1, 558 et seq. AlRES/47/62 of l 1 December 1992. African States, Arab States, Caribbean States. AlRES/481264 of 29 July 1994 and Add.1, Add.2 and Add.2lCorr.l and Add. 3-10; see also C. Philipp, "Politik und Sicherheit", V N 41 (1993), 173-175. By Australia, Ghana, Jordan, Kazakhstan, the Netherlands, Qatav, Romania, United States of America, ibid. KoroulalKanninen, see note 27,339.

44


Security CounciP8 (Workzng Group). In its resolution, the Assembly specified as reasons for the review of the Council "the substantial increase in the membership of the United Nations, especially of developing countries, as well as the changes in international relations". The resolution also referred to "the need to continue to enhance the efficiency of the Security Council" and "the importance of reaching general agreement". These elements outlined the key components of the reform contemplated: a.) an expansion in the number of seats to account for increased membership, b.) consideration of changed international conditions (emergence of new political and economic global actors), C.)the safeguarding of the Council's efficiency (i.e. no inappropriate numerical expansion), d.) indications on the kind of majority vote the reform would require (general agreement but not consensus). The resolution text was the result of negotiations among a group of approximately two dozen member states under the leadership of Singapore. The title of the Working Group was a special point of contention. A number of smaller and medium-sized countries led by the Philippines and Malaysia insisted that "and other matters related to the Security Council" be added. This was to ensure that the reform would not be limited to a mere increase in seats but also aim at improving the Council's transparency and working methods. Both elements39 - expansion as well as working methods - have since been accepted as two linked components of the Working Group's mandate. Between January and September of 1994, the Working Group met 22 times under the chairmanship of the President of the Assembly, Ambassador S. R. Insanally (Guyana), and his two Vice-chairmen, Ambassador Wilhelm Breitenstein (Finland) and Ambassador Chew Tai Soo (Singapore). The discussions were divided into six clusters (equitable representation, other matters, effective and efficient functioning, decisionmaking, election and terms of office and modalities for bringing changes into effect). Several background papers were prepared by the Secretariat4'. N o conclusions were drawn, however. In the end, the Working Group agreed to present a primarily formal and short (nine paragraphs) first final report4'. In this report, the debate was described as "substantive" and "con~tructive." As far as expansion of the Council was concerned, it was noted that there had been a "convergence of views" and that further discussions were 38 39 40 41

A/RES/48/26 of 3 December 1993. Later called Cluster I and Clustev I1 elements. Non-papers by the Secretariat of 28 February 1994 and by the Chairman and President of the Assembly of 20 May 1994. GAOR 48 th Sess., Suppl. No. 47 (Doc.A/48/47).


45

required42. The 48th General Assembly adopted the report in September 199443. This rather insubstantial and weak44 result presented after the Working Group's first year of deliberations is proof of how difficult it was for the Group to get through and systematize the questions at hand. The necessary prudence and will t o steer clear of rash decisions marked a starting phase mainly consisting of brainstorming and collecting first comments and views.

2. 1994-1995: Positioning. First Frictions Between January and September of 1995 the Working Group met 1 1 times f o r formal meetings and 21 times for consultations under thechairmanship of the President of the Assembly, Ambassador Amara Essy (Ivory Coast), and his co-chairmen, Ambassador Wilhelm Breitenstein (Finland) and Ambassador Nitya Pibulsonggram (Thailand). Based on the General Debate of SeptemberIOctober 1994 and on the Plenary Meetings of November 199445,the Vice-chairmen prepared internal non-papers on possible reform elements which were now divided into Cluster I and Cluster 11 elements. Cluster I encompassed: the elements equitable representation on and increase in the membership of the Security Council, permanent membership, non-permanent membership, new categories of membership and alternative proposals for an increase in the present categories, voting in the Security Council, including the veto, periodic reviews. Clustev II included: measures taken and practices adopted by the Security Council t o enhance its transparency and working methods, institutionalization and review of measures and practices taken up to improve the working methods of the Council, consultations with interested parties, consultations with troop contributors, review of provisional rules of procedure of the Council, improving the work of the sanction committees, enhancing the Council's information-gathering and analysis capability, relationship between the Security Council and other United Nations organs. The non-papers were updated and later reproduced in the form of obserwations on Cluster I and I146.A t the same time, a number of states and groups of states introduced first official reform models (called working papers or submissions). However, the Working Group seemed divided over 42 43

44

45

46

Ibid., para. 8. General Assembly Decision 48/498 of 14 September 1994. Cf. W. Kiihne, "Erweiterung und Reform des Sicherheitsrats: Keine weltpolitische Nebensache", EA 49 (1994), 685 ec seq. 49th Sess., Agenda item 33. Doc. AI491965 of 18 September 1995, 4 et seq., 39 et seq., 46 et seq.

46


the evaluation of these events. For a long time it seemed unlikely that agreement could be reached o n a second final report. At the last minute, the G r o u p decided to prepare a second final report that was again rather short (17 paragraphs)47 and accept the so-called "observations and assessment of the two Vice-chairmen" with a compendium as Annex48. The report stated that the Working G r o u p had not concluded its discussion of the non-papers. The point was also made that the Vice-chairmen's observations and assessment had n o legal status nor would they prejudice delegations' positions49. In its conclusion the report noted agreement as far as the expansion of the Security Council and the review of the working methods were concerned. It also referred to the comprehensive package of both Clusters (I and 11), to their concurrent proceedings of work and to the fact that progress in one area should not be impeded by lack of progress in the other. Finally, the report also mentioned that important differences continued to exist on key issues and, therefore, further indepth consideration of these issues would still be required5', The Vice-chairmen presented their observations and assessment parallel t o the Working Group's final report, stating that important progress had been achieved. They took the view that member states must be prepared to move on to the next phase of the work, i.e. actual negotiations. They suggested that the ideas contained in the non-papers be crystallized and differences narrowed5'. Through this approach, they stated, a single negotiating text could in due course emerge52.The Annex to the observations and assessment contained 12 working papers that had been presented by states o r groups of states during the negotiations5'. These official statements, called "submissions", pointed to first positions. As far as their content was concerned, the submissions could be described as follows: nine submissions concentrated primarily o n possible expansion models or Cluster I issues (Australia, Informal Group of Small a n d Medium-sized ~ o u n t r i e s ~Belize, ~, Cuba, Italy, Mexico, Movement of Non-Aligned Countries, Nordic C o ~ n t r i e s Turkey). ~~, Two other submissions did not

GAOR 49 th Sess., Suppl. No. 47 (Doc.A/49/47) of l 5 September 1995. Doc.A/49/965 of 18 September 1995. Doc.A/49/47 of 15 September 1995, paras. 7 and 11. Ibid, see paras. 13 to 16. Doc.A/49/965 of 18 September 1995, para. 31. Ibid., para. 33 1it.d. Ibid., 51 et seq. Austria, Belgium, the Czech Republic, Estonta, Hungary, Ireland, Slovenia. The name "Group of 8" stems fromPortugal's close links with that group. Denmark, Finland, Iceland, Norway, Sweden.


47

introduce concrete expansion models but suggested objective criteria for (permanent) Council membership (Indortesia, Singapore). Two of the submissions also included passages o n working methods o r Cluster I issues (Nordic Countries, Movement of Non-Aligned Countries). O n e submission dealt with the so-called cascade effect, i.e. a popular label for a de facto large representation ratio of permanent members of the Council in the United Nations System as a whole (Argentina). What was remarkable about these submissions was the weight attributed to Cluster I elements. Nine out of twelve, i.e. three quarters of the submissions, approved, o r at least did not reject, enlargement of the Council's permanent membership. Some of these submissions had been presented b y groups of states representing five (Nordic Countries) and 113 members (Non-Aligned Countries). O n l y three states (Italy, Mexico, Turkey) clearly opposed the idea of new permanent members. Mexico, however, granted a privileged status to Japan and Germany in its model. Together with the submission of the Informal Group of Small a n d Meseais for Germany and dium-sized Countries that supported Japan, the Mexican submission was the only one that directly named any countries. With the exception of Indonesia, no possible aspirant for a permanent seat o n the Council presented a working paper of its own.j6 The Assembly adopted the final report in December 1995j7. It recommended that the Working Group "continue its work, taking into account, inter alia, the progress achieved and the views expressed during the fiftieth session of the General Assembly, including the Special Commemorative Meeting of the General Assembly o n the occasion of the fiftieth anniversary of the United Nations". The next report should include any agreed recommendationss8. This reference to possible results achieved by the Working Group was an expression of the desire to further advance the work during the fiftieth sessionj9. The public, however, took little notice of the second final report and, for that matter, the quite substantial

Eight states are !generally considered to be possible candidates, in alphabetical order: Brazil, Egypt, Germany, India, Indonesia, Japan, Nigeria, South Africa. See their positions in E. Mantanle, The UN Security Council, 1995,14 et seq. Throughout the discussions the Secretariat has avoided namingparticular states in its documents. O n the isolated occasions when this happened (Doc. A/AC. 247/1996/CRP.l of 11 January 1996, para. 69 refers to "... a number of Member States, including Brazil, Egypt, Germany, India, Japan and Nigeria ..."), countries in opposition to new permanent seats immediately protested. General Assembly Decision 49/499 of 18 September 1995. Doc.A/49/47 of 15 September 1995, conclusions (para. 17). Also Kourula/Kanninen, see note 27,342.

48


positions of states connined in the observations and aswssmcnt of the Vice-chairmen.

3. 1995-1996: Crystallization and Concretization Between October, 1995, and October, 1996, discussions became distinctively more concrete and politically marked. Three developments in particular contributcd to this: thc fifticth annivcrsary of the United Nations in October 1995, the General Debates at the opening of the 50th and the 51 thGeneral Assembly, and the third final report presented by the Working G r o u p in September 1996, containing for the first time all possible reform elements. The United Nations celebrated its fiftieth anniversary from 23 to 25 October 1995 in the presence of numerous heads of state and government. Almost all of the speeches held o n that occasion supported institutional reform of the United Nations and its bodies6'. Despite the symbolic nature of the occasion which only allowed for short addresses, many speakers stressed the importance of Council reform. A small but significant number of member states used the occasion to refer again explicitly to Japan and Germany as possible new permanent members of the Counci161. O n 24 October 1995, the Assembly adopted a solemn Declaration o n the occasion of the fiftieth anniversary of the United Nationsh2which stated that the member states and observers of the United Nations "will give to the twenty-first century a United Nations equipped, financed and structured to serve effectively the peoples in whose name it was establi~hed"~ . It ~stated further that "the Security Council should, inter alia, be expanded and its working methods continue to be reviewed in a way that will further strengthen its capacity and effectiveness, enhance its representative character and improve its working efficiency and transparency; as important differences o n key issues continue to exist, further in-depth

63

See the compendium United Nations (ed.), The UN at 50. Statements by world leaden;, 1996.

61

Cambodia, Croatta, France, Kazakhstan, Lithuania, Norway, Panama, Peru, St. Vincent and the Grenadznes, Uzbekistan.

62

The Chairman of the Preparatory Committee, Ambassador R. Butler (Australia), played a decisive role in making the declaration, which was still being hotly debated as late as the eve of the anniversary, a success; see his statement as contained in the compendium, see note 60,473. Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, 24 October 1995, A/RES 50/6 of 9 November 1995.

63

Bringing the Securit!- Council into a N e w Era

49

consideration of theses issues is requirednh4. T h u s several points previously made in the report b y the Working G r o u p were reaffirmed at the political level"'. T h e General Debates of the 50th and the 51th General Assembly t o o k place in September and O c t o b e r 1795/1996. T h e y highlighted once again the political trends prevailing a m o n g m e m b e r statesb6.Building u p o n earl? s u p p o r t in 17736'/179465 for the "natural" candidates Japan and German); b o t h countries were able to strengthen their position further t h r o u g h o u t the debates in 19956y and 1376". A n increasing and a c ~ u m u l a t i n g ~ ~ n u m b e r of m e m b e r states supported their candidatures in public. N o n e of the other aspirants f o r permanent membership7' were able t o c o m e u p with remotely comparable results. Some of them even seemed t o lose support'3. Status q u o solutions such as the Italian modeli4 received s o m e attention in the debate, hon-ever, often combined with o t h e r models and n o t in their original f o r m . A considerable n u m b e r of m e m b e r states referred t o them w i t h the proviso that Japan and G e r m a n y should receive permanent -seats '.

Ibid., para. 14. Cf. Doc.A/49/17 of 15 September 1995, para. l 3 and 16. General Debates take place at the beginning of the official sessions in September/October. They give each member state thz opportunity through the head of delegation - usually its President or Foreign Minister - to outline national positions regarding the United Nations and ~ t Agenda s In the replles the Secretan-General rece~veddurlng the 48th Sesslon, eight member states refer1 ed to G e r m a n ) and Japan b\ name, see Doc A/48/264 of 23 Julx and Addenda D u r ~ n gthe 49th General Debate, 13 member states referred to G e r m a n y and Japan by name. During the 59th General Debate, 19 member states referred to G e r m a n y and japan by name. During the 5 l th General Debate, 3 l member states referred to G e r m a n y and Japan bp name. Quite a few countries n-hich rei'erred to names of candidates in one year did not necessnrilj- repeat them in the iollowing !.ear. Also, 3 number of states preferred to describe a particulzr- countr!. in unambiguous terms n-ithout identif>-ing the country's name. Yet other countries identified their candidates in bilateral meetings, but I-efrained from doing so openly See the names mentioned in note 56. B Y ~ Z(1995: I ~ 3; 1996: 31, India (1995: 3, 1996: 1 ) . Other candidates n-ere not mentioned at all. See Chapter IY and the terminology used there. l 3 out o f 2 7 member states took such a position, GXC)R/51/P\: 4 (17

50


The Working Group further intensified its work between November 1995 and September 1996 with 39 formal and 17 informal meetings under the chairmanship of the President of the Assembly, Diogo Freitas do Amaral (Portugal). In February 1996, Vice-chairman Nitya Pibulsonggram was replaced by Ambassador AsdaJayunama (both Thailand) folIowing extensive consultations. The negotiations were marked by the even more concrete and pointed opinions put forward by various states. In accordance with a working programme revised in April 1996, the major topics discussed were the composition and size of the Council, the decision-making in the Council, including the veto, working methods and transparency of the Council, as well as other matters. The intensity of these discussions was reflected in a comprehensive third final report which included a detailed summary of discussion. The report was adopted by the Working Group in September 1996 and shortly thereafter by the Assembly76. The Assembly once again decided to keep the item on the agenda and to request a report with "any agreed recommendations". The report itself avoided any evaluation of the trends that had become apparent. The Working Group, which had to adopt its report by consensus, merely stated in critical passages that certain proposals "received both support and ~bjection"~'.Nevertheless, the report was characterized by many as the Working Group's best and most comprehensive report since it started in 1 9 9 3 ~A ~ n. integral part of the report is an addendum containing 19 Ann e x e ~ among ~ ~ , them official working papers o n new rotating "non-permanent" seats (Italy, Ukraine) and criteria for these seats (Spain), as well as o n new permanent seats (Afrzcan Common Position, Monaco, Australia, Germany, Ukraine, Malaysia, Norway, Belize), on regional rotating permanent seats (African Common Position, Belize, Malaysia, Norway) and on so-called shared seats (Belize). Egypt (for the Non-Aligned countries), Mexico and Uruguay proposed models limiting the scope and use of the veto. Other working papers dealt with the Security Council's working methods and procedures (Czech Republic, Argentina and N e w Zeahnd) as well as with periodic review (Germany). Among the twelve official working papers added to the report, some of them new, some of them revised, there was only one that opposed an expansion of both categories of Council seats (Italy).Unlike in 1995, this

76 77 78 79

September 1996) to 30 (10 October 1996). General Assembly Decision 50/489 of 16 September 1996. Cf. paras. 25, 26, 27; see also the familiar formulas used in paras. 20,22, 31,34. Among them D. Freitas do Amaral, President of the General Assembly, cf. Press Release GAl9085 of 16 September 1996. Doc.A/50/47/Add. 1 of 9 September 1996.


51

year all the models were an integral part of the final report, which even integrated the submissions of the previous year then contained in the observations and assessment of the Vice-Chairmedo. This third final report, consisting of 36 paragraphs, presented concrete proposals. For the most part, it followed the Working Group's working programme and dealt extensively with the following elements considered most essential for the Council reform: transparency and working methods of the Council (III.), size and composition (IV.), decision-making, including the veto (V.), amendments to the Charter (VI.), periodic review of the Charter (VII.).

111. The Council's Transparency and Working Methods The improvement in the transparency and working methods of the Council's work occupies a prominent place in the Working Group's third final report which noted that there was a "considerable convergence of view^"^'. This element is essential to many member states since it opens ways of participation in relevant parts of the Council's work without requesting Council membership. The Working Group refers in its title to this transparency components2. Existing proposals are aimed at better general transparency (improved information for all member states about the Council's work), better individual transparency (enhanced status of member states particularly affected) and better collective transparency (improved cooperation with groups of interested member states). The proposals brought forward also indirectly strengthen the Assembly by potentially opening up the Council to any member of the Assembly. In addition, efforts are underway to strengthen the role of the Assembly by improving the relationship between the Council and the United Nations' principle organs. Countries that have taken specific and popular officialg3 initiatives in these areas were N e w Zealand, Argentina, Canada and the

Czech Republic.

80

81 82 83

Ibid., para. 15. Doc.A/50/47 of 13 September 1996, para. 20. " ... and other matters related to the Security Council"; see also Chapter 11. para. 1. Detailed proposals made during the discussions by other countries such as the Philippines were not submitted in the form of official working papers.

52


1. General Transparency: Information for Member States Full information is considered to be a basic element in improving the transparency of the Council's work. As the report itself notes, the steps taken to this end over the last few years were "largely encouraged by the discussions" of the Working Groupg4.T h e Secretariat prepared an inventory of the measures already taken by the C o u n ~ i l Among .~~ them were: a new structure for the Council's reports t o the Assembly, forecasts of the Council's programme of work, distribution of Council documents, holding of open Council meetings and briefings on the progress of consultations. A large number of member states consider these initiatives as insufficient and have asked for further measures t o be adopted. A list of ideas submitted by Argenrina and New Zealand is one of the many concrete and detailed proposals in this context. It comprises the following items: institutionalized daily briefing by the President of the Council, open orientation debates as the norm when the Council commences consideration of an issue, mechanisms t o alert member states to "blueg6" draft resolutions, institutionalized provision of the envisaged programmes of work and the inclusion of the annotated agenda and expected action by the Council in the official Journal. Moreover, it also includes the right of any member of the United Nations t o request an urgent meeting of the Council in cases when it feels there is a threat t o international peace and securityg7. Most of the proposed measures would indeed lead t o an improved dissemination of information to member states o n the Council's actual activities. The logistic burden involved is not really a sufficient counterargument. T h e Council might also have to accept that member states may rcact to information received and try to influence the development of a given situation. General transparency will reach its limits where the Council's ability to decide o n the main focus of its work is jeopardized. Attempts

Cf. Doc.A/50/47 of 13 September 1996, para. 20. Doc.A/50/47/Add. 1 of 9 September 1996, Annex 111. Blue draft resolutions are a means of distributing draft resolutions at very little notice during the course of a meeting. O n 28 February 1994, the Council adapted the following practice: "Draft resolutions in blue, that is, in provisional form, will be made for collection by non-members of the Council at the time of consultations of the whole of the Council. Draft resolutions published in blue late a t night will be made available for collection by non-members of the Council the following day" (Doc. S/1994/230). Argentina/New Zealand: working paper, Doc.A/50/47/Add. 1 of 9 September 1996, Annex V1 (paras. 1 , 2 , 6 to 9).


53

to force the Council to deal with certain topics could be regarded as an infringement of its autonomy. They would also fail to lead to any constructive results, since an unwilling- Council would most likely react by simply avoiding substantial decisions. A n y final outcome will have to prevent such possible shortcomings. Other, innovative proposals presented outside United Nations bodies might be of helps8.

2. Individual Transparency: Participation by Affected Member States The Czech Republic's proposal that Article 31 be reinterpreted on a teleological basis has become one of the most popular proposals presented to the Working G r o u p since the beginning of its deliberations. The Czech Republic proposes that under given circumstances non-members be allowed t o participate in informal consultations to which at present only Council members have access. I n the Czech view, this could be implemented b y a simple change in the Council's rules of procedure89. Article 31 provides that members may participate in Security Council discussions whenever the latter considers that the interests of that member are specially affected. Until now this option has been understood, for historical reasons, t o only apply t o formal meetings9! As the Council has been meeting more and more regularly in closed, so-called informal consultations since the mid-sixties9' and even more so after 197892,formal meetings have become the exception as has the option of participation intended by Article 31. The Council still holds formal meetings. However, they usually merely announce the results of the consultations which took

Like regional briefings or'ad hoc groups to gather information: International Peace Academy, see note 4,9. Czech Republic: working paper, Doc. A/50/47/Add. 1 of 9 September 1996, Annex X. Cf. R. Dolzer, " O n Art. 31 ", 495 et seq., (502-9), in: Simma, see note 9; L. Feuerle, "Informal Consultations: A Mechanism in Security Council Decision-Making", N. YU.]. Int'l L. & Pol. 18 (1985), 267 et seq., (301). Before the 1963/1965, the office of the Council's President's served as a useful and "off-the record" consultation room for the then 11 members of the Council, cf. Russett/O'Neill/Sutterlin, see note 4, 12. The completion of a consultation room in 1978 allowed the number of consultations to triple and brought with it the introduction of simultaneous interpretation services, see Czech Republic, see note 89, para 8; cf. Feuerle, see note 90,277; M.-L. Smouts, "Riflexions sur les mithodes de travail du Conseil de Sicuriti", AFDI 28 (1982), 601 et seq., 61 1.

54


place in the infoumals. Thus participation in formal meetings has almost entirely lost significance for the non-members concerned. During June, 1995, and June, 1996,240 informal consultations were held versus 132 formal meetingsg3,all of them organized and provided with logistic support (agenda, locations, translation service) by the Secretariat. The above-mentioned development shows the appropriateness of the Czech proposal, particularly when compared with the situation at the beginning of the United Nations, when formal meetings were the rule94. The Charter does not mention different forms of meetings. Yet, the Council's provisional rules of procedure postulate that the Council usually meets inpublicg5.The greatest objection heard against a changed, teleological interpretation of Article 31 was stated by the Czech Reptcblic itself: "... Some feel, that that presence of a representative of a country under review would inhibit the discussion, that Council members would feel constrained in expressing themselves freely, in short, that the assumed great advantages stemming precisely from the secrccy of informal consultations ... would be lostng6. Article 31 shows, however, that members d o not have an unconditional right to participate. They "may" participate, if the Council invites them9'. There is also leeway for invitations to participate in "first readings" or consultations "off limits" which would take into account the objections raised98.In other words: both the essence of the Czech proposal and the need for informal and secret consultations could be preserved in the contcxt of a teleological (rc)interpretation of Article 31.

9

94 95

96

97

98

See Doc.AI5 112 of 13 November 1996,17 (Report of the Security Council to thc General Assembly). Cf. Bailcy, scc notc 14,40. Doc.S/96/Rcv.7 -Rule 48; see recently the French aide-mimoire (Doc. A/49/667=Doc.S/1994/1279) of 11 November 1994 and the letter of New Zealand to the President of the Council of 18 November 1994 (Doc. SII99411313); the rules also foresee the possibility of "private meetings": Rules 48 (2nd sentence) and 51. Czech Republic, see note 89, para. 12. Others are pleading for a "virtually automatic" participation, see Canada. Statement made by Ambassador R. Fowler, Official Records Doc. AI511 PV. 45 of 30 Octobcr 1996, 16. Cf. Czech Republic, note 89, paras. 24,25.


55

3. Collective Transparency: Cooperation with Groups of Member States Another important area of improved transparency is the Council's cooperation with countries which are not members of the Council but provide the contingents of troops necessary for peace-keeping operations decided by the Council. Article 44 stipulates that the Council shall invite a member, "if the Member so desires, to participate in the decisions of the Security Council concerning the employment of contingents of that Member's armed forces". Article 44 is restricted, however, to peace enforcement operations under Chapter V11 and decisions regarding the first deployment of a contingent. Moreover, it only applies if armed forces, assistance and facilities have been made available to the Council in accordance with Article 43 para. 199. Speaking for many, Canada has taken up the essence of the concept underlying Articles 43 and 44 and called for "meaningful participation in decision-making by those members whose nationals are in the crossfire of the conflicts over which the Council is deliberating1"". As early as 1995, 33 member states addressed a letterlO1to the Council which was discussed thoroughly102and answered on 28 March 1996 with a statement by the President of the C o ~ n c i l ' ~ In~the . reply, the President of the Council set out the procedures to be followed in the future. Future consultations were to be held as soon as practicable and in good time before decisions were taken on the extension or termination of, or significant changes in, the mandate of a articular peace-keeping operation. Meetings would, unless it proved to be impracticable, be held with any prospective troop contributors, whenever the Council considered establishing a new peace-keeping operation. Ad-hoc meetings could be convened in the event of unforeseen developments in a particular peace-keeping operation. The statement described these and other arrangements as "not e x h a ~ s t i v e " ' ~ ~ . O n e of the main demands of the major troop-contributing countries has been met by the President chairing meetings with troop-contributing nations and the Council holding consultations with prospective troopCf. J.A. Frowein, "On Art. 43", 636 et seq., in: Simma, see note 9; B.O. Bryde, "On Art. 44", 640 et seq., ibid. See Ambassador Fowler, see note 97. Letter dated 8 December 1995 (Doc.S/1995/1025). Official Records Doc. S/PV.3611 of the 3611th Mtg. of 20 December 1996. DocS/PRST/1996/13 of 28 March 1996. Ibid., (k).

56


contributing nations prior to the creation of new operations'05. This practice should establish itself and promises fulfilled. However, Council consultations on policy and mandate and o n operational aspects, consultations of the Chairmanship of the Council, formalization of consultations, presence of the host country of an operation, presence of all Council members and other measures are among further-reaching- demands which continue to be p u t forwardlo6. Consultations with third countries affected b y sanctions imposed o n a country are a separate case of cooperation with groups of member states. This is not so much a matter of more transparent Sanctions Cornmitteeslo7. Rather it refers to better coordination with those states which bear the brunt of sanctions and their implementation. Article 50 even stipulates this as a right of the members affectedlos. The observation that Article 50 of the Charter needs more attentionlO' is in line with on-going discussions in the Special Committee of the Charter of the United Nations and on the Strengthening of the Role of the Organisation o n this issuellO.

4. Cooperation between the Council and other Bodies, particularly the Assembly Efforts to improve cooperation between the Council and the Assembly have resulted in proposals particularly aimed at strengthening the latter. Some suggestions listed in the Working Group"' report are stricter ad~ ~authority ~ of the Assembly herence to the - not ~ n c o n t r o v e r s i a lCf. Ambassador Fowler, see note 97. Cf. Doc.A/50/47/Add. 1 of 9 September 1996, Annex 1II,9/10. Sanctions Committees are subsidiary bodies of the Council and chaired by permanent representatives of the Council members. They figure also among demands for more Council transparency: see Doc. A/49/965 of 18 September 1995,15; see most recently H.-P. Kaul, "Die Sanktionsausschusse des Sicherheitsrats" V N 44 (1996), 96 et seq. In conjunction with Article 49 or by applying a general principle of solidarity of states, cf. J. Delbruck, "International Economic Sanctions and Third States", AVR 30 (1992), 86 et seq., (97); see also B.O. Bryde, "On Article 50", 659 et seq., in: Simma, see note 9. Doc.A/50/47/Add. 1 of 9 September 1996, Annex 111, 12 (para. 8); see also Alvarez, see note 6, 14. See Report Doc. A/51/317 of 30 August 1996 and A/RES/50/51 of 11 December 1995 and A/RES/51/208 of 17 December 1996. See detailed list in Doc. A/50/47/Add. 1 of 9 September 1996, Annex 111, 12. See K. HailbsonnerE. Klcin, " 0 1 1 Art. l?", 253 et seq., (257/258), in:

Bringing the Securit). Council int,. a New Era

57

regarding issues relating to intel ilation~lpeace and security as enshrined in the Charter1'', the establishment of subsidiary organs (e.g. "Chapter \'I1 Consultation Committees""') to consider issues affecting international peace and security"j and mechanisms alerting members of emergency meetings of the C ~ u n c i l " ~The . reporting of the Council to the Assembly, in accordance with Articles l 5 para. 1 and 24 para. 3 can also be regarded as an area where improvements are neededn7. O t h e r efforts are directed towards strengthening the position of the President of the Assenlbly through regularcons~~ltations with the President of the Council, more active roles for both Presidents and a stronger involvement of the President of the Assembly in matters relatincto the C o u n ~ i l " ~All . of these 9 and additional issues concerning the revitalization of the Assembly were dealt with during January and Jul>-1996 by another Working Group which included a detailed list of: measures in its final report119.

5. Conclusions: Balancing and Implementing Transparency-Related Measures It has already been mentioned that transparency of the Council is one of the key reform elements"". Especially smaller states which rarely o r never participate in the work of the Council regard this as a genuine opportunity to become more involved in the Council's work. Proposals such as those made by Argentina and "C'ec Zealand have thus been welcomed by many. At the same time it cannot be ignored that far-reaching steps t o establish transparency (consultations, reports, etc.) require time and resources. Thev are matters of communication rather than of action. Decisions made

Silnma, see note 9. Ci,Articles 10, 11, 12 and 11. K'.Reisman, "The Constitutional Crisis of the United Nationsn,AJIL ""ee 57 (1993), 83 et seq., (99); see also Sucharipa-Behrmann, see note 16, 19. 115 Doc.A/50/47/Add. 1 of 9 September 1996, Annex 111, 12, para. 6 (b). 116 Ibid. 1it.e. 1 1 7 See the early statement oi Germany made by Ambassador D. Graf zu Rantzau before the Working Group on 8 April 1994, 2; cf. also recent A/RES/51/L.64 of l 3 December 1996. 11:: Doc.A/50/17/Add. 1 of 9 September 1996, Annex 111, 12, para. 6 lit.c, f. 119 Doc. WGUNS/CRP.12 as contained in the Official Records of the General Assembl>-,50th Sess., Suppl. 24 (Doc.A/750/24) of 23 July 1996, Annex 11.; see also Doc. WGUNS/CRP.3/Add.l of 30 January 1996 with further references. 12" See Chapter 111, introduction. 11'

58


by the 15 members of the Council already require considerable preparation and consultations. Efforts to include the general membership during preparatory phases would drastically increase the necessary input and, at the same time, limit the Council's ability to react spontaneously. In future the Council will have to harmonize its transparency and ability to act, in keeping with the principle: as much Council transparency and commttni-

cation as possible, as much Council flexibility and autonomy as necessary. Another aspect, and a still open question, is the issue of the institutionalization and formalization of transparency-related measures which have already been taken or are still to be achieved. Such an approach is favoured i.e. by Argentina and N e w Zealand, for example121.It has received strong support, but also opposition and r e s e ~ a t i o n s ' ~ Indeed, ~. in order to makc the achievements more tangible, at least some of the progress made could be formalized by amendments to the provisional rules ofprocedures of the Security Council or through decisions made by the Assembly, if need be also by joint decisions of the Council and the Assembly. There is no rcason why one should not try, after fifty years, to adapt the "provisional" rules of procedure and rcmovc the blemish of being "provisional". However, the impact of implementing such transparency measures by formal and institutional mcans may often remain a rather symbolic one. True, transparency is hard to achieve through formal rules. This holds particularly true for thc Council and its highly political activities, which are marked by an explicit need for flexibility and political marge de manoeuvre. The Council, which is the master of its rules of procedures, will maintain the necessary degree of flexibility regarding its activities. Any decision on formalizing or institutionalizing transparency measures will have to take this into account.

IV. Composition and Size of the Council By September 1996, member states had before them 18 concrete proposals regarding the new composition and size of the Council. These proposals are contained in the Annexes of the observations and assessment of the Vice-chairmen of 1995 and the final report of 199612' and can be divided into three major groups: ( l ) status quo solutions (for the sake of illustration called "zero" models), (2) parallel enlargement solutions (called "plus"

121

Argentina/New Zealand, see note 87.

122

Doc.A/50/47 of 13 September 1996, para. 20. Doc.A/49/965 of 18 September 1995 and Doc.A/50/47 Add. 1 of 9 September 1996.

123


59

models) and (3) modlfied parallel enlargement solutions (called "region" models). Beside these main groupings, some mixed solutions and models (4) can be found. More sophisticated, often not realistic models were discussed by academics, but could not make their way into the political process124.

1. Status Q u o Solutions: The "Zero" Models "Zero" models were elaborated b y Italy, Turkey and Mexico. They differ in detail but not in essence. D u e to vigorous p r ~ r n o t i o n ' ~the ~ , model presented b y Italy is the prominent one. T h e almost identical Turkish model, o n the other hand, has been largely ignored during the discussions to date, as have the specific features of the Mexican model. The three status quo solutions are referred t o as "zero models" due to their firm opposition126to any change in the number of permanent C o u n cil members as laid down in the Charter in 1945. Italy justifies its opposition by arguing that granting new permanent seats only to developed countries would increase the number of economically developed countries

'24

125

126

Cf. the proposals of L. Sohn, J. Schwartzberg and B. Ferencz as reflected by Hoffmann, see note 4,49 et seq.; see also D. Caron, "The Legitimacy of the Collective Authority of the Security Council", AJIL 87 (1993), 552 et seq., (574) and the references contained in Doc. WGUNS/CRP,3/Add. 5 of 8 August 1996,96 et seq. (elaborated by E. Luck). N o t only high-level diplomatic, but also publication activities, see e.g. Comitato Nazionale per la Celebrazione del cinquantesimo anniversario dellJONU(ed.), The reform of the Security Council. A n Italian Proposal, 1996 (first edition February 1996: foreword by Minister of Foreign Affairs Susanna Agnelli, second edition October 1996: foreword by Minister of Foreign Affairs Lamberto Dini); by the same editor: L'ONU: Cinquant'Anni di Attivita e Prospettive per il Futuro, 1996; Istituto per gli Studi di Politica Internazionale (ed.), Relazioni Internazionali. Numero Speciale: La riforma del Consiglio di sicurezza, Anno LIX Aprile (1995), reviewed by G. Altenburg, V N 43 (1995), 155; A. Tanzi, "Notes on the "Permanent Conference of Revision" of the United Nations Charter at the 50th Anniversary of the Organisation", Riv.Dir.Int. 78 (1995), 733 et seq.; see also Societi Italiana per la Organizzazione Internazionale (ed.), Italy and the United Nations, 1996; M.J. hacker, "Italiens verdeckte Eifersucht. Blockade gegen den deutschen Sitz im UN-Sicherheitsrat", IP 52 (1997), 59 et seq. Until May 1995, however, the Italian model still considered "the addition of three permanent seats to the Security Council" a "logical remedy", see Italy: revised proposal, Doc.A/49/965, 83.

60


in the Council which would be neither equitable nor democratic. &loreover, the establishment of new permanent seats would extend a situation of "eternal" privilege to other countries12'. Italy therefore proposes that an expansion of the Council be limited, as in 1965, to non-permanent seats. I n addition t o the existing non-permanent seats, ten new seats should be added, each being shared by three states so that a total of 30 states would rotate on a biennial basis. The states should be selected by the Assembly using objective criteria12' and reviewed every 10 to l 5 years. Each of the rotating states must be elected by a two-thirds majority in the Assembly before assuming its seat. The following geographical distribution for the ten new seats is envisaged: Africa and Asia (five), Latin America and Caribbean (two), Western European and other states (two), Eastern Europe (one). Instead of nine votes needed today, the Council would in the future need 15 votes for an affirmative vote"'. Just like the Italian one, the Turkish model also proposes ten additional rotating non-permanent seats. Instead of 30 states, however, it suggests that 40 states rotate in accordance with objective criteria, with a revision of the rotation list every 12-16 years. The Turkish model does not indicate whether the ten additional seats are to be assigned exclusively according to objective criteria, o r also according to regional criteria1'? It does, however, propose that the constituencies of the existing regional groups be redesigned1". The Mexican model follows the Italian and Turkish ones in so far as it rejects new permanent seats. It differs, however, in proposing four new regular, non-rotating seats plus one seat to be shared by Japan and Germany o n a biennial basis'j2. The four new non-permanent seats should bc allocated to Africa, Asia, Latin America and the Caribbean as well as Eastern and Western Europe (and others). Eastern and Western Europe would share one seat, alternating every two years.

127 '28

129

130 3

132

Italy: working paper, Doc. A/50/47/Add. 1, Annex IX, pars. 3. Contributions to the maintenance of international peace and securit!; equitable geographical distribution, specific contributions to peace-keeping operations, participation in voluntary funds for humanitarian activities, economic development and the protection of human rights, etc. Italy, see note 127, 31/32. Turkey: position paper, Doc.A/49/965 of 18 September 1995, 110. This corresponds to an Australian suggestion made in Spring 1995 to increase the regional groups from five to seven (number of members in brackets): Western Europe (24), Central and Eastern Europe (22),Xliddle East and Maghreb (lY), Africa (43), Central Asia and Indian Ocean (17), East Asia and Oceania (25), Americas (35); ibid., 66/67. Mextco: proposal, ibid., 92.

Bringing the Secusit!. Council into a Nen- Era

61

2. Parallel Enlargement Solutions: T h e "Plus" Models A m o n c 14 (15)'" models nrhich favour a parallel enlargement of the ? Council's seat categories, seven can be considered as straight "plus" models. These models are in favour of expansion of both membership categories, i.e. additional ("plus") permanent and non-permanent seats. "Plus" models are based on the traditional membership categories. They generally reject the creation of third in-between categories based o n special privileged rotation arrangements. Classical "plus" models are those presented by the Small and Medium-sized Countries, C u b a , ?il'onaco, Australia and G e r m a n q . Other models have been submitted by Indonesia, Singapore and the M o v e m e n t of LYon-Aligned Countries (although in a rather general form), b!. lMalay~2LZ,h 7 0 r z a j : T u n i h (in t h e conrrxt ofthe Afrzcan C o m m o n Position, proposing that regional rotation for the new permanent seats be established), by Belize (proposing that new seats be shared among several states at the same time) as well as by Ukraine and the h'ordic countries (which try to combine n ~ o d e l with s elements of the "zero" models and therefore, together -4th a few other proposals, might be called "mixed" models). '

a.) The Informal Group of Small and Medium-sized Countries Austria, Belgium, the Czech Republic, Estonia, H u n g a r j , Il-eland and Slovenia'j4 propose a "plus" model with two to five additional permanent seats. Aspects to be taken into account when selecting new permanent members include global influence, as well as the capacity and willingness to contribute to the maintenance of international peace and security. In addition to Germany and Japar, Africa, Asia and Latin America should also be given permanent seats. The increase in permanent seats should be accompanied by an appropriate increase in non-permanent seats in order to preserve as much as possible a balanced configuration of the Council. This model rejects the establishment of special privileged rotarion arrangements for medium-sized countries and considers 20 to 25 an appropriate size for an enlarged Council'j5.

153 154

15'

Tzin~szaconsiders its model to be identical with that of the Afizcan Co7n~nonPos~tzon. And Portti,oal, see note 34. Informal Groz6p ofSmall and Jfed~inm-szzedCottnrr~es: discussion paper, Doc.A/49/965 of 18 September 1995,69.

62


b.) Cuba, Monaco, Australia, Germany In C u b a i view, the increase in the number of permanent and non-permanent members should take place strictly in accordance with the principle of equitable geographic representation. The expansion of the permanent membership should not be reserved exclusively for industrialized countries. The total number of the enlarged Security Council could be 23, including new members from Asia (three), Europe and others (one), AfCuba rica (at least two) and Latin America and the Caribbean does not specify how the proposed new eight seats are to be divided between the two membership categories. According to the model put forward by Monaco, the number of permanent members could be increased from five to ten. The five additional members could be designated, preferably on a regional basis, by the Assembly. At the same time, the number of non-permanent members should be increased from 10 to 15. The additional five non-permanent members, however, would serve for an extended term (between 6 and 12 years)137,with the possibility of re-election after their term. Candidates should be capable of making significant contributions to the maintenance of international peace and security. Monaco claims that the advantage of this model would be that it provides an opportunity for five new major powers to have a permanent seat o n the Security Council. At the same time, it could offer five other "leading powers", in particular "regional powers", the opportunity to be involved in the Council's work on a long-term basis. Lastly, according to Monaco, the more modest powers would be able to participate in the Council with greater frequency138. Australia has submitted a model with key elements on which Australia sees a considerable convergence of views. These four elements are: 1.) the present five permanent Council members will remain; 2.) for reasons "consistent with the principles of the Charter and with reality", Japan and Germany would be added; 3.) there should be, within the permanent membership, a balance between developed and developing countries, between North and South. Consequently three other permanent members, not from the industrialized North, should be added; 4.) five non-permanent members should be added (Africa and Asia two, Latin Americdcaribbean one, Eastern Europe one, Western Europe and Others one). The ratio of 12 to 1 (185 member states to 15 elected Council members)

136 l37 138

Cuba: proposal, ibid., 78. This idea of an additional "tenured membership" is also mentioned by the International Peace Academy (ed.), see note 4, 4 (five years). Monaco: working paper, Doc.A/50/47/Add.l of 9 September 1996,46.


63

would be within the expected range of elected representatives nominated by a larger body of sovereign entities as in the Australian governmend system139. The German model corresponds for the most part to the Australian one. It considers it a must that the South receives permanent membership140. Germany supports permanent membership for Africa, Asia, and Latin America and the Caribbean, three seats altogether. At the same time latecomers o r newcomers to the United Nations like Japan and Germany, with their contributions to international peace and security and international development, should be eligible for permanent membership in the Security Council, bringing the total membership of the Council to the mid-twenties141. C.)

Singapore, Indonesia, Movement of Non-Aligned Countries

Singapore, Indonesia and the Movement of Non-Aligned Countries generally support an increase in the number of permanent and non-permanent seats. Indonesia argues that new permanent members would reflect, inter alia, the new and emerging constellation of powers, their proven regional and global responsibilities as well as political, economic and demographic realitiesI4'. Both Indonesia and Singapore stress the need to establish objective selection criteriaI4'. The Movement of Non-Aligned Countries proposes that the number of Council members be increased to 26, four from Western Europe, three from Eastern Europe, seven each from Africa and Asia, as well as five from Latin America and the Caribbean. Just like Cuba, the Non-Aligned Countries d o not give details as to how these new seats are to be distributed among the existing membership categories, saying, however, that if there is no agreement on other categories of membership, expansion should take place only, for the time being, in the non-permanent category144.

'39 140 1"

142 1"

1"

Austrdlia: working paper, ibid., 51. Germany, Statement made by Ambassador T. Eitel in the Working Group on 23 April 1996,3. Cf. German statements and speeches held between 1994 and 1996 as compiled in: Permanent Mission of the Federal Republic of Germany to the United Nations (ed.), Reform of the Security Council. The German Position, 1996, foreword by Federal Minister for Foreign Affairs Klaus Kinkel. Indonesia: criteria, Doc.A/49/965 of 19 September 1995, 81. Ibid., 80; Singapore: proposal, ibid., 107. Movement of the Non-Aligned Countries: Cluster I , ibid., 94 and 96.

64


3. Modified Parallel Enlargement Solutions: The "Region" Models The "region" models are also aimed at enlarging both membership categories. However, they leave it up to the countries of the regions and their regional groups to allocate permanent seats or to establish appropriate rotation systems. Such models have been brought forward primarily by the Organization ofAfrican Unity, O A U (especially Tunisia), by Malaysia and by Norway.

a.) African Common Position and Tunisia The African Common Position goes back to the 58th ordinary session of the 0 A U 1 4 j Council and was presented in August 1993 by Tanzania on behalf of the 29 member states of the African Group of States'46. According to this model, the Council's membership should be enlarged by increasing both permanent and non-permanent seats. Africa should have two permanent seats, with all the privileges attached to permanent membership, and more non-permanent seats147.With regard to the allocation of permanent seats, the Organization of African Unity prepared a position in September 1994148which has remained unchanged - and has been incorporated as an Annex into the Working Group report. It speaks of "no fewer than two permanent seats with all the privileges attached thereto, as long as the institution of permanent membership remains in force". It continues along the following lines: The permanent seats allocated to Africa should be assigned to countries on the decision of the Africans themselves, in accordance with a system of rotation based on the criteria of the O A U currently in force and subsequent elements which might subsequently improve thosc criteria. Eventually, the current permanent members should also be subject to nomination by their respective regions and should be electcd by the General Assembly. Such a system would make the Council less subject to the strictly national interests of various members'49. Tunisia reactivated the African C o m m o n Position when proposing in February 1996 that so-called permanent regional rotating seats (PRRS)150

Cairo, June 1993. African Group of States: position, Doc. Al481264lAdd. 5 of 30 November 1993,3. Ibid., paras. 6, 8. O A U Doc. NYIOAUIPOL 84lRev.2 of 29 September 1994. African Common position: United Nations Reform, Doc.A/50/47/Add.l of 9 September 1996, Annex IV, paras. 33 lit.d., 34,36. Tunisia, statement of Ambassador S. Abdellah before the Working Group


65

be created. Tunisia requcsts two permanent seats for Africa. These seats would be regional seats, allocated for four to six years by the O A U within a system of rotation based on precise criterial5l. Tunisia sees in its model a pragmatic approach which would allow financial and economic considerations to be taken into account (admission of Germany and Japan to the Council) while at the same time correcting existing imbalances in the C~uncil'~~.

b.) Malaysia, N o r w a y Malaysia presented its "region" model in February 1996'j3 and continued t o develop it in the following months1j4. At the centre of the Malaysian proposal is the concept of permanent regional representation, defined as "a form of representation in the Security Council where a number of members represent a specific geographical region1j5". According t o Malaysia, the regions of Asia, Africa and Latin America and the Caribbean require permanent representation. It is also conceivable that the industrialized countries are an identifiable region, incorporating Japan and Germany. Malaysia proposes that each developing region be allocated two seats, representing the countries of that region. A regional mechanism would decide on h o w to allocate the seats. Any country in a region could serve in the permanent seat, taking into account a number of factors156. Regional permanent members together with other members of the region would share the financial costs of regional representation in the Security Council. Malaysia proposes a new overall total of 30 members for the Counci11j7. According to the Malaysian proposal, the concept of regional representation would constitute a new form of permanent membership. Malaysia argues that the concept of regionalism was recognized as early as 1945, as reflected in the appreciation the Charter shows for regional organiza-

151 152 153

154 155 156

157

' o n 28 February 1996,2. Id., ibid. Id., ibid., statement of 22 April 1996,2. Malaysia, statement of Ambassador Raznli Ismail of 28 February 1996. Final version: Malaysu: working paper, Doc.A/50/47/Add.l of 9 September 1996, Annex XVI. Ibid., para. 6. Such as peace-keeping, upholding universal values, including human rights, size, population, global involvement and capacity to pay, ibid., para. 9. Five existing plus eight new permanent, ten existing plus seven new non-permanent members.

66


tions1j8in Cnapter VIII. Regionalisni had proven to serve the interests of all states, "including big, small, weak and strong ones". The concept would also put an end to claims that countries can have permanent rights without accountability to others and the regions they belong to'59. N o r w a y presented its "region" model to the Working G r o u p in March 1996. It proposed new permanent and non-permanent seats. Of the five new permanent seats, three should go to developing countries in Africa, Asia and Latin America, two should be for industrialized countries. T h e allocation of new permanent seats to individual countries should take into account a.) the capacity and readiness of member states to contribute to the maintenance of international peace and security and to the other purposes of the United Nations, b.) the need for a more equitable and balanced geographical representation. The regions concerned should be instrumental in finding solutions. The three new permanent seats for developing countries should be allocated on a regionally based rotational system like the AfricanITunisian PRRS. Countries in the regions would decide o n how their new permanent seats should be filled: by one single country, a few countries on a rotational basis o r o n another basis the region might choose16o. The Norwegian model is based on two main elements: o n the one hand, the current permanent seats should be maintained and new permanent seats created. This would guarantee that the maintenance of international peace and security will continue to be in the hands of the Council, i.e. be handled in a n~ultilateralbody and not elsewhere. O n the other hand, each region, in particular the three regions of the South, should be entitled to decide by itself how to use "its" seat.

4. Mixed Solutions and Models In addition to the above-mentioned three categories of models, there are also a number of proposals which try to combine partly familiar, partly incompatible elements of the different models. All of these models can be classified as parallel enlargement rather than status quo solutions. Among

'58

159 160

Articles 52 to 54; possibilities and limitations of contributions of regional arrangements and agencies to the maintenance of international peace and security are described by R. Wolfrum, "Der Beitrag regionaler Abmachungen zur Friedenssicherung: Moglichkeiten und Grenzen", ZaoRV 53 (1993), 576 et seq., 584 et seq. Malaysta, see note 153, para. 15. Norway: working paper, Doc.A/50/47/Add. 1 of 9 September 1996, Annex XVII, paras. 7-10.


67

them are the Nordic and the Ukrainian models, the model of Belize, as well as an unofficial/apanese model. a.) Nordic Countries

The Nordic co~ntries'~' proposed in June 1995 that there should be an increase in the number of both permanent and non-permanent members. Five new seats could be allocated as permanent seats to qualified states. Regional groups should be encouraged to establish equitable systems of rotation for non-perrnancnt members. At the same time, the freedom of regional groups to agree on appropriate rotation systems should not be restricted. Agreement of the respective regional group should be a condition for any privileged frequent rotation. The total size of the Council should be in the low twenties, preferably 23'". The key reason why the Nordiccountries wish to reform the Council is the "fundamental objective of strengthening the capacity of the Security Council to discharge the duties assigned to it by the Charter for the maintenance of international peace and security"'63. The Nordic position represents a mix of elements of the "zero" models (rotation of new "non-permanent" seats), of the models (new non-permanent a n d new permanent seats), and of the "region" models (emphasis on the role of regions when selecting new members of the Council). With its endorsement of new permanent seats, it stands closer to the "plus" than to the "zcro" models.

b.) 2+8 and 2+4 Models The Ukraine calls its model "2+8"'64. It primarily envisages the increase of non-permanent seats by eight and a limited increase in the number of perinanent seats by two for states that make an "exceptional contribution" to the work of the United Nations. The Council would thus have a total number of 25 members, among thein 13 developing countries. Ukraine suggests Germany and Japan for the two new permanent seats. The eight new non-permanent seats should be divided between Asia and Africa (four), Latin America and Caribbean (two), Western Europe and others (one) and Eastern Europe (one). A total of 24 or 32 States would rotate on these new non-permanent seats following criteria agreed on by the memSee note 55. N o r d x Countries: position paper, Doc.A/49/965 of 18 September 1995, 104. Ibid. Ukraine:working paper, Doc.A/50/47/Add.l of 9 September 1996, Annex XVIII, para. 8.

68


ber states. Regional groups should be given the right to determine h o w many of the non-permanent seats available to a given region would be subject to the rule of morc frequent rotation, taking into account the interests of small countries. Ukraine considers this conceptual approach to be similar to the approaches suggested by Italy, Spain and Mexico165. Ukraine is attempting to establish a bridge between the "zero" and the "plus" models. Its proposal would ensure that the East European States receive a non-permanent seat o n which three to four states would rotate, among them, in all likelihood, Ukraine itself. Para. 24 of the Working Group's final report, which was only added upon the insistence of Ukraine and almost prevented the adoption o n the report, reflects this N e w permanent seats are to be limited to states with "exceptional contributions to the work of the United Nations" like Germany and Japan. I n exchange, developing countries would receive a total of six new non-permanent seats. A n unofficial Japanese model called "2+4" goes back to a proposal made by a Japanese research team in 1996167.O n l y Argentina made a brief reference to it in the Working but the Working G r o u p never really discussed it at any other time. It deserves to be mentioned, however, since it is based on the existing political proposals which have been submitted. The "2+4" model envisages a Council with a total of 24 members. It provides for three new non-permanent seats (one each for Africa, Asia, and Latin America), as well as for six new permanent seats. Two of those, so-called global permanent seats, would be assigned to Japan and Germany. Four so-called regional permanent seats would be divided between Asia, Africa, Latin America and the Caribbean and Western/Eastern Europe169.For each of the regional permanent seats n o more than three states will be elected, according t o criteria still to be determined and for a period of three years. They should not receive the right of veto. The "2+4" proposal combines elements of the "plus" and the "region" models. It should appeal to the most eligible candidates from the N o r t h

165 166

167 168 169

Ibid., paras. 6-12. "The view was expressed that expansion of the Security Council should also take into account the increase in the membership of the United Nations by countries belonging to Eastern Europe in the context of an overall equitable geographical distribution." (Doc.A/50/47 of 13 September 1996, para. 24). T. Kunugi/M. Iokibe/T. Shinyo/K. Hashimoto, (PHB Research Institute, Research Division, Tokyo), Towards a more Effective U N , 1996. Argentina, Statement made by Ambassador E.J. Cardenas, before the Working Group on 20 May 1996,3. Kunugi et al., see note 167, 5 and 26 et seq.


69

as well as from the South, since it envisages permanent seats for both groups, yet allows differentiations by introducing the criteria "global" and "regional". C.)

Belize

The proposal made by Belize is difficult to categorize. It centres on the idea of so-called shared seats.1t was first presented to the Working Group in January 1995 and has been revised various times since then. By the term shared seats, Belize means "a composite or constituency membership where pairs of adjacent states, including trans-aquatic and non-adjacent states that are members of a regional agency certified by the Council, share a seat on equal terms"170.The important feature would be regional representation171. Both permanent as well as non-permanent members of the Council could share their seats in this way. In an earlier version, Belize favoured an increase by five to eight new permanent members so that each regional group would have at least two permanent members. At the same time, 10 non-permanent seats were to be added. This would have resultcd in a total numbcr of 30 to 33 future Council members172.After several modifications, Belize now proposcs a total of 20 to 23 members, 9 to 11 of them being non-permanent ones. Permanent members could be selected according to either of the following scenarios: a.) the existing five permanent members plus one representative of each of the five regional groups, with the exception of the Western European Group, as well as two so-called financial permanent members, selected on the basis of substantial contributions to the Organization's budget (excluding the United States of America), or b.) two representatives of each of the five regional groups, among them the existing P5 as well as three financial permanent members (including the United States of Ameri~a)"~. Among the distinguishing features of Beltze's model are its originality and flexibility, as demonstrated by categories such as financial permanent membership and shared sears, or by the options with regard to numbers. By trying "to approximate the dictates of democracy and economy/effi~ i e n c ~ ' however, ~ ~ " , the model becomes less clear and difficult to implement. N o t only have there been (too) many changes to the model, but also Belize: submission, Doc. A/49/965 of 18 September 1995,75176. Ibid., 72, para. 3 1it.a. Ibid., paras. 1, 2. Belize: working paper, Doc.A/50/47/Add.l of 9 September 1996, Annex XV, para. 28/29. Ibid., para. 17.


70

s o m e of the traditional terms usedI7j. T h e ratio between permanent and non-permanent members envisaged b y the model seems unrealistic as well176. These and other factors have contributed t o t h e fact that t h e shared-seats model is generally considered t o have little chance of materiali~ing'~~.

5 . Pros and Cons T h e followingpros and cons of "zero" and the various "plus" models can be identified: "Zero" models may be attractive t o those states w h i c h believe they w o u l d belong t o the g r o u p of 30 rotating states (among t h e m are t h e authors of the model, b u t other large and medium-sized countries as wellt78).T h e y might also be of interest t o those countries afraid of regional competitors w i t h chances of acceding to a permanent seat i n the Council b u t lacking regional integration linkst79. However, t o o m a n y arguments can be made against "zero" models. T h e argument that the removal of 30 states w o u l d lead t o improved chances f o r smaller and medium-sized countries t o receive o n e of t h e remaining regular non-permanent seats does n o t stand u p t o close examination. O n the contrary, their chances would decreaselsO. "Zero" models, however,

175

176

l77 178

179

183

Example: instead of permanent membership, reference is made to "indefinite" membership, defined as a membership limited to three o r six years. The second option offered by the model, for example, would yield the following composition: two representatives each of Africa, Latin America, Asia (China, N N ) , Western Europe (France, UK), Eastern Europe (Russian Federation, N N ) , plus three financial permanent members (United States, Japan, Germany). There would thus be 13 permanent, but only 10 non-permanent members. Cf. Sucharipa-Behrmann, see note 16,9. Canada, Spain, Ukraine and others. See the detailed description of the Spanish ~ o s i t i o nin: Cortes Generales (eds.), Los nuevos retos y la reforma institutional de las Naciones Unidas, 1995,33 et seq. (35), 63 seq.; also M . Ortega CarcelCn, "La reforma de la carta de Naciones Unidas: Algunas propuestas institucionales", R E D I 43 (1991), 389 et seq. Example: Mexico and Argentina (Brazil), Pakistan (India). Italy is afraid that "if only Germany and Japan become members, a new directorate would be created excluding Rome ... Italy will not even belong t o the second league of countries, it will be reduced to what it used to be at the end of the century": Ambassador P. Fulci, interview with La Giomale, 1 April 1996, 13 (translation by the author). Under "zero" models with no increase in the category of permanent seats


71

would leave the "monopoly" o r "club'81" of permanent members which has existed since 1945 untouched. They neither take into account the interests of the underrepresented regions of the South nor the geo-political upheavals of the recent past. Indeed, the creation of seats reserved o n a longer-term basis for a selected group of 30 members would create a new category which reduced the regular non-permanent seats to a third-class category. The distance between non-permanent members t o the five permanent members of the Council would further increase since it seems likely that closer coordination would be established between permanent and rotating, i.e. s e m i - p e ~ m a n e n t ' ~members. ~, I t also seems almost impossible to determine which objective criteria could justify a continuous rotation of 30 member states in view of the 150 non-rotating member states. The result of a list prepared by Spain which uses three main criterialg3provcs this point, albeit u n i n t e n t i ~ n a l l ~The ' ~ ~supposed . allo-

181

1x2

1x3

and regular non-permanent seats, but with 10 new rotating seats created for 30 rotating countries, the competition ratios for the remaining member states for 10 regular non-permanent seats would be: 17.2:l (AfricanlAsian), 13.5:l (Latin AmericadCaribbean), 17:l (Eastern European), 9:l (Western European and other states). In contrast, under a "plus" model with an increase in both categories, permanent and nonpermanent seats (five additional seats each), the competition rates for 15 regular non-permanent seats would be 14:l (African, Asian), 10.6:l (Latin AmericanICaribbean), 10:1 (Eastern European), 7.2:l (Western European states and others). The ratios show that "plus" models give smaller and medium-sized countries a better chance of being elected to a regular non-permanent seat in the Council. In "zero" models, tough competition would continue to exist. Cf. KennedvIRussett. see note 1.62; Hoffmann, see note 4, 41. The notion of semi-permanent membership has been defined by Malaysia as "a third category of members electable for a period of five to six years" (Doc.AI481264 of 20 July 1993, 60). Italy has used the notion of semipermanent membership for not more than 20 members revolving "in twos" as members of the Council (ibid., 53). Others refer to the concept of semi-permanent seats as "seats to be shared for two-year periods by two or more countries" (Doc. A/AC.247/1996/CRP. 1 of 11 January 1996, para. 88). (a) Total personnel assigned to peace-keeping operations, (b) total financial contribution effectively disbursed both to the Organization's regular budget and to the peace-keeping budget, (c) population as a percentage of the world total: Doc.A/50/47/Add.l of 9 September 1996, 26. The criteria show what immense problems arise when trying to define objective criteria. The proposed criteria would, for example, punish states which are trying successfully to control population g o w t h . They would also be an incentive to build up a larger armed force than a country

72


cation of a fixed number of rotating seats to regional groups would unduly qualify objective criteria that were supposed to be valid for all member states throughout all regional groups. In the end, rotation models result in further cementing of de facto existing seat privileges of particular states185. Many other technical and practical questions remain unresolved: to what extent would rotating states participate in the financing of peace-keeping operations? What effect would it have o n the three states sharing a rotating seat if one of them failed to be elected by the Assembly? H o w would the Organization deal with the continual competition among most of its member states, especially the most likely candidates, which would intensify every l0 to 15 years? The alternative straight "plus" models have the advantage of building upon the familiar and clear categories of permanent and non-permanent membership. They guarantee better representation of countries from the South as well as of countries from the N o r t h with global economic and political influence, especially in the category of permanent membership. O n the other hand, until now no state from Asia, Africa o r Latin America and the Caribbean has been able to consolidate its candidature for a permanent seat. All of those countries considered ~ o s s i b l ecandidates of the South, have received strong opposition but little support, even in their o w n regions, throughout the discussion^'^^.

'S4

actually needs for defence purposes. By (not) assigning peace-keeping personnel quora for member states, the Secretariat would be in a position to decrease or increase the chances of a member state to qualify for a rotating seat. Spain identifies 3 8 countries: Egypt, Ghana, Nigeria, Kenya, Zambia,

Zimbabwe, Bangladesh, India, Indonesia, Iran, Japan, Jordan, Malaysia, Nepal, Pakistan, Philippines, Vietnam, Thailand, Argentina, Brazil, MexKO, Uruguay, Poland, Czech Republic, Ukraine, Australia, Austria, Belgium, Canada, Finland, Germany, Ireland, Italy, Netherlands, Norway, Spain, Sweden, Turkey. 40 per cent of these countries are from the North

185

186

and could therefore claim four of ten rotating seats. Giving them only three seats would mean giving up the idea of objective criteria for all member states. Other important countries in each region do not figure on the list and would hence continue to campaign for regular non-permanent seats. Almost all the most frequent non-permanent members of the Security Council in the past would be guaranteed a seat in a rotating system (see list in note 184).Among them Japan (has been on the Council eight times), Brazil (seven),Argentina, India (each six), Egypt, Canada, Italy, Poland, Colombia (each five) and others. See note 73.


73

Against this background, modified parallel enlargement solutions in form of "region" models and permnnenr regional rotating seats (PRRS) have become attractive. They seem to offer a pragmatic solution, at least temporarily and as long as no new clear-cut candidates of the South emerge. They are considered particularly suitable for those regions which find it difficult to give one of its countries exclusive permanent status. Since countries of the South are especially likely to base their legitimate claim for a permanenr: seat on geographical considerations, the regions concerned should be entitled to have a say in the selection for "their" seat. Some welcome the role that regional groups would play in this context as a new and future-oriented approach18'. Those states, however, which for or factual189reasons are less interested in regional stipulations, consider the rotational system to be discriminatory since it would apply only to developing countries but not to the two possible representatives of the developed world. Another argument raised against PRRS is that in Asia and Latin America organizational structures are not as well established as in other regions190.Neither argument is completely convincing. It could well be argued that aspirants for a permanent seat who base their claims not on global but geographic criteria may become the subject of differentiated and therefore not arbitrary procedures regarding their permanent seat. Lack of support of the broad majority of their neighbours lends additional strength to such an argument. Finally, nothing prevents regions from establishing organizational structures for regional decisions o n permanent Council membership. Africa could serve as an example in this respect. The existing five regional groups within the United Nations could also serve as a logistical basis. I n the past, endorsements for (nonpermanent) Council membership have been decided by or through these groups. N o r are candidatures of Western European states endorsed by the European Union (EU) - even if candidates are EU member states - but by the respective regional group at the United Nations. Mixed models like the "2+4" one are an interesting option since they provide four permanent seats for each of the regional groups, including a seat shared by Eastern and Western Europe (and others). Regional perma-

187

188

'89 190

See Malaysia, note 154, para. 14. Similarly recommendation (2) of the Science for Peace Workshop on the United Nations Reform, in: E. Fawcett/H. Newcombe (eds.), United Nations Reform, 1995, 303. Italy, Turkey, Mexico (since the regional approach would lead to new permanent members). Brdzil, India (since the regional approach does not exclustvely individual permanent seats). E.g. Singapore, statement before the Working Group on 23 April 1996, 3; Vietnam,statement before the Working Group on 27 March 1996,2.

Max Planck Yearbook of United Nations Law nent seats established on this base would have to be complemented by two seats for global permanent members. The obvious advantages of this model must be seen against its inability to redress the imbalance that exists in the view of most of the developing countries in the category of permanent membership. The "2+8" model reflects this deficit in particular191.

6. Conclusions: Main Trends and Key Elements The various models at hand seem confusing only at first sight. Having looked more closely at them, main trends as well as key elements regarding the future composition and size of the Council emerge. N o n e of the models - with the exception of the "zero" models presented by Italy, Turkey and Mexico - rejects an increase in the category of permanent seats. All other 15 models submitted, including mixed models, are based o n an enlargement of both seat categories, the permanent and the non-permanent. Considering further that the number of member states which have supported the "zero" models during the discussions has been rather limited,192while large groups of countries like the Group of Af rzcan States have left n o doubt about their preference for (modified) parallel enlargement solutions193, a clear trend towards an enlargement in both categories becomes evident. It should also be noted that most of the models in favour of an enlargement in both categories contain, in one form o r another, rotation elements. Enlargement in both categories with some rotation elements can be considered the first key element. '

191

192

l93

This became clear during Working Group negotiations in July and September 1996 when Ukraine came into conflict with a number of Non-Aligned Countries (India, Egypt, Cuba and others). In addition to Italy, Turkey and Mexico themselves, other states which have supported their models in the past have been Malta, San Marino, New Zealand, Pakistan, Lebanon, and, more recently, Madagascar, Sierra Leone and the Comoros. The public statements of most of these states, however, contain passages that would allow for a change in their position when appropriate. Mention also has to be made in this context of the position of the Movement of Non-Aligned Countries, which includes the option of, if not express desire for, an "agreement on other categories of membership" and not only the non-permanent category. An expansion only in the non-permanent category is merely considered to be a fallback position, see note 144.


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The second key element and guiding principle of any Council enlargement will be ensuring- a balance between North and SouthlV4.Models which fail to take this into account will have no realistic chance of being realized. PRRS could indeed lead to a more equitable balance since they would provide a favourable number of permanent seats for the developing countries while also safeguarding the interests of the North. Of course, other elements in a reform package might also contribute towards achieving the necessary measure of North-South balance (transparent working methods, decision-making procedures, periodic review etc.). The third key element is the size of the Security Council. Most models envisage a number from the low to the mid twenties, i.e. between 23 and 26 seats. This is discounting the lowest (20/21 seats: United States, United Kingdom, Russian Federation, Mexico and others) and highest (30 seats: Malaysza, Belize and others) proposed numbers for the future size of the Council. A number in the lowlmid twenties gives leeway for an additional three to six non-permanent seats while at the same time allowing an increase in the number of permanent seats.

V. Decision-Making in the Security Council, Including the Veto The Working Group report dedicates two paragraphs to the issue of decision-making in an enlarged C ~ u n c i l ' The ~ ~ . issue involves veto aspects whether new permanent seats are added to the Council or not. The question of a "collective" veto right illustrates that the reach and influence of states and groups of states in the Council is not exclusively linked to an increase in the category of permanent seats but rather to thc future decision-making procedures in general196. Any enlargement of thc Council will therefore have to deal with two questions. First, how to fix the quora necessary for "positive" Council action? A decision on this may already reflcct the amount of influence granted to individual members or groups of members of the Council. Second, how to deal with the veto strictu sensu, i.e. the possibility of casting "negative" votes blocking Council action?

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"5 196

Cf. Doc. A/50/47 of 13 September 1996, para. 26; see also E. Luck, "Peacekeeping Plus: the UN and the international security ",in: E. Luck/ G. Lyons, The Untted Nattons: Fzfty years after San Fyanczsco, 1995, 13 et seq. (39); cf. also Eitel, see note 31,48. Doc.A/50/47 of 13 September 1996, paras. 31 and 32. Russett/Neill/Sutterlin, see note 4, 72; in general Bailey, see note 14.

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1. Quora for "Positive" C o u n c i l A c t i o n : "Action T h r e s h o l d " Article 27 para. 3 stipulates that an affirmative vote by nine members of the Council is necessary for decisions which are not procedural matters, including the concurring votes of the permanent members. The ratio of nine out of 15 votes means that one more vote than the nominal majority. (8 vis-i-vis 7) is required. Taking into account the possibility of a new Council with 25 members, future voting quora have been proposed to consist of 13, 14, or 15 votes, r e ~ p e c t i v e l y l ~ These ~ . proposals show that the future "threshold" for majority decisions might be significantly higher than in the past. First, the nominal number of members necessary to reach a Council decision will increase proportionally to the increase in the overall number of Council members. Second, proposals requiring a majority of 14 o r 15 votes move the quorum even further away from the nominal majority'9s. Finally, groups of states within an enlarged future Council membership (developing countries in Africa, Asia and Latin America/Caribbean) could gain some type of "collective" veto right which would enable them to prevent positive Council action and decisions at any time. Currently, the "South" merely has six votes in the C ~ u n c i l ' ~I n~ . other words, decisions in the Council d o not need thevotes of all members representing the South. In an enlarged Council with 25 seats, the South200 is most likely to have at least 13 members. In case of quoraof 14 o r 15 votes needed for Council decisions, the (12) non-South-members would depend o n the cooperation of at least two o r three members from the South. A t the same time, a unanimous vote of all states of the South could almost alone2" enforce decisions in the Council. The phenomenon of a "collective right of veto" figures as "action threshold" in the reform discussions. Secretary-General Boutros BoutrosGhali addressed the issue in March 1996 as follows: "In this way, an effective "group veto" might be created for the developing world - without placing that veto into the hands of any single state. By greatly enhancing the strength and importance of the new non-permanent members, raising the threshold for Council action is seen by some as a key element of a new framework balancing the possible addition of Germany and Japan

l97

Cf. proposals of Germany (13/14 votes, statement by Ambassador G. W. Henze before the Working Group on 23 May 1996,3), Italy ( l 5 votes, see note 127, para. 7 lit.h), Ukraine (15 votes, see note 164, para. 13).

198

Cf. Russett/O'Neill/Sutterlin, see note 4, 76. Without counting the permanent member China. Dito. Without any additional vote (quorum: 13), one additional vote (quorum 14) or two additional votes (quorum 15) from the North.

199

23" 2Cl


77

as permanent members with the imperative of making the Council more representxive b y strengthening the voice of the developing world"202.The report of the Working Group mentions in this respect " ... the de facto blocking power of developing countries that were non-permanent members of the Council and the number of affirmative votes required for Council decisions ..."203.It also observed that the final outcome of discussions on these topics would depend o n the results of consideration on other issues204. U k r a m e supports a threshold of 15 votes f o r approval of a decision in an enlarged Council and speaks in this context of an "effective group veto of the developing countries"205, adding: "... Ukraine believes that the international community has a n opportunity to limit the permanent members' use of the veto, especially b y increasing the number of non-permanent members ...

2. Casting of "Negative"Votes: Scope and Extension of the Veto Since the outset, the discussion has been quite inconsistent regarding the question of how to proceed in the future with the veto as stipulated in Article 27 para. 3. Two questions must be raised: a) Will there be any changes to the right of veto the five permanent members presently enjoy (scope of the veto); b) Should the veto bc given t o new permar ent members (extension of the veto)? a.) Scope of

the Veto

The Working G r o u p report points out that decision-making in the Council, including the question of veto, continues t o be an important element in the Group's discussionsz0'. At the same time the report states that proposals to limit the scope and the use of the veto have been "widely supported"208. This remark reflected in particular a demand b y developing, but also by other, countries to abolish the veto, or at least to limit its scope. The Non-Alzgnrd Cottntrzes refer in this context t o "a consistent position

Lecture delivered at the Ministry for Foreign Affairs of Mexico in Mcxico-City on 4 March 1996, Press Release SG/SM/5906 of 4 March 1996. Doc.A/50/47 of 13 September 1996, para. 32. Ibid. Ukraine, see note 164, para. 13. Ibid., para. 14. Cf. Doc.A/50/47 of 13 September 1996, para. 31. Ibid.

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hlax Planck Yearbook of United Nations Law

contained since the Summit Declarztion of C o l o m b o (1976)"209. Their criticism seems to be in line n it11 a general unease a b o u t t h e right of veto w h i c h has been controversial since 1945 and is considered t o b e hardly compatible with the principle of the sovereign equality of m e m b e r states as enshrined in Article 2 para. 1210.O n e could argue that, w i t h t h e e n d of t h e C o l d War at the latest, the right of veto became historically obsolete21'. O n the other hand, almost all t h e states favouring a n abolition of t h e veto recognize that, pursuant t o t h e relevant legal provisions a t present, this w o u l d only be possible with the consent of t h e five permanent membersx2. I n fact, the permanent members m a d e it quite clear d u r i n g t h e discussions that they are n o t willing t o a b a n d o n this privilege. O n e of t h e arguments in favour is that the veto has recently helped t o achieve consensus in t h e Counci12'j. It draws the large powers closer t o t h e Council and makes its measures m o r e credible and efficacious. A t the same time it serves as a "circuit breaker" b y reducing tensions between the major powers214. Against this background, detailed proposals o n a t least modifying t h e veto have been submitted t o the Working G r o u p . T h e proposals t r y t o solve the dilemma2'' between the existing criticism of the veto a n d t h e insistence

See Movement ofNon-Aligned Countries, Doc.A/50/47/Add. 1 of 9 September 1996, Annex VII, para. 7 and 9 1it.d. R. 'Wolfrum, "Voting and Decision-Making", in: Wolfrum, see note 1, Y01.2, 1403; in general T. Schilling, "Die "neue Weltordnung" und die Souverinitat der hlitglieder der Vereinten Nationen", AVR 33 (1995), 67 et seq., 101 et seq. Cf. Uk7-azne, Doc.A/50/47/IZdd. 1 of 9 September 1996, para. 14; MexK O ,statement by Ambassador hl. Tello in the 44th Plenary Mtg., Official Records 29 October 1996, Doc.A/51/PV.44, 16; for a most recent study of the origins of the veto and its future see B. Fassbender, United Nations Cottncd Reform and the Right of Veto:A Constitutional Perspective, 1997 (forthcoming). Article 108 demands that all permanent member states ratify an amendment to the Charter. T. Bruha, "Security Council", in: Wolfrum, see note 1,Vo1.2, 1158 ("driving force n-ith integrating effects in a cooperative process towards consensus, thereby limiting its negative effects"). United States of America, Statement by C. H u m e o n 23 May 1996, U S U N Press Release 74/96, 2; further arguments to the effect that the veto, however unfair its exercise may be, is in the interest of the United Nations can be f'ound in H. Leigh-Phippard, "Remaking the Security Council. The options", The Kbrld Today, (1994), 167 et seq., (169); see also B. Fassbender, "The Gordian Knot of Security Council Reform", German Comments 45 (1997), 55 et seq., (61). Cf. Caron, see note 124, 569 (" ... the \,et0 is essentially immune from


79

of the five permanent members that it be retained. Instead of abolishing the veto, the proposals are aimed at rationalizing it. Four types of proposals can be distinguished: (aa.) proposals for a clearer definition of the scope of application of the veto; (bb.) proposals for restricting the scope of application of the veto; (cc.) proposals for restricting the manner in which the veto is used; (dd.) proposals for additional provisions regarding the veto.

aa.) Defining the Scope of Application According to Article 27 para. 3, concurring votes of the permanent members (veto) are not required in the case of decisions of the Council on procedural matters. Whether o r not a decision is to be considered a procedural matter must be decided unanimously by the C o ~ n c i l " ~This . has led t o the term " d o ~ b l e v e t o " Some ~ ~ ~ . proposals suggest therefore that cases dealing with procedural matters where casting of a veto would not be permissible be listed. Such a codificationwould help to clarify the scope of the application of the veto. Such proposals can refer back to a precedent in 1949218.However, others consider this kind of solution as excessively restrictive, "especially in view of the possibility that there might be future cases arguably fallingunder that Chapter that the international community and/or the Council might deem require action by the C ~ u n c i l ~ ' ~ . "

bb.) Restricting the Scope of Application Further-reaching approaches suggest that the scope of application of the veto be restricted. Egypt has proposed that the Charter be amended so that, as a first step, the veto power only applies to decisions taken under Chapter V11 of the CharteS20. This proposal was submitted o n behalf of the Non-Aligned Countries. Mexico has suggested that Article 27 be amended specifically to this end221.

216

217

218 219 220

reform"). Examples given by T. Eitel, "Auswirkungen von Erklarungen des Sicherheitsrats auf das nationale Recht", Sitzungsbericht Q zum 60. Deutschen Juristentag, 1994, 13. See Wolfrum, see note 210, 1404. A/RES/267 (111) of 14 April 1949 and Annex. Belize, see note 174, para. 27. Egypt: working paper on behalf of the Movement of Non-Altgned Countries, Doc.A/50/47/Add. 1 of 9 September 1996, Annex VII, para. 11; see also Report of the Independent Working Group on the Future of the United Nations, see note 1, 16.

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I n order to restrict the rule requiring unanimity among the Council's five permanent members regarding the maintenance of international peace and security, Mexico has proposed that the authority attributed to the Council in various Charter provisions be curtailed, thereby strengthening the role of the Assembly. The provisions involved are the admission of new states to the membership in the United Nations (Article 4), the suspension of a member of the United Nations from the exercise of rights and privileges of membership and their restoration (Article 5 ) , the expulsion of a member of the United Nations from the Organization (Article 6), the appointment of the Secretary-General (Article 97), and the coming into force of amendments to the Charter (Articles 108 and 10Y22z).The curtailment would bc realized by deleting the respective references to the Council in all the aforementioned provisions223. cc.) Restricting the Manner in which the Veto I s Used In a rather general form, the OAU has requested that the number of vetoes required "to block action"z24 be incrcased. Othcr statcs havc also supported the idea of making the blocking of the adoption of a resolution contingent o n at least two (Italyzz5)o r three (Belize226)vetoes by permanent membersz2'. In a proposal geared towards compromise, Spain suggested that a differentiated system of voting quora be established in the Council. According to the Spanish proposal, (a.) procedural matters should be adopted by an absolute majority of votes, (b.) substantive matters not related to Chapter V11 should be adopted by a special qualified majority (three fifths o r two thirds), without the right of veto and (C.)substantive matters related to Chapter V11 should be adopted by the same special qualified majority, but with the possibility of exercising the right of veto228.This proposal combines reform elements relating to the scope

221 222

223 ZZ4

225 226

227

228

Mexzco: working paper, ibid., Annex V, 17. Articles 108 and 109 do not refer to an act of the organ Security Council but of its permanent members (ratification in accordance with their respective constitutional processes). See Mexico, see note 221. Afrtcan Cornrnonposztton, see note 146, para. 33. Italy, see note 127, para. 16. B e h e , see note 173, para. 27. A "collectivised" veto operation: M.J. Thapa, "Renewing the United Nations Security Council: Enhancing Representation and Participation of the World Body", Paczftc Research 8 (1995), 50151. Spam: working paper, Doc.A/50/47/Add. 1 of 9 September 1996, Annex 8.


S1

of application with those connected to the manner in which the veto is used. dd.) Additional Pvovisions A different approach is taken by Uruguay which has proposed that the veto be viewed in respect of the relationship between the Council and the Assembly. In concrete terms, Uruguay proposes that the right of veto be subject to suspension on specific occasions, as defined by a prescribed qualified majority of the The scope of the exercise of this power by the Assembly would have to be limited by negotiations. The proposal has the advantage of strengthening the Assembly, which is desired by most member states233.It also revives the concept and problems of Council action controlled by the Assembly as it has beendiscussed since the Uniting for Peace R e ~ o l u t i o n ~ ~ ' . Brazil has suggested that the permanent Council members be accorded a "neutral" negative vote2j2.Permanent members would then have four voting options: affirmation, abstention, rejection or veto. While this proposal is aimed at decreasing further the number of vetoes cast, permanent members might see some advantage in the leeway provided by being able to reject an action without blocking it. At the same time, the possibility of casting a veto, if need be, would remain untouched.

b.) Extension of the Veto The Working Group report notes "both support and objection" with regard to the possible extension of the veto to possible new permanent members2)'. It also refers to the views of some delegations that an extension of the veto, if agreed, should be done in a non-discriminatory manner. The spectrum of opinions in this area is heterogeneous. The following groups of opinions can be distinguished: A first group of states rejects in general any extension of the right of veto to new permanent members. Among those are a small number of

Uruguay: working paper, ibid., Annex XII. Cf. Chapter 111 para. 4. A/RES/377 (V) of 3 November 1950; Schilling, see note 210, 102; W. Kuhne, "Krisenstab fur das 21. Jahrhundert?", Der Uberblick 3 (1994), 66 et seq. Brazil, statement made by Ambassador C . Amorim, Official Records, Doc.A/jl/PV.44 of 29 October 1996, 8. Doc.A/50/47 of 13 September 1996, para. 31.


82

Western states, but mostly states from the Southern h e m i ~ ~ h e r e 2 3A~ . second group argues that all permanent members, old and new, should be treated equally and that, consequently, new permanent members should have the right of veto. This view is mostly shared by those states which claim a permanent seat, but also b y states from the South which insist that their future permanent representatives should have the same rights as permanent Council members from the North2I5. A third group of states underlines the need for curtailing and rationalizing the existing veto, but remains rather silent o n the question of extending the (modified)veto right to new members. Some of the countries already mentioned belong t o that group. It is also remarkable that many "region" models d o not touch o n the question of veto, or, if they do, d o s o only hesitatingly236. T h e existing permanent members will play a decisive role in this question, for obvious reasons. N o n e of them has so far shown any willingness t o negotiate the scope of veto. With regard to the extension of veto, France237and the Russian F e d e ~ a t i o nseem ~ ~ ~t o favour equal treatment of all permanent members. T h e United States of America has made it repeatedly clear that n o decision o n this issue has been taken239.The United Kingdom and China have not addressed the issue of extension240.

234

235

236 237

238

Cf. Mexico, see note 21 1; also Seara-Vazquez, see note 17,289. Cf. African Common position, see note 146, para. 33 (e);Angola, statement by Ambassador Van-Dunem "Mbinda" in the 49th Plenary Mtg., 1 November 1996, GAOR 51/PV.49,6. Cf. the models of Norway and Malaysia, see notes 154 and 160. France, statement before the Working Group on 4 May 1994,4. Rrasian Federation, statement of First Deputy Permanent Representative Sidorov before the Working Group on 4 May 1994, l; see also G. Moronzov, "Reform of the U N is possible and even desirable. But not a revision", in: B. Pyadyshev (ed.), We the Peoples of the United Nutions, 1995,52 speaks of ...adding Germany, Japan, India or Brazil as well as Nigeria ..." and "... vest them with the same powers ... as those of permanent Security Council members under the Charter". UnitedStates ofAmerica, see note 214,3; see also J. Snyder, "UN Security Council Reform: The U.S. Government View", in: East-West Center Honolulu, see note 4. See, however, Foreign Secretary M. Rifkcnd: "... Germany and Japan ... should benefit from an expansion of the permanent members, with the wider rights that entails ..." (UK Press Release 086/95 of 26 September 1995; for China, see Zhang Jing, "Reform des UN-Sicherheitsrats", Beijing Rundschau 32 (1995), 19 seq. "

'39

240


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3. Premises Regarding Changes in the Scope and Extension of the Right of Veto Given its obvious sensitivity, any decision on an extension of the right of veto will depend to a large measure on decisions in other areas, i.e. will not be decided before the very end of a political negotiation process. The following premises may be important in this context: - The maintenance of the status quo, i.e. non-extension of the veto to new permanent members would have two consequences: first, it would lead to a different treatment of permanent members, with little if any rational justification. Second, it would reaffirm the legitimacy of the circle of five member states made permanent in 1945, this time by an agreement based on a membership of 185 member states including those who were admitted to the Organization after the last Council reform in 1963. Any further reform of the veto concept in the future wouId become most unlikely. In other words, the non-extension of the veto would strengthen rather than help to curtail it. - An extension of the veto will have to take into account that a large majority of member states is unhappy with the way the veto has been handled until now. Modifying its scope would be apopular measure and could help to solve a number of open questions in this contextz4'. At the same time, it could represent the beginning of a process of gradual elimination of the veto. Extending the number of potential veto beneficiaries to more than the present few countries would contribute to this end, too, since the veto would lose its elitist and quasi-sanctuary character. - The consent of all permanent members (P5) is a conditio sine qua non for any adaptation of the veto right (Articles 108, 109 para. 2). First cautious steps in the form of a dialogue seem possible without compromising the P5 and their genuine interests. If efforts to convince the P5 of the appropriateness of such an approach failed, other innovative options could be considered, for example legally binding and irrevocable unilateral declarations by new permanent members on how to use a veto given to them. Such declarations might incorporate some of the elements that have been proposed to make the veto more rational. - Equal treatment of all permanent members is a basic condition. However, it can be argued that the Assembly cannot provide a privilege as sensitive as the veto right o n a "carte blanche" basis. Possible different

241

Cf. Institute of International Studies, University of California, see note 1, 29.

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Max Planck Yearbook of United Nations Law treatment might therefore bc conceivable in cases where the Assembly242cannot identify a possible permanent member beforehand.

VI. Amendments t o the Charter: Procedural Aspects Amendments to the Charter may be considered to be technical and rather secondary elements. However, they are regarded as relevant elements of Council reform and were discussed at length in the Working Their importance244stems from the fact that the procedure to amend the Charter is an inherent element of any reform measure. Amendment procedures determine the necessary majority to adopt an amendment. They might also indicate to what degree individual reform steps require a formal amendment to the Charter. The Charter provides t w o ~ r o c e d u r e sfor formal amendments. Article 108 stipulates that amendments t o the present Charter would come into force after adoption "by a vote of two thirds of the members of the Assembly and ratification by t w o thirds of the members of the United Nations, including all the permanent members of the Council. Article 109 para. 2 provides for rather the same'" procedure, but places it in the context of a General Conference of the Members of the United Nations t o be convened by the Assembly and the Council pursuant to Article 109 para. 1. Both procedures could be applied in principle for the reform of the Council. However, the fact that the reform of the Council concentrates o n composition and working methods of one single body and does not involve an entire review of the present Charter as envisioned in Article 109 suggests that Article 109 is not relevant here. It should also be noted that, since 1955, all attempts to convene such a General Conference have failed246.Article I08 seems therefore preferable, considering that the essential conditions for adoption of a reform - a two thirds majority in the Assembly and ratification by two thirds of its members, including all

242 243 244

245

246

The consent of all existing permanent members would be an additional necessary element. See Doc.A/50/47 of 13 September 1996, para. 33. See e.g. Caron, see note 124,569 et seq. Koroula/Kanninen, see note 27, 343; for differences in details, see M. Schroder, "Amendment to and Review of the Charter", in: Wolfrum, see note 1, Vol.l,20 et seq. (21/22). The Committee established by A/RES /992 (X) of 21 November 1955 "... to consider the question of fixing a time and lace ... for the Conference ..." concluded its work in 1967 without substantive results, cf. A/RES/2285 (XXII) of 5 December 1967; Seidel, see note 16, 35.


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the permanent members of the Council - are not different from those prescribed in Article 109247.The previous Council reform248and consecutive attempts for a Council reform249were based on Article 108 too. Article 108 only needs to be considered in the case of a formal amendment to the Charter. There can be little doubt that the procedure prescribed in Article 108 is not necessary for measures which d o not explicitly change Charter provisions. The final report of the Working Group states that improvements in the Council's working'methods and transparency and its relationship with non-members of the Council and other principal UN organs may come into effect "otherwise"250.O n e possibility would be to adapt the provisional rules of the Council. Another would be recommendations by the Assembly with subsequent consideration and adoption by the Council. The implementation of individual measures by way of secondary United Nations law would have the advantage that amendments t o Charter provisions, which entail a number of obstacles (voting quora, need of ratification etc.) could be avoided. O n the other hand, measures implemented in this way would not automatically be compulsory for the Council o r could be reversed by the Council at any time. Also, elements of reform models o r packages that d o not need a formal Charter amendment would need to be identified firstZ5l. However, in the event that political and legal considerations lead to both formal amendments to the Charter and procedural reforms, the necessary steps should take place in a timely and parallel way. This would correspond to the mandate given to the reform Working Group. Politically, it would facilitate achieving a far-reaching reform package. This last aspect is often overlooked2j2.

2"

248 249

250 251

252

Article 109 para. 1 would require an additional two-thirds vote of the Assembly and a vote of any nine members of the Council to fix date and place of the General Conference. See Chapter I para. I. See Chapter I para. 2 and draft Resolution A i 3 4 i L . 5 7 of 11 December 1979, para. 1 (" ... Decides to adopt, in accordance with Article 108 of the Charter of the United Nations ..."). Doc.A/50/47 of 13 September 1996, para. 3 3 . Identifying elements which do not need Charter amendments might turn out to be more difficult than it seems. For instance, one could rightly argue that rotation systems for Council membership must be formally laid down in the Charter. Similar questions might arise with regard to new binding institutional links between the Council and the membership or other principal organs, since they may alter the inter-organ balance enshrined in the Charter. Czech plans in summer 1996 to advance their proposal regarding Article 31 and a Colombian Draft Resolution regarding the Report of the Security Council adopted on 17 December 1996 (Doc.A/51/LS64)may

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VII. Review of the Charter The issue of re-examining Charter amendments and related reform measures after a given time is discussed under the headingpeviodic revie.wZ53. Like amendments to the Charter, it is a technical but important element which can add a time component to Charter amendments by way of a review after a certain period. The value of a periodic review is shown in a German proposal for a Peviodic Review Clause (PERECLA) presented in May/July 1996 and referred to by the report of the Working The key element of PERECLA is the review, including the possibility of reversion, of decisions made within the framework of a Council reform, such as decisions on new permanent members, but also on any other reform elements. PERECLA would guarantee that new permanent members will not have an irreversible status, but be accountable255to the general membership. Other members could qualify for permanent membership and replace them at the time of review256.The clause could provide the necessary flexibility to take into account new and economic realities257. Almost all groups of states involved in the discussion supported such a review element258.The report mentions others that regarded such a provision as unnecessary but states that PERECLA "could be an important element in facilitating the efforts towards reaching final agreement on the issues within the mandate of the Open-ended Working Technically, PERECLA could be impIemented in the form of an amendment to Article 23 referring to a review process in accordance with Article 108 after a certain period. Periods of 10, 12, 15, 20 or 10-20 years have been mentioned during the discussions, making 15 years a reasonable and justifiable260compromise. It goes without saying that new permanent mem-

serve as an example that efforts to implement transparency measures in an isolated way rather weaken their potential outcome. Doc.A/50/47 of 13 September 1996, para. 34. Ibid. Accountability as fundamental principle: South Centre (ed.), Reforming the United Nations. A view from the South, 1995, 12. This concept is comparable to the idea of quasi-permanent membership, cf. Hoffmann, see note 4, 58. Germany: working paper, Doc.A/50/47/Add. 1 of 9 September 1996, Annex XIV, 54. Non-Aligned Countries, Nordic Countries, Organization ofAfrican Unity, Informal Group of SmalL and Medium-sized Countries.and others. Doc.A/50/47 of 13 September 1996, para. 34. 15 years is half the time passed since the last reform came into force


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bers would not be entitled to use a possible veto right regarding their own review261.

VIII. Time-Scale and "Package" Approach Predictions regarding a reform time-scale and "package" would be specul a t i ~ and e ~ of ~ ~a merely political nature. Multilateral decision processes are by nature difficult to calculate. However, it should be possible to make certain assumptions. It will be five years in 1997 since the discussion on how to reform the Council was initiated. In the light of earlier efforts since the late seventies, the discussion has been going on even longer. All member states have had abundant opportunities to state their views and form opinions. Not all of them have presented a concluding statement, but all have contributed to the discussion in one way or the other. The member states were also able to take into account studies and proposals made by non-governmental organizations. The result has been two dozens concrete proposals on how to reform the Council. In other words, all participants have taken advantage of the time available. A look at the reform of the Council in 1963 shows that at that time there was no consensus at the time of decision even after several years of discussions. All this indicates that the transition from discussion to concrete negotiations with a concluding decision is imminent. If the discussions continued, however, the most likely result would be growing scepticism and a diminished chance of realizing reform. This would benefit only those countries which are interested in maintaining the status quo. It would ultimately lead to afailure of the entire reform process since half or fallback-solutions which basically confirm the status quo do not appear to have any chance of being adopted263.

261 262

263

(1965/1996). SOexplicitly Gewnany, see note 257, para. 8. Cf. Mantanle, see note 56,51; W. Barton, "Commentary on Recommendations to ,the Commission on Global Governance", in: FawcettINewcombe, see note 187,306. SOpositions expressed by France, United Kingdom and United States of America. Cf. the statements of Ambassador E. Gnehm (in the 46th Plenary Mtg., Official Records, Doc.A/51/PV. 46, 17) and B. Richardson (USUN Press release 26-(97) of l 1 March 1997) (" ... permanent membership for Germany and Japan is a sine qua non ..."). Partial solutions would neither be in line with the principle of effectivity of the (new) Council nor the mandate of the Working Group which refers to "the changes in international relations", see note 38. The most important of those changes

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"Packages" are a well-known and useful procedural instrument in complex multilateral negotiation processes. They help the parties to agree to individual elements on the basis of do ut des264.The Working Group report refers explicitly to the "~ackage"approach in regard to Council reform when it stated, that the "... final agreement ... should comprise a comprehensive package"265. The "package" approach has a second dimension, however, which stems from the fact that reform of the Council is only one of five reform areas in which the Assembly has established Working Groups dealing with different reform issues. The four other Groups are the Ad-hoc-Openended Working Group on the Agenda for D e ~ e l o p m e n t(social ~ ~ ~ and economic development), the High-level Open-ended Working Group on the FinancialSituation of the United Nations267(United Nations finances), the Open-ended High-level Working Group on the Strengthening of the United Nations System268(Secretariat, General Assembly and other reform areas) and the Informal Open-ended Working Group on an Agenda for Peace269(international security and peace). Links between the individ;a1 Working Groups are obvious.- he question of how to make the report of the Security Council to the General Assembly more transparent and useful, for example, is being dealt with by two Working Groups (Security Council, Strengthening of the United Nations System). The Working Group o n the Security Council refers in its discussions continually to the work of the Working Group on the Financial Situation of the United Nations in relation to financial aspects. Examples of references are: "The possibility should be envisaged of charging the more frequently and regularly rotating members an additional percentage on their financial contributions to peace-keeping operations, equivalent to half the percentage paid by the permanent members for the same purpose. This would greatly help the United Nations to overcome its financial crisis ..." (Italy2'O); " ... there should be introduced a new sub-category of financial permanent membership ... This is strongly motivated by the desperate financial emergency presently being undergone by the Organization." ( B e l i ~ e ~ ~"Regional '); permanent members together with other members

is the rise of countries with a new global role. "Balance of interests": Kennedy/Russett, see note 1,269. Doc.A/50/47 of 13 September 1996, para. 17. A/RES/49/126 of 19 December 1994. A/RES/49/143 of 23 December 1994. A/RES/49/252 of 14 September 1995. Established informally in 1995. Italy, Doc. A/50/47/Add. 1 of 9 September 1996, Annex IX, para. 7 (g). Belize, ibid., Annex XV, para. 23.


S9

in the region will share the financial costs of regional representation in the Security Council" (Malaysia272);"The lack of tangible progress in the work of the Group has had an adverse effect on the negotiations on all other aspects of the Organization's future activities. The work of the General Assembly working groups o n the financial situation of the O r ganization, ..." (Ukraine273).It seems likely that both dimensions may, in the end, play a not insignificant role in the political decision-making process274.A body coordinating the different packages has not emerged so far275.

IX. Conclusions A t the beginning of 1997, the discussion o n the reform of the Security Council has entered an important and probably decisive phase. Without having attracted too much attention from the public, the discussions in the specific United Nations fora have resulted in almost two dozen concrete reform proposals. The most popular among them are now awaitin= the 9 necessary276decision by the member states. More than four fifths of the proposals favour - o r at least d o not oppose- an increase in both membership categories of the Council, permanent and non-permanent. A n enlargement will have to be evenly balanced between the South (developing countries) and the N o r t h (developed countries). The North seems to have reached general agreement o n its new permanent representatives. T h e South, however, has not yet decided how its representatives are to be selected and what the configuration of its permanent seats in the Council should be. The question of the future scope of the veto and its extension to new permanent members has not yet been decided, either. N o n e of these decisions is easy. N o n e of them will be made easier by further in-depth considerations nor will full consensus be achieved. H o w ever, general agreement o n a final agrcement can be reached. The agreement will have to comprise a comprehensive package including composition and size, decision-making, including the veto, working methods and transparency and other matters such as amendments to and periodic review of the relevant Charter provisions. If the United Nations wants to enter a new era and meet the challenges which lie ahead, it will require a strengthened 272 273 274 275 276

Malaysia, ibid., Annex XVI, para. 9. Ukraine, ibid, Annex XVIII, para. 1. Cf. Koroula/Kanninen, see note 27,345. T. Kanninen, Leadership and reform, 1995, 43/45 et seq., 251 et s q . stresses the potential key role of the Secretary-General. Stanley Foundation, see note 2,30.

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,


and reorganized Council. Reform of the Security Council will set a positive precedent for other reform areas. It might become the first comprehensive renewal of a principal organ in the history of the Organization.

Unlawful Resolutions of the Security Council and their Legal Consequences Karl Doehring

The question of whether the ICJ is entitled to deal with the legality or illegality of Security Council resolutions, under Article 25 of the Charter, or whether the Court must abstain from any control in this regard, has been the subject of much recent discussions1. But the problem of the Court's competence is not the subject matter of the following considerations. The competence of the Court rationepersonae is, until today, clearly limited - only states can be parties before the Court -, so that only in rare cases this problem may arise. Evidently, there is no competence of the Court to declare a resolution with binding effect upon the Security Council, to be null and void, because the decisions of the Court produce such a binding effect only inter partes. Therefore, the problem of the legality of a resolution can only become relevant as a preliminary question. Also, the often stressed high authority of the Court2 cannot entail a competence in this field, nor can its judgments per se create customary law3. If a party should ever win a case, due to a Court's decision denying 1

2

3

M. Bedjaoui, The New World Order and the Security Council, Testing the Legality of itsAct, 1994,131 et seq.; H. Mosler, "On Art. 92", 990 et seq., in: B. Simma (ed.), The Charter of the United Nations. A Commentary, 1994; TStein, "Das Attentat von Lockerbie vor dem Sicherheitsrat der Vereinten Nationen und dem Internationalen Gerichtshof", A V R 31 (1993), 206 et seq. G. Jaenicke, "Volkerrechtsquellen", in: H.J. Schlochauer (ed.), Worterbuch des Volkerrechts,Vol. 3, 1962,772, qualifies the decisions of the ICJ to produce a quasi normative effect; W. Heintschel v. Heinegg, "Die weiteren Quellen des Volkerrechts", in: K. Ipsen (ed.), Volkerrecht, 1990, 225. D.P. O'Connell, International Law, Vol. I , 1965, 30: "In discovering the formation of international law, it is important not to underestimate the

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the binding force of the resolution, a third state, not being party in that case, may use the decision as an argument, but it cannot claim not t o be bound o n account of this decision. Nevertheless, litigation may arise if a state, bound by a decision of the Court, refuses to fulfil1 its obligations towards third states in respect of a resolution by invoking the Court's decision. Apart from these procedural questions, it must first be clarified whether resolutions of the Security Council, emanating under Article 25 of the Charter, can really be unlawful o r whether they create law by themselves. O n l y when unlawfulness must be stated, the problem arises of whether an unlawful resolution produces, nevertheless, a binding effect. If one denies such an effect, h o w states should behave when facing this situation? A n example may serve to focus o n this problem: The Security Council established a tribunal in order to convict war criminals who committed cruelties in former Yugoslavia. If the resulting resolution would not be covered by the competence of the Council4, would then a state be free t o disregard it? And what would be its relationship with other states which did recognize the validity of the resolution?

I. As to the Question of Legality or Illegality of Resolutions The United Nations, in their capacity as an international organization, are a subject of international law; they have a legal personality. Every subject of international law is bound by international law and may, therefore, violate international law in a specific situation. Thus, one can, prima facie, assume that a resolution of the Security Council could be unlawful, measured o n objective rules of international law. The competences may be overstepped, o r substantive rules of the Charter o r of customary international law applicable besides the Charter5may be disregarded. The extreme position taken by some scholars before World War I , stressing the view

4

5

role of judicial decisions in the cristallisation of custom"; but see K. Doehring, "Die Rechtsprechung als Rechtsquelle des Volkerrechts. Zur Auslegung des Art. 38 Abs. 1 Ziff. d des Statuts des Internationalen Gerichtshofs", in: Rtchterliche Rechtsfortbildung, Festschrift der Juristischen Fakultat zur 600-Jahr-Feier der Ruprecht-Karls-Universitat Heidelberg, 1986, 549 et seq. As to this question K. Oellers-Frahm, "Das Statut des internationalen Strafgerichtshofs zur Verfolgung von Kriesgsverbrechen im ehemaligen Jugoslawien", ZaoRV 54 (1994), 417/18. ICJ Reports 1984,424.

Unlawful Resolutions of the Security Council

93

that every state is free to determine by itself the limits of its rights, is, of course, abandoned. This position was based o n the premiss that international law is a system of pure coordination and opposed to any subordination, and that, therefore, the successful execution of the state goals furnishes the evidence also of its rights6. Such a view could lead to the assumption that the Security Council alone determines its rights. But this position is, of course, not tenable. The existence of objective rules in international law cannot be challenged as it was the case in former times, and the common view today recognizes the subordination of all legal persons under the rules of objective international law. Therefore, the assumption that the United Nations - as a quasi sovereign organization - is competent to judge alone on the lawfulness of its o w n behaviour, cannot be justified. A sovereign state in its relations to other sovereign states must accept that these relations are governed by rules that bind every sovereign and that this subordination under common rules cannot unilaterally be abolished, inspite of the fact that n o instance exists being conlpetent t o determine and define the law finally7. This reference to the position of sovereign states is meant t o show that sovereignty alone is not a n argument proving the legal independence of a legal subject. That is also true for the United Nations. Despite all these arguments some considerations may be opposed to them. O n e could, perhaps, describe the Charter of the United Nations as a world constitution and say that the Charter is meant to work in this direction8. Additionally one may invoke in this connection the principle of universality9. Under this view one could argue that also under the constitution of a state the subordinated legal subjects have to obey all orders of the supreme authority, even when they are not in conformity with the existing rules. The binding force of those orders persists as long as n o actus contrarius is pronounced. A Constitutional Court, too, when controlling the government, may disregard the existing law, but neverthe-

E. Kaufmann, Das Wesen des Volkerrechts und die clattsula rebus sic stantibus, 1911, 153, took the view that the won war proves the winner's right. H. Steinberger, "Sovereignty", in: R. Bernhardr (ed.), EPIL 10 (1987), 408: "Sovereignty is a legal status within but not above international law". It is a widely accepted view that the interpretation of the Charter corresponds to that of a constitution; Mosler, see note 1,980, characterizes the Charter as a "grear constitutional instrument"; R. Monaco, "Sources of International Law", in: R. Bernhardt (ed.), EPIL 7 (1984), 426; G. Ress, "Interpretation", in: Simma, see note 1, 27 et seq. K. Dicke, "Universality", in: R. Wolfrum (ed.), United Nat2ons: Law, Policies and Practice, Vol. 2, 1995, 1353.

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less its decisions bind all legal subjects. Moreover, in some states the Highest Court is not competent to control the legislator and the government when acting in conformity with the will of the parliament, and in states disposing of a High Court which has the competence to exercise judicial review, the judiciary abstains from intervening in the activities of the political authorities where questions of an essentially political nature are at stake. If judicial review is refused, a governmental action remains uncontrolled regardless of its legality. If a French Court refuses to admit a case with the argument that it is confronted with an act "de gouvernement", n o control will be existent1'. The well known political question doctrine in the United States has the same result", and in the United Kingdom the act of state doctrine frees the government from any judicial control when invoking the prerogative of the crown1*. In all these cases, i.e. when the nonjusticiability of the government action is recognized, those actions produce binding force erga omnes regardless of their lawfulness. O n l y in cases where the illegality of the government behaviour oversteps an insupportable degree one may think of a right of resistance; but even this right is questioned by famous philosophers, e.g. b y Immanuel Kant13. But even such a right to resist, based o n natural law and directed contra legem, cannot be positively articulated in the constitutional text; a constitution guaranteeing a right against itself abolishes itself14. If we are prepared to qualify the Charter of the United Nations as a world constitution, we might also be prepared to accept that even illegal actions of such a world government must be tolerated. The rationale to compare per analogiam a state's constitution with a kind of world constitution may be based on the following suggestions. A national government may act illegally, and even a constitutional court may d o so. The reason for accepting, nevertheless, the binding force of those decisions can be found in the inevitable necessity to uphold ~ e a c e f ulife l in the community whose legal system is normally in accordance with the rule of law. O n e may even ask whether, under certain conditions, the strict observance of the legality could entail thc complete destruction of the community. The

1"

11

12 13 . "1

J.H. Stahl and D. Chauvaux, "Chronique ginirale de jurisprudence constitutionnelle fran~aise",AJDA 51 (1995), 684 et seq., dealing with the litigation concerning the legality of nuclear tests. The decision of 29 September 1995 is reported on 749. Baker 1,. Carr, 369 U.S., 186, (1962); T.M. Franck, Political Questions. Juridical Answers, 1992. R.J. Walker, The English Legal System, 6th edition, 1985, 172. I. Kant, D2e drei Kritiken , edited b y R. Schrnidt, 1952,411 et seq. Kriiger, Aligememe Staatslehre, 1964, 948; K . Doehring, Allgemetne Staatslehre, 1991, 104 et seq.


95

human being, as a political animal, cannot survive when peaceful life is not possible. When we transfer this basic perception into the system of the United Nations, we might conclude that the international community, too, can only survive by accepting final orders of the world government which may be not always in accordance with all legal requirements. Of course, such a concept seems to result in the statement that it would be better to have a unlawful legal order than to have a lawful legal disaster. The legal theory of a consistent consequent decisionism comes t o the same result, as has been expressed by Thomas Hobbes in his famous statement: "auctoritas non veritas facit legem". International rights and objective norms may be set aside if otherwise serious dangers and sufferings must be expected, or even the existence of the community as such could not be protected. The rationale of the right to disregard legal rules in a situation of distress is also relevant in this connection. In international law, too, the invocation of the state of distress can justify neglect of legal rules, which normally must be observedlj. Again an example may be helpful. Suppose the Security Council declares a state to be an aggressor although objectively this qualification is wrong or looses its justification due to later information16. Should states, nevertheless, be bound by the resolution, and should states be obliged to respect the resolution when the Security Council insists on the argument that peace can only be preserved this way?There are many examples of such behaviour. The right to invoke the situation of distress as an escape clause, may that be as a justification o r exculpation, forms part of general principles of law, well known in nearly all legal systems, and this right also forms part in the ILC's Draft on the responsibility of states". The classical authors when treating general theories of law and state often dealt with the so called "Staatsraison", i.e. the question of whether the need to protect the state against its complete destruction prevails finally over legality. Where constitutions, e.g. that of Germany, confer upon the Constitutional Court the competence to review not only legal but also political decisions of the government1s,due to the impact o n constitutional norms,

15

16

l7

18

K. Zemanek, "Das Kriegs- und Humanitatsrecht", in: H. Neuhold (ed.), Osterreichisches Handbuch des Volkewechts, Vol. 1,2nd edition , 1991, 419. The situation of changing circumstances is envisaged by E. Suy, "Some Legal Questions concerning the Security Council", in: I. v. Miinch (ed.), Staatsrecht - Volkerrecht - Europarecht, Festschrift fur Hans-Jurgen Schlochauer, 1981, 677 et seq. Cf. ILC 48th Session, Doc. AICN.4/L.528/AddG2of l 6 July 1996. But even in those cases the German Federal Constitutional Court hesi-

96


the problem remains whether the court should really stop government activities when they are the appropriate means to protect against serious dangers for the community. It is interesting to note in this context that the German Federal Constitutional C o u r t permitted to neglect the individual right to just compensation for illegal expropriation. The justification for this decision has been found in the argument that otherwise the complete insolvency of the state must be fearedt9.Those decisions reveal that, at least under extreme conditions, Constitutional Courts may become a political organ of the state. Regardless the legal evaluation of those decisions we must see that every action of a government or a court which cannot procedurally be challenged remains binding upon citizens, may they be legal or illegal. When we define the United Nations Security Council as a world government acting in the frame of a world constitution, we face the question of whether its decisions must be respected as is the case with the decisions of a national government, described above, i.e. to respect, ultimately, unlawful decisions too. The decisive argument for this result may be again that the strict observance of the legality could entail chaos20. However, this analogy meets serious scruples. The constitution of a state does not know lacunae within its legal system, in particular within the system of final decisions. The recognition of lacunae in law destroys the legal system, at least if it is not settled w h o then is competent to fill the lacunae whenever they appear. Also the constitution of a state cannot extensively enumerate the tasks of the state and the goals justifying its existence2'. The final purpose of state power is to take care of the welfare of its subjects in a comprehensive sense, whereas the United Nations, in their capacity as an international organization, have only to perform specific purposes laid down in the CharteS2. The expressly defined pur-

tates to correct an internationally doubtful position of the government, although under the Consitution all state power is bound not to disregard international law; BVerfGE Vol. 55, 349 (367) and BVerfGE Vol. 77, 137 (164). BVerfGE Vol. 27, 253 (284); Vol. 38, 128 (133); Vol. 84, 90 (130 et seq.). H. Kelsen, The Law of the United Nations. A critical Analysis of its fundamental problems, 1950, 294; G . Dahm, Volkerrecht, Vol. 2, 1961, 212, took the view that the members of the United Nations are not entitled to question the legality of the Security Council's resolutions and are also prevented from restricting them by reservations; Bedjaoui, see note 1,127: "Nobody doubts that the maintenance of international peace and security must have priority". Doehring, see note 14, 80 et seq. As to the purposes and principles of thc United Nations Charter see: R.


97

poses of an international organization are the essential element when we define this subject of international law. The United Nations, as it is the case with all other international organizations, enumerate their -purposes exactly and exhaustively, and they are not competent to take care of the general welfare of their members. In contrary, the United Nations are obliged t o respect the autonomy of the states as far as possibie. The rights and duties of states cannot be compared with fundamental rights within a constitutional system, limiting the freedom as far as the common wealth it requires. Within the system of the United Nations any limitation of the autonomy of its members needs specific grounds which must be found in specific purposes defined in the Charter. T h e Friendly Relations Declaration, too, defines the limits of the freedom of the states by indicating specific duties, and it can also not be compared with a national constitution2'. Additionally, the Security Council cannot be qualified as an executive power established by a World Constitution. It is true that the members of the United Nations undertake to respect the resolutions of the Council and t o accept their binding force, but they cannot be forced to execute actively these resolutions. N o system cxists to compel thc members to cooperate as is rhe case with national governments. N o state is obliged to render military support24. The most that can be demanded is that a state has t o exercise seriously its discretion when the United Nations ask for military supportz5.Under a national constitution everybody can be forced to participate in common affairs and efforts when otherwise the community cannot be protected against perils, may that be against catastrophes o r military aggression. Moreover, the Security Council cannot be seen as a world government because it is under no strict duty to act whcn thc community of nations is endangered. It is true that normally a competence entails the duty to act. But, regrettably, that is not the case with the Security Council due t o the delimited possibility to hinder every action by a veto. A national government, o n the other hand, is always under the duty t o exercise its competences, and only this duty justifies the acceptance that even unlawful decisions must be respected, whether they stem from a government o r a Constitutional Court. If the Security Council remains inactive, the states

23

2 q 25

Wolfrum, "On Art. 1", 49 et seq., in: Simma, see note 1. When the Resolution of the General Assembly A/RES/ 2625 (XXV) of 24 October 1970 stresses the principle of sovereign equality of all states, it shows clearly the incompatibility of the United Nations with a state. . A . Frowein, "On Art. 43", 636 et seq., (638), in: Simma, see note 1. K. Doehring, "Collective Security", in: Wolfrum, see note 9, Vol. 1, 1995, 110 e t seq., (113).

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keep their right to self-preservation under Article 51 of the Charter. Under a national Constitution the right to exercise self-defense is an exception because one relies on the responsibility of the government. The right to self-defense under the Charter is only restricted when the Security Council takes the "measures necessary" to maintain the security. The term "necessary" in Article 51 of the Charter can only mean measures which afford at least a protection of the same effectiveness as the endangered state could produce by himself26. Since any binding effect of the inactivity of the Council cannot be supposed, it would be somewhat strange to suppose a binding force of its illegal actions, because the inactivity might support illegality. When the Security Council enacts unlawful decisions - i.e. not in accordance with the Charter of the United Nations and the general rules of international law - the question remains of whether the Charter must be interpreted in a way that even those decisions produce binding force upon the members. But the Charter does not answer this question. The position that the whole peace-keeping system of the United Nations would collapse if states would be free to judge themselves about the legality of resolutions and to deny the binding effect due to an autonomous judgment2', may be conclusive but not coherent and, in the end, not convincing. This position would result in an obligation to do wrong. The Vienna Convention on the Law of Treaties (UNTS Vol. 1155 No. 18232) contains the provision that treaties disregarding peremptory norms of international law are invalid. If ever the Charter of the United Nations would be interpreted in a way that it orders the binding force of resolutions irrespective of their lawfulness, an evident conflict with the Vienna Convention would exist. Moreover, the Charter itself presupposes the existence of peremptory norms, and it declares their respect t o be the predominant goal of the whole treaty when strongly confirming the prohibition to use force and the duty t o protect human rights. Suppose a Security Council's Resolution imposes an economic embargo on a state, may be in connection withmilitary measures, and this resolution could entail an intolerable starvation whose result would be comparable with a genocide, it would be incomprehensible to prohibit humanitarian support by a state in this situation. Of course, this situation forms an extreme example, but it demonstrates what may occur when the binding 26

27

It is surprising that the term "necessary" in Article 51 of the Charter is seldom defined by commentators, but see Oppenheim's International Law, J. Jennings (ed.), 9th edition, Vol. 1, Part 1,1992,423, note22, where it is held that necessary measures are only those producing sufficient effect. See note 20.


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force of all the resolutions of the Security Council is recognized, regardless of whether the result of the resolution is in accordance with peremptory norms of international law. This consideration is meant to indicate a decisive limit of the binding force of Security Council resolutions. As we will see, one may tolerate the disregard of dispositive norms of international law if otherwise the peace among states could not be preserved28. But this cannot be true regarding peremptory norms losing their legal nature when not respected29.It was a decisive progress in international law that states became willing to recognize the existence of ius cogens. Of course, when different norms of ius cogens come into a collision with each other, the only way to solve the problem is to decide on the predominance of one of them measured on its importance for the protection of mankind. But as long as this balancing act is not necessary, the peremptory norm must be respected.

11. As to the Legal Consequences When we accept the view that resolutions of the Security Council might be unlawful in a given case, and when we accept the view that those resolutions do not create new law and cannot produce an indisputable binding effect upon the states, as is the case with national constitutional law, the question must be answered what behaviour can be expected from the states. The basic problem, of course, is to be seen in the possibility that an autonomous judgment of a state about the binding force of a resolution is appropriate to destroy the peace-keeping system of the United Nations and to make it, in the end, ineffective and incapable of accomplishing its goals. Of course, situations may occur where the failure not to support resolutions actively has not the effect to abolish their effectiveness at all. But it could also be that activities of a state may hamper or even hinder any success of the Security Council. But it is often very difficult to distinguish between the effect of an omission of support and an active action against the measures of the Security Council. If, for instance, a resolution orders the prolongation of an embargo, and a state considers 28

29

E. Klein, "Paralleles Tatigwerdenvon Sicherheitsratund Internationalem Gerichtshof bei friedensgefahrdendenStreitigkeiten", in: R. Bernhardt et al. (ed.), Volkerrecht als Rechtsordnung. Internationale Gerichtsbarkeit. Menschenrechte. Festschrift fiir Hermann Mosler, 1983, 481, points out that the Security Council may temporarily neglect rights when otherwise peace cannot be preserved. Klein, see above, 487.


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this decision to be unlawful and thus ignores it'" the delivery of goods would be an active action against the orders of the Security Council. But when a state refuses only to freeze capital of the state under embargo, this would be a failure to act. Or, when a resolution of the Security Council obliges not to grant military support to a state which has been declared to be an aggressor, the delivery of weapons to that state would be an active action against the goal of the resolution, whereas the failure not to hinder the aggressor to cross the territory of another state would only be an . .

omission.

Therefore in both cases it is only decisive whether the behaviour of a state, when refusing to recognize the legality of the resolution, hampers o r abolishes the effect of the Security Council's measures. The pure distinction between activity and omission can not help to disclose the problem of the obstructing state's rights. Before the entry into force of the United Nations Charter, every state decided itself about the legality . of its conduct, and, of course, this decision could be wrong in respect of objective international law. But n o instance existed which could judge in this matter with binding force upon the community of nations. A n obligatory judiciary did not exist and does not exist until today. Every state had to rely o n self-preservation and self-help to protect its rights. It was the aim of the founders of the United Nations to soften and to moderate this state of affairs by introducing into the Charter the provision that the Security Council resolutions binding force. However, - as it has been pointed out - this machinery cannot be meant to perform unlawfulness. The authors of the Charter did not reflect enough on the possibilities to avoid such an unacceptable effect. Thus, the competences of the ICJ have been too limited by excluding international organizations and in particular the United Nations from a standing before the court in a litigation. If this limitation would not be given, every state would be in the position to sue the United Nations for illegal decisions before acting unilaterally against them3'. Another possibilitywould be to oblige the Security Council to ask the ICJ for a statement when a state challenges the lawfulness of a resolution. Such a statement could have binding effect upon the United Nations and their members, similar to the situation in states where Constitutional Courts are established. Neutral judges may be in a better position to control the legality of political actions and to test whether they overstep legal boundaries. Of 30 31

Suy, see note 16,677 et seq. Surprisingly, it is not even required in German Constitutional Law to bring a case before the Federal Constitutional Court before the Federal Government takes action against a member of the Federation in order to restore law and order; see BVerfGE Vol. 7, 367 (372).


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course, decisions of a Court may also violate the law, but they are, at least, more acceptable than those of political organs acting more or less under the pressure of political interests. The veto-power clearly demonstrates this situation. All these ways have not been opened, and one cannot expect that they will be opened in the near future. It is, therefore, indispensable to look at legal possibilities to avoid conflicts deriving from this dilemma. As far as the legality of a resolution is challenged with the argument that the Security Council did not remain in the frame of its competences and thus acted ultra vires, it is - for the purpose of the question treated here - only decisive whether such a disregard of the competences can compel a state to violate the law. The question about the consequences of illegalities within the internal law of international organizations, i.e. the question dealt with by the ICJ in the so called Certain-Expenses-Case32,are not the subject matter of the reflections presented here which are only concerned with the situation how states should behave when facing an unlawful resolution. When their actions would be unlawful unless a resolution exists, can they become lawful due to a resolution only?

111. Necessity to differentiate between the Sources of International Law A solution of the problem can only be approached by recalling that the rules of international law are different regarding their force, their rank and their consistence against modifications. The statute of the ICJ contains only a somewhat rudimentary distinction when enumerating them. Nothing can there be found about the relationship between the sources of law. That was obviously left to the doctrine. Treaties may supersede customary law, but they may also create it3). Many treaties on the same subject matter and with corresponding content may permit the conclusion that thcy establish customary law with binding effect upon the whole community of nations, at least if this lies in the interest of the community. In other cases, a well established rule of customary law will be set aside by the partners of a treaty. But it is also recognized, that peremptory norms of international law, created by the practice of states as so called ius cogens superveniens, can have the effect of rendering invalid provisions of concluded treaties34. It may suffice to

32 33

ICJ Reports 1962,151-1 80. K. Doehring, "Gewohnheitsrecht aus Vertragen", ZaoRV 36 (1979), 77 et seq.; E.R. Baxter, "Treaties and Custom", RdC 129 (1970), 25-105.

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Max Planck Yearbook of United Nations L a y

mention here the Vienna Convention o n the Law of Treaties. Even general principles of law of a profound nature, originated in national legal systems, may have the effect of rendering treaties inapplicable when their fundamental nature is recognized, o r at least they may give rise to modification of the treaty3j. These short indications may demonstrate that the norms of international law possess different rank@. The respective rank does not depend o n the form of the creation of the rule, but o n its content in regard of substantive law. Even the will of the parties to the treaty is not always the decisive viewpoint. The well recognized freedom to contract ends where the parties cannot dispose of the subject matter which they want to regulate. In this respect, too, essential differences must be envisaged. I n general, a treaty can overrule a norm of customary law having binding effect as long as not set aside by consent of the partners37. T h e parties t o a treaty may, for instance, stipulate that the so called international standard for aliens can be neglected regarding the mutual treatment of their nationals. In a peace treaty - to give an other example - the parties may waive the private property of their nationalsj8, although private property of aliens is normally protected against taking without compensation. O n the other hand, the restriction of the minimum standard b y the parties t o a treaty meets a clear limit. It should never abolish fundamental human rights, since states cannot dispose of those rights whose true holders are the individuals even under international law. It must, however, be seen that even peremptory norms of international law may be exposed to limitations; the question is only w h o then is entitled to restrict them. Such a right can only be vested in just that legal subject whose protection is the purpose of the rule, but not the legal subject which aims to widen its powers. T h e right to self-determination may serve as an example. N o state is entitled to disregard or even to abolish this right which belongs to the body of international peremptory norms. Nevertheless, the holder of the right to self-determination, a minority or a state, can waive this right, o r may fail to invoke itj9. But there are other peremptory norms which cannot be 34

35 36 37

38

J.A. Frowein, "Ius Cogens", in: R. Bernhardt (ed.), EPIL 7 (1984), 327 et seq., (329). H. Mosler, "General principles of law", in: Bernhardt, see above, 89 et seq., (96). Monaco, see note 8,432. T. Buergenthal, H. G. Maier, Public International Law, 2nd edition, 1989, 108: "In general, states are free to enter treaties that change, as between them, otherwise applicable rules of customary international law". See e.g. Treaty of Peace with Italy, 10 February 1947, UNTS Vol. 49 No. 747, Article 79.


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waived because even the legal subjects, protected by them, have no right to dispose of them. Such rules are meant to protect not only the individual but also the interests of all states and all human beings. Nobody can waive the protection of human dignity, including the individual directly affected. A good example is the prohibition of slavery. Even when an individual would be prepared to tolerate his slavery, this waiver cannot justify such a treatment, since the prohibition of slavery is devoted to protect mankind4! The essential question in all these cases remains to know who is the holder of a right and has the capacity to dispose of it. The following reflections will cope with the question of whether the just demonstrated differences of international norms can serve t o disclose the problems in regard of the binding effect of Security Council resolutions. Can they produce binding effect when their content evidently contradicts rules of international law? We should, first, envisage the situation when resolutions of the Security Council are not in conformity with ruks of general customary international lawwhich are disposable, i.e. which can be restricted by cooperating states, but which wouId be in force as long as no restriction is stipulated. Unilateral restrictions would be illegal. O n the other hand, the state affected by this disregard of a rule may fail to protest against the foreign act. O n e may assume that the illegality is eliminated due to the tolerance of theviolated legal subject and the new situation is legalized, or one could assume that the illegality persists but cannot be invoked due to the principle of estoppel or acquiescence; but this difference is unimportant, for the infringed holder of the right has disposed of it and was entitled to d o so by waiver. of illegal resolutions This consideration may help to solve the when dealing with international rules open for restrictions by states. The following indications may appear as a somewhat artificial construction, but one cannot deny its conclusiveness. An example again may illustrate this concept. A resolution orders an embargo against a state with the consequence that contracts among private firms can no longcr bc pcrformed. This resolution results in an expropriation of those firms which remains ~ n c o m ~ e n s a t eIn d . the frame of transnational trade one faces the interference into the property rights of foreign nationals and thereby a

39

The Austrian Statc Treaty, 15 May 1955, UNTS Vol. 217 No. 2949

40

excludes an unification with Germany (Anschlufi) waiving this way the exercise of self-determination of a specific kind. A.M. Treblincock, "Slavery", in: R. Bernhardt (ed.), EPIL 8 (1985), 484, points out that the prohibition "... has finally accorded with the dignity of free humanliind".

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violation of the internarional law of aliens under which private property is protected against expropriation without c o m p e n s a t i ~ n ~ ~ . However, this result which seems to constitute an illegality when based o n a unilateral resolution of the Security Council, could be legally reached by a treaty between states. Germany, for instance, promised after World War 11 not to protest against the confiscation of private property of nationals which had been taken as enemy property during the war. The sequestration during the war was in conformity with international law, but the final confiscation would be in contradiction to international law42. Whether in those cases any compensation can be claimed by the expropriated person depends on the national law of the waiving state. International law does not regulate this question. When we transfer this picture on a Resolution of the Security Council having such an expropriating effect and being prima facie in contradiction to international law, the question arises of whether such a resolution can be compared with a treaty between states which moves the illegality into legality. O n e could argue that the general obligation, contained in the Charter, to respect and to perform the resolutions signifies the consent of the members of the United Nations with disregard of international rules by the Security Council in cases where the rules belong to disposable norms and where this disregard is meant to serve the goals of the Charter. Since it is permitted to states to abrogate norms of customary law as far as they d o not have the character of ius cogens, resolutions of the Security Council may also produce this effect when we assume a general consent of the members expressed by the acceptance of the obligations contained in the Charter. Many provisions of the Charter underline the obligation to cooperate in a broad sense. The willingness to abrogate rules, permitted to states in their mutual relations, could also be presumed in this regard. It is much more difficult to cope with the situation where resolutions of the Security Council disregard peremptory norms of international law or when they have the effect that states violate those norms being compelled to perform these resolutions. Let us look at an example. A military conflict between states creates the danger that one of the participants will be exposed to genocide. A third state may be prepared to intervene with military support for the threatened population, but a resolution of the Security Council orders strictly to abstain from any intervention with the argument that peace can otherwise not be preserved. Suppose this resolu41 42

R. Dolzer, Eigentum, Enteignung und Entschadigung im geltenden Volkewecht, 1985,53. Convention on the Settlement of Matters Arising out of the War and the Occupation, 23 October 1954, UNTS Vol. 332 No. 4762, Part IV, Article 2 and 3 .


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tion is based on wrong information or would even signify an arbitrary exercise of the discretionary powcr of the Security Council, the question arises of whether a state can be bound by such a resolution to abstain from the attempt to hinder genocide. It would be an absurd assumption to recognize an order which may result in a permission to commit genocide. Let us look at an other example. Suppose a damaged nuclear plant threatens to cause a catastrophe endangering the population and the environment, and a resolution of the Security Council, based on poor information and underestimating the danger, prohibits any intervention by any state in order to avoid war. Or, suppose a state is prohibited from self-defence by resolution of the Security Council, but the measures taken under Article 51 of the Charter are ineffective, although the Council believes in their effectiveness. The right to self-defence is an inherent right; to commit genocide is a violation of ius cogens and the destruction of the environment is against ius cogens when a certain degree is reached. Must, nevertheless, in all those situations the binding character of a resolution be respected, or can this respect result in an absurdity? be useful to recall the When we are looking for an answer it might provisions of the Charter dealing with the commitment to aserious loyalty towards the organization and its members43.It is a general principle that members of a community are specifically obliged to render mutual assistance and support44,and that is true for national communities and international communities as well. For a federal state this principle is intensively defined by the German Federal Constitutional Court when invoking the so called " B ~ n d e s t r e u e " ~ i.e. ~ ,enhanced loyalty governing the relations . . between the federal government and the member states as well as between themselves. This specific loyalty influences not only mutual respect but also mutual support. If a constitution does not contain provisions indicating this basic principle, it may be taken from the spirit of the Federation, and the same concept can be supposed regarding a community of states founding an international organization. Thc treaty on the European Economic Community declares in its Article 5 expressly the duty to cooperate in the spirit of loyalty and the duty to mutual Regarding international organizations one may speak of a general "Organisationstreue", i.e. a special loyalty among the members of the organizations, taking up the terminology of the German Federal Constitutional Court. 43 44

45 46

See the Arts. 49, 56, 103. AS to the interpretation of Article 2 para. 2 see A. Randelzhofer, "On Art. 2", 89 et seq., in: Simma, sec notc 1. German Federal Constitutional Court, BVerfGE Vo1.34,216 (232). A. V. Bogdandy, "On Art. 5"- note 1, in: E. Grabitz, M. Hilf (eds.), Kommentar zur Europaischen Union, 1995.

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This special type of loyalty can also be distinguished from the principle of bona fide which is well known when contractual obligations are to be executed, since the loyalty within the organizations or federations requires more than the pure fulfillment of the expressly enumerated duties. The same concept appears also in the method of interpretation. The law-making treaty has to be extensively interpreted, whereas a contract is restrictively interpreted. This characterized duty to a loyal and helpful cooperation can, of course, also be used to demand an unlimited subordination under the organization's goals. However, this loyalty excludes behaviour which tends to hamper the commonly accepted purposes. When we agree with this concept, it seems appropriate that a state, before acting autonomously and unilaterally against a resolution of the Security Council, arguing that it violates peremptory norms of international law, should inform the Council about its refusal and its intention not to act in conformity with the resolution. This requirement to bring those scruples to the knowledge of the other side corresponds with the principle of proportionality. It finds a comparable parallel in Article 50 of the Charter which provides consultation where a resolution imposes specific economic burdens on a state47. The information by the state, filed to the Security Council, should explain w h y the resolution violates peremptory norms of international law o r leads the states to d o that. The duty to loyal cooperation, as defined above, would be accomplished when the Security Council seriously investigates the arguments of the protesting state and the invoked facts, and when the Security Council seriously considers whether its decisions could be annulled, modified or maintained so far as they entail obligations of the states. The above described possibility is not mentioned in the Charter's text. O n e may, however, argue that this principle of specific loyalty forms part of unwritten international law o r even of general principles of law. The duty, for instance, to warn before acting rigorously is well known in regard of the admissibility of reprisals48.It finds also expression through the rule which demands to exhaust local remedies before exercising diplomatic protection49.Also the rules governing the ius in be110 present examples. The requirement to use countermeasures only after having announced 47

48 49

B . - 0 . Bryde, "On Art. 49", 656 et seq., (658), in: Sirnma, see note 1, characterizes this prohibition as a lex irnperfecta, since the Security Council is under no obligation to react. K.J. Partsch, "Reprisals", in: R. Bernhardt (ed.), EPIL 9 (1986), 330 et seq., (331). K. Doehring, "Local Remedies, Exhaustion of", in: Bernhardt, see note above, 1 (1981), 136 et seq.


107

them by a pre-warning also reposes on general principles of law as developed in municipal law. This concept forms part of basic principles of that what we call rule of law, or "Rechtsstaat". It is the calculability of legal consequences which we are focusing on. Nobody should be under a rule which does not clearly determine what follows when disregarded. Within the considerations treated here that means, the Security Council and members of the United Nations must be aware of the dilemma possibly created by a mutual behaviour which the other side could not expect. The incalculability of the mutual reaction produces fear, uncertainty and danger. That can be avoided when one agrees that the duty to inform and to warn does not only belong to a kind of comity but is conceived as a legal requirement, at least in the frame of an international organization. Of course, there may be situations where pre-warning cannot be expected because too heavy dangers are imminent5'. If such a pre-warning does not result in a harmonization of the controversial positions, there is no possibility to force, in an extreme case, a state to violate peremptory norms of international law. The legal system provides for no solution. But this situation signifies no particularity of international law. A national legal system, too, may undergo perversities and aberrations of a degree which leads to recognize a right to resist, for instance against the National Socialist Regime, the Stalin Regime or that of Pol Pot. It is even imaginable that the public authorities by invoking their constitutional competencies disregard fundamental rules of law so that resistance against these decisions might be justificd. Thc dccision of whether resistance is justified or unlawful rests always with the conscience of the actor and escapes from any general judgment. Therefore, no legal system, neither national law nor international law, can postulate a right of resistance against itself, i.e. a right contra legem. A Constitution saying that resistance against itself is permitted, abolishes itself. An international system saying that resolutions of the Security Council have binding force but, nevertheless, can be disregarded when a state is not willing to comply with, is no longer a legal system. The risk deriving from the resistance against a legal order which, in the view of the resistant, is profoundly unjust, rests with the resistant. The risk of a state resisting against a resolution of the Security Council rests with this state. But a similar risk rests with the United Nations too, because they may become completely ineffective when not respecting serious arguments against their decisions. Therefore, in cases of controversial legal stand-

50

K. Doehring, "The Unilateral Enforcement of International Law by Exercising Repraisals", in: R. St. John Macdonald (ed.), Essays in Honour of Wang Tieya, 1993,235-242.


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points a legal cooperation of the opponents corresponds to the interests of the organization and its members as well5'.

IV. Conclusions 1. The question of whether the ICJ is entitled to review a resolution of the Security Council, or whether such a competence cannot be conceded, presupposes the legal possibility that the Security Council may act unlawfully. 2. The Security Council is obliged to respect the rules of international law, i.e. the limits of its own competencies under the Charter of the United Nations and the rules of general international law as well. 3. Neither can the Charter of the United Nations be qualified as a World Constitution, nor the Security Council as a World Government. The resolutions of the Security Council do not create law but they have to apply it. The concept of a national constitution under which even illegal orders must be respected when emanated from the last instance and not open to revision, cannot be transferred to the United Nations system. 4. Resolutions of the Security Council might violate rules of dispositive law and those of a peremptory nature as well. 5. Since rules of dispositive law can be abrogated through the consent of states, one may conclude that the acceptance of the Charter as a legal system represents or replaces a general consent concerning resolutions of the Security Council, abrogating dispositive rules of international law. 6. Peremptory norms of international law cannot be set aside by resolutions of the Security Council; those resolutions cannot ~ r o d u c ebinding force upon the members of the United Nations. 7. States being convinced that the Security Council disregards peremptory norms of international law and, therefore, taking the position to be not obliged to respect those resolutions, are under a duty to inform the Security Council about their scruples. They have to warn the Security Council before, unilaterally, acting against the order of a resolution. 8. The Security Council, when being informed about the reluctance of a state invoking peremptory norms of international law, has the duty to consult this state in order to obtain a reconciliation.

51

This result also corresponds with the basic concept presented by, G. Ziccardi Capaldo, "Verticalita della comunita internazionale e Nazioni Unite. Un riesame del caso Lockerbie", in: P. Picone (ed.), Interventi delle Nazioni Unite e Diritto Internazionale, 1995, 61 (72 et seq.).

Unlawful Resolutions of the S e c u r k y Council

109

9. These mutual duties originate from the obligation of both sides to keep in mind that the members of an organization and its central power as well have to act with due regard of mutual loyalty. 10. If no consent can be reached this way, n o state can be bound by resolutions viola tin^ eremptory norms of international law. The risk of P. a misinterpretation of ~nternationallaw rests with the state; the risk of an ineffectiveness of its machinery rests with the United Nations.


We the Peoples of the United Nations Henry G. Schevmers I. 11. 111. IV. V.

Introduction The Role of Governments The Management of Interests A Universal Legal Order Development towards Supranational Government 1. Technical Needs of Supranational Legislation 2 . The Need to Cope with Global Risks 3. Human Needs of Supranational Legislation VI. Experience with Non-Governmental Organs 1. Courts 2. Non-Governmental Boards 3. Secretariats 4. Semi-Independent Agencies VII. Steps for the Future 1. Parliamentary Control 2. International Criminal Law VIII. Conclusions

I. Introduction In an article for a new Yearbook of United Nations Law it may be stimulating to start at the very beginning The most appropriate topic, therefore, seems to be the first words of the preamble of the Charter of the United Nations: "We The Peoples of the United Nations ...". The Report of the Commission o n Global Governance of 1995 (the Carlsson Commission) wrote about these words: "The assertion that it was the people of the world who were creating a world body was little more than a rhetorical flourish. But the proclamation was symbolic of the hopes of the founders of the United Nations for what they were creat-

112


ingml.Thewords are more than just an introduction to the Charter. They express an ideal, the aim to create an organization of the peoples of the United Nations, which should be understood as meaning: of all peoples of the world. This desired objective is still far away, if ever it can be reached. Peoples cannot easily be organized and their representation will always be disputable. The present United Nations is not an organization of peoples, but an organization of governments of states. Sometimes these governments represent their peoples (or at least the majority of them), often they d o not. But in either case it are first and foremost the interests of state governments which will be promoted by the organization. The most important duty of governments is to serve the interests of the citizens of their states. Therefore, an organization working for the promotion of the interests of state governments will usually be beneficial to the interests of the citizens. However, the interests of the governments of the member states d o not always run parallel to the interests of the "Peoples of the United Nations ...". "We the Peoples of the United Nations ...", sometimes find the interests of the governments of the existing states, as obstacles to combining our efforts to accomplish the aims enumerated in the preamble of the Charter of the United Nations. To describe that conflict of interests and the efforts and possibilities of solving it is the aim of this article. We have two players in the field, fortunately playing most of the time together and only rarely against each other. Both players have to play an impossible part. "We the Peoples of the United Nations ...", lack a real representation of our own, we cannot even speak against the governments of the states. But these governments are also in a difficult position. They are faced with an insoluble dilemma. O n the one hand, they want to keep full control, to remain the master who can make the rules and decide what should be done and wh-at should not. O n the other hand, they find their powers being drained away. The internationalization of society makes national rules increasingly ineffective. Governments need international cooperation, they need international organizations. To be effective international organizations need power and competence, but that is what governments do not want to transfer to them; they want to keep the powers for themselves. In the present article we shall first take a look at the tasks to be performed, at the role of governments in general; then at the question of how the interests involved are managed. After that we shall pay attention -

1

The Commission on Global Governance, Our Global Netghbourhood. The Report of the Commtsston on Global Governance, 1995,226.

We the Peoples of the United Nations

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to the inevitable development towards world government in an increasing number of fields. Having thus established our field of operation, we shall look at possibilities of supranational government without a decisive role of the existing governments of states. What experience d o we have with independent international organs?Finally, we shall consider steps that may be taken in order to strengthen the position of the peoples of the United Nations and draw some conclusions.

11. The Role of Governments The main task oi governments is to order society, to make, execute and supervise rules serving the interest of the people. In the past, this task could be well performed at the level of the state. In fact, there were hardly any interests at a level above that of the state. International law was a system balancing conflicting sovereign interests of states. It is now at the turning point of having to develop into a system of constructive interaction for the common good2. This changes the role of government. An international community is developing. Many problems, such as trade, health, the keeping of the peace, employment and environment surpass the borders of states. The main reason why the United Nations, its specialized agencies and many more international organizations were created was the need of some kind of government over territory broader than that of the individual states, at least for a (as yet restricted) number of issues. Possibly, the peoples of the United Nations would have wanted to create - if only for some issues - some kind of supranational government, but not so the governments of the existing states. These governments had full powers in their states and they did not want to lose any of them. Governments want to govern; governments of states want to govern their states. There, they see their task. Often governments have interests of their own: a human desire of power, of control, often of personal wealth and satisfaction, but their task is to defend and promote the interests of the state. All governments consider themselves most able to perform that task. Almost by definition they consider supranational organs less competent to look after the interests of their states than they are themselves. Often, this may be correct, but not necessarily. A wise supranational government will delegate much to state governments and will perform only those duties that promote the interests of the larger community, which at the same time will be the long-term interests of the populations

2

Jutta BrunnPe, ""Common Interest" - Echoes from an Empty Shell", ZaoRV 49 (1989), 791 et seq., (792).

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of most states. In Europe this is called "subsidiarity". Sometimes, state governments defend and promote national interests less well than a supranational government would do. Most obviously this is the case where dictators are pursuing their personal interests and where incompetent governments neglect their duties. A n y international government would probably serve the interests of the local population better than, for example, the government of Zaire (Spring '97). But also the most sophisticated governments of highly developed states d o not always promote the interests of the people. If they did w e would have achieved full disarmament years ago. Even sophisticated governments rarely look at the long term. Their o w n interest concerns re-election in four or five years time. Achievements must be reached by then. They d o not risk great unemployment, for example in the armament industry, for the sake of a long-term interest which requires economic sacrifices in the short-term. Of course, supranational governments may also be incompetent, o r striving at their own personal interests, but we may expect that the larger international community will be more able than small individual states to prevent the coming into power of people who are unsuitable to take governmental responsibility. The wish of the governments which created the United Nations, to fully remain masters in their o w n states dominated the creation of the organization. Virtually no power was granted to the organization to make binding laws and in Article 2 para. 7 it was expressly provided that "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state o r shall require the Members to submit such matters t o settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII". O n l y in the field of peace-keeping can the organization, through the Security Council, take binding decisions.

111. The Management of Interests A t present the United Nations is still an organization of national governments unwilling to transfer real powers to the organization. "We the Peoples of the United Nations ...", have no oroan directly looking after 9 o u r common interests. The common interests of the peoples of the world are looked after by the collectivity of the governments of the states. There is one exception: the sea-bed and ocean floor and subsoil thereof are the "common heritage of mankind". They are beyond the limits of state sovereignty and under direct control of the International Sea-Bed Author-


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ity. This Authority acts on behalf of the peoples of the United Nations. It is still to be seen how successful it can be. If it works well, it may serve as a model for similar authorities for other common interests of mankind. For the time being, however, the vast majority of all interests are defended and promoted by the national governments. When all national interests run parallel the aggregate of the national interests will be about equivalent to the common interest3, but rarely are all national interests the same. When national interests differ the management of the common interest by the national governments meets with at least two objections. a) First, there is the different size of the member states, which may make it unfair that all states have equal voting rights, so that the interests of a large population can be outvoted by interests of a few small populations. The equality of the votes of all governments in the United Nations is not in all cases wrong. O n organizational matters, such as dates of meetings and election of judges, the opinion of the government of a small state has no less value than that of a large one. Even in budgetary matters there is no reason to differentiate. It is true that some states contribute more than others, but that does not mean that governments of small states will lightheartedly vote for higher expenditure. The budget of the United Nations is based on capacity to pay, which means that the relative burden for each state is the same. The obligation to pay US$ 1,000 is as much a sacrifice for Barbados as an obligation to pay US$ 2,500,000 is for the United States. But, when international legislation is to be made, the voice of one million people should count more than the voice of one hundred. So far, the United Nations has coped with this problem by not making any legislation. Only non-binding recommendations are adopted or conventions which become binding only for the states which expressly accept them. b) Another reason why the common interest of the peoples of the United Nations is not best defended by the national governments stems from the fact that not only in quantity, but also in substance national interests differ. The population of Iceland has an enormous interest in fishing, but may be outvoted in a fishing problem by the governments of two landlocked states. The Icelandic population has virtually no interest in the production of oil or wood. Nonetheless its government, on those subjects, has avote equal to that of the governments of the population with the largest production.

3

Brunnie uses the expression "coinciding interests" for this situation, which must be carefully distinguished from "common interests", see above note 2 , a t 793.

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The above-mentioned problems arc: hard to overcome. Systems of weighted voting have been proposed but none of them is generally acceptable. The most objective one seems to be on the size of the population but would it be fair to give the Chinese representation many more votes than the representations of the United Kingdom, France and Japan on issues like air navigation, world trade or shipping where the interest of the Chinese population is rather small, notwithstanding its large size? Weighted voting has been successful in organizations charged with promoting only one particular interest. Then the votes can be weighed against that interest as in the case of monetary organizations, such as the IMF, the IBRD and the Regional Development Banks. We must conclude that the way in which the peoples of the United Nations are represented is far from ideal. The governments of the existing states are not their best representatives, but there are no better ones and we have to accept that the population of the world will be represented by the governments of the states for a long time to come.

IV. A Universal Legal Order Traditionally, public international law was not only a legal order regulating the relations between states, it was also created solely by the states. The main source of international law is the treaty. N e w rules must be codified in treaties and bind only those states which expressly accept them. The international community lacks a legislator empowered to make universal rules. A formal filling of this lacuna is almost impossible. Never will all state governments of the world officially agree to empower a supranational organ to make universally binding laws. Therefore, sources of international law other than treaties must be developed for those governmental tasks which are of a global character, such as the protection of the environment and the prevention of the depletion of the ozone layer and of deforestation. General principles of law, repeated resolutions of the U N , resolutions of other organizations and of special conferences, as well as consistent writings by experts may help to build jus cogens, the only rules of law which are widely accepted as universally binding.

V. Development towards Supranational Government National governments d o not want to transfer their powers to supranational bodies, but sometimes they are forced to d o so. In that respect the European Union offers a clear example. Even the government of the Unit-


117

ed Kmgdom, the most reluctant t o sacrifice any powers, has been compelled to delegate authority i o the Union. Economic and other forces may compel operation at a scale larger than the state. In the United Nations developments are slower and great divergencies bar supranationality in many fields, but still w e can identify a gradual development towards supranational legislation, that is legislation for the peoples of the United Nations. Supranational rules are imposed by three needs which governments cannot ignore, a technical need, a need to cope with global risks and a human need.

1. Technical Needs of Supranational Legislation Increasingly, society is influenced by international relarions. Domestic rules become insufficient. In many specific fields international cooperation has become inevitable. Ilealth is just one example. Diseases d o not stop at borders. N o r in many cases, d o unsafe foodstuffs. A n y international cooperation between the responsibIe national departments will be beneficial to the common aim. The same is true for most technical cooperation. Rules for international sea and air navigation cannot be made by individual state governments. Neither can the rules for the international mail. I n these technical fields international rules are needed as well as international organizations t o draft them and to coordinate if not t o supervise - their application. W h e n the need arose, technical organizations have been created. Some of them are old, e.g. the UPU, others are of a more recent date, such as the World Tourism Organization, but they are all in fact, run by experts. Officially, the specialized agencies of the United Nations are governmental organizations and occasionally government policy is imposed upon them (see below, VI.4) but usually authority is delegated to governmental departments, o r even t o departments operating independently from the governments. The most fruitful international cooperation is that of people w h o all strive for the same aim: good and effective technical rules. Though officially organizations of governments, most specialized agencies have developed some degree of independence of the governments. In fact, the technical people run the organization. Often the governments exert only little influence. A good example is the U P U . Technical experts make rulcs on international mail. According to international law such rules are binding only after ratification b y the states, but the postmasters d o not bother about international law. Dutifully, they require ratification, but, at the same rime, they agree to apply the rules from a particular date and, ignoring whether there are any ratifications, they apply the rules from that date. States are considered bound, even if they did not ratify (and many of them never ratify at all).

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hIax Planck Yearbook of United Nations Law

For all practicai purposes the Congress of UPU is a supranational lawmaking body, though in the restricted field of mail only. Beyond doubt it serves the interests of the peoples of the United Nations and it serves them well.

2. The Need to Cope with Global Risks Most technical needs of supranational legislation can be met by a close cooperation between all interested states. States that d o not want to participate can stay aloof. The cooperation can be initiated by a restricted number of states. Others can join later. This is different in the cases where the world is confronted with a global risk such as a depletion of the ozone layer, deforestation o r pollution of the environment. There, the cooperation of all states is required. Since, for some time to come, it is unlikely that all states will accept a universal legislator in this field, we will have to start with some more modest steps, such as the creation of a watch-dog commission or an ombudsman for the protection of the rights of future generations4.

3. Human Needs of Supranational Legislation Gradually, the governments in the organization assumed an increasing responsibility for the peoples of the United Nations. Traditionally, the international community had n o contact with individuals. All control over people was through the national governments. In the war crime tribunals of Nuremberg and Tokyo the victorious states recognized some direct link between individuals and the international community. Over the years the United Nations has strengthened this link. Fundamental human rights have increasingly become a matter for the organization. In the United Nations supranational rules in the field of human rights slowly but steadily develop. Two examples may illustrate how the organization protects and promotes the interests of the peoples of the United Nations in this field. (a) When one of these peoples badly suffered from the South African policy of aparthetd the organization took a brave step by establishing that this policy, though legally within the domestic jurisdiction of South Africa, was a threat to peace and could therefore be countered by binding deci-

4

As suggested by E. Brown K'eiss. "Intergenerational Equity: Toward an International Legal Framen-ork", in. N. Chourci (ed.), Global Accord, 1993, 333 et seq., (348).


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sions of the Securi~yCouncil. In a series of resolutions the Security Council established and confirmed an arms embargo against South Africa including the supply of vehicles and equipment for the use of armed forces5. In its resolution of 5 November 1976 the General Assembly condemned other cooperation with the South African government of that time6. In later resolutions this condemnation was expanded and refined to a general economic boycott7. (b) Promoting and encouraging respect for human rights is one of the aims of the organization. Still, in the early years there was no doubt that the way governments treated their citizens was an internal matter of each state. When the General Assembly, or any other organ of the United Nations, criticized a state for the way it treated its inhabitants, the state would reply that Article 2 para. 7 prohibited the organization to discuss such questions. The relationship between government and inhabitants was an internal matter of each state, beyond the reach of the organization. Gradually, this changed. By means of declarations, conventions, resolutions and through Special Rapporteurs the United Nations became increasingly involved with protection of human rights, not only at the international level, but also inside its member states. Finally, when very serious infringements of h u n ~ a nrights occurred in Bosnia and Rwanda, the organization intervened. It may be true that these first interventions were not very effective, but still their occurrence is of major importance as asign that rhe organization rakes the interest of the peoples of the United Nations to heart. It did not stop at the border of the domestic jurisdiction of states. Still, it is not more than a beginning. In other cases the United Nations did not have the courage to protect the interests of populations against their rulers. When in 1990 Iraq had committed aggression against Kuwait and the United Nations had come to the rescue of the victim-state, the aggressor was defeated. Without much difficulty the United Nations could then have established another government in Iraq, but it did not, considering that it was beyond its competence to do so. Already at that time it was clear that a change of government in Iraq would be to the benefit of the people. Why did the United Nations not want to protect the Iraqi people? Of course, the lack of a proper legal basis played an important role, but also the fear of precedent. The United Nations are an organization 5

6 7

S/RES/282 (1970)of23 July 1970,S/RES/418 (1977) of 4November 1977, S/RES/558 (1984) of 13 December 1984 and S/RES/591 (1986) of 28 November 1986. A/RES/31/7 of 5 November 1976. See e.g. A/RES/46/79 of 13 December 1991, A/RES/47/116 of 18 December 1992 and for the termination of the sanctions A/RES/48/1 of 8 October 1993.


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of governments and governments d o not like to create a rule permitting the organization to interfere with governments. It remains difficult to overcome this barrier.

VI. Experience with Non-Governmental Organs 1. Courts There is some experience with supranational organs independent from governments. The clearest examples are the supranational courts. O n the one hand, they show that decisions can be taken above the level of the states and that these decisions may help in establishing supranational rules. O n the other hand, there are clear limits. First of all, the influence of courts depends on their authority. In some communities courts have great authority which entails a general willingness to accept and execute their judgments. In other communities one tends to see judges as individuals with some technical skills which may exert some influence in a narrow field of law but whose judgments would not be given any general effect without the involvement of political organs (that is the state governments). Because of widely different views the influence of the ICJ is limited. Because of a traditionally strong position of the judiciary in Europe the influence of the Court of Justice of the European Communities and also, in a more restricted field, that of the European Court of H u m a n Rights is enormous8. However this may be, courts must always have a limited task. They may settle disputes and interpret legislation, which means that they can extend o r limit the effect of legislation to a considerable degree, but they should not become governments. Even though the European C o u r t of Justice established the Community legal order as a separate, independent legal system, even though the European Court of H u m a n Rights succeeded in having several national laws changed, even though both courts helped to shape Europe and to develop common European rules of law, they could not and should not govern Europe in any way9.

8

9

See thereon, my contribution to the Liber Amicorum for Rolv Ryssdal, which was to appear in 1995, but has been postponed several times. On the influence of the Court of Justice, in cooperation with the domestic courts of the member states, see R.Lecourt, L'Europe des Juges, 1979.

We t h e Peoples of the United Nations

2. N o n - G o v e r n m e n t a l B o a r d s In the early years of the United Nations system several executive boards . . were created and composed not of government representatives, but of experts in their individual capacity. Thus one wanted to avoid that national interests would dominate the policy of the organization. Any state that was not a member of the organ concerned and the peoples of the United Nations would have greater confidence in independent experts than in representatives of states other than their own. Also, individual experts would strive solely for the interest of the organization, whilst government representatives would be guided by general political considerations and national interests. Another advantage is that amongst the specialists in the ficld, an organ composed of famous experts will have greater authority than an organ of government officials. Furthermore, a greater variety of specialization can be achieved when the appointing authority can freely elect persons in their individual capacity. If the board has different tasks then an expert for each of these tasks can Lc clcctcd. The totality of the board will then have more knowledge than a board of government officials who, more likely than not, will each have about the same experience. Whatever the advantages were, later experience moved the governments concerned to prefer boards of government representatives. FAO and U N E S C O decided (respectively in 1947 and in 1954) to transform their boards of individual experts into boards of government representatives. The most important argument for doing so was the need for consistency. Individual experts may adopt projects which the states are unwilling to finance. They could also adopt projects which conflict with activities in other international organizations. Government representatives will receive instructions which take account of government policy in other organs. As they will be backed by their governments, government representatives may have greater authority amongst other governments than individual experts. Their decisions may be better implemented. This experience demonstrates that composing international organs of independent experts will not necessarily lead to a better representation of the "Peoples of the United Nations". As long as the power of execution and the budget strings are in the hands of the governments, it may be necessary to also charge government representatives with decision-making.

3. Secretariats In the early years of international organizations one of the member states undertook to perform the administrative duties of the organization. Since

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the creation of the League of Nations international organizations have secretariats of their own and strive at composing their secretariats of independent staff. Though in practice some staff members take instructions from their governments, most staff members will consider themselves as representatives of the peoples of the United Nations and will strive to promote the interests of all. Though they usually have no decisive influence on decision-making, the international secretariats are an important centre for the creation and supervision of international rules. In practice, they largely manage the little supranational legislation which exists. International legislation may be improved by enlarging the role of the secretariats of international organizations. This should be combined with trying to attract the most competent and the most independent people. To gain confidence of all regions of the world equitable geographical distribution of secretariat posts must play a role. Article 101 of the Charter indicates, however, that it should be a secondary role, not a principal aim, and certainly not a division of posts between regions.

4. Semi-Independent Agencies After World War 11, the specialized agencies of the United Nations were created as separate international organizations, unlike in the League of Nations where the aim was to incorporate all universal agencies in the League, an aim which was only partly successful (for e.g. health, culture, education). O n e of the reasons for keeping the agencies separate from the United Nations was the wish to keep politics away from them, which meant in practice that the technical experts should have the power of decision, rather than the general governments. In many respects this aim was reached but the hottest political issues of the time could not be avoided. Whether this was a gain or a loss depends on how one looks at it. Governments clearly considered their influence beneficial, independent experts may judge differently. Two examples may clarify the issue. (a) When the W M O was an organization of only heads of meteorological services, it was the interest of meteorology alone that counted. When W M O had become a specialized agency in 1951, political arguments entered into the field. The President of W M O originally had the power to invite any director of a meteorological service to the sessions of the World Meteorological Congress. In 1963 he intended to invite the director of the meteorological service of the then communist German Democratic Republic, because the data of that meteorological service were of essential importance for the weather forecasts in Europe. But the politicians intervened. According to them, any form of recognition of the German Democratic Republic was objectionable. N o one from that "so-called State"


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could be invited. Subsequently, this specific power of the President of W M O was curtailed by the 1963 Congress. (L) Also in the U P U political issues entered into the organization. Originally, it were the postmasters who ran the organization completely, but when it had become a specialized agency n 1948 it was subjected to policy considerations. Because of these considerations South Africa was excluded from participation in U P U meetings in 1974 and, subsequently in 1979, was banned from the organization, clearly against the wish of most postmasters and against the aim of the organization to promote international mail. The political aim of the expulsion, to isolate South Africa and to block their postal connections, was largely sabotaged by UPU which continued to handle South African mail as if South Africa were still a member. In 1981 South Africa acceded again, which as a member of the United Nations it was entitled to do. It may be difficult to draw conclusions from the above examples. The isolation of the German Democratic Republic and of South Africa may have been in the interest of the peoples of the United Nations but these interests are difficult to define. It is clear that the interests for which the organizations were established suffered. It is also clear that in the short term the interests of the peoples of the territories concerned suffered. Also the black population of South Africa would have badly suffered if their letters, reports on their situation and newspapers could no longer be sent abroad and if no foreign mail could be received. It may be doubted whether a proper evaluation of the interests involved was ever made. More likely the political issues of the time, the preponderant wishes to isolate detestable governments, re vented any evaluation of the interests of the peoples. It is an element of politics that governments focus their attention on a limited number of topics. The human mind is unable to oversee everything Certain topics will then usually get priority irrespective of the question whether they actually merit it.

VII. Steps for the Future Most evil in the world, like most good, is caused by people and often by people with government powers. Often these people are uncontrolled. As long as they are not answerable to others, they can act as they please. In thc international field they block accountability by invoking state immunity and the rule of international law that other states and international bodies are not permitted to interfere in the internal matters of their states, i.e.: to interfere with what these people are pleased to do within their states and with respect to their populations.

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The world would be safe if we were able to educate all people in such a way that those w h o end u p with government power would act only in a proper way and beneficially to the population. Since this seems to be a rather far-fetched ideal wc must look for some system of control; people with government power must be made accountable to others. Of course, these others should ideally be wise and well informed, but that is not the most essential. T h e simple fact of accountability will often be sufficient to prevent abuses, provided that the accountability is combined with power. Simple reporting to others may be of some influence, i t is insufficient if no further effect is given to the reports. Some kind of sanctions must be possible t o impose improvement. H o w can w e make governmental people, including heads of state, accountable f o r their acts, not only for their acts in the international scene, but also for their acts with respect t o their own populations? Two methods of control are to be considered.

1. Parliamentary Control In some states, persons with governmental power are accountable to the population, through elections. The accountability is enforced by the election system. Persons w h o misbehaved may not be reelected. They lose their power. This accountability will usually prevent excessive behaviour. It is one of the greatest values of our modern Western democrac): The simple fact that all persons, even persons with government power, are answerable to others offcrs the strongest protection against serious infringements of the rights of the people. Usually it works, but not always. Clever propaganda may misguide the population and may blur abuses. Throughout the middle of the thirties the majority of the German population supported Hitler, dazzled by his successes in fighting unemployment and inflation. Always, the population must remain vigilant and always it must be protected against false propaganda. For that reason full freedom of the press is an equally essential condition for our free democracy. O n e way t o a better world would be the creation of Western type democracies throughout the world. Some Western states strive at this aim. O n e may doubt, however, whether this can work. The Western democratic system is founded upon a certain level of development of the population and o n the presumption that the population supports certain moral values, such as fundamental rights for each individual and equality for all. A population which wants to exterminate a minority, which supports a government for the sole reason that it stems from its own tribe, or which is s o underdeveloped that it cannot be reached by the opposition press,

We the Peoples of the United Nations will not sufficiently supervise persons in government to obtain sufficient accountability. Furthermore, even if Western type democracies would prevent abuse of government power, it may not be possible to establish such democracies in all parts of the world. Other ways may be needed.

2. International Criminal Law Accountability can also be to the international community. For a long time to come this community will be less critical than the domestic population. It will probably not easily condemn persons in government because of a high unemployment rate or because of taxation or inefficiency. But modern communications enable the international community to notice quite well the most serious infringements of the fundamental rights of the peoples of the United Nations. In the beginning of this century hundreds of thousands of Armenians were killed. Some faint protests were heard but no guilty persons were punished. In a speech to his generals on 22 August 1939 Hitler said: "Wer redet heute noch von der V e r n i c h t ~ nder ~ Armenier?"lo. In other words: You can safely kill an entire -population; after 20 years nobody will bother. . Had the killers of the Armenians been punished, Hitler woLld probably still have wanted to annihilate the Jews, but he would have had less cooperation from those who did the actual killing. Slowly, but gradually the Unitcd Nations makes persons with governmental power answcrablc to the international community. In resolutions of the General Assembly the worst infringements of human rights are criticized. Special Rapporteurs have been appointed to verify situations, resolutions are adopted, reports are written. This may be a weak form of supervision, but it is a kind of supervision which can be further expanded. It is a first step. National governments are supervised. The bad boys are identified. This first step is not enough, however. Though nobody will like to be identified as a violator of the rights of the people under his authority, the identification alone will not change the situation nor will it deter from further infringements. Some kind of sanction is needed. Of vital importance is the development of an international criminal court. This court will eventually offer the possibility to punish those who, in abuse of their governmental powers, infringe the rights of the peoples

10

,

"Who after all is today speaking about the distruction of the Armenians?" Quoted by V. N . Dadrian, T h e History of the Armentan Genocide. Ethnic Conflict from the Balkans to Anatolld to the Caucasus, 1995,258-260; P. Michielsen in NRC Handelsblad of 30 August 1996, 38.

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for whom they are responsible. The establishment of that court will mark the fact that the international community takes responsibility for supervising the behaviour of persons in government. The possibility of sanctions may have a deterrent effect. The existence of a criminal court will be an important first step to international intervention against crimes against the peoples of the United Nations. Much resistance must be overcome. International decis~on-makingis not by the peoples of the United Nations who, most likely, support the creation of an international criminal court helping to protect them against excessive governmental acts. No, decisionmaking is by the governments themselves, by those who risk to be censured and, finally, to be tried by the international criminal court. In order to obtain any success we must be extremely careful. Only small steps can be taken and they must be taken slowly, allowing time for national communities to accept them. In practice, steps towards an international criminal court can be taken only after grave violations of human rights. Only when the world is shocked by severe crimes is it prepared to react. In 1947 the General Assembly of the U N invited the ILC to study international crimes". In 1948 the General Assembly of the United Nations invited the ILC: "to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international convention^"'^. In 1950 the ILC adopted the first Principles of crimes under international law, among which inhuman acts against any civilian population were classified as crimes against humanityI3. N o sufficient support could be found for any kind of international criminal court. After the 1950's the project was more or less given UP. Finally, a beginning of an international criminal court was brought about by the atrocities in Yugoslavia and Rwanda. The effectiveness and the possibilities to expand into a real international criminal court still remain to be seen. But the beginning is there and it may finally lead to the possibility of sanctioning persons committing crimes against the peoples of the United Nations. What crimes are to be covered? Again, we must be careful and slow. Proposals for too broad a field of action will provoke reluctance. Governments will resist any criminal court which may finally decide against them. I think, the United Nations overplayed her hand when she decided that

11

12

13

A/RES/177 (11) of 21 November 1947. A/RES/260 (111) B of 9 December 1948. Doc. A/1316 Report of the ILC covering its 2nd Session, 5 June-29 July 1950, ILCYB 1950, Vol.11, 364 et seq.


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apartheid was an international crime for which the authors should be held internationally punishable. However repugnant the policy may have been, we must take account of the fact that it was not fully recognized as an international crime at the time the legislation was adopted. During most of the twentieth century racial discrimination was accepted under international law. Too easy a classification of acts as international crimes will impede the development of international criminal jurisdiction. Not only should the acts be clearly identifiable as criminal by those who committed them, but also prosecution and punishment should be reasonably possible. For the time being, competence of an international criminal court will have to be limited to trying persons who committed or ordered genocide, ethnical cleansing, massive killings or torture. Only much later, when the authority of the court has been established, will it be possible to expand its tasks. There is a long way to go. Some serious crimes against humanity, such as the production of land mines, have not even been recognized as crimes yet. And that must unequivocally be done first. An established rule of criminal law, codified in Article 15 of the International Covenant on Civil and Political Rights, provides that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed. Criminal law must be clear. It is unacceptable to hold a person criminally responsible unless he could reasonably be able to know that what he did was a criminal offence. Why should the supervision of national governments be attributed to an international criminal court? Most important is the existence of supervision. The possibility to control governments will most likely limit, or even exclude, the most atrocious infringements of the rights of the peoples of the United Nations. The advantage of a court over any governmental body is the independence, the smaller likelihood that the persons who decide will consider that they themselves may ever come under similar criticism. Governmental organs are too easily influenced by the political considerations of the day and should, therefore, be prosecutors rather than judges. The role of the national governments in fighting international crime will be great anyway. They decide the policy of organizations such as the United Nations, they will have to provide the means for the execution of international court judgments for a long time to come. By providing or withholding the necessary financial means they may make the present international tribunal a success or a failure. We can but hope that the governments will recognize their responsibility towards the peoples of the United Nations and increase their efforts to make the Yugoslavia and Rwanda tribunals successful.


VIII. Conclusions An organization of the peoples of the United Nations without a dominant role of the governments of the states of this world is inconceivable. Inevitably, the state governments will remain the principal actors in any form of world government. We must, however, take account of the fact that not all governments are worth playing this role and that there are issues which can be handled better by others rather than the state governments. It is important, therefore, that independent international institutions, and in particular international courts, are established who can truly defend the interests of the peoples of the United Nations, in case they may differ from the interests of state governments. Internationalization of an increasing number of issues will force state governments to transfer powcrs to international organizations. For any effective exercise of such powers unanimity of all participating governments will gradually become impossible. Either power should be exerted independently of the governments or some form of decision-making by majority should be accepted. In both cases powers may be abused, vital interests of states o r of individuals may be ignored. This will be another argument for creating an international court competent to verify whether the conditions under which powers have been transferred have been fulfilled. In the - fortunately rather rare - cases where governments ignore and infringe the interests of the peoples for which they are responsible, the international community must exert control and must, in some way, retaliate to prevent repetition and to deter others. A successful international criminal court is one of the greatest needs of the near future.

Security Council Control over Regional Action Christian Walter A. Possibilities of Regional Action - An Overview B. The Meaning of "Enforcement Action" in Article 53 Para. 1 I. Military Sanctions as Enforcement Action 11. Non-Military Sanctions as Enforcement Action? 1. The San Francisco Discussions 2. The Use of the Term "Enforcement Action" or "Action" in the Charter 3. Functions of Decisions by the Security Council under Chapter V11 of the Charter 4. Consequences for the Interpretation of Article 53 5. Recent State Practice 111. Enforcement Action in Civil War Situations 1. Request by the Government for Unilateral Intervention 2. Consequences for Intervention by Regional Organizations on Request by the Government IV. Humanitarian Intervention as Enforcement Action under Article 53? 1. Illegality of Unilateral Humanitarian Intervention 2. Collective Humanitarian Intervention by the United Nations 3. Collective Humanitarian Intervention by Regional Organizations C. The Question of Control over Regional Action I. Control over Regional Peace-Keeping 1 . The Distinction between Classical Peace-Keeping and Robust Peace-Keeping 2. Consequences for the Application of Article 53 Para. 1 to Regional Peace-Keeping Missions 11. Control over Regional Military Enforcement Action 1. Prior and Explicit Authorization 2. Authorization Ex-Post 3. Implicit Authorization 4. General Authorization 5. Control on the Field 111. Control over Regional Non-Military Measures D. Conclusion

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In recent years the participation of regional organizations1 in the maintenance of international peacc and security has been increasing considerably. The activities of the Economic Community of West African States (ECOWAS)2 in Liberia, of the N o r t h Atlantic Treaty Organization (NATO)' and the Western European Union (WEU)4 in former Yugoslavia as well as of the Organization of American States (OAS)5 in Haiti are examples. To some extent this development is the result of the precarious financial situation of the United Nations. The financial aspect is exemplified by the fact that recent Security Council authorizations for action by member states acting either nationally o r through regional organizations were given "on the understanding that the costs of implementing the offer will be borne by the Member States concernedn6.More important than the financial aspect, however, is the fact that important United Nations missions failed to achieve their tasks. The replacement of the United Nations protection force ( U N P R O F O R ) in Bosnia-Herzegovina by a multinational implementation force (IFOR), which is mainly composed of N A T O troops7, bears a clear political message towards regionalization. A political reason for inquiring into the relationship between United Nations and regional organizations may be seen in the Security Council's hesitation when it dealt with the African civil wars in Burundi, Rwanda

1

2 3 4

5

6

7

In the following context "regional organizations" is used for the term "regional arrangements and agencies" according to Article 52 para.1 of the Charter. UNTS Vo1.1010 No.14843; ILM 14 (1975), 1200. UNTS Vo1.34 No. 541; UNTS Vo1.126 No.339. UNTS V01.19 NO. 304; UNTS V01.211 N0.186. The Interamerican System is composed of the Charter of the Organization of American States, UNTS Vo1.119 No. 1609; (amended by the Protocol of Buenos Aires of 27 February 1967, I L M 6 (1967), 310, the Protocol of Cartagena de Indias of 26 February 1986, I L M 25 (1986), 529, the Protocol of Washington of 14 December 1992, I L M 33 (1994), 1005 and the Protocol of Managua of 10 June 1993, I L M 33 (1994), 1009), the Interamerican Treaty on Reciprocal Assistance of 2 September 1947, UNTS Vo1.21 No. 324, (amended by the Protocol of San JosC of 26 July 1975, ILM 14 (1975), 1122) and the American Treaty on Peaceful Settlement of Disputes of 30 April 1948, UNTS Vo1.30 No.449. S/RES/929 (1994) of 22 June 1994, concerning Rwanda and S/RES/940 (1994) of 31 July 1994 concerning Haiti; see also paragraph 9 of S/RES/ 1080 (1996) of 15 November 1996 concerning Eastern Zaire. See the Reports to the Security Council on IFOR Operations submitted by the Secretary-General of NATO, for instance Doc. S/1996/696, Appendix.

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and Zaire from 1994 onwards. The dilemma is well illustrated by the delayed decisions on an intervention force for Zaire in autumn 1996. It took the Council more than two weeks after pressure for an intervention mounted from international humanitarian organizations and European officials8until it decided on a multinational humanitarian relief force9.The decisions o n the organization of the force took another ten dayslO.However, the force was not set up, since - except for France - possible contributors considered the situation of the refugees to have ameliorated considerably. O n e may therefore ask under which conditions rapid regional mechanisms may be set up in order to fill the vacuum created on the universal level and thus avoid disastrous consequences of Security Council inaction in civil war situations.

A. Possibilities of Regional Action - An Overview In Chapter VIII of the Charter its founding fathers tried t o integrate regional activities for the maintenance of international peace and security into the universal system of the United Nations. In doing so they intended to avoid some defaults of the system of the League of Nations. In particular, Article 52 paras. 2 to 4 and Article 53 para.1" were meant to define the respective competences of the United Nations and of regional organizations. Nevertheless, the scopeof application of Chapter VIII of the Charter was to be rather broad. The delegates in San Francisco used the comprehensive formula "regional arrangements or agencies" in Article 52 para.1 in order to make the provisions applicable to a large number of regional organizations12. Thus, neither a specific internal structure nor a legally binding treaty under public international law are required. Organizations which are only based on political commitments, like the OSCE, are regional organizations in the sense of Chapter V111 of the Charter".

Calls Mount for Zaire Intervention, International Herald Tribune, Wednesday 30 October 1996,l. S/RES/ 1080 (1996) of 15 November 1996. Military Leaders Agree on Options for a Zaire Force, International Herald Tribune, Monday, 25 November 1996,4. Articles mentioned refer to the Charter of the United Nations if not stated otherwise. U N C I O VoLXII, 701 and 858. This view is largely shared in legal literature, see J.A. Frowein, "Regionale Sicherheits~~steme und nationales Rechc", Sitzungsbericht Q zum 60. Deutschen Juristentag, 23 (24 et seq.); D.J. Scheffer, "Commentary on Collective Security", in: L.F. Damrosch/D.J. Scheffer (eds.), Law and

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Organizations like NATO which were designed to combat aggression from outside the organization may also be considered a regional organization if and when they contribute t o the maintenance of international peace and security b y means other than collective self-defence14. N A T O has demonstrated in Bosnia and Herzegovina that organizations of collective self-defence may support the military enforcement of United Nation's non-military sanctions and may contribute to the protection of the civilian population15. The recent practice of regional and universal interventions into internal conflicts gives ample material to inquire into the relationship between the United Nations and regional organizations when the maintenance of international peace and security in civil war situations is concerned. T h e question of whether and to what extent Security Council control over regional organizations was necessary has been a matter of interest for international lawyers since 194516. In most regional interventions the

Force in the New International Order, 1991, 101 (107 et seq). This view is confirmed by the practice of the OSCE and United Nations organs. The Security Council mentioned the (then) CSCE in connection with Chapter V111 of the Charter in its resolutions S/RES/743 (1992) of 21 February 1992 and S/RES/795 (1992) of 11 December 1992. In 1993 the General Assembly ganted observer status to the OSCE starting with the 49th General Assembly in 1994 (A/RES/48/5 of 13 October 1993), a practice which has been applied to other regional organizations (see A/RES/ 253 (111) of 16 October 1948, concerning the OAS; A/RES/ 477 (V) of 1 November 1950 concerning the League of Arab States and A/RES/ 201 1 (XX) of 11 October 1965 concerning the OAU). Furthermore, the OSCE declared itself to be a regional organization in the Helsinki Document of 1992 (para. 25 of the Helsinki Summit Declaration, reprinted in: A. Bloed (ed.), The Challenges of Change. The Helsinki Summit of the CSCE and its Aftermath, 1994, 385 (390)). The often mentioned problem of different reporting obligations under Article 51 and Article 54 of the Charter may easily be solved by applying reporting obligations under Article 51 only to measures related to collective self-defence. All other contributions to regional peace and security by regional organizations of collective self-defence have to be reported according to Article 54 of the Charter, see in detail C. Walter, Vereinte Nationen und Regionalorganzsationen, 1996,47 et seq. and 347 et seq. This holds true even though the concept of safe areas did not prove to be a successful means of protecting civilian population. The reasons of failure may rather be found in Bosnian Serb blackmailing of the United Nations (by kidnapping United Nations blue-helmets) than in lack of military effectiveness on the part of NATO. The question was intensively dealt with during the cold war, especially with respect to the OAS, see M. Akehurst, "Enforcement Action by


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question was not raised by any of the parties to the conflict. Nevertheless, the way regional action was dealt with in the Security Council may cast some light upon the question of control. Before this question is addressed in more detail a short review of the possibilities for regional action under Chapter VIII of the Charter may be useful t o highlight the problematic issues. Regional organizations factually have several means to intervene in a civil war. ~ p a r ;from methods of peaceful settlement of disputes, which shall not be discussed here17, non-military sanctions and military interventions are possible reactions. Non-military sanctions may include an arms embargo o r economic sanctions. O n e of the measures taken by the ECOWASi8 was the imposition of an arms embargo against the National Patriotic Front of Liberia (NPFL), which is one of the opposition groups fighting against the government of the country19. When the Government of President Aristide in Haiti was overthrown in a military coup in 1991 the O A S decided to impose economic sanctions against the new military regime2'. These sanctions included the freezing of Haitian national funds and a trade embargo concerning all goods not destined to meet humanitarian needs. Apart from such measures not involving the use of military force, regional organizations are capable of intervention by sending troops in order to redress the consequences of civil wars. Such military action is possible in the form of a peace-keeping force, o r a regional military intervention against the will of the parties t o the civil war may also be envisaged. Regional peace-keeping forces have a tradition which dates back t o 1961. F r o m that year to 1963 the Arab League Security Forces were stationed in Kuwait2'. From 1976 to 1982 the Arab Security Force (later renamed in Arab Deterrent Force) executed apeace-keeping mission in Lebanon22and

Regional Agencies, with Special Reference to the Organization of American States", BYIL 42 (1967), 175 et seq. See in this respect, Walter, see note 14, 141 e t seq. See note 2. Doc. S12481 1 of 16 November 1992, Annex I; for general information on the legal issues arising from the Liberian civil war, see G. Nolte, "Restoring Peace by Regional Action: International Legal Aspects of the Liberian Conflict", ZaoRV 53 (1993), 603 et seq. Doc. Al461550-S123127 of 9 October 1991, Annex. For details, see H. Hassouna, The League of Arab States and Regional Disputes, 1975, 102 et seq. For details, see J.P. Isselk, "The Arab Deterrent Force in Lebanon", in: A. Cassese (ed.), The Cwwent Regulation of the Use ofForce, 1986, 179

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in 1982 the O A U sent a peace-keeping force into the civil war in Chad23. An example of regional military intervention may be seen in the sending of a ECOWAS cease-fire monitoring group (ECOMOG) into the Liberian civil war. ECOWAS received an invitation to intervene by President Doe but none of the other parties to the conflict consented. It is not quite clear whether such an intervention may be ranged within the scope of peace-keeping24. The participation of N A T O forces in the protection of the safe areas established by Security Council resolutions 819 (1993) and 824 (1993) has demonstrated that regional military use of force is a means of reaction to civil wars. It is the purpose of this article to inquire into the legal foundations for these reactions by regional organizations. To what extent is Security Council control over regional action necessary and how is it ensured? The starting point for the analysis must be Article 53. This provision requires Security Council authorization for "enforcement action". Hence, the first item to be considered is which regional measures can be considered "enforcement action".

B. The Meaning of "Enforcement Action" in Article 53 Para. 1 I. Military Sanctions as Enforcement Action It is generally admitted that regional military intervention requires Security Council a u t h ~ r i z a t i o nIt~ ~should . be noted, however, that during the Cuban missile crisis in 1962 American authors advanced an interpretation of Article 53 which considered as enforcement actionmeasures which were the result of mandatory decisions of the respective regional ~ r g a n i z a t i o n ~ ~ .

(203 et seq.). See G.J. Naldi, "Peace-keeping Attempts by the Organization of African Unity", ICLQ 34 (1985), 593. See the analysis of Nolte, see note 19,603 (626 et seq.). G. Ress, "On Article 53", 722 et seq., Mn. 16 and 19, in: B. Simma (ed.), Charter of the United Nations. A Commentary, 1994; R. Wolfrum, "Der Beitrag regionaler Abmachungen zur Friedenssicherung: Moglichkeiten und Grenzen", ZaoRV53 (1993), 576, (580 et seq.); see also M. Akehurst, "Enforcement Action by Regional Agencies", BYIL 42 (1967), 175, (194 et seq.), where only the question of non-military sanctions is discussed, while the author argues on the assumption that military action requires authorization. See L. C. Meeker, "Defensive Quarantine and the Law", AJIL 57 (1963), 515 (520 et seq.) and by A. Chayes, "Law and the Quarantine of Cuba",


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According to them all regionai measures which were not mandatory for the members of the regional organizatian did not need Security Council authorization. These authors stress the mandatorv character of Security Council decisions under Chapter V11 of the c h a r i e r as decisive criterion t o determine enforcement action2'. In this respect they refer to the following passage of the Advisory Opinion of the ICJ in the Certain Expenses Case: "The Court considers that the kind of action referred to in Article 11, paragraph 2, is coercive o r enforcement action. [...l The word "action" must mean such action as is solely within the province of the Security Council. It cannot refer to recommendations which the Security C o u n cil might make, as for instance under Article 38 because the General Assembly under Article 11 has a comparable power. The "action" which is solely within the province of the Security Council is that, which is indicated by the title of Chapter V11 of the Charter, namely "Action with respect to threats to the peace, breaches of the peace, and acts of aggression"28. It is argued that the Court in its Advisory Opinion had refused to qualify recommendations by the General Assembly or the Security Council as enforcement action since these recommendations were not mandatory for the member states29. The argument b y the Court concerning Article 11 para. 2, is then applied to the interpretation of the term "enforcement action" in Article 53. The result is that only mandatory decisions can be considered t o constitute "enforcement action" under Article 53 para. 1. However, this transfer of the Court's arguments concerning Article 11 para. 2, is not possible since Article 53 differs considerably from Article 11 para. 2. I n Article 11 para. 2 , "action" by the Security Council is contrasted with recommendations b y the General Assembly The only reasonable interpretation of this wording was to distinguish Security Council "action" by its mandatory character as opposed to the non-mandatory recommendations by the General Assembly. Alticle 53 para. 1, however, does not contain such a contrast between recommendations and Security Council action. Furthermore, the Interpretation advanced by Chayes and Meeker does not take into account a second distinctive character of decisions under Chapter V11 of the Charter, namely their

27 28

29

Foreign Aff 41 (1962/63), 550 (556) and L. Henkin, "International Lanand the Behaviour of Nations", RdC 114 (1965), 167 (259 et seq). Cf. Meeker, above. ICJ Reports 1962, 150, (164 et seq.). Meeker, see note 26, 521.

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purpose of forcing an aggressor to alter its peace-endangering behaviour30. This element, however, is also present in regional sanctions. O n a political level the interpretation deserves criticism for it allows for unauthorized use of military force by all regional organizations which merely recommend their members to participate in the action. This would leave it to the discretion of the competent organ of the regional organization whether to recommend and avoid the decision of the Council o r to decide o n a mandatory basis and seek an authorization. This discretion is not in line with the system of the Charter which concentrates decisions o n use of force in the Security Council. In conclusion, it seems referable to lay the emphasis on the perspective of the target state. From the perspective of that state any action taken against its will has enforcing character, whether mandatory o r not. For this reason the proposition by Chayes and Meeker is not convincing31 and it has not been taken u p since it was advanced in the 1960s.

11. Non-Military Sanctions as Enforcement Action? The question of whether or not non-military sanctions fall within the scope of necessary authorization under Article 53 of the Charter has been a matter of debate since the discussions in the Security Council in the early 1960s when the O A S imposed such sanctions against the Dominican Republic3'. Following these measures the Soviet Union tried to pass a resolution in the Security Council in which the Council would have authorized the O A S action retrospectively. This resolution was not agreed upon because the Western permanent members of the Council, especially the United States of the OAS, did not want to create a precedent with respect to non-military sanctions. Since then the question was not of practical relevance until the early 1990s when regional organizations increased their peace-keeping and peace-making efforts with respect to civil wars.

30

31

32

See U. Beyerlin, "Regional Arrangements", 1040, Mn. 6, in: R. Wolfrum (ed.), Unzted hTatzons:Law, Polzczes and Practice, Vol. 2, 1995. See also 0.Schachter, "Authorized Uses of Force by the United Nations and Regional Organizations", in: L. F. Damrosch/D. J. Scheffer (eds.), L a w and Force zn the N e w Internatzonal Order, 1991,65, (87 et seq.). Final Act of the Sixth Meeting of Consultation of Ministers of Foreign Affairs of 21 August 1960, Resolution I, OAS Official Records, OEA/ Ser.D/III.12, 7 et seq.; see also M. Akehurst, "Enforcement Action by Regional Agencies, with Special Reference to the Organization of American States", B Y I L 42 (1967), 175 (188 et seq.).


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I n the literature on the subject there are mainly three positions as to the question of whether non-military measures are included in the term "enforcement action". A first interpretation requires Security Council authorization for all non-military sanctions. These authors argue that the wording "enforcement action" refers to the wording of Chapter V11 and hence all measures possible under Article 40, Article 41 and Article 42 had to be considered enforcement action3). Furthermore, it is argued that Article 2 para. 7, required Security Council authorization also for nonmilitary sanctions. Illegal interference was not only possible by use of force but also by non-military measures. The necessary justification required a Chapter V11 decision by the A second proposition shares the systematic arguments advanced by those authors w h o include all non-military sanctions into the requirement of Security Council authorization. However, these lawyers submit that it could not be correct to require an authorization by the Council for measures which arc alrcady lawful under gcneral international law35.They argue that measures which could be lawfully applied by a single state without a decision of the Council should also be opcn for rcgional organizations without seeking an a u t h ~ r i z a t i o n ' ~'I'herefore . regional organizations could enforce erga omnes obligations b y applying non-military sanctions3'. The third interpretation restricts the requirement for an authorization to use of military force. This interpretation focuses on the ban on the use of force in Article 2 para. 4, and argues that n o corresponding prohibition existed for non-military sanctions38.

R. A. Akindele, The Organizatzon and Promotion of World Peace, 1976, 56. J. M. Ruda, "Relaciones de la O.E.A. y la U.N. en cuanto a1 mantenimiento de la paz y la seguridad internacionales", Rev. Juridica de Buenos Airer, 1961, 15, (59 et seq.); R. Pernice, Die Sicherung des Weltfriedens durch regionale Organisatlonen und die Vereinten Nationen, 1972, 114.

R. Wolfrum, "Der Beitrag regionaler Abmachungen zur Friedenssicherung: Moglichkeiten und Grenzen", ZuiiRV 53 (1993), 576, (582). E. Jimtnez de AI-tchaga,"La coordination des systkmes de I'ONU et de I'OEA", R d C 111 (1964), 419, (481); R. Gerold, Die Sicherung des Friedens durch die OAS, 1971, 131. Wolfrum, see note 35,581 et seq.

J. A. Frowein, "Zwangsmat3nahmen von Regi~nalor~anisationen", in: U. Bcycrlin/ M. Bothe/ R. H o f m a n d E.-U. Petersmann (eds.), Recht zwischen Umbruch und Bewahrung. Festschrqt fur Rudolf Bernhardt, 1995, 57 et seq., (66);J. A. Frowein, "Legal Consequences for International Law Enforcement in Case of Security Council Inaction", in: J. Delbriick (ed.),

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A n y interpretation should start with the wording of the Charter. H o w ever, the use of the term "enforcement action" in Article 53 gives as such n o indication as t o the question of exactly which kind of measures it covers. F r o m the heading of Chapter VII, in which the term is also used, one might conclude that it comprises both military and non-military measure^'^. This interpretation is supported by systematic considerations. It is argued that the structure of Chapter V111 was parallel t o the structure of the Charter as a whole. Article 52 corresponded t o Chapter V1 in covering peaceful settlement of disputes. In the same way, therefore, Article 53 should apply t o all measures possible under Chapter VI140. Hence, the authorization requirement also covered non-military sanction^^^. Additionally, some authors maintain that because of the military force involved inpeace-keeping measures, the latter should also be considered to constitute enforcement action in the sense of Article 53 para. 142. 1. T h e San Francisco Discussions

To start the inquiry into the interpretation of Article 53 para.1, a look at the original drafters intentions might prove helpful. The text of the Charter is identical t o Chapter VIII, Section C, para. 2, of the Dumbarton Oaks proposals43. The provision was dealt with in Subcommittee A of Committee III/4. The discussions in the Subcommittee, however, did not address

The Future of International Law Enforcement. New Scenarios - New Law?, 1993, 111, (121 et seq.); M.G. Goldman, "Action by the Organization of American States: When is Security Council Authorization Required under Article 53 of the United Nations Charter?", U C L A Law Review l 0 (1962/63), 837 et seq., (855). The heading reads as follows: "Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression". R. Pernice, Die Sicherung des Weltfriedens durch regionale Organisationen und die Vereinten Nationen, 1972, 114. See also F, L. Morrison, "The Role of Regional Organizations in the Enforcement of International Law", in: J. Delbriick (ed.), Allocation of Law Enforcement Authority in the International System, 1995, 39 (43 et seq.), who argues that "enforcement action" is action requiring specific justification. According to this proposal measures under Chapter V11 would frequently involve specific justification and hence be qualified as "enforcement action". A. Eide, "Peace-Keeping and Enforcement by Regional Organizations", JPR 3 (1966), 125 (141 ct seq.); see also 0. Kirnrninich, "Peace-keeping on a Universal or Regional Level", in: R. Wolfrurn (ed.), Strengthening the World Order: Universalism v. Regionalism, 1990, 37 (47). U N C I O Vol.XI1. 765.


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at all the question of which measures were to be considered as "enforcement action". This lack of discussion may be due to the fact that the Subcommittee had to deal with two other important issues. One comprised a number of amendments proposed by different delegations, varying from the request for express a u t h o r i ~ a t i o nover ~ ~ the requirement of a mere notification to the Security Council in case of self-defence45,to the Australian position of complete independence for regional organizations in case of Security Council inactivity46.The second issue of debate in the Subcommittee was the question of the so-called "enemy-state clause" in Article 53 para. I , in the second part of the second sentence. The amendment issue was solved by the proposition of a new provision dealing with the right to self-defence which became Article 51 in the final version of the Charter. This provision dealt with the concern of many delegations as to what the hai it er could foresee in case of Security council inaction. The wording took into account the proposed French and Turkish amendments and the new provision was agreed upon rather quickly47.With the Subcommittee still facing - the issue of the enemy state clause, the question of a definition of "enforcement action" does not seem to have caught the attention of the delegates. The records of the San Francisco Conference, therefore, do not contain any guidance for the interpretation.

2. The Use of the Term "Enforcement Action" or "Action" in the Charter

A literal interpretation of the term "enforcement action" remains inconclusive since both military and non-military sanctions are designed to force a state or a faction of a civil war to alter its peace-endangering behaviour. It is interesting to note, however, that the Charter uses the wording "cnforccment action" or "action" in some provisions, while others speak of "enforcement measures" or "measures". Article 41 provides for "measures not involving the use of armed forcen4'. Article 42 takes up that terminology and continues as follows: "Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may

44 45 46 47

48

Bolivia, UNCIO Vol.XI1, 767. France, UNCIO Vol.XII, 777; Turkey, U N C I O Vol.XI1, 781. U N C I O Vol.X11,766. See M. Akehurst, "Enforcement Action by Regional Agencies, with Special Reference to the Organization of American States", BYIL 42 (1967), 175 (187). Italics added by the author.

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take suchaction by zir, sea o r land forces as may be necessary to maintain o r restore international peace and security"49. O n e might be tempted to conclude from the contrast between "measures" and "action" in Article 42 that "action" may be confined to military enforcement. The term "measures" might then apply to both military and non-military sanctions. A look at the other authentic versions of the Charter5' reveals, however, that the distinction between "measures" and "action" is not maintained consistently. I n the Spanish version Article 42 speaks of "medidas" instead of "acci6n", although generally also the Spanish text distinguishes between "medidas" and "acci6n". Furthermore Article 2 para. 5, and Article S use the term "enforcement action" although both provisions are generally considered to apply to military and nonmilitary measures5'. In summary, n o conclusions may be drawn from the distinction between "action" and "measures", because the wording is not consistently used throughout the Charter52.I n the light of this result the terms "action" and "measures" d o not permit any specific conclusions as to the interpretation of Article 53. Hence the term "enforcement action" in Article S3 has to be interpreted as an autonomous legal term, taking into account the function of the authorization by the Security Council which the provision requires. It may Le helpful in this respect to take as a starting point the functions of Security Council decisions under Chapter V11 of the Charter.

3. Functions of Decisions by the Security Council under Chapter VII of the Charter Article 41 foresees measures not involving the use of military force. The measures decided under Article 41 are to be implemented by the member states of the United Nations. Decisions under Article 41 are mandatory for all members. A first function of Article 41, therefore, is to ensure that non-military enforcement measures be implemented by all member states. A second important function of the provision is to provide a legal basis for the implementation of the measures in cases where otherwise international law would stand against such execution. Non-military sanctions

49

50 51

52

Italics added by the author. See Article 111 of the Charter. H. Kelsen, The Law of the United Nations, 1950,92; J. A. Frowein, "On Article 2 (S)", 129 et seq. Mn. 2, in: Simma, see note 25; H.J. Schiitz, "On Article S", 175 et seq., Mn. 12, in: Simma, ibid. For further different use of the terms cf. Walter, see note 14, 191 et seq.

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may contravene the prohibitior: of interference into internal affairss3.Also, in some cases states are under treaty obligations vis-i-vis the addressee of the measures under Article 41. In both situations Article 41 provides the justification for either enforcing measures in contravention of the prohibition of interference into internal affairs or violating bilateral trade agreements. A second important function of Article 41, therefore, is the justification of non-military sanctions with rcspcct to gcneral international law or bilateral agreements. Article 42, in the same way as Article 41, allows for decisions which arc mandatory for all member states of the United Nations. Also, the decisions under Article 42 provide for justification with respect to the addressee of the measures. By contrast to decisions under Article 41, action according to Article 42 is not only justified with respect to the prohibition of intervention into internal affairs, but, most important, it constitutes a lawful exception to the universal prohibition of the use of force contained in Article 2 para. 4. It is characteristic of the system established by the Charter of the United Nations that - apart from the right to self-defence contained in Article 51 - all decisions on the use of military force are to be concentrated in the Security Council. This distinction between the functions of decisions under Article 41 and Article 42 may prove helpful for the interpretation of Article 53. 4. Consequences for the Interpretation of Article 53 The justification of the use of force which is inherent in Security Council decisions under Article 42 has to be kept in mind when interpreting Article 53. By contrast to the functions of Article 41 of the Charter, the justification with respect to Article 2 para. 4, which is inherent in an Article 42 decision of the Council may not be established in a regional treaty. The functions of decisions under Article 41 could be fulfilled in a regional treaty. The decisions of the competent organ could be mandatory for all members and non-military sanctions could be justified vis-i-vis the addressee if the latter is a member state of the organization54. Any use of

53

The possibility of such a violation is not contested. The difficult issue with respect to non-military sanctions and the illegal interference into internal affairs is to determine where legal counter-measures end and where illegal interference begins, see in this respect, R. JenningsIA. Watts, Oppenheim's International Law,9th edition Vol. I/1, 1992, 432 et seq.; W. Kewenig, "Die Anwendung wirtschaftlicher Zwangsmahahmen im Volkerrecht", Reports D G V R 22 (1982), 7 (15 et seq.); K. Bockslaff, Das

volkerrechtliche Interventionsverbot als Schranke auj3enpolitisch motivierter Handelsbeschrankungen, 1987, 82 ct seq. and 92 et seq.

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military force, however, may only be justified by a decision of the Security Council. Article 53 has to be interpreted as part of this system of the Charter which concentrates the use of military force within the Security Council. The requirement for authorization must be seenas an instrument to ensure Security Council control over use of military force. It follows from this analysis that it is only military enforcement action which requires Security Council authorization under Article 53. Non-military sanctions d o not fall under the same rigid system as military action does. Therefore, an interpretation of the term "enforcement action" in Article 53, which takes into account the system of maintenance of international peace and security established by the Charter and the role of the Security Council within that system, leads to the conclusion that the term only refers to military enforcement action, Non-military sanctions are not subject to an authorization by the Security Council.

5. Recent State Practice The interpretation of Article 53 which confines the requirement for authorization to regional military action is supported by recent state practice. When the government of President Aristide in Haiti was overthrown the O A S decided to impose economic sanctions on the new military governmentj5.The sanctions included a freezing of Haitian funds abroad and an embargo on all goods which were not serving humanitarian needs. These sanctions were considered to be ineffective because of their regional limitation. Therefore, the Security Council was asked to make the sanctions mandatory for all members of the United Nations by imposing them under Article 41j6. The Council followed that suggestion in resolution 841 of 16 June 1993. In this resolution the previous O A S measures are expressly referred to. The Council stresses that the UN sanctions are consistent with the trade embargo recommended by the 0 A S j 7 . There are no indications in the resolution that the Council had doubts concerning the legality of the previous unauthorized O A S sanctions. Nor, in the debates, did any of the delegates question the legality of the regional sanctions. Even the Cuban Government which did not consider the situation in Haiti to constitute a threat to the peace and hence qualified the measures adopted by the Security Council as illegal under the law of the 54 jj

56

57

The necessity of justification is also stressed by Morrison, see note 41. The decision is reproduced in Doc. A/46/550=S/23127 of 9 October 1991, Annex. D O CS/25958 of l 6 June 1993. Resolution 841 (1993), para.3.


143

Charter, did not criticize the O A S sanctions, but rather qualified them as cc lmposed . by the appropriate regional o r g a n i ~ a t i o n " ~ ~ . A similar procedure had already been applied in the Liberian crisis in 1992. In this case ECOWAS had decided to impose an arms embargo against one of the factions to the civil w d 9 . The Security Council was asked by ECOWAS to extend the embargo to the universal level6'. The Council did that in resolution 788 of 19 November 1992. In the debates preceding the adoption of the resolution, once again, none of the members questioned the previous regional practice6'. The tacit acceptance of the regional non-military sanctions by the members of the Council may be assessed as expressing their view that non-military sanctions are not subject to an authorization by the Council according to Article 53.

111. Enforcement Action in Civil War Situations Since the end of the Cold War in 1989/1990 the number of civil wars with ethnic and nationalistic background has been increasing. During the Cold War the question of outside intervention into civil wars was of particular interest since the two superpowers were more or less openly involved as supporters of one of the factions in a specific civil war6?.With the end of the Cold War the issue of outside intervention into civil war: has lost some of its political relevance. Nevertheless, the question of whether and when Article 2 para.4 applies to internal conflicts remains a difficult legal problem6', also in the context of regional enforcement action. The main issue is whether Article 2 para.4 prohibits outside intervention into internal

58 59

Doc. S/25942 of 14 June 1993. The decision is reproduced in Doc. V2481 1 of 16 November 1992, Annex

I. 60

61

62

Doc. S/24735 of 29 October 1992. See Doc. S/PV.3138 of 19 November 1992. See J. N. Moore, "The Control of Foreign Inter~entionin Internal Conflict", Va.J.Int'1L. 9 (1968/69),205 (233 et seq.);see also H. Neuhold,

Internationale Konflikte - Verbotene und erlaubtr .l.ltttel ihrer Atrstragung, 1977, 96 et seq. 63

As to the question of whether and when Article 2 para.4, may be applied between the different factions in a civil war, see A. Randelzhofer, "On Article 2 (4)", 106 et seq., Mn. 29 - 33, in: Simma, see note 25; D. Rauschning, "Die Gelrung des volkerrechtlichen Gewaltverbots in Biirgerkriegssituationen", in: W. Schaumann (ed.), Volkerrechtliches Gewaltverbot und F~iedenssicherun~, 1971, 75 (76 et seq.); see also J.A. Frowein, Das de-,fact0 Regime im Volkerrecht, 1968, 35 et seq. and 69.

144


conflicts. Could the consent of a government64overcome the character of enforcement? Intervention by regional organizations may, t o some extent, be comparable t o intervention b y third states. It is therefore appropriate to analyse the legal regime of unilateral intervention into civil wars. In doing so it is necessary to distinguish between interventions with and without consent of the parties t o the conflict. If both parties have consented, the "intervention" acquires the character of a peace-keeping operation and cannot be qualified as enforcement actiod5. It is difficult, however, t o assess the current regulations of international law concerning unilateral invitations f o r intervention into internal conflicts. Such invitations may come from the government o r from a rebel group in an internal conflict.

1. Request by the Government for Unilateral Intervention The traditional position of international law is that the recognized government may invite foreign forces for assistance in combatting rebelsb6. T h e ICJ referred to this principle in a n obiter dictum in its Nicaragua decision:

"[...l the principle of non-intervention derives from customary international law. I t would certainly loose its effectiveness as a principle of law if intervention were to be justified by a mere request of assistance made by an opposition group in another State [...l. Indeed, it is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opp~sition"~'. A n analysis of state practice concerning interventions by invitation faces some difficulties. Firstly, the validity of invitations issued during the Cold War may reasonably be questioned because of the influence of the respective superpower in the situation. With respect t o the Soviet Union, the

64 65

66

67

See the comprehensive study by A. Tanca, Foretgn Armed Intervention in Internal Con@ct, 1994, 13 et seq. See in detail infra, p. 171 et seq. JenningslWatts, see note 53, 437 with further references; R. Higgins, "Internal War and International Law", in: C.E. Black/R. Falk, The Future of International Legal Order, Vol. 111 (1971), 81 (94 et seq.); Randelzhofer, see note 63, Mn. 30. Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 14 (126), para. 246; Italics added by the author.


145

invitation of Hungary in 1956 may be used as reference" and o n the American side, the invitation to intervene in the Dominican Republic in 1965 is an example, where even the existence of the invitation was unclear69. A second reason for the limited value of state practice is that intervening states tend to give a number of reasons for their action which are sometimes intertwined. Among these justifications the invitation by the government is mentioned. The problem may be illustrated by the American justification for the country's intervention in Lebanon in 1958. President Eisenhower gave the following message to the Congress: " O n July 14, 1958, I received an urgent request from the President of the Republic of Lebanon that some United States forces be stationed in Lebanon. President Chamoun stated that without immediate showing of United States support, the Government of Lebanon would be unable t o survive. This request by President Chamoun was made with the concurrence of all the members of the Lebanese Cabinet. I have replied that w e would d o this and a contingent of United States marines has now arrived in Lebanon. [...l After the most detailed consideration, I have concluded that, given the developments in Iraq, the measures taken by the United Nations Security Council are not sufficient to preserve the independence and integrity of Lebanon. I have considered, furthermore, the question of o u r responsibility to protect and safeguard American citizens in Lebanon of whom there are about 2,500. Pending the taking of adequate measures by the United Nations, the United States will be acting pursuant to what the United Nations Charter recognizes is an inherent right - the right of all nations to work together and to seek help when necessary to preserve their i n d e p e n d e n ~ e " ~ ~ . The statement combines the invitation by President Chamoun with arguments of collective self-defence and a right to protect a country's o w n nationals in a way that makes it difficult to assess whether each of the given justifications would have been sufficient as sole reason for the intervention. I n the same way the French interventions in Northern Africa, which are often quoted as examples for interventions o n request71, are not entirely 68

69 70 71

For details see L. Doswald-Beck, "The Legal Validity of Military Intervention by Invitation of the Government", B Y I L 56 (1985), 189 (222 et seq.). For details see W. Friedman, "United States Policy and the Crisis of International Law", AJIL 59 (1965), 857 (868). Department of Statc Bulletin 39 (1 958 H), l82 et seq. Cf. Jenningsl Watts, see note 53,435 et seq.

146


conclusive. The intervention in Zaire in 1978 was a reaction to save the lives of European nationals72and the French Prime Minister and President justified the intervention in Chad in 1983 expressly by citing Article 51 and the Libyan activities in the border area. The French Minister of Foreign Affairs referrcd also to previous intcrvcntions when he stated in Parliament on 27 September 1978: "Si la France a et6 amenCe a intervenir sur le continent africain, elle l'a toujours fait i la demande du gouvernernent reconnu du pays intiressi, et en limitant le volume et la durte de son assistance aux nicessitis de la situation. Dans chaquc cas, il s'est agi de ripondre h I'appel d'Etats victimes d'une aggression e~t6rieure"~'. The statements show that an intervention based solely on the invitation by the government is rare. Rather, additional reasons are invoked and it is the combination of these reasons on which governments rely. It should also be kept in mind that there is a difference between, on the one hand, an invitation by a government which is in overall control over its country and merely requests assistance in a police action and, on the other hand, the desperate cry for help by a government in a situation where it has almost been defeated by opposition forces. While in the first case the pure invitation might suffice, in the second the necessity to give additional reasons, such as foreign - intervention on the rebel side, increases. The Institut de Droit International adopted at its 1975 session in Wiesbaden a resolution in which supporting either side in a civil war was considered This position is shared to some extent in the literature7j. The main argument advanced is that third party military intervention was contrary to Article 2 para. 476.The prohibition of the use of force was also protecting the right of a country to solve a civil war without military intervention from outside77. Apart from protecting potential

C. Rousseau, "Chronique des faits internationaux", RGDIP 83 (1979), 126 (204). Quoted from Rousscau, ibid., 171. Annuaire de l'lnstitut de Droit International 56 ( l 975), 544 et seq. See the references in Randelzhofer, see note 63, Mn. 31; M. Bothe, "Das Gewaltverbor im allgemeinen", in: W. Schaumann, Vdkerrechtliches Ge1971, l 1 (26); U. Beyerlin, Die huwaltverbot und Friedens~icherun~,

manitare Aktion zur G e ~ a h r l e i s t u eines n ~ Mkdeststandards in n~cht-internationalen Konflikten, 1975,60 et seq. 0. Schachter,Annuaire de I'lnstitut de Droit International 56 (1975), 41 8. 0. Schachter, "The Right of States to Use Armed Force", Mich.L.Rev. 82 (1983/84), 1620 (1641).


147

victim states, the provision was also designed to ensure international relations which are free from use of force78.This was a common interest of the community of states which could not be at the disposal of a single state79.The 9th edition of Oppenheim's International Law suggests that the mere fact that a civil war is going on deprives the government of its capacity to issue invitations: "So long as the government is in overall control of the state and internal disturbances are essentially limited to matters of local law and order or isolated guerrilla or terrorist activities, it may seek assistance from other states which are entitled to provide it. But when there exists a civil war and control of a state is divided between warring factions, any form of interference or assistance (except probably of a humanitarian character) to any party amounts to intervention contrary to international law. In such a case the authority of any party to the conflict to be the government entitled to speak (and to seek assistance) on behalf of the state will be doubtful; and assistance to any party will prejudice the right of the state to decide for itself its form of government and political system. It is, however, widely accepted that if there is outside interference in favour of one party to the struggle, other states may assist the other

The conclusion that governmental power to invite foreign military forces is limited to effective governments is supported by the wording of Article 2 para.4, according to which not only territorial integrity but also political independence are protected. Once the government has lost effective control, any assistance from the outside interferes in the balance of power in that country. The conclusion is further supported by the way in which the United Nations acted during the Congo crisis. Although the Congolese central government had supported direct military action against the rebel province of Katanga, the United Nations did not directly attack the rebel forces. Instead they relied on the concept of "active self-defence" and the Secretary-General declined demands for direct action against Katanga arguing that such action would violate the principle of non-intervention8'. The Secretary-General's position was shared by a majority in the Security Council against the Soviet and Polish position according to which direct 78 79

80

81

AS to this argument cf.Tanca, see note 64,19 et seq. W. Wengler, Das volkerrechtliche Gewaltverbot, 1967,49 et seq. Jenningsl Watts, see note 53, 437 et scq. (footnotes omitted); a similar position is advanced by A. Thomas/A.J. Thomas, Non-Intervention, the Law and its impact in the Americas, 1956,94. Doc. S/4417 Add. 6 of 12 August 1960.

148


action against Katanga would have been possibles2. With respect to invitations by the government, the of the use of force and the principle of non-intervention are closely interrelated with the right to self-determination. The latter has an internal protective dimensions3which prohibits interventions from outside84. The interrelation between the principles is expressed in the so called Friendly-Relations Declaration (Declaration on Principles of International Law Concerning Friendly Relations) of the General Assembly of the United Nations. "By virtue of the principle of equal rights of and self-determination of peoples enshrined in the Charter, all peoples have the right to freely determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charterng5. The principle of self-determination has mainly been invoked in the context of decolonizations6. Nevertheless, the wording of the Friendly-Relations Declaration and other intcrnational documents rcveals that it is a right - of all peoplesg7.It is doubtful whether the right to self-determination includes a right to secession88. A right to secession would render support for a government which is suppressing a people striving for independence even more difficult. But even, without including a right to secession, the Friendly-Relations Declaration is evidence of the newtive attitude of the b. international community towards unilateral external ~ n t e r f e r e n c e ~ ~ . The Turkish intervention in Cyprus was based on a contractual agreement in the Treaty of Guarantee signcd at Nicosia o n 16 August 196O9'.

SCOR, 15 Year, 1960,Suppl. July, August, September 1960,64 et seq.

M. Pomerance, Self-Determination in Law and Practice, 1982,37 et seq.; J.H. Leurdijk, "Civil War and Intervention in International Law", NILR 24 (1977), 143 (150); A. Rosas, "Internal Self-Determination", in: C. Tomuschat (ed.), The Modern Law of Self-Determination, 1993,225 (232 et seq.). D. Thiirer, Das Selb~tbestimmun~srccht d r r Volker, 1976, 184. A/RES/2625 (XXV) of 24 October 1970. K. J. Partsch, "Self-Determination", in: R. Wolfrum (ed.), United Nations: Law, Policies and Practice, 1995, Vol. 2, 1171 et seq. C. Tomuschat, "Self-Determination in a Post-Colonial World", in: Tomuschat, see note 83, 1 (2 et seq.) with references of state practice. See in this respect D. Murswiek, "The Issue of Secession - Reconsidered", in: Tomuschat, see note 83,21 (32 et seq.). Doswald-Beck, see note 68, 189 (243).


149

Parties to the treaty are Cyprus o n the one part and Greece, Turkey and the United Kingdom of Great Britain and Northern Ireland o n the other. The treaty was signed when Cyprus became independent and it contains a clause which reserves for each of the guaranteeing powers the right to intervene in the event of a breach of the treaty9'. I n 1974 the government of Archbishop Makarios was overthrown in a coup. T h e new government was mainly composed of people w h o were in favour of aunion with Greece and suspicions arose that the Greek government was behind the coup. In this situationTurkey invaded Cyprus and in doing so it relied o n theTreaty of Guarantee. The Security Council passed several resolutions o n the matter, two of which condemned the Turkish i n t e r v e n t i ~ n ~ ~ . The Turkish intervention is of interest because it was based o n the consent of a government which was not given ad-hoc in a situation of crisis but years before in a treaty. In fact, the Cypriot government at the time of the intervention was opposed to the intervention. Although the previous breach of the treaty was not disputed, the international reactions to the Turkish intervention were largely negativey3. It has been argued that the negative international reaction t o the Turkish intervention created a presumption against the legality of an intervention based upon governmental consent in a Whether o r not this far-reaching conclusion may be drawn is a question which does not have to be answered in this context. With respect to the issue of intervention into civil wars it is sufficient to note that Turkey was not simply relying o n a Cypriot violation of the treaty but was accusing Greece of having interfered in the matter. For this reason the case of Cyprus cannot be cited as an example for intervention solely o n the grounds of governmental invitation. Apart from that, the negative international reactions cast some doubt on the legality of intervention treaties.

90 91

92 93 94

UNTS Vo1.382 No.5475. Article IV: "In the event of a breach of the provisions of the present Treaty, Greece, Turkey and the United Kingdom undertake to consult rogether with respect to the representations or measures necessary to ensure observance of those provisions. In so far as common or concerted action may not prove possible, each of the three guaranteeing powers reserves the right to take action with the sole aim of re-establishing the state of affairs created by the present Treaty." S/RES/353 (1974) of 20 July 1974 and S/RES/360 (1974) of 16 August 1974. Cf. the thorough analyis by Doswald-Beck, see note 68,189 (247 et seq.). Doswald-Beck, ibid., 250.

150


In summary, the invitation by the government may only be considered as justification for military intervention in situations where the government retains effective control over the country. Interventions based on the consent of an ineffective government - in contrast - violate Article 2 para.4. As for the question of previous consent to military interference on the basis of a treaty the same standard has to Le applied. The government may only give a contractual consent to military intervention for situations in which it could give ad-hoc consent, i.e. in situations of effective governmental control. It is not possible to enhance the legalizing effect of requests by the government merely by giving the consent at an earlier stage95.

2. Consequences for Intervention by Regional Organizations o n Request by the Government The result that an invitation by an ineffective government does not justify military intervention against the prohibition of use of force in Article 2 para.4 may serve as a starting point for discussing invitations for intervention by regional organizations. The main argument when interpreting the meaning of "enforcement action" in Article 53 of the Charter was that authorization by the Security Council was necessary where otherwise a violation of Article 2 para. 4 would occur. This rationale implies that if the request emanates from an ineffective government Security Council authorization would be necessary to justify regional intervention. The following analysis of practice by regional organizations may serve as a test as to whether this tentative conclusion is supported in practice. Relevant practice is the intervention by the Organization of East Caribbean States (OECS)96and the United States of America in Grenada in October 1983 and the sending of E C O M O G by ECOWAS into thc Liberian Civil War. In Grenada, which became independent in 1974, the British Crown was Head of State. She was represented by a Governor-General with mainly representative functions, while the executive power was in the hands of a prime minister9'. In 1979 the Government was overthrown in a coup led by Maurice Bishop. Since then a communist "People's Revolutionary Government" under Bishop had been in charge, which was supported by the communist New Jewel Movement. In 1983 tension arose within the Central Committee of the New Jewel Movement, which led t o the killing 95

96 97

For a different view of the role of self-determination in this context see J. A. Frowein, "Self-Determination as a Limit to Obligations", in: Tomuschat, see note 83,211 (221 et seq.). ILM20(1981),1166. AS to the Constitutional Questions, see W. C. Gilmore, The Grenada Intervention, 1984, 65 et seq.

Security Council Control ox er Region-] Actlon

l51

of Bishop and military fighting between the different factions. T h e O E C S discussed the n u t t e r o n 21 O c t o b e r 1983 and decided t o intervene with the help of the United States of O n e of t h e justifications for the intervention was an invitation which the t h e n Governor-General, Sir Paul Scoon, had issued. The exact circumstances of t h e invitation are unclear. I n a n interview with the B B C o n 31 O c t o b e r Sir Paul said he "thoughtn that h e decided t o ask f o r help o n 23 O c t o b e r y 9 .O n 27 October, the text of a written invitation dated 24 O c t o b e r was presented b y the G o v e r n m e n t of Barbadoslc? I n this invitation Sir Paul asks f o r a peacekeeping force and confirms that he was also seeking help f r o m the United States, Jamaica and the O E C S . T h e circumstances o f t h e invitation are dubious in t w o respects. Firstly, Sir Paul does n o t seem t o exactly remember in his interview of 31 O c t o b e r 1983 w h e n h e decided t o ask f o r help. A n d secondly, there is s o m e d o u b t as t o w h e n the written request was sent. According t o the documentation edited b y G i l m o r e t h e invitation is undated'" and there is some suspicion that it w a s p r o d u c e d after the invasion t o o k T h e U n i t e d States justified the intervention o n three legal grounds: the invitation b y the Iandul government of Grenada, the 1981 Treaty Establishing the O E C S and the protection of U n i t e d States citizens in Grenadalo3. T h e reactions of the international c o m m u n i t y t o t h e intervention were negative. In the Security Council and in the General Assembly of the

98

99

1"

131

'32 1"

As to the factual background of the events in Grenada, see S. Davidson, Grenada, 1987, 17 et seq. and 53 et seq.; see also L. Doswald-Beck, "The Legality of the United States' Intervention in Grenada", Y I L R 31 (1984), 355 (356 et seq.). ''I think I decided so on Sunday the 23rd, late Sunday Evening ... Later on, as things deteriorated, I thought, because people were scared, you know. I had several calls from responsible people in Grenada that something should be done. "hlr. Governor-General, we are depending on you [that] something be done. People in Grenada cannot d o it, you must get help from outside." What I did ask for was not an invasion but help from outside ... I asked for help from the O E C S countries. I also asked the O E C S to ask America whether they can help, and then I confirmed this in writing myself to the President of the U.S.A.", quoted from J.N. hloore, "Grenada and the International Double Standard", AJIL 78 (1984), 145 (148). The text of the invitation is reprinted in Moore, ibid. Gilmore, see note 97, 95. S. Davidson, Grenada, 1987, 100 et seq. See the statement by Deputy Secretary of State K . W Dam, reprinted in M.N. Leich, "Contempor-ary Practice of the United States Relating to International Law", AJIL 78 (1984), 200 (203 et seq.).

152


United Nations most states condemned the action o n the grounds that it was contrary to the principle of non-interventionlo4. The intervention by the O E C S and the United States therefore provides n o arguments that would indicate that interventions by regional organizations be treated differently from unilateral interventions. The Liberian civil war started at the end of the year 1989. By July 1990 President Doe had lost control over the country except for a small part of Monrovia including the presidential palace105. I n this situation Doe addressed ECOWAS and asked for an "ECOWAS peace-keeping force". E C O W A S accepted the request and sent a "Cease-Fire Monitoring G r o u p ( E C O M O G ) " . The invitation has been viewed as justifying the intervention by ECOMOG106.There seems to be some doubt as t o the justifying effect of the request since at the time the invitation was issued Doe was only in control of a small area in Monrovia including the presidential palace and its immediate surroundings. Furthermore the wording of the invitation was not very explicit: "It is therefore m y sincere hope that in order to avert the wanton destruction of lives and properties and further forestall the reign of terror, I wish to call on your Honorable Body to take note of m y personal concerns and the collective wishes of the people of Liberia, and to assist in finding a constitutional and reasonable solution to the crisis in our country as early as possible. Particularly, it would seem most expedient at this time to introduce an ECOWAS Peace-keeping Force into Liberia to forestall increasing terror and tension and to assure a peaceful transitional e n ~ i r o n m e n t " ' ~ ' . Apart from the fact that the letter does not explicitly demand an intervention108it is interesting to note that ECOWAS did not invoke the letter as

SCOR 2489th Mtg. of 26 October 1983; 2491th Mtg. of 27 October 1983; GAOR 1983,43rd Plenary Mtg. of 2 November 1983,689 et seq.; see also F.Boyle et al., "International Lawlessness in Grenada", AJIL 78 (1984), 172 (174). For details of the developments see Nolte, see note 19,603 et seq. Nolte, ibid., 633 et seq. The text of the invitation is reprinted in M. Weller (ed.), Regional Peacekeeping and International Enforcement: The Liberian Crisis, 1994, 60 et seq. Kufuor, "The Legality of the Intervention This point is raised by K. 0. in the Liberian Civil War by the Economic Community of West African States", Revue africaine de Droit Internattonal et Compare' 5 (1993), 525 (537).

Security Council Control over Kegional Action

153

a justification but instead stressed the humanitarian and impartial character of the interventionlog. The situation in Liberia has been compared to the complete breakdown of governmental authority in Somalial'O. There may be seen some difference in so far a5 the number of contenders for government were limited to three factions in the Liberian war. But apart from that difference the analysis is quite correct in that the governmental structures in both states were completely dissolved. Under such circumstances it is difficult to see why the invitation by the President should have more legal value than that of any other faction. It is interesting to focus on the Somali case in some detail. The first United Nations mission to Somalia ( U N O S O M - United Nations O p eration in Somalia) was established with S/RES/751 (1992) of 24 April 1992. This resolution is not based on Chapter V11 of the Charter, instead the Council refers to the signing of cease-fire agreements in Mogadishu. This mission proved unable to fulfil1 its task although it was enhanced in size"'. In SIRES/ 794 (1992) of 3 December 1992 a multinational force under the lead of the United States of America was established and received under Chapter V11 the authorization "to establish a secure environment for humanitarian relief operations in Somalia". The multinational force was later replaced by a U N O S O M I1 mission which was also established under Chapter V11 of the Charter"'. It is interesting to note that the Council did not rely on Chapter V11 when the first U N O S O M mission was set up. The most plausible reason for this is that cease-fire agreed on between the factions in Mogadishu was considered to constitute a sufficient legal basis. Only when there was no consent o n a cease-fire and a peace-keeping force to monitor it did the Council resort to Chapter V11 of the Charter"'. It is therefore submitted that the reason for applying Chapter V11 in the Somali case was not so much that Somalia lacked governmental structures114, but that when the United Nations forces

109

110

111 112 113 "4

"I must emphasizc that the ECOWAS Monitoring Group (ECOMOG) is going to Liberia f i r s and foremost to stop the senseless killing of innocent civilian nationals and foreigners, and to help the Liberian people to restore their democratic institutions. ECOWAS intervention is in no way designed to save one part or punish another." Doc. V21485 of 10 August 1990 (Annex), 3. T. Farer, "A Paradigm of Legitimate Intervention", in: L. F. Damrosch (ed.), Enforcing Restraint, 1993,316 (336). S/RES/775 (1992) of 28 August 1992. S/RES/814 (1993) of 26 March 1993. S/RES/794 (1992) and S/RES/814 (1993). This fact was stressed very much during the debates in the Security Council, sec H. FrcudcnschuR, "Article 39 of the UN Charter Revisited:

l54


where sen: not all of rile parties to the conflict consented. This implies that the sending of U N O S O M I1 had enforcement character in allowing f o r action against some of the factions to the civil war. The Council considered the Chapter VII mandate necessary in order t o overcome the prohibition of use of force in Article 2 para.4. In doing so the Council was not merely substituting a request by a non-existing government, but relied o n Chapter VII of the Charter because the measures envisaged had enforcement character. In conclusion, the standards applicable to regional organizations when intervening into civil wars are very much the same as the standards for unilateral interventions. The civil wars of recent years, especially the atrocities committed in Burundi and Rwanda, and since October 1995 also in the Zairian area bordering these countries, have again raised the question of whether and under which circumstances intervention for humanitarian reasons may be justified.

IV. Humanitarian Intervention as Enforcement Action under Article 53' Humanitarian interventions may be thought of as taking place unilaterally by single states, as a matter of Security Council decisions under Chapter V11 of the Charter and they may also be conceived o n a regional collective level, i.e. being planned and executed by regional organizations. The legality of regional humanitarian interventions is a question of Article 53. If they must be considered "enforcement action" in the sense of that provision, a Security Council authorization is required. I n search of an answer to this question, i t is necessary to analyse the legality of the different forms of humanitarian intervention. If unilateral humanitarian intervention were already possible under the law of the Charter there are n o reasons why regional organizations should be barred from similar action. If, on the other hand, even decisions of the Council under Chapter V11 could not justify collective humanitarian interventions, then it is difficult to see how an authorization according to Article 53 could justify regional humanitarian interventions. Therefore, a short summary of the

Threats to the Peace and the Recent Pracrice of theUNsecurity Council", A t u t n a n J Pub1 Int L ~ 46 L (1993/94), 1 (21); P. C. Szacz, "Centralized and Decentralized Law Enforcement The Security Council and the General Assembly A c t q under Chapters V11 and VIII", in: J. Delbruck (ed.), Allocat~on of L ~ LEnfolcernent Authortty In the Internattonal System, 1995, 17 (23).


155

law and practice of unilateral and collective humanitarian interventions by the United Nations is necessary. 1. Illegality of Unilateral H u m a n i t a r i a n Intervention During the Cold War, American international lawyers in particular argued that, in view of the potential o r actual veto dead-lock in the Security Council, a right to unilateral humanitarian intervention had to be acknowledgedH5. T h e question has been intensely analysed in literatureH6.For the purposes of this article only the main arguments need to be presented. Those authors w h o are arguing in favour of a right t o humanitarian intervention refer t o the wording of Article 2 para.4 of the Charter. According t o them, the provision was only prohibiting use of force directed against the territorial integrity o r political independence of another state. Neither the political independence nor the territorial integrity of a state were violated in a humanitarian intervention, since it was not directed at changing international borders o r questioning the political independence of a state".'. This argument could only be accepted if the qualification "against the territorial integrity o r political independence" in Article 2 para.4 was meant to limit the prohibition of use of force. However, the drafting history shows that the terms were not designed as a limitation but with the intention t o strcss certain extraordinarily important aspects118.Consequently, the provision is understood to constitute a

F. R. Tes611, Humanitarian Intervention, 1988, 127 and 246 et seq.; R. B. Lillich, "Forcible Self-Help by States to Protect Human Rightsn, Iowa L. Rev. 53 (1967), 325 (344 et seq.); R. B. Lillich, "Intervention to Protect Human Rights", McGillL. J. 15 (1969), 205 et seq.; see also A. D'Arnato, "The Invasion in Panama was a Lawful Response to Tyranny", AJIL 84 (1990), 516 et seq.

A. Pauer, Die humanitare Intervention, 1985; Tesbn, see above; P. Malanczuk, Humanitarian Interventton and the Use of Force, 1993, with a comprehensive documentation of the existing literature. M. ReismanlM. S. McDougal, "Humanitarian Intervention to Protect the Ibos", in: R. B. Lillich (ed.), Humanitarian Intervention and the United Nations, 1973, 167 (177); Tesbn, see note 115, 131; K. Doehring, "Die humanitire Intervention - ~ b e r l e p n g e nzu ihrer Rechtfertigung", in: The Modern World of Htrman Rights. Errays in Honour of Thomas Buergenthal, 1996,549 et seq., (551). U N C I O VoLVI, 304, 335; for further references see I. Brownlie, Inteunational Law and the Use of Force by States, 1963,265 et seq.; see also U. Beyedin, "Humanitarian Intervention", in: R.. Bernhardt (ed.), EPIL, 2nd edition, Vol. 11, 1995, 926 (927).

l56


comprehensive ban o n the use of force in international relations"'. Additionally, there are good reasons t o argue that any humanitarian intervention interferes with the political independence of the state concerned and m u s t therefore be considered t o contravene Article 2 para. 412". F o r these reasons it is not possible t o hold that the w o r d i n g of Article 2 p x a . 4 allows f o r humanitarian interventions. A second argument in favour of unilateral humanitarian intervention is that the collective system established in Chapters V1 a n d V I I of the Charter of t h e United Nations had failed t o meet its objectives. I t is argued that the comprehensive ban o n the use of force in Article 2 para. 3 was subject t o a functioning- collective system. T h e failure of the Securitv Council to meet its tasks under Chapter V I I required a search for alternative means of ensuring international peace and security1-". This argument neglects t w o important considerations. Firstly, t h e delegates at the San Francisco Conference had seen the danger of misfunction of the collective system. A s a remedy the) included the right t o individual o r collective self-defence in Article 51 12'. A n d secondly, t h e argument presupposes that the mechanism of Chapter V I I was designed t o be used against internal violations of: h u m a n rights, since that is the sole purpose of a humanitarian intervention. T h e application of C h a p t e r V11 of the Charter in order t o stop violations of h u m a n rights is a rather recent development b y the practice of the Council in Somalia and IraqE'. F o r this reason the conclusion from the malfunction of the Charter system during- the C o l d \Var to a right to humanitarian interventiorl is not

D. \X'. Bowett, Seq-Defence

tn Internatzonal Lax', 1958, l51 et seq.; T. Farer, "The Regulation of Foreign Intervention in Civil Armed Conflict", R d C 112 (1971), 291 (388); D. Schindler, "Die Grenzen des ~ o l k e r rechtlichen Gewaltverbots", Reports D G V R 26 (1986), l 1 (14); L.Beyerlin, "Die israelische Befreiungsaktion von Entebbe aus \-olkerrechtlicher Sicht", Z a o R V 3 7 (1977), 213 (217); I. Brownlie, International La;: a n d the Lse of Force b y States, 1963, 265 et seq.; R. hI. Derpa, Dax G e x a l t v e r b o t der Satzung der \'ereinten h'ationen u n d dte Anx'endtrng nicht-mtlitarzscher Gewalt, 1970, 30 et seq.; X. Randelzhofer, "Use of Force", in: R. Bernhardt (ed.), E P I L 4 (1982), 265 (269 et seq.); A. Randelzhofer, " O n Article 2 (4)", 106 et seq., hln. 34 et seq.; in Simma, see note 25; B. L7. Roling, "Aspects of the Ban on Force", ;VILR 24 (1977). 242 (246 et seq.). h'l. Akehurst, "Humanitarian Intervention", in: H. Bull (ed.), Intervention in World P o h c s , 1984, 95 (105). M. Reisman, "Coercion and Self-determination. Construing Charter Article 2 (3)", A J I L 78 (1984), 612 et seq. (643). See U N C I O Vol,XII,682,688 (Australia), 777 (France) and 781 (Turkey). For details see infra, p. 158 et seq.


157

A third argument for the legality of humanitarian intervention is that it could be considered a customary law exception to the universal prohibition of the use of force125.With respect to the customary law argument it is important to note that the pre-Charter practice is of only limited value since the treaty based prohibition of the use of force in Article 2 para. 4 must be given priority over the pre-Charterpractice126.Furthermore, even for the time before the Charter of the United Nations entered into force, the existence of a customary law foundation for the doctrine of humanitarian intervention was not free from d o ~ b t s ' ~ 'I. n any event, under the Charter of the United Nations n o cases may be found which would clearly support a customary law exception for humanitarian intervention^'^^. -The main argument advanced against unilateral humanitarian intervention is the danger of abuselZ9.The opponents to a humanitarian exception to the of use of force argue that it would be difficult to restrict such an exception to situations where the humanitarian aspect is obviousi3'. The argument of possible abuse is all the more important since it is hard to imagine that potential unilateral intervenors could be bound to the criteria developed by international lawyers in order to limit the scope of a humanitarian exception to the prohibition of the use of force131. For

'24

I2j

126 '27

128

"Y I3G

131

AS to some modifications to this assessment in the light of the recent practice of the Security Council to protect human rights also under Chapter V11 of the Charter, see infra, p. 163 et seq. J. P. Fonteyne, "The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity under the UN-Charter", CaL WZnt'l L.,/. 4 (1974), 203 (232 et seq.); see also M. Keisman, "Allocating Cornpetences to Use Coercion in the Posc-Cold War World: Practices, Conditions and Prospccts", in: L.F. DarnroschID. Scheffer (eds.), L a w and Force in the N e w International Order, 1991,26 (35). P. Malanczuk, Humanitarim Intervention, 1993,27. Malanczuk, ibid., 10. T. Farer, "An Inquiry into the Legitimacy of Humanitarian Intervention", in: Darnrosch/Scheffer, see note 125, 185 (193); 0. Schachter, International L a w in Theory and Practice, 1991, 124. See for instance, J. Zourek, L'tnterdictton de l'emplot de la force en droit international, 1974,124. Malanczuk, sce notc 126,30; K. Hailbronner, "Die Grenzen des volkerrechtlichen Gewaltverbots", Reports D G V R 26 (1986), 49 (100); U. Beyerlin, Die humanitare Aktion z u r G e w ~ h r l e i s t u neines ~ Mzndeststandards in nicht-internationalen Konflikten, 1975, 66. R. B. Lillich, "Humanitarian Intervention through the United Nations: 'Ihwards the Development of Criteria", ZaoRV 53 (1993), 557 (562 et seq.); J. P. Fonteyne, "The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity under the UN-Char-

158


this reason unilateral humanitarian interventions have to be considered as constituting a violation of Article 2 para.4 and hence illegal under current international law132.

2. Collective Humanitarian Intervention by the United Nations O n the level of the United Nations, the legal question presented by collective intervention for humanitarian purposes is whether and under which circumstances violations of human rights may be considered to constitute a threat to the peace according to Article 37. There is an older, restrictive interpretation of Article 39 which views the provision closely interrelated with the prohibition of use of force in Article 2 para.4, the prohibition of intervention into internal affairs and with the right to individual and collective self-defence in Article 51. This interpretation comes t o the conclusion that only military force with massive cross-border effects can meet the requirement of "threat to thepeace"133.It is also argued that the term had to be seen in connection with preventing o r stopping military hostilities o r ,genocide, otherwise everything could be said t o serve the maintenance o r restoration of peace134. According t o most authors, b y contrast, the Security Council possesses a large margin of appreciation as far as the conditions laid d o w n in Article 39 are concerned"'. Following the recent practice136of the Council in

132

133

134

135

136

ter", Ca1.WInt'l L.J. 4 (1774), 203 (235); W. D. Verwey, "Humanitarian Intervention", in: A. Cassese (ed.), The Curvent Regulation of the Use of Force, 1986, 57 (74 et seq.); Pauer, see note 116, 197 et seq. Schachter, see note 128, 123 et seq.; T. Farer, "Human Rights in Law's Empire: The Jurisprudence of War", A J I L 85 (1991), 117 (126); Malanczuk, see note 126,26 et seq.; Beyerlin, see note 130,64 et seq. J. Arntz, Der Begriff der Friedensbedrohung i n der Satzung der Vereinten Nationen, 1975,64 et seq.; for further references see Pauer, see note 116, 82 (footnote 6). B. Graefrath, "Iraqi Reprations and the Security Council", ZaoRV 55 (1995), 1 (15). J. A. Frowein,"On Article 39", 605 ct seq., Mn. 16 et seq., in: Simma, see note 25; H.Kelsen, The L a w of the United Nations, 1950, 727 et seq.; R. Higgins, T h e Development of Intevnataonal Law thvough the Political Organs of the United Nations, 1963,173 and 176. For earlier cases see T. M. Franck, "The Security Council and "Threats to the Peace": Some Remarks on Remarkable Recent Developments", in: R.-J. Dupuy (ed.), Le De'veloppement d u r6le du Conseilde SCcuritP, 1993, 83 (89 et seq.).


159

Iraq137,Yugoslavia138, S ~ m a l i a ' and ~ ~ ,Rwanda14' there seems to be consent that massive internal use of force may fulfil1 the criterion of "threat to the peace" in cases where such use of force has cross-border effects, for instance where refugees flee to neighbouring ~ o u n r r i e s ' ~ ' . A further step towards collective humanitarian intervention may be seen in the actions taken by the Security Council following the coup against President Aristide of Haiti in September 199114" Jean-Bertrand Aristide took over the office as President of Haiti in February 1991. His government was overthrown only eight months later and President Aristide was forced to leave the country'43. The O A S reacted firstly by imposing a trade embargo'44. As already mentioned, the trade embargo was later made universally mandatory by the Security Council in S/RES/841 (1993) of 16 June 1993 at the request of the exile government set u p by President Aristide14'. In July 1993 an agreement was reached between the new junta and President Aristide according to which President Aristide would be allowed t o return to the country and a government supported by a majority in Parliament would be rein~tated"~.When the military government in Haiti did not implement these commitments the Security Council authorized member states of the United Nations in S/RES/ 940 (1994) of 31 July 1994 to "form a multinational force under unified command and control and, in this framework, to use all necessary

l37

138

l39

140 '41

142

l43

l44

l45 146

SIRES/ 688 (1991) of 5 April 1991. Even the first resolution in the Yugoslav crisis, S/RES/ 713 (1991) of 25 September 1991, which was adopted before the declaration of independence by Croatia and Slovenia on 8 October 1991, qualifies the continuation of the situation as a threat to the peace because of its cross-border effects. SIRES/ 794 (1992) of 3 December 1992. S/RES/ 929 (1994) of 22 June 1994. Frowein, see note 135, Mn. 19; R.B. Lillich, "Humanitarian Intervention through the United Nations: Towards the Development of Criteria", ZaoRV53 (1993), 557 et seq. (574); Malanczuk, see note 126, 25. R. B. Lillich, "The Role of the U N Security Council in Protecting Human Rights in Crisis Situations: U N Humanitarian Intenrention in the PostCold War World", Tul.J.Int'1 & Comp.L. 3 (1995), 1 (9 et seq.). For details of the events in Haiti, see D. E. Acevedo, "The Haitian Crisis and the OAS response", in: L.F. Damrosch (ed.), Enforczng Restraint, 1993, 119 et seq. MRE/RES.1/91 and 2/91, reprinted in Doc. A/47/975=S/26063 of 12 July 1993. DOC.S/25958 of l 6 July 1993. Governors Island Agreement, Doc. A/47/975=S/26063 of 12 July 1993, 2 et seq.

160


means to facilitate the departure from Haiti of the military leadership, consistent with the Governors Island Agreement, the prompt return of the legitimately elected President and the restoration of the legitimate authorities of the Government of Haiti [...ln. The situation in Haiti was different from the collective interventions referred to above in so far as the cross-border consequences of the military coup were rather limited and the new military leaders managed to consolidate their power quickly. A difference which is also visible in the wording of resolution 940 where the military government is referred to as "illegal de-facto regime". The main reasons for the intervention therefore have to be seen in the serious violations of human rights committed by the new military rulers. This motivation is evidenced in the text of Resolution 940 : "The Security Council, Gravely concerned by the significant further deterioration of the humanitarian situation in Haiti, in particular the continuing escalation by the illegal de facto regime of systematic violations of civil liberties, the desperate plight of Haitian refugees and the recent expulsionof the staff of the International Civilian Mission (MICIVIH), which was condemned in its Presidential statement of 12 July 1994 (S/PRST/1994/ 32)". It is interesting to note that with the formula "civil liberties" instead of "human rights" the Council not only mentions the basic rights of freedom of the human person, but also includes rights of participation in a democratic society14'. Furthermore, S/RES/748 (1992) of 31 March 1992 concerning Libya may be referred to in this context. I n this resolution the term "threat to the peace" was interprcted in a particularly broad manner'48. The Council applied under Chapter V11 of the Charter non-military sanctions against Libya since the latter did not honour the obligations created in S/RES/731 (1992) of 21 January 1992. Therefore Libya was ordered to extradite two of its nationals who were suspected of being involved in the terrorist bombing of Pan A m flight 103 over Lockerbie (Scotland) o n 21 December 1988149.In resolution 748 the Council determines the threat to the peace created by the situation in the following way:

l47

148

'49

Rather critical towards such an extensive interpretation of the term "threat to the peacc", M. Glennon, "Sovereignty and Community after Haiti: Rethinking the Collective Use of Force",A]ZL 89 (1995), 70 et seq. See Frowein, see note 135, Mn. 19. As to the factual background of the terrorist attack, see the introductory note in K. C. Wellens, Resolutions and Statements of the United Nations Security Council(1946-1992) - A Thematic Guide, 1993,292.


161

"Determining, in this context, that the faiiure by the Libyan Government t o demonstrate by concrete actions its renunciation of terrorism and in particular its continued failure to respond fully and effectively t o the requests in resolution 731 (1992) constitute a threat to international peace and security, [...l". The legality of that resolution is still in dispute before the ICJ in two parallel proceedings instituted by Libya against the United States of America and against the United Kingdom, in which Libya asked the Court, inter alia, to state that it had fully complied with all its obligations arising out of the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation of 23 September 1971'j3. Libya also asked for the consideration of interim measures in which the United States and the United Kingdom should have been ordered not to apply coercive measures against Libya. Libya maintained that there was no threat to the peace and hence resolution 748, which had been adopted while the proceedings were pending, was in contravention to the provisions of the Charter'jl. In its decision on interim measures the Court declined to consider such an order, arguing that there was prima facie a presumption that Security Council decisions were lawfully taken under the Charter15*. While not deciding the question of the legality of the resolution, the decision may be seen as a tendency t o accept the extensive interpretation of Article 3915' which is prevailin- not only in the cited practice of the b' Council, but also largely accepted in literature'j4. 150 151

152 l53

'54

I L M 10 (1971), 1151 et seq. ICJ Reports 1992, 114 et seq. (126), para.39. Ibid., para.41 et seq. T. Franck, "The "Powers of Appreciation": Who is the Ultimate Guardian of U N Legality?",AJIL 86 (1992), 519 (521 et seq.). J. A. Frowein, "On Article 39", 605 et seq., Mn. 19, in: Sirnma, see note 25; J. Delbruck," A Fresh Look at Humanitarian Intervention Under the Authority of the United Nations", Ind. L. J. 67 (1992), 887 (899); J. Delbruck, "A More Effective International Law or a New "World Law"? - Some Aspects of the Development of International Law in a Changing International System", Ind. L. J. 68 (1993), 705 (71 1); A. Roberts, "Humanitarian war: Military Intervention and Human Rights", Int'l AjJ 69 (1993), 429 (444 et seq.); P. Malanczuk, Humanitarian Intervention, 1993, 25; K.-K. Pease/D. P, Forsythe, "Humanitarian Intervention and International Law", Austvian J. Publ. Int. Law 45 (1993), 1 (1 1 et seq.); D. P. Forsythe/K.-K. Pease, "Human rights, Humanitarian Intervention and World Politics", H R Q l 5 (1993), 290 (308); M. R. Hutchinson, "Restoring Hope: U.N. Security Council Resolutions for Somalia and an Expanded Doctrine of Humanitarian Intervention", Harv.Int'1.L J. 34

162


Interestingly, in the context of collective humanitarian interventions by the United Nations only few authors raise the argument of danger of abuse which is frequently referred to in respect of unilateral humanitarian i n t e r ~ e n t i o n ' ~The ~ . reason may be seen in the procedural requirements for decisions by the Security Council. For a collective humanitarian intervention by the United Nations unanimity of the permanent members and a majority in the Council are required. This collective decision-making is obviously viewed as presenting a procedural guarantee against abusive interventions by the United Nations. Recent developments are largely seen as establishing a right to collective humanitarian intervention through the United nation^'^^.

3. Collective Humanitarian Intervention

by Regional Organizations

The practical possibilities of protecting human rights by regional interventions are evidenced by the ECOWAS action in Liberia, which was officially justified by massive violations of human rights which had occurred because of the particularly atrocious civil war in the ~ o u n t r y ' ~ 'The . idea of setting up a regional intervention force (African Crisis Response Force) to cope with the desperate situation of refugees in the Great Lakes Re-

l55

156

157

(1993), 624 (636 et seq.); 0 . Corten/P. Klein, "L'autorisation de recourir i la force ides fins humanitaires: droit d'ingtrence ou retour au sources?", EJIL 4 (1993), 506 (531). But see L. F. Damrosch, "Commentary on Collective Military Intervention to Enforce Human Rights", in: L.F.Damrosch/ D.Scheffer (eds.), Law and Force in the New International Order, 1991,215 (220). R. B. Lillich, "Humanitarian Intervention through the United Nations", ZaoRV 53 (1993), 557 et seq. (574); D. Eisner, "Humanitarian Intervention in the Post-Cold War Era", B. U.Int'l L.J. 11 (1993), 195 (220); T. Marauhn, "Humanitar motivierte militarische Aktionen", Humanitares Volkerrecht - Informationsschriften, 1993, 20 (21); see also C. Greenwood, "Gibt es ein Recht auf humanitare Intervention"?, EA 4 (1993), 93 et seq.; W. Kiihne, "Volkerrecht und Friedenssicherung in einer turbulenten Welt: Eine analytische Zusamenfassung der Grundprobleme und Entwicklungsperspektiven", in: W. Kuhne (ed.), Blauhelme in einer turbulenten Welt, 1993, 17 et seq.; with some doubts Malanczuk, see note 126, 30; H. FreudenschuB, "The Changing Role of the U.N. Security Council: Trends and Perspectives", in: Kuhne, see above, 151 (157 et seq. and 161). D. Wippman, "Enforcing the Peace: ECOWAS and the Liberian Civil War", in: L. F, Damrosch (ed.), Enforcing Restraint, 1993, 157 (179 et seq.).


163

gion15' may also be seen as a regional approach to humanitarian intervention. Furthermore, the OAS indicated the possibility of regional humanitarian interventions in its Santiago Commitment to Democracy and the Renewal of the Inter-American System159.Under the law of the Charter of the United Nations the question has to be answered whether regional humanitarian intervention would constitute "enforcement action" under Article 53 and hence requires Security Council authorization. First of all, one has to focus on the legality of collective humanitarian intervention through the United Nations. The analysis in the previous section has shown that humanitarian action by the United Nations is based on Chapter VII of the Charter. This legal basis implies that it is the decision under Chapter V11 which justifies the collective humanitarian action with respect to the prohibition of the use of force in Article 2 para. 4. The interpretation of the term "enforcement action" in Article 53 resulted in the conclusion that the possible violation of Article 2 para. 4, must be considered as the decisive criterion to qualify regional action as "enforcement action". Hence, all regional measures which need a justification with respect to the prohibition of the use of force must be authorized by the Co~ncil'~ This ~ . interpretation of Article 53 leads to the conclusion that a humanitarian intervention by a regional organization is only possible under the condition that it is authorized by the Council under Article 53. However, the delayed decision on a multinational force for humanitarian purposes in the Great Lakes Region and Eastern Zaire16' revealed that in cases of urgent need alternative mechanisms are necessary to provide for rapid reaction. Therefore, the question may be asked whether some of

'58 l59

160 161

Africa ConfidentGzl37 (1996), 8. This is most explicitly expressed in resolution AG/RES. 1080 (XXI-2/91) of 5 Tune 1991: " 1. Instruir a1 Secretario General aue solicite la convocacicin inmediata del Consejo Permanente en caso de que produzcan hechos que occasionen una interrupci6n abrupta o irregular del proceso politico institucional democritico o del legitimo ejercicio del poder por un gobierno democriticamente electo en cualauiera de 10s Estados miembros de la Organizaci6n para, en el marco de la Carta, examinar la situacicin, decidir y convocar una reuni6n ad hoc de ministros de relaciones exteriores, o un periodo extraordinario de sesiones de la Asamblea General, todo ello de un daze de 10 dias. 2. Expresar que la reuni6n ad hoc de ministros de relaciones exteriores o el periodo extraordinario de sesiones de la Asamblea General tenga por objeto analizar colectivamente 10s hechos y adoptar las decisioner que re estime apropriadas, conforme a la Carta y a1 derecho internacional." (Italics added by the author). See supra, p. 141 et seq. S/RES/1080 (1996) of 15 November 1996.

164


the arguments advanced by the proponents of aunilateral right to humanitarian intervention may be applied to justify collective humanitarian interventions by regional organizations. O n e of the arguments for the legality of unilateral humanitarian intervention was that the collective system of the Charter might not work properly and alternative solutions for such failure were necessary'62. The main reason why this argument was considered inconclusive was that Chapter V11 of the Charter originally was not designed to ensure international protection of human rights. However, the Council has used Chapter V11 for collective humanitarian intervention in recent years and one might ask whether this practice also allows for new arguments in case of inaction by the Council. If the Security Council is competent to intervene under Chapter V I I against violations of human rights, the question arises what the law is if the Council is unable to act because it is blocked by a veto. Is the answer then that no action against massive violation of human rights is lawfully possible? The question may seem somewhat theoretical in a situation where the Council is generally operating reasonably well. But the hesitations on the American side against intervening in the Great Lakes Region and the delay caused by these hesitations show that the question is of practical relevance. Furtherniore, it is not self-evident that China and Russia keep their positive o r at least neutral position as to humanitarian interventions through the United Nations. In the Haitian case China abstained from the vote but gave a statement which was very critical of collective use of force'63. In fact, the statement could easily have been used to explain a veto. The Chinese veto in January 1997 when the Council decided o n an observer mission for Guatemala further underlines this ob~ervation'~~.

'62 163

164

See the reference in note 121. "However, we cannot agree to the provision in the draft resolution before us concerning the authorization for Member States to adopt mandatory means under Chapter V11 of the United Nations Charter to resolve the problem of Haiti. As always, China advocates a peaceful solution to any international disputes or conflicts through patient negotiations. China does not agree with the adoption of any means of solution based on the resort to pressure at will or even use of force. [...l the practice of the Council's authorizing certain Member States to use force is even more disconcerting because this would obviously create a dangerous precedent.[...]", Doc. S/PV.3413 of 31 July 1994, 10. See the reference in Press Release SC 6314 of 20 January 1997, which was issued when the Council finally decided to establish the mission with S/RES/1094 (1997) of 20 January 1997.


165

Professor Reisman starts his argument o n the premise that the collective mechanism established in c h a p t e r VII of the c h a r t e r and the prohibition of the use of force are closely interrelated. According to him, the member states of the United Nations only accepted the ban o n the use of force under the condition that the collective system was working165.This argument faces the objection that the d e l e w e s in San ~ r a n c i s c osaw t h e b problem and included the right to indiv~dualand collective self-defence into the Charter'66. The relationship between Article 2 para.4, Article 39 t o 42 and Article 51 may be described as follows. The normal reaction to a threat to the peace would be a decision under the collective system under Chapter V11 of the Charter. In the absence of collective measures, states may use self-help in accordance with Article 51. It is important to note, however, that the conditions of Article 51 are more difficult to meet than those of Article 39. A "threat t o the peace" in the sense of Article 39 is possible without the use of military force, while the "armed attack" necessary under Article 51 requires the cross-border use of military forceI6'. I n its Nicaragua decision the ICJ even came to the conclusion that not all measures prohibited as use of force under Article 2 para.4 could be qualified as armed attack in the sense of Article 5116'. It follows from this analysis that the right to individual and collective self-defence has to be understood as a last resort in case of emergency created by Security Council inactivity. This character of Article 51 is important with respecr to the recent Security Council applications of Chapter V11 to situations of humanitarian emergencies. When the Charter was framed in 1945 Chapter V11 was viewed as allowing for collective measures in classical international conflicts. Hence, the emergency solution of Article 51 was only designed to meet such situations. With the wording "armed attack" it requires a military cross-border activity of some intensity'6". The situation of a

M.Reisman, "Coercion and Self-determination. Construing Charter Article 2 (4)", AJfL 78 (1984), 642 et seq. (643). See the references in note 122. A. Randelzhofer, "On Article 5 1",661 et seq., Mn. 16, in: Simma, see note 25. "The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces." Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986,14 et seq. (103), para.195. See the quotation from the Nicaragua-Judgment above.

166


humanitarian intervention, however, is characterized b y the facc that massive violations of human rights, not necessarily with military crossborder effects, constitute the reason for intervening. Sometimes a crossborder effect may be seen in refugee fluxes from one country t o another, but these consequences d o not amount to an "armed attack". T h e conclusion is that with respect to the protecrion of human rights under Chapter VII of the Charter no individual o r collective emergency solution is . . envisaged in the Charter. This lacuna is a result of the extensive practice of the Security Council under Chapter V11 of the Charter. With respect to Security Council inaction in case of hun~anitarianneed w e are today facing a situation comparable to that of the founding fathers of the Charter before they agreed o n the right to self-defence in Article 51. However, w e are not framing the Charter but remain subject to its provisions and there is n o provision similar to the right of self-defence which could be applied to humanitarian interventions. Hence, the conclusion would be that n o humanitarian action is possible if it is not decided o n by the Security Council. Nevertheless, the desperate need of the refugees in the Great Lakes Region in October 1996 and the situations in Burundi and Rwanda in 19% reveal that there is a necessity for alternative action. Could it be possible t o develop criteria with which a humanitarian intervention in case of an inactive Security Council might be justified? A first idea o n how to fill the lacuna created by Security Council inaction might be t o substitute the decision of the Security Council b y a decision of the General Assembly. This would mean applying the "Uniting f o r Peace" Resolution of the General A ~ s e r n b l y t' ~ o ~the problem of a blocked humanitarian intervention by the Council. There are good reasons to argue that n o enforcement action may be taken following a recommendation by the General Assembly under the Uniting for Peace Resolution171. But even apart from these doubts concerning the legality of such

170 171

A/RES/377 (V) of 3 November 1950. "Although the Uniting for Peace resolution enables the Assembly to act in situations in which Article 12 would ordinarily prohibit it, so as not to interfere with the Security Council's handling of a situation under consideration by the Council, the Assembly under that resolution can only take the types of actions that are within its normal competence. If the Security Council fails for any reason to take any action that is within its special competence, the Assembly cannot substitue itself - even by adopting a resolution that could be interpreted as granting itself such powers." P. Szacs, "Centralized and Decentralized Law Enforcement: The Security Council and the General Assembly Acting under Chapters V11 and VIII", in: J. Delbriick (ed.), Alllocation of Law Enforcement Authority in the Int~rnntionalSystem. Proceedings of an International


167

course of action, it seems obvious from a political point of view that General Assembly decisions are far too difficult to reach and the process would undoubtedly be too slow to be considered as an effective emergency solution. A n alternative might be to consider regional organizations as emergency actors172. Another possibility might be to take u p the idea which may be found behind Article 51'73. The right t o self-defence is designed as an emergency solution in situations where the collective system does not fulfil1 its peace-preserving o r peace-restoring functions. A n analogous application of the emergency function of Article 51 would have to take into account the limited applicability of the provision. As already pointed out, the possibilities of the Security Council under Chapter V11 of the Charter are much broader than the right to self-defence according to Article 51. The Charter requires states to accept a larger degree of illegal interference before reacting independently of the Security Council. Self-help is limited t o the minimum necessary to protect the integrity of the state. This qualification of emergency action under Article 51 would have to be respected when developing an emergency solution f o r the protection of human rights in cases of Security Council inaction. Hence a regional right to humanitarian intervention would have to face a number of restrictions. Firstly, it would have to be restricted to situations in which the Security Council is unable to decide o n a universal intervention. This is the nccessary consequence of the emergency character. Secondly, the conditions under which recourse to the emergency right could be possible would require violations of human rights, just as Article 51 requires a qualified violation of Article 2 para. 4. This raises the question of criteria

172

'73

Symposium of the Kiel Institute of International Law, March 23 to 25 1994,1995,17,34 et seq.; see generally E. Stein1R.C. Morrissey, "Uniting for Peace Resolution", in: R. Bernhardt (ed.), EPIL 5 (1983), 379 et seq. (380); M. Akehurst, "Enforcement Action by Regional Agencies, with Special Reference to the Organization of American States", BYZL 42 (1967), 175 et seq. (215). See in this respect J. Delbruck, "Wirksameres Volkerrecht oder neues "Wcltinnenrccht"? Perspektiven der Volkerrechtsordnung in einem sich wandelnden internationalen System", in: Kuhne, see note 156, 101. (26 et seq.). The following suggestion does not mean applying Article 51 to the individuals or groups subject to human rights violations, but rather makes use of the function fulfilled by Article S1 within the system established by the Charter. For an interesting argument on the basis of the rights to self-defence and self-help by the persons concerned, see Doehring, see note 117, 562 et seq.

168


for the qualified violations of human rights. Such criteria could be developed from the jurisprudence of the ICJ in the Barcelona-Traction Judgment, where the Court qualified "basic rights of the human person" as obligations erga ~ m n e s ' The ~ ~ .Court expressly mentioned in this context the prohibition of genocide and the prohibition of racial discrimination. Apart from that, the question of which rights may be considered as the most basic human rights is difficult t o answer. The examples given by the ICJ stress the fact that the core rights of the human person form part of the erga omnes concept175,while civil liberties of democratic participation, which are also protected in international instruments, would not be inc l ~ d e d ' ~Another ~. area from which criteria could be adopted is the so-called 1503-procedure of the UN Commission o n H u m a n Rights177. E C O S O C invented this procedure for dealing with individual communications concerning violations of human rights in Resolution 1503 (XLVIII) of 27 May 1970. The procedure provides for the establishment of a Working Group of the Sub-Commission, which meets for a maximum of ten days immediately before the sessions of the Sub-Commission. Its

l74

175

176

"In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-b-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1951,15 (23)); others are conferred by international instruments of a universal or quasi-universal character." Barcelona Traction, Light and Power Company, Limited, ICJ Reports 1970, 3 et seq. (32, paras. 33 et seq.). AS to the legal structure of erga omnes norms, see C. Annacker, "The Legal Regime of Erga Omnes Obligations in International Law", Austrian J. Publ. Int. Law 46 (1993/94), 131 et seq. See J. A Frowein, "Verpflichtungen erga omnes im Volkerrecht und ihre Durchsetzung", in: R. Bernhardt et al. (eds.), Volkerrecht als Rechtsord-

nung - Internationale Gerichtsbarkeit - Menschenrechte. Festschrift fur Hermann Mosler, 1983,241 (244). l77

The 1503-procedure is also discussed with respect to humanitarian intervention in: C. Tomuschat, "Gewalt und Gewaltverbot als Bestimmungsfaktoren der Weltordnung", E A 36 (1981), 325 (332 et seq.).


169

task is t o determine which communications reveal "a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms" and t o place them before the Sub-Commission. The Sub-Commission has to determine which communications should be referred to the Commission o n H u m a n right^"^. A combination of the two criteria could allow to formulate conditions for a regional emergency intervention corresponding t o the qudification of an "armed attack" in Article 51. A regional humanitarian intervention in case of Security Council inaction would then be possible if the human rights violations may be considered as a "consistent pattern of gross and reliably attested violations of basic rights of the human person". In contrast t o the 1503-procedure a regional humanitarian intervention would involve the use of military force. Against this background, and in view of the qualification in Article 51, a further criterion could be seen in the internaluse of military force resultingin the violations of human rights. The regional humanitarian intervention, therefore, would require that the above-mentioned consistent pattern of violations was due to massive use of organized military force resulting in numerous losses of human lives179. If these criteria are applied t o the recent interventions, a regional intervention would not have been possible in a situation comparable to the one in Haiti in 1991/1992. But they could have justified a regional intervention in a situation of genocidal character such as in Rwanda in 1994. If regional humanitarian intervention was viewed as an emergency solution comparable to the right to individual and collective self-defence in Article 51, the question of structural inability to act in the Security C o u n c ~ lwould lose its importance. The emphasis then shifts to the existence of an emergency situation. In the same way as collective self-defence under Article 51 does not require a general paralysis of the Council as it occurred during the Cold War, regional humanitarian interventions would not require structural inability t o act on the Council's part either. The criteria just developed would simply correspcind to the necessity of an "armed attack" in Article 51. If they are fulfilled regional action could be justified, such action would have t o cease in analogous application of Article 51 sentence 2 once the Council has taken the necessary measures.

'79

SCCC. Tomuschat, "Human Rights, Petitions and Individual Complaints", 619 et seq., (621), Mn. 6, in: R. Wolfrum (ed.), United Nations: Law, Policies and Practice, Vol. I , 1995,619 (621); as to the effectiveness of the procedure see P. Alston, "The Commission on Human Rights", in: P. Alston (ed.), The United Nations and Human Rtghts, 1992, 126 (145 et seq.). See J. N. Moore, "The Control of Foreign Intervention in Internal Conflict", Va.J.Znt'l L. 9 (1968/69), 205 (264).

170


A further argument for an emergency right of regional organizations in case of Sccurity Council inaction may be seen in the procedural guarantees against abuse which are ensured by means of the collective decision-making within the regional organization concerned. The necessity to find the majority required in the founding treaty of the organization - in most cases unanimity is necessary180- reduces the danger of abusive interventions using humanitarian necessity as a pretextls'. O n e should seriously take into account the possible counter-argument that the collective procedure may reduce the danger of abuse but it may not eliminate it. It is obvious that allowing for regional use of military force would create a dangerous loop-hole in the universal prohibition on the use of force. O n the other hand, it has to be seen that the question may not be solved by a clear cut answer. What is required is a reasonable balance between the danger of abuse, which is inherent in any transfer of competence, and the urgent need for action in situations where violations of human rights of genocidal character are taking place. In striking this balance a number of factors may be taken into account. Firstly, the character of an emergency solution implies that all other means of peaceful protection of human rights have to be exhausted before a regional organization may resort to the use of forcelS2.Secondly, the intervention has to be kept strictly to the minimum necessary to ensure the safety of the population of the country concerned. And thirdly, it should not be overlooked that abuse is also possible on the universal level of the Security Council of the United Nations. The discussions concerning the economic sanctions against Libya because of the failure to extradite the suspected terrorists demonstrate that even the Security Council may be criticized for extensive action. The danger of abuse can only be minimized, it cannot be banned completely. The consequence of a strict application of the prohibition of the use of force would be that in case of Security Council inactivity no emergency solution would be possible. This would leave the system of the Charter as it was originally established, but in some cases at a high humanitarian price.

180

1x1

182

Article 6 para. 2, of the League of Arab States (if the aggressor forms part of the League his vote is not counted); Article V WEU-Treaty; Article 5 NATO-Treaty; Article 20 Inter-American Treaty on Reciprocal Assistance requires a 213-majority. This argument is also admitted by those who argue against rcgional humanitarian intervention, see L. F. Damrosch, "Commentary o n Collective SecurityD,in: Damrosch/ Scheffer, see note 155,215 (221). See in this respect R.B. Lillich, "Humanitarian Intervention through the United Nations: Towards the Development of Criteria", ZaoRV 53 (1993), 557 (562 et seq.).


171

O n a line between complete inaction o n the one side and unilateral humanitarian intervention o n the other, collective regional action under the conditions developed above would seem t o present an alternative with some merits. I n any case, collective action is preferable to unilateral interventionism.

C. The Question of Control over Regional Action I. Control over Regional Peace-Keeping 1. T h e Distinction between Classical Peace-Keeping a n d R o b u s t Peace-Keeping In its original concept peace-keeping is designed to provide for neutral forces that were able to assist parties to a conflict in keeping a cease-fire to which they had previously c o n ~ e n t e d ' ~ 'Peace-keeping . basically takes place in two forms, either unarmed observers o r armed military units are deployed. There is no express legal basis in the Charter for ;he establishment of peace-keeping forces by the Security Council. However, since a peace-keeping force requires consent by the parties, there is n o doubt that it may not be established without the Councildeciding under Chapter VII of the Charter if the parties consent to the forceIx4. Some doubt has arisen as to the legal basis of peace-keeping forces in situations of civil strife. The question became relevant for the first time during the Congo crisis. While the Opiration des Nations Unies au Congo (ONUC) originally was stationed in the rebel province of Katanga with the consent of the local government, the enlargement of O N U C ' s mandatelg5led to increasing fighting between the peace-keeping force and local military units. The United Nations invoked a right to "active self-defence" which was characterized b y military action against anyone trying to dis-

183

184 18s

M. Bothe, "Peace-keeping", 565 et seq. Mn. 58 et seq., in: Simma, see note 25; see also M. Goulding, "The Evolution of United Nations Pericekeeping", Int.Aff: 69 (1993), 451 (453 et seq.). Bothe, see above, Mn. 68 et seq. "The Securicy Council [...l, 1. urges that the United Nations take immediately all appropriate measures to prevent the occurrence of civil war in Congo, including arrangements for cease-fires, the halting of all military operations, the prevention of clashes, and the use of force, if necessary in the last resort [...ln, SIRES1161 (1961) of 21 February 1961.

172


turb the force in achieving its mandate'86. It was conceived as a right to defend the mandate and thus ir: created a grey zone between peace-keeping and peace-er~forcement'~~. The model of active self-defence was also applied in Somalia and Bosnia-Herzegovina where Chapter V11 mandates were given to peace-keeping forces which were already in place18s. These mandates included the use of force, if necessary, to protect the civilian population. I n the U N P R O F O R case the mandate included the use of force to protect the "safe areas" established b y S/RES/824 (1993) of 6 May 1993. I n Somalia U N O S O M was given the mandate to "assume responsibility for the consolidation, expansion and maintenance of a secure environment throughout S ~ m a l i a " ' ~Both ~ . mandates conflict with the original concept of peace-keeping forces according t o which consent of the parties is the basis of their mission190.Since the original concept only includes use of military force in self-defence1'', peace-keeping forces are not equipped with the weapons necessary for enforcement action. With the Chapter V11 mandate requiring action against the Bosnian Serbs, UNPROFOR became in turn the target of Bosnian Serb military activities. This resulted in a number of blue-helmets being held hostages at important military points and under humiliating circumstances in May and June 1 9 9 5 ' ~Since ~ . a number of these hostages were nationals of NATO-countries, NATO air-strikes, which would have been possible under S/RES/ 836 (1993) of 4 June 1993, were not used in order to save the lives of the hostages. Thus the attempt to introduce a "robust" peace-keeping prevented effective enforcement action. This negative political record of U N P R O F O R is a confirmation of an analysis previously given by the As to the definition of "active self-defence" see Bothe, see note 183, Mn. 65. See the criticism by 0. Schachter, "Authorized Uses of Force by the United Nations and Regional Organizations", in: L.F. Damrosch/ D. Scheffer, (eds.), L a w and Force i n the N e w International Order, 1991,65 (84 et seq.). S/RES/814 (1993) of 26 March 1993, para. 14, and S/RES/837 (1993) of 6 June 1993, p a n . 5, concerning UNOSOM and S/RES/836 (1993) of 4 June 1993, para. 9 concerning UNPROFOR. S/RES/814 (1993) of 26 March 1993, para. 14. See generally Bothe, see note 183, Mn. 58et seq.; E. Suy, "United Nations Peace-Keeping System", in: R. Bernhardt (ed.), EPIL 4 (1982), 258 et seq. (261). R. Siekmann, National Contingents i n United Nattons Peace-Keeping Forces, 1992, 6. Report of the Secretary-General pursuant to S/RES/ 982 (1995) of 31 March 1995 and S/RES/987 (1995) of 19 April 1995, Doc. S/1995/444 of 30 May 1995, paras. 6, 55,58, 59 and 62.

Security Council Control over Rcgional Action

173

Secretary-General in his 1995 Addendum to "An Agenda for Peace""'. I n this Addendum the Secretary-General criticizes the idea of cnfurcement mandates for peace-keeping forces. H e argues that the "logic of peacekeeping flows from political and military premises that are quitc distinct from those of e n f o r ~ e m e n t " ' ~'Therefore ~. peace-keeping and peace-enforcement should be treated as distinct concepts'95. T h e conclusions drawn by the Secretary-General are compelling from a political point of view. Avoiding the tendency to disguise enforcement action as peace-keeping brings peace-keeping back to its consensual basis and it allows enforcement action to be perceived as what it really is. It also avoids the United Nations being drawn into enforcement operations without being sufficiently equipped. From a legal point of view, the limits of the power of a government to invite foreign troops may also be referred to. If there is only the consent by the government t o establish a peacekeeping force the legal issue arising is very much the same as the question of whether a government may invite foreign military forces for its support. This has been answered above in the negative for situations in which the government may not be seen to represent the whole country anymore because of lost authority196.The same argument applies for unilateral consent to peace-keeping by the government in situations of civil war. In such situation the consent of the rebel faction o r factions is necessary to establish a peace-keeping force in the traditional sense19'.

2. Consequences for t h e Application of Article 53 Para.1 t o Regional Peace-Keeping Missions Some authors argue that regional peace-keeping generally requires Security Council authorization under Article 53. This would imply a comprehensive control of the Security Council over regional peace-keeping. The main argument for including regional peace-keeping in the term "enforcement action" mentioned in Article 53 is that any use of military force creates a danger of cnforcement. According to these authors, the possible escalation which is inherent in the sending of troops, made it necessary that regional peace-keeping be authorized by the Security Council. Bear-

l93 l94

195

196 197

Doc. A/47/277=S/24lll of l 7 June 1992. DOC.A/50/60=S/l995/1 of 3 January 1995, para. 35. Doc. A/50/60=S/1995/1 of 3 January 1995, para.33 et scq. See supra, p. 149 et seq. See M. Bothe, Streatkrufte snte~nuttonalerO r g a n z s a t ~ o n ~1968, ~ t , 122 et seq., arguing that in civil wars the consent of factions with consolidated control over part of the territory was necessary to render an intervening force a peace-keeping force.

174


ing in mind the experiences of the United Nations "peace-keepingx forces in Somalia and Bosnia-Herzegovina it is indeed important to stress the potential danger that goes along with military involvement, especially in internal conflicts. Nevertheless, the principle "volenti non fit iniuria" remains applicable in this context. For classical regional peace-keeping missions which are carried out with the consent of the parties a Security Council authorization, therefore, is not necessary. Measures to which all parties consented lack the character of enforcement. This interpretation is supported b y a number of regional peace-keeping missions which were carried out without Security Council a u t h o r i ~ a t i o n ' ~Furthermore ~. the C S C E in its Helsinki Document of 1992 "The Challenges of Change" considered peace-keeping not to constitute enforcement action'99. The CSCE/OSCE carries out several observer missions in Eastern Europe without Security Council a u t h o r i ~ a t i o n ~ ~ ~ . If traditional peace-keeping does not constitute enforcement action in the sense of Article 53 one may raise the question whether this conclusion also applies to regional "robust peace-keepingD. Does the enforcement character which may be seen in the lack of consent by at least one of the parties to the civil war render such operations "enforcement action"? U p t o n o w "robust peace-keeping" has been limited to civil wars. In that particular context "robust peace-keeping" is linked with the question of the legality of invitations by the government. Where the government may lawfully invite foreign forces to combat internal rebellion the consent by the government deprives the action of its enforcement character and hence in such a situation no authorization b y the Security Council is required. F o r those situations in which the consent by the government cannot justify the regional military measures because the government lacks effective control the question of "enforcement action" arises. The "robust peace-keeping" missions established by the United Nations were under-

198

'99

200

Reference may be made to the Arab League Security Forces in Kuwait (for details see H . A. Hassouna, The League of Arab States and Regional Disputes, 1975, 102 et seq. and Doc. A/37/536 of 25 October 1982, 20), the Arab Security Force in Lebanon (for details see I. Pogan); "The Arab League and Regional Peacekeeping", NILR 34 (1987), 54 (61 er seq.)), and the O A U force in Chad (for details see, G. J. Naldi, "Peace-keeping attempts by the Organization of African Unity", ICLQ 31 (1985), 593 (593)). Helsinki Decisions, paragraph 111.22 and 23, reprinted in: A. Bloed (ed.), The Challenges of Change. The Helsinki Summit of the CSCE and its Aftermath, 1994,385 (400). See G. Scheltema, "CSCE Peacekeeping Operations", in: Bloed, above, 23, (41 et seq.).


175

taken with a Chapter VII mandatelO'. Even the new humanitarian mission to Eastern Zaire, the task of which is to facilitate the immediate return of humanitarian organizations to the region, is authorized under Chapter V11 of the Charter2c2.This qualification of the use of military force by the Council is indicative for the application of Article 53 para. 1, t o such measures. If the Council considers it necessary to decide under Chapter V11 in order to adopt a United Nations "robust peace-keeping" mandate then regional "robust peace-keeping" has t o be qualified as enforcement action under Article 53 para. 1, and hence requires Security Council authorization. This conclusion is of particular relevance for the new Statute o n Collective Peace-keeping Forces in the Commonwealth of Independent States, which was adopted on 19 January 1996203.The previous 1992 Peacekeeping Agreement204 stressed the necessity of consent b y all conflicting parties and required the adoption of a cease-fire agreement as well as the cessation of hostilities before the arrival of the peace-keeping force. However, apart from excluding participation in "combat action" the 1992 Agreement did not address the question of under which circumstances CIS peace-keeping forces may use their weapons. In this respect the new 1996 Statute contains the following interesting provision: "28. When performing their functions, the personnel of the Collective Peace-keeping Forces shall, by way of exception, have the right to use weapons: - To ensure their security and protection against any endangerment of their life and health in exercise of their inalienable right to self-defence; - In the event of attempts to prevent them by force from carrying out the functions entrusted to them; - To repel an overt armed attack by groups o r bands of terrorists o r saboteurs, and also in order to arrest them; - To,protect the civilian population from violent endangerment of their

201

202 203 204

For Somalia S/RES/814 (1993) of 26 March 1993, for Yugoslavia SIRES1 807 (1993) of 19 February 1993 was already adopted under Chapter V11 of the Charter; the creation of the "safe areas" in SIRES1824 (1993) of 6 May 1993 and their protection by use of military force in SIRES1836 (1993) 0i4 June 1993 were also decided under Chapter V11 of the Charter. SIRES/1080 (1996) of 15 November 1996. I L M 35 (1996), 783 et seq.; Kazakstan, Turkmenistan and the Ukraine are not parties to that Statutc. The Agreement 1s reproduced in a non-official English translation in Internatzonal Pcacckeepzng 1 (1994), 23 et seq.

176

Xlnv Planck Yearbook of United Nations Law

life and health.\Veapor~sma)- also be used to give an alarm signal o r call for assistance". In allowing the use of force for the protection of the civilian population and in order to repel attempts to prevent the peace-keeping force from carrying out its mandate the Statute corresponds to the concept of "robust peace-keeping" applied by the United Nations in Somalia and Bosnia and Herzegovina. The quoted pro\-ision of the 1996 CIS Statute must therefore be viewed as envisaging "robust peace-keeping" by CIS forces. According to the conclusions drawn above the CIS needs aSecurity Council authorization under Article 53 for this kind of peace-keeping. In para. 3 the CIS Statute on peace-keeping forces mentions itself the possibility of taking action under an authorization by the Security Council. However, it does not specify under nhichcircumstances the CIS would seek such an authorization. The CIS Statute could be brought in line with the requirements of the Charter if para. 3 was interpreted as foreseeing Security Council authorizations for peace-keeping measures which go beyond the traditional concept of peace-keeping and imply the use of armed force in situations other than self-defence. Hence, the reference to Security Council author~zationin para. 3 of the CIS Peace-keeping Statute should be interpreted as envisaging such authorization for "robust peacekeeping" by CIS forces.

11. Control over Regional Military Enforcement Action hlilitary action b?- regional organizations is envisaged with two alternatives in Article 53 : The Security Council may utilize regional organizations for enforcement action under its authority (Article 53 para.1, clause I ) o r it may authorize regional enforcement action according to Article 53 para.1 clause 2 first part. The two alternatives lead to the same result, namely that n~ilitaryaction is taken by a regional organization. But they differ with respect to the political initiative. While with the first alternative the Security Council initiates the action and the regional organization merely constitutes an executive organ, with the second alternative political initiative and execution remain with the regional organization. The Security Council's role is reduced to the autlmrLation of the action. It should be noted, however, that this theoretically clear distinction may lose its preciseness in practice. The Security Council may require certain changes in the concept proposed by the regional organization before the authorization is given. Furthermore, it is quite probable that some states are members both of the Security Council and of the regional organization concerned. This leads to earl!, coordination in and with the Council.

Security Council Control o v c ~Regional Action

177

Security Council control over regional enforcement action is guaranteed with both alternatives. With the first one, the action is taken under the authority of the Council which implies its control. With the second alternative, the control is exercised through the authorization. I n this respect one may ask how the authorization has to be given. Need it be explicit and prior to the enforcement action o r may the Security Council authorize regional enforcement action implicitly and/or ex post?

1. Prior and Explicit Authorization The Charter envisages prior and explicit authorization as a rulezo5.Under the aspect of Security Council control over regional action a prior and explicit author~zationwould constitute the most effective way of ensuring such control. The regional organization would present its concept to the Security Council and receive the authorization before using military force. The wording of Article 53, however, seems to be indifferent as to the form of the authorization206.The wording "authorization" does not exclude at first sight that an authorization be given ex-post o r implicitly. Are there other reasons w h y the authorization should be given explicitly and prior to the action? Viewed from the purpose of the requirement for an authorization, it must be asked whether an implicit o r ex-post authorization could ensure Security Council control over regional action. For both, implicit and ex-post authorizations there is little state practice. 2. Authorization Ex-Post The issue of ex post authorizations arose in the 1960s when the Security Council dealt with OAS sanctions against the Dominican Republic. The O A S had decided to break off diplomatic relations with the Dominican Republic and to impose economic sanctions o n the country207.Following this decision the Soviet Union presented a draft resolution in the Security Council which had the following wording:

205

206

207

J.A. Frowein, Das Verhaltnis zwkchen den Vereinten Nationen und Regionalorgantsationen bei der Frieden~sicherun~ und Friedenseuhaltung, 1996, 17. A. Verdross, Volkerrecht, 5th edition, 1964,654. Final Act of the Sixth Meeting of Consultation of Ministers of Forcign Affairs of 21 August 1960, Resolution I, OAS Official Records, OEAI Ser.CIII.6.; see also thc report according to Article 54 of the Charter in Doc. S14476 of 1 September 1960.

178


"The Security Council, Being guided by Article 53 of the Charter of the United Nations, Approves the said resolution of the Meeting of Consultation of Ministers of Foreign Affairs of the American States, dated 20 August 1960

[...lV. When interpreting these developments it should be kept in mind that the main concern of the Soviet Union was to create a precedent with respect t o the necessity of authorizing non-military sanctions208. Since the other members of the Council wanted to avoid such a precedent, the Council did not adopt the Soviet draft but decided only to take note of the measures209. The draft resolution shows that the Soviet Union and Poland2'', for whatever political reasons, considered ex-post authorizations to be possible under Article 53. It should also be noted that the Soviet draft was not rejected because it gave an ex-post authorization but only because the other members did not want non-military sanctions to be qualified as enforcement action requiring authorization under Article 5?1~'l. The main argument advanced against ex-post authorizations is that the Security Council would lose control over regional actions. The Council would be faced with faits a c ~ o r n ~ land i s ~regional ~~ organizations would start enforcement action hoping for approval by the C ~ u n c i l ~This ' ~ . could lead to increased regional military actions without Security Council con-

208 209

210

211

212

213

See supra. S/RES/156 (1960) of 9 September 1960: "The Security Council, Having received the report from the Secretary General of the Organization of American States transmitting the Final Act of the Sixth meeting of Consultation of Ministers of Foreign Affairs of the American Republics, takes note of that report and especially of resolution I approved at the aforesaid Meeting, whereby agreement was reached on the application of measures regarding the Dominican Republic." The resolution was adopted by nine votes to none with two abstentions (Soviet Union and Poland). See the debates preceding the resolution, SCOR, 894th Mtg. of 9 September 1960,6 et seq. The French delegate, however, argued that the authorization had to be given in advance (SCOR 15th Year 893rd Mtg. of 8 September 1960,15). But even this statement may be seen as part of the Western States' interest not to include non-military sanctions into the scope of Article 53. L. Henkin, "International Law and the Bchaviour of Nations", RdC 114 (1965), 167 et seq., 261. M. Akehurst, "Enforcement Action by Regional Agencies with Special Reference to the Organization of American States", BYIL 42 (1967), 175, 214.


179

trol. Hence, ex-post authorization could not be accepted under Article 53. Are these reasons really convincing? In looking for an answer one has to bear in mind the function of an authorization under Article 53. Its main task certainly is to ensure Security Council control over regional military action. As already mentioned the authorization forms part of the system of the Charter which concentrates the decision on l a w h l use of force within the Security Council. An authorization is necessary to ensure that it is the Security Council, which - leaving apart the right to self-defence under Article 51 - decides on the legality of using military force. Nevertheless, the interpretation of Article 53 has also to consider that the control by authorization is rather limited. In fact the necessity of an authorization cannot prevent the actual use of military force without such an authorization. This consideration reveals that Article 53 is the procedural solution of a problem to which material criteria are difficult to formulate and to enforce. In other words, since states may not easily be bound to certain criteria under which the use of force may be considered lawful, the Charter requires a Security Council authorization in order to legalize the use of force. The Charter thus vests the power to authorize use of force in the Security Council and in doing so it avoids the necessity to definc lawful use of force in an abstract manner. Instead, it is up to the Security Council to decide on a case by case basis on the legality of the use of military force. It is hard to see why this function of the authorization should not be fulfilled in an ex-post authorization. Without approval the regional use of military force would remain illegal from the beginning. Hence the Security Council would still maintain the decision on the lawfulness of use of force. Furthermore, in case of an approval by the Security Council it seems hard to imagine that such a decision of the Council should remain without legal consequences. Surely the Council itself would be estopped from invoking the illegality of the use of forcez14.Even if the matter was brought before the ICJ it does not seem possible that the latter would be able to decide on the legality of the use of force in question without taking into account the fact that the Security Council gave its approval215. Nevertheless, the argument of a danger of increased reg2onal interventionism should be seriously taken into account. It cannot be neglected that the possibility of an ex post authorization might be a motivation to act first and ask later for an approval. A second function of the authorization

214

J.A. Frowein, "Zwangsmal3nahmen von Regionalorganisationen", in: U. Beyedin et al. (eds.), Recht zwischen Umbruch und Bewahrung, Festschrift fur RudolfBernhardt, 1995,57 (65).

215

Frowein, see note 205,20.

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hIax Planck Yearbook of United Nations Law

might, therefore, be seeri in helping to reduce the number o i military interventions. Without prior Security Council consent their illegality would be manifest. However, the deterring effect of the consequences of intervention without authorization is already put into question by the number of regional interventions during the Cold War, none of which was authorized by the Council. But more important is to keep in mind that the emphasis which has been put into that argument was largely due to the specific danger of outside interventions into internal conflicts during the Cold War. It has already been pointed out that the political circumstances of civil wars have changed considerably. Of course it is still necessary to ensure Security Council control over regional use of military force. But the emphasis has been moving from containing super-power dominated regional hyperactivity to opening possibilities for a controlled but rapid redress for the devastating consequences of civil wars on the civilian population. The way in which the Security Council dealt with the Liberian crisis may illustrate the practical advantages of ex-post authorizations. As already described, the Liberian civil war started at the end of the year 1989 and by July 1990 President Doe had lost control over the country except for a small part of AIonrovia including the presidential palace'16. ECOWAS accepted President Doe's request for an "ECOWAS peacekeeping force" and sent a Cease-Fire Alonitoring Group ( E C O M O G ) . O n e of the rebel groups, the National Patriotic Front of Liberia (NPFL), which controlled most parts of the country including h.Ionrovia, did not accept E C O M O G as impartial and "declared war" o n the force2". It was only after several weeks of fighting that E C O M O G gained control over Monrovia"'. The Security Council did not immediately react to the sending of E C O M O G . The first reaction is a statement by the President of the Council dated 22 January 19912" in which the members of the Council "commend the efforts made h!, the ECO\SrAS heads of State and Government to promote peace and normalcy in Liberia". A second statement, quite similar in wording, is dated 7 hlay 1992"? These statements have been read as falling within the Council's power of appreciation to determine whether or not an authorization is necessary121.It is argued that the

For details of the de\-elopments see G. Nolte, "Restoring Peace by Regional Action", ZnoR\'j3 (1993). 623 et seq. Nolte, see above, 603 (608). Ibid., 608 et seq. Doc. S/22133 of 22 January 1991. Doc. W23886 of 7 XIa:. 1992. Nolte, see note 216, 633; Fron-cin, see note 205, 17.


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statements express the Council's view that the intervention did not require an authorization under Article 53. Since the statements do not give any indication as to the reason why an authorization was not necessary this question has to be answered in view of the circumstances of the Liberian crisis. Two possibilities are mentioned: either the intervention could be legally based on the invitation by President Doe222or an authorization was unnecessary because E C O M O G could be qualified as a peace-keeping force223. However, both alternatives are not entirely convincing. The qualification as a peace-keeping force faces the objection that E C O M O G was to a large extent involved in combat operations against the NPFLZz4 and the validity of the invitation must be questioned with respect to the limited effectiveness of President Doe's government225. In view of doubts which remain with respect to the legality of E C O MOG's intervention a third possibility may be taken into account. The reactions by the Security Council may be considered as an ex-post authorization. Before analyzing these reactions the further developments of the crlsis have to be taken into account. The two presidential statements of 22 January 1991 and 7 May 1992 were issued during a phase of relative stability in Liberia. O n 24 October 1990 an armistice came into forcezz6 and o n 31 Octobcr 1991 thc Agreement Yamoussoukro IV227was concluded. By summer 1992 the situation had deteriorated considerably. Although thc NPFL signcd the Yamoussoukro IV Agreement it did not honour its commitments. ECOWAS reacted by imposing an arms emHeavy fighting was the consequence of an attack on Monrovia by NPFI, rebels in October 199222y. Following these events, the Security Council for the first time during the crisis, reacted by adopting a formal resolution. In it the Council cornmended ECOWAS "for its efforts to restore peace, security and stability in I,iberia"230.Similar wording was used in the following resolu-

Nolte, see note 216,633 et seq. Frowein, see note 205, 15; Frowein, see note 214,63 et seq. See the detailed descriptions by Nolte, see note 216, 608 et seq. and 611 et seq. See supra, p. 152. Conference of Banjul, Doc. A/45/984=S/22025 of 20 December 1990, Annex. Doc. V24815 of 17 November 1991 (Annex). Doc. V24811 of 16 November 1992, Annex I; see also the report of the Secretary-General of the United Nations, Doc. V25402 of 12 March 1993, 7. For details see Nolte, see notr 216,611. SIRES/788 (1992) of 19 November 1992 .


182

tions S/RES/813 (1993) of 26 March 1993, S/RES/856 (1993) of 10 August 1993 and S/RES/866 (1993) of 22 September 1993. When analyzing this wording one should keep in mind the wording of resolution 678 (1990) which authorized the use of force to drive the Iraqi forces out of Kuwait. In this resolution the Council inter alia authorized member states to "use all necessary means to yestoye internationalpeace and security in the area" (italics added by the author). This authorization clearly implied enforcement action against the Iraqi forces in Kuwait. For this reason the difference in wording in the resolution dealing with the Liberian conflict compared to the relevant presidential statements is significant. While the statements commended efforts to "promote" peace, the resolutions commend efforts to "restore" peace and in doing so used the wording of the Kuwait resolution. While the statements applied to a situation of consent - on all sides in the civil war, the resolutions refer to the use of force against one rebel group. Against this background it seems hard to argue that the Security Council was not in favour of the enforcement measures taken231. Admittedly, the reactions by the Security Council in the Liberian case are no clear example for an ex post authorization. But they demonstrate that the political circumstances within the Council, as well as in aparticular region of the world, may create conditions in which an ex post authorization can help the Security Council in fulfilling its task to maintain international peace and security. The example also underlines a further political advantage of an ex post authorization. E C O M O G had intervened without authorization, but - as the reactions of the Council reveal - the members of the Security Council considered the intervention as a positive element in a process towards the restoration of peace. The way the Council reacted allowed it to commend the intervention and to remain actively engaged in the matter by sending its own observer mission. Had it condemned the intervention for lack of authorization it is difficult to see how further peace-keeping contributions of the United Nations in collaboration with ECOMOG could have been possible.

3. Implicit Authorization Closely linked to the discussion of an ex-post authorization in the Liberian case arises the question of implicit or tacit authorizations. Again the discussions in the Security Council on the sanctions of the OAS against 231

The enforcement character of ECOMOG's tasks is further underlined in the Abuja-Agreement of 19 August 1995 which supplements the Cotonou Agreement. The Abuja-Agreement contains a provision (Art. 8) which is headed "Peace enforcement powers" and which refers to ECOMOG's responsibilities under the Cotonou-Agreement.


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the Dominican Republic in 1960 may be a useful starting point. The Council had two draft resolutions to consider: the already mentioned Soviet draft with an ex-post approval of the sanctions and a three-power draft in which the breach of diplomatic relations was merely taken note of. During the discussions the delegate of Ceylon gave the following statement: "My point is that, in realit!; I find very little difference, except in wording between the draft resolution submitted by the Soviet Union and the draft resolution submitted by Argentina. Ecuador and the United States of America, because the meaning one attaches to the three-power draft is that we are asked to take note of the resolution which had been adopted at the Sixth Meeting of Consultation of Ministers of Foreign Affairs ol'the American Republics. If we take note of the acceptance of a resolution and take note of it in the very terms of that resolution, it implies that we are not opposed to it. It is not difficult to argue that if one is not opposed to a thing, one more or less concurs in that po~ition"'~'. The statement sumoests the possibility of an implicit authorization. Where the question of an implicit authorization is discussed in the literature on Article 53 this notion is mostly rejected2''. It is feared that unclear resolutions o r statements L>- the Council may be abused as justification for interventions the Council did not intend to authorize. However, the dangers inherent in implicit authorizations may be reduced to some extent if the procedural rules concerning voting and majorities in the Council are transferred to implicit a~ithorizations.A first important clarification should be made with respect to the notion of tacit authorization, i.e. the idea that silence on part of the Council could be interpreted as an authorization. This view, which was presented by American authors in the 1960s2j" has to be rejected. It overruns the checks which are inherent in the voting rights, especially in the \,et0 right of the five permanent mem-

232 2'3

234

SCOR 894th hltg. of 9 September 1963, 5. C. Schreuer, "Regionalism v. Universalism", EJIL 6 (1995), 477 (492); C. Schreuer, "Comment", in: J. Delbriick (ed.),The Future of International Lai;' Enforcement. h'ez;, Scenarzos - .Yec' L a z ! , 1993, 147 (151); R. Pernice, Dze Slcherung des K'eltfriedcns durch reponale Organisationen ttnd die Vereinten A'ationen. Eine C'ntersicchlrng zrir Kompetenzvertezlung nach Kapttel I'III der G L Y - C h a ~ t a1972, , 135. L. C. Meeker, "Defensive Quarantine and the Lab.", A J I L 57 (1963), 515 (522); h. Chayes, "Law and the Quarantine of Cuba", Forezgn Afj 41 (1962/63), 550 (556 er seq.).

184

M ~ Planck x Yearbook of United Nations Law

bers of the Council. According to the Charter a majority decision including the permanent members is necessary to render the use of military force lawful. A tacit authorization would amount to the requirement of a majority decision including the five permanent members in order to render a specific use of force illegal. This shift of the burden of finding a majority in the Council runs against the wording of Article 27 para. 3, and cannot be accepted. But the requirements of the Charter may be met if the voting procedure in the Council is transferred to implicit authorizations. An implicit authorization would then require a ~ o s i t i v decision e in the Council on the use of force in question. This positive decision would have to be supported by a majority of the members of the Council including all permanent members. If these principles are applied to the statement of the delegate of Ceylon, one has t o come to the conclusion that the fact that the Council took note of the sanctions cannot be interpreted as a positive decision on the sanctions. Taking note does not include any qualification of the measures whatsoever. They are neither viewed positively nor negatively. Therefore the resolution submitted by the three American powers cannot be seen as an implicit authorization of the diplomatic sanctions applied by the OAS. In the Liberian case, however, the situation is fundamentally different. Apart from the wording of the resolutions which commended ECOWAS for its efforts to "restore" peace, resolution 866 (1993) of 22 September 1993 provides for further indications that the Council was in fact authorizing the use of force by E C O M O G . Resolution 866 established a United Nations Observer Mission in Liberia (UNOMIL). In doing so the Council for the first time sent parallel to a regional peace-keeping mission a United Nations observer mission235. The respective competences of the two missions had to be defined. The ideas of the parties Bs to the distribution of competences were included in the Cotonou-Agreement of 25 July 1993236: "1. It is also agreed that E C O M O G shall have the right to self-defence where it has been physically attacked by any warring faction thereto. 2 . There shall be established, upon deployment of E C O M O G and the full contingent of the United Nations Observer Mission, aviolation Committee consisting of one person from each of the p r t i e s hereto and

235

236

For a detailed analysis see G. Nolte, "Combined Peace-keeping: ECOMOG and UNOMIL in Liberia", international Peacekeeping 1 (1994), 42 et seq. Doc. S/26272 of 9 A u ~ u s 1993 t (Annex).


185

E C O M O G and the United Nations Observer Mission, chaired by a member of the United Nations Observer Mission. 3. All violations of the cease-fire shall be reported to the United Nations observer mission/observers who shall, immediately upon receipt of the information of violation, commence an investigation and make findings - thcrcof. In the event the violations can be curcd by the United Nations observers, they shall pursue such a course. However, should such acoursc not be possible, the United Nations observers shall submit their finding to the Violation Committee. The Violation Committee shall invite the violating party/(ics) for thc purposc of having such a party/(ies) take corrective measures to cure the violations within such time frame as may bc stipulated by the Committee. Should the violating party not take the required corrective measures, E C O M O G shall be informed thereof and shall thereupon resort to the use of its peace-enforcement powers against the ~ t o l a t o r " " ~ . In resolution 866 the Council defined the respective competences of E C O M O G and U N O M I L as follows: " U N O M I L shall have the following mandate: [...l h) withoutparticipation in enforcement operation, to coordinate with E C O M O G in the discharge of ECOMOG's separate responsibilities, This part of the resolution refers to a report by the Secretary-General in which the separate responsibilities are set out more in detail: "It was agreed that the following elements would underlie the relationship between U N O M I L and ECOMOG: [...] d ) should E C O M O G enter into planned peace enforcement tnvolving combat operations, U N O M I L observers would not participate in such actions and would, along with other United Nations staff, be temporarily withdrawn from the area"239. It seems to result quite clearly from these references to the use of force by E C O M O G in resolution 866 and in the Secretary-General's report that the Security Council was well aware of the fact that the mechanism set up for managing the Liberian crisis included use of force by E C O M O G .

237

238 239

Italics added by the author. Italics added by the author. DOC.S126422 of 9 September 1993 (Italics added by the author).


186

There are two solutions as to the justification of such use of force. One could be seen in the consent of the parties to the Cotonou-Agreement, which provided for peace-enforcement against a violator of the cease-fire. This raises the question of limits of party consent to use of military force; the second interpretation could be that the Council was implicitly authorizing use of force by E C O M O G for the purposes defined in the resolution and the Cotonou-Agreement.

4. General Authorization The American delegation to the San Francisco Conference discussed the question of a general authorization with respect to the OAS. Most delegates were of the opinion that a general authorization would bepossible240. There are no indications in the practice of the United Nations that a general authorization would be in line with Article 53. In the literature the question of a general authorization has only recently been addressed. The notion is rejected241.It is argued that the Security Council would be unable to keep control over regional enforcement action if a general authorization were given to a regional organization, because the Council would not be in a position to block specific decisions of the organization since the latter could rely on the general authorization. The problem about a general authorization is that it would shift the burden to find a majority in the Council. Presumably, the Council as the organ carrying primary responsibility for the maintenance of international peace and security (Article 24) could decide that a specific decision under the general authorization should not be executed. Such a decision would require a decision in the Council to block the regional action and hence be subject to the veto of the five permanent members. It can easily be seen that the consequence of a general authorization would be that the majority in the Council would not be necessary to render a specific use of force legal, but rather to render illegal in a specific case a use of force which in principle would be legal under the general authorization. One might ask the question whether the fact that the state, against which the military action is executed, consented to such action in the founding treaty of the regional organization, can be seen as an equivalent for the loss of control which is implied in the shift of the veto effect. While the 240

241

Foreign Relations of the United States, Diplomatic Papers, 1945, Vol. I, General: The United Nations, 305. J. A. Frowein, "Legal Consequences for International Law Enforcement in Case of Security Council Inaction", in: Delbriick, see note 233,119; R. Wolfrum, "Der Beitrag regionaler Abmachungen zur Friedenssicherung", ZaoRV53 (1993), 576 (580).


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argument of consent has some merit, it should Le kept in mind that the consent to enforcement action in the treaty establishing the regional organization is a necessary prerequisite for any regional measures, irrespective whether they are authorized menerally or individually. For this b. reason the consent is no additional equrvalent for the control lost by the shifted veto effect in case of a general authorization. Another way of ensuring control might be to include precise descriptions into the general authorization, defining specific cases in which regional military enforcement action is possible. Whether or not such descriptions are possible in practice remains doubtful. Until now there is no practice of the Council which might point in that direction. From a political point of view it is preferable to keep the action, as far as possible, in the hands of the Council. This is ensured by the possibility of implicit and ex-post authorizations. In cases of inactivity of the Security Council where action is needed for urgent humanitarian reasons there is the possibility of a regional humanitarian intervention, subject to the conditions developed above. In view of the lacking practice by the Council, and the difficulty to abstractly define cases in which enforcement action may be generally authorized, it is preferable to restrict authorizations under Article 53 to specific cases. The necessity to clearly define the conditions of the authorization may also be illustrated by the authorization in the Kuwait crisis. When Saddam Hussein, after the invasion of Kuwait, did not comply with the demands by the Council to withdraw immediately from the country24', the Security Council authorized the member states df the United ati ions in resolution 678 (1990) "to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and Security in the area". When the Iraqi forces were driven out of Kuwaitthe questionarosewhether and to what extent theresolution allowed for military actions on Iraqi territory. Could it be read as justifying military action to remove Saddam Hussein from office? The allied forces stopped their actions at a point where they could be sure that a second invasion of Kuwait shortly afterwards was excluded. The authorization was criticized for its imprecision in literaturez4'. The reasoning of the criticism also applies to authorizations for regional organizations. It is hard

242

243

S/RES/660 (1990) of 2 August 1990. B. H. Weston, "Security Council Resolution 678 and Persian Gulf Decision Making Precarious Legitimacy", AJIL 85 (1991), 516 (525 et seq.); Y. Le Bouthillier/M. Morin, "RCflexions sur la validiti des opirations entreprises contre l'Iraq en regard de la Charte des Nations Unies et du droit canadien", CYIL 29 (1991), 142 (155 et seq.); H. FreudenschuB, "Between Unilateralism and Collective Security: Authorizations of the Use of Force by the UN Security Council", EJIL 5 (1994), 492 (524).

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to imagine that a general authorization could be drafted in a way that misunderstandings are excluded and the authorization remains applicable to an indefinite number of different cases without the Security Council losing control over the possible actions.

5. Control on the Field T h e above-mentioned example of the authorization in the second Gulf War also raises the question of United Nations control on the field. Chapter V111 does not explicitly require such control. It could be argued that control in this respect is exercised through the necessity of reporting all measures to the United Nations under Article 54. However, it is obvious that these reports may not provide first-hand information. They are presented by the regional organization concerned and hence questions as to their objectivity might arise. In this respect the combined approach taken by the United Nations and ECOWAS in Liberia244might serve as a new model of ensuring control o n the field. O n 25 July 1993 the parties had agreed to a new peace agreement (Cotonou Peace Agreement245)in which earlier agreements were reaffirmed and a peace-keeping operation b y the United Nations was asked for246.This United Nations Mission was to be charged with supervising the application of the agreement not only by the but also by E C O M O G 2 4 7 In . resolution 866 of 22 September 1993 the Security Council inter alia gave the following mandate to UNOMIL: "b) to monitor c o n ~ ~ l i a nwith c e other elements of the Peace Agreement,

[...l and to verify its impartial application". The reference to impartial application contains the control of U N O M I L over the actions taken by E C O M O G . The combined approach taken in Liberia allows for United Nations monitoring of regional action on the field. This provides the Council with first-hand information o n the developments and may be viewed as a new means of United Nations controlling regional organizations. Since the sending of U N O M I L into the Liberian civil war in 1993, in Georgia and in Tajikistan parallel missions of United Nations and the Commonwealth of Independent States (CIS) are in place. While the 244 245 246

247

See in detail, Nolte, see note 235,42 et seq. DOC.S/26272 of 9 August 1993. The Cotonou Agreement was supplemented by the Abuja Agreement of 19 August 1995, Doc. S/1995/742 of 28 August 1995. Nolte, see note 244, 44.


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mandate of U N M O T 2 4 8does not contain any reference to monitoring the CIS forces in T a j i k i ~ t a n the ~~~ U,N Mission U N O M I G in Georgia - was expressly given the mandate t o control the CIS peace-keeping force in resolution 937 (1994) of 21 July 1994: "The Security Council, [...l decides also that the mandate of a n expanded U N O M I G , based upon the recommendations in the Secretary-General's report, shall be as follows: [...l b) to observe the operation of the CIS peace-keeping force within the framework of the Agreement [...lm. Reports of the SecretaryGeneral in the time after the resolution reveal that U N O M I G was fulfilling the task of control. In a report of 6 January 1995 the Secretary-General reported the following results of U N O M I G ' s observations of the CIS-Forccs: "37. The CIS peace-keeping force has been conducting its operations within the framework of implementation of the 14 May agreement. A n y variation from its agreed tasks has bcen made in consultation with the parties "250.

UNOMIG has witnessed difficult developments which endanger the proper fulfillment of its monicoring functions. Irs freedom of movement is restricted by dangerous landmines. Because of its limited demining capacity U N O M I G is compelled to use only roads which have previously been declared to be mine-free by the CIS peace-keeping force251.It is obvious that this dependence o n the CIS force limits U N O M I G ' s ability to control that force. Nevertheless, [he developments demonstrate that United Nations observers may serve as a useful source of information for controlling regional action on the field. I n both cases, in Liberia as well as in Georgia, they are perceived as a parallel sending of peace-keeping forces by the United Nations and a regional organization. But the Liberian example, in particular, where the regional force fulfills peace-enforcement functions reveals that a transfer of the combined approach t o enforcement

248 249

250 251

S/RES/968 (2994) of 16 December 1994. See in this respect the critical statement by the representative of the Czech Republic in the Security Council, Doc. SIPV. 3482 of 16 December 1994, 8. DOC.S/1995/10 of 6 January 1995, para. 37. See the report of the Secretary-General of 15 April 1996, Doc. V19961 284.

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action might provide the United Nations with a new means of control over regional peace enforcement.

111. Control over Regional Non-Military Measures Following the interpretation of "enforcement action" in Article 53 para.1, developed above, the term does not comprise non-military measures. ~ e n c esuch r measures do not require an authorization by the Council. But how are such measures then controlled by the Council. At first sight it is not obvious how universal and regional non-military sanctions might conflict with each other. But the issue is of practical relevance. This may be demonstrated by the following hypothetical example. In contrast to the current practice of unlimited non-military sanctions there is good cause to assume that in future non-military sanctions under Article 41 might - be limited in time. Those members of the Council which accepted such sanctions rather hesitatingly might realize that their influence increases with a time limit. A precedent of a limitation in time has already been set with respect to military measures in resolution 929 of 22 June 1994 concerning Rwanda. In this resolution the Security Council authorized the member states cooperating with the Secretary-General to use all necessary means to achieve the humanitarian objectives set out in the resolution. This authorization, however, was limited to aperiod of two months following the adoption of the resolution252.Furthermore, the General Assembly is putting pressure on the Council to set time limits on Chapter V11 decisions. A time limit would require a majority in the Council to prolong the measures once the date of expiration approaches. Could it be legally possible that in a given case, where the majority for prolonging the universal measures is not reached in the Council, a regional organization decides to apply similar or even identical sanctions? A second example where a regional organization might be tempted to substitute universal measures by regional sanctions could be seen in a case where the Council lifted its sanctions under Article 41 stating expressly that the conditions of Article 39 where not met any more. Could, in such a situation, a regional organization decide to apply sanctions because, in the understanding of its members, there was still a threat to the peace in the region? In both cases the interpretation of "enforcement action" in Article 53 lcads to the conclusion that the regional measures are lawful under the Charter of the United Nations. For the first example of expiring universal

252

S/RES/ 929 (1994), para. 4.


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sanctions the result is rathcr obvious. The Council did not decide on the legality of regional sanctions and hence the situation is quite similar to one where no universal sanctions had been applied before the regional measures came into force. It is in the logic of the restrictive interpretation of "enforcement action" in Article 53 that regional organizations may decide on regional sanctions if the Council is unable to decide on universal measures, irrespective of whether or not such universal measures had been in place before. The second example, where the universal sanctions are lifted because the Council considered the threat to the peace to have ceased, is more difficult to argue. Can it be correct that regional sanctions may be applied where no threat to the peace exists? This points to the relationship between Article 53 and the conditions for the application of Chapter V11 laid down in Article 39. Article 53 does not contain any conditions under which regional enforcement action may take place. Therefore, the preconditions of Chapter V11 have to be applied to activities under Article 53253.Such an interpretation is all the more conclusive since it is difficult to see how the authorization by the Council which is required in Article 53 should be obtained in the absence of at least a threat to the peace. However, the interpretation of Article 53 resulted in excluding non-military-enforcement action from its scope of application. Hence, for such measures the reference to Article 39 is not applicable. Does this solution imply that there is no Security Council control over regional non-military sanctions? A certain control can be seen in the possibility that the regional measures might themselves be qualified as threat to the peace by the Council. This would open the possibility for the Security Council to enforce the lifting of the regional sanctions under Chapter VII. However, such a way of controlling regional non-military measures will be difficult to proceed in a case where one of the permanent members of the Council is also member of the regional organization concerned. The veto would seem inevitable in such a case. The result may seem somewhat surprising at first sight. However, it fits perfectly well into the general principles applicable to non-military sanctions. Non-military sanctions are not subject to the same rigid system as military enforcement action is. Customary international law is applicable to non-military measures even when they are applied by regional organizations. The result underlines the distinction between measures accordingto Article 41 and actionunder Article 42. Military action has to stop when the Council so decides. In contrast to this no member of the United Nations is under an obligation to restart bilateral trade with the addressee

253

G. Ress, "On Art. 53", 722 et seq., Mn. 10, in: Simma, see note 25.


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of a trade embargo once the Security Council has lifted that embargo. In conclusion, measures under Article 41 may be applied unilaterally after the embargo has ended. Even in cases where bilateral or multilateral trade agreements are in place and the refusal to restart trade violates these treaties there is no competence of the Security Council to enforce those obligations. A n exception may again be made when the Council considers the unilateral measures to constitute a threat to the peace and requires that they be lifted.

D. Conclusion The end of the Cold War allowed the reopening of Chapter V111 of the Charter, the provisions of which had remained without application for a considerable period of time. The practice since the beginning of the 1990s shows several possibilities of sharing the burden of maintenance of international peace and security between the universal and the regional level. I . The activities of N A T O in the Yugoslav crisis could be described in management terms as "outsourcing". While the overall crisis management rests with the Security Council the military part is given to a regional organization. From a political point of view this describes the "utilization" of regional organizations envisaged by Article 53 para. 1. Legally speaking, the mandate for NATO may rather be seen as an application of Chapter VII, especially of Article 48, since neither the former Yugoslavia nor the successor republics were members of NATOzs4. But the case may be viewed as an example for leaving the military part of an operation to a regional organization. 2. The Yugoslav experience may also be interpreted as an example for substituting an unsuccessful universal mission by a regional operation. The political implications of the failure of U N P R O F O R certainly included that a new United Nations mission would have faced serious problems of authority. The regional option provided for a new start and IFOR was therefore able to act without the political handicap which a direct United Nations successor operation to U N P R O F O R would have faced. 3. The cooperation Lctween the United Nations and ECOWAS in Liberiamay be seen to represent a slightly different type of burden sharing. In the eyes of some factions to the civil war in Liberia the regional intervention through E C O M O G cast some doubt on the neutrality of ECOWAS. Therefore, the parties to the conflict asked for a United

254

For further references as to Article 48 as a basis for IFOR, see C. Walter, Vereinte Nationen und Regionalorganisationen, 1996,278 et seq.


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Nations observer mission which had inter alia the task to monitor the activities of E C O M O G . In doing so, enforcement operations (if they were necessary) could be left to E C O M O G , while the United Nations mission was charged with monitoring that E C O M O G did not use its enforcement competences excessively. In addition t o that both missions jointly were asked to supervise the maintenance of the Cotonou-Agreement2". The possibility of combined peacc-kceping with thc United Nations mission, not only monitoring the activities of the parties to the conflict, but also those of the respective regional organization is also evidenced b y the UN observers in Georgia and in Tajikistan. 4. Finally, the Liberian civil war highlights the dilemma which may be created by an inactive Security Council. Had ECOWAS not intervened in the civil war, the disastrous situation for the civilian population would certainly have continued since action o n part of the Council was not very probable. After an active phase in the beginning 1990s the Council seems to become more and more reluctant towards military involvement in civil wars. T h e option of filling 3 possible lacuna created by Security Council inaction by collective regional humanitarian action should be taken into serious consideration as an alternative.

255

Supplemented by thc Abuja Agreement of 19 August 1995, Doc. S/1995/742 of 28 August 1995.


Civil War, Humanitarian Law and the United Nations Stefan O e t e r

I. Introduction Emer de Vattel, in his classical treatise "Le Droit des Gens ou Principes de la Loi Naturelle", introduced his observations concerning civil war with some famous remarks that urged for caution in dealing with the topic: "It is a much-discussed question whether the sovereign must observe the ordinary laws of war in dealing with rebellious subjects who have openly taken u p arms against him. A flatterer at court or a cruel tyrant will immediately answer that the laws of war are not made for rebels, who deserve nothing better than death."' Vattel, however, reminded his readers to "proceed more temperatelyn and to argue the matter upon the "incontestable principles" of reason and of natural law. The warning against precipitate conclusions that was formulated by Vattel still has its justification, even nowadays. This is not only due to the Martens clause: which in its modernized version in the Additional Protocols of 1977 to the Geneva Conventions of 12 August 1949 provides that "... in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the

1

2

E, de Vattel, The L a w of Nations or the Principles ofNatural L a w Applied to the Conduct and to the Affairs of Nattons and of Soveretgns, Translation of the Edition of 1758 by C.G. Fenwick, 1916,336 para. 287. Concerning the Martens Clause cf. R. G. Allen/M. Cherniack / G. J. Andreopoulos, "Refining War: Civil Wars and Humanitarian Controls", H R Q 18 (1996), 747 et seq., (751-752); H. Strcbcl, "Martens' Clause", in: R. Bernhardt (ed.), EPIL 3 (1982), 252-253; F. Miinch, "Die Martens'sche Klausel und die Grundlagen des Volkerrechts", ZaoRV 36 (1976), 347 et seq.

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public conscience".j With the introductory remarks to his Chapter XVIII, Vattel has sketched with a few w o r d s a legal problem concerning civil wars that has n o t lost its relevance. Just the contrary: T h e outlined temptation f o r state officials t o withdraw to formal legal positions has n o t f o u n d a plausible answer in public international law until now. To decry civil w a r o p p o n e n t s as criminals g i l t y of high treason and armed rebellion i n practice all t o o easily means denying a n y legal obligation towards these adversaries, and also towards the civil population mostly affected b y civil w a r operation^.^ Admittedly, the evolution of m o d e r n law and jurisprudence has m a d e its o w n contribution t o the outlined problems of h o w t o deal legally w i t h civil w a r situations.' Civil w a r as a legal phenomenon, in contrast t o inter-state wars, is linked indissolubly in a historical perspective t o t h e rise of the m o d e r n state. O n l y w h e n public authority is concentrated in t h e hands of the state does "international" w a r become conceptually separable f r o m the forcible self-help of private persons, f r o m feudal and internal ~ o n f l i c t F. ~o r a social order like the system of medieval feudal entities it was difficult, if not impossible, t o perceive a categorical difference between international and civil war.?

The formula cited here is taken from the preamble of Additional Protocol I1 (relating to the Protection of Victims of Non-International Armed Conflicts) ; Article 1 para.2 Additional Protocol I contains a nearly identical formula. As an illustration of the resulting humanitarian problems (and of the ensuing inadequacy of the system of the Geneva Conventions) see the remarks of the former ICRC-delegate L. Marti, Bonsoir mes victimes, 1996. The notion "civil war" is used here as a synonym for the technical term "non-international armed conflict" respectingly "internal conflict". Concerning the difficult questions of differentiating between "international" and "non-international" armed conflicts see D . Schindler, "The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols", R d C 163 (1979), 121 et seq.; and M.J. Mattler, "The Distinction between Civil Wars and International Wars and its Legal Implications", A'. Y U. J. Int'l L. & Pol. 26 (1994), 654 et seq. O n the political function of the difference between "hostis" and "rebellis" in modern state building see H.-J. Wolff, Kriegserkiarung und Kriegszu-

stand nach Klassischem Volkerrecht. Mit einem Beitrag z u den Griinden fur eine Gleichbehandlung Krieduhrender, 1990, 154 et seq. Compare, however, the attempts of scholastic philosophers to restrict the notion of "bellum iustum" - see in that regard only F.H. Russell, The Just War in the Middle Ages, 1975; concerning the medieval customs of war see also M.H. Keen, The Laws of War in the Late ,Mzddle Ages, 1965,

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The creation of a pacified, "internal" sphere and the ensuing monopolization of legitimate usc of force in the hands of the state, however, had serious consequences for the legal treatment of those involved in civil wars.s It became n-early impossible for the representatives of the established state organization to perceive the "other side" as an equal (and legitimate) counterpart in warfare. What had been practically self-evident for the legal understanding of medieval people - the existence of a right of resistance against an "unjust" ruler - perished more o r less completely in the interest of the pacificatory mission of the state as a guarantor of law and order.9T h e citizen taking recourse to forcible self-help against his state is reduced unavoidably to an ordinary criminal with the victory of the modern doctrine of sovereignty based o n the writings of Bodin and Hobbes. The "civilian" waging armed resistance against his state became liable to serious penalties under the crimes of breach of public peace, rebellion, high treason.1° To use once again the words of Vattel: "Since nature gives men the right to use force only when it is needed for the defense and preservation of their rights, it is easy to infer that after the establishment of civil societies, a right, involving such dangers in its exercise, no Ionger belongs to individuals, except o n those occasions when thc society can not protcct o r assist them. Within the State itself the public authority settles all the disputes of the citizens, represses v~olenceand sclf-r~drcss."'~ The prevalence of such legal construction in the forming period of modern international law had a decisive impact o n the legal attitudes towards the phenomena of civil war. The thinking regarding sovereignty had by definition excluded civil mar from the topics being susceptible to

and G.I.A.D. Draper, "The Interaction of Christianity and Chivalry in the Historical Development of Law of War", Int'l Rev. o f t h e Red Cross 7 (1965), 135 et seq. For the intricate interdependence between the evolution of the modern stare and the doctrinal development of the laws of war see W.H. McNeill, The Pursuit of Power. Technology, Armed Force and Society since A.D. 1000, 1982, 117 et seq., 158 et seq.; G. Best, Humanity in W7arfure. The Modern History of the International L a w o f A r m e d Conflicts, 1980,41 et seq., 59 ct seq.; Wolff, see note 6, 169 et seq., l78 et seq. For the history of the traditional concepts of a "right of resistance" see the short account given by A.V. Lombardi, Burgerkrieg und Volkerrecht. Die Anwendbarkeit volkerrechtlicher Normen in nicht-zu~irchenstaatlichen bewaffneten Konflikten, 1976, 52 et seq. See only E. Castrkn, Ctvil War, 1966, 18. Vattel, see note 1, 235 para. 4.

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international legal regulation.I2 Tumults, insurrections and "internal conflicts" prima facie constituted a question of "domaine riservt", a problem of law enforcement against armed rebels which obviously fell under the internal affairs of a state. Sedes materiae of legal rules on h o w to deal with armed rebels was the internal criminal and public security legislation, not public international law. O n l y by some formal recognition of rebellious factions as belligerents could the conflict be brought under the customary rules of the (international) laws of war.13 By binding the legal status of belligerents in civil wars to the formal recognition by the relevant government, the decision o n the legal transformation of the conflict was handed over to the respective state (or of the state community as an external regulator). All attempts proved futile to "objectivise" the legal qualification of the conflict b y formulating an abstract rule under what conditions a civil war had to be placed under the governance of public international law. A short citation from Johann Caspar Bluntschli may suffice, as one of the last authors of the 19th century operating decisively with natural law arguments. H e formulated: "An armed party which is not authorized by an existing state t o use force will nevertheless be considered a belligerent to the extent it is organized as an independent belligerent power and fights not for the state but instead in good faith for public law."14 The general shift of international legal doctrine of late 19th century away from natural law concepts to forms of a strict legal positivism in the Austinian mode caused legal doctrine to become inaccessible for reasonings of humanity like the main argument used by Bluntschli: "The interest of humanity requires" - he stated as late as 1868 - "that in case of doubt,

See e.g. M,A. Akehurst, "Civil Warn, in: R. Bernhardt (ed.), EPIL 3 (1982), 88 et seq., (92); cf. also Castrin, see note 10, 105 et seq. and 0. Schachtcr, "International Law: The Right of States to Use Armed Force", Mzch. L. Rev. 82 (1984), 1620 et seq., (1641). Concerning the traditional practice of recognition of insurgents as "belligerent~''see Castrin, note 10, 135 et seq. (recognition by the lawful government) and Castrin, ibid., 167 et seq. (recognition by third states). Cf. also L. Oppenheim/H. Lauterpacht, International Law, Vol.11- Disputes, War and Neutrality, 7th edition 1952, 249-50, and Akehurst, see note 12,92. "Eine bewaffnete Partei, welche nicht von einer bestehenden Statsgewalt zur Gewaltiibung errnachtigt worden ist, wird dennoch insofern als Kriegspartei betrachtet, als sie als selbstandige Kriegsrnacht organisirt ist und an States statt in gutern Glauben fiir offentliches Recht streitet." J.C. Bluntschli, Das moderne Volkerrecht der civilisirten Staten als Rechtsbuch dargestellt, 1868, 288, para.512.

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a p a r t y w h i c h pursues state objectives and which is organized like a state authority should be treated m o r e like a belligerent than as a g r o u p of criminals. Such a party has a natural right t o be treated like a state a r m y in t h e m o m e n t it is strong enough to hold its o w n as apublic p o w e r analogous t o t h e state authorities, t o guarantee o r d e r through its military organization, and t o demonstrate its aspirations to statehood t h r o u g h its political goals. In such a case" - thus went the core argument - "the dangers of the use of force will be mitigated n o t o n l y f o r the party in question but also f o r its opponents. If, to the contrar>; the party is simply p n i s h e d u n d e r criminal law, the actual battle will degenerate accordingly and the danger exists that the t w o warring parties will sink into barbarity and a t t e m p t t o o u t d o each other in the cruelty of their reprisals."" T h e American Civil War had demonstrated t o the contemporaries of Bluntschli h o w great the humanitarian necessity as well as the potentially civilizing result of such an approach were.I6 T h e Civil War of 1861-1866, as the harbinger of m o d e r n "total war", had caused a higher death toll and m o r e destruction than all the inter-state wars of 19th century. B u t w i t h the so-called "Lieber-Code" of 1863, w e on-e to the Civil \Yrar the first attempt at codification of the hitherto purel!. customary laws of war."

l5

16

1'

"Das Interesse der Humanitit fordert, dass im Zweifel eir.e solche Partei eher als Kriegspartei, nicht als eine hfasse von Verbreckern behandelt nrerde. Indem sie stark genug ist, sich als ofientliche Macht, analog der Statsmacht zu behaupten, durch ihre kriegsmissige Organisation auch Garantien der Ordnung gem-ihrt, und duich ihre politischen Ziele ihr statliches Streben kund gibt, hat sie auch einen natiirlichen Anspruch daraui, einem statlichen Heere iihnlich behandelt zu n-erden. Die Gefahren der Gewaltubung werden dann nicht bloss fiir sie selber, sondern ebenso fur ihre Gegner ermissigt. Y i r d sie dagegen nur strafrechtlich verfolgt, so wird dadurch der thatsachliche Kampf verwildert und es is1 Gef'ahr, dafi die beiden streitenden Parteien in die Barbarei versinken und einander mit grausamen Repressalien zu uberbieten suchen." - Bluntschli, see above, 288 para. 512, note l . See only J.hl. hIcPherson, Battle Cq Freedom,1988, in particular 774830. Concerning the Lieber Code cf. Best, see note 8, 155, 170 et seq. (with further references) and R.S. Hartigan, Lieberi Code and the Lai)'ofminr, 1983, 48 et seq., but also R.R. Baxter, "Le premier effort moderne de codification du droit de la guerre: Francis Lieber et I'Ordonnancc ginirale n o ICC", Re-;. ICR 15 (1963) l 5 5 et seq., (217 et seq.): for the personalit)- oi' Francis Lieber see in addition E. Nps, "Francis Lieber: His Life and his Y o r k " , AJIL 5 (191 l ) , S4 et seq..(355 et seq.), and E. Root, "Francis Lieber", AJIL 7 (1913), 453 et seq.

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The thinking in categories of sovereignty, however, which was carried to extremes in late 19th and early 20th century, made it an anathema to subject the combat against "rebels" to rules of public international law. The legal concept of recognition of belligerency became nearly totally obsolete, fell victim to "desuetudo" in state practice.18 The growing ideological nature of political conflict added a further factor of escalation (and barbarization).19 It became nearly unimaginable for state organs to accept - by recognizing rebellious factions as belligerents - at least de facto its legitimacy in the usc of force. The 20th century has delivered numerous examples of what extremes of cruelty, cynicism and barbarism "internal conflicts" can take that are left in a legal "grey zone". The Russian Civil War, the Spanish Civil War, the civil wars in China, but also the civil war in Greece after 1945 prove strikingly the plausibility of the natural law argument that any legal approach will necessarily contribute to the degeneration of warfare which is based only on legal categories of rebellion and high treason.20In basing itself decisively on such arguments, lawyers will finally aggravate the danger "that the two warring factions will lapse into barbarity". Not only the combatants but also the civil population linked to the opposite party or ruled by it will be perceived all too easily as being nothing but "traitors" of the "true national cause", criminals who have forfeited any right to respect and protection and which deserve nothing but a "short process".

11. Geneva Red Cross Conventions of 1949 and the Additional Protocols of 1977 The I C R C ( International Committee of the Red Cross) after 1945 accordingly has endeavoured several times to place under the rules of the international laws of war both humanitarian law and the gravest cases of civil wars, i.e. the (qualified) civil wars that are fought between state-like entitie~.~ The ' reasoning for these attempts resembles the humanitarian

See R.W. Gomulkiewicz, "International Law Governing Aid to Opposition Groups in Civil War: Resurrecting the Standards of Belligerency", Wash. L.Rev. 63 (1988), 43 et seq., (47). For the links between the ideological nature of political conflict and the rise of "total war" cf. Best, see note 8,216 et seq. See the case studies in R. Falk (ed.), The International Law of Civil War, 1971. For the history of the various attempts undertaken by the ICRC to reform the international humanitarian laws of civil war see R. Abi-Saab,

Drolt humanitazre et conflits internes. Origines et e'volution de la rl.gle-


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arguments used by natural law authors like Bluntschli. All these attempts, however, h a l e failed disastrously. The overwhelming majority of states opposed dccidedly against any such endeavour.22Practically n o state was prepared t o become bound in its operations of conquering and subjecting rebels by the full application of the legal safeguards of the The Hague and Geneva Conventions. The political rationale behind this resistance is easily t o discern: When the four Geneva Conventions were prepared and negotiated, at the end of the 1940s, practically all the major European powers were involved in series of colonial insurrections, in the suppression of which they sought to keep free hands.23 In the 1970s, at the Diplomatic Conference drafting the Additional Protocols t o the Geneva Conventions, the dominant majority of Third World states, for their part contained a large number of states currently o r imminently threatened by civil war.24 Preservation of power in these states, however, would have been endangered by too far-reaching restrictions of the use of force in internal conflicts. W h e n the attempts failed to declare the bulk of humanitarian law in its entirety to be applicable to internal conflicts, an alternative path had to be found to secure at least a certain minimum of international legal rules regulating the use of force in civil wars. Common Article 3 t o the Geneva Conventions of 1949 was the main answer to this challenge. Instead of extending the legal rules for international armed conflict to "non-international armed conflicts", as originally intended by the I C R C , the negotiators developed their own body of rules specifically adapted to civil war ~ i t u a t i o n s . ~This ' separate body of rules took the form of a minimum standard that restricts the freedom of states to use force against civil war

mentation internationale, 1986,30 et seq., 43 et seq., 75 et seq., 91 et seq.; G. Best, W a ~ a n Law d since 1945, 1994, 80 et seq., (168-169). Concerning the history of the Geneva Diplomatic Conference of 1949 cf. Best, see above, 99 et seq., 169 et seq.; Abi-Saab, see above, 50 et seq. Best, see note 21, 89 et seq., 170 et seq.; Abi-Saab, see note 21, 52 et seq. O n the history of the Diplomatic Conference 1974-1977 cf. Best, see note 21,414 et seq.; S.-S. Junod, "General Introduction to Protocol 11", in:Y. Sandoz /C. SwinarskiIB. Zimmermann (eds.), ZCRC-Commentary on the Additional Protocols to the Geneva Conventions, 1987, 1326 et seq.; Abi-Saab, see note 21,131 et seq.; M. Bothe/K.-J. Partsch/W.A. Solf, N e w Rules for Victims of Armed Conflicts, 1982, 604 et seq.; 0. Kimminich, Der Schutz der Menschen in bewaffneten Konflikten. Zur Fortentwicklztng des Humanitaren Volkerrrechts, 1979, 60 et seq.; M. Bothe/K. 1psedK.J. Partsch, "Die Konferenz iiber humanirares Viilkerrecht Verlauf und Ergebnisse", ZaoRV 38 (1978), 1 et seq. Best, see note 21, 174 et seq.; Abi-Saab, see note 21,55 et seq.

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opponents by guaranteeing a series of safeguards for wounded, prisoners and members of the civilian p o p ~ l a t i o n . ~ ~ The decisive passage of common Article 3 (para.1) reads as follows: "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following .. provwons: (1) Persons taking n o active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth o r wealth, o r any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." The cited provision bears - as a simple reading already makes obvious to an amazing degree characteristics of a human rights provision;27it also corresponds as a complementary special rule to the emergency provisions of the human rights covenants and its laying down of an emergency-proof core of non-derogatory What is regulated by common Ar-

26

27

28

Concerning the safeguards provided for by common Article 3 see, in particular, the commentaries to the four Geneva Conventions edited by Jean S. Pictet, The Geneva Conventions of12 August 1949: Commentary, 1952-60; cf. also Best, see note 21, 174 et seq.; Abi-Saab, see note 21, 67 et seq. For the structural similarity between common Article 3 and the human rights instruments cf. e.g. Allen/Cherniack/Andreopoulos, see note 2, 753, but also Best, see note 21, 178. For the intricate relationship between humanitarian law (in particular concerning internal conflicts) and human rights law (in particular as


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ticle 3 is not the behaviour of states (or contracting parties) in their reciprocal relationship, but the behaviour of states in their o w n sphere of jurisdiction. It is the territorial state bound as a contracting party which is made responsible as an addressee of the provision - as it is the case with genuine human rights guarantees, the other parties to the conflict, the insurgents, are covered b y common Article 3 only indirectly.29Recent developments, however, have given a slightly different accent to the question w h o is bound, and how, by common Article 3. I n recent decisions the ICJ has declared the principles laid down in common Article 3 to be a constituent part of customary international law,30 if not even part of the core of so-called "ius cogens", one could also say: of international "ordre public". T h e safeguards of common Article 3 have been characterized as some sort of "Red Cross-Convention in miniature", a "miniature Bill of Rights for those w h o are the victims of internal ~ o n f l i c t " . ~There ' is some truth in this characterization. The provisions of common Article 3 lay down the most.important fundamental principles of the laws on means and methods of warfare - principle of distinction between combatants and civilian population, prohibition of indiscriminate warfare, protection of wounded and captured enemy combatants - in a short formula adapted to civil war situations. Accordingly, it is possible t o perceive the provision as an independent minimum codification of humanitarian law in internal armed conflict^,'^ concerns the non-derogable minimum guarantees) see T. Meron, Human Rights in InternalStrife, 1987, 14 et seq., in particular 23-26. O n the problem whether and how the insurgents are bound by international humanitarian law see e.g. A. Mangas Martin, Conflictos armados internos y derecho internacional humanitario, 1990, 78 et seq.; M. Bothe, "Conflits arm& internes et droit international humanitaire", R G D I P 82 (1978), 82 et seq., (92-93); R.R. Baxter, "Ius in Be110 Interno: The Present and Future Law", in: J.N. Moore (ed.), Law and Civil War in the Modern World, 1974, 518, (527-528). ICJ - Case Concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986,14 et seq. (1 14); see also the report of Walter Kalin, Special Rapporteur of the Commission on Human Rights, concerning the situation of human rights in Kuwait under Iraqi occupation, Doc. E/CN.4/ 1992/26 of l 6 January 1992,10/11 (paras.35-38) and S.M. Schwebel, "The Roles of the Security Council and the International Court of Justice in the Application of International Humanitarian Law", N. Y U . J. Int'l L. & Pol. 27 (1996), 731, (741 et seq.). Cf. Baxter, see note 29, 520. O n the interesting question whether common Article 3 really corrcsponds in its entirety to customary law see thc critical remarks of T.

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O n e should n o t overlook, however, that decisive parts of t h e protective package are lacking in this minimum standard, parts which are constituent f o r t h e ordinary humanitarian law. There are neither a n y provisions o n combatant status, to which the traditional immunity towards criminal prosecution f o r acts of participation in combat operations refers, n o r a n y w a r crimes provisions o n "grave breaches" contained in c o m m o n Article 3.j3 W h a t is lacking even m o r e is a n v trace of a n a u t o n o m o u s svstem of implementation of the guarantees enshrined in c o m m o n Article 3.j4 This deficit has not really been changed b y Additional Protocol I1 of 1977 relating t o the protection of victims of non-international armed conflicts . After the renewed attempt of the I C R C had failed t o achieve t h e complete application of the rules of T h e H a g u e and Geneva law f o r at least s o m e specific (qualified) internal conflict^,^^ o n e had t o accept at the Diplomatic Conference that only some sort of a face-saving minimum project could be the outcome of the negotiations.j6 If o n e dares t o take a closer look at the result of these negotiations, i.e. Additional Protocol 11, o n e discovers the resulting protocol to be a strange torso. W h a t has been preserved f r o m the initial project of the I C R C (entire application of the laws of w a r t o certain non-international armed conflicts) is the formula defining the scope of application of Additional Protocol 11.T h e threshold of application is m u c h higher than that of c o m m o n Article 3 - instead of a simple reference to the existence of a "non-international armed conflict"

hleron, Human Rights and Humanitanan Sorms as Customary Lax', 1989, 32 et seq.; see also F. Kalshoven, "Arms, Armaments and International Law", RdC 191 (1985), 183 et seq., (295-296) ; D. Plattner, "La Convention de 1980 sur les armes classiques et l'applicabiliti de rggles relati~resaux moyens de combat dans un conflit arm6 non-international", Rea. ZCR 72 (1990), 605 et seq.;J.G. Gardam, A'on-Combatant Zmmuntty as a I\orm o f Znti'rnat~onalHuman~tananLax', 1993, 164 et seq.; R.K. Goldman, "International Humanitarian Law: Americas Watch's Experi5 Pal\' ence in Monitoring Internal Armed Conflicts", Am. U.J. Int'l L. c 9 (1993), 1 9 et s q . , (61-62). For the role and importance of the provisions o n "grave breaches" in the system of enforcement of the Geneva Conventions, see R. K'olfrun~, "Enforcement of' International Humanitarian Law", in: D. Fleck (ed.), Handbook of H u m n ~ t a r i a nL a c zn Armed Conflicts, 1995, 517 et seq., (528 et seq.); on the general extent of criminal prosecution for ~ i o l a t i o n s of humanitarian 1 . l cf. ~ Best, see note 21, 393 et seq. O n the general means of implementation of humanitarian law cf. e.g. Wolfrum, see above, 517 et seq, (with further references). O n the initial proposal of the I C R C see Abi-Saab, see note 21,106 et seq., and Bothe/Partsch/Solf, see note 24, 604. Abi-Saab, see note 21, 133-131, 138 et seq.


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Article 1 of Additional Protocol I1 requires a conflict between state-like actors.37The formula provided for in Additional Protocol IT is reminiscent of the formula used by Bluntschli (cited above) in order to delimit the degree of state-like organization of insurgcnts needed to place a civil war under the laws of war. Article 1 Additional Protocol I1 refers to armed conflicts "...which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces o r other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and conccrted military operations and to implcmcnt this Protocol." In its substantivc part, however, which defines the spccific safeguards applicable in "non-international armed conflicts" covcrcd by Additional .. Protocol 11, the Protocol is extremely poor: Essentially, it is not much more than.an attempt to give a bit more emphasis and diffcrentiation to thc traditional protection of civilians, woundcd and captured than was afforded already by common Article 3.j8 Nonethclcss, such a general assessment highlighting the lack of real progress aimed at the initial projects of Additional Protocol I1 should not be misunderstood as total disdain for Additional Protocol 11. Additional Protocol I1 undoubtedly I-epresents a certain, even if only very modest, progress towards the traditional state of law since it clarifies and gives precision to some elementary principles until n o w contained only implicitly in common Article 3.j9 In particular, Part IV with the provisions on the protection of the civilian population needs mentioning as an important step towards laying down detailed and precise rules which give concrete shape to the elementary "considerations of humanityn in situations of civil war.40 Part IV of Additional Protocol I1

Abi-Saab, see note 21,143 et seq.; cf. also the conference material exposed in H.S. Levie (ed.), The Law of Non-International Armed Conflict. Protocol II to the 1949 Geneva Conventions, 1987, 23 et seq. and the commentary on Article 1 Additional Protocol I1 offered by S.-S. Junod, in: Sandoz/Swinarski/Zimrnermann, sce note 24, 1350 ct scq. Abi-Saab, see note 21, 163. Even the most ardent critics of the Protocol I1 admit that it still constitutes a relative, although minor, progress - see e . g Abi-Saab, see note 21, 163-1 82,192-93. See only S.-S. Junod, "Introduction to Part IV of Protocol 11", in: ICRC-Commentary on the Additional Protocols to the Geneva Conventions, 1987, 1443 et seq., and W.A. Solf, "Introduction to Part IV of Protocol 11", in: Bothe/Partsch/Solf, see note 24,667 er seq.

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contains an explicit prohibition of indiscriminate attacks in Article 13, a provision granting protection for "objects indispensable to the survival of the civilian populationJ' in Article 14, which in consequence also outlaws starvation of the civilian population as a method of warfare (and in the final result also strategies of scorched earth),41as well as a provision on the protection of cultural objects and places of worship in Article 16 and a provision which, in principle, prohibits forced displacements of the civilian population from its places of inhabitancyS4'The traditional weaknesses of the humanitarian law, for civil wars, however, have not been cured, like the striking lack of any sensible mechanism of implementation.43 Indeed, some important recent conventions o n humanitarian law like the Convention o n Prohibitions o r Restrictions o n the Use of Certain Conventional Weapons Which May be deemed to be Excessively Injurious o r to have Indiscriminate Effects (of 10 October 1980-ILM 19 (1980), 1523 et seq.) with its Protocol I1 concerning land mines, have altogether excluded non-international armed conflicts from its scope of application.44 O n l y the most recent conference on revision of the above mentioned Weapons Convention has brought the prospect that in future internal conflicts will

See the commentary on Article 14 Additional Protocol I1 by S.-S. Junod, ibid., 1455 et seq.; see also W.A. Solf, "Siege", in: R. Bernhardt (ed.), EPIL 4 (1982), 226 et seq. (226-227), and Y. Dinstein, "Siege, Warfare and the Starvation of Civilians", in: A.J.M. Delissen/G.J. Tanja (eds.), Humani-

tarian Law of Armed Conflict: Challenges Ahead. Essays in Honour of Frits Kalshoven, 1991,145 et seq. In view of recent practices of "ethnic cleansing" the prohibition of forced displacements of the civilian population bears an utmost importance see only S.-S. Junod, "Commentary to Art. 17 Protocol 11", ibid., 1471 et seq.; W.A. Solf, "Commentary to Art.17 Protocol 11", in: Bothel Partsch/Solf, see note 24, 689 et seq.; C . Meindersma, "Legal Issues Surrounding Population Transfers in Internal Conflict Situations", NILR 41 (1994), 31 et seq.; N. Lerner, "Ethnic Cleansing", Isr. YB. Hum. Rts. 24 (1994), 103 et seq. See Abi-Saab, see note 21, 182-183, and G.I.A.D. Draper, "The Implementation and Enforcement of the Geneva Conventions of 1949 and of theTwo Additional.Protocols of l978", RdC 164 (1979), 1 et seq., (49-50). Concerning the 1980 Weapons Convention and its protocols see B.M. Carnahan, "The Law of Land Mine Warfare: Protocol I1 to the United Nations Convention on Certain Conventional Weapons", Mil. L. Rev. 105 (1984), 73 et seq.; A.P.V. Rogers, "Mines, pieges et autres dispositifs similaires", Rev. ICR 72 (1990), 568 et seq.; W.J. Fenrick, "New Development in the Law Concerning the Use of Conventional Weapons in Armed Conflict", CYIL 19 (1981), 229 et seq.


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be included in the field o i application of the Weapons Convention and its pro to col^.^^

111. Structural Problems: The Question of Combatant Status If one dares to take a closer look, the current state of humanitarian law concerning the limits of the use of force in civil war thus proves to be a torso, a project of "civilizing" the use of military force that has got stuck h a l f - ~ a It~ does . ~ ~not take a great deal of imagination t o find the reasons for such blockade. It is not only practical questions that lie behind it. Sadly enough, there exist serious structural reasons why a n y extension to civil wars of the whole body of rules that humanitarian law has developed for the use of belligerent force in international conflicts meets almost insurmountable obstacle^.^' The full application of the rules o n combatant status and o n the protection of prisoners of war is practically incompatible with the basic legal 45

"

O n the debates held at the Review Conference in 1995196 see K. Dormann, "The First Review Conference to the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed t o Be Excessively Injurious or to Have Indiscriminate Effects - A Story of Failure?", HuV-I 8 (1995), 203 et seq., and T. Kiichenmeister, "Achtung von Landminen wird eine Illusion bleiben. Zum Verlauf der UN-Landminenkonferenz", Frzedens-Warte 1996, 27 et seq. O n the results reached in May 1996, which included i.a. an extension of the applicability of the Mine Protocol to non-international armed conflicts, see Neue Ziircher Zeitung of May 415, 1996, 2: "Zwiespaltiges Ende der Genfer Minenkonferenz. Einigung auf ein Protokoli mit verscharftcn Bestimmungen". As a general assessment of the current laws of internal conflict see A. Cassese, "La guerre civile et le droit international", RGDIP 90 (1986), 553 et seq.;H.-P. Gasser, "Armed Conflictwirhin theTerritory ofa Stare", in: Im Dienst an der Gemeinschuft. Festschrift fir Dietrich Schindler, 1989, 225 et seq.; R.S. Myren, "Applying International Laws of War to Non-International Armed Conflicts: Past Attempts, Future Strategies", NILR 37 (1990), 347 et seq.; Mangas Martin, see note 29, 81 et seq., 103 et seq., 169 et seq.; L. Lopez, "UnciviI Mars: The Challenge of Applying International Humanitarian Law CO Internal Armed Conflicts", N. Y U . L.Re-v. 69 (1994), 916 et seq. See, in particular, W.A. Solf, "Problems with the Application of Norms Governing Interstate Armed Conflict t o Non-International Armed Conflict", Ga. J. Int'l & Comp. L. 13 (1983), 291 et seq.

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a s y m m e t r y between state organs a n d insurgents which traditionally was always perceived as indispensable f o r the state's mission of preserving o r d e r a n d peace.48 No state will easily dispense with such differentiation between public organs legally using force and "rebels" punishable for their illegal recourse to arms, if it wishes not t o endanger its peace preserving function. T h e m o n o p o l y of legal use of force enjoyed b y the state, and the ensuing criminal responsibility f o r a n y act of armed resistance against the state's law enforcement organs, is a n essential of statehood, a fundamental condition of a n y m o d e r n legal o r d e r based o n the exclusion of forcible self-help.49 A t the same time, however, the long-standing debate of international lawyers concerning the problem of "wars of national 1iberation"j"oints t o the fact that the formal qualification of a p o w e r structure as a recognized state authority does n o t really answer the linked question of legitimacy of such a n authority in the eyes of the people concerned.jl T h e world is full of dictatorial regimes the representativeness (and legitimacy) of which is m o r e than dubious and thC p o w e r of which rests more o n brute force than o n consent of the governed. Seen f r o m that perspective, civil war is not necessarily only a mere disturbance of the internal order of a state; it may at t h e same time be some - even if rather extreme and rather bloodthirsty - f o r m of exercisii~gthe right of self-determination, in the reshaping of t h e state's internal order.j2 T h e prohibition of intervention and the p r o tection of the "domaine rCservCn - even in cases of civil war - thus

See Best, see note 21, 172 et seq., and Baxter, see note 29, 529-531. For such classical argument, see only Max Weber with his "sociology of the state" - M. Weber, S t a a t ~ s o z i o l o ~ (ed. i e by J . Winckelmann), 2nd edition 1966,27 et seq. See also Baxter, see note 29, 526 et seq. See only the extensive monographs of C. Koenig, Der nationale Befreiungskrieg i m modernen humanitaren Volkerrecht, 1988, and H . A . Wilson, Internarional L a w and the Use of Force by National Liberation Movements, 1988 (both with further references). O n the decisive role of questions of legitimacy for the international system see the brilliant book of T.M, Franck, The Power of Legitimacy A m o n g Nations, 1990, in particular 14 et seq., 41 et seq., 150 et seq., 208 e t seq. A convincing argument in that sense is to be found e.g. in the seminal book of Lombardi, see note 9, 343 et seq.; as a critique of this line of argument, however, see M. Herdegen, "Der Wegfall effektiver Staatsgewalt: "The Failed State"", in: D. Thiirer/M. H e r d e g e d G . Hohloch, Der Wegfdll effektiver Staatsgewalt: " T h e Failed State", Reports D G V N 34 (1996), 49 et seq., (64-65).


209

perform an important task in international law and have a strong jurisprudential rationale.j3 From this basic remark foliows a consequential problem: The legal consolidation of the state's monopoly of power is linked to some basic precondition, namely the existence of an effective order securing peace inside the society. If the state loses its pacificatory function in the wake of inner-societal violent conflicts and an escalation to civil war, the argued need to preserve the monopoly of power loses its convincing force. If there exist several entities organized like a state with their own zones of territorially consolidated jurisdiction, the situation changes fundamentally. Once again Vattel may be cited with a basic insight: "Civil war breaks the bonds of society and of government, or at least suspends the force and effect of them; it gives rise, within the Nation, to two independent parties, who regard each other as enemies and acknowledge no common judge. Of necessity, therefore, these two ~ a r t i emust s be regarded as forming thenceforth, for a time at least, two separate bodies politic, two distinct Nations. Although one of the two parties may have been wrong in breaking up the unity of the State and in resisting the lawful authority, still they are none the less divided in fact."54 A civil war which has flared up to full intensity is in itself a sign of serious deficiencies in the legitimacy of the respective state.55In addition, the citizens of such a state end up in the embarrassing situation that with the existence of concurring power structures they are usually forced to collaborate with the party controlling the territory on which they live, if they are not outrightly recruited by force in order to participate in the combat operations as a combatant. Threatening these people with criminal liability for its participation in the fighting becomes nearly impossible. It no longer makes sense to implemcnt thc sanctions for "rcbcllion" against individual fighters of adverse civil war parties. Accordingly, civil wars usually end with a far-reaching amnesty for all the people involved in the fighting - a solution which is now recommended to the states by Article 6 Additional Protocol I1 as a surrogate for the missing status of combatancy in internal armed conflicts.j6

53

j4

55 56

As to the philosophical and jurisprudential arguments for the principle of non-intervention see M. Walzer, Just and Unjust Wars. A Moral Argument with Historical Illustrations, 1977, 86 et seq.; see also, as a classic, J. Vincent, Non-intervention and International Order, 1976. Vattel, see note 1, 338, para. 293. The point is convincingly made by Lombardi, see note 9, 343-344. O n the role of amnesties as a means of restoring order at the end of civil wars see in particular W.M. Reisman, "Institutions and Practices for Restoring and Maintaining Public Order", D u k e J. Comp. & Int'l L. 6


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Such a solution makes a lot of sense.57Much more convincing under the perspective of legal policy, however, would be a general rule analogous t o the principle of criminal immunity of combatants in the traditional laws of war, a rule which would exempt participants in a civil war from criminal liability for mere participation in the combat if the conflict is beyond a certain threshold of intensity.58

IV. Structural Problems: The Deficiencies in Implementation There is a second deficiency which carries even more weight than the failure to find a consensus on combatant immunity - the complete lack of any institutionalized form of implementation mechanism that is characteristic for the body of rules applicable to internal conflicts. None of the instruments of an independent procedure of implementation contained in the Geneva Conventions system is applicable in situations of civil war.j9 Even the very elementary - and very traditional - implementation mechanism which lies in the individual criminal responsibility of participants, in particular of responsible commanders, for "grave breaches" of the Geneva Conventions and the Additional Protocols is not applicable.6c T h e states deliberately prevented these rules from being applied to civil war situations - the majority of states obviously was afraid of such a system of individual responsibility of soldiers and politicians. As an

(1995), 175 et seq., 178 et seq. For an analysis of amnesties as a technique for restoring internal public order see e.g. Reisman, sec above, 178-179; see also F. Domb, "Treatment of War Crimes in Peace Settlements - Prosecution or Amnesty?", Isr. YB Hum.Rts. 24 (1 994), 253 et seq. For the traditional arguments against such a solution, however, see Baxter, see note 29, 526-527. O n the weakness of the implementation mechanisms linked to the international legal regime of internal conflict see Mangas Martin, see note 29, 158 et seq., and Draper, see note 43,25-28, 49-50. As to the system of repression of "grave breaches" under the Geneva Conventions and its Additional Protocol I see J.J.E.Schutte, "The system of repression of breaches of Additional Protocol I", in: Essays zn Honour of Frits Kalshoven, see note 41, 177 ct seq.; C. van den Wyngaert, "The suppression of war crimes under Additional Protocol I", ibid., 197 et seq.; W. Solf/E.R. Cumming, "A Survey of Penal Sanctions under Protocol I to thc Geneva Convention of August 12, 1949", Case V \ Res 1.Int'i L. 9 (1977), 205 ct seq.


21 1

illustration from recent practice of such an in-built resistance, the special agreements according to common Article 3 para.3 of the Geneva Conventions might be cited, which were concluded - with the help of the I C R C as an intermediary - between the different parties to the conflict in Bosnia and H e r ~ e ~ o v i n aThe . ~ ' parties to the conflict explicitly obliged themselves in these agreements to abide by the rules of the Geneva Conventions - except the rules o n individual criminal responsibility of soldiers and commanders which were deliberately excluded from the agreement. I n the light of what w e have learnt in the meantime o n the tragic events in Bosnia and H e r ~ e g o v i n ait, ~is~not difficult t o grasp the motives which lay behind the omission f o r which in particular the Serbian side had s o decidedly fought. It is more than doubtful, however, whether the fact that in the regulatory framework of common Article 3 and Additional Protocol 11there are n o specific provisions o n criminal responsibility for "grave breaches", i.e. war crimes, really means that there is n o criminal responsibility for any respective a t r ~ c i t i e s According .~~ t o all the national criminal codes cases of arbitrary killings, of torture, rape and wanton destruction of civilian property are criminal acts anyway, even if such criminal responsibility

See in detail Y. Sandoz, "R6flexions sur la mise en oeuvre du droit international humanitaire et sur la rBle du Comit6 international de la Croix-Rouge en ex-Yougoslavie", SZIER/RSDIE 3 (1993), 461 et seq., (468 et seq.); on the disputed qualification of the conflict - whether it is of an international or non-international character - see also A. Tanca, "Sulla qualificazione del conflitto nella ex Iugoslavia", Riv. Dir. Int. 76 (1993), 37 et seq.; C.L. Nier 111, "The Yugoslavian Civil War: An Analysis of the Applicability of the Laws of War Governing Non-International Armed Conflicts in the Modern World", Dick. J. Int'l L. 10 (1992), 303 et seq.; S. Oeter, "Kriegsverbrechen in den Konflikten um das Erbe Jugoslawiens. Ein Beitrag zu den Fragen der kollektiven und individuellen Verantwortlichkeit fiir Verletzungen des Humanitaren Volkerrechts", ZaoRV53 (1993), 1 et seq., (6 et seq., 17 et seq.). The literature on the war crimes committed in ex-Yugoslavia is extremely rich; the author would like to refer to his previous study on the question, see above, 2 et seq., which contains a series of further references ; in addition, see the extensive Helsinki Watch Report "War Crimes in Bosntd-Hercegovina", 1992. See - as the traditional viewpoint on the question - D. Plattner, "La rkpression p6nale des violations du droit international humanitaire applicable aux conflits armts non internationaux", Rev. ICR 72 (1990), 443 et seq., and Oeter, see note 61,30 et seq.: see also, however, M. Bothe, "War Crimes in Non-International Armed Conflicts", Isr. Y B . Hum. Rts. 24 (1994), 241 et seq.

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usually will n o t become practicable as long as the regime prevailing in a c o u n t r y that had at least favoured such atrocities has n o t changed. But the mainly theoretical criminal responsibility u n d e r national criminal law clarifies at least one point: in principle it is b e y o n d d o u b t that atrocities, acts of w a n t o n violence in civil w a r are abhorred b y t h e international c o m m u n i t y and deserve penalties.64 U n d e r public international law it remained disputed f o r a long time w h e t h e r atrocities in internal conflicts, disregarding t h e "elementary considerations of humanity" laid d o w n in c o m m o n Article 3, could be brought under concepts of international criminal responsibility (with the ensuing international competence t o initiate criminal proceedings outside national j u r i ~ d i c t i o n ) . ~ ' T h estatute of the International Criminal Tribunal f o r the former Yugoslavia handed d o w n b y t h e Security C o ~ n c i l and ,~~ even m o r e clearly the parallel statute of the R w a n d a - T r i b ~ n a l , ~n' o w obviously depart f r o m the presumption that such a n international criminal responsibility exists.68 W h e r e s u c h individual responsibility could be

See T. Meron, "International Criminalization of Internal Atrocities", AJIL 89 (1995), 554 et seq., (561-565). But see now the brilliant analysis of the problem delivered by T. Meron, see above, 554 et seq., and also Bothe, see note 63, at 246 et seq. Concerning the "International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia" see S/RES/808 (1993) of 22 February 1993 and the Report of the Secretary-General pursuant to Paragraph 2 of S/RES/ 808, Doc. S/25704 of 3 May 1993, as well as SIRES/827 (1993) of 25 May 1993, which adopted the statute of the Tribunal. Concerning the Tribunal for Rwanda see S/RES/955 (1994) of 8 November 1994. Sce J . C . O'Brien, "Thc International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia", AJIL 87 (1993), 639 et seq., (647), and T. Meron, "War Crimes in Yugoslavia and the Development of International Law", AJIL 88 (1994), 78 et seq., (82-83). O n the differences in legal qualification of the conflicts in former Yugoslavia see also J. Paust, "Applicability of International Criminal Laws to Events in the Former Yugoslavia", Am. U. J. Int'l L. & Pol'y 9 (1994), 499 et seq.; R . Wedgwood, "War Crimes in the Former Yugoslavia: Comments on the International War Crimes Tribunal", Va. J. Int'l L. 34 (1994), 267 et seq.; A. Pellet, "Le Tribunal criminel international pour l'ex-Yougoslavie", RGDIP 98 (1994) 7 et seq.; C . C . Joyner, "Enforcing H u m a n Rights Standards in the Former Yugoslavia: The Case for an International War Crimes Tribunal", Den. J. Int'l L. C Pol'y 22 (1994), 235 et seq.; D. Shraga/R. Zacklin, "The International Criminal Tribunal for the Former


213

legally anchored, it must be admitted, is not easily to discern. Either the traditional legal institute of "war crimes" must be detached from its classical foundation, the international armed conflict, and be extended to civil wars.69 It is extremely difficult, if not impossible, howevcr, to furnish evidence " d e lege artis" that such an extension of the institute of war crimes to civil war has taken place in state practice; there is an evident lack of relevant precedents, which would justify theclaim that there has developed a body of respective customary law. The ILC has suggested such an extension of "war crimes" at least "de lege ferenda" in its projects o n a "Draft C o d e of Crimes Against the Peace and Security of Mankind."'O But alternatively one could consider a criminal responsibility for "grave

69

70

Yugoslavia", EJIL 5 (1994), 360 et seq.; B. Broms, "The Establishment of an International Criminal Court", Isr. YB..Hum. Rts. 24 (1994), 135 et seq. Meron, see note 64, 559 et seq., 574 et seq., and C. Meindersma, "Violations of Common Article 3 of the Geneva Conventions as Violations of the Laws or Customs of War Under Article 3 of the Statute of the International Criminal Tribunal for the Former Yugoslavia", NILR 42 (1995), 375 et seq. In the same direction goes the decision on jurisdiction of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia of 2 October 1995 in the Tadic case, see Prosecutor v. Tadic, Case IT-94-1-AR72, Appeal on Jurisdiction (Oct.2, 1995), 53-71, paras.96-136; see also the critical remarks concerning this decision made by G.H. Aldrich, "Jurisdiction of the International Criminal Tribunal for Former Yugoslavia", AJIL 90 (1996), 64 et seq., (67-68), and the interesting comments on the legal basis of the Prosecutor's indictments by W.J. Fenrick, "Some International Law Problems Related to Prosecutions before the International Criminal Tribunal for the Former Yugoslavia", Duke J. Comp. & Int'l L. 6 (1995), 103, (104 et seq.). See Report of the ILC on the work of the forty-third session, GAOR 46th Sess., Suppl.lO, Doc.A/46/10 (1991), 238 et seq. For an account of the earlier work on these issues, see Report of the ILC on the work of its forty-second session, GAOR 45th Sess., Suppl. N0.10, DOC.A/45/10, paras.93-157.Compa1-e also the most recent Report, Doc.A/51/332 of 30 July 1996. See also C. Bassiouni, Commentaries on the International Law CommmionS' 1991 Draft Code of Crimes Against the Peace and Security of Mankind, 1993; L.C. Green, "Crimes under the I.L.C. 1991 Draft Code", Isr. Y B . Hum. Rts. 24 (1994), 19 et seq.; J. Crawford, "The ILC Adopts a Statute for an International Criminal Court", AJIL 89 (1995), 404 ct scq.; C. Tomuschat, "Zum Entwurf des Statuts eines standigen Internationalen Strafgerichtshofs (Draft Statute for an International Criminal Court)", Friedens-Warte 70 (1995), 99 et seq.; T.L.H. McCormack/G.J. Simpson, "A New International Criminal Law Regime?", N I L R 42 (1995), 177 et seq.

214


breaches" of humanitarian law in internal conflicts derived from "crimes against humanity."71 O n e may ask why the problem of implementation is placed so much in the foreground in these considerations. The answer is simple: Questions of implementation prove to be of utmost importance for the problems dealt with here, because the trend t o an essential convergence between rules of humanitarian law and the safeguards of human rights law has detached the laws of war more and more from its traditional mechanisms of implementation. Initially the laws of war had developed as a system of consolidating expectations of reciprocity, as some sort of an institutionalized attitude of the military profession, how an honourable soldier would behave in a certain situation.72Its obliging force the "customs of war" grew from a fear of losing honour which became linked to the development of a fixed code of honour, but also from a banal anticipation of reciprocity which caused soldiers to expect a loss of their own protection in case of disregard for the protection afforded to the enemy by the laws of war. Even in World War I1 military lawyers could prevent some violations of the laws and customs of war on the basis of such simple, sometimes rather crude expectations of reciprocity. This is demonstrated by the files of the legal counsel to the German Supreme Command, which have been published (at least partially) in the meantime.73 Modern humanitarian law has thrust into the background the reciprocal character of the regulatory framework of the laws of war.74The impetus for such move is primarily due to humanitarian considerations. The

Concerning the applicability of "crimes against humanity" in internal armed conflicts see C. Bassiouni, Crimes Against Humanity in International Criminal Law, 1992, 257 et seq.; O'Brien, see note 68, 649-650; Meron, see note 68, 85-87; C. Bassiouni, "Crimes Against Humanity: The Need for a Specialized Convention", Colurn. J. Transnat'l L. 31 (1994), 457 et seq. See also the U N Secretary-General's report pursuant to Paragraph 2 of S/RES/808, Doc. S/25704, para.47. See only W.G. Grewe, Epochen der Volkerrechtsgeschichte, 1984, 141 et seq., and G.I.A.D. Draper, "Le diveloppement du droit international humanitaire", in: UNESCO/Institut Henri Dunant (eds.), Les dimensions intemationales du droit humanitaire, 1986, 89 et seq. See e.g. the documents published by G. van Roon (ed.), Helmuth James Graf von Moltke. Volkerrecht i m Dienste des Menschen, 1986,213 et seq., 249 et seq., (253,269-270). See F. Kalshoven, Belligerent Reprisals, 1971,5 et seq., 263 et seq., and R. Bierzanek, "Reprisals as a Means of Enforcing the Laws of Warfare: The Old and the New Law", in: A. Cassese (ed.), The New Humanitarian Law of Armed Conflict, 1979,232, at 241 et seq.

Civil X'ar, Humanitarian Law and the United Nations

215

prohibitions of reprisals codified in the Geneva Conventions and in particular in the Additions; Protocol I have n o t left m u c h f r o m the old r e ~ i p r o c i t y . ' F~ r o m a purely humanitarian perspective such a n evolution undoubtedly has t o be welcomed, since the traditional law of reprisals always gave rise t o serious abuses, w i t h terrible consequences for the people concerned, in particular the civilian population.76 T h e consequences of such a h u m a n rights oriented transformation of the laws of w a r are grave, hon~ever." T h e m o r e direct expectations of reciprocity recede into t h e background, the m o r c humanitarian law becomes dependent o n specific mechanisms of implementation, o n a n institutionalized capacity of the international community7s t o act, which could offer the basis f o r attempts t o enforce compliance with the minimum standards of humanitarian This is particularly true f o r n o r m s intended f r o m t h e beginning f o r situations of an extreme asymmetry of power, like h u m a n rights - and also the rules of humanitarian law f o r internal conflicts, w h i c h are construed to a large degree like h u m a n rights safeguards.sc

This constitutes one of the most criticized moves of Additional Protocol I, see the critique expressed by C. Greenwood, "The Twilight of the Law of Belligerent Reprisals", N Y I L 20 (1989), 35 et seq.; F.J. Hampson, "Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions 1949", ICLQ 3 7 (1988), 818 et seq.; G.B. Roberts, "The N e w Rules for Waging War: The Case Against Ratification of Additional Protocol I", lia. J. Int'l L. 26 (19851, 109, (143-44); as a (convincing) response to this criticism see Kalshoven, "Belligerent Reprisals Revisited", A'YIL 21 (1990), 43, at 53 et seq. Kalshoven, see note 74, 367 et seq.; Bierzanek, see note 74, 237 et seq.; Kalshoven, see note 75, 45 et seq. See only G. Best, see note 21, 392-393 (with further references), and Draper, see note 43, at 35. F o r a careful analysis of the sociological and legal meaning of the term international community" see C. Tomuschat, "Obligations Arising for States without or against their Will", RdC 241 (1993), 195 et seq., (216 et (Doc.A/50/47, Annex IX). Proposals by the African states (Doc.A/50/47, Annex IV), Monaco (Doc. A/50/47, Annex XI), Australia (Doc.A/50/47, Annex XIII), Germany (Doc.A/50/47, Annex XIV) and by Austria, Belgium, the Czech Republic, Estonia, Hungary, Ireland, Slovenia (Doc.A/49/965, page 68). By Argentina (Doc.A/49/965, page 52). A/RES/36/39 of 18 November 1981.

Protectiofi of Regional or Other Interests

2 73

o n the Peaceful Uses of Outer Space,s3the Special Conunittee o n PeaceKeeping Operations,54the Committee o n Relations with the H o s t Country,55the Special Committee on the Charter of the United Nations and o n the Strengthening of the Rolc of the O r g a n i ~ a t i o nAlthough .~~ the statute of the ICJS7does not directly so specify, the five permanent members of the Security Council have de facto permanently sent members to the Court. I n the executive organs of the C o m m o n Fund for Commoditiess8 and of the IFAD,59 among others, the representation of specific financial o r economic interests focuses more prominently.60 Other, more recent examples are the Executive Boards of the UNDP/UNFPA,6' U N I C E F 6 2and, more clearly, the Global Environment Facility63 and the Council of the International Sea-Bed A ~ t h o r i t y . ~ ~ The earliest example for such a protection of specific, namely financial interests was the composition of the directory of the I B R D and the IMF. I n both organizations the five states having the largest number of shares have the right t o appoint one director each. The others are elected by the Governors of the remaining members. As a consequence thereof, 11 of the directors come from industrialized countries and only 9 from developingcountries. Such representation of particular states o r groups is enhanced if the limited membership organ has its o w n powers vis-A-vis the plenary organ.65 Such system was further refined in the subsequent financial A

A/RES/1472 (XIV) of 12 December 1959, A/RES/1721 (XV1)of 20 December 1961. A/RES/2006 (XIX) of 18 February 1965. A/RES/2819 (XXVI) of 15 December 1971. A/RES/3499 (XXX) of 15 December 1975. U N C I O Vol. XV, 355. See Agreement Establishing the Common Fund for Commodities, Dot. TD/IPC/CF/CONF,24 of 27 June 1980. Doc.A/CONF.73/15 of 13 June 1976. For a general evaluation of international organizations in this respect sec W.J. Feld1P.S. Jordan, Intevnattonul Ovgantzutzons: A C o m p u ~ a t t v Ae p pvoach, 2nd edition, 1988. See A/RES/48/162 of 20 December 1993, Annex I. A/RES/48/162 of 20 December 1993. Instrument for the Establishn~entof the Restructured Global Environment Facility, ILM 33 (1994), 1283 et seq. The legislative history of Article 161 is described by K.E. Yost, "The International Sea-Bed Authority Decision-Making Process: Does it give a Proportionate Voice to the Participant's Interests in Deep-sea Mining?", San Dtego L. Rev. 20 (1983), 659 ct scq. This is not the case in the IBRD and in the IMF. The reason for that is

Max Planck Yearbook of United Nations Law organizations which, however, altered the impact the weighted voting system had b y combining it with the protection of groups. T h e structure of the decision-making procedure in the Governing Council of the C o m m o n Fund for C o r n m ~ d i t i e sis~ ~based upon the system of weightedvoting and thus follows the example of IBRD and IMF. Each member disposes of 150 basic votes; an additional number of votes has to be added in accordance with the amount of a state's directly contributed capital. The votes of each member state are spelled out in Schedule D of the Agreement. T h e allocation of votes to the individual member depends upon its share of directly contributed capital compared to the share of the capital provided b y the respective groups of states. The totality of votes is distributed amongst the various groups of states. Forty seven per cent of the votes are allocated to the Group of 77, forty two per cent t o industrialized states, eight per cent to Eastern Europe and three per cent to China. F o r the most important decisions of the fund, particularly those having financial implications for member states, the agreement requires a three-quarters majority, other decisions are taken by a twothirds o r simple majority. This system has the effect that the accumulation of votes with a particular state is detrimental to the other states of the same group. T h e organizational structure of IFAD6' and in particular its decisionmaking procedure is even more influenced by the grouping of member states. T h e original members of IFAD (Article 3 Sec.2) are separated into three categories: O E C D countries (Category I); O P E C states (Category 11) and Developing Countries (Category 111). The composition of these

66 67

that the interests of the investing states have been already secured in the plenary organ and, accordingly, there was no necessity for further safeguards within the organizational structure. A different example can be taken from the statute of the European Investment Bank according to which the directors alone have the decision concerning credit and security. Thc reason for that is that in the Governing Council of the European Investment Bank all states are represented with equal vote, whereas the weighted voting is applied only for the directors. Doc.TD/IPC/CF/CONF.24 of 27 June 1980. See Agreement establishing the IFAD adopted on 13 June 1976 Doc. A/CONF.73/15 of 13 June 1976 - with amendment entered into force 11 March 1987. IFAD was established in reaction to the world food crisis in 1972. The initiative came from the 4th hltg. of the Non-Aligned Countries. The main objective of the organization is to mobilize additional financial resources on concessional terms for agricultural development in developing member states, see E. Savignon, "Le Fonds International de Dkeloppement", AFDI 24 (1978), 660 et seq.

Protection of Regional or Other Interests

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groups does not fully reflect the traditional pattern. The voting system applicable t o the Governing Council and the Executive Board attempts to achieve a balance amongst these groups rather than amongst member states. In the Governing Council of IFAD 1,800 votes are distributed equally among the categories. Within the groups, the 600 votes are distributed in a different way. In category I, 17.5 per cent of the votes (105 out of 600) are equally split among the members, thus following the principle of equality of states. The other 82.5 per cent are distributed among the members of that category in accordance with the respective financial input (Article 6 Sec.3-Schedule 11). In consequence thereof few member states control more than half of the votes of this category. The members of Category I elect six delegates as Executive Directors who control the same number of votes as they were elected with. Thus, the weighted voting system applies to the Board, too. The voting power in Category 11 is distributed in a similar way except that 25 per cent of the votes are divided equally amongst the members of this category. The remaining 75 per cent are distributed in proportion to the countries' capital assets (Schedule 11). In Category 111 a different system prevails; the 600 votes are distributed equally amongst its members (Schedule 11). Their Executive Directors are selected according to regional criteria; each of them has 100 votes.68The voting in the Governing Council and in the Executive Board does not take place in groups but by individual members (Rules of Procedure of the Governing Council Rule 33 para.2). Although decisions in the Governing Council (with only few exceptions) only require a simple majority, a two-thirds quorum is needed, as well as a simple majority within each category (Article 6 Sec.2). In the Executive Board three-fifths of the votes are necessary for ordinary decisions and at least half of all the votes must be cast (Article 6 Sec.6). This procedure enables each category to protect its group interests, assuming there is a common ground within that group. Further, member states with major capital assets may be in a position to protect their interests within their category whereas protecting individual states' interests in Category 111 is difficult due to the sharing of 600 votes amongst many members. In effect the decision-making system of IFAD provides for parity amongst groups and for a grnup veto. Further it encourages the cooperation among groups.

68

P.H. Frankenfeld, "IFAD - International Fund for Agricultural Development", in: Wolfrum, see note 39,694 et seq. (696), Vol.1.

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The emphasis on groups of states is further increased in the structure of the Global Environment F a ~ i l i t y The . ~ ~ Facility is an innovation in international relations; its rationale is to provide financial support for activities of developing countries that promote the protection of the global environment. It is based u p o n the idea that present polluters of the global environment, namely industrialized states, by providing funds, encourage the cooperation of future polluters to cooperate in the promotion of common interests concerning the global en~ironment.~OThe new structure of the Facility7' consists of an Assembly, a Council and a Secretariat. The Council is central in this structure. Its composition and decision-making procedures combine various elements of decision-making arrangements in international organizations, particularly the World Bank Group. The Council is constituency-based; its members represent constituency groupings.72 18 constituencies are composed of recipient countries of which 16 are developing country groupings and two are the transitional economy countries. 14 constituencies are non-recipient (developed countries). The

See Instrument for the Establishment of the Restructured Global Environment Facility, ILM 33 (1994), 1283 et seq. J.C. Dernbach, "The Global Environment Facility. Financing the Treaty Obligations of Developing Nations", Envtl. L. Rep. 23 (1993), 10124 et seq.; A. Jordan/J. Worksman, "Additional Funds, Incremental Costs and the Global Environment", Revue of the European Community and International Environmental Law 3 (1994), 81 et seq.; S.A. Silard, "The Global Environment Facility: A New Development in International Law and Organization", Geo. Wash. J. Int'l L. & Econ. 28 (1995), 607 et seq. (609); V. Shiva, "Global Environment Facility: Perpetuating Non-democratic Decision-making", Third World Economics 31 March 1993, 17 et seq.; Lin Gan, "The Making of the Global Environmental Facility: An Actor's Perspective", Global Environmental Change 3 (l993), 256 et seq.; D . Airman, "The Global Environment Facility: Haunted by the Shadow of the Future", in: R . O . Ke0handM.A. Levy (eds), Institutions for Environmental Aid: Pitfalls and Promise, 1996, 55 et seq. As to the initial structure see Silard, above, 635 et seq.; relating to the new structure see P.H. Sand, "The Potential Impact of the Global Environment Facility of the World Bank, U N D P and UNEP", in: R. Wolfrum (ed.), Enforcing Environmental Standards: Economic Mechanisms as Viable Means?, 1996; H.Sjoberg, From Idea to Reality: The Creation of the Global Environment Facility, GEF Working Paper No. 10, 1994. 111. Article 16. The respective provision reads: "The Council shall consist of 32 Members, representing constituency groupings formulated and distributed taking into account the need for balanced and equitable representation of all Participants and giving due weight to the funding of all donors."


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seats of the recipient countrics are distributed in accordance with the principle of equitable geographic distribution among the regions, referred to as constituencies, namely Africa having six, Asia and Pacific six, Latin America and Caribbean four and Central and Eastern Europe and Former Soviet Union two seats. These constituencies establish amongst themselves the principles on how to allocate these seats. The non-recipient constituencies will be formed through a process of consultation among interested participants, the grouping of the states will be guided by total contributions. Different from the executive directors of the IBRD, each member of the Council may separately cast the votes of each participant in the constituency represented (Article 25 lit. c (ii)). However, voting is intended to be the exception as decisions are to be taken by consensus (Article 25 1it.b). Although group-based, the structure as well as the decision-making procedure of the Council reveals individual rather than group interests. This reflects that the financial functions of the Facility are exercised towards states rather than groups. International Commodity Agreements represent a mode1 for protecting economic interests of particular groups of states. They differentiate between exporting and importing members and provide for a parity among those two groups.73 According to Article 10 of the International Cocoa Agreement, for example, each of the two groups holds 1,003 votes in the Council. Votes are distributed within the exporting group by attributing fives votes to each member and in proportion to the average volume of the respective exports of cocoa in the preceding three years. Within the importing group, votes are, in general, distributed equally. In the International Natural Rubber Agreement the distribution of votes in the Council mainly follows the average amount of export or import, respectively. Both agreements provide for most decisions being taken by a simple majority in both categories.74 The Council of the International Sea-Bed Authority (consisting of 36 members) also protects groups' rather than individual states' interests. This is a reflection of the functions of the Council of the International Sea-Bed Authority which administers a common space where individual

73

74

See, for example, Article 3 of the International Cocoa Agreement, 1993, Doc.TD/COCOA.S/17/Rev. 1 of 16 July 1993 or Article 4 of the International Natural Rubber Agreement, 1995, Doc.TD/RUBBER.3/11/ Rev. 1. Article 12 para. 3 of the International Cocoa Agreement provides for a particular procedure when a two-thirds majority is required and the decision is blocked by one member.

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states' interests have to recede into the background. Section 3 para. 15 of the Annex to the Implcmcntation Agreement75identifies four different interest groups which havc to bc represented in the Council. Four members must belong to those states parties which "have cithcr consumed more than 2 per cent in value terms of total world consumption or have had net imports of more than 2 pcr ccnt in value terms of total world imports of the commodities produced from the categories of minerals to be derived from the Area". Among [his consumer group one state from the Eastern European region having the largest economy in that region in terms of gross domestic product and the state, on the date of the entry into force of the Convention, having the largest economy in terms of gross domestic product have a guaranteed scat if such states wish to be represented in this group. The Implementation Agreement has changed Article 161 para. I 1it.a UNCLOS with a view to accommodating thc interests of thc Unitcd States and of Russia. By referring to the "State, on the date of entry into force of the Convention" instead of to the "largest consumer", the United States now has a !paranteed seat in the Council. Russia's seat is equally . protectcd undcr ;he notion of the "largest economy" in the Eastern European rcgion. The structuring of this group is clearly interest oriented. However, it differs from the example of thc IBRD, U N D O or thc Global Environment Facility sincc thc scat of the state with the largest economy does not allow for adjustments responding to changes in the economic development of states, In that respect the composition of the Council of the Authority slightly resembles the composition of the Security Council as far as permanent membership is concerned. Four further seats of the Council are attributed to the eight states parties having made "the largest investments in preparation for and in the conduct of activities in the Area, either directly or through their national^".^^ Another four members of the Council represent those states parties which are major net exporters of the categories of minerals to be derived from the Arca. Thc group has to include "at least two developing states whose exports of such minerals have a substantial bearing upon their economies". The fourth interest group consists of six developing states parties representing special interests.77The other half of the members of the Council 75

76

77

Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, ILM 33 (1994), 1313 et seq.(1323). Under Article 161 para. 1 1it.b UNCLOS one further seat was guaranteed to the states of the Eastern European region. 'This has been omitted by the Implementation Agreement. These special interests include large populations, nations which are landlocked or have shorr: coastlines, major importers of the minerals to be


2 79

are not elected so as t o represent special interests, but according to the principle of equitable geographical representation. However, none of the 18 seats under this category have to be distributed according to this principle, instead through the distribution of these seats an equitable geographical distribution of the seats in the Council as a whole shall be achieved. The application of this principle has the result that an over-representation of a group under one or all special interest categories lowers the share of states from the same region under the principle of equitable geographical distribution. Section 3 para. 15 1it.e of the Annex to the Implementation Agreement as well as Article 161 para. 1 1it.e U N C L O S , however, contain a safeguard clause in this respect. Each geographical region has at least one guaranteed seat under this rule.78 Further safeguards exist ensuring that the interest groups are autonomous in deciding w h o will represent them in the Council. Such a safeguard is provided for in the Convention. According to Article 160 para. 2 1it.a U N C L O S members of the Council are elected b y the Assembly, Article 161 para. 2 1it.c further stipulates that "each group of States par tie^'^ to be represented in the Council is represented by those members, if any, which are nominated b y that group." Section 3 para. 10 of the Implementation Agreement has further specified this provision with a view to strengthening the autonomy of the groups of states concerning their representation in the C o u n ~ i lThe . ~ ~Assembly may only confirm the proposals made by the respective groups of the states parties.81

78 79

80

81

derived from the Area, potential producers of such minerals, and least developed states. The geographical regions shall be Africa, Asia, Eastern Europe, Latin America and Caribbean and Western Europe and Others. The term "group of States Parties" as used in Part XI of the United Nations Convention on the Law of the Sea and in Section 3 para. 10 of the Implementation Agreement embraces the interest groups referred to in Section 3 para. 15 (a) to (d) of the Annex to the Implementation Agreement as well as the regional groups listed in Section 3 para, l 5 (e). Hence, for the determination of the electorate and the eligible states parties the exact definition of the interest groups is of utmost importance. Since the definition of the interest groups given in the Convention as well as in the Implementation Agreement is all but precise the Implementation Agreement mandates the Assembly to establish lists of countries fulfilling the criteria for membership in the interest groups. . Each group shall nominate as many candidates as the number of seats required to be filled. If there are more potential candidates than seats, the principle of rotation shall apply. However, it is up to each group to implement the rotation principle. Paolillo, see note 17, 246; R. Wolfrum, Die Intemationalisiertrng staats-

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The third mechanism supplementing the two former ones is the establishment of an organizational structure which enforces cooperation between the plenary and the limitcd membership organ. Thereby the protection of interests as provided by the limited membership organ is extended to the plenary organ. This system is applied, amongst others, by the U N I D O as well as by the International Sea-Bed Authority. The structure of the UNIDOs2has the special feature that the distribution of competences amongst different organs (General Conference, Industrial Development Board) protects the interests of the major contributors. Most of the actions of the General Conference require an initiative of the Industrial Development Board. This system also applied by other international organizations has been perfected in the International Deep Sea-Bed Authority already referred to. Theoretically, the Assembly is the supreme organ of the International Sea-Bed Authority. However, this does not reflect its relationship vis-i-vis the Council. The mandated cooperation between the plenary organ, the Assembly and the limited membership organ, the Council, has been used to protect the interests as represented by the interest groups. Already Part XI of UNCLOS has identified several issues to be decided in cooperation with the Assembly and the Council. These were the consideration and approval of rules, regulations and procedures on the equitable sharing of benefitsa3and on deep sea-bed mining a c t i ~ i t i e s the , ~ ~adoption of the budgets5 and the establishment of general policies.86The Implementation Agreement has strengthened this system of cooperation between Assembly and Council in three respects, thus making use of the precedent set by the U N I D O . According to Section 3 para. 1 of the Annex to the Implementation Agreement of UNCLOS the general policies of the Authority shall now be established by the Assembly in collaboration with the Council. This eliminates the prerogative the Assembly formerly had on this issue. Further, Section 3 para. 4 of the Annex to the Implementation Agreement states that decisions "of the Assembly on any matter for which the Council also has competence" shall be based upon the recommendations of the Council. This provision significantly strengthens the position of the Council. Moreover, the right of initiative has been established on behalf of the Council for decisions of any other budgetary, financial or adminis-

82 83 84

85 86

freier Raume, 1984, 547. A/RES/2152 (XXI) of 17 November 1966. Article 162 para. 2 1it.o (i); Article 160 para. 2 lit.f(i). Article 162 para. 2 1it.o (ii); Article 160 para. 2 1it.f (ii). Article 162 para. 2 1it.r;Article 160 para. 2 1it.h. Article 160 para. 1; Article 162 para. 2 1it.s.


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trative matter. Decisions having a financial or budgetary implications7shall additionally be based upon the recommendations of the Finance Committee.88The composition of the Finance Committee ensures the participation of the four interest groups and, until the Authority has sufficient-funds other than assessed contributions to meet its administrative expenses, the participation of the five major contributor^.^^ Since decisions o n questions on substance in the Finance Committee are taken by consensus (Section 9 para.8) and the respective decisions of the ~ o u n c i l . o the r Assembly have to be based upon recommendations of the Finance Committee, the decision-making power in respect of such issues rests with the Finance Committee rather than with the Assembly or the Council. In assessing the relationship between the Council and the Assembly it has to be stated that the Implementation Agreement caused a transfer of competences from the plenary organ, the Assembly, to organs with a limited membership, namely the Council and the Finance Committee. Since the composition of these organs reflects particular states' interests and the decision-making procedure is tailored in a way so as to protect such interests, this will be the factor dominating the decisions of the International Sea-Bed Authority.

IV. Conclusion A function-related structure of the decision-making process of international organizations is one of the prerequisites of their efficient functioning. Only to the extent that an international organization encourages the participation of all states the interests of which are affected and provides for a decision-making process in which such interests can be voiced and integrated in the decision of the organization's actions, will resolutions be implemented. It is unrealistic to strive, as a general rule, for a decisionmaking procedure of international law merely based o n the principle of one state one vote. Such an approach would neglect the fact that states form a highly differentiated community. In decision-making of international organizations - as in the words of the ICJ90 - the principle has to 87 88

89 90

Section 3 para. 7 of the Annex to the Implementation Agreement. Section 9 para. 7 of the Annex to the Implementation Agreement contains a list of financial or budgetary issues falling within the competence of the Finance Committee. This list is not exhaustive. The term "having financial or budgetary implications" used in Section 3 para. 7 of the Annex to the Implementation Agreement is definitely wider. Section 9 para. 3 of the Annex to the Implementation Agreement. ICJ Reports 1969, 3 et seq. (42 et seq.).

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be applied that law cannot come into being without the consent of those most seriously affected. However, the more general the mandate of an international organization is, the more difficult it is to identify those states primarily involved. This is one of the root causes why it is difficult to agree on a future composition of the Security Council, particularly as far as the permanent membership and the voting power is concerned. Taking into consideration the functions of the Security Council, the capabilities as well as the readiness of member states to participate in peace-keeping or peace-making operations should be the decisive factor. However, these are not necessarily relevant criteria concerning the composition of other United Nations organs or fora. The application of the principle of equitable geographical distribution of seats has to be seen from this point of view, too. The allocation of seats in limited membership organs has to take into consideration the increase of independent states and the interest they have in the progressive development of international law. In that respect this principle guarantees that the plurality amongst the state community is expressed in those organs forming a common will. Regional groups may be instrumental in serving any further purpose. The formation of a common will of the international community of states requires an integrative effort which should be undertaken on different levels: Regional groups may, in this respect, serve as pre-clearance fora. However, the introduction of the principle of equitable geographical distribution should only prevail if the functions of the respective organization or organ so require. Its application is less justifiable if the organization or organ in question is not involved in further developing the body of international law but takes specific decisions of a judicial or administrative nature. In the former case it would be more coherent to emphasize the full representation of all major legal systems. The law of international organizations shows that there is a clear trend, at least as far as economic and financial international organizations are concerned, to replace or modify the principle of a regional representation of states by additionally reflecting their substantial interests. This development mirrors the fact that regional groups have lost coherence, substantive interests have become more dominating and weaken regional allegiances. Two considerations have to be taken into account when the structure of a decision-making process reveals special interests. These special interests have to be defined so as to respond to the function of the said organization. Moreover, the mechanisms, particularly the identification of particular states' interests have to be designed in order to be open to further development. Only through such a mechanism can the acceptability of an organization be preserved on a permanent basis.

The ILC Adopts the Draft Code of Crimes Against the Peace and Security of Mankind Martin C. Ortega

I. Introduction When, on 5 July, 1996, after many years, the Draft Code of Crimes against the Peace and Security of Mankind was finally adopted on second reading by the ILC, apolite but half-hearted applause was heard. The Commission had rid itself of a heavy burden, but the final moments had been somewhat polemic, and the weariness and urgency typical of the end of five years' work were visible in the members. There was, however, reason to celebrate. The topic was the oldest one on the agenda of the Commission, dating back to 1947.' After having reached a first draft Code in 1954 consisting of four articles, the work had to be interrupted owing to lack of agreement on the concept of aggression. In 1981 the General Assembly invited the Commission to resume its task with a view to elaborating a renewed version of the draft Code. From 1983 onwards, the Commission prepared a project with 26 articles which was adopted on first reading in 1991. However, the discussion on these articles during 1995 and 1996 led to drastic decisions. The 1991 Draft Code contained 12 crimes, and the Commission in 1995 decided to reduce the number to 6. Nevertheless, a deep rift was observed among the members regarding the need to reduce the number of crimes. In 1996 another two crimes were excluded, illicit traffic in narcotic drugs, and wilful and severe damage to the environment (although the latter was retained, subject to certain conditions, as a war 1

A/RES/177 (11) of 21 November 1947 directed the Commission to prepare a draft Code of offences against the peace and security of mankind. For the history of the Code, see United Nations, The Work of the International Law Commission, 5th edition, 1996, 38-41, and 142-149; and ILCYB 1983, Vol. I1 (part 2), paras. 26-41.

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crime). The exclusion of severe harm to the environment as a crime in peace time proved nonetheless highly controversial. Finally, when the list appeared t o be limited to four categories (aggression, genocide, crimes against humanity, and war crimes), a fifth type (crime against United Nations personnel) was included in the last few days, with some protest concerning the inconsistency of the late inclusion compared to the drastic reduction made in the list of crimes. Consistency is not a concept one can absolutely respect in an exercise carried out over decades and involving a Commission with a changing composition, so at that stage the Commission wisely decided not t o get involved in pointless discussions, and to adopt the Draft Codc as it was, thereby allowing some time to complete its busy agenda before the end of the session. Nonetheless, the shadow of inconsistency somewhat dimmed the final adoption of the Draft Code. T h e purpose of the present study is to analyse the process leading to the 1996 ILC's Draft Code, and to assess its meaning for contemporary international law. After pondering various options (such as whether to endorse the Code as a declaration, o r to adopt it as a treaty open to ratification by states), the 51st General Assembly decided to draw the attention of the states participating in the Preparatory Committee for the Establishment of an International Criminal Court to the relevance of the Draft C o d e to their work. A t the same time, the General Assembly requested member states to present their written comments on action which might be taken in relation to the Draft Codes2It will be interesting to observe the evolution of the Draft Code and of the proposed conference o n an international criminal court over the next few years since this is one of the crucial matters which will put the progress of international law to the test in the near future. Throughout its history, the great majority of projects prepared by the I L C dealt with questions that did not involve profound political differences among states; they were mainly technical matters of international law.3 The new period inaugurated since the end of the cold war has also affected the codification of international law, and at present t w o consequences seem t o have arisen. O n the one hand, there is a slight acceleration of the process, and o n the other hand more difficult topics are being dealt with. The Commission adopted the Draft Statute for an International Criminal C o u r t in 1994, and in 1996, apart from the Draft Code, the Commission has provisionally adopted on first reading the Draft Articles o n State Responsibility. Among the topics foreseen for the Commission's work programme are other questions of relevant political

2 3

A/RES/51/160 of 16 December 1996; see text of the Draft Code Annex. See 0.Schachter, International L a w in Theory and Practice, 1991, 73.

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content, for instance, diplomatic protection, and unilateral acts of states." It is very important to understand the adoption of the Draft Code within this context, in which the distinction between codification and progressive development must be seen from a new perspective.

11. The Crucial Choices of the International Law Commission During its work on the Draft Code, the Commission had to make a number of crucial decisions which shape the Code as finally adopted. (a) General provisions and the list of crimes. Following a suggestion made by the Commission, A/RES/38/132 of 19 December 1983 invited the Commission to divide the Draft Code into these two parts. The Commission understood that this mandate did not imply that they should work on one part before the other, and worked almost simultaneously on both parts.5 (b) O n l y individual responsibility. In spite of some doubts at the very beginning, it was soon decided that the Code should confine itself only to individual responsibility. State responsibility was the object of another topic under consideration by the Commission. In 1985, the Commission studied whether the draft should refer only to state authorities or rather to any individual who committed a crime of the kind envisaged, and the Commission tended towards this last option.6

(c) O n l y the most serious crimes and not an international criminal code. The Commission unanimously agreed that the Code would cover the category of the most serious international crimes, and would exclude the less grave international crime^.^ In this regard, the Special Rapporteur and the Commission emphasized that they were not elaborating an international penal code aiming at the criminalization of the wide variety of international crimes as a whole. They thus meant to establish a clear difference from the doctrinal efforts in the field of criminal law.8 In the

5 6

7 8

GAOR 51st Sess., Suppl. No. 10 (ILCYB 1996, Vol. 11, part 2), paras. 245-249, and Annex 11. See also GAOR 50th Sess.,Supp].No. 10 (ILCYB 1995, Vol. 11, part 2), paras. 500-507, and Doc. A/51/358/Add.l. ILCYB 1983,Vol. 2 (part 11),para. 67; ILCYB 1984,Vol. 2 (part 11),paras. 33,39-40 & 65 (b). ILCYB 1984, Vol. 2 (part II), paras. 32 & 65 (a); ILCYB 1985, Vol. 2 (part II), paras. 40-45 & 99. ILCYB 1983, Vol. 2 (part 11), paras. 46-48 & 69 (a). See among others V. Pella, "La codification du Droit penal international", RGDIP 56 (1952), 378 et seq.; A. Quintano RipollCs, Tratado de Devecho

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1954 Draft Code, certain crimes were omitted because they were not considered to be sufficiently grievous: piracy, currency counterfeiting and damage to submarine cables. In 1985 the Commission considered that the taking of hostages, violence against persons enjoying diplomatic privileges and immunities, and the hijacking of aircraft should not be treated as crimes against the peace and security of mankind, but rather should be regarded as associated with the phenomenon of international terrorism, on which a general characterization was to be drafted. With regard to piracy, the Commission recognized that it was a crime under customary international law, but it doubted whether in the present international community the offence could be such as to constitute a threat to the peace and security of mankind. Finally the Commission decided not to consider other crimes such as forgery of passports, dissemination of false or distorted news, o r insulting behaviour towards a foreign state,9 as well as the breach of treaties designed to ensure international peace and security.13O n first reading, the Commission found 12 crimes serious enough to be included in the Draft Code until 1991: aggression, threat of aggression, intervention, colonial domination and other forms of alien domination, genocide, apartheid, systematic o r mass violations of human rights, exceptionally serious war crimes, recruitment, financing and training of mercenaries, international terrorism, illicit traffic in narcotic drugs, and wilful and severe damage to the environment. The work o n the Draft Code was resumed in 1994, and in its 1995 and 1996 sessions the Commission totally changed its mind, as will be shown below. Instead of the seriousness of the criminal conduct or of its effects, the Commission preferred tradition as the criterion of the definition of the crimes, and o n second reading decided to include only the four crimes recognized by the Nuremberg trial (aggression, genocide, crimes against humanity, and war crimes), although in fact some changes had to be accepted. (d) T h e Principle of n u l l u m crimen sine lege. In his first report, the Special Rapporteur Mr. Thiam," affirmed the general validity of this

9

'C

11

PcnalInternacionaly InternacionalPenal, 1957; C . Lombois, Droitpe'naf international, 1979; D. Oehler, Internationales Strafrecht, 1983; M . Cherif Bassiouni, A Draft International Criminal Code and Draft Statute for a n International Criminal Tribunal, 1987. ILCYB 1985, Vol. 2 (part 11), paras. 60, 63 & 65 (c). ILCYB 1988, Vol. 2 (part 11), paras. 256-261; ILCYB 1990, Vol. 2 (part 11), paras. 89-92. From 1983 until 1995, Mr. Thiam presented 13 reports on the topic. In this study the recent practice of the ILC is followed, according to which the title of the members is 'Mr.' (no woman has been yet elected to the Commission), be they Ambassadors, Professors, etc.


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principle, which required that any criminal conduct should be expressly defined in order to be punishable. However, thc Commission felt that it was not advisable to conclude from the principle that the list of crimes in the Draft Code was to be exhaustive." In fact, Article 1 para.2 of the final draft does not declare that the crimes against the peace and security of mankind are only those found in the Code itself but rather provides that this kind of crime is defined by. general international law. I n consequence, the n u l l u m crzmen sine lege principle is asserted in the Draft C o d e by way of declaring its non-retroactivity, yet at the same time, it is affirmed that the non-retroactivity of the Code does not preclude the trial of anyone for anv act which, at the time when it was committed, was criminal in accordance with international law o r national law. This crucial exception to the principle is justified in international law. The commentary t o the f 991 Draft Code declared rhat the word 'lege' in the phrase nullum crimen szne lege might be interpreted in international law as encompassing not only treaties but also custom and general principles of law." The exception is also justified by the most relevant cases of the Nuremberg trial and its recent constructions. According to one school of thought, a certain degree of retroactivity was in a way acceptable on the ground of 'a common sense of justice'.14 Otherwise expressed: "l'esprit des rkgles de Ndrnberg relatives au p r o b k m e de la ritroactiviti des rkgles pCnales revient L dire que certains faits sont trop monstrueux pour ne pas itre dija incriminis coutumitrement o en vertu des principes gkniraux du droit L defaut de l'itre expressis verbis par le droit international conventionnel"."

ILCYB 1983, \'ol. 2 (part I), First report by Mr. Thiam, Doc. A/CN.4/ 364, para. 55; ILCYB 1983 Vol. 2 (part 11),para. 66. See commentary to Article 8 of the 1991 Draft Code, in ILCYB 1988, Vol. I1 (part 2). The commentary to the corresponding Article 13 of the 1996 Draft Code has suppressed rhat observation. See \Jr. Simons, "The jurisdictional bases of the International Military Tribunal at Nuremberg", in: G. Ginsburgs and V.N. Kudriavtsev (eds.), T h e h'ttremberg trzal a n d internattonal law, 1990, 39-60 at 58, note 63. See also pages 111-1 17. Another position stressed the consensual character of the Nuremberg experiment, for many states adhered to the London Agreement and Charter, and the trial was proclaimed in the interests of the United Nations. See op. cit., pages 52-54, and 58. E. David, "L'actualiti juridique de Nuremberg", in: Colloque international de I'ULB sous Ie patronage de W.G. van der Meersch, Leprocks de N u r e m b e r g . ConsPquences et actualisation, 1988, 89-176, at 147.

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Articles 1 para.2 and 13 para.2 of the Draft Code allow the possibility that the crimes against the peace and security of mankind are regulated not only by the Code (even if the Code were declaratory of customary law) but also by the variety of sources accepted in contemporary international law. The principle of non-retroactivity as expressed in Article 13 para.2 of the Draft Code implies that general international law may always consider certain criminal acts as crimes against the peace and security of mankind although they are not expressly characterized in the Code. (e) The characterization of the criminal conduct. The 1991 Draft Code used several approaches to the characterization of each crime. Aggression was defined by nearly reproducing AlRESl3314 (XXIX) of 14 December 1974. Threat of aggression, intervention and colonial domination were paraphrased as a short synthesis of relevant General Assembly resolutions. Genocide, apartheid and the recruitment of mercenaries were quasi-reiterations of well known multilateral conventions. Systematic or mass violations of human rights replicated the concept of crime against humanity set out in Principle V1 (c) of the Principles of International Law recognized in Nuremberg and adopted by the ILC in 1950. When drafting international terrorism and drug trafficking, the Commission endeavoured to phrase new general descriptions. Finally, the crime of wilful and severe damage to the environment was directly inspired by Articles 35 para.3 and 55 of the 1977 Protocol I Additional t o the Geneva Conventions. Criticisms from governments and from specialists in criminal law alike were directed towards the vagueness and lack of precision of some of the characterizations, and it should be noted that the Commission was indeed not very inspired when drafting some articles, especially those on threat of aggression, intervention and terrorism. O n second reading, four forms of characterization may be identified, which broadly speaking could be described as follows. Firstly, the Commission simply desisted from characterizing the crime of aggression. Secondly, the restatement approach was used in the crime of genocide, and the major part of the crimes against humanity and of war crimes. Thirdly, what may be called the synthesis technique is observed in the characterization of the crimes of institutionalized discrimination and forced disappearance of persons (Article 18 lit.(f) and (i) of the Draft Code). In -both cases, the language condenses in a few words a number of more specific criminal acts defined elsewhere (notably Article I1 of the 1973 International Convention on the Suppression and Punishment of thc Crime of Apartheid, and the third preambular paragraph of A/RES/ 47/133 of 18 December 1992 adopting the Declaration on the Protection of All Persons from Enforced Disappearance, as well as Article I1 of the 1994 Inter-American Convention on the Forced Disappearance of Persons, all quoted in the commentary to Article 18). Fourthly, the Commis-


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sion also elaborated ad hoc characterizations from treaty clauses in order to raise the threshold of the gravity of the criminal conduct concerned. This applies t o the characterization of the crime against United Nations personnel in Article 19 (a reinforced version of Article 9 para.1 lit.(a) and (b) of the 1994 Convention on the Safety of United Nations and Associated Personnel) and to the crime of wilful and severe damage to the environment in the case of armed conflict in Article 20 lit.(g) of the Draft Code (whose characterization was taken from Articles 35 para.3 and 55 of 1977 Protocol I, stengthened in a bizarre way, as will be shown). (f)Excluding sanctions. The General Assembly repeatedly asked the states to give their opinions on whether the Code should include concrete punishment or sanction for the convicted criminals, and whether any reference should be made to the establishment of an international criminal jurisdi~tion.'~ The Special Rapporteur stressed on various occasions the nullum poena sine lege principle, and eventually proposed a very broad draft Article Z on sanctions, according to which the person convicted for any crime described in the Draft Code could be imprisoned for a period of 10 years to life imprisonment.17 Finally, the Commission decided to defer the question of applicable penalties to the second reading of the draft, so as to examine it bearing in mind the comments of the governments on the 1991 Draft Code.18 As a matter of fact, the governments preferred to remain silent on this particular issue, but at the time the second reading was being carried out, a new development was to prevent ths Commission from taking any further steps on this matter. In its 199-1 session, the Commission had adopted the Draft Statute for an International Criminal Court, Article 47 of which dealt with the penalties that the Court might impose on a convicted criminal. Following the pattern of the Nuremberg Charter (Article 27), the Charter of the Tribunal for the Far East (Article 16), and the Statute of the International Criminal Tribunal for the former Yugoslavia (Article 24), the Draft Statute allowed the Court a great degree of discretion to impose particular penalties, although these would be only

16

l7

18

A/RES/38/132 of 19 December 1983, A/RES/39/80 of 13 December 1984, A/RES/41/75 of 3 December 1986, A/RES/ 43/164 of 9 December 1988, and A/RES/44/32 of 4 December 1989. The comments by governments are contained in documents Doc. A/CN.4/392 (ILCYB 1985,Vol. 11, part l),Doc. A/40/451, Doc. A/CN.4/407 (ILCYB 1987, Vol. 11, part l), Doc. A/42/484, Doc. A/CN.4/429 (ILYB 1990, Vol. 11, part l), and Doc. A/44/465. See ILCYB 1983, Vol. I1 (part l ) , First report by Mr. Thiam, Doc. A/CN.4/364, para. 50; and ILCYB 1990, Vol. I1 (part l),Eighth report by Mr. Thiam, Doc. A/CN.4/430, paras. 101-105. ILCYB 1991, Vol. I1 (part 2), paras. 70-105, and 171.

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imprisonment and fines. The Special Rapporteur observed: "It is regrettable that the draft Statute ..., as recently prepared by the Commission, determined the applicable penalties when this should normally have been done in the draft Code".19

(g) The separation of'the work of the ILC on the International Criminal Court and the Draft Code. The study of the various issues concerning the possibility of establishing an international criminal court was started by the Commission at the last stages of the first reading of the Draft Code.20 I n its 1992 session, the Commission discussed the Tenth report b y Mr. Thiam on the topic, but then decided to create a working group o n the question of establishing an international criminal jurisdiction. The working group's report was received favourably by the Commission at the end of the session, and while this report was presented t o the General Assembly the Commission asked for a renewed mandate to prepare a detailed draft statute for a t r i b ~ n a l . During ~' its 1993 and 1994 sessions, the Commission, with strong support from the General Assembly, managed to complete the Draft Statute, a huge task facilitated by the more dynamic method of the working At the same time, the second reading of the Draft C o d e began in 1994, when the general provisions were considered, and was continued in 1995 and 1996.~'Therefore, the work of the Commission o n the Draft Statute and the Draft Code was differentiated from 1992 onwards, and both drafts were considered separately b y the Commission. Although both instruments coincide in certain aspects, as could be expected, there are also some inconsistencies between the two, as shall be pointed out hereinunder.

Excursus: Criminal international law and international criminal law a difficult marriage. Some of the big choices made b y the I L C clearly troubled specialists in criminal law. In a collective work containing commentaries o n the 1991 Draft Code, edited by Mr. Cherif B a s ~ i o u n i , ~a'

Thirteenth report by Mr. Thiam, Doc. A/CN.4/466 (ILCYB 1995, Vol. 11,part l ) , para. 31. See also ILCYB 1994, Vol. I1 (part 2), para. 103. Article 3 of the 1996 Draft Code provides the general principle for punishment. ILCYB 1990, Vol. 11, (part 2), paras. 93-157; ILCYB 1991, Vol. I1 (part 2), paras. 106-165 & 175. ILCYB 1992, Vol. I1 (part 2), paras. 23-104, and Annex. GAOR 48th Sess., Suppl. No. 10 (ILCYB 1993, Vol. 11, part 2), paras. 33-100, and 471-483; GAOR 49th Sess., Suppl. No. 10 (ILCYB 1994, Vol. 11, part 2), paras. 42-91. GAOR 49th Sess., Suppl. No. 10 (ILCYB 1994, Vol. 11, part 2), paras. 92-209; GAOR 50th Sess., Suppl. No. 10 (ILCYB 1995, Vol. 11, part 2), paras. 37-143; GAOR 51st Sess., Suppl. No. 10 (ILCYB 1996, Vol. 11, part 2), paras. 42-50.


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number of criminal lawyers criticised basically three aspects of the work of the Commission: the acceptance of sources other than the lex scripta (which negatively affects the nullurn crimen sine lege principle), the vague and imprecise characterizations, and the lack of definition of sanctions. This sacred triangle of criminal law was put in danger. However, the characteristics criticised are inevitable in international law, because there is no global legislative power. International law has its own system of sources and it must inevitably be taken into account that custom governs even in criminal international law. The characterizations cannot be made more exact because situations are quite unpredictable in international relations. Likewise, sanctions cannot be rigorously established when each state has a different penal system. One must not forget that an international criminal code is destined to operate within a society of states and not in the more homogeneous environment of a single state. Just as criminal lawyers should understand these extremes, internationalists should make more assiduous use of the contributions of criminal lawyers and not consider them somewhat disdainfully. In fact, the ILC has recognized that it would need the assistance of specialists for a series of points.25 In the same way, the Statutes of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda as well as the Draft Statute for an International Criminal Court provide that these tribunals are to be served by both specialists in criminal law and in international law. Therefore, these two subjects must, in practice, come to an understanding. It is absolutely necessary to achieve a frank dialogue and an ultimate comprehension between these two disciplines because the tribunals mentioned above must use equity often, for example to determine sanctions.

111. T h e General Provisions 1. Individual Responsibility and Participation Individual criminal responsibility is determined in the Draft Code along the same general lines established in the Nuremberg principles. The rules which express whether an individual can be held accountable for a crime against the peace and security of mankind are set out in Articles 2, 5, 6,

24

25

M. Cherif Bassiouni (ed.), "Commentaries on the ILC's 1991 Draft Code", Nouvelles Etudes PPnales l l (1993), monographic issue. See for example the Meeting on defences and extenuating circumstances (Articles 14 and 15 of the Draft Code) held on 12 June 1996, Doc. A/CN.4/SR.2440,11-12.

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and 7. Generally speaking, an individual incurs international criminal responsibility by the commission of such a crime (Article 2 para.3 lit. (a)), by complicity or conspiracy (lit. (b) to (f)),o r b y attempt (lit. (g)). The well known principles regarding government o r superior orders, the responsibility of the superior, and the irrelevance of the official position are set out in Articles 5, 6, and 7. The main problems concerning participation were the regulation of attempt, which was left expressly unresolved in the 1991 and responsibility for the crime of aggression. Both issues are addressed in the 1996 Draft Code in a restrictive way. Commission of and participation in the crime of aggression are described in Article 16, in a way that could be construed as even narrower than Principle V1 (a) of the 1950 Nuremberg Principles. O n the other hand, participation does not always entail responsibility if the crime was only attempted but not actually committed. When describing the different forms of complicity and conspiracy, Article 2 para.3 ensures that participation in an attempt to commit a crime would only be relevant in the case of an individual w h o orders the criminal act (lit. (b)). Attempt is expressly excluded altogether in Article 20 lit.@ of the Draft Code, as it is analysed below. The restrictive approach to participation is inconsistent with the Convention o n the Prevention and Punishment of the Crime of Genocide, for which reason the commentary asserts that the limitation does not affect the wider scope of related provisions contained in other i n ~ t r u m e n t s . ~ '

2. Jurisdiction Jurisdiction over the crimes covered by the Draft Code is regulated in a very clear way. There are three general rules directly dealing with jurisdiction in Articles 8 , 9 and 10, and two dealing indirectly, Articles 12 and 13. Jurisdiction over the crime of aggression is regulated separatedly in the last two sentences of Article 8. The first rule is the principle of universal jurisdiction. According to Article 8, "each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set out in articles 17,18,19 and 20,irrespective of where o r b y w h o m those crimes were committed". The commentary makes it clear that states are obliged to enact any procedural o r substantive measures that may be necessary to enable them to effectively exercise jurisdiction. The only basis

26 27

ILCYB 1991, Vol. I1 (part 2), para. 172. GAOR 51st Sess., Suppl. No. l 0 (ILCYB 1996, Vol. 11, part 2), footnote 29.

Draft Code of Crimes for this jurisdiction would bc the physicai presence of the alleged offender in the territory of the state. The second general rule is the principle aut dedereautjudicare, an obligation to extradite or prosecute. This obligation is imposed on the state in whose territory an alleged offender is present; this state has an obligation to take the necessary steps to apprehend the individual for whom a request for extradition has been received, and to ensure the prosecution or extradition of that individual. Article 10 endeavours to facilitate the extradition process. Finally, the jurisdictional provisions also recognize the possibility of an international jurisdiction. The custodial state might prefer neither to extradite nor to prosecute but to transfer the alleged offender to an international criminal court for prosecution. The statute for an international criminal court will have to address this question. O n the other hand, the provisions of Articles 12 and 13, non bis in idem and non-retroactivity, may be regarded as judicial guarantees for the accused, but their respective exceptions may also be interpreted as jurisdictional clauses. National and international courts alike are entrusted jurisdiction over crimes previously tried by other courts if the conditions foreseen in Article 12 para.2 are met. Jurisdiction of national and international courts might also expand to acts committed before the entry into force of the Draft Code if, at the time when those acts were committed, those acts were criminal in accordance with international law or national law. The general provisions of the Draft Code contain an advanced jurisdictional system whose aim is to widely expand jurisdiction over the crimes against the peace and security of mankind. The relevant provisions are innovative as to their ample scope, since they tend to encompass every crime of the Draft Code. Several treaties dealing with international crimes had provided for expanded jurisdiction, notably through the principle aut dedere aut judicare, but the general application of the principle of universal jurisdiction, which was restricted in practice mainly to some war crimes,2' was hereto unknown. The 1991 Draft Code only included the principle aut dedere aut judicare. The commentary to the 1996 Draft Code implies that the principle of universal jurisdiction is a corollary to the other principle and in fact universal jurisdiction was introduced in 1996 almost i n a d ~ e r t e n t l yHowever, .~~ universal jurisdiction is not as evident a corollary of the obligation to extradite or prosecute as it is suggested. In spite of the obligation to extradite or prosecute, an alleged criminal might elude prosecution if the state in whose territory he is staying does not receive

28 29

G. Gilbert, Aspects of Extradition Law, 1991,220-225. Compare GAOR 49th Sess., Suppl. No. 10 (ILCYB 1994, Vol. I1 (part 2)), paras. 140-146, and 2439th Mtg. (Doc. A/CN.4/SR.2439,6-9).

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any request for extradition. Similarly an alleged criminal could escape trial if the custodial state decided to prosecute instead of extradite, and the criminal courts of this state find that they have no jurisdiction whatsoever over a crime committed abroad. The principle a u t dedere a u t judicare, as formulated in Article 9 of the Draft Code, obliges to prosecute, not to try or, obviously, to punish. It is here submitted that the I L C introduced an expanded jurisdictional system for the crimes against the peace and security of mankind without much careful consideration. Consequently, there are a number of complex problems which remain unsolved in the Draft Code, and which would deserve further thought and regulation. Basically, the common ground of these problems is that the principle of universal jurisdiction seeks to assure the prosecution of any individual w h o has commited crimes against the peace and security of mankind, but paradoxically enough the same principle could be used to shield offenders. The following questions are among the issues left open by the jurisdictional system of the Draft Code. (a) The obligation to extradite o r prosecute refers to an individual w h o is alleged to have committed a crime. The commentary affirms that the concerned person should not be singled out on the basis of unsubstantiated allegations, but on the basis of pertinent factual information. Nonetheless, Article 10 para. 2 underlines that extradition shall be "subject to the conditions provided in the law of the requested State". Several doubts remain as to the evidence that ought to be produced for requesting an extradition, and whether the threshold of the factual information should be higher o r lower with regard to crimes against the peace and security of mankind. (b) The custodial state has absolute discretion to decide between prosecuting or extraditing. It could be doubted whether certain limits to such discretion should be established. If the purpose is to avoid the existence of safe havens for offenders, some measures ought to be introduced; for instance, the principleprimo dedere sequondoprosequi in certain cases, o r the definition of minimum penalties. Measures of political pressure have also been discussed in related contexts.30 (c) The 1991 Draft indicated apreference for the extradition requested from the state in whose territory the crime was committed. O n the contrary, the 1996 Draft Code concedes discretion to the custodial state when it receives more than one request for extradition. This is a complex issue which would require further elaboration, for sometimes the state where the crime was committed is in the best position to examine evidence, but sometimes this state has no real purpose of trying the alleged criminal,

33

Gilbert, see note 28, 164.


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especially if the offender had been a government o r a military official. As is stated in the United Kingdom comment to the 1991 Draft Code,perhaps the best solution would be "to have an order of priorities with the concomitant obligation on the extraditing State to ensure that one requesting State has a bona fide intention to prosecute".31 (d) The jurisdictional system of the Draft C o d e does not provide for mutual legal assistance among concerned states. Judicial cooperation is a must if the principle of universal jurisdiction is to be effectively applied. Lack of cooperation over evidence for example, could end u p in a defective prosecution and a mistrial. (e) Finally, the exception to the non bis in idem rule would be meaningless if the records and proceedings of the trials for crimes against the peace and security of mankind are not communicated to the international criminal court and to the states mentioned in Article 12para.2 lit.(b). Otherwise the description of the particular crimes that were considered b y the court and the assessment of the impartiality of the previous trial would have to be made only from media information. It is to be hoped that future work leading to a Draft Statute for an International criminal Court will make advances toward the solving of these problems, but some of them should have been addressed in the Draft Code itself. I n any case, it seems that the workable enforcement of the jurisdictional system envisaged in the Draft C o d e will require further elaboration and regulation in the years to come.

3. Judicial Guarantees A n adequate list of the most important judicial guarantees is set out in Article 11. These guarantees tend to assure the respect for the alleged offender w h o is being prosecuted in national o r international courts, and to assure an impartial and fair trial. Judicial guarantees described in the Draft Code are to be considered a minimum standard f o r any national criminal judicial system, and are replicated and developed in the statutes of the international criminal courts established by the Security Council and the Commission's 1994 Draft Statute.

31

DOC.A/CN.4/448 of 1 March 1993, 88.

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IV. The List of Crimes 1. The Search for Seriousness Since beginning work on the Draft Code in 1983, the Commission had to consider what heinous acts could be declared offences o r crimes against the peace and security of mankind. In A/RES/36/106 of 10 December 1981, the General Assembly had invited the Commission "to review [the 1954 Code], taking duly into account the results achieved by the process of the progressive development of international law", which seemed to imply that there might be changes in the list of crimes. In afirst stage, from 1983 to 1985, the Commission discussed how it ought to seek the crimes. In a second stage different crimes were gradually included in the Draft Code from 1986 to 1991. At the outset the Special Rapporteur submitted a deductive method to the Commission, which consisted in the elaboration of a prior definition of crimes against the peace and security of mankind, and an inductive method, consisting in searching out one by one the different facts which may be regarded as such crimes. In 1983, the Commission decided that the deductive method should be closely combined with the inductive one.32This combination took the form of the joint use of two criteria: firstly, what could be called the 'seriousness' of the heinous acts which is nearer to the deductive approach, and secondly, the inductive task of cornpiling the most serious offences through available international practice, or as the Commission put it "to sift the acts constituting serious breaches of international law, making an inventory of the international instruments (conventions, declarations, resolutions, etc.) which regard these acts as international crimes, and selecting the most serious of them".33 There are certain indications of what the Commission thought should be understood as a "serious" international offence. Only acts "distinguished by their especially horrible, cruel, savage and barbarous nature", were eligible as crimes against the peace and security of mankind. These are conducts "which threaten the very foundations of modern civilization and the values it embodies".34 The seriousness of an offence could be measured according - to a number of elements that seemed difficult to separate: the motive of an act, the end pursued, the horror and reprobation it aroused, or the physical extent of the disaster caused.j5 A more sophis-

32 33 34

35

ILCYB 1983, Vol. I1 (part 2), paras. 62-66. ILCYB 1984, Vol. I1 (part 2), para. 40. The last two quotations are from ILCYB 1984, Vol. I1 (part 2), para. 63. ILCYB 1984,Vol. I1 (part 2), para. 34. See also ILCYB 1983,Vol. I1 (part 2), para. 48.


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ticated explanation of seriousness was elaborated on in 1985, when the Special Rapporteur tried to define the crimes against peace and security of mankind following the pattern of Article 19 of the Commission's draft on state responsibility. It was stated that the crimes involved constituted "the breach of obligations intended to protect the most fundamental interests of mankind, namely those which reflected mankind's basic needs and concerns and on which the preservation of the human race depended".36 O n this basis of extreme seriousness, the Commission sought - the international instruments that would express those acts considered more serious by the states. Evidently, no practice could be found which would determine whether certain acts were offences or crimes against the peace and security of mankind, because this term of art has only been used by the Commission sincc World War 11, but what they were able to find were treaties and declarations describing certain conduct as international crimes or other expressions of strong condemnation. This double criterion led the Commission to incorporate new crimes not envisaged in the 1954 Draft Code.

2. Legal Archaeology The Commission returned to the list of crimes in 1995 with the aim of completing the second reading of the Draft Code in 1996. However, in 1995 the Special Rapporteur was to adopt a radically new approach to the definition of the crimes. The twelve-crime list had been the target of written comments by 24 Governments:" O n the basis of these comments above all, Mr. Thiam proposed to reduce drastically the list of crimes against the peace and security of mankind in his Thirteenth report. Mr. Thiam confesses in the report that if he maintains the twelve crimes, "he runs the risk of reducing the draft Code to a mere exercise in style, with no chance of becoming an applicable instrument. Conversely, if he follows the restrictive tendency, he could end up with a mutilated draft".38 This dilemma was solved in favour of the second option, and the Special Rapporteur presented a new list of six crimes: aggression, genocide, crimes against humanity, war crimes, international terrorism, and illicit traffic in narcotic drugs. The Commission discussed this proposal in 1995 and at its 2387th Mtg. it decided to retain the first four, whereas consultations would

36

37 38

ILCYB 1985, Vol. I1 (part 2), para. 69. Doc. A/CN.4/448 of 1 March 1993, and Add. 1. Thirteenth report by Mr. Thiam, Doc. A/CN.4/466 of 24 March 1995, para. 3.

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continue as regards drug trafficking and wilful and severe damage to the environment. The Commission also decided that in formulating the first four crimes, the Drafting Committee "would bear in mind and at its discretion deal with all or part of the elements" of the six crimes adopted o n first reading that were being abandoned now.39 There is no way of knowing the Commission's reasons for making these decisions. The provisional summary records of the 2379th Mtg. to the 2386th Mtg. in 1995 show that Mr. Thiam's proposal was received favourably b y the majority of the Commission, but there was also a head-on opposition from a strong minority.40 It is not possible to understand whether there is any criterion for the different treatment of the crimes not included. Apart from aggression, genocide, crimes against humanity and war crimes, on which there was consensus, the members of the Commission expressed their preferences regarding the other crimes. Many of those in favour of reducing the list wanted, at the same time, to maintain some particular crimes.41When the Special Rapporteur summed u p the discussion held during the 1995 session at the 2386th Mtg. he considered that there seemed to be ample grounds for deleting from the Draft Code the articles on intervention, threat of aggression and recruitment of mercenaries, but a further round of consultations should be instituted o n another four crimes (racial discrimination, colonial domination, international terrorism, and illicit traffic in narcotic drugs), since those remained contro~ e r s i a lThe . ~ ~Commission neither voted nor continued the consultations but at the next meeting the decision mentioned above was made. O n e of the arguments most often repeated by those in favour of reducing the list was that of respecting the will of the states in order not to push forward too vigorously in the advancement of international law.

GAOR 50th Sess., Suppl. 10 (ILCYB 1995, Vol. 11, part 2), para. 140. See Messrs. Mahiou (2380th Mtg.), Kabatsi and Szekely (2381st Mtg.), Pambou-Tchivounda and Villagran Kramer (2382nd Mtg.), Rao (2383rd and 2385th Mtg.), Idris and AI-Khasawneh (2384th Mtg.), and Lukashuk (2385th Mtg.). For instance, Messrs. Eiriksson (crime against environment) and Pellet (colonial domination) in 2379th Mtg.; Bennouna (apartheid and drug trafficking) in 2380th Mtg.; Razafindralambo (colonial domination and environment), and Vargas Carreiio (institutionalised discrimination, intervention and drug trafficking) in 2381st Mtg.; Jacovides (international terrorism and drug trafficking) in 2382nd Mtg.; Guney (international terrorism and drug trafficking) in 2383rd Mtg.; De Saram and Tomuschat (both international terrorism) in 2385th Mtg. Compare Doc. A/CN.4/SR.2386, and GAOR 50th Sess., Supp]. No. 10 (ILCYB 1995, Vol. 11, part 2), paras. 134-139.


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A list containing only the less controversial crimes would be of maximum acceptability. A more extreme version of this would be fear of failure: "Excessive zeal could only lead to yet another draft being consigned to the archives in N e w warned one member of the Commission. To counter this argument it was said that the number of states that had submitted comments to the Draft Code was very small, and that those states did not represent the international community as a whole.44Neither would the reduction of the list of crimes be a guarantee of its eventually being accepted by the states. In this respect, it was overtly stated that the fact that states were not very keen on assuming the list of crimes was not .. surprising.

"[Tlhe criminalization of the acts and activities described in the Code was seen as a possible curtailment of the freedom of States to act in areas of international relations where they would like to retain that freedom unhindered by considerations of clearly defined legal rules that might give rise to the individual criminal responsibility, not only of their nationals, but sometimes of their State official^".^^ In spite of the opposition of a number of states to some crimes, it was said, the Commission was duty-bound to codify and progressively develop international law. Another argument was that the Commission should only concentrate on the more serious crimes. Admittedly, all the crimes contained in the 1991 list were heinous, but it was necessary to find the most serious among them. However, this argument was not sufficiently developed. The Commission's discussions do not allow to identify the criterion for distinguishing the most serious crimes or the "crimes of crimes" from the other crimes.46The idea of "seriousness" elaborated in the sessions from 1983

43 44 45

46

Mr. Tomuschat, in 2380th Mtg. (Doc. A/CN.4/SR.2380,6). See, for example, Mr. Szekely, in 2381st Mtg. (Doc. A/CN.4/SR.2381, 12-13). Mr. Al-Khasawneh in Doc. A/CN.4/SR.2384,13. See also Mr. Lukashuk: "it was unrealistic to expect that leaders would cheerfully give up their privileges" (Doc. A/CN.4/SR.2385,4). For example, it is very difficult to know what Mr. Pellet means when he says: "The Commission must in fact stick to the most serious crimes located at the extremity of a continuum beginning with the offences covered in part one of the draft articles on State responsibility, then embracing crimes regarded by the international community as a whole as violations of an obligation essential to the protection of fundamental interests, and ending with crimes which posed a serious and imminent

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to 1985 is similar to that used in 1995. It cannot be maintained that there is a substantial difference of gravity or seriousness between large scale arbitrary imprisonmcnt as a crime against humanity and large scale drug trafficking, to cite but one example. An attempt was also made to establish the lack of precision in their characterization as a restriction to the inclusion of some crimes4' But this criticism of the drafting of several crimes in 1991 does not bear comparison with other crimes retained in the 1996 Draft Code whose characterization is also rather (but inevitably) vague.48Furthermore, the less than precise characterizations could have been improved by amending the wording, if the conduct merited criminalization. To this effect, Mr. Idris said that "the view that the articles [onintervention and on colonial domination] lacked the precision required by international law missed the point that there had been hardly any other acts in the history of mankind which had caused so much misery to millions of underprivileged people and which were almost universally ackowledged to be crimes".49 The profound difference in opinions as to thc maintaining or not of the crimes defined on first reading is clearly reflected in the 1995 ILC's report to the General As~ernbly.~OThe Sixth Committee of the General Assembly in its 50th Session considered the reduction of the list of crimes made by the Commission, and the representatives of the states manifested the same contrasting opinions as the members of the Commission. In 1996, the Commission had before it the topical summary of the discussion held in the Sixth Committee prepared by the Secretary General:' yet no mention was made of this document. Curiously, the opinions of the states were taken into account for the shortening of the list, but afterwards, the opinions of the states were not even mentioned when they referred precisely to this decision of the Commission. The reduction of the list of crimes was tacitly considered irrevocable in the 1996 session. The Commission devoted two tense meetings to discussing wilful and severe damage to the environment, as we shall see, and thought it necessary to include institutionalized discrimination among the crimes against humanity, but there is no consideration of any of the other crimes deleted in 1995, not

47

48 49

50 51

threat to the peace and security of mankind." (Doc. A/CN.4/SR.2379,7). For instance, Mr. Yamada in 2381st Mtg. (Doc. AICN.4/SR.2381,7). See Section I1 (e) and Excursus, supra. Mr. Idris, in Doc. A/CN.4/SR.2384,4. GAOR 50th Sess., Suppl. No. 10 (ILCYB 1995 Vol. 11, part 2), paras. 44-45 and 55-59. Doc. AlCN.41472 of 16 February 1996.


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even drug trafficking, of which it was also said that consultations would continue. When the President of the Drafting Committee submitted the second part of the project, no reference was made to the possibility of further study on the incorporation of other crimes,52but rather he expressly said that the drafting of the list of crimes "had primarily involved legal a r ~ h a e o l o g y " . ~ ~ Indeed, the characterization of most of the crimes listed in the present Draft Code has well established archaeological roots. However, paradoxically enough the Commission deemed it necessary to incorporate a number of innovations, notably the crime against United' i gations personnel.

3. The Semantic Power of the Commission The fact that certain innovations were accepted in the 996 session did not affect the 1995 decision to reduce the list of crimes to the least controversial four. The incorporation of institutionalized discrimination and forced disappearance of persons as crimes against humanity, of damage to the environment as a war crime, and the inclusion of the crime against United Nations personnel are three anomalies which lie in sharp contrast to the previous decision of drastically reducing the list. In the face of this inconsistency, one may suspect either that there had never been a reliable definition of crimes against the peace and security of mankinc, or that such a definition is not feasible. However none of these ideas is correct. There was certainly a definition, as elaborated from 1983 to 1991. Admittedly, it was not a definition by inclusion but by extension, although not conclusive but rather open-ended. In order to explain this, the analogy of the definition of "European state" can be used. If this is considered a concept that is very difficult to define in geographical or historical terms, a definition can be made by naming 20 or 22 states which can be considered undoubtedly European, and it can also be affirmed that others could also be so. 'The problem is that the dcfinition by extension of crime against the peace and security of mankind changed abruptly in 1995. Instead of continuing to use the concept developed from 1983 to 1991, there is a return to the concept created by the Nuremberg Charter and Tribunal, thus producing two different meanings of the term. It is as if someone changed his mind and maintained that the concept of "European state" only includes those states in the European Union.

52

53

There is only a marginal reference in 2437th Mtg. (Doc. A/CN.4/SR. 2437,4). Mr. Calero Rodrigues in Doc. A/CN.4/SR.2440, 14.

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What seems to be most curious is that the concept elaborated in 1983-1985 and subsequently developed year after year, was abandoned in less than ten meetings without convincing justification. With this change of attitude the Commission attributed itself with a semantic power which was excessive. The General Assembly to some extent had granted the Commission a certain semantic power, because the concept of crime against the peace and security of mankind is not defined in any international instrument, excluding perhaps the 1954 Draft Code of offence^.^^ But this semantic power cannot be exercised outside the limits of both logic and law. It is long established in jurisprudence that legal concepts cannot be regarded as perfectly defined entities. This idea was stressed, for instance, by H.L.A. Hart, when he submitted that legal language has an open texture, by R. Dworkin, through a new comprehension of the functioning of the principles of law, or by R. Alexy, who underlined how legal reasoning is based in ordinary language.55Nonetheless, the semanric power exercised by the ILC in the elaboration of the Draft Code went far beyond any type of otherwise desired flexibility required by legal concepts. The Commission cannot use its semantic power arbitrarily, but rather it should, above all, take into account the progress of contemporary international law, as manifested in the huge web of multilateral treaties which deal with abhorrent acts rejected by the international community. Recent developments in international law are also represented in the vast field of written law, "soft law" and practices inspired by the United Nations organs. At the same time, the Commission should have carefully borne in mind its previous work, including the Draft Articles on State Responsibility. By the same token, the Commission should have acted coherently with the work done in the first reading of the Draft Code, and if there were any reasons for changing its mind, it should have explained those reasons in length. The work of the Commission from 1983 to 1991 was the product of a consensus, hence it seemed to reflect significantly the evolution of international law. Likewise, the Commission should also have been consistent with the Draft Statute for an International Criminal Court which it drew up in 1994 itself.

54

55

In fact, the Commission recommended to the General Assembly that it amend the title of the topic, so that it would read 'crimes' instead of 'offences', a recomendation that the General Assembly endorsed (A/ RES/42/151 of 7 December 1987). H.L.A. Hart, The concept of law, 1961, Chapter VII; R. Dworkin, Taking rights seriously, 1977, Chapters 2-4; R. Alexy, Theorie der juristischen Argumentation, 1978, Chapter C, 111.


V. The List of Crimes and the Jurisdiction of the International Criminal Court The drastic reduction of the list of crimes might be seen as not wholly consistent with the work previously done by the Commission o n the Draft Statute. Surprisingly enough, one cannot find many references to the Draft Statute during the 1995 and 1996 sessions. The preamble of the Draft Statute emphasizes that the Court "is intended to exercise jurisdiction only over the most serious crimes of concern to the international community as a whole". Article 20 lit.(e) states that the Court has jurisdiction in respect of crimes established under the treaties specified in an Annex which, "having regard to the conduct alleged, constitute exceptionally serious crimes of international concern". Moreover, there is another provision which should be understood as a "jurisdictional l i m i t a t i ~ n "referred ~~ to both general international law crimes and treaty law crimes. The International Criminal Court may decide at any time to decline to exercise its jurisdiction if it is not satisfied that the crime in question "is not of such gravity to justify further action by the Court" (Article 35 lit.(c)). Finally, Article 42 para.2 recognizes that there is a distinction between "ordinaryn crimes (of international concern), and the crimes which are within the jurisdiction of the Court, also called generally crimes "of the kind referred to in Article 20". These unnamed crimes could very well have a familiar name. Seriousness, the characteristic common to the crimes regulated in the Draft Statute according to its preamble, is the nuclear aspect of the definition elaborated by the Commission during 1983-1985 at the outset of its work o n the Draft Code. The specific crimes contained in Article 20 and in the Annex of the Draft Statute were covered in the list of the 1991 Draft Code, which at that time was more comprehensive than the Draft S t a t ~ t e . ~The ' palpable difference between the two approaches was that the general international law crimes were merely mentioned in Article 20 lit.(a) to (d) and the treaty law crimes were precisely characterized by reference to particular treaties in Article 20 lit.(e) of the Draft Statute, whereas the 1991 Draft Code sought to characterize every crime in a general more or less homogeneous fashion. Yet there was no clear distinction as regards the nature and concept

56

J , Crawford, "The ILC adopts a Statute for an International Criminal Court", AJIL 89 (1995), 404 et seq., (412).

57

The Draft Statute did not include threat of aggression, intervention, and colonial domination as general international law crimes, and did not mention any treaty dealing with recruitment of mercenaries, and wilful and severe damage to the environment.

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of the crimes in the 1991 Draft Code and in the Draft Statute. In fact, the list of crimes in the Draft Statute included only crimes that were accepted beyond any doubt within the Draft Code. That is to say, Article 20 assured jurisdiction for the Court over crimes against the peace and security of mankind under another name, or, at least, over the central types of crimes against the peace and security of mankind. The chosen legal technique was rather different but the aim of both instruments as regards criminalization was clearly identical. The reduction of the list of crimes in the Draft Code substantially altered this parallelism. The work of the ILC has given birth to three not totally coincident, yer undifferentiated, concepts. In a sense, it could be said that there will be a first meaning of crimes against the peace and security of mankind according to the Draft Statute, a second more restrictive meaning according to the 1996 Code, and a third sense emanating from general international law. The model international criminal court, which has jurisdiction "only over the most serious crimes of concern to the international community as a whole", will be able to prosecute and try individuals on wider grounds than those laid down in the list of crimes of a Code dedicated to characterizing the same crimes. Foreseeing the future of the Draft Statute is not an easy task. The April and August 1996 sessions of the Preparatory Committee for the Establishment of an International Criminal Court show that there were opposing opinions on jurisdiction, for which reason the present wording of Article 20 of the Draft Statute cannot be seen as definitive. Two main currents of opinion may be identified. Some delegations were in favour of a much more detailed definition of the crimes, some others would like new crimes to be included, and several representatives even proposed a review mechanism to enable states parties to add additional crimes to the Court's jurisdiction. In this sense, it was suggested that general descriptions of the crimes of drug trafficking and terrorism should be included in the Drafr Statute, as well as the crime against United Nations personnel. O n the other hand, some delegations affirmed that the Draft Statute was not the right place to characterize the particular crimes, which could simply be named in this instrument of a procedural nature. In an initial stage, only the most indisputable crimes should be under the jurisdiction of the Court. Moreover, crimes such as drug- trafficking- and terrorism were not of the same kind as the traditional crimes mentioned in Article 20 lit.(a) to (d), and could be dcalt with much better at a national level.58In view of this

58

Report of the Preparatory Committee for the Establishment of an International Criminal Court, GAOR 51st Sess., Supp]. No. 22, Vol. I, paras. 51-115.


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divergence, it may not be ruled out that the jurisdiction of the Court could eventually be defined along the restrictive line of the Draft Code. Nonetheless, this author finds it Gore probable that the jurisdiction of the Court would follow eventually the pattern of the present Article 20 of the Draft Statute. The participation of a great number of states in the discussions on the establishment of the Court, and the necessary. presence of specialists in criminal law are two factors that support the occurrence of the second possibility.

VI. The Confusing Episode of the Crime that Was a Crime and the Crime that Was not Since 1984 the Commission had agreed that there was ground enough for including serious damage to the environment as a new crime. The fact that Article 19 para.3 lit.(d) of the draft on state responsibility had recognized such a possibility was taken into account by the Commission, as well as the existence of a number of conventions dealing with the protection of the environment. The Commission adopted o n first reading the following ..

provision:

"Article 26.- Wilful and Severe Damage to the Environment An individual who wilfully causes or orders the causing of widespread, long-term and severe damage t o the natural environment shall, on conviction thereof, be sentenced ..".j9 At the same time, Article22 para.2 lit.(d) of the 1991 Draft Code embodied a provision which was inspired by Articles 35 para.3 and 55 of Protocol I to the Geneva Conventions: "For the purposes of this Code, a serious war crime is [...l one of the following acts: C..] (d) employing methods or means of warfare which arc intended or may be reasonably expected to cause unnecessary or disproportionate and widespread, long-term and severe damage to the natural environment. "60

59

60

See ILCYB 1991, Vol. I1 (part 2), 107, for commentary. Ibid., 104. The observation made at the end of paragraph 9 of the commentary on this Article (Ibid., 106) was introduced into the writing of the Report of the ILC to the General Assembly: see ILCYB 1991, Vol. I, 2251s Mtg., para. 75. The reservations of one of the members actually

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O n e cannot find any objection to Article 22 para.2 lit.(d) in the comments of the Governments to the Draft Code adopted o n first reading Only a few Governments expressed major opposition to Article 26:' while others would have liked to see the volitional requisite expanded so as to include negligence, and thereby t o conform to Article 22 para.2 lit.(d) of the 1991 Draft Code.62 Surprisingly enough, basing his decision mainly on the comments of the Governments, the Special Rapporteur proposed in 1995 a new Article on war crimes with no reference to the prejudice of the environment whatsoever, and to delete Article 26.63 This proposal was intended to be consistent with the general aim of reducing the number of crimes, but it was not totally justified. Perhaps for this reason, the Commission did not want to make a definitive decision in 1995, and it created a working group to examine the possibility of covering in the Draft Code the issue of wilful and severe damage to the e n ~ i r o n m e n tDuring .~~ the General Assembly's 50th session in 1995, "a great majority of States argued in favour of keeping a provision dealing with crimes against the environment."6j At the beginning of its 1996 session, the Commission had before it a balanced paper prepared by Mr. Tomuschat with a view to facilitating the endeavours of the working group,66suggesting that therc were certain sound reasons for supporting the idea that a crime against the environment should be an autonomous crime. The working group presented two draft proposals to the plenary. O n the one hand: "employing methods or means of warfare which are intended or may

be expected to cause such widespread, longterm and severe damage to the natural environment that the health or survival of a population will be gravely prejudiced", would be a war crime. O n the other hand, a new paragraph amongst the crimes against humanity would read:

61 62

63 64

65 66

referred to the entire article: see ILCYB 1991, Vol. I, 2210th Mtg., paras. 46-52,73-74 and 82, and 2241st Mtg. See Doc. A/CN.4/448, comments by the Netherlands, the United Kingdom and the United States. Ibid., Australia, Austria, Belgium, and Uruguay. Thirteenth report by Mr. Thiam, Doc. A/CN.4/466 of 24 March 1995, paras. 10 and 110. Decision taken at the 2404th Mtg. See GAOR 50th Sess., Suppl. No. 10 (ILCYB 1995, Vol. 11, part 2), para. 141. Document quoted in note 66, para. 8. DOC.ILC(XLVIII)/DC/CRD.3 of 27 March 1996.


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"wilfully causing such widespread, long-term and severe damage to the natural environment that the health o r survival of a population will be gravely p r e j ~ d i c e d " . ~ ' The ordinary life of the Commission underwent a sudden commotion at Mtgs. 2430 and 2431 (17 and 21 May 1996).68After a sometimes harsh exchange of opinions, the members of the Commission decided to send to the Drafting Committee the first draft proposal by 12 votes t o 1, with 4 abstentions, but the second draft proposal was not accepted, there being 9 votes in favour, 9 against and 2 abstentions. Is it acceptable that the lack of one vote in thac meeting should be sufficient to mean that a huge and intentional damage to the environment in peace time is not a crime against the peace and security of mankind? The Drafting Committee produced a new text which in the end was adopted by the Commission as the definitive Article 20 lit.(g): "Any of the following war crimes constitutes a crime against the peace and security of mankind when committed in a systematic manner o r o n a large scale: [...l (g) in the case of armed conflict, using methods o r means of warfare not justified by military necessity with the intent to cause widespread, long-term and severe damage to the natural environment and thereby gravely prejudice the health o r survival of the population and such damage occurs." The wording of the different projects quoted s o far shows that the provision became increasingly restrictive. The Commission felt the need to declare the massive destruction of the environment as a war crime, something which had been demandeci from several but it tried to limit the description of the criminal act excessively. T h e Commission was probably influenced by the idea expressed by Mr. Rosenstock: "extreme caution was required when characterizing crimes against the environment: [...I It was important not to try to make the ~ a r a ~ r a ~ h u nconsideration der

6:

6s 69

Both drafts are taken from Doc. A/CN.4/SR.2430, 3. Another draft proposal, in the same terms as the second one, tried to revive the crime against environment as an autonomous crime. See Mr. Lukashuk with his comment on the situation in Doc. A/CN.4/ SR.2431, 3. See for example A/RES/47/37 of 25 November 1992; G. Plant (ed.), Enuzronmental Protectzon and the Lam o f Waq 1992, especially contributions by R. Falk, A. Roberts, and H. Turk.

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say too much."70 The final result is that the paragraph says too little, with a wording so full of conditions as to make its reading somewhat hazardous. Firstly, the characterization of the conduct in Article 20 lit.(g) is qualified by military necessity, which seems to indicate an essential difference between this paragraph and the rest in Article 20. According to a general principle of the contemporary law of armed conflict, military necessity cannot override the provisions regulating conduct in armed hostilities, "[oltherwise, the concept of military necessity would reduce 'the entire body of the laws of war to a code of military c~nvenience"'.~~ That is how it is accepted by the internal law of the states; for example, in the United States, military necessity "consists in the necessity of those measures which are indispensable for securing the ends of war, and which are lawful according to the modern law and usages of war".'* Necessity is only mentioned in very specific cases (e.g. Article 20 lit. (a)(iv), and lit.(e)(ii), ot the Draft Code) if it is a matter of conduct that may be excusable. Genocide, enslavement, or systematic attacks on the civilian population can never be justified by military necessity. The damage foreseen in Article 20 lit.@ is so enormous that it is impossible to conceive of any kind of military need that could justify a grave prejudice to the health or survival of a population. Mr. Crawford drew the attention of his colleagues to that contradiction, and the Commission decided to point out in the commentary "that the degree of military necessity must be very high indeed".73 Unfortunately, the commentary to Article 20 lit.(g) did not fulfil this promise. Secondly, the damage is described with an accumulative sentence which emphasizes the repercussions on persons in contrast with what occurred in Articles 35 para.3 and 55 of Protocol I, in the 1977 Convention on the Prohibition of Military or other Hostile Use of Environmental Modification Techniques, and in Article 22 para.2 lit.(d) of the 1991 Draft Code. The solution of the draft articles on state responsibility was to introduce the idea of a "human environment". The final wording of Article 20 lit.@ may be criticised on technical grounds, for it clearly overlaps with other

70 71

72

73

DOC.AICN.4lSR.2448, 9. L. C. Green, The contemporary LW ofarmed conflict, 1993,118, quoting W.J.Fenrick, Internattonal law, 1965,655. See also Green, 293, 328 and 333. US Army General Orders No. 100 (1863), or Lieber Code, quoted in Department of Defense, Report t o Congress on the conduct of the Persian G u l f W q App. 0 , "The role of the law of war", of 10 April 1992, in: ILM 31 (1992), 642. Mr. Rosenstock's intervention, among many others, in Doc. A/CN.4/SR. 2448, 19.


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provisions of Article 20. The population mentioned in Article 20 lit.(g) is already protected at least by lit. (a) (i), (ii), (iii), (iv), (b) (i), (ii), (iii), (e) (i), (ii), (iii), and (f) (i), of the same article. Apart from that, the anthropocentric approach is also mistaken because it overlooks the fact that the value defended by the Draft Code is not just the physical integrity of mankind, its health and survival, but also an immaterial asset as is its peace and security. I n aggression, a crime par excellence, the population, which may not be affected at all, is not protected. In fact, the Commission should have directed its efforts (perhaps in the commentary) t o defining "widespread, long-term and severe damage to the natural environment" o r to the human environment in a way that affected decisively the peace and security of mankind. In its present wording, Article 20 lit.(g) ignores the fact that man, although highly evolved, is dependent o n the environment, and has the technical means to change it and destroy the ecosystem, a value at least as primordial as an internationally recognized border. Thirdly, the efforts of the Commission to limit the characterization of the criminal activity went to the extreme of preferring "the" population instead of "a" population. The chairman of the Drafting Committee explained that that choice was intended to include only the population of the place where the damage to the environment had occurred, but not the population outside the immediately affected zone.74 It is evident that certain environmental modification techniques may be designed t o harm precisely the people who live far away. I think that the short-sighted interpretation outlined above, which is not confirmed in the commentary, merits n o further comment. Fourth and finally, the apothegm embodied in the last four words of Article 20 lit.(g) is intended to rcduce even further the characterization of the crime, excluding the possibility of attempt, although it could be construed also as a plain contradiction between Articles 20 lit.(g), and 2 para.3 lit.(b) and (g). There is no plausible reason for including this limitation to the characterization which cannot be found in any other crime in the Draft Code (except aggression). O n the other hand, the Commission chose not to include serious damage to the environment in time of peace as a crime against mankind, o r as an autonomous crime, a decision which is also open t o criticism o n account of the lack of consistency shown by the Commission. In 1976, the Commission defined "the safeguarding and preservation of the human 74

Mr. Calero Rodrigues in Doc. A/CN.4/SR.2448, 7. The chairman of the Drafting Committee implied that the idea was borrowed from Article 55 of Protocol I. However, it is evident that the subject-matter of protection in this Article is the natural environment, and the mentioning of the population (under the guise of explanation) has no restrictive meaning.

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environment" as one of the fundamental interests of the international community, and a breach of an obligation of essential importance for the safeguarding and preservation of the human environment was defined as an international crime of state. I n its commentary to draft Article 19 para.3 lit.(d) on state responsibility, the Commission asserted that opinio iuris developing in the seventies indicated the emergence of rules of general international law.75In 1991, the Commission "also took the view that the protection of the environment was of such importance that some particularly serious attacks against this fundamental interest of mankind should come under the Code and the perpetrators should incur international criminal responsibility".76 What was of crucial importance for international society, and was considered an international crime in 1976 and in 1991, was not considered such in 1996. It is true that the composition of the International Law Commission changes every five years, but it is respectfully submitted here that the members ought to be careful and bear in mind what their predecessors considered to be the evolution of contemporary international law. During its 1996 session, the Commission had to decide on serious attacks against the environment, and also on another proposal of a new crime: the crime against United Nations and associated personnel. After having adopted on second reading (from 6 June until 26 June)77every draft Article presented by the Drafting Committee, and when only the adoption of the Draft Code as a whole remained, the plenary considered a three-page Memorandum submitted by Mr. Rosenstock in which a crime never previously discussed by the Commission was proposed.78The members of the Commission were again divided as to the convenience of introducing this crime, hence, after a first exchange of opinions o n the 27 June, it was decided to create a small working The draft proposal of this working group was considered and modified again at the long and intense 2453rd Mtg. on the 4 July. The Commission decided to take a vote to get an indication as to whether an article along the lines of the proposal should be included, and the result was 12 in favour, 5 against and 4 abstentions. This obliged the working group to meet and hastely change the wording. Towards the end of the meeting, when a new text had been produced, and 75

76 77

78 79

ILCYB 1976, Vol. I1 (part 2), commentary to draft Article 19 on state responsibility, paras. 32,66-67, and 71. See also ILCYB 1980, Vol. I1 (part 2), 32. ILCYB 1991, Vol. I1 (part 2), 107. 2437th-2448th Mtgs., a t which the draft Articles contained in Doc. A/CN.4/L.522 of 31 May 1996 were discussed. DOC.ILC(XLVIII)/CRD.2 of 3 June 1996. See Doc. A/CN.4/SR.2449,23.


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it seemed that it could finally be adopted, Mr. Villagran Kramer explained that he did not underssand why this new crime should be introduced while international crimes of great importance to Latin America such as intervention or drug trafficking should be left aside. H e requested therefore that these and other crimes be reconsidered. If this were not the case, this member said, he would have to vote against the adoption of the code as a whole. At the next meeting, the acting chairman, Mr. Rosenstock, read a declaration which stated that "the inclusion of certain crimes in the Code does not affect the status of other crimes under international law". In view of this declaration, the opposing member withdrew his proposal to vote the Draft Code as a whole. In all, three meetings were sufficient to include the new crime and to adopt the Draft Code. The arguments given in the Commission for supporting the inclusion of crimes against United Nations personnel are already p u t forward in Mr. Rosenstock's Memorandum: the magnitude and seriousness of the problem of attacks o n such personnel, and "its centrality to the maintenance of international peace and security".80Also stated is the rapid reaction in the face of the problem on the part of the Secretary-General, the Security Council and the General Assembly. Among those opposing the inclusion, a first argument referred to the lack of consistency regarding the line followed since 1991, which had produced the withdrawal of other more important crimes. The new crime proposed did not fulfil the requirements demanded for the "crimes of crimes", for the "four great crimes" retained in the Draft Code. Another argument was that the condemning of attacks on United Nations personnel was quite recent and therefore a general awareness had not been developed in international society that would allow us to speak of them in terms of crimes against the peace and security of mankind. In fact, the convention approved in A/RES/49/59 of 9 December 1994 without a vote had been ratified only b y a few states at that time. Consequently, the incorporation of a new crime would mean adopting a heterogeneous Code, would undermine the whole exercise intended by the Commission, and would weaken the possibility of its being accepted by states.81 In view of the Commission's decisions in 1996 o n the crimes against the environment and against United Nations ~ e r s o n n e l one , lesson may be learned. The inclusion or exclusion of crimes in the Draft Code did not depend exclusively on juridical arguments, but was also depended on the 80 81

Document quoted in note 77, 3 (conclusion). See especially the interventions by Messrs. Fomba, Giiney, He, Mikulka, Pellet, Rao and Villagran Kramer in Doc. A/CN.4/SRa2449, and A/CNS4/SR.2453.See also memorandum submitted by Mr. Pellet, Doc. ILC(XLVIII)/CRD.5 of 17 June 1996.

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Commission members' feelings of convenience or necessity. Reference to sources of international law and other legal arguments were sometimes a way of justifying political convenience. In consequence, it seems quite difficult to describe the nature of the Commission's work. Reflecting the perplexity of other colleagues, one member warned that the adoption of the proposal on the crimes against United Nations personnel "would constitute neither codification of existing law nor progressive development of international law".82

VII. Codification, Progressive Development, and the Final Decision of States To what extent was the ILC codifying or making progressive development of international law when it prepared the Draft Code? The short answer might be obtained by comparing the 1950 Principles, the 1991 and the 1996 Draft Codes, and indeed it seems that this would be a good exercise for students of international law. Apparently, the 1996 Draft Code introduces progressive development in quite a few instances: the jurisdictional system, some cases of crimes against humanity, the crime against United Nations personnel, and the crime against environment in the case of armed conflict, being the most relevant. Yet the long answer cannot be so simple. To start with, a first question arises: was it clear to the Commission itself what it was trying to do? Personally, I do not think so. There is a lack of general pronouncement, in spite of the fact that the mandate of the General Assembly expressly referred to progressive development. The commentary to the 1996 Draft Code does help to identify the points which are innovative, but the commentary emerges as a monument to rationality and systematization while the study of the records of the relevant meetings does not show a unity of intention. In the face of this lack of collective pronouncement, it is astonishing to find theinsistence, especially on the part of some members during the 1995 and 1996 sessions, that what should be done was mainly codification, thereby leaving only very little room for progressive development. A member accused the Commission of entrusting itself the role of "universal legislatorn by incorporating new crimes in the Draft Code.83 Progressive development of international law should be considered in the new light of the ILC practice since the end of the cold war. Three types of development in the law could be distinguished within the codification

82 83

Mr. Giiney in Doc. A/CN.4/SR.2453, 15. Mr. Pellet in Doc. A/CN.4/SR. 2449, 18.


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process. First of all, there is what could be called "codificative" or inevitable development. It is well established that the technical operation of settling- in written form customary international law cannot be carried out without some amount of generalizing and systematizing, without choosing the concrete wording in which the new norm should beexpressed. This first meaning has been recognised since the first studies on the work of the ILC, and indeed it was perhaps the dominant sense for decades. Secondly, "selective" progressive development has occurred when particular and identifiable changes in the existing law were proposed by the drafting body and then accepted by states. That is the case, for instance, of the creation of the continental shelf as a new legal concept in the 1958 Geneva Convcntion on thc Continental Shelf (UNTS Vo1.499 No.7302), and of Articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties and the settlement of disputes rclated to those Articles. States knew which parts of each concrete proposal constituted selective progressive development of the law, and consequently weighed the opportunity of giving their consent more carefully Thirdly, another meaning of progressive development would embrace any draft in which development of the law overrides the elements of codification that also exist. So far this has occurred only with respect to the Draft Statute for an International Criminal Court. It is interesting to note that this last progressive development in the strict sense was only possible when the General Assembly ordered an ambitious and unprecedented project, but this meaning was already foreseen in the ILC Statute. Progressive development in this third sense should not be confused with political initiative, which corresponds to the General Assembly according to Article 16 of the Statute of the I L C . 8 W e i t h e r should "selective" nor progressive development in the strict sense be confused with international legislation. In the last instance, the "imprimatur that attests the jural of innovative as well as of codification conventions "is a collective judgement of the States (generally by very large majorities) that implicitly recognizes the contemporary social value of the rules in the text".85 The drafts prepared by the ILC do not constitute international legislation because the states subsequently analyse the proposals and may eliminate what they d o not consider convenient and incorporate new provisions. The task of the Commission is a task of preparation that is clearly defined in its statute. But the Commission is not 8 V h e Commission pointed out once more the impossibility of separating the concepts of codification and progressive development in its 1996 Report to the General Assembly (GAOR 51st Sess., Suppl. No. 10, paras. 157-158). But this is not wholly true with respect to the Draft Statute, which is a clear example of progressive development in the strict sense. 85 Schachter, see note 3, 70.

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totally free when facing the assignments it receives. The ILC's proposals for progressive development must not be planned ad libiturn, and this is how the term progressive must be interpreted. O n the one hand, the proposals must take into account the whole field of existing international law, and that is the reason why those proposals have to be drafted by international jurists. Obviously, the international law that the Commission should contemplate is contemporary international law; it may not present a project based on international law prior to 1945, ignoring subsequent advances. O n the other hand, 'progressive' also means that the development of international law should be a purposeful activity in which the ends of contemporary international law, especially those embodied in the Charter of the United Nations, are pursued.86 During the preparation of the 1991 Draft Code, the Commission carried out "selective" progressive development with regard to the general provisions and the crimes not contemplated in the Principles of 1950. In fact, in this particular case, it was hardly a matter of codifying customary law, since the relevant precedents (the criminal tribunals established after World War 11) had been already codified by the Commission itself. Although the Commission mentioned declarations, resolutions, and treaty law when it introduced each crime, the Commission could not likewise refer to customary rules in this particular field, since there was no relevant practice up to the creation of the International Tribunal for the former Yugoslavia. Undoubtcdly, during the last decades, there was certain conduct which was either criminalized as international crimes (such as drug traffickingor aircraft hijacking) or widely rejected as contrary to the values of the international community (such as colonialism, apartheid or intervention). In this respect, it could be said that a sort of opinio iuris had developed as to which were the most abhorrent acts for the international community as a whole. However, there was not a state or international practice that regarded those individual acts as crimes against the peace and security of mankind. The lack of use of this term of art and the absence of an international criminal tribunal pre-empted the formation of customary law. Therefore, it should not be surprising that the 1991 Code had to be built upon "selective" progressive development. The drastic reduction of the list of crimes in 1995 and 1996 changed the previous approach to progressive development. The written comments of 24 governments on the Draft Code, contained in Doc. A/CN.4/448, were 86

The preambles of the General Assembly resolutions dealing with the work of the ILC repeatedly refer to codification and progressive development "as a means of implementing the purposes and principles set forth in the Charter of the United Nations". See for example A/RES/49/51 of 9 December 1994, and A/RES/50/45 of 1l December 1995.


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deemed to be crucial by the Special Rapporteur in order to propose the reduction of the list of crimes. Some members of the Commission also believed that these opinions justified the reduction, and it seems that this opinion eventually spread to the majority of the Commission. However, this assessment was quite exaggerated. The reading of the comments of the governments shows that, in reality, the states were not so opposed t o many of the crimes. Several states merely expressed doubts o r else were not completely in agreement with the wording used by the Commission, but very few states were totally against any specific crime. Furthermore, the document only reflects the opinion of a small number of states, and the positions of others are missing; for example, there are only two countries from Africa and none from Asia. The Commission gave an exaggerated value to Doc. A/CN.4/448 without taking into account the fact that years before, in other opinions expressed, many states had been in favour of lengthening the 1950 list of crime^.^' The proof that the Commission over-interpreted the states' will is that certain opposition to the reduction of the list of crimes could be found in the Sixth Committee of the 50th General Assembly,88 and there was also some opposition in the 51st General Assembly. In 1996, a number of states expressly demanded the inclusion in the Draft Code of certain crimes which were in the 1991 Draft Code.89 The insistence on certain crimes (such as terrorism and drug trafficking) shows that the Commission went too far in the reduction of the list. The excessive zeal of the ILC has reduced the freedom of choice of the states, which might wish to incorporate crimes other than those proposed by the Commission in the near future. As explained in Section V. supra, it is possible that the jurisdiction of the international criminal court will encompass a wider variety of crimes than the Draft Code. Instead of anticipating states' point of view, the Commission should have described the crimes that could be considered the most serious in present interna-

During the eighties, a number of states expressed the opinion that it was convenient for the Draft Code to include crimes other than those set out in the 1950 Principles. See, for example, documents in note 16, especially comments by Finland, Hungary, United Kingdom (Doc. A/35/210, and Add. l), Philippines, Poland, Tunisia (Doc. A/36/416), Australia, Egypt, and Venezuela (Doc. A/40/451). See Doc. A/CN.4/472, quoted in Section IV.2, note 51. Some states demanded the inclusion of other crimes at the Sixth Committee in 1996; for instance: terrorism (Algeria, 28th Mtg.; China, 32nd Mtg.; Pakistan, 33rd Mtg.); colonialism (India, 33rd Mtg.); threat of aggression (Greece, 32nd Mtg.; Republic of Korea, 33rd Mtg.); or drug trafficking (China, 32nd Mtg.; Slovak Republic, 33rd Mtg.).

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tional law. Taking into account the General Assembly's mandate which expressly referred to progressive development, the task of the Commission was to list all of those crimes in order to leave the final decision to the states. This mission of proposal was accomplished paradigmatically in the 1991 Draft Code. O n the first reading of the Code, progressive development consisted in suggesting to the General Assembly and also to states that a number of heinous crimes belonged to the gravest category of international crimes. Year after year the members of the Commission accepted that there were sufficient reasons in contemporary international law to support that certain criminal acts were equivalent to those stigmatized at Nuremberg. But the last word remained with the states. In the 1996 Draft Code, the Commission's mission of proposal was reduced to the crime against United Nations ~ e r s o n n eand l a few other instances. By doing so, the ILC inexplicably almost renounced the mandate for progressive development entrusted to it by the General Assembly.

VIII. The Draft Code and General International Law The 51st General Assembly considered three courses of action concerning the Draft Code: to adopt it as a treaty open to ratification by states, to adopt it as a Declaration, or to send the Code to the Preparatory Committee for the Establishment of an International Criminal c o u r t . The second option would have meant that the General Assembly endorsed the Code, so that a sort of opinio iuris would have been attached to its provisions. Subsequent state practice would have created customary rules. The first option would have made the formation process of general international law norms morecomplex, for it would imply waiting and seeing how many and which states ratified the treaty. Following the third possibility, A/RES/51/160 of 16 December 1996 deferred the whole question of the value of the Draft Code in general international law, especially of those provisions containing progressive development. In any case, the definition of the crimes against the peace and security of mankind is one aspect of the Draft Code which will not be affected by its subsequent evolution, since the Draft Code itself assumes that the definition of this category is contained in general international law. Articles 1 para.2, 13 para.2, and the declaration read at the moment of the adoption of the Draft Code are expressive enough in this respect. Consequently, the Draft Code does not oppose the possibility that a national or international court may consider that an act of drug trafficking or terrorism, for example, may be a crime against the peace and security of mankind if it concludes that such a crime existed in general international law at that time, notwithstanding the fact that the Draft Code does not mention these


317

crimes. In this regard, the Draft Code confirms that the principle nullurn crirnen sine lege must bc considcrcd with some degree of laxity in international law. It should be taken into account that "lege" does not only mean lex scripta but rather the broad field of international law. The law in which the crimes involved are to be found comprises multilateral treaties, customary law, general principles of law, and fundamental principles of international law such as those set out in Article 2 of the United Nations Charter. Therefore, in present general international law there is no great difference between included and excluded crimes against the peace and security of mankind. If the general provisions of the Draft Code passed into general international law, the principle of universal jurisdiction, and the obligation to extradite or prosecute, will be applicable to the crimes against the peace and security of mankind not embodied in Part I1 of the Draft Code. Bearing this in mind, in what respect is a crime affected by its exclusion or t it in inclusion in the Draft Code? he United Kingdom ~ o v k r n m e nput other terms. When it commented on illicit traffic in narcotic drugs, considered by this Government as a "borderline case" for inclusion in the Code, the United Kingdom stated: "It may be asked what is to be gained by including in the Code an activity which is viewed as criminal by the great majority of States, and effectively prosecuted as such by most of th~m".~O

1. The Stigmatizing Function of the Draft Code The first part of the answer is that criminalization within a Code of Crimes against the Peace and Security of Mankind, along with other abhorrent acts, has a not insignificant pedagogic value and a certain preventive effect. The stigmatization accomplished by the Code will not be a definitive deterrent for potential criminals (there is no such thing anyway) but at least it may show which criminal acts the international society rejects more forcefully. Although states may effectively prosecute these crimes in their territory, it is obvious that strong international cooperation is needed. One aspect of the international fight against crime would be the solemn declaration according to which certain conduct is considered to be a crime so heinous that the international community as a whole understands that it belongs with the most condemnable category amongst the crimes. The stigmatization function should be regarded as transcendental, even if the statistical probabilities of an individual being effectively prosecuted

90

Doc. A/CN.4/448,93.

31 8


for certain crimes, such as wilful and severe damage to the environment in peace time, seem remote. The drafting of any criminal code gives a complete view of the protected values of a given society, and the criminalization of certain acts is one of the most useful tools that a society has to preserve what are considered to be the most sacred values. The Statute and the Nuremberg Tribunal had to protect fundamental values that were stigmatized only in the cultural conscience of mankind. After that experience, it seems unwise to wait for the real occurrence of these abhorrent (and perfectly feasible) acts to characterize them as international crimes.

2. Second Function of the Code: Extended Jurisdiction From a more pragmatic point of view, the exclusion of some crimes from the Draft Code may deprive them of the extended jurisdiction that the included crimes enjoy. If the relevant provisions on jurisdiction of the Draft Code become general international law, those provisions will be applicable to the excluded crimes as far as these crimes qualify as crimes against the peace and security of mankind. O n the contrary, if the Draft Code is embodied in a treaty (be it an autonomous treaty, or be it annexed to the Statute for an International Criminal Court), the general provisions will be applicable only to the crimes provided in the Code and to those states party to the treaty. Excluded crimes against the peace and security of mankind will not enjoy in general terms the principle of universal jurisdiction, nor will they be covered by the obligation to extradite or prosecute, unless the treaty is ratified by a substantial majority of the states and begins to be regarded as general international law. Some states might be opposed to the application of extended jurisdiction to the crimes against the peace and security of mankind, and indeed this extension merits further reflection. The principle of u~iversaljurisdiction was traditionally confined to a few crimes, such as piracy; more recently the principle was affirmed with respect to war crimes, and the tendency to apply the principle also to terrorism and drug trafficking was ~ b s e r v e d . ~The ' confirmation of the principle in the Draft Code may signify one more step in the direction of its consolidation in general international law. This could raise states' fears in two respects. O n the one

91

See Restatement, Third, of the Foreign Relations La.ze,of the United States, 1987, Sec. 404, Comment (a); L. Henkin, "International law: politics, values and functions: General Course on Public International Law", RdC 216 (1989), 290 and 301; and note 28 supra.


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hand, the idea of their nationals being prosecuted and tried for crimes against the peace and security of mankind by other states may not be agreeable to the states. However, this is an unavoidable consequence of the principle of universal jurisdiction. Reciprocity ought to be accepted if the principle is to be applied in true fairness. In theory, the general interest in prosecuting and trying alleged criminals should override the particular interest of the state in protecting its nationals. Nevertheless, whenever a partial trial or an unjust sentence takes place, the state may exert diplomatic protection over its nationals. O n the other hand, certain alleged criminals may escape justice if they are tried in a state which actually seeks to shield them by invoking universal jurisdiction. Article 12 para.2 of the Draft C o d e endeavours to mitigate this problem. Article 12 para.2 lit.(a) (i) (ii) allows an international criminal court to try an individual for the same crime when in the previous trial the national court characterized the crime as an ordinary one, o r the proceedings were not impartial. Article 12 para.2 lit.(b) provides that an individual may be tried again for the same crime by a national court of another state if "(i) the act which was the subject of the previous judgement took place in the territory of that Sate; o r (ii) that State was the main victim of the crime". This innovative exception favours prosecution by any injured state, and tends to guarantee that a state may punish the crimes against the peace and security of mankind that prejudiced it. It is true that the damaged state might come u p against a refusal to extradite from the custodial state which, fulfilling its obligation, has tried the alleged criminal. Yet the Draft Code imposes not the obligation to extradite, but only the obligation to extradite or prosecute.92 Notwithstanding the problems that obviously remain, the jurisdictional system of the Draft Code is more satisfactory than the system of present international penal cooperation. Nowadays, a state may be a safe haven for an alleged criminal against the peace and security of mankind, and this state has no obligation (or only a weak one) under general international law. According to the Draft Code, the state in whose territory the alleged criminal is staying will have an obligation to extradite o r prosecute, and if the trial were not impartial o r there were another state which was the main victim of the crime, the individual may be prosecuted and tried again.

92

See Section 111.2, supra.

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3. Third Function of the Draft Code: A Guide for International and National Courts The Draft Code contains characterizations which are useful as a p i d e for the prosecution, trial, and punishment of the crimes described therein. Those charactcrizations may be used by both international and national courts. As far as these characterizations were already established in the Nuremberg Charter and Judgment, and in the Principles adopted by the Commission in 1950, they belong to general international law. As regards the innovations of the Draft Code, one will have to wait for the evolution of the Code in order to know whether these new characterizations pass into general international law. In any case, the guidelines set out in the Draft Code have attached a certain authoritativeness, since they have been drawn up by the ILC, and generally speaking have a good chance of becoming general international law. O n the contrary, the Commission did not elaborate a brief formulation of the excluded crimes, and therefore there is no precise wording that could be used as a guide. Consequently, if an international or national court should wish to prosecute and try one of the excluded crimes as a crime against the peace and security of mankind, the court will be compelled to find a formulation in general internationd law, after having reached the conclusion that it may have before it a crime of such kind. This is the course of action which is suggested by the commentary to the Draft Statute for an International Criminal Court. Article 20 of the Draft Statute merely enumerates the "crimes under general international law" over which the Court will have jurisdiction. The Draft Statute does not seek to characterize these crimes, but the commentary indicates the method that should be followed by the Court in this respect: the Court should not only survey multilateral treaties and custom, it should also take into account Security Council resolutions. The cornmentary also mentions the characterizations set out in the Commission's Draft Code of 1991. National and international courts alike will have to follow a similar pattern when they endeavour to prosecute and try extremely serious criminal acts under the same conditions as crimes against the peace and security of mankind. This may be shown by the following example. A group of "Unabomber" like scientists tries to draw the attention of the states towards the inadmissibility of contamination by provoking longterm, widespread and severe damage to the natural environment. A state not injured by this repugnant act arrests one of the scientists (who is not its national) and deems it correct to prosecute and try him as a criminal against the peacc and security of mankind. The national court will have to search in general international law in order to satisfy itself that there is a characterization of the crime, and perhaps the court could pay attention

Draft Code of' Crimes

32 1

to Article 26 of the Commission's 1991 Draft Code. T h e same will apply to hypothetical prosecutions against crimes consisting of terrorism o r drug trafficking. Articles S and 16 of the 1996 Draft Code place the crime of aggression in a somewhat similar position to that of the excluded crimes. The Draft Code does not seek to characterize the crime of aggression, thereby remitting its definition to general international law. It is obvious that this remittance might be dangerous if the freedom left to the courts is used in an arbitrary manner. A court may convict an individual for aggression o n the basis of certain acts which are not to be considered as aggression in the characterization contained in general international law. The I L C tried to mitigate this unwanted problem by limiting the jurisdiction over the crime of aggression as provided in Article 23 para.2 of the Draft Statute for an International Criminal Court, and in the last two sentences of Article 8 of the Draft Code.'j Even so, the construction of the crime of aggression by an international or national court based o n general international law might prove controversial. The danger of too broad a formulation remains unaffected for the crimes against the peace and security of mankind excluded from the Draft Code. Some degree of uncertainty is always difficult to avoid, and this also applies even to the well specified crimes of the Code. What is "arbitrary imprisonment" in Article 18 lit.(h)?When is such unjust conduct carried out "on a large scale"? But the problem is much more worrying for the excluded crimes. There may be many examples. Some individuals w h o have just carried out a coup d'ktat in a small country are arrested in another state of the region. The custodial state, pondering that a trial would not be impartial neither in the first state (where the coup has installed a dubious p v e r n m e n t ) nor in the state(s) of which the individuals are nationals, decides to prosecute the alicged criminals under the charges of armed intervention and recruitment of mercenaries as crimes against the peace and security of mankind. The national court of thc custodial state may forlnulate a characterization of those crimes according to general international law that might seem to be too broad to the national state of the alleged criminals, and the latter state may try to exert diplomatic protection. Unfortunately, national and international courts cannot have at their disposal the secure guide of a written formulation of the excluded crimes. But this is a consequence of having reduced the list of crimes and at the same time having sent its definition to general international law. It would

93

Curiously enough, the wording of Article 8 was modified by the Commission during the drafting of the commentary. Compare Docs. A/CN.4/ SR.2439,6-9; AiCN.JiSR.2463, 11-15; and A/CN.4/SR.2465,3.

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have been much better to include characterizations as precise and as demanding as possible of every criminal act eligible as one of the most serious for the international community.

IX. The Do-It-Yourself Code Apart from the Draft Code, there are a number of other codes at our disposal for the time being. To start with, there is the synthetic U l~ carte code of the 1994 Draft Statute. Next come the mini-codes, or ad hoc codes expressed in the Statutes of the international criminal tribunals for the former Yugoslavia and for Rwanda, endorsed by the Security Council. And finally and fortunately there will always be the unwritten "code" the general international law "code" - of crimes against the peace and security of mankind. The ILC's Draft Code should have approached the general international law "code" as closely as possible. Since there are reasons to believe that a certain gap remains between the latter two, as this study has tried to show, this author feels tempted to offer his reflections on how to merge, as it were, the Draft Code and the ideal "code". It seems quite probable that the forthcoming plenipotentiary conference on the establishment of an international criminal court will develop the provisions on iurisdiction of the Commission's 1994 Draft S t a t ~ t eand , ~ ~those provisions would become yet another type of "code", a "jurisdictional code" (though still i la carte). Equally not unthinkable is the possibility of the General Assembly's referring the Draft Code back to the ILC at some time for reconsideration or redrafting, according to Article 23 para.2 of the Statute of the Commission. In any case, the Draft Code cannot be regarded as a definitive instrument, because of the dynamic character of criminal international law. For these reasons, any ideas for improving the Draft Code should not be rejected. A change in the title of the Draft Code is not essential, but may help to clarify the concept and facilitate naming this type of crimes. During the immediate post-war period "crimes against peace, war crimes, and crimes against humanity" were spoken of, and there was no common denomination. The expression used today was invented in 1946 by an advisor to the U.S. President, and is clearly influenced by the language of the United Nations Charter.95The expression "peace and security of mankind" is too unintelligible a phrase, as opposed to "international peace and security",

94

95

See Section V, supra. See Third report by Mr. Thiam, ILCYB 1985, Vol. I1 (part l), Doc.A/ CN.4/387, paras. 20-67.


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which is clearer. O n the other hand, one of the particular crimes, the crime against humanity, is defined with a much broader term than the general kind. This incongruity is tempered in English, for "mankind" and "humanity" are introduced, hut this is not so in French and Spanish (at least). Bearing in mind that the phrase "crimes against the peace and security of mankind" seems condemned forever to belong t o the arcane language of specialists, it would be preferable to use a more understandable name, such as "crimes against the fundamental values of humanity", o r "crimes against the international community", or much better and simpler "crimes against humanity". If the last option were to be endorsed, the crimes called as such at present could be renamed "systematic o r mass violations of human rights" (as in the 1991 Draft Code), "grave violations of human rights", o r . ... the like. Regarding the general provisions, the consequences of the jurisdictional system set out in the Draft Code should be carefully analysed. As it was stated ~ u p r athe , ~principle ~ of universal jurisdictionwas introduced almost inadvertently, and it has yet to be seen what the practical outcome of its application would be. If universal jurisdiction becomes consolidated in general international law with respect to crimes against the peace and security of mankind, it will be essential to build u p a mechanism in order to avoid legally recognized criminal forum shopping. There always have been, and probably always will be, safe havens for alleged international criminals, but criminal international law should strife for the reduction and disappearance of these havens. The granting of jurisdiction over crimes against the peace and security of mankind to any state should be accompanied by pertinent provisions that satisfactorily guarantee the fair use of this jurisdiction. In this author's view, Articles 12 of the Draft C o d e and 42 of the Draft Statute, declaring exceptions to the non bis in idem rule, d o not suffice to impede alleged offenders being shielded from criminal responsibility in some less than scrupulous states. As far as the list of crimes is concerned, it seems obvious that the list should be expanded de lege ferenda. But here two options might be envisaged. O n the one hand, the inclusion of the "political" crimes against the peace and security of mankind could be demanded. However these crimes are not very popular among an important group of states. The exclusion of these crimes (except aggression) from the 1994 Draft Statute was significant. Isolated voices that clamour for the inclusion of those crimes in the Drafr Code could be heard in the Sixth Committee during the 51st General Assembly, but the majority of states praised the Commission for the deletion of those crimes. I n consequence, the criminaliza-

96

See Sections 111.2, and VIII.2, supra.

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tion of individual acts that are necessary for carrying out crimes of state such as colonial domination or intervention does not seem feasible. Personally, I d o not share the pessimistic view that it is not possible to drafr the definition of those criminal acts in a few words. This pessimistic view entails amedieval conception of human capabilities. It is of course possible to describe in a few words the heinous acts which constitute aggression, intervention, or recruitment of mercenaries and it is of course possible that a national or international criminal court could prosecute and try the individuals who commit o r participate in those acts. l'he trouble is that political will is not yet ripe enough to criminalize in an objective form these crimes against the peace and security of mankind. O n the other hand, the list of crimes should include criminal acts such as drug trafficking, terrorism, crimes against internationally protected persons, or wilful and severe damage to the environment. The Draft Statute for an International Criminal Court and the subsequent work of the Preparatory Committee, which tends to maintain the extent of the jurisdiction of the court, invite us to seriously consider the expansion of the list of the Draft Code. Apart from that, the crimes mentioned are supported by widely accepted multilateral treaties, and are regarded as contrary to the ends of thc international community as a whole. It is not easy to foresee how the Draft Code could be changed in the near future. Nonetheless, the final form of the list of crimes both in the Draft Statute and in the Draft Code raises the crucial question of the characterization of the crimes. Taking into account the instruments hereto available, there are three main courses of action regarding the characterization of each particular crime. First, there is the mere enumeration contained in Article 20 Iit.(a) to (d) of the Draft Statute. Simply expressing the name of the crime necessitates the commentary to illuminate the tribunal. The advantage of this form of characterization is flexibility, its drawback, uncertainty. Second, the description of the crimes against humanity and against United Nations personnel in the Draft Code are good examples of what could be regarded as an intermediate way of characterizing a crime. In both examples, the Commission described in a broad yet precise fashion several criminal acts and made it clear that those acts had to be carried out under certain conditions in order to reach the status of crimes against the peace and security of mankind. Finally, Article 20 lit.(e) of the Draft Statute povides the third approach to characterization. Criminal acts are described in great detail in particular treaties, but the court may determine at any moment that the acts under consideration are not grievous enough to be prosecuted or tried. The lack of flexibility of this third approach has no compensation in certainty. Admittedly, a criminal court would have to interpret and construe any penal norm when assessing whether acts from reality conform to a verbal


325

description or not. But a criminal court should not elaborate the very characterization of a crime. While drawing up the Draft Code, the Commission had to pick and choose from among provisions similar to those found in the treaties listed in the Draft Statute. At the same time, the Commission had to describe certain general conditions for the occurrence of the crimes, such as the massive or repetitive character of the acts. Following this method, the crime against United Nations personnel, for instance, was not literally taken from Article 9 of the 1994 Convention, but the threshold of the characterization was increased for the purposes of the Draft Code. Undoubtedly, the two approaches of the Draft Statute are easier than the unpleasant task of redrafting the description of the crimes, yet this ad hoc characterization is necessary if any code or jurisdictional provisions are to have a general and precise value. According to the first approach, there would be the risk of double definition of a crime which is only referred to by a noun. The trouble with the third approach may arise when states would like the international court to prosecute and try an individual for crimes not exactly foreseen in the particular treaties.

X. Concluding Remarks During the cold war, the confrontation between the two blocks made progress in international law difficult. At present, states find themselves face to face with international law, and a new and clear tension between them may be envisaged. The definition of the most serious international crimes is a very delicate matter which is in many cases intimately linked to the interests of states. There have been a number of historical events since World War I1 in which the members of governments or the officials of different states could have been accused as alleged criminals under international law. Unfortunately, it is very likely that this situation will continue in the future. Therefore, the characterization of acts constituting crimes against the peace and security of mankind is a hard task and it is to be expected that the states will oppose a broad definition of the crimes. In the ad hoc international courts (for example, those for the former Yugoslavia and Rwanda) the definition of the crimes has a limited value in space and time. In the Draft Statute for an International Criminal Court, there is a mere list of crimes, and jurisdiction is established on a voluntary basis. The characterizations of a Code are more compromising because they may come to have a general value. The very existence of the Code is an attempt to rationalize a central field of international law. The existence of a Code makes it possible to introduce juridical objectivity into the political and moral condemnation of serious attacks on international society. The absence of a Code, where the criminal


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acts are described beforehand, allows for a subjective or even arbitrary assessment of such acts. In this sense, it can be affirmed that the process of preparation of acriminal Code with the most abominable acts that a human being may commit is one more aspect of the old struggle for law. During the last four centuries, the Western countries have elaborated the fundamental principle of political life, the rule of law, the government of Law and not of men, the rkgne de La Loi, or Rechtsstaat, with the same aim of limiting arbitrariness in the exercise of power, and of affirming human freedom, equality and dignity. Although proceeding from different origins, these ideas have a concurrent content in the 20th century, and are considered as one of the pillars of constitutional government. Nowadays, these ideas fight to fulfil themselves in states from all the regions of the ~ o r l d . At ~ ' the same time, it seems obvious that the principle of the rule of law has an expansive force and yet has to exercise its influence in the international sphere.98However, the fact is that this struggle for law will be different in the international field since it will not be led by vigorous judges (as happened in England), nor by proud assemblies (as in the United States or France), nor by audacious jurists (as in Germany), nor by brave politicians (as in many countries in the third world today). The long history of the elaboration of the Draft Code tends to show that neither can the struggle for law in the international arena be led by the states. Perhaps the demand for the rule of law may be required by international civil society. This is a slow process which will occur in the 21st century, and its result cannot yet be known. What is evident at present, though, is that the establishing of a Code of the most serious crimes that can be committed, quite often in the name of the states, is just another chapter in this fervent struggle sustained by law, or, in other words, reason, against unlimited power.

97

98

See among others C. Friedrich, Constitutional Government and Democracy, 4th edition, 1968, Chapter XXVI; N.S. Marsh, "The rule of law as a supra-national concept", in: Oxford Essays in]urzsprudence, 1961, 223 et' seq. See I. Brownlie, "International Law at the 50th anniversary of the UN: General Course on Public International Law", RDC255 (1995), Chapter XV; M. Ortega Carcelin, Hacia un gobierno mundial. Las nuevas funciones del Consejo de Seguridad de Naciones Unidas, 1995, Chapters 4 and 7.

The Relationship Between the International Court of ~ustice-andthe Newly Created International Tribunal for the Law of the Sea in Hamburg Cad-August Fleischhauer

The topic of the present paper is the relationship between the ICJ and the International Tribunal for the Law of the Sea which was recently inaugurated in Hamburg. The Tribunal for the Law of the Sea is the latest addition to the panoply of international judicial institutions. Its establishment followed the entry into force of the United Nations Convention on the Law of the Sea (UNCLOS) in November 1994 and took place in accordance with Annex V1 of the Convention1. Its role and functions are circumscribed in Part XV of the Convention entitled "Settlement of Disputes", and in Part XI entitled "The Area" which term, in accordance with Article 1 of the Convention, means the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. The Statute of the Tribunal is set out in the just mentioned Annex VI. As part of UNCLOS, the Tribunal seems to have more in common with the ICJ than other international judicial institutions created in the more recent past, such as above all the YugoslaviaTribuna12, which was established in The Hague just three years

1

2

The views expressed are those of the author. Doc.A/CONF.62/122 and Corr.1-11. Cf. for the whole text, R. Platzoder, The United Nations Convention on the Law of the Sea, 1995. Established by S/RES/808(1993) of 22 February 1993 and the Report of the Secretary-General pursuant to para.2 of S/RES/808, Doc.S/25703 of 3 May, as well as S/RES/827(1993)of 25 May 1993, which adopted the Statute of the Tribunal.

328


ago, and its clone, the Rwanda Tribunal3 in Arusha which followed two years later, both of which are international criminal courts. In the international community the question has been raised4 - and not only now in connection with the establishment of the Tribunal, but already at the Law of the Sea Conference when the Convention was drawn up - , whether the creation of a special jurisdictional organ was warranted for law of the sea disputes, or whether the international conference machinery was creating, once again, an organ that was costly, but not strictly needed. Fear has also been voiced that the creation of the Tribunal might be downright damaging, as it would contribute to fragmentation of international jurisdiction and sap away from the role and weight of the ICJ5. N o w that things have happened and U N C L O S has entered into force and the Tribunal has been inaugurated and is meant to stay, the question must be asked, what will the relations be between the ICJ and this newcomer. It seems, that in attempting to answer this question, one should not take an approach based on legal principle or o n legal policy. O n e should rather start quite soberly from a comparison between the ICJ and the Tribunal as to their institutional set-up, their substantive competences and the legal entities which have access to each of them and to which each of the two institutions is meant to cater. O n e will see what follows from these comparisons for an assessment of what their future relationship can and should be. The institutional set-up of the ICJ is well known. The Court is listed in Article 7 of the charter as one of the principal organs of the United Nations and stands thus with equal rank, i.a., next to the General Assembly, the Security Council, and the Secretariat. Article 92 of the Charter defines the ICJ as "the principal judicial organ of the United Nations", and the Statute according to which the Court functions is annexed to the

Concerning the Tribunal for Rwanda see S/RES/955(1994) of 8 November 1994. For a general comparison of the Tribunal for the Law of the Sea and the ICJ see S. Rosenne, "The International Tribunal for the Law of the Sea and the International Court of Justice: Some points of difference", in: Essays on the Law of the Sea and on the International Tribunal for the Law of the Sea, 1996, (Private Circulation) and A.E. Boyle, "Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction", revised version of a paper delivered at the annual Conference of the British Branch of the ILA in Edinburgh in 1996. S. Oda, "The ICJ viewed from the Bench (1976-1993)", RdC244 (1993), 9 et seq., (127-155); id., "Dispute Settlement Prospects in the Law of the Sea", I C L Q 44 (1995), 863 et seq.; G. Guillaume, "The Future of International Judicial Institutions", I C L Q 41 (1995), 848 et seq.

The Relationship Between the ICJ and the Newly Created ITLOS

329

Charter as an integral part thereof. The expenses of the Court are part of the budget of the Organization6, which - incidentally - brings the Court into the fallout of the financial crisis of the United Nations. It has been pointed out that this particular institutional set-up assures the Court a pre-eminent position among international judicial or quasi-judicial dispute settlement organs. The Court itself, in the exercise of its functions, has had occasion to point to its qualification as the principal judicial organ of the United Nations when it spoke about its participation in the work of the Organization. The Court has drawn precise conclusions from there, for example with respect to the exercise of its discretion in accepting or refusing to answer questions put to it for Advisory Opinions. However, neither the Charter nor the Statute give the Court a monopoly on disputes between parties to the Statute, nor has the Court ever claimed such a monopoly. The necessity of specific consent to its jurisdiction is not obviated simply by the adherence to the Statute. Moreover, other international judicial organs are not in any way subordinated to the ICJ, o r bound by its decisions. The institutional set-up of the Tribunal for the Law of the Seais different and more complicated. Created under UNCLOS, the Tribunal is nonctheless not a United Nations organ. N o r is it an organ of the principal organizational structure set up by the Convention, i.e. the Sea-Bed Authority. The Authority has various organs, i.e. Council, Assembly, Enterprise and Secretariat, but the Tribunal is none of them. Rather, the Tribunal stands independent next to the Authority. However, the Sea-Bed Chamber of the Tribunal is an integral part of the regime of the international Area provided for in Part XI of the Convention and has special institutional links with the Authority. Because of the independence of the Tribunal from the Authority, the Assembly of the Authority cannot play in regard to the Tribunal the same role that the General Assembly plays in regard to the ICJ: the finances of the Tribunal and the election of its members have not been entrusted to the Assembly of the Authority, but remain with the states parties to the Convention7. As far as disputes over the interpretation or application of the Convention are concerned, the Tribunal depends - like the ICJ - on the consent of the parties to its jurisdictionn. In certain matters, however, concerning Provisional Mea6 7

Article 33 of the ICJ Statute; Financial Report and audited financial statements and Report of the Board of Auditors, Doc.A/51/5, page 6. Article 4 para.4 and Article 19 para.1, Annex V1 of the Convention. Arts. 287,288 UNCLOS, Article 21, Annex V1 of the Convention - see in this respect R. Wolfrum, "Der Internationale Seegerichtshof in Hamburg", VN 44 (1996), 205 et seq.; R. Ranjeva, "Settlement of Disputes", in: R.J. Dupuy/D. Vignes (eds.),A Handbook of the New Law of the Sea,

330


sures and Prompt Release of Vessels unilateral applications are possible in certain circumstances. Moreover, in disputes with respect to activities in the Area, the Sea-Bed Chamber can unilaterally be seised9. This overview shows that the Court and the Tribunal, from their institutional set-up, are not in a formal relationship with each other at all. They stand independent and separate from each other. In substance there is, however, a relationship which follows from the fact that the substantive competences of both institutions are situated in the field of the peaceful settlement of disputes through judicial means. The C o u r t is called upon to decide legal disputes between states submitted to it with the consent of the parties, and to give Advisory Opinions o n legal questions requested from it by the General Assembly, the Security Council o r by other United Nations organs which have been specifically authorized to d o so by the General Assembly. The Law of the Sea Tribunal, o n the other hand, has under Part XV of U N C L O S jurisdiction over certain types of legal disputes between states parties concerning the interpretation or application of the Convention or of international agreements related to the purposes of the Convention. Under Part X I of the Convention the Sea-Bed Chamber of the Tribunal has competence ratione materiae which goes further and comprises contracts o r plans of work, acts of omission, refusals of contracts, legal issues arising in the negotiation of a contract, and disputes where it is alleged that liability has been incurred, in order to name only subject-matters expressly mentioned in Article 187 of the Convention. Some of these matters could not at all, others only with difficulty, be brought before the Court as objects of inter-state disputes. Regarding competence ratione materiae, there are therefore quite considerable differences between the ICJ and the Tribunal. The competence ratione materiae of the Court is at the same time wider and narrower than that of the Tribunal. It is wider because it comprises legal inter-state disputes from all areas of international law, while the Tribunal is restricted to matters arising out of U N C L O S and related instruments. The substantive competence of the Court is narrower than that of the Tribunal because in law of the sea matters there is a broad range of cases which could be brought to the Tribunal but which could not or only with difficulty be brought before the Courtlo. Moreover, even in cases where the Court has Vo1.2, (1991), 1333 et seq. Article 187 UNCLOS; T.Treves, "The Law of the SeaTribunal: Its Statute and Scope of Jurisdiction after November 16, 1994", ZaoRV 55 (1995), 421 et seq. "'his applies in particular to the cases referred to in Article 187 1it.b to e UNCLOS.

9


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competence ratione materiae, questions relating to the prompt release of vessels or the indication of provisional measures might arise, for the handling of which the Tribunal, under the rules foreseen in Articles 289 and 291, might be better suited than the Court. Looking next upon the question of who can appear as a party before the ICJ and before the Tribunal for the Law of the Sea - their competence ratione personae - the situation is straightforward as far the ICJ is concerned: Article 34 of the Statute says "Only States may be parties ... before the Court", whereas Articles 96 of the Charter and 65 of the Statute make clear that Advisory Opinions may be requested by the General Assembly and the Security Council, as well as by "Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, ..." (Article 96 para. 2 of the Charter). Thus, access to the Court is open to states and regarding Advisory Opinions to certain organs of the United Nations and the specialized agencies. Regarding the Tribunal for the Law of the Sea, matters are once again more complicated. The dispute settlement procedures of Part XV, of which the procedure before the Tribunal is a part and which concern the interpretation or application of thc Convention, are open, in accordance with Article 291 para.1, "to States Parties". This is only seemingly a parallel to Article 34 of the Statute. In reality there is a difference. The term "States Parties" is defined by Article 1 para. 2, of the Convention as follows: "(l) 'States Parties' means States which have consented to be bound by this Convention and for which this Convention is in force. (2) This Convention applies mutatis mutandis to the entities referred to in article 305, paragraph I(b), (c), (d), (e) and (f), which become Parties to this Convention in accordance with the conditions relevant to each, and to that extent 'States Parties' refers to those entities." Article 291 para. 1, in conjunction with Article 305 of the Convention thus opens the access to the Tribunal beyond states to various types of self-governing associated states and territories that enjoy full internal self-government as well as to international organizations, provided they have ratified or formally confirmed their adherence to the Convention. None of these additional "States Parties" could appear before the ICJ. The circle of those who have access to the Tribunal is even wider as far as the Sea-Bed Chamber is concerned. According to Article 187 of the Convention, not only states parties in the wide sense given to this term by Article 1 para. 2(1) of the Convention shall have access to the Sea-Bed Chamber, but also the Sea-Bed Authority, the Enterprise, state enterprises and natural or juridical persons in disputes concerning the interpretation or application of a contract or a plan of work or acts or omissions of a party to a contract. Again, except for states, none of these could appear

332


before the Court. The competence ratione personae of the Tribunal thus is in those areas where it has substantive competence considerably wider than that of the Court. The picture which emerges from these comparisons is a quite differentiated one. I n addition t o the absence of an institutional relationship between Court and Tribunal, there is a great number of potentially extremely important law of the sea disputes in regard of which an overlap between C o u r t and Tribunal is not to be feared. The disputes in question are first of all those arising out of activities in the Area. The Tribunal will handle these disputes almost exclusively. Overlap with the ICJ, out of these conflicts, could arise only if an inter-state dispute concerning activities in the Area and involving interpretation o r application of Part X I of the Convention is brought, by consensus between the parties, to the Court rather than to the Sea-Bed Chamber. The fact that we have to expect that disputes will begin to arise out of activities in the Area as soon as those activities are taken up, justifies the establishment of the Tribunal. The other cluster of disputes in regard of which there will be no overlap between C o u r t and Tribunal are the Part XV disputes over the interpretation and application of the Convention in as far as they arise between "States Parties" other than states. That takes away from the area of possible confrontation another potentially large chunk. Of course, there are disputes regarding which the competences of the C o u r t and the Tribunal overlap directly. These are the traditional disputes between states over the interpretation and application of the Convention outside of Part XI. Since the activities of states in the Area have not yet really started and are not likely to d o so in the near future, and since the "other States Parties" have not yet come to play a significant role in the practical handling of the Convention, it might well be that in the foreseeable future inter-state disputes regarding which there are overlapping competences shall be in the forefront of the law of the sea-related disputes. Must that however complicate the relationship between the Court and the Tribunal? N o t necessarily so. As has been shown, the ICJ does not have o r claim a monopoly o n cases. There has always been and always is the choice of forum. T h e Court has decided from the N o r t h Sea Continental Shelf Case" to the Jan Mayen Case12 in quite a number of cases on law of the sea matters. Arbitration tribunals have rendered a similar number of decisions in cases o n law of the sea matters1'. Has this done damage to the Court o r to international law? In other areas of law the

11 12 l3

ICJ Reports 1969,3 et seq. ICJ Reports 1993,38 et seq. See also Boyle, see note 4 , 5 .


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picture is not different. Has the Court ever been bothered by the fact that the European Court of Human Rights in Strasbourg decides in proceedings on inter-state applications, sometimes on matters which could also come before the Court? Things - should not be dramatized. Of course, where there is an overlapping competence, there is the possibility of conflict; but there also is the possibility of a respectful CO-existence.Both bodies should be mindful and respectful of each others jurisprudence. Of course they might disagree. But if they disagree they should - and will - do so in a professional manner. There is no reason why the Court should react differently to the Tribunal than to other jurisdictional organs which deal with cases which might have come to the Court. As to the assignment of cases, there is anyhow little the Court and the Tribunal can do. It is to be hoped that in those areas where there is overlap, states find a sensible division of labour, perhaps by directing cases of a more specifically law of the sea nature to the Tribunal and those with more ingredients of general international law to the Court. The establishment of a division of labour will be facilitated once states realise, as they soon will do, that the Tribunal, with its specific set-up and competences, promises to be a judicial organ altogether different from the Court.


Book Reviews

Michael Banton: International Action Against Racial Discrimination. Clarendon Press, 1996. 362 pages. Professor Partsch, a long-term member of the Committee on the Elimination of Racial Discrin~ination,had agreed to review Mr. Banton's book on International Action Against Racial Discrimination. Since Professor Partsch passed away in December 1996, I felt it was m y duty to step in for him as his successor in the Committee. Michael Banton's book deals with the elimination of racial discrimination, in particular with the International Convention o n the Elimination of All Forms of Racial Discrimination and the functioning of the C o m mittee established by that Convention as its monitoring body. The author is a member of the Committee. H e sen-ed for many years as its Rapporteur and was its Chairman in 1996 and 1997. The book is divided into 13 chapters of different length; it also includes the text of the Convention, selected General Recommendations of the Committee, a description of the election of experts (Appendix 111) and several pages on legal and educational measures against racial discrimination (Appendix W ) .Hiding these two latter parts in the appendixes may unfortunately turn out to be counterproductive, for they contain pertinent information. The headings of the 13 chapters, due t o their very general wording, d o not always give the reader a clear guidance as to the structure of the book. For example, chapter 1 ("Extending the Rule of Law") constitutes an introduction describing how the reports of particular States Parties had been dealt with by the Committee. These cases may not be representative any more, since the attitude of States Parties towards the Committee has changed over the last years, however, they are illustrative as to the difficulties the Committee occasionally faces and particularly faced in the past. Chapters 2 and 3 ("Crimes against Humanity" and "The United Nations") give some basic information on the legal environment in which the Convention has to be seen and the rationale behind its establishment. The drafting history of the Convention is described in chapter 4.I n particular

336


chapters 3 and 4 overlap to a certain extent. Chapter 4 further provides information on the understanding of the notion of racial discrimination without exhausting this issue. This issue comes up again in chapter 5, labelled the "Committee's Inheritance", where one finds ample reference to certain aspects of the legislative history, as well as in chapter 6 ("Laying the Foundations"). Taken together these chapters give valuable information on the legislative history of the Convention. Important as this information is, it nevertheless veils the content of the Convention since even a brief description of the wording of the Convention and its textual analysis is missing. To look for a textual analysis may be a typical lawyer's approach not necessarily followed by a sociologist or a political scientist such as Mr. Banton. However, it is difficult for the reader to understand and to appreciate that the Convention not only prohibits racial discrimination but rather "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin." In particular, the meaning of descent and national or ethnic origin does not receive any clarification in the book. N o r is it clearly stated that this wide definition of racial discrimination has made it unnecessary for the Committee, so far, to further define the notion of racial discrimination. My attempts in that regard, in particular when the Committee discussed whether the remnants of the caste system in India would fall under the Convention, were regarded as academic. Chapter 6, after dealing with the expectation of States Parties concerning the Convention, analyscs the Rules of Procedure as adopted by the Committee. These rules have in the following years been significantly modified and supplemented, reflecting the changing perception of the Committee on its role in the implementation of the Convention. This chapter is a crucial one. By describing the functioning of the Committee when dealing with the first reports, the author skillfully introduces the reader into the progressive development of the reporting system until 1978. At the beginning of chapter 7 ("The Last of the Cold War") the author indicates that one has to distinguish between the period before 1978 and the one between 1979 and 1987. It is certainly true that the East-West confrontation was felt in the Committee. However, the examples given in that chapter show that it was not only that conflict but also the emphasis placed on State sovereignty which curtailed a progressive development of the Committee. Apart from that, budgetary restraints, mentioned only in chapter 8 ("Seizing the Initiative") proved to be a threshold for a more progressive functioning of the Committee. Chapter 8 deals with new procedural developments undertaken before and after 1979. The representation of the reporting States at the Committee when it discusses reports of States Parties was already accepted in 1972; in 1988 the country-rapporteur system was introduced and, in 1991, a format

Book Reviews

337

for deciding on Concluding Observations was found. However, such procedural innovations were only possible after the Committee accepted the use of information other than that provided by the reporting State for the assessment of reports. This is briefly mentioned under the subheading "Overdue Reports". The Committee has changed its character over the years, a fact which would have been worth further elaborating upon. It has become a forum to discuss with States Parties how to improve the implementation of the Convention. Such implementation procedure belongs to borrow a term from international environmental law - to a system ensuring compliance by non-confrontational means. Chapter 8 deals at great length with the phenomenon of overdue reports. The Committee had agreed in 1988 that after the submission of initial comprehensive reports States should submit further comprehensive reports at four-year intervals. Nevertheless, the backlog of reports is substantial. The Committee has developed a system which puts some pressure upon States to live up to their reporting obligations. This system, which has been adopted by several other treaty bodies, is explained in detail. The remarks on individual communications are limited, which may be due to the fact that the Committee, so far, has not often been called upon to decide on individual communications. It would have been worthwhile considering why the Human Rights Committee has quite a different experience with individual communications. Banton elaborately explains the Preventive Action procedure which the Committee adopted and the initiatives taken on the basis thereof. It would have been interesting to learn how the author assesses the current procedure, since it seems as if the Committee has lost some of its initial enthusiasm in that respect. In recent sessions the deliberations on critical situations such as in Liberia, Rwanda and Burundi were cut short. N o further spectacular decision has been taken by the Committee under this procedure. Chapters 9,10,11 and 12 deal with the dialogue of European, American, African and Asian States; East European States are missing as a separate chapter. It is obviously the underlying assumption that each region has its own particularities which can be explained most appropriately in different chapters. It is questionable whether this is fully correct. The Committee always stresses that all States Parties are to be treated equally. The author deals with the European States article by article and thus gives a very careful and differentiated picture of how the Convention is implemented in Europe. The treatment of the reports from American States is different. Here only one aspect is highlighted, namely the situation of indigenous peoples. It is true that the Committee has focused upon this aspect when, for example, it considered the reports of Chile, Peru, Mexico and Guatemala. However, other issues were also raised. As far as African States are concerned, yet another approach is taken. This part very much concen-

33 8


trates on Rwanda and Burundi. However, it fails to address in depth the pertinent question as to whether this conflict is to be regarded as an ethnic one, which has frequently been denied by the government of Burundi. Apart from that, the Committee has often been faced with the problem of convincing representatives of States Parties that in a certain situation an ethnic component was involved. The book has bright points and shadows. It provides an in-depth and vivid description of the functioning of the Committee on the Elimination of Racial Discrimination. In that respect it constitutes a milestone and will certainly add to the reputation of the Committee. It does not, however, systematically inform about the content of the Convention on the Elimination of All Forms of Racial Discrimination and, therefore, it is difficult for the reader to assess the potential which still rests in the Committee. Finally, given the broad title of the book, the reader may expect information on the activities of the Commission on Human Rights . In particular, the Special Rapporteur on Racism of the Commission on Human Rights has only briefly been mentioned. A comparison of his reports on Brazil or Germany, for example, with the assessments of the Committee might have enriched the informative value of the book. Prof. Riidiger Wolfrum, Heidelberg

Milton J. Esman and Shibley Telhami (eds): International Organizations and Ethnic Conflict. Cornell University Press, 1995. 343 pages. Two assistant professors of political science at Cornell University in the United States seized the initiative and persuaded not only one fellow political scientist at Cornell but no fewer than nine colleagues from other American universities to address the problem of the role of international organizations in ethnic conflicts. The editors selected primarily those colleagues who had already evidenced their interest in the topic by recent related publications. The result is a comprehensive volume with articles from thirteen authors. Unfortunately the authors agreed to only two case studies, quite different from each other, as the basis for their approach to the subject: civil war in Lebanon and the disintegration of Yugoslavia. It would not have been difficult to treat the new problems arising from each situation in general articles or in the evaluation of existing literature that has already addressed these two cases. However, because it was important to the authors to address current problems, dealing with situations for which solutions had not yet been found, could not be avoided. (Introduction, pp. 1-17). At the time, the scope of intervention by the United Nations and other organs of international organizations was without precedent. This allows inquiry as to whether such intervention was just a temporary phenomenon, an actual expansion that would not hold, or a structural transforma-

Book Reviews

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tion. J. Donnelley attributes the growth to a shifting of the division of power between the affected subjects of international law, comparable to the shift that occurred in the transition from the League of Nations to she United Nations. In the new post-Cold War regime priorities had to be arranged differently. This development can be seen much more clearly in the 1970 intervention by the Arab League and Syria in Lebanon than in the Yugoslav conflict of 1991192. To give an idea of what role international organizations played in the post-Cold War era, the book provides an overview of measures taken and also describes the conditions under which these measures were possible and how successful they were. Here it was important to analyze carefully which measures were tied to the Cold War and which could still be drawn upon after it ended. In this manner it could be made clear that both the continuation of the Cold War and membership in the UnitedNations with its accompanying duties (e.g. in the area of development assistance) left available only a very limited scope of ways to fight the problem of ethnic conflict. This approach shows starkly the extent to which mid-size and small states, themselves among the 180 members of the United Nations, were called upon in the interest of other areas that had become sovereign. Thus it was necessary in 1992 to draw upon 32 states to come u p with the essential means for normalizing life in Somalia. A private organisation (CARE) had to be called upon to distribute food in areas threatened by famine. To obtain information on the areas that had become ungovernable, United Nations organs were dependent on the national governments of neighboring states. In many cases of emergency assistance, regional organisations were more of a hindrance than a help. The success with the Albanian-speaking population in Kosovo provided a happy exception. These experiences notwithstanding, the authors hope that the United Nations can prove itself to be more effective as an international organizanon. In the last century Lebanon survived two periods of turbulent political upheaval: From 1931 - 1941 the Egyptian occupations, when Ibrahim Pascha was Viceroy. To be sure, this so-called 'Golden Age' was also characterized by a tendency toward communal conflict. Chronologically this instable period was followed by the era of Ottoman rule (1939- 1956) in which the Ottoman administrators actively remembered their administrative powers in military and tax matters. In discussing the current conflicts in the territory of the former Yugoslavia, its historical roots are first examined. (V.B. Gagnon, Cornell). In order to realize the romantic ideal of a unified state for all of Southern Slovenia, the form of a multiracial state ('Vielvolkerstaat') was deliberately chosen. Truly different groups were thus brought together and it was to be expected that conflicts requiring resolution would arise between them.

340


The author for this topic revisits the Austro-Hungarian monarchy, in which he finds a modus vivendi for the varied groups. During the Second World War the differences between the two main groups were partially bridged by the common creed of Communism under Tito. At the same time, however, the tensions were rendered considerably more difficult by the Croatians taking their own path. Only the excommunication of this multiracial state from the Soviet Union in 1948 and the development of its own economic system of 'workers self-management' made a common life possible. This was because now the essential economic decisions which were made at the federal level - that is, the Republic could be made more under the influence of economic efficiency than ideological dogma. It was not easy to keep these two foundational ideas clearly separated from each other while applying them contemporaneously. An essential clarification came only with the constitutional revision of 1971-72, which guaranteed stronger autonomy for the six republics and the two provinces. In any case, it must be kept in mind that the existence of a common army with its own economic needs often required compromises to be reached. With this historical background, Yugoslavia had to survive difficult times in which only 20% of the population could maintain its standard of living while 80% were dependent on means of support such as those from the IMF, which were only guaranteed under specific conditions. In 1993 and 1994 numerous plans for the pacification of the embattled areas of the former Yugoslavia were proposed, either by individual states (the United States, the United Kingdom, France) or by organs of international organizations (the UN Security Council, NATO; the European Union). Revised borders in a transition period were spoken of (S.C. Woodward): what results theviolent conflicts, which arouscd considerable attention at the international level, were to have in the end cannot be learned from this presentation. The last article on Yugoslavia is dedicated to the problem of how the international community addressed the situation (Steven L. Barg, Brandeis). In August 1992 an International Conference on the Former Yugoslavia (ICFY) brought all interested parties together in London to discuss the conflict. A wide range of opinions was evident. Although a few participants called for direct military intervention by an international force, there was nonetheless no readiness to deny the United Nations Security Council the competence to set such an action in motion. Prof. Karl Josef Partsch (Translated by Betsy Roben)

t

Book Reviews

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Martin Scheinin (ed.): International Human Rights Norms in the Nordic and Baltic Countries. Martinus Nijhoff Publishers, 1996. 309 pages. For many years, the legal status of international human rights treaties in the domestic legal orders of the Nordic countries was characterized by the fact that - with the exception of Finland -their substantive provisions were considered not to be directly applicable and, thus, could not be invoked by individuals in their dealings with state authorities and courts. This raised considerable problems in particular with regard to the European Convention on Human Rights (ECHR) notwithstanding the general tendency of the courts to apply and interpret norms of domestic law in such a way as to guarantee, as far as possible, their conformity with the provisions of such international human rights treaties. This general situation has, however, most considerably changed during the last years. Since the adoption of the 1992 Danish Act Incorporating the European Convention on Human Rights, steps have been taken in all Nordic countries to incorporate human rights treaties - or, at least, the E C H R - into their respective domestic legal orders. Since, possibly due to linguistic constraints, this development does not seem to have been sufficiently noted outside the Nordic countries, the publication of the present book is much to be welcomed. Its value is further enhanced by the fact that it also contains reports on the legal status of such human rights treaties in the domestic legal orders of the Baltic countries information on which has been particularly scarce in non-Baltic languages. In his general introduction to the topic of the reports collected in this book (pp. 11-26), Martin Scheinin points out, inter alia, the above-mentioned recent developments and the crucial role of the domestic courts as regards the future implementation of international human rights norms into the domestic legal orders. As to Estonia (pp. 27-72), Aap Neljas stresses that, in order to make the provisions of an international human rights treaty directly applicable, the Estonian Riigikogu (Parliament) must pass a specific act incorporating that treaty into the Estonian legal order; this is usually done in connection with the approval of the act allowingfor the ratification of that treaty. In her report on Latvia (pp. 73-1 10), Ineta Ziemele discusses the two possibilities offered by Latvian constitutional law to ensure the domestic application of international human rights treaties: either, the Constitution could be amended in such a way as to generally accord such treaties direct applicablity, or Parliament would have to adopt specific acts individually incorporating such treaties into the domestic legal system; in order to ensure that international human rights norms will clearly prevail over domestic statute law, she proposes that the first alternative be chosen. The very instructive report by Vilenas Vadapalas on the situation in Lithuania (pp. 111-168) might be summarized as

342


follows: Only ratified treaties form a constituent part of the Lithuanian legal system; Parliament ratifies a treaty by enacting a resolution on ratification which makes the treaty directly applicable in domestic law. The situation in Iceland (pp. 169-202), as described by Stefan Stefansson and Ragnay Adalsteinsson, is characterized b y two recent developments: First, the 1994 European Convention on Human Rights Act that incorporated the E C H R into domestic Icelandic law and, thus, resulted in its internal direct applicablity, and, second, the 1995 Constitutional Bill that added a modern human rights catalogue to the Icelandic Constitution; it should be stressed, however, that so far no measures have been taken in order to incorporate human rights treaties other than the E C H R into Icelandic domestic law. Kyrre Eggen reports that important developments concerning the status of human rights treaties have recently takenplace in Norway (pp. 203-226): Pursuant to the recommendations of a public committee the Norwegian Parliament adopted, (the Menne~keretti~hetsl~vutvalget), in 1994, a new Section 110 C of the Norwegian Constitution that obliges state authorities to respect and ensure human rights and further states that provisions concerning the implementation of (human rights) treaties shall be laid down by an act of Parliament; in the latter context, the committee proposed that human rights conventions, in particular the ECHR, should be made directly applicable in Norway by means of passing a specific act of incorparation. With respect t o Denmark (pp. 227-256), Birgitte Kofod Olsen describes the development that resulted in the above-mentioned adoption of the 1992 Act Incorporating the European Convention on Human Rights and states that there are no similar plans as regards other human rights instruments. She notes, moreover, that, since 1992, numerous decisions of the Supreme Court have been based upon the ECHR. Since, as stated above, human rights treaties have been traditionally accorded, usually by means of incorporation, direct applicablity in Finland (pp. 257-294), Martin Scheinin focusses on the relevant jurisprudence of, in particular, the Supreme Administrative Court and the Supreme Court that show the most considerable relevance attached t o human rights treaties in Finnish court practice. Finally (pp. 295-305), Goran Melander reports that, as of 1 January 1995, the E C H R has been incorporated into Swedish law by means of a specific act of Parliament passed in 1994 and has, thus, been madedirectly applicable; furthermore, heurges theSwedish Riksdag also to incorporate other major human rights treaties into Swedish domestic law. All these reports contain very useful additional information such as quite detailed analyses of the ~ e r t i n e n jurisprudence t of the courts of the respective countries and extcnsive rcfercnccs to rclevant literature. Moreover, they include annexes to the major legal texts such as excerpts from the various constitutions and reprints of incorporation acts, all in English

Book Reviews

343

translation. In sum: This is a book of high relevance to lawyers interested in the legal relationship between international human rights law and domestic legal systems. Prof. Rainer Hofmann, Kiel

Moshe Hirsch (ed.): The Responsibility of International Organizations Toward Third Parties: Some Basic Principles. Martinus Nijhoff Publishers, 1995. 220 -pages. The question of responsibility of international organizations and their member states has become a relevant and popular topic, particularly as a result of the Tin Council Case. The question, however, has yet to find a satisfactory answer, and therefore, it still attracts further interest. The book under review makes a contribution to the discussion. It is subdivided into six chapters. The first introduces the subject, the second deals with the first element of responsibility, i.e. the breach of an international obligation. Here, the author analyses how responsibility is attributed with respect to the various sources of international law. As for international treaties he focuses mainly on the problem of multilateral agreements and reaches the conclusion that in cases where the attribution of competences between the organization and its members is clear the responsibilities will follow the competences, otherwise an injured party has the right to require clarification, firstly from the international organization, then from the member states. If the information requested is not given, the international organization and its member states shall be held responsible. This solution is mainly derived from the principles established by Chapter IX of the United Nations Convention on the Law of the Sea. With reference to the responsibilities established by the law of war which were recognized by the United Nations in its military activities, the author states that there is also a responsibility of international organizations under international customary law. Special attention is paid to obligations relating to national powers which are transferred to international organizations. This approach is surprising because it does not fit the other criteria under which a breach of an international obligation is examined, i.e. the different sources of international law. Clearly, the question of the transfer of competences is of utmost importance for the evaluation of responsibility in international law; however, it does not concern breach of an international obligation, but is closely linked to the question of attribution of responsibility as dealt with in chapter four of the book. With respect to the distribution of responsibilities between the state transferring its functions and the international organization toward third parties, with which the state concluded a treaty. -prior to the transfer, the author establishes that the state shall not be absolved from its obligations unless the international organization is legally bound to comply with them; the international

344


organization shall be bound as far as it receives substantial obligations undertaken by all member states; with respect to procedural mechanisms of such treaties concluded by the member states, it has to negotiate with the third parties which take part in them. As far as the obligations undertaken by the member states are inconsistent, third parties shall first address the international organization and if it refuses, the respective states. The third chapter is dedicated to the question of "attribution in the responsibility of international organizations"; here, in the first place, the acts of state organs placed at the disposal of international organizations are analysed, with special reference to the practice of the United Nations Forces and armed forces of other international organizations. The author establishes that the attribution of control will essentially depend on who exercises the control over the respective state organs. With respect to the territorial link of a breach of international law, it is shown that a state on whose territory such an act is committed generally is not held responsible, unless it violates obligations to prevent such a breach. As for the implementation of acts of international organizations, the author, basing his considerations on the practice of the European Communities, comes to the conclusion that the implementing state shall be held responsible only insofar as it has a discretion with respect to the implementation. Finally, the author states that the responsibility of the international organization is not set aside if their organs act ultra vires. A third party will share the loss resulting from the wrongful act if it knew the violation of competence rules and could have avoided it. Certainly, the most interesting part of the book concerns the responsibility of members of international organizations. Here, international treaties which tackle this problem are briefly listed; treaty law is considered to be quite fruitless for shaping an argument for or against member state responsibilities, as special treaty provisions excluding such responsibility cannot be applied vis-a-vis third parties, and, as far as they are not contained in a constituent instrument of an international organization, a conclusion that member states must be held responsible is not admissible. The analysis of the judicial decisions in the field - Westland Case and Tin Council Case - leads to the statement that a general line with respect to member states responsibility cannot be perceived; furthermore, the national courts involved in these cases generally applied national law. The author comes to the conclusion that the practice of states and of international organizations only indicates that thc rcgimc of concurrent rcsponsibility is rejected; beyond this "negative statement" no conclusion can be drawn from international practice. Due to their large variety in the field of limited responsibility, general principles of law are qualified as quite useless in the detecting of basic rules which may help t o shape a regime of member states' responsibility. At the end of chapter four the author gives

Book Reviews

345

a short resum6 of the most important writers who dealt with the question of the responsibility of member states, concluding that most lawyers, in one way o r another, favour a responsibility of member states of international organizations. According to the author the research shows that international law does nor offer an answer to the crucial question of whether member states should be considered responsible for the acts of international organizations. Nevertheless, he reaches the conclusion - evidently based on wishful thinking - that international law points to the responsibility of the member states. Following this line of thought, in the fifth chapter the author tries to develop his own concept of the relationship between the responsibility of international organizations and their member states. In this attempt he is guided by common sense and the idea of an equitable solution. After having rejected a limited responsibility of the member states - because it deprives the injured person of creditors - ; a concurrent responsibility because this would inspire member states to get involved in the management of the international organization and endanger the independence of the latter -; secondary responsibility, indirect responsibility - because of the uncertainty whether the member states will fulfil their obligations towards the international organization to enable it to meet its obligations toward third parties -; responsibility according to the intention of the parties, because such common intention is only fictitious; - and the responsibility toward third parties in accordance with responsibility toward the organization - because it would presuppose a knowledge as to the extent of the responsibility - the author proposes a different approach. Firstly, common intentions of the parties, i.e. the member states, the international organization and third parties, should be respected; furthermore, member states shall have an indirect responsibility to third parties which voluntarily entered into contacts with an international organization from which the wrongful acts resulted, i.e. member states shall, internally, according to the constituent instruments, cover the obligations of the international organization toward third parties. Finally, the member states shall be held secondarily responsible toward third parties, which suffered an injury which does not result from a voluntary relationship with the international organization; in this case, the burden shall be divided between the member states according to the relative contribution of each member state to the organization's budget. The member states shall be jointly and severally responsible towards the injured third state. Exceptions to these general rules will be admitted in cases in which the international organization is accused of illegal acts by the member states or in order to evade legal obligations; once these conditions are met, the veil of the international organization will be pierced.

346


The book contains quite interesting material concerning the question of responsibility of international organizations and their member states. However, it certainly does not examine all events and legal considerations which could help in understanding the present situation; i.e. it does not examine commodity agreements, and it does not analyse the Certain Expenses Case at all, which could give valuable clues-concerning the relation of member states and international organizations toward third parties. Although the statement that international law does not offer a fully fledged system on how to handle the responsibility of member states toward third parties, is completely correct, it nevertheless raises more questions which could be used for the development of an answer than the book leads us to believe. The author once having stated that salvation cannot be found in the existing- international law, searches for rescue in his common sense and uses as a leading point of reference the idea of equitable principles which he expands with his own thought. Of course, it cannot be denied that a lawyer is wiser than the law, and the solutions he offers will in quality prevail over those established in the existing law. However, there is a presumption, that the solutions fit better within the entire system if they try to refer to the existing law and to be in tune with it. Apart from this remark, one notices that the author is not as free from pre-existing concepts as he pretends to be. For example, he refuses the general principles of law as source because of the variety of common resp. civil law concepts on corporations. Nevertheless, he uses such notions as "piercing the veil", "abuse of the separate personality", "evasion of legal obligations" which are pure inventions of civil/common law. The book could have made a more important contribution to the topic in question, if it had tried to analyse the basic concepts of attribution of responsibility of the actual international law more profoundly, i.e. the linkage of control and responsibility or state function and inherent state responsibility. Furthermore, the concept of'international organizations deserved a closer examination; to reduce them to entities which consist exclusively of treaty links, as the author does when dealing with the problem of transfer of state functions, is certainly not an opinion which will be shared by the majority of international lawyers, nor can it be based on practice. Referring more closely to current international law when developing its solution to the problem, the book could have been considered not only as the expression of a vision of international law t o come but also as a helpful guide in practical cases of today, in a time before the vision is realised. Dr. Matthias Hartwig, Heidelberg

Documents Investigating Powers of the International Criminal Tribunal for the Former Yugoslavia vis-a-vis States and High Government Officials Amicus Curiae Brief Submitted by the Max Plnnck Insi-~rui-e for Comparative Public Law and International Lnw i-o rhe Intern,?tional Criminal Tribunal for the Former Y ~ g o s h v i ai n the Case of The Prosecutor U. Zhomir Blrskzc . . . . . . . . . . .

349

by lochen Abr. FroweinIGeorg NolteJKarin OellersFrahmIAndreas Zimmermann

Subpoena Duces Tecum of 15 January 1997 The Prosecutor v. Zhomir Blaskic . . . . . . . . . . . 399 Draft Articles on the Draft Code of Crimes against the Peace and Security of Mankind . . . . . . . . . . .

405

Concluding Observations adopted in 1996 by the Committee nn Economic, Social and Cultuml Rightj, . . . . . 41 5 HumanRights Committee, . . . . . . . . . . . . . . 479 Committee on the Elimination of Racial Disciimination . . . . 539 Decisions/Resolutions adopted in 1996 by the Committee on the Elimination of Racial Discrimination . . . . 6 2 5 General Recommendations adopted in 1996 by the Committee on the Elimination of Racial Disciiminrztzon . . . . 635


Investigating Powers of the International Criminal Tribunal for the Former Yugoslavia vis-&vis States and High Government OScials Amicus Curiae Brief Submitted by the Max Planck Institute for Comparative Public Law and International Law to the International Criminal Tribunal for the Former Yugoslavia in the Case of

The Prosecutor v. Khomir Blnskic by Jochen Abr. Froweinl G. Noltel Karin Oellers-Frahml A. Zimmermann

Max Planck Yearbook of United Nations Law CONTENTS

A. Introduction

B. Power of a judge or Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia to issue a "subpoena duces tecum " to a sovereign state

I. Preliminary clarification: mean in^ of the term "subooena duces tecum" 1. "Subpoena duces tecum" as a form of court order 2. "Subpoena" as implying a threat of sanction?

11. The power of the Tribunal to take decisions i m u o s i n ~leeally binding s~ecificobligations on a sovereim State

1. Duty of States to comply with orders taken by a single judge before the commencement of trial proceedings

2.The power to issue "orders" to sovereign States a) Analysis of Art. 29 of the Statute aa) Report of the Secretary-General bb) Traditional Forms of International Legal Cooperation CC) Drafts and Proposals for the Statute dd) "Orders" to States ee) T h e identical legal effect of "requests for assistance" and "orders" ff) Confirmation of the interpretation by the special character of the Tribunal b) Analysis of national legislation implementing the duty to cooperate with the Tribunal c) Analysis of similar provisions contained in other international instruments aa) International Court of Justice bb) Court of Justice of the European Communities CC) European Commission and European Court on Human Rights dd) Iran-U.S. Claims Tribunal ee) ILC Draft Statute for an International Criminal Court and work o f the Preparatory Committee on the Establishment of an International Criminal Court ff) Arbitral tribunals

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111. Limits of the ~ o w e of r the Tribunal to issue orders against a State

1. General Remarks 2. Protection of confidential information a)

Statements by States Analysis of national legislation implementing the duty to coopb) erate with the Tribunal Analysis of similar provisions contained in othrr international C) instruments d) National law e) Conclusion 3. Specificity of request a) Analysis of the Statute b) National laws on criminal procedure c) Analysis of similar provisions contained in other international instruments d) Conclusion

IV. Mav orders against a State be issued in the form of a "sub~oenaduces team"? 1. Use of the term "subpoena" as a form of sanction in itself 2. h p l i e d assertion by theTribunal of a power to punish a State for contempt!

C. W h a t are t h e appropriate remedies t o be taken if there is non-compliance by a sovereign State of a "subpoena duces tecurn" o r request issued by a judge o r a Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia? I. Analvsis of Art. 29 of the Statute and of the Rules of Procedure l . Art. 29 of the Statute 2.Rules of Procedure 3. Contempt power as implied power of the Tribunal?

11. Analysis of similar provisions contained in other international instruments 1. International Court of Justice

2. Court of Justice of the European Communities

3. European Commission and European Court of Human h g h t s 4. Iran-U.S. Claims Tribunal


3 52

5. ILC Draft Statute for an International Criminal Court and work of the Preparatory Committee on the Establishment of an International Criminal Court 6. Conclusion

111. Remedies bv other bodies than the International Criminal Tribunal IV. Conclusion: The power of a i u d ~ or e a Trial Chamber to issue a "subboena dztces tecurn" a ~ a i n s at sovereipn State

D. Power of a judge or Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia to issue a "subpoena duces tecum" to a high government official I. Power of the tribunal to issue binding orders to individuals penerallv

1. Analysis of Art. 29 of the Statute 2. Analysis of national legislation implementing the duty to cooperate with the Tribunal 3. Analysis of similar provisions contained in other international instruments 11. Mav the Tribunal issue a "rub~oennduces tecum" to h ~ mvernrnent h officials?

E. What are the appropriate remedies to be taken if there is non-compliance by an individual, including a high government official, of a "sutzpoenaduces teeurn" issued by a judge or a Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia? I. Analvsis of Art. 29 of the Statute and of the Rules of Procedure

11. L e ~ a basis l of the contempt rule 111. National cooperation laws

IV. Analvsis of similar ~rovisionscontained in other international instruments V. Sanctions a~ainsthigh ~overnmentofficials for non-compliance with an order

F. Final Conclusion

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A. Introduction The brief hereby submitted to the Tribunal will discuss the following issues: Is a judge or Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia competent to issue a "subpoena duces tecum" to a sovereign state and, if so, what are the possible limits of that competence? What are the appropriate remedies to be taken if there is non-compliance by a sovereign State with a "subpoena duces tecum" or request issued by a judge or a Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia? Does a judge or Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia also have the power to issue a "subpoenaduces tecum" to a high government official? What are the appropriate remedies to be taken if there is non-compliance by an individual including a high government official with a "subpoena dues tecum" issued by a judge or a Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia?

Power of a judge or Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia to issue a "subpoena duces tecum" to a sovereign state

Before addressing the issue whether a judge or Trial Chamber may issue a "subpoena duces tecum" to a sovereign State it is necessary to clarify the term "subpoena duces tecum". I. I'reliminaw clarification: mean in^ of the term "sub~oenaduces tecum" T h e term "subpoena duces tecum" is mentioned neither in the Statute of the International Tribunal1 nor in the text of Security Council Resolution 8272. Rule 54 of the Rules of Procedure and Evidence of the International Tribunal3, however, provides in its English version that "a judge or Trial Chamber may issue such orders, summonses, subpoenas and warrants as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial".

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S1257U4, 3 May 1993 and Corrigendum Sl25704lCorr. l , 30 July 1993. SIRES1827 (1993), 25 May 1993. ITl321Rev.6, 6 October 1995.

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1. "Subpoena duces tecum" as a form o f court order

In c o m m o n law jurisdictions the term "subpoena duces teczrrn" is used for a court order commanding t h e production of documents4. Together with subpoena ad testifi'candurn(a court order t o enforce the attendance of a witness5) it is also officially called subpoena6. Art. 2 9 para. 2 of the Statute only empowers the Tribunal t o issue "requests for assistance" and "orders". Since the Tribunal derives its powers only from t h e Statute the question must be raised whether Art. 2 9 para. 2 encompasses a power of the Tribunal t o issue, o n the basis of its Rules o f Procedure, a n order in the form of a "subpoena duces tecurn ".

2. "Subpoena" as implying a threat o f sanction? In c o m m o n law jurisdictions it is a characteristic of a "subpoena" that noncompliance with its terms can be sanctioned as a contempt of court7. Since the International Tribunal is prima facie not authorized t o impose any penalties o n States for non-compliances with legally binding requests by the Tribunal, it must be verified whether the issuance of a "subpoena duces tecum" is ultra vires. Two reasons suggest that the "subpoenas" in question go beyond a mere "request for assistance" o r "order" in the sense of Art. 29 para. 2 of the Statute of the Tribunal:

j

''

'

Halsbury's Laws of England, 4th ed. 1976, vol. 17, "Evidence", para. 250; American Jurisprudence 2d ed. 1981, "Witnesses", \5 14. Halsbury's Laws of England, 4th ed. 1976, vol. 17, "Evidence", para. 244; Amcrican Jurisprudence 2d ed. l98 1, "Witnesses", 9. Rules of the Supreme Court, (England) 1965, Order 38, sect. 14 (1); Federal Rules of Criminal Procedure, Rule 17 (a) and (c), USCA Title 18 Appendix; Corpus Juris Secundum, vol. 47, "Witnesses", 20; see also Annotation, Availability under Uniform Act to Secure the Attendance of Witnesses from without a State in criminal proceedings of subpoena duces tecum, 7 ALR4th 836, at 838, where reference is made to American case law according to which "since a subpoena duces tecum and a subpoena ad testificandum are so similar in nature and so fundamental to the gathering of evidence, there is little reason to distinguish between them. Thus ... the failure of the Act to explicitly provide for a subpoena duces tecum did not necessarily indicate that such a subpoena could not be issued Federal Rules of Criminal Procedure, Rule 17 (g) USCA Title 18 Appendix; Halsbury's Laws of England, 4th ed. 1976, vol. 17, "Evidence", para. 262. V MorrisIM. I? Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, 1995, vol. 1, 313; For a detailed analysis see below C I. and 111.

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- It is well established in States of the common law tradition that the power to punish contempt of court does not depend on a specific legislative enactment9 but is considered to derive from an inherent power of the courts. f i s is demonstrated by the ha that the "Suggestions made by the Government of the United States for the'Rules of Procedure" assume that the International Tribunal possesses essentially similar inherent powers10. It is therefore not excluded that the Tribunal regards non-compliance with "rubpoenas" directed a p n s t a State to be a gound for its exercise of such an "inherent" contempt power beyond what has been expressly spelled out in the Rules of Procedure. - "Subpoena" is a latin term which, translated literally, means "under (threat of) punishment". Thus, at least terminologically, the expression "subpoena" is a rather coercive form of "request for assistance" or "order". Lawyers from common law jurisdictions may not sense this as clearly due to their familiarity with the term "subpoena" as a term of art. In an international setting, in particular among sovereign States, however, terminology is often not merely regarded as form but is taken to affect substance. It is therefore possible that the use of the term "subpoena" against. a State is a penalty (whose imposition would be reserved to the Security Council)".

O n the other hand, three other reasons militate against the assumption that the judge, by issuing the "subpoenas" in question, imposed or threatened to impose a penalty on Bosnia-Herzegovina and Croatia in case of non-compliance:

77 of its Rules of Evidence, the Tribunal has provided itself with a limited power to punish contempt. Rule 77,however, only applies to "witnesses" or other "persons". It therefore seems excluded that the Judge, by issuing a "mrubpoem" against the State of Croatia, implicitly asserted a power of the Tribunal to impose a penalty on a State for non-compliance. - The subpoenas in question do not contain a reference to a possible sanction to be imposed &y the Tribunalin case of an eventual non-compliance. This conforms to the practice in common law jurisdictions. In those countries, a writ of subpoena must not itself specify a possible sanction for non-compliance12 and must not even contain a reference to the possible exercise of the contempt power of the court13. - By adopting Rule

~ a l s b u r y ' sLaws of England, 4th ed. 1974, "Contempt", para. 87; Corpus Juris Secundum, vol. 17, "Contempt", 4 2. 'O Reprinted in: MorrisIScharf, supra note 8 , vol. 2, 521 ("inherent power of the court to punish contempt"). See below C. 111. l' SeeRules of the Supreme Court, (England) 1965, Appendix A (Forms) nos. 28-30. l3 See Rules of the Supreme Court, (England) 1965, Appendix A (Forms) nos. 28-30; Corpus Juris Secundum, vol. 47, "Witnesses", 4 21.

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Max Planck Yearbook of United Nations Law - Under French law, the equally authentic term "assi@zation",where

used in a contemporary criminal law context, does nor imply that the witness or expert who rehses to appear before the court may be punished by the same court for his or her non-appearance but only "by law" ("par la loi")14. Given this ambiguity it appears reasonable that, before addressing the question whether a judge or a Trial Chamber may issue a decision in the form of a "subpoena duces tecum" to a sovereign State, (111.) to first determine whether or to what extent a judge or a Trial Chamber may take a decision to impose a legally binding specific obligation on a sovereign State (11.).

11. T h e Dower of the Tribunal to take decisions imposin? le~allybindinp s ~ e c i fci obligations on a sovereign State Regardless of the exact meaning of the term "subpoena", such a decision can go no further than the power of the Tribunal under Art. 29 of the Statute to impose legally binding specific obligations on a sovereign State.

1. Duty of States to comply with orders taken by a single judge before the commencement of trial proceedings Art. 29 para. 2 of the Statute only provides for a duty of States to comply with requests for assistance or orders issued by a Trial Chamber. It does not explicitly mention requcsts or orders issued by a single judge. This does not mean, however, that States have no duty to comply with requests or orders of a single judge. Art. 19 of the Statute not only gives a single judge the power to issue orders but also speaks of him or her as "the judge of the Trial Chamber". It thereby indicates that the judge, when exercising his or her powers under Art. 19, is acting on behalf of the Trial Chamber. There is n c

l4

Cf. Art. 280 of the French Code of Military Procedure: B temoin doit en outre porter mention que la non-comparition "L'a~si~narion le refus de rkmoigner et le faux tkmoignage sont punis par la loi et que fautc par le temoin de se conformer ii I'assignation ii lui dklivrk, il pourra erre contrainr par la force publique et condamnk" The most common use of the term assignation in French law can be found i~ Art. 54 and 55 of the French Code of Civil Procedure according ro which "assignation" is defined as "l'acte d'huissier par lequel le demandeur cite son adversaire B comparaitre devant le juge". The (general) French Code o: Criminal Procedure does not use the term assignation but rather refers to citation. see Art. 550 and 55 1 of rhe French Code of Criminal Procedure.

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reason why States should have a lesser duty to comply with orders of a single judge. There is also no reason why the general duty to cooperate '.with the International Tribunal" under Art. 29 para. 1 of the Statute should not apply to decisions of the judge under Art. 19 of the Statute. It can neither be assumed that the Statute intended to attribute different legal effects to the same term "order" depending on the issuing organ since the collection of evidence before the commencement of the trial is as important as during the proceedings. Therefore, the specific duty of States to comply with requests and orders of a Trial Chamber under Art. 2 9 para. 2 also applies to decisions taken by a single judge on the basis of Art. 19 of the Statute.

2. T h e power to issue "orders" to sovereign States T h e "subpoenas" in question are addressed to States and they "direct" one of their officials "to ensure compliance" with its terms. By asserting a power "to direct" the judge primafacie appears to go beyond a mere "request for assistance" but to issue an "order". This raises the question whether the Tribunal may issue "orders" to sovereign States or whether it is limited to directing "requests for assistance" to States. a) Analysis of Art. 29 of the Statute O n its face, Art. 29 para. 2 of the Statute of the Tribunal clearly authorizes the Tribunal to issue not only "requests for assistance" but also "orders" with which "States shall comply". aa) Report of the Secretary-General Doubts as to whether "orders" may indeed be addressed to States arise, however, from the comment in the Secretary-General's report according to which, in addition to "ensure compliance" with requests of assistance, States shall (only) "give effect" to orders issued by the Trial Chambers15. The expression "give effect" suggests that such an order, as a general rule, is not addressed to the State itself but that the State is only lending its powers to make it effective. Art. 29 can therefore be interpreted in a way that the Tribunal may only demand the necessary cooperation of States by way of "requests for assistance" and that its "orders" can only be addressed to natural or legal persons other than States. States would then only have the task of "giving effect" to such orders.

l5

S/25704,3 May 1993 and CorrigendumS/25704/Corr.l, 30 July 1993, para. 125.


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bb) Traditional Forms of International Legal, Cooperation Such an interpretation would conform to the practice of States in the field of international legal cooperation. In numerous treaties on legal cooperation States have established duties ro cooperate. A specific duty to deliver persons or documents, however, arises only upon "requests (for assistance)" and not upon "orders"l6. CC)Drafts and Proposals for the Statute There are also clear indications that many States and experts participating in the draftinn of the Statute expected the cooperation between States and the International Tribunal to conform to the traditional forms of international legal assistance. Thus, for example, the Proposal of the CSCE-Rapporteurs for an International War Crimes Tribunal for the Former Yugoslavia expressly provided that "in general it should suffice to apply the system of legal assistance and co-operation which is applied benveen States today"". Along the same line most other drafis and proposals for the Statute use the term "assistance" when describing the form of the envisaged cooperation by States18. With respect to "orders" issued by the Tribunal those Drafts and Proposals only envisaged indirect obligations by States to "enf~rce"'~ or to " e ~ e c u t e them " ~ ~ or "to arrange compliance with the order or warrantnz1.They &d not explicitly refer to States being obliged to "comply" with "orders". dd) "Orders" to States There are, however, also arguments to the effect that the Tribunal may not only "request" States to cooperate but that it may also issue "orders" to them. Art. 19 para. 2 of the Statute speaks of "orders (...) for the surrender or transfer of persons". Such orders can only be directed to States. Similarly, in his report, the SecretqGeneral speaks of certain "orders issued by the Trial Chambers" whlch, by their very nature, can only be addressed to States, such as "warrants for surrender or transfer

'"~eee.~. Art. 1 (I) of the European Convention on Mutual Assistance in Criminal Matters, reprinted in: European Inter-Sate Co-operation in Criminal Matters - Collection ofTexts (Miiller/RappardIBassiouni eds), vol. 1, Dordrecht l987 (looseleaf), chap. 1, 1. l' Proposal for an International War Crimes Tribunal for the Former Yugoslavia, by Rapporteurs (Carrell-Tiirk-Thune) under the CSCE Moscow Human Dimension Mechanism to Bosnia-Herzegovina and Croatia, reprinted in MorrisIScharf, supra note 8, vol. 2, 262 - 263. l8 Ibid., vol. 2, France, 346; Italy, 378; USA, 454; Amnesty International, 424; Netherlands, 476. l9 Ibid., vol. 2, Organization of the Islamic Conference, 405. 20 Ibid., vol. 2, Russia, 446 f. " Ibid., vol. 2, USA, 530.

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of persons"22. Under municipal law the term "warrant" contains at least an order to the police to arrest the person against whom it is issued23.The drafting history of Security Council Resolution 827 demonstrates that States were conscious of the possibility that the Tribunal could also impose "orders" on them. In the debate following the adoption of Security Council Resolution 827 the representative of the United Kingdom said that domestic procedures would be needed "to give effect to the obligations under Art. 29 to comply with a request or order concerning the surrender or transfkr of an accused to the International Tribunal"24.This shows that the power of the Tribunal to issue orders to States was not, in principle, exduded. ee) T h e identical legal effect of "requests for assistance" and "orders" T h e uncertainty as to whether the Statute confers a general power to the Tribunal to issue orders should not divert attention from the fact that a "request for assistance" gives rise to a legally binding obligation. According to Art. 29 para. 2 of the Statute, States shall "comply" with requests for assistance. This obligation is for all practical purposes indistinguishable from the one created by an "order". Depending on the specificity of the terms of the request25 the State concerned has virtually no choice but to carry out exactly what is being demanded. This is particularly obvious in cases in which the State is in control of a particular person sought by the Tribunal. That "requests" possess the same legally binding nature as "orders" should not be surprising. It is well established that "requests" which are extended in the course of ordinary international legal cooperation in criminal matters between States give rise not just to an abstract duty to cooperate. Such requests also give rise to specific duties to surrender a person or to perform other acts, such as the delivery of documents, subject, however, to the conditions laid down in the applicable c o n ~ e n t i o n s ~ ~ . 22 23 24 25

Supranote15,parn125. See e.g. Halsbujs Laws of England, 4th ed. 1979, vol. 29 "Magistrates", para. 329. Reprinted in: MorrislScharf, supra notc 8, vol. 2, 190; emphasis added. For possible exceptions see below B. 111.3. Thus, in Art. I of the European Convention on Extradition the Contracting Parties "undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting parties are proceeding for an offence ...", reprinted in: European Inter-State Co-operation in Criminal Matters - Collection ofTexts (MiillerIRappardlBassiouni eds), vol. 1, Dordrecht 1987 (looseleaf), chap. 1, 1; even under this Convention,which constitutes the European minimum standard (Geoff Gilbert, Aspects of Extradition Law, 1995,20-2l),it is beyond doubt that a valid request gives rise to an obligation, under international law, of the requested State to surrender the person in question, see Jones, Jones on Extradition, 1995, 5-005, 129; Geoff Gilbert, Aspects of Extradition Law, 1995, 8.

360


The fact that "requests" made under treaties on international legal cooperation have not in practice been called "orders" - despite their giving rise to specific obligations of the requested State - has two explanations. However, neither reason is applicable in the context of the International Tribunal: - First, being conducted within a framework of cooperation between equals, it would appear inappropriate to call compliance by sovereign States with specific obligations arising from ordinary treaties on mutual legal assistance a compliance with "orders". The cooperation between the Tribunal and States, however, is based on Chapter VII of the United Nations Charter2'. - Second, treaties on international legal cooperation in criminal matters, in particular extradition treaties, provide for a number of possible grounds to refuse a request and reserve judgment as to whether such grounds are applicable to the requested State28.As long as the determination whether the specific obligation envisaged by the treaty has indeed arisen depends to a large extent on the judgment of the requested State, it makes very little sense to use the term "order"29. In contrast, the duty of a State to cooperate with the International Tribunal is qualified to a far lesser extent, if at all, by the right of that State to determine in the last resort whether an exception applies to it3'.

ff) Confirmation of the interpretation by the special character of the Tribunal States may have expected that the Tribunal, as a general rule, would issue orders only with respect to persons while it would deal with States by way of issuing "requests for assistance". This expectation could have been based on two assumptions: First, under general international law, States, as sovereign entities, cannot be "ordered" to cornply. Second, the term "order" may appear inappropriate where the demand in question is not specific enough to be immediately self-executing, as, for example, with respect to a request to arrest a suspect whose whereabouts are unknown. A closer inspection, however, reveals that these assumptions are not sufficient to justify a substantial legal distinction between the two terms under the Statute:

''

Report of the Secretary-General, s u p note 15, para. 126. See e.g. Art. 3 (1) of the European Convention on Extradition, reprinted in: European Inter-State Co-operation in Criminal Matters - Collection of Texts (MiillerlRappard/Bassiouni eds), vol. I, Dordrecht 1987 (looseleaf), chap. l , 2. 2Qutatis rnutandis Vogler, A~slieferun~srecht und Grundgesetz, 1970, 47-48. j0 For details see below B. 111. 2.

28

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- Since, according to the Repo:: of the Secretan-General. "m order by a Trial Chamber" has "to be considered to be an enforcement measure under Chapter 1/21of the Charter of the United I\;ationsn3', any order by the Tribunal must be taken as having originated from a body lvhich has the power to issue binding specific decisions or "orders" to a sovereign State. In addition, the term "order", even under municipal la~s;does not always require a high degree of specificin as to how to achieve the result demanded. - T h c contemporaneous use in the Statute of the terms "request for

assistance" and "order" can be explained by the Security Council blending different systems (or conceptions) to secure the effective functioning of the Tribunal. By using the "request for assistance" in t e r m i n o l o p the Security Council sought ro endow the Tribunal with the benefits of the traditional means of international legal cooperation. In addition, by giving the Tribunal the power to issue "orders", the Securin Council intended to endow the Tribunal with at least some of rhe usual powers of national criminal courts for the performance of their tasks. Since States can be both addressees of "requests for assistance" under treaties providing for international legal cooperation as well as addressees of court "orders" under municipal laws, it would seem possible that States can be addressees of both "requests for assistance" as well as "orders" emanating from the Tribunal. - Finally it should be taken into account that the creation of an International Criminal Tribunal on the basis of Chapter \?I of the United Nations Charter \vas a wholly unprecedented step ~ v h i c hwas effectuated under considerable time pressure. This explains ~ v h yseveral countries, in the course of the debate follo\ving the adoption of Resolution 827 remarked that a number of questions had not been addressed with sufficient clarity. T h e representative of Japan, for example, stated that "perhaps more intensive legal studies could have been undertaken o n various aspects of the Statute, such as ... measures t o establish a bridge ~ v i t hdomestic legal This history alone explains why rnuruallv overlapping concepts came to be incorporated into the Statute. T h e preceding analysis of the Statute reveals that the Tribunal does indeed possess the power to issue "orders" against sovereign States at least insofar "as may be required for the conducr of the trial" (Art. 19 para. 2 of the Statute).

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Reporr of rhe Secretary-General. m p m note 15. para. 126 hlorrisIScharf, snpm nore 8. vol. 2. 194.

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~MaxPlanck Yearbook of United Nations Law b) Analysis of national legislation implementing t h e duty t o cooperate with the Tribunal

Even if resolutions of the Securiry Council, such as the one incorporating the statute of the International Criminal Tribunal for the Former Yugoslavia, are not treaties in the sense of the Vienna Convention o n the Law ofTreaties, subsequent state practice implementing such resolutions is still one of the relevant factors to consider when interpreting such a resolution since the member states of the United Nations are indeed the primary addressees of such resolutions. This is even more true where - as in the present case - national implementation mechanisms form a necessary condition for the resolution to be effective and for the Tribunal to be h l l y operative. Indeed the Statute of the Tribunal itself presupposes such implementation33. Therefore it is relevant how the member states of the United Nations have implemented their obligations under Art. 29 of the Statute3* and whether they considered that they themselves might be the addressees of court orders. Most national laws implementing Art. 2 9 of t h e Statute d o not specifically address the issue whether the Tribunal may issue a legally binding order against a sovereign state. While some cooperation laws contain general clauses referring to the obligations of member states t o cooperate with the Tribunal under Art. 2 9 of the S t a t ~ t e only ~ ~ , some such statutes contain a specif;c clause, according t o which the respective state authorities are also under an international legal obligation deriving from the Statute of the Tribunal to forward files, copies of files or to grant permission t o inspect files3G.Therefore they seem to presuppose that the Tribunal may address an order against a sovereign state. O n the other hand, other laws refer only

See in particular Arr. 29 of the Sratute. As of 1996, 19 member srates of che United Nations and Switzerland had enacted

specific legislation ro cooperate with the International CriminalTribunal for the Former Yugoslavia. See e.g. Art. 2 of the Belgian Law on the Recognition of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda and cooperarion wirh these Tribunals (Moniteur Belge of 27 April 1997) referring generally ro [he obligarions under Security Council Resolution 827 (1993) and Arr. 1 of [he Danish Act on Criminal Proceedings before the Inrernarional Tribunal for rhe Prosecution of persons responsible for War Crimes committed in [he Terrirory of Former Yugoslavia ("in accordance wirh L. .] saki Statute and Rules of Procedure and Evidence.") A provision which would e n d [he obiigacion ro forward government documents is e.g. conrained in Sect. 12 para. 1 of the Austrian Federal Law on Cooperation wlrh [he Inrernarional Tribunals, Osterreichisches Bundesgeseablatt 1996, No. 263, 2237 er seq.

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generally to documents to be pro\-ided to the Tribunal and leave it open w h e t h e r t h e provision in question solely refers t o private d o c u m e n t s o r whether its scope of application extends to files belonging to state authoritiesi-. Under these circumstances, thi. national cooperation laws cannot be interpreted as expressing a general principle prohibiting "orders" to be directly addressed to sovereign states. c) Analysis of similar provisions contained in other international instruments Given the fact that the International Criminal Tribunal for the Former Yugoslavia has been created by a binding Security Council resolution under Chapter V11 of the Charter of the United Nations, it is obvious that the Tribunal may have been vested ~ v i t hsignificantly broader powers than those which are traditionally exercised by international tribunals. Still, for the following reasons, the practice of such courts and tribunals can be of relevance when analysing the competences o f t h e Tribunal. As a starting point, it is safe to say that the Tribunal, established to enforce a binding Security Council resolution adopted for the maintenance of international peace and security cannot be assumed to be vested with fewer powers than those normally inherent in other international courts and tribunals. However, if the Security Council wanted to depart from limitations normally inherent in the judicial function of international tribunals, there must be some indication of its ~ v i to l d o so. aa) International C o u r t of Justice According to Art. 49 of the Statute of the International Court of Justice, thc Court may call upon the agents ("demander aux agents")38 to produce any document or to supply any explanations. This s r a t u t o v power of the Court to request the parties to produce evidence is nlirrored in the Rules of the C o u r t , which stipulate that t h e C o u r t may request t h e parties t o call witnesses ("peut inviter les parties") or callfir the production of any other evidence ("demander la production de tous autres moyens d e preuve"). bb) Court of Justice of the European Communities T h e relevant provisions of the three protocols of the Statute of the Court of

js

See e.g. , h r . 7. para. ? of [he liustralian Inrernarional War Crimes Tribunal Act and rhe International \Var Crimes (Consequential Amendmenrs) .Act, adoprcd 2 ~ tAugust 1995 and Sect. 21 of [he New Zealand Inrernationd War Cr~rnes Tribunal Acr 1995. Emphasis added.

Max Planck Yearbook of United Nations Law Justice of the European Coal and Steel Community the European Community and the European Atomic Energy Community provide that the Court may not only require the parties, their representatives or agents but also the governments of the member states to produce all documents and to supply all information which the Court considers necessary or desirable39. cc) European Commission and European Court of Human Rights Under h.28 lit. a of the European Convention on Human hghts, in the event the European Commission of Human Rights accepts a petition referred to it, it shall undertake an investigation and the States concerned shall k n i s h all necessary facilities for the effective conduct of that investigation.T h ~obligation s provides for a formal obligation of the States concerned not to obstntn the work of the Commission and to make all arrangements necessary for an effective investigation.This includes ~ ~ , spethe duty to make all necessary documents available to the C o r n m i s s i ~ nThis cific power ofthe Commission to request evidentiary material from the parties is also enshrined in h.53 para. 2 of its Rules of Procedure under which it may invite the parties to submit firther evidence and observation^^^. This power of the European Commission of Human Rights has also been - if only indirectly - confirmed by the European Court of Human Rights. When the Commission pointed out in its report in the case of the Republic of Ireland against the United Kingdom that the government of the United Kingdom had not always afforded it the desired assistance, the Court, in its judgment, regretted this attitude and stressed the "hdamental importance of the principle, enshrined in Article 28, sub-paragraph (a) in fine, that the Contracting States have a duty to cooperate with the Convention institution^"^^. dd) Iran-U.S. Claims Tribunal !.inder .h. 24 para.

3 of the UNClTRAL Rules governing the procedure of

See Art. 21 of the Statute of the Court of Justice of the European Community Art. 24 of the Statute of the Court of Justice of the European Community of Coal and Steel and finally Art. 22 of the Stature of the Court of Justice of EURATOM. In some cases specific documents have been requested by the Commission and States have accordingly produced the requested documents. Similarly, the Inter-American Court of Human Righu may also order a party before it to produce specific documents but lacks the power to compel its orders, see T. Buergenthal, Judicial Fact-Finding: Inter-American Human Rights Court, in: R. Lillich (ed.), Fact-Finding before International Tribunals (1992), 261 et seq. (266). Ireland v. United Kingdom, Judgment of 18 January 1978, ser. A, No. 25, 60, para. 148 (emphasis added).

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the Iran-U.S.-Claims Tribunal, "the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within such a period of time as the tribunal shall determine". The ha::-U.S. Claims Tribunal has on several occasions not only ordered submission of evidence o n jurisdictional issues but has also ordered the submission of documentan evidence that it considered necessary to a just determination of the merits of the case43. In addition, the tinvnux pr+nmtoires to the L X C I T R I L Rules demonstrate that this obligation to evidence is not limited to requiring a party to support its own claim or defence w i h evidencei-' but extends to further documentation. ee) ILC Draf? Statute for an International Criminal Court and work of the Preparatory Conlnlittee on the Establishment of an International Criminal Court T h e International Lay Commission's drafi statute for an International Criminal Court'j contains in its Art. j1 a provision which is similar to Art. 29 of the Statute of the International Tribunal for the Former Yugoslavia by ~ i s oproviding for the cooperation of States in the production of e ~ i d e n c e * ~ . Gnlike the Statute of the International Tribunal for the Former Yugoslavia the ILC drak statute does not, ho\~ever,mention "orders" to be issued by the Court as one of the forms of requesting assistance from States but instead only generally refers to requests for cooperation and judicial assistance4'.

See inrer iz/ii7 Order of January 15. 1986 in Hoshang Mostofizadeh and Gmwnrnenr of the Islamic Republic of Iran, Yational Iranian Oil Company, Case K o . 278, Chamber Two; Order of Ocrober 19, 1983 in Konstantine .\. Gionoplus and Islamic Republic of Iran. Case No. 314, Chamber One) (ordering Inter a l i ~the respondent governrnrnr to file copies of certain financial statements filed with the Minisrry of Finance); Order of November 19, 1982 in The Gillerre Company er al. and Iran. Case N . 139, Chamber Three (ordering inter alia, borh parties to submir evidence of amount of alleged rovalries due); for furrher derails see K. Holtzmann, Fact-Finding by the Iran-Lnired Srates Claims Tribunal. in: R. Liliich (ed.), Fact-Finding before International Tribunals (1 992), 101 et seq. (10: note 21). For a detailed descriprion ofrhe drafting h i s t o n in this regard see S. Baker1 M. Davis, T h e U N C I T M Arbitration Rules in Practice (1993), 112- 113. Report of the ILC of irs 46th Sess., UN Doc. M491355 (1994), 3 et seq. . h r . 51 para. 2 lit. b) Drafr Srature. by h e ILC working group on a drafc statute for an The original International Criminai Court (k'bILC 1993, vol. IIi2, 100 etseq.) had followed even more closely the model of h e Srarure of the International Tribunal for the Former Yugoslavia, by including in Art. 58 para. 2 of the drafc as it srood at the time both requesrs for judicial xisrance and orders to be issued by h e Court, ibid, 127-128.

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T h u s it might be inferred that Art. 29 of the Statute of the International Tribunal for the Former Yugoslavia is somewhat broader, since otherwise the reference to "orders" in Art. 2 9 of the Statute would be redundant. However, even under the ILC draft, arguably States would be under a general obligation to respond without undue delay to requests of the future court for cooperation and judicial assistance, including requests for the "production of evidence". Given the structure of the ILC draft starute it can be argued that a request for the "production of evidence" encompasses the production of documents which are in the possession of a State. Otherwise the fact that the ILC draft statute distinguishes between the "production of evidence" as referred to in its Art. 51 and the "seizure of documents or other evidence" (Art. 52 para. 1 lit. (b)). which only refers to documents which are in possession of an individual. could not be explained. T h e work of the Preparatory Committee on the Establishment of an International Criminal C o ~ r t * has ~ , not yet specificall) focused o n questions of judicial cooperation and murual legal assistance. Still. certain questions in this context have already been addressed, albeit in a more general way. T h u s at one point, when dealing with the different categorie: of assistance to be provided by the contracting parries to the future statute. some delegations proposed to include in the obligation to produce document: the duty to also produce documents of governmental bodies or records of government49. ff) hrbitral tribunals In some cases arbitral tribunals have indeed been given the authority, either upon their own motion, or at the request of the parries, to call upon the p a n i c themselves, i.e. their ministries of foreign affairs, for the communication tc the tribunal of certain specified papers or of all papers relevant to a giver. case or to the proceedings50. This survey demonstrates that international courts a n d tribunals are normally empowered to issue legally binding requests under which States are under an obligation ro produce certain documents. Given the specificiry o; 48

" j0

See GA Res. 50146 of l l December 1995. Lnired Sations, Report of the Prepararory Committee on [he Esrablishmenof an International Criminal Courr, vol. I1 (compilarion of proposals), GAOK 5 1 s Sess., Suppl. S o . 22A (Nj1122), 252 and 253 note 94. This includes inter aiia rhe US-Mexican Claims Commission, [he US-Peruviar. Mixed Claims Commission, the US-French Mixed Claims Commission anc. finally the French-Mexican Claims Commission. For derails as co the respectivt rribunds see D. Sandifer, Evidence before InternarionalTribunals (2nd ed., 1975). 157-1 j8.See also h r . 21 para. 3 of the Model Draft Rules on hrbitral Procedurt adopred by [he International Law Commission, YbILC 1958, 14.

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t h e stature and rules of procedure of the given court or t r i b u n d . hone1.e~. such requests only rarely rake the form of "orders" such as in the case of the Iran-U.S. Claims T r i b ~ ~ n a l .

111. Limits of the Doner of the Tribunal to issue orders against a S u t e T h e fact that a judge or a Trial chamber each has a general poxver to issue "orders" against 'I State does not mean that this power is unliniited. T h e issue o f where exacrly such possible limits lie has n o t been explicitly addressed by the questions put by the 1~1dge.Since, o n t h e other hand. the judge has asked ~zmirito address "an>- other issue concerning this marter" a n d since [he Government o f c r o a t i a , in irs "Reply t o szlbpoe?~nd r ~ e stecuni of 10 Febrilary 1997 has insisted that "any issued documenr of the Trib~inal (...) must be specific" and that it "reser\.es the right t o observe t1.e interests o f its national security when assisting the Tribunal" the undersigned t A e [he liber? of addressing the following issues concerning the limits of the po\ver o f the Tribunal to issue orders t o sovereign Sr,ires.

1 . General Remarks T h e poxver of [he Tribunal ro issue orders t o sovereign Stares is neither unlimited nor can it narrow or override the margin given to Stares to dererm i n e how t o comply ~ v i t ha "request for assistanci." o r a n "order". National cooperation laws, for example, provide for the possibiliq. o f national courts to verifi the idenriry of a suspect before delivering h i m or her ro [he Tribunal. Sureli- the Tribunal could not, by \vay of a n order directed to a Stare, exclude or restrict this possibilin. It is true that Stares cannot unilare r ' + - , by enacting cooperation statutes, limit the poxvers of the Tribunal to issue orders. Those statutes, ho~vever,can be taken to reflect the consensus o f States as to the interpretation of the Statute of t h e Tribunali'. ;\nother possible source for limits placed o n the poiver of the Tribunal t o issue orders are general legal principles. Such general principles can be derived both from inrernational human rights s r a n d x d s as \\.ell ,is from ,I comparative analysis of national 1a~r.so n criminal procedure. Finally. orher internari~n~ instruments ~l can provide indications as to possible limits o f t h e polrer of the Tribunal to issue orders. i n [he present contest nvo issues arise Lvhich concern the limits of the power of the Tribunal to issue orders against States: first, \rherher the Tribunal has [he polver to compel Stares to produce documents which are confidential;

"

See

B. 11. 2. b

~ ~ O V C

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(see 2.); and second, whether the 'liibunal must respect any requirements as t o the specificity o f a n order to produce documents (see 3.).

2. Protection o f confidential information Neither the Statute nor the Rules of Procedure of the Tribunal address the question whether States have a right to refuse the production of documents or the release of information o n the ground of confrdenrialiry. It is therefore necessary to go back t o statements of opinio iuris by individual States, in to their cooperation statutes, as well as to the practice of other international organs. a) Statements b y Srates T h e protection of confidcntial Statc information is neither raised in thc Secretary-General's report nor was ir disct~ssedin the debate in rhe Securiry Council following the adoption of Resolution 827. T h e same is true for the Proposals of States and Organizations for the Starlire of the International 'liibunal5< 'l'he issue was only exceptionally raised by the Proposals of States and Organizations for the Rules of Procedurcs and Evidcncc o f thc International Tribunal5-'. T h e most notable exception is the proposal by the Government of the United States of America which disting~~isllcd bcnvccn thc gcncral qucstion o f obtaining evidence in the control of the Statei4 and the . specific question o f the disclosure of Statc national security informat i ~ n ' ~Already . as t o the general question the United States presupposed a right of a State CO withhold information "if a Statc dctcrrnines that its domcstic law o r other essential interest prohibits the production o f t h e evidence sought"56. I n its proposed rule concerning national security information thc Unitcd States envisages in camera proceedings for the inspection of certain information a n d a d u t y of the Tribunal not t o disclose information

Keprinted in: MorrisIScharf, supra note 8, vol. 2, 209-480. Iieprinted in: MorrisIScharf, supra note 8, vol. 2, 481-636. Reprinred in: MorrislScharf, supra note 8, vol. 2, 535: Rule 17.7.: "Production of evidence in rhe corltrol of a Starc. htticr party may rrlovc Gclorc [hr. Trial Chamber to issuc a requesc to a Scare for legal assistance for rhe purpose uf obtaining evidcncc whictr is in conrrol OF that Starc. The hilure of a State to produce the evdence soughr shall not require d~srnissdlof chdrgcs Or he postponcmcnt of proceedings except in extraordinary circumsrances". Ibid., vol. 2, 523: Rule 8.2. Disclusure (A) Stare ~larionalsecurity informarion. Statc national security informxion cannot be discloscd to the public w i t h o ~ ~ t [he prior approval and cons?nr of that Stare. Ibid. vol. 2, 535.

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to the public without prior approval and consent of the State concerned5'. This rule, however, presupposes the general rule that the State has the right in the first place to withhold information under its control. It appears that theTribunal has not followed the proposal of the United States to introduce into the Tribunal's Rules of Procedure a rule concerning confidential information "since the States directly involved in the Yugoslav conflict are the ones that would be most likely to invoke such a provision, thereby undermining the effectiveness of the International Tribunal"j8. This might suggest that the Tribunal is itself of the opinion that States have no right to refuse the production of evidence under its control on the ground of nationa1 security or other essential interests. It is, however, also possible that the Tribunal merely did not want to "invite" the invocation of such an excuse by non-cooperative States. In sum, it foHows that there are few indications in the statements of States which appear conclusive in one or the other direction. b) Analysis of national legislation implementing the duty to cooperate with the Tribunals5' Several countries have included in their national cooperation laws provisionsh0 according to which the disclosure of confidential information is barred. In the case of Australia and New Zealand any such production of documents which would endanger the sovereignty, security or national interest of the State6' is excluded. The Austrian law provides that any material the disclosure of which would endanger the Austrian national security or other interests protected by Ibid. vol. 2, 522; 1" its commenrary ro this provision rhe United Srares remarked: "Information provided to the International Tribunal by a Stare, which the Srace believes necessary to prorecr as a marter of narional securiry, ordrepublic or other essential inrerest, may initially be reviewed by the Trial Chamber in closed proceedings or in camera. If the Trial Chamber determines the information is relevant, it should norify the Srare of the acrion it intends ro rake which may result in disclosure of the information to the accused or the public, ibid., 523. MorrisIScharf, ibid., vol. 1, 194. As to the relevance of national laws implementing the obligarion to cooperare with rhe Inrernarional Criminal Tribunal for rhe Former Yugoslavia under Art. 29 of its srature see 2. b above B. 11. Furthermore some other laws contain general references ro [he respective acts providing for legal assisrance ro other states in criminal matters (see e.g. Sect. 6 of the Finnish Act on rhe jurisdiction of the Inrernarional Tribunal for the prosecution of persons responsible for crimes comrnirred in the rerritory of the former Yugoslavia and on legal assistance to the Internarional Tribunal), which normally also contain similar limirations. Seesect. 26 (3) of the 1995 Australian Inrernarional War CrimesTribunals Act and Sect. 57 lir. (a) of the New Zealand War Crimes Tribunal Act of 1995, respectively.

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special s e c u r q provisions62 shall as a general rule not be forwarded to the Tribunal. Austria has, however, in its cooperation law provided for a special procedure under which it would, prior to any refusal to cooperate with the Tribunal, seek an assurance bp the Tribunal that such confidential information, if transmitted, would be kept secret6j. T h e fact that some States have thought it necessary to include in their legislation national security exceptions while other countries provide that any assistance should only rake place in accordance with their respective municipial law64 demonstrates that States have taken the view that the competence of the Tribunal with respect to the inspection of State documents is implicitly limited by considerat~onsof essential state interests. c) Analysis of similar provisions contained in other international instruments The question whether issues of national security can limit the power of international tribunals to request evidence has come up frequently in proceedings before international organs. During the proceedings of the United StatesGerman Mixed Claims Commission in the so-called Sabotage cases6S,the German Agent requested leave to inspect certain files of the U.S. Department of Justice. T h e Umpire denied the request by stating that it is "obvious that the Commission has no power to call on either government to produce from its confidential files what, for reasons of state, it considers to be detrimental to its interests to produce"66. However, before announcing the decision, the umpire stated that he had been able to look through the files himself and verify whether the files under consideration were indeed of the character claimed by the United States Thus, defacto, the independent member of the tribunal was not denied access to the conf dential documents under consideration. In the Corfi Channet case before the International Court of Justice the United Kingdom relied on reasons of naval secrecy in order not to produce

"

See Sect. 12 para. 2 and 3 of the Austrian Federal Law on Cooperation with the Inrernarional Tribunals. " Ibid. See e.g. Arc. 9 of the Belgium "Loi relative h la reconnaissance d u Tribunal inrernarional pour I'ex-Yougoslavie er d u Tribunal incernarional pour le Rwanda, er 12 coopiration avec ces rribunaux", Moniceur Belge 1996, 10260. For details see D. Sandifer, Evidence before International Tribunals (1st ed.. 1939), 26 5-267. 66 Tex; ofthe statement of the umpire to he found in Sandifer, ibid. " Tlianscripr of mee[ing of the Commission, 24 May, 1938, vol. XI, 32; to be also found in Sandifer, supra note 50, 266-267.

"

"

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certain documents the Court had requestedGY\vithout being challenged o n that ground by the Court's decision. As to the practice of the European C o u r t of Justice mention may be m:>de of a case involving documents originating from the government of R ~ a n d a where ~ ~ , the Court of Justice acknowledged the legitimate interest of the Commission to maintain the confidentiality of these cornmunications. Furthermore, in case 1 10175-0 the defendant had initially refused to comply with a request issued by the C o u r t t o produce a certain document o n the ground that it was confidential but later relented. In an earlier case-', in which the intervener refused to a document o n the ground that it \vas confidential, the C o u r t took-note of this hesitation and did not order production but instead rejected the inten-ener's arguments for lack of proof. There is also extensive practice by international administrative tribunals which have significantly limited the possibiliy of international organizations to withhold documents for reasonb of confidentiality In particular, there have been several cases decided by the Administrative Tribunal of the International Labour Organization, ordering the organization to make confidential files available only to the tribunal n i t h o u r conlnlunicaring-. the information to the applicant-'. In the Ballo case ' the tribunal took cognizance of such documents in camera and, after having noted that the d o c u n ~ e n t swere indeed o f 2 confidential character. decided not to transmit the documents to the applicant but instead informed him of the conclusions it had draxvn from them-'. In the .LIrIntire case, decided by the same administrative tribunal, the respondent had refused to disclose a letter asserting that its content was confidential and because it came from the government of a sovereign state and that its production ~ v o u l dtherefore violate ICJ Rep. 1949. 32. Spie-Batipzol/es U. Commission ( l 9%)). ECK I- 19-. order of 16 December 1987. pard. 16-17; for an analysis sec. K. Lasok. The European Courc of Juscicc - Practice and Procedure (2nd. Ed. 1994), 384. 1Mi1L.cv European inz~eitmentBank. (197'6) ECR 16 13 et seq. r i z pECR 53 etieq. (85). Joined cases 42 and 49/59, S'WJPATy. h ' i ' ~ ~ ~ ~ ~ t h(1n961) For a sur\-e)-of such decisions see C. 'herasinshe, Problems of Evidence before Inrernarional Xdminisrrative Tribunals, in: R. Lillich (ed.), Fact-Finding before Inrernacional Tribunals (1992), 205 etreq. (214 etseq. ) . ILOAT Judgment S o . 191 (UNESCO); for derails ieeAmerasinghe, jupra nore 71,214-215. Similar decisions were rendered by chs Adminisrrarive Tribunal of the Inrernarional Labour Organization i n ll.lobna, ILO-AT Judgmenr No. 440 (1980) ( W O ) ; Ali Khan, ILOAT Judgment No. 556 (1983) (ILO), as well as by rhe World Rank .-\dminisrrarive Tribunal in Jzjsai, O d e r (19901, WEr\T Rep. 1990; for derails as ro the respective decisions tee limerasinghe, supnz note 72, 215-?l1.

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diplomatic usage7', Notwithstanding, the tribunal still found that withholding the information would prejudice the legally protected interests of thc complainant and of ju~tice'~. Finally, as co the ILC Drafc Scatute for a n International Criminal Court and the work of the Preparatory Committee o n the Establishment of an International Criminal Court, while the ILC draft does not address the possible limits as to the obligation of judicial assistance, the very same question whether national security interests should constitute a valid exception was discussed amid controversy7' during the preliminary work o f the Preparatory Committee o n rhc Establishment of an International Criminal Court without any conclusive result having yet been reached. d) National laws T h e indications in favour of a privilege for confidential information whick derives from the national cooperation laws and from the practice of other international tribunals are confirmed by the rules of domestic law in several countries. In the United States, for example, the Supreme Court has recognized privilege for "military matters" whose assertion by the government the c o u m cannot or will not review7*. In the Unired Kingdom, the House of Lords. ;I

7i

77

Amerasinghe, sup7.a note 72, 2 18. Ibid. See United Nations, Report of the Preparatory Committee on thi~ Establishment of an International Criminal Court, vol. I (Proceedmgs of thi Preparatory Committee durlng March-April and August 1996), GAOR 51sSess., Suppl. No. 22A (AI5 1/22), 69-70. For a detailed proposal in rhis regard see Un~ted Nations, Report of the Preparatory Committee on th Establishmenr of an International Criminal Court, vol. I1 (compilation of prc~osals),GAOR 51st Sess., Suppl. No. 22A (A/51/22), 255. "It may be possible to satisfy the court, from all the circumstances of the casc. that there is a reasonable danger that compulsion of the evidence will expose miiitary matters which, in the inreresrs of military security, should nor be divulgeti. When rhis is the case, the occasion for the privilege is appropriate, and the cow: should not jeopardize the security which the privilege is meant to protect bb insisting upon an examination of the evidence, even by the judge alone in chambers." United Stales v. Reynolds, 345 U.S. 1 at 10 (1952); approvingly quoted i l United States v. Nixon, 418 U.S. 683 at 71 1; in the Nixon case the Suprem Court may even have extended this privilege when it said that "absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we fincl . . it difficult to accept the argument that even the very important interest in c o d dentiality of Presidential communications is significantly diminished by the plc:ducrion of such material for in camcra inspccrivn wirh all rhe protection that i district court will be obliged to provide."

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although it has considerably narrowed the traditionally wide "Crown privilegen, has not gone so far as to question the privilege of the executive to determine that certain particular documents (as opposed to whole classes of documents) should not be divulged79.Under sect. 96 of the German Law on Criminal Procedure a criminal court may not order the production of documents if the highest governmental authority of either the Federal Republic itself or of one of its constituent States declares that the disclosure of the document would seriously endanger its interests8? It appears that similar rules exist in other States as well. e) Conclusion It appears not only from national legislation but also from international practice that States take the existence of a State secrets privilege for granted. It therefore cannot be assumed thar the Security Council, when enacting the Statute of the International Tribunal, intended to subject all State documents to disclosure no matter what their security irriporrance may be. Therefore the most important question in this context is whether and, if so, how far a State that invokes the privilege must substantiate that the documents ordered released actually raise significant security issues. It would seem that the divulgence of files from a Ministry of Defence which relate to specific activities of certain army unit-s which have taken place more than three years before the order was issued cannot, as a general rule, be regarded as affecting national security interests. It is, however, not excluded, that these files indeed contain sensitive information related to the communications structure, logistics or material of a particular army. Should the issue arise, conflicting positions might be brought into harmony by way of an in camera inspection by the judge or a Trial Chamber.

3. Specificiry of request Given the wide range of documents the Government of Croatia is ordered

"However wide the power of the court may be held to be, cases would be very rare in which it could be proper to quescion the view of the responsible Minister thar it would be contrary to the public interest to make public the contents of a particular document", Conway v. kmmer (1968)All E.R 874, at 882; this decision was confirmed in Burmah Oil v. Bank of England (1979) 2 All E.R. 461, at 468: "Now I can understand that privilege in regard to high questions ofstate policy, such as those dealing with foreign affairs or the defence or the security of the realm. But I do not think it should extend co commercial transactions (...)", per Lord Denning, M.R There is no such limit to the powers of the German Constitutional court, however, see Sect. 26 para. 2 of the Federal Law on the German Constitutional Court under which the Court itself can by a two-thirds majority decide not to request documents relating to the security of the Federal Republic of Germany.

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the q ~ ~ e s t i oarises n whether another limitation on the power of to the Tribunal to issue orders consists in a requirement to specifically designate the documents sought and to substantiate their relevance for the proceeding. a) Analysis of the Statute Neither the Statute nor the Rules of Procedure of the Tribunal addresses the question whether the Tribunal must conform to any requirements to specifically designate those documents which it orders States to produce. Art. 19 para. 2 of the Statute, however, gives the judge the power to issue only such orders as may be "required for the conduct of the trial. What this means was neither raised in the Secretary-General's report nor was it discussed in the debate in the Security Council following the adoption of Resolution 827. The same is true for the Proposals of States and Organizations for the Statute of the International Tribuna181. That the whole issue was practically not debated, however, is not surprising given the fact that it was nor ever. clearly established that the Tribunal would have a power to issue suck "orders" to States. In addition, if it is correct to assume that Srates have right to withhold information in their possession on grounds of nationa! security or "essential interest" the question of a requirement of specificir), becomes to a considerable extent moot. O n the other hand, the object and purpose of the establishn~entof the International Tribunal militate in favoulof a broad power to order the production of documents if this is necessav for its effective functioning. b) National laws on criminal procedure Important indications for possible inherent limits of rhe power of the Tribunai to order the production of documents which are under the control of a Statc are provided by national legal systems. Since the designation of the order ir question ("rubpoena ducer tecum") is taken from countries of the common lav, tradition, the rules applicable to such orders as they exist in those States are particularly instructive here. In those countries it is well established that it is not the object of the writ to require the production of books and papers merely for the party's inspection, and the subpoena is not to be used as a bill of discovery The writ may not be issued for a mere "fishing-expedition. A plaintiff is not entitled t o have brought in a mass of books and papers in order that he may search them through to gather evidence82.

'' ''

Reprinted in: MorrisIScharf, supra note 8, vol. 2, 209-480. American Jurisprudence, 2d ed. 1981, "Witnesses", 4 14.

Document I c) Analysis of similar provisions contained in other international instruments Those international courts and tribunals which have exercised their power to order parties to produce documents have also limited their requests with respect to the broadness of their requests. In this context one might refer, inter alia, to the practice of the Iran-U.S. Claims Tribunal, which - while exercising its power to ask for the production of documents under Art. 24 para. 3 of the UNCITRAL Ruless3 - was generally reluctant to order production of documents if the requesting party could not describe the desired documents specifically, or if the requesting party did not satis6 the tribunal that it had taken all possible steps to locate the documents itselP4. But even in those cases where the requesting party could satisfy these conditions the Iran-U.S. Claims Tribunal still exercised its discretion to deny any request it did not consider to be justifieds5. Thus it might be said that the standard applied by the Iran-U.S. Claims Tribunal is significantly narrower than the "all relevant information" standard usually employed by U.S. federal courts . . in municipal litigations6. As to the practice of the European Court of Justice, orders for the production of documents have sometimes been framed in rather broad terms. In Cases T- 160 and T-161 / 8 P 7 , the defendant was ordered to produce all documents relating to the act in cpestions8. However, in Case C - 2 0 1 1 8 6 ~it~ was held that the Court will not order the production by a party of documents drawn up by third parties90. In particular, the Court held that the Commission could not be required to disclose official correspondence in its possession emanating from Rwandan authorities. For details see above B. 11. 2. c. dd. See Baker1 Davis, supra note 44, 113 and e.g. Order of 6 October 1983 in MCA Inc. v. Iran, case No. 768 (denying production request where documents were not specified and alternative efforts at locating them not explained). See e.g. PepsiCo Inc. v. Iran, 13 Iran-U.S. C.T.R. 3, 16-17 (1986), where the court based ics denial on the fact that ic believed that it could arrive at its conclusions without referring to the requested documents. Baker/ Davis, supra note 44, 113. Kalavross v. Court ofjustice, (1990) ECR 11-871, para. 14-15. See also Art. 23 of the Statute of [he Court of Justice of the European Community of Coal and Steel under which, in a siruacion where proceedings are instituted against a decision of one of the institutions of the Comrnuniry, chat institution shall transmit CO the Court all the documents relating to the case before the Court (emphasis added). Spre-Batignolles v. Commission (1 99O), ECR I- 197, order of 1G December 1987, para. 16-17. For a detailed analysis of this decision see Lasok, supra note 69, 386.

Max Planck Yearbook of United Nations Law d) Conclusion Both national laws and international practice strongly militate in favour of a requirement that the order musr specifically designate the documents sought by the Tribunal and that the Prosecutor may not use the powers of the Tribunal to conduct "fishing expeditions". Since the undersigned only have limited access to the files of the case giving rise to the questions of the Judge, they are not in a position to give a definite assessment whether any of the demands at issue are too broad under this principle. O n their face, however, and unless they are supported by more spccific gounds which can be derived from other documents, the demands contained in VI., X. and XI. of the "subpoena duces tenrm" against Croatia of l 5 January 1997 appear to be unusually comprehensive.

IV. May orders apainst a Spate be issued in the form of a "sub~oennduce~terzrrn"? It has been shown that the Tribunal has the general power, subject to certain limitations, to issue orders against a State. To designate orders against States for the production of documents 'hbpoena duces t e a m " , however, raises the two concerns mentioned in the introduction9', i.e. first whether the term "subpoena", because of its punitive literal meaning, should be considered to be a form of sanction which the Tribunal has no power to impose (infra 1.) and, second, whether the use of this term implies the assertion by the Tribunal of a power to punish a State for contempt of court in case of non-compliance with the "subpoeru" (infra 2.).

1. Use of the term "subpoena" as a sanction in itself It is true that the term "nrbpoem",if taken literally, suggests a power of the Tribunal to declare a State to be liable to punishment for non-compliance. Such an irnpression can generate considerable additional pressure on the State to comply by putting it into the uncomfortable public position ofbeing officially accused of conduct comparable to that of a "contumaciously" (Rule 77 of the Rules of Procedure) recalcitrant witness. O n the other hand, it should be taken into account h a t the term ''subpoem" is a term which is routinely used in a large number of States tc denote a court order demanding the attendance ofwitnesses or the production ofdocuments. If the expression as such can give rise to misunderstandings h s can be remedied by a clear pronunciation of the Tribunal that the term "subpoem" do= not, in law, imply or envisage an inappropriate punitive effect.

"

See supra B.I.2.

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2. Implied assertion by theTribunal ofa power to punish a State for contempt? The issuance of a "subpoena dtlces tecum" raises the additional concern that the Tribunal is thereby implicitly asserting a power to punish a State for contempt in case of non-compliance. In the States of the common law tradition - from which the term subpoena is taken - the power to issue a subpoena is closely linked to the power of a court to punish addressees in case of non-compliance for contempt of court9*.Whether the Tribunal actually has any power of its own to impose sanctions upon a sovereign State for non-compliance with one of its orders is, however, addressed by the second question. A final answer to the first question cannot, therefore, be given without responding to the second question.

C. What are tfie appropriate remedies to be taken if there is noncompliance by a s m & Strrteofa"sutrpoenaducestanmt'or quest i d bya judge or a Trial Chamberof tfie InternationalGiminai'Eibunal fbr the FormerYugoslavia?

I. Analysis of Art. 29 of the Statute and of the Rules of Procedure l . Art. 29 of the Statute

The wording of Art. 29 of the Statute does not contain any indication as to the consequences of non-compliance with a request or order of the Tribunal. It only states an obligation to comply without providing for possible sanctions in case of failure to do so. Therefore, it is necessary to consider the origin of the obligation of States to cooperate and provide assistance to the Tribunal, which is rooted in the fact that the Tribunal was established by a decision of the Security Council under Chapter VII. Such a decision creates a binding obligation for all States according to Art. 2 para. 5 and Art. 25 of the Charter. This has been explicitly reiterated by the Secretary General in his report93.

'* See above B.I.

93

Secrerary-General's Report, paras. 125 and 126:

"hpointed out ...,the establishmentof the InternationalTribunalon the basis of a Chapter VII decision creates a binding obligation on all States to take whatever steps are required to implement the decision. In practical terms, this means that all Stateswould be under an obligation to cooperatewith the InternationalTribunal and to assist it in all stages of the proceedings to ensure compliance with requests for assistance in the gathering of evidence, hearing of wimeses, suspects and expens, identification and location of persons and the service of documents. Mect shall also be given to orders bued by theTrid Chambers,such as warrants of arrest, search warrants, warrants for surrender or of persons, and any other orders necessary for the conduct of the trial. In this connection, an o&r by the Trial Chamber for the surrender or uansfer of persons to the custody of the InternationalTribunal shall be considered to be the application of an enforcement measure under Chapter VII of the Chaner of the United Nations".

378


The fact that the obligation to cooperate results from a decision of the Security Council under Chapter V11 may be interpreted in the way that it is only the Security Council itself which has to decide on the consequences to be drawn from any non-compliance".

2. Rules of Procedure and Evidence The Rules of Procedure of the Tribunal d o not contain any . -provision concerning non-compliance with a request or an order of the Tribunal issued undcr Rulc 54 to a State concerning the production of documents. Even where the Rules contain a provision concerning failure to execute an ordei of the Tribund, such as in the case of a warrant or a transfer order, the only action the Tribunal may take is to notify the Security Council of the non compliance95.It may be inferred from this provision that the same is true In case of a failure to produce documents according to a decision of a judgr or Trial Chamber ordering such prod~lction.T h e wording in para. 126 oi the Secretary General's report, which might at first glance exclude such : solution, is not decisive in this regard because it only comments upon thc drafi articles of the S t ~ t u t e . O n the other hand, several reasons can be put forward why. requests for ,: transfer and for the production of documents should be treated alike: in thc first place, Art. 29 of the Statute itself does not make any distinctior between transfer orders and other orders. Secondly, the Rules do not qualify orders for the of docun~entsin any specific way, and thirdl} and most importantly, all the draft rules prepared by different bodies ancl organs were unanimous in presupposing the competence of the Securiq Council to take appropriate measures whenever a State does not compl) with a request for assistance or an order for cooperation. The most explicit treatment of this item may be found in the comment or. the United States' Drafi Rules of Procedure and Evidence put forward b; the American Bar AssociationgG,which explicitly stresses that the Rules omit to provide the International Tribunal with similar powers of notification [to the Security Council] in other situations [than warrant or transfeiorder] in which the failure of States to cooperate could be a problem. The primary relevant areas are deferral by States to International Tribunal proceedings (Rule 4.2) and production of evidence (Rule 17). (...) a new rule could be added, permitting the Tribunal to notifir the Security Council upon failure of a State to cooperate.97 04

See in this regard also MorrisIScharf, supra nore 8, vol. 2, 31 1 et s q . 95 Rule 59 B, which reflects paragraph 126 of the report of the Secretary General. Doc. ITIINF.6IREV. 2, 18 January 1994, in MorrisIScharf, op. cit.note 8, vol. 2, 585 et seq., 593 S.

"

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From the foregoing it may therefore be inferred that whenever a State fails t o comply with its obligation to cooperate it is t h e Securiry Council alone and not the Tribunal which is called u p o n t o react. It has t o be considered, however, whether the Tribunal canriot exercise some kind of "indirect sanction" in case of non-production of evidence by taking into consideration non-compliance when raking its decision. As will be demonstrated below98, not only the International C o u r t of Justice but also other international courts and tribunals have been confronted with t h e question whether t o draw any consequences from the non-compliance with requests for bringing evidence in taking their decision. Nevertheless, n o n e o f these tribunals seems t o have considered themselves t o be invested with the power to d o more than to "take notice" of a State's refusal to cooperate. Only the European Court of Justice99 has stated that it could eventually "draw certain conclusions" from a state's refusal to produce the requested documents, but even in this case it seems rather unlikely that the conclusions to be drawn might have a "punitive" character. In this respect, the International C o u r t of Justice has been very clear in the Nicaragua case, where it stated that even the non-participation o f a party, here the United States, did in fact not relieve it from respecting the equality of the parties and "to employ whatever means and resources may enable it t o satisfy itself whether the submissions of the applicant state are wellfounded in fact and in law"lO". T h e Court drew attention t o the disadvantages

Cf. also the French Proposal for the establishment of an International Criminal Tribunal to adjudicate the crimes committed in the former Yugoslavia, Doc. Sl25266, 10 February 1993, in MorrisIScharf, supra note 8, vol. 2, 327, where it is stated that: "the Srarute of the Tribunal should contain a provision whereby States would be obliged to extend cooperation, in particular that of their judicial investigation services (...) However, there is probably no reason for this provision to be very detailed, especially if the Tribunal is to be established by a Security Council resolution adopted within the framework of Chapter V11 of the Charrer, Article 48 of which makes it an obligation for the Members of rhe United Nations to rake 'the action required to carry our the decisions of the Security Council for the maintenance of international peace and security"'. See below C. 11. See below C. 11. 2. Art. 53 of the Statute of the Court provides: " l . Whenever one of rhe parries does nor appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of irs claim. 2. The Court must, before doing so, satisb itself, not only that it has iurisdic[ion in accordance with Articles 36 and 37, but also that rhe claim is well founded in fact and law."

380


caused by the non-appearance of the respondent State'" urhich made it impossible for the Court to take its decision on the basis of fully satisfactory evidence. It could however only evaluate the material before it and thus take a decision which perhaps would have led to a different outcome if the United States had participated in the proceedings'02. O n the other hand, the Court did not accept that there could be any advantage for the appearing state beyond that resulting necessarily from the non-participation of the other State. Even the strongest form of failure to cooperate, namely nonappearance, may thus not lead to any kind of punitive consequences. This finding, which fully conforms to the function of the Court to do justice is valid irrespective of the disputed question whether non-appearance as such amounts to a violation of an international obligation. Given the special situation of criminal proceedings, it is clear that for an international criminal tribunal any punitive attitude with regard to noncooperating States would be even more unacceptable. In addition, a State which fails to comply with an order of theTribunal is nor a parry to the case and is as such completely indifferent as to the outcome of the procedure. Finally the principle of fair trial and the principle o~presumptionof innocence bar the Tribunal from drawing any negative conclusion from the non-production of evidence by a State, although, on the other hand, the principles just mentioned may require the production of evidence in favour of the accused in order to allow the Tribunal to reach a fair decision. Thus, in relation to a State, the Tribunal has no power to take any sanction in order to reach compliance with a decision but may only notify the Security Council.

3. Contempt power as implied power of the Tribunal? The examination of the Statute and Rules of the Tribunal as well as those of several other international tribunals has shown that none of them has been explicitly granted the power to enforce their requests or orders a p n s t a State. Even more, none of these international tribunals has the power to enforce its final judgments. This task has been left either to a third organ, such as the Security Council in the case of the International Court of Justice, or - as in the case of the International Criminal Tribunal for the Former Yugoslavia - to States which declare their readiness in this respect, or to the parties of an arbitration themselves. ~otwithstandingthese findings it has to be asked whether such a power could be regarded as implied in the powers of a criminal court or tribunal. At first, the above considerations seem to militate clearly against the finding ofsuch an implied power. It may be argued, however, that a criminal court or tribunal can only fulfil its 'O'

'02

Military and ParamilitaryActivities in and against Nicaragua, Judgment on the Merits, ICJ Reports 1986, 42. Ibid., 23 et seq. and especially 49.

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function if it disposes of all necessary evidence, and rhat it therefore must have the means to enforce its orders. Thus it might appear that the tribunal must have .. the contempt power also vis-2-vu States in order to function effectively. The question of contempt power of the 1nternation;tl Tribunal for the Former Yugoslavia has not been addressed in the Statute itself. The Rules, however, contain in Rule 77 an explicit provision on contempt of the Tribunal. Under this Rule, the Tribunal has the power to impose a fine or a term of i n ~ ~ r i s o n m eto r~t "a witness who refuses or fails contumaciously to answer a question relevant to the issue before a Chamber". Lit. c) of the same Rule provides for the same sanction for "any person who attempts to interfere with or intimidate a wirness". The wording of this Rule is clearly addressed only to natural persons. Still one has to ask whether there are any indications to make this Rule also applicable to States. The guidance given in the drak rules elaborated by several States does not support the applicability of contempt power also to States but militates rather in the opposite sense. Those drafts which explicitly mention contempt of court at the same time ~ r o v i d efor special consequences in case of noncon~plianceby a State. The Drah of the United States of America, for example, provides for "Contempt" in its Rule 6.4 and contains a special Rule 14.6 for failure of States to assist the Tribunal'03. In case of non-assistance by States to produce evidence in the control of the State, the American Draft only provides in Rule 17.7 that "the failure of a Stare to produce evidence sought shall not require dismissal of charges or the postponement of the proceedings except in extraordinary circum~tances"'~~, The Memorandum of Amnesry International on Questions of Justice and Fairness in the International War Crimes Tribunal for the Former ~ u g o s l a v i a urges ' ~ ~ the Security Council to take "the steps necessary ro ensure rhat national authoritiu are obliged actively to cooperate with the Tribunal".

11. Analysis of similar ~rovisionscontained in other international instruments 1. International Court of Justice

The International Court of Justice has not been granted the power to comIt can only pel the attendance of witnesses and production of Drak of the Unired Scares, in MorrisIScharf, szcprir note 8, vo1.2, 520 and 531. Ste Doc. ITI14, 17 November 1993,in ,Morris/Scharf,jirpra note 8, vol. 2,509 erseq.,.,535. Doc. SCICOIPGIPO, in MorrisIScharf, szprn nore 8, vol. 2, 409 er seq. See in this regard the sraremenr by Sir Gerald Firzmaurice, The Law and Procedure of rhe International Courr of Justice, vol. 2 (1986), 576, where he srares that rh~s lack of enforcemenr power "is true of inrernational tribunals in general".

387

L'fax Planck Yearbook of United Kations Law

as provided by Xrucle 49 of t h e Statute of t h e ICT "take formal nore of anv refusal" or failure i n this respectlO-. In the CO$ Chamelcase, the Court applied this provision and requested the United K i n g d o m t o produce certain documents. Those documents were however not produced, the agent for the United Kingdom pleading reasons of secrecy In addition, the United Kingdom \vitnesses declined t o answer questions relating to them. T h e Court did not even see itself in a position to draw any specific conclusions from these refusals, which differed from those t o which the actual events gave riseIO'. Furthermore, it is worth noting that even in the case of judgments of the International C o u r t of Justice, the C o u r t is nor empowered t o enforce its own decision; instead under Art. 94 para. 2 of the Charter of rhe United Nations, solely the S e c u r i ~Council ma?; if it deems necessary, make recommendations or decide upon measures t o be taken to give effect to the i ~ i d g m e n t .

2. C o u r t of J~lsticeof the European Communities In the case of orders requesting the production of documents, the statute of t h e European Courr o f Justice provides that the C o u r t may only take formal note of a member state's refusal to ~ r o d u c esuch documents and eventually draw certain conclusions from it, however n o pro\ision is made for a n eventual enforcementi". Furthermore, the Rules o f the C o u r t contain a specific pro\rision for the enforcement in the member States of a measure 2dopted by the C o u r t in the event that a witness fails t o appear''0. N o such provisions exist, however, in the case of an order requiring the suppl>- of information or the production of documents. Hence it ma!. be inferred that such An order is unenforceable"'. SirniLirl!, the Rules of Courr alao contain no provision ernpo\vering the Courr ro take further $reps in cabs of non-cooperation by Scares. This becxne evldenr in the C n ~ econcerning Milirary md Paramiliran Acrivities in and aginsr Sicarapa [Nicara~unv. United Srareaj. \\here the Court srressed repeatedly rhar, even in rhe case of a dsfaulr procedure tinder Xrr. 53 of the Srarure, \vhich consrirures rhe extreme case of a failure to cooperate. rhe equality of the partics had r o he respecred and rhar i t \\as the Court's dui). to satisfi irself chat the claims ,\re \veil founded borh in fact and in Ia~v.IC] Rep. 1986. 22. ICJ Rep. 1949, 1 etseq. (32). This, however, is presumably only rhe case ~vherethe refusal ernanares Crorn someone who is a parr). to the proceedings, Lasok, tupra nore 69. 387. For an c x ~ ~ r n of ~ lwhere e such a conclusion \vas drawn see Case T-2ji90Ss/~drrherrL! Eronoinic a n d Social Committee (1992) ECR 11-63, para. 30-31. Ser Art. 48 para. 4 of the Rules of Courr of the European Commun~ricsand Art. 69 para. 4 of the Rules of Court of rhe Court of First Insrance. K. L ~ s o k supra . nore 69, 384.

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'X'he non-enforceability of requests for the production of documents is further confirmed by the wording of the treaties itself. First, all treaties only refer to "judgments" of the Court and thereby ipsofacto exclude "orders" to be similarly e x e c ~ t e d " ~ Furthermorc, , Art. 192 expressly excludes the enforceability of judgments rendered against member States. Finally, the EC-Treaty and the EURATOM-treaty had ro be formally amended in 1993 to provide for a specific procedure under which the Court of Justice was granted the power to determine, upon request by the Commission, that a member state has failed to comply with a judgment of the Court of Justice1l'.

3. European Commission and European Court of Human Rights T h e practice of the European Commission of H u m a n Rights demonstrates that the Commission is not in a position to enforce the obligation of contracting parties to the European Convention on H u m a n Rights to cooperate with the organs set up under the convention (Art. 28 para. lit. a) E C H R ) . W h e n the respondent in the inter-state procedure Cyprus v. Turkey refused to permit the taking of evidence in the northern part of Cyprus the Commission could only formally submit a report on the failure of Turkey to comply with its obligations under Art. 2(a) of the Convention to the Committee of Ministers of the Council of ~ u r o p e14. '

4. Iran-U.S. Claims Tribunal Both the wording- of the relevant provision of the UNCITRAL rules governing the procedure of the Tribunal and the practice of the IranU.S. Claims Tribunal itself demonstrate that the Iran-U.S. Claims Tribunal does not believe it is in a position to enforce an order to produce certain documents by a , "subpoena duces tecum". Indeed, under Art. 2 8 para. 3 of those rules, the arbitral tribunal may only "if one of the parties, duly invited to produce evidence, fails to d o so within the established period of time, without showing sufficient cause for such failure, (...) make the award on the evidence before it." Thus, the sole sanction available for the Iran-U.S. Claims Tribunal is to take judicial l'

'l3

' l4

See Art. l87 in conjunction with Art. 192 EC-Treaty, Art. 159 in conjunction with Art. 164 EURATOM-treaty and Art. 44 in conjunction wich Art. 92 ECSC-Treaty See Art. 171 para. 2 EC-Treaty and Art. 143 para. 2 EURATOM-Treaty. Appl. 6780174 er al. Report of l 0 July 1976,21 -24; for details see J. A. Frowein, Fact-Finding by [he European Commission of Human Rights, in: R. Lillich (ed.), Fact-Finding before International Tribunals (1 992), 237 et seq. (238).


384

notice of any failure CO produce evidence a n d take this fact i n t o account w h e n rendering its award115.

5. ILC Draft Statute for a n International Criminal C o u r t and work of the Preparatory Committee o n the Establishment of an International Criminal C o u r t T h e ILC Draft Statute for a n International Criminal C o u r t does n o t grant the C o u r t nor its organs any specific power to enforce their own requests for judicial assistance o r orders. As to the work of the Preparatory Committee o n the Establishment o f an International Criminal Court, while some delegations expressed general reservations as to the role of the Security Council others clearly favoured a provision under which the C o u r t could bring t o the attention of the Security Council any failure by a State to discharge its duty t o cooperate. Other States, however, would have rather envisaged the C o u r t itself to be in a position to consider failures t o comply with requests made by the C o u r t and render appropriate decisions1l('.

6. Conclusion T h e analysis of other instruments establishing international courts o r tribunals confirm the view that international tribunals d o not possess - unless specifically granted such power - the competence t o enforce their own judgments or orders. This is underlined by the fact thar a formal amendment of the EC-Treaty was needed to grant the Court of the European Communities the power to impose fines against non-compliant member States (Art. 171 para. 2 EC-treaty).

'l5

'l6

See e.g. ITT Indus Inc. v. Iran, 2 Iran-U.S. C.T.R. 348 et req. (355) (1983) (Concurring op. of Judge Aldrich) and INA Corp. v. Iran, 8 Iran-U.S. C.T.R. 373 et seq. (377, 382) (1985), where the tribunal invoked the lack of supporring documentation in assessing the evidentiary weight of a given documenr. United Nations, Report of the Preparatory Committee on the Establishment of an International Criminal Court, vol. I (Proceedings of the Preparatory Commirree during March-April and August 1996), GAOR 51st Sess., Suppl. No. 22A (A/51/22), 72. It should be noted thar arbitral tribunals normally lack the power to enforce their own judgments or indeed take appropriate remedies if there is non-compliance with a legally binding decision which they have issued. As to an exception explicitly provided for in a compromis see J. L. Simpsonl H. Fox, Internarional Arbitration, Law and Practice, 1959, 265.

Document I 111. Remedies bv other b o d ~ e sthan the lnrerndt~onalCriminal T r i d u n ~ ' It follo.~vsfrom the above examination that remedies in case oi- non-compliance by a sovereign State with a binding order of the Tribunal d o not lie xvith the Tribunal, \vhich has n o power to take any sanction against a State. In case of non-compliance the Tribunal can accordingly notic, the Security Council. This result is confirmed by the drafting history of the RulesH-, ~ v h i c hfollow the Secretan.-General's report in providing only for notification to the S e c u r i ~Council in case of non-cooperation by a State because the obligation to cooperate flows from the establishment of the Tribunal under Chapter \'l1 of the Charter.

IV. Conclusion: T h e Dower of a i u d ~ eor a Trial C h x n b e r to issue poerin ducej rectrm" arainst '1 so\.ereim State

1 '

"mb-

In sum, the considerations relating to the first nvo questions allo~r-the following conclusions: 1 . T h e Tribunal has the pohr-er to issue binding orders agdinst States.

2 . T h e Tribunal also has the polver to impose sanctions against indi~ridualsfor non-compliance xvith its orders \r-hich is deri\.ed from an inherent contempt power.

3. T h e Tribunal does not, howexer, haxe the poxter to Impose anv sanctlons against a State \thich does not compl\ n i t h its binding orders.

These conclusions, in turn. suggest the following answer to the question Lvhether a judge or a Trial Chamber has the power to issue a "st~bpoenn dzicej tectrm" against a sol-ereign State: T o the extent a "strbpoenn d~irtcejtec~irn"is merely a court order requiring the production of documents, it can be issued against individuals as well JS against States. As such, it possesses binding force for both. Furthermore, the Tribunal has the power to impose sanctions for nonc o n ~ p l i a n c ewith such an order o n the basis o f its inherent contempt poxver ~ v h i c h ,ho\vex.er, only extends to sanctions against individuals. There is little d o u b t that the contempt poxver, in principle, includes the possibility of imposing sanctions a p i n s t individuals ~ v h od o not comply \vith orders of the Tribunal. This is confirmed by the fact that n o S u t e has

386


objected to the inclusion by the Tribunal, in Rule 77 of its Rules of Procedure, of a power to impose fines against persons for contempt. Whether the Tribunal must amend its Rules of Procedure in order to be able to impose contempt sanctions against individuals for not complying with a "subpoena duces tecum" remains an open question which, however, need not be answered in this context. NO matter how this question is answered, the inherent contempt power of the Tribunal is limited by the rule that the Tribunal has no power to impose sanctions against a State which does not comply with binding orders, including "subpoenas duces tecum". International practice shows that a power of an international tribunal to impose sanctions against a State cannot simply be derived from its inherent powers but requires an explicit authorization or at least a clear indication in a treaty or in another constitutive instrument such as a resolution of the Security Council. This is exemplified in particular by the introduction into the EC-Treaty of an express provision to establish a power of the European C o u r t of Justice to impose fines o n noncompliant States"'. Therefore, the only remaining problem is whether it makes any sense to use the term "subpoena duces tecum" for a court order whose non-compliance cannot be sanctioned by the Tribunal on the basis of its inherent contempt power. As originally understood in the common law systems the term subpoena appears to be intimately connected to the power of the issuing court to impose sanctions for non-compliance. If this is a necessary connection it would follow that the use of the term by the Tribunal for orders commanding States to produce documents would be inappropriate and that the exercise of a "power of subpoena" would ultimately be uitra vim. Since, however, the power to issue a subpoena and the power to impose sanctions for their non-compliance is not, in common law countries: necessarily given to one and same organ119, the use of the term "subpoena duces tecum" by the Tribunal is admissible if it is understood to refer to the power of the Security Council to impose sanctions against a State for non-compliance with an order of the Tribunal. In this sense the use of the term subpoena for an order against a sovereign State appears indeed appropriate. For these reasons and under these conditions a judge or a Trial Chamber may issue a "subpoena duces tecum" against a sovereign State.

'

l8

'l9

See above C 11. 2. See c.g. Thornas F. Gardner, Excerpt. from Government Investigative Weapons, in: Parallel Grand Jury and Adminisrrarive Agency Investigarions (KaplanlFriedman/Bennerr/Trainoreds.), Chicago 1981, 75 ff.

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D. Power of a judge or Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia to issue a "subpoena duces tecum" to a high government official

I. Power of a i u d ~ eor Trial Chamber to issue binding orders to individuals generally

A power of a judge or Trial Chamber to issue a "subpoena duces tecum" to a high government official can only exist if theTribunal has the power to issue binding orders to individuals generally. 1. Analysis of the Statute

O n its face, Art. 29 of the Statute of the Tribunal only speaks about obligations of States to cooperate or to cornply with requests for assistance and orders. Some of the requests or orders referred to in Art. 29 para. 2, however, are those which, under systems of municipal criminal law, would be directed to individuals. This may not necessarily be so in the explicitly mentioned case of an arrest warrant which is usually directed not to the individual concerned but to the competent police officer^"^. In his report, however, the Secretary-General also speaks of the duty of States to "give effect'' to "any other orders necessary for the conduct of the trial"12'. Such an order under municipal law would include what is called in common law jurisdiction a "summons", i.e. an order to an individual ro appear before the court122.Such orders directed to individuals are typical and necessary means under municipal law for conduct of a trial. The same is true for the system under the Statute. Under Art. 18 para. 2 of the Statute the Prosecutor has the right to directly address himself or herself to suspects, witnesses and victims and to question them. Art. 19 para. 2 gives the judge the power to issue orders "as may be required for the conduct of the trial". If the prosecutor possesses the power to direct himself or herself directly to individuals and function for the since the Tribunal has essentially only a supportive -Prosecutor in the pre-crial phase, it would be anomalous if the Tribunal should not also be able to address itself directly to individuals.

'I0

"' ''l

See e.g. Halsburyi Laws of England, 4th ed. 1979, vol 29, "Magistrate's Courts, para 329 referring e.g. to Statutory Instruments 1978, no. 146, 309. Para. 125 Halsbury's Laws of England, 4ch ed. 1979,vol 29, "Magistrate's Courrs,para 322.


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2. Analysis of national legislation implementing the duty to cooperate with the Tribunal Both the structure and the text of a large - number of national cooperation laws strengthen the view that the Tribunal may o n its own behalf summon individuals to appear before the court. Thus, for example, the Austrian cooperation law expressly provides that, while communications with the Tribunal should as a matter of principle pass through the Ministry of Foreign Affairs, the Tribunal might still under Sect. 11 forward summons and other documents to persons in Austria directly by mail. This presupposes that the Tribunal indeed possesses the power under its statute and rules to directly issue such orders to individuals. Furthermore, sect. 11 para. 2 establishes that a witness is under a legal duty to follow a summons directly addressed to him or her. Similarly, Art. 23 of the Swiss regulation on the cooperation with the International Criminal Tribunal for the Former Yugoslavia also acknowledges that the procedural decisions of the tribunal may bc directly mailcd to the addressee domiciled in Switzerland. Sect. 8 of the Finnish cooperation law'23 similarly provides that a witness "who in Finland has been summoned by the Tribunal to appear before the Tribunal is under the duty to comply with the summons"124.This again implies that the Tribunal may issue such binding orders to individuals. Sect. 4 para. 2 of the German law regulating cooperation with the International Tribunal for the former Yugoslavia stipulates that "should rhe Tribunal ask forI2j the personal appearance of a person, (...) their appearance may be enforced with the same judicial means as may be ordered in the case of a summons by a German court or a German's prosecutor's office." This formula indicates that the Tribunal may directly summon individuals. Similarly the Spanish legislation'26 provides that "persons summoned to appear before the International Tribunal as witnesses

Act on the Jurisdiction of the International Tribunal for the Prosecution of Persons responsible for Crimes Committed in the Territory of the Former Yugoslavia and on Legal Assistance to the Inrernational Tribunal of 5 January 1994. p h asis added. " 5 The German original uses t h e term "verlangen" which seems to imply a legal obligation to obey such a request. ' X or the wording of the Spanish Acr 1511934 of 1 June 1994 on Cooperation with the Inrernational Tribunal for the Prosecurion of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia see GA Doc. AI491278 of 27 July 1994. "3

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o r experts shall be under the same obligation to appear as that provided for i n Spanish law." T h e relevant part o f the Italian law providing for t h e cooperation with t h e Tribunal1*' explicitly states that "summons a n d other services o f process requested by the International Tribunal shall be transmitted t o the national Italian authorities". U n d e r the legal regime prevailing in the Netherlands there is a clear indication char it was the view of the D u t c h legislature that the International Tribunal for t h e Former Yugoslavia has been g a n t e d under its Statute the power t o issue subpoenas t o witnesses a n d similarly situated persons, since Sect. 7 para. 2 of the D u t c h cooperation law128 refers t o persons "being transferred to the Netherlands by t h e authoritie: o f a foreign state as witnesses or experts in the execution ofa subpoena issuedby the Tribunal Law"129. T h e Swedish Act relating to the Establishment o f a n Inrcrnationd Tribunal for Trial o f Crimes Committed in former Yugoslavia similarly acknowledges the power of the Tribunal t o directly s u m m o n witnesses to be questioned since it r e p l a t e s in its Secr. 15 certain procedural issues relating to such persons. Finally, Sect. 9 para. 1 a n d 1 9 para. 1 o f the British United Nations (International Tribunal) (Former Yugoslavia) Order 1996l3' provides n o t only for t h e service of process o f a s u m m o n s or other process requiring a person t o appear before the Tribunal for the purpose of giving evidence or assisting a n investigation issued by said tribunal, b u t also states that the Tribunal may indeed issue a n order for t h e attendance before the Tribunal t o be executed by the British authorities13'. Against rhis background ir is safe to say rhat stare practice - as enshrined in t h e respective national implementation laws - does indeed presuppose a n d confirm that the International Criminal Tribunal for the Former Art. 10 of the Provisions on Co-operarion with the International Tribunal for the Prosecution of Serious Violations of International Humanitarian Law Commirred in rhe'krrirory of the Former Yugoslavia, Decree-Law No. 544 of' 28 December 1993. Provisions relating to the establishment of the Internarional Tribunal for the prosecution of persons responsible for serious violations of internarional humanitarian law committed in the territory of rhe former Yugoslavia since 1991, bill of 9 March 1994 as amended. See also Secr. 10 para. 1 of rhe same law which again refers to "wirnesses or experts (...) who come to the Netherlands in response ro a summons or subpoena issued by t h e Tribunal'. (emphasis added). Srarutory Instrumenrs 1996, no. 71 6. But see also Secr. 30 para. (2) of the New Zr.lland 1995 International Kidr Crimes Tribunal Act, under which the Arrorney General may only assist in the making of arrangements ro facilitare the drtendance of a person orher rhan an offender at a hearing of the Tribunal if inter nlia thnr person has freely consented to giving evidence or assisring in the foreign country where rhe Tribunal is locared.

390

hlax Planck Yearbook of United Nauons La\\

Yugosla\la possesses rhe p o n e r under Art. 3 9 of ~ t sstatute to d~rectly address ~ n d ~ ~ ~ dby u awaT l s of orders. 3. Analysis of similar prolisions contained in o t h e r international lnstrunlents W M e the Inter-American Court of Hunlan h g h t s , according to Art. 3 j of its rule^'^', may summon witnesses, n o reference is made to requiring an i n d i ~ ~ i d uto a l produce certain documents. In an)- case, where a witness or any other person, even v h e n duly summoned, fails to appear or refuses to give evidence, the onlv sanction provided for in the Rules of C o u r t is to inform the State to lvhose jurisdiction such witness or other person is subject133. k b i t r a l tribunals may generally only obtain further evidence by calling upon the parties to provide them with such evidence but may not as a matter of principle directly order possible ~virnessesto appear before it. However in some instances even ad hor tribunals, e.g. the Franco-Haitian Arbitral Tribunal of 1923, were granted the pow-er to c o n ~ n ~ u n i c a directly te with employees of rhe respective Governmentl~". Similarly, the International Boundary Commission benveen h e United States and Mexico, as established by the Boundan. Convention of hlarch 1, 1889 and the International Joint Commission benveen the United States and Canada established by a trean of Januan- 1 1, 1909 were both explicirly granted the power to compel witnesses to appear before the C o m n ~ i s s i o n ' ~ ~ or to e1-m issue ~ z r b ~ o e n nIn i ~ T~ h. e I h Alone raj&." both, the Canadian and the U.S. government passed national laws empo~veringinternational tribunals -

.-

3

lkar to be found i n t e r n h in K. Oellers-Frahni/ N. Wuhlcr, Dispute Serrlenienr in Public Inrernariond Law - Texrs and L'larer~ds(1984). 313 etjeq. (320-321). Art. 39 para. 1 of rhe Rules of Court. l'' For derails see D. Sandifer, Evidence before Inrernarional Tribunals (2nd ed. 1975). 158. S~milarlythe Spanish Treay Claims Commission esrablished in 1901 could also aumnion ia o\vn witnesses. "i h. L71 of h e Bounday Convention of 1889 sripidared h a t h e Commission sho~dd "have che power ro summon any ~vitnrssgwhosc rarimony ir may chink proper ro witex md h a t "in case of h e reiusal of a wirna to appear, he shall be compelled to do so. and to h i s md the cornmission may make use of h e same means h a r are used by chc Coum of h e respective countries to compei h e anendance ofwirnrssg (...)" '"Xrr. XI1 of the [rear). of January 11, 1909 stipulated inter d i n , char rhe parries agree "to adopr such legislation as may be appropriare (...) to provide for the issue of subpoerini for compelling rhe arrendance of wirnesses, in proceedings before the Commission." Both [he United Srares and Canada adopted such la\vs. <eeC. Anderson, Product-ion of evidence by jubpoenn before internariona1 tribunals, .km.J . Inc. L. 1933, 498 er ieq. (498-499). For derdik see P. Sridel, The I'm ,Vane, in: R. Bernhardr (ed.). Encyclopedia of l'ublic Inrernarional La~v,inst. 2 (19811%133-134.

'"

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and commissions to which they are a parry "to require by subpoena the attendance and the testimony of witnesses and the production of documentary evidence relating to any matter pending before it"138.Under this authority, one of the members of the Commission issued a number of subpoenas, including a subpoena duces tecum, and a writ of habercz c o p s 139. In cases where no such clear authority has been g a n t e d , however, there seems to be a reluctance of international tribunals to enforce on their own orders calling witnesses and issuing subpoenas against individuals. In that respect one might refer to a decision of the U.S.-German Mixed Claims Commissiori which decided that, given the lack of an express authorization in the underlying Agreement of l 0 August 1922 between Germany and the United States, it may not issue subpoenas to witnesses'40.

11. Mav the Tribunal issue a binding order to h i ~ hPovernrnent officials! It has been shown that the Tribunal may issue orders to States as well as to individuals generally. This suggests that these powers, if combined, also include the power to issue orders to high government officials acting in their official capacity. This may appear particularly obvious to lawyers coming from a common law background. Since, under the old common law, subpoenas (duces tecum) could not be addressed to corporations but only to natural persons it has become the rule in common law systems that such court orders are regularly addressed to the officer who is responsible for the documents sought1*'. In States of the civil law tradition, however, the separate legal personality of the State as well as that of private corporations are taken into account more h l l y by the Courts. In those States court orders for the production of documents which belong to the State or a corporation are addressed to the State or corporation itself "as represented by its responsible agents". Responsible agents in this sense, however, are not considered to be those officers who are merely responsible for the keeping of the records under the internal rules of the corporation (as seems to be the case in States following the common law tradition)142but only those who are duly appointed l"

'39 I4O 14'

'42

Act of July 3, 1930, 46 Stat. 1005; as to the Canadian legislation see Statutes of Canada 1934, 24-25 George V, Ch. 37, 455. D. Sandifer, Evidence before International Tribunals (2nd ed., 1975),295-298. Mixed Claims Comrn. US. and Germany AdministrativeDecisions and Opinions from 1 October, 1926 to 31 December, 1932,996,reproduced in W,vol. L'III, 102-103. Annotation, Form, particularity,and manner ofdcsignation required in subpoena dues tecum for production of corporare books, records and documents, 23 ALRZd 884 E Ibid. 884 ff.

392


to represent thc corporation in court proceedings or generally for the purpose of outside dealings. Therefore, courts in civil law countries would direct an order to produce certain documents from the Ministry of Defence to "the State as represented by the Minister of Defence" and not to the Minister of Defence individu~lly. This conceptual difference between major legal systems does not, however, call into question the power of the Tribunal to issue orders to high government officials in their official capacity. It appears that this difference raises more a question of form than of substance. It is beyond dispute that courts in common law countries cannot compel an official to testify or produce documents in his or her official capacity if this violates the internal rules of the ministry or department. Thus it is recognized in the United States that the power of an inferior official t o s u b m i t documents under his or her control for the purpose of court proceedings can be made subject to approval of the head of the department'43. This means that the principle of centralized control over the issudnce of documents to courts is as valid as in civil law countries. In addition, it is recognized in the United States that a court may not even compel the highest responsible official, such as a head of a department to testify or to produce official documents if a statute provides to the contrary'44. This means that a court order to a (high) government official in a common law country has for all practical purposes the same legal effect as a court order to "the State as represented by a (high) government official" in a civil law country. It therefore appears to be a mere question of the proper designation of an order rather than a question of substance whether an order to produce state documentation is directed to the State as such or to its proper legal representative. Thus, there seems to be no reason why orders of the Tribunal which may be issued to States and individuals alike cannot be issued to the proper representatives of the State individually. This possibility, however, cannot dispense with the general limits of the Tribunal to issue orders against a State'45.

Note, Discovery of Government D o c u m e n r s and the Official Information Privilege, Columbia Law Review 76 (1976), 142-174 (145 et seq. and 156 et seq.) 144 Ibid., 143. 145 See above B. 111.

'43

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E. What are the appropriate remedies to be taken if there is non-compliance by an individual, including a high government official, of a "subpoena duces tecurn" or request issued by a judge or a Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia?

I. Analysis of Art. 29 of the Statute and of the Rules of Procedure As has been shown above146the wording of Art. 29 does not contain any indication as to the consequences of non-compliance with a request or order of the Tribunal, neither concerning States nor concerning individuals. While Art. 29 is not explicit in this context, the Rules of the Tribunal are clear in so far as they provide for enforcement measures to be taken by the Tribunal if during the proceedings before the trial chamber a witness fails contumaciously to answer a question'47.This provision reflects a power typical of any criminal tribunal which is known as contempt of court in the common law systems but also exists in a similar form in civil law systems. The preparatory works for the Rules of the Tribunal leave no room for doubt that such a power of theTribunal was regarded as self-evident. Especially the drafts from common law experts are clear in this regard. The suggestions made by the Government of the United States explicitly state in the commentary to its proposed Art. 6.4, which reads " ~ o n t e mof ~ tcourt may be punished by any Chamber of the International Tribunal", that this rule recognizes the inherent power of the court to punish contempt. The need to maintain the authority and dignity of and respect for the Chambers of the International Tribunal and their decrees requires that Chambers have the authority to punish contempt. (...) Given the limited subject matter jurisdiction of the International Tribunal, the contempt power is the only mechanism available to ensure thc freedom of proceedings from perjury, witness tampering or intimidation and other offences which affect the integrity of the proceedings'48.

11. Legal basis of the contempt rule Although the Statute is silent as to the question of contempt of Court, the adoption in the Rules of an explicit provision for contempt of court may be interpreted

'"

'" '41

See above C.I. Cf. Rule 77. Doc. IT/14, 17 November 1993, in MorrisiScharf, sup note 8, vol. 2,509 et seq, 521

394


in the sense of a general acceptance of this power. if not as an inherent power of criminal tribunals as has been argued by the United States in their Draft Rules1*9. In order to answer the question whether the contempt power of the International Tribunal provided for in the Rules is within the framework of the Statute, three aspects have to be considered: First, the Rules were adopted without any protest against the contempt power of the Tribunal so conceived. Accordingly, general acceptance of this power may be presumed. Second, the power to adopt rules of procedure and evidence was transferred to the Tribunal itself by Art. 15 of the Statute. This provision may be interpreted to mean that the Tribunal was free to adopt those rules which are normally required in order to fulfil the functions of a criminal court. Since some form of contempt power exists within any national legal system it is legitimate to provide the International Tribunal with a such a power. Third, the contempt power of the Tribunal may be regarded as the expression of an implied power which therefore need not be spelled out explicitly in the Statute. In this context it may be argued that the functions of an international criminal tribunal face the same problems, even in an intensified manner, as do national criminal courts, and that its dependence on depositions ofwitnesses is equally strong. If criminal tribunals are not empowered to compel witnesses they might become unable to fulfil their functions. For these reasons it may be admitted that contempt powers against individuals are inherent in the functions of a criminal tribunal, be ir a national one or an international one. Thus, not only the power of the Tribunal to issue binding orders against individuals but also the power to sanction non-compliance with those orders by the individuals addressed, is not subject to any serious doubt. Neither the establishment of the Tribunal as a measure taken under Chapter V11 of the Charter nor the limits to its powers arising out of its special establishment militate against this result. However, these inherent contempt powers are also not unlimited.

111. National cooperation laws The view that theTribunal may itself impose sanctions against individuals can be further confirmed by the respective national cooperation laws. Art. 9 para. 2 of the cooperation law of Belgium1So,in its part on legal assistance stipulates inter alia, that "la demande du Procureur ou de l'ordonnance du Tribunal p i porte szrr une mesure de ~ o n t r a i n t e 'est ~ ~ exicutke par le juge

I4Vbid. Moniteur Belge of 27 April 1994, 1 0260 et seq. "' Emphasis added. 'jO

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d'instruction (...)". This Formula presupposes that the Tribunal itself has the power to punish for contempt of court, such measures then being executed by the Belgium authorities. Similarly Sect. 4 para. 1 of the Danish cooperation law states that the Danish Minister of Justice may enforce "any sentence etc. imposed by the Tribunal (...)", thus implying that theTribunal might not only impose sentences as sanctions but that it may also impose other forms of sanctions, such as fines for contempt. Sect. 4 para. 2 of t h e k e r m a n cooperation law provides that the appearance of individuals may be enforced by the same judicial means as if the summons were issued by a German court or a German prosecutors office. The law seems to take the view that the Tribunal may impose sanctions itself, which in turn would be executed as if the fine had been ordered by a German court. T h e Italian cooperation law'SL establishes that where a witness fails to appear before thc: Tribunal, he or she might be coerced to d o so by the Italian authorities by being accompanied before the Tribunal against his or her will, i f t h e T r i b u n n l so requests. The Tribunal itself may order that an unwilling witness be taken into custody and the national Italian authority has no other.alternative but to follow such a request. Similarly, Sect. 6 of the Dutch cooperation law also envisages the possibility, upon request by the Tribunal, of enforcing a summons issued by the Tribunal to bring a person who is unwilling to appear as witness or expert. Again, it is the Tribunal itself and not the national authority which renders the decision that such an entorcement measure should be taken. Finally, under Sect. 9 para 2 of the British United Nations (International Tribunal) (Former Yugoslavia) Order 1 996153,if a person summoned by the Tribunal to appear before it fails to do so, the United Kingdom shall, if so requested by the Tribunal, have him or her arrested. Here again, it is envisaged that the Tribunal orders an enforcement measure itself.

IV. Analysis of similar provisions contained in other international instruments As has already been mentioned15*, international courts and tribunals are generally not empowered to enforce their orders or decisions. In particular, the power to compel the attendance of witnesses is rarely provided for. Nevertheless, there are some arbitration agreements which provide for the enforcement of the attendance of w i t n e ~ s e s ' ~In~ .addition, the Court of

'j2 'j3 'j4

'55

Art. 10 para. 7. Statutory Instruments 1996 No. 716. Cf. above C. I and 11. See D. V. Sandifer, Evidence before Internarional Tribunals, 1939, 208 et seq.

Max Planck Yearbook of United \;ations Lav

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Justice of the European Communities, according to its Statute and Rules of Procedure, may imposv pecuniary penalties'j6. The Tribunal of the East African Common Market was also empowered to compel attendance of witnesses and disposes of the same powers in this regard as those granted to a superior court in the contracting State where it is sitting at the relevant tirne1j7. While the majority of international courts and tribunals do not contain any comparable provision, the European Court on Human Fbghts has at least provided for a right of the Registrar, on being so r e q ~ ~ i r eby d the President, to inform the Contracting Party to whose jurisdiction the recalcitrant witness is subject of the non-appearance or refusal to give evidence of the person duly summoned158.

V. Sanctions a~ainsthigh government officials for non-com~liancenith an Q&

While the Tribunal may gmerally sanction non-compliance by individuals with its orders on the basis of its inherent contempt power, the same is not necessarily true when such orders are directed against (high) government officials in their official capacity. O n the one hand, the Tribunal may impose a fine on recalcitrant witne~ses'5~ on the basis of its inherent contempt polver and Rule 77 of its Rules of Procedure. O n the other hand it is equally clear that the Tribunal may not impose a sanction against a State for not complying with one of its orders or requests160.For two reasons, the second rule must also apply in the case of (high) government officials not complying with an order to testify or to produce documents in their official c a p a c i ~ : - First, if the Tribunal could sanction an official in such a situation for a contempt of court it could thereby circumvent its lack of power to impose sanctions against a State for non-compliance. To sanction one of its officials for not acting properly on behalf of the State is to put unacceptable indirect pressure on the State to comply. Similarly, there exists a rule in the United States that the principle of immunity of the United States from suit kvithout its consent cannot be evaded or circumvented by bringing dn action nominally against a federal officer or department, when the United States is the parry vitally interested1''.

Art. 24 of the Statute of the Court, Art. 48 of [he Rules of Court Arc. 17 of the Sratute and Art. 13 of the Rulcs. Art. 45 of the Rules of Court. See above C. I. 3 and E. I. See above C. I. AmJur 2d, vol. 77, "United States", 4 113

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- Second, it would seem to be fundamental1~-~lnfairt o hold an individual responsible for not complying with an order which is in essence directed to the Stare and which it cannot hlfil without having to reckon with personal consequences. This is particularly clear where the (high) government official would be violating a national law c,r governmental regulation if he o r she would comply with an order of the Tribunal. T h e same is true when it must be expected that compliance with the order would be regarded as a violation of a duty to seek a consensus within the government and that the consequence of non-compliance would be his o r her expulsion o r dismissal from office.

F. Final conclusions In view of the foregoing reasons, we conclude that the Tribunal may under Art. 19 and 29 para. 2 of its Statute, as a matter of principle, adopt legally binding orders even against a sovereign stare, including orders for the production of This power is, however, not unlimited. T h e Tribunal must strike a balance between this power and the legitimate interests ofsuch a requested state n o t to be forced to reveal inforn~ationessential for its national security o r of a similar confidential nature. Furthermore the Tribunal must demonstrate that the request issued clearly relates to the case pending before it and that rhe order circumscribes the docunlents sought as narrowly as possible. A n order for the production of documents may even take the form of a "mbpoetza dz4ces tecum". This is subject to our conclusion, however, that the Tribunal does not purport, by adopting such a subpoena, to possess any inherent competence whatsoe\rer to punish the requested state where such state fails to comply with the request. T h e Tribunal must avoid creating any impression that the adoption of such a "subpoena duces tecum" implies that the Tribunal considers that it possesses an inherent contempt power t o sancrion a State's failure to produce requested documents. T h e Tribunal may, however, inform the Security Council of any failure to comply with such an order. T h e Security Council may then, acting under Chapter VII of the Charter of the Gnited Nations, rake appropriate action. Likewise, the Tribunal is also empowered to issue binding orders directly to individuals. Under the Srarute of the Tribunal and its Rules of Procedure and Evidence, such an order may also be adopted in the form of a "subpoena duces tecum" and may also be generally addressed t o high government officials. Whenever such a request is directed to a high government official in his o r her official capacity, however, the Tribunal must n o t circumvent the abovementioned limits concerning requests for the production of secret information and overbroad requests.

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Furthermore, since the Tribunal may not itself enforce a State's obligation to produce documents under a "subpoena" addressed against that State, neither may it use its contempt powers against a high government official in order to enforce a duty that it could not directly enforce against its home State. These legal conclusions notwithstanding the undersigned feel that it is appropriate to address the following point: The answers to the questions which the judge has put to amici show that dangers result from the use by an international tribunal of legal terms taken from certain domestic legal systems which, in those systems, may imply consequences which are not easily recognizable by those States or persons which are not familiar with them. As an international judicial organ, the International Tribunal also has to be sensitive to the perspective of those, including States, who are subject to its jurisdiction and who have a legitimate interest not only to know as precisely as possible what is being demanded of them but also to be treated in a way which reflects a recognition of their respective position under international law. It therefore seems advisable that the Tribunal, in its dealings with States, take into account that formalities play a particularly important role vis-h-vis sovereign States which occupy a special position in international law. This does nor exclude that the Tribunal may, in substance, pursue its demands with all necessary clarity and perseverance. Respecthlly submitted

Heidelberg, 4 April 1997

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Case N o . IT-35-14-T THE INTERNATIONAL T H E F O R M E R YUGOSLAVIA

CRIMINAI,

TRIBUNAL

FOR

B E F O R E h TUDGE O F T H E TRIAL C H A M B E R Before: Judge Gabrielle Kirk McDonald

Registrar: Dorothee de Sampayo Garrido-Nijch Decision of 15 January 1997

T h e Prosecutor v. Tihomir Blaskic SUBPOESA DUCES TECUM

To: T h e Republic of Croatia To: Defence Minister Gojko Susak, Ministry of Defence, Republic of Croatia

I , Gabidle Kirk McDonald, Judge of the International Criminal Tribunal for the former Yugoslavia, C O N S I D E R J N G , Articles l 8 ( 2 ) and l 9 ( 2 ) of the statute a n d Rules 39(ii) and (iv) and 5 4 of the Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia, C O K S I D E R I K G the Request by the Prosecutor for the International Tribunal for the former Y~lgoslavia("Prosecutor") for the issuance of a subpoena duces tecurn, HEREBY D I R E C T Defence Minister Gojko Susak, Ministry of Defence, Republic of Croatia, to provide to the Prosecutor o n o r before 14 February 1997 the following:

400


I.

All note's and writings of Tihomir Blasic prepared by or for him between 1 April 1992 and 1 January 1994 and directed to the Croatian Ministry of Defence and its representatives.

11.

All notes and writings of Tihomir Blasic prepared by or for him between 1 April 1992 and 1 January 1994 and directed to Mate Boban ad to the Ministry of Defence of the Croatian Community ofHerceg Bosna and its represenratives, whether civil or military.

111.

All military orders, signed and unsigned, issucd by or on the behalf of Tihomir Blasic while he was the commander of the Operation Zone Central Bosnia.

I v.

All directives and orders, signed and unsigned, directed to Tihomir Blasic personally or in his capacity as Central Bosnia Operation Zone Commander by Mate Boban, the General Staff and the Ministry of Defence of the Croatian Community of Herceg Bosna from 27 June 1992 to 1 January 1994.

v.

All orders, communications and directives, signed and unsigned. directed to Mate Boban, the General Staff of the H V O and the Ministry of Defence of the Croatian Community of Herceg Rosnz and its representatives, including General Milivoj Petkovic, General Ante Row, General Slobodan Praljak, Colonel Tihomir Blasic, Antc Sliskovic, Col. Zeljko Siljeg, Bruno Stojic and Dario Kordic by the Ministry of Defence of the Republic of Croatia and any of its members and representatives from 1 April 1992 to 1 January 1994.

VI.

All writings, memoranda, notes, reports and memoranda of understanding~between Defence Minister Gojko Susak and his representatives and Mate Boban, the General Staff of the HVO and the Ministry of Defence of the Croatian Community of Herceg Bosna and its represenratives, including General Milivoj Petkovic, General Ante Roso, General Slobodan Praljak, Colonel Tihomir Blasic, Anto Sliskovic, Col. Zeljko Siljeg, Bruno Stojic and Dario Kordic by the Ministry of Defence of the Republic of Croatia and any of its members and representatives from 1 April 1992 to 1 January 1994.

v1I

All reports and files of investigation and prosecution, conducted bl the HVO or the HV, or their representatives, into the attack on anc the killing of civilians in Ahmici and other villages in the Lasvr: Vallev which occurred in Aoril of 1993.

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40 1

VIII. The names of all persons prosecuted or disciplined in any way in Herceg Bosna or in Croatia for the crimes which occurred in relation to the attacks on Ahmici and other villages in [sic.] the Lasva Valley which occurred in April of 1993. IX.

Minutes of a meeting between Tihomir Blasic and H V O military and civilian personnel that occurred on 4 July 1992 in Kruscica (Vitez Municipality).

X.

All Croatian government Ministry of Defence records reflecting- the provision or supply of military weapons, ammunition, communications equipment, medical supplies, logistical supplies and personnel by the Republic of Croatia to the H V O , the H Z H-B or their representatives from November 199 1 to January 1994.

XI.

All Croatian government Ministry of Defence documents, records, reports and orders reflecting the presence of H V military personnel and their activities in the Republic of Bosnia and Hercegovina from November 1991 to 1 July 1994, including but not limited to the following military units:

1 Gardjiska H V Bde - possibly also referred to as: 1 H V Bde, 1 Gardjiska Bde, "Tigrovi" Bde, 1 "Tigrovi" Bde, "Tigrovi" Bde Split, "Tigrovi" Bde Zagreb, 2 Gardijska H V Bde - possibly also referred to as: 2 H V Bde, 2 Bde Sisak, 2 Gardjiska Bde, "Grom" Bde. 2 "Grom" Bde, "Zmajevi" Bde, "Grom" Bde Sisak, Second Unit of HV, Second Company, 2 Batallion 144 Brigade HV, 4 Gardjiska H V Bde - possibly also referred to as: 4 H V Bde Split, 4 H V Bde, 4 Gardjiska Bde,

Max Pianck Yearbook of United Nations Law

402

"Lavn'Bde, 4 "Lav" Bde, 5 Gardjiska H V Bde - possibly also referred to as: 5 H V Bde, 5 "Orao" Bde, "Orao" Bde, 5 Gardjiska Bde, 5 Zagreb Bde, Osijek H V Bde, Osijek ZNG, 5 Bde Osijek, 5th Dornobran Bde, 7 Gardjiska HV Bdc - possibly also referred to as: 7 Bde HV, 7 "Pume" Brigade HV, "Pume" Bde, "7 Panteri" Bde, "Panreri" Bde, Varazdin H V Bde, Varazdin Bde, 8 Gardjiska H V Bde, I01 H V Bde - possibly also referred to as: Units of 10 1 " R Brigade - Z N G , 101 " R Bde, l01 Z N G Bde, 102 H V Bde, 103 H V Bde, 105 H V Bde, 108 H V Bde, 109 HV Bde - pssibly also referred to as: Vinkovci Bde, Vinkovci H V Bde, 109 Vinkovci Bde, I I I H V Bde - possibly also referred to as: Lmajevi" Bde, I I 1 "Zmajevi" Bde, 1 12 H V Bde - possibly also referred to as: Bde "Sveti Krsevan", I12 "Sveti Krsevan" Bde, 1 13 HV Bde - possibly also referred to as: Sibenik Bde, 1 13 Sibenik Bde, >>-

Document I 14HVBde, 115 H V Bde - possibly also referred to as: "Imotska" Bde Imotski, 1 15 Imotska Bde, 116 R Brigade Metkovic - possibly also referred to as: 1 16 H V Bde, 116 Metkovic Bde, 1 16 " R Bde, 122 H V Bde, 123 H V Bde - possibly also referred to as: Units of 21 23 R H y 2123 R Bde H V 131 H V Bde, 153 Velika Gorica Bde HV, 156 H V Bde, 163 H V Bde, Dubrovnik - possibly also referred to as: 163 Dubrovnik Bde, 175 Brigade HV, Zageb, 175 Zagreb Bde, Filipovic Bn, Zagreb, Sibenik Bde - possibly also referred to as: 15 Bde, 113 Bde, 159 Bde, Black Legions Unit, H V Military Police, "Matija Vlacic" Bde Zagreb, "Grmovi" Bde Ogulin - possibly also referred to as: 143 Bde 143 Ogulin Bde, All Croatian Government Ministry of Defence documents and records reflecting the death, wounding or injury to H V military personnel which occurred in the Republic of Bosnia and Hercegovina from 1 January 1993 to 1 January 1994. Telephone toll call records between the Ministry of Defence, Republic of Croatia, and the General Staff and the ~ M i n i s t'ro~f Defence of Herceg Bosna, Mostar, Republic of Bosnia and Hercegovina, from 1 April to 1 January 1994;


404

HEREBY DIRECT the Republic of Croatia to ensure compliance with said

subpoena duc~stecum. HEREBY DIRECT, in the event of non-production of the aforementioned documents, that

1. a representative of the Republic of Croatia and 2. Defence Minister Gojko Susak, Ministry of Defence, Republic of Croatia, or his representative appear before me at 9 0 0 a m . on 14 February 1997 to show cause why this Order has not been complied with.

Gabrielle Kirk McDonald Judge, Trial Chamber International Criminal Tribunal for the former Yugoslavia Date Place

Seal of the Tribunal

(Reproduction of a faxed document)

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405

UNITED NATIONS

General Assembly Distr. GENERAL AI5 11332lCorr. 1 22 October 1996 ORIGINAL: ENGLISH

Fifry-first session Agenda item 146 REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS FORTY-EIGHTH SESSION

Note bv the Secretary-General Corri~endurn

11. DRAFT ARTICLES O N T H E DRAFT C O D E 0 AGAINST T H E PEACE A N D SECURITY O F MANKIND 1. Page 5, article 8, second sentence & r article 15 read article 16

2. Paw S . article 9, penultimate line For articles read article 111. DRAFT ARTICLES O N STATE RESPONSIBILITY e annex 11, p a r a m a ~ h1, first sentence 3. P a ~ 34, The sentence should read The Arbitral Tribunal referred to in articles 58 and 60, pragraph 2, shall consist of five members

406


11. DRAFT ARTICLES O N THE DRAFT CODE OF CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND

PART I. GENERAL PROVISIONS A r t i ~ l r1 Scope and application of the present Code

1. The present Code applies to the crimes against the peace and security of mankind set out in Part 11.

2. Crimes against the peace and security of mankind are crimes under international law and punishable as such, whether or not they are punishable under national law.

Article 2 Individual responsibility

1. A crime against the peace and security of mankind entails individual responsibility.

2. An individual shall be responsible for the crime of aggression in accordance with article 16. 3. An individual shall be responsible for a crime set out in articles 17, 18. 19 or 20 if that individual: intentionally commits such a crime; orders the commission of such a crimc which in fact occurs or is attempted; fails to prevent or repress the commission of such a crime in the circumstances set out in article 6; knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime, including providing the means for its commission; directly participates in planning or conspiring to commit such r crlme which in fact occurs; directly and publicly incites another individual to commit such .; crime which in fact occurs; attempts to commit such a crime by taking action commencing the execution of a crime which does not in fact occur because o: circumstances independent of his intentions.

Document I1 .lrticle 3 Punishment ;\n individual \vho is responsible for a crime against the peace a n d security oi mankind shall be liahle to p u n i s h n ~ e r ~Tt .h e punishment shall be commensurate with the character and g r a v i ~of the crime.

Article 4 Responsib~l~ry of States T h e fact that the present Code provides for the responsibility of individuals for crimes against the peace and security of mankind is \vithout prejudice to an)- question of rhe responsibility of States under international law.

.lrticle 5 Order of a Go\ernment or a superlor T h e fact that an indvidual charged ~vitha crime against the peace and security o t mankind acted pursuant TO an order of a Government o r a superior does not relieve him of criminal responsibility, but may be considered in mitigation of punishnlent if justice so requires.

4rticle 6 Responsibility of the superlor The fact that a crime against the peace and sec~iriiyo f m a n h n d was c o n ~ n ~ i t t e d b!. a subordinate does not relieve his superiors of criminal responsibility, if they knew or had reason to know, in the circumstances at the time, that the subordinate was commitring or was going to comnlit such a crime and if they did not t k e all necessan measures within their power to prevent or repress rhe crime.

L l r t ~ c l7 e Official posltlon and ~ e s ~ o n s ~ b i l ~ q T h e official position of an individual who commits a crime against the peace and security of mankind, even if he acted as head o f State o r Go\-ernrnent, does not relieve him of criminal responsibility o r mitigate punishment.

Max Planck Yearbook of United Nations Law Article 8 Establishment of jurisdiction Without prejudice to the jurisdiction of an international criminal court, each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set out in articles 17, 18, 19 and 20, irrespective of where or by whom those crimes were committed. Jurisdiction over the crime set out in article 15 shall rest with an international criminal court. However, a State referred to in article 16 is not precluded from trying its nationals for the crime set out in that article.

Article 9 Obligation to extradite or prosecute Without prejudice to the jurisdiction of an international criminal court, the State Party in the territory of which an individual alleged to have committed a crime set out in articles 17, 18, 19 or 20 is found shall extradite or prosecute that individual.

Article 10 Extradition of alleged offenders To the extent that the crimes set out in articles 17, 18, 19 and 20 are not extraditable offences in any extradition treaty existing between States Parties, they shall be deemed to be included as such therein. States Parties undertake to include those crimes as extraditable offences in every extradition treaty to be concluded between them. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may at its option consider the present Code as the legal basis for extradition in respect of those crimes. Extradition shall be subject to the conditions provided in the law of the requested State. States Parties which d o not make extradition conditional o n the existence of a treaty shall recognize those crimes as extraditable offences between themselves subject to the conditions provided in the law of the requested State. Each of those crimes shall be treated, for the purpose of extradition between States Parties, as if it had been committed not only in the place in which it occurred but also in the territory of any other State Party.

Document I1 Article 1 1 Judicial guarantees 1.

An individual charged with a crime against the peace and security of mankind shall be presumed innocent until proved guilty and shall be entitled without discrimination to the minimum guarantees due to all human beings with regard to the law and the facts and shali have the rights: in the determination of any charge against him, to have a fair and public hearing by a competent, independent and impartial tribunal duly established bv law; to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his ~ w n ~ c h o o s i n g ; to be tried without undue delay; to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him and without payment by him if he does not have suficient means to pay for it; to examine, or have examined, the witnesses against him and to obtain the attendance and examination ofwitnesses on his behalf under the same conditions as witnesses against him; to have the free assistance of an interpreter if he cannot understand or speak the language used in court; not to be compelled to testib against himself or to confess guilt.

2.

An individual convicted of a crime shall have the right to his conviction and sentence being reviewed according to Idw.

Article 12 Non bis in idem 1.

No one shall be tried for a crime against the peace and security of

mankind ofwhich he has already been finally convicted or acquitted by an international criminal court. 2 . An individual may not be tried again for a crime ofwhich he has been finally convicted or acquirted by a national court except in the following cases: (a) by an international criminal court, if: (i) the act which was the subject of the judgment in the national court was characterized by that court as an ordinary crime and not as a crime against the peace and security of mankind; or

hlax Planck Ycarbook of United Nations Law (ii) the national court proceedings were nor impartial or independent or were designed to shield the accused from international criminal responsibility or the case was not diligently prosecuted; (b)

by a national court of another State, if: (i) the act which was the subject of the previous judgment took place in the territory of that State; or (ii) that State was the main victim of the crime.

3. In the case of a subsequent conviction under the present Code, the court, in passing sentence, shall take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served.

Article 13 Non-retroactivity

1. No one shall be convicted under the present Code for acts committed before its entry into force.

2. Nothing in this article precludes the trial of anyone for any act which. at the time when it was committed, was criminal in accordance with international law or national law.

Article 14 Defences The competent court shall determine the admissibility of defences in accordance with the general principles of law, in the light of the character of each crime.

Article 15 Extenuating circumstances In passing sentence, the court shall, where appropriate, take into accoun: extenuating circumstances in accordance with the sgeneral principles of law.

Document I1 P.ART 11. CRIMES AGAINST T H E PEACE ' 4 K D SECURITY OF MANKISD

Article 16 Crime of aggression A n individual, who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State, shall be responsible for a crime of aggression.

Article 17 Crime of Genocide

X crime of genocide means any of the following acts committed with intent to destroy, in whole or in parr, a national, ethnic, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.

Article 18 Crimes against humanit)

A crime against humanity means any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a government or by any organization or group: murder; extermination; torture; enslavement; persecution on political, racial, religious or ethnic grounds; institutionalized discrimination on racial, ethnic or religious grounds involving the violadon of hndarnental human rights and freedom and resulting in seriously disadvantaging a pan of the population; arbitrary deportation or forcible transfer of population; arbitrary imprisonment; forced disappearance of persons;

412

Max Planck Yearbook of L n ~ t e dNations Law

(j) (k)

rape, enforced prostitution and other forms of sexual abuse; other inhumane acts which severely damage physical or mental integrity, health or human dignity such as mutilation and severe bodily harm.

Article 19 Crimes againsr United Nations and associated personnel T h e following crimes constitute crimes against the peace and securiry of mankind when committed intentionally and in a systematic manner or o n a large scale against United Nations and associated personnel involved in a United Nations operation with a view to preventing or impeding that operation from fulfilling its mandate: (a) murder, kidnapping or other attack upon the person or liberty of any such personnel; (b) violent attack upon the official premises, the private accommodation or the means of transportation of any such personnel likely to endanger his or her person or liberry.

2. This article shall not apply t o a United Nations operation authorized by the Security Council as an enforcement action under chapter V11 of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies.

Article 20 War crimes Any of the following war crimes constitutes a crime against the peace and security of mankind when committed in a systematic manner or o n a large scale: (a) any of the following acts committed in violation of international humanitarian law: (i) wilful killing; (ii) torture or inhuman treatment, including biological experiments; ( i i i ) wilfdly causing great suffering or serious injury to body or heal&; (iv) extensive destruction and appropriation of property, not justified by military necessiry and carried out unlawfully and wantonly; compelling a prisoner of war or other protected person to (V) serve in the forces of a hostile Power;

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(vi) wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) unlawful deportation or transfer or unlawful confinement of protected persons; (viii)taking of hostages; any of the following acts committed wilfully in violation of international humanitarian law and causing death or serious injury to body or health: (i) making the civilian population or individual civilians the object of attack; (ii) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects; (iii) launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects; (iv) making a person the object of attack in the knowledge that he is hors de combat; the perfidious use of the distinctive emblem of the red cross, red (V) crescent or red lion and sun or of other recognized protective signs; any of the following acts committed wilfully in violation of international humanitarian law: (i) the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies; (ii) unjustifiable delay in the repatriation of prisoners ofwar or civilians; outrages upon personal dignity in violation of international humanitarian law, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; any of the following acts committed in violation of the laws or customs of war: (i) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering (ii) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (iii) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings or buildings or of demilitarized zones;

Max Planck Yearbook of United Nations Law ( v ) seizure of, destruction of or wilful damage done to institutions

(V)

dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; plunder of public or private property;

(f)

any of the following acts committed in violation of international humanitarian law applicable in armed conflict not of an inter.. national character: (i) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; (ii) collective punishments; (iii) taking of hostages; (iv) acts of terrorism; outrages upon personal dignity, in particular humiliating (V) and degrading treatment, rape, enforced prostitution and any form of indecent assault; (vi) pillage; (vii) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are generally recognized as indispensable;

(g)

in the case of armed conflict, using methods or means of warfare not justified by military necessity with the intent to cause widespread, long-term and severe damage to the natural environment and thereby !gravely prejudice the health or survival of the population and such damage occurs.

Document 111

415

UNITED NATIONS Economic a n d Social Council Distr.

GENERAL EIC. 1211IAdd.71Rev. 1 2 December 1996

ORIGINAL: ENGLISH

Committee on Economic, Social and Cultural Rights

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLES 16 AND 17 OF THE COVENANT Concluding observations of the Committee on Economic, Social and Cultural h g h t s

BELARUS 1. At its 34th to 36th meetings on 21 and 22 November 1996, the Committee considered the third periodic report of the Republic of Belarus on articles 1 to 15 of the Covenanr (El 19941104lAdd.6) and adopted, at its 54th meeting held on 5 December 1996, the following concluding observations.

A. Introduction 2. T h e Committee is gratified that the State party punctually submitted its third periodic report, which complied with the guidelines regarding the form and contents of reports to be submitted by States parties. It appreciates also the additional information provided in response to the written list of questions, although the latter did not follow a sufficiently clear format. It welcomes the high level delegation, with which it engaged in an open and constructive dialogue. With some exceptions, the members

Max Pianck Yearbook of United Nations Law

4 l6

of the delegation provided satisfacton oral replies to mosr of the Committee's questions.

B. Positive aspects T h e Committee \velcomes efforts by the State parry to improve and update its legislation and to bring it into line with the socio-economic sphere. In particular, it regards as positive developments the steps taken to update the Labour Code, the Act o n collective agreements and work agreements, the Act on pension provision, the Act on employment and the Act on procedures for the settling of labour disputes, and the authorities' dialogue on these questions with experts from the International Labour Organization. T h e Committee notes that the Government is taking steps to combat u n e n ~ p l o ~ m e ninter t , alia by setting up and boosting the efficiency of a State employment service and a vocational training and retraining scheme, and by dra~vingu p yearly Government employment programmes calling for a range of measures to aid the unemployed in finding ~ v o r kand offer them material support. T h e Committee notes the State party's efforts to cope with the aftermath of the accident at the Chernobyl nuclear power station, including the provision oimedical assistance to those directly affected and welfare measures for those ~ v h olvere in the vicinitv at the time of the accident. T h e Committee also notes efforts by the Belarusian authorities t o incorporate human rights issue into school curricula and teacher-training schedules, and the corresponding segments and specialized courses into vocational training, retraining and further education programmes for professionals of all categories. It also notes with satisfaction the establishment of a H u m a n Rights Chair in the Academy of the Belarusian Ministry of Internal ,?\ffairs. T h e Committee welcomes the statement by the head of the Belarusian delegation that his Government endorsed the idea of drafting of an optional protocol [o the International Covenant o n Economic, Social and Cultural R ~ g h t s . T h e C o n ~ m i t t e eis gratified that the third periodic report of Belarus has been issued as a separate pamphlet and sent [o libraries, the mass media and individual non-governmental organizations in the State part):

Document I11

C. Factors and difficulties impeding the implementation of the Covenant

9. The Committee notes that Bel~rusis undergoing rapid changes in its development and is experiencing the sort of difficulties in socio-economic matters that are typical in many countries with economies in transition. The dissolution of the Soviet Union, of which Belarus was, until quite recently a part, has adversely affected the Belarusian economy - especially its industry, large parts of which were closely linked to and dependent on the economies of other republics of the former USSR. 10. Escape from economic crisis is rendered more difficult by the fact that Belarus, with few natural and energy resources of its own, is heavily dependent on raw materials and energy from elsewhere. Rising energy costs have directly affected prices for basic necessities and food. 11. The clean-up after the accident at the Chernobyl nuclear power station is said to absorb up to 20 per cent of the annual budget. International donors and investors have withheld their aid or investments pending the introduction of legal - and economic reforms. Many of the country's present economic and social difficulties show the need to expedite economic reforms and to build up democratic institutions based on the principles of the rule of law.

D. Principal subiects of concern 12. The Committee observes that the establishment of a regime that concentrates power in the Presidency, at the expense of the independent role of the Parliament and the independence of the judiciary, is not consistent with the political environment necessary for the exercise of human rights, including economic, social and cultural rights. 13. The Committee expresses its deep concern ar the growing number of people in Belarus living at or below the poverty line, the sharp decline in purchasing power and the widening p l f between rich and poor while the very poorest segments of the population are on extremely low incomes. 14. The Committee also expresses concern that crime, drug use, corruption and so forth are on the increase. 15. The Committee is concerned that some 600,000 children still live in the zone affected by the accident at the Chernobyl nuclear power station.

4 18


16. The Committee is concerned at the rise in unemployment, particularly in relation to its disproportionate impact on women. It is also concerned at the discrimination againsr women in appointment to jobs.

17. The Committee is disturbed at the legal status of trade unions in Belarus: the shortcomings of the legislation replating heir activities and the existence of certain legislative provisions which restrict freedom of association. It notes with concern that a number of formerly recognized major trade unions, all of which have been required to register anew under the new legislation, appear to have been re vented from applying for re-registration with the Ministry of Justice.

18. The Committee expresses its preoccupation at the fact that the information on treatment of HIVIAIDS infected persons is completely absent from the report. The delegation's assurance that there exists sexual counselling for men as well as for pregnant women does not eliminate the Committee's concern that such services are inadequate. 19. Although the Committee notes the Government's assurance that it has created sufficient detoxification and rehabilitation centres for drug and alcohol addicts, it remains concerned that what is being done in this view does not appear to be sufficient to meet the needs that exist.

E. Suggestions and recommendations 20. The Committee is gratified that article 8 of the Belarusian Constitution acknowledges the primacy of principles of international law and requires national legislation to conform to those principles. The Committee, taking note of the acknowledgement by the delegation that Belarus legislation needs to be reviewed to bring it into conformity with the Covenant, recommends that the necessary measures be taken as soon as possible and that the human rights legislation to be enacted in Belarus will closely match internationally acknowledged standards. 21. The Committee emphasizes that any economic reform adopted should be undertaken in a manner that is consistent with protection of the economic and social rights of the poorer segments of society. 22. The Commitee draws the Government's attention to the need to update the legislation governing the freedom of activity of trade unions and the need for legislation on the right to strike; such legislation should accord with the provisions of the Covenant and the ILO

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Conventions No. 87 (Freedom of Association and Protection of the R ~ g h tto Organize Convention) and No. 98 (Right to Organize and Collective Bargaining Convention). The Committee urges that consideration be given to limiting the list of sectors in which workers do not have the right to strike to no more than those authorized by relevant international standards, such as the armed forces, the police, etc.

23. The Committee also calls upon the Government to adopt legislation and practical steps to combat discrimination against women in employment.

24. The Committee notes the need for the State party to respond to the challenge of HIVIAIDS with adequate new legislative and social measures. In this connection, it would be appropriate if the Government would coordinate with the relevant departments of WHO and UNAIDS. The Committee requests the Government to provide it, in its fourth periodic report, with relevant statistics and information on concrete measures ~indertakenin that respect since the consideration of the present report.

25. The Committee requests the State party, in its fourth periodic report, to supply it with information o n the steps it is taking to raise the standards of living, reduce unemployment, and eliminate the restrictive legislation governing trade unions.

26. The Committee recommends that the Government should increase its efforts in relation to human rights education so as to ensure that all categories of students, teachers, judges and the police and other law enforcement agents are covered.

27. The Committee calls upon the State party to consider the adoption of measures which would enable the courts to take account of and apply the rights recognized in the Covenant on Economic, Social and Cilltural Rights.

28. The Committee encourages the State party to widely disseminate the Concluding observations adopted by the Committee following the consideration of the State parry's third periodic reporr.


420

UNITED NATIONS Economic and Social Council Distr. GENERAL EIC. 1211lAdd.6 6 December 1996 ORIGINAL: ENGLISH

Committee on Economic, Social and Culrural Rights

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLES 16 AND 17 OF THE COVENANT Preliminary concluding observations of the Committee on Economic, Social and Cultural Rights

DOMINICAN REPUBLIC 1.

T h e Committee considered the second periodic report of the Dominican Republic on articles 1 to 15 of the Covenant (E/1990/6/Add.7) at its 29th and 30th meetings, held on 19 November 1996, and adopted, at its 50th meeting, held on 3 December 1996, the following concluding observations.

A. Introduction 2. The Committee expresses its appreciation to the State party for its

report and welcomes the appearance before it of the Permanent Representative of the Dominican Republic to the United Nations Office at Geneva. The Committee, however, notes with regret that the Government of the State party neither provided written replies to the Committee's list of issues (EIC. 1211995lLQ.7) made available to it in January 1996, nor sent an expert delegation to present its report as it

Document I11

42 1

had promised to do at the Committee's fourteenth session in May 1996, when requesting the postponement of the consideration of its report to the fifteenth session. Consequently, the Committee was obliged, in accordance with its method ofwork, to consider the second periodic report of the Dominican Republic without the benefit of a dialogue or the participation of an expert delegation. Nevertheless, the Committee notes the statement by the Permanent Representative of the Dominican Republic to the United Nations Office in Geneva that, although she was unable to take an active part in the dialogue with the Committee, she would communicate to her Government the principal additional subjects of concern identified by the Committee in the course of its deliberations.

3. T h e Committee notes with dissatisfaction that the report submitted by the Government of the State party was, like the initial report, not prepared in accordance with its revised general guidelines (EIC. 12119 9 l I l ) . It also notes that information contained therein is incomplete and of a purely legal nature, without any reference to the situation concerning the practical realization of the rights set forth in the Covenant and that the suggestions and recommendations formulated by the Committee in its concluding observations and adopted at its eleventh session in November 1994 have not been addressed in the present report. It further notes, with regret, the lack of information of a general character which the State party was supposed to have provided in a "core document", which it has similarly failed to submit. T h e Committee feels that the failure of the State party to respond to the list of issues and to send a delegation with competence to engage in a dialogue with it during this fifteenth session shows, on part of the State party, a consistent pattern of disregard for its obligations under the Covenant and an unwillingness to cooperate with the Committee. 4.

In this connection, the Committee wishes to express its gratitude to the non-governmental organizations, both national ("Ciudad Alternativa" and COPADEBA) and international (Habitat International Coalition and International Women's RIghts Action Watch) for the detailed and carefully documented information they have made available to it in relation to the Dominican Republic's report. In particular, the Committee draws the attention of the State party to the document "The Dominican Republic: An independent report submitted to the UN Committee on Economic, Social and Cultural Rights by the International Women's k g h t s Action W a t c h .

Max Planck Yearbook of United Nations Law Positive aspects

The Committee notes with satisfaction, from the information avadable to it from other sources, that the Government has repealed Decree No. 358-91, the application of which had previously negatively affected the realizatiorl of the right to adequate housing, and that it has provided a solution to the cases of eviction pronounced under previous governments. T h e Committee further appreciates the information that the Government has undertaken a thorough review of the public health sector and is preparing a reform of the Health Code. The Committee further appreciates the attempts being made in the Chamber of Deputies to recognize domestic violence as a public health issue and thus to discourage gender violence as a matter of public policy.

Factors and difficulties impeding the implementation of the Covenant

The Committee notes that the slow evolution towards democracy and the rule of law in the Dominican Republic has inhibited the strengthening of democratic institutions, the modernization of the machinery of government and, consequently, the effective implementation of the Covenant. The Committee also observes that economic difficulties characterized by, inter alia, an increasing number of impoverished people (60 to 65 per cent of the population live below the poverty line) and the landless rural population, the high level of unemployment, especially in the cities, and the persistent large-scale emigration of skilled and semiskilled workers out of the country have had a constraining influence on the implementation of the Covenant in the country.

Principal subjects of concern

In relation to article 2 of the Covenant, the Committee observes that the Dominican Republic has done very little to promote public awareness of the rights set forth in the Covenant. T h e Committee has been informed that abuses by the police and other security services ~ersist.

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1 1 . T h e Committee notes with regret that, although in law United Nations human rights treaties become part of Dominican law upon ratification, in practice the judiciary does not apply these international treaties. 12. T h e Committee is particularly concerned about the exploitarion of Haitians, and their unacceptable living conditions in the bateyes. In this connection, it has no reason not to accept the veracity of various reports which emphasize the dire predicament of workers in the bateyes, especially women workers whose presence there is not administratively recognized and who therefore become vulnerable to extreme exploitation (their wages are 50 percent lower than of men's) and are often deprived of their rights and the most basic health and social services. Both men and women in the bateyes, as well as Haitian workers in other sectors of the economy, live in perpetual insecurity and they constitute the principal national group in the Dominican Republic who are subject to deportation in inhuman conditions, oken at the whim of employers who take advantage of the State's inaction to exploit the vulnerability of this group.

13. T h e Committee takes note of information from various sources concerning - the arbitrary confiscation of identity cards called "ceduias" and the illegal deportation of persons of Haitian origin born in the Dominican Republic during the 1995-1 996 presidential campaign. This information stresses the insecurity prevailing with regard to nationality of Dominican citizens of Haitian origin. It thus appears necessary to adopt clear legislation on nationality, which would procure legal security to persons of Haitian origin born in the Dominican Republic and to their children; which would require the authorities to register births without discrimination; and which would allow Haitians to obtain Dominican nationality through naturalization under the same conditions as other foreigners.

14. T h e Committee is informed that Black Dominicans are often subject to the same arbirrary police and administrative discrimination as remporary Haitian workers. Groups representing Blacks in the Dominican Republic also claim that the State violates their cultural rights by allowing the police and local communities to suppress Afro-American or African-identified cultural practices. They also assert that discrimination of this kind is encouraged at the ~ u b l i cschools and by employers in both the public and private sectors. 15. The Committee also notes with concern that, according to information received from various sources, there is no mechanism for lodging

424

Max Planck Yearbook of United Nations Law complaints against the arbitrariness or corruption of some judges and that there is no appellate procedure for challenging the discriminatory application of a law, an executive decree or a decree of the court.

16. The Committee notes with great concern that state expenditures on education and training as a proportion of public expenditure are less than half their average in Latin America.

17. The Committee notes with concern that large-scale emigration of Dominicans has been going on for many years and has had and will continue to have a harmful effect on the Dominican economy, since a great part of the emigrants are skilled workers. The State party will have to take measures in the educational and socio-economic fields to stem the out-flow of skilled workers.

18. The Committee notes with alarm that, 30 years after the first industrial park was established in a free trade zone in the Dominican Republic, unacceptable working conditions and abuses against workers rights under articles G, 7 and 8 of the Covenant continue. 19. The Committee notes with concern the inhuman and archaic prison system, whereby members of the family of an accused person, who has run away may be imprisoned without trial in his place as a guarantee for the absentee-accused until he hands himself over to the prison authorities; and whereby prisoners are supposed to buy their own meals at weekends, when the prison authorities stop providing any meals to the prisoners.

20. The Committee is concerned to note the persistent rise of "sex tourism" in resort areas, and the spread of AIDS, which is one of the country's greatest health problems. 21. The Committee is particularly concerned that [he enjoyment by women of economic, social and cultural rights is undermined, inter alia by: a traditional and persistent male dominated society; the failure to ensure that single women heads of household benefit from the agrarian reform or the Government's housing programme; the absence of any administrative mechanism that allows women to file complaints in cases of discrimination by the Dominican Agrarian Institute; the failure of the Government to protect women workers from discrimination or arbitrary dismissal related to pregnancy, including failure to discourage employers from the practice of pregnancy testing; and failure to develop and promote family planning services. The Committee is also con-

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cerned that, despite the very high rate of hospital births in the Dominican Republic, the rate of maternal mortality is unacceptably high; common law marriages are not legally recognized, although 60 per cent of all marriages are of this nature and, consequently, in cases of separation, abandonment or the death of the male bread-earner of the family a woman frequently loses everything and finds it difficult to acquire a cedula or collateral, without which she cannot obtain agricultural credit, housing or employment.

22. The Committee wishes to voice its serious concern about the continuing problem of violence against women and the insufficient attention paid to the problem by governmental institutions.

23. The Committee expresses its concern about the issue of limited access to safe drinking water for the rural population and those living in deprived urban areas, the higher incidence of infant mortality in certain socio-economic groups, the deplorable situation of persons with disabilities, the prevalence of endemic diseases, the problem of the inadequacy of social welfare and security, the persisting housing shortage and the inadequacy of access to health care.

24. The Committee also calls attention to the various concerns it has expressed to the State party since its fifth session (1990) in relation to the continuous violation of the right to adequate housing and regrets the fact that it has received an entirely unsatisfactory and inadequate response from the State party in this respect. The Committee reminds the State party of the significance it attaches to the right to adequate housing and thus to the adoption of measures by the State party to recognize, respect, protect and fulfil that right.

E. Suggestions and recommendations 25. The Committee invites the State party to confirm publicly its commitment to implement its binding human rights treaty obligations. It strongly calls upon the Government of the State party to honour its obligations under the International Covenant on Economic, Social and Cultural Rights, particularly through maintaining the proper direct and constructive dialogue with the Committee called for in the Covenant. The Committee proposes to adopt finally its concluding observations in relation to the State party at its sixteenth session. For that reason the Committee decides that these concluding observations will be considered "preliminary", pending further consideration of the

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lMax Planck Yearbook of United Nations Law report based on a dialogue with representatives of the State party at its sixteenth session.

26. In view of the consistent failure of the State party to meet its reporting obligations under the Covenant and to respond to successive requests for information made by the Committee over a number of years, the Committee urges the State party to attach the utmost importance to responding to the matters raised in the present concluding observations. 27. The Committee further recommends that the State Party provide it with written replies to its concluding observations adopted at its eleventh session (EIC. 121193411j ) , in particular with regard to its request that the State party invite representatives of the Committee to visit the Dominican Republic; the written list of issues drawn up with respect to the third periodic report (EIC.121199jlLQ.7); information contained in the document "The Dominican Republic: An independent report submitted to the UN Committee on Economic, Soci~iland Cultural Rights by the International Women's R ~ g h t sAction Watch". 28. The Committee requests the State Party to submit the information referred to in the preceding paragraph by 15 February 1997 in order to allow the Committee to consider that information at its sixteenth session, to be held from 28 April to 16 May 1997. 29. The Committee strongly recommends that the specific information requested above be presented to the Committee at its sixteenth session by an expert delegation.

30. The Committee encourages the State party to widely disseminate the Concluding observations adopted by the Committee following the consideration of the State party's second periodic report.

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UNITED NATIONS

Economic and Social Council Distr. GENERAL EiC. 1211iAdd.4 28 May 1996 ENGLISH ORIGINAL: FRENCH


CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLES 16 AND 17 OF THE COVENANT

Concluding observations of the Committee on Economic, Social and Cultural Rights

EL SALVADOR 1. T h e Committee considered the initial report of El Salvador (E/1990/5/Add.25) at its 15th, 16th and 18th meetings, held on 9 and 10 May 1996, and adopted, at its 26th meeting, held on 17 May 1996, the following concluding observations.

A. Introduction 2. T h e Committee thanks the State party for its initial report, despite the considerable delay in its submission. The Committee also thanks the State party for its written replies to the list of issues, but regrets that they were not submitted in time to be translated and considered more carefully by members of the Committee. The Committee also regrets that information relating to article 15 of the Covenant was missing from the report, as well as from the written replies to the list of issues, in spite of specific requests for such information. T h e Committee notes

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Max Planck Yearbook of United Nations Law with satisfaction that the report of El Salvador was drafted in consultation with national non-governmental organizations. The Committee points out that the lack of concrete information, both in the written report and in the written and oral replies provided by thL delegation, prevented the Committee from making an effective evaluation of the actual situation as regards the exercise of economic, social and cultural rights by the Salvadoran population. The Committee notes in particular the delegation's failure to provide specific statistics on the composition of the population and on the various economic, social and cultural indicators. However, the Committee has taken note of the delegation's undertaking that additional information will be provided in response to the various points raised by the Committee.

Positive aspects

The Committee notes with satisfaction that, within the internal legal order, international human rights instruments take precedence over national laws, and that the 1983 Constitution contains human rights provisions. T h e Committee also notes that amparo proceedings may be instituted for the protection of economic, social and cultural rights, although the delegation failed to clarify whether the provisions of the Covenant can be invoked directly before the courts. The Committee welcomes the ratification of 14 ILO Conventions in 1994, including: Medical Exanlination of Young Persons (Industry) (Convention No. 77), Labour Inspection (Convention No. 81), Minimum Wage Fixing Machinery (Agriculture) (Convention No. 99), Discrimination (Employment and Occupation) (Convention No. 11 l ) , Labour Inspection (Agriculture) (Convention No. 129), Minimum Wage Fixing (Convention No. 131), Human Resources Development (Convention No. 142) and Tripartite Consultations (International Labour Standards) (Convention No. 144). The Committee notes with satisfaction the creation in 1991 of the post of Procurator for the Defence of Human Rights, whose important functions, particularly the competence to conduct inspections and investigations, file complaints or draft recommendations, are provided for in article 194 of the Constitution. T h e Committee also welcomes the creation of local units of the ofice of the Procurator for the Defence of Human Rights to ensure wider understanding of and greater protection for human rights, including economic, social and cultural rights.

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7. The Commici-ee welcomes the adoption of an economic and social development plan for 1994-1999, i-he main aims of x.hich are to reduce poverty, improve the quality of life of the population and increase the access of landless peasants to the land. The Comnlittee also notes that the portion of the national budget allocated to social expenditures has increased. T h e establishment of a Social Investment Fund to channel resources from donors to projects designed mainly to help low-income groups and the implementation of the Social Rehabilitation Plan for -8 communes are welcomed by the Committee.

8. T h e Committee welcomes the measures taken by the Government to reform the education system and improve access to education. The E D U C O programme introduced to promote the education of rural children and adults, literacy programmes and the comprehensive child care programme are all positive steps towards the realization for all of the tight to education. 9.

The Committee also welcomes the creation in 1989 of the Nationd Secretariat for the Family, the adoption of a ne\v Family Code, the Government's ratification of the Inter-American Convention on the Prevention, Punishment and Eradication ofViolence against Women in August 1995, and the establishment of the Salvador Institute for the Development of Women and the Salvador Institute for the Prorection of Minors. T h e Committee welcomes the introduction of a telephone hotline to provide psychological help to victims of violence and to inform them about the social and medical help and legal assistance available to them.

C. Factors and difficulties impeding the implementation of the Covenant 10. T h e Committee recognizes that the high cost of rebuilding numerous elements of infrastructure that were destroyed during the 12 years of civil war and of the implementation of the two Peace Agreements, in conjunction with the region's difficult economic clrcurnstances, hamper the full realization of economic, social and cultural rights.

1 1. T h e full implementation of economic, social and cultural rights is further hampered by the high cost of the reintegration of returning refugees and displaced persons.

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D. Principal subjects of concern T h e Committee is deeply concerned at the high level of poverty which is affecting most of the country's inhabitants. The food and nutritional situation is a major problem, reflected among other things in a high level of infant mortality since a very high proportion of children are suffering from malnutrition. Although the Committee recognizes that considerable efforts have been made by the authorities to improve the situation, it wishes to emphasize that the continued existence of such a level of poverty in a country experiencing constant economic growth is unjustifiable.

13. The Committee is concerned at the sluggishness with which certain clauses of the 1992 Peace Agreement are being implemented, including those concerning respect for the economic, social and cultural rights of the population, and more particularly the programme of land redistribution.

14. The Committee also notes that the scope of the authority of the Office of the Procurator for the Defence of Human Rights is unclear, particularly as regards follow-up by the administrative or judicial authorities to complaints filed by his Office concerning violations of economic, social and cultural rights brought to his attention by individuals.

15. T h e Committee notes with concern that discrimination against women, borh ar work and in rhe home, remains a major problem within Salvadoran society, and while noting that efforts have been made to changc thc Icgislation, it emphasizes that the law stilI contains discriminatory provisions, particularly in thc Civil and Penal Codes.

16. The Commirree regrers rhe roral lack of specif.k information on articles G ro 8 of the Covenant, both in the written report and in the dcbatc. Thc Cornrnittce expresses its concern over the adverse consequences for economic, social and cultural rights of the way in which economic adjustment, ausrerity and privati~ation programmes have been implemenred, especially in che shorr term. T h e Committee notes that working conditions in the dutyfree zones have dereriorated and that difficulties have rcsulted from the inadequacy of resources available to enable the factory inspcctoratcs to enforce legislation on the minim u m wage, equal remuneration for men and women, industrial safety and hygiene and wrongfill dismissal. 17. The Committee regrets that article 291 of the Penal Code still remains in force, despite the fact that is has been deemed contrar). to

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Convention No. 105 of the International Labour Organization by its Committee of Experts.

18. Although the Committee takes note of the increase in the minimum wage, it is concerned that the minimum wage remains below the cost of subsistence, as acknowledged by the delegation of El Salvador; the minimum wage amounts to 1,050 colones in urban areas and 900 colones in rural areas, while the meeting of basic subsistence costs amounts to 4,500 colones. 19. The Committee considers that the legal restrictions on trade-union freedom and the right to strike are far too extensive. In the view of the Committee, the prohibition on aliens occupying positions of responsibilitv within a trade union is contrary to the Covenant. T h e Committee is concerned at the numerous reports it has received of violations with virtually total impunity in enterprises located in dutyfree zones of the rights contained in articles 7 and 8 of the Covenant. 20. The Committee expresses its concern at the extent of the problem of violence against women, both within and outside the family, in El Salvadoran society and its implications for the physical and mental health of women and their children. 21. The Committee notes with concern the apparently chronic housing shortage and the fact that a large proportion of the population lives in precarious conditions and in housing that does not correspond to the content of the right to adequate housing recognized in article I I of the Covenant. 22. The Committee notes that, despite a number of initiatives by the Government, effective access to education by children of school age is unsatisfactory in El Salvador. The Committee is particularly concerned at the fact that the objective of universal primary education has not yet been achieved. The high drop-out rate, high absenteeism, failure rates and the high rates of illiteracy as a result of exclusion from the education system are also of concern to the Committee. Although child labour is often necessary for the survival of the family, it is one of the factors hampering the implementation of articles 13 and 14 of the Covenant, and the Committee is disturbed by the apparent lack of action by the authorities to remedy the situation. 23. The Committee is concerned that it has received no information on any programmes introduced by the Government to guarantee the economic, social and cultural rights of ethnic minorities in El Salvador.

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Max Plarick Yearbook of Unitcd Na~ionsLaw

24. 'I'he Comniittee notes with concern the total lack of information on either legislation or practice in El Salvador conccrning the implementation of cultural rights specified in article 15 of the Covenant. 25. The Commirree notes that the technical cooperation project submitted by the Centre for I Iuman Righrs of the Unitcd Nations to the Governmenr: of El Salvador, which would enable the larter to receivc the assistance necessary to implcment the intrrnatiorlal human rights convcntions to which El Salvador is a parry and to develop grearcr Fa~niIinrit~ with and respect for human rights among thr mttnbers of its administration, has not yet been approved by rhe authorities.

E. Suggestions and recommendations 26. The Committee recommends that the Government address the problem of the inequitable distribution of wealrh among cht: populatiori in order to combat the poverty thac characterizes the country.

27. The Committee recommends thar every effort be made to ensure the prompt and full implementation of the 1992 Peace Agreenlents, including the provisions which relate to land rcdistribution and economic, social and cultural rights, respect for which is, in the Committee's opinion, a guarantee of social peace in El Salvador.

28. The Committee would like the next report submitred by El Salvador to contain specific information on the activities of the Ofike of the Procurator for the Defence of Human Rights and, in particular, on how much weight is carried by the recommendations it makes and on the action taken on complaints it files with regard to violations of economic, social and cultural rights.

29. The Committee urges thar all necessary measures should be taken ro eradicate discrimination against women in Salvadoran Iaw and char programmes be sec up to eliminate inequalities between men and women.

30. T h e Committee recommends thar particular attention be paid to the problems of unemployment. It recommends that measures be taken to ensure that as few jobs as possible are sacrif ced and that social protection and vocational rehabilitation programmes are guaranteed for persons who lose their jobs.

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31. The Committee recommends that the State parry make the necessary efforts to implement the Salvadoran legislation on minimum wages, safe and healthy working conditions, equal pay for equal work by men and women and arbitrary dismissals. To this end, the Committee stresses that suffkient resources must be allocated to labour inspection services to enable them to carry out the tasks entrusted to them.

32. T h e Committee recon~mendsthat El Salvador take the necessary measures t o bring its legislation on trade-union freedom, collective bargaining and the right to strike into line with its international obligations.

33. The Committee recommends that the construction of low-income housing for the poorest sectors of Salvadoran society be intensified in urban and in rural areas and that a greater effort be made to provide sanitation and drinking water supplies for the entire population.

34. The Committee encourages the Government of El Salvador to pursue the reforms of the education system that it is carrying out, particular-

ly in order to make primary education available to all and to reduce illiteracy. It is the Committee's opinion that measures should be taken by the authorities to enable working children to receive an adequate education.

35. The Committee would like the next report of the State party to contain information enabling it to evaluate the extent to which the members of indigenous communities enjoy all the economic, social and cultural rights povided for in the Covenant.

36. In view of the many gaps identified by the Committee in the written report and the additional information supplied by the Government and the delegation of El Salvador, the Committee reiterates its request to the Government to submit further information on articles 6 to 8 and 15 of the Covenant, as well as on any problems encountered in this regard. Such informarion should be provided to the Committee by 31 October 1996.

37.While wclcoming the establishment of collaboration benveen the authorities and non-governmental organizations, the Committee notes that that collaboration is sporadic, and expresses the hope that it will become general, particularly with regard to drafting reports for the various international human rights treaty bodies, including this Committee, and publicizing the activities of the Procurator for the Defence of Human Fbghts.

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38. The Committee expresses the hope that the State party will consider the possibility of ratifying the Additional Protocol the American Convention on Human %ghts in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador).

39. The Committee recommends that the proposal of the Centre for Human Rights concerning technical cooperation be given favourable consideration by the Salvadoran authorities and that such assistance be used to guarantee the enjoyment of economic, social and cultural rights by all.

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UNITED NATIONS

Economic and Social Council Distr. GENERAL EIC. 1211l ~ d d . 8 5 December 1396 ORIGINAL: ENGLISH




FINLAND

1. The Committee considered the third periodic report of Finland on the rights covered by articles 1 to 15 of the Covenant (E/1994/104/Add.7) at its 37th, 38th and 40th meetings, held on 25 and 26 November 1996, and adopted, at its 51st meeting held on 4 December 1996, the following concluding observations.

A. Introduction 2.

The Committee expresses its appreciation to the Government of Finland for the submission of its report, which follows the Committee's guidelines regarding the form and contents of States parties' reports. The Committee welcomes the submission by Finland of comprehensive written answers to its list of issues and expresses its satisfaction at the frank and constructive dialogue established with the State party,


436

through a delegation composed of experts. The Committee also notes with satisfaction the information submitted by the Government of Finland in a core document (HRI/CORE/l/Add.59IRev.l), as well as the supplementary information on the implementation of articles 13 to 15 of the Covenant submitted in response to the Committee's request afier the consideration of the second periodic report of Finland in December 199 1 (El1989/5/Add. 10).

Positive aspects T h e Committee notes the generally high level of achievement by Finland of its obligations in respect of the protection of the rights set forth in the Covenant. In this regard, the Committee expresses its appreciation of the recent amendments which have been incorporated in thc Constitution concerning the protection of certain economic, social and cultural rights of all persons under the State party's jurisdiction. T h e Committee also notes with satisfaction the existence and the activities of the Advisory Board on Human Rights Affairs, composed of representatives of various human rights organizations and of several ministries, and of the Parliamentary Ombudsman, who has competence in the field of human rights. The Committee welcomes the measures taken to promote equaliry berween men and women, such as the establishment of the Council of Equality, the Equality Ombudsman and the recent adoption of legislation requiring at least 40 per cent representation of both sexes in government appointed bodies at the national and local levels. T h e Commirtee also welcomes the Governn~ent'spolicies and programmes aimed at creating new jobs and at helping the unemployed to join or return to the labour force, through vocational training programmes, p a r r i ~ u l a r those l~ aimed at young people. The Committee notes with satisfaction the measures raken to protect and shelter the victims of domestic violence, in particular the activities deployed in this respect by the government-subsidized Union of Shelter Homes. The Committee also welcomes the recent crinlinalization of marital rape as a means to combat the phenomenon of violence against women. T h e Committee notes with satisfaction the measures aimed at promoting the teaching of the Roma and Sami languages in schools and wel-

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comes the possibility provided to the elected representatives of the Sami people to address the Parliament on issues affecting their interests.

8. The Committee notes that, despite the difficulties due to the economic recession, Finland regularly contributes, although at a reduced level, to programmes of international cooperation, thus potentially promoting the realization of economic, social and cultural rights in other countries.


9. T h e Committee notes that the economic recession facing Finland and the policies adopted to meet the convergence criteria for participating in the European Economic and Monetary Union have had significant consequences for the enjoyment of economic, social and cultural rights by the Finnish population as a whole, and by vulnerable social groups in particular. In this regard, the Committee notes that the recent budgetary cuts in social expenditure, as well as economic restructuring and the decentralization of social service arrangements are factors which may affect the full implementation of the provisions of the Covenant. However, the Committee notes the Government's view that European Union rnembership has been a useful instrument towards fulfilling its economic policy goals, including those aimed at fighting unemployment.

D. Principal subjects of concern 10. The Committee notes that, although the provisions of the Covenant may be directly invoked before the courts or referred to by the courts, t h ~ has s not yet been the case. In this respect, the Committee expresses concern that lawyers and judges may not be sufficiently aware of the rights enshrined in the Covenant.

1 1. The Committee is concerned that, although equality benveen men and women is established in the law, it is not fully achieved in practice, in particular in the field of equal remuncration, and that, in general, women continue to encounter more obstacles than men in advancing to higher professional positions.

12. While it notes with satisfaction the recent decreasc in thc percentage of the populdtion who are unemployed, the Committee is still concerned that the level of unemployment remains high, especially among young people, immigrants and refilgees.

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Max Planck Yearbook of Ucited Nations Law

13. Although it notes that collective agreements in some sectors of professional activity contain provisions for the determination of minimum wages, the Committee is concerned that no minimum wage is guaranteed by law.

14. T h e Committee expresses its concern that the major cuts in social security and other welfare expenditures have reduced the disposable incomes of single parents and young families with children, have affected the situation of persons without regular income under the Sickness Insurance Act, and have led to the cessation of adjustments to pensions and unemployment benefits.

15. T h e Committee expresses its concern at reports according to which members of the Roma minority have been discriminated against when decisions have been taken by some authorities in respect of the allocation of publicly-owned dwellings.

16. T h e Committee regrets the lack of official statistical data and other information with regard to problems such as domestic violence, child abuse, child pornography, child and adolescent suicide and alcohol abuse, the latter also affecting children and adolescents, which prevents both the authorities and the Committee from ascertaining the real extent of these problems.

17. The Committee expresses its concern at the recent increase in the school drop-out rate, which particularly affects children from economically disadvantaged groups and children belonging to minorities.

E. Suggestions and recommendations

18. The Committee recommends that specifically targeted training programmes be launched by the authorities to increase the awareness of judges and lawyers of the rights enshrined in the Covenant.

19. The Committee recommends that the Government intensify its efforts to ensure that equality between men and women, in particular with regard to employment and salary matters, is effective in practice.

20. The Committee urges that consideration be given to enacting legislatior. providing for minimum wages, and their periodical adjustment, so thar protection be ensured also to workers who are not protected by sectora; collective agreements.

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2 1 . The Committee encourages the Government to take adequate measures to ensure that the reduction of the budgetary allocations for social welfare programmes does not result in the violation of the State party's obligations under the Covenant. The Committee particularly lays emphasis on the need to protect the rights of socially vulnerable groups, such as young families with children, refugees and elderly or unemployed persons. 22. The Committee draws the attention of the authorities to the need to eliminate discrimination of any kind in the exercise of the rights set forth in the Covenant, especially the right to housing 23. The Committee encourages the Government to continue its efforts to combat the problems of alcoholism, domestic violence, child and adolescent suicide and child abuse and it recommends that statistical data be collected and that thorough and targeted studies be conducted on the extent, the causes and the consequences of such problems. T h e Committee particularly draws the attention of the authorities to the importance to be given to detection measures and preventive policies. It also stresses the need to ensure that specific and appropriate penal legislation be enacted and applied in order to combat child abuse and child pornography. 24. The Committee also draws the attention of the State party to the emerging problem of school drop-out, which mainly affects children coming from vulnerable social groups, such as economically disadvantaged children or children belonging to minorities. In this regard, the Committee recommends that specific measures be taken to ensure that these children can complete their studies to the extent of their academic capacities. 25. The Committee recommends that the concerns expressed in the present concluding observations, as well as the issues raised during the discussion of the third periodic report which remain unanswered, be addressed in the State party's fourth periodic report. 26. The Committee encourages the Stare party to widely disseminate the Concluding observations adopted by the Committee following the consideration of the State party's third periodic report.

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UNITED NATIONS

Economic and Social Council Distr. GENERAL EIC. 1211lAdd.3 28 May 1996 ORIGINAL: ENGLISH



Concluding observations of the Committee on Economic, Social and Cultural k g h t s

GUATEMALA The Committee considered the initial report of Guatemala on articles 1 to 15 of the Covenant (E/ 1990/5/Add.24) at its l l th to 14th meetings, held on 7 and 8 May 1996, and adopted, at its 26th meeting, held on 17 May 1996, the following concluding observations.

Introduction The Committee expresses its appreciation to the State party for the submission of a comprehensive core document and written replies to its list of questions, and for the introductory statement which offered an overview of recent developments and plans in relation to the promotion and protection of the rights provided for in the Covenant. The Committee welcomes the willingness of the high-level delegation to engage in an open and constructive dialogue with the Committee.

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In this regard, the Committee appreciates the delegation's frank admission that numerous difficulties continue to be encountered and problems remain to be overcome in order to ensure the effective enjoyment of the rights provided for in the Covenant. T h e readiness of the State party to distribute to the members of the Committee copies of the Human Rights Procurator's report, which contains material critical of the present situation with regard to the implementation of human rights in the country, is indicative of the openness of the Government in acknowledging and pointing out the present weaknesses and failures of the system for the implementation of human rights standards in Guatemala.

Positive aspects

T h e Committee is encouraged by the Government's commitment to of negotiating a comprehensive peace the continuity of the agreement, as illustrated by the signing in Mexico City on 6 May 1996 of the "Acuerdo Sobre Aspectos Socioeconomicos y Situacion Agrarian which forms part of, and will come into effect with the signing of, the 'Rcuerdo de Paz Firme Y Duradera". The Committee welcomes the signing on 29 March 1994 of the Comprehensive Agreement on Human Fbghts and the establishment of the United Nations Mission for the Verification of Human h g h t s and of Compliance with the Commitments of the Comprehensive Agreements on Human h g h t s in Guatemala (MINUGUA). Further positive developments are the conclusion of the Agreement o n Resettlement of the Population Groups uprooted by the Armed Conflict of 23 June 1994, and the Agreement on the Identity and Rights of Indigenous Peoples of 31 March 1995 signed between the Government of Guatemala and the Unidad Revolucionaria Nacional Guatemalteca ( U N R G ) . T h e Government's recent adherence to ILO Convention No. 169 of 1989 concerning Indigenous and Tribal Peoples is also noted with interest. T h e Committee notes the establishment of the Presidential Commission for coordinating Executive Policy in the Field of Human Rights and the Office of the Human Rights Procurator. It is noted that the latter Office has a unit for the promotion and protection of the rights of persons with disabilities and the elderly and that a bill concerning the care of persons with disabilities is currently being considered.

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Mas Planck Yearbook of United Nations Law

7. Satisfaction is expressed by the (:ommittee at the ending of the illegal practice of forced enlistmeiit into military service.

8. The Committee takes note of the measures introduced to promote equalit). berween men and women through reform of the Labour Code by Congressional Decree 64-92 of November 1992 and the Constitutional Court's declaration that articles 232 to 235 of the Penal Code are null and void on the grounds that they conflicted with article 4 of the Constitution lvhich states that all human beings are free and equal in dignity, responsibilities and rights.

9. The Committee further notes that the Guatemalan Housing Fund (FOGUAVI) was set up in February 1995 for the principal purpose of providing fiinding for projects designed to solve the housing problems of Guatemalan families living in poverty or extreme poverty.

C. Factors a n d difficulties impeding the implementation of the Coven ant

10. The Committee recognizes that Guatemala continues to suffer from the consequences of armed conflict which has lasted over 30 years. Overcoming the resistance to reform from vested interests which have, in the past, caused the Failure of agrarian reform, and which continue to be relevant today, is of major importance. Thus, as recognized by the State party, the root causes of the armed conflict remain to be tackled, embedded as they are in socio-economic disparities and uneven land distribution in an almost feudal like system characterized by discrimination against the indigenous and rural populations.

11. The Committee agrees mith the observations made by the Government thar the situation of armed conflict has resulted in serious human rights violations. The continuing existence of paramilitary groups in the guise of so-called "civilian self-defence committees", which are responsible for many thousands of extrajudicial executions, remains a serious obstacle to peace. The continuing dificulties encountered in combating the problem of impunir). and the uneven distribution of economic resources has led to a loss of confidence on the part of the civilian population which needs to be addressed in order to secure economic, social and cultural rights, and a return to the rule of law in the country.

12. The Committee is of the opinion that traditional values and practices assigning an inferior role ro women in society and within the family are

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serious factors impeding the ful; realization by women of their economic, social and cultural rights ns provided for in the Covenant.

D. Principal subjects of concern 13. While the Committee welcomes the Government's intention to reform domestic legislation to bring it into greater conformity with the provisions of international human rights instruments, among them the International Covenant on Economic, Social and Cultural Rights, it remains concerned about the significant gap existing between the rights provided for in legislation and their implementation in practice. It notes \vith concern the fact that provisions of the Civil Code of Guatemala, especially its articles 103, 1 l 4 and 131, discriminate against women.

14. T h e Con~mitteeis extremely concerned at adverse effects that the economic and social disparities existing in the country have o n the enjoyment of economic, social and cultural rights by the majority of the population, particular1)- by the indigenous and rural populations of Guarenda, as ~vellas by other vulnerable groups of society especially children, persons \vith disabilities and elderly persons.

15. Far-reaching racial discrimination, extreme poverty and social exclusion in relation to the indigenous populations negatively affect the enjoyment of economic, social and cultural rights by these populations, and are matters of deep concern for the Con~mittee.

16. The Comn~itteewishes to ~ o i c eits serious concern about the continuing problem of violence against \vomen and the insufficient attention paid to the problem by governmental institutions which has led to the invisibilit). of the problem of domestic violence against women.

17. W7hile the Committee appreciates the open admission of the G o ~ e r n m e n tthat land was illegally appropriated by force in the past and rhat plans are in place to address this problem, the Committee remains convinced that the issue of land ownership and distribution of land is crucial to addressing economic, social and cultural grievances of a substantial segment of the population.

18. The Committee is deep1)- dist~irbedat the apparent flagrant disregard of labour laws, the alarming reports of employer impunity, the lack of respect for minimum wages, for conditions of work and unionization,

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Max Planck Yearbook of United Nations Law particularly as they affect individuals employed in a large number of the farming sectors. The ineffectiveness of labour laws in protecting trade unions rights when coupled with the problems of high levels of unemployment and underemployment give cause for deep concern. Thus, despite the Government's stated policy of undertaking further commitments to strengthen the labour inspectorate and introduce changes in the monitoring and enforcement of labour standards, including through the proposals on economic policy and labour legislation contained in recently signed agreements, the possibilities for ensuring effective implementation of the new proposals continue to give grounds for concern to the Committee. One aspect which is of serious concern to the Committee is the situation of those persons working in the "maquillas" (expert sector industries), many of whom are women.

19. T h e Committee remains unclear as to the adequacy of social protection provided to those employed in the informal sector.

20. T h e general situation faced by internally and externally displaced persons remains a serious cause of concern for the Committee.

21. The Committee expresses its concern about the issue of low access to safe water for the rural population, the higher incidence of infant mortality within certain socio-economic groups, the situation of persons with disabilities, the prevalence of endemic diseases, the problem of the inadequacy of social welfare and security, the persisting housing shortage and the inadequacy of access to health care. The Committee is of the view that this general situation, affecting the most vulnerable in Guatemalan society, deprives them of their full enjoyment of the economic, social and cultural rights provided for in the Covenant.

22. Particular concern is expressed by the Committee at the persisting problems of illiteracy and lack of access to education as they affect the poorest sectors of the population. Notice is also taken by the Committee of the inadequacy of human rights education provided for the entire population.

E. Suggestions and recommendations 23. T h e Committee acknowledges the good will of the Government and its open admission of the need for reform in all areas of social, economic and cultural life. The Committee stresses that the implementation of the Covenant's provisions cannot be ensured without reform and ade-

quate implementation of the peace accord, which requirt: above all the just distribution of wealth and of land. 24. Thus the Committee is of the opinion that the issue of land ownership and redistribution should be closely monitored, both in the light of the implementation of article 14 of the Political Constitution of the Republic of Guatemala, which provides for the expropriation of fallow land on private estates, and the implementation of the "Acuerdo Sobre Aspectos Socioeconomicos y Situacion Agraria". T h e establishment of national benchmarks is essential to ensure a systematic review of the progress made towards their implementation and should be viewed as an essential element for ensuring international cooperation and domestic change. The Committee recommends therefore that international cooperation must be devoted to the goal of implementation of economic, social and cultural rights. 25. The Committee notes the intention of the Government to reform its fiscal and monetary policy as a means of promoting social and economic development. The Government's plans to divert resources to social welfare measures, particularly in the fields of health and education, are welcomed. The Committee recommends that the international community support the measures taken in this regard and ensure the regular and close monitoring and reviewing of projects undertaken pursuant to various agreements entered into with view to securing a lasting peace.

26. The Committee emphasizes the importance of the role being undertaken by MINUGUA in monitoring the peace process and the progress of efforts to improve respect for human rights, which should include economic, social and cultural rights.

27. The Committee recommends that all legislative and other reforms should take into account the need to promote equality and reverse the devastating effects of discrimination against the indigenous ~ o p u l a tions, in particular through affirmative action.

28. It is the Committee's view that the problem of discrimination against women has been neglected and that this lacuna should be addressed, especially in view of the present efforts to effect changes in attitudes and policy for sustainable peace and development in the country. The Committee notes with approval the proposed consideration of reform of family law in the Civil Code, namely its articles 109, 131 and 114, which discriminate against women.

446


29. It is urgently recommended that the effective implementation of tradeunion rights and the labour laws be addressed. The protection of such rights requires that particular attention be accorded to the enforcement of labour laws, consistent with the provisions of the Covenant, especially in view of the considerable needs of the indigenous and other disadvantaged groups of society to enjoy economic opportunities and social mobility.

30. While taking note of the various measures taken to reintegrate returning refugees and internally displaced persons, the Committee wishes to highlight the need for continued international cooperation in this field too. Moreover, the carehl scrutiny and involvement of the international community in all these efforts will be all the more indispensable in the event of the peace agreement being signed and of the consequent necessity for the reintegration of the demobilized army and guerilla forces into society and the economy.

3 1. The Committee recommends that further measures be taken to prevent and combat the phenomenon of child labour, including through full respect for the international standards relating to the minimum age of employment of children.

32. T h e Committee acknowledges the value of the shift in health and education policy towards promoting access to health care and services and to education for the most disadvantaged groups of society and strongly recommends that this focus be maintained. It reiterates its strong conviction of the need to devote sufficient resources to the implementation of articles 9 to 14 of the Covenant. In this context, attention is also drawn to the urgent need to undertake further measures to tackle the problem of illiteracy.

33. T h e Committee concurs with the observations made by the delegation that a major task facing the country and its Government is to further develop, strengthen and secure the participation of the population in establishing and preserving lasting peace in the country through implementation of decisions agreed upon in peace agreements regarding the full respect of human rights and fundamental freedom. It is the Committee's opinion that a human rights culture must be created, including addressing the problem of culturally ingrained discrimination, which is pervasive in Guatemala.

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UNITED NATIONS

Economic and Social Council Distr. GENERAL EIC. 1211lAdd.5 28 May 1996 ENGLISH ORIGINAL: ENGLISHIFRENCH

Committee on Economic, Social and Cultural Kghts


Concluding observations of the Committee on Economic, Social and Cultural h g h t s

GUINEA T h e Committee considered the state of implementation b! Guinea of the economic, social and cultural rights contained in the Covenant at its 17th and 22nd meetings, held on 10 m d 14 Ma? 1996, and, at its 22nd meeting, held on 14 May 1996, adopted the following concluding observations:

Review of the implementation of the Covenant in relation Parties which have failed to report

to States

At its seventh session, the Committee on Economic, Social and Cultural Rights decided to proceed to a consideration of the scare of implementation of the International Covenant on Economic, Social and Cultural Rights in a number of States Parties which, despite many requests to do so, had not Llfilled their reporting obligations under articles 16 and 17 of the Covenant.

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3. The purpose of the reporting system established by the Covenant is for the States Parries to report to the competent monitoring body, the Committee on Economic, Social and Cultural k g-h t s , and through it to the Economic and social Council, on the measures which have been adopted, the progress made, and the difficulties encountered in achieving the observance of the rights recognized in the Covenant. Non-performance by a State party of its reporting obligations, in addition to constituting a breach o f the Covenant, creates a severe obstacle to the fulfilment of the Committee's functions. Nevertheless, the Committee has to perform its supervisory role in such cases and must do so on the basis of all reliable information available to it.

4.

In situations in which a Government has not supplied the Committee with any information as to how it evaluates its own compliance with its obligations under the Covenant, the Committee has to base its observations on a variety of materials stemming from bot-h intergovernmental and non-governmental sources. While the former provide mainly statistical information and apply important economic and social indicators, the information gathered from the relevant academic literature, from non-governmental organizations and from the press tends, by its very nature, to be more critical of the political, economic and social conditions in the countries concerned. Under normal circumstances, the constructive dialogue between a State Party reporting and the Committee will provide an opportunity for the Government to voice its own view, and t o seek to refute such criticism and convince the Committee of the conformity of its policy with what is required by the Covenant. Non-submission of reports and nonappearance before the Committee deprives a Government of this possibility to set the record straight.

B. Introduction

5. Guinea has been a parry to the Covenant since 24 April 1978. Since then, it has not submitted a single report. T h e Committee strongly urges the Government of Guinea to fulfil its reporting obligations as soon as possible, so that the Covenant on Economic, Social and Cultural Rights can be given full effect for the benefit of the people of Guinea. The Committee emphasizes that it considers the non-performance by Guinea of its reporting obligations not only a violation of the Covenant but also a grave impediment to an adequate application of the Covenant.

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C. Factors and difficulties impeding the application of the Covenant

6.

T h e Committee takes note ot the fact that performance b>- Guinea of the obligations arising from tlie International Covenant o n Economic. Social and Cult~iralRights cannot be evaluated lsithout taking into consideration the political, econon~icand social conditions in lvhich [he c o u n t n finds itself at present.

7.

T h e Committee finds that the progress made in the field of economic, social and cultural rights since the death of Sekou Toure and the assumption of po\ver by Lansana C o n t i late in 1993 is inadequate. Although the transition from a one-party system to a multiparr)- one is under \say it is encountering some difficulties, and the Committee believes that the existence of a rule of law proclaimed by the 1990 Constitution remains essentially formal. According to information received by the Committee, social tensions persist and there is a clinidte of violence in Guinea. T h a t climate was heightened during elections, p o p ~ ~ l auprisings r and the recent army m u t i n y

8. X i t h regard to the economic and social situation, the Conirnittee observes that the living conditions of Guineans are extremely difficult. According to a 1994 \Xrorld Bank report, "Trends in developing economies", Guinea is among the poorest countries of Africa, despite its natural resources, such as agriculture, energy and mining. T h e average annual per capita income for 1992 was estimated at $510. ,%round one fourrh of children die beforc the age of 5, and average life expectancy is 45 years. O n l y 37 per cent of school-age children have access t o primary school, and 5 9 per cent of adults are illiterate. According to one estimate. about 50 per cent of the population is living in poverty Even though inflation has clearly diminished since 1950, prices remain high, inflation significant and per capita gross domestic producr ( G D P ) inadequate. T h e Committee recalls that extreme po\.err)- and socidl exclusion undermine human d i g n i y New alternative national m d international policies should be adopted in those areas.

9. T h e Cornmirtee notes that the Government has not succeeded in halting the economic and social crisis described, although it has taken various measures with a vie\?, to adopting a new socio-economic development strategy. Thus, Guinea opted in favour of a free market econorn2; and in 199j a programme for financial and economic reform was launched and an agreement with regard to the Enhanced Structural Adjustment Facility (E=\F) was negotiated ~ v i t hthe assistance of the World Bank and the International h4onetai-y Fund. In this extent, rhe Committee


450

emphasizes, however, that from the viewpoint of the Covenant and its interpretation by the Committee, any reform measures must be accompanied by the adoption of targeted programmes designed to protect the vulnerable groups and members of society.

D. Positive aspects 10. Concerning the rights proclaimed under article 8 of the Covenant, the Committee notes that, despite the major role played by the trade unions at the time of independence, trade-union freedom has since been stifled by the Government. None the less, the Committee welcomes the observations made by the Guinean Government to the International Labour Office in 1995, according to which several new trade unions had been formed in Guinea in conformity with the 1988 Labour Code.

1 I.

As

to article 12, the Committee notes that clear progress can be observed in the BCG, tetanus and polio vaccination rates.

E. Principal subjects of concern 12. The Committee notes with concern that only some of the rights in the Covenant (for example, trade-union freedom and freedom of education, which is compulsory) are recognized in the 1930 Constitution, and that the provisions of the Covenant have not yet been incorporated into Guinean internal law. Furthermore, despite the embodiment of the principle of the independence of the judiciary in the Constitution, the Supreme Court and High Court of Justice seem to be under the control of the executive branch. T h a t explains the difficulties encountered by Guineans in exercising their fundamental rights, since the judiciary does not play an effective role in guaranteeing those rights.

13. With regard to the rights contained in articles 6 and 7 of the Covenant, the Committee notes that there is a serious unemployment problem in Guinea. For example, unemployment among qualified young people has increased considerably in recent years. According to information received by the Committee, the low salaries are too low for the high cost of living, leaving many Guineans to supplement their incomes through additional jobs, as the majority of civil servants are forced to do, quite illegally.

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14. T h e Committee also notes that unequal treatment of men and women is increasing, particularly in the informal sector of the economy. The Committee thcrefore invites the Guinean Government to take steps on a national level to implement the principle of "equal pay for equal w o r k , which derives from the pinciple of non-discrimination against women proclaimed in the Covenant, ILO Convention No. 1 1 I and the 1990 Constitution.

15. Concerning working conditions, the Labour Code contains provisions on health and safety in the workplace. However, the Government has not yet formulated rules for their implementation. The Committee notes, for example, that according to the ILO Committee of Experts on the Application of Conventions and Recommendations, the Government has not yet adopted regulations on protection against atomic radiation.

16. With regard to article 8 of the Covenant, the Committee notes that the right to strike recognized by the 1990 Constitution and by ILO Conventions Nos. 8 7 and 98, which were ratified by Guinea, was apparently not being observed. The Government had intimidated, and even arrested, strikers on several occasions. T h e Committee referred, for example, to the complaint brought before the ILO Committee on Freedom of Association in late 1995 with regard to the strike organized by the free trade union of teachers and researchers of Guinea. 17. With respect to article 9, thc Committee is concerned by the fact that, as late as 1995, no follow-up had yet been given to the draft social security code recently revised with the assistance oh: ILO. Social security protection is limited to public administration, State-controlled entities and large enterprises. As most of the country's workforce is concentrated in agriculture, the extent of social security coverage remains insignificant.

18. Concerning article I 0 of the Covenant, the Committee notes that many children work on farms, in small businesses and as street vendors. According to the Committee, observance of the Covenant requires that the Government implement the Labour Code provisions prohibiting child labour under the age of 16. 19. T h e Committee remains concerned about the cases of domestic violence against women and invites the Government to take the appropriate action to remedy the situation.

20. With regard to article 1 I of the Covenant, which ~rovidesthat everyone

452

Mau Planck Yearbook of United Nations Law

has the right to an adequate standard of living, the Committcc recalls with c o n u r n the poverty affecting approximately 50 per cent of the population Malnutrition is srill widespread throughout the country. T h e Comnlittee is equally concerned by the lack of a minimum wage guaranteed by law. Concerning the right to adequate housing, the Committee observes that the measures rakcn by the Government d o not always seem adequate to rncct the needs of the Guinean pcoplc.

21. Regarding the right to health

in arricle 12, the Committee refers to the information povided by T h e Economist Intelligence Unit in 1994- 1995, and notes that only 13 per cent of the population have access to medical services. Furthermore, only 5 5 per cent have access to drinking water, a situation that is made even worse by onchoccrcosis, or "river blindness". The Guinean life expectancy of 45 years is one of the lowcst in Africa. The Cornrnirtee notes that women and children are affected by the precarious health situation.

22. Similarly, the Committee is especially concerned by the persistent practice of female genital mutilation, which has serious consequences on the physical, psychological and social health of women. Women are also among the f i r s victin~sof the AIDS virus. Concerning children, the Committee notes that the mortality rate remains high.

23. Concerning articles 13 and 14 of the Covenant, the Committee recalls that illiteracy persists, and regrets that the Guinean Government has not given enough priority in the structural adjustment agreement to schooling and educarion. The Committee thinks it necessary to give children the right to schooling and training that will enable them to be a part of the socio-economic fabric, which is still in great need of suitably trained people to deal with underdevelopment. T h e Committee notes that discrimination againsr women is o n rhe rise, which is apparent from the adult illiteracy rate, access to education and the school drop-out rate among @Is. Furthermore, according to information received by the Committee, the school-attendance rate remains low, primary schools are overcrowded and the pinciple of free primary education paranteed by law is not always applied. T h e Government is also apparently not willing to increase the education budget in order to deal with the serious shortage of teachers.

24. T h e Committee notes that the provisions under article 15 are not being lmplementcd satisfactorily. Access to culture remains difficult, as demonst~ared,for example, by the high price of publications. 'l'he Committee is equally concerned by rhe inadequacy of the steps taken by

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the Government to safeguard the culcural i d i n t ~ nof tht- Txious erhn~c groups in Guinea.

F. Suggestions and recommendations 25. T h e Committee reiterates its request that the Government of Guinea actively participate in a constructive dialogue with the Committee on how the obligations arising from the International Covenant on Economic, Social and Cultural Rights can be fulfilled in a more adequate manner. It calls to the Government's attention the fact that the Covenant creates a legal obligation for all States parties to submit periodic reports and that Guinea has been in breach of this obligation for many years.

26. The Committee recommends that the Government of Guinea avail itself of the advisory services of the Centre for Human Rights of the United Nations in order to enable it to submit as soon as possible a comprehensive report on the implementation of the Covenant in conformity with the Revised General Guidelines adopted by the Committee in 1990 (EIC. 121199111) and with particular emphasis on the issues raised and concerns expressed in the present concluding observations. The Committee also encourages the Centre for Human Rights to make available, through its programme of advisory services and technical assistance, expert assistance to States for the purpose of formulating policies on economic, social and cultural rights, and developing the implementation of coherent and comprehensive plans of action for the promotion and protection ofhuman rights, as well as developing adequare means of evaluating and monitoring their realization.

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UNITED NATIONS Economic and Social Council Distr. GENERAL E/C. 1211/Add. l 28 May 1996 ENGLISH ORIGINAL: FRENCH ANDSPANISH




PARAGUAY

1. T h e Committee considered the initial report of Paraguaj (E/1990/5/Add.23) at its Ist, 2nd and 4th meetings, held on 30 Aprii and 1 May 1996, and adopted, at its 22nd meeting, held on 14 May 1996, the following concluding observations.

A. Introduction 2. The Committee expresses its satisfaction to the State party for it. detailed and frank initial report and for the substantial additional information supplied by the delegation verbally, as well as the constructive dialogue maintained between the delegation and Committee members. However, it regrets the lack of clear statistics and the State party's failure to provide written replies in due time to the list of issues submitted to it and the delegation's inability to provide satisfactory answers on many of those issues. T h e Committee notes that replies to some of the

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questions raised during the dialogue established with the State party were received subsequently.

B. Positive aspects 3. T h e Committee notes with great satisfaction that the State party is undergoing a process of peaceful democratization, which has begun to have a notable impact on the enjoyment of human rights. T h e ratification of the two Covenants in 1992 and the adoption of the new Constitution guaranteeing many of the rights embodied in the Covenant in 1992 and of the new Labour Code in 1993 are highly appreciated developments. The Committee also welcomes the clearly defined place of the Covenant (and of the other international human rights instruments) in the country's internal legal order. The repeal of Acts Nos. 294155 and 209170 is noted with satisfaction.

4. The creation of a Directorate-General of Human Rights within the Ministry of Justice and Labour and the State party's initiation of a programme of technical cooperation with the Centre for Human h g h t s of the United Nations are seen by the Committee as encouraging developments.

5. T h e Committee notes with satisfaction the creation of a Secretariat for Women to coordinate activities undertaken by the Government in relation to the mandate contained in the Constitution, which proclaims the principle of equal rights for men and women.

6. T h e Committee also notes the progress made by the State party in the field of education. The constitutional provision whereby 20 per cent of the State budget must be allocated to education is noted with great interest.


7 . T h e Committee is well aware that democracy in Paraguay must be consolidated and that it will take many more years to eradicate completely the attitudes created by decades of dictatorship, glaring social inequalities and latifundismo. T h e economic difficulties encountered by the State party, the high degree of poverty throughout the country and the constraints imposed by foreign debt repayment are further obstacles to

456

Max Planck Yrarbook of United Nations Law the frill realization of the economic, social and cultural rights embodied in the Covenant. T h e Committee also recognizes that the persistence in Parasuayan society of attitudes engendered by a culture in which men are treated as superior to women does not facilitate the full implementation of article 3 of the Covenant.

Principal subjects of concern O f particular concern to the Committee is the persistence of clear disparities in the exercise of economic, social and cultural rights in Paraguayan society, where a high percentage of the population is still living in conditions of poverty. The Committee therefore notes with concern the slow pace at which the Government, through the Institute for Social Welfare, is proceeding with the land reform provided for in the Constitution, since that slow pace is a continuing cause of labour and social conflict and is hampering the exercise by the agricultural sector of the rights recognized in the Covenant. The Committee is very concerned at the plight of the indigenous population as well as the estimated 200,000 landless mestizo peasant families. The main reason for hunger and malnutrition of the indigenous population and the deprivation of their rights is linked to the severe problem of obtaining access to traditional and ancestral lands. Though recognized by Law 904181 and other subsequent laws, this right remains in abeyance. Eighty documented claims for legalizing indigenous access to traditional land have been pending for a number of All indigenous groups in the Chaco were expelled from their traditional land by cattle ranchers or industrial enterprises. The Committee is also concerned by the situation of landless peasant families, ofwhom 50,000, on 15 March 1996, marched o n the capital, Asuncibn, demanding adoption of legislative measures with respect to the land occupied by them and denouncing the Government's failure to fiilfil past promises of agrarian reform. In Paraguay today, 5 per cent of the population owns between 60 and 80 per cent of the nat~onalterritory, a situation fraught with danger for Paraguayan peace and stability. 10. The Committee expresses its conccrn at the many fornis of discrimination against women. Discrimination in employment is a serious problem, particularly in the form of unequal pay for equal work. T h e Committee also regrets that no mformation has been received from the State party regarding the acrual srarus ofwomen in Paraguay, in particular on violcnce against women.

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11. Regarding thc implementation of article 7 of the Covenant, the Committee's most concerned that, despite the existence of legislation governing the minimum wage, many workers - perhaps even as many as 50 per cent - do not earn that wage.

12. While recogriizing that the right to form and join trade unions is established by law, the Commirtee is concerned by the excessive number of cases of discriminatory practices by employers against unionized workers, including wrongfd dismissal for trade union activities. While aware of the impact of decades of dictatorship on the culture of entrepreneurs, the Committee is compelled to point out that the free exercise of trade-union rights is one of the fundamental rights ofworkers, as elaborated in article 8 ofthe Covenant.

13. The Committee expresses its concern about the restrictive nature of the legislation governing the right to strike.

14. With regard to the implementation of article 9 of the Covenant, the Committee expresses its concern that large sectors of the population are excluded from any social protection because the informal sector accounts for a large share of the economy.

15. The Committee is particularly concerned about the large number of child workers and street children in Paraguay. It draws attention to the inadequacy of the measures taken by the Government to combat these phenomena, which are serious violations of the hndamental rights of the child.

16. The Committee expresses its concern about the inequitable distribution of health services benveen urban and rural areas. It also notes the very small number of medical and paramedical personnel in the country. The high rate of infant mortality and infant morbidity are also matters of concern for the Committee, as are the high maternal mortality rate and the inadequacy of guidance and family planning services.

17. With regard to the implementation of articles 13 and 14 of the Covenant, the Committee recognizes the sustained efforts made by the Government of Paraguay, but is very concerned about the disparities between the school system in urban and rural areas and the high dropout rate. T h e Committee also expresses concern about the inadequate training and pay of teachers at all educational levels. The decline in the quality of education, the irrelevance of educational methods and the overly centralized and bureaucratic management of the educational sector, as diagnosed by UNICEF, are noted with concern by the Committee.

458


18. T h e Committee regrets the apparent failure to disseminate the Covenant in the various sectors of society, particularly in the Guarani language. The Committee notes that little has been done to inform the general population and, in particular, the indigenous population, of its fundamental rights.

E. Suggestions and recommendations 19. The Committee recommends that the ofice of the Ombudsman, as provided for in the chapter IV of the 1992 Constitution, should be established without delay. 20. The Committee urges the Government of Paraguay to continue the economic development, agrarian reform and fiscal reform programmes now under way in order to deal with the serious problem of the unfair distribution of wealth, as a means of combating poverty. The Committee urges the State party to take energetic measures to eliminate the forms of discrimination to which the indigenous peoples are subjected in the enjoyment of their economic, social and cultural rights. It is essential that particular attention should be paid to the land problems which affect them and that genuine political will should be displayed to solve these problems in a human rights context. The Committee also recommends that a detailed study should be carried out, under government auspices, on the socio-economic situation of indigenous women. 22. The Committee recommends that the Government of Paraguay pursue policies designed to achieve genuine equality of rights between men and women, and eliminate the discriminatory provisions that are still contained in civil, criminal, trade and labour laws, as well as in family law. 23. The Committee recommends that appropriate legal measures should be undertaken in relation to crimes of violence against women and children within or outside the family. 24. The Committee recommends that the Government of Paraguay adopt an affirmative action policy to improve the social status of women, inter & at the workplace. T h e Committee encourages the State party to take all necessary measures for the full implementation of legislation on equal pay and equality of opportunity.

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25. The Committee recommends that urgent measures should be adopted, inter alia by increasing the awareness of employers, labour judges and the police, in order h l l y to guarantee the implementation of the tight to engage in trade union activities and the right to strike. 26. The Committee recommends that the necessary legislative and other measures should be adopted to prevent and remedy situations of distress caused by the abandonment of families by fathers, making them responsible for assisting and supportil~gtheir families.

27. The Committee recommends that the State party should launch a programme, in cooperation with UNICEF and ILO, to combat the exploitation of child labour and the abandonment and exploitation of street children.

28. The Committee encourages the State party to take measures to improve the system of health care which should take into account the needs of all segments of society and reduce the disparities from which the sysrem now suffers.

29. The Committee recommends that the Government of Paraguay should energetically pursue its efforts and increase its investment in education, particularly primary education. Greater attention should be paid to this sector in the technical cooperation programmes in which the country is involved. The Committee urges the Govcrnmcnt of Paraguay to expand the campaign undertaken by the Human Rights Office of the Ministry of Justice and Labour in relation to human rights cducation at the primary, secondary and university levels and extend its scope to include clcctcd officials, the military, professors and the judiciary. 30. Thc Statc party is encouraged to ratify the Additional Protocol to the Inter-American Convention on Human Rights in the Area of Economic, Social and Cultural Rights.

3 1. The Committee considers that systems for collecting statistics should be improved on the basis of more appropriate indicators, with a view to the objective evaluation of problems and the progress made in the implementation of the provisions of the Covenant.

32. The Committee requests the State party to provide it with written replies to the unanswercd questions from the list of issues submitted to it prior to the consideration of the report (questions 2, 6, 10, 12, 19, 20, 30 and 32), as well as all [hose relating to the rights contained in

460

Max Planck Yearbook of United Nations Law articles 13 to 15 of the Covenant, covered by questions 34 to 42, and asks that such information should be sent to the Centre for Human Rights by 31 October 1996. The Committee would also like the next report of the Government of Paraguay to fill in the information gaps identified during the consideration of the present report by the Committee. The report should contain detailed information on the full implementation of legislative and administrative measures relating to prevention and enforcement in respect of safe and healthy working conditions. The Committee would also like information to be transmitted on cases in which the Covenant has been invoked in the courts.

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UNITED NATIONS

Economic and Social Council Distr. GENERAL EIC. 1211lAdd.9 6 December 1996 ORIGINAL: ENGLISH

Committee on Economic, Social and Cultural Fbghts CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLES 16 AND 17 OF THE COVENANT


PORTUGAL (MACAU) 1.

At its 31st, 32nd and 33rd meetings, held 20 and 21 November 1996, the Committee considered the second periodic report of Portugal relating to Macau concerning the rights covered by articles I to 15 of the Covenant (E/1990/6/Add.8), as well as the written replies to the additional questions drawn up by the pre-sessional working group (EIC. 1211995lLQ. 1O), and adopted, at its 54th meeting, held on 5 December 1996, the following concluding observations.

A. Introduction 2. The Committee expresses its appreciation to the State party for its report and written replies to the list of issues, and for the open dialogue conducted between the Committee members and the large delegation from Macau.

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3. The Committee notes that the report and the written replies to the list of issues have not been prepared in a manner which enabled the Committee to adequately evaluate the enjoyment of economic, social and cultural rights in Macau.

B. Positive aspects

4.

The Committee appreciates the efforts being made by the Portuguese Government to secure from the Government of the People's Republic of China all possible guarantees regarding respect for the provisions of the International Covenant on Economic, Social and Cultural Rights in the Territory of Macau after 1999. The Committee notes the enactment of Article 40 of the Basic Law of the Macau Special Administrative Region which prescribes that the precepts of the Covenant, which are applicable to Macau, will continue to apply and shall be implemented through legislation enacted by the Special Administrative Region of Macau. The Committee hopes that the ongoing discussions between the Portuguese Government and the Chinese Government through the Sino-Portuguese Joint Liaison Group will lead to a continuation of the reporting practice under articles 16 and 17 of the Covenant beyond the year 1999.

5. The Commitee notes with satisfaction that the Covenant was published on 31 December 1992 in Macau's Official Gazette in both official languages (Portuguese and Chinese) and also that its contents have been disseminated in the Administrative Region.

6. T h e Committee notes that in January 1993, the Portuguese Government gave the Chinese language (Cantonese) an official status comparable to that of Portuguese.

7 . T h e Committee welcomes the efforts undertaken by the State party to extend coverage of social security, in particular in the private sector, as stated in decree law No. 58/93/M which came into force in January

1994. C. Factors a n d difficulties impeding the implementation o f t h e Covenant

8. The Committee notes that prevailing Chinese traditions, namely of avoiding direct confrontations and strikes in favour of personal or family

Document 111 ties, have not been conducive to the application of the laws concerning the right to collective b a r g a i n q and to strikes.

D. Principal subjects of concern 9. T h e Committee notes with concern that labour regulations are not enforced effectively in Macau, resulting in workers having to work under unfavourable and repressive conditions without access to legal recourse. Protective measures on working conditions and social security for non-resident workers dre still lacking. Measures protecting the right to strike, the right to organize trade unions and the right to bargain collectively are also lacking.

10. T h e Committee is concerned that the majority of the population is not familiar with the judicial system of rhe Territory, and that insufficient measures have been adopted to ensure that the principles and the provisions of the Covenanc are made widely known to the population.

11. T h e Committee expresses concern that Macanese residents, including civil servants who hold Portuguese passports may not be able to stay in Macau after 1999, bearing in mind that China does not recognize dual nationaliry.

12. T h e Committee notes with concern that no special programme aimed at helping the physically and nierltally disabled exists to facilitate their access to employment, education and public facilities.

13. T h e Committee expresses concern that non-resident workers are not covered by the social security system.

14. Although Chinese constitute about 95% of the population in Macau, the localization of the civil service effectively excludes many persons of Chinese origin who cannot satisfy the criteria of "local people" because of lack of necessary language or other qualifications or for other reasons which cannot be overcome in a short period of time. Therefore, the Committee considers that it is necessary to incorporate persons of Chinese origin in the civil service in order to facilitate a smooth transmission of administration to China.

15. The Committee is further concerned that the territory does not have a procedure for the determination of minimum wages.

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E. Suggestions and recommendations

16. The Committee takes note of the readiness of the State party to provide it with traditional information in reply to the concerns expressed by it in the course of the discussion and recommends that in its replies, particular attention be paid to the issue of family reunification and to the legislative provisions safeguarding the principles of the ILO Conventions No. 103 (Maternity Protection Convention) and No. 138 (Minimum Age Convention) and their practical applications. 17. The Committee recommends that appropriate measures be taken to effectively secure economic, social and cultural rights of disabled persons, particularly through funding for special programmes aimed at helping the physically and mentally disabled to gain better access to employment, education and public facilities. 18. The Committee recommends, in view of the lack of suficient information provided by the State party with respect to article 10 of the Covenant, that detailed information be provided on measures taken tc implement provisions of article 10. In that connection, the attention of the State party is drawn to relevant parts of the Committee's Revised Guidelines regarding the form and contents of reports to be submitted by State parties (EIC. 121199 1/ 1 ) . 19. The Committee urges the Portuguese Administration to take affirmative steps to facilitate the integration of persons of Chinese origin into thc placement programme of the civil service. 20. The Committee urges the Portuguese Administration to promote appropriate policies which would facilitate the right to form laboulunions, the right to engage in collective bargaining and the right tc strike, so as to fill the gap between domestic law and the Covenant. 21. The Committee also urges the enactment of legislation on the right tc social security so as to ensure full compliance with the requirements o-" the Covenant, and recommends that the State party extend the coverage of social security to non-resident workers. 22. The Committee urges the Portuguese Administration to make mort efforts to disseminate the Covenant within the civil society. 23. The Committee welcomes the observations of the State party that measures shall be taken to develop information and awareness programmes

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on the judicial system of the Territory and on the principles and provisions of the Covenant in the various languages spoken in Macau. Additionally, the Committee recommends that comprehensive human rights training be provided to all segments of the population, including law enforcement officers and all the persons involved in the administration of justice.

24. The Committee urges strongly the Portuguese Administration to take all necessary measures to ensure that the reports under the Covenant be submitted after 1999.

25. T h e Committee encourages the State party to widely disseminate the Concluding observations adopted by the Committee following the consideration of the State party's second periodic report.

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UNITED NATIONS Economic and Social Council Distr. GENERAL EIC. 1211lAdd.2 28 May 1996 ENGLISH ORIGINAL: FRENCH

Committee on Economic, Social and Cultural h g h t s



SPAIN 1. At its 3rd, 5th, 6th and 7th meetings, held on l , 2 and 3 May 1996.

the Committee considered the third periodic report of Spain concerning the rights covered by articles 1 to 1 5 of the Covenant (E/1994/104/Add.5), as well as the written replies to the additional questions drawn up by the pre-sessional working group, and adopted. at its 22nd meeting, held on 14 May 1996, the following concluding observations.

A. Introduction 2. The Committee expresses its satisfaction at the detailed report submitted by the State party and the substantial additional information supplied in writing, as well as the excellent dialogue established between it? members and the large delegation of experts, including women, representing the ministries concerned.

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3. However, the Committee regrets that the Government did not cover articles 7, 8, 9 and 12 of the Covenant in its report. Nevertheless, the Committee is satisfied with the oral information concerning those articles provided during the dialogue, which demonstrates the Government's firm resolve to implement all the provisions of the Covenant.

B. Positive aspect.

4.

The Committee congratulates Spain on the many steps, in constitutional law and otherwise, it has taken to promote the realization of the economic, social and cultural rights set forth in the Covenant. It notes with satisfaction the particular efforts the Government has made to address unemployment in various forms, the positive action taken to enable adults to pursue academic studies, even through distance learning, the improvement of the status of motherhood and fatherhood and the special attention paid to protecting the rights of elderly persons.

C. Factors a n d difficulties impeding the implementation of the Covenant

5. The Committee notes the difficulties currently being experienced by Spain as a result of structural changes and the economic recession. The decentralization and privatization of some social services, persistent large-scale unemployment and budget cuts affect the whole population, and especially the most vulnerable groups.

D. Principal subjects of concern

6 . The Committee notes with concern that despite the new legislative provisions in force, discrimination continues against women with regard to the right to equal treatment at work, the right to equal pay and access to education.

7 . The Committee also notes with concern that as a result of the economic recession, budget cuts have been made in the social welfare sector and have had a particular impact on the most vunerable groups in society. In this regard, the Committee emphasizes the importance of the views expressed in its General Comment No. 3 that even in times of severe resource constraints, whether caused by a process of adjustment, of

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Max Planck Yearbook of United Nations Law economic recession, or by other factors, the vulnerable members of society can, and indeed must, be protected by the adoption of relatively low-cost targeted programmes.

8. The Committee further notes with concern that the unemployment rate in Spain is extremely high, and particularly so for women and young people.

9. The Committee notes the persistence of a worrying rate of illiteracy, especially among women and in certain southern regions. 10. The Committee notes with great concern the growth in the number of acts of discrimination and racism against foreigners in Spain, particularly directed at groups from North Africa, asylum seekers, illegal workers and the Romany (Gypsy) population.

1 1. The Committee notes that the central Government does not systematically collect disaggregated national statistics concerning the rights covered by the covenant, and that consequently it does not always possess adequate data to enable it to evaluate the application of the Covenant fully and appropriately.

12. The Committee notes that the public as a whole and the media are still largely ignorant of the Covenant's provisions, with the result that the vast majority of the population is unaware of the commitments entered into by the Spanish authorities with regard to economic, social and cultural rights.

E. Suggestions a n d recommendations 13. The Committee recommends that the Spanish authorities continue their efforts to ensure effective equality between men and women, in particular with regard to access to education and jobs and equal pay for equal work.

14. The Committee recommends that the State party take special steps to protect the most vulnerable groups in society as effectively as possible against the impact of the budget cuts currently affecting the social sector.

15. The Committee encourages the Government of Spain to continue to devise and apply all possible measures to curb the present rate of unem-

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ployment. In that context, it suggests that the State party should retain the integration of women and young people in the labour market as a priority policy.

16. The Committee encourages the Spanish authorities to take all necessary steps to reduce the level of illiteracy, which particularly affects women and certain population groups living in particular parts of the country.

17. The Committee urges the Government to take all appropriate preventive and penal measures to combat effectively all forms of racial discrimination which particularly affects groups from North Africa, asylum seekers, illegal workers and the Romany (Gypsy) population.

18. The Committee recommends that the State party should take the necessary steps systematically to collect and analyse disaggregated national statistics relating to the provisions of the Covenant, in order to have an effective tool for monitoring the realization of those rights.

19. The Committee recommends that the State party's report and the concluding observations should be extensively publicized within the country, especially through the media, the universities and interested non-governmental organizations.

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UNITED NATIONS

Economic and Social Council Distr. GENERAL EIC. 1211/Add. 10 Date ORIGINAL:

Committee on Economic, Social and Cultural Rights CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLES 16 AND 17 OF THE COVENANT


UNITED KINGDOM O F GREAT BRITAIN AND NORTHERN IRELAND ( H O N G KONG) 1. The Committee considered, at its fifteenth session, the third periodic report submitted by the United Kingdom of Great Britain anc Northern Ireland on articles 1 to 15 of the Covenant as applied i r Hong Kong (El19941 104lAdd. 10). The Committee considered this report at its 39th, 41st, 42nd, and 44th meetings held on 26, 27 and 28 November 1996. After having considered the report, the Committee adopted at its 55th meeting held on 6 December 1996, the following concluding observations:

Introduction 2. The Committee notes with satisfaction that the report submitted by the State party was prepared in accordance with the Committee's guidelines. It welcomes the large and high-level delegation composed of represent

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atives from the United Kingdom of Great Britain and Northern Ireland and from Hong Kong. T h e information submitted in the report and that provided by the delegation in reply to both written and oral questions enabled the Committee t o obtain a broad view of the extent of the State party's compliance with its obligations under the International Covenant on Economic, Social and Cultural Rights. The Committee also expresses its appreciation for the written replies to its list of questions (EIC. 1 2 l Q l H O N .l ) . T h e Committee notes with satisfaction that this information enabled it t o engage in a constructive dialogue with the State party, particularly concerning the applicable law. However, it is regretted that a number of the Committee's questions relating to reports of what actually happens in practice were not answered.

3. The Committee also welcomes the presence of a significant number of non-governmental organizations from Hong Kong. The information provided by these non-governmental organizations greatly assisted the Committee in its understanding of the human rights situation in Hong Kong.

A. Positive aspects

4.

The Committee notes with satisfaction that both the Sino-British Joint Declaration and the Basic Law affirm that the Covenant will continue to apply to Hong Kong after the resumption of sovereignty over the territory by the People's Republic of China as at 1 July 1997.

5. The Committee notes that the Government of Hong Kong has established conditions for a high level of economic prosperity.

6. The Committee welcomes the fact that non-governmental organizations, members of the Legislative Council and other interested parties have had an opportunity to contribute their comments on topics included in the report. T h e Committee lauds efforts made by the Hong Kong Government to promote public awareness of the Covenant, and to make available to the public at large a substantial number of copies of the report, in English and Chinese, both in printed form and on the Internet.

7. The Committee welcomes the enactment of the Sex Discrimination Ordinance and the Disability Discrimination Ordinance, in July and August 1995, respectively. It also notes with interest the establishment of the Equal Opportunity Commission in May 1996.

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8. The Committee notes that the housing policy of the Government of Hong Kong endeavours to elaborate a long-term programme for public housing construction and to encourage private-sector housing construction so that adequate and affordable housing could be available to all residents of Hong Kong.

B. Factors and difficulties impeding the implementation of the Covenant

9. The Committee notes that the uncertainties arising from the resumption of sovereignty over Hong Kong by the People's Republic of China have clearly caused some difficulties on the part of the Hong Kong Government, in undertaking measures to its maximum capacity, towards the protection and promotion of the economic, social and cultural rights of its constituents.

10. The Committee notes that constraints arising from limited habitable land in Hong Kong and from the significant influx of immigrants into its territory, may result in difficulties in implementing certain articles of the Covenant. However it is also noted that Hong Kong has considerable resources at its disposal to overcome most problems posed by these obstacles.

11. The Committee notes chat while the Government of 1 Iong- Kong- has established conditions for a high level of economic prosperity, while the latest figures on the Gross Domestic Product per capita in Hong Kong show a figure of US$ 23,500 which is the fourth highest in the world, and while the Hong Kong Government has accommodated reserves, as of March 1996, of US$ 20 billion, Hong Kong - has one of the most uneven distributions of income in the world, where 20 per cent of the population take u p 50 per cent of the national wealth, but 250,000 households, i.e. 11 percent of the population, live in absoluce poverty, and 850,000 citizens live under the poverty line.

C. Principal subjects of concern 12. The Committee deeply regrets that the recommendations expressed in its concluding observations in 1994 have largely been ignored by the Hong Kong Government.

13. The Committee is concerned that the modalities for the continued submission of reports by Hong Kong after the resumption of sovereignty

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by the People's Republic of China are still at the stage of negotiation and have not been resolved to date.

14. The Committee expresses its disappointment rhat the principal subjects of concern listed in its concluding observations in 1994 remain unresolved. The Committee reiterates its serious concern on the following issues. The provisions of the International Covenant on Economic, Social and Cultural Rights continue to be excluded from the domestic law of Hong Kong, which already contains the provisions of the International Covenant on Civil and Political h g h t s . The low level of awareness among the judiciary of international human rights law in general and of the International Covenant on Economic, Social and Cultural Rights in particular. The Hong Kong Government continues to object to the establishment of a human rights commission. The number of split families continues to grow at an alarming rate. The repressive and discriminatory treatment of Vietnamese refugees in Hong Kong, particularly those who refuse repatriation to Vietnam. The "two-week rule" imposed upon foreign domestic helpers upon expiration of their contract continues to hinder their enjoyment of economic, social and cultural rights. The phenomenon of sub-human cage-homes remains a blight in the housing situation in H o n g Kong. The level of social security payments available to the elderly does not allow them to enjoy their rights under the Covenant.

15. The Committee is concerned that the Sex Discrimination Ordinance does not protect those individuals whose right to work is violated by inappropriate account being taken o f their private sexual lives. The Committee further considers it a serious matter that women above the age of 30 suffer discrimination in employment.

16. The Committee regrets the "step-by-step" approach according to which legislation for the protection of vulnerable minorities is adopted primarily on the basis of public opinion surveys, that is, based on majority views.

17. The Committee is concerned that the principle of equal pay for work of equal value as elaborated in the non-binding Code of Practice of the Sex Discrimination Ordinance, has not been reflected in Hong Kong labour law, thus giving rise to discrimination against women.

18. The Committee expresses its concern over the unfavourable status ofHong

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Max Planck Yearbook of United Nations Law Kong residents who possess British Overseas reside, but who are not entitled to citizenship in any British territory after 1997, although allowed to reside in Hong Kong under Chinese law even if they are not Chinese citizens.

19. The Committee is concerned that in the field of employment, the Sex Discrimination Ordinance provides relatively insufficient remedies due to the absence of provisions on reinstatement and full recovery compensation, while both of these remedies are foreseen in the Disability Discrimination Ordinance.

20. T h e Committee expresses its concern about the extent of unemployment or underemployment as a result of rapid economic restructuring. In this connection, the Committee is ~articularlyconcerned about the significant numbers ofwomen who are thereby forced out of the labour force and must sometimes resort to precarious activities. 21. The Committee is concerned that Hong Kong labour legislation does not provide protection against unfair dismissal, nor does it provide for a limitation on hours of work, for a paid weekly rest period and compulsory overtime pay. This situation is a major hindrance to the enjoyment of just and favourable conditions of work.

22. The Committee expresses its concern that trade union rights are unduly restricted in Hong Kong. In particular, the Committee is of the view that restrictions applied to affiliation with international trade union organizations, the prohibition on the formation of confederations of trade unions from different industries, as well as the legal right of employers to dismiss persons involved in strike activities, are incompatible with the Covenant.

23. The Committee expresses its deep concern that there is no comprehensive mandatory old-age social security scheme in Hong Kong and that approximately sixty per cent of the population is not protected by any public or private pension plans.

24. The Committee expresses its concern that large numbers of individuals and families who are eligible for comprehensive social security assistance (CSSA) do not apply for it, either because they are not aware of the CSSA, because they fear the cultural stigma attached to the concept of welfare assistance, or because they are discouraged from applying by certain practices of the authorities which are not in conformity with Hong Kong law, like the requirement of children's consent before parents may receive CSSA benefits.

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25. The Committee is concerned that CSSA recipients are not granted reimbursement for expenses for traditional medicine, given the fact Hong Kong residents frequently use traditional medicine and that Hong Kong courts grant such reimbursements in civil liability actions.

26. The Committee reiterates its deep concern over the growing numbers of split families in Hong Kong. The Committee is of the view that the Hong Kong Government has an obligation to ensure that the criteria applied in deciding on those eligible for legal migration into Hong Kong, are consistent with the provisions of the Covenant.

27. The Committee expresses its concern at the absence of a holistic child policy for the protection of children from all forms of abuse.

28. The Committee is deeply concerned that the standard of living of elderly singletons in the lowest nventy per cent income group who are not receiving CSSA, is lower than that of the CSSA recipients. The Committee notes that many of these singletons live in substandard accommodation.

29. The Committee regrets that the Hong Kong Government has not given any clear indication o f a time frame within which it expects to eradicate the deplorable phenomenon of cage homes. T h e Committee is particularly concerned over the inadequate housing conditions extended by the Hong Kong Government to new immigrants from China resulting in many of them living in deplorable conditions.

30. The Committee expresses its concern over the inadequate care and protection of the mentally ill and disabled in Hong Kong. In particular the Committee notes with concern the apparent lack of initiative on the part of the Hong Kong Government to undertake public education to combat discrimination against those with mental disabilities.

31. The Committee takes note with concern that, while the Hong Kong Government has adopted an educational policy in relation to children of immigrant families from China, it has not undertaken sufficient efforts to ensure school placements for these children and to protect them from discrimination.

D. Suggestions and recommendations 32. In the light of the terms of the Sino-British Joint Declaration and of the recent practice of UN human rights treaty bodies, the Committee is of

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Max Planck Yearbook of United Nations Law the firm view that, following the resumption of sovereignty over Hong Kong by the People's Republic of China, the People's Republic of China is under an obligation not only to ensure the enjoyment in the Hong Kong Special Administrative Region of the rights guaranteed by the Covenant but also to submit reports pursuant to Article 16 of the Covenant. The Committee therefore considers that it is competent to examine the implementation of the Covenant after 1 July 1997, on the basis of reports or such other material as will be before the Committee, and reiterates its willingness to receive reports in respect of t h e Hong Kong Special Administrative Region from the People's Republic of China or, if the authorities so decide, directly from the Hong Kong Special Administrative Region. T h e Committee encourages all parties concerned to work out as soon as possible the modalities of submitting such reports and to inform the Committee of these modalities. The Committee is convinced, however, that the best way to resolve this particular issue would be for the People's Republic of China herself to become a party to the International Covenant on Economic, Social and Cultural Rights.

33. The Committee urges the Hong Kong Government to consider with the utmost care the Committee's suggestions and recommendations embodied in its concluding observations of 1994, as well as those that follow, and to undertake whatever relevant concrete measures may be necessary. 34. The Committee strongly urges the Hong Kong Government to take every possible measure to develop a fair and open one-way permit approval mechanism, in order to facilitate the rapid family reunification.

35. The Committee recommends that the Government should undertake more effective measures for the retraining of those who have lost employment or are underemployed as a result of economic restructuring. 36. The Committee urges the amendment of the Sex Discrimination Ordinance to include provisions on reinstatement in employment as well as the removal of the current maximum amount for recovery compensation.

37. The Committee recommends the Government to lift repressive provisions and limitations in relation to trade union federations including the prohibition to establish international affiliation.

38. The Committee recommends a review of government policy in relation to unfair dismissal, minimum wages, paid weekly rest time, maximum

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hours of work and overtime pay rates, with the end in mind to bring such policy into conformity with the Government's obligations set forth in the Covenant.

39. T h e Committee strongly recommends that the H o n g Kong Government should reconsider the adoption of a universal, comprehensive retirement protection scheme which seeks to ensure that disadvantaged groups are accorded full access to social security.

40. T h e Committee reiterates in the strongest possible terms its recommendation that the Hong Kong Government should undertake as a matter of high priority the total eradication of cage-homes.

41. The Committee urges the Hong Kong Government to review the 7-year residence rule applied before providing housing to immigrant families from China, with a view to ensuring their right to adequate housing.

42. The Committee requests that, within 45 days it receive a comprehensive response to its inquiry regarding three Vietnamese refugees who were denied medical and dental treatment, mainly for refusing to voluntarily return to Vietnam.

43. T h e Committee strongly recommends that the H o n g Kong Government review the situation concerning persons with mental illness and disability and to ensure that their rights under the Covenant are fully protected.

44. The Committee recommends that measures to integrate children of immigrant families from China, into the general education system be implemented with maximum possible attention from government authorities.

45. The Committee recommends that these concluding observations be made widely available in English and Chinese within Hong Kong and that copies be provided by the Government to all members of the judiciary and to the relevant echelons of the public service.


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Document IV

UNITED NATIONS

General Assemblv ,

CCPR Internationd Covenant on Civil and Political Rights Distr. GENERAL CCPFUCl79lAdd.68 8 November 1996 ORIGINAL: ENGLISH

Human Rights Committee

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT Concluding Observations of the Human Rights Committee

DENMARK 1. The Commitee considered the third periodic report of Denmark (CCPFUCl64lAdd.l l ) at its 1533 and 1534 meetings, held on 22 October 1996 and adopted1 the following comments:

A. Introduction 2. The Committee expresses its appreciation to the State party for its elaborate and comprehensive report, which has eventually been prepared in accordance with the Committee's guidelines, and for engaging through a delegation witn first hand knowledge of the different subjects under discussion, in an extremely constructive dialogue with the Committee.

3. It notes with satisfaction that the information submitted in the report and

'

Ac its 1556th meeting (58th session), held on G November 1996.

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Max Planck Yearbook of United Nations Law that provided by the delegat~onin reply to both written and oral questions, enabled the Committec to obtain a thorough view of Denmark's actual compliance with the obligations undertaken under the International Covenant on Civil and Political Rights and the improvements implemented since the consideration of the second periodic report. The Committee regrets, however, that the third periodic report, which was due in 1990, was considerably delayed in its submission.

positive aspects The Committee notes, with appreciation, the high level of achievement in the respect for human rights in Denmark. Among the positive developments that have been realized since the consideration of the second periodic report in 1987, the Committee notes, the ratification of the Second Optional Protocol to the Covenant on the abolition of the death penalty, the revision of various legislative texts, the increased jurisdiction recently p a n t e d to the Ombudsman and the establishment - at a national level of a number of human rights institutions - namely the Danish Centre for Human Rghts, the Equal Status Council and the Racial Equality Board - with a view to reinforcing protection of civil and political rights and to promoting greater public awareness of the provisions of the Covenant and the Optional Protocols. T h e publication by the Ministry of Justice of a new periodical on EU law and human rights with a view to ensure a wider knowledge of the interpretation and application of human rights provisions of international treaties in the Danish courts is welcomed. T h e organization, on a standing basis, of human rights training courses for members of the police and other law enforcement officials is also a positive development. The Committee notes with satisfaction the measures adopted by the Danish Government in order to ensure that ethnic and linguistic minorities enjoy the rights set forth in the Covenant without discrimination. The Committee commends the introduction of a new system to investigate complaints against the police and the increased funding for its operation. It looks forward to receiving the results of the new jurisdiction. The Committee takes note of the declaration by the delegation to the effect that the text of the Covenant would be shortly translated into Greenlandic.

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9. The Committee cornmends the legal and administrative measures taken to promote equal enjoyment of women's rights.

C. Factors and difficulties impeding the application of the Covenant 10. The Committee finds that there are no particular factors or difficulties which may impede the effective implementation of the Covenant's provisions by the l n g d o m of Denmark, except for the continued maintenance of Denmark's reservations to certain provisions of the Covenant.

D. Principal subjects of concern 11. The Committee is concerned at the fact that the Covenant, unlike the

European Convention on Human Rights and Fundamental Freedom, has not yet been given the status of domestic legislation, considering in particular that the Covenant guarantees a number of human rights which are not protected under the European convention and that permissible restrictions are less broadly based.

12. The Committee notes that the reservations entered by Denmark upon ratification of the Covenant with respect to a number of provisions have an adverse effect on the full implementation of the Covenant. Consideration ought to be given to the withdrawal of some, or all, of these reservations.

13. The Committee further notes that the requirements referred to in article 9,paragraph 3, of the Covenant, are not fully met.

14. The Committee also expresses its concern with the methods of crowd control employed by the police forces, including the use of dogs, against participants in various demonstrations or gatherings which, o n certain occasions, have resulted in the serious injuries to persons in the crowds, including bystanders. 1 5 , The Committee is concerned at the long delay in resolving the dispute arising from the claim for compensation by the members of the indigenous minority of Greenland in respect of their displacement from their lands and loss of traditional hunting rights on account of the construction of the military base at Thule. It is also concerned that the people of Greenland are not able to enjoy fully certain Covenant rights and freedoms, including those provided for in article 12.

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16. The Committee regrets the paucity of information about the Covenant and its implementation in the Faroe Islands.

E. Suggestions and recommendations 17. The Committee recommends that the State party take appropriate measures to ensure the direct application of the provisions of the Covenant into domestic law. 18. The Committee also recommends that the Government review the continuing need for any reservation, with a view to withdrawing them. 19. The Committee suggests that further consideration and amendments be made to the regulations, last reviewed in 1992, concerning residence and other conditions for reunification of families both of alien immigrants and refugees so as more fully to give effect to articles 23 and 24 of the Covenant.

20. The Committee further recommends that consideration be given to thc revision of the existing regulations concerning the length of the pre-tria: detention and that of solitary confinement in accordance with the Committee's General Comment No. 8(16) and its jurisprudence. 21. T h e Committee urges the Government of the State party to further the training of the police forces in methods of crowd control and o handling offenders, including those suffering from mental disorder. and to keep these issues constantly under review. The Committet recommend< that the authorities reconsider the use of dogs in crowc control.

22. The Committee emphasizes that further measures should be taken tc ensure that the provisions of the Covenant are more widely disseminated. particularly among the legal profession and members of the judiciary. 23. The Committee strongly recommends that the reporting obligations the State party under article 40 of the Covenant be strictly observed anc that the fourth periodic report be submitted within the time-limit to be determined by the Committee.

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UNITED NATIONS

General Assembly

CCPR International Covenant on Civil and Political Rights Distr. GENERAL CCPFUCl73lAdd.7 1 8 November 1996 ORIGINAL: ENGLISH P -

-

Human Rights Committee CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT Concluding Observations of the Human Rights Committee GABON 1. The

Committee considered the initial report of Gabon (CCPRfCI31lAdd.4) at its 154 1st to 1543rd meetings, on 28 and 29 October 1996, and adopted1 the following observations.

A. Introduction 2. The Committee welcomes the opportunity to initiate its dialogue with

the Government of Gabon while regretting that this follows a lapse of over 12 years in the submission of the report by the State party. While the Committee regrets the scarcity of information contained in the written report, it expresses its appreciation for the high-level delegation, as well as for the detailed and updated additional information provided for by the delegation in response to the questions posed by the Committee.

A[ its 1556th meeting, held on 6 November 1996.

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Max Planck Yearbook of United Nations Law Factors and difficulties affecting t h e application of the Covenant The Con~mitteenotes the existence in the State party of customs and traditions, particularly in the area of equality between men and women, which may impede the full observance of relevant provisions of the Covenant.

Positive aspects The Committee welcomes the positive political evolution of Gabon towards a multi-party and pluralistic democracy since the entry into force of the 199 1 Constitution and its amendment of 18 March 1994. It notes with satisfaction the establishment in 1987 of a Ministry of Communication, Culture, Art and Human Rights, which includes human rights among the subjects for which it has responsibility. T h e Committee appreciates the statement made by the delegation to the effect that the Government intends to establish, as a statutory, autonomous body, a National Human Rights Commission for the promotion and protection of human rights. The Committee welcomes Gabon's accession without any reservation to various international human rights instruments. The Committee notes with satisfaction that pursuant to the introduction of the multi-party system, 20 political parties have been created and that, further to the promulgation of the 1994 Labour Code and of the 1993 Act on trade-union organizations of public servants, the previous trade union monopoly system has been removed. The Committee appreciates the statement by the delegation that information on international human rights instruments and in particular of the provisions of the Covenant would be disseminated among rhe public.

Principal subjects o f concern The Committee regrets that the opportunity was not taken by the drafters of the Constitution to include in the 1994 Constitution, which refers to other international human rights instruments, a specific reference to the Covenant and its legal relationship with the domestic legal order. It further regrets that all rights provided for in the Covenant are not incorporated into domestic law and that effective remedies are not

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provided in all cases of violation of rights protected under the Covenant.

9. T h e Committee is concerned that the non-discrimination clauses in the Covenant, as laid down in its articles 2, 3 and 26 are not fully reflected in the Constitution. Particular concern is expressed at the prevailing discriminatory attitudes in society towards women and at the insufficiency and lack of effectiveness of measures adopted to prevent them. 10. The Committee is concerned about the lack of safeguards and effective remedies available to individuals during a state of emergency and particularly regrets the lack of information on the situation of non-derogable rights in such circumstances. 11. The Committee regrets that despite the Government's declared policy of not applying the death penalty, no legal steps have yet been taken to abolish it. 12. The Committee is concerned that the guarantees contained in articles 7,9 and 10 of the Covenant are not fully complied with either in law or in practice. In particular, it is seriously concerned about the length of time that individuals may have to spend in police custody and pretrial detention. 13. The Committee is concerned about the practice of imprisonment for civil debt, in contravention of article 11 of the Covenant. 14. T h e Committee is also concerned about the "dilapidated state of jail cells" and notes that insufficient measures have been taken to provide law enforcement officials with appropriate training in the field of human rights, and to inform arrested persons and detainees of their rights. The Committee further deplores the fact that the police force is a component of the country's military forces and, as such, is subject to the military command of the Ministry of Defence. 15. T h e Committee is concerned about the lack of information on measures to ensure the independence and impartiality of the judiciary in conformity with article 14 of the Covenant. 16. With regard to the rights of non-Gabonese citizens and refugees living in Gabon, the Committee is concerned about legal impediments to their freedom of movement within the country as well as by the requirement of an exit visa for foreign workers, which run counter to

486


the provisions in article 12 of the Covenant. It is particularly worried by the appalling conditions prevailing in refugee centres, including at the Librevillc Detention Camp, which led to the death of a number of persons through suffocation and dehydration. 17. The Committee is concerned about the lack of measures taken to implement the rights of persons belonging to minorities, as set forth in article 27 of the Covenant.

E. Suggestions and recommendations 18. The Committee recommends that the Covenant be incorporated in the domestic legal order and that its provisions be made directly applicable before the courts. In this connection, the Committee emphasizes the importance of establishing a National Commission on Human Rights as a permanent and independent mechanism to monitor the effective implementation of the Covenant and to provide training to law enforcement officials and appropriate information to the public. 19. The Committee recommends that all g o u n d s on which discrimination is prohibited, as provided for in articles 2 and 26 of the Covenant, be incorporated in the relevant provisions of the Constitution. It further recommends that article 2 of the Constitution be amended to ensure its compatibility with articles 2 ( l ) , 3 and 26 of the Covenant and that affirmative measures be taken to strengthen the participation of women in the political, economic and social life of the country and to overcome the discriminatory effects of customary laws. 20. The Committee recommends that the State party urgently adopt and incorporate all relevant provisions of article 4 of the Covenant into the Constitution. The Committee recommends that the State party consider the abolition of the death penalty and accession to the Second Optional Protocol to the Covenant. The Committee recommends that all legal provisions or executive orders be reviewed to ensure their compatibility with articles 7, 9 and 10 of the Covenant and their effective implementation in practice. Urgent steps should be taken to review the duration of police custody and preventive detention and to ensure the independent investigation of all allegations of ill-treatment by police and prison officers.

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23. T h e Committee recommends that prison conditions should be brought into compliance with article 10 of the Covenant and with the United Nations Standards Minimum Rules for the Treatment of Prisoners and to make these standards accessible to the police, armed forces, prison personnel and others persons responsible for holding interrogations as well as to persons deprived of their liberty.

24. The Committee urgently recommends the abolition of imprisonment for civil debt, in compliance with article 11 of the Covenant.

25. T h e Committee strongly recommends that the State party take the necessary measures to ensure h a t the police be transformed into a civilian force not subject to the military command of the Ministry of Defence. T h e Committee also recommends that the State party include in its second periodic report information on measures to ensure the independence and impartiality of the judiciary

26. Existing provisions such as article 1 paragraph 3 of the Constitution limiting or restricting the exercise of the right to freedom of movement for non-Gabonese citizens, including the requitement of exit visas should be reviewed to bring the legislation fully in conformity with article 12 of the Covenant. The Committee further recommends that the State party consider adopting measures to improve refugee status and living conditions in refugee centres. The Committee recommends that the Government of Gabon develop information and awareness programmes on the principles and provisions of the Covenant in the various languages spoken in Gabon. Additionally, the Committee recommends that human rights education be provided at all levels in schools and comprehensive human rights training be provided to all segments of the population, including law enforcement officers and all the persons involved in the administration of justice. In this regard, the Committee suggests that the State party avail itself of rhe technical cooperation services of the High Commissioner/Centre for Human Rights.

28. The Committee encourages the State party to disseminate widely the State party's report and the concluding observations adopted by the Committee following its consideration of the report.

29. The Committee recommends that full and comprehensive information on the implementation of the provisions of the Covenant, in law and in practice, be incorporated in the State party's next periodic report.


488

UNITED NATIONS

CCPR

General Assembly

International Covenant on Civil and Political Rights Distr. GENERAL CCPWCl79lAdd.73 8 November 1996 ORIGINAL: ENGLISH

- --

P

Human Rights Committee

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT

Concluding Observations of the Human Rights Committee

GERMANY The Committee considered the fourth er iodic report of Germany (CCPWCl84lAdd.5) at its 1551st to 1553rd meetings, held on 4 and 5 November 1996 (CCPRICISR. 1551-1553), and adopted1 the following observations:

Introduction The Committee welcomes the presence of a high level delegation. It expresses its appreciation for the quality of the report, and the detailed, frank and competent manner in which the delegation answered written and oral questions. The Committee notes with satisfaction that this information enabled it to engage in a highly constructive and fruitfiil ? ; a l n p e with the State -party. .

'

At its 1558th meeting, held on 7 November 1996..

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Factors and difficulties impeding the implementation of the Covenant T h e Committee notes that the process of reunification of Germany has posed particular problems for the uniform application of the Covenant throughout the territory of Germany. The extension of the political, economic, and social system of the western part of the State to the territory of the former German Democratic Republic (GDR) has posed novel, difficult and sensitive questions.

Positive aspects The Committee welcomes the fact that the reunification of Germany has enabled people of the former GDR to enjoy many of the rights and freed o m ~protected by the Covenant which were formerly denied to them. The Committee notes with satisfaction that Germany has acceded to both Optional Protocols to the Covenant. T h e Committee !greatly appreciates the role of the Federal Constitutional Court's role in protecting individuals against the violation of their rights as established by the Basic Law and ensuring conformity of legislation with the Basic Law. The Committee welcomes the adoption of the Second Equal Treatment Act to advance the interests ofwomen in the federal public administration, and the modification of the EC adaption law to ensure that the ban on discrimination is more effectively applied. T h e Committee appreciates the measures adopted for granting compensation and providing rehabilitation to those who suffered injustice at the hands of the Socialist Unity Party (SED) regime in the former GDR. The Committee welcomes the efforts made by the State party to counter racism, anti-Semitism and xenophobia, though it regrets that this phenomenon is still persisting. The Committee appreciates that Germany has provided temporary residence to a verv large number of refugees from Bosnia and Herzegovina. The Committee welcomes the assurance given by the delegation that the return of these refugees " will be orimarilv through " voluntary , repatriation .

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Max Planck Yearbook of United Nations Law and if any involuntary repatriation is made, it will be only in coordination with the Government of Bosnia and Herzegovina and the Office of the United Nations High Commissioner for Refugees, and will be subject to challenge by judicial review. The Committee appreciates the assurance that no repatriation will take place to minority areas in Bosnia and Herzegovina or to majority areas which are not considered safe.

D. Principal subjects of concern and suggestions and recommendations 1 I . T h e Committee expresses its concern that there exist instances of illtreatment of persons by the police, including foreigners and particularly members of ethnic minorities and asylum seekers. In this regard, it is concerned that there is n o truly independent mechanism for investigating complaints of ill-treatment by the police. T h e Committee therefore recommends the establishment of independent bodies throughout the territory of the State party for the investigation of complaints of illtreatment by the police. Though the Committee finds that programmes of education of young people and training of police officers concerning racism, antiSemitism and xenophobic attitudes have been starred, it regrets that a broader educational and training programme in human rights values does not appear to have received the same level of support, T h e Committee also expresses its concern that despite significant efforts by the Government, racism, xenophobia and anti-Semitism still persist among certain segments of the population. T h e Committee thus recommends that efforts to educate the youth and train the police that racism and xenophobia are violative of basic human dignity, contrary to fundamental values and constitutionally and legally impermissible, should be intensified and urges that such education and training should be placed in the wider context of human rights education and training. T h e Committee urges the Federal and Lander Governments to introduce courses in human rights in schools, colleges and universities and also in police and defence academies with a view to strengthening a culture of human rights.

13. T h e Committee is concerned that the definition of minorities as "ethnic or linguistic groups who have a traditional area of settlement in particular regions", as stated in para. 244 of the report, is much too restrictive in terms of article 27 of the Covenant. T h e Committee is of the view that article 27 applies to all persons belonging to minorities whether linguistic, religious, ethnic or otherwise including those who

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are not concentrated or settled In a prticular area or a particular region or who are immigrants or who have been given asylum in Germany. The Committee regrets that Germany has made a reservation excluding the competence of the Committee under the Optional Protocol with regard to violation of rights as by article 26 of the Covenant. The Cornmittet: expresses its concern that solitary confi~lenlentcan be imposed for a period of up to three months and can be further extended by court order. The Committee is concerned that membership in certain religious sects as such may in some Lander of the State party disqualify individuals from obtaining employment in the public service, which may in certain circumstances, violate the rights guaranteed in articles 18 and 25 of the Covenant. The Committee thus recommends the State party to discontinue the holding of "sensitizing" sessions for judges against the practices. of certain designated sects. The Committee expresses its concern that the criteria used to evaluate for retaining or dismissing former G D R public servants, including judges and teachers, are vague and leave open the possibility for deprivation of employment on the basis of political opinions held or expressed. The Committee therefore suggests that the criteria for dismissing public servants of the former G D R be made more precise so that no public servant will be dismissed on the ground of political opinion held or expressed by him or her. The Committee is concerned that there is an absolute ban on strikes by public servants who are not exercising authority in the name of the State and are not engaged in essential services, which may violate article 22 of the Covenant. The Committee is concerned thar the State party has not provided information in respect of the right to form and join trade unions (article 22 of the Covenant) or on aspects of the rights of children (article 24 of the Covenant) on the ground that information had been ~rovidedto another creaty body. In this regard, the Committee reminds the State party that reports under article 40 of the Covenant should provide information in respect of all Covenant rights.


492

UNITED NATIONS

General Assembly

CCPR International Covenant o n Civil a n d Political Rights Distr. GENERAL CCPR/C/79/Add.63 3 April 1996 ORIGINAL: ENGLISH

Human Rights Committee Fifty-sixth session

CONSIDERATION O F REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 O F T H E COVENANT Concluding Observations of the Human Rights Committee G VAT E.MALA 1 . The Committee considered the initial report of Guatemala

(CCPRlCl81lAdd.7 and HRI/CORE/l/Add.47) at its 146th, 1488th and 1489th meetings, on 26 and 2 8 March 1996 (see CCPRlClSR.1486, 1488 and 1489). Subsequently, at its 1499th meeting, on 3 April 1996, the Committee adopted the following comments: A. Introduction 2. The Committee welcomes the initial report submitted by the State party and also wdcomes the delegation's willingness to engage in a frank and fruitful dialogue with the Committee. The Committee regrets, however, that although the report provides information on general legislative norms in Guatemala, it largely fails to deal with the actual state of implementation of the Covenant in practice and the difficulties encountered in the course of implementation which the delegation frankly admitted, a fact

Document IV which the Committee appreciates. The Committee appreciated the presence of a competent delegation which provided helpful information to the Commirtee in addressing its questions and thus allowed it to obtain a clearer view of the overall human rights situation in the State party.

Factors a n d difficulties affecting the implementation o f the Covenant The Committee notes that Guatemala continues to suffer from a long civil war, which has devastated the country for more than four decades. In the context of such conflict, gross and massive human rights violations have occurred and, although some steps have been taken in recent years to achieve peace, the conflicting parties have not yet negotiated an end to the war. The situation of armed conflict which has prevailed since Guatemala ratified the Covenant has given rise to serious violations of human rights. The armed conflict has also subjected civilian governmental authority to the power of the military, which is incompatible with the legitimate functions of freely elected authorities and the purpose of elections. The Committee also notes that various segments of the population, particularly persons who are or were members of the armed forces or government officials, or who hold economic power, continue to take advantage of a climate of impunity resulting in the most serious human rights violations and has been an obstacle to the rule of law in the State party. The Committee further notes that social and economic disparities are allpervasive in the country. High levels of poverty and illiteracy, lack of opportunities, and discrimination against the indigenous population, women and the poor contribute to widespread violation of human rights.

Positive aspects The Committee expresses its satisfaction with positive changes for the protection of human rights since the signing of the Central American Peace Accords on 7 August 1987. I t notes that some progress has been made towards entering a dialogue that would hopefully put an end to the situation of armed conflict and lead to the establishment of the rule of law. In that connection, the Committee notes the signing on 23 lMarch 1994 of the Comprehensive Agreement on Human Rights, and consequently the establishmenr of the United Nations Mission in

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lMax Planck Yearbook of United Nations Law Guatemala (MINUGUA) and of its human rights component, as well as the conclusion of the Agreement on Resettlement of the Population Groups Uprooted by the Armed Conflict on 23 June 1994. 'I'he Committee welcomes the current Government's intentions to achieve a firm and lasting peace in Guatemala and its willingness to put an end to serious violations of human rights and to create a better potitical, constitutional and legal framework towards the full implementation of the rights enshrined in the Covenant. T h e Committee also welcomes the termination of offensive military actions decreed by the Unidad Revolucionaria Nacional Guatemalteca (URNC) and rhc ccssarion of all counter-insurgency operations by the Government decreed by President Arzu. The Conlmittee further welcomes the suppression of thc obligatory military service, which will aid in the demilitarization of the country. In that respect, the Committee welcomes positive steps taken by the recently elected Government, such as the dismissal of certain top officials of the armed forces and the reopening of a dialogue with the armed opposition on 22 February 1996. It also welcomes the elimination of the post of the Military Commissioner (Cornisionado Militar) and the demobilization of more than 14,000 persons from the security forces. T h e Committee welcomes Guatemala's ratification of the Covenant in 1992, as well as the adoption by Congress of legislation approving ratification of the Optional Protocol. It welcomes the indication made by the represenrarives of the State party that Guatemala will deposit its instrument of ratification to the Optional Protocol within the next few days. T h e Committee welcomes the establishment of the O f i c e of the Human Rights Procurator and the Presidential Conlmission for Coordinating Executive Policy in the Field of Human Rights (COPREDEH). T h e Committee also welcorr~es the legal reform undertaken in some areas, notably constitutional amendment5 to bring Guatemalan law in conformity with international human rights standards, the adoption of a new Code of Criminal Procedure and the enactment o f a new Law on the Prosecutor's O K c e (Ley Orginica del Ministerio Pliblico), aiming at the investigation and punishment of human rights violarions. The Committee welcomes recent legislation making torture, forced disapDearnnces and extra-iudicid executions ~unishableoffences in Guatemala.

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It also welcomes recent developments to curb the power of military tribunals and to bring cases of human rights violations by members of the army and the security forces under the jurisdiction of civil courts.

12. The Committee welcomes the recent elections and the fact that after a failed coup d'ttat the authority vested in freely elected officials was strengthened.

D. Principal subjects of concern 13. The Committee is concerned that the absence of a State policy for combating impunity has prevented the identification, trial and punishment if found guilty of those responsible, and the payment of compensation to the victims. The Committee is concerned that the delays and failures of the process of law, and the non-compliance. by the police with court decisions and orders has heightened the public perception that justice cannot be obtained.

14. The Committee expresses concern that human rights violations continue to occur in Guatemala, particularly serious and systematic violations of the right to life and liberty and security of the person carried out by paramilitary groups, many of them linked to the State's security forces.

15. T h e Committee is concerned at the extension of the death penalty in a way which might not be in conformity with the requirements of article 6, paragraph 2,.of the Covenant.

16. T h e Committee notes with alarm the information received of cases of summary executions, disappearances, torture, rape and other inhuman or degrading treatment or punishment, arbitrary arrests and detention of persons by members of the army and security forces, or paramilitary and other armed groups or individuals (notably the Civil Self-Defence Patrols (PACs) and former military commissioners).

17. T h e Committee is concerned at the cases of violence against the repatriated population, which has resulted in extra-judicial executions, disappearances and torture or ill-treatment. In connection with this, it is concerned at the conduct of PAC members who have availed themselves of their position to harass repatriated persons.

18. T h e Committee notes with concern that members of various social sectors, particularly members of the judiciary lawyers, journalists, human rights activists, members of trade unions and members of political

496

Max Planck Yearbook of United Nations Law parties are subject to intimidation, death threats and even murder, thus facing serious obstacles in the legitimate performance of their duties. The Committee deplores that effective measures have not yet been taken to prevent the recurrence of such acts.

19. The Committee is concerned that judges are subjected to supervision of an Executive Branch body which may affect their independence.

20. The Committee deplores the situation of street children in Guatemala, who are subjected to serious violations of their human rishts under the Covenant, particularly their right to life and not to be subjected to torture and ill-treatment. The Committee is concerned at the intensity of abuse against street children by persons of authority, including the public and private police.

21. T h e Committee is concerned at customs and traditions prevailing in Guatemala which discriminate against women. It is particularly concerned at the statement by the delegation that State institutions are frequently nor in a position to address the problems affecting the female population. The Committee is especially concerned at violence within the family which affects not only women but also children.

22. The Committee expresses concern at the specific impact of the prevailing violence within the country on the enjoyment by members of indigenous groups of their rights under article 27 of the Covenant. In that connection, the Committee is concerned [hat despite the signing of an accord between the Government and the armed opposition on 3 1 March 1995 on the identity and rights of the indigenous population, the law on indigenous communities required by article 17 of the Constitution has not yet been enacted.

23. The Committee is concerned at the curtailment of the right of association, especially within the workplace. I n this sense, it is concerned at the high levels of violence against trade union members, at the intimidation by agents of offshore operations and at the high number of cases of strikes that are deemed illegal.

E. Suggestions and recommendations 24. The Committee strongly encourages the Government to undertake a thorough review of the legal framework for the protection of human rights in the State party to ensure full conformity with the Covenant.

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25. The Committee urges the Guatemalan Government to continue working in the process of national reconciliation which may bring lasting peace to Guatemalan Society. The Guatemalan Government should take all pertinent measures to avoid cases of impunity and, especially, to allow the victims of human rights violations to find out the truth about those acts, to know who the perpetratorc of such acts are and to obtain appropriate compensation.

26. The Committee recommends that the State party endeavour to bring to justice perpetrators of human rights abuses, notwithstanding the positions they may have held, in accordance with the Covenant. It urges the State party to investigate allegations of human rights violations, past and present, to act on the findings of its investigations, to bring to justice those suspected, to punish the perpetrators and to compensate the victims of such acts. Persons found guilty of having committed human rights violations should be expelled from the armed or security forces and punished accordingly.

27. The Committee recommends that the Office of the Human Rights Procurator and the presidential Commission for Coordinating Executive Policy in the Field of Human Rights (COPREDEH) be strengthened, with regard both to resources and to jurisdiction, in order to ensure that they may effectively carry out their responsibilities.

28. The Commitree recommends that all necessary measures be taken to ensure that human rights are respected by members of the army, the security forces and the police. It urges continuing vigorous action to ensure that persons responsible for human rights abuses not re-enter the police, army or security forces. Immediate steps should be taken to disband paramilitary and other groups, particularly the Civil Self-Defence Patrols (PACs).

29. The Committee recommends that an educational programme be devised so that all segments of the population, in particular members of the army, the security forces and the police, as well as present and former members of the Civil Self-Defence Patrols, develop a culture of tolerance and respect for human rights and human dignity.

30. The Committee urges the Government to take all necessary steps, including protective and pre-emptive measures, to ensure that members of various social sectors, particularly members of the judiciary, lawyers, journalists, human rights activists, members of trade unions and members of political parties, be enabled to perform their duties without intimidation of any sort.

498


3 1. The Committee recommends that the independence of the Judiciary be ensured and a law regulating it be enacted.

32. The Committee recommends that appropriate stringent measures be taken to ensure the fullest possible implementation of article 24 of the Covenant, including adequate protection of street children. Stern measures must be taken to punish those found guilty of committing any kind of violence against minors, especially against those who endure hard living conditions.

33. The Committee also urges that violence (especially within the home) and acts of discrimination against women (such as sexual harassment in the workplace) be esrablished as punishable crimes.

34. The Committee recommends that further measures be taken to ensure that members of indigenous groups be protected against the prevailing violence within the country and enjoy fully their rights under article 27 of the Covenant, particularly with regard to preservation of their cultural identity, language and religion. T h e legislation on indigenous communities should be enacted without delay.

35. The Committee urges that respect for human rights be institutionalized at all levels of the Government and recognized as an essential element of the process of national reconciliation and reconstruction. To that end, the Committee recommends that human rights education be provided in schools at all levels and that the present concluding observations be widely disseminated.

36. The Committee urges the Guatemalan Government to restrict the application of the death penalty to those crimes which might be considered most serious, in accordance with article 6, paragraph 2, of the Covenant.

37.The Committee urges that MINUGUA continue its activities in the country until it certifies that it has fdly discharged its mandate relating to human rights.

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UNITED NATIONS

General Assemblv ,

CCPR International Covenant on Civil and Political Rights Distr. GENERAL CCPRICI79IAdd.60 4 April 1996 ORIGINAL: ENGLISH

Human Rights Committee Fifty-sixth session CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT Concluding Observations of the Human Rights Committee MAURITIUS The Committee considered the third periodic report of Mauritius (CCPWCI64IAdd. l 2 and HRIICOREI1 IAdd.60) a t its 1476th to 1478th meetings, on 19 and 20 March 1996 (see CCPRICISR.1476, 1477 and 1478). At its 1497th meeting, on 2 April 1996, the human Rights Committee adopted the following comments: Introduction The Committee welcomes the third periodic report presented by Mauritius and expresses its appreciation to the State parry for the additional information submitted orally and in writing during the consideration of the report by a high-level delegation. The Committee regrets, however, that the report was long overdue. The valuable supplementary information provided by the delegation, both oral and written, provided a sound basis for a frank and fruitful dialogue between the Committee and the State parcy.

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5 00

B. Factors and difficulties affecting the implementation of the Covenant

3. The Committee finds no significant factors or difficulties which would prevent the effective implementation of the Covenant in Mauritius.

C. Positive aspects

4.

The Commirtee notes that the harmonious coexistence of the multi-ethnic population of Mauritius and its atmosphere of tolerance strengthen the ability of Mauritius to live up to its obligations under the Covenant.

5. The Committee expresses its appreciation for the adoption of the Abolition of Death Penalry Act 1995 which came into force in December 1995 and provides for the imposition of a sentence of imprisonment for life in place of the death penalty. 6. The Committee welcomes the amendment to section 16 of the Constitution by the enactment of the Constitution of Mauritius (Amendment) Act 1995 which adds sex to the grounds on which discrimination by laws or by public authorities is prohibited. The amendment to the lMauritius Citizenship Act 1968, removing discrimination on grounds of sex, the proposed Bill on Domestic Violence and the full recognition of the equal rights of children born in and out of wedlock are also welcome.

7. The Committee welcomes that the large-scale legislative reform which is being contemplated with a view, inter alia, to shortening the length of court proceedings and to reconsidering the system of legal aid. 8. The Committee notes with appreciation the promulgation of the Child Protection Act in 1994. 9. The Committee welcomes the establishment of a Human h g h t s Unit by the Attorney-General with a view, inter alia, to undertaking the preparation of the reports of Mauritius to the various United Nations human rights treaty bodies. 10. The Committee welcomes the initiatives of Mauritius to establish an Indian Ocean Human Rights Institute. 11. The announcement concerning the proposed establishment of an Independent Police Complaints Board is welcomed.

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12. The Committee also welcomes the intcntion of the Government to set up an Independent Broadcasting Authority

D. Principal subjects of concern 13. The Committee is concerned that the non-incorporation of all the rights guaranteed in the Covenant into domestic law and the existence of non-permissible limitations affect the full implementation of the Covenant in Mauritius and that, accordingly, the legal system of Mauritius does not ensure effective remedies in all cases of violations of rights guaranteed in the Covenant. 14. The Committee is concerned that excepting personal laws and foreigners from the prohibition of discrimination - as set forth in section 16 of the Constitution - results in a violation of article 26 of the Covenant. 15. T h e Committee notes with concern that the problem of domestic violence has not yet been the object of appropriate measures. 16. The Committee expresses its concern over the provisions in the thus far non-implemented Dangerous Drugs Act 1995 under which an arrested person may be held incommunicado at the discretion of a police officer.

17. The Committee notes with concern that the powers of detentlon provided for in sections 5 (1) (k) and 5 (4) of the Constitution are incom~ a t i b l ewith article 9 (3) and (4) of the Covenant. 18. The Committee is concerned that the legislation of Mauritius has not yet been brought into line with article 1 1 of the Covenant. 19. The Committee is concerned at the extent o f d e facto limitation on the freedom of expression, as exemplified by the banning of two recent literary works without legal measures having been taken to that effect, and at penal offences relating to libel and the dissemination of false news. Extra-legal restrictions on freedom of expression are not compatible with the Covenant. 20. T h e Committee takes note with concern of the requirement that prior notification be made seven days before any public meeting is held in order to obtain permission from the Commissioner of Police. 21. The Committee is concerned by difficulties faced by those working in

502

Max Planck Yearbook of United Nations Law the Export Processing Zone in the enjoyment of their rights under article 22 of the Covenant.

E. Suggestions and recommendations 22. The Committee emphasizes the need for a legal machinery enabling individuals to enforce all the rights enshrined in the Covenant before domestic courts.

23. The Committee recommends that all grounds on which discrimination is prohibited, as identified in articles 2 and 26 of the Covenant, be incorporated in the relevant non-discrimination provisions of the Constitution and that the provisions be extended to cover aliens. It further recommends that section 16 (2) and 16 (4) (c) of the Constitution be amended to render them compatible with articles 2 (l),3 and 26 of the Covenant .md that steps be taken ro introduce comprehensive antidiscrimination laws to cover all spheres, public or private, protected by the Covenant. It is also recommended that the proposed Equal Opportunity Cvrnrnissivn consider whether affirmative action measures, including educational measures, are necessary to overcome remaining obstacles to equality, such as outdated attitudes concerning the role and status of women.

24. Following the abolirion of the death penalty, it is recommended that Mauritius consider ratification of the Second Optional Protocol to the Covenant. 25. The Committee expresses the hope that the envisaged Independent Police Complaint Board is established as soon as possible, and that provisions are included in the law to ensure that the Board will enjoy the powers and receive the resources to enable it to investigate allegations of abuse by members of the police. 26. The Committee stresses the need to establish a mechanism to provide legal aid for appeals to the Privy Council. 27. The Committee recommends the reconsideration of the legislation OK the publication of false news. If the State party considers it necessary t c allow for some restrictions on publications and showing of films, legislation should be introduced establishing criteria consistent with article 19 (3) of the Covenant and providing for judicial review of all decisions to restrict the exercise of freedom of expression. The Committee

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expresses the hope that the envisaged Independent Bro~dcasrir~g Authority is established as soon as possible. It suggests the establishment of a mechanism that would allow for a Press Code of Ethics.

28. T h e Committee suggests that consideration be given to ensuring that restrictions d o not exceed what is necessary in a democratic socier); in conformity with article 21 of the Covenant.

29. T h e Committee expresses the hope that, as part of the planned re\iew of industrial legislation, the Government w i l l conslder \\.hether \vorkers in export processing zones (who include a majorln of women) need additional legal protection to ensure their full e n j o ~ m e n of t the rights guaranteed by article 22 of the Covenant.

30. The Committee recommends that appropriate steps be taken to ensure that the inhabitants of the islands of Agalega and St. Brandon are able to exercise their right to vote as required by article 25 of the Covenant.

3 1. Lastly, the Committee suggests that steps be taken to disseminate in all languages spoken in Mauritius information about the Covenant and about the report and the proceedings before the Committee. It also suggests that steps be taken to publish educational material, particularly for children, in the most used vernacular languages.

Max Pianck Yearbook of United liarions Law

504

UNITED NATIONS

General Assembly

CCPR International Covenant on Civil and Political Rights Distr. GEKERAL CCPWCi79iAdd.65

24 July 1996 ORIGINAL: EXGLISH

H u m a n Rights Committee Fih-seventh session

CONSIDERATION O F REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 O F T H E COVENANT

Concluding Observations of the H u m a n Rights Committee

NIGERLA 1 . Follo\sing the examination of the initial report of Nigeria insofar as it related t o the application of articles 6, 7,9 a n d 14 of the C o v e n ~ n t in Nigeria, the C o m m i t t e e , at its 1499rh meeting, o n 3 April 1 9 9 6 , adopted cerrain urgent recommendations. These included the abrogation of all decrees esrablishing special tribunals or revoking normal consrirutional guaranrees o f fundamental righrs or the jurisdiction of the normal courts as well as the adoption of urgent steps t o ensure that persons facing trial were afforded all guaranrees of a fair [ r i d (see d o c u n ~ e n tC C P R / C i 7 9 / X d d . 6 4 , paras. 1 1 t o 13).

fib-seventh session. At its 1526th and 1527th meetings (fib-seventh session), held o n 2 4 July 1996, t h e C o m m i t t e e adopred the following Concluding Observations:

2 . T h e dialogue hvith Nigeria continued during the

Document I\'

Introduction T h c Committee welcomes the opportuniry to resume the dialogue with the Government of Nigeria rhrough a high ranking delegation that included members of the newly established National Human R~ghtsCommission.

Factors and difficulties affecting the implementation of the Covenant T h e Committee notes that the continuation of the military regime and in particular the suspension of constitutional guarantees of rights by decrees of that regime are an obstacle to the effective implementation of rights protected under the Covenant. T h e Committee notes also that the failure of the Government to undertake an analysis of la~vsand procedures, including c u s t o m a y lalvs to assess the c o m p a r i b i l i ~~ v i t hthe Covenant has prevented the effective implementation of rights protected by the Covenant. Inter-ethnic and inter-religious violence ~ v h i c hpersist in Nigeria appear to affect adversely the enjoyment of rights and freedoms protected by the Covenant.

Positive aspects T h e Committee notes the measures that have been taken by the Government since the fifty-sixth sesaion to overcome some obstacles t o the enjoyment of rights which were identified by the Committee. It appreciates rhat the newly enacted Civil Disturbances (Special Tribunal) (Amendment) Decree removes military personnel from the Civil Disturbances Tribunal and provides for the right of appeal from its sentences and convictions. It welcomes the repeal of Decree No. 14 of 1994 (which precluded courts from issuing writs of habeas corpus) by the State Securir). (Detention of persons) (Amendment) (No. 2) (Repeal) Decree, adopted o n 7 June 1996. It also notes that a panel has been established to revie\v cases of detention under Decree KO. 2 of 1984. T h e Committee welcomes the fact that municipal elections have been held; that political parties have been registered; that preparations are proceeding for national elections; and rhat the year for these elections has been announced.

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9. The Committee welcomes the adoption of Decree No. 22 of 1395, establishing the National Human Rights Commission which has been given certain responsibilities regarding the promotion and protection of human rights.

10. It further welcomes the establishment of a Ministry of Women's Affairs and Social Welfare. It also welcomes measures taken to promote the participation ofwomen at all levels of the political, economic and social life of the country.

11. The Committee also welcomes the willingness of the Nigerian Government to undertake an analysis of the legal system in the light of its obligations under the Covenant and to seek the technical assistance from the Centre for Human Rights in this process.

D. Principal subjects of concern The Committee notes with deep concern that measures have not been adopted to address all the issues of concern identifed by the Committet at its fifiy-sixth session and to implement the urgent recommendations in its preliminary concluding observations (see CCPR/C/79/Add.64). In particular, the Committee is concerned that the Government 0:. Nigeria has not abrogated the Decrees establishing special tribunals or those revoking normal constitutional guarantees of fundamental rights as well as the jurisdiction of the normal courts. The Committee deplores the statement of the delegation that the decrees are not to b t abrogated because they pre-dated the entry into force of the Covenanr in Nigeria and are an essential part of military rule in Nigeria. T h t Covenant precludes measures derogating from the State party's obligations other than in the limited circumstances provided for by article i which have not been applied in the case of Nigeria.

13. The Committee expresses its grave concern thdt the continuation o Military Government and rule by President~aldecrees which suspend o override constitutional rights and which are not open to review by the courts are incompatible with the effective implementation of tht Covenant.

14. The Committee wishes to reiterate that there remain fundamenta inconsistencies between the obligations undertaken by Nigeria tc respect and ensure rights guaranteed under the Covenant and the implementation of those rights in Niger~a.It is further concerned tha

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there is no legal protection of rights in Nigeria, as a consequence of the non applicability o f t h e 1989 Constitution and the adoption of Decree No. 107 of 1993 that re-established the 1979 Constitution, while excluding the application of the section dealing with basic rights. Another concern of the Committee is the number of decrees suspending or restoring previous laws, with exceptions in some cases. The result appears to bc uncertainty as to which rights may be invoked and which are suspended.

15. The Committee must repeat its earlier expression of serious concern in relation to the establishment by decree of special tribunals which operate without observing the requirements of fair trial as required by article 14 of the Covenant.

16. The Committee is concerned that, under Nigerian law, the death penalty may be imposed for crimes which d o not constitute "the most serious offences" as required by article 6 of the Covenant and that the number of death sentences passed and actually carried out is very high. The fact that sentences of death are passed without the safeguard of fair trial violates the provisions of articles 14 (1) and 6 of the Covenant. Public executions are also incompatible with human dignity.

17. T h e Committee notes with concern that, following the introduction of measures to overcome certain specific violations of rights in regard to the composition of special tribunals and the right of appeal no compensation has been offered to victims of the human rights abuses which had already occurred under the previous measures.

18. T h e Committee is deeply concerned by the high number of extra-judicial and summary executions, disappearances, cases of torture, iil-treatment, and arbitrary arrest and detention by members of the army and security forces and by the failure of the Government to investigate fully these cases, to prosecute alleged offences, to punish those found guilty and provide compensation to the victims or their families. The resulting state of impunity encourages further violations of Covenant rights.

19. T h e Committee is disturbed at the poor conditions in places of detention that include severe overcrowding, lack of sanitation, lack of adequate food, clear water and health care, all of which contribute to a high level of death in custody. 'She Committee emphasizes that it is incompatible with the Covenant to hold prisoners under conditions which do not meet the basic guarantees provided in article 10 of the Covenant as well as in the United Nations Standard Minimum Rules

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Max Planck Yearbook of United Nations Law for the Treatment of Prisoners, despite its adoption of prison regulations, contained in Chapter 366 of the Prisons Act (1990).

20. The Committee is concerned at the large number of persons detained without charge, and the lengthy periods of pre-trial detention which are incompatible with article 9 of the Covenant. It is particularly concerned that incommunicado detention is commonly ordered and often for indefinite periods and without access to judicial review, in violation of article 9 of the Covenant.

21. The Committee is seriously concerned at violations of the right to freedom of expression, as exemplified by the adoption of a number of decrees suspending newspapers, as well as the arbitrary arrest, detention and harassment of editors or journalists.

22. T h e Committee notes with concern the extent of restrictions to the freedom of association and assembly in law and in practice. The Commirtee is concerned by numerous reports it received according to which members of unions were harassed and intimidated, sometimes even arrested and detained, that the dissolution of certain unions has been ordered by the Government.

23. T h e Committee is concerned by the arrest and detention of officers of human rights organizations, involving violations of articles 9 and 22 of the Covenant and interfering with the free exercise of the significant role played by such organizations in the protection of human rights.

24. T h e Committee takes note of allegations by a Nigerian non-governmental organization (Civil Liberty Organization) that rwo of its officials were prevented by the State Security Service from atrending the fifysixth session of the Committee and had their passports impounded. It regrets that despite a letter by the Chairman giving details of these allegations, an investigation was not completed before the fifty-seventh session and that no information could be provided about the circumstances alleged. Preventing persons from leaving their country violates article 12 (2) of the Covenant and is incompatible with the State's obligation to cooperate with the Committee to prevent them from leaving in order to attend meetings of the Committee.

25. T h e Committee expresses its concern about the situation ofwomen in Nigeria, particularly as regards their low level of participation in public life and the continued application of marriage regimes which permit polygamy and d o not fully respect the equal rights of women. It

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expresses particular concern about the widespread practices of forced marriage and of genital mutilation of girls.

E. Suggestions and recommendations 26. T h e Committee recommends that immediate steps be taken to restore democracy and full constitutional rights in Nigeria without delay. 27. As already recommended by the Committee, all decrees revoking or limiting guarantees of fundamental rights and freedom should be abrogated. All courts and tribunals must comply with all standards of fair trial and guarantees of justice prescribed by article 14 of the Covenant.

28. The Committee recommends that a review of the legal framework for the protection of human rights in Nigeria be undertaken in order to ensure that the principles of the Covenant are incorporated into the legal system and that effective remedies are provided in case of violations of rights. 29. The Committee also recommends that Decree No 107 of 1993 and any other measures which abrogate or suspend the application of the basic rights enshrined in the 1979 Constitution, be abrogated, so that the legal protection of these rights is restored in Nigeria. The Committee recommends that the Stare party ensure that there is no such abrogation or derogation in future other than in strict compliance with article 4, in time of public emergency which threatens the life of the nation and which is officially and communicated to the Secretary General of the United Nations. 30. The Committee requests the State party to take effective measures to implement the full and equal enjoyment by women of rights and freedoms protected by the Covenant. These measures should ensure the equal participation by women at all levels of the political, social and economic life of the country. The Committee recommends that steps should be taken, in particular through education, to overcome certain traditions and customs, such as female genital mutilation and forced marriages which are incompatible with the equaliry rights of women. 31. The Committee recommends that the State parry consider the abolition of the death penalty. Until its abolition the State parry must ensure that the application of the death penalty be strictly limited to the most

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Max Planck Yearbook of Lniced Kations Law serious crimes as required by article 6 ( 2 ) ,of the Covenant, and that the number of crinies for which the death penalty 1s ~mposedbe reduced to the minimum. Urgent steps should be taken to ensure that persons facing trials are afforded all the guarantees of a fair t r ~ a las expl~citly provided for in article 14 ( l ) ,(2) and (3) of the Covenant and to have their conviction and sentence reviewed by a higher tribunal in accordance with article 14 ( 5 ) of the Covenant.

32. The Committee recommends that the Nigerian authorities take effective measures to prevent arbitrary, extra-judicial and summary executions as well as torture, ill-treatment, and arbitrary arrest and detention by members of the security forces, and to investigate any such cases in order to bring before the courts those suspected of having committed or participated in such crimes, to punish them if found guilty and to provide compensation to victims or to their families.

33. The Committee recommends that urgent steps be taken to release all persons who have been detained arbitrarily or without charges and to reduce the period of pre-trial detention. The practice of incomm~micado detention should cease. Compensation should be provided in the cases indicated by article 9 ( 5 ) of the Covenant.

34. The Committee recommends that the State parry take all necessar). measures to ensure that the conditions of detention of persons deprived of their liberty fully meet article 10 of the Covenant and the United Nations Standard Minimum Rules for the Treatment of Prisoners. The overcrowding of prisons should be reduced by overcoming delays in the trial process, by considering alternative forms of punishment, or by expanding the number of prison places.

35. T h e Committee recommends that the legislation and the prdctlce relating to the exercise of the freedom of expression be raised and amended in order that they comply with the provisions of art~cle19 of the Covenant.

36. The Committee also recommends that measures be taken to ensure that the right to form and join trade unions be respected as required by article 22 of the Covenant and that the plan calling for trade union elections in October 1996 be implemented.

37. The Committee recommends that attention be given by the federal 2nd state authorities to the situation of persons belonging to minorities, so that their rights as enshrined in article 27 of the Covenant be fully

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protected. In this regard, due consideration should be given to the Committee's Geimeral Comment No 23 (50).

38. T h e Committee wishes to emphasize that the consideration of reports submitted under article 40 of the Covenant takes place in public meetings and in the presence of representatives of the State party concerned. Representatives of non-governmental organizations, whether internationally or locally based, are entitled to attend the meetings at which reports are being considered and to provide information to members of the Committee on an informal basis. The Government of Nigeria should ensure that individuals (including members of non-governmental organizations) are not prevented from leaving Nigeria to attend the Committee's sessions, should conduct immediate investigations into the allegations mentioned in paragraph 24 above, and should inform the Committee of the result of these investigations.

39. T h e Committee reconlmends that the Government of Nigeria should ensure that the National Human Rights Con~mission(or other agency) take steps to inform and educate the community about the rights and freedoms protected by the Covenant and the Constitution and about the remedies available in case of violation of rights. It should seek the assistance of the Technical and Advisory Services of the United Nations Human Rights Centre in this process.


j13

UNITED NATIONS

General Assembly

CCPR International Covenant on Civil and Political Rights Distr. GENERAL CCPRlCl79lAdd.72 18 November 1996 ENGLISH ORIGINAL: SPANISH

Human Rights Committee Fifr)-eight session CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT Concluding Observations of the Human R~ghtsCommittee

PEKU The Committee continued its consideration of Peru's third periodic report (CCPR/C/83/Add. l and HRIJCOREJI /Add.43/Rev. 1) a t its 1547th and 1548th meetings, on 3 1 October 1996 (CCPR/C/SR. 1547 and 1548), and addressed questions left pending after the initial conslderation of the report at its fifty-seventh session, at which urgent issues had been examined. In the light of its further consideration of the report. ~t adopted the following observations and recommendations at its 1555th meeting (fifty-eighth session), held on 6 November 1996:

Introduction The Committee welcomes the State party's third periodic report and is grdtified by the continuation of the dialogue initiated with the delegation. However, the Committee regrets that the report does not contain sufficient reliable information on current legal provisions in

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Peru relarmg to 2 number of the righta c o ~ e r e din the CO\enant or o n the actual o b s e r ~ a n c eof h u m a n rrghts.

B. Factors and difficulties affecting the implementation of the Covenant

3. T h e Committee is aware that Peru has been affecred by terrorist x t i v ities, internal disturbances and violence. In rhe Committee's view, although the State has both the sigh: and the duty to adopt vigorous measures to prorect its population Against terrorism, such n~easures n ~ u s tnot violate rhe rights protected by the Covenant.

C. Positive aspects

4.

T h e Committee notes with sarisfacrion that the Constitutional Court and the Ombudsn~an'sOffice h a x commenced activities and chat units specializing in constitutional marters and the rights of \vomen have been set u p within the Ombudsman's Office. It also rakes a positive v i a v of the establishment of the National Register of Detainees and Persons Sentenced to Custodial Senrences and the organization of training courses for la\\?ers and administrative personnel mith the aim of improving the administration of justice. the establishment of the Sranding Commission o n the Fbghts of '&'omen and of other organs designed to foster equaliq- a m o n g men 2nd Ivomen in Peru. I t further nores thc announcement of the establishn~entof the hlinistry of \7iromen and H u m a n Development and expresses the hope that the Miniscry will make a valuable contribution to ensuring that women in Peru fully enjoy the h u m a n rights enshrined in the Covenant. In the same connection, it appreciates Peru's ratification of t h e Inter-Americm Convention o n the Prevention, Punishment and Eradication of Violence against Women.

5 . T h e Committee also m&omes

6. T h e Committee \velcomes ~ v i t hsatisfdction the State party's report o n the establishment of ofices ro provide advice and care in cases of violence and abuse against children and adolescents and rhe programmes introduced to assist children as part of the measures to solve the problem of displaced persons. In this connection, the Committee commends the establishment of rhe Karional Technical Commission on Displaced Populations and rlhe other measures being raken to solve the

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Max Planck Yearbook of United Nations Law problems of displaced persons, and welcomes the fact that, according to the Government, 56 per cent of the peasant population have returned to their places of origin.

D. Principal subjects of concern

7. The Committee regrets that the constitutional status extended to the Covenant by Peru's 1979 Constitution has been substantially diminished, thereby reducing the protection previously enjoyed by individuals in Peru 2s regards the rights enshrined in the Covenant.

S. The Committee once again deplores the fact that Peru has ignored both the concerns expressed by the Committee in the observations adopted ~ v h e nit concluded its consideration of the first part of Peru's third periodic report and the suggestions and recommendations made in those same observations, arguing that Peru is entitled to give precedence to considerations of security or domestic policy over its obligations under the Covenant. The Committee considers that, in conformity with international law, article 1 of the Covenant does not authorize the State to adopt a new Constitution that may be incompatible with its other obligations under the Covenant. The Constitution is part of the legal order of the State and as such may not be invoked as grounds for exemption from compliance with an international obligation freely entered into by the State.

9. The Committee in particular deplores the fact that the recommendations relating to the amnesty laws (CCPRICl79lAdd.67, para. 20) have not been followed and that no effective remedy is available to allow the victims of human rights violations by State agents to claim compensation. It also regrets the lack of information on the fate of the recommendations made in paragraphs 22, 23 and 26 and the failure to respond to the recommendation made in paragraph 24.

10. The Committee takes note of the measures adopted by Peru to pardon persons convicted of terrorism. Notwithstanding its satisfaction at the release of 69 persons, the Committee considers that the pardon does not provide full redress to the victims of trials conducted without regard for due process of law and repeats the recommendation made in paragraph 21 of its observations, which includes the need to establish an effective mechanism, at the initiative of the State, to revise all the convictions handed down by the military tribunals in treason and terrorism cases.

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11. The Committee regrets the fact thst Peru has not only failed to take measures in response to the recommendation made in paragraph 25 of the observations, but has on the contrary extended, only a few days before the second part of the report was considered, the system of "faceless judge; the Committee: 1. Entrusts its Chairman, in close communication with its officers, t o consult, in close coordination with the United Nations H i g h

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Max Planck Yearbook of United Nations Law Commissioner for Human Rights and other United Nations bodies, notably the Special Kapporteur on the situation of human rights in the former Yugoslavia, as well as competent regional bodies, with a view to making recommendations for follow-up action by the Committee on the Elimination of Racial Discrimination.

2. Decides to institute a process of consultation with the State Party concerned on how the good offices of the Committee can be drawn upon in the future, in consultation with all interested parties, in order to promote understanding between races and ethnic groups and to build a society free from all forms of racial or ethnic segregation or discrimination.

3. Invites the State Party concerned to cooperate with the Committee in organizing, as soon as practically possible a meeting between a delegation of the Committee on the Elimination of Racial Discrimination and the newly established Commission on Human Rights for Bosnia and Herzegovina so as to place the Committee's experience at the disposal of the Commission.

1 153rd meeting 13 March 1996

Decision 2 (48) on the Federal R e ~ u b l i cof Yugoslavia (Serbia and Montenegro) The Committee o n the Elimination of Racial Discrimination recalls its concluding observations relating t o the Federal Republic of Yugoslavia (Serbia and Montenegro) adopted o n 20 August 1993- and in particular its offer to render good offices in the form of a mission of some of its members with the purpose of helping to promote a dialogue for the peaceful solution of issues concerning respect for human rights in Kosovo, in particular the elimination of all forms of racial discrimination, and whenever possible of helping parties concerned to arrive at such a solution. ' The Committee also recalls that the State Party concerned responded positively to this offer, that the good offices mission was consequently carried out from 30 November to 3 December 1993 and that the mission met with authorities of the State Party and the Republic of Serbia, the Serbian authorities in Kosovo and representatives of the ethnic Albanians in Kosovo. The Committee further recalls that at its forty-fourth session it considered, in private meetings, the interim report of the good offices mission and that

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as a result its Chairman addressed a letter to the Minister for Foreign Affairs of the Federal Republic of Yugoslavia (Serbia and Montenegro) expressing the Committee's ao~reciation to the Government for the coo~eration I I received and proposing, inter alia, that a number of specific steps be taken with a view to normalizing the situation in Kosovo. T h e Committee now considers that the time has come to resume the good offices work which the Committee started to undertake in 1993. For that purpose the Committee requests its Chairman to take up contact with the authorities of the State Parry concerned in order to explore the possibilities of reopening the dialogue for the peaceful solution of issues concerning respect for human rights in Kosovo, with particular emphasis on the elimination of all forms of racial discrimination. T h e Committee will further consider this matter at its forty-ninth session.


Declaration on the situation of Rwanda Recalling its Concluding Observations on Rwanda adopted at its 1039th meeting, on 17 March 1994, and its decision 7 (46) of 16 March 1995, thc Committee on the Elimination of Racial Discrimination considers that the presence in Rwanda of thc Unitcd Nations Assistancc Mission for Rwanda (UNAMIR) is of capital importance to ensure the restoration of peace and security, and the normalization of public institutions, as well as to promotc international cooperation in the quest for national conciliation and the restoration of the social fabric. T h e existence of a considerable number of detained persons regardless of their ethnic origin, is also a matter of constant concern for the Commitree. The persistence of certain organs of the mass media in Rwanda in inciting ethnic intolerance and distrust is a continuing obstacle to the efforts for peace. To bring this situation to an end, the Committee considers that the United Nations presence is essential. T h e current efforts by the international community in Rwanda will not be sufficient to establish lasting peace, reduce the deep-seated causes of instability and secure a return to democracy and the rule of law, unless structural measures are taken to secure agreement on the form of government acceptable to all people of Rwanda, to guarantee personal security for everybody and to build a democratic society. T h e Committee recommends the convening of a constitutional conference for that purpose, involving all p r t i e s to the conflict. The Conirnittee is ready to assist in the preparation of

628


such a conference in cooperation with other human rights bodies, notably the High Commissioner for Human hghts. The Committee regrets the withdrawal of UNAMIR from Rwanda and believes that the Secretary-General of the United Nations and other United Nations bodies should keep under constant review the situation in Rwanda.


B. Decisions adopted by the Committee at its forty-ninth session 31. At its forty-ninth session, the Committee discussed under this agenda item the situation in Burundi, Rwanda, Bosnia and Herzegovina, the Federal Republic of Yugoslavia (Serbia and Montenegro), the former Yugoslav Republic of Macedonia, Cyprus, Israel, Liberia, and Papua New Guinea. The Committee adopted decisions with respect to Bosnia and Herzegovina, Cyprus and Liberia, and a resolution on Burundi. The action taken with respect to the other States Parties is described below.

32. With respect to Rwanda, the Committee reiterated its concerns expressed in the Declaration on the situation in Rwanda adopted at its forty-eighth session, and it also reiterated its regrets at the withdrawal of the UNAMIR from the country. The Committee renewed its offer to assist in the preparation of a constitutional conference, in cooperation with other human rights bodies. During the discussion, the Committee commended the action undertaken by the Human Rights Field Operation in Rwanda to assist the rehabilitation of a judicial system in the country, and appealed for funds from the United Nations and its Member States to finance the United Nations activities in Rwanda. It decided to keep the situation in Rwanda on its agenda under its early-warning measures and urgent procedures.

33. With respect to the Federal Republic of Yugoslavia (Serbia and Montenegro), the Committee decided to take no other formal action in addition to the decision taken at the forty-eighth session. Two members of the Committee reported on an informal meeting with representatives of the Federal Republic of Yugoslavia (Serbia and Montenegro) concerning the situation of the Albanian population in Kosovo. The Committee decided that it would like to continue the dialogue with the State Party and noted the success of its previous Good Ofices Mission and its willingness to continue to work with the authorities. It was decided that this country would remain on the Committee's list of

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countries to be considered undcr the early-\varning measures and urgent procedures at its next session.

34. After considering the situation in the former Yugoslav Republic of Macedonia, the Committee decided that it would nelcome additional information from the State Party and keep this country on the Committee's list of countries to be considered at its next session.

35. With respect to Israel, the Committee recalled its statement concerning Israel adopted by the Committee at its forty-sixth session- and noted that a letter had been received from the Government of Israel to the effect that it will make every effort to complete and submit its o w r d ~ i e periodic reports without delay. The Committee requested that this report be submitted in time for consideration at its fiftieth session and decided to remove Israel from the list of countries to be considered under its early-warning measures and urgent procedures.

36. With respect to the situation in Papua New Guinea, the Con~mittee decided that since there was no further information that the conflict on the island of Bougainville was still in existence, it \vould remove it from the list of countries to be considered under its earl\.--warningmeasures and urgent procedures.

Decision 1 (49) on Bosnia and Herze~ovina The Committee on the Elimination of Racial Discrimination recalls its earlier decisions relating to the situation in Bosnia and Herzegovina, a State Party to the International Convention on the Elimination of All Forms of Racial Discrimination, in particular its Decisions 2 (47) and 1 (48). The Committee emphasizes the importance of all measures aiming at the establishment of a peaceful, democratic, multi-ethnic and pluralis[ society in Bosnia and Herzegovina, the reconstruction of economy and the strengthening of democratic institutions, notably for the promotion and protection of human rights, which are essential conditions for [he effective functioning of the civil society. While fully conscious of the fact that free, fair and democratic elections are an important means to lay the foundation for representative government and to help ensuring the progressive achievement of democratic goals throughout Bosnia and Herzegovina, [he

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hlax Planck Yearbook of L n ~ t e dT a r ~ o n sLau Committee expresses its serious preoccupations and fear that as a result of the actual deficiencies i n t h e process of voter registration, practices of intimidation, restrictions o n t h e freedonx of association and expression, and abuses o f the media, thc holding of elections important and advisable as they are - may under the present circumstances reinforce patterns of ethnic segregation a n d ethnic division contrary to the thrust and the basic principles of the International C o n v e n t i o n o n t h e Elimination o f X11 Forms of Racial Discrimination. T h e Committee urges all parties to the General Framework ,Agreement for Peace in Bosnia and Herzegovina t o comply with their obligation to cooperate fully with the International Criminal Tribunal for the Former Yugoslavia in fulfilling its major task of bringing to justice all persons g u i l ~of the serious crimes falling within its jurisdiction and in particular ro execute forthwith all warrants of arrest and expedite the transfer of the persons indicted by the Tribunal. T h e Cornmittet: urgently appeals to all authorities to guarantee, in conformin. with Article 5 , paragraph (h), of the Convention, to all persons under their jurisdiction, without distinction as to national or ethnic origin, the rights to security of person and protection against violence or bodily harm, and t o take appropriate measures against individuals and institutions violating these rights. T h e Committee reiterates its readiness to contribute to the implementation of the peace accords from [he perspective of the principles and objectives of the International Convention o n the Elimination of All Forms of Racial Discrimination along the lines, indicated by the Committee in its Decision 1 (48).

In addition, the Committee is fully prepared to offer guidance and good offices on the implications of Article 4 of the Convention with a view to the prevention and prompt suppression of written or verbal incitement, through media or otherwise, of ethnic or racial hostility or hatred. T h e Committee is also ready to contribute to any programme of technical cooperation that the Centre for H u m a n Rights may set u p in cooperation with other competent agencies for the purpose of implementing Article 7 of the Convention which requires immediate and effective measures in the fields of teaching, education, culture and information \vith a view to combating prejudices and promoting understanding, tolerance and friendship among nations and racial or ethnical groups.

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The Committee is apprehensne char the peaceful conditions brought about by I F O R ma) not contmue to obtain after the envisaged \vithdrau.al of this foice by the end of 1996, and invites the attenion of the Security Council through the Secretary-General to deal with any such emergency that may arise by the establishment of a successor force to IFOR.

1 182nd meeting 22 August 1996

Decision 2 (49) on Cyprus The Con~mitteeon the Elimination of Racial Discrimination, Reiterating its statement made at its fortysixth session where it emphasized the international community's continued concern about the Cyprus problem and the violation of the human rights of individuals and persons by virtue of their belonging to ethnic groups and communities in Cyprus. Further reiterating and re-emphasizing its concerns expressed in its Decision l (n7'II) of 21 lMarch 1983 as well as in its earlier Decisions. Reaffirming the importance of achieving progress in resolving the situation in Cyprus so that freedom of movement and other human rights and freed o m ~will be enjoyed by all Cypriots irrespective of their ethnic origin as envisaged in article 5 of the International Convention on the Elimination of A1 Forms of Racial Discrimination. Deplores the violent clashes that took place in Cyprus during demonstrations on 1 1 and 14 August 1996. Deeply regrets the killing of r\vo unarmed Greek Cypriot young men and the injury of many other persons, including United Nations Peace Keepers, as a result of the Turkish Forces allo~vingTurkish armed Cypriot civilians and others to pass through the Cnited Nations buffer zone where they clashed with the demonstrators. Draws the attention to its General Recommendation adopted at its 49th session on refugees and displaced persons. 1 183rd meeting 22 August 1996

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Decision 3 (49) on Liberia The Committee on the Elimination of Racial Discrimination, While remaining seized of thc case of Liberia under its Early Warning and Urgent Procedures; Welcoming the latest efforts made by the ECOWAS leaders in Abuja, Nigeria to reconstitute the leadership of the Liberian Council of State under the Chairmanship of Senator Ruth Perry and the setting up of a timetable for disarmament, demobilization of militia and ultimately general elections; Calls upon the United Nations and the International Community to support the efforts of the ECOWAS leaders, the latest Abuja Agreement on Liberia and to extend logistic and other assistance to the achievement of lasting peace in Liberia; Urges the Liberian leaders of the Reconstituted Council of State to ensure reconciliation in order to reduce and ultimately remove tension between the different Liberian ethnic groups and now to ensure that human rights violations and extra-judicial executions are ceased; Offers its assistance, particularly on reconciliation between the ethnic groups; Will remain seized with the case of Liberia in order to assess the implementation of the latest Abuja Agreement on Liberia as envisaged by the ECOWAS leaders on the 19th and 20th August 1996 and the reduction of tension between the Liberian ethnic groups. 1183rd meeting 22 August 1996

Resolution 1 (49) on Burundi The Committee on the Elimination of Racial Discrimination, Recalling that it has more than once called attention to the dangerous nature of the ethnic tension prevailing in Burundi, Alarmed by recent developments in that country, in particular by the ongoing ethnically motivated massacres, Acting under its mandate of urgent procedures aimed at responding

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t o problems requiring immedidte attention to prevent serious violations o f t h e International Convention o n the Elimination o f all Forms of Racial Discrimination, Welcoming t h e initiatives undertaken so far at t h e global as well as at t h e regional level, in particular by the United Kations High C o m m issioner for H u m a n R ~ g h t sand the United Nations High Commissioner for Refugees, Recalling its offers of expertise and assistance for training in human rights for law enforcement officials, law reform and reconstruction of the State, Urges the Burundian parties to respect t h e Burundian Constitution, to re-establish democratically elected institutions a n d the democratic political process, to cooperate closely with democratic institutions, further to design institutions for national dialogue and reconciliation and to respect human rights; Calls upon all the Burundian parties to cease immediately any massacres and other acts of violence and to cooperate fully with all those who are seeking to bring to an end the vicious cycle of violence; Urges that measures be adopted to enable the Burundian judicial authorities to conduct an efficient investigation of the massacres and other acts of violence, as crimes against humanity; Calls upon the Security Council, through the Secretary-General, to reaffirm the determination of the international community to prosecute and punish perpetrators of crimes against humanity, be they officials or private persons, so that there is n o impunity for them; Calls upon all the Burundian parties to cooperare closely with the United Nations High Commissioner for Refugees and the United Nations High Commissioner for H u m a n Rights, as well as with the neighbouring countries, and to provide the refugees and displaced persons with the possibiliry of returning to their homes of their own free will and in safety;

Urges the international community to provide the necessary funds and logistical support for the repatriation of refugees a n d displaced persons; Welcomes the initiative of former President Nyerere of the United Republic of Tanzania, the agreements of the Arusha Regional Summit o n Burundi of 2 5 June 1996 (S/1396/557), now fully endorsed, by the Organization of

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African Unity, as well as the statements contained in the joint communique of the second Arusha Regional Summit of 31 July 1996; S u ~ ~ o rthese t s regional initiatives and efforts aimed at achieving a comprehensive political dialogue between the parties in Burundi, urges the Burundian parties effectively to implement them and reminds all the Burundian parties of their responsibility for restoring peace, stability and justice in Burundi; Endorses the proposal to dispatch a multinational peace force to Burundi to provide security assistance to prevent another catastrophe that could destabilize the Great Lakes Region of Central Africa and to facilitate a comprehensive political dialogue and reconciliation among the Burundian parties; Recommends that such a force should receive the financial and logistic support of the United Nations.

1 160th meeting 7 August 1996

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UNITED NATIONS General Assembly

Report of the Committee on the Elimination of Racial Discrimination Official Records

Fifty-First Session Supplement No. 18(A151/18) ORIGINAL: EKGLISH

Committee on the Elimination of Racial Discrimination

COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION 48TH SESSION 26 February - 15 March 1996 General Recommendation XX(48) on Article adopted at 1 147th meeting 8 March I996

5

1. Article 5 of the Convention contains the obligation of States parties to guarantee the enjoyment of civil, political, economic, social and cultural rights and freedoms without racial discrimination. Note should be taken that the rights and freedoms mentioned in article 5 d o not constitute an exhaustive list. At the head of these rights and freedoms are those deriving from the Charter of the United Nations and the Universal Declaration of Human Rights, as recalled in the preamble to the Convention. Most of these rights have been elaborated in the Covenants. All States parties are therefore obliged to acknowledge and protect the enjoyment of human rights, but the manner in which these obligatiorls are translated into the legal orders of States parties may differ. Article 5 of the Convention, apart from requiring a guarantee that the exercise of human rights shall be free from racial discriminat-ion, does not of itself create civil, political, economic, social or cultural rights, but assumes the existence and recognition of these rights. The Convention obliges States to prohibit and eliminate racial discrimination in the enjoyment of such human rights.

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Whenever a Statc imposes a restriction upon one of the rights listed in article 5 of thc Convention which applies ostensibly to all within its jurisdiction, it must ensure that the restriction, neither in purpose nor effect, is incompatible with article 1 of the Convention as an integral part of international human rights standards. To ascertain whether this is the case, the Committee is obliged to inquire further to make sure that any such restriction does not entail racial discrimination.

3. Many of the rights and freedoms mentioned in article 5 are to be enjoyed by all persons living in a given State, such as the right to equal treatment before trihunals; some others are the rights of citizens, such as the rights to p~rticipatein elections, to vote, and to stand for election.

4.

T h e States parties are recommended to report about the non-discdminatory implementation of each of the rights and freedorns referred to in article 5 of the Convention one by one.

j. T h e rights and freedorns referred to in article 5 of the Convention and any similar rights shall be protected by a State party. Such protection may be achieved in different ways, be it by the use of p b l i c institutions or through the activities of private institutions. In any case it is the obligation of the State party concerned to ensure the effective implementation of the Convention and to report thereon under article 9 of the Conventio~l.To the extent that private institutions influence the exercise of rights or the availability of opportunities, the State party must ensure that the result has neither the purpose nor the effect of creating or perpetuating racial discrimination.

Document L'II UNITED NATIONS

General Assembly

Report of the Committee o n t h e Elimination of Racial Discrimination Official Records Fifr)--First Session Supplement No. 18(A/51/18) ORIGINAL: ENGLISH

Committee on the Elimination of Racial Discrimination C O M M I T T E E ON T H E ELIMINATION O F RACIAL DlSCRIMlNATlON 48TH SESSION 26 February - 15 hlarch 1996 General Recommendation XXI(48) adopted at 1 147th meeting on 8 hlarch 1996

1 . The Committee notes thar ethnic or religious groups or minorities frequenr1)- refer to the right of self-determination as a basis for an alleged right to secession. In this connection the Committee wishes to express the folloning views: The right to self-determination of peoples is a fundamental principle of international lahv. It is enshrined in article 1 of the Charter of the United Nations, in article 1 of the International Covenant on Economic, Social, and Cultural Rights and article 1 o f t h e International Covenant on Civil and Political Rights, as well as in other international human rights instruments. The International Covenant on Civil and Political RIghts provides for the rights of peoples to self-determination besides thc right of ethnic, religious, or linguistic minorities to enjoy their own culrure, to profess and practise their own religion or to use their own language.

3. The Committee emphasizes thar in accordance with the Declaration of

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Max Planck Yearbook of United Nations Law the United Nations General Assembly 2625 (XXV) of 24 October 1970 on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations it is the duty of States to promote the right t o self-determination of peoples. But the implementation of the principle of self-determination requires every State to promote, through joint and separate action, universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter of the Unitcd Nations. In this context the Committee draws the attention of governments to the General Assembly Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities.

4.

In respect of the self-derermination of peoples cwo aspects have to be distinguished. The right to self-determination of peoples has an internal aspect, i.e. the rights o f all peoples to pursue freely their economic, social and cultural development without outside interference. In that respect there exists a link with the right of every citizen to take part in the conduct of public aEairs at any level as referred to in article 5 (c) of the International Convention on the Elimination of All Forms of Racial Discrimination. In consequence, governments are to represent the whole population without distinction as to race, colour, descent, national, or ethnic origins. The external aspect of self-determination implies that all peoples have the right to determine freely their political status and their place in the international community based upon the principle of equal rights and exemplified hy the liberation of peoples from colonialism and by the prohihition to subject peoples to alien subjugation, domination, and exploitation.

5. In order to respect fully the rights of all peoples within a State, governments are again called upon t o adhere to a n d implement fully the international human rights instruments and in particular the International Convention on the Elimination of All Forms of Racial Discrimination. Concern for the protection of individual rights without discrimination on racial, ethnic, tribal, religious, or other grounds must guide the policies of governments. In accordance with article 2 of the International Convention on the Elimination of All Forms of Racial Discrimination and other relevant international documents, governments should be sensitive towards the rights of persons of ethnic groups, particularly their right to lead lives of dignity, to preserve their culture, to share equitably in the fruits of national growth, and to play their part in the government of the country of which its members are citizens. Also, governments should consider, within their respective

Document V11 constitutional frameworks, vesting persons of ethnic or linguistic groups comprised of their citizens, where appropriate, with the right to engage in such activities which are particularly relevant to the preservation of the identity of such persons or groups.

6. T h e Committee emphasizes that, in accordance with the Declaration of the General Assembly on Friendly Relations, none of the Committee's actions shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples and possessing a government representing the whole people belonging to the territory without distinction as to race, creed or colour. In view of the Committee international law has not recognized a general right of peoples to unilaterally declare secession from a State. In this respect, the Committee follows the views expressed in the Agenda for Peace (paras. 17 et seq.), namely that a fragmentation of States may be detrimental to the protection of human rights as well as to the preservation of peace and security. This does not, however, exclude the possibility of arrangements reached by free agreements of all parties concerned.


UNITED NATIONS

General Assembly

Economic and Social Council Elimination of Racial Discrimination Official Records Fifty-First Session Supplement No. ls(Al5 1118) ORIGINAL: ENGLISH

Committee on the Elimination of Racial Discrimination

COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION 49TH SESSION 5 August to 23 August 1996

General Recommendation concerning the rights of refugees and persons displaced on the basis of ethnic criteria: The Committee on the Elimination of Racial Discrimination, Conscious of the fact that foreign military, non-military andlor ethnic conflicts have resulted in massive flows of refugees and the displacement of persons on the basis of ethnic criteria in many parts of the world,

consider in^ that the Universal Declaration of Human Rights and the Convention on the Elimination of all Forms of Racial Discrimination proclaim that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set our therein, without distinction of any kind, in particular as to race, colour, descent or national or ethnic origin, recall in^ the 1951 Convention and the 1967 Protocol relating to the status of refugees as the main source of the international system for the protection of refugees in general,

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1. Draws the attention of States Parties to article 5 of the International Convention of the Elimination of All Forms of Racial Discrimination as well as the Committee's General Recommendation >3;(48)on article 5, and reiterates that the Convention obliges States Parties to prohibit and eliminate racial discrimination in the enjoyment of civil, political, economic, social and cultural rights and freedoms,

2. Emphasizes in this respect that: a. all such refugees and displaced persons have the right freel? to return to their homes of origin under conditions of safety b. States parties are obliged to ensure that the return of such rehigees and displaced persons is voluntary and to observe the principle of non-refoulement and non-expulsion of refugees. c. all such refugees and displaced persons have, after t h e ~ rreturn to their homes of origin, the right to have restored to them propern of which they were deprived in the course of the contl~ctm d to be compensated appropr~atelyfor any such propern. that cannot be restored to them. Any commitments or statements relatlng to such property made under duress are null and v o ~ d . d. all such refugees and displaced persons have, aker the11 return to their homes of origin, the right to participate fillly and equally in public affairs at all levels and to have equal access to public servlces and to receive rehabilitation assistance. CERDlCl491Misc. 3lRev.5 19 August 1996

Max Planck Yearbook of United Nations Law

Max Planck Yearbook of United Nations Law

Max Planck Yearbook of United Nations Law