The United Nations: law and practice

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THE UNITED NATIONS LAW AND PRACTICE

This page intentionally left blank

The United Nations Law and Practice

Edited by

Franz Cede and

Lilly Sucharipa-Behrmann

Kluwer Law International The Hague / London / Boston

Library of Congress Cataloging-in-Publication Data

ISBN 90-411-1563-3

Published by Kluwer Law International, P.O. Box 85889, 2508 CN The Hague, The Netherlands. Sold and distributed in North, Central and South America by Kluwer Law International, 101 Philip Drive, Assinipi Park, Norwell, MA 02601, U.S.A. In all other countries, sold and distributed by Kluwer Law International, Distribution Centre, P.O. Box 322, 3300 AH Dordrecht, The Netherlands.

First published in German: Die Vereinten Nationen: Recht und Praxis © 1999 Manz Verlag, Vienna Coverphoto: ANP

Printed on acid-free paper

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

Preface*

The United Nations was established to serve the peoples of its Member States, in whose name ("We the peoples of the United Nations ...") the Charter was issued. The common aim of all the Organization's activities is to improve human dignity and security, and to obtain for all human beings the essential conditions — political, economic and social - which would enable them to live free and fulfilling lives. That aim requires action by governments, but governments alone cannot achieve it. The United Nations can only succeed if it reaches out and enlists the full support of civil society. Therefore, my personal objective, as we approach the new millennium, is to engage the diverse elements of civil society, in all Member States, in the work of the Organization. We live in an age of globalization, which may prove unsustainable unless we ensure that its benefits, as well as its costs, are more equitably shared, and that the human rights of the poorest as well as the richest are recognized and respected. The UN can help achieve this, but only if its manifold activities are understood and supported by a broad swathe of stakeholders and opinion leaders, present and future, around the world. And those we must reach in the first instance - so that they can pass on the message to others - are students of international law and international relations, and those in the media who write and speak about such issues - as well as civil servants, political leaders, and public figures generally. It is those people, in the German-speaking world, who are the target audience of this book. I commend the editors and authors for the breadth and depth of their coverage of the subject, to which they bring an impressive range of both academic knowledge and practical experience. I have every hope that their book will succeed in making the work of the United Nations better and more widely known. New York, March 1999

Kofi A. Annan (Secretary-General of the United Nations)

*Preface to the German edition by the Secretary-General of the United Nations


Introduction The idea to present the law and practice of the UN in a compact and concise book in German and now in English has matured as a result of recent experience. As surprising as it may seem at first sight, the voluminous literature existing in German on nearly all aspects of the UN and of the "family" of UN organizations contains no modern publication, which would offer basic information about the institutions of the UN and its activities in the current practice of international relations. Among the many publications in German concerning the UN system the commentary on the UN Charter edited by Bruno Simma (published in an English version in 1994) stands out like a monolith. Obviously this excellent anthology comprising over 1200 pages was not conceived as an introduction but serves as a reference book for more in-depth studies of the UN. Looking for a concise publication in German on the UN and its specialized agencies one would certainly turn to Giinther Unser, Aufgaben und Strukturen der Vereinten Nationen, (6th ed., 1997), to be recommended as the only short book about the UN institutions. The picture is quite different in the English UN literature. Next to the Commentary by Simma there are a number of books, which deal in depth with the UN subject. Just to mention some: Oscar Schachter/Christopher Joyner (eds.), United Nations Legal Order, 2 vols, 1995; Adam Roberts/Benedict Kingsbury (eds.), United Nations, Divided World. The UN's Roles in International Relations, 2nd updated edition 1995. What makes this book different from the others on the UN? Limiting itself strictly to the main organization, particular consideration is given to the combination of both the legal and political perspective. Our book is the joint product of authors carefully selected, either as representatives of the academic community or as diplomats. All of them dispose of a comprehensive theoretical and practical experience in dealing with the subject matter. The combined talents of the authors should ensure a realistic approach to the issues. In answering the question to what extent the present book is different from the usual literature on the UN, the editors would certainly point to the special focus on the practice of the UN. Each author has a wealth of practical experience with the real work of the UN. The views expressed in the various contributions are the personal opinions of the respective authors and each author is solely responsible for his or her own contribution. The second decisive aspect for the realization of the present book project was the challenge to fully grasp and demonstrate the impact on the UN of the fundamental changes that occurred in world politics over the last decade. In this regard a new assessment of the system of collective security as well as a description of the new fields of activities of the UN constituted the major task of the authors.

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The United Nations

The third aspect underlying the concept of our UN book, conceived as an introduction, is the endeavor to put the UN in the right place within the international system as a whole. Only an evaluation, which is in tune with the current state of world politics will allow to come to a realistic assessment both of the potentials and limitations of the UN at the beginning of the third millennium. As a final note we regret that the newest developments such as the Millennium Report of the UN-SG, the Millennium GA and its Declaration as well as the Report of the Panel on Peace Operations (Brahimi-Report) could not be dealt with in detail by the authors. They came out when the manuscripts were already delivered to the publisher. We tried to refer to these documents as far as possible under the restrictions given for last-minute changes and amendments. For this reason we also decided to annex two of the documents, the "Millenniums Declaration of the GA" and the Conclusions and Recommendations of the Brahimi-Report. At this point both editors wish to thank all those who have contributed to the making of this book by offering many valuable suggestions and by encouraging us all along. Our special thanks go to Ms Isabella Wimmer for her precious technical assistance, which has greatly facilitated the completion of this work. Vienna, September 2000

Franz Cede, Lilly Sucharipa-Behrmann

Contents

Preface

v

Introduction

vii

List of Authors

xii

List of Abbreviations

xiv

Shortlist of Publications and Internet Links

xxi

Chapter 1: Historical and Legal Framework For Activities of the United Nations Historical Introduction Franz Cede

1 3

The Purposes and Principles of the United Nations Franz Cede

11

The Organs of the United Nations Ferdinand Trauttmansdorff

25

Chapter 2: Main Activities of the United Nations

57

The United Nations System for the Peaceful Settlement of International Disputes Hanspeter Neuhold

59

Collective Security Helmut Freudenschufi

73

Peace-Keeping Operations of the United Nations Lilly Sucharipa-Behrmann

89

Peace-Building Activities of the United Nations Bert Theuermann

105

Disarmament Issues Winfried Lang/Andreas Kumin

127

IX

x

The United Nations

Codification and Progressive Development of International Law Gerhard Hafrier The Development of the International Human Rights System by the United Nations Christian Strohal

143

157

Gender Issues in the United Nations Aloisia Worgetter

177

Environmental Protection and Sustainable Development Gerhard Loibl

195

An Agenda for Development Hans-Peter Glanzer

215

Refugees and Humanitarian Assistance Franz Josef Homann-Herimberg

231

Population Issues at the United Nations Irene Freudenschuji-Reichl

245

Measures to Counter Drugs and Crime Ferdinand Mayrhofer-Grunbiihel/Christian

257 Ebner

Non-Governmental Organizations (NGOs) and the United Nations Susanne Keppler-Schlesinger

275

Chapter 3: The Future of the United Nations

287

Financing and Financial Crises Thomas Schlesinger

289

The Reform of the Security Council Karin Proidl

303

The United Nations Today: It's Current Status, Reforms and Perspectives for the Future Ernst Sucharipa

313

Annexes Annex I: United Nations Millennium Declaration, A/RES/55/2 of 18 September 2000

333

Annex II: Report of the Panel on United Nations Peace Operations (Brahimi-Report). Conclusions and Recommendations A/55/305S/2000/809 of 21 August 2000 Annex III: Declaration on ensuring an effective role for the Security Council in the maintenance of international peace and security, particularly in Africa (S/RES1318 (2000) of 7 September 2000) Index

344

352 357

List of Authors

Franz Cede Austrian Ambassador to the Russian Federation; former Legal Adviser, Austrian Ministry for Foreign Affairs. Christian Ebner Member of the Austrian Permanent Mission to the United Nations in Vienna. Helmut Freudenschu.fi Austrian Ambassador to Lebanon; 1991-92 Alternate Representative of Austria to the United Nations in the Security Council, New York. Irene Freudenschufi-Reichl Permanent Representative of Austria to the United Nations in Vienna. Hans-Peter Glanzer Counselor, OSCE-Department, Austrian Ministry for Foreign Affairs; former member of the Austrian Permanent Mission to the United Nations in New York with special competence for ECOSOC affairs. Gerhard Hafner Professor of International Law at the University of Vienna; member of the International Law Commission of the United Nations; member of the faculty of the Diplomatic Academy, Vienna. Franz Josef Homann-Herimberg Special Adviser to the United Nations Emergency Relief Coordinator on Humanitarian Affairs, OCHA, Geneva; former Director at the UNHCR. Susanne Keppler-Schlesinger Counselor, member of the Austrian Permanent Mission to the United Nations in New York with special competence for questions of the 3rd Committee. Andreas Kumin Counselor at the Austrian Permanent Mission to the United Nations in Geneva; member of the Austrian Delegation to the Conference on Disarmament. Winfried Langf Former Permanent Representative of Austria to the United Nations in Geneva; Former Ambassador to Belgium, NATO and the WEU; Professor of International Law at the University of Vienna.

Gerhard Loibl Professor of International Law at the University of Vienna; Visiting Professor at the University of London; member of the faculty of the Diplomatic Academy, Vienna; Chairman of the ILA Water Resources Committee. Ferdinand Mayrhofer-Grunbuhel Director, OSCE-Secretariat; former Austrian Permanent Representative to the United Nations in Vienna. Hanspeter Neuhold Professor of International Law and International Relations, University of Vienna, member of the faculty of the Diplomatic Academy, Vienna. Karin Proidl Counselor, Austrian Ministry for Foreign Affairs, Department for Minority Affairs; former member of the Austrian Permanent Mission to the United Nations in New York with special competence for Security Council Affairs and the 6th Committee. Thomas Schlesinger Counselor at the Austrian Permanent Mission to the United Nations in New York; Austrian Representative to the 5th Committee, dealing with administrative and budgetary questions. Christian Strohal Austrian Ambassador to Luxembourg; Former Director of the Department for Human Rights, Austrian Ministry for Foreign Affairs; Austrian Representative to the United Nations Human Rights Commission. Ernst Sucharipa Director of the Diplomatic Academy, Vienna; former Austrian Permanent Representative to the United Nations in New York (1996-1999), Lecturer at the University of Vienna. Lilly Sucharipa-Behrmann Lecturer of International Law, University of Vienna; Senior Fellow, New York University School of Law; Consultant to the Austrian Ministry of Agriculture, Forestry, Environment and Water Management. Engelbert Theuermann Counselor at the Austrian Permanent Mission to the United Nations in New York with special competence for Human Rights Affairs, Preventive Diplomacy and Peace Building. Ferdinand Trauttmansdorff Austrian Ambassador to Egypt; former Director at the Office of the Legal Adviser, Austrian Ministry for Foreign Affairs. Aloisia Worgetter Counselor, Austrian Embassy London; Chairperson of the UN Ad Hoc Working Group on the Elaboration of an Optional Protocol to CEDAW.

List of Abbreviations

ACABQ ACC ace. AFDI AJIL AJPIL Art. ASEAN ASG

Advisory Committee on Administrative and Budgetary Questions Administrative Committee on Coordination according Annuaire Fran^ais de Droit International American Journal of International Law Austrian Journal for Public International Law Article Association of South East Asian Nations Assistant Secretary-General

c. CAP CC CCA CCPCJ CEDAW

circa Consolidated Appeals Process Committee on Conferences Common Country Assessment Commission on Crime Prevention and Criminal Justice Convention on the Elimination of All Forms of Discrimination Against Women Central Emergency Revolving Fund confer Common Foreign and Security Policy chapter Commission on Human Rights Inter-American Drug Abuse Control Commission Center for International Crime Prevention Commonwealth of Independent States Convention on International Trade in Endangered Species of Wild Fauna and Flora Commission for Narcotic Drugs Conference of NGOs in Consultative Status with the UN ECOSOC United Nations Committee for the Peaceful Use of the Outer Space Committee for Program and Coordination Commission on Population and Development Crime Prevention and Criminal Justice Division Conference on Security and Cooperation in Europe Commission for Sustainable Development Commission for Social development Commission on Science and Technology for Development Commission on the Status of Women Comprehensive Test Ban Treaty (Organization)

CERF cf. CFSP chap. CHR CICAD CICP CIS CITES CND CONGO COPUOS CPC CPD CPCJD CSCE CSD CSocD CSTD CSW CTBT(O)

Abbreviations

DAC DESA DHA Doc. DPA DPI DPKO

Development Assistance Committee Department for Economic and Social Affairs Department of Humanitarian Affairs Document Department of Political Affairs Department of Public Information Department of Peace-Keeping Operations

e.g. EBRD ECA ECE ECHA ECLAC ECOMOG ECOSOC ECOWAS ed(s.) ed. EJIL EMCDDA EMEP EPIL ERC ESCAP ESCWA et al. EU

for example European Bank for Reconstruction and Development Economic Commission for Africa Economic Commission for Europe Executive Committee on Humanitarian Affairs Economic Commission for Latin America and the Caribbean Monitoring Group of the Economic Community of West African States Economic and Social Council Economic Community of West African States editor(s) edition European Journal of International Law European Monitoring Center for Drags and Drug Addiction European Evaluation and Monitoring Program Encyclopedia of Public International Law Emergency Relief Coordinator Economic and Social Commission for Asia and the Pacific Economic and Social Commission for Western Asia et alia European Union

FA FAO FRY FWCW FYROM

Foreign Affairs Food and Agriculture Organization Federal Republic of Yugoslavia Fourth World Conference on Women Former Yugoslav Republic of Macedonia

G-77 GA GATT GEF GEMS GNP GPML

Group of 77 General Assembly General Agreement on Tariffs and Trade Global Environmental Facility Global Environmental Monitoring System Gross National Product Global Programme on Money Laundering

XVI

The United Nations

HABITAT HEUNI HRC HRFOR

Commission on Human Settlement Helsinki Institute for Crime Prevention and Control Human Rights Committee United Nations Human Rights Field Operation in Rwanda

i.e. IAEA IASC IBRD ICCPR ICESCR ICJ ICPD ICPO ICRC ICTR ICTY IDA IDP IEFR IFOR ILA ILANUD

10 IOM IPC IPPC IRO ITC

id est International Atomic Energy Agency Inter-Agency Standing Committee International Bank for Reconstruction and Development International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice International Conference on population and Development International Criminal Police Organization International Committee of the Red Cross International Tribunal for Rwanda International Tribunal for the Former Yugoslavia International Development Association Internally Displaced Person International Emergency Food Reserve Implementation Force International Law Association Latin American Institute for the Prevention of Crime and the Treatment of Offenders International Law Commission International Labor Organization International Monetary Fund International Maritime Organization International Narcotics Control Board Intermediate-Range Nuclear Forces International Research and Training Institute for the Advancement of Women International Organization(s) International Organization for Migration International Prison Commission International Penal and Penitentiary Commission International Refugee Organization International Trade Center

JIU

Joint Inspection Unit

LCDs lit.

Least Developed Countries litera

ILC ILO IMF IMO INCB INF INSTRAW

Abbreviations

MICIVIH MINUGUA MINURCA MINURSO MINUSAL MISAB MONUA MONUCA

International Civilian Mission in Haiti United Nations Verification Mission in Guatemala United Nations Observer Mission in Angola United Nations Mission for the Referendum in Western Sahara United Nations mission in El Salvador Inter-African Mission for the Observation of the Bangui Treaties United Nations Observer Mission in Angola United Nations Peace-building Support Office in the Central African Republic

NAM NATO NGO(s)

Non-Aligned Movement North Atlantic Treaty Organization Non-Governmental Organizations

OAS OAU OCHA ODA ODCCP OECD OHCHR OIC OIOS ONU ONUC ONUCA ONUMOZ ONUSAL ONUV OP OSCE

Organization of American States Organization of African Unity Office of the Coordinator for Humanitarian Affairs Official Development Assistance Office for Drug Control and Crime Prevention Organization for Economic Cooperation and Development Office of the High Commissioner for Human Rights Organization of Islamic Countries Office of Internal Oversight Services Organisation des Nations Unies United Nations Operation in the Congo United Nations Observer Group in Central America United Nations Observer Mission in Mozambique United Nations Observer Mission in El Salvador United Nations Verification Office in Nicaragua Optional Protocol Organization on Security and Cooperation in Europe

P5 PCI PCIJ PCPB PIP PKO Proc.

Five Permanent Members of the Security Council Per Capita Income Permanent Court of International Justice Post-Conflict Peace-Building Peace Implementation Programme Peace-Keeping Operations(s) Proceedings

RdC RDMHQ Rec.

Recueil de Cours Rapidly Deployable Missions Headquarters Recommendation

The United Nations

Res. RF

Resolution Russian Federation

SC SFOR SHIRBRIG SOFA(s) SRSG START SU

Security Council Stabilization Force Multinational United Nations Stand-by Forces High-Readiness Brigade Status of Forces Agreement(s) Special Representative of the Secretary-General Strategic Arms Reduction Treaty Soviet Union

TC TDB

Trusteeship Council Trade and Development Board

UDHR UK UN UNAFEI UNAFRI

Universal Declaration of Human Rights United Kingdom United Nations Asia and Far East Institute African Institute for the Prevention of Crime and the Treatment of Offenders UNAMET United Nations Mission in East Timor UNAMIR United Nations Assistance Mission for Rwanda UNAMSIL United Nations Mission in Sierra Leone UNAT United Nations Administrative Tribunal UNA-USA United Nations Association of the United States of America UNAVEM United Nations Angola Verification Mission UNCC United Nations Compensation Commission UNCDF United Nations Capital Development Funds UNCED United Nations Conference on Environment and Development UNCHS United Nations Center for Human Settlements UNCIO United Nations Conference on International Organization UNCITRAL United Nations Commission on International Trade Law UNCJIN United Nations Crime and Justice Information Network UNCLOS United Nations Conference on the Law of the Sea UNCOPUOS United Nations Committee on Peaceful Uses of Outer Space UNCTAD United Nations Conference on Trade and Development UNDAF United Nations Development Assistance Framework UNDCP United Nations Drug Control Program UNDG United Nations Development Group UNDOF United Nations Disengagement Observer Force UNDP United Nations Development Program UNDRO United Nations Disaster Relief Office UNEF United Nations Emergency Force

Abbreviations

UNEP UNESCO UNFICYP UNFPA UNGASS UNHCR UNICEF UNICRI UNIDO UNIFEM UNIKOM UNITAR UNMIBH UNMIK UNMOGIP UNMOP UNMOT UNOF UNOG UNOGBIS UNOMIG UNOMIL UNOMOZ UNOMSIL UNON UNOPS UNOSAL UNOSOM UNOV UNPREDEP UNPROFOR UNRRA UNRWA UNSCOM UNSDRI UN-SG UNTAC UNTAES UNTAET UNTAG UNTAT

xix

United Nations Environmental Program United Nations Educational, Scientific and Cultural Organization United Nations Peace-Keeping Force in Cyprus United Nations Population Fund Special Session of the United Nations General Assembly United Nations High Commissioner for Refugees United Nations Children's Fund United Nations Interregional Crime and Justice Research Institute United Nations Organization for Industrial Development United Nations Development Funds for Women United Nations Iraq-Kuwait Observation Mission United Nations Training and Research Institute United Nations Mission in Bosnia and Herzegovina United Nations Interim Administration Mission in Kosovo United Nations Observer Group in India and Pakistan United Nations Mission for Prevlaka United Nations Mission of Observers in Tajikistan United Nations Offshore Forum United Nations Office in Geneva United Nations Peace-Building Support Office in Guinea Bissau United Nations Observer Group in Georgia United Nations Observer Mission in Liberia United Nations Mission in Mozambique United Nations Observer Mission in Sierra Leone United Nations Office in Nairobi United Nations Office for Project Services United Nations Observer Mission in El Salvador United Nations Operation in Somalia United Nations Office in Vienna United Nations Preventive Deployment Force United Nations Protection Force United Nations Relief and Rehabilitation Agency United Nations Relief and Works Agency for Palestine Refugees in the Near East United Nations Special Commission (Iraq) United Nations Social Defense Research Institute (UNSDRI) Secretary-General of the United Nations United Nations Transitional Authority in Cambodia United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium United Nations Transitional Authority in East Timor United Nations Transition Assistance Group United Nations Training Assistance Team

The United Nations

UNTSO UNV USA USG USSR

United Nations Truce Supervision Organization United Nations Volunteers United States of America Under Secretary-General Union of Socialist Soviet Republics

VCLT vol(s).

Vienna Convention on the Law of Treaties volume(s)

WCJL WEOG WEU WFP WG WGFS WHO WTO WW

World Criminal Justice Library Group of Western European and Other States Western European Union World Food Program Working Group Working Group on the Financial Situation of the United Nations World Health Organization World Trade Organization World War

Shortlist of Publications and Internet Links

Each chapter contains at the beginning a list of literature which should enable the reader to easilyfindmore in-depth reading on the respective issue. In addition, the editors recommend the following publications for an in-depth study of the UN system or simply for reference concerning specific UN issues. This list is not supposed to give a comprehensive bibliography on the UN, it rather indicates the publications, which, in the opinion of the editors, should not be missing on a reading list. Publications of the UN Basic facts about the United Nations, 1998 Boutros Boutros-Ghali, An Agenda for Peace (With the New Supplement and Related UN Documents), 2nd edition 1995 An Agenda for Development, Report of the Secretary-General, UN Doc. A/48/935 Renewing the United Nations. A Reform Program. Report of the Secretary-General, UN Doc A/51/950 We the Peoples: The Role of the United Nations in the Twenty-first Century. Report of the Secretary-General to the Millennium Summit, UN Doc. A/54/2000 The Blue Helmets: A Review of United Nations Peace-keeping, 3rd edition 1996 50 Years UN Peace-keeping, 1999 UN Blue Book Series (comprehensive background information and compilation of documents on various issues such as Human Rights 1945-1995; Apartheid 1945-1995; Nuclear Non-Proliferation; The Advancement of Women 1945-1996; and on a number of peace-keeping operations) Report of the Secretary-General on the Work of the Organization (annually, last report UN Doc. A/55/1) Yearbook of the United Nations (last volume published 1997) Yearbook of the United Nations, Special Edition: UN Fiftieth Anniversary 1945-1995. UN Chronicle (published quarterly) Internet sites Homepage of the UN: http://www.un.org The UN Homepage provides links to the UN Organs, the UN Specialized Organizations, and to conferences organized by the UN. It contains a comprehensive documentation of resolutions and other documents of the Security Council, the General Assembly and ECOSOC. The Office of Drag Control and Crime Prevention provides the most comprehensive list of links on organizations as well as thematic links: http://www.undcp.or.at/unlinks.html

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The United Nations

Handbooks New Zealand Ministry of Foreign Affairs, UN Handbook, published annually, contains continually updated information on the structure and composition of UN organs and the most important institutions. This handbook is most valuable for the practitioner. Charter Commentaries Leland M. Goodrich/Edvard HambrolAnne Patricia Simons, The Charter of the United Nations, 3rded., 1969 Jean-Pierre CotlAllain Pellet, La Charte des Nations Unies, Commentaire article par article, 2nded., 1991 Bruno Simma (ed.), The Charter of the United Nations. A Commentary, 1994 Rudiger Wolfram (ed.), United Nations: Law, Policies and Practice, 2 vols, 1995 Other Publications Adam Roberts/Benedict Kingsbury (eds.), United Nations, Divided World. The UN's Roles in International Relations, 2nd updated edition 1995 Oscar SchachterlChristopher Joyner (eds.), United Nations Legal Order, 2 vols, 1995

Chapter 1

Historical and Legal Framework For Activities of the United Nations


Historical Introduction Franz Cede Literature: Russell/Muther, A History of the United Nations Charter (1958); Luard, A History of the United Nations (1982); Grewe, The History of the United Nations, in Simma (ed.), The Charter of the United Nations, A Commentary (1994), 1; Roberts/Kingsbury (eds.) United Nations, Divided World, The UN's Role in International Relations (1993); Kimminich, History of the Law of Nations since WWII, in EPIL 2 (1995) 894.

1. Peace Concepts Prior to the League of Nations The concept of a world-wide organization to secure peace is a relatively recent phenomenon in the history of international relations. The League of Nations developed it in concrete terms for the first time. In previous times various attempts at organizing collective security can be traced. However, the preconditions to realize such projects had not existed before the beginning of the 20th century. Among the projects conceived already in the Middle Ages as schemes to organize the community of States particular mention is to be given to the works of the French authorDubois ("De recuperatione terrae sanctae", c. 1306) and of Dante Alighieri ("De Monarchia", c. 1312). Among the peace concepts elaborated in modern times which present already a certain structure the plans of a European peace order by the Duke of Sully ("Grand Dessein", c. 1640) or by two other French authors Cruce ("Le Nouveau Cynee", 1623) and Abbe de St. Pierre ("Projet pour rendre la paix universelle en Europe", c. 1716) also deserve to be mentioned. The latter concepts are often seen as precursors of the League of Nations and indirectly of the United Nations. In England in 1693, Penn proposed a peace project ("Project towards the present and future peace in Europe") that provided for a European congress of States for the settlement of international disputes. In Germany it was mainly Kant who enriched the political discussion with his philosophical project "Zum Ewigen Frieden" ("Towards Eternal Peace", 1789). In his ideas Kant developed the concept of a federation which would form the institutional basis for an international system of equal States entrusted with the safeguarding of world peace. Against this philosophical background the project matured to establish an organization of the international community of States for the purpose of maintaining the peace. However, it took the catastrophe of World War I (WW I) to make the time ripe for translating these noble ideas into reality. The devastating forces of modern war

Franz Cede and Lilly Sucharipa-Behrmann (eds.), The United Nations - Law and Practice, 3-9 ©2001 KluwerLaw International. Printed in the Netherlands.

4

The United Nations

technology mobilizing all human and economic resources of the conflicting powers had led to hitherto unknown levels of mass casualties and destruction. In view of such horrors the call to stop war altogether as a means of settling disputes between States became imperative. The slogan of the time was "No more war". In this spirit

the prohibition to use armed forces in international relations gradually developed leading to the replacement of the conviction prevailing before W W I that States could in principle go to war alone or in alliance with others without any restriction to pursue their real or supposed interests. This change of attitude has certainly constituted the main factor in the development of an international organization designed to counter aggression through efficient action taken by its members. The longing for peace and the prohibition of war as a means of international politics, although revolutionizing the minds, were not decisive by themselves. They were unable to create the necessary conditions for the establishment of an international organization with a global dimension. These prerequisites were present only with the rapid development of the modern means of world traffic and communication.

2. The League of Nations Already during WW I plans were devised in the US and in Great Britain that provided for a permanent world-wide organization to be established after the war with the main purpose to secure once and for all international peace and security through efficient and legally binding safeguards. It was US President Wilson in the first place who committed himself personally to the promotion of the project of a League of Nations as the central world peace organization and as the fundament of a new political order after the war. On 8 January 1918 President Wilson made a statement before the US Senate in which he submitted 14 proposals (Wilson's 14 points) including the project of the establishment of such international organization. At the Paris Peace Conference under US leadership the victorious powers were quick to agree to the Statute of the League of Nations forming an integral part of the various Paris peace treaties. The new world organization was established and Geneva became its headquarters. The organization started its activities in 1920. Its goals and principles as well as its structure (Council, Assembly, and Permanent Secretariat), in spite of all differences, resemble that of the UN as its successor organization to a high degree. The basic concept of the League of Nations itself, namely to secure peace among nations through a system of collective security, is identical with the project of the future UN. The institutions of the League of Nations have many parallels with the later UN or were taken over by the latter with appropriate adjustments. For instance the mandate regime under the League devised for the former colonies of the German

Historical Introduction

5

and the Turkish Empires is the obvious model for the Trusteeship system of the UN. The model character of the League of Nations for the UN can be demonstrated particularly well by the Permanent International Court of Justice (PCD), the Statute of which, although not an organ of the League, was taken practically unchanged for the future International Court of Justice (ICJ), the principle judiciary organ of the UN. However, the ICJ Statute was incorporated as integral part of the UN Charter in its annex. The prohibition to use force in interstate relations as established in the Statute of the League of Nations was not absolute in character. For the solution of conflicts the Statute did little but to provide for rather complicated procedures for their settlement and for mechanisms of sanctions which turned out to be less than efficient. After exhaustion of these remedies and a cooling off period of three months a conflicting party was free to use military force without any infraction of the rules prescribed by the Statute. Obviously the League of Nations was unable to fulfill the core of its mandate, i.e. to prevent future wars. Its failure was definite when it could not forestall the outbreak of WW II. During the war the League of Nations was of no political relevance whatsoever. To explain the historic failure of the League of Nations to carry out its main task of securing international peace and prevent armed conflicts the following reasons can be mentioned: Its structural weakness (e.g. the unanimity rule for decision taking both in the Council and the Assembly), the deficient regulation of the prohibition to use military force and the lack of universal membership. The US never became a member of the League of Nations. Furthermore important players on the international plane (such as Germany, Italy or Japan) left the organization after a short time or (such as the Soviet Union) were excluded. The Third World was conspicuously absent since wide areas of Africa or Asia still stood under colonial rule and therefore did not fulfill the requirement of sovereignty prescribed for membership. The balance sheet of the League of Nations is not entirely negative as it soon developed into a useful platform for international cooperation in the social and economic field, which intensified significantly. All things considered, however, the League of Nations was not a success story. The responsibility for its collapse did not rest solely on the deficiencies described but was mainly caused by the power interests of some political key players of the time who disregarded the principles and objectives of the League's Statute and who resorted to the use of military force without restriction whenever they found it appropriate to settle their scores. Soon after the outbreak of WW II a discussion started first in academic circles in the US and Great Britain, focusing on the League of Nations' failure and the

6

The United Nations

lessons to be drawn therefrom for the reshaping of the international system once the war would be ended. Soon after the entry into the war by the US in December 1941, leading politicians of the Western Allies participated in this discussion offering contributions to the fundamental issue of what organization should be created after the war to make new wars impossible.

3. The Founding of the UN As was the case with the League of Nations, the US once again played a leading role in the making of the UN. At the political level the Atlantic Charter of August 1941 marked the decisive step on the road to the establishment of the UN. In this document the creation of a universal security system was proposed for the time after the war. On 1 January 1942, shortly after the entry into the war by the US the representatives of 26 States, allied against the axis powers, issued the "Declaration by United Nations". In it the signatory States solemnly committed themselves to continue the fight against the axis powers by all means until the unconditional surrender of the latter. The declaration uses for the first time the term "United Nations" not as a description of the future world organization but as a label for the alliance of States against the axis powers. The political will of the allied to establish after the war a universal organization with the main purpose to maintain international peace and security was formally reaffirmed at the Moscow conference of Foreign Ministers (30 October 1943) and at the Teheran summit conference (Churchill, Roosevelt, Stalin; 28 January - 1 December 1943). Upon US invitation a conference of experts took place in the summer of 1944 at Dumbarton Oaks, a part of the US capital Washington D.C. At this technical conference Soviet and Chinese representatives joined American and British experts to elaborate the legal basis of the new organization. The proposals for the establishment of a general international organization which had been formulated primarily by American legal experts were then submitted as "the proposals of Dumbarton Oaks" to the Yalta Summit Conference (4-11 December 1945) assembling the heads of State and government of the US, Great Britain and the Soviet Union. At Yalta the unresolved voting procedures in the future Security Council (SC) of the UN turned out to be the most difficult issue. The compromise finally agreed upon (Yalta formula) provided a right of veto for the big powers having a permanent seat in the SC on all matters of substance. Part of the bargain deal made at Yalta was a concession to Stalin who succeeded in convincing the other participants at the conference to accept membership rights in the UN for two constituent republics of the Soviet Union (Byelorussia and Ukraine). Obviously such an agreement is not in conformity with the basic concept of the UN providing membership only to sovereign States.

Historical Introduction Immediately after the end of WW II the US convened the UN Conference on international Organization (UNCIO) in San Francisco. High ranking government representatives from 50 States attended the conference that lasted from 25 April to 16 June 1945. After strenuous negotiations they agreed to the Charter of the world organization on the basis of the proposals submitted by the great powers. The conference ended successfully by the unanimous adoption of the UN Charter, which was signed on 26 June 1945 by the representatives of all 50 participating States. The term "United Nations", under the Charter means the Organization of the UN. The close link between the founding of the UN and the wartime alliance against the axis powers can be shown by the fact that only those States which were allies, counted among the original members of the organization. In its beginnings the UN was also conceived as an instrument against the "enemy States" of WW II. The UN Charter entered into force on 24 October 1945 after a majority of signatory States including all five permanent members of the SC had deposited their instruments of ratification. The prerequisite that the Charter could enter into force only after ratification by all five permanent members of the SC (US, Soviet Union, UK, China, France) was to ensure the participation of the great powers and in particular of the US - in the system from its inception. This lesson was drawn from the failure of the League of Nations, which was partly explained by the absence of the US. Contrary to the proposed membership of the US in the league of Nations, which did not find the necessary two-thirds majority in the US Senate, an overwhelming majority of senators voted in favor of the ratification of the UN Charter. With the founding of the UN a new chapter began in the history of international relations. For the first time there was a permanent organization of universal character, which in principle offered to its members an efficient system of collective security through the participation of the great powers, having a permanent seat in the SC. In addition to ensuring collective security to its members the institutions created in the UN framework offered a unique forum for international cooperation in all areas of political, economic and social life. It is one of the challenges of this book to present the fundamental changes that the world organization has undergone through its 50-year history. These changes can be addressed only briefly in this introductory chapter. One of the key elements of the evolution of the UN clearly constitutes the gradual enlargement of its membership comprising today nearly all States of the world, including Germany, Japan and Italy, which as enemy States did not figure among the original members. As of September 2000189 States are members of the UN which therefore can be truly called a universal organization. In its initial phase the influence of the US and of the West were clearly dominant in the UN. This state of affairs changed suddenly with the rapid expansion of membership in the early 1960s when a large

The United Nations

number of former colonies joined the UN as newly independent States. The many new members changed the majority in the General Assembly to their advantage. As a consequence issues in the North-South relationship increasingly gained prominence together with an increased focus on social and economic questions. Another feature characterizing the UN over many decades was the East-West tension polarized in the conflictive relationship between the US and the Soviet Union, the two super-powers of the time. The latter often acted as "natural ally" of the Third World. During the period of the Cold War the use of the veto power in the SC prevented the instruments of collective security provided by the Charter from becoming operative. After the political changes in the early 1990s (reunification of Germany, dissolution of the Soviet Union and of the Warsaw Pact) the UN has again arrived at a crossroads: Plagued by the greatest financial crisis in its history the UN now faces the necessity of stringent reform measures to solve the budget problem. In addition, the UN needs to adapt itself to the fundamental political changes that occurred over the last years. It has to draw the necessary conclusions of these changes for the system of collective security. At the same time the UN must demonstrate its capacity to solve the burning social and economic problems besetting the world at the close of the 20th century. As the world in political terms can no longer be seen in a simple bi-polar scheme the UN has to redefine its potential and responsibility to enable it to continue its useful role for the benefit of the entire international community. The very fact that the UN has proven during its history an astonishing capacity to adjust to changed political circumstances and to the various tasks assigned to it over time (e.g. peace-keeping operations) gives reasons to believe in a meaningful future of the organization. For the international community the UN as well as its legal and institutional framework have proven to be viable and thus indispensable.

4. The Charter of the UN as the Constitution of the International Community of States The great authority the UN Charter enjoys today and its universal validity are further strong arguments in favor of the world organization. As nearly all States have become members of the UN, the UN Charter occupies a position that gives it an enhanced status among all other international treaties, insofar as the priority of the obligations deriving from the Charter enshrined in Art. 103 sets it apart from other instruments of international law. Within its objectives and principles the Charter contains a number of rules which are of central importance to the peaceful cooperation among States. It provides instruments for the peaceful settlement of disputes and a system of collective security in cases of threats to the peace or

Historical Introduction

breaches of the peace. Since at present nearly all States are obliged to honor the provisions of the Charter as members of the UN and in view of the high degree of international cooperation in the UN framework some authors describe the Charter as the constitution of the international community. This approach to the Charter derives from national legal concepts. It views the UN as the custodian of the values and interests common to the international community as a whole (community interests). In such a perspective the community of States assembled under the umbrella of the UN is quite different from the sum of all Member States. It is, however, doubtful whether the vision of a harmonious community of nations peacefully gathered under the roof of the UN Charter corresponds to the harsh realities of the present world.


The Purposes and Principles of the United Nations Franz Cede Literature: Salomon, Le Preambule de la Charte: base ideologique de l'ONU (1947); Wengler, Das volkerrechtliche Gewaltverbot, Probleme und Tendenzen (1967); Wolfrum, Purposes and Principles, in Simma (ed.), The Charter of the United Nations, A Commentary (1995) 49; Bleckmann, Commentary to Art. 2(1), in Simma (ed.), The Charter of the United Nations, A Commentary (1995) 77; Randelzhofer, Introduction to Art. 2 and Commentary to Art. 2(4), in Simma (ed.), The Charter of the United Nations, A Commentary, (1995) 72, 106; Tomuschat, Commentary to Art. 2(3), in Simma (ed.), The Charter of the United Nations, A Commentary, (1995) 97; Vitzthum, Commentary to Art. 2(6), in Simma (ed.), The Charter of the United Nations, A Commentary (1995) 131; Ermacora, Commentary to Art. 2(7), in Simma (ed.), The Charter of the United Nations, A Commentary, (1995) 139; Vitzthum, Das Selbstbestimmungsrecht der Volker und die Anerkennung neuer Staaten in Neuhold/Simma (eds.), Europaisches Volkerrecht nach dem Ende des Ost-West-Konflikts? (1996) 43.

The preamble and the first two articles of the Charter contain the central purposes and principles of the UN in very brief and general formulations. In this book an attempt is made to explain the meaning of these terms today in the light of over 50 years of UN practice. For "a modern understanding" of the principles and objectives a number of key resolutions of the GA are regularly referred to such as the "Friendly Relations Declaration" (Res. 2625 (XXV)) or Res. 3314 (XXIX) on the definition of aggression. In addition, a whole series of legal instruments elaborated under the aegis of the UN such as the two human rights covenants of 1966 are often used for the current interpretation of the general provisions of the Charter. Important judgments of the ICJ are also used for interpretation purposes. The preambular paragraphs of the Charter are closely interrelated and have to be read always in conjunction with the corresponding articles. Furthermore, there is a clear connection between the general provisions and structural provisions set out in other Chapters of the Charter. The following two examples seek to illustrate this point: The description of the UN as a system of collective security is given in the penultimate two paragraphs of the preamble and in Art. 1 (1) and Art. 2 (3), 2 (4) and 2 (5). The mechanism provided to implement these provisions are then to be found in Chapters VI, VII and VIII conferring special responsibility upon the SC. The principle of international cooperation, especially in the economic and social fields, is expressed in the last paragraph of the preamble and in Art. 1 (3). The corresponding Chapters IX and X are then regulating in detail how international cooperation should be

Franz Cede and Lilly Sucharipa-Behrmann (eds.), The United Nations - Law and Practice, 11 -24 ©2001 Kluwer Law International. Printed in the Netherlands.

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developed in terms of substance and organization. As the preamble and the first two articles relating to the objectives and principles are of paramount importance in the system of the UN it is correct to call them - in a terminology borrowed from national legal systems - the constitutional foundation of the UN. In UN practice a great number of decisions refer to the objectives and principles thus underlining their central role in the whole UN system.

1. The Preamble The preamble, forming an integral part of the Charter, was not provided for in the initial drafts of the Charter but was elaborated only at the San Francisco Conference. A careful reading shows that its wording was not coordinated with Art. 1 and 2 of the Charter. This explains the slightly different formulations of the objectives and principles in the preamble and in the first two articles. At its beginning the preamble recalls the determination of "the peoples of the United Nations" to save succeeding generations from the scourge of war. This reaffirmation couched in pathetic language contains the very essence of the UN peace concept. The words chosen proceed from the proposition that there is a community of peoples congregating under the aegis of the UN. They foreshadow the modern concept of the UN as the organized community of States. Thereby the UN is endowed with a superior degree of legitimacy giving it a unique status in the international community. The preamble then addresses the fundamental rights of the human person, surprisingly mixing the equality of men and women with the equality of nations. The explicit reference to human rights among the objectives of the United Nations certainly constitutes an important innovative element. It is grounded on the founding fathers' firm belief that the new world order established after WWII ought to be committed to the protection of human rights since the painful experience of the recent past had shown that international peace and security were truly dependent on the respect for the fundamental right of the individual in each and every State. In the meantime this commitment to the protection of the fundamental rights of man has become a legitimate concern of the entire international community. The way a State treats its own people can no longer be considered as a matter falling "essentially within its domestic jurisdiction" (Art. 2 (7)) whenever that State bears responsibility for the violation of such fundamental rights. This conviction, reaffirmed by the Vienna World Conference on Human Rights in 1993, marks the culmination point in the development of human rights protection within the UN system as provided in the preamble and in Art. 1 (3) of the Charter. It can be said without exaggeration that the universal standard setting in the field of human rights continuously advanced and that the world-wide acceptance of these human rights instruments through

The Purposes and Principles of the United Nations

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ratification counts among the true achievements reached by the UN. As to the wording of the preamble concerning "equal rights of nations large and small" it has to be read in conjunction with Art. 2 (1) of the Charter speaking about "the sovereign equality" of all its members as a principle of the UN. A more detailed discussion of this principle will follow under the discussion of Art. 2(1). Suffice it to mention here the difference in the language of the preamble and in Art. 2(1). The preamble uses the term equal rights of nations and thereby stresses the concept of nations at the basis of the UN whereas Art. 2 (1) refers to the sovereign equality of the members, i.e. the Member States. The next paragraph of the preamble relates to the dimension of the UN as a community of law. According to this paragraph the UN and the international community are to carry out all activities within the framework of international law: Not only the obligations explicitly mentioned must be obeyed but also all other norms of international law referred to in general terms (customary law, general principles of law). In addition to the norms of international law contained in the Dumbarton Oaks proposals the principle of justice, an element derived from natural law, was introduced in the Charter (cf. Preamble, Art. 1(1), Art. 2 (3)). The inclusion of the principle of justice into the scope of legal obligations may be explained by the founding fathers' vision of the UN to be first and foremost a community of values to be obeyed not only formally in a purely juridical sense. A present-day reading of the principle of justice enshrined in the UN Charter obviously has to bear in mind also the social and economic conditions prevailing in the Member States. As a matter of fact, the different nature of legal standards (e.g. soft law) as it became apparent in the second part of the 20th century could not be taken account of in the Charter. However, any present review of the legal and political obligations within the UN has to recognize that Member States are committed to more than just to obey the rules of international law explicitly mentioned in the Preamble. The consistent practice of implementing the resolutions of the SC and of the GA clearly show that the legal framework of rules which are considered binding upon Member States has become broader than that denned by the Charter in 1945. The next paragraph of the preamble addresses the social and economic dimension of the UN. As respect for human rights is considered a precondition for peace the development of international relations free of tensions demands fruitful cooperation among Member States. The preamble as well as Art. 1 (3) and 13 (1) lit. b make brief references to the international cooperation. In Chapter IX and X of the Charter a whole program is developed to further such cooperation. From today's perspective the activities of the UN in the areas of economic and social cooperation are no less important than the system of collective security whose

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creation was the main ambition of the founders of the UN. The following paragraph of the preamble speaking about the resolve of the Member States "to live together in peace with one another as good neighbors" has at times raised the question whether this phrase meant the relationship of neighboring States in a geographical sense. However in the light of many GA resolutions using the term "good neighborliness" (e.g. Friendly Relations Declaration) this ground rule for constructive interstate relations addresses itself to all States irrespective of their geographic vicinity. It is meant to induce all States to conduct their respective relations in a fashion that corresponds to the image of good neighbors. The following two paragraphs reiterate earlier formulations used in the preparatory stages of the UN Charter. They basically reaffirm the resolve of the UN to cooperate in safeguarding international peace and to guarantee that armed force will be used only in the common interest. These propositions presuppose an efficient and exclusive operation of the UN system of collective security in case of threats to the peace or acts of aggression (cf. Chapter VII and VIII). These words of the preamble exude an optimistic belief in the effective capacities of the UN to maintain peace, a view that has been all too often disappointed by the political realities after 1945.

2. The Purposes of the UN Art. 1 enumerates four purposes of the UN. Together with the principles (Art. 2) they determine all activities of the UN and its organs. Anumber of Charter provisions make reference to the principles and purposes. In view of the overriding importance many resolutions and decisions of UN organs invoke them. a) Securing peace, Art. 1 (1) The objective put at the top of Art. 1(1), i.e. the maintenance of international peace and security constitutes the primary goal of the UN. All other objectives and tasks of the UN are subordinated to this main purpose justifying alone the very existence of the world organization. Art. 1(1) contains a few key terms of the Charter that merit some comments: The words "international peace and security" are rarely used separately in the Charter. Already in the Statute of the League of Nations they appeared mostly in tandem. In the meantime the expression "international peace and security" has entered the standard political vocabulary. The notion "international peace" in the Charter does not only denominate the absence of war and armed conflicts but purports to cover a positive state of affairs characterized by harmonious and tension-free cooperation of the international community. This meaning results from


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the letter and the spirit of the Charter as a whole (cf. the explicit calls for cooperation in the preamble, in Art. 1(1) and (3), Art. 13 and Chapters IX and X). Art. 1(1) further addresses the core of the collective security system of the UN. It mentions efficient collective measures to prevent and remove threats to the peace, and for the suppression of acts of aggression or other breaches of the peace. Art. 1(1) outlines in a nutshell what the Charter further regulates more comprehensively. It is therefore advisable to read always this key provision in conjunction with the relevant Chapters of the Charter (see Chapter VI, VII, VIII). It is for the SC, entrusted with the main responsibility for the maintenance of international peace and security (Art. 24), to determine in each case if a threat to the peace, a breach of the peace or an act of aggression exists. In Art. 1(1) and in Art. 39 also "situations" are mentioned which may call for collective action. The Charter does not specify what these situations might be. Therefore the GA attempted in the framework of a Committee especially created for this purpose to define at least the gravest breach of peace, i.e. armed aggression. As a result of these efforts the GA on 14 December 1974 adopted Res. 3314 (XXIX) giving a definition of acts of aggression. The definition lists by way of example a series of acts, which give prima facie evidence of the first use of military force by a State, and qualifies them as acts of aggression. In the turbulent history of the UN the determination by the SC that in a given case a threat to the peace or breach of international peace and security exists has always been a highly political decision in which, because of the right of veto, the permanent members of the SC played the decisive role. The SC does not consider itself bound by the criteria set out in the GA's definition of aggression but usually follows its own political considerations in determining the acts referred to in Art. 39 of the Charter. The obligation to settle international disputes by peaceful means in accordance with the principles of justice and international law prescribes for the UN and its members to avail themselves of the entire spectrum of peaceful settlement procedures in order to ensure that the threshold leading to threats to the peace or breaches of peace is not transgressed. Chapter VI of the Charter setting up the system of peaceful settlement of disputes offers a whole array of methods to meet this obligation. b) The fostering of friendly relations, Art. 1 (2) The second objective set out in the Charter concerns the development of friendly relations between nations. This prescription, resulting from the positive peace concept underlying the entire UN Charter, was further developed by practice especially by the landmark "Friendly Relations Declaration" (GA Res. 2625 (XXV) 24 October 1970). The declaration goes well beyond the parameters set

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out in Art. 1 (2) as it covers the most central principles of the UN which in the meantime have found universal recognition as the "basic rules of international relations". Art. 1 (2) explicitly mentions the "principle of equal rights and self- determination of peoples". The principle of equal rights, also enshrined in the preamble, will be examined in more detail under the title of "sovereign equality of States" in the context of Art. 2(1). With regard to Art. 1 (2) the controversial concept of the right of peoples to selfdetermination needs further consideration. This political and legal principle which has developed its gigantic explosive potential during the 20th century, is mentioned twice in the Charter: in Art. 1 (2) and in Art. 55. In addition, Chapter XI (Declaration regarding non-self-governing territories) and Chapters XII and XIII instituting the Trusteeship system, are intrinsically linked to the realization of the right of peoples to self-determination. This right was most visibly expressed in the process of decolonization pushed forward decisively by the UN and which is practically completed today. The right of peoples to self-determination belongs to the most controversial concepts of international law and international politics regarding its scope as well as to its beneficiaries. For some time the assumption was that after the end of decolonization a more stable period of international relations would follow making the problem of self-determination more or less irrelevant. The fundamental changes of world politics over recent years, however, leading inter alia to the cases of state succession in a number of Central and Eastern European States (Dissolution of the SU and of Yugoslavia, breaking-up of Czechoslovakia) moved the issue of self-determination once again up on the political agenda. Besides being expressly mentioned in the Charter, the right to self-determination is contained in many international documents ranging from binding instruments of international law (cf. Art. 1 of the International Human Rights Covenants) to political pronouncements (cf. Declaration on the granting of independence to colonial countries and peoples 1960, Final Act of the CS CE1975, Paris Charter on a new Europe 1990, Friendly Relations Declaration 1970). The right to selfdetermination thus can no longer be considered just as a purely political postulate. It certainly enjoys validity as a legal principle too. When the former colonies gained independence the debate relating to self-determination within the UN had clearly denned contours. In essence self-determination meant the claim staked by the peoples then under colonial rule to be granted complete independence and to be given the right to organize them as sovereign States within the boundaries inherited by the colonial powers. After the end of decolonization the debate that had focused on the external


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aspects of self-determination shifted noticeably to internal self-determination by which the broadest possible participation of people in the political process was understood. According to the latter concept this process should develop in an orderly fashion that would honor human rights and the principles of social justice ("good governance"). Only recently the different cases of state succession in Europe again stimulated the discussion about self-determination. Whereas international law as it stands does not recognize the right to secession as a rule the various developments that led to the dissolution of the SU, of Yugoslavia and of Czechoslovakia have shattered this very dogma. No doubt, the UN took rapidly account of the new realities in Europe when the new States were admitted to the organization and Russia inherited the permanent seat in the SC from the Soviet Union. It is noteworthy that contrary to the decolonization process the UN did not play any important role in the recent cases of state succession in Europe. c) International cooperation, Art. 1 (3) Art. 1 (3) enumerates the main areas in which international cooperation should be developed in the UN framework. Specific reference is made to economic, social, cultural and humanitarian issues and to the promotion of human rights. Art. 1 (3) is the key to those provisions of the Charter, which deal with international cooperation (Art. 13, Chapters FV, EX and X). In Art. 1 (3) the principle of international cooperation is formulated in a very general way. It calls on Member States to promote international cooperation in every respect. Such a broad agenda makes the UN competent to deal practically with each and every issue, which is not essentially within the domestic jurisdiction of this State. This wide interpretation of the UN mandate makes it possible, for instance, to put nearly all matters within the framework of the UN. For instance, the world-wide efforts undertaken to resolve the burning problems of the environment can thus be seen as an obligation deriving from the Charter's principle of international cooperation (cf. the activities of the 2nd Committee of the GA, the Commission on Sustainable Development or the UN Program on the Environment). Obviously in 1945 the founding fathers of the UN could not possibly foresee the later dimension of these issues. In its history the UN has succeeded remarkably well in serving as a global platform for dialogue on the manifold problems in the economic, social, cultural or humanitarian fields. The world-wide development of human right presents a case in point to demonstrate the impressive capacity of the UN in the area of codification, which is significant for the cooperation in the legal field. An overall assessment of the role played by the UN in fostering international cooperation has to recognize the fact that its actual operation is carried out by the various

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specialized agencies rather than by the main organization itself. As far as international economic issues are concerned for example the Bretton Woods Institutions (World Bank Group, IMF, WTO) are playing a central role. With regard to cultural cooperation UNESCO is the appropriate forum in the UN family. There is a long list of subject matters that are dealt with primarily by specialized agencies or by particular UN institutions. This shows how the UN can integrate all areas of international cooperation in its wide and flexible system. Sometimes the link to the mother organization has become very loose. d) The UN as the focus of common objectives, Art.1 (4) Art. 1 (4) realizes the concept that in the international system created after WWII the UN is to be the central institution in which the community of States has to consider matters of common concern, in particular all issues relating to the maintenance of international peace and security. It was assumed that the SC and its permanent members would bear the main responsibility to carry out the task of maintaining and restoring international peace and security. A critical analysis of this concept that would have resulted in a sort of world government led by the permanent members of the SC soon revealed the gap that existed between project and reality. The tense and often crisis-ridden relationship between the super-powers rapidly made the realization of the UN peace concept illusory. It is fair to say, however, that the ambitious project to put the entire international system within the framework of the UN has not failed altogether. The flexible mandate of the UN has given it an astounding capacity to adjust itself to new realities making it still useful for advancing international cooperation and dialogue. The reactivation of the UN mechanisms of collective security following the recent changes in the international system is further proof of the usefulness of the organization whenever political circumstances are ripe.

3. The Principles of the UN a) The sovereign equality of all Member States, Art. 2 (1) The principle of sovereign equality of all members of the UN corresponds to one of the central elements of international law. It affirms that States as the main actors on the international stage are endowed with equal rights irrespective of all their factual disparities. According to this principle States as the principle subjects of international law possess the attributes of external sovereignty. They have all essential characteristics of statehood. These consist of three elements of territory, people and an effective government. The principle of sovereign equality finds its


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expression in the fact that each Member State, regardless of its size, has only one vote in the GA. The principle of sovereign equality was only infringed upon by the rule that the permanent members of the SC have the privilege of veto power. In spite of these obvious disparities the principle of equal rights and of the sovereignty of all States remain unchallenged. The system of orderly relations between States based on international law would rapidly break down if one of these structural elements of "sovereign equality" in Art. 2(1) would no longer be respected. The principle of formal equality is severely put to test by the disparities of size and power of different States. Since 1945 further developments have contributed to the erosion of the founding fathers' conviction that the sovereign States are the only decisive players on the international plane. At present, international organizations, religious and political groups, the media as well as economic and social players may exert influence powerful enough to compete with that of States. In addition, two further phenomena come into play today which are eroding the classic concept of statehood. First, the high intensity of international cooperation and secondly, the implosion or the collapse of certain Member States of the UN. The first development can best be exemplified by the advanced forms of integration of States in the regional context such as the European Union (EU). No doubt the principle of sovereign equality looses much of its relevance as the EU in the framework of its common foreign and security policy (CFSP) often speaks with one voice and takes common positions on important issues before the UN. On the other hand, the dissolution of the SU as one of the most important Member States of the UN having a permanent seat in the SC together with other recent cases of state succession in Europe have proven how fast sovereign States may disappear or fundamentally alter their existence. b) The principle of good faith (Art. 2 (2)) The principle of good faith (bona fides) which is considered to be a general principle of international law was introduced into the Charter upon a proposal made at the San Francisco Conference. It underlines the view that the UN and its members have to fulfill their obligations deriving from the Charter honestly and seriously. Outside the Charter the principle of good faith permeating modern international law was reaffirmed explicitly in the Vienna Convention on the law of treaties (Art. 26). The often quoted Friendly Relations Declaration again stressed this principle and thereby made it clear that Member States are bound to meet their obligations not only in a legalistic fashion. The spirit of trust and seriousness, which should prevail in the implementation of international commitments together with the principle of justice included in the Charter, constitutes an

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element of natural law. From a European point of view a comparison may be made between the prescriptions of loyalty and solidarity, which characterize the behavior of Member States in the European Union, which is seen as a community of values. c) The peaceful settlement of disputes, Art. 2 (3) The principle of peaceful settlement of disputes has gained authority in international law to the same extent as the prohibition to use force in international relations. In the Charter it was, therefore, logical to put the principle of the peaceful settlement of disputes above the principle of the prohibition to use force (Art. 2 (4)). According to the present state of law, the obligation enshrined in Art. 2 (3) enjoys general validity irrespective of a State's membership in the UN. In essence the principle obliges States to settle all disputes in which there is a conflict between legal positions and political interests exclusively by peaceful means. The Charter does not prescribe the instrument which has to be chosen for the settlement of disputes by the parties but leaves them the choice of means (see Art. 33 (1)). In the ensuing practice the principle of peaceful settlement of disputes was further developed in a series of declarations and resolutions (cf. the Friendly Relations Declaration, the Manila Declaration on the peaceful settlement of disputes 1982, the Declaration finalized by the Charter Committee in 1988 on the prevention and elimination of disputes and situations which may endanger international peace and security and on the role of the UN in this area). d) The prohibition to use force in interstate relations, Art. 2 (4) The codification of the prohibition to use force in the formulation of Art. 2 (4) can be described as the core provision of the Charter. As the fundamental rule of the UN Charter Art. 2 (4) marks the culmination of the efforts that started in the 20th century to outlaw war as a means to conduct national politics. Important markings on the road to the outlawing of force in interstate relations are the Bryan Treaties concluded in 1912, the Statute of the League of Nations (Art. 10) and above all the Briand Kellog Pact of 1928 which obliged the contracting States in a more comprehensive way than earlier agreements to renounce war as a means of national politics. In order to understand the scope and contents of Art. 2 (4) it is advisable to put this principle in the wider context of the UN as a peace organization for a new era of international politics after WWII. The founding fathers of the UN were deeply convinced that after the two world wars international relations had to be reorganized in a radically new way to prevent once and for all similar catastrophes. They conceived the general prohibition to use force as the foremost rule to be observed in interstate relations. As the only exception to this rule, self-defense


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is permitted in case of armed attacks (Art. 51). The right to self-defense should be exercised only as long as the system of collective security does not come into effective operation. Respect for the prohibition of the threat or use of force thus constitutes the cornerstone of the UN security system. The collective security system under the main responsibility of the permanent members of the SC can be activated only when this basic rule was breached. In that case the collective security system of the UN is called upon to stop the aggressor and to restore international peace (cf. Chapters VII and VIII). Bearing in mind the political realities and with the benefit of hindsight half a century after the establishment of the UN, it would be easy to discard the UN security system as an illusion. The UN, however, deserves credit for having commanded universal recognition of the general rule prohibiting force in international relations which figures among the few precepts considered as ius cogens, i.e. as the most stringent obligation in international law. The term "force" in the meaning of Art. 2 (4) primarily comprises the first use of military force directed against the territorial integrity of a State. The two other criteria mentioned in Art. 2 (4), namely the obligation to refrain from the threat or use of force against "the political independence of any state, or in any other manner inconsistent with the purposes of the United Nations", are more difficult to circumscribe. There is a wide spectrum of possible aggressive behavior, which might be subsumed under these labels. Only most serious state conduct, such as evident cases of destabilization of a state by another state through direct action, are cited in the context of these criteria. In the current practice of the UN, however, the exercise of economic or political pressure which under certain circumstances may also be contrary to international law does not fall within the scope of Art. 2 (4) but is generally rather seen as an infringement of the general rule forbidding intervention. The application of the rule outlawing force does not only cover direct aggression but also its abetting by third States. The most important exception to the prohibition to use force namely the individual or collective right to self-defense in accordance with Art. 51 of the Charter has already been mentioned. For the sake of comprehensiveness the exceptions of Art. 53 (1) and Art. 107 of the Charter relating to the so-called enemy States which today have only historic significance need mentioning. Finally it has to be stressed that an activation of the collective security system of the UN in the form of coercive measures decided by the SC in the framework of Chapters VII or VIII is not to be considered as a violation of the prohibition to use force in the sense of Art. 2 (4). Some conflicts or situations not falling under the category of interstate disputes have raised complex questions of interpretation of this principle. For instance,

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there is no prevailing opinion on the issue whether in cases of grave human rights violations within a state outside military intervention ("humanitarian intervention") without SC authorization is permissible as another exception to the principle enshrined in Art. 2 (4). The recent Kosovo crisis provided a casebook study for the controversial nature of such interventions in the context of the UN collective security system. The debate was similarly heated over the issue of permissibility of military action taken for the protection of a state's citizens in some extreme situations without consent of the territorial state (cf. US military operation to liberate the US Embassy staff in Iran). c) Assistance of the UN by all members, Art. 2 (5) The focus of this provision is on assistance in support of measures decided by the SC under Chapter VII of the Charter, i.e. preventive or coercive action within the collective security system. Art. 2 (5) can be placed in the context of Art. 25, which obliges the members of the UN to accept and to carry out the decisions of the SC in accordance with the present Charter. This needs to be stressed since a cursory reading of the first part of Art. 2 (5) may lead to the conclusion that the obligation is so general in nature that it covers each and every action decided by any organ in conformity with the Charter. Secondly, it has to be clarified that the obligation to assist the organization under this article requires the conclusion of agreements in accordance with Art. 43 of the Charter whenever such measures decided by the SC comprise military action and the contribution of troops. Since to date such agreements have not been concluded the obligation stated in Art. 2 (5) concerning military action has remained theoretical. If, on the other hand, the SC has decided to take coercive measures, for instance in the economic or political field, this Charter provision together with Art. 25 clearly comes into play. Member States are then obliged to give effect in their jurisdiction to the action decided by the SC. The obligation to assist the UN is a corollary of the prescription explicitly stated in the last part of Art. 2 (5) prohibiting assistance to those States, which are made the target of either preventive or coercive measures by the UN. The latter provision seems self-evident since assistance to the UN would be undermined if its members would support those who are the objects of punitive measures imposed by the UN. f) Respect for the principles of the UN by non-members, Art. 2 (6) The provision introduced in the overall interest of peace obliges also non-members of the UN to honor the principles of the Charter. It clearly stands in conflict with the general principle of international law which provides that a treaty does not confer obligations or rights to third States without their consent (Pacta tertiis non


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nocent, cf. Art. 34 Vienna Convention on the Law of Treaties). In view of the fact that by now nearly all States have become members of the UN Art. 2 (6) has practically lost its relevance. g) The principle of non-intervention in internal affairs, Art. 2 (7) The prohibition of intervention in the internal affairs of States, which was, included in Art. 2 (7) as one of the principles of the UN addresses itself to the organs of the world organization. The principle is generally understood, however, to bind not only the organs of the UN but also the States in their mutual relations. The principle of non-intervention determines the outer limits of what is described by international law as the exclusive sphere of domestic jurisdiction, which is free from interference by the UN. Art. 2 (7) makes it explicitly clear that members are not obligated to submit matters falling essentially within their domestic jurisdiction to the authority of the UN. In accordance with the last phrase of Art. 2 (7) the present rule does not, however, restrict in any way the operation of the collective security system as provided by Chapter VII. In the development of the UN reference to the principle of non-intervention as a ground rule of international relations has inspired a number of GA declarations which because of their controversial and contradictory contents have at times contributed to confusion rather than to clarity (cf. Friendly Relations Declaration and the two GA declarations addressing the principle of non-intervention, Res. 2131 (XX) and Res. 36/103). The difficulty in determining what in a given case and under the present circumstances pertains to the exclusive sphere of domestic jurisdiction lies in the fundamental changes of this concept over the last 50 years. As was already outlined in the consideration of Art. 2 (1) the principle of state sovereignty has shrunk significantly with the intensification of international cooperation and the concern of all States with the global problems that transgress national boundaries. Also the development of international law that regulates many more subjects today than it did in 1945 contributes to the shrinking of matters essentially within the domestic jurisdiction of a State. The concern of the international community about serious human rights violations committed inside the territory of a state is an example for this change. According to the prevailing view today criticism about such violations can no longer be put aside as intervention in the internal affairs. As an example for matters which even by present standards fall within the exclusive domestic domain in the meaning of Art. 2 (7) the constitutional system of a state could be cited leaving the choice to the latter whether it is organized as monarchy or republic, as centralized state or as federation.

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The precise determination of the principle of non-intervention is further complicated by the wide spectrum of possible political, economic or other pressures. It requires quite a balanced judgement to distinguish in a concrete case between the exercise of permissible influence and forbidden interference in domestic affairs. Bearing in mind their respective interests the States concerned are rarely in a position to make a fair distinction by them. For these reasons the definition of the exact scope of the principle of non-intervention remains a difficult undertaking always bearing the risk of controversy.

The Organs of the United Nations Ferdinand Trauttmansdorff

Literature: Bailey, The General Assembly of the United Nations, A Study of Procedure and Practice (1960); Rosenne, The Law and Practice of the International Court (1965); Bailey, The United Nations Secretariat, in Luard (ed.), The Evolution of International Organizations (1966); Bertrand, Reporting to the Economic and Social Council, JIU/REP/84/7 (UN Doc. A/39/281 31.5.1984); Finley, The Structure of the United Nations General Assembly: its Committees, Commissions and other Organisms, 3 vols., (1977); Gross, The International Court of Justice and the United Nations, 120-1 Receuil des Cours (1967) 313; Hiscocks, The Security Council: a study in adolescence (1973); Meron, The United Nations Secretariat: the rules and practice (1977); Renninger, Survey and Analysis of Evaluations of the United Nations Intergovernmental Structure and Functions in the Economic and Social Fields (1987) (United Nations, Informal Paper No. 15); Rosenne, The World Court, What it is and how it works (4th ed., 1989); Robert/Kingsbury, United Nations, Divided World (1993); Simma (ed.), The Charter of the United Nations. A Commentary (1994); Fiedler, The Secretariat, in Bruno Simma (ed.), The Charter of the United Nations. A Commentary (1995) 1019; Mosler, The International Court of Justice, in Simma (ed.) The Charter of the United Nations. A Commentary (1995) 973; Boutros-Ghali, "Agenda for Peace", UN Doc. A/47/277-S/24111 (17 June 1992); Jennings, The International Court of Justice after 50 Years, AJIL 89 (1995) 493; Schachter/Joyner, United Nations Legal Order, 2 vols. (1995); Guilleaume, De l'execution des decisions de la Cour Internationale de Justice, Schweizerische Zeitschrift fur Internationales und Europaisches Recht, 4 (1997) 437; Peck/Lee (eds.), Increasing the Effectiveness of the International Court of Justice - Proceedings of the ICJ/UNITAR Colloquium to Celebrate the 50th Anniversary of the Court (1997).

1. Preliminary Remarks - The UN System in General Under the United Nations Charter six principal organs of the UN Organization have been established (GA, SC, ECOSOC, UN-SG/Secretariat, ICJ and Trusteeship Council). Since the organization came into existence, its principal organs, and in some cases also its Member States on the basis of specific international treaties, established secondary organizational structures such as Committees, Commissions, Standing Conferences, Funds, Programs, High Commissioners, different secretarial structures, Offices and Representatives, all commonly referred to as subsidiary bodies of the United Nations. These secondary structures are usually the result of a process of "natural" growth of the organization, whereby some subsidiary bodies developed different degrees of autonomy from the organizational structures originally provided for by the Charter. At the same time, the subsidiary bodies developed certain characteristics regarding inter alia their structure, their degree

Franz Cede and Lilly Sucharipa-Behrmann (eds.), The United Nations - Law and Practice, 25-56 ©2001 Kluwer Law International. Printed in the Netherlands.

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of autonomy from the principal organs and their modes of financing. In the field of maintenance of international peace and security the United Nations, based on its Charter and subsequent practice, assumed de facto a power monopoly under international law. In this field the SC is assigned the primary responsibility under the Charter, whereas the GA assumes a secondary role. In addition, the UN-SG has gradually assumed substantial functions, in particular in the areas of preventive diplomacy and of peace-keeping operations, carried out under the authority of the SC. Some subsidiary bodies as well as UN-sponsored conferences gravitating institutionally around the Committee on Disarmament and the Conference on Disarmament have developed substantial activities in the field of disarmament. The organized economic, social and cultural cooperation at the universal level has been taken over in its substance primarily by Specialized Agencies. In these fields, the principal organs under the Charter, i.e. the GA and, under its authority, ECOSOC and the Secretariat assumed essentially coordination functions. The subsidiary organs established by the principal organs, however, have increasingly also taken over substantial functions in the field of economic and social cooperation. In this regard, the following priority areas may be underlined: • Protection and promotion of human rights including the rights of women and children; such tasks under the universal human rights system are assumed by the Third Committee of the GA, the UN Commission on Human Rights, the UN High Commissioner for human rights as well as by the treaty organs under the different human rights instruments. The area of the promotion of women's rights has developed a distinct institutional profile (see infra Worgetter); • General promotion of the economic and social development; in this field UNDP acts as the principal operative branch of the UN. UNICEF assumes the key role in the universal promotion of children, including the immediate care for survival, relief and subsistence of children. The World Food Program (WFP), too, is increasingly involved in survival and relief assistance, besides its tasks in the field of long-term development. The Conference on Trade and Development (UNCTAD) has, over the years, developed intensive conference activities in the field of development related trade policy, however with limited operative effect. The Population Fund (UNFPA) focuses its substantial financial means and activities on the financing of programs concerning population control in development countries as well as on analysis, counseling and information in this field;

The Organs of the United Nations

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• Humanitarian assistance and refugee protection; the High Commissioner for Refugees and her office in Geneva (UNHCR) has achieved a pivotal role in this field on the universal level. After several other attempts to create separate institutional structures for universal disaster relief and prevention, the Office of the Coordinator for Humanitarian Affairs (OCHA), a department within the Secretariat, has assumed the task to coordinate humanitarian assistance including disaster and emergency relief within the UN system; • Crime prevention and drug control; this is obviously a growth-sector within the UN activities for which the Commission on Narcotic Drugs and the Commission for the Prevention of Crime and Criminal Justice constitute the institutional center. The Commissions are supported by the Vienna-based Office for the Drug Control and Crime Prevention Program; • In the field of regional economic cooperation, the UN has established regional commissions: one for Europe (ECE), two for Asia (ESCAP and ESCWA), one for Africa (ECA) and one for Latin America and the Caribbean (ECLAC). In practically all of the above-mentioned fields of activities, the UN, since its inception, has achieved substantial results in the codification and the progressive development of international law and in fostering the legal cooperation and harmonization between Member States. Already since the early years of the UN, the peaceful use of the outer space constituted a major goal of the UN-based cooperation, again with a particular view to the codification of the international law regulating the use of the outer space; the UN Committee for the Peaceful Use of the Outer Space (COPUOS), supported by the competent Vienna based units of the UN Secretariat, acts as central body for the UN activities in this field. A number of subsidiary bodies are active in the fields of internal coordination and organization as well as on issues of budget and personnel. Among the most important subsidiary organs in this field of activities the following should be mentioned: The Fifth Committee of the GA, the Administrative Committee for Coordination (ACC) which comprises under the Chairmanship of the UN-SG the chief executives of the Specialized Agencies and is therefore sometimes referred to as the "government of the UN system", the Advisory Committee on Administrative and Budgetary Questions (ACABQ), the Committee for Program and Coordination (CPC), the Committee on Conferences (CC), the Joint Inspection Unit (JIU), the Administrative Tribunal of the UN (UNAT), the Board of Auditors and the USG acting as "Inspector General" for internal oversight (Office of Internal Oversight Services - OIOS).

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2. The General Assembly a) Legal basis Composition, powers and voting procedures of the GA are regulated in: Chapter IV (Art. 9-22), special functions and powers: Art. 4-6 (Membership), Art. 23 (election of non-permanent members of the SC), Art. 24 (review of the annual report of the SC), Art. 35 (role in the settlement of disputes according to Chapter VI), Art. 60,61,64,66 (functions related to ECOSOC), Art. 63 (approval of agreements with Specialized Agencies), Art. 85-88 (functions in the trusteeship system), Art. 93,96 (functions regarding the ICJ), Art. 97 (appointment of the UN-SG upon recommendation of the SC), Art. 98 (report of the UN-SG), Art. 101 (adoption of the Statute of the members of the Secretariat), Art. 105 (privileges and immunities), Art. 108, 109 (amendments to and review of the Charter). Furthermore: "Uniting for Peace" - Resolution [GA Res. 377 (V)], which attributes subsidiary powers to the GA in case of a stalemate in the SC; rules of procedures of the GA according to Art. 21. b) General remarks All members of the UN are represented in the GA (Art. 9 (1)). Furthermore, there are various ways in which also non-members, Specialized Agencies, other intergovernmental organizations and national liberation movements may participate in the work of the GA. All members participate in the work of the GA on an equal level, i.e. each has one vote, independent from its size and political influence (Art. 18(1)). This provision is based on the principle of sovereign equality of states and on the democratic principle. The functions and powers of the GA under the Charter include the right to discuss all questions and matters within the scope of the Charter or relating to powers and functions of any organ provided for in the Charter (Art. 10). The GA, thus, is empowered to deal with any matter regarding the objectives of the UN embodied in Art. 1, its principles (see supra Cede, "Purposes and Principles") or any function of organs within the scope of the Charter. There remain only few conceivable international matters, which would not fall under the broad powers of the GA to discuss matters of international concern. The GA is therefore the only intergovernmental organ being assigned de facto universal and comprehensive powers to take up any international matter. The GAhas, however, no powers to adopt binding resolutions or decisions which would correspond to the comprehensive right to discuss matters. On the basis of the Charter, the GA has the right to adopt only recommendations in all matters under its competence. But Art 12 (2) restricts this competence too. The importance


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of this restriction, which suspends the right of the GA to make recommendations regarding disputes and situations under consideration by the SC, has, however, been substantially reduced in practice: the SC has not insisted on the curtailment of the powers of the GA vis-a-vis the SC as provided for in the Charter in the field of the maintenance of international peace and security. Besides the comprehensive right to discuss matters the GA is also empowered to initiate studies and make recommendations in matters concerning international cooperation including the promotion of human rights and the codification and progressive development of international law (Art. 13(1)). The recommendations adopted by the GA are as such not binding under international law. Resolutions and decisions by the GA, which adopt budgetary, administrative and other internal regulations create, however, legally binding effects. Thus, the resolutions and decisions of the GA in the exercise of its budgetary powers are legally binding. By approving the budget (Art. 17(1)) and by fixing the apportionment of the expenses to be born by the members (Art. 17 (2)) the GA creates the legal obligation for members to bear the share of the expenses attributed to them by the GA. (See infra Schlesinger.) Decisions by the GA in the exercise of its organizational powers according to Art. 97 are also legally binding. (Appointment of the UNSG upon recommendation by the SC.) Although the recommendations made by the GA do as such not have legally binding force, resolutions of the GA which restate and thus confirm certain legal opinions over a longer period of time without persistent objection have, in the light of existing State practice, indeed legally binding effects under international law despite the lack of formal powers of the GA under the Charter to adopt acts creating legal obligations for members. The GA adopted, furthermore, declarations regarding certain essential international matters, which established basic rules for the community of states. Their legally binding character is not uniformly accepted. It can, however, be hardly denied that the "Universal Declaration on Human Rights" of 1948, the so called "Declaration on Decolonization" of 1960 and the "Declaration on the Principles of International Law concerning the Friendly Relations and Co-operation between States" of 1970 are instruments, which, given their sustainable effect on State behavior and their "restatement" of international legal norms, obviously have international legal effects. In the field of codification and progressive development of international law, also a task assigned to the GA by the Charter, the GA, too, went beyond the mere adoption of recommendations and assumed de facto the function of international diplomatic State Conferences to adopt texts of international conventions (including the Convention on the Safety and Protection of UN Personnel, Convention against Terrorist Bombing, Convention on the Non-navigational Use of International Water Courses).

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c) Working methods and procedures of the GA aa) General remarks Decisions concerning certain items on the GA's agenda are often taken by the plenary without direct preparation by a main committee. This concerns mainly such agenda items, which are considered as agenda items of political priority and are therefore taken up directly by the plenary (inter alia questions concerning the Middle East, reform of the SC, consideration of reports by the ICJ and the International Criminal Tribunals on Yugoslavia and Rwanda). Drafts by the Main Committees are the basis for the overwhelming majority of GA resolutions. The GA approves, usually without changes, the texts of resolutions adopted by the Main Committees and attached to their reports to the plenary. Within the Main Committees there is a tendency, although not uniform, to adopt resolutions to the extent possible by consensus (without vote). Particularly in the Sixth Committee, which focuses on the adoption of international legal instruments on the basis of broad acceptance by the Member States, the consensus method is applied as a matter of principle, i.e. decisions are adopted usually without a vote. The Fifth Committee, which deals with administrative and budgetary questions, also as a matter of principle does adopt its decisions by consensus. The same is true for the Second Committee. The regular sessions of the G A start in the month of September and usually last until middle of December. During the last years, the Sessions, have, as a rule, resumed after the beginning of the new year, and have taken until the beginning of the next Session in the following September. The essential part of the work, however, is carried out between the beginning of the Session and Christmas. During this period the Main Committees, which usually present their reports including the annexed draft resolutions to the plenary for adoption, are in session. The Fifth Committee usually meets in "resumed sessions" during the entire year. Special sessions of the GA are convoked by the UN-SG upon request by the SC or by the majority of the members of the GA. Until June 2000, 23 such special sessions have taken place and have usually dealt with most relevant subjects (so for instance the 20th Special Session against the Use of Narcotic Drugs or the 23rd Special Session on Women 2000). By adopting the "Uniting for Peace Resolution" [GA Res. 377 (V)] the GA has created the possibility, in case of emergencies, to convoke the GA within 24 hours to hold an Emergency Special Session. The UN-SG convokes such sessions upon request of (any) nine members of the SC or by the majority of the GA. So far 10 such emergency special sessions have taken place, the last after a pause of 16 years on the situation in the occupied Palestinian territories.


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bb) Voting procedure In the GA every member has one vote. In the voting procedure, a distinction has to be made according to Art. 18 between "important" and "other" questions. Important questions require a two-thirds majority whereas other questions are voted upon by simple majority. Anon-conclusive listing of "important" questions is contained in Art. 18 (2). These include for instance the admission of new members, the election of non-permanent members of the SC and recommendations regarding the maintenance of international peace and security. With simple majority, the GAcan determine also other groups of questions to be "important" under Art. 18. The vast majority of resolutions and decisions are in practice adopted by consensus, i.e. without formal vote. In such cases, negotiations on a draft resolution continue until it can be expected that no delegation will ask for a formal vote. Sometimes the members vote only on certain provisions of a draft resolution in order to give member delegations the possibility to express their acceptance, rejection or abstention towards these provisions. The votes on the specific provisions may in such cases often differ from the position taken on the resolution as a whole. d) The subsidiary bodies of the GA aa) The main committees Until its 48th session the GA maintained seven main committees. By Res. 47/ 233, however, the GA reduced the number of main committees to six by merging the Special Political Committee with the 4th Committee, which, until then, dealt with issues concerning decolonization. The six main committees cover the principal fields of activity by the GA. The First Committee deals with disarmament and questions of international peace and security. The Special Political Committee focuses on certain political issues and on the remaining questions concerning the decolonization process, as far as they are not directly taken up by the plenary. Furthermore, the agenda of this Committee includes items like outer space issues and questions concerning information. The Second Committee covers economic, financial, development and environmental issues. The Third Committee deals with social, humanitarian and cultural questions. The lion's share of the work of this Committee is usually dedicated to human rights issues on the basis of the activities in particular of the Commission on Human Rights in Geneva and of ECOSOC. The Fifth Committee is, besides the Standing Committees ACABQ and Committee on Contributions, the main body of the UN dealing with administrative

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and budgetary questions. The agenda of the Sixth Committee contains issues of international law and other legal questions, in particular the codification and progressive development of international law. This Committee closely cooperates with the International Law Commission (ILC). Furthermore, the GA maintains a number of other subsidiary organs, the work of which flows in its majority directly into the work of the main committees. These organs in their overwhelming majority are established as standing bodies but may also be established as ad-hoc-committees with a limited existence only for certain sessions or for certain specific tasks. bb) Procedural Committees The GA maintains two Procedural Committees for every session: The General Committee plays a key role in steering the work of the GA. It consists in the President of the GA, its 21 Vice Presidents and the Chairpersons of the six main committees. The General Committee inter alia prepares the provisional agenda of the GA Session, designates priority items and advises the president of the GA on the organization and management of the work of the entire session. The main committees in turn maintain bureaus for the advice to their chairpersons, which include three Vice-Chairpersons and a rapporteur. Despite its importance for the work of the GA, the General Committee has usually only limited political influence, since most of the important decisions on the organization of work of the GA are submitted to it on the basis of consultations, which its president is carrying out with the most important political and regional groups among the members. The Credentials Committee as the second procedural Committee has the mandate to examine the credentials and full powers of the delegations. It assumes special relevance only if objections are raised against the participation of certain delegations and representatives on legal or political grounds. cc) Standing Committees The Standing Committees advise the GA on its administrative and budgetary functions according to Art. 17 of the Charter. The Advisory Committee on Administrative and Budgetary Questions (ACABQ) plays a key role in all budgetary questions and the related administrative, organizational and personnel issues also in the important field of peace-keeping operations. The 16 members of the Committee are elected by the GA upon proposal by the Fifth Committee and have to include at least three internationally renowned financial experts. Given the inherent authority of the Committee, its reports exert a major influence on budgetary decisions by the GA. As far as substance is concerned, its work is closely connected


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to the work of the Fifth Committee. The second Standing Committee, the Committee on Contributions; also plays an important role in assessing and apportioning the contributions by members. This Committee also has a primary advisory function for the application of the politically sensitive procedure for the suspension of the voting rights of members according to Art. 19 in case of arrears in contributions.

3. The Security Council a) Legal basis The SC, its powers and functions is by far the most extensively regulated field within the Charter: Chapter V (Art. 22-32, general provisions), Chapter VI (Art. 33-38, peaceful settlement of disputes), Chapter VII (Art. 39-51, measures with respect to threats to the peace, breaches of the peace and acts of aggression), Chapter VIII (Art. 52-54, regional arrangements), Art. 83 (functions of the SC in the trusteeship system); further special provisions: Art. 4-6, 7,10-12, 15, 18, 20, 65, 93,94,96,97-99,106, 108,109 as well as Art. 4,7-15, 35,41 and 69 of the Statute ofthelCJ. b) General remarks, powers and functions The SC as further principal organ holds a singular position within the organized State community. According to Art. 24 of the Charter it is assigned the primary responsibility for the maintenance of international peace and security: no other body within the community of states and also no State has comparable authority and functions. In order to fulfill these functions, the Charter assigned to it a number of political functions and powers, which are to be considered as extraordinarily far reaching, given the traditional reticence of states to transfer parts of their sovereignty to an intergovernmental authority. In order to be able to assume its primary responsibility, the Charter has given the Council step-by-step tools reaching from the peaceful settlement of disputes (Chapter VI) (see infra Neuhold) until

the coercive measures of collective security (Chapter VII) (see infra FreudenschuG). Furthermore, this system also provides for the possibility to make use of "regional arrangements" (Chapter VIII) for regional activities in the service of peace under the authority of the SC. Given the changes in world politics, the UN practice, over the years, has developed a concept of maintenance of international peace and security which deviates somewhat from the system provided for by the Charter. Typical for this fact is the development of the practice of PeaceKeeping Operations which as such are not provided for in the Charter. (See infra Sucharipa-Behrmann.)

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In a "dynamic" phase after the fall of the iron curtain, the SC has used alternative methods in order to carry out coercive military measures short of the full implementation of the system of collective security, which would have required the conclusion of agreements on making available military forces according to Art. 43 of the Charter. These methods have been used towards the former Yugoslavia, Somalia, Rwanda and Haiti. Art. 42 second sentence (operations using military forces by members), Art. 48 (implementation of the decisions of the SC according to Chapter VII immediately by members or by making use of appropriate international agencies) and Art. 51 (right to self defense) of the Charter are considered to provide the legal basis for such alternative possibilities of military operations of the 1990s under the "mandate" by the SC although this legal basis is in the practice of the SC, who merely generally refers to "Chapter VII", not clearly specified. The SC obviously reached the limits of its powers under the Charter by creating the two Criminal Tribunals for the prosecution of War Crimes in the Former Yugoslavia (1993) and Rwanda (1994). Here, too, the SC referred without further specification to "Chapter VII" of the Charter, evidently based on the idea that the establishment of the tribunal constituted a contribution to the restoration and maintenance of world peace and international security. The SC, furthermore, has the possibility to activate the use of "regional arrangements" for the maintenance of peace as well as for measures of so called "peace enforcement". Although not specifically defined in Chapter VIII of the Charter regional organizations such as the OAU for Africa, the OAS for the Americas, ASEAN for East Asia, the OSCE and the EU for Europe will have to be considered typical for such regional arrangements. Whether NATO is to be considered as such an arrangement is in dispute. NATO itself does not accept such characterization. In the Agenda for Peace of 1992, which has been elaborated under UN-SG Boutros Boutros-Ghali, the functions of the SC under Chapter VI to VIII of the Charter are described in detail with particular regard to the long-standing practice of Peace-Keeping Operations and the extended application of the Chapters VII and VIII made possible by the changes in world politics after 1989. According to this program the concept of peace-keeping shall rest on four pillars: preventive diplomacy (primarily task of the UN-SG), peace-making (Chapters VI and VII), peace-keeping measures and peace-building and peace consolidation after a conflict. To the extent as changes in world politics do not lead again to a mutual blocking in the SC by making use of the veto by its permanent members, this program describes a broad spectrum of options, which a "new" SC may exhaust based on a dynamic interpretation of its functions and powers under the Charter. (See infra FreudenschuB.) According to Art. 94 (2) it is the task of the SC to make sure that judgments of


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the ICJ are given effect, if a party is not abiding by them. The SC, however, has so far not taken any specific action in this regard. (In the case of the judgment of the ICJ on Nicaragua, action by the SC giving effect to this judgment has been blocked by a veto of the United States.) Apart from its political functions, the SC, in cooperation with the GA, also assumes internal functions within the organization. Thus, the SC has a right to initiative under the Charter by making recommendations to the GA concerning admission of new members (Art. 4), suspension of membership (Art. 5), the expelling of members (Art. 6) and the election of the UN-SG (Art. 97). The SC, furthermore, plays a role in the election of members of the ICJ and of the members of the two criminal tribunals, established by the SC for the former Yugoslavia and Rwanda. According to Art. 4 -14 of the Statute of the ICJ, its members are elected by a special procedure, which provides for election jointly by the GA and the SC with separate votes. For the election of the judges of the two criminal tribunals, the SC establishes a shortlist among the candidates from which the GA selects the judges. c) Composition Initially, the SC had 11 members, five permanent members and six non-permanent members. Taking into account the drastic enlargement of the membership of the UN, an amendment to the Charter entered into force 1965, according to which the number of non-permanent members has been raised to ten (Art. 23). At the same time different majority requirements have been introduced (Art. 27, Art. 109). The permanent members are China, France, Russia (successor of the USSR), the United Kingdom and the United States of America. The GA elects non-permanent members for two years with a two-thirds majority requirement (Art. 18 (2)). Each year half of the non-permanent members are replaced. The criteria for the election of members of the SC, which have been laid down in Art. 23 (1) of the Charter were replaced in 1966 by political and geographical preferences, which, in 1966, led to the obligatory distribution of seats according to regional criteria: Five seats are attributed to the Afro-Asian group, two for the Latino-American, two for the Western European and others (WEOG) and one for the Eastern European group. The debate on the reform of the SC, which was repeatedly taken up since then, focused on the enlargement of the number of permanent seats in the SC (including for instance Germany and Japan and corresponding countries of Asia, Africa and Latin America and the Caribbean) and on an increase of the number of nonpermanent members. All concrete proposals brought forward in this regard have so far not been successful. (See infra Proidl.)

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d) Decision-making and procedures Decisions by the SC are, according to Art. 25, binding for the UN members to the extent as such binding force is provided for in the Charter. (This, however, does not apply for recommendations of the SC.) Art. 103 further provides that obligations under the Charter have precedence over any treaty obligations. This means that also binding decisions of the SC are prevailing over any treaty obligations of the members. These provisions are, in the history of the organized international relations, all the more noteworthy, since these extended powers have been conferred upon a body which has only a limited number of members vis-a-vis a quasiuniversal membership. Since the foundation of the UN, the great powers existing after the Second World War have preserved their privileged position in protecting their interests on the one hand by anchoring their permanent membership in the Charter and on the other hand by safeguarding it through the veto-power (Art. 27 (3)). Concerning the exercise of the veto-power, the Charter distinguishes between decisions on procedural questions (requiring according to Art. 23 (2) only the consent of any nine members) and "other questions". All "other" questions require, for a valid decision, strictly speaking the consent of nine members including all permanent members. This strict requirement has been moderated by the practice that a decision is also valid, as long as no permanent member is voting against. Abstention or absence of a permanent member does not hinder a decision. The permanent members of the SC claimed the right to make use of their veto power also for decisions on whether a question is to be qualified as constituting a procedural or "other" question according to Art. 27 (2) ("double veto"). In some cases, a ruling of the president of the SC that a certain issue is to be qualified as procedural question has circumvented the double veto. Such a ruling could subsequently only be overruled by a majority of nine votes. The president of the SC calls the meetings of the SC. He is thereby acting upon request by any member of the SC, any other member of the UN or upon request by the SC as a whole, the GAor the UN-SG. The Council meets in ordinary, extraordinary, urgent and informal meetings. The number of meetings of the Council has substantially increased during the last two decades, whereby the meetings, particularly during the last years, have been held primarily as informal consultations without access for the public. Formal resolutions and decisions, however, are regularly adopted in public meetings. In the UN practice during recent years, press statements, concerted among all members of the SC, have gained increasing significance. The number of such expressions of the opinion of the SC is today higher than the number of adopted resolutions, although the latter are, in principle,


37

the form of decision making based on the Charter. Thus, de facto a certain hierarchy among decisions and other expressions of opinion by the SC has gradually been established. e) Subsidiary organs The SC established a number of subsidiary organs according to Art. 29. The Military Staff Committee according to Art. 47 is composed by the chief of staffs of the permanent members of the SC. The Committee was conceived by the Charter as organ advising the SC in all military matters under its responsibility, but it was, thus far, not able to fulfill this mandate. Furthermore, the SC has established three standing committees in order to deal with procedural matters: these are the Committee of Experts on the Rules of Procedure, the Committee on Council Meetings away from the Headquarters (which take place only rarely) and the Committee on the Admission of New Members for the preparation of recommendations according to Art. 4 (2). Furthermore the SC regularly establishes ad hoc committees for certain functions such as the committees for the monitoring and implementation of sanctions adopted by the SC (Sanctions Committees) or special commissions such as the Special Commission to Oversee Certain Disarmament Measures against Iraq (UNSCOM), the UN Compensation Commission for Iraq (UNCC) and the International Commission of Inquiry on monitoring the enforcement of the arms embargo in Rwanda. The two Criminal Tribunals on the prosecution of war crimes in the former Yugoslavia (ICTY) in The Hague and Rwanda (ICTR) in Arusha constitute a new generation of further special organs created by the SC. As much as these bodies may have been disputable as far as the proper legal authority of the SC under the Charter for their establishment is concerned, the significance of their creation is fully recognized by the international community. The start of the activities of the two tribunals has doubtlessly contributed to the progressive development of the concept of an international criminal regime and has evidently also exerted a very positive influence on the elaboration of the Statute of the International Criminal Court (Rome 1998). In the course of the practice of the SC to launch peace-keeping operations a number of new subsidiary organs of the SC have been established, since these operations have either been instituted as subsidiary bodies of the SC according to Art. 29 or as subsidiary bodies of the GA according to Art. 22. (See infra SucharipaBehrmann.)

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4. The Economic and Social Council a) Legal basis UN Charter: Chapter IX - Art. 60 in conjunction with Art. 55-59 (functions of the UN in the field of international economic and social cooperation - definition of contents of the functions of ECOSOC under the authority of the GA); Chapter X, Art. 61-72 (composition, functions, voting, procedure); further special provisions Art. 7, 15,18,91,96,98,101. Resolutions of the GA: amendment of Art. 61 concerning the enlargement of membership from initially 18 to 27 by GA Res. 1991 B (XVIII) (1963) and finally to 54 by GA Res. 2847 (XXVI) (1971) - entering into force 12 December 1973. The latter resolution also determined the geographical distribution of seats. b) Composition and role of ECOSOC within the UN system The ECOSOC is composed of 54 members, which are geographically distributed as follows: 14 Africa, 11 Asia, 10 Latin America and the Caribbean, 13 Western Group (WEOG) and 6 Eastern European states. The duration of membership is three years. Although neither established in the Charter nor otherwise legally determined, the permanent members of the SC are de facto permanently represented in ECOSOC. The non-members of ECOSOC may participate in the work of ECOSOC as observers without the right to vote. Upon request they may also participate in the debate. As opposed to the GA and the SC, ECOSOC does not act in its own authority in the fulfillment of its functions. According to Art. 60, ECOSOC is responsible for the discharge of its functions under Chapter IX only concurrent with the GA and under its authority. According to Art. 66, ECOSOC, in addition to its "original" functions under the Charter, is also responsible to carry out functions falling under its competence in connection with the implementation of recommendations adopted by the GA. With authorization by the GA ECOSOC may furthermore carry out functions upon request by members of the UN or by UN Specialized Agencies. The GA is finally given the authority to assign functions to ECOSOC additional to the functions under the Charter. The relationship between the two principal organs GA and ECOSOC, which the Charter otherwise left somewhat undetermined is, thus, a hierarchical one. In practice, the relationship between the two organs in carrying out their functions in the economic, social and cultural field shows a high degree of flexibility. The lack of clarity in regard to the relationship between the two bodies and the distribution of functions among them has, however, also contributed to the fact that ECOSOC, since the foundation of the UN, has repeatedly been the focus of discussions on


39

institutional reform. The unclear distribution of functions, the overlapping of activities of the GA and ECOSOC together with a certain organizational jungle regarding the subsidiary organs established by both organs, have repeatedly been rightfully criticized in the past. c) Working methods Since 1991, ECOSOC only holds one substantial session instead of the previous two. This session, which since 1996 (GARes. 50/227 (1996)) has been reduced to a duration of four weeks and which is held alternatively in New York and in Geneva during the month of July, is cut in "segments". A "high-level segment" - in principle on the level of ministers - is followed by a segment on coordination, a segment for operational activities, a segment for humanitarian affairs and a general segment. As a consequence inter alia of the open distribution of functions between GA and ECOSOC, the latter has in practice assumed the role of a preparatory body for the GA in which the questions to be dealt with by the Second and Third Committee of the GA are prepared. This, first of all, reduces somewhat the institutional weight of the Council, which has been perceived as a principal organ under the Charter. As far as the effects of the activities of the UN in the area of competence of ECOSOC is concerned, it is in practice rather irrelevant, whether decisions are taken by the GA or ECOSOC, since both organs can in principle, only adopt recommendations and the budgetary competence lies anyway clearly with the GA. The discussions concerning the distribution of functions between the two organs have therefore rather an institutional than a practical significance. Furthermore, the distribution of seats in ECOSOC usually reflects widely on the majority relationships in the GA. It is also to be noted that the group of persons dealing in New York and Geneva as well as in the capitals of the members with issues on the agenda of ECOSOC on the one hand and of the Second and the Third Committee of the GA on the other, is to a wide extent practically identical. It is, therefore, not astonishing that the decisions of ECOSOC are in most of the cases endorsed without change in substance, when being treated by the GA. ECOSOC was never capable to develop its own authority under the Charter to such an extent as to emancipate itself from the tutorship of the GA. A possible explanation for this fact may be that the developing countries, despite corresponding majority relationships in both bodies, may feel to be better represented in the GA. d) Functions and area of activities On the basis of Art. 62 (1), ECOSOC, within the economic, social, cultural, educational and health and related domains, is active in the following particular fields:

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The council serves as central discussion forum for economic and social matters and elaborates recommendations to the Member States. In this regard, it regularly makes ample use of its competence to initiate inquiries and reports concerning different groups of questions. Its recommendations are addressed to the GA, the Member States or the Specialized Agencies concerned (Art. 63 Its competence to make recommendations also in the field of the promotion of the respect for, and observance of, human rights and fundamental freedoms serves as basis for the human rights system of the UN which, in the meantime, has reached considerable dimensions. The Human Rights Commission, which has been established as subsidiary body of ECOSOC, and the units of the Secretariat linked to it, have taken over an essential part of the substantial UN activities in the field of human rights. (Art. 63 (2)). (See infra Strohal.) Afurther function of ECOSOC is the drafting of multilateral agreements to be presented to the GA (Art. 63 (3)). The council thereby makes use of its powers to delegate this function to its subsidiary bodies or to diplomatic State conferences or to request the UN-SG to provide services on certain matters. Since the GA and the Specialized Agencies have corresponding powers in these fields, coordination is required. A substantial share of the international conference diplomacy of the UN is also essentially based on the competence of ECOSOC to call international conferences on governmental and non-governmental level. (Art. 62 (4)). This, too, requires coordination particularly with the GA and the Specialized Agencies. To facilitate such coordination, the GA has, inter alia, established the Committee on Conferences with the task to coordinate the conference schedule within the UN system. According to the Charter, the council was also assigned a coordination and supervisory function vis-a-vis the Specialized Agencies. So, subject to approval by the GA, it may conclude agreements between the UN and Specialized Agencies in order to regulate the relations among them (Art. 63 (1)). The conclusion of such an agreement is the precondition for an intergovernmental organization to become a specialized agency of the UN. ECOSOC may agree with such agencies to provide it with regular reports on their measures to give effect to recommendations adopted by the GA and ECOSOC. According to the Charter, the instruments offered to ECOSOC for the discharge of its coordination function towards Specialized Agencies consists in consultations with the organizations as well as in recommendations to them,


41

the GA and the members of the UN (Art. 63 (2)). Given the degree of institutional self-reliance of the Specialized Agencies and the dynamics of their own activities, the actual influence of ECOSOC on their programs is in fact relatively limited. To the extent that ECOSOC examines reports by Specialized Agencies, it, however, facilitates the inter-agency flow of information, which may indirectly influence also the decision making of the relevant organs of these agencies. • In the relationship between ECOSOC and the SC, the functions of ECOSOC according to Art. 65 have not, inspite of recent attempts by the Italian ECOSOC presidency in 1999, gained particular significance, neither as far as the furnishing of information by ECOSOC to the SC nor as far as the providing of assistance to the SC is concerned. • Particularly in connection with the work of the UN in the field of human rights and other questions concerning social, humanitarian relief and well fare questions, the work of non-governmental organizations (NGOs) gains ever increasing relevance and influence. Art. 71 provides for the right of ECOSOC to make arrangements with non-governmental international as well as, after consultations with the Member State concerned, also national organizations regarding the assignment of a consultative status of such organizations. Such status is valuable to such an organization, since they are thus institutionally included in the work of the UN (inter alia by gaining access as observers to the meetings of the different organs of the UN) and, as a consequence, may gain world-wide recognition and publicity. Since the Charter does not contain specific provisions in this regard, ECOSOC has provided the legal basis for the granting of consultative status by way of resolutions. (See infra KepplerSchlesinger.) e) The subsidiary bodies of ECOSOC Art. 68 provides for the establishment by ECOSOC of commissions as may be required for the performance of certain of its functions, among which the economic and social questions and the promotion of human rights are particularly underlined. In the exercise of this function the council established a considerable number of Commissions and in addition also further subsidiary organs in accordance with Art. 7 (2). Nine functional commissions as well as five regional commissions have been established as commissions in the strict sense of Art. 68. To be clearly distinguished from the subsidiary bodies of ECOSOC are the Specialized Agencies and the relatively autonomous special programs and

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The United Nations

special funds of the UN. The council receives reports from Specialized Agencies on the basis of special relationship agreements, concluded with them according to Art. 63, and from recognized programs and funds on the basis of the relevant founding instruments. The following most important groups of subsidiary organs should be mentioned: Functional Commissions: • Commission on Human Rights (CHR): as far as the volume of the matters falling within the competence of the Commission and also its subsidiary organs is concerned, the Commission is to be considered the most important subsidiary organ of ECOSOC; it acts as institutional Center of the entire human rights system of the UN. (See infra Strohal.) • Commission on the Status of Women (CSW): most important body of the UN dealing with questions concerning the advancement of women. (See infra Worgetter.) • The two functional commissions which are located in Vienna, the Commission on Narcotic Drugs (CND) and the Commission on Crime Prevention and Criminal Justice (CCPJ) deal with an area of ever increasing significance given the mounting requirements for coordination and codification of international instruments in these fields. (See infra Mayrhofer-Griinbiihel.) Five additional Commissions deal with aspects of development: 9 Commission on Sustainable Development (CSD). (See infra Loibl.) • Commission on Social Development (CSocD). • Commission on Science and Technology for Development (CSTD). (See infra Glanzer.) • Commission on Population and Development (CPD). (See infra FreudenschuB-Reichl.) • Statistical Commission. Regional commissions: • Economic Commissions for Europe (ECE), for Africa (ECA), for Latin America and the Caribbean (ECLAC) as well as the two Economic and Social Commissions for Asia and the Pacific (ESCAP) and for Western Asia (ESCWA). (See infra Glanzer.) The Commissions as well as the subsidiary bodies established by them constitute the regional centers for the economic, social and technical activities of the UN. They have elaborated numerous instruments which concern the daily life of people such as inter alia technical


43

standards, traffic rules and traffic signs, matters concerning public transport and regional energy policy. They belong to the most efficient institutions of the UN for the development of the well being and standard of living in the Member States.

5. The Trusteeship Council a) Legal basis Chapter XIII of the UN Charter (Art. 86-91) contain rules regarding institutional aspects of the Trusteeship Council (TC); Chapter XII (Art. 75-85) is regulating the International Trusteeship System as a basis for the activities of the TC; Chapter XI defines the obligations of the Member States vis-a-vis the non-sovereign territories. Further provisions are contained in Art. 7, 15, 16, 18, 96 (2), 98 and 101(2). b) Historical significance On 1 October 1994 the last remaining Trusteeship territory, the island republic of Palau, was granted independence. This act terminated the last existing trusteeship agreement. The trusteeship system of the UN, which represents a continuation of the system of mandates under the League of Nations, has thus come to an end. This also constituted the implementation of the last actual function of the TC under the Charter. According to its rules of procedure, which have been revised for the last time in 1994, the TC shall also meet in the future if circumstances so require. Its significance as principal organ of the UN has, however, been lost. Recently, some initiatives within the framework of the GA have envisaged a transformation of the TC and an assignment of new functions to it. These efforts, so far, have not led to any concrete results. The TC had achieved substantial relevance as administrator of the Trusteeship System particularly during the first two decades of the UN's existence. It should, however, be noted that the TC, according to Art. 87 under the authority of the GA, has only assumed certain functions in connection with the administration of the Trusteeship System and the trusteeship agreements concluded under Art. 79 UNC. The following territories have been included in the system: • the mandate territories under the League of Nations, which existed at the time of the entering into force of the Charter (originally 11 territories); • territories, which have been separated from the enemy states as a consequence of World War II (Somalia);

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• territories, which were to be voluntarily submitted to the Trusteeship system (did not achieve any significance in practice). The functions of the TC under the International Trusteeship System are to be distinguished from the process of de-colonization. The latter is based on Chapter XI of the UN Charter and the obligations for the Member States contained in it. The GA (Fourth Committee) has carried out the functions relating to this Chapter. The process of de-colonization, based on the Declaration on the Granting of Independence to colonial countries and peoples of 14 December 1960, has been practically completed as well.

6. The Secretariat a) Legal basis Chapter XV of the UN Charter (Art. 97-101), further Art. 7 (organs of the UN), Art. 12 (obligation of the UN-SG to report on questions concerning international peace and security), Art. 20 (calling of extraordinary sessions of the GA by the UN-SG), Art. 73 lit. e (functions relating to trusteeship territories), Art. 102 (registration of treaties), Art. 105 (privileges and immunities of the staff members of the Secretariat), Art. 110 (information on ratification of the Charter). In addition, the GA has, in accordance with Art. 101 (1), to adopt regulations for the appointment of staff members of the Secretariat. In practice Staff Rules have been established on the basis of Staff Regulations, which have been adopted by the GA. Later, these rules have been repeatedly adapted. b) General remarks According to Art. 79, "the Secretariat" is a further principal organ of the UN. It is composed of the UN-SG and the necessary staff. Thus, the UN-SG is formally part of "the Secretariat" and represents the top of its hierarchy. Art. 97 expressly attributes to the UN-SG the function "chief administrative officer" of the UN organization. The Charter is, however, not sufficiently clear on the relationship between the Secretariat and the UN-SG. Since the UN-SG is on the one hand part of the Secretariat and chief administrative officer of the organization and since the Secretariat acts, on the other hand, as Office of the UN-SG in the discharge of his functions, in practice the UN-SG and the Secretariat cannot be separated from each other. Furthermore, given the monocratic structure of the Secretariat with the UN-SG at its top, it clearly appears that the activities of the Secretariat are falling within the area of responsibility of the UN-SG. The Secretariat is hierarchically structured, i.e. all positions of members of


45

the staff derive their powers from the UN-SG and have to report to him. According to Art. 101 (1), the UN-SG appoints members of the staff in accordance with guidelines established by the GA. In 1997, for the first time, a Deputy SecretaryGeneral has been appointed in order to assist the UN-SG in the discharge of his functions and in order to assume a key role for coordination within the entire UN system. The Secretariat structure consists of offices and departments, which are headed by either an Under Secretary-General (USG) or an Assistant Secretary-General (ASG). The Secretariat in the New York Headquarters is presently divided into seven departments, which also assume important steering functions for essential fields of activities of the UN. Among these, the Departments for Political Affairs (DPA) and for Peace-Keeping Operations (DPKO) and the Office of the Coordinator of Humanitarian Affairs (OCHA) should be mentioned. The UN Offices at the other UN Headquarters are also headed by USGs. The offices and departments are subdivided into divisions, services, sections and branches and units, which are headed by directors. The different categories of staff are the directors, professional staff of different ranks and general service staff, again of different ranks. The notion "Secretariat" comprises sectors of the Secretariat in the narrower sense, which are directly subordinate to the UN-SG as well as such units, which service principal organs and subsidiary organs established by them. These sectors of the Secretariat may be seen as the nucleus of the Secretariat. Furthermore, there are units of the Secretariat, which display certain degrees of autonomy towards the UN-SG. The degree of dependence or autonomy is inter alia determined in particular by the question, whether these units are financed through the regular UN budget or by way of voluntary contributions by Member States. If such units belong for instance to the recognized funds (i.e. UNICEF or UNFPA), to special programs (i.e. UNDP, UNDCP, UNEP, WFP) or to secretariats belonging to bodies based on international treaties like the human rights instruments, the Law of the Sea agreements or environmental law treaties, the degree of autonomy may also be determined by the founding instruments and by practice. Also the titles of the chief executives of the different secretarial units may vary considerably (Director General, Director, Executive Secretary, Executive Director, SecretaryGeneral). Altogether the Secretariat, which does not comprise the Specialized Agencies, numbers about 29,000 staff members. The majority of staff members are employed at the main seats of the UN in New York, Geneva, Nairobi and Vienna as well as at a number of other UN seats (The Hague, Bonn, Rome, Paris, etc.) In all developing countries, where several UN bodies with secretarial units and often also Specialized Agencies are active, the UN establishes Resident Coordinators, who are usually heading the local UNDP

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office. They coordinate the activities of the UN "in the field", which gain ever increasing significance. c) Functions of the Secretariat (in the narrow sense) The tasks of the Secretariat in the discharge of its service function are manifold and not determined by the Charter. In practice the service function leave various options for the Secretariat to exert a certain substantial influence on the activities and even decision-making of UN organs. For instance through its participation in the elaboration of information, by presenting its opinion in debates and by its participation in the preparation of reports and draft resolutions the Secretariat, by using its expertise in the matter, may have factual influence on the contents of deliberations and decisions. By advising the chairpersons of conferences or committees and by factually participating in the selection of persons for certain functions, the Secretariat has further possibilities to substantially influence the work of UN bodies. In the discharge of its public information function, which serves either the self-presentation of the UN or particular other intentions, the Secretariat uses increasingly modern media. In the field of communication, the Internet turned out to be a particularly useful instrument. By elaborating, editing and distributing documents, the Secretariat assumes another important role in facilitating the functioning of the UN system. By securing the high quality of the documents and their timely distribution, the Secretariat has a clear and sustained influence also on the substantial quality of the work of the organization. d) Functions of the UN-SG Among the functions assigned to the UN-SG by the Charter (Art. 98) and by the main organs (except the ICJ), functions of political character may be distinguished from functions of administrative character. The tasks, which the UN-SG fulfils in his administrative function, overlap with the functions of the Secretariat in the narrower sense. Among the functions of administrative character the coordination function of the UN-SG not only within the Secretariat but also vis-a-vis the other main organs except the ICJ seems particularly important. In his position as chairman of the Administrative Committee on Co-ordination (ACC), the UN-SG also plays a major role in the coordination between the organs of the UN and the Specialized Agencies. The following additional functions should be mentioned as the most significant among the further administrative functions of the UN-SG: • calling of extraordinary sessions of the GA;


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• • • •

preparation of the sessions and meetings of the GA, the SC and ECOSOC; preparation of the budget of the organization; responsibility for the financial administration; registration and publication of international treaties; in addition the UN-SG assumes also the depository function for a number of essential multilateral conventions; • external legal representation of the UN including the conclusion of treaties; • accreditation of diplomatic representatives of Member States and surveillance over the maintenance of discipline and privileges and immunities of the staff of the Secretariat.

The political functions of the UN-SG are based on Art. 98 and 99. According to Art. 98 the other main organs (except ICJ) may entrust functions to the UN-SG. These organs have increasingly made use of this right. Further specific tasks are assigned to the UN-SG ad personam by the Charter according to Art. 98 or on the basis of special treaty provisions. The right to initiative assigned to the UN-SG according to Art. 99, i.e. the right to bring any matter which in his opinion may threaten the maintenance of international peace and security to the attention of the SC, provides the UN-SG on the basis of the Charter with considerable institutional influence which has contributed to strengthen the political position of the UN-SG vis-a-vis the other main organs of the UN. The UN-SG has in the past deducted from this position also the power to take autonomous measures like observing the international political developments, establishing a political early warning system within the Secretariat, "silent" and preventive diplomacy, offering of good offices or appointing of special envoys and special representatives for certain areas of conflict. The presentation of the annual report on the work of the organization to the GA and the preparation of the GA's agenda provide the UN-SG with further possibilities to influence the activities of the UN as a whole. e) Appointment of the UN-SG Given the significance of his position, the UN-SG is elected according to Art. 97 by the SC and the GA under a procedure consisting of two phases. In the first phase the SC elects a candidate which it recommends to the GA. The GA, in turn, appoints the UN-SG. Thus, none of the two organs has the power to decide alone over a candidate. The election procedure within the SC is subject to the vetopower of the permanent members. Therefore, intensive and confidential consultations among the SC members before any election of a new SG have become a

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well-known ritual. As soon as the SC has recommended a candidate, the GA votes by confidential vote but in public session on the candidate. Although the Charter does not define a term of office of the UN-SG, a period of five years has been established by practice.

7. The International Court of Justice a) Legal basis Chapter XTV of the UN Charter (Art. 92-96); the Statute of the International Court of Justice, which forms an integral part of the UN Charter; the rules of procedure according to Art. 30 of the Statute. b) General remarks The International Court of Justice (ICJ) is the principle judicial organ of the UN. Thus, the ICJ appears as the most far-reaching attempt so far, to realize the century-old idea of a world court. Already the League of Nations, by establishing the Permanent International Court of Justice in 1921, created a judicial organ, which envisaged this idea. Between the start of its activities in 1922 and their termination during the Second World War in 1940, the Permanent Court has acted in 29 cases of litigation and has provided 27 legal opinions. Despite its successful activity and the great relevance of this court for the recognition of international law it could never realize the ideal of a universal intergovernmental judiciary due to the limited membership of the League of Nations. Although there exists no legal continuity between the Permanent International Court and its successor, the ICJ, the founders of the United Nations essentially took over the Statute as well as the rules of procedure of the Permanent Court. A substantial difference between the ICJ and its predecessor consists in the fact, that the ICJ has, at least formally, realized the principle of universality: members of the UN automatically become members of the Statute of the ICJ (Art. 93 (1)), which constitutes an integral part of the Charter. Also States which are members of the UN can become parties to the Statute under conditions determined by the GA upon recommendation of the SC (Art. 93 (2)). Thus Switzerland after accepting the financial obligations as well as the obligation to comply with the decisions of the ICJ (Art. 94), became party to the Statute. According to Art. 35 (2) of the Statute, even non-parties to the Statute may have access to the ICJ under conditions established by the SC in Res. 9 (1946). The ICJ may, on the one hand, decide in a case between states, on the other


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hand, the GA, the SC and other organs of the UN or Specialized Agencies upon authorization by the GA may request an advisory opinion of the ICJ on any legal question (Art. 96). Significant for the authority of the ICJ as an organ for the settlement of disputes is the obligation by Member States contained in Art. 94 to comply with decisions of the court in any case to which it is a party. If one party to a case fails to comply with a decision, the other party may have recourse to the SC, which may make recommendations or decide upon measures in order to give effect to the decision. De facto, this competence of the SC has not gained the intended relevance. Stocktaking of the compliance with decisions of the ICJ shows, as already in the case of the Permanent International Court of justice, a positive balance. Apart from a few exceptions, where judgments by the ICJ have not or only partially been complied with over a longer period of time, all decisions have been implemented or are in the process of implementation. The jurisdiction of the ICJ is not compulsory, i.e. the Member States of the Statute may refer their disputes to the ICJ, but there is no general obligation to do so. Even under the dispute settlement system of the UN (Chapter VI of the Charter), the ICJ does not have exclusive jurisdiction. Art. 33 refers to "judicial settlement" only as one among the means of dispute settlement. Art. 36 (3), however, underlines the role of the ICJ as an instrument for the settlement of disputes, since it suggests that "as a general rule" legal disputes should be referred to the ICJ by the parties. Recommendations of the SC in this regard remained, however, so far the exception (Corfu Channel case). That the ICJ, nevertheless, has since its establishment not attained the kind of significance as international dispute settlement organ which its founders obviously have expected, may have a number of reasons. The judicial dispute settlement among states has not gained the acceptance, which was hoped for under the impression of the horrors of the Second World War. The formalized dispute settlement systems in numerous multilateral conventions, remained, as of today, to a large extend dead letter. Many of the officials, carrying the political responsibility, may be deterred from seeking this form of judicial settlement of disputes, given the length of the proceedings and the fact that the outcome cannot be calculated. Nevertheless, during recent years, a number of new cases (in particular disputes concerning territorial boundaries) have been referred to the ICJ. Since about the middle of the 1990s, so many cases have been referred to the ICJ that a reform of the ICJ in order to cope with the increased workload has been called for. c) Organization and procedure The ICJ consists of 15 independent judges (Art. 2 and 3 ICJ Statute). Its seat is in The Hague. The members are elected by the SC and the GA in separate voting procedures for a period of nine years and may be re-elected (Art. 8-15 ICJ Statute).

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Every three years a third of the members come up for election. The Member States when electing the judges shall take into account personal qualifications of the candidates (Art. 2 and 3 of the Statute), such as independence, impartiality, qualifications and personal integrity. In addition, according to Art. 9 the judges shall represent the main forms of civilization and the principal legal systems of the world. Thus, Asia, Africa and Latin America are presently represented by three judges each, the Western Europe, by four judges, Eastern Europe only by two. This has to be seen inter alia in connection with the fact that the candidates presented by the permanent members of the SC are usually elected or re-elected. In case one of the parties to a legal dispute between states is not represented among the judges, this State may appoint an ad hoc member of the court (Art. 31 of the Statute). On the basis of regulations adopted by the GA according to Art. 30 (2) of the Statute, experts may sit in a case as assessors. The registrar is responsible for the administration of justice. He is the chief executive of the administration of the Court and is to be elected by the court. The procedure is regulated in Chapter III of the Statute and in the Rules of Procedure. It consists of two parts or phases: written proceedings, in which the parties present through the registrar their memorials, counter-memorials and, if necessary, replies or other documents. The written proceedings are followed by oral proceedings, which are held in public, unless decided otherwise. The languages of the court are English and French. After the oral proceeding, the court holds its deliberations in private {in camera) (Art. 54 (3) of the Statute) and publicly announces the judgment. Usually the Court meets in plenary sessions, but it may also, upon request by a party, establish a chamber, a procedure, which was only recently introduced in practice. The first of these chambers, apart from the chamber, which is meeting yearly in accordance with Art. 29 of the Statute for speeding up the proceedings, has only been established in the 1980s. In 1993 the Court established a chamber, consisting of seven judges, for cases dealing with environmental affairs. In half a century's existence, until March 2000 the ICJ passed 69 judgments. 24 cases are currently pending. The litigations concerned inter alia territorial and maritime boundaries, territorial sovereignty, prohibition of the use of force and of intervention into internal affairs, diplomatic relations, hostage taking, asylum, nationality, transit rights, treaty law, economic law and environment. In many of these issues, the ICJ contributed substantially to the consolidation and the progressive development of international law. Less often the court has acted in the exercise of its function as organ competent for giving advisory opinions according to Art. 96. The GA and the SC have the right to request an advisory opinion of the ICJ on any legal question. Other organs


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of the UN and Specialized Agencies may, if authorized by the GA, ask for an advisory opinion on questions arising within the scope of their activities. Proposals for investing also the UN-SG with this right met with the opposition of many states who did not want to disturb the balance among the main organs of the UN by providing the SG with new powers. During the period between 1945 and 2000 the ICJ has been requested in 24 cases by the GA, the SC, ECOSOC, the Committee on the review of judgments by the Administrative Tribunal and by Specialized Agencies (inter alia UNESCO, WHO and IMO) to provide advisory opinions. The advisory opinions often attain a legal significance, which goes well beyond the field of activities of the bodies requesting such opinions. Art. 38 of the Statute contains a conclusive listing of the materials on which the ICJ shall base its decisions, apart from the power to decide a case "ex aequo et bond", if the parties so agree: • international conventions; • international customary law; • the general principles of law recognized by civilized nations; • as subsidiary means and subject to the provision that decisions by the ICJ have binding force only for the parties and in respect of the particular case in question, judicial decisions and teachings of the most highly qualified publicists of the various nations. d) Jurisdiction The jurisdiction of the court is regulated in Chapter II. Only states may be parties

to a case. The jurisdiction for cases of litigation depends on the one hand on the status of the parties to the dispute ("ratione personae"), on the other hand from the subject under dispute ("ratione materiae").

Since neither the Charter nor the Statute has provided for an obligatory jurisdiction, there is no jurisdiction of the court without consent of the parties. Thus a "lien jurisdictionel" (a jurisdictional link) is to be created between the parties in order to establish jurisdiction of the ICJ. The parties may thus establish jurisdiction beforehand by either having recognized the compulsory jurisdiction of the court by special international agreement or by having made a declaration under the so-called optional clause in Art. 36 (2) of the Statute. According to this provision states may declare that they recognize the jurisdiction of the court as compulsory ipso facto and without special agreement in relation to any other State accepting the same obligation. Up to March 2000 over 60 states have made such a declaration.

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The jurisdiction may also be established on the basis of the subject matter under dispute. Thus, the ICJ has jurisdiction over • cases which the parties refer to it; • cases which are falling under its jurisdiction on the basis of international treaties or conventions in force (Art. 36 (1) of the Statute); • matters, which are specially provided for by the Charter: Art. 36 (3) of the Statute, (general reference, does not establish compulsory jurisdiction), further Art. 92, 96, 102, 103 of the UN Charter; • matters listed in Art. 36 (2) of the Statute. If the jurisdiction of the ICJ is disputed, the ICJ settles this dispute by decision (Art. 39 (6)). Such a decision has binding force for the parties and the parties cannot escape a jurisdiction so established by invoking the voluntary character of their recognizing the jurisdiction of the court. If the ICJ is requested to provide an advisory opinion, it may pass such an opinion but it is not obliged to do so (Art. 65 of the Statute). The jurisdiction of the court ratione materiae regarding the giving of an advisory opinion is only limited by the functions and powers of the international bodies requesting such an opinion. If the SC or the GA request an opinion, the jurisdiction of the court based on the subject matter is de facto nearly unlimited given the wide area of functions and powers of these organs. This has been confirmed by the ICJ inter alia in relation to the question of the legality of the threat with or the use of nuclear weapons (July 1996). Thus it is even possible that the interests of one or more states are affected by such advisory opinions without them having the possibility to represent their interests as parties before the court. Advisory opinions do in principle not have binding effect, unless provided for by the founding instruments of these bodies. Advisory opinions asked for to decide a legal dispute between a State and an International Organization according to the Convention on the Law of Treaties between States and International Organizations and between International Organizations are binding as well as advisory opinions on the review of judgments by the UN Administrative Tribunal, which have the legal effect of a judgment of a supreme court. e) The concurring roles of the SC and the ICJ as organ for the settlement of disputes The ICJ always rejected objections to its jurisdiction over disputes on the agenda of the SC (inter alia in the Case Concerning the Diplomatic and Consular Personnel of the US in Teheran, 1980 and in the Nicaragua case, 1984). Thus the SC and the


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ICJ may act on the same dispute at the same time. Both organs, however, will mutually have to take into account in their procedures the activity of the respective other organ.

f) Assessment All things considered, the relevance of the ICJ is not necessarily determined by the mere number of cases decided upon and advisory opinions given. Its significance is rather based on its particular position as "universal" jurisdictional organ and the authority of its jurisdiction flowing from this position. Apart from this "universality" the ICJ constitutes the only international jurisdictional instrument, which has the authority to interpret generally binding international law without restriction to a particular treaty regime and without specialization to a particular scope of activities. It, therefore, possesses considerable weight regarding the determination ("restatement") and progressive development of international law. Thus, the ICJ has given important impulse for the codification and progressive development of the law of the sea, the international law of treaties and the universal environmental law. As in the case of its predecessor, the jurisdiction of the ICJ is an indispensable means for the international legal practice. It influences more or less directly the behavior of states. The importance of the ICJ as instrument for the attainment of the most important principles and objectives of the UN, namely the maintenance of international peace and security, should, therefore, not be underestimated.

8. Other Subsidiary Bodies The principal organs of the UN (i.e. primarily the GA and, under its authority, ECOSOC) have established a number of subsidiary bodies, among which particularly the recognized funds and programs of the UN have assumed a relatively autonomous and central role in the operative field of the UN activities. Furthermore, a number of treaty organs have been established within the framework of multilateral conventions (like conventions on human rights, environment and law of the sea), which report to the principal organs of the UN and which, therefore, are in a certain sense subject to their authority or supervision. Units of the Secretariat often service them. a) Specialized subsidiary bodies - Recognized Funds and Programs of the UN Over the years several institutions have been created as quasi-autonomous specialized subsidiary organs which, given their complex structure, show a character of rather autonomous institutions, although they constitute subsidiary organs to principal organs of the UN. They undertake the essential part of the

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operative activities of the UN, particularly those "in the field". Usually they are financed by voluntary contributions. Only the normal administrative costs are borne by the regular UN budget. Since the specialized subsidiary bodies are covering activities, which fall in their substance under the competence of ECOSOC, they cooperate closely with the council. Although there are no formal criteria for it, a number of funds and programs are specifically classified as "recognized" funds and programs. Among these, the following should be mentioned in particular: • UN Children's Fund (UNICEF): This specialized organ of the UN, which is the oldest and exists since 1946, has already in an early phase concentrated its activities on the developing countries. The fund, which cooperates with a number of Specialized Agencies, is recognized world-wide for its work particularly in the field of health services for children and their mothers, providing drinkable water and hygiene, food, education and child care. In 1965 the work of UNICEF was rewarded with the Nobel Peace Prize. The financing of UNICEF is primarily based on voluntary contributions but also on the successful sale of Christmas cards world-wide. UNICEF maintains numerous field missions in developing countries and is supported, particularly in industrialized countries, through fund raising and public relation activities of the national UNICEF-Committees. (See infra Glanzer.) • The UN Development Program (UNDP): The UNDP surely represents the most significant institution within the system of the UN in the field of development assistance and technical cooperation. Its activities focus on the planning, financing and coordination in the implementation of development projects. In carrying out its functions, UNDP also makes use of the services of other organizations within the UN system. UNDP maintains a world-wide network of 132 country and liaison offices. "Resident Representatives" (ResReps) act as chief executives of these offices and assume increasingly also local coordination functions in relation to other UN representations in the host State. (See infra Glanzer.) • UN Environment Program (UNEP): The creation of this body is a consequence of the conference of Stockholm in 1972, which gained special significance for the entire international environmental cooperation. The GA established it during the same year. More than two decades after its inception, the UNEP governing council adopted the so-called Nairobi Declaration (1997) which made UNEP de facto the most important global authority in the field of environmental cooperation. The governing board of UNEP consists of 58 members, which are elected by the GA for a four-year term of office. The


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organization with its seat in Nairobi gains increasing significance as liaison body to several thousand environmental NGOs all over the world. In the case of UNEP, too, the administrative costs are born by the regular budget of the UN, whereas the program budget (about US$ 100 million) is financed primarily out of voluntary contributions to the United Nations Environment Fund. (See infra Loibl.) • UN International Drug Control Program (UNDCP): This institution which was created in 1990 and is seated in Vienna, serves as a world-wide center for information and expertise in questions of the international drug control. The program maintains a fund and a network of field offices in states and regions with drug problems. (See infra Mayerhofer-Grunbuhel.) • UN Population Fund (UNFPA): The largest fund world-wide to finance population programs in developing countries (family planning, health care and programs for women). (See infra FreudenschuB-Reichel.) • World Food Program (WFP): This program serves as the principal institution of the UN for food aid. Its task is the providing of food in case of emergency relief as well as for areas with a particularly grave food situation. It is financed by voluntary contributions. (See infra Glanzer.) b) Further special institutions of the UN • High Commissioner for Refugees (UNHCR): the GA created the office of the High Commissioner for Refugees in 1951. The High Commissioner for Refugees, usually a person of high international standing and recognition, ensures high visibility for UNHCR. The office, therefore, gained considerable authority vis-a-vis the member governments. In implementing its protection and assistance functions, the work of the office of the High Commissioner makes use of more than 270 field offices in 120 countries. The office belongs to the financially strongest institutions of the entire UN system. The executive committee, consisting of 50 members, acts as governing body of UNHCR. (See infra Homann-Herimberg.) • High Commissioner for Human Rights: As a consequence of the Vienna Human Rights Conference in 1993, the GA established the position of the High Commissioner for Human Rights. The Center for Human Rights in the UN Secretariat in Geneva acts as her institutional basis. The High Commissioner carries the main responsibility for human rights activities of the UN. Given the institutional connection to the UN Secretariat, the High Commissioner is subject to the authority of the UN-SG. The Commissioner is appointed by the UN-SG and the appointment is approved by the GA for a term of office of four years. (See infra Strohal.)

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Conference on Trade and Development (UNCTAD): The world conference for trade and development was established in 1964 as subsidiary organ of the GA. Thus UNCTAD, focusing since its inception on the promotion of international trade as a vehicle for speeding up economic development, has become the leading conference organ of the UN in this field. It consists of the Conference on Trade and Development which, in its plenary, holds its session every four years at a different site, and of the Trade and Development Board which meets once a year. (See infra Glanzer.)

Chapter 2 Main Activities of the United Nations


The United Nations System for the Peaceful Settlement of International Disputes Hanspeter Neuhold

Literature: Goodrich/Hambro/Simons, Charter of the United Nations: Commentary and Documents (3rd edition, 1969); Northedge/Donelan, International Disputes: The Political Aspects (1971); Neuhold, Internationale Konflikte - verbotene und erlaubte Mittel ihrer Austragung (1977); Economides, La Declaration de Manille sur le reglement pacifique des differends internationaux, AFDI 28 (1982) 613; Sohn, The Security Council's Role in the Settlement of International Disputes, AJIL 78 (1984) 402; Cot/Pellet (eds.), La Charte des Nations Unies (1985); Escher, Friedliche Erledigung von Streitigkeiten nach dem System der Vereinten Nationen (1985); Fisler Damrosch (ed.), The International Court at a Crossroads (1987); Singh, The Role and Record of the International Court of Justice (1989); Merrills, International Dispute Settlement (2nd edition, 1991); United Nations, Handbook on the Peaceful Settlement of Disputes between States (1992); Roberts/Kingsbury (eds.), United Nations, Divided World: The UN's Roles in International Relations (2nd edition, 1993); Rittberger, Internationale Organisationen - Politik und Geschichte (1994); Touval, Why the U.N. Fails, FA 73, No. 5 (September/October 1994) 44; Jennings, The International Court of Justice after Fifty Years, AJIL 89 (1995) 493; Ratner, Image and Reality in the UN's Peaceful Settlement of Disputes, EJIL 6 (1995) 426; Simma (ed.), The Charter of the United Nations: A Commentary (1995); Wolfrum (ed.), United Nations: Law, Policies and Practice (1995); Peck, The United Nations as a Dispute Settlement System: Improving Mechanisms for the Prevention and Resolution of Conflict (1996); Zemanek, The Legal Foundations of the International System: General Course on Public International Law, RdC 266 (1997) 274

1. The Basic Problem The UN is conceived as a comprehensive peace organization. On the one hand, it is charged with maintaining and restoring "negative" peace, i.e. the absence of armed violence. The UN system of collective security established by Chapter VII of the Charter, with the SC as the key organ, is to make sure that this objective is achieved, if necessary through appropriate enforcement action. (See infra FreudenschuB.) On the other hand, the organization is also designed to assure "positive" peace; this type of peace may be defined as the achievement of social justice and the resulting gradual elimination of the main causes of international as well as intrastate conflicts on a global scale. The principal means to accomplish this objective are the reduction of the prosperity gap between rich and poor countries through development cooperation and respect for human rights, more recently also the

Franz Cede and Lilly Sucharipa-Behrmann (eds.), The United Nations - Law and Practice, 59-71 . Kluwer Law International. Printed in the Netherlands.

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protection of the environment. Within the framework of the UN Charter, Chapter IX, in particular, deals with the promotion of "positive" peace. Among the main organs of the UN, this task is entrusted, first and foremost, to the ECOSOC. The UN regime for the peaceful settlement of disputes has its place between these two dimensions of peace. International conflicts, which cannot be prevented by dealing with their root causes, have to be solved without resort to armed force. The terms "settlement" or "solution" will be understood in this chapter as the consent of all disputants to an outcome they deem acceptable. The conflicting parties will therefore refrain from further pursuing their initial claims, even if their differences of opinion have not completely disappeared. With its dispute settlement provisions, the Charter also includes a system of cooperative security: All the procedures that are applied and all the measures that are adopted in the context of cooperative security require the consent of all the parties concerned. 2. The Principle of Peaceful Dispute Settlement The peaceful settlement of international disputes is to be found on the other side of the coin on which the prohibition of the threat or use of force is engraved. Since this prohibition cannot exclude the outbreak of international controversies, which have their origin in the continuing scarcity of goods or contradictory values, the conflicting parties must be obligated to seek a non-violent solution. This consequence was already drawn in Art. 2 of the Briand-Kellogg Pact signed in Paris in 1928; in Art. 1 of the Pact, the contracting parties renounced war as an instrument of national policy in their relations with one another. Consequently, one of the purposes of the UN listed in Art. 1 (1) of the Charter is to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace. Furthermore, the third principle mentioned in Art. 2 of the Charter imposes on all members the obligation to settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. The wording of these two provisions takes account of central problems which may arise in international relations even in situations where the prohibition of the resort to force is respected. Quite significantly, the references to settlements conforming to justice and international law in Art. 1(1) and to justice in Art. 2 (3) were not yet contained in the draft charter elaborated by the great powers at Dumbarton Oaks in 1944. They were added one year later at the founding conference of the UN in San Francisco at the insistence of small and medium-sized States. These countries also considered the maintenance and restoration of ("negative")

The UN System for the Peaceful Settlement of International Disputes

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peace as the main task of the new organization, but not at the price of the imposition of pacific but inequitable solutions on the less powerful parties. The memory of the Western "appeasement" policy vis-a-vis Nazi Germany, in particular the 1938 Munich Agreement as the most dramatic example of such an unjust settlement where the weakest side had to foot the bill for the avoidance of an armed confrontation, was still fresh on the minds of the sponsors of those amendments at the end of the Second World War. The Charter thus indicates that there may be a discrepancy between "negative" and "positive" peace. It also implies that settlements in conformity with international law need not always correspond to considerations of justice. This results not only from Art. 1 (1) but also from the Preamble of the Charter, which calls for conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. Power realities are reflected even more crudely in international than in domestic law, in the sense that the interests of the weaker subjects worthy of protection are inadequately taken into account. This is true both of the norms of treaty and customary international law. The authors of the Charter, however, did not only lay down the principle of the peaceful settlement of disputes in general terms; they also devoted a special Chapter (Chapter VI) to more detailed rules. In addition, numerous other provisions of the constituent treaty of the UN - in particular on the SC, the GA, the ICJ and the SG, as well as on regional arrangements - are also relevant to the implementation of the principle. The modalities of the principle were further specified by GA resolutions, above all the Friendly Relations Declaration of 1970 (annex to Res. 2625 [XXV]), the Manila Declaration on the Peaceful Settlement of International Disputes of 1982 (annex to Res. 37/10) and the Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Role of the UN in this Field of 1988 (annex to Res. 43/51). However, all these documents contained few substantive innovations that went beyond the rules of the Charter. As a rule of universal international law the principle in Art. 2 (3) of the Charter as further defined by the Friendly Relations and Manila Declarations obligates all States - including those very few that do not belong to the organization - to actively seek a peaceful solution to their international disputes. These disputes are, first and foremost, conflicts with other States but also include differences of opinion with other subjects of international law, in particular international organizations and peoples entitled to self-determination. However, there is no duty to achieve a specific result. Such an obligation would run counter to the principle of free consent which in turn results from sovereign

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equality, still the cornerstone of the international legal order. It means that all the States involved in a conflict have to agree both on the settlement method and the substance of the solution - a consent they may also refuse to give. Only a State that consistently obstructs all attempts at peacefully settling a dispute to which it is a party violates the above-mentioned rule.

3. The System of Chapter VI of the Charter: Priority for Settlement Efforts by the Parties Themselves Chapter VI of the Charter on the pacific settlement of disputes, which comprises Art. 33 to 38, is characterized by flexibility and a rather complex structure. This complexity is not matched by the practical relevance of the provisions concerned. In the first place, the settlement of an international dispute is left to the parties themselves. According to Art. 33 (1) of the Charter, the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, therefore, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. It should be noted that Chapter VI is limited to disputes endangering international peace and security. This restriction is evidently designed to avoid burdening the organs of the UN, above all the SC, with conflicts of secondary political significance. The consequences of this approach may be detrimental for a weaker State against which a more powerful adversary refuses to fulfill an international obligation. In such a situation, the stronger party does not exert pressure on the weaker side but merely fails to behave as required by international law; as the less powerful party lacks the means necessary to enforce compliance, it can do little about it. Since such a state of affairs may not be regarded as a danger to international peace and security, Art. 33 would not be applicable. In practice, however, the UN also became involved in this type of conflict, so that the distinction between major and minor disputes had little actual relevance. Art. 33 enumerates the traditional dispute settlement methods, each of which has its advantages and shortcomings. The order in which they are listed follows the criterion of the degree to which the disputants keep or relinquish control over the outcome of their conflict. Incidentally, this enumeration is not complete, because it does not include good offices, a method that has proven its worth in practice. Direct negotiations between the disputants without the participation of any non-party are simple, confidential, flexible and usually the least expensive procedure. Most importantly, a genuine settlement requires the consent of all parties to a solution which they find acceptable. This result can best be achieved


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through mutual concessions at the negotiating table. However, the power relationship between the parties is likely to have its strongest negative impact on face-to-face talks between them without the mitigating involvement of a third party, especially if the stakes of the dispute are high. If this relationship is symmetrical, negotiations are likely to soon lead to a deadlock, because neither party is ready to move toward a compromise. Should one side be clearly more powerful than the other, the weaker party may have to reckon with an inequitable solution that its more powerful opponent will force on it. The possibility of invoking the invalidity of a treaty concluded under coercion is not really helpful in this context. Not only are there differences of opinion on whether only the threat or use of armed force or also the exertion of economic or political pressure that is often equally effective should have this far-reaching effect on the validity of an international agreement. Moreover, to invoke coercion may be counterproductive for the less powerful side; for regardless of the legal situation, it may result in further disadvantages inflicted by the stronger on the weaker party. Third parties that offer their good offices (not mentioned in Art. 33) try to facilitate negotiations between the conflicting parties by placing communication channels or conference facilities at their disposal. The third party is not involved, however, in the settlement process itself. Good offices may pave the way to an eventual pacific solution, especially if no official relations exist between the disputants (any more) and each of them hesitates to take the first step toward a rapprochement for fear that the other side may interpret such a move as a sign of weakness and therefore adopt an even more intransigent stance. Another third-party contribution also not included in Art. 33 is the issuance of an early warning which, for example, is one of the functions of the High Commissioner on National Minorities of the OSCE and the new Policy Planning and Early Warning Unit of the EU set up by the Amsterdam Treaty. Such a warning should help to reduce tensions at an early stage before they escalate to a full-blown conflict. An enquiry is designed to clarify controversial facts without passing judgment on the legal aspects of the dispute. The decision on the consequences they wish to draw from the results of an investigation rests with the parties to the conflict. An enquiry may also contribute to the peaceful settlement of a dispute, although most international conflicts are not only caused by disagreements on verifiable facts. Mediation differs from good offices in that the third party is actively involved in the negotiations between the conflicting parties by commenting on their positions and/or submitting proposals of its own. Mediation may be performed by States, international organizations or eminent private persons. A mediator can offer useful intellectual, political and material contributions to an eventual agreement between the disputants. He may come up with a solution overlooked by the parties

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"in the heat of the controversy". For reasons of prestige and trust, one and the same proposal is more acceptable if it is presented by the mediator than if it is made by the other conflicting party. What from a formalistic legal point of view may appear as the shortcomings of mediation could turn out irrelevant or even prove to be additional assets. Apowerful mediator may compensate the fact that his proposal is not legally binding by throwing in his political weight and adopting a carrot-and-stick policy vis-a-vis the disputants: They are offered incentives if they accept and threatened with negative consequences if they reject the suggested solution. The possibility of introducing proposals that deviate from the law binding on the conflicting parties may lead to a truly satisfactory settlement from which each side benefits. That is why Far Eastern and African civilizations prefer an agreement facilitated by mediation which all parties are able to consider a successful outcome to a decision by a court. In the latter type of procedure, the litigant who has the law on his side wins, whereas the other party leaves the courtroom empty-handed. Quite significantly, some complex and politically explosive conflicts - for instance, in the Middle East and the former Yugoslavia - were settled at least to some extent with the help of mediators and not by international courts and arbitral tribunals. A conciliation procedure may be described as an institutionalized combination of enquiry and mediation. It emerged fairly late, with a certain intensification of international relations at the beginning of the 20th century, and was given a more important role in recent years. For instance, in 1995 the GA adopted the UN Model Rules for the Conciliation of Disputes between States (annex to Res. 50/50). International arbitration and adjudication differ from the above-mentioned "diplomatic" settlement methods in two respects: • an arbitral award or judgment is legally binding on the litigants; • the decision is based on international law as it exists between the parties. Like the other methods, the two "judicial" procedures also require the consent of all the parties to the dispute. The jurisdiction of an international court or arbitral tribunal may be recognized after the outbreak of a concrete dispute or also, to different extents, in advance for the decision of future cases. The two similarities between adjudication and arbitration, which is characterized, as a rule, by greater flexibility, outweigh the differences. The lines between the two methods are often blurred in practice, for example with regard to the composition of a court and tribunal or the duration of proceedings before them. According to Art. 33 (1) of the Charter, conflicting parties are under no obligation to apply all the means enumerated in this provision, or to resort to them in a given order. None of these methods has priority neither negotiation mentioned there


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first, as the former "socialist" States had claimed, nor international adjudication and arbitration for which Western States declare a certain preference. All the parties have to do is to make a serious attempt in good faith at reaching an agreed settlement before the dispute is dealt with at the UN level.

4. The Security Council as an Institution for the Peaceful Settlement of Disputes The central role at the second stage of the settlement regime of Chapter VI of the Charter, at which UN organs become involved, is played by the SC. It acts as a permanently available conciliation body that may conduct inquiries and submit proposals for a solution. The Council's powers under Chapter VI are limited in principle to recommendations that have no legally binding effect on the conflicting parties. The SC may act on its own initiative, ex officio (Arts. 34 and 36 of the Charter), or at the request not only of the disputants but also of UN Member States not directly involved in the conflict. Under Art. 35 (1) of the Charter, any member of the UN may indeed bring any dispute, or any situation of the nature referred to in Art. 34, to the attention of the SC or the GA. Thus the "private law structure" of traditional international law is replaced by a different approach in Chapter VI: According to it, international disputes do not only regard the conflicting parties themselves but the other members of the world organization as well, even below the threshold of the activation of the system of collective security under Chapter VII. In Art. 34 a distinction is made, in the context of an investigation by the SC, between a dispute and a situation which might lead to international friction or give rise to a dispute. The parties to a dispute have already formulated their opposing positions. The broader notion of a situation refers to an early phase, to a conflict in statu nascendi, where the parties have not yet taken a clear-cut stance and have not yet articulated their claims. However, this distinction is of little practical relevance. The SC used both terms, for example, in Res. 479 (1980) on the Gulf conflict between Iran and Iraq. Moreover, even a State that does not belong to the UN may bring a dispute to the attention of the SC or the GA by virtue of Art. 35 (2) of the Charter, provided two conditions are met: The non-Member State must itself be a party to the dispute and has to accept in advance, for the purposes of the dispute, the obligations of pacific settlement in the Charter. UN members that were not parties to a dispute frequently resorted to the "actio popularis" provided for in Art. 35 (1) and turned to the Council. By contrast, the provision in Art. 35 (2) in favor of non-UN members acquired little significance in

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political reality, because the UN reached the goal of (almost) universal membership relatively soon. Within the framework of Chapter VI the SC has at its disposal an "escalation ladder" composed of several "rungs" of wielding influence on the conflicting parties in order to move them toward a pacific solution. As already pointed out, however, the pressure exerted by the Council in the context of this Chapter is restricted to non-binding recommendations. Even the mere decision by the SC to place a conflict on its agenda ought not to be simply ignored by the parties, because their dispute thereby receives increased publicity. Most governments cannot afford to just shrug off negative coverage by the international media of their behavior in a given conflict. On the next rung of the ladder the parties are offered the opportunity to present their positions to the SC. They can thereby ascertain whether and to what extent their arguments are supported or rejected by the Council members and other UN Member States invited, in accordance with Art. 31 of the Charter, by the SC to participate, without vote, in the discussion, because in the Council's opinion their interests are specially affected. Public debates in the SC may, however, make subsequent concessions by a conflicting party more difficult, since it may regard such a move as an unacceptable loss of face. That is why after the first statements by the disputants Council meetings are frequently adjourned. This move should permit the President of the SC or other particularly qualified members to enter into informal contacts with the conflicting parties and sound out the possibilities for a mutually acceptable solution. Under Art. 34 of the Charter, the Council may investigate any dispute or potentially explosive situation as referred to above in order to determine whether their continuance is likely to endanger the maintenance of international peace and security. The SC is thus in a position to clarify controversial facts on its own initiative and at any stage of a dispute. Furthermore, the principle of free choice of the settlement methods by the parties themselves, which in general underlies Chapter VI, does not apply to Art. 34. As a result, the Council does not need the consent of the conflicting parties to the launching of an inquiry; what is more, the parties are under an obligation to cooperate with the investigators appointed by the SC, because the Council must be able to decide whether the continuance of a dispute is likely to endanger the maintenance of international peace and security before exercising its powers under Art. 37 (2) of the Charter. In practice, however, the SC conducted investigations under Art. 34 only rarely. For a decision under this provision is also subject to the "veto" of the permanent members according to the "chain-of-events" concept. The Council therefore undertook most inquiries without reference to Art. 34. The establishment by the


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SC of subsidiary organs under Art. 29 that may also be charged with investigation tasks is a procedural matter to which the "veto" does not apply. The SC also requested the SG of the organization to undertake inquiries. Finally, the Council may also express its views on the settlement of a dispute in resolutions in which it can again dose to varying degrees its pressure on the parties to reach a solution. The SC may limit itself to stating its concern about and its interest in the pacific settlement of a conflict and call on the parties to keep it informed about their efforts in this regard. This is a signal to the parties that they will have to explain their future behavior in the conflict to the Council. This message should, in particular, prevent the more powerful from imposing an inequitable solution on the weaker side. The same purpose is served by a decision of the SC to keep a dispute on its agenda. The removal of the issue from the agenda must be decided by the Council. A joint request by the parties pointing to a settlement to which they have agreed is not sufficient. Under Art. 33 (2) of the Charter, the SC shall, when it deems necessary, call upon the parties to settle their dispute by the means mentioned in Art. 33 (1), without specifying in its resolution the method which it considers most conducive to a pacific solution. The Council may, however, at any stage of a dispute referred to in Art. 33 (1) or of a situation of like nature, recommend appropriate procedures or methods of adjustment on the basis of Art. 36 (1) of the Charter. Such a recommendation does not require a request by the conflicting parties or other UN members but may be adopted ex officio. In making such recommendations, the SC should also take into consideration that legal disputes should as a general rule be referred by the parties to the ICJ (Art. 36 [3] of the Charter). However, the Council has so far only once recommended recourse to the World Court to conflicting parties, namely to Albania and the United Kingdom in the Corfu Channel case in Res. 22 (1947). Legal disputes concern the application or interpretation of international law to which the parties are bound. By contrast, the parties to a "political" dispute or "conflict of interests" demand a change in the existing or the creation of new law or do not raise legal issues at all. The reason why this distinction is criticized is the discretion it leaves to the parties. Whether one and the same conflict is addressed as a legal or political dispute depends on the formulation of their claims by the parties. Moreover, a legal dispute also includes political aspects and involves interests. Under Art. 37 (2) of the Charter the SC not only has the power but is under an obligation ("shall") to recommend not only procedures or methods of adjustment but also such terms of settlement as it may consider appropriate, that is the substance of the solution, of a major dispute as defined in Art. 33, provided two preconditions are fulfilled: Firstly, the conflicting parties must have failed to settle

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their dispute by the means indicated in Art. 33; they have then to submit the conflict to the SC (Art. 37 [1]). Secondly, the Council must conclude that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security. Art. 37 (1) thus constitutes another exception to the principle of the free choice of settlement methods by the parties. Finally, according to Art. 38 of the Charter, the SC may, without prejudice to the provisions of Arts. 33 to 37, make recommendations to the parties to any dispute with a view to its pacific settlement if all the parties so request. However, under Art. 38, the Council is under no obligation to adopt such a recommendation. It stands to reason that a SC recommendation which proposes not just a certain settlement procedure but contains concrete terms for a solution exerts the strongest pressure on the parties. If the Council opts for such a substantive resolution, it is faced with a dilemma in case one of the parties has committed a manifest breach of international law. Should the Council propose a solution in accordance with the rules of international law, it runs the risk of being perceived as partial by the party that perpetrated the violation. This party is likely to reject the proposal and to refuse to cooperate with the UN. The alternative for the Council would be to act as a "neutral" mediator and aim at a settlement acceptable to all parties irrespective of the legal situation. This approach would undermine, however, the common values and rules of behavior of the international community. In practice, the SC circumvents the complexity of the system under Chapter VI by not invoking any specific provision of the Charter when acting as an organ for the peaceful settlement of disputes. Hence it remains unclear on the basis of which specific Article the Council takes concrete action. In addition to the SC, another UN organ that plays a significant part in the area of pacific dispute settlement is the GA. Its role is founded on Arts. 10 to 14 and Art. 35. As in the context of collective security, however, the SC has priority in this field, too, by virtue of Art. 12(1): While the Council is exercising in respect of any dispute or situation the functions assigned to it in the Charter, the plenary organ of the UN may not make any recommendation with regard to that dispute or situation unless the SC so requests. When trying to help to bring about a peaceful solution of a conflict, the GA applies the same means as the SC. In particular, recommendations adopted by the Assembly may also range from general statements to specific proposals on the contents of a settlement, as, for instance, in GA Res. 181 (II) on the issue of Palestine. From the point of view of the disputants, the GA, to which, for example, Austria submitted its conflict with Italy over South Tyrol in 1960, has some advantages over the SC: It offers a larger forum and thereby a wider public that can be reached; moreover, the Assembly does not sit under the


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Damocles' sword of the "veto" of the "Big Five". On the other hand, the attractiveness of the SC as a dispute settlement organ lies in its permanent availability and its broader powers. The contributions of the SG to the pacific solution of conflicts are not restricted to ringing the "alarm bell" entrusted to him by Art. 99 of the Charter, a tool, by the way, which he uses very rarely in practice. Under this provision, he may bring to the attention of the Council any matter which in his opinion may threaten the maintenance of international peace and security. Of greater practical importance was the performance of functions conferred on the SG by the SC and the GA under Art. 98 of the Charter, for which the chief administrative officer of the UN in turn appointed special representatives. These tasks included not only good offices, investigations and mediation but also the implementation of peace-keeping operations. (See infra Sucharipa-Behrmann.) Furthermore, the SG also took action in the field of dispute settlement without any mandate from another UN organ in line with the "vacuum theory". The UN system also leaves room for the pacific solution of conflicts within a regional framework. In accordance with Art. 52 (2) of the Charter, UN members that belong to regional arrangements or agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the SC. The Council shall encourage such regional endeavors, although this provision in no way impairs the application of Arts. 34 and 35 (Art. 52 [4]). The higher degree of integration among the States of a given region as compared with the global level permits the development of regional peaceful settlement regimes that are more effective than the universal UN system. The most impressive example is provided by the EC/EU. Moreover, the participating States of the OSCE, which was declared a regional arrangement in 1992, have at their disposal various so-called mechanisms and a Convention on Conciliation and Arbitration. The practical relevance of these instruments has, however, been negligible so far.

3. The Record of the United Nations in the Area of the Peaceful Settlement of Disputes The performance of the World Organization both in the fields of "negative" and "positive" peace, of collective as well as cooperative security, has been disappointing so far. The prosperity gap and the resulting conflict potential all over the world has hardly been reduced; despite progress in the area of human rights, massive violations of these rights are still being committed; only the first steps have been taken in order to defuse various ecological bombs that keep ticking. Although the

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principal cause of the paralysis of the system of collective security has disappeared with the end of the East-West conflict, the effectiveness of this system still leaves a great deal to be desired; it has been seriously eroded by the resort to armed force by Western States against Iraq and the Federal Republic of Yugoslavia without authorization by the SC. Nor can the balance of the UN in the context of Chapter VI of the Charter, the "neglected step-child of the Charter" (Steven R. Ratner), be called satisfactory, especially if one does not try to squeeze peace-keeping operations, a successful innovation not mentioned in the Charter, into Chapter VI. It might be pointed out in favor of this inclusion that peace-keeping missions also need the consent of all the parties concerned and therefore fall into the category of cooperative security tasks. Yet a more convincing legal basis for peace-keeping by the UN should be sought outside the Procrustes' bed of any specific Article or Chapter of the Charter. (See infra Sucharipa-Behrmann.) In any case, a positive assessment is hardly possible in view of the fact that many international conflicts remained unsolved for a long time or are still not settled and that the UN was frequently unable to prevent the use offeree. The main reason for this negative record is not the flexibility of the regime established by Chapter VI of the Charter, which in a first phase leaves the principal responsibility for settling a dispute to the parties. Nor is the disenchanting performance due to the fact that under Chapter VI the SC may only address non-binding resolutions to the conflicting parties. The permanent Council members, in particular, could combine such recommendations with strong factual pressure. The disputants should therefore be well advised to comply with the proposals of the SC, even if this means that they modify their positions and make concessions to the other side. The SC may - although this option is somewhat controversial - regard at least a flat rejection of its recommendation for a peaceful solution as a threat to the peace under Art. 39 of the Charter and consequently take enforcement action within the framework of Chapter VII. However, such a crossing of the threshold from cooperative to collective security is rather unlikely. It may be one thing for a member of the SC, especially a permanent one, to vote for a resolution under Chapter VI in which a conflicting party, with which this Council member, in general, on friendly terms, is criticized. It is quite another thing for the same SC member to agree that its traditional friend is guilty of a threat to the peace by refusing to implement a recommendation adopted by the Council and that sanctions ought therefore to be applied against this State. This readiness may, moreover, also be quite low among those members of the SC whose relations with the prospective target State against which enforcement action is considered are strained, because such action could lead to an escalation of the


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conflict and also entail costs and disadvantages for whose who apply the sanctions. In this connection, it should be noted that the contributions of the ICJ to the settlement of international disputes have so far also been rather modest. This assessment applies both to the number of the disputes decided by the World Court and the political importance of these cases. States still hesitate to recognize the jurisdiction of the ICJ, and even if they do, to submit actual disputes to it. This reluctance is due to political and ideological reasons, but also to the basic approach to the solution of conflicts in non-Western societies that oppose the zero-sum game procedure of arbitration and adjudication. On the positive side, the ICJ has made noteworthy contributions to the clarification and development of international law through its judgments and advisory opinions. The lack of the necessary political will is thus also the main weakness in the realm of cooperative security, in particular of the system for the peaceful settlement of disputes of the UN. Conflicting parties show little inclination to make effective use of the regime at their disposal. Similarly, the members of the SC are reluctant to fully exploit the possibilities available to them under Chapter VI, so that conflicts could successfully be dealt with already at this level. In this respect, despite some progress, unfortunately continuity prevails, although significant changes have taken place in many areas of international relations. Furthermore, the UN as an interState organization has to grapple with inherent difficulties in coping with many of today's security problems that are of a domestic and non-military nature and in which non-governmental actors are also involved.


Collective Security Helmut

Freudenschufi

Literature: Franck, General Course on Public International Law, Recueil des Cours, Vol. 240 (1993-III); Frowein, Articles 39-43, in Simma (ed.), The Charter of the United Nations (1994) 605; Freudenschufi, Between Unilateralism and Collective Security: Authorizations of the Use of Force by the UN Security Council, 5 EJIL (1994), 492; Delbrueck (ed.), Allocation of Law Enforcement Authority in the International System (1995); Doehring, Collective Security, in Wolfrum (ed.), UN: Law, Policies and Practice, Vol 1 (1995), 110; Glennon, Sovereignty and Community after Haiti: Rethinking the Collective Use of Force, AJIL 89 (1995), 70; Koskenniemi, The Place of Law in Collective Security, Michigan JIL 17(1996), 455; Pugh (ed.), The UN, Peace and Force (1997); Walter, Security Council Control over Regional Action, Max Planck Yearbook of the UN Law 1 (1997), 131; Oesterdahl, Threat to the Peace. The Interpretation by the Security Council of Art. 39 of the Charter (1998); Lobel/Ratner, Bypassing the Security Council: Ambiguous Authorizations to use force, cease-fires and the Iraqi Inspection regime , AJIL 93 (1999) 124.

1. Introduction The realization that many security policy challenges may - under certain circumstances - better be met by international agreements than by individual countries acting on their own is hardly new: Defensive alliances of centuries past as legal instruments of the political principle of balance of power testify to that. Collective security became, however, an institutionalized system only with the creation of the League of Nations in 1919. It was further developed in the UN Charter of 1945. Its main characteristic is that it is "inward-looking", i.e. that all members agree beforehand to act collectively against any member committing a grave violation of agreed rules of behavior. The determination that such a violation has occurred, the decision on collective countermeasures and their implementation can be made in a central (through a joint organ), decentralized (by each member) or mixed fashion. To be distinguished from such a system of collective security are measures of cooperative security (conflict prevention, peaceful settlement of disputes) and collective defense, either through ad hoc agreements or previously concluded military alliances. The latter are "outward-looking", i.e. directed against nonmembers. The right of individual or collective self-defense pursuant to Art. 51 UN Charter is contingent upon an "armed attack" and exists only "until the SC has taken measures necessary to maintain international peace and security".

Franz Cede and Lilly Sucharipa-Behrmann (eds.), The United Nations - Law and Practice, 73-8 ©2001 KluwerLaw International. Printed in the Netherlands.

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Contrary to this wording of the Charter, State practice and some scholars have interpreted the right of self-defense extensively: in case of any use of armed force, border incidents, preventive measures against allegedly imminent attacks, for the protection of the life and property of citizens abroad, even for safeguarding economic rights abroad. This contradictory State practice has impeded the right of self-defense in the narrow sense of Art. 51 UN Charter to become customary international law. The second restriction contained in Art. 51 ("until the SC ... has taken measures") has only gained some relevance during the Gulf conflict in 1990/91: When the US and some other allies of Kuwait initially claimed the right of collective self-defense and the SC had adopted non-military sanctions, critics argued that the SC had thus "taken measures necessary" under Art. 51 and thereby invalidated any claim of self-defense. This argument was, however, soon rendered moot at least in practical and political terms by the adoption of SC Res. 978(1990) authorizing the use of all necessary means to restore peace and security in the area. A functioning or effective system of collective security can be described as a compromise between intolerable international anarchy and an unreachable or undesirable "World State" - sufficiently different from anarchy to be useful, but also sufficiently distant from a "World State" to be feasible.

2. Requirements for a Functioning System of Collective Security It is useful to distinguish between objective and subjective requirements. Objective requirements of such a system are: • universality of membership, especially including the great powers; • indivisibility of peace; • a certain division of military and other sources of power; • the prohibition of the use of force coupled with the obligation of mutual support; and • the existence of a mechanism to impose sanctions, including the duty to initiate collective action. Subjective requirements are: • a high degree of international solidarity or consensus based on shared values or at least interests; • the readiness to run risks and even accept sacrifices; • the acceptance of impartiality in applying the system; and • the renunciation of a large part of national freedom of maneuver or autonomy.

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3. The System of Collective Security of the UN in Theory (Chapter VII UN Charter) The failure of the League of Nations - apart from the lack of the subjective requirements of a system of collective security - was caused by the lack of universality, the absence of a prohibition of the use of force and the unavailability of an effective sanction mechanism. The UN Charter attempted to correct these deficiencies and to fulfill the objective requirements of an effective system of collective security. At least on paper some improvements were indeed made: • universality of membership to a large extent; • comprehensive prohibition of the use of force (Art. 2 (4)); • obligation to assist in carrying out decisions of the SC (Art. 2 (5), Art. 25 and 48); • possibility of measures not only against acts of aggression but also against any threat to the peace (Art. 39); • creation of a central mechanism: The SC determines the existence of a basis for sanctions and decides whether to apply non-military (Art. 41) or military (Art. 42) measures to be carried out by some or all Member States (Art. 48); • creation of a quasi-monopoly of the SC in issues relating to the use of force. Even on paper, however, this system of collective security contains several restrictions and limitations, which have the potential to affect negatively its effectiveness. a) The discretionary powers of the SC Because of the vagueness of Chapter VII in general and of Art. 39 in particular, the SC has practically unlimited discretionary powers to decide whether to act at all, whether one of the constituent facts of Art. 39 is present, and whether to take (or authorize) any measures against the offender. The same is true of course with regard to the freedom to exceed its sphere of competence. Apart from the loss of credibility, acceptability and authority - which are obviously political criteria - there are no legal consequences for inaction (or overreaction) of the SC. The way the SC behaves (or is perceived to behave) is, however, of paramount importance for the effectiveness of collective security. b) The veto power of the permanent members of the SC Pursuant to Art. 27 (3), all non-procedural decisions of the SC require an affirmative vote of nine members including the concurring votes of the permanent members

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(in practice their abstention suffices). This means that collective security measures are from the outset limited to situations where no permanent member is involved. This "immunity" of the permanent members was the price to pay for the participation of the great powers in the UN. Peace - and conflicts - remained thereby divisible. c) The need for special agreements under Art. 43 All Member States undertake to make available to the SC armed forces, assistance and facilities in accordance with special agreements. Furthermore, members shall hold immediately available national airforce contingents for combined international enforcement action, whose strength shall be determined by the SC within the limits laid down in the special agreements (Art. 45). This means a significant weakening of the duty of members to provide assistance. Indeed, efforts to arrive at the elaboration of principles governing such special agreements foundered in 1948 due to the lack of mutual trust among permanent members. No such special agreements have been concluded to date. d) Lack of a permanent international force As has just been shown, the maximum achievable would have been national contingents made available to the SC. The Military Staff Committee would, however, have been responsible under the SC for the strategic direction of any armed forces placed at the disposal of the SC (Art. 47). Questions relating to the command of such forces should have been worked out subsequently - but of course never were since there never were any such forces. e) Lack of disarmament obligations If a certain division of military power was a requirement for a functioning system of collective security because collective action against a super-power would be suicidal and could therefore not be expected, then the lack of disarmament obligations would be an element of imperfection of this system. However, the veto power of the permanent members already ensure that no such collective action would be taken against any one of them.

4. The Older Practice of Applying Chapter VII As we have just seen the UN Charter - despite improvements over the League of Nations - suffers from severe limitations placed on the objective requirements of an effective system of collective security. It might have nonetheless worked if its subjective requirements had been met. Due to the lack of trust during the Cold War

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no consensus on the application of Chapter VII was possible. Even the following three exceptional cases prove this. a) Korea In response to North Korea's attack on the South in 1950 the SC, by SC Res. 82, 83 and 84, determined the existence of a breach of international peace, invited Member States to provide military forces and other assistance for a unified command under the US and authorized the use of the UN flag. This became only possible because the Soviet Union boycotted the SC at the time to protest the non-admission of the PR of China to the UN. Since the West could not count on this situation to be repeated but, at the time, was still able to command a comfortable majority in the GA, the so-called Uniting for Peace resolution was adopted (GA Res. 377(V)) which stated the subsidiary competence of the GA to recommend collective measures including the use of military force in case of a paralysis of the SC due to a veto. In practice, however, no such recommendations were ever adopted. b) Rhodesia After the Unilateral Declaration of Independence by the Ian Smith regime, the SC determined a threat to international peace (Res. 217(1965)) and authorized the UK to prevent oil shipments (Res. 221(1966)). Later on comprehensive economic sanctions were imposed (Res. 236(1966)). c) South Africa Since North Korea and Southern Rhodesia were not members of the UN, the arms embargo imposed on South Africa by SC Res. 418 (1977) was the first case of sanctions taken against a Member State. In determining the existence of a threat to international peace, the SC cited both internal (human rights violations) and external (attacks on neighboring States) actions of the apartheid regime. While the latter two situations were placed outside the East-West confrontation and North Korea was a special case (apart from the absence of the USSR from the SC, it was debatable whether the SC Resolutions were not merely a reaffirmation of the right of collective self-defense) there were, until 1990, no more decisions under Chapter VII. On the contrary: Close to 300 vetoes, out of which some 100 concerned questions of international peace and security (e.g. the Middle East, IndiaPakistan, Hungary, Cyprus, Afghanistan, Falklands), prevented the adoption of any such SC resolution. In cases where the interests of great powers permitted cooperation even during the Cold War, peace-keeping operations were established in lieu of measures

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under Chapter VII. These operations have no explicit basis in the Charter and are often referred to as Chapter VI Vi-operations.

4. The Practice of Applying Chapter VII since 1990 After long years of imposed inactivity, the UN began to contribute to the resolution of conflicts (Iran-Iraq, Afghanistan, Cambodia, and Namibia) in 1987/88. In 1990/ 91, in the aftermath of the Iraqi invasion of Kuwait, the SC gained unprecedented visibility. This led to exaggerated hopes - and fears. Some saw a new era dawning: The system of collective security as envisaged by the Founding Fathers of the UN was at long last coming into existence, free from the shackles of the Cold War. After 1991 it became, for a while, almost a foreign policy reflex to seize the SC with all kinds of matters large or small. The SC continued to expand its role (or, rather, was allowed to do so); both with regard to reasons for getting involved and measures taken. Others criticized this development: Cries of "double standards" were heard, fears of "a new colonialism in humanitarian disguise" were expressed and the legitimacy of such far-reaching decisions of the SC in its present, unrepresentative composition was questioned. Some scholars even argued for judicial review of SC decisions by the ICJ. As of late the pendulum has swung in the other direction: The SC is again being increasingly marginalized. The US is accused of discovering its role as the only "hyper-power", of making little effort to secure agreement in the Council and of only using it selectively to get multilateral cover. In late 1998 on Iraq and in 1999 on Kosovo the SC has been sidelined. It is instructive to look in detail how these developments have come about.

a) Extensive interpretation of'threat to the peace" according to Art. 39 The prohibition of intervention in matters which are essentially within the domestic jurisdiction (Art. 2 (7)) does not apply to enforcement action under Chapter VII, initiated after the SC has determined the existence of a threat to international peace and security. The most important examples for the extensive interpretation of the term "threat to the peace" applied by the SC are: • the repression of Kurds by Iraq (Res. 688(1991) was however not adopted under Chapter VII) the consequences of which threaten international peace and security; • the non-military sources of instability in the economic, social, humanitarian and ecological fields and the proliferation of all weapons of mass destruction (Statement by the Heads of State and Government of members of the SC of 31 January 1992);

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• the failure by Libya to demonstrate by concrete actions its renunciation of terrorism and its continued failure to respond fully and effectively to the requests for extradition of suspects (Res. 748 (1992)); • the deterioration of the situation in Liberia (Res. 788 (1992)); • the magnitude of the human tragedy in Somalia, further exacerbated by the obstacles to the distribution of humanitarian assistance (Res. 794 (1992)); • the widespread and flagrant violations of international humanitarian law... including reports of mass killings, rape and ethnic cleansing in Bosnia and Herzegovina (Res. 827 (1993)); • the unique and exceptional circumstances in Haiti after the overthrow of an elected President (Res. 841 (1993)); • the extent of the humanitarian crisis in Rwanda (Res. 929 (1994)); • the present crisis situation in Albania (Res. 1101 (1997)); • the unresolved situation in Kosovo (Res. 1203 (1998)); • the present situation in East Timor (Res. 1264 (1999)). A special case altogether is Res. 1269(1999) in which the suppression of acts of international terrorism, including those in which States are involved, is called "an essential contribution to the maintenance of international peace and security." Whereas the SC had at the beginning used the external consequences of internal repression in Iraq as justification, it later assigned the character of a threat to the peace either to internal (often humanitarian) emergencies or, as in the case of Libya, even to the lack of certain actions without explicitly assuming any external consequences. In the Former Yugoslavia, SC decisions came to be regarded as a fig leaf meant to hide the will to act militarily. Interventions in Africa, often caused only by the "CNN effect", were half-hearted (like in Somalia after the first casualties), of short duration, uneven and too late. If indeed it is the daily showing of atrocities or humanitarian disasters on TV which spur governments into action, it is hardly surprising when the call for preventive measures in humanitarian crises goes unheeded in practice. Some argue that the new humanitarian interventionists should not be daunted by fears of destroying some imagined temple of law enshrined in the UN Charter. They claim that the lofty goal of achieving justice backed by power is the hard part, while revising international law to reflect it can come afterwards. Others regard the violation of obligations erga omnes (such as massive violations of human rights) perse as a threat to international peace, thereby legitimizing SC action under Chapter VII. Others still warn that outside military action cannot solve internal, often ethnic problems. Saving "failed nations" may be noble but was not feasible and without

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widespread international acceptance of (humanitarian) interventions they will not be accepted as justice but regarded as power politics. b) The frequent imposition of non-military sanctions As we have seen the SC had only imposed sanctions twice in its first 45 years of existence. Then, starting with the sanctions imposed against Iraq with SC Res. 661(1990), the SC fell into a sanctions frenzy: • additional sanctions against Iraq: Res. 687 (1991), 689 (1991) and 778 (1992); • arms embargo against Yugoslavia: Res. 713 (1991); • arms embargo against Somalia: Res. 733 (1992); • arms and air embargo against Libya: Res. 748 (1992), later tightened with Res. 883 (1993); • comprehensive sanctions against Serbia and Montenegro: Res. 757 (1992), 787 (1992), 820 (1993) and the Bosnian Serbs: Res. 942 (1994); • arms embargo against Liberia: Res. 788 (1992); • "soft sanctions" (not adopted under Chapter VII) against the Khmer Rouge in Cambodia: Res. 792 (1992); • arms and oil embargo against Haiti: Res. 841 (1993), 873 (1993), later comprehensive sanctions: Res. 917 (1994); • arms and oil embargo against UNITA in Angola: Res. 864 (1993), later comprehensive sanctions: Res. 1127 (1997) together with 1135 (1997); 1173 (1998); 1176(1998); • arms embargo against Rwanda: Res. 918 (1994); extended to persons in neighboring countries by Res. 997 (1995): • diplomatic sanctions against the Sudan: Res. 1054 (1996); the air embargo in Res. 1070 (1996) never entered into force; • arms and oil embargo and diplomatic sanctions against Sierra Leone: Res. 1132(1997), modified by Res. 1171 (1998); • arms embargo against the FRY including Kosovo: Res. 1160 (1998); • air embargo and freezing of funds against the Taleban in Afghanistan: Res. 1267 (1999); • arms embargo against Ethiopia and Eritrea: Res. 1298(2000); • diamonds embargo against Sierra Leone: Res. 1306(2000). Seeing this apparently impressive list is deceptive: there seems to be a negative correlation between the frequency of imposing sanctions and their effectiveness.

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There are a number of reasons why economic sanctions are often more of a placebo than a panacea. The implementation and supervision of sanctions are largely left to States themselves. The Sanctions Committees of the SC have a limited effectiveness because they work on the basis of State complaints and on the principle of consensus, i.e. there are potentially 15 vetoes. Sanctions often lead to enormous economic difficulties for neighboring countries, which may increase their predilection to cheat. Sanctions hit hardest the civilian population whereas the leadership may actually profit from them, thus rendering them even counterproductive. Normally, sanctions are imposed by the SC for an unlimited duration, which lessens the chances of lifting them as a reward for cooperative behavior: Art. 41 (according to which sanctions are only meant to give effect to SC decisions) notwithstanding, the lifting of sanctions (or their modification) is subject to the use of the veto power of permanent members. Only in some recent cases the automatic suspension of sanctions was tied to a report of the UN-SG. The main reason for the lack of enthusiasm for effective economic sanctions is to be found in their half-heartedness: Apart from tangible economic interests of the potential imposers, economic sanctions often serve only as a fig leaf to hide the lack of will to do more while wanting to appear to be doing something. c) International tribunals The international tribunals to prosecute war crimes and genocide created by SC Res. 827 (1993) for the Former Yugoslavia and 955 (1994) for Rwanda are sometimes (as are the still nascent International Criminal Court and the Independent Special Court for Sierra Leone called for in SCR 1315(2000)) also regarded as elements of an effective system of collective security. In addition to the hitherto limited relevance of the tribunals, there are also other considerations which cast more than a shadow of doubt on this: Again, in the face of the atrocities committed (and shown on TV), "something had to be done". However, already on the occasion of the creation of the Yugoslavia Tribunal, a number of members of the SC voiced their concern about the tendency of the Council to interpret its responsibilities extensively and stressed the exceptional nature of the case which created no precedent. Critics have also argued that the existence of such tribunals was not conducive to peaceful change and the transfer of power because no alleged war criminal in his right mind would be prepared to enter into negotiations at the end of which he might end up before a tribunal. Finally, the readiness to prosecute and extradite alleged war criminals might also be subject to other - often-overriding - considerations. Again we should not be overly optimistic. "Peace through law" remains a laudable but in practice largely unfeasible concept.

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d) Authorizations of the use offorce: a third way between unilateralism and collective security aa) Iraq-Kuwait After having determined a breach of the peace by Iraq in SC Res. 660 (1990) and having called on States cooperating with Kuwait which were deploying naval forces "to use such measures commensurate to the specific circumstances as may be necessary under the authority of the SC to halt all shipping" (SC Res. 665 (1990) but not adopted under Chapter VII), the SC authorized those States in case that Iraq did not comply with its previous resolutions within six weeks "to use all necessary means to uphold and implement SC Res. 660 (1990) and to restore peace and security in the area" (SC Res. 678 (1990)). The assessment of Iraq's compliance, the choice of "necessary means", the command of troops and the duration of their use were left to those States. Likewise SC Res. 686 (1991), 687 (1991), 773 (1992) and 833 (1993) contained Chapter VII decisions regarding the destruction of Iraqi means of mass destruction and all necessary measures to secure the border between Iraq and Kuwait. The extent and the duration of the authorization granted by SC Res. 678 (1990) has been contentious ever since. The US in particular has argued that Iraqi breaches of the terms of the cease-fire reactivate the authorization to use force. Critics however contend that it would be for the SC and not individual States to determine Iraq to be in "material breach" of the cease-fire resolution and thus authorize the use of force. bb) Former Yugoslavia SC Res. 770 (1992) called upon Member States to take nationally or through regional agencies or arrangements all measures necessary to facilitate, in coordination with the UN, the delivery of humanitarian assistance. The mandate of UNPROFOR was enlarged by SC Res. 776 (1992) to include the protection of humanitarian assistance. In SC Res. 787 (1992) the SC used the same convoluted language as in SC Res. 665 (see supra aa) to stop all shipping and to ensure strict implementation of the embargo. In SC Res. 816 (1993), after laborious negotiations with Russia, Member States were authorized to take, under the authority of the SC and subject to close coordination with the SG and UNPROFOR, all necessary measures in the airspace of Bosnia and Herzegovina to ensure compliance with the flight ban and proportionate to the specific circumstances of the flights. After Sarajevo, Srebrenica and four other towns were designated as "safe areas" in May, the SC in June decided to authorize UNPROFOR to take the necessary measures, including the use of force in reply to

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the bombardments of or to armed incursions into the safe areas and in the event of obstructions of UNPROFOR or protected humanitarian convoys in or around these areas (SC Res. 836 (1993)). In the same resolution, the SC decided that Member States, subject to the authority of the Council and to close coordination with the UN-SG and UNPROFOR, might take all necessary measures, through the use of air power, to support UNPROFOR. In August, the US - under strong pressure from its allies - conceded that air strikes were subject to prior approval by the UNSG. In SC Res. 908 (1994), close air support in defense of UNPROFOR was extended to the territory of Croatia. In SC Res. 1031 (995), 1088 (1996), 1174 (1998) and 1247 (1999) Member States, were authorized "acting through or in cooperation with the organization referred to in Annex 1-A of the Dayton Agreement" (a rather coy reference to NATO), to form a multinational operation (IFOR, later SFOR) to ensure implementation of the Dayton Agreement and to assist the force in carrying out its mission. cc) Somalia After the failure of UNOSOMI the UN-SG proposed a "new type of international police action to carry out humanitarian assistance". In SC Res. 794 (1994), the SC authorized the UN-SG and Member States to use all necessary means to establish a secure environment for humanitarian relief operations. Three month later however this force under US command was again replaced by a UN operation (UNOSOM II) with a mandate that included for the first time enforcement action [Res. 814 (1993)]. dd) Rwanda When the UN-SG was unable to find sufficient personnel for an expanded UN operation, he proposed a multinational operation commanded by France, following the Somalia precedent. In SC Res. 929 (1994), the SC indeed authorized Member States, cooperating with the SG, to use all necessary means to contribute to the security of displaced persons in an impartial way and limited to a period of two months. ee) Haiti With SC Res. 940 (1994), the SC authorized Member States to form a multilateral force led by the US and to use all necessary means to facilitate the departure of the military leadership and the return of the elected President. For the first time, international monitors were also sent to monitor the multinational operations.

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ff) Eastern Zaire The SC authorized Member States under the leadership of Canada to use all necessary means to reach the humanitarian objectives of a multinational operation (SC Res. 1080 (1996)) - which was, however, never put into practice. gg) Albania With SC Res. 1101 (1997) the SC authorized Member States to form a multinational protection force under Italian command to facilitate humanitarian assistance and to create a safe environment for missions of international organizations. hh) Central African Republic The States participating in the African Mission to supervise the implementation of the Bangui Agreement and those (i.e. France) providing logistic support were authorized by SC Res. 1125 (1997) and 1159 (1998) to ensure the safety and freedom of movement of their troops. ii) East Timor With SC Res. 1264 (1999) the SC authorized the establishment of a multinational force commanded by Australia to restore peace and security, to protect the UN operation UNAMET and to facilitate humanitarian assistance operations. The SC further authorized the States participating in this force to take all necessary measures to fulfill this mandate. jj) Sierra Leone The UN operation UNAMSEL was authorized to take the necessary action to ensure the security and freedom of movement of its personnel and, within limits, to protect civilians (SC Res. 1289 (2000)). kk) Democratic Republic of Congo Similarly, MONUC recieved the authorization to protect its personnle, facilities and civilians under imminent threat (SC Res. 1291(2000)). There were many attempts to fit this - varying - practice of the SC into a neat and tidy box: the Procrustes bed of the Charter of the UN and in particular of its Chapter VII. For good reasons the view held by some at the outset of the Gulf conflict, that the authorizations by the SC to use force was only a reaffirmation of the right to collective defense, did not prevail. It would have been even less applicable to the subsequent decisions of the SC based on extensive interpretations of threats to the peace.

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There are also good reasons why these authorizations cannot be subsumed under Art. 42, 48 or 106: the lack of a determination that measures provided for under Art. 41 would be inadequate or have proved to be inadequate before taking action under Art. 42, the lack of special agreements under Art. 43, the absence of overall UN command and the non-involvement of the Military Staff Committee. Instead it can be argued that the SC has found a third way between unilateralism hidden under the cloak of collective self-defense and collective security in the form given to it by Chapter VII which was politically undesirable. Not its rigid rules but the individual circumstances of a conflict, coupled either with a perceived national interest or a domestically created need to act determine whether SC authorizations are sought and adopted and the choice of means employed. As we have seen, the SC has not limited such authorizations to cases of armed attack but has also granted them in support of PKOs and in response to humanitarian emergencies. As their use - on paper - became more frequent and their field of application grew larger, the implementation in practice became more controlled (by the SC) and less forceful. Like PKOs, such authorizations of the SC cannot be found in the letter of the Charter. But they responded to a need - even if it was only the desired international political cover or political authority which was necessary or at least useful for reasons of both domestic and international politics. By involving Russia, China and others who continue to espouse (or at least pay lip service to) the principle of non-interference in internal affairs, the SC has also served as a useful instrument for the coordination of national policies. The forces assembled on the basis of such authorizations by the SC can be called "Chapter VI 3/4 operations". e) The role of regional organizations or arrangements Art. 53 (1) states that "[t]he SC shall, where appropriate, utilize such arrangements or agencies for enforcement action under its authority" and that "no enforcement action shall be taken [by them] without the authorization of the SC". Since international law does not generally prohibit the imposition of non-military sanctions, this provision means that only military enforcement is subject to SC approval. There is no consensus as to whether regional arrangements are entitled to impose sanctions on non-members or on States out of their area. If, however, the UN Charter is interpreted as a flexible instrument, there is no reason why the SC, which can authorize Member States to impose sanctions on any State, should be limited in its authorizations granted to regional arrangements. Recent SC practice in this field is again quite diverse.

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aa) Liberia At first the SC did not react at all to the military intervention of the Economic Community of West African States (ECOWAS) led by Nigeria by way of a misnamed - Monitoring Group (ECOMOG) in the civil war in mid-1990. Only in January 1991 the SC, in a statement by its President, welcomed ECOMOG's efforts to promote peace and normality. Beginning with SC Res. 788 (1992), the SC commended its efforts to restore peace, security and stability. In SC Res. 866 (1993), the SC stated in a somewhat contradictory fashion that the creation of UNOMIL was the first case where a PKO of the UN and of another organization were working together but then went on to differentiate clearly the mandate of UNOMIL from the military action of ECOMOG. Starting with SC Res. 1001 (1995), the SC called on ECOMOG to take the necessary measures to ensure the safety of UNOMIL personnel. Some have argued that ex-post or implicit authorizations by the SC have thus been rendered possible. bb) Former Yugoslavia As we have already seen above when discussing SC authorizations of the use of force, the SC began with SC Res. 770 (1992) to call on Member States to take certain measures nationally or through regional arrangement in parallel to UNPROFOR and subject to consent by the UN-SG. When this proved to be less than effective, the UN PKO was abandoned and the NATO-led IFOR and later SFOR were created [SC Res. 1031 (1995)]. cc) Haiti In order to implement economic sanctions, the SC called on Member States to take the necessary measures nationally or through regional arrangements [SC Res. 875 (1993)]. This was then organized through the OAS. dd) Georgia In SC Res. 934 (1994), the SC noted with satisfaction the deployment of a CIS force led by Russia alongside the UN Observer Mission UNOMIG. ee) Sierra Leone SC Res. 1132 (1997) was an exception insofar as ECOWAS itself, based on an explicit reference to Chapter VIII UNC, was authorized to ensure the strict implementation of the oil and arms embargo. ff) Tajikistan In SC Res. 1138 (1997) the SC limited itself to welcoming the decision of the CIS

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to authorize its collective peace-keeping forces to protect the personnel of the UN Observer Mission UNMOT. As we have thus seen, the SC (with one aberration in the case of Sierra Leone) never referred to regional arrangements as such but rather to their Member States. Consequently, those resolutions did not fall under the strict terms of Art. 53 but were also examples of the use of the new instrument of authorizations developed since the Gulf conflict. Practice shows once more that also regional peace is divisible: The SC only made use of regional arrangements when their members were prepared to take action. gg) Kosovo An entirely different case is the SC action (or rather inaction) regarding Kosovo. After NATO, led by the US after much hesitation by its allies, carried out air strikes against targets in the Federal Republic of Yugoslavia in March 1999 without explicit SC authorization, a number of arguments were advanced pro and contra. Some claimed implicit authorization by SC Res. 1199 (1998) adopted under Chapter VII, which had again demanded a number of concrete measures of the FRY. However, a number of equally unmet demands had also been made of the other side. Moreover, the SC stated that, should the specific measures demanded not be taken, it would consider further action and additional measures. Contrary to other cases such as in particular Iraq, no further efforts were made in the SC by the US and its allies to seek approval for such additional measures. Others have argued that a draft resolution put before the SC by Russia, which would have determined the use of force by NATO as constituting a threat to international peace and demanded an immediate end to it (UN Doc S/l 999/328 of 25 March 1999), was defeated by 12 votes to three, thereby implying acceptance of NATO action as legal. The fact remains however that the supporters of this text (Russia, China and Namibia plus India and Belarus as co-sponsors) contain 40% of the world's population, which would seem sufficient to prevent any creation of customary international law. Others still have based their support for unauthorized NATO action on considerations of legitimacy derived from fundamental principles of the international order at large, which overrule questions of legality under the Charter. Their critics pointed out that the aim of humanitarian interventions is preventing or stopping massive violations of human rights. If they cannot succeed or are even counterproductive because of the way they are carried out, they lose their humanitarian motive and thus their legitimacy.

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6. Conclusions Whether one believes that such unilateral use of force as in the case of Kosovo is legal, a politically "forgivable legal sin" or illegal, the fact remains that great perils exist: great powers using humanitarian concerns to mask their national interests, international anarchy arising from the bypassing of the only international body entitled to determine threats to the peace and creating precedents which may also be used in the future by those who are now (temporarily?) weakened. Indeed one of the main advantages of using the SC in the way it was used in the early 1990s, namely as a coordinating mechanism, was that it allowed powers other than the US to safeguard their interests - or at least save face by seeming to do so. By seeking a multinational veneer for the pursuit of essentially national interests, the US often had to make only cosmetic concessions while gaining the acquiescence of those who might otherwise have tried to oppose unilateral action. Nonetheless the balance sheet of the last decade can be seen as positive. Chapter VII in its strict sense - and thus the system of collective security as envisaged in the Charter - will remain dead letter. What should still be possible is a pragmatic case-by-case approach based on the instrument of authorizations by the SC. The use of force by the UN itself is no real alternative. Operations authorized to use force (like UNPROFOR and UNOSOM II) have failed, thus hastening the return to traditional peace-keeping. The challenge now is not only to define criteria for possible future interventions - laudable as such efforts are - but also to avoid falling back to unilateral action and thus also avoid falling prey to the illusions (or delusions) of the past. We need a SC powerful enough to authorize measures against aggressors or genocidal regimes - and a SC sufficiently united to lend quasi-universal blessing and thereby effectiveness and political legitimacy.

Peace-Keeping Operations of the United Nations Lilly Sucharipa-Behrmann

Literature: Diehl, International Peacekeeping (1993); FislerDamrosch (ed), Enforcing Restraint. Collective Intervention in Internal Conflicts, (1993); Ktihne, Blauhelme in einer Turbulenten Welt, (1993); Morphet, UN Peacekeeping and Election-Monitoring, in Roberts/Kingsbury (eds.), United Nations, Divided World. The UN's Roles in International Relations (2nd ed. 1993) 183; Bothe, Peace-Keeping, in Simma (ed.), The Charter of the United Nations. A Commentary, (1994), 565; Fetherstone, Towards aTheory of United Nations Peacekeeping (1994); Ratner, The New United Nations Peacekeeping: building peace in lands of conflict after the Cold War, (1995); Tomuschat (ed.), The United Nations at Age Fifty: A Legal Perspective (1995); Warner (ed.), New Dimensions of Peacekeeping, (1995); Peacemaking and Peacekeeping for the Next Century. Report of the 25th Vienna Seminar, 2-4 March 1995, International Peace Academy, (1995); Hirsch/Oakley, Somalia and Operation Restore Hope. Reflections on Peacemaking and Peacekeeping (1995); The Blue Helmets. A Review of United Nations Peace Keeping (3rd ed., 1996); Rossanet, Peacemaking and Peacekeeping in Yugoslavia (1996); Zacarias, The United Nations and International Peacekeeping (1996); Doyle/Johnstone/Orr (eds.), Keeping the Peace (1997); Otunnu/Doyle (ed.), Peacemaking and Peacekeeping for the New Century (1998); Sucharipa-Behrmann/Franck, Preventive Measures, NYU Journal of International Law and Politics 30 (1998) 485; Peck, Sustainable Peace. The Role of the UN and Regional Organizations in Preventing Conflict (1998); Luck, Mixed Messages. American Politics and International Organizations 1919-1999, (1999); Schmidt (ed.), Peace Operations Between War and Peace (2000); for a compilation of documents and background information concerning a number of peace-keeping operations see the "UN Blue Book Series", United Nations Publications; website of the DPKO: http://www.un.org/Depts/dpko.

1. History The main purpose of the UN is the maintenance of international peace and security (Art. 1(1)). To fulfill this goal the founding fathers of the UN envisioned a system of collective security in the Charter. (See supra FreudenschuB.) The effectiveness of this system, however, was diminished by the East-West confrontation during the Cold War. The Eastern and Western permanent members of the SC blocked every single action of collective security by their veto. Nevertheless, the UN played a significant role in the maintenance and reestablishment of international peace in conflict situations during the years of the Cold War. To be able to fulfill this role the UN developed and applied mechanisms, which were not explicitly mentioned in the Charter, so-called peace-keeping operations (PKOs). These operations were originally defined as deployment of military personnel in international conflicts on the basis of the consent of all parties concerned. Use of force was only allowed in


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self-defense. When PKOs were further developed this definition was expanded. UN-SG Boutros Boutros-Ghali defined peace-keeping in the Agenda for Peace as "deployment of a UN presence in the field, hitherto with the consent of all the parties concerned, normally involving UN military and/or police personnel and frequently civilians. Peace-keeping is a technique that expands the possibilities for both the prevention of conflict and the making of peace" (UN Doc. A/47/277-S/24111). PKOs are neither totally covered by Chapter VI of the Charter (peaceful settlement of disputes) because they comprise a military presence, nor by Chapter VII (actions with respect to threats to the peace, breaches of the peace and acts of aggression) because they are, in general, not enforcement actions. Therefore, they are often called Chapter VI Vi operations.

2. Legal Basis for Peace-Keeping Operations Since the Charter does not contain explicit provisions concerning PKOs the question arises whether such operations are in conformity with the Charter and which organ would be competent to establish such operations. When the USSR and other Eastern European States as well as France denied to pay their assessed shares for the PKO in Sinai (UNEF) and the operation in the Congo (ONUC) this question was brought before the International Court of Justice (ICJ). In its "Advisory Opinion concerning Certain Expenses of the UN" (1962) the Court addressed the question of Charter conformity in connection with the question whether expenses for PKOs are expenses of the Organization according to Art. 17(2). The Court answered this question in the affirmative. It stated that all activities, which are in fulfillment of the purposes mentioned in Art. 2 of the Charter could not be considered ultra vires and thus did not transgress the competency of the Organization. Therefore, expenses incurred by such activities constitute expenses of the Organization, which have to be born by the Member States. Since, nevertheless, the States mentioned above did not pay their assessed contributions the first financial crisis of the UN occurred. (See infra Schlesinger.) The ICJ addressed also the question of the competency to establish PKOs. The USSR had argued that only the SC was competent for maintenance of international peace and security. Therefore, a decision of the GA to establish a PKO could not be a valid legal basis. The ICJ rejected this reasoning stating that although the SC had primary responsibility for the maintenance of peace and security according to Art. 24( 1), the Charter, nevertheless, gave also the GA a competence in this respect (Art. 14 and Art. 11(2)). Thus, the Court determined the functional competency of both organs for the establishment of PKOs. Most PKOs are, however, established by the SC. PKOs are either sub-organs of the SC (Art. 29) or the GA (Art. 22).

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Before establishing a PKO the SC requests the UN-SG to prepare a report on the envisioned operation. This report describes the possible mandate, the necessary means (peace-keeping troops, military observers, police contingents, and civilian contingents) and the presumptive costs of the operation. The report is the basis for the decision of the SC, which normally refers to it when authorizing the operation. For the review of all general aspects of PKOs the GA established with GA Res. 2006 (XIX) the Special Committee for Peace-Keeping Operations (C-34). This Committee, which originally consisted of 34 members, was expanded in 1996 with GARes.51/136. Currently 85 States participate as members, with 11 States as well as UNICEF and the ICRC as observers. The Committee meets once a year and reports to the GA.

3. Requirements for Peace-Keeping Operations Based on the experience gained in the first PKOs, UNEF I and ONUC, the following requirements for the establishment of PKOs were developed: • existence of a truce or cease-fire; • consent of all parties to the conflict (UNEF I) or establishment of the operation at the request of the parties (ONUC); PKOs are not enforcement measures according to Chap. VII, the consent of the conflicting parties is necessary in order not to violate the sovereignty of the parties concerned and not to come into conflict with Art. 2 (7); • fixed time-limits for the operation with the possibility of extension of the mandate; the question of termination of an operation and who is entitled to decide this issue played a role in UNEF I, when Egypt withdrew its consent to the operation and asked for the withdrawal of the peace-keeping force. The question arose whether the operation can be terminated any time by unilateral withdrawal of the consent or only in agreement with the SC. Since that time all PKOs have been established for a fixed term (usually for 6 months). Shortly before the end of the term the SC examines, on the basis of a report of the UNSG, whether the operation should be extended; • the UN-SG must report to the SC or the GA on all important questions concerning the operation. This criteria was developed following UNEF I. The than UN-SG U Thant terminated the PKO after the withdrawal of Egypt's consent without consulting the SC or the GA. This was seen as a transgression of his competencies; • clear command and control structures: SC (overall political decisionmaking) -> UN-SG (strategic decision-making) ->- SRSG or Troop Commander (operational control in the field);

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• timely notice of planned withdrawal of troop contingents by troop contributors. In UNEFI India and Yugoslavia withdrew their contingents without prior notice so that there was factually no possibility for the UN-SG to continue with the operation; •

clear mandate to avoid misconceptions concerning the task of a PKO. During ONUC misunderstandings between the Congolese Government and the UN concerning ONUC's mandate caused grave difficulties for the operation;

• sufficient financial resources; • support by the SC, in particular by the permanent members; • separation of peace-keeping mandates from enforcement mandates. The following guiding principles for PKOs have been developed: • use of force only in self-defense or if hindered by force to fulfill the mandate; • impartiality/neutrality, i.e. no involvement in the conflict, no favoring of one party over the other; • PKO personnel must take orders only from the commander of the operation not from the organs of the sending State. The SC, when establishing an operation will, in addition, consider the following aspects: • whether a situation exists the continuation of which may be a threat to international peace and security; • whether regional or sub-regional organizations or agencies would be able and willing to help solving the conflict; • whether the parties to the conflict are willing to reach a political solution to their conflict; • whether a clear political goal can be identified and whether it could be expressed clearly in the mandate; • whether a budget estimate exists for the first 90 days as well as for the first 6 months of the operation.

4. Types of Peace-Keeping Operations a) Traditional operations ("first generation") PKOs of the first generation were in principle used in inter-State conflicts. Preconditions for their establishment were a truce or cease-fire as well as the


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consent or request of the parties. The actions of the PKO troops were guided by the principle of impartiality. Force could only be used in self-defense. This concept of self-defense, however, was wider than the usual definition of self-defense. It included the use of force in case of obstruction of the mandate. These traditional PKOs have foremost military functions, e.g. the separations of the conflicting parties by a buffer zone and its monitoring (UNEF, UNDOF), or the monitoring of a cease-fire (UNTSO, UNIKOM). Either single military observers or peace-keeping troops exercise these functions. Although the PKOs were installed only for a limited time, it became obvious in a number of cases that their long-term presence was necessary to avoid the reoccurrence of the conflict (e.g. UNFICYP, UNDOF). b) Multifunctional

operations ("second generation")

After the end of the Cold War and the dissolution of the two power blocks a different type of conflict took center stage. Those conflicts were not any more inter-State conflicts but intra-State conflicts. Next to the military function (monitoring of cease-fire agreements, disarming and cantonment of troops and former guerilla fighters) police and administrative functions became more and more important. These functions include e.g. organizing and monitoring of elections, human rights monitoring, rebuilding of the administration of a State (justice system, police force, military defense forces). Moreover, second generation PKOs often include further civilian functions such as humanitarian relief operations, monitoring of refugees, repatriation of refugees and internally displaced persons, local conflict resolution. These operations usually are established to monitor and implement peace agreements or to play a role in decolonization. Examples for multifunctional PKOs are the operations in Central America (ONUCA, ONUS AL), Cambodia (UNTAC), Namibia (UNTAG), Angola (UNAVEM), Mozambique (UNOMOZ), Croatia (UNTAES) and Bosnia and Herzegovina (UNMIBH). Examples for a new type of multifunctional PKO are UNMIK in Kosovo and UNTAET in East Timor. These PKOs are mandated with the transitional administration of the territory including institution-building, maintaining law and order intergration into the global economy, etc. These different functions make it necessary that the operations contain not only military personnel but also police and civilian personnel. The latter two components are of growing importance. c) Peace-keeping operations with enforcement character ("third generation") The SC authorizes this type of operation under Chapter VII to offensive use of force to reach the goals of the mandate ("robust action"). This combination of

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PKOs with military enforcement actions necessarily leads to a loss of impartiality. It impairs the ability of the PKO to cooperate with all parties to the conflict and can have a negative effect on the operation. One of the first PKOs, ONUC in the Congo, showed already the problems that can arise when peace-keeping is combined with offensive use of force. Examples from the recent past are UNOSOM and UNPROFOR, which was equipped with a mandate to use force for certain goals (protection of "safe areas" for Muslims in the Serbian parts of Bosnia and Herzegovina). An essential problem, which arose in these operations, is the phenomenon of "mission creep" that became evident in Somalia and in Bosnia and Herzegovina. An operation, which originally was planned as a PKO, e.g. with a mandate to provide humanitarian relief, is authorized to use force when problems arise. Since the peace-keeping troops are only equipped with light weapons, they lack the necessary means for deterrence or actual use of force. If military enforcement is expected it would be necessary to equip the troops adequately to be successful. d) Preventive peace-keeping operations In the "Agenda for Peace" UN-SG Boutros-Ghali stressed the special importance of preventive measures. One possible measure of prevention is the preventive deployment of peace-keeping troops. This measure can be applied both in interState as well as in intra-State conflicts. Such preventive deployment can be a means of stabilizing the situation, can have deterrent effect, or may be used as a means of confidence building. In inter-State conflicts preventive deployment can be used on request of both parties, if they are of the opinion that the deployment on both sides of the border would contribute to the easing of the tensions. If one of the parties to a conflict feels threatened by the other, e.g. by massive stationing of troops along the border, it may also request unilaterally the deployment of peacekeeping troops on its side. In intra-State conflicts, preventive PKOs can have various functions: monitoring of human rights, support for the impartial distribution of humanitarian relief goods, prevention of use of force between the parties to the conflict, support in the maintenance of law and order. The preventive presence of a PKO can contribute to a climate conducive to negotiations, which might lead to a peaceful settlement of the dispute. The consent of the host country is a precondition for preventive deployment. In intra-State conflicts it is advisable to seek the consent of all parties to the conflict, to be able to conduct a successful operation. The composition of the PKO has to be decided from case to case. Besides military contingents also police contingents


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and civilian experts can play an important role. Up to now UNPREDEP, the operation in the Former Yugoslav Republic of Macedonia (FYROM), was the only case of preventive deployment. This operation was established by SC Res. 795 (1992). At first its mandate was restricted to monitoring the border between FYROM and the Federal Republic of Yugoslavia as well as Albania. Later on the mandate was expanded. SC Res. 908 (1994) "encourage[d] the Special Representative of the Secretary-General ... to use his good offices as appropriate to the maintenance of peace and stability...". The SRSG used this very flexible mandate to address also internal problems such as the tensions between ethnic groups. UNPREDEP has successfully completed its mandate in as much as it prevented the overspill of the conflict. The military component prevented a spread of the conflict across the border onto FYROM's territory mainly because of its deterrent character not because of its actual military potential. The participation of a US contingent may have contributed to the deterrence. Thus the question arises in how far the participation by a politically and militarily strong power is essential to provide a preventive PKO with the necessary deterrence potential. The actions by the civilian component contributed to stabilization and confidence building. The example of UNPREDEP shows that preventive operations, if equipped with adequate means and a flexible mandate and deployed in time, can contribute considerably to the maintenance of peace and security. e) Peace-keeping operations by regional organizations Chapter VIII of the Charter provides a role for regional arrangements and agencies in the maintenance of international peace and security. Every effort shall be made to achieve pacific settlement of local disputes through such regional arrangements or agencies before referring them to the SC (Art. 52 (2)). The SC shall encourage the pacific settlement of local disputes through such arrangements or agencies (Art. 53(3)). These provisions are the basis for regional peace-keeping. Regional organizations may conduct PKOs as long as those operations are in accordance with the purposes and principles of the Charter. In case of enforcement measures or measures without the consent of the parties to the conflict those measures have to be authorized by the SC (Art. 53(1)). The UN has conducted a number of PKOs together with regional arrangements or agencies. As stated in the "Supplement to An Agenda for Peace" (UN Doc. A/ 50/60-S/1995/1) certain guiding principles can be identified for such operations. A very flexible mandate is, however, necessary to be able to take into account the

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different character of the organizations and the respective circumstances of the operation. The primacy of the UN must be respected at all times. The competencies must be distributed clearly between the UN and the regional organizations, to avoid duplication and divergences. The cooperation and coordination has to be guaranteed during the entire operation. Ongoing consultations between the UN and the regional organization are imperative for the success of the operation. Peace-keeping contingents of the UN and of regional arrangements or agencies can either be deployed in combination or parallel. In a combined operation, the management, the command, and the selection of the contingents will be shared by the UN and the regional arrangements or agencies. Also financing of the operation will be born together. Examples for such operations are MICIVIH in Haiti and UNMIK in Kosovo where the UN cooperates with EU and OSCE. In a parallel mission the UN can have a leading role and be supported by regional organizations or agencies (e.g. the support for UNPROFOR by NATO's close air support, WEU's and OSCE's support in monitoring sanctions). It can also have the supportive role (e.g. UNOMIG's monitoring of CIS peace-keeping troops in Georgia/Abchazia, or UNOMIL's support for ECOMOG in Liberia). In parallel operations each operation has its own command structure. Nevertheless, close cooperation is necessary to conduct such an operation. The comparative advantage of a regional PKO may consist in a better knowledge of the culture, history and traditions of the region. Common history and culture might facilitate a peaceful solution of the conflict. The proximity to the conflict region, the common history and culture might, on the other hand, also be of disadvantage. Regional PKOs might be seen as partial. They are also often dominated by the most powerful State of the region and thus can be perceived as cover-up for the pursuance of hegemonic goals. This argument arose in context of ECOMOG's role in Liberia. This operation was conducted mainly by Nigeria, the strongest power in the region. Similar arguments can be made in context of the operations of CIS, e.g. in Georgia or the US in the framework of OAS operations. Whether an operation should be conducted by a regional arrangement or agency must be decided in every single case. The potential of regional arrangements and agencies should, nevertheless, be strengthened if the UN wants to expand the use of regional peace-keeping. The efforts made by the UN in capacity building for regional peace-keeping in Africa are steps in the right direction.


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5. Recruiting and Financing of Peace-Keeping Operations Member States contribute military and police contingents for PKOs on a voluntary basis. Civilian personnel and experts are assigned by the UN Secretariat, provided by Member States or recruited locally. The UN-SG selects the troop contingents and appoints the commanders for a PKO with the approval of the SC. In general, only States which have not been involved in the conflict and which do not have special interests in the region shall contribute troops. For many years the permanent members of the SC did not take part in PKOs since they were seen as partial. Until the end of the Cold War they only took part in PKOs in exceptional cases (e.g. UK in Cyprus, France in Lebanon). This rule is no longer been followed. The UK, France, the RF and the US took part in UNPROFOR. Participation of the permanent members facilitates obtaining the logistic support necessary for today's highly complex missions. Troops should be selected according to balanced regional distribution. They remain members of their national military force, are wearing their national uniforms, but carry UN emblems and blue helmets/barrettes. They are under the exclusive command of the UN commander of the operation in the field. A troop contributing State concludes a Memorandum of Understanding with the UN, which regulates the provision of troops and equipment, the questions of responsibility, and reimbursement of costs. Costs have to be borne by the troop contributing country until later reimbursed by the UN. Because of the constant financial problems of the UN, reimbursement is very slow. (For details on the financing of PKOs, see infra Schlesinger.) The growing number of PKOs, the ever-growing security risks of operations as well as the problems of financing are the reasons why States are more and more reluctant to provide troops. In particular logistic support for operations is difficult to obtain. Recruiting police contingents is even more difficult since police is not easily expendable in the sending States. The equipment for PKOs is usually provided by the sending State, which creates the problems of varying equipment within troops for an operation. In cases were the troop contributing State cannot provide the equipment it is made available by other States generating the need for special training before being deployed since the troops will not be familiar with the equipment. These problems of recruiting and obtaining the proper equipment often lead to a considerable delay in deployment. To reduce the time-span from the decision of the SC to establish an operation to the actual deployment the UN has developed a system of Standby-Arrangements. Member States provide information to the UN about forces and other capabilities, which they would be willing to provide for

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a PKO. Such resources may include military units, civilian and military specialists, equipment, civilian police contingents. The States also provide information on the time needed for deployment (30 days, between 30 and 60 days, between 60 and 90 days). Sixty per cent of the announced capabilities would be available within 30 days. Until the end of 1999, 87 Member States have joined the system, 65 of them have provided detailed information on specific capabilities they are prepared to offer. A total of 31 Member States have formalized their Standby Arrangements by signing a Memorandum of Understanding with the UN. This system of Standby Arrangements makes planning easier for the UN-SG; nevertheless, it is no guarantee for the availability of troops in a specific conflict situation. In case of the establishment of a PKO the States taking part in the system of Standby Arrangements have to be asked if they want to contribute and can deny their participation. In 1994, when the UN-SG asked for troop contributions to the operation in Rwanda not one of the 19 States, which were part of the Standby Arrangement System at that time, was willing to provide troops for UN AMIR. The Standby Arrangements information is registered in a UN database and has already proved to be most helpful in the planning of operations. Another attempt to reduce response time (i.e. the time needed from the request of troops addressed to a Member State by the UN-SG to the actual deployment) is the Danish initiative to create a Multinational United Nations Standby Forces High Readiness Brigade (SHIBRIG). This brigade will be available at high readiness for PKOs where rapid response is important. It should consist of up to 5000 troops and be deployable within 15 to 30 days. It could have particular utility for the early stages of a new PKO. Its deployment may last only up to 6 months to be replaced by regular peace-keeping troops. The Brigade was established by a number of small and medium-sized Member States, which participate in the Standby Arrangement system. The troops remain on standby in their home countries. To increase the affectivity of the brigade compatibility of training, command and control structures and equipment are ensured. The planning element of SHIRBRIG has been established and operates in Denmark. The project of a Rapidly Deployable Missions Headquarters (RDMHQ) is based on a Canadian/Dutch idea. It should be ready for fast deployment as operational headquarters at the beginning of a new operation. These headquarters should consist of a small group of people, which are stationed permanently in New York at UN Headquarters and exclusively deal with the planning and organization of future operations (approximately 8 people), further of personnel, which normally is occupied with other tasks at the UN and will be drafted when a crisis erupts, and of personnel, which the Member States will hold on standby. When a new operation is established this unit should be deployed immediately as provisional headquarters


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to prepare the necessary infrastructure for the operation. As soon as the peacekeeping troops have arrived and are operational the RDMHQ should be replaced by permanent headquarters out of the ranks of the peace-keeping troops. RDMHQ contains not only military personnel but also civilian personnel to be able to make the necessary contacts to humanitarian and other civilian organizations acting in the area. RDMHQ is currently being established, lack offinancesand of personnel, however, is the reasons why it is not yet operational. The United Nations Training Assistance Team (UNTAT) was created to help ensure consistent training for PKOs. It provides the necessary expertise for multinational peace-keeping simulations for training purposes to Member States and organizes training seminars for the trainers of police and military. In the training for PKOs special attention should also be given to specific training addressing local cultural sensitivities and gender-sensitivity. Training for peace-keepers is also organized by NGOs and governmental organizations.

6. Control and Command Structures The SC is in charge of the overall political decision-making. The Council decides on the establishment, the extension and the phasing out of a PKO. It also decides what the mandate of an operation, which reflects the political goals, should be. The UN-SG is entrusted with the strategic decision-making. He uses the Department of Peace-Keeping Operations for this task. The operational command and control in the field lies with the Special Representative of the UN-SG (SRSG) or the military commander. The necessity to have a clear command and control structure became particularly obvious in the Somalia operation. An independently acting US Ranger unit was ambushed by one of thefightingfactions of Somalia. Since UNOSOMII was not informed about the US operation, it did not arrive in time to help. Heavy casualties were the result. Also in Somalia, some of the commanders of peace-keeping contingents followed the orders of the UNOSOM commander only after having consulted with their national command in the capitals. The lack of a clear and coherent command impairs the affectivity of the operation and might create dangerous situations for other contingents. Troop contributors should influence decision-making of the commander in thefieldonly through the UN-SG. To ensure that interference by troop contributors is avoided a continuous dialogue between troop contributors and the UN-SG providing information about the progress of the operation is necessary. The "Situation Center", which was established in the DPKO in 1993, communicates permanently with PKOs, collects data and provides information about

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the newest developments in the field. It also serves the Member States as source for information about current operations.

7. Status of Forces in the Host Country a) Status-of-Forces Agreements (SOFAs) Agreements between the host State and the UN regulate the status of peace-keeping troops in the host country (Status-of-Forces Agreements). For this purpose the UN has developed a model agreement (Model Agreement by the UN 1990, UN Doc. A/45/594), which is the basis for the agreements to be concluded. Until a specific SOFA is concluded the provisions of the Model Agreement are applied. SOFAs regulate on the one hand the status of the operation as such, on the other the status of the members of the PKO. The Model Agreement foresees the application of parts of the Convention on Privileges and Immunities of the UN (1946) to PKOs and contains further specific provisions. aa) Status of peace-keeping operations The PKO has the obligation to act impartially and to follow local laws and regulations. The host country is obliged not to interfere with the operation, to guarantee freedom of movement and of communication, which also encompasses the building and operation of radio stations. The PKO, as a subsidiary organ of the UN, enjoys privileges and immunities, which are similar to those of diplomatic missions. These privileges and immunities include, in particular, the inviolability of the premises (i.e. government officials of the host country may only enter the premises of the PKO with the consent of the commander), the freedom from search, requisition, attachment or execution, the inviolability of archives, and the exemption from taxes. It may use roads, bridges, harbors, airfields etc. without paying dues or charges. The host State is also committed to offer premises for the administration of the PKO and for the accommodation of troops free of charge. bb) Status of PKO personnel The host country grants certain privileges (such as exemption from taxes and duties) and immunities (such as exemption from the jurisdiction of the host State). The SRSG, the military commander of the PKO, the commander of the civilian police contingent and other high ranking officials enjoy immunity from criminal and civil jurisdiction of the host State for all their actions (absolute immunity) if so agreed by the host State. All other members of the PKO, including personnel recruited locally, enjoy immunity from legal process (criminal and civil) only for acts


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committed in their official capacity (functional immunity). Military personnel are exempt from the criminal jurisdiction of the host State for all its actions, also those not committed in their official capacity. They are exclusively subject to the criminal jurisdiction of the sending State. Civilians, on the contrary, are subject to the criminal jurisdiction of the host State for acts not committed in their official capacity. The SRSG/Commander shall conduct any necessary inquiry and agree with the Government whether or not criminal proceedings should be instituted. The Head of the PKO is to be informed if civil proceedings are to be instituted against a Member of the PKO. He will decide whether the acts concerned were committed in the official capacity of the person. In case the SRSG/Commander cannot reach agreement with the host State, the question will be decided by the "Standing Claims Commission" established according to the SOFA. Any dispute or claim of private law character to which the PKO or any member of it is aparty and over which the courts of the host country do not have jurisdiction because of immunity, shall be settled by the Standing Claims Commission. All disputes between the UN and the host country arising out of the interpretation or application of the SOFA, which involve questions of principle concerning the Convention on Privileges and Immunities of the UN, shall be subject to an Advisory Opinion of the ICJ, if the parties do not agree on any other procedure. The parties shall accept the Advisory Opinion as decisive. b) Convention on the Safety of United Nations Personnel and Associated Personnel- 1994 (UNSafety Convention) The number of attacks and other violent acts against peace-keepers rose considerably in the course of complex operations, in particular in intra-State conflicts. This breakdown of respect for UN peace-keepers made it necessary to urgently conclude a legal instrument for the protection of UN personnel taking part in PKOs. Neither the "General Convention on Privileges and Immunities of the UN"(1946), "the Convention on Experts on Mission for the UN" (1969), nor the "Convention on Crimes against Internationally Protected Persons" (1973) are applicable to all members of a PKO. This lacuna was filled by the elaboration of a "Convention on the Safety of United Nations Personnel and Associated Personnel". The 54th GA adopted in December 1994 the draft with GA Res. 49/59. The Convention came into force in January 1999. The Convention obliges the State parties to ensure the safety of UN personnel

and associated personnel stationed on their territory (Art. 7 UN Safety Convention). The intentional commission of the following crimes shall be made a crime under the national laws of the State parties and shall be made punishable by

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appropriate penalties, which take into account the grave nature of the crimes (Art. 9 UN Safety Convention): • a murder, kidnapping or other attacks upon the person or liberty of any UN or associated personnel; • a violent attack upon the official premises, the private accommodation or the means of transport of any UN or associated personnel likely to endanger his or her person or liberty; • a threat to commit any such attack with the objective of compelling a physical or juridical person to do or to refrain from doing any act; • an attempt to commit any such attack; and • an act constituting participation as an accomplice in any such attack, or in an attempt to commit any such attack, or in organizing or ordering others to commit any such attack. "Personnel of the UN" is defined as persons engaged or deployed by the UN-SG as members of the military, police or civilian components of a UN operation as well as other officials and expert on mission of the UN or its specialized agencies, who are present in an official capacity in the area where the operation is conducted. (Art. 1 lit. a UN Safety Convention). "Associated personnel" means persons assigned by a Government or intergovernmental organization with the agreement of the competent organ of the UN, persons engaged by the UN-SG, and persons deployed by a humanitarian non-governmental organization or agency under an agreement with the UN-SG to carry out activities in support of the fulfillment of the mandate (Art. 1 lit. b UN Safety Convention). "UN operations" is defined as operation established by the competent organ of the UN in accordance with the Charter and conducted under UN authority and control. The purpose of this operations must be maintaining or restoring international peace and security. The convention is also applicable to operations where the SC or the GA has declared that there exists an exceptional risk to the safety of the participating personnel (Art. 1 lit. c UN Safety Convention). The Convention is not applicable to UN operations authorized by the SC as enforcement action under Chapter VII, in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies (Art. 2 UN Safety Convention). The host State and the UN are under an obligation to conclude a SOFA for each operation as soon as possible (Art. 4 UN Safety Convention). The Convention also obliges all State parties to either try crimes committed against UN and associated personnel or to extradite the alleged offender {autdedere


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aut iudicare). In cases where the alleged offender is a national of the State party or the crime was committed in its territory, the State party has to establish jurisdiction and to try the offender. If the offender was a stateless person with habitual residence in the State, if the victim was a national of the State or if the act was committed to compel the State to do or refrain from any act, the State may establish jurisdiction and try the offender (Art. 10 UN Safety Convention). This very wide definition of jurisdiction and the obligation to either try or extradite the alleged offender should make impunity for the offender impossible. c) Observance by UNforces of international humanitarian law With the involvement of peace-keeping troops into enforcement action the question whether those troops are bound by international humanitarian law became more and more important. The UN itself is not a party to the Geneva Conventions of 1949 and the two Additional Protocols of 1977 and thus not legally bound by those treaties. To clarify this question the UN-SG issued a bulletin in August 1999 setting out fundamental principles and rules of international humanitarian law applicable to UN forces conducting operations under UN command and control. These fundamental principles are applicable for UN forces when they are actively engaged in situations of armed conflict as combatants, to the extent and for the duration of their engagement. These rules are accordingly applicable in enforcement actions and in peace-keeping operations where the use of force in self-defense is permitted. This bulletin states that members of a UN force will follow the rules established by humanitarian law on the protection of the civilian population, the means and methods of combat, the treatment of civilians and persons hors de combat, the treatment of detained persons and the protection of the wounded, the sick, and medical and relief personnel. In case of violations of these principles and rules of international humanitarian law, members of the military personnel of a UN force are subject to prosecution in their national courts. 8. Future Prospects for Peace-Keeping Operations The euphoria after the Cold War crisis led to a rise in PKOs culminating in 78,000 persons engaged in operations in 1994. Euphoria was soon followed by disillusionment. The problems of complex operations such as UNOSOM and UNPROFOR led to a reluctance to establish new operations. But the risks of complex operations were not the only reasons for this reluctance. The permanent financial crisis of the UN, which caused constant delays in the reimbursement of costs to troop

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contributors, makes it also difficult to obtain the necessary troops. Furthermore, UNOSOM and UNPROFOR also showed the limits of PKOs. The mandates of both operations were not clearly defined. The continuous expansion of the mandate, in particular in the case of UNPROFOR, led to the phenomenon of "mission creep". A PKO, which was originally conceived as a humanitarian relief operation was in its late stages entrusted with an enforcement mandate without adequate preparation and means for offensive use of force. It became obvious that a PKO, which on the one hand had to use force against a party to the conflict, on the other hand needed the cooperation of the parties, could not be successful. The conclusion, which has to be drawn from this experience, must be that operations with enforcement character have to be conducted in a different manner and with different means as PKOs. Missions particularly in areas, which are not under the effective control of the Government, but are controlled by fighting factions, should not be conducted in the framework of a PKO. These enforcement missions should be conducted by troops especially recruited and adequately equipped for such operations. The inability of the UN to respond to the crisis in Rwanda and to prevent the genocide also demonstrated horribly the shortcomings of the Organization. The reports on Srebenica and Rwanda commissioned by UN-SG Kofi Annan further pointed out the reasons for these failures. In May 2000 the UN-SG convened a panel of experts on UN Peace Operations. This Panel should assess the UN's ability to conduct peace operations effectively and offer recommendations to enhance the capacity. The Panel delivered its report (Brahimi-Report - UN Doc. A/55/305-S/2000/ 809) in time to be discussed by the Millenniums GA. It focusses on the institutional and resource problems of the UN. It underlines the importance of prevention, which necessitates a capacity for information and data gathering, management and strategic analysis. It asks for realistic mandates for PKOs and the means to implement them if necessary with force. Improved mission guidance and leadership as well as more rapid would be essential for successful PKOs. The Panel recognizes further the lack of sufficient capacity to plan and support missions on the headquarters level. In its conclusions, the Panel makes a number of concrete recommendations (see Brahimi-Report: Conclusions and Recommendations infra Annex II). It states that more financial but also human resources are necessary for better planning and implementation. Among the Report's important recommendations is the advice that the SC should wait with a final decision on a PKO until the needed resources are readily deployable. To shorten the response time the Panel recommends to set up rosters of military, police and civilian experts which would be available at short notice. UN peace operations will have a successful future only if at least some of these recommendations will be supported by Member States and implemented by the UN-SG.

Peace-Building Activities of the United Nations Bert Theuermann

Literature: de Soto/del Castillo, Obstacles to Peacebuilding, Foreign Policy, 94 (Spring 1994), 69; Boutros-Ghali, An Agenda for Peace, 2nd ed, with the new supplement and related UN documents (1995); Report of the International Colloquium on Post-Conflict Reconstruction Strategies, held at the Austrian Study Centre for Peace and Conflict Resolution, Schlaining, 2324 June 1995, UN Doc. A/50/345 (10 August 1995); del Castillo, Post-conflict peace-building: a challenge for the United Nations, CEPAL Review 55 (April 1995), 27; Theuermann, Legitimizing Governments through International Verification: The Role of the United Nations, AJPIL 49 (1995), 129; Henkin (ed.), Honoring Human Rights and Keeping the Peace, Lessons from El Salvador, Cambodia, and Haiti, (1995); Ktihne, Winning the Peace, Concept and Lessons Learned of Post-conflict Peacebuilding, (1996); Kuhne, The Transition from Peacekeeping to Peacebuilding, Planning, Coordination and Funding in the Twilight Zone( 1997); Joint Inspection Unit, Coordination between United Nations agencies involved in peace-building, UN Doc. A/ 52/430 (2 October 1997); OECD/DAC, Conflict, Peace and Development Cooperation on the Threshold of the 21st Century, Policy Statement (May 1997); OECD/DAC, Guidelines on Conflict, Peace and Development Co-operation (1997); Henkin (ed.), Honoring Human Rights, From Peace to Justice (1998); Building Justice: A Conference on Establishing the Rule of Law in Post-Conflict Situations, Special Issue of the Aufienpolitische Dokumentation of the Federal Ministry for Foreign Affairs of Austria (1998); Coordination between United Nations agencies involved in peace-building, Note by the Secretary-General, UN Doc. A/52/430/Add. 1 (3 August 1998); United Nations, Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa, Report of the Secretary-General, UN Doc. S/1998/318 of 13 April 1998; The World Bank, Post-Conflict Reconstruction, The Role of the World Bank (1998); Stiefel, Rebuilding after war: lessons from the war-torn societies project, The War-torn Societies Project (WSP) (1999); UNDP, Governance Foundations for Post-Conflict Situations: UNDP's experience (November 1999); UNDP, Meeting the challenge: the role of UNDP in crisis, post-conflict and recovery situations, 2000-2003, UN Doc. DP/2000/18 (20 March 2000); UNDP, Sharing new ground in post-conflict situations, The role of UNDP in support of reintregration programmes, UN Doc. DP/2000/44 (21 March 2000); Forman/Patrick/Salomons, Recovering From Conflict: Strategy for an International Response, Center on International Cooperation (2000); UNIFEM, Women at the Peace Table, Making a Difference (2000).

1. Origins The concept of peace-building is relatively new, and was developed in the years since the end of the Cold War and is closely connected with the increasing involvement of the United Nations in internal conflicts. In the early 1990s, the UN became engaged in the resolution of several long-standing conflicts, facilitated by the easing of the East-West tensions and by broad support for peace among


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parties and people concerned. The UN was entrusted with a leading role in the elaboration and implementation of comprehensive peace agreements. Subsequently, the UN was confronted with even more daunting challenges in situations of complex conflicts and emergencies that often were characterized by a breakdown of political and economic structures and the dominance of warlords. The agenda of the UN Security Council is dominated by such conflicts. The change in the nature of conflicts has profound implications for the conflict management of the UN. Political, economic and social factors as well as bad governance are primary causes of conflict that often lead to marginalization or uprooting of populations, or gain a dangerous ethnic or nationalistic dimension exacerbated by "ethnic entrepreneurs". In addition to military measures these root causes of conflict must be addressed in order to find durable solutions. Thus, measures of peace-building can comprise, inter alia, the disarmament, demobilization and reintegration of combatants, de-mining, the repatriation and re-integration of refugees and internally displaced persons, national reconciliation, the strengthening of national institutions and democratic structures, the reform of the judiciary and police, and economic reconstruction. With all these measures a political objective is being pursued: to put a fragile peace on a durable basis and to ensure human security for the population and thus to avoid a relapse into conflict. In 1992, when the UN-SG was requested by the SC to present proposals for a strengthening of the UN in the areas of preventive diplomacy, peace-making and peace-keeping, he presented in his "Agenda for Peace" an additional, closely related concept, "post-conflict peace-building". Thereby the UN-SG wanted to close a gap in conflict management that became apparent in the practical work of the UN: preventive diplomacy should prevent the outbreak of conflict; if these efforts fail and a conflict escalates the instruments of peace-making and peace-keeping come into play. If with these means a formal termination of the conflict can be achieved, measures of peace-building shall address the root causes of conflict in order to prevent its return. Originally, the concept of peace-building was developed primarily with a view to post-conflict situations. Peace-building was seen at the end of the conflict curve, i.e. as a counterpart to preventive diplomacy. It was quickly recognized, however, that such a schematic sequence contradicts reality. In fact, measures of peace-building can be brought to bear both for the prevention of conflict and during an ongoing conflict. Today, peace-building efforts are therefore an important component in all phases of conflict management: as an element of preventive diplomacy ("preventive peace-building"); during an ongoing conflict with the goal of strengthening the elements in favor of peace and in particular in the phase of the ending of a conflict. The concept of peace-building was developed and further refined in the daily

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work of the organization and applied in concrete situations of conflict. In his Program of Reform the UN-SG highlighted the importance of peace-building. The "Report of the Panel on UN Peace Operations (Brahimi-Report)" contains several recommendations to strengthen the capacity and improve strategies for peace-building activities of the UN system (see Annex II). Its aim is to ensure integrated and coordinated action by the international community in conflict situations. Traditionally, the instruments for comprehensive conflict management are highly fragmented: political mediation and peace-keeping, humanitarian assistance, development cooperation, and human rights fall within different organizations and responsibilities -both in international organizations and in donor countries - and follow different and distinct concepts, mandates and funding mechanisms. In conflict situations and their aftermath, peace-building wants to achieve political objectives with predominantly non-military means. A multitude of external actors is becoming involved: parts of the UN system including the Bretton Woods Institutions, regional organizations, donor countries, international NGOs. Local authorities and stakeholders are often weak, lacking legitimacy and/ or capacity. Peace-building aims at bringing all these international actors together around a joint strategy for durable peace elaborated together with local partners - government and civil society. Such a joint strategy shall identify objectives, principles and priorities and include a division of labor and responsibility. In this way, a coordinated and efficient use of scarce resources shall ensure the achievement of the political goal of sustainable peace, sustained by local actors and capacities. In cases of the deployment of a peace operation, this strategy also aims at the inclusion or continuing adaptation of the mandate towards peace-building tasks, as well as the continuation of peace-building efforts after the withdrawal of the operation. Increasingly, peace-building support structures are being established to ensure a smooth transition to post-conflict peace-building. Most international and regional organizations and many donors are paying increased attention to the concept of peace-building and develop specific programs and policies. One of the key challenges today is to harmonize all these programs and coordination structures. The World Bank elaborated its policies for intervention in post-conflict situations and established response structures and mechanisms. Also the International Monetary Fund undertook a review of its role and policies in this area. The Development Assistance Committee (DAC) of the OECD undertook an extensive study and adopted a political declaration on the role of development cooperation in different phases of conflict. This paper concentrates on the UN system.

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2. Definitions and Legal Foundations In An Agenda for Peace, post-conflict peace-building was defined as "action to identify and support structures, which will tend to strengthen and solidify peace in order to avoid a relapse into conflict". In his Supplement to An Agenda for Peace, the UN-SG emphasized that the concept of peace-building is not only applicable to post-conflict situations, but rather in all phases of a conflict beginning with measures for the prevention of a conflict. As the UN-SG put it in his report on the work of the Organization in 1998, peace-building "involves integrated and coordinated actions aimed at addressing the root causes of violence, whether political, legal, institutional, military, humanitarian, human rights related, environmental, economic and social, cultural or demographic, and laying the foundations for durable peace. Post-conflict peace-building may be seen as a long-term conflict prevention strategy". The SC and the GA received the concept of peace-building positively. The SC welcomed the proposals contained in An Agenda for Peace in a statement of its President (UN Doc. S/25696 of 30 April, 1993). Also the further development of the concept in the Supplement was welcomed in a statement by the SC President (UN Doc. S/PRST/1995/9 of 22 February 1995). Therein the SC requests the UNSG, inter alia, to take measures for an effective coordination of the UN and other involved agencies. In December 1998, the SC held an open debate on "The maintenance of Peace and Security and Post-Conflict Peace-Building". The statement made by the President of the SC on that occasion (UN Doc. S/PRST/1998/38 of 29 December 1998) is so far the most comprehensive generic policy formulation of the SC on peace-building. The SC recognizes the importance of the post-conflict peace-building efforts of the UN system, and the value of including peace-building elements in mandates of PKOs, emphasizes the need for a smooth transition from peace-keeping to post-conflict peace-building, and supports the approach of the UN-SG in establishing post-conflict peace-building structures. At the same time, the SC affirmed "its commitment to the principles of the political independence, sovereignty and territorial integrity of all States in conducting peace-building initiatives and the need for States to comply with their obligations under the UN Charter and the principles of international law". In addition, the SC addressed the matter of disarmament, demobilization and reintegration of ex-combatants in a peace-keeping environment as part of its continuing efforts to contribute to enhancing the effectiveness of UN peace-keeping and peace-building activities (Presidential statements by the SC, UN Doc. S/PRST/1999/21 of 8 July 1999 and S/PRST/2000/10 of 23 March 2000). The GA acknowledged the usefulness of the proposals of the UN-SG in its Res.


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47/120B of 20 September 1993 and gave the UN-SG, notwithstanding the emphasis on the principle of non-interference into internal affairs, a very broad and general mandate to undertake peace-building activities on the basis of a peace agreement or a request of government(s) concerned. The request contained in the resolution, to inform the GA on incoming requests for UN involvement in peace-building, has not been followed up systematically by the UN-SG. Instead, information on peacebuilding efforts of the UN has become an integral component of the reporting of the UN-SG on specific conflict situations to the SC (or if a specific mandate emanates from it, to the GA). Peace-building understood as a broad based approach to crisis prevention and resolution in all phases of conflict guides the daily work of the UN system and finds in concrete situations also the approval of UN Member States, in particular in the SC. The comprehensive approach to peace-building has, however, not yet been formally approved by the entire UN membership. A working group of the GA established to formulate a response to the Supplement, failed to achieve consensus over the question of the division of responsibilities between the SC and the GA. Some members of the G-77 strongly held the view that peace-building should be limited to post-conflict situations and be strictly separated from peace-making and peace-keeping. While the SC shall be competent to mandate (narrowly defined) peace-keeping operations, the primary responsibility for peace-building and for mandating concrete peace-building activities should belong to the GA. Western countries were only prepared to acknowledge a role for the GA in the conceptual development of peace-building. Particularly the permanent members of the Council rejected any restriction of the competence of the SC. The demand for assigning the primary responsibility for peace-building to the GA appears, however, also legally flawed since it contradicts the division of responsibilities of the UN Charter and existing mandates of different programs and agencies of the UN system. As a rule, the UN becomes involved in conflict and post conflict situations on the basis of a request of the country/ies concerned and/or an agreement for the termination of a conflict. The peace-building tasks assigned to the UN can fall within the responsibility of different parts and programs of the UN system: elements of peace-building are increasingly included in the mandate of the SC for a peace-keeping operation (PKO). In some cases, the GA is mandating the deployment of a political presence without military component. Most measures of peace-building are covered by general mandates from the UN Charter and/or general decisions of intergovernmental bodies: on the basis of his broad good offices mandate, the UN-SG can appoint special representatives for specific conflict situations, who, often with the support of small political presences in situ, facilitate and coordinate measures of peace-building. The provision of

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humanitarian assistance is based on general mandates of the responsible organizations, in particular UNHCR, WFP and UNICEF. Development activities, for example technical assistance for the strengthening of national institutions, or for the preparation of elections, are undertaken on the basis of general mandates given by the Executive Boards of the respective funds and programs. Also the deployment of a human rights field mission is only in exceptional cases based on a specific decision of the GA or the SC (human rights components in PKOs). Most human rights presences of the UN High Commissioner for Human Rights are established on the basis of an agreement with the government concerned with the High Commissioner acting on her general mandate given by the GA. A large part of measures of peace-building can thus be carried out on the basis of existing mandates of the UN-SG and other parts of the UN system. Only in narrowly defined situations is there a need for a specific mandate of the SC or (in cases of non-military operations) of the GA. On the part of the UN secretariat, a strong preference exists for involving the SC: in most cases, the SC is already seized with a particular conflict situation. Furthermore, only the SC functions as a permanent organ that has at its disposal the required powers in order to exercise pressure on the parties in the implementation of a peace program, if necessary. In contrast, the GA is an organ difficult to mobilize and hardly able to formulate a clear message and political will vis-a-vis conflict parties. The same reservations apply concerning the idea of enhancing the role of ECOSOC in coordinating the response of the UN system in post-conflict situations. In some cases, the UN Secretariat seeks a specific intergovernmental mandate, although it is legally not required to do so. This can happen in order to receive clear political support of the international community, or in order to guarantee a stable financing of the operation. In the current practice, the UN-SG, with the consent of the government concerned, decides on the establishment of post-conflict peace-building support structures. The SC welcomes these decisions and provides political support to the mission.

3. Content of the Concept of Peace-Building Peace-building is being understood by the UN as a comprehensive approach to conflict prevention and resolution that involves integrated and coordinated action by different actors aimed at addressing the root causes of conflict and laying the foundation for durable peace. Depending on the requirements of the specific situation this can involve political, military, humanitarian, human rights, economic, or social factors. In order to achieve durable peace, the international community should, together with local partners become active simultaneously in several areas:


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measures in the politico-military, humanitarian, developmental, economic and social fields shall not be undertaken independently, but in a holistic integrated manner. The priorities of the peace-building strategy shall be identified on the basis of an analysis of the root causes of conflict and serve as guidelines for the mutually coordinated and harmonized activities of the international community. Political considerations of achieving lasting peace shall guide also the humanitarian and developmental activities. Peace-building does not replace traditional instruments of humanitarian assistance and development cooperation. Rather, it gives them a political framework; in addition to the immediate goal of bringing relief and assistance to people in need, it should also contribute to the overall goal of conflict prevention or resolution. All actors within and outside the UN system should contribute to the accomplishment of these objectives. Experience shows, that in a conflict or post-conflict situation, one is simultaneously confronted with multiple challenges: a security challenge in the face of armed forces and combatants, the spread of small arms and light weapons and the lack of the rule of law; a humanitarian challenge because of refugees, internally displaced persons and other victims of war; a legitimacy challenge of existing power structures as well as a developmental challenge because of poor or destroyed economic capacities and infrastructure. The concept of peace-building as a simultaneous and parallel employment of political, military, humanitarian and developmental instruments replaces the concept of a "continuum" from humanitarian relief to development. Peace-building should contribute to the creation and/or strengthening of a political, social and economical order in which a peaceful resolution of conflict with democratic instruments is possible and an economic reconstruction under the inclusion of all social groups is initiated. In addition to meeting the immediate needs in the aftermath of conflict, measures of peace-building aim at addressing the root causes of conflict and the (re-)establishment of political and economic stability. Local partners who can build legitimate public and civil society structures should be identified and supported. This includes questions of distribution of political power and resources, as well as the participation of all sectors of society, in particular women's groups, in the political and economic development of the country. An important element is the restoration of human security as well as confidence between the people and the government and/or between population groups. Confidence building can also be promoted through collaboration in rehabilitation programs, which bring former adversaries together e.g. for the restoration of common services. Such measures of confidence building and reconciliation must also address the question of accountability and prosecution for crimes and violations of human rights in the past. Peace-building can comprise a broad spectrum of measures, which fall into the

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responsibility of various parts of the UN system, and beyond. The activities to be undertaken in a specific situation depend on the respective requirements and priorities. In all activities, the participation of women shall be ensured and a gender perspective shall be applied in all peace-building activities. The different types of activities can be summarized as follows: • relief and humanitarian assistance, i.e. fulfillment of the immediate and basic needs of people (e.g. food, water, primary health care); • reintegration of refugees and internally displaced persons; addressing the needs of particularly affected groups, in particular women and children; strengthening of marginalized population groups within society, e.g. minorities and indigenous; strengthening of civil society; • disarmament, demobilization and reintegration of ex-combatants, including child soldiers; demining; building of a legitimate monopoly for the use of force through reform of the army and the police; • political transformation towards a democratic and participatory form of government; strengthening of civil society; support for electoral processes; strengthening of human rights and the rule of law; • reconciliation and confidence building measures; establishment of mechanisms for dealing with the past; • economic rehabilitation and reconstruction: rebuilding of infrastructure; strengthening of national planning and absorption capacity; employmentcreation; favorable climate for private enterprise and foreign investment; reintegration into the international economy.

4. Implementation of the Concept of Peace-Building by the UN System One of the key elements of the concept of peace-building is the recognition of the necessity for an integrated and timely response by the entire UN system including the Bretton Woods Institutions and the international community to a potential or actual conflict situation. Such integrated action should be based on a joint assessment and strategy adapted to the specific conditions of the particular case. It requires a fundamental rethinking among all actors involved. In the past, different intervention mechanisms of the UN system came into play in conflict situations in a mostly separated and uncoordinated manner: Political mediation is led by the UN-SG, represented by a Special Representative (SRSG), often as head of a PKO. Many intergovernmental and non-governmental organizations are involved in providing humanitarian assistance. The main responsibility in the area of development cooperation belongs to the UNDP Resident Representa-


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tive, who regularly also assumes the function of "Resident Coordinator (RC)" of the UN Country Team. In certain situations, a "Humanitarian Coordinator (HC)", in the past distinct from the "Resident Coordinator", is appointed. This fragmentation at field level is reflected in the separation at headquarters: the SRSG reports to the "Department of Political Affairs (DPA)", or in the case of a PKO to the "Department of Peace-Keeping Operations (DPKO)", the Resident Coordinator reports to UNDP and the UN Development Group (UNDG); humanitarian organizations report to their respective headquarters, a humanitarian coordinator reports to the "Office of the Coordinator for Humanitarian Affairs (OCHA)". In addition to different lines of authority, this implies different mandates, conceptual approaches and goals, sometimes intensified by conflicts of competence and authority. These shortcomings led to situations where in spite of a significant involvement and financial resources only limited contributions to the establishment of durable peace were made. The concept of peace-building introduces new approaches and a more systematic way of working together addressing the problem of disjuncture between political and assistance strategies and between relief and development. The dividing lines of different organizations and approaches shall be overcome. In conflict situations, the humanitarian and development programs shall carry out their activities in a coordinated and integrated manner contributing also to the overall political objective of preventing conflict or resolving it on a lasting basis. To this end, the UN-SG mobilized the entire system for the task of peace-building. Within the framework of the "Administrative Committee on Coordination (ACC)" and in particular in his Program of Reform, the UN-SG undertook steps to ensure that the entire UN system becomes active in crisis situations in a more integrated and coherent manner that also supports the political objective of consolidating peace. In conflict situations, the following aspects shall therefore be addressed: • an analysis of the concrete situation in the country; • the clarification of the political implications; • the establishment of the priorities for the response strategy and the reconstruction program. On the basis of existing coordination mechanisms, a system of coordination was established that shall guarantee the elaboration and implementation of an integrated peace-building program in concrete country situations. The main political responsibility rests with the UN-SG. He should identify the political objectives and ensure that the activities of different parts of the UN system are in conformity and supportive of them. Individual projects shall be mutually reinforcing, contribute to the overall peace-building strategy and, through their involvement, strengthen the "ownership" of the process by the local population and institutions. The

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UN-SG should provide the political strategy; the UN funds, programs and specialized agencies should contribute to its elaboration and define their priorities and activities on its basis. The flow of information and input goes in both directions: developmental and humanitarian actors should "inform and be informed" by the political process led by the UN-SG. Therewith several objectives should be fulfilled: • ensure that the relevant programs, funds and agencies are informed about the action the UN-SG is taking to fulfill his political mandates and are invited to provide him with information and assessments relevant to his efforts; • inform them if, in the UN-SG's judgment, their existing activities need to be harmonized with the overall political strategy; • identify in each case, benefiting from the expert advice of the appropriate programs, funds and agencies, specific peace-building activities that could strengthen the UN-SG's political efforts; • monitor the political effects of the agreed activities and keep under review any adjustment that might be necessary. Both at headquarters and in the field, arrangements have been made to ensure the implementation of the peace-building strategy and the political guidance in the process. Efforts have been undertaken within the UN system, in particular DPA, DPKO, OCHA, UNHCR, OHCHR, UNDP, UNICEF and WFP to enhance their capacities and improve programming tools to respond to crisis and post-conflict situations and to better harmonize their policies. This includes a better linkage of traditional planning instruments, in particular the "Consolidated Appeals Process (CAP)", the "Common Country Assessment (CCA)" and the "UN Development Assistance Framework (UNDAF)". Steps have been taken to address the gap between the "relief phase" and the "development phase" of assistance programs and to undertake better and quicker urgent recovery activities. The humanitarian agencies have broadened their scope to include short-term rehabilitation and quick impact activities. UNDP has created specific programs for countries in special development situations. As one tool to achieve integrated action, the ACC has agreed on the concept of a "strategic framework for response to and recovery from crisis". The strategic framework process is based on a comprehensive, holistic approach and is intended to introduce a common conceptual tool for identifying, analyzing and prioritizing the key issues and problems to be addressed in a specific situation. It allows the UN system to adopt strategies for meeting the needs of the country in crisis on the basis of shared principles and objectives, with clearly defined and complementary roles for different actors. It shall involve not only all parts of the UN system, but also national actors (government and civil society) and other bilateral and


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multilateral donors and NGOs active in a particular country. This far-reaching strategic framework process was supposed to guide the overall work of the UN system in conflict situations. Afghanistan served as a test case where the entire UN system and donors elaborated jointly a "strategic framework for Afghanistan" providing for a political strategy and field-based arrangements for the common programming of international assistance to the country. The experience has, so far, shown mixed results; the plan for further strategic frameworks, e.g. for Sierra Leone, has so far not been implemented. The different parts of the UN system remain reluctant to subscribe to such far-reaching arrangements. Also, the status of actors outside the UN system remains unclear. The strategic framework approach shall therefore only be applied in special cases, e.g. of a failed state, or where the UN has encountered significant difficulties in harmonizing its policies. In follow-up to the Brahimi-Report, the UN system is undertaking another attempt to elaborate a system-wide approach to peace-building for endorsement by the ACC. a) Integration at headquarters Following the recommendation of an internal study, the UN-SG, in his Program of Reform, designated the "Department of Political Affairs (DPA)" as the focal point for peace-building within the UN system. This is in line with the political character of peace-building, as well as with the fact that the DPA, as convenor of the "Executive Committee on Peace and Security (ECPS)", takes the lead in the area of peace and security. The design and implementation of peace-building initiatives shall be undertaken in close collaboration with other parts of the UN system, especially DPKO, the OHCHR, OCHA, UNHCR, UNDP, UNICEF, WFP and the World Bank. A "Peace-building Unit" is being established in DPA in close cooperation with other relevant actors in the UN system. General coordination takes place through the Executive Committee on Peace and Security, in collaboration with the "Executive Committee on Humanitarian Affairs (ECHA)" and the "UN Development Group (UNDG)". Also the "Inter-Agency Standing Committee (IASC)" for humanitarian affairs plays an important role. For specific conflicts or peace-building initiatives, ad hoc groups or task forces can be established. b) Integrated action at field level The arrangements for the implementation of the peace-building strategy in the field depend first of all on whether a "Special Representative of the SecretaryGeneral (SRSG)" has been appointed for the conflict situation in question. In the past, an SRSG was normally only appointed and in place in case (and for the duration) of a PKO. Increasingly, SRSGs are appointed and present in situ irrespective of a peace-keeping presence. In addition to mediation and negotiations

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with the parties to a conflict they shall also ensure support for the peace process through facilitating concrete peace-building activities. The SRSG assumes political leadership and shall ensure a consistent policy of the entire UN presence in the country, both vis-a-vis local and external actors. In recent years, the position of SRSG has been strengthened. In order to ensure a close link and cohesion between his/her political efforts and the ongoing activities of the UN Country Team, it is now established practice to appoint the "UN Resident Coordinator" as "Deputy SRSG", who is in charge of operational coordination of the development activities of the UN system. The humanitarian organizations are integrated into this structure by the fact that the "Resident Coordinator" performs normally also the function of the "Humanitarian Coordinator". In case a distinct humanitarian coordinator has been established, s/he is also part of this structure. This close integration of political, humanitarian and developmental actors ensures coherent action but also makes the transition in case of withdrawal of a PKO easier. It also facilitates the transition from peace-building to normal development cooperation and the eventual conclusion of the mandate of an SRSG. These arrangements increasingly take the form of specific "peace-building support structures" established by the UN-SG in the transition process from a PKO or even instead of a politico-military presence. In many situations, the UN Country Team, which is present before, during and after conflicts, undertakes a broad range of peace-building activities. In situations, where no SRSG has been appointed, or after the departure of an SRSG, the "UN Resident Coordinator" is responsible for the implementation of the peace-building strategy at field level. During the phase of implementation the focus and lead of UN efforts should move from headquarters to the field. The SRSG shall elaborate jointly with the UN Country Team and in particular local partners the specific peace-building strategy on the basis of agreed principles and priorities. The SRSG should ensure its implementation through close collaboration with all actors, the monitoring of their activities, as well as, if necessary, an adaptation of priorities. The headquarters should evaluate and, if necessary, adapt the political strategy, in close cooperation with the SRSG and the UN Country Team. Furthermore, headquarters should ensure the necessary financial support and in particular the political support by the international community through consideration by the SC or the establishment of informal groups of countries especially interested in a particular situation ("support groups", "friends of the UN-SG"). There can be tensions and conflicts of interest/objectives among different actors. The UN Country Team remain in a country also after the withdrawal of a peace-keeping or peace-building presence and their functioning is generally based on a close cooperation with the government concerned. On the other hand, the


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political efforts of the UN-SG or his Special Representative will only succeed if s/ he is perceived as impartial and wins also the confidence of other parties to the conflict. Pressure on the parties to the conflict might be necessary in order to bring them to the negotiating table or to ensure compliance with the peace agreement. The priorities of peace-building could call for the preferential treatment of specific groups, e.g. ex-combatants, while humanitarian assistance shall be provided in accordance with the principles of humanity, impartiality and neutrality on the basis of anon-discriminatory assessment of needs. Political mediation efforts can become complicated by critical and exposing reports by the UN human rights program on human rights violations committed by the parties, or by the work of criminal (ad hoc) tribunals. c) Relationship between the UN and other actors; cooperation with the Bretton Woods Institutions In most conflict situations a multitude of external actors becomes involved: in addition to the UN and its funds, programs and specialized agencies, including the Bretton Woods Institutions, regional organizations, bilateral donors and international NGOs. For the success of peace-building it is indispensable that the activities of all these actors are well coordinated and follow a coherent political strategy. Otherwise the danger exists that contradictory goals and policies among international actors are exploited by the parties to the conflict ("forum shopping"), and, under certain circumstances, even exacerbate the conflict. The setting of priorities and principles, the distribution of responsibilities and the establishment of coordination and leadership structures must therefore involve all relevant actors. Its outcome must be recognized and followed-up by all. In the identification of the lead organization(s) and general distribution of responsibilities, several aspects can be relevant: specialization and comparative advantages; the previous involvement in a conflict (depending on the level of success this can speak for or against a continued engagement); the views and interests of the parties to the conflict and those third countries, that are especially engaged in a peace process. Also the different funding mechanisms of organizations can be relevant (e.g. assessed against voluntary contributions). By no means does the UN automatically assume a lead and coordination role or do other actors acknowledge such a role. This only happens if the UN is perceived both by the parties to the conflict and also by key international actors as the best suitable lead organization. The UN, for example, has a leading role in Kosovo while it plays only a subordinate role under the High Representative in Bosnia and Herzegovina. In many situations, the UN has and is being assigned a lead role in addressing conflict situations, often together with regional organizations and

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financial institutions. In such situations, the UN attempts to provide a broad framework for the activities of the entire international community. The importance of an effective partnership and complementarity of all actors is being emphasized. All international and national actors shall be involved in the elaboration of the peacebuilding strategy and contribute to its implementation. The coordination mechanisms of the UN at headquarters and in the field described above shall also involve these actors from outside the UN system. The SRSG active in a particular conflict or the Resident Coordinator assumes a special responsibility in this regard. Particular efforts were undertaken to improve coordination and compatibility between the political efforts of conflict resolution and peace-building of the UN and the activities and programs of the Bretton Woods Institutions, in particular the World Bank. Important lessons were learned from early experiences, e.g. in the peace process in El Salvador, where measures of a "National Reconstruction Plan" concerning land reform and social policy, which were encouraged by the UN in support of peace-building, were severely hampered by the policies and conditions of the financial institutions. Subsequently, in the peace negotiations in Guatemala, the international financial institutions were fully engaged from the very beginning in order to avoid similar conflicts of policies and priorities and to ensure "peace-friendly" programs by the financial institutions. Since then, a letter of understanding between the UN-SG and the President of the World Bank has been signed, establishing a framework of cooperation, e.g. joint working groups for the coordination of their respective policies and the support of the politicomilitary engagement of the UN through the mobilization of donor countries for economic reconstruction by the Bank. d) The key role of the local actors The primary responsibility for overcoming conflict and reconstruction rests with the government and people of the country concerned. But governance structures are often shattered and weak after conflict. The (re-)establishment of effective and legitimate governance structures is thus a key objective of the peace-building strategy. Measures of peace-building shall contribute to the strengthening of local capacities for conflict resolution and economic reconstruction, including capacities to manage and absorb foreign assistance. Key conditions for the success of peacebuilding are therefore the political will of the parties to end the conflict and to reconstruction and durable peace, and the ownership of the process by local actors, in particular civil society. This does not mean that the chances of success for such processes should be totally at the mercy of the conflicting parties, some of which might not have any interest in bringing the conflict to an end. In practice, the initiative for peace-


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building comes often from the international community, which is prepared to commit assistance or deploy an international presence only under conditions of minimum chances for success. The UN might therefore propose measures that appear conducive to a successful resolution of the conflict and peace-building and apply, if necessary, some pressure on the parties in order to find agreement. The identification of local partners for peace-building is a highly political and difficult process, often with significant consequences. Formally, UN involvement in peace-building requires a request or the consent of the government of the country concerned (if there is a recognized government). But the UN will also strive for the cooperation of the other party/ies to the conflict. Sometimes, the international community might work towards the exclusion of certain local actors from the peace process. In peace negotiations, the UN often concentrates on those parties with effective power: politicians, army leaders and warlords, that often carry not only the responsibility for the conflict and for war crimes, but also dominate, through military power, an economy corrupted and criminalized in the course of the conflict. Also humanitarian assistance is often dependent on the collaboration with the established power structures - and thus contributing indirectly to their strengthening. Peace-building activities should therefore make a particular effort to involve the local population and engage them in the peace process, including the identification of priorities and their implementation. The strengthening of civil society should also aim at changing and undermining power structures, which are often underlying the conflict. Actors of civil society, especially women's groups, should become involved in all phases of conflict resolution and peace-building in order to create a counterweight to the established power structures. This should also ensure the consideration of the needs and concerns of particularly disadvantaged or affected groups. e) Financing of peace-building The funding of peace-building activities poses a particular challenge for international organizations and donor countries. Resources are supposed to be allocated quickly and flexibly for activities with an often uncertain chance of success. Often, a funding gap can be observed for peace-building activities because normal funding mechanisms are too slow and lack flexibility. Donors must be prepared to take larger risks and to invest early in a peace process. Chances for peace might be missed because donor countries are only prepared to engage in a process under certain minimum conditions and opportunities for conflict resolution, which might not come through because of lack of political and financial engagement at the right moment. Donor countries must also be prepared to expand the type of activities for which they provide funding, e.g. the demobilization and re-integration of ex-combatants, police and military reform, or the improvement of prison conditions.

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Also the problem of selectivity of the international community vis-a-vis different conflicts and concerning different areas of priority comes into play. In the case of peace-building activities within a PKO clear financing rules exist for the operation. However, the assessed budget of such PKOs covers only basic expenditures, e.g. costs for personnel, for peace-building tasks. Concrete peacebuilding activities rely primarily on voluntary contributions. The UN-SG has therefore repeatedly appealed to the SC to include in the mandate and the assessed budget of PKOs provisions for the financing of the early stages of peace-building, e.g. for disarmament, mobilzation and reintegration programs. It has also been proposed that the budget of PKOs should include limited resources at the disposal of the SRSG with which s/he could facilitate small but politically significant quick impact projects. These and other proposals to secure more stable and predictable funding are highlighted in the Brahimi-Report. Some improvements have been made in the financing of political field missions that are increasingly being set up after, or instead of PKOs. For the first time, the regular UN budget for the biennium 2000-2001 foresees US$ 90 million for "special missions". This budget line provides the basic funding for peace-building offices, but again only limited resources are allocated for substantive activities. The work of such missions continues to depend on unpredictable voluntary contributions. In some cases, specific "Trust Funds for Peace-Building" have been established in order to mobilize sustained donor support. Special funding mechanisms exist for humanitarian assistance and reconstruction. Under the leadership of OCHA, "Consolidated Inter-Agency Appeals (CAP)" for resources to meet the immediate humanitarian needs are being prepared. These CAPs have slowly expanded to include also short-term reconstruction measures ("Expanded CAP"). UNDP is devoting 5% of its regular budget for

programs in countries with "special development circumstances" and has established trust funds for certain countries. The World Bank has established special budget lines for countries emerging from conflict. Many bilateral donors have taken similar initiatives. For mobilizing resources for reconstruction, UNDP and the World Bank organize Round Tables or Consultative Group meetings respectively concerning particular countries. In this framework, multilateral and bilateral donors, together with the government concerned, agree on a development strategy and make financial commitments. A key request is that these funding mechanisms and the spending policy of multilateral and bilateral donors are better coordinated with the overall political strategy vis-a-vis the country concerned. The (often-limited) financial means available should support the goals of peace-building. This could be done by better involvement of the SRSG, a measure that could also enhance his/her position and leverage with the parties to the conflict.


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5. Peace-Building as an Integrated Concept for Comprehensive Conflict Management The instruments of peace-building are applied by the UN in all phases of conflict management. Peace-building can make an important contribution to conflict prevention, e.g. through the strengthening of democratic structures, or through the provision of economic assistance and incentives. After the outbreak of conflict, efforts might be undertaken to strengthen the forces of peace or to prevent the spreading of the conflict to pockets of peace. In situations of fragile peace, measures of peace-building can support the transition to sustainable peace. The causes of conflict and measures to overcome them are normally addressed already in the peace negotiations based on an assessment of peace-building needs and ways to meet them. Guidelines for SRSGs shall ensure that human rights aspects are being addressed in the peace negotiations. Before a formal cease-fire was concluded in Guatemala, for instance, a human rights presence was established as a confidence building measure facilitating the ending of the conflict. The peace agreement, negotiated under the auspices of the UN, contains a comprehensive set of measures addressing the root causes of the conflict, inter alia the reform of security forces and the judiciary, land reform and the improvement of the position of the indigenous population. Also with some pressure by international partners, civil society, especially the indigenous population, was involved in the negotiations and implementation. In addition to military tasks, PKOs are normally also mandated to undertake peace-building activities, in particular short-term start-up measures and quickimpact projects. Such a dual role of the blue helmets shall support the politicomilitary goals of a PKO, but also increase its acceptance among the parties and the local population. PKOs often run in parallel with humanitarian and reconstruction activities with different levels of integration. The most far-reaching complex peace operations currently undertaken are, in nature, peace-building operations: In Kosovo, in addition to the military presence by KFOR, the UN together with other international and regional organizations has established an operation covering the civilian aspects of rehabilitating and reforming Kosovo. The "UN Interim Administration Mission in Kosovo (UNMIK)" has far-reaching legislative and executive powers and shall support the reconstruction of infrastructure and the provision of humanitarian relief, as well as the safe return of refugees and internally displaced persons. UNMIK promotes the establishment of a substantial autonomy and self-government and facilitate apolitical process to determine Kosovo's future status. To meet these tremendous tasks, an unprecedented collaboration among organizations has been created: under the overall leadership of the UN, "four pillars"

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of UNMIK have been assigned to lead organizations, namely humanitarian assistance to UNHCR, democratization and institution-building to OSCE, economic reconstruction to the EU and civil administration, including civilian police to the UN. The heads of these pillars serve as "Deputy SRSG" under the leadership of the SRSG, ensuring close cooperation. The European Commission and the World Bank mobilize financial resources for reconstruction. Similarly, the "UN Transitional Authority in East Timor (UNTAET)" has overall responsibility for the administration of East Timor. UNTAET shall ensure the coordination and delivery of humanitarian, rehabilitation and development assistance, support capacity building for self-government and assist in the establishment of conditions for sustainable development. The many humanitarian and developmental organizations active in the territory work within this framework. The World Bank is leading the reconstruction efforts and mobilizing donor support. In both Kosovo and East Timor is the involvement of the local population and the transition of responsibility a key challenge. Careful planning is required for the phasing out and departure of a PKO. Steps must be taken to preserve and consolidate the achievements of a PKO and the investments of the international community and the people of the country in the peace process. In order to ensure a smooth and gradual transition, the UN increasingly establishes post-conflict peace-building support structures: when a PKO comes to an end, the concluding mandate and/or the concluding report of the UN-SG includes recommendations for the transitional period to the post-conflict peace-building phase. Small political presences are established headed by an SRSG, who, together with the UN Resident Coordinator, facilitates the implementation of the peace-building program and mobilizes international support. This cooperation also provides continuity, when, after further progress in the consolidation of peace, the term of the SRSG ends and full responsibility is transferred to the UN Resident Coordinator. A first example for this approach was El Salvador: after fulfilling its major tasks, the SC mandated "UN Observer Mission in El Salvador (ONUS AL)" was replaced by a smaller political mission established by the GA. MINUS AL was mandated to monitor the implementation of the pending issues of the peace agreement. In light of progress made, MINUS AL was gradually reduced in strength and later transformed into a small observation office (ONUV). Subsequently, the political monitoring of the implementation of the peace agreement was undertaken by regular visits of a Special Envoy, with the support of a small support office located in the UNDP office in the country. UNDP is in charge of coordinating activities in support of peace-building. In Liberia, following the termination of the "UN Observer Mission in Liberia (UNOMIL)" the first UN Peace-Building Support Office was established under


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the direction of an SRSG and the UN Resident Coordinator as his deputy. The office is mandated to strengthen and harmonize peace-building efforts and to mobilize international political and financial support for the implementation of the "National Reconstruction Plan". A "Trust Fund for Peace-Building", administered by the SRSG, was established, providing some funding for projects of confidence building and reconciliation. The SRSG is responsible for ensuring a consistent policy approach by the entire UN system; the UN Resident Coordinator is responsible for the operational coordination of UN development activities. Another model for the transition towards peace-building is the Central African Republic: in the final phase of the "UN Mission in the Central African Republic (MINURCA)", the UN-SG sent a multidisciplinary mission to the country to discuss the conditions for the maintenance of a political UN presence after the expiration of the PKO. As a result, the UN-SG established the "UN Peace-Building Support Office in the Central African Republic (MONUCA)" with the primary task of supporting the government's efforts to consolidate peace and national reconciliation, strengthen democratic institutions and facilitate the mobilization of international political and financial support for reconstruction and recovery. Emphasis is also placed on monitoring and educating in human rights. The UN, together with countries particularly interested in the peace process, is lobbying for political and financial support. Similarly, the UN-SG has established a continued UN presence in support of the peace-building process after the withdrawal of the "UN Mission of Observers in Tajikistan (UNMOT)". Such gradual transition can, however, be difficult in cases where the politicomilitary involvement of the UN was not successful leading to a deterioration of relations between the UN and the host country: e.g. the proposal of the UN-SG to establish a small political presence in Kigali after the termination of the mandate of UN AMIR was rejected by the Rwandese government as an attempt of unacceptable interference. The government accepted the continued presence of the "UN Human Rights Field Operation in Rwanda (HRFOR)" that was later ejected because of its insistence on monitoring the human rights situation in the country in addition to its assistance work. The main responsibility for the coordination of the international support of the reconstruction program is therefore with the UN Resident Coordinator. In many countries, peace-building activities are undertaken without the deployment of a UN PKO by the UN Country Team sometimes assisted by a small political presence. The "UN Peace-Building Support Office in GuineaBissau (UNOGBIS)" was established to assist in the consolidation and maintenance of peace and reconciliation. Its mandate was adapted in light of the evolving political situation and includes the provision of the political framework and leadership for

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harmonizing and integrating the activities of the UN system in the country and the mobilization of international political and financial support for rehabilitation and reconstruction. For this purpose, a Trust Fund has been established. In Mali, the UN mediated an agreement between the government and armed opposition groups that offered economic support in exchange for disarmament. The implementation of the project was undertaken by UNDP, with the support of a political adviser from the DPA. Afghanistan served as a test case where the entire UN system and donors elaborated jointly a "strategic framework for Afghanistan" providing for a political strategy and field-based arrangements for the common programming of international assistance to the country. The objective is to achieve greater coherence and a more principled approach of international assistance. The regular coordination with donor countries takes place through the "Afghan Donor Support Group". This process ensures that the international community speaks with one voice in political as well as in questions of principle, e.g. the status of women.

6. Outlook The overall objective of the UN Reform Process to better coordinate and integrate the activities of the different parts of the UN system is of particular relevance to the response to crisis and post-conflict situations. Peace-building is based on the recognition of a close connection between the maintenance of peace, humanitarian assistance, development and human rights/democratization. These different policy instruments shall be applied in a harmonized and mutually re-enforcing manner. Significant efforts have already been made to develop the conceptual approaches and to integrate better the different parts of the UN system. Concepts and mechanisms are in place to facilitate a coordinated and harmonized response to crisis or post-conflict situations that also involve international actors outside the UN system and recognize the key role of local actors. They can serve as a model for other organizations and (donor) countries. Progress has been made in their daily application and implementation. But of course, serious challenges and shortcomings remain: more needs to be done to harmonize the approaches of the political, humanitarian and developmental actors. The role of different parts of the UN system must be better clarified and recognized; the culture of independence among funds, programs and agencies both at headquarters and in the field still hampers coordinated action. The role of DPA as focal point for peace-building has not yet fully lived up to its potential because of lack of resources for the department but also an artificial division of labor between DPA and DPKO. It also seems that different organizations - the UN, the World Bank, regional organizations concentrate on elaborating their own sophisticated coordination mechanisms at


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the expense of efforts for better cooperation among them. Better overarching mechanisms and division of labor based on comparative advantages and partnership must be developed. Progress has been made in coordinating between political efforts of the UN and the policies of the World Bank, recognizing the need to harmonize between the imperatives of peace and development. But the division of labor between the Bank and UNDP still seems unclear. Furthermore, while strong and well-functioning planning and coordination tools of the international community are needed they cannot replace lack of political will among parties to conflicts and must not overwhelm local actors, in disregard of the emphasis on local ownership and participation. The implementation of the Brahimi-Report provides an opportunity to address these shortcomings. In addition to the UN and other international organizations, peace-building poses a particular challenge to Member States: all these concepts will not work if countries do not provide the necessary political will and financial support or pursue contradictory political interests. Member States therefore carry a significant share of responsibility, including better harmonizing of the different policy instruments at national level. The UN can provide a few lessons which should be learned.


Disarmament Issues Winfried Lang1'/Andreas Kumin

Literature: Geissler, Biological and Toxin Weapons Today (1986); Sur, Verificiation of Current Disarmament and Arms Control Agreements (1991); Lang/Gehr, La Convention sur les Armes Chiiniques et le Droit International, Annuaire Francais de Droit International (1992) 136; Miiller/ Fischer/Kotter, Nuclear Non-Proliferation and Global Order (1994); Goldblat, Arms Control, A Guide to Negotiations and Agreements (1994,1996); Koulik/Kokoski, Conventional Arms Control - Perspectives on Verification (1994); SIPRI Yearbook 1999. Armaments, Disarmament and International Security, 1999; The United Nations Disarmament Yearbook, vol. 24 (1999), 2000.

1. Disarmament as a Task of the United Nations In contrast to the League of Nations, the United Nations has a rather limited mandate with regard to disarmament questions. One of the underlying reasons for that is the view which was widely held after World War I that the conflict had been triggered by the arms race of the great powers. In 1945, however, people thought that World War II could have been avoided if the Western major powers had only had a sufficiently large military potential at their disposal and had they also been willing to use it against Germany. Moreover, the United Nations Charter provided for a system of sanctions, which required sufficient military means to be at the disposal of the SC, or the States mandated by it in order to be able to enforce military coercive measures. As a consequence, the term "disarmament" in the UN Charter does not mean the complete disappearance of weapons. Very soon the new world organization saw itself confronted with the first use of an atomic bomb by the US. Nuclear weapons and other weapons of mass destruction (chemical and biological weapons) were the focus of disarmament efforts in the following decades, whereas conventional armaments remained in the background until the beginning of the 1990s. This situation could be explained with the fact that most developing countries depended on conventional weapons and therefore had reservations against limitations and prohibitions of these weapons as long as the major powers had not done the first step with their nuclear weapons. In the UN Charter itself, the topic "disarmament" only appears in the form of an enabling clause. Art. 11 leaves it to the GA to consider the principles governing disarmament and the regulation of armament and to make recommendations with regard to such principles. Art. 26 stipulates the responsibility of the SC to formulate plans to be submitted to the members of the United Nations for the establishment


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of a system for the regulation of armaments. The term "disarmament" is thus not mentioned amongst the competencies of the SC despite the fact that it is the SC on which, in accordance with Art. 24 UN Charter, the members of the United Nations confer the primary responsibility for the maintenance of international peace and security. The disarmament history since 1945 reaffirms that substantial progress in this field has been achieved mainly on the margins of the UN system, although every now and then there has been a positive feedback with events in the proper UN organs. These events have, on occasion, even given impulses for such developments.

2. Institutions of Disarmament Diplomacy a) UN organs The GA (in ordinary session) annually deals with disarmament questions. Its debates and recommendations fulfill various functions: • to launch new disarmament proposals or else to inspire "dormant" ones with new life; • to check whether in other disarmament institutions (e.g. Conference on Disarmament) progress has occurred, and if not to point out the reasons therefore; • to give those countries which are not members of the Conference on Disarmament the chance to articulate themselves extensively and to draw attention to their concerns. Several Resolutions of the GA constitute milestones in the process of disarmament policy, e.g.: • use of atomic energy only for peaceful purposes, and nuclear disarmament (1946); • call for general and complete disarmament (1959); • call for an international agreement to prevent the transfer or acquisition of nuclear weapons (1961); • call upon the international community to prohibit the placing of nuclear weapons or other weapons of mass destruction in orbit around the earth or on celestial bodies (1963); • convening of special conferences such as the conference concerning certain conventional weapons (1979);

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• empowerment of the SG to investigate alleged violations of the ban on use of chemical and biological weapons (1982); • principles that should govern the freezing and reduction of military budgets (1989); • request to the SG to establish a universal register of conventional arms to include data on international arms transfers as well as information on military holdings and procurement through national production (1991). The resolutions adopted by the GA during the first 50 years only had very little influence on the armaments policies of its Member States since the latter gave priority to considerations related to the national and regional security situation (threat scenarios, technological progress in arms development etc.). A special session of the GA has been held at more or less regular intervals since 1978. The purpose of these special sessions is to escape the yearly routine and to focus the attention of the whole UN system for a short while on disarmament problems. Only the first of these special sessions, however, was successful. On the one hand it brought about improvements in the institutional field (Committee on Disarmament in Geneva later called the Conference on Disarmament, and the United Nations Disarmament Commission), and on the other hand it adopted principles of disarmament and a Program of Action. The SC has fulfilled his statutory duty with regard to disarmament only very insufficiently. Amongst the few resolutions on disarmament policy the following deserve being highlighted: • assistance to any non-nuclear-weapon State Party to the Non-Proliferation Treaty that is a victim of an act, or of a threat, of nuclear aggression (1968); • call upon Iraq to destroy, remove or render harmless all chemical and biological weapons and all ballistic missiles with a range greater than 150 kilometers (1991); the same year, a plan was approved for monitoring compliance with these prohibitions; • commitment by the members of the SC to work towards preventing the spread of technology related to the research for or production of weapons of mass destruction (1992); • almost complete harmonization of the security assurances (positive - negative) of the nuclear-weapon States (1995). Several disarmament treaties confer upon the SC a role in compliance control, i.e. if the SC receives complaints about treaty violations it is empowered to initiate the verification of such alleged non-compliance.

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The United Nations Disarmament Commission was established in 1952, but did not meet at all between 1965 and 1978. In 1978 it was resuscitated by the First Special Session of the GA and has served ever since as an intersessional deliberative subsidiary organ of the GA. Since 1978 the Commission has adopted by consensus a number of principles, guidelines or recommendations, inter alia: • elements of a comprehensive program of disarmament; • guidelines for the study on conventional disarmament; • guidelines for appropriate types of confidence-building measures; • verification in all its aspects; • nuclear capability of South Africa; • review of the role of the United Nations in the field of disarmament; • guidelines and recommendations for objective information on military matters; • guidelines and recommendations for regional approaches to disarmament; • guidelines for international arms transfers; • establishment of nuclear-weapon-free zones on the basis of arrangements freely arrived at among the States of the region concerned; • guidelines on conventional arms control/limitation and disarmament, with particular emphasis on consolidation of peace. The work of the Commission has been mainly subject to criticism with regard to its substantial results. It has achieved little that could not have been accomplished by the competent committee of the GA itself. If necessary, the Commission could be used to fulfill ad hoc functions. b) Other organs The Conference on Disarmament (Geneva) had several predecessors: the 195960 Ten-Nation Committee on Disarmament; 1962-1969 Eighteen-Nation Committee on Disarmament; 1969-1978 Conference of the Committee on Disarmament; 19791983 Committee on Disarmament; since then Conference on Disarmament. The number of members was limited to 40 in 1978 and enlarged on two occasions: to 61 in 1996 and to 65 in 1999. During the Cold War, the membership was split into three ideological camps: West (mainly NATO), East (Warsaw Pact), and non-aligned (developing countries plus Sweden); this division has lost importance since then. The Conference is not a UN organ in the narrow sense of the term, that means it is theoretically independent from the UN system, de facto, however, it is highly intertwined with it. The following factors account for that:

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• treaties negotiated within the Conference are transmitted to the GA with the request to recommend it to all UN members for acceptance/ratification; • the Conference submits an annual report to the GA and receives suggestions and recommendations by it; • the budget of the Conference is part of the regular UN budget, that means that even non-members of the Conference (the majority of the UN members) pay for the functioning of the Conference; • the SG of the Conference is appointed by the UN-SG; the rest of the personnel of the Conference Secretariat likewise are part of the regular UN personnel. The slowness of the Conference, which is very often complained about, primarily results from the fact that the agenda for the (presently) three parts of the annual session is decided anew at the beginning of each year. Since this decision already implies important determinations on substantial questions, very often even those preliminary negotiations become very tiresome. The Conference, the sole global negotiating forum on disarmament, was born out of the philosophy that useful negotiations could be conducted only in a restricted framework. For the most important points on its agenda, so-called "Ad Hoc Committees" are created within the Conference. The further negotiating processes develop, the more often diversification takes place even within these Ad Hoc Committees through the creation of separate working groups or coordinators on specific issues. Right from the beginning one of the weaknesses of the Conference was the domination by the East-West confrontation; even after this disadvantage has disappeared the problem persists that the Conference works on the basis of the principle of consensus, that means that not only on questions of substance, but also on procedural matters (e.g. the establishment of an Ad Hoc Committee) a member can block a decision singlehandedly if it explicitly voices its negative attitude. Despite these obvious shortcomings the Conference on Disarmament is the only international institution which has, especially during the last few years, produced concrete and substantial results - Chemical Weapons Convention, Comprehensive Nuclear Test-Ban Treaty. These steps forward are also a product of the change in the political environment, the demise of the Cold War. The Ad Hoc Conferences (Special Conferences) and Review Conferences are normally even less linked to the United Nations. Prominent among such ad hoc conferences was the one on certain conventional weapons (1979-80) which negotiated a convention prohibiting the use of weapons which are excessively injurious and thus addresses not only disarmament but also humanitarian law. This conference was convened by the United Nations GA in order to stipulate those prohibitions of use which could not be adopted at the conference for the development

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of the 1949 Geneva Conventions (Additional Protocols I and II). An indirect consequence thereof was the recent negotiations on a ban on anti-personnel mines, since at the First Review Conference in 1995 of the "Inhumane Weapons" Convention (1980) it proved impossible to achieve a total ban of these mines. Review conferences themselves are periodical events designed to have a look at the effectiveness and possible improvements of certain special conventions: prohibition of biological weapons, non-proliferation of nuclear weapons etc. Via the detour of such review conferences it is also possible to provide older disarmament agreements with mechanisms and procedures to monitor compliance with the fulfillment of the treaty obligations, something that often proved impossible for political reasons before the end of the Cold War (e.g. possibility of on-site inspections).

3. Instruments and Procedures of Disarmament Diplomacy a) Methods and Levels Disarmament either comes about unilaterally or cooperatively: unilateral disarmament can have several origins; either it is enforced from outside (e.g. the defeated has to disarm according to the clauses of a peace treaty) or it is done voluntarily to minimize costs ("peace dividend"), especially if the feeling of being threatened has disappeared (end of the Cold War). On the border between unilateral and cooperative disarmament we find measures which are taken unilaterally but in the expectation that the other side would mirror these measures with similar ones; this unilateralism is conditional, i.e. it can be reversed if the counterpart does not enact the measures as expected. Co-operative disarmament normally happens on the basis of disarmament treaties; i.e. legally binding instruments the noncompliance with which triggers consequences foreseen by international law. Disarmament can take place on a global (UN) as well as on a regional level. Amongst the regional disarmament endeavors we find, apart from demilitarized zones, above all nuclear-weapon-free zones. These include, however, an important extra-regional component, that means they only work well if they are respected by the extra-regional nuclear powers. That is why, as a rule, annexed to the treaties creating these zones (e.g. Treaty of Tlatelolco for Latin America) one will find additional protocols. Regional disarmament can also be undertaken in complete isolation from the global level, e.g. Treaty on Conventional Armed Forces in Europe, Treaty on Open Skies etc. An intermediary position is taken by agreements between the former super-powers, e.g. START, which regulate the nuclear relationship between these powers but nevertheless primarily concern the situation in Europe. Similarly, the INF Treaty, which was also concluded only among the super-powers,

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first and foremost deals with the intermediate and shorter-range missiles with nuclear warheads stationed in Europe. b) Instruments Disarmament policy uses various instruments; apart from legally non-binding resolutions of the GA and the Disarmament Commission we find the decisions of review conferences of special treaties which in the case of the Biological Weapons Convention created - on the basis of a "solely" political consensus - confidencebuilding and verification measures as early as in the mid-1980s. Treaties on general disarmament, which have been called for time and again by well-intentioned people, have little hope of realization since States only accept commitments which are manageable; after that, sectoral disarmament agreements constitute the only realistic option, that means treaties on specific types of weapons, specific military activities in geographically well-defined areas (Antarctica, outer space, seabed etc.). Whereas earlier disarmament agreements (1925 Geneva Protocol on poisonous gases) as well as agreements achieved during the Cold War hardly ever include procedures and mechanisms for verification, this feature is currently being considered indispensable for disarmament agreements. This conviction is also reflected by the ongoing efforts to provide the Convention on bacteriological (biological) and toxin weapons with a verification mechanism. c) Procedures Amongst these procedures we have to distinguish between those based on "rulemaking" and those aiming at "implementation'7"compliance control". The rules are created through negotiations, i.e. the techniques of multilateral diplomacy, cooperative drafting but also of do ut des between the most important powers have to be taken into account. These processes are based, from a legal point of view, on general public international law and more specifically on treaty law (interpretation, termination of treaties etc.); they have to respect existing restrictions imposed on the future States Parties by international law as well as their internal legal systems. Concerning the implementation and compliance control, progress has been achieved since the mid-1980s with regard to on-site inspection, which the former Soviet Union had been opposing for decades. Sovereignty, however, continues to be a legally and politically important obstacle; without the consent of the State to be inspected it continues to be difficult to implement controls (Chemical Weapons Convention). In cases where non-compliance has been proved, the question still persists whether sanctions can be applied against the violating State or if assistance to overcome the technical or economic difficulties are the better solution. The effectiveness of sanctions continues to raise considerable doubts.

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4. International Disarmament Law a) Nuclear weapons Despite the fact that since the end of World War II approximately 20 million people have been killed by the use of conventional weapons and practically nobody by the use of nuclear weapons (apart from early victims of weapons tests which were undertaken without precaution), nuclear weapons have been the center of disarmament policy since 1945. Since a total elimination of these weapons was unthinkable the strive was for limitations: test-bans with variable scope (partial, comprehensive), prohibition of proliferation, prohibitions with regard to specific areas (e.g. outer space), protection of non-nuclear-weapon States (security assurances). The Partial Test Ban Treaty of 1963 had prohibited tests which were carried out in the atmosphere, beyond its limits, including outer space, or under water. It resulted from trilateral negotiations between the United States and the United Kingdom on the one hand and the Soviet Union on the other. GA Resolutions and discussions in the Eighteen-Nation Committee on Disarmament (Geneva) had stimulated these negotiations and have given the treaty a certain multilateral appearance; the fact that it was open for accession by all States, including those which had never had the practical means to undertake such tests, had equally contributed thereto. The prohibition concerning outer space has been confirmed and corroborated later by the Outer Space Treaty in 1967 and the Moon Treaty in 1979. The Seabed Treaty of 1971 rendered the test ban more concrete by stipulating a prohibition to implant or emplace nuclear weapons or any other types of weapons of mass destruction on the seabed and the ocean floor and in the subsoil thereof as well as facilities especially designed for storing, testing or using such weapons. The Partial Test Ban Treaty does not apply to underground explosions, that means that these may be carried out, but only if the radioactivity released thereby does not spread beyond national boundaries. Naturally this treaty does not prohibit the use of nuclear weapons. In 1974 the United States and the Soviet Union further agreed to sign the so-called Threshold Test Ban Treaty. With this treaty underground tests were limited to a maximal yield of 150 kilotons of TNT. Since this threshold was very high and no verification provisions added, the disarmament value of this agreement has been estimated rather low. The above-mentioned threshold is also valid for the 1976 Treaty on Peaceful Nuclear Explosions concluded again between the United States and the Soviet Union. This treaty already included a verification procedure, which was strengthened by an additional protocol in 1990. Only towards the end of the 1990s was the time ripe to stipulate a comprehensive nuclear test ban.

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The 1968 Treaty on the Non-Proliferation of Nuclear Weapons is unique from the perspective of international law because it is diametrically opposed to the principle of sovereign equality of States. The nuclear-weapon States undertake not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices directly, or indirectly, or to assist it to manufacture or otherwise acquire such items. The non-nuclear-weapon States for their part undertake not to receive nuclear weapons or other nuclear explosive devices directly or indirectly or to manufacture such items. For the purposes of this treaty, a nuclear-weapon State is one which has exploded a nuclear explosive device prior to 1 January 1967; this provision intended to limit the circle to the permanent members of the SC. In order to prevent that during the peaceful use of nuclear energy significant amounts of radioactive material get diverted for military purposes, a complex monitoring system has been established with the help of the IAEA. Moreover, since 1992 a group of nuclear suppliers sees to it that the recipients of such material are as well members of the Non-Proliferation Treaty as fully integrated into the monitoring system of the IAEA (a lesson learned by the clandestine nuclear armament by Iraq). A clause that has been widely understood as a counterweight to the discrimination of non-nuclear-weapon States stipulates that all parties to the treaty undertake to pursue negotiations "in good faith" on effective measures relating to the cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control. Since this clause has remained dead letter, the nuclear-weaponStates have been regularly subject to harsh criticism by the other parties to the treaty at the regular review conferences. The original duration of the treaty had been fixed at 25 years, yet in 1995 agreement was reached on indefinite extension, despite the fact that some threshold countries voiced opposition thereto until the last moment. The establishment of a strengthened review mechanism according to which three preparatory commissions have taken place from 1997 to 1999 has facilitated the decision on extension. The first review conference after the indefinite extension was held successfully in New York in April/May 2000. In this context it is important to mention the right of every Member State to withdraw from the treaty if it decides that extraordinary events, related to the subject matter of the treaty, have jeopardized its supreme interests. The distinction between nuclear-weapon State and non-nuclear-weapon State is also a factor with regard to the so-called security assurances (positive - negative). With an SC resolution the Soviet Union, United Kingdom and United States undertook in 1968 to immediately assist non-nuclear-weapon States Parties to the Non-Proliferation Treaty in case of attack or threat of attack with nuclear weapons; such promises are called positive security assurances. Non-nuclear-weapon States

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are, however, also interested in negative security assurances, that means States which are not members of a military alliance and which, in particular, do not benefit of the protection by the "nuclear umbrella" by a super-power should get the formal commitment that no nuclear weapons are used against them. Such commitments were expressed by nuclear-weapon-States above all at the first special session of the GA on disarmament in 1978; the assurances of that time, however, include significant exceptions and reservations and are only of declaratory nature. Efforts within the Conference on Disarmament to harmonize the assurances and render them legally binding or to conclude a treaty related thereto were unsuccessful. But the SC could agree in 1995 on a wide-ranging harmonization of these assurances. The question of security assurances has lost much of its urgency with the end of the Cold War. In addition, more than 100 States belong to regional nuclear-weaponfree zones, the founding documents of which regularly include corresponding assurances by the nuclear-weapon States. The Comprehensive Nuclear Test-Ban Treaty, which was recommended by the GA in 1996 for acceptance by all States, is the culminating point so far of multilateral nuclear disarmament diplomacy. In this treaty the States Parties undertake not to carry out any nuclear weapon test explosion or any other nuclear explosion and to prohibit and prevent any such nuclear explosion at any place under their jurisdiction or control. Furthermore, these States undertake to refrain from causing, encouraging or in any way participating in the carrying out of such explosions. For the verification of these undertakings a system has been created with the following components: international monitoring, consultation and clarification, on-site inspections and confidence-building measures. This system is run by the Comprehensive Test-Ban Treaty Organization - CTBTO that will be created especially for this task. The most important elements of this organization are the Conference of States Parties, the Executive Council, the Technical Secretariat and the International Data Center. The concrete compliance control shall be carried out with the help of seismological, radionuclide, hydroacoustic and infrasound monitoring networks. On-site inspections are particularly sensitive and therefore embedded in extensive procedures in which the Executive Council has a key role. The largest obstacle for this treaty to become effective is its entry into force clause: all 44 States mentioned in an annex and which have participated in the Conference on Disarmament and are listed in an IAEA-register of nuclear reactors must have ratified the treaty. With regard to some of these States, such as India, which have not even signed it so far, serious doubts prevail concerning the will to be legally bound by an obligation of international law. Even if during the 53rd GA in 1998 representatives of both India and Pakistan announced their willingness to sign the CTBT, the prospects for its entry into force have not been improved by the refusal

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in October 1999 of the US Senate to ratify the CTBT. This vote came in the immediate aftermath of the first conference of States Parties held according to Art. XIV of the Treaty and which examined the extent to which the requirements for the entry into force have already been met and what measures consistent with international law may be undertaken to accelerate the ratification process in order to facilitate the early entry into force of the treaty. In case of manifest violations of the treaty the SC can be seized which, in turn, can use its powers of enacting sanctions under Chapter VII of the UN Charter. b) Other weapons of mass destruction Although chemical and biological weapons have always been regarded as one category - cf. Geneva Protocol on poisonous gases - biological weapons have been treated first in the negotiations since an agreement on these weapons seemed easier to achieve taking into account their relative lack of military importance at that time and their better verifiability. The Convention on Bacteriological (Biological) and Toxin Weapons (1972) obliges the Member States never in any circumstances to develop, produce, stockpile or otherwise acquire or retain microbial or other biological agents or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes. Equally prohibited is the transfer of such substances to any recipient whatsoever. Of interest is the obligation to destroy the relevant substances, weapons and equipment. One of the weaknesses of the Convention is the lack of restrictions on scientific research as well as the permission to use such substances for prophylactic purposes (vaccines). The initially unclear relationship of the Convention to the Geneva Protocol on Poisonous Gases which prohibits the use of such weapons has given way to a broad consensus on a total ban on the use. The rather weak machinery for verification purposes has been gradually strengthened since the second review conference in 1986: it takes the shape of a web of confidence-building measures ("open laboratories") which could soon lead to a real verification regime. Thus, also the recognition, that in the light of scientifictechnological progress biological weapons are indeed significant weapons, would be heeded. The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques of 1977 aims at preventing widespread environmental damage. The States Parties undertake not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as means of destruction, damage or injury to any other State Party. The three threshold characteristics have been interpreted as follows: "widespread" means encompassing an area on the scale of several hundred

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square kilometers; "long-lasting" means lasting for a period of months, or approximately a season; "serious" means involving serious or significant disruption or harm to human life, natural and economic resources or other assets. This high threshold is a weakness of the convention, as a consequence of which even the intentional setting on fire of Kuwaiti oil wells by Iraq was not generally considered a violation of the convention. Another shortcoming is also the fact that the prohibition applies only towards other States Parties and not in general and that the verification mechanism is rather modest. A positive feature constitutes the prohibition even outside of military conflicts ("any other hostile use"). The culminating point of the disarmament diplomacy with regard to "other" weapons of mass destruction has been the Chemical Weapons Convention which was opened for signature in 1993, the result of decades-long negotiations in the Conference on Disarmament. With this treaty the States Parties - 129 at the end of 1999 including the US, Russia, India, Iran and Pakistan - undertake never under any circumstances to develop, produce, otherwise acquire, stockpile or retain chemical weapons or transfer, directly or indirectly, chemical weapons to anyone. Of paramount importance - not least to exclude doubts with regard to the Geneva Protocol on Poisonous Gases - is the subsequent prohibition to use chemical weapons as well as to engage in any military preparations to use chemical weapons. Furthermore, it is prohibited to assist other States to act in violation of the treaty. Moreover, each State Party has to destroy all chemical weapons it owns or possesses, or that tire located in any place under its jurisdiction or control. Comprehensive obligations to declare whether the State owns chemical weapons, to specify the precise location of those weapons etc. should facilitate the discovery of the weapons and the production facilities as well as the carrying out of the destruction program. A relatively big organization, equipped with a Conference of States Parties, an Executive Council and a Technical Secretariat, is responsible for the functioning of the treaty. A separate verification annex lists the exact steps to be taken in order to ensure compliance with the treaty. These range from weapons destruction, destruction of production facilities to challenge inspections and investigations of the alleged use of chemical weapons. In cases of grave violations of the treaty in which the Conference of States Parties does not want to restrict itself to internal sanctions (e.g. suspension of membership rights) or other measures in conformity with international law it may refer these violations to the GA and the SC. The latter could resort to measures under Chapter VII of the Charter if it sees a threat to international peace and security. c) Conventional weapons In order to close the gaps contained in the Additional Protocols of 1977 to the

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Geneva Conventions a Special Conference (see 2.b above) convened by the United Nations adopted in 1980 the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be excessively injurious or have indiscriminate effects, consisting of a framework convention and at that time three protocols. Protocol I prohibits the use of any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays, concerning mainly plastic bullets. Protocol II prohibits or restricts the use of mines, booby-traps and other devices. There is a complete prohibition of such devices against the civilian population. Equally prohibited is the use of remotely delivered mines (e.g. through artillery shells or from airplanes) unless these are used within an area which is itself a military objective and unless they can be accurately located, or they contain a mechanism of self-neutralization. Protocol III, the original trigger of the negotiation process, prohibits the use of incendiary weapons against the civilian population. Such weapons as incendiary bombs or napalm shall also not be used against military objectives located in densely populated areas; against military objectives clearly separated from civilian concentration the use of such weapons is permitted. Furthermore, such weapons must not be used for attacks against forests or other kinds of plant cover except when those are used for purposes of cover. The major shortcoming of this protocol is its non-applicability to combatants, which reduces highly its value for international humanitarian law. Efforts undertaken 1995/1996 to strengthen Protocol II have not been completely successful at the first try but a Protocol IV on Blinding Laser Weapons was agreed upon. The dreadful injuries which mines have been causing among civilians during the last decades despite the above-mentioned prohibitions and restrictions have mobilized public opinion in large parts of the world to such extent that after the relative failure of the first review conference of the 1980 Convention, already in 1997 the Convention on a Total Ban of Anti-Personnel Mines was signed outside the UN framework. It stipulates that every State Party undertakes never under any circumstances to use, develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines. Furthermore, States Parties undertake not to assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under the Convention. Finally every State Party undertakes to destroy or ensure the destruction of all anti-personnel mines. Although the organs of the United Nations were not involved in its original negotiating process, the Secretary-General of the United Nations will, above all, assume an important role in the implementation of the treaty. He is the contact point for States complaining about treaty violations and the treaty organs (meeting of the States Parties), which have to decide upon the dispatching of fact-finding

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missions. He appoints the members of such missions selecting them from a previously established list and submits to the meeting of States Parties the report of the mission. Furthermore, he convenes the first review conference following the example of other special conventions. This convention has, in a very short time, become an effective part of the international law of disarmament despite the wellknown objections by some important States, such as the US, Russia, India and China, at the time of its signature. The UN Register of Conventional Weapons was born out of the ancient dream that curtailing the weapons trade would bring about an end to war; a far more realistic expectation is that transparency in weapons transfers allows for reaching conclusions where and when efforts in armament are being undertaken far beyond national and regional security requirements. The objectives of the Register, which was created by a resolution of the GA, are much more modest. Imports and exports of seven categories of weapons, ranging from battle tanks to missiles, have to be declared to the Register by means of reporting formats; of course this takes place on a voluntary basis which means that the Register will always have loopholes. The genuine weakness of the Register consists of the fact that while transfers have to be declared, on the existing holdings in weapons only background information is required. Thus, it is clear that States with a significant and broadly spread weapons production of their own have a considerable advantage. The Register constitutes, on the one hand, an innovative measure of "goodwill", but on the other hand one cannot expect, in the light of its loopholes concerning declaration obligations, that it fulfils a genuine early warning function with regard to sudden efforts in armament or that it leads to effective restrictions in national productions or transfers in conventional weapons. In 1994, 1997 and 2000, however, expert panels have confirmed the formal functioning of the Register.

5. The Future of Disarmament in the Framework of the United Nations The presentation given above shows that the disarmament diplomacy in the framework of the United Nations only stood a chance if the interests of the great powers opened a "window of opportunity" for it. With the end of the Cold War, real progress has become possible. Proof of that is the Chemical Weapon Convention, the Comprehensive Nuclear Test-Ban Treaty and the Convention on a Total Ban of Anti-Personnel Mines. With regard to the Test-Ban Treaty, however, doubts concerning its effective entry into force are indicated. This time, also big States of the Third World have signaled their opposition. For the United Nations, further efforts along the following two lines seem

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advisable: Introduction or reinforcement of the verification measures with regard to existing treaties; and more control and restrictions concerning small caliber and automatic weapons, weapons which have been decisive in the internal conflicts of the last decade and will - apart from a range of regional initiatives - also be the focus of a conference on the illicit trade in small arms and light weapons in all its aspects in summer 2001.


Codification and Progressive Development of International Law Gerhard Hajher

Literature: Lauterpacht, Codification and Development of International Law, AJIL 49 (1955) 16; Higgins, The Development of International Law by the Political Organs of the United Nations, ASILProc. 59 (1965) 116; Briggs, Reflections on the Codification of International Law by the International Law Commission and Other Agencies, RdC 126 (1969) 233; Higgins, The United Nations and Lawmaking: The Political Organs, ASIL Proc. 64 (1970) 37; Alexandrowicz, The Law-Making Functions of the Specialized Agencies of the United Nations, 1973; Rosenne, Codification of International Law, in: R. Bernhardt (ed.), EPIL 7 (1984) 34; Vallat, International Law Commission, inBernhardt (ed.), EPIL9 (1986) 183; Zemanek, Codification of International Law: Salvation or Dead End?, in Le droit international a l'heure de sa codification, Etudes en l'honneur de Roberto Ago (1987) 581; Singh, The United Nations and the Development of International Law, in Roberts/Kinsbury (eds.), United Nations, Divided World, (1988) 159; Ago, Nouvelles Reflexions sur la codification du droit international, in Dinstein (ed.), International Law at a time of perplexity, Essays in Honour of Shabtai Rosenne (1989) 1; Ago, Some new thoughts on the codification of International Law, in Bello/Ajibola (eds.), Essays in Honour of Judge Taslim Olawale Elias, Vol. I, (1992) 35; Suy, Developpement progressif et codification du droit international: Le role de 1' Assemblee generale revisite, in Proceedings of the United Nations Congress on Public International Law, New York, 13-17 March 1995, International Law as a Language for International Relations (1996) 215; Zemanek, Does Codification Lead to Wider Acceptance? Ibid. 224; Yankov, Strengthening the Process of Codification and Development of International Law: The Evolving Functions of the International Law Commission and Increasing Commitments of States, Ibid. 230; Schachter, Recent trends in international law-making, The Australian Yearbook of International Law 12 (1988-89) 3; Graefrath, The International Law Commission tomorrow: Improving its organization and methods of work, AJIL 85 (1991) 595; United Nations, The Work of the International Law Commission (1996); Cede, New Approaches to Law Making in the UN System, Austrian Review of International and European Law 1 (1996) 54; Hajher, The International Law Commission and the Future Codification of International Law, ILSA Journal of International & Comparative Law Nova Southeastern University Shepard Broad Law Center 2 (1996, No.3) 671; Rosenne, Codification Revisited after 50 Years, in Frowein/ Wolfrum (eds.), Max-Planck Yearbook of United Nations Law, vol. 2 (1998) 1; United Nations (ed.), Making Better International Law: The International Law Commission at 50. Proceedings of the United Nations Colloquium on Progressive Development and Codification of International Law, (1998).

1. Introduction Any social system needs a regulation of the conduct of its principal actors for the purpose of its stabilization and maintenance. In particular, such a regulation enables


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the actors to include the behavior of others into the shaping of their own conduct and to react reasonably to the former, i.e. with the intention to achieve a given result. Lacking such an order a reasonable conduct would be impossible; the only alternative would be chaos or the settlement of conflicts by unregulated use of force. The increasing interdependence of actors, the growing number of conflict situations and the intensified interconnectedness of different activities within the international social context still increase the need for regulation. Within the system of international relations, it is the normative system or the international legal order, which mainly serves the purpose of creating the parameters for such reasonable conduct. As such, it exercises not only a conflict preventing role, as originally manifested in prohibitions and in the delimitation of sovereign powers, but enables also the actors to perform jointly activities which they could not carry out individually (e.g. outer space activities). International law in its unwritten form consists, apart from general principles of law, of customary law, which develops in a very inconsistent, partially incoherent manner, and is hardly accessible due to the lack of explicit formulations. The written formulation of legal norms, mainly in the form of treaties, has certain advantages and disadvantages in comparison with unwritten law - advantages insofar as it systematizes the legal regulations, helps harmonize them, broadens their dissemination, contributes to conflict prevention through the facilitated access to the legal regulations and through a more formal procedure of enforcement than customary law, which frequently is spelled out in the relevant instrument itself. Beyond that, it offers States a greater influence in the formation of the rules than in the case of customary law: Whereas the creation of the latter is influenced by the exercise of power, the majority governs the codification process. The disadvantages of codification consist in freezing the law at a given moment, providing only limited mechanisms for adaptation, in a general lack of means for dynamic adjustment or even in a detrimental effect on the evidence of customary law if the latter differs from the codification. Whereas the classical view visualized international law as comprising solely the totality of "binding legal norms" i.e. "hard law", in the written form amounting to international treaties or binding resolutions of international organizations, the present view extends the meaning of international law to all regulations which are susceptible of steering the conduct of actors in international relations. In the field of posited or written rules, namely, rules formulated by the law-creating actors, international law lato sensu encompasses not only the legally binding treaties, but also instruments agreed upon by the actors and articulated in the form of legal norms, which entail the possibility of obtaining legal force, i.e. "pre-normative instruments" or "soft law". Although these latter regulations are of a most different

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kind and mostly not secured by the classical instruments of enforcement, they are nevertheless capable of guiding the conduct of actors, by supplying this conduct with the presumption of legality, by creating the conviction of the need of new regulations in the form of hard law and even by proving the existence of the opinio iuris for the purposes of customary law. Since such regulations in the form of, inter alia, "declarations", "guiding principles" or "codes of conduct" are not binding, their adoption is easier to achieve. They have, however, first to stand the test of their "legal effect" (or, in other words, the effect of creating normative expectations) because only the observance by the actors or their conversion into formally binding law (binding resolutions of international organizations, treaties) endows them with legal force. The meaning of codification is not entirely clear; it can be applied to a continuum which reaches from the written reflection of existing customary law (exchange of the legal basis) and its systematization to the formulation of new legal rules of general-abstract nature (incl. "soft law"). For the purposes of this presentation, codification is meant to address the elaboration of such instruments which call for a binding effect, formulate general-abstract rules, aim at universality or nearly universal participation and do not envisage, from the outset, the creation of new rules applicable only to specific, narrowly defined matters (such as the Convention on the Suppression of Terrorist Bombing 1997 or the UN Convention on the Safety of United Nations and Associated Personnel 1994).

2. The Work of the United Nations As a result of positivism and of the growing importance of international law, the community of States deemed the advantages of codification as so cogent that they gathered major conferences for this purpose in the 19th and beginning 20th century (1815, 1856, 1878, 1899, 1907) and a codification conference in 1930 under the auspices of the League of Nations. The UN emphasized this task in the Charter itself requesting the GA to initiate studies and make recommendations for the purpose of promoting international cooperation in the political field and encouraging the progressive development of international law and its codification (Art. 13 (1) lit. a). The merger of both objectives, namely, the progressive development of international law and the codification, which again encompasses the progressive development, obscures the meaning of codification. Even Article 15 of the Statute of the International Law Commission (ILC) (GA/RES/174(II)) which distinguishes these two objectives according to the existence of practice, precedents and established doctrine, does not shed more light on the distinction between both legislative activities.

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a) The International Law Commission Initially, the task of codification and progressive development of international law was concentrated on the International Law Commission which was established for this purpose as a subsidiary organ of the GAby Res. 174 (II). The ILC presently consists of 34 independent persons (originally 15) with recognized competence in international law who are elected by the GA for a term of 5 years (quinquennium) and who should represent the main forms of civilization and the most important legal systems. In practice, they are elected in accordance with the geographical regions represented in the GA. Contrary to the original idea of a permanently working body; the ILC is annually convened once or twice for a session of a total duration of 10-12 weeks. b) Other organs dealing with the elaboration of conventions The task of elaborating international treaties is also conferred upon other organs of the United Nations within their specific terms of reference; so, in particular, on • the UNCITRAL, the United Nations Commission for International Trade Law which likewise was established as a subsidiary organ of the GA in 1966 by GA/RES/2205 (XXI) with the task of promoting the progressing harmonization and unification of international trade law; it consists of the representatives of 36 States elected by the GA for a term of six years according to geographical criteria; • the legal subcommittee of the United Nations Committee for the peaceful uses of outer space, UNCOPUOS, which was established in 1962 and consists of representatives of 53 States; • the GA, in particular acting through its 6th Committee (legal committee); • the UNCTAD, under the auspices of which, inter alia, the United Nations Convention on Conditions for Registration of Ships 1986 was elaborated; • the UNEP in the field of international protection of the environment; • outside the GA, the Economic and Social Council, which, pursuant to Art. 62 (3) UN Charter, is competent to prepare draft conventions for submission to the GA, with respect to matters falling within its competence; it did so, e.g. through the Commission on Crime Prevention and Criminal Justice in the field of crime prevention or through the UN Commission on Human Rights in the field of Human Rights (the latter drew up, inter alia, the two UN Human Rights Covenants 1966 which were then adopted by the GA); • international conferences convened by the UN, such as the Third UN Conference on the Law of the Sea (UNCLOS III, which adopted the United


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Nations Law of the Sea Convention 1982) or the Rio Conference on Environment and Development 1992 where two conventions were elaborated (one on Climate Change, the other on Biodiversity); and finally, • the IAEA and Specialized Agencies under whose auspices treaties of fundamental importance within the special competence of the respective organization were worked out (so e.g. more than hundred conventions on labor law within the ELO). However, a broader meaning of codification which includes also non-binding instruments applies almost to the entire work of the UN since, beside the regulation of concrete conflicts, the latter's task and almost only means to exercise a certain influence on the conduct of States is the elaboration of generally applicable regulations, mostly in the form of resolutions of recommendatory nature.

3. Results From among the various forums of the United Nations dealing with codification (in the sense of the elaboration of treaties), particular mention should be made of the results achieved within the ILC, UNCITRAL, GA, UNCOPUOS as well as ECOSOC. a) The results of the work of the ILC The doctrine very often praises the great success of the ILC as manifested in the drafts for the Geneva Law of the Sea Conventions 1958 (including the Optional Protocol on the Settlement of Disputes), the Convention on the Reduction of Statelessness 1961, the Vienna Convention on Diplomatic Relations 1961 (including the Optional Protocols on the Acquisition of Nationality and on the Settlement of Disputes), the Vienna Convention on Consular Relations 1963 (with similar optional protocols), the Convention on Special Missions 1969 (with the Optional Protocol on Dispute Settlement), the Vienna Convention on the Law of Treaties 1969 or the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents 1973. These conventions were ratified by a sufficient number of States so that they could enter into force, albeit with great delay such as the Vienna Convention on Succession of States in respect of Treaties, which was adopted in 1978, but entered into force only in November 1997. However, the drafts elaborated only recently do not share this success. Although they were adopted in the form of treaties, the Vienna Convention on the Representation of States in their Relations with International Organizations of

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Universal Character 1975, the Vienna Convention on Succession of States in respect of State Property, Archives and Debts 1983 as well as the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986 did not yet enter into force. Even though these texts have not yet acquired legal force, States nevertheless resort to them in practice so that they contribute to the consolidation and progressive development of international law. More recent drafts of the ILC led to the Convention on the Non-Navigational Uses of International Watercourses which was opened for signature in May 1997 and for the Rome Statute on the International Criminal Court which was adopted and opened for signature in July 1998, but in the course of only one year was already signed by more than 80 States. In November 1999 the draft on Nationality of Natural Persons in Relation to the Succession of States was submitted to the GA without any decision being taken so far as to the further proceeding. Other projects of the ILC did not reach the stage of adoption of a treaty text such as the draft on the elimination of future statelessness, the most favored nation clause and the diplomatic courier, or were not continued by the ILC itself such as the work on international organizations. The draft articles on jurisdictional immunities of States and their property, which had been submitted to the GA already in 1991, is presently subject of discussion in the GA after a further study in the ILC. The current work of the ILC relates to State responsibility, reservations to normative treaties, prevention of transboundary damage from hazardous activities as part of the more general topic of international liability for injurious consequences arising out of acts not prohibited by international law and to the new topics of diplomatic protection and unilateral acts. b) Convention elaborated directly by the GA Even without resorting to drafts submitted by the ILC, the GA drew up, on its own initiative, conventions such as the UN Convention on the Safety of United Nations and Associated Personnel 1994, the Convention for the Suppression of Terrorist Bombing 1997 or the Convention for the Suppression of the Financing of Terrorism 1999. c) The work of UNCITRAL One of the forums very active in the elaboration of treaty texts is the UNCITRAL which has worked out basic drafts in the interests of the promotion of international trade, such as the Convention on the Limitation Period in the International Sale of Goods (New York, 1974), on the Carriage of Goods by Sea (the


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"Hamburg Rules"), 1978, on Contracts for the International Sale of Goods (Vienna, 1980), on International Bills of Exchange and International Promissory Notes (New York, 1988), on the Liability of Operators of Transport Terminals in International Trade 1991 and on Independent Guarantees and Stand-by Letters of Credit (New York, 1995). Beyond these texts, the UNCITRAL drew up Arbitration Rules 1976 and Conciliation Rules 1980, model rules on contracts, model laws aiming at harmonizing national legislation (e.g. on public procurement or electronic commerce), uniform rules on private law contracts, legal guidelines (e.g. concerning electronic funds transfers) as well as a system of decisions (CLOUT) which were taken in application of the instruments elaborated by UNCITRAL. d) The results of UNCOPUOS The work of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space was particularly productive. Under its auspices the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 1966, the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space 1967, the Convention on the International Liability for Damage Caused by Space Objects 1971, the Convention on Registration of Objects Launched into Outer Space 1974 and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979 were drawn up. e) Conventions elaborated under the auspices of the ECOSOC The work of this main organ of the United Nations produced the two Covenants on Human Rights 1966; through its subsidiary organs such as the United Nations Commission on Human Rights or the Commission on the Status of Women were elaborated the Convention on the Political Rights of Women 1952, the Convention on the Prevention of All Kinds of Racial Discrimination 1966, the Convention on the Prevention and Punishment of Apartheid 1973, the Convention on the Elimination of all Forms of Discrimination of Women 1979, the Convention on the Prevention of Torture and other Cruel, Inhuman and Treatment 1984 as well as the Convention on the Rights of the Child 1989.

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4. Procedure a) The procedure within the ILC Although the Statute of the ILC spells out different procedures regarding the progressive development of international law on the one side and the codification on the other, there are no real differences of the actual process of carving out the texts, not the least because of the difficult distinction between progressive development and codification. The elaboration of texts commences with the selection of topics: They are either proposed by the ILC to the GA for adoption after a survey of the status of codification of international law undertaken by the Commission or are directly referred to the ILC by the GA. The Special Rapporteur appointed by the ILC submits reports which are, if necessary, amended and later adopted by a Drafting Group, in recent times also by a Working Group, and finally by the Plenary of the ILC. The first draft drawn up by the ILC (first reading) is sent to the States for their written comments. Its acceptability to the community of States is in particular assessed by the ILC on the basis of replies by States to its questionnaires or their comments made in the 6th Committee of the GA on occasion of the discussion of the report of the ILC to the GA. In light of these and other comments, the ILC reviews the drafts and draws up the second and final report (second reading) in the form of draft articles and commentaries thereupon which are submitted to the GAfor adoption. The advantage of this method consists in the existence of commentaries to the individual provisions, which analyze the existing international law and - as substantial part of the travaux preparatories - contribute to the interpretation of unclear provisions. Upon recommendation of the ILC the GA decides whether the report should only be taken note of, whether a conference of plenipotentiaries for the purpose of elaborating and adopting the final text of a convention should be convened (as it was the case, inter alia, with the Conventions on Diplomatic Relations, Consular Relations and Law of Treaties) or whether the GA itself, acting mostly through its 6th Commission, should elaborate and adopt the final text (as in the case of the Convention on international watercourses). b) The procedure in other forums Other law-making forums establish subsidiary expert groups, which, often on the basis of drafts submitted by States, perform the substantive work for the elaboration of treaty texts. The text, normally providing no commentaries (except some of the UNCITRAL texts), is then submitted to the main organ, mostly to the GA. Since States are represented in these bodies, the process of elaboration resembles


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political negotiations. Political views directly permeate this process, irrespective of their harmony with existing international law. Consequently, the result can hardly serve as evidence of customary law. This procedure, contrary to that of the ILC, aims much more at the political acceptability of the result than at reflecting existing law. The composition of the members of such bodies is rather based on equitable geographic distribution than on the representation of the main legal systems. Although the need of efficiency would call for a restriction of the number of participants in this process, in recent time States, however, demand an open-ended participation according to the principle of democracy, which is said to entitle any State to participate in the law-creating process. This method undoubtedly is responsible for a reduced scope of obligations in the relevant convention ("lowest common denominator"). c) The procedure of international conferences of plenipotentiaries Even if a text is being elaborated by the ILC, the production of the final text nevertheless requires negotiations of representatives of States either through an international conference of plenipotentiaries or within the GA. Only this procedure is able to ensure the acceptability of the treaty text to States, which necessarily precedes the consent to be bound. If no initial text is prepared by other forums, it is produced either in a Preparatory Committee or at the conference itself. At the conference, different procedures of negotiations can be applied; in most cases, the chairperson of a working group forges a "single negotiating text" out of a synthesis of the different statements and proposals; in an iterative process and through various rounds of review is this text brought to acceptability. A different method consists of the use of comparative tables of various proposals, the formulation of different options or of bracketed texts in order to identify the fields of agreement and disagreement and to reduce the latter. In present practice, the States first seek to attain a decision by consensus, i.e. the gradual elimination of divergences. Only if this turns out to be unachievable, a decision by majority is resorted to. This procedure is relatively time-consuming and ensues the risk of an agreement on the least amount of obligations, of formulations bar any decision on substance or intended vague formulations ("constructive ambiguity"). This method might breed future conflicts between the desire for a broad acceptability and that for appropriate and substantial regulations. d) The differences in the various law-making procedures The most important difference in the procedures within the UN undoubtedly consists of the composition of the organs, independent experts on the one side, State

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representatives on the other. In the latter case State interests immediately govern the entire law-making process, what undoubtedly facilitates and accelerates the final formulation. This procedure is suitable in particular for a casuistic codification required by a given political event; it puts more emphasis on broader acceptability than on conformity and consistency with general international law. However, in such a case, the legislative history of the individual provisions is mostly lost in the darkness of (for economic reasons) undocumented procedures (such as in the case of the United Nations Law of the Sea Convention 1982) and no commentaries adopted by the States exist so that travaux preparatoires which could elucidate the meaning of unclear provisions are missing, without regard to the fact that especially these procedures frequently generate unclear political compromises. In contrast thereto, independent experts proceed from general interests irrespective of individual State interests. Since the latter interests, nevertheless, must be inserted into the law-creating process, the experts must become acquainted with these interests by an exchange of information with State representatives. Only through this method, which is pursued by means of questionnaires or of written or oral statements of States, the text can be scrutinized regarding its necessary acceptability and - if necessary - be modified.

5. Recent Modifications in the Codification Process It cannot be ignored that a transition from codification stricto sensu to progressive development of international law currently takes place. This transition has an impact on the adequate procedure: As far as the law-creating process transcends codification stricto sensu which is based upon established patterns of conduct of States, it must reflect the still divergent practice of States so that it comes closer to genuine international negotiations. The increased activity of independent forums such as the ILC in the creation of instruments reaching into the latter field therefore forces this body to become more involved in a real negotiation process and to act as a sort of conciliator or mediator. The end of the Cold War also prompted fundamental changes of the codification process due to a general shift of paradigms in international relations as well as to a basic change of the political situation. The end of the bipolar system based on antagonistic East-West relations induced a decrease of the significance of sovereignty within the law-making process in favor of an increased emphasis of the human right aspects and the transfer of governmental functions to international institutions (such as the International Criminal Court). The end of the support by the "socialist States", the rise of neo-liberal economic ideas as well as the upsurge of cultural diversity also among these countries cut back the influence of the block


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of developing countries since these States could no longer act as a solid and homogeneous group in the negotiation process but started to act in a dispersed manner in pursuance of their individual different interests. These changes already raised the question of a need to adjust the codifications, which had been elaborated under former conditions to the new circumstances. The first signs of such a need surfaced in the context of the Vienna Convention on the Law of Treaties of 1969 (VCLT) when the regime on reservations to multilateral treaties (Art. 19 et seq. of the VCLT) proved unable to cope with the particular features of "normative treaties" such as those on human rights. For these reasons the ILC is presently again dealing with this topic. The subject of codification also changes insofar as more emphasis is now put on the procedural aspect of international law. Thus, whereas a further codification of substantial fields of human rights is hardly conceivable, the law making of regimes on the enforcement of international law and the establishment of adequate instruments for this purpose is still to be dealt with. A further new element consists in the broader involvement of civil society in the codification process, represented by the competent NGOs, which receive consultative status at such conferences and are authorized to observe directly the negotiation process. They use this position during the conference to influence the State representatives either directly or by means of the preparation and presentation of pertinent documentation.

6. The Current Problems of the ILC The ILC, the main law-creating body of the UN, presently suffers from fundamental problems relating to its methods and topics so that it became subject of criticisms and requests for reform. It has also been argued that its loss of prestige resulted in a decreasing persuasiveness and authority of its work as well as in a loss of confidence of States in the Commission. With regard to its method there can exist conflicts, frictions and gaps between the positions of independent bodies such as the ILC and the interests of States, which result from the absence of appropriate communications between the experts and the States. Because of this deficiency the ILC has difficulties to reflect accurately the interests of States in the course of its work. This regrettable outcome also results from the reluctance of States to divulge, at this stage of the codification process, the necessary information since they do not want to forgo their discretion in shaping their foreign policy. For the latter reason, they are also not yet prone to make concessions or to accept those proposed by the ILC, in particular in very sensitive fields of high politics where they would accept trade-off only in direct negotiations with other States.

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As, under those circumstances, divergences among States on the substance continue to exist, the States also hesitate to convene a conference of plenipotentiaries directly upon a text prepared by the ILC since they expect a long and costly duration of the conference unless the main divergences are already removed before the start of the conference. For this reason, they try to eliminate the main divergences in preparatory committee or working groups consisting of State representatives already prior to the conference. Regarding the Statute on an International Criminal Court presented by the ILC in 1994 for instance, the GA convened two sessions of an ad hoc committee which first had to identify the main fields of disagreement among States without making new proposals. Only on the basis of this work and the text submitted by the ILC a preparatory committee subsequently elaborated a new text furnished with various alternatives and options, which eventually served as the basic text for the Rome Conference on the Establishment of an International Criminal Court in 1998. As to the selection of topics, States are apparently disposed to entrust the ILC with the law-making task only if an already established practice exists which the States want to continue. Thus, the preparation of UNCLOS I, which had to codify the then existing law of the sea, was still bestowed upon the ILC. However, when, in the 1960s, the States aimed at creating a new law of the sea, they withheld the preparatory task from the ILC. The difficulties in identifying appropriate topics match the move from the codification stricto sensu to the creation of new law. If the ILC attempts to draw up a convention on matters where an established pattern of conduct does not yet exist or States wish to change it by the means of legal prescriptions the Commission is forced to decide whether or not it is prepared to assume the role rather of a conciliator than of a reflector of existing law. This function requires a close communication with the States particularly concerned, which, however, is frequently lacking so that the interests of these States are not always adequately echoed. The defective communication creates a vicious circle to the detriment of the ILC since it has a feedback on the topics, which the ILC can handle as their selection is closely connected with the procedure of the Commission. It is nonetheless within the powers of the ILC and the States gathered e.g. in the 6th Committee of the GA to remedy this situation by establishing closer contacts among them. By the same token, the authoritative effect of instruments elaborated by the ILC could be increased if the ILC becomes more integrated in the epistemic community so that divergent or even contradicting proposals would not be submitted to the international community. It cannot be excluded that one reason for the reduced number of ratifications of recent instruments submitted by the ILC, which even precluded their entry into


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force, is to be found in these new tendencies. It is also argued that there are hardly any topics of international law still left being suitable to codification through the ILC; the time of great codifications is said to belong to the past and the time of framing substantive rules on State behavior seems over. The most suitable topics are said to belong to fields, which are governed by reciprocity and where established patterns of conduct exist, i.e. the classical fields of the activity of the ILC. Among the originally proposed topics only those relating to recognition of States and governments, extraterritorial jurisdiction, law of aliens and asylum are not yet dealt with. The last two however are already governed by other instruments or international regimes (law of aliens within the framework of human rights) or being subject of too many political obstacles (asylum). Furthermore, synallagmatic legal relations mostly characterize the classical codifications whereas today different structures of the obligations are advancing, such as those, which set standards of conduct within the States and create obligations erga omnes. Without embarking on the reasons for these changes, one cannot overlook the inadequacy of the VCLT and of the present draft of the ILC on State responsibility to cope with these new legal structures. Nevertheless, in response to these problems, criticisms and requests the ILC already presented proposals for a reform envisaging an improvement of the communication with States inter alia by less complicated questionnaires, shorter commentaries, the establishment of time schedules, a more appropriate method of identifying subjects for codification and adequate working methods, as well as aiming at elaborating different instruments of codification lato sensu such as "Restatements of international law", resolutions (as it was recommended in the case of the draft on the "Nationality of Natural Persons in Relation to the Succession of States") and other forms of non-binding instruments. The latter forms reflecting rules of international law either de lege lata or de lege ferenda benefit from the absence of the requirement of an explicit consent to be bound by the States. Nevertheless they constitute, together with the commentaries, a valuable compilation of otherwise hardly accessible materials concerning relevant legal norms which the States frequently resort to.

7. Effect of the Plan of Reform The plan of reform of the United Nations submitted by the UN-SG of 14 July 1997 (UN Doc. A/51/950) does not contain any reference to the process of codification performed by the United Nations. It could be inferred therefrom that a need of reform in this area was redundant. Nonetheless, it must not be overlooked that the

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fundamental changes in the universal international relations entailed modifications in the process of codification, which already prompted the ILC to make first steps towards a reform.

The Development of the International Human Rights System by the United Nations Christian Strohal

Literature: Ermacora, Menschenrechte in der sich wandelnden Welt, I. Band, Historische Entwicklung der Menschenrechte und Grundfreiheiten (1974); Bossuyt, Guide to the "travaux preparatories" on the International Covenant on Civil and Political Rights (1987); Nowak, UNOPakt uber burgerliche und politische Rechte und Fakultativprotokoll, CCPR-Kommentar (1989); Ramcharan, The Concept and Present Status of the International Protection of Human Rights 40 Years After the Universal Declaration (1989); Cassese et al. (eds.), Human Rights and the European Community, 3 vols (1991); Alston, The United Nations and Human Rights: A Critical Appraisal (1992); An-Na'im (eds.), Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (1992); Eide et al. (eds.), The Universal Declaration of Human Rights: A Commentary (1992); ErmacoralNowaklTretter (eds.), International Human Rights, Documents and Introductory Notes, (1993); Sohn (ed.), Guide to Interpretation of the International Covenant on Economic, Social, and Cultural Rights (1993); Nowak (ed.), World Conference on Human Rights - The contribution of NGOs (1994); van Boven, General Course on Human Rights, Academy of European Law, collected courses, Vol. IV, Book 2,1 (1995); Eide et al. (eds.), Social and Cultural Rights: ATextbook (1995); The United Nations and Human Rights, 1945-1959, United Nations Blue Books Series, Vol. VII, United Nations (1995); SteinerlAlston (eds.), International Human Rights in Context: Law, Politics, Morals - Text and Materials (1996); Hanski et al. (eds.), An Introduction to the International Protection of Human Rights, ATextbook (1997); Strohal, Human Rights Year 1998: The Challenges for the International Human Rights System, 2 Austrian Review of International and European Law (1997)391; Alston et al. (eds.), The EU and Human Rights (1999); EU/General Secretariat of the Council, EU -Annual Report on Human Rights 1998-99 (1999); Morsink, The Universal Declaration of Human Rights - Origins, Drafting and Intent (1999); Website des UN-Hochkommissars fur Menschenrechte .

1. Introduction: The Decisive Role of the United Nations One cannot overestimate the UN's importance for the development of today's international system for the protection and promotion of human rights. The holocaust had strengthened calls for an effective international protection for the individual. So far, that function had been the role of individual States, but not of the international community. Therefore, the Charter of the new organization made the promotion and protection of human rights one of its main objectives. Fifty years after these programmatic beginnings, a complex system of normative, political and practical structures and instruments has been created through the UN; today, this system, while far from perfect, relates in practically all States in many ways to their national human rights structures. International human rights treaties

Franz Cede and Lilly Sucharipa-Behrmann (eds.), The United Nations -Law and Practice, 157-176 ©2001 Kluwer Law International. Printed in the Netherlands.

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must be taken into account by national legislation; these treaties can be applied by national courts; victims of human rights violations can address complaints to international control bodies; international organizations play a decisive role in building national human rights structures; civil society in many countries in all parts of the world has become a forceful voice for human rights, using, and influencing, these bases; finally, the realization of human rights is now widely recognized as a precondition for sustainable development, international stability and peace. The UN has played a decisive role in these developments: international responsibility for the protection of human rights has become a central issue of international inter-action and, therefore, national politics. Monitoring national human rights situations by the international community has become a major task for the UN's daily work, and constitutes an increasingly effective instrument for improving the realization of international human rights standards at the national level, and for constructively addressing shortcomings in this regard. The UN is not only an international forum, it also has become a central actor in this field. As should become clear the following brief overview, the development of the inter-national human rights system is to be seen as one of the main successes of the UN, and this in spite of daily news about continuing violations of fundamental rights in all parts of the world. Over the last few years, the protection and promotion of human rights has become a truly "global issue", bringing, in turn, a considerable operationalization of the international system and a growing involvement of nongovernmental actors. Challenges, however, remain, and have emerged afresh in the "Human Rights Year 1998". The Kosovo and East Timor crises of 1999 have finally put the issue of humanitarian intervention squarely on the international agenda: If military intervention becomes, as a last resort, an instrument for securing respect for fundamental rights, what are the (pre-)conditions and processes required? So far, the question remains open if governments all over the world can be convinced that international control of national human rights situations constitute a necessary contribution not only to national development, but also to international peace and security.

2. Origins and Terminology Content and meaning of the term "human rights" are in several ways unclear: neither attempts to differentiate in historic, ideological, or legal terms nor numerous efforts to come to scientifically sound classifications have led to unequivocal and quite universally acceptable definitions. The central basis for all concepts of human rights must, however, remain the principle that every human being, through his or

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her human dignity, is being born with inalienable rights. It has been a rather long way from the development of this thinking in religion and philosophy towards political postulations and the formulation of legal safeguards. Important steps were taken with the American Declaration of Independence 1776 which stipulates that"... all men are created equal; that they are endowed by their creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness", as well as with the French Declaration des Droits de l'Homme et du Citoyen 1789. These two documents have contributed decisively to our understanding of human rights. Today, our system has to fulfill the following criteria: • Human rights are not only inherent and inalienable, they are also • inclusive, i.e. they apply to all members of the human community, • indivisible, i.e. human rights necessarily constitute the totality of all human rights together, • universal, i.e. the same rights apply to all human beings everywhere in the world, and • they have to be enforceable. a) "Human rights" - still a source of international conflict? Governments continue to argue, sometimes quitefiercely,about concrete content and meaning of the term human rights, both at the national and international level, in particular within the UN framework. Even today, these debates are often still characterized by conflict patterns which developed under the confrontations of the Cold War era. With regard to human rights, these were concentrating on the issue of priority for individual freedoms and their protection vis-a-vis the State, on the one hand, or for collective rights for social and economic provision by the State on the other. And while the East-West conflict has ceased to influence the international debate over human rights, tensions have grown among the industrialized world and some developing countries, often focusing on issues such as regional or cultural "particularities", obstacles to the realization of human rights, or the right to development. (See 7 infra.) b) First efforts to internationalize human rights Efforts to create an international system for the protection of human rights (beyond the specific work of the International Labor Office created after the First World War) grew, together with deliberations on a post-war order, in the early 1940s: A clear way leads from the Proclamation of Four Freedoms 1941 by the president

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of the US to the Atlantic Charter and the Charter of the United Nations which, in its Preamble, declares "human rights, justice, social progress and better standard of living in greater freedom" as being one of the main objectives of the new organization. c) Legal bases On this basis, today's meaning of the term human rights can be defined essentially with the content of the Universal Declaration of Human Rights 1948 (UDHR) and the main human rights treaties which base themselves on this declaration and have been developed within the UN framework. (See 4 infra.) These are, in the first instance, the following: • The international Covenant on Civil and Political Rights and its First Optional Protocol 1966; • The international Covenant on Economic, Social and Cultural Rights 1966. These two treaties, together with the Universal Declaration of Human Rights, are being called the "International Bill of Human Rights" and can be regarded as the constitutional basis of the international human rights system. Specific treaties have been added to elaborate certain rights more in detail: • the Convention Against Genocide 1948; • the Convention for the Elimination of All Forms of Racial Discrimination 1965; • the Convention for the Elimination of All Forms of Discrimination Against Women 1979; • the Convention Against Torture 1984; • the Convention on the Rights of the Child 1989. In addition, the numerous conventions elaborated in the framework of the Internationa] Labor Organization (ILO) constitute an important element of the international human rights system. In the present context, we cannot elaborate on these conventions, or on the various regional human rights instruments.

3. Institutional Framework a) Charter of the UN The UN Charter not only constitutes the institutional frame for the whole organization; as with other matters, it also determines the basic structure for activities in the human rights field. These are: the General Assembly (GA Art. 13), ECOSOC


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(Art. 62 (2) and (3)), and the Commission on Human Rights (CHR) which has been created in accordance with the mandate for ECOSOC to create subsidiary organs inter alia for the promotion of human rights (Art. 68). The Security Council (SC) was not included in this structure, so that this body - which had been created for the maintenance of international peace and security shied away from dealing with practically any human rights issue until the beginning of the 1990s. By expressly creating a Commission on Human Rights, it was made clear that the human rights concern was not only to be seen as a temporary one in the aftermath of World War II, but that this was a fundamental objective to be pursued systematically by the organization. b) The Commission on Human Rights: development, functions and structure The CHR soon developed into the central organ for the UN's human rights activities, evolving over time with substantive changes and wider issues into a broad and differentiated structure. Practically all human rights instruments and mechanisms of the UN originate in the CHR or one of its subsidiary bodies. The success of the Commission is due to a number of factors, among which the following merit to be mentioned: • the growing interest, and participation, of governments in what was originally to be work by experts; • the continuously growing cooperation with non-governmental organizations (NGOs) who have become, over time, a central motor for nearly all development of human rights both at national level and within the UN; • growing public interest - in turn strengthened by this role of the NGOs - for human rights issues in a growing number of countries. The Commission, originally a body of 18 experts nominated by ECOSOC ad personam, today is composed of delegations of its 53 member States, elected by ECOSOC for 3-year mandates in accordance with a distribution key for the five regional groups. Other States send observer delegations who may participate actively in the Commission's work and who are only limited in procedural terms, especially by being excluded from formal decision-making/voting. Finally, all major intergovernmental and some 200 non-governmental organizations send observers. Of particular importance among the Commission's permanent subsidiary organs is the Sub-Commission for the Prevention of Discrimination and the Protection of Minorities, currently consisting of 26 independent experts. Today, however, the quality of its work is seen rather critically, especially in view of the lack of independence of some of its members; calls for fundamental reform abound. So

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far, they have led, in 1999, only to an abbreviation of its name to Sub-Commission on Human Rights. The CHR has become a big and sometimes quite heavy body. It meets once a year in spring for six weeks in Geneva, and often is regarded, rightly, as a "MiniGA". Since 1993, it can meet, under specific circumstances, in Special Session; so far, it has done so four times, twice on the situation in former Yugoslavia, once on Rwanda and once on East Timor. Today, a session of the Commission sees some 3000 delegates; nearly 1000 statements and some 100 resolutions or formal decisions are being made under its 20 substantive agenda items. The large majority of the resolutions, often rather lengthy texts, are adopted without a vote, often after long informal negotiations which are held in parallel to the Commission's formal meetings in order to overcome differences of opinion - or, at least, to cover them up. The most visible issue, and biggest potential for conflict, concerns the human rights situation in individual countries. (See 5.b infra.) This item, after being disregarded originally (the so-called "no powers-doctrine" prevalent until the 1960s), today has become the central feature of the Commission's work. At the same time, it creates complaints about the politicization and selectivity of the Commission's activities. These reproaches are being raised mostly by developing countries that argue that the Western countries apply essentially political motivations in the selection and treatment of country situations - an argument that cannot always be denied a certain validity. Efforts at reform of the Commission's working methods are nearly as old as the CHR itself, as practically everyone agrees that they are more often than not unsystematic and chaotic, leaving the whole CHR overburdened. These efforts are seriously hampered, however, by fears to see one's owns priorities curtailed. So far, a small victory - after years of fruitless negotiations - has been achieved in 1998 by streamlining the Commission's agenda; a reform of its mechanisms (see 5 infra) has only led to incremental changes so far.

4. Law-making through the UN a) Universal Declaration of Human Rights The main objective of activities to codify human rights was to obligate states by international law to protect human rights and to establish international mechanisms to monitor and control respect for these obligations. The mandate given to the CHR by the GA to elaborate an "International Bill of Human Rights" originally foresaw a three-tiered instrument, including not only a universal declaration, but also a binding treaty as well as provisions for its practical realization. Early


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enthusiasm disappeared quickly, however, in view of disagreements over the desired degree of legal obligations for states. Therefore, the CHR concentrated its efforts on the completion of a declaration. Less than two years after having started drafting, it presented a text to the GA. The GA adopted the UDHR on 10 December 1948, with 48 yes-votes and 8 abstentions (the Communist countries, Saudi Arabia and South Africa) and no votes against. This date was subsequently declared "International Human Rights Day". The UDHR launched a standard-setting process, which is continuing until today, in particular by determining programmatically the main content of legal obligations concerning human rights; it constitutes a (quasi-) constitutional basis for the international protection of human rights. Many scholars regard it as authoritative interpretation of the UN Charter and as having become, to a considerable degree, customary international law. b) The Covenants The most important standard-setting period covers the years until the completion of the two Covenants. Work was started immediately after the proclamation of the UDHR. The division into two treaties - one on economic, social, and cultural rights (ICESCR), one on civil and political rights (ICCPR) - evolved during the negotiations in the light of hardening East-West tensions; especially the communist countries argued for the priority for economic and social rights, given their collective dimension. Because of continuing dissent over this issue, the GA took, in 1952, the decision for a division into two Covenants. Continuing dissent over the nature of economic and social rights led to softer formulations of the general obligation contained in Art. 2 of the ICESCR. The ICESCR contains a number of elements reducing the degree of enforceability, which are not contained in the ICCPR. The Covenants, after the CHR had completed their drafting in 1956, were finally adopted by the GAin 1966 without a vote. This unequivocal adoption by the more than 100 members, which the organization comprised at that time, is a forceful commitment to the universality of human rights. The Covenants entered into force in 1976 with the required 35 ratifications; today, ratifications stand at over 140. c) Remaining

problems

A number of general problems permeate all human rights codification processes: • the quality of some instruments is considered by many as not wholly satisfactory. This is due not only to the necessary search for compromise and consensus among delegations, but also to a weak and unsystematic quality control (by the Secretariat) before the final adoption of a new instrument;

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• the continuing difficulty to effectively meet systematic human rights violations by some States Parties to a treaty. This difficulty is a strong argument in favor of creating, and maintaining, non-treaty-based monitoring mechanisms even in areas where treaty-based bodies exist; • the democratic deficit of all standardization processes in the UN; however, the strong role of NGOs - especially in human rights related work - constitutes a counterbalancing factor in this regard. While the standard-setting process today can be regarded as essentially completed - with the exception of protocols establishing individual complaints procedures where they do not yet exist - new codification proposals can still be expected in the light of new challenges. It should be pointed out that some observers use in this context the distinction of human rights of the "first, second, or third generation" in order to differentiate, first, civil and political rights protecting the individual vis-a-vis the State, secondly, economic and social rights requiring action by the State, and, finally, rights of a presumed collective dimension ("solidarity rights") such as the right to development or a human right to peace. In our view, however, such a distinction cannot convince in the light of the principle of the indivisibility of all human rights; furthermore, the dynamic dimension inherent in a picture of "generations" would seem equally flawed. The call for universal ratification - made, in particular, by the 1993 World Conference on Human Rights (see 8 infra) - remains valid, in spite of undeniable progress achieved over the last ten years: The Convention on the Rights of the Child, the youngest instrument, has been ratified by all States with the exception of the US and Somalia; on the other hand, the relatively smaller numbers of ratification of the Convention Against Torture or of individual complaints procedures remain quite unsatisfactory. The growing number of reservations made to human rights treaties poses a particular problem. Given the general or sweeping character of a considerable number of these reservations, the readiness of the ratifying State to be bound by the respective treaty is put into question. This holds particularly true for those reservations making the fulfillment of the treaty obligations generally conditional on national legislation or other general and unspecified principles, such as Islamic law (Sh'aria). Therefore, a growing number of other States Parties object to such reservations as being incompatible with object and purpose of the treaty. Such objections cannot solve the fundamental problematique, however, that the central objective of international human rights instruments is not, in the first instance, to establish treaty relations among States Parties, but rather aims at ensuring, under


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international law, a domestic obligation of States vis-a-vis their own population. d) A role for the individual The entry into force of the Covenants brought another major achievement for the international human rights system: for the first time, not only an international obligation of states to protect human rights was created, but - through the First Optional Protocol to the ICCPR - also the possibility for the individual human being to address allegations of human rights violations to an international body which would then make recommendations on remedies to the State party concerned. In 1999, the GA adopted a similar protocol to the CEDAW. Similar proposals for an additional protocol to the ICESCR, however, have so far not led to negotiations. Altogether, with the entry into force of the human rights treaties, a major step was made from a period of standard setting to one of international implementation control. The foundations were laid to incorporate the international human rights system also into the practical work of the UN, a step that would change the character of both the organization's secretariat as well as of its inter-governmental structures.

5. The Protection of Human Rights through the UN: Issues and Structures The concrete efforts at protection of human rights through the UN correspond to this double basis: a programmatic basis in the Charter, as well as more detailed stipulations in international treaties. Thus, the — sometimes - uneasy relationship between legal and political structures is predesigned. a) Control mechanisms This central differentiation among the various international mechanisms for the control of the implementation of human rights obligations of states, i.e. that of treaty-based and Charter-based mechanisms, is referring to different legal and political structures. It is obvious that those mechanisms that are based on the Charter have broader and more general objectives than the treaty bodies, which are focused both in substantive terms as well as in geographic applicability. Dividing lines are, however, often rather blurred. Enhanced cooperation among the mechanisms of both categories is therefore increasingly encouraged. aa) Treaty bodies Activities of treaty-based monitoring mechanisms started with the entry into force of the two Covenants in 1976. The Human Rights Committee of the ICCPR started its work, as did the subsidiary committee of ECOSOC created for the monitoring

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of the ICESCR which was later turned into an independent body like its sister Committee of the ICCPR. (1) Functions and methods of work The bodies established by the treaties are to monitor the obligations states have assumed by adhering to the treaty. It is for this reason that they are composed of independent experts (18 in most cases), to be elected periodically by the States Parties. The main monitoring purpose consists in the examination of the reports states have to submit periodically. In general, this examination follows a similar pattern: The report is being discussed by the treaty body (often assigning one of their members as rapporteur); then a dialogue is being conducted with the government concerned, first in writing and subsequently orally in a public meeting of the body; finally, conclusions and recommendations are adopted suggesting to the government concrete proposals for further implementation measures. The steadily growing number of cases of reports being submitted with long delays or not at all has highlighted the problems the periodic reporting obligation is creating for a number of governments, particularly in developing countries. This concern has led to a number of practical suggestions from the treaty bodies themselves, such as Reporting Guidelines, as well as to the introduction of a Core Report for all treaties. In addition, the system of Advisory Services of the secretariat can be utilized by States Parties when preparing their reports, as well as for following up on suggestions from the treaty bodies. (2) Reform efforts The character of the work of treaty bodies — often unspectacular and rather slow — has led to numerous attempts at more far-reaching reform. Individual members of these bodies, the academic world (to whom they mostly belong), and governmental experts have attempted practical measures such as a better cooperation among the treaty bodies, more focused reporting and implementation control, and improved secretariat support. Occasionally, calls were heard to merge them into one permanent treaty body. The idea of such an "International Human Rights Court" was promoted especially in the course of preparations for the World Conference on Human Rights; particularly NGOs expected such a body to be a more effective weapon in fighting widespread impunity of human rights violations. Subsequently, efforts concentrated on the creation of an international criminal court; reform of the implementation of treaty obligations is largely left to the treaty bodies themselves, particularly through the yearly meetings of their chairpersons.


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In addition, the UN-SG has mandated the High Commissioner with preparing further reform suggestions. bb) Political mechanisms The long period between the adoption of the Covenants and their entry into force encouraged deliberations on creating bodies for dealing with concrete human rights violations without a specific treaty basis. These ideas led to two new mandates for the CHR: • First, the CHR was empowered in 1967 to conduct public debates on the

human rights situations in individual countries (also called "1235procedure" after the enabling ECOSOC Res. 1235 (XLII) of 1967). This step not only put an end to the "no powers"-doctrine, it also led eventually to fundamental changes in the CHR's work and to the doctrine that the concern for the situation of human rights in individual countries constitutes a legitimate concern for the international community. • Secondly, a confidential procedure was established to deal with the numerous complaints of individuals on human rights violations sent to the UN: These so-called "communications" (typically 25,000-50,000 per year) were examined along certain criteria if they would attest to a consistent pattern of serious and systematic human rights violations. This procedure is called "1503procedure" after ECOSOC Res. 1503 (XLVIII) of 1970. The government concerned was given the opportunity to respond in writing as well as orally to the allegations; if the Commission deems the allegations to fulfill the criteria and is not satisfied with the government's response, it can decide to move further debate into the public "1235-procedure". Today, it is increasingly questioned if this procedure still fulfils its purpose and continues to be necessary, given the other mechanisms developed since 1970. These two steps led, in turn, to a number of further developments: • the role of NGOs was further enhanced, as they not only provided increasingly the communications under the 1503-procedure, but also pursued the move to the public procedure, as they are excluded from participating in the debates of the confidential 1503-procedure; they became, eventually, atrue motor of the CHR's activities; • the development, since the end of the 1970s, of establishing Special Rapporteurs for dealing with particular situations, the so-called "special procedures", which have proven to be particularly effective, at least in terms of publicity and, therefore, impact (see 5.b infra);

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• the role of the secretariat was enhanced, too, given their role in servicing not only the sessions of the CHR, but also the substantive work of the growing number of different mechanisms: the "Human Rights Division" (moved in 1974 from New York to Geneva on pressures from some governments who wished to reduce its publicity) was elevated to a "Human Rights Center"; with the creation of an "Office of the High Commissioner for Human Rights (OHCHR)" in 1994 an independent actor with a number of further substantive mandates was established (see below); • the growing charge of "politicizing" the work of the CHR raised by a number of developing countries, meaning, in fact, that the Western countries' criticism of the human rights situation in other countries is being made selectively and for political reasons {"double standards"). b) Fact-finding and reporting: human rights protection by special rapporteurs The creation of "special procedures" (special rapporteurs, working groups, or individual experts) from the beginning of the 1980s constitutes, as already pointed out, in today's perspective a "quantum leap" in the way the international community is dealing with human rights violations: Governments are being confronted with reports of independent experts pointing out severe human rights deficits in their countries and making suggestions for redress; in addition, specific thematic issues are being examined systematically. Today, there are more than three dozen such mechanisms, which create a dense system of reporting to the CHR and the GA, but also, and even more importantly, an equally dense network of ongoing communication with governments and NGOs world-wide. aa) "Thematic " mechanisms To deal with specific severe phenomena of human rights violations - starting with "apartheid" and "disappearances" — the CHR established working groups and special rapporteurs. Their mandates are to be renewed regularly and include not only reporting to the Commission and - in certain cases - to the GA, but also conducting dialogue with governments and, increasingly, also with civil society. This includes, in particular, visits to the countries concerned to which they are increasingly invited, often albeit only after insisting on such visits. In addition, they can intervene, in the framework of a "urgent action" mandate, by appealing in individual cases of human rights violations to the government concerned. The working groups are composed of one expert from each of the five regional groups and deal with disappearances and arbitrary detention, special rapporteurs are mandated with issues such as torture, independence of religion, summary or arbitrary executions, freedom of opinion, independence of the judiciary, child


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pornography and prostitution, internally displaced persons, or the right to education. bb) Country rapporteurs The new opportunity for debating individual countries' situations in the CHR opened the possibility to establish specific rapporteurs in order to better document such situations. These country rapporteurs quickly became the most visible instruments in the UN framework for sanctioning severe human rights violations and for contributing to their improvement. The sanction element is to be seen not only in the possibility thus opened for debating the situation, but also in the opportunity to comment a country situation critically and in detail in the form of a resolution. This is the typical form the decision to establish, or prolong, the mandate of a country rapporteur takes; at the same time, however, the need to find a voting majority often influences negatively the negotiations over the concrete text of a resolution. The instrument of country rapporteurs, too, has evolved considerably since its beginnings in 1983. While at the outset, the main objective was really the presentation of reports as a basis for the Commission's debate, in due course a dense communications network with the authorities in a growing number of countries developed, in particular in connection with invitations to visit. This, in turn, encouraged rapporteurs to present suggestions for technical cooperation in the field of human rights. A systematic interdependence between results of such monitoring on the one hand - be it through treaty bodies or special procedures - and, on the other, the growing range of activities of the whole UN system in terms of human rights assistance is still being questioned by a number of developing countries. Such "mainstreaming" of human rights might, after all, reduce their margin of manoeuver when requesting technical assistance if the state had to concentrate on realizing recommendations made by independent experts. c) Thematic priorities Such reluctance also illustrates the difficulties to deal with fundamental human rights issues at the intergovernmental level without reservations. At the outset, thematic orientations were given by the standard-setting objective on the one hand and the general political framework (East-West conflict, decolonization) on the other. Today, priority setting beyond the need to react to specific violations is guided by efforts to underline the importance of specific human rights. This refers in particular to the following issues: Non-discrimination and the protection of minorities, rights of indigenous people, rights of the child, the right to development, or the protection of displaced persons. A particular success concerns women's rights,

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especially since the Vienna World Conference 1993 and the 4th International Women's Conference in Peking. Women's rights now have conquered the whole UN system in terms of a "gender-mainstreaming". (See infra Worgetter.) Originally, such issues were brought forward through background studies, prepared especially in the framework of the Sub-Commission; today, work concentrates rather on finding practical measures which are of direct relevance to the people concerned. This implies a more complex institutional networking, involving not only governments and experts, but also NGOs and other parts of the UN system. For such a "mainstreaming" the High Commissioner for Human Rights plays a crucial role.

6. The Promotion of Human Rights by the UN Contrary to the - highly political - activities to establish treaties and mechanisms for the protection of human rights through the UN, developments for their promotion went without major conflicts. Governments, for a long time reluctant vis-a-vis direct interference by the UN into national human rights structures, had no difficulties with UN-sponsored seminars to disseminate knowledge about human rights to national authorities; they also accepted assistance for the better implementation of treaty obligations. Thus, a program of Advisory Services was created, a program which has developed considerably from its beginnings of seminars and the provision of experts to assist with reporting obligations towards the request by more and more governments for concrete assistance measures to, finally, a broadly spread instrument of the UN to assist, with the help of donor governments, in improving national human rights infrastructures. This development was made possible by the creation of a Voluntary Fund for technical cooperation in the 1980s. The Fund has expanded this instrument considerably towards the execution of concrete projects, often together with NGOs, to strengthen national judicial systems, the administration of justice, and, since the World Conference, the creation of national human rights commissions. Already for some years, the Office of the High Commissioner has difficulties to match the growing demand with adequate voluntary financial contributions. In addition to such direct assistance offered by the Office of the High Commissioner, a number of programs have been developed by other parts of the UN system which equally aim at improving national human rights capacities. For a long time, such activities have not been designated explicitily, by all concerned, as relevant for human rights, for fear of negative political repercussions. Particularly those activities of the UN development program UNDP that concern most directly national


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development programs depend on full acceptance by the respective government, so that nobody wanted to prejudice these programs by directly linking them to such a "political" issue as human rights. The main exception to this attitude, which started to change only after the World Conference, was to be found in the ILO, where development programs always aimed at improving the implementation of the numerous ILO conventions. Today it is UNICEF which targets the programs most directly to the implementation of the Convention on the Rights of the Child.

7. Human Rights and Development: A Mirror of Conflict among Governments In spite of this growing interdependence of development cooperation and human rights, the question of the relationship between sustainable development and the protection of human rights remains contested. Should human rights considerations direct development cooperation, or is rather the opposite of importance, i.e. does the degree of development determine the effective realization of human rights? Many developing countries argue the latter position, in order to block any human rights related "conditionality" of development assistance. Is, on the other hand, the maintenance of a conditionality which is only negatively defined not in many cases an empty threat? Would the objective thus pursued not be reached more effectively with "positive" conditionality by including human rights projects systematically into any development cooperation? The debate which these questions illustrate is currently still going on. In this connection, the question of enforcement of the human rights protection and sanctions for their violations is particularly relevant. The fundamental lack of any sanctions for human rights violations was at the basis of the creation of Special Rapporteurs, in order to be at least able to apply some pressure via international public opinion; subsequently, other means for exercising pressure were sought: bilateral demarches, economic pressure (possible withholding of the "most favored nations clause", conditionality, embargoes, etc.) or downgrading of bilateral relations. These developments led to increased efforts by a number of developing countries to instrumentalize the right to development as a sort of "super"-human right: Since the adoption of the Declaration on the Right to Development by the GA in 1986, this has been utilized by the movement of non-aligned states to establish an international responsibility, in particular of industrialized states, for a transfer of resources for development as a precondition for effective human rights protection at the national level. These efforts - reminiscent of those conducted in the 1970s for a "new international economic order" - have been met by Western countries originally with a rather defensive approach. Now, the realization of economic and

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social rights - and respective international monitoring - is receiving increased attention. In 1998, the creation of several new mechanisms by the CHR, in particular a Working Group on the Right to Development and a Special Rapporteur for the right to education, was an important step in this regard. Fearing that these new instruments might not necessarily be to their favor, some of the more radical developing countries are currently shifting the ideological debate to another field where Western countries are seen as being vulnerable: globalization, which is to be seen, in particular, as an impediment for the full realization of human rights.

8. A Paradigmatic Change for the International Human Rights System: The World Conference for Human Rights (1993) The end of the Cold War brought great expectations with regard to new chances for the UN. This was particularly true for the international human rights system which, so far, had been dominated largely by the East-West confrontation. These hopes for anew beginning concentrated rapidly on holding big UN conferences on major thematic issues, such as the protection of the environment, social progress, women's issues - and human rights. It was expected that high-level conferences would lead the international debate on these issues away from sterile parameters of east-west-conflict and bring them into the "mainstream" of international activities. A World Conference on Human Rights would be the appropriate forum for giving major new orientations in this field. These hopes, however, were soon matched with fears that the collapse of the East-West conflict might lead to a North-South confrontation over human rights. Many developing countries had known the international human rights system as a - confrontational - instrument of the Cold War and had to fear, consequently, that this instrument might be turned increasingly against them. Also among some Western countries concerns were voiced that - under these circumstances - even past achievements might be endangered. The two-year preparatory process for the World Conference confirmed these fears. It was dominated by regional preparatory meetings in Africa, Latin America, and Asia, where attempts were made to identify regional human rights "particularities"; thus, the work in the Preparatory Committee for the Conference towards reaching consensus over the results of the Conference was more than once made nearly impossible. It remained unclear, in particular, which results would be needed in order to consider the Conference a success. NGOs, and Western countries, put the request for the establishment of a High Commissioner for Human Rights - an idea which had emerged at regular intervals since the 1950s - at the top of their expectations. The Preparatory Committee's work on the draft final document for


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the Conference finally left nearly 200 passages in square brackets as indication of disagreement for the Conference itself to sort out. Against this background, the World Conference - held in Vienna in June 1993 with the participation of 171 governments - was a convincing success. A major element for this success was the participation of more than 3000 representatives of NGOs - who were more closely involved in the preparatory meetings as well as in the work of the Conference itself than at any previous UN occasion - and the enormous media attention created by them. This is not the place to fully evaluate the conference results - the Vienna Declaration and Program of Action - achieved after 14 hectic days (and nights) in all its 139 paragraphs. Even the shortest summary must appreciate the following achievements: • a clear commitment to the universality of human rights; • a reaffirmation of the indivisibility of human rights; and, connected with this, • the further strengthening of the NGO movement: "all human rights for all" was the slogan of the NGO forum which immediately preceded the conference and became a determining factor not only for the conference, but also for the movement as a whole - several hundred NGOs participated for the first time ever at a conference of the UN and thus had a prime occasion for their own "networking"; • the clear commitment to the protection of human rights as a legitimate concern of the international community; • the determination of the (unofficial) "leitmotiv" of the conference, human rights-democracy-development, as mutually reinforcing elements of an international order contributing, in turn, to international peace and security; • the affirmation, for the first time in this clarity, of women's rights as human rights; • agreement on a range of concrete measures to reinforce the protection of human rights through the UN in particular; and • the proposal to create the office of a High Commissioner for Human Rights. It was this last proposal - and its surprisingly quick confirmation by the GA less than six months later - which proved decisive for a paradigmatic change in the international human rights system. The protection and promotion of human rights through the UN had become - some 45 years after the adoption of the UDHR - a central activity of the organization. This new role was symbolized, and enhanced, by the office of a High Commissioner with the added legitimacy of the Commissioner being elected by the GA. The organization, after some initial hesitation, has accepted this new significance:

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the World Conference started a tangible operationalization of the international human rights protection, in particular in two - interconnected - regards: • a massive expansion of technical cooperation programs for human rights (see 4 supra), and • the establishment of human rights field missions in a number of countries to observe the human rights situation in a continuous and systematic manner and to contribute to the coordination of these cooperation programs (see 9 infra). The Office of the High Commissioner has become the decisive catalyst for this development.

9. Field Missions for the Protection and Promotion of Human Rights When the first High Commissioner, the Ecuadorian diplomat Jose Ayala Lasso, assumed his post in April 1994, this coincided with the crisis in Rwanda - he immediately visited the country; subsequently, the CHR, in emergency session, endorsed his proposal to send a Human Rights Mission to Rwanda. The age-long desire of many human rights activists to create a quasi-permanent local presence in human rights crises had become reality. Immediately the tight limitations for such action by the new High Commissioner became apparent. His secretariat was not prepared for servicing and coordinating field activities, neither were the necessary resources readily available. In addition, his staff did not receive, at least at the outset, sufficient support by those parts of the UN system which had longestablished experience in this regard (such as the department for peace-keeping operations). Also those governments who supported the mission through their voluntary contributions had no ready-made answers to the question of the precise execution of the mandate, in particular on the balance between monitoring and reporting on the one hand and developing technical cooperation on the other. Since then, most of these problems have been overcome; the new High Commissioner since September 1997, the former Irish president Mary Robinson, currently is responsible for nearly two dozen - mostly small - missions. At the same time, this development re-enforces mainstreaming endeavors to introduce human rights considerations and criteria into the activities of "classical" peace-keeping operations - the number of which exploded after the end of the Cold War - as well as into "post-conflict peace-building". (See Theuermann supra.) Today, many of these operations comprise their own human rights departments, civilian police has become part of them, and in some instances human rights observation becomes the core mandate of such general missions (such as the Human Rights Verification Mission in Guatemala, MINUGUA).


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Finally, an important impulse has thus been made to dissipate the reluctance of development organizations and the international financial institutions vis-a-vis human rights programs; today, some of them have "adopted" human rights treaties as a sort of general basis of their activities (in particular, UNICEF in regard to the Convention on the Rights of the Child, but also UNDP and the World Bank with regard to the Covenants).

10. Human Rights Year 1998 and Beyond: Towards a Global Partnership? The 50th anniversary of the adoption of the UDHR, and the five-year review of the realization of the Vienna Declaration and Program of Action, offered two major occasions for putting the efficiency of the international human rights system to the test and for deciding upon further measures in this regard. The following objectives continue to be crucial: • to contribute to the primary responsibility of every national government for the protection of human rights by clear international control as well as effective cooperation programs; • to further strengthen the international human rights movement in order to realize their full potential at the national and local level, in particular through stronger efforts for human rights education, so that a human rights culture be developed world-wide. The international human rights standards established since 1948 have to reach all national structures in all countries: legislation, national infrastructures, control through an independent judiciary, responsible administration, human rights education, and the promotion of civil society: "institution-building" and "capacitybuilding" have become key concepts for support by international institutions. Also in this context, the Office of the High Commissioner has a central role to promote a global partnership for human rights. A new and detailed basis for these tasks are the Agreed Conclusions adopted by ECOSOC in July 1998 on the coordinate follow-up to the Vienna Declaration and Program of Action. Another important element for the further development of the international human rights system is the new Statute for an International Criminal Court: one of its objectives is to create an international criminal jurisdiction for severe human rights violations in order to fight the still wide-spread impunity. The major objective, finally, is not, in the first instance, to further strengthen the international system for the protection and promotion of human rights, but, rather, to effectively reach the national level with it. It is the national dimension, which is

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decisive for the success of the international system. A global partnership for human rights cannot rely on governments alone - their divisions are too big. A true partnership must encompass all human rights actors: governments, NGOs, national human rights institutions, parliaments, experts, international organizations, and business. The Human Rights Year has provided a clear mandate. It is up to everyone to carry it further.

Gender Issues in the United Nations Aloisia Worgetter

Literature: Alston, (ed.), The United Nations and Human Rights. A Critical Appraisal (1992); Cook (ed.), The Human Rights of Women. National and International Perspectives (1994); Winslow (ed.), Women, Politics and the United Nations (1995); Pietila/Vickers, Making Women Matter. The Role of the United Nations (1996); The United Nations and The Advancement of Women, 1945-1996, The UN Blue Books Series, United Nations Publication (1996); Dolling/ Krais (ed.), Ein alltaglisches Spiel. Geschlechterkonstruktion in der sozialen Praxis (1997); Sucharipa-Behrmann, An Optional Protocol to CEDAW: A Further Step Towards Strengthening of Women's Human Rights, in Hajher/Loibl/Rest/Sucharipa-Behmann, Zemanek (eds.), Liber Amicorum Professor Seidl-Hohenveldern - in honour of his 80th birthday (1998), 683; Pietila/ Vickers, The UN system in the vanguard of advancement of women :equality, development, and peace, in Alger, The Future of the United Nations System: Potential for the Twenty-first Century (1998); Sucharipa-Behrmann, the Individual Complaints Procedure Provided for by the Optional Protocol to CEDAW: A First Evaluation, in Bededek/Isak/Kicker (eds.), Development and Developing International and European Law. Essays in Honour of Konrad Ginther on the Occasion of his 65th Birthday (1999), 653.

1. The Legal Foundations of Equality (c. 1945-1970) The battle for female suffrage was the first manifestation of organized women demanding civil and political rights. The efforts of the first generations of the political women's movement led to the first initiatives of States at the beginning of the 20th century to deal with international trafficking in women and civil equality of women and men at the level of international treaties and eventually in the League of Nations. The dissolution of the League of Nations interrupted the work in this field; most importantly a study commissioned to track and analyze the political situation of women in all Member States. The study, which was never finished, was meant to serve as the basis for the international community for further decisions. WW II took women out of their traditional socio-economic roles and into the civilian and military production process, as well as into health services. For the first time ever women took on functions in sustaining the State systems. The same women refused at the end of the war to be pushed back into their reproductive roles and insisted to take part in the political and economic reconstruction. While these voices did not change the status of women in the short run, women's groups did achieve to insert the idea of gender equality into the negotiations on the Charter of the UN (Eleanor Roosevelt "Open letter to the women of the world").


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2. Equal Rights in the Charter (1945) The Charter reaffirms the equal rights of women and men in its Preamble, and defines promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to sex as object and purpose of the UN (Art. 1). Art. 13(b) makes the implementation of this object the responsibility of the GA, Art. 55 that of ECOSOC, the body responsible for international economic and social cooperation. No previous legal document had so forcefully affirmed the equality of all human beings, or specifically outlawed sex as a basis for discrimination. And the Charter goes further: it declares the political, economic and social equality of women and men a precondition for conflict prevention and a necessary component of positive peace. Art. 8 of the Charter affirms that the United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs. This provision, though, has not prevented that men still hold a commanding majority among State representatives to the UN, and this trend is reflected in the workforce of the UN administration. Since the beginning of the 1970s, the General Assembly has called for effective implementation of Art.8. To increase the chances of women to join and to be promoted within the UN Secretariat ("glass ceiling") quotas have been established at the professional level. These quotas were first introduced to raise the (low) number of female professional staff, but are now a means to implement the commitment to reach parity among men and women. In 1990 the GA requested that by the year 2000 equal distribution of top-level jobs should be reached. But in 1999 only 40 per cent of UN staff were women, with larger gaps in the top-level jobs.

3. The Commission on the Status of Women (1946) In 1946 ECOSOC established the Commission on Human Rights (CHR). It was also tasked to protect and promote the human rights of women. Female delegates, though, feared that the Commission would marginalize women's issues vis-a-vis the human rights mandate and demanded the establishment of a separate body which would advise the CHR on problems relating to the status of women. This led to the creation of the Sub-commission on the Status of Women with the overall mandate to submit proposals, recommendations and reports to the CHR regarding the status of women. The structural and political limitations of the Subcommission soon became clear, and ECOSOC, faced with pressure from the women's lobby, agreed to establish the Commission on the Status of Women (CSW) as a separate functional commission in the same year. ECOSOC gave the Commission two basic functions: to prepare recommendations

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and reports to ECOSOC on promoting women's rights in political, economic, civil, social and educational fields, and to make recommendations on urgent problems requiring immediate attention in the field of women's rights (ECOSOC Res. 2/11). The CSW carried on with the program of work drawn up by the Sub-commission: a world-wide survey of laws affecting women, the compilation of records on matters pertaining to women, polling efforts to sound out public opinion, a forum to hear the views of experts, and the launching of a world-wide campaign to inform the public about women's issues. This mandate of the Commission remained essentially the same during the following decades. The broadening of the horizon for women's issues during the UN Decade for Women and Development led to the expansion of the Commission's mandate in 1987 to include the advocacy of equality, development, and peace - the themes of the Third World Conference on Women. The scope of the CSW was extended at the same time. The Commission could now reach out directly to governments and women's organizations at the national level, and to intergovernmental organizations and research institutions at the regional level (ECOSOC Res. 1987/24). As a byproduct of the negotiations of a convention on the elimination of all forms of discrimination against women, CSW was given a mandate to receive complaints stating discriminations against women and to make recommendations thereon to ECOSOC (see further discussion below). CSW underwent several enlargements of its membership and today is made up of 45 members. It meets annually.

4. UN Conventions and Declarations on Women's Rights The CSW commissioned several surveys of the status of women's rights. In effect, the Commission took up where the League of Nations had left off nearly a decade before. The responses offered in the reports offered an unprecedented wealth of detailed information on the status of women in nearly every region of the world. Subsequently, they were also used as justification for drafting international treaties on the equal rights of women and men in areas such as political participation, nationality, marriage law, and on the abolition of trafficking in women. a) Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949) The cause for abolition of "traite de blanches" (the promotion and abduction of white women for forced prostitution abroad) gained emphasis through the abolitionists, and was first dealt with in European treaties in 1904 and 1910. The League of Nations developed the thinking on the problem and broadened the definition to include women of all races and children of both sexes (Treaty to

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Suppress the Trafficking in Women and Children 1921). The UN Convention of 1949 consolidates the previous international instruments and expands on them to include any form of trafficking in human beings. The controversial treaty (applicable also in colonies, does not demand registration of prostitutes, calls for social security payments for victims of trafficking and forced prostitution) was ratified only by a handful of countries. b) Convention on the Political Rights of Women (1952) In 1945, only 30 of 51 signatories of the UN Charter granted women the same political rights as men. Later studies confirmed that this picture applied also to non-Member States. The adoption of the Inter-American Convention on the Political Rights of Women 1948 created the momentum within the CSW to strive for a legal instrument at the level of the UN which would secure women the right to active and passive suffrage for all political functions in their countries, and the right to hold any political position. The political goal of the convention - equal access of women and men in the political process - has hardly been achieved to this day. More than 50 of the 114 ratifications contain reservations. c) Convention on the Nationality of Married Women (1957) The Universal Declaration of Human Rights (UDHR), apart from recalling the principle of equal rights of women and men in the UN Charter, contains a single gender specific norm: the provision of the equal rights of women and men in joining in marriage, during marriage, and in the dissolution of marriages (Art. 16). This article and the provision on the right to nationality (Art. 15) form the basis to find a legal solution to the widespread problem of discrimination against women in questions of nationality and marriage, divorce, or domicile that was rooted in the notion that the wife must defer to the primacy of the husband as family leader. The convention does not confer equality in questions of nationality, but tries to buttress negative effects of national laws on wives of different nationality. d) Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962) Even though an additional protocol on the abolition of slavery, slave trade and similar practices contained the sale of women into marriage without their consent, the CSW with reference to Art. 16 UDHR urged to create an international instrument to abolish child marriage, to set a minimum age for marriage and to reaffirm the consent to marriage in order to approach problems like giving girl children away in marriage or forced marriages. The convention decrees that no marriage may occur without the full and free consent of both parties, but no agreement was reached


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on a minimum age for marriage. The GA in 1965 recommended in an almost identical, but legally non-binding resolution (GA Res. 218 (XX)) a minimum age of 15 years. Still in the first years of the UN's existence, several studies on the economic rights of women, particularly with regard to employment and pay, were commissioned in close cooperation between international unions, CSW and ILO. They should build on the provision of equal pay for equal work in the UDHR (Art. 23). These activities led to the adoption of the ILO Convention Concerning Equal Remuneration (No. 100) (1951) which formally approves the principle of equal remuneration for men and women for work of equal value. The Convention calls on Member States to implement this standard in the workplace. The ILO Convention Concerning Discrimination in Respect of Employment and Occupation (No. I l l ) (1958) states that measures like the special protection for or support of female workers are not discriminatory. Preferential treatment, which is not a special measure in that sense, though, continues to be considered as discrimination. Already in 1950 UNESCO reported to the CSW on the extent to which women were discriminated against in education. Illiteracy among women was much higher than among men, and schooling for women was considered wasting resources in many societies. Both bodies took up the issue, which led to the adoption of the UNESCO Convention against Discrimination in Education (1960). Early in the 1950s the CSW and others began to focus on customs, ancient laws and practices harmful to women and girls. These include female genital mutilation, betrothal of girls before puberty, virginity tests, violence related to dowry, and widow burning - all still prevalent today. No agreement on the abolition of these practices was found. Some argued that deep-rooted customs can't be stopped through human rights legislation but change would come about through a gradual social process. Others saw it as a health problem. The problems were not addressed under the aspect of violence against women. It took the international community more than two decades to act on these issues. (See infra "10. Violence against Women".)

5. The Consolidation of the First Achievements: the Declaration on the Elimination of Discrimination against Women (1967) While significant achievements were made in the field of women's rights at the level of the UN, they could not be translated to benefit women in everyday life. The de facto situation of women had hardly changed, and the human rights of women had seen little progress within the overall human rights framework of the

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UN. The weakness of the CSW was (and still is) part of the problem. CSW can request voluntary reports of Member States, but is barred from making binding declarations to guarantee the implementation of standards which were unanimously agreed. The limitations of the international monitoring system do not sufficiently explain, though, why extensive changes in national legislation, which established equal rights for women and men, did not create gender equality in societies. Legal equality, it was recognized, does not stop de facto discrimination. After focusing on treaties for two decades, CSW, therefore, decided to go a step further. Principles and standards of gender equality which were established by the UN since its existence should be combined in a single document, and special emphasis should be put on the development and implementation of these norms. The Declaration on the Elimination of Discrimination against Women secures the legal foundation of women's equality in the public and private sphere. It brings together a concise listing of areas in which equality had to be asserted as a matter of law and practice, and is the first UN document that proclaims discrimination against women as fundamentally unjust and an offence against human dignity. The non-binding declaration was adopted by the GA in Res. 2263 (XXII). The reporting mechanism on its implementation is voluntary.

6. The Inclusion of Women in the Development Process (c. 1970-1990) Many colonies gained independence in the 1960s, the number of UN Member States and the proportion of developing countries rose. In 1971, 25 years after its inception, the CSW was faced with quite different problems than legal equality for women and men. The Declaration on the Elimination of Discrimination against Women already reflected this ideological change in women's politics. Furthermore, discussions in this period focused on the social cost of marginalizing and discriminating against women. The low social status of women was recognized as an important factor in poverty, rapid population growth, illiteracy, malnutrition, forced urbanization and political strive, particularly in developing countries. To sensitize Member States and the general public for these issues, the CSW recommended to the GA to declare the year 1975 the International Year of Women. At the same time a heated debate started whether women should be considered as a particularly vulnerable group - like children, the disabled or the elderly. This argument prevailed in drafting the Declaration on the Protection of Women and Children in Emergency and Armed Conflict (1974). Others in the CSW argued that women are too diverse to be considered as one social group, and that being a woman does not automatically entail vulnerability. The argument is still debated today.


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7. International Women's Year (1975) and the UN Decade for Women (1976-1985) The UN mirrored the numerous national activities during the year that the GA has put under the theme of equality, development and peace (e.g. 8 March was declared International Women's Day). The UN's activities climaxed in an international women's world conference in Mexico City. The World Plan of Action for the Implementation of the Objectives of the International Women's Year adopted by the conference called for an international decade on women and development 19761985 and that another world conference on women be held in 1980. The World Plan of Action emphasized the interdependence of the three core issues gender equality, integration of women into the development process, and the strengthening of the role of women in peace-making and peace-keeping, and established minimum standards for the access of women to education, employment, political participation, as well as health and family planning which should be reached within the next five years. The GA adopted the Declaration on the Participation of Women in Promoting International Peace and Cooperation. UNIFEM and INSTRAW (see below) were created on recommendation of the conference. The world action plan also called for drafting a binding legal instrument on the elimination of discrimination against women building on the declaration of 1967. The conference was marked by the tensions of the Cold War, the West emphasizing equality as priority, the G-77 and the socialist countries claiming and stressing development and peace. a) United Nations Development Fund for Women (UNIFEM) The fund that was created to finance activities during the women's decade was also financing development projects for women, implemented by UNDP. When approaching the end of the decade the GA converted the Fund into an autonomous program with an administrative link to UNDP. It was headquartered in New York and called UNIFEM. Today UNIFEM acts as a catalyst among the development agencies. It advocates the inclusion of women in the development process, sponsors women's organizations in developing countries and educates about women in development. The program is financed through voluntary contributions and had a budget of US$ 24 million in 1999. b) International Research and Training Institute for the Advancement of Women (INSTRAW) ECOSOC established INSTRAW in 1976 on the recommendation of the Mexico

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City Conference with the aim to create a research and training center that will focus on the empowerment of women and development and will benefit women in the developing world. INSTRAW is an autonomous institution under the auspices of the UN and is financed through voluntary contributions. It is headquartered in the Dominican Republic, and faces financal difficulties in recent years. INSTRAW cooperates with relevant UN organizations and regional research and training institutions. It focuses on how to improve women's access to technical assistance and develops training materials. The 1980 Copenhagen Conference was held to assess what progress had been made during the first half of the women's decade, and to give recommendations for the second half. The main areas of concern for the conference were employment, health and education. The conference showed that other UN world conferences had adopted a gender perspective in their concluding documents, and that women's issues in the GA were not anymore exclusively linked with human rights. Women's issues had also found entry into economic and development questions. More gender specific data were available, and national implementation of women's programs had improved. It was unavoidable though, once again, that the political discussion was shaped along the fault lines of the Cold War. The World Conference to Review and Appraise the Achievements of the UN Decade for Women, Nairobi 1985 marked the end of the decade. The conference was held to formulate forward-looking strategies for UN women's politics to the year 2000, based on a global study on women in the development process and on national responses to a comprehensive questionnaire of the UN Secretariat. The vast background material on the status of women pointed towards new problem areas which are highlighted in the program of action as major areas for change: the economic and political acknowledgement of unpaid work of women, the role of women in traditional agriculture, in energy and sustainable development, the under-representation of women in the financial sector, the proportionally higher cost of structural adjustment programs for women, and the exclusion of women from the scientific sector. The most important result of Nairobi, was the realization of the necessity to include the female perspective in development theory, policy and development planning. The exclusion of women from those decision-making processes has the effect of losing valuable social knowledge that is available only to women due to the gendered division of labor. Also on initiative of women from developing countries the concept of "empowerment" was elaborated and has remained of critical importance up to today. The concept looks at women in developing countries and explains their subordinate social position as the result of international politics (colonialism) and the social power structures (patriarchy). Under these


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circumstances the realization of equality de iure is not an adequate means to achieve overall de facto equality, as the discriminating social structures remain unchanged. The purpose of empowerment is the strengthening of the social position and the raising of the self-esteem of women.

8. Developing Women's Rights Further The UN Decade for Women profited from the new awareness of women and the women's movement world-wide who were able to express their demands and be heard at the national level and within the UN better than ever before. The women's movement changed the perception of female roles in society and created sufficient pressure for legal change. It became clear that the full development and empowerment of women need to be ensured through various measures, including legislation. The passage of laws alone is not enough to ensure that women are actually permitted to exercise the rights that the laws are designed to protect.

a) Convention on the Elimination of All Forms of Discrimination against Women - CEDAW (1979) The Declaration on the Elimination of Discrimination against Women had only limited impact as its implementation could only be monitored through voluntary reporting. Therefore voices were heard quite soon to mold the elements of the Declaration into a legally binding Convention. In 1976 the CSW presented a draft convention which was under negotiation until 1979. CEDAW came into force in 1981 after the 20th instrument of ratification was deposited with the UN-SG. The Convention has been ratified by 166 State Parties (October 2000), making it the second most widely subscribed international human rights treaty in existence after the Convention on the Right of the Child. A high number of reservations to the Convention, the highest among the human rights instruments, however, taint this success. The Convention defines the term discrimination against women and commits governments to take all appropriate measures, including legislation, to ensure the full development and empowerment of women and to guarantee them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. States Parties commit themselves to actively fight discrimination against women in the public and private sphere. The key areas touched on by the Convention are employment, education, political participation, nationality, marriage and divorce, health services, rural women, and civil and legal matters. Discrimination against women in the Convention means any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of

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impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. The rights set out in the Convention are therefore not autonomous, but subsidiary to and connected with the right of women to non-discrimination. The prohibition of discrimination in the Convention is not denying the distinctions between women and men, but clarifies that treating unequals the same is as discriminatory as treating equals differently. In this sense the Convention calls in its Art. 4 (1) for special measures to achieve equality for women (affirmative action). Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. Affirmative action for women is therefore lawful when applied to balance a discriminatory environment. Special measures are a legally binding element in the Convention as the CEDAW Committee has reemphasized in its recommendation No. 5. Moreover, the Committee states in recommendation No. 8 that States Parties have the duty to take direct measures in accordance with article 4 of the Convention to ensure to women equality with men without any discrimination, and has made recommendations on concrete steps to be taken. Art. 18 creates a reporting procedure: Within one year of signing the Convention every State Party is obliged to report to the Committee on its efforts to meet CEDAW's goals. Thereafter States Parties are required to report at least every four years and whenever the Committee so requests. CEDAW authorized the formation of a Committee on the Elimination of Discrimination against Women to oversee implementation and monitoring of the Convention. The CEDAW Committee comprises experts in the field of women's rights from 23 countries. These experts are elected by secret ballot from a list of individuals nominated by the countries that are party to the Convention. In this election, consideration is given to equitable geographical distribution, as well as to representation of different civilizations and legal systems. Since its initial session in 1982, all but two of its members have been women. The Committee considers and comments on the States Parties' reports, and develops jurisprudence on the norms of the Convention through general recommendations. The Committee meets twice a year for three weeks in New York. The high number of ratifications seems to imply that CEDAW carries a lot of acceptance. But this has to be seen in the context with reservations to the Convention


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which limit the effect of its provisions on national law. Countries have filed many reservations to CEDAW, more than to any other major human rights treaty. Some of these reservations limit the obligations undertaken by that country in vague and sweeping terms; others concern areas of fundamental importance to the achievement of women's equality, such as family law. Some reservations are inconsistent with CEDAW's object and purpose. Reservations to Art. 16 (equality of women and men in all matters of marriage and family life) are particularly questionable as they exclude the application of the Convention to national regulations subjecting women as wives and family members to lesser legal status. When negotiating the draft convention there was already an initiative to include an individual complaints procedure to strengthen the implementation of the Convention. This endeavor was not successful at that time. The weakness of the reporting procedure as an instrument to guarantee the implementation of the Convention is demonstrated by 40 outstanding initial reports by State parties. b) Strengthening CSW: a new mandate and the communication procedure CSW was the motor of the women's movement for more than two decades, but lost its influence when the gender discussion moved away from the equality debate. During the 1970s, CSW met only once every two years and was hardly involved in the activities of the Women's Decade. In 1980 there were attempts to dissolve the body. Apolitical effort to save CSW led to it being given full responsibility for the organization of the second half of the Women's Decade. In 1987 CSW was tasked with monitoring the implementation of the outcome of the Nairobi Conference, which brought about the return to annual meetings and the expansion of the mandate of CSW. The Commission took on coordinating functions and received resources to hold expert group meetings to complement and stimulate the work of the Commission. The focus of CSW shifted from its earlier efforts to promote women's equality to matters related to economic development, human rights, political conditions and social policy questions. After the completion of negotiations on CEDAW, the demand was raised to grant individuals, organizations or States a right to petition in gender matters before a UN body. Three years later, ECOSOC authorized CSW to establish a working group mandated to receive confidential and non-confidential communications about documented continuous discrimination and unfair practices targeted against women. This procedure is a source of information for policy-making by the CSW and ECOSOC but is not linked to the legal framework of CEDAW. It can lead to general recommendations but does not assist with individual cases or deal with urgent situations where individuals are suffering continued violations.

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9. Gender Mainstreaming (since 1990) Among the achievements of women's fight for equality was that institutions started to include women's issues in their work programs. But these issues were dealt with in institutional niches close to oblivion. The discussions in Nairobi focussed on this problem and requested not to pursue initiatives aimed only at women. Women must rather be understood as "holding up half of the sky" (Mao Tse Tung) and as the other half of humankind. "Gender" should no longer be a category of disadvantage and asymmetrical power relations rooted in "natural" distinctions; women should not be considered as another vulnerable group. Gender differences should be seen as pluralistic values in an open society and not be depreciated in the social value system. Women's issues, the lacking component in the existing power structures, should be integrated into all spheres of life. The discourse on equality versus difference is a key issue of feminist theory up to today. The dualities postulated in western thinking (man/woman, spirit/body, rationality/emotion) which attribute with great consequence the lesser side of the dualism to women led women to call for equality in order to eliminate the gender specific power relations. Representatives of other schools of thought argue that these power relations arise out of the lacking ability to acknowledge differences and to respect and value them. To strive for equality with men means to give up what is female because it is perceived as different. This does not abolish power relations, but leads to the extinction of femaleness. The goal should thus be to achieve gender equity rather than leaving differences and femaleness behind. In development cooperation gender mainstreaming is a means to reveal the different starting positions and unequal power relations of women and men in a society, and to take measures to ensure that the interests and needs of women and men are taken into consideration. Mainstreaming does not overlook that traditional economic, social and cultural factors often discriminate against women and those appropriate steps need to be taken to improve the livelihood of women. Gender mainstreaming focuses on women, but not exclusively, and acknowledges that women and men must be included in balancing existing power structures and achieving adequate burdensharing. In June 1997 ECOSOC, building on the results of the World Conference in Beijing, defined mainstreaming of a gender perspective in the following way: "Mainstreaming a gender perspective is the process of assessing the implications for women and men of any planned action, including legislation, policies or programs, in all areas and at all levels. It is a strategy for making women's as well as men's concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programs in all political, economic


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and societal spheres so that women and men benefit equally and inequality is not perpetuated. The ultimate goal is to achieve gender equality."

10. Violence against Women The inclusion of women in the development process was the political agenda of developing countries in the 1970s, non-discrimination the issue for the Western world. CEDAW does not mention the problem of violence. Violence against women was first discussed as a side issue at the World Conference on Women in Nairobi. Only in the Nairobi follow-up process 1990 was the problem raised, and ECOSOC called for the immediate elimination of violence against women. The reason for this form of violence, said ECOSOC, is the low status of women in society. The CSW took up the issue and started negotiations on a Declaration on the Elimination of Violence against Women. The Declaration cites violence against women as "one of the crucial mechanisms by which women are forced into a subordinate position compared with men" and affirms that violence harms and destroys the rights and freedoms of women. Women NGOs took the discussion into the HRC and also to the UN World Conference on Human Rights (1993) that condemns violence against women as a violation of human rights and calls on the GA to adopt the Declaration. The CEDAW Committee actively participated in the development of the issue and acknowledges the weakness of the Convention in this area. In its recommendation No. 19 (1992) the Committee declared violence against women to be a form of discrimination which strongly impairs the ability of women to exercise their rights on an equal basis. With this recommendation it clarified that the Convention also encompasses the protection of women against violence. Since then the Committee requests States Parties to the Convention to also give information in their periodic reports on measures taken to protect women against violence. 11. Special Rapporteur of the Commission on Human Rights on Violence against Women, its Causes and Consequences The Commission on Human Rights in fulfilling the mandate given by the UN World Conference on Human Rights (1993) appointed a Special Rapporteur on Violence against Women to collect data and recommend measures to eliminate such violence and its causes. In implementing her mandate the Special Rapporteur may cooperate with the CEDAW Committee and undertake field missions. Forms of violence against women under investigation by the HRC are inter alia systemic rape, sexual slavery, forced pregnancy, all forms of sexual harassment and exploitation, trafficking in women, as well as harmful traditional practices.

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12. The Fourth World Conference on Women in Beijing (1995) In a climate of declining public support the expectation for the Fourth World Conference on Women (FWCW) was to solidify the achievements of the women's movement in the 1980s and 1990s in the international context and to commit governments and the UN system to implement these standards. At the same time the issue of gender difference should be hauled from its marginal position into the "mainstream" of politics, economics, society and development. Gender roles should be recognized and accepted as analytical and decision-making factors that permeate all spheres of life. The Beijing conference, the largest UN conference ever held, affirmed these two goals in the Beijing Declaration and Platform for Action and developed a comprehensive set of recommendations to implement them. Beijing was controversial. The danger of losing ground already gained for women became obvious during preparations for the conference when religiously motivated governments aimed to nullify the consensus reached on issues of sexual and reproductive health and reproductive rights, including abortion, and demanded that the term "gender" disappear from the document. The argument pertinently demonstrated the fault lines of the women's debate in the 1990s: the right of women to control their sexual and reproductive lives (so far not recognized in the international context), and the changing emphasis of the discussion from women as an artificially homogenous group to the relations between the sexes. A UN report defines gender relations as the relative positions in society of men and women. These positions are defined by the socially constructed and culturally variable roles that women and men play in their daily lives. At the heart of this definition of roles is a sexual division of labor around what are termed the "productive" and "reproductive" functions of society. As social roles change, also gender relations can change and become equalized. The political attack on the concept of "gender" in the preparations for Beijing demonstrated the fundamental refusal of some governments to accept changes in the status of women in society. The final document of the FWCW, the Beijing Platform for Action, was adopted by consensus. It sets out strategic objectives and actions in 12 critical areas of concern that should lead to fundamental changes by the year 2000: women and poverty, education and training of women, women and health, violence against women, women and armed conflict, women and the economy, women in power and decision-making, institutional mechanism for the advancement of women, human rights of women, women and the media, women and the environment, as well as the girl-child. The focus of developing countries was on education and poverty eradication, industrialized countries put emphasis on acknowledging women's rights as human rights, a term coined at the World Conference on Human


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Rights in Vienna. After three world conferences on women overshadowed by ideological fights, the end of the Cold War allowed the FWCW to focus on the real issues. One of the main debates of the Beijing Conference was to establish the private sphere as a political category that is of relevance to the general public and can be regulated. Cultural and religious differences dominated the discussions on sexual rights of women, criminalization of abortion, and discrimination on the basis of sexual orientation. The Platform for Action, as well as other outcomes of world conferences, is not a legally binding document. Its implementation is primarily the responsibility of governments, but also of institutions in the public, private and non-governmental sectors at the community, national, subregional/regional and international levels.

13. The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (1999) The weak means to stimulate States to take steps to implement CEDAW and the efforts to improve on and add to existing enforcement mechanisms for women's human rights were discussed above. With all the necessary standards in place, the need to improve States' and individuals' understanding of CEDAW and to create greater public awareness of human rights standards relating to discrimination against women was recognized and accepted after Beijing. By that time is had also become evident that women hardly made use of the petition procedure under the First Optional Protocol to the ICCPR which allows communications on discrimination on the basis of sex. Of about 1000 complaints dealt with by the HRC by the end of 1999, only 11 made reference to this provision. The ICCPR is not recognized by women as a suitable instrument to pursue their rights. CEDAW, in contrast, is the only specific instrument to protect the human rights of women within the UN system, and the Committee is the only body with specific expertise in this area. In 1996 CSW established an open-ended working group on the Optional Protocol. The group worked until 1999 to come to an agreement on an instrument that makes all substantive provisions of CEDAW justiciable in two separate procedures. The Optional Protocol incorporates the features of existing UN complaints procedures. It also incorporates some of the practices of other UN treaty bodies that have developed as their complaints procedures have been used. No reservations are allowed to the Optional Protocol. Art. 2 gives individuals and groups of women the right to complain to the CEDAW Committee about violations of the Convention. Communications may also be submitted on behalf of individuals or groups of individuals, with their consent, unless acting without the consent can be justified. This procedure is known as the "communications procedure". Art. 8 establishes

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an inquiry procedure that allows the Committee to initiate a confidential investigation by one or more of its members where it has received reliable information of grave or systematic violations by a State Party of rights established in the Convention. Where warranted and with the consent of the State Party, the Committee may visit the territory of the State Party. States may opt-out of this procedure. Any findings, comments or recommendations will be transmitted to the State Party concerned, to which it may respond within six months. The Optional Protocol was adopted by consensus and will enter into force in December 2000. By October 2000, 62 countries had signed the protocol. The new procedures will only come into effect for States Parties to the Convention that have also ratified the Optional Protocol.

14. Future Perspectives What issues should CSW tackle next? What will be the paradigm for gender relations of the 21st century? Women have come a long way. Equality before the law is almost achieved, the self-confidence of women is rising and the economic opportunities for women are expanding rapidly. At the same time women are still the poor and illiterate of this world. Women provide the by far largest share of work in the household without pay and without social recognition. The majority of women world-wide have no access to education or resources. The gap between international standards and realities of women's lives has widened as agreements were reached at the negotiating tables but weren't translated into national action. The low and declining resources for development cooperation have limited the success of development programs. Religious fundamentalism has proved to be the major obstacle to take the empowerment of women further at the international level: the right of women and girls over their own bodies, and the equal right to resources (e.g. inheritance) are the areas where the international agreement is shaky. The CSW has therefore called for a period of stock taking and consolidation. Efforts should concentrate on taking the international consensus out of the conference rooms and into national administrations as well as to individual women. The understanding of women's realities should be strengthened; the UN presents its global statistical survey on the status of women in the year 2000. Direct accountability of States on women's rights has to be improved; broad ratification of the OP to CEDAW will be the basis for further action in this regard. The General Assembly decided to convene a Special Session in June 2000 to appraise and assess the progress achieved in the implementation of the Nairobi Forward-looking Strategies for the Advancement of Women and the Beijing


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Platform for Action, five years after its adoption. It designated the CSW as the preparatory committee for the review. The Special Session reviews and appraises progress made in the implementation of the 12 critical areas of concern in the Beijing Platform, and takes further action and initiatives for overcoming obstacles to implementation of the Beijing Platform. In order to preserve the achievements made in Beijing, it was agreed that the Platform would not be renegotiated. The Special Session will rather focus on good practices, positive actions, lessons learned, and examples of the use of any qualitative indicators for measuring progress in implementing existing standards, as well as obstacles encountered and strategies for overcoming them.


Environmental Protection and Sustainable Development Gerhard Loibl

Literature: Sand, Lessons Learned in Global Governance (1990); Lang/Neuhold/Zemanek (eds.), Environmental Protection and International Law (1991); Birnie/Boyle, International Law and the Environment (1992); Fitzmaurice, International Environmental Law as a Special Field, Netherlands Yearbook of International Law 25 (1994), 181; Handel, Controlling Implementation of and Compliance with International Environmental Commitments: The Rocky Road from Rio, Colorado Journal of International Environmental Law and Policy 5 (1994), 305; Kiss/Shelton, International Environmental Law (1991) und Supplement (1994); Lang (ed.), Sustainable Development and International Law (1995); Sands, Principles of international environmental law (1995); Loibl, Trade and Environment - A difficult relationship. New Approaches and Trends: The Kyoto Protocol and Beyond, in Hajher/Loibl/Rest/Sucharipa-Behrmann/Zemanek (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern - in honour of his 80th birthday (1998), 419; Shihata, The World Bank's Contribution to the Development of International Environmental Law, in Hafner/LoibURest/Sucharipa-Behrmann/Zemanek (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern - in honour of his 80th birthday (1998), 631; WeisslDenterslde Waart (eds.), International Economic Law with a Human Face (1998); Boyle/Freestone (eds.), International Law and Sustainable Development - Past Achievements and Future Challenges (1999); Yearbook of International Environmental Law (since 1990).

1. Activities of the United Nations in the Area of Environmental Protection - from Stockholm 1972 to Rio 1992 The United Nations Conference on the Human Environment 1972 in Stockholm drew the attention of the public to the issue of "environment". In the Stockholm Declaration on the Human Environment principles dealing with the protection of the environment were laid down. Moreover, it pointed to the close relationship between environmental protection and economic development (cf. Principles 9, 10 and 11). This first UN Conference is to be seen as the starting point for the evolving environmental consciousness on the national, regional and global level: a broader public became aware of environmental issues which led in many countries to including environmental concerns into the internal decision making processes. Many countries established administrative structures, which dealt with environmental matters in a broad manner (e.g. Ministries for the Environment were established for the first time in many countries). Moreover, the 1972 Conference established a special body to deal with environmental matters within the UN system, the United Nations Environmental


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Program (UNEP) which is located in Nairobi, Kenya. Till then, environmental issues were discussed only in ECOSOC as well as the GA. By establishing UNEP the importance of environmental matters for international relations was clearly underlined. Since the Stockholm Conference many international instruments concerning environmental protection were created. UNEP has not only played a leading role in the elaboration of "soft law" instruments (i.e. instruments which are not legally binding, such as resolutions adopted by organs of international organizations, e.g. the World Charter for Nature 1982 or the UNEP Guidelines on the Protection of the Marine Environment Against Land-Based Pollution 1985), but also was essential for the creation of legally binding instruments ("hard law") by providing in many cases the institutional framework as well as the necessary substantial basis (such as scientific and political background material) for the international negotiations. Amongst other things, UNEP provided such support for the negotiations that led to the adoption of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, the Convention on Biological Diversity or the Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. In the discussions during the preparatory process for the United Nations Conference on Environment and Development (UNCED), which was held in Rio de Janeiro in 1992, it became evident that a compromise was necessary between environmental protection and economic development. This conclusion was underlined clearly in the Rio Declaration by setting the aim of sustainable development (see Principle 1 of the Rio Declaration). Although several attempts have been made to define the term "sustainable development", no definition is to be found in the international instruments adopted at UNCED (in particular the Rio Declaration and Agenda 21, the Action Program for the 21st century to achieve the aim of sustainable development) or in the numerous international instruments which have been adopted since 1992. The World Commission on Environment and Development describes in its report entitled "Our Common Future" (so-called Bruntland Report) "sustainable development" in the following manner: Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts: • the concept of "needs", in particular, the essential needs of the world's poor, to which overriding priority should be given; and • the idea of limitations imposed by the state of technology and social organization on the environment's ability to meet present and future needs.

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As elements of sustainable development the following may be listed: sustainable utilization, integration of environmental protection and economic development, the right to development, inter-generational equity, intra-generational equity and procedural requirements (e.g. public participation). By introducing the term "sustainable development" in the Rio Declaration it became evident that the protection of the environment is not to be seen onedimensionally (i.e. the protection of the environment per se), but also has an economic and a social component. Economic development and combating poverty have become central issues in the international efforts for the protection of the environ-ment. Both, the Stockholm and the Rio Declarations list poverty and economic underdevelopment as essential reasons for environmental problems. This evolution of the last decades in the area of environmental protection reflects clearly the North-South conflict (i.e. the conflict between developed and developing countries) in international negotiations. The developing countries saw and partially still regard environmental protection - as could already be observed in the preparatory process for the first United Nations Conference and in Stockholm 1972 itself — on the one hand as a luxury which could only be afforded by the "rich industrial countries", on the other as a problem of the North. They underlined their right to use environmental resources for economic development. Environmental pollution is to be seen as a transition stage which has to be passed through until the economic development has reached a level that allows to take environmental considerations into account. The industrialized countries underlined the importance of environmental protection in the interest of the whole world population and the necessity to take environmental concerns into consideration in the economic development. In this regard the historic responsibility of the industrialized countries for the current environmental problems have to be taken into account. Principle 7 of the Rio Declaration is to be seen as a compromise between these two positions. It states that "in view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technology and financial resources they command." By this compromise, the different interests of developed and developing countries have not been abolished. They can be clearly seen in international negotiations concerning the various sectors of the environment, as in each case agreement has to be reached on the measures to be taken in implementing the concept of "sustainable development" for the sector under consideration. The international negotiations concerning measures for the protection of the world climate show this very clearly. The developing countries argue that the current

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problems result from the activities in the industrialized countries and protective measures should not be an obstacle to their economic development. The countries of the South, thus, would have a "historic right" to pollute the environment to the same extent as has been done by the industrialized countries of the North. Therefore, it is the task of the industrialized countries to take the lead in setting the necessary measures. A compromise was reached in the Kyoto Protocol to the United Nations Framework Convention on Climate Change. The industrialized countries of the North undertook the obligation to reduce their overall emissions of certain greenhouse gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012 (see Art. 3 of the Kyoto Protocol). The developing countries have no reduction or limitation obligations. The example of the Kyoto Protocol clearly points out that environmental protection measures undertaken in the last years are limitations for the utilization of environmental resources, e.g. the establishment of maximum emission limits into the air or the maximum amount of water to be withdrawn from a river. As a result of the acknowledgement that "environment" is not an unlimited resource, regulations for environmental protection are not to be seen as limitations for utilization, but rather as the right to utilize the resource "environment" in a certain manner. Thus, international agreements give individual States rights to pollute the resource "environment", i.e. individual States have the right to utilize the resource "environment" to the extent as laid down in the respective international agreement. The various environmental issues which have been discussed within the United Nations system clearly show the different situations in which environmental problems occur: they could be national, bilateral, regional or global problems. Whereas national environmental problems have to be dealt with by national governments, the other three problems listed are part of interstate relations: questions concerning the utilization of a specific watercourse affect in principle a limited number of States (e.g. the riparian States of an international watercourse), problems of air pollution affect the countries of a region (e.g. acid rain in Europe), whereas the protection of the ozone layer or of the world climate are global issues. Depending on the environmental problem under consideration the United Nations play a different role.

2. The Institutional Framework of the United Nations Within the framework of the United Nations currently two organs exist which deal with issues of environmental protection and sustainable development: the "United Nations Environment Program" (UNEP) and the "Commission for Sustainable Development" (CSD). Moreover, within the framework of a number


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of environmental treaties secretariats have been established to support activities under the respective treaty (e.g. the secretariat of the United Nations Framework Convention on Climate Change or the secretariat of the Convention on Biological Diversity). These secretariats are linked to the United Nations system in different ways: either they form part of the administrative system of UNEP or of the United Nations directly. Furthermore, UN institutions also deal with environmental issues on the regional level. The five regional commissions of the United Nations (United Nations Commission for Africa - ECA, Economic and Social Commission for Asia and the Pacific - ESCAP, Economic Commission for Europe - UN/ECE, Economic Commission for Latin America and the Caribbean - ECLAC, Economic and Social Commission for Western Asia - ESCWA) have a central role by providing the institutional framework for discussions and elaboration of environmental instruments. In particular, UN/ECE plays an important part in elaborating environmental rules on the regional level. a) United Nations Environment Program (UNEP) The United Nations Environment Program, which was established by the GA in 1972 upon recommendation of the Stockholm Conference as a sub-organ, is the catalyst for the environmental activities of other institutions. It reports by way of the Economic and Social Council to the GA. It analyzes environmental problems and elaborates programs. Their implementation is undertaken in cooperation with various UN institutions and, sometimes, with support of regional organizations, NGOs and individual States. The UNEP Secretariat is headed by the Executive Director. The Governing Council consists of 58 members elected for a period of three years. The Governing Council meets every two years to discuss the past activities of UNEP and adopts the future working program of UNEP. UNEP has given impetus in many environmental sectors to elaborate concrete measures. Within the framework of GEMS (Global Environmental Monitoring System) data concerning the environment are collected in cooperation with national institutions to provide information on the status of the environment. UNEP has played and plays a central role in the evolution of international and national environmental law. It has, inter alia, started initiatives to elaborate new global environmental instruments, e.g. concerning the transboundary movement of hazardous waste or the protection of biodiversity. At the center of UNEP's activities to promote the elaboration of legally binding instruments concerning the environment is the so-called Montevideo Program 1982, respectively the Revised Montevideo Program 1992, which determined areas for the creation of new international

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regulations. Currently, a new environmental law program is prepared. One of the most successful programs of UNEP is the so-called Regional Seas Program. In implementing this program UNEP has, together with the respective governments, elaborated action programs and treaties to combat pollution and support environmental management schemes for different regions. Such regional programs and treaties have been adopted e.g. for the Mediterranean Sea, the North Sea, the Persian Gulf, the South Pacific and the Caribbean. Thereby, a process has been set in motion which led to substantive measures set within the respective regions (cf. measures undertaken within the institutional framework of the Cartegena de Indias Convention for the Protection and Development of the Marine Environment of the Wider Caribbean against pollution and for the nature conservation and biodiversity or the Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution and its Protocols, e.g. concerning dumping). The regional approach in regard to the protection of various seas has often been discussed as a possible means for the protection of freshwater resources all over the world. UNEP has successfully supported the elaboration of legally binding instruments for the Mekong and Zambesi rivers.

b) United Nations Commission on Sustainable Development (CSD) This sub-organ of the Economic and Social Council was created by the GA after the Rio Conference (Chapter 39 of Agenda 21). It consists of 53 members, which are elected for three years. Its task is to discuss the implementation of Agenda 21 on the national, regional and global level. At its fifth session in 1997 (Earth Summit Rio + 5) CSD adopted the work program for the next five years: eradication of poverty and changing of consumption and production patterns will be the overriding issues (i.e. ways and means to combat poverty and to change consumption and production patterns which are not sustainable are to be discussed). Furthermore, at each of its annual sessions the CSD will take up one sectoral theme (e.g. fresh water, oceans, integrated planning and management of land resources, energy), one cross-sectoral theme (e.g. financial resources/trade and investment/economic growth) and one economic sector and major group theme (e.g. tourism, agriculture, transport). All sectors of society involved in the implementation of Agenda 21 (e.g. business, industry, environmental groups, indigenous people, women) are included in the discussion of the latter topics. At its tenth session (Rio + 10) the CSD will undertake a comprehensive review by discussing the progress achieved in the implementation of Agenda 21 and its recommendations made at earlier sessions.


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c) Regional Commissions of the United Nations Measures for the protection of the environment were taken also on the regional level, in particular by the Economic Commission for Europe (UN/ECE). UN/ECE has played a leading role in the elaboration of legally binding instruments concerning the environment within its geographical scope. Examples for its achievements are the Geneva Convention on Long-range Transboundary Air Pollution 1979 and its protocols, the Espoo Convention on Environmental Impact Assessment in a Transboundary Context 1991 and the Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes 1992. Within the framework of UN/ECE the process "Environment for Europe" was set up. Its aim is to support the efforts of Central and Eastern European States as well as the States of the CIS to achieve sustainable development. Ministerial Conferences lay down the political guidelines for the elaboration of rules concerning the environment. At the Ministerial Conference held in Aarhus 1998 "guidelines" on energy-efficiency and on the prohibition of leaded petrol until 2005 within the UN/ECE-region were adopted (to which the Russian Federation made a reservation). d) Other organizations in the United Nations system which deal with environmental matters The increased environmental awareness, which was underlined by the Rio Declaration, is also reflected in the activities of other international organizations. Issues concerning the environment are discussed inter alia within FAO, WHO, DVIO, UNESCO. Nearly all international organizations have included environmental protection and sustainable development issues in their work programs and activities. Also within the activities of the international finance organisations (e.g. IBRD, IDA) the effects of proposed activities for the environment are scrutinized when financing development projects (e.g. construction of dams). e) Cooperation between the United Nations and International Organizations As has been already described under 2.a) above, UNEP and CSD have primarily political and analytical tasks. The Program for the Further Implementation of Agenda 21, which has been adopted at the Earth Summit Rio + 5 (CSD 5), states that UNEP is "the principal United Nations body in thefieldof the environment". Furthermore, the Program reads in regard to UNEP's role: "Taking into account its catalytic role, [...] UNEP is to be the leading global environmental authority that sets the global agenda, promotes coherent implementation of the environmental dimension of sustainable development within the United Nations system, and serves as an authoritative advocate for the global environment". The program underlines

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that UNEP shall further promote the elaboration of international environmental law, including the development of "coherent interlinkages among relevant environmental conventions in cooperation with their respective conferences of the parties or governing bodies", i.e. the coherence between international environmental agreements should be strengthened. The Commission on Sustainable Development will continue to provide a central forum for urging further implementation of Agenda 21 and for high level policy debate on sustainable development (i.e. Minister level). Furthermore, in order to facilitate the national implementation of Agenda 21, all organizations and programs of the United Nations system (e.g. FAO, WHO, WTO, World Bank, IMF, UNIDO, UNDP, UNCTAD) within their respective areas of expertise and mandates, should strengthen, individually and jointly, the support for national efforts to implement Agenda 21 and make their efforts and actions consistent with national plans, policies and priorities of Member States. This has already been stated in Agenda 21, in recommendations of the CSD and decisions of the UNEP Governing Council. The activities of international organizations are currently coordinated by the "Inter-Agency Environmental Coordination Group".

3. Soft Law Instruments Resolutions and declarations, which have been adopted by United Nations organs, have an important role for the development and evolution of international environmental regulations: they determine the focal points for the activities of international organizations for the forthcoming years. Thereby, also the distribution of the financial resources, which are at the disposal of the respective international organization, to the various activities is decided (see e.g. the program for the further implementation of Agenda 21 which has been adopted by the "Special Session of the United Nations General Assembly" and determines the work program of CSD until the year 2002). Furthermore, they also reflect the interests and concerns of the world community for particular problems. For instance, the 52nd and 53rd GA adopted resolutions concerning "International cooperation to reduce the impact of the El Nino phenomenon" which call for international cooperation to reduce the impact of the El Nino phenomenon and to study and analyze it (GA Res. 52/200 and GA Res. 53/185). Moreover, resolutions and declarations have an important role in the evolution of international environmental law: on the one hand, they often give the impetus for the creation of legally binding instruments (e.g. both the United Nations Framework Convention on Climate Change and the United Nations Convention on Biological Diversity were initiated by resolutions of the GA and the UNEP


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Governing Council); on the other hand their contents could become customary international law. For instance, Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration form the customary international law basis to deal with questions of transboundary environmental pollution. They state - in nearly identical words - that "States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental [and developmental] policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction."

4. International Environmental Treaties (Hard Law) In the last years, many treaties have been elaborated in institutions which deal with a large variety of international environmental problems. International environmental law has quite often used the method of framework treaties. Such treaties contain on the one hand principles, which form the basis for the further elaboration of law in the respective environmental sector, on the other hand institutions and mechanisms for their development and adoption. Specific substantive provisions for the protection of the environment are often only adopted in protocols to the framework treaty. The best known examples for such an approach are the United Nations Framework Convention on Climate Change 1992 and the Kyoto Protocol 1997 as well as the Geneva Convention on Long-range Transboundary Air Pollution 1979 and its numerous protocols (see below). A comparison of the various environmental treaties shows that they also reflect the different stages of the development of environmental protection. Whereas earlier treaties in principle aim to protect the environment per se, later treaties try to achieve sustainable development. Thus, in principle two generations of international environmental agreements may be distinguished. Such a dividing line could be drawn with the Rio Conference in 1992. Such a static division would mean that a number of international environmental agreements, which have been negotiated and adopted in the 1980s - such as the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989 or the Montreal Protocol on Substances that Deplete the Ozone Layer 1987 - would be part of the first generation of environmental agreements although they contain already principles which have only found general recognition at UNCED. It seems to be more reasonable to distinguish whether a treaty contains the new principles of international environmental law - such as the preventive and precautionary principles. Examples for agreements which aim primarily to protect the environment

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are the Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 1973 or the Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971. International agreements, which aim at the implementation of the principle "sustainable development", are the Montreal Protocol on Substances that Deplete the Ozone Layer, the United Nations Framework Convention on Climate Change as well as the Kyoto Protocol and the Convention on Biological Diversity. a) Existing international environmental agreements The numbers of international agreements, which deal with global environmental issues, have increased in the last years. As examples the following treaties may be listed: • Vienna Convention for the Protection of the Ozone Layer 1985 and • Montreal Protocol on Substances that Deplete the Ozone Layer 1987; • Basal Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989; • Convention on Biological Diversity 1992 and • Cartagena Protocol on Biosafety to the Convention on Biological Diversity 2000 • United Nations Framework Convention on Climate Change 1992 and • Kyoto Protocol to the United Nations Framework Convention on Climate Change 1997; • United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa 1994; • United Nations Convention on the Law of the Sea 1982; • Agreement for the Implementation of Provisions of the United Nations Convention on the Law of the Sea of 10 December 1992 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 1995; • United Nations Convention on Non-Navigational Uses of International Watercourses 1997; • Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade 1998. On the European level a number of agreements have been elaborated within the framework of UN/ECE. Examples are the following:


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• Geneva Convention on Long-range Transboundary Air Pollution 1979 and a number of protocols, e.g. two Protocols on the Reduction of Sulphur Emissions (1985 and 1994); Protocol on Long-term Financing of the Co-operative Program for Monitoring and Evaluation of the Long-range Transmission of Air Pollutants in Europe (1984; EMEP); Protocol concerning the Control of Emissions or their Transboundary Fluxes (1985); Protocol on Persistent Organic Pollutants (1998); Protocol on Heavy Metals (1998); • Espoo Convention on Environmental Impact Assessment in a Transboundary Context (1991); • Helsinki Convention on the Transboundary Effects of Industrial Accidents (1992); • Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992); • Aarhus Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters (1998). These examples underline the broad areas that are covered by international regulations dealing with environmental issues, but also show the sectoral approach to environmental questions: international regulations are elaborated for specific environmental problems, but a holistic approach to environmental issues takes place very rarely. The Espoo Convention on Environmental Impact Assessment in a Transboundary Context is such an exemption. b) Other areas in which the United Nations are active Besides the above mentioned areas organs of the United Nations are trying to elaborate international regulations also in other areas. Based on the "Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of AH Types of Forests" the "International Forest Forum" was established which started its work in 1998. The aim of the International Forest Forum was to elaborate international regulations on the global level concerning the protection of forests and their utilization. It concluded its work in 2000 and reported on its progress to the CSD and ECOSOC. Moreover, efforts are continuing to elaborate further international regulations dealing with freshwater resources. Developments in recent years have underlined that the foreseeable shortage of freshwater resources will increase the potential for inter-State conflicts (see "Comprehensive Assessment of the Freshwater Resources of the World - Report of the Secretary-General" and UNEP, Groundwater: AThreatened Resource (1996)). Another area of activities are measures to reduce and eliminate threats to the

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environment by chemicals (cf. e.g. the ongoing negotiations to create a global international instrument to deal with persistent organic pollutants under the auspices of UNEP). c) Relationship between environmental regulations and other international

instruments In the last years the conflict between regulations concerning environmental issues and international economic law has become evident. In particular, the relationship between international environmental law and GATT/WTO has been discussed in international fora (e.g. UNEP, CSD, GATT/WTO and OECD). There are a number of reasons for this development: on the one hand, the increased environmental awareness in individual States has lead to increased pressure to protect the environment; on the other hand requests have been made several times to use trade restrictions to enforce international environmental regulations. Art. XX GATT - entitled "General Exemptions" - permits States to restrict international free trade in certain situations. Measures for environmental protection purposes may be taken by States - under the conditions stated in the chapeau of Art. XX ("such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction of international trade") - "necessary to protect human, animal or plant life or health" (para, b), as well as measures "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption" (para. g). The question whether measures taken by individual States or restrictions undertaken on the basis of international treaties were in conformity with the GATT/ WTO legal system has been discussed several times in various international fora as well as within the framework of the dispute settlement system of GATT/WTO (see e.g. the Panel Reports, respectively the Reports of the Appellate Body concerning "United States - Restrictions on Imports of Tuna" 1991 and 1994; "United States — Standards for Reformulated and Conventional Gasoline (Treatment of Imported Gasoline and Like Products of Imported Origin)" 1996; "United States - Import Prohibition of Certain Shrimp and Shrimp Products" 1998). The GATT/ WTO conformity of the trade restrictions set by the Basel Convention (restriction respectively the prohibition of transboundary transfer of hazardous wastes) or by the Montreal Protocol (prohibition of trade, respectively of the production of ozone depleting substances) has been discussed several times in UNEP, GATT/WTO and OECD. So far, none of the international environmental agreements, which contain trade restrictions, has been challenged under the GATT/WTO dispute-settlement system.


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The relationship between environment and trade regulations has already been raised in the preparatory process of UNCED. Principle 12 of the Rio Declaration - which was a compromise - reads in its relevant parts as follows: "States should cooperate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation. Trade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade." Thus, this provision clearly indicates the difficult relationship between environment and trade regulations. A clear distinction between the scope of these areas of international law cannot be currently drawn. It has to be decided in each individual case whether a measure taken to protect the environment meets the conditions set by Art. XX GATT. The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade 1998 is an example how the relationship between environment and trade has been addressed in international agreements. The preamble reads in its relevant paragraphs as follows: Recalling that trade and environmental policies should be mutually supportive with a view to achieving sustainable development, Emphasizing that nothing in this Convention shall be interpreted as implying in any way a change in the rights and obligations of a Party under any existing international agreement applying to chemicals in international trade or to environmental protection, Understanding that the above recital is not intended to create a hierarchy between this Convention and other international agreements. On its relationship to trade regulations a similar wording was included in the Cartagena Protocol on Biological Safety 2000. Thereby, it is underlined that both fields of international law deal with different areas of international regulation. Neither environmental law or trade law should be overriding, but it does not answer which provision would be prevailing in the case of a concrete conflict. If such a conflict would arise the provisions of the Vienna Convention on the Law of Treaties 1969 would have to be applied. The Kyoto Protocol addressed for the first time on the international level a new dimension in the relationship between trade and environment. Trade was not to be used as restriction for environmental purposes but should support environmental protection in a positive manner. Emissions trading - as set out in Art. 17 of the Kyoto Protocol - indicates clearly that the acknowledgement of the limited availability of the resource "environment" has lead to the creation of new mechanisms to

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achieve the aim of sustainable development. The idea of emissions trading - which has been developed in the United States in the context of reducing SO2 reductions - tries to make use of the most cost-effective possibilities to reduce emissions. States/enterprises are entitled to sell emission rights, which they have not used, and States/enterprises may buy emission rights if they have not reached the set reduction target. Thereby, a new "commodity" has been created which may be traded on an international level.

5. Institutional and Legal Questions Concerning the Implementation of International Conventions a) Institutional questions The sectoral approach to deal with environmental issues has led to the adoption of a number of international agreements, which deal with several environmental sectors. This situation not only leads to a diversification of legally binding international instruments, but also to a variety of international institutions. Within the framework of the international treaties organs such as Conferences of the Parties, Secretariats and a number of sub-organs (e.g. subsidiary bodies for implementation) have been created. Their task is to administrate and further develop the respective regulations. Their relationship to the organs of the United Nations - such as CSD and UNEP - is problematic as a duplication of the work of international institutions is to be avoided. But it should not be overlooked that the sectoral approach to environmental protection and by way of creating specific international treaties for the area under consideration results in the question whether institutional arrangements should be created in each individual case. Conferences of the Parties are entrusted with the task to further elaborate the respective regulations. Their relationship as well as the legal status of the Convention secretariats has so far not been clearly established, e.g. the question whether these institutions possess legal personality to conclude international agreements has only been dealt with on a day to day basis (cf. report of the Subsidiary Body for Implementation on its eleventh session (October/November 1999) of the United Nations Framework Convention on Climate Change which states that the question ofjuridical personality of the Convention secretariat on the international level should be deferred and taken up in 2001; this question had been discussed within the Subsidiary Body for Implementation already at previous sessions, but also postponed to later sessions). b) Legal questions of implementation The implementation of and compliance with international agreements on the national level has for a number of reasons become a central point in the environmental


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field: on the one hand the opinion prevails that - in particular in the environmental field - prevention is better than cure; on the other hand the last years have demonstrated that environmental protection measures are seen as an important factor for the competitiveness of national economies. It is feared that the nonimplementation of or the non-compliance with internationally agreed rules for the protection of the environment will give an advantage to a competitor. Nearly all international environmental agreements, which have been adopted in the last years, contain provision on dispute settlement, which provide means for individual States to ensure that other parties comply with the agreed regulations. These provisions follow Art. 33 of the UN Charter (cf. Art. 27 of the Convention on Biological Diversity, which provides for a comprehensive dispute-settlement system). These traditional means of dispute settlement have so far not been used by States. Only very few cases which concern environmental issues have been brought to judicial settlement so far (cf. the judgment of the International Court of Justice in the Gabcikovo-Nagymaros case 1997 (Hungary v. Slovakia) and the Southern Bluefin Tuna cases (New Zealand v. Japan, Australia v. Japan) before the International Tribunal of the Sea). Under nearly all international environmental agreements States are obliged to report on measures they have taken in implementation of the agreement under consideration in regular intervals (so-called "reporting systems") and/or to submit data regarding the application of the agreement (so-called "data reporting system"). Moreover, in the environmental field new mechanisms to ensure implementation of and compliance with international environmental agreements have been developed — the so-called "compliance" mechanisms. For the first time such a compliance mechanism was created under the Montreal Protocol entitled "non-compliance procedure". Annex V of the "Report of the Forth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer" (UNEP/OzL.Pro.4/ 15) set up the procedure and established a so-called "Implementation Committee" which consists of "10 Parties elected by the meeting of the Parties for two years, based on equitable geographic distribution". The main features of the noncompliance procedure are as follows: non-confrontational based on cooperation with the implementation committee in finding a solution to further and facilitate the compliance with the commitments undertaken; non-judicial based on the interest of all parties to the environmental agreement in ensuring the implementation of and the compliance with commitments undertaken; and to provide assistance to the parties which face difficulties in carrying out their commitments. The basic elements of such compliance mechanisms may be summarized - as has been done in para. 23.1 of the "Lucerne ECE Declaration concerning

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Environment 1993" - as follows: such mechanisms "aim to avoid disputes; nonconfrontational; transparent; leave competence for the taking of decisions to be determined by the Contracting Parties; leave the Contracting Parties to each convention to consider what technical and financial decisions may be required, within the context of the specific agreement; include a transparent and revealing reporting system and procedures, as agreed to by the Parties". Other Conventions followed this example. Under the Geneva Convention on Long-range Transboundary Air Pollution 1979 an "Implementation Committee" was set up in December 1997 to deal with questions concerning the implementation of and compliance with the protocols concerning reduction of SO2 and volatile organic compounds (Decision 1997/2 of the Executive Body for the Convention on Long-range Transboundary Air Pollution). The increasing number of mechanisms, which aim to ensure implementation of, and compliance with international environmental agreements is demonstrated clearly by the provisions of the Kyoto Protocol. The Kyoto Protocol addresses issues of implementation and compliance in a number of provisions: Art. 5, 7 and 8 deal with reporting and review issues; Art. 16 asks for the establishment of a "multilateral consultative process" and Art. 18 obliges the parties to create a compliance procedure; moreover, Art. 19 states that the dispute settlement procedures contained in Art. 14 of the United Nations Framework Convention on Climate Change are to be applied mutatis mutandis. The creation of compliance mechanisms in the environmental field has raised the question of their relationship to dispute settlement mechanisms. This issue has not been solved finally as the evolution of compliance mechanisms raises new questions. In principle it may be stated that the compliance mechanisms have a different aim than dispute settlement mechanisms. Whereas the first aim at ensuring implementation and compliance, the latter try to solve disputes between individual parties. An important distinction between the traditional means of dispute settlement and compliance mechanisms is that an individual country has to state its case under a dispute settlement mechanisms, whereas in a compliance procedure the community of parties is involved as such. The compliance procedure may be triggered not only by an affected State, but by any party which has doubts on another party's compliance and under certain circumstances by the secretariat of the convention in question. The complexity of implementation and compliance issues as well as the relationship between the various mechanisms for compliance and dispute settlement is a challenge for future negotiations. A comprehensive system - encompassing all kinds of mechanisms - has to be created in order to avoid overlaps, duplications and legal uncertainty.


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6. Financial Issues A central issue in international negotiations on environmental issues is the question of financial resources and the transfer of technology for developing countries. Nearly all international environmental agreements - e.g. the Montreal Protocol, the Kyoto Protocol and the Convention on Biodiversity - contain provisions on financial resources and technology transfer. On the international level a number of finance mechanisms have been created which support measures for environmental protection of individual countries. The most important instruments are the Multilateral Fund under the Montreal Protocol and the Global Environmental Facility (GEF). The Multilateral Fund which was created in 1990 gives financial support to countries enabling them to phase out the production and use of substances that deplete the ozone layer. GEF was established on an interim basis in 1991 and since 1994 operates permanently. It is administrated through three international institutions: UNEP, UNDP and the World Bank. GEF shall provide "new and additional grant and concessional funding" to developing countries and countries with economies in transition in order to meet the "incremental costs of measures to achieve agreed global environmental benefits" in the following areas: climate change, biological diversity, international freshwater resources and ozone layer. Furthermore, projects concerning "land degradation, primarily desertification and deforestation" may be financed if they are connected with one of the other areas. Although the term "incremental costs" has not been defined incremental costs may be described to mean those additional costs of a specific project (e.g. caloric power plant) in order to fulfill the obligations of international environmental regulations. These additional costs are covered by GEF. In 1998 GEF received new financial resources by the donor countries. The shortage of financial resources on the national and international level has in the last years — made it necessary to seek innovative ways and means for providing financial support and technology transfer. This is demonstrated both by the Convention on Biological Diversity (Art. 20 and 21) and the international regulations dealing with climate change issues. The United Nations Framework Convention on Climate Change states that a financial mechanism to support developing countries is to be established (Art. 11). In the negotiations leading to the adoption of the Kyoto Protocol agreement was reached to establish the so-called "Clean Development Mechanism" (Art. 12). By this mechanism the developing countries should be provided with financial resources to assist them in achieving sustainable development and the developed countries should be assisted in meeting their emission reduction or limitation obligations.

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The Convention on Biological Diversity created a "Clearing House Mechanism" by a decision of the parties in 1994. It is to provide technologies for the protection of the biological diversity to developing countries. In the context of financial resources the role of the World Bank and of the regional development banks (Inter-American Development Bank, Asian Development Bank, African Development Bank and the European Bank for Reconstruction and Development) should not be overlooked. They have - in the last years - become important factors for measures to achieve "sustainable development" as they have supported only projects which fulfill the obligations of international environmental agreements. By providing financial resources the gap between North and South in environmental protection should be bridged.

7. Concluding Remarks Within the United Nations system questions concerning environmental protection and sustainable development have been discussed intensively in the last years. The central challenge for the next years will not be primarily to create new instruments but rather to elaborate further existing instruments and enhance their implementation on the national level. It is to be hoped that, thus, existing and new emerging environmental problems will be tackled in an efficient manner. The global dimension of many environmental issues requires global solutions. Moreover, if the differences between North and South in addressing environmental issues were overcome, more efficient environmental measures would be achieved. Another important issue in the forthcoming years will be the evolution of the institutional framework to deal with environmental issues. Currently numerous bodies and fora - both inside and outside the United Nations system - deal with environmental questions. As on the national level also within the United Nations a sectoral approach has been chosen: measures are taken for individual sectors and so far no holistic approach has been selected to deal with environmental issues. This sectoral approach also led to the creation of numerous international institutions. Each of the global conventions - so far - has created its own institutions, such as Conferences of the Parties and Secretariats, which are spread over nearly all continents: the Climate Change Secretariat is located in Bonn, Germany, the Secretariat of the Convention on Biological Diversity in Montreal, Canada and the Ozone Secretariat in Nairobi, Kenya). The fragmentation of international instruments concerning environmental matters and sustainable development as well as the variety of international institutions, which deal with environmental issues and sustainable development within the United Nations system, are seen as a disadvantage for the environmental cause


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and as weakening the enforcement of international environmental agreements. In the last years efforts have been made to pool the various international instruments and institutions within the United Nations systems following the model of the World Trade Organization (WTO) ("GATTing the Greens"). The creation of such an organization would be a big challenge, as this would require a reconstruction of the existing institutions. The traditional sectoral approach would have to be overcome not only in regard to its institutional aspect, but also concerning substantial questions. A better coordination of activities in the environmental field and an increased cooperation between international institutions would be most welcome. These matters have also been addressed in the Report of the General Secretary on Renewing the United Nations (A Program for Reform). In particular, the socalled "Topfer Report" (UN Task Force on Environment and Human Settlements), which was published in June 1998 on the reform of the environmental activities of the United Nations (especially UNEP) proposes that the existing structures should be tightened and the activities should be more closely coordinated. UNEP's coordinating role should be enhanced. At its 53rd session the GA adopted a resolution encouraging Conferences of the Parties "to examine appropriate opportunities and measures to strengthen their complementarities and improve scientific assessments of ecological linkages between" the United Nations Framework Convention on Climate Change, the Convention on Biological Diversity and the United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertificiation, particularly in Africa (see GA Res. 53/186).


An Agenda for Development Hans-Peter Glanzer

Literature: Dazie, The UN and the Problem of Economic Development in Roberts/Kingsbury (eds.), United Nations, Divided World (2nd ed., 1993); Childers/Urquhart, Renewing the United Nations System (1994); Simma (ed.), The Charter of the United Nations: A Commentary (1994); Our Global Neighbourhood, Report of the Commission on Global Governance (1995); An Urbanizing World (1996); World Investment Report, UN/UNCTAD (2000); World Economic and Social Survey, UN (yearly), Statistical Yearbook, UN (yearly); UN/UNDP Human Development Report 2000; Trade and Development Report, UN/UNCTAD (2000); The Least Developed Countries Report, UN/UNCTAD (2000).

1. Introduction The Charter of the UN recognizes social and economic progress as well as human rights as prerequisites for peaceful and friendly relations among nations and integrates them into a comprehensive concept of peace. With the decolonization process the topic of development has been put on the agenda of the UN system. After the collapse of the bi-polar system and the disappearance of the East-West conflict, which was mainly of a traditional military nature, the UN further strengthened its focus on the promotion of sustainable development. 2. Socioeconomic Issues as a Main Objective in the Charter of the United Nations The preamble of the Charter of the United Nations as well as the objectives denned in Art. 1 reflects the importance, which the founders of the UN attached to social and economic matters. Art. 1 (2) stipulates the achievement of international cooperation in order to solve international problems of an economic, social, cultural or humanitarian character. A separate Chapter IX of the Charter of the UN is devoted to international economic and social cooperation. Art. 55 lit. a and b of this Chapter constitutes together with Art. 1 the central provision with regard to the economic and social field. With a view to the creation of prosperity and stability which are necessary for peaceful and friendly relations among nations the United Nations shall promote "higher standards of living, full employment, and conditions of economic and social progress and development" (lit. a) and "solutions of international economic, social, health and related problems; and international cultural and educational cooperation"


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(lit. b). While Art. 1 and Art. 55 clearly put social and economic development at the service of the overall aim of securing peace, they nowadays constitute responsibilities on their own, if not the key responsibility of the United Nations; an evolution which is mainly due to the predominant role of the developmental dimension in the work of the UN. A total of 80% of the regular budget of the UN is being spent for economic, development and social activities and related fields.

3. The Competencies of the General Assembly in the Economic and Social Field Chapter IV of the Charter defines the functions and powers of the GA Art. 13(1) lit. b of this Chapter gives the GA the right "to initiate studies and make recommendations for the purpose of promoting international cooperation in the economic, social, cultural, educational and health fields. Art. 60 (Chapter IX) assigns also to the GA responsibilities, which is mainly being exercised by the elaboration of guidelines and principles, in particular in the development field. The GA does not set any activities on its own but through Specialized Agencies respectively a number of subsidiary bodies, which have been established for this purpose (e.g. UNCTAD, UNDP). Further competencies of the GA in the economic and social field are contained in Art. 60, which puts the ECOSOC under the authority of the UN, and in Art. 63, (1), which subjects agreements between ECOSOC and the Specialized Agencies to the approval by the GA. Only a few of the many recommendations which the GA passed in the economic and development field over the last decades will be mentioned here. The examples chosen should also stand for the main political developments over the last five decades. In the initial phase of the UN, the free-trade idea marked the deliberations on a reform of the world economy which in 1947 led to the signing of the General Agreement on Tariffs and Trade (GATT). The decolonization process brought the aspect of international cooperation to the foreground; the developing countries pressed for reducing disparities in development and wealth between North and South and a higher degree of sovereignty, also in the economic sphere. The Friendly Relations Declaration [GA Res. 2625 (XXV)] which was passed in 1970, contains the duty of States to cooperate with one another, irrespective of the differences in their political, economic and social systems, in the various spheres of international relations. The oil-price shock of 1973 demonstrated - to a hitherto unknown extent - the dependence of commodity importing industrial countries and brought about extremely negative consequences for most of the oil importing developing countries. Against the background of this crisis, a program for the Establishment of a New

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International Economic Order was elaborated. In this context the 6th Special Session of 1974 adopted a Declaration and a Program of Action [(Res. 3201 (S-VI) and 3202 (S-VI)] which contains a number of demands which aim at general and sectoral changes of the structures of the world economy in favor of the developing countries. The catalogue of demands contains among others the full permanent sovereignty of every State over its natural resources (including the right to nationalization), the improvement of the terms of trade inter alia by the stabilization of prices,

preferential market access, technology transfer, debt relief, development assistance without conditionalities, control of transnational corporations, promotion of cooperation among developing countries, an enhanced role of the UN in the international economic cooperation. Despite reservations by the West, in particular concerning the question of nationalization the Declaration and the Program of Action was adopted by consensus. The Charter of Economic Rights and Duties [GA Res. 3281 (XXIX)] which was passed the same year and was intended to put the above-mentioned political demands on a legal basis received little support among the Western industrialized countries. Most of them abstained or voted against the Charter. Principles for international cooperation in the economic and developmental field have been formulated over the last decades also in resolutions on the four development decades (Fourth United Nations Development Decade/GA Res. 45/199). Whereas in the 1970s the North-South conflict was articulated in broad policy debates with a marked ideological approach like in the deliberations on a New International Economic Order, the 1980s made way for a more pragmatic thinking. Interventionist economic models had become less attractive. The collapse of the Communist system brought about a higher acceptance of liberal concepts like market economy and free trade. This paradigmatic shift could be seen in the resolution on the fourth development decade (GA Res. 45/199) and in particular in the declaration, which was passed at the 18th Special Session of the GA, devoted to international economic cooperation (GARes. S-18/3). This declaration identified specific fields for such a cooperation and stressed the responsibility of each country for its own economic policies. The GA continues to make recommendations on key macroeconomic issues like external debt, development assistance and international trade. But also topics like the eradication of poverty and the least developed countries (LDCs) have come to the fore. This corresponds with the changed focus of development cooperation which is more geared towards the basic needs of the individual and aims at a stronger differentiation among developing countries. The GA has also passed important resolutions on a more effective carrying out of the development activities of the UN system as done in the "Triennial Policy Review" which has

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started with GA Res. 47/199 and takes place every three years. The Agenda for Development (see para. 7) has designed a reorientation of the development role of the UN addressing both the substantial and institutional aspects. The Economic and Financial Committee (Second Committee) is one of the six Main Committees of the GA. Most of the work of the GA is actually performed in these committees. The Second Committee deals with four main clusters: macroeconomic issues, international economic cooperation, operational development activities and environmental issues. Most of the resolutions in the Second Committee are initiated by the "Group of 77" (G-77) which include most of the developing countries (at present 133) and - though there is no complete identity in membership - represents the counterpart to the Non-Aligned Movement in the economic, social and related fields. The European Union can be regarded as the second important protagonist in the negotiations. The policies of the Member States of the European Union in the economic and social field in the global UN context are marked by a high degree of coherence. The common foreign policy of the European Union is realized to a high extent in particular in this area. The Presidency of the European Union, which rotates every six months, negotiates as well as makes declarations on behalf of the European Union and its Member States. In the Second Committee the vast majority of resolutions is adopted by consensus. Due to an overloaded and very broad agenda, the GAis not effectively fulfilling its role as the organ responsible for providing clear and coherent policy direction. In particular the developing countries expect an enhanced political profile of the GA especially in the macroeconomic and development field. In the 1990s the important global themes have been treated by the various global UN Conferences which had also an effective outreach to the general public. Among many proposals for reforming the work of the GA one should in particular mention the proposals made by the Secretary-General of the United Nations, Kofi Annan, who amongst other things suggested a thematic focus for each of the Main Committees of the GA.

4. The Economic and Social Council (ECOSOC) as the Steering and Coordinating Mechanism of the UN System in the Economic, Development and Social Field ECOSOC is one of the six principal organs of the UN. Under the authority of the UN (Art 60) it should act as the central steering and coordinating mechanism in the economic, social and related fields. Although not explicitly mentioned in the list of tasks (Art. 62) the issue of development figures prominently in the broad spectrum of activities of ECOSOC. Important issues like environment, the combat


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of drugs and crime are being dealt with under the category of related fields. In order to perform its tasks ECOSOC may make or initiate studies and reports, make recommendations to the UN system (including its Member States), prepare draft conventions and call international conferences. ECOSOC is also tasked with coordinating functions within the UN system, including the Specialized Agencies, which is done inter alia via reporting (Art. 64 (1)). It also enters into agreements with Specialized Agencies, which define the relationship of the agency concerned with the UN (Art. 63 (1)). ECOSOC holds one short organizational session, in particular for elections in its subsidiary bodies as well as a longer, substantive session of four weeks, taking place in alternate years in New York and Geneva. The substantive session opens with a two- to three-day high-level segment with ministerial participation and is devoted to a major economic or social theme. ECOSOC uses various subsidiary bodies for fulfilling his coordinating function. The most important one is the Administrative Committee on Coordination (ACC) which is composed of the UN-SG as well as the executive heads of the Specialized Agencies and the funds and programs of the UN. It meets twice a year under the chairmanship of the Secretary-General. The Committee for Program and Coordination (CPC), a joint subsidiary organ of the Economic and Social Council and the GA, is also supposed to play a coordinating role. The CPC, which consists of 34 Member States, should review the programs of the United Nations in particular in the light of its budgetary implications. Art. 68 of the Charter provides that ECOSOC sets up commissions for the performance of its functions. This has resulted in an institutional maze of 30 subsidiary bodies which could roughly been grouped into four categories (Functional Commissions, Regional Commissions, Standing Committees, Expert Bodies). In the following only the political most relevant categories are dealt with, namely the Functional Commissions. (For Regional Commissions see subchapter 6.f.) There are nine Functional Commissions (Statistical Commission, Commission on Population and Development, Commission for Social Development, Commission on Human Rights, Commission on the Status of Women, Commission on Narcotic Drugs, Commission on Crime Prevention and Criminal Justice, Commission on Science and Technology for Development, Commission on Sustainable Development). These bodies have a limited membership. Member States are elected for a term of three to four years by ECOSOC. Their activities include the elaboration of reports and studies, the submission of recommendations, the development of common standards (including the elaboration of conventions), coordination as well as the monitoring and review of the implementation of the

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results of the UN conferences. The commissions differ considerably in their political relevance. The Commission on Human Rights and the Commission on Sustainable Development have a comparatively high profile (detailed information on each of the commissions is given in the specific chapters of this book). ECOSOC was not really able to fulfill its responsibilities assigned by the Charter. ECOSOC therefore figures time after time on the reform agenda. From the beginning substantive tasks in the economic, social and development field have been carried out by the Specialized Agencies and later on by the programs established by the GA. But ECOSOC also did not succeed to date in the provision of overall guidance and coordination. The main problem consists in the proliferation of subsidiary bodies, which has led to an insufficient coherence in policy formulation as well as in slow decision making processes. Recent reform measures have been initiated by a GA resolution for the restructuring and revitalization of the UN in the economic, social and related fields (GA Res. 50/227). First, though, tentative steps towards a streamlining of the subsidiary machinery of ECOSOC have been taken. The problem of institutional proliferation is also addressed by the reform proposal of the UNSG.

5. Secretariat At the Secretariat level the responsibilities in the economic, social and development field rest with the Department for Economic and Social Affairs (DESA). The functions of the various divisions of DESA (population, social policy, sustainable development, development/macroeconomic policy analysis, statistics, public administration, gender issues, ECOSOC) are not limited to the provision of logistical and organizational support to the GA respectively the Second Committee, ECOSOC and its subsidiary bodies. The Secretariat, in particular through the reports to the mentioned intergovernmental bodies, has a considerable bearing on policy formulation and guidance. The statistical work plays an important role in the economic and development field (e.g. yearly publication of the Statistical Handbook of the UN). In the "World Economic and Social Survey" which is also done on a yearly basis, the most important socioeconomic trends are evaluated in a social context. Another task consists in advising developing countries and countries with economies in transition. The Regional Commissions as well as the funds and programs of the UN have their own secretariats.


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6. Fields of Activities The functions of the GA and the ECOSOC in the field of policy formulation and direction as well as coordination and supervision are complemented by the operational activities in the economic and development field. Besides the Specialized Agencies, which are not dealt with in this book, a number of programs and organs under the authority of the GA and ECOSOC perform operational tasks. The funding usually comes from voluntary contributions of Member States; the administrative costs are paid out of the regular UN budget. "Environment" and "population" which are also part of the work of the Second Committee as well as ECOSOC and which rest with DESA at the secretariat level belong also to the following activities. They are dealt with in the respective substantive chapters of this book. a) Operational activities The United Nations Development Program (UNDP) administrates and coordinates the major part of the technical assistance provided through the UN system. Its main task consists of the planning, financing and coordination of development projects. The actual project implementation is done by technically competent organizations (in particular Specialized Agencies) within or outside the UN system, the recipient countries or the United Nations Office for Project Services (UNOPS) which is specialized in the execution of projects. UNDP's work aims at helping countries in their efforts to carry out sustainable development programs in poverty eradication, employment creation and sustainable livelihoods, the empowerment of women and the protection of the environment, giving first priority to poverty eradication. The large part of resources (90% of the core resources) is spent on countries whose GNP per capita is below US$ 750. The headquarters of UNDP are in New York. The heads of the 132 field offices also often act as Resident Coordinators and exercise a coordinating function for the whole UN system at the country level. This implies the use of resources for tasks, which go beyond the actual development activities. In 1999 voluntary contributions coming primarily from 15 Western industrialized countries for the core programs of UNDP were US$ 719 million. The non-core contributions which are linked to certain conditions amounted to US$ 1897 million. UNDP is also doing studies and reports like the annual "Human Development Report". This report contains the Human Development Index, which tries to measure development and wealth not only by economic criteria but also on a broader scale. UNDP administers special funds and programs like the United Nations Volunteers (UNV), the United Nations Development Fund for Women (UNIFEM) and the United Nations Capital Development Fund (UNCDF).

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The United Nations Children's Fund (UNICEF) is devoted to the improvement of living conditions of children and adolescents. The voluntary contributions for the core programs of UNICEF which is also located in New York amounted to US$ 354 million in 1999, the non-core contributions to US$ 273 million. Around one third of the contributions came from private sources. Some 34 national committees, mostly in industrialized countries, support and promote the cause of UNICEF. Both UNICEF and UNDP (the latter one jointly with the United Nations Population Funds/UNFPA) have Executive Boards (each 36 Member States) which have a guidance, control and supervision function. The negative trend in official development assistance reaching an all time low in 1997 with 0.22% of the Gross National Product of the Western donor countries since the establishment of the 0.7% target in 1970, affects in particular contributions made in the multilateral framework which are also often more and more tied to specific conditions. UNDP in particular is confronted with enhanced activities of the World Bank Group which is increasingly placing poverty eradication at the center of its development strategy. Using the scarce resources more effectively requires better cooperation of the funds and programs in the field, which should be improved through the newly established United Nations Development Assistance Framework (UNDAF). At the headquarters level a better coordination and coherence should be achieved through the United Nations Development Group (UNDG) which has been initiated by the reform program of the UN-SG. The UN-SG made also proposals for the financing of operational activities. Core resources should be made available in multi-year instead of one-year tranches. Innovative means of mobilizing new resource for development, in particular from the private sector, should be found and savings in the administration should go into development activities ("development dividend"). It is the Deputy SecretaryGeneral who is dealing specifically with these issues (see also para 7.). b) Trade and investment The United Nations Conference on Trade and Development (UNCTAD) which was established in Geneva in 1964 forms the institutional nucleus for this field of UN activities. Already then the newly independent developing countries faced the well-known development challenges (deterioration of terms of trade, protectionism, access to technology). For them the existing international economic institutions did not seem to provide the appropriate forums for articulating and pursuing their interests. Starting in 1964 in Geneva UNCTAD meets every four years as a conference (1996 in Midrand, South Africa, 2000 in Thailand) which adopts recommendations and guidelines. The Trade and Development Board (TDB) which meets once a


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year in a regular session ensures the continuity between the conferences. The TDB whose membership is open to all Member States of UNCTAD has as subsidiary bodies three Commissions (investment and technology, trade, enterprise development). UNCTAD has its own Secretariat located in Geneva. UNCTAD jointly with the World Trade Organization (WTO) runs the International Trade Center (ITC) which supports developing countries and countries in transition in the field of export promotion. Besides the focus on trade (inter alia the elaboration of a generalized system of preferences for manufactured and semi-manufactured goods from developing countries), issues like stabilization of prices for commodities (integrated program for commodities), technology transfer as well as external debt figured prominently on the agenda. UNCTAD saw itself as the main forum for developing and promoting the New International Economic Order. But also within UNCTAD the controversial ideological debates have given way to a more and more pragmatic approach. The establishment of the WTO made it necessary for an enhanced focus in the work of the Conference. Midrand identified the following priorities: globalization and development, in particular with view to a more effective participation of developing countries in international trade and investment; investment, enterprise development and technology; international trade in goods and services and commodity issues; trade facilitation activities: This analytical and deliberative work is complemented by technical assistance in support of such work, in particular for LDCs. Good examples for the analytical work of UNCTAD are the annual Trade and Development Report, which analyses socioeconomic trends from a specific development angle, the Least Developed Countries Report, and the World Investment Report. c) Science and technology The provision of scientific know-how and technologies to developing countries by the developed world respectively the access to it on preferential terms is one of the main demands of the developing countries and is contained in many major documents on development issues. But so far a real political breakthrough on the question of technology transfer which in the last years has been addressed in particular in the environmental context, could not be achieved. The activities of the UN in this field which are based on the Program of Action of the UN Conference on Science and Technology for Development (Vienna, 1979) are focused on assisting the creation of appropriate structures at the national level, the evaluation of (new) technologies looking at their applicability in developing countries as well as the interrelation between technology transfer and investment policies. With the UN

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system UNCTAD is mainly dealing with technology-related issues and also functions as the Secretariat for the Commission on Science and Technology for Development (CSTD). The CSTD is a functional commission of ECOSOC and comprises 33 members. UNDP has also a specific fund, which finances a broad spectrum of activities for strengthening the institutional framework in developing countries. d) Human settlements According to estimates, by the year 2000, 50% of the world population, and of that share 80% in developing countries will live in cities. This rapid process of urbanization brings about a number of socioeconomic and ecological problems. In order to support countries and regions in tackling these problems and to promote international cooperation in that sector, the Commission on Human Settlements (HABITAT) was founded. This standing committee of ECOSOC comprises 58 members. The UN Center for Human Settlements (UNCHS) in Nairobi is the lead agency for coordinating human settlements activities within the UN family and serves at the same time as Secretariat for the Commission on Human Settlements. The Center supports governments in developing programs in the field of human shelter and urban planning as well as elaborates guidelines and indicators for evaluating the progress made in these fields. Specific programs focus on the needs of the poorest segments of the population as well as on the environmental aspects in urban planning in developing countries. The report "An Urbanizing Wold", published by the Center in 1996, provides a very good insight in the challenges and opportunities of urbanization. Also one of the major UN conferences of the 1990s was devoted to the issue of human shelter. The second UN Conference on Human Settlements (Habitat II, Istanbul 1996) focused on the demands for a provision of adequate shelter for all as well as on the sustainability in the field of human settlement. The conference adopted a comprehensive program of action, which assigns an important role to communities and NGOs. e) Food security and agriculture Apart from the Food and Agriculture Organization which is the lead agency of the UN system in thisfield,the Rome based World Food Program (WFP) deals with the issue of food security. This joint FAO/UN program provides food aid in order to meet immediate needs of victims of natural and other disasters. The WFP is the most important instrument in thefieldof multilateral food aid. The WFP also takes measures for improving long term food security. In 1999 a third of the financial resources of US$ 1.55 billion have been used for this purpose. This long-term


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assistance is partly being done in the form of "food-for-work" projects. Recipients of food aid are working in development projects. The WFP also administers the International Emergency Food Reserve (IEFR) with a minimum target of 500,000 tons of cereal per annum. The contributions to this reserve are made on a voluntary basis. The last of the major UN conferences - the World Food Summit (Rome 1996) was devoted to the topic of food security. The program of action resulting from this summit aims at halving the number of undernourished people in the world - at present 800 million people - by the year 2015. f) Regional dimension The five Regional Commissions, which are also subsidiary bodies of ECOSOC, have a comprehensive mandate with regard to economic, development and partly also social issues. There are - in the sequence of their establishment: Economic Commission for Europe (ECE, 55 members), Economic and Social Commission for Asia and the Pacific (ESCAP, 53 members), Economic Commission for Latin America and the Caribbean (ECLAC, 41 members), Economic Commission for Africa (ECA, 53 members) and the Economic and Social Commission for Western Asia (ESCWA, 13 members). The very broad spectrum of activities aimed at enhancing the regional cooperation stretches from macroeconomic reporting to the elaboration of conventions in technical fields. The scope and content of the work of the Regional Commissions also depends on the degree of regional integration and institutionalization. Whereas ECE working in a regional environment marked by a very high degree of economic integration with a strong institutional base, is active in very specific technical fields (e.g. elaboration of conventions in thefieldof transport and environment), ECLAC and ECA are pursuing a broader economic and development mandate. The Regional Commissions have their own secretariats, which are placed under the authority of the UN-SG. The current expenditures are being paid out of the regular budget. The Regional Commissions are allowed to establish their own subsidiary bodies. The membership is open both to members of the UN of the given region and to States with a specific relationship to a region (e.g. USA and Canada are members of ECE, France and the United Kingdom are members of ESCAP) as well as countries which are not even members of the UN (e.g. Switzerland is member of ECE).

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7. The Main Weaknesses of the UN in the Economic and Social Field - An Overloaded Substantive Agenda and the Institutional Fragmentation; Reform Proposals by the UN-SG As already mentioned earlier one of the most serious problems of the UN in the economic and social field consists of the lack of focus in its activities. There are no clear priorities and identifiable targets. These shortcomings begin on the intergovernmental level (GA - ECOSOC - Functional Commissions) which is responsible for policy formulation and subsequently make their mark on the operational activities of the UN system. Reform proposals which - like the one made by the UN-SG - aim at better focus of the debates in the GA face considerable reservations in particular by the developing countries which are concerned that such a streamlining of the agenda might limit their right to put any topic on the agenda. A second major structural shortcoming is the fragmentation and overlap in the institutional field. The subsidiary machinery of ECOSOC is marked by a vast maze of 30 bodies and about 60 sub-bodies. This institutional proliferation has a negative effect on the political coherence, which in turn weakens the political clout of ECOSOC. To an even lesser degree ECOSOC is able to fulfill its coordinating function with regard to the UN system. The lacking coordination between the UN and the Specialized Agencies often starts within the Member States where the competencies are divided among different ministries. Whereas the foreign ministry exercises the overall political responsibility the ministries dealing with the technical aspects are often the ones which represent the Member States in the Specialized Agencies. The fragmentation of the intergovernmental machinery is paralleled by a diffuse and complicated organizational structure in the administrative field (UN Secretariat, Funds and Programs). This leads to overlap and a lack of efficient use of resources in particular with regard to the operational activities of the UN in the field. In March 1997 shortly after the assumption of his office UN-SG Annan set first reform measures aiming at clearer structures in the Secretariat as well a better coordination of the various UN entities with development functions. The functions of three departments in the Secretariat exercising responsibilities in the economic, social and development field have been merged into the earlier mentioned Department for Economic and Social Affairs. The strengthening of the Resident Coordinator, joint programming and budgeting as well as common premises ("UN House") should guarantee a common appearance of the UN system in the field (see also subpara 6a/UNDAF). In the run-up to the presentation of the reform package by the UN-SG there were proposals which even envisaged a merger of the funds and programs. This proposal, however, faced strong resistance by the affected entities


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(in particular UNICEF) and could therefore not be realized. In the end the establishment of the United Nations Development Group (UNDG), consisting of the heads of UNDP, UNICEF and UNFPA, was the left-over of the merger proposal. The UNDG should help to better coordinate the funds and programs. A further specific and concrete measure out of the mentioned reform program of the UN-SG was the creation of the post of a Deputy Secretary-General which has been taken up by the Canadian diplomat Louise Frechette. The Deputy Secretary-General in particular assumes responsibilities in the economic and social field. Reform measures, which affect the intergovernmental process, require the consent of Member States. The proposals made by the Secretary-General in this area were rejected (streamlining of the subsidiary machinery of ECOSOC, stronger focus of the debate in the GA) or decisions on these proposals have been postponed (review of the relationship between the UN and the Specialized Agencies). Measures for a further strengthening of ECOSOC are contained in the above-mentioned GA Res. 50/227. In spite of first positive measures and results ECOSOC still has a long way to go before being positioned to play a central and effective role in the coordination and supervision of the UN system in the economic and social field. In the run-up to the reform program of the UN-SG the European Union presented a comprehensive paper on the reform of the UN in the economic and social field ("Proposals of the European Union for Reform of the United Nations in the Economic and Social Areas, New York, January 1997).

8. What Could a New Role of the UN in the Economic and Development Field Look Like? The UN is faced with changed/new configurations in the economic and social field. The 1970s and the first half of the 1980s saw a North-South conflict which resulted in highly political debates on a New International Economic Order. With the collapse of the bipolar system the use of this conflict in the East West antagonism disappeared. Market economy and free trade have become the new paradigms. The rapid process of globalization in particular in the economic sphere led to a significant loss of importance of the traditional actors like the nation State. Private foreign investments in developing countries surpass official development assistance by a ratio of 5:1. Is the work of the UN which was established in a fundamental different socioeconomic environment still of relevance in the economic, development and social field? The UN has still a number of comparative advantages, which should enable it to play a useful role in an international "division of labor". The greatest source of strength of the UN stems from its universal character. The UN could therefore assume an important function in the intergovernmental process in the field of norm-

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setting, stretching from the identification of emerging global issues to the negotiation of legally binding agreements. This function implies an adequate capacity in collecting and analyzing data in the economic and social field. The UN should profit in exercising this task from its universal character. The global standard and norms will have to be implemented at the national level. The operational role of the UN should in particular address this issue. The extensive field presence and the broad scope of its mandate should enable the UN to support the governments of developing countries and countries with economies in transition in their efforts to implement these globally agreed norms and standards ("capacity building"). All this requires a much stronger focus in the work of the UN. In view of the potential of the UN such specific priority areas could include: poverty eradication; employment; the provision of essential services such as education, health and housing; advancement of women; protection of children; good governance; enhancing integration of LDCs in the world economy as well as protection of the environment and the combat of crime and drugs. Due to its extensive presence at the country level the UN should be very well placed to better integrate the socioeconomic dimension in conflict prevention as well as in the post conflict rehabilitation phase. The setting of priorities has to start at the intergovernmental level and must be reflected in a more compact and streamlined institutional structure. A better coordination among the relevant entities, including the Specialized Agencies, is necessary both at the headquarters and the field level. Such an approach of a people centered development was also the leitmotif of the global UN conferences of the 1990s: Environment and Development (Rio 1992), Human Rights (Vienna, 1993), Population and Development (Cairo 1994), Social Development (Copenhagen, 1995), Women (Beijing, 1995), Human Settlements (Istanbul, 1996), Food Security (Rome, 1996). Against all criticism, in particular concerning the costs of such events, one has to give credit to the conferences for shaping a new global consensus on development priorities. And thanks to the strong presence of NGOs these conferences were able to raise the awareness of the broad public for specific topics to a much larger extent than this would have been possible in the traditional GA context. The effective implementation of the results of these conferences in the daily work of the UN system is however insufficient. The multidimensional approach to development, which results from these global conferences and considers economic growth, social development, environmental protection and human rights as integral and equally important components, is also embraced by the Agenda for Development. The GA adopted the Agenda after two years of negotiation in June 1997 (Doc A/51/45). It combines development objectives with institutional issues and aims at adapting the development role of the UN both substantially and institutionally to the changed environment.


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It goes without saying that there are quite conflicting views among Member States on the potential role of the UN in the economic and social field. The developing countries do not want to see the role of the UN reduced to the mentioned priorities. They would like to assign to the UN also an important role in the global dialogue and policy formulation on the macroeconomic issues. Thereby the UN should form a counterbalance to the international financial institutions (World Bank, International Monetary Fund). As the voting rights in these institutions are determined mainly by the economic strength of a country, the developing countries do not see themselves represented adequately there.


Refugees and Humanitarian Assistance Franz Josef

Homann-Herimberg

Literature: Holborn, The International Refugee Organization, A Specialized Agency of the United Nations, its History and Work 1956; Holborn, Refugees: A Problem of our Time, The Work of the United Nations High Commissioner for Refugees, 1951-1972 (2 vols, 1975); UNHCR, The State of the World's Refugees 1993 The Challenge of Protection, editorial team directed by Hall (1993); UNHCR, The State of the World's Refugees 1995 - in search of solutions, editorial team directed by Hall (1995); UNHCR, The State of the World's Refugees 1997-98 - A Humanitarian Agenda, editorial team directed by Morris/Crisp (1997); United Nations, Humanitarian Report 1997, Department of Humanitarian Affairs (DHA/97/72); UN-SG: Renewing the United Nations - A Program for Reform (Doc. A/51/950).

A. Refugees As the Office of the United Nations High Commissioner for Refugees (UNHCR) started its activities in 1951 it could draw on the experience of a wide range of international efforts on behalf of refugees extending back to the end of World War I. These efforts included the appointment by the League of Nations of a High Commissioner for Russian Refugees. Both World Wars had produced large displacement of population in Europe as well as great political changes. The political tensions and intolerance, which resulted from these conflicts, caused widespread persecution or fear of persecution. Thus, many persons fled from their native States to seek asylum in adjacent countries. These persons were in great need of material assistance, but still more critical was the potential economic and social disruption in the receiving States caused by the sudden inflow of refugees. Moreover, in the international context the presence of the refugees often exacerbated ideological tensions between States. The refugee problem caused by the World Wars was not only fraught with human need but also with dangerous national and international tensions that had not been present in previous migrations caused by political events. The resulting situations were clearly beyond the capacity of individual States to solve, and gave rise to international efforts of ever-increasing scope. More than 50 years after the end of World War II, the world refugee situation has reached proportions never experienced before. The only consolation is that it was possible to solve most of the problems which had arisen during this period, with the exception of the problem of Palestine refugees.

Franz Cede and Lilly Sucharipa-Behrmann (eds.), The United Nations - Law and Practice, 231 -244 ©2001 KluwerLaw International. Printed in the Netherlands.

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1. The period after World War II a) The United Nations Relief and Rehabilitation Administration - UNRRA (1943-1947) At the outbreak of World War II, there were more than one million refugees in various parts of Europe and Asia. By 1942, and in the following years, it was estimated that the figure had grown to over 21 million homeless and displaced persons scattered throughout Europe. The Western allies tried to cope with this heavy burden, but soon realized that such a complex problem needed concerted international efforts. Thus UNRRA was created by 44 nations in November 1943 as an operational and temporary UN Specialized Agency. UNRRA, which preceded the establishment of the United Nations Organization as such, became the first UN Agency to deal in a comprehensive way with refugees and displaced persons in the liberated countries of Western Europe (with the exception of those occupied by Soviet Russia). The tasks of UNRRA included the administration of camps, and the care and maintenance for refugees and displaced persons. Over 60 NGOs participated in the implementation of assistance programs. During the early post-war period those responsible for questions related to displaced persons, namely the allied military authorities and UNRRA accorded high priority to the task of repatriation of refugees and displaced persons. At the end of the UNRRA operations in July 1947, some 7 million displaced persons had returned through the repatriation operations organized by UNRRA to their countries of origin. However, 1.6 million displaced persons could not be repatriated as they refused to return home. b) The International Refugee Organization - IRO (1947-1952) The solution to the refugee problem and the creation of a comprehensive refugee organization figured prominently during the discussions in the Preparatory Commission of the UN in San Francisco in May 1945. At the first session of the GA of the UN, fundamental differences of opinion between Western States on the one hand, and the Soviet Union and its satellite States on the other, became apparent. In February 1946 the GA passed a resolution in which it confirmed the urgency of the refugee question and entrusted ECOSOC with a thorough examination of the issue by a Special Committee. This Special Committee produced a draft of a constitution for an international refugee organization. During the deliberations very differing views revealed again the confrontation between the positions of Western States and the negative socialist viewpoint and culminated in the issue of the definition of the term refugee. In

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December 1946 the GA approved the Constitution by a majority vote creating thereby the International Refugee Organization (IRO) as a non-permanent specialized agency of the UN to deal with all categories of refugees which had been the concern of other organizations up until that time. IRO started its activities in July 1947 for a period of three years, eventually extended to four years. It assumed functions and responsibilities of UNRRA in regard to refugees and also those of the until then existing Inter-Governmental Committee for Refugees. The number of refugees falling within the responsibility of IRO was estimated at 1.6 million. For the IRO issues of migration and the reception of new settlers in immigration countries was a priority. In the period from 1 July 1947 to 31 December 1950, over one million of refugees were resettled in third countries and over 73,000 refugees could be repatriated to their countries of origin. Although 30 States had signed the constitution of IRO, only 18 became members. The members had to assume the total cost of some US$ 400 million. The IRO began the phasing out of its operations as early as mid-1949; however, a termination of its programs had to be eventually extended to 30 September 1951. This was partly due to the fact that although the GA had already in December 1949 decided to create as of 1 January 1951 the Office of the High Commissioner for Refugees. The GA only adopted its statute on 14 December 1950. 2. The present United Nations work for refugees a) The United Nations Relief and Works Agency for Palestine Refugees in the Near East - UNRWA UNRWA was established through a resolution of the GAin 1949 to carry out relief work for Palestine refugees in cooperation with governments in the region. Its mandate has been periodically renewed, most recently until 30 June 2002. The Agency defines Palestine refugees as persons and their descendants who had been living two years prior to the outbreak of hostilities in 1948 in Palestine, and who had lost their homes and livelihood through the conflict. UNRWA has no mandate for protecting the Palestine refugees, as this responsibility has been left to the host countries. Its humanitarian role has been reinforced by recurrent conflicts in the Middle East, such as the civil war in Lebanon, the Palestinian uprising {Intifada) and the Gulf War, the latter leading to the displacement of over 300,000 Palestinians into the UNRWA area of operations. UNRWA initially provided emergency relief to some 750,000 Palestine refugees. At present UNRWA is providing essential health, education, relief and social services to some 3.6 million registered Palestine refugees. Of this number, some 1.2 million

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live in 59 refugee camps served by the Agency in Jordan, Lebanon, the Syrian Arab Republic, the Gaza Strip and the West Bank. UNRWA's operations are supervised and supported by its Headquarters in Gaza and in Amman, Jordan. The Commissioner-General is appointed by the UN Secretary-General and reports to the GA. An Advisory Commission comprised of Belgium, Egypt, France, Japan, Jordan, Lebanon, Syria, Turkey, the United Kingdom and the United States assists him. In addition to approximately 120 international staff, UNRWAemploys 22,000 local staff, mainly Palestine refugees. The Agency's 650 elementary and preparatory schools accommodated some 460,000 pupils in the school year 1998/99, while the eight UNRWA vocational training centers had over 4,000 students. UNRWA's network of 122 health centers handles 7.2 million patient visits. Environmental health services were provided to the refugees living in the 59 camps. Until the end of 1998 the income-generation program has provided more than 16,700 loans totaling US$ 25.6 million to Palestinian-owned enterprises. In 1993, following the establishment of the Palestinian Authority in the West Bank and Gaza Strip and in support of the Peace Process, the Agency started its "Peace Implementation Program" (PIP) to upgrade infrastructure, create employment and improve living conditions in refugee communities throughout its area of operations. The Program has received by end of 1998 some US$ 222 million. UNRWA depends almost entirely on voluntary contributions for its operations. The Agency's regular budget in 1999 amounted to US$ 322 million. Over 80% of this budget were devoted to programs for education, health and relief and social services. b) The Office of the United Nations High Commissioner for Refugees (UNHCR) aa) Establishment of UNHCR On the recommendation of the Human Rights Commission in 1948, ECOSOC requested the UN-SG to prepare a study on aspects of statelessness including suggestions for the improvement of the status of stateless persons. This led to the adoption of a resolution whereby States were requested to continue to grant, also after the liquidation of the IRO, the required protection to refugees. At the same time, the GA requested the UN-SG to submit in consultation with the Advisory Committee on Administrative and Budgetary Questions (ACABQ) recommendations for the creation of either an office of the High Commissioner reporting to the GA or the establishment of an organizational unit within the UN Secretariat. The GA opted for an Office, and UNHCR started its activities on 1 January 1951. Since then, the Office is responsible for the protection of refugees and for the


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search for durable solutions to their problems. The preferred solution is voluntary repatriation, in which refugees return home and resume their lives in their country of origin. Created as a temporary institution for a period of three years, its mandate was renewed for consecutive periods of five years. The last renewal of the mandate took place in 1997 for the period 1999 to 2003. The GA upon nomination by the UN-SG elects the High Commissioner for Refugees. Since the creation of the Organization there have been eight High Commissioners. In 1954 and 1981, UNHCR was awarded the Nobel Peace Prize. On 1 January 1991, Sadako Ogata (Japan) became High Commissioner for Refugees. She has been re-elected twice and v/ill remain in office until the end of the year 2000. UNHCR reports annually to the GA. An Executive Committee composed of 57 States approves the assistance programs, advises the High Commissioner on issues pertaining to the protection of refugees and scrutinizes financial and administrative aspects. bb) The mandate of the Office of the UNHCR UNHCR's principle task is the protection of refugees and the search for durable solutions. In her entirely non-political work the High Commissioner is guided by strictly humanitarian and social considerations. The UNHCR Statute, itself a GA Resolution, defines as a refugee any person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his nationality and is unable or, owing to such fear or for reasons other than for personal convenience, is unwilling to avail himself of the protection of that country. Persons of concern are for UNHCR all those meeting the definition of the statute. In addition, also returnees in accordance with a 1985 resolution of the GA, and displaced persons for whom the UN requested UNHCR assistance. Refugees returning to their countries of origin are being assisted by UNHCR with their reintegration. While the original refugee definition still forms the core of UNHCR's mandate, additional criteria have been progressively introduced to accommodate the evolving nature of refugee flows in recent decades. UNHCR frequently provides protection and assistance to groups of refugees fleeing combinations of persecution, conflict and massive human rights violations. The number of internally displaced persons is estimated to be beyond 30 million and have requirements that resemble those of refugees. The GA and the UN-SG have turned to UNHCR for protection and assistance concerning specific groups

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of internally displaced persons. Beginning in the mid-1990s UNHCR has granted humanitarian assistance to internally displaced persons in Azerbaijan, Bosnia and Herzegovina, in the Chechen Region of the Russian Federation, in Georgia, Rwanda, Somalia, Sri Lanka, Tajikistan and in Kosovo. cc) Tasks for international protection The 1951 Convention Relating to the Status of Refugees was drawn up in parallel with the creation of UNHCR. It is a legally binding treaty and a milestone in international refugee law. It contains a general definition of the term "refugee" that no longer ties it to specific national groups: a refugee is a person who is outside his or her former home country owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and who is unable or unwilling to avail himself or herself of the protection of that country, or to return there for fear of persecution. The Convention also clearly establishes the principle of non-refoulement according to which no person may be returned against his or her will to a territory where he or she may be exposed to persecution. It sets standards for the treatment of refugees, including their legal status, employment and welfare. The scope of the Convention however was confined to people who had become refugees as a result of events that took place before 1 January 1951 and signatory States were given the option of limiting its geographical application to Europe. In contrast, UNHCR was given a general competence to deal with refugee problems wherever they might arise, irrespective of date or location, as long as those concerned had a well-founded fear of persecution. Subsequent decades demonstrated that movements of refugees were by no means a phenomenon confined to World War II and its immediate aftermath. As new refugee groups emerged, it became increasingly necessary to adapt the Convention in order to make it applicable to them. In 1967, a Protocol was introduced which abolished the dateline, making the Convention truly universal. By July 1999, 137 States had signed both the 1951 Convention and/or the 1967 Protocol. The Organization of African Unity (OAU) decided as early as 1963 that a regional refugee treaty was needed, in order to take account of special characteristics of the situation in Africa. The resulting 1969 "OAU Convention Governing Specific Aspects of Refugee Problems in Africa" expanded the definition of a refugee to the people who were compelled to leave their country not only as a result of persecution but also "owing" to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his or her country of origin or nationality. In 1984, the Central American nations, joined by Mexico and Panama, adopted


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a declaration that built upon the OAU definition, adding to it the additional criterion of "massive violation of Human Rights". Although not formally binding, the Cartagena Declaration on Refugees has become the basis of refugee policy in the region, and has been incorporated into the national legislation of a number of States. The extended refugee definitions of the OAU Convention and the Cartagena Declaration have brought international protection to large numbers of people who may not be covered by the 1951 Convention but who are forced to move for a complex range of reasons including persecution, widespread human rights abuses, armed conflict and generalized violence. The extended definitions have been of particular importance in situations of mass influx of refugees where it is generally impractical to examine individual claims for refugee status. The broadening of the refugee definition in response to regional considerations has provided much needed flexibility to international action on behalf of people obliged to flee their countries. However, it has also introduced a new complexity in that a person recognized as a refugee in one country or region may not necessarily be considered one elsewhere. In order to promote and safeguard the rights of refugees, UNHCR attempts, inter alia, to encourage Governments to adhere and to respect relevant international and regional conventions, to promote the granting of asylum to refugees and to ensure that refugees are treated in accordance with recognized international standards. The protection of refugees remains UNHCR's raison d'etre. Protection lies at the heart of the organization's efforts to find lasting solutions to the plight of refugees and provides the context in which it carries out its relief activities. dd) The World Refugee Situation In early 1999 the total number of persons who have been forced to leave their homes, excluding Palestine refugees, was estimated to be over 50 million (including some 30 million internally displaced persons). The number of those falling in the competence of UNHCR in 1999 amounted to 21.5 million, a slight reduction compared to the figures of the previous years. Of those 11.5 million were refugees and the rest in a refugee like situation including 1.9 million returnees and 6.7 million internally displaced persons. Of the persons falling in the competence of UNHCR 6.3 million were in Africa, 7.5 million in Asia, 6.2 million in Europe and the rest in Latin and North America and in Oceania. In 1998 major voluntary repatriation movements took place to Liberia (236,000), Sierra Leone (195,000), Bosnia-Herzogovina (130,000), Afghanistan (107,000) and to the Democratic Republic of the Congo, Somalia, Mali, Croatia,

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Burundi, Angola (totaling 220,000). The countries of origin of the largest groups of refugees are Afghanistan, Iraq, Somalia, Burundi, Liberia, Bosnia-Herzegovina, Sudan, Croatia, and Sierra Leone. The considerable population displacement inside Kosovo in 1998 was followed by a refugee exodus to Albania, Macedonia and Montenegro, which peaked with some 760,000 refugees in April-May 1999. Shortly after the FRY's acceptance of a peace plan and the entry of UN peace-keepers in early June the fastest refugee return in history took place. ee) Assistance programs The majority of the world's refugee population is in least developed countries, which cannot be expected to bear the costs of considerable assistance operations. UNHCR assists in consultation with the competent authorities with the provision of food, shelter, and health services as well as with social and income-generating projects. Over the years UNHCR developed four program categories: • Emergency assistance; • Care and maintenance programs for refugees expecting the possibility for voluntary return; • Integration assistance in the respective asylum country; • Resettlement in third countries of refugees who cannot return to their countries of origin or who are confronted with specific protection problems in the country of first asylum. Assistance programs are implemented either by governments, organizations and institutions, NGOs (over 420) and recently also with military and peace-keeping operations. UNHCR promotes the active involvement and participation of refugees in the implementation of assistance programs. More than ever are the prevention and solution of refugee problems dependent on an effective coordination between the various organizations and institutions. In some situations, this was possible to accomplish by appointing one organization to function as lead agency, with responsibility for the coordination of a specific operation, as was the case for UNHCR in the Former Yugoslavia. ff) Funding of programs With the exception of a very modest contribution from the UN Regular Budget, which covers only part of the administrative costs, the organization is totally dependent on voluntary contributions. The budgets of the years 1998 and 1999 amounted to respectively US$ 881 million and US$ 1.17 billion (revised to cover the Kosovo emergency). The


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assistance programs are covered from two budgets: the General Programs for the current protection and assistance activities and for the special programs for the emergency operations and for programs for voluntary repatriation. As of July 1999 UNHCR operated 274 duty stations in 120 countries including the Headquarters in Geneva (Switzerland). The total number of personnel at the same date was 5,155 persons of whom 83% were working in the field.

B. Humanitarian Assistance 1. The role of the United Nations Since it first coordinated humanitarian relief operations in Europe following the devastation and massive displacement of people after World War II, the UN has been relied on by the international community to respond to natural and manmade disasters that are beyond the capacity of national authorities. Today the organization is a major provider of emergency relief and longer-term assistance, including food, shelter, medical supplies and logistical support, primarily through its operational agencies and a catalyst for action by governments and other relief agencies. Providing immediate assistance to victims of an emergency is the first, essential step. However, humanitarian action by the UN system goes beyond relief, to involve long-term rehabilitation and development. Natural disasters such as storms, floods, landslides and earthquakes, killed some 53,000 people in 1998 and caused over US$ 93 billion in economic losses. In the period 1990 to 1998 the economic losses from natural disasters were estimated at over US$ 450 billion. Some 90% of this total occurred in developing countries, a striking indicator of the degree to which poverty, population pressures and environmental degradation magnifies the scale of suffering and destruction. A central component of UN policy is to ensure that emergency relief contributes to recovery and longer-term development in the affected area. Economic and social development remains the best protection against disaster — whether natural or, as is increasingly the case, man-made. The UN also assists countries in incorporating disaster prevention and preparedness into their overall development plans. In an effort to raise awareness of the need for prevention and preparedness, the GA declared the 1990s as the International Decade for Natural Disaster Reduction. The Decade's objective is to reduce loss of life, economic damage and social disruption caused by natural disasters. Major themes include assessing the risk to such hazard, vulnerability and risk-assessment; early warning; disasters and sustainable development; political commitments; shared knowledge and technology transfer. The World Conference

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on Disaster Reduction (Yokohama, Japan, 1994) helped to develop new strategies to reduce the effects of disasters. At the Decade's end in 1999, the international community needs to evaluate its achievements and map a comprehensive strategy for the next century. Since the end of the Cold War, the growing number of civil conflicts and emergencies - in countries such as Afghanistan, the former Yugoslavia, Iraq, Liberia and in the Great Lakes Region of Africa, have strained the capacity of the international system to provide humanitarian assistance. The events in the Gulf Region and the Kurdish refugee crisis in 1991 demonstrated that the UN did not have the required capacity to respond to larger humanitarian crises. The United Nations Disaster Relief Office (UNDRO) was only responsible to deal with natural disaster and had no expertise for complex emergencies or other disaster and did not dispose of an effective mechanism for coordination. The GA recognized this shortcoming and in 1992 with Res. 46/182 requested the creation of the post of Emergency Relief Coordinator (ERC) under the direction of the Secretary-General and supported by a secretariat. For the strengthening of the coordination function the resolution created the Interagency Standing Committee (IASC), established a procedure for consolidated appeals and also the Central Emergency Revolving Fund (CERF). As a supporting Secretariat Unit the Department of Humanitarian Affairs (DHA) came into being in New York and in Geneva. The United Nation plays an active role in the provision of humanitarian assistance through its operational agencies; these agencies are also a catalyst for action by governments, intergovernmental humanitarian organizations and NGOs. DHA coordinated field missions by UN Agencies to assess needs; issues consolidated inter-agency appeals for funding humanitarian assistance; organizes donor meetings and follow-up arrangements; monitors the status of contributions in response to the appeals; and issues reports to keep donors and others apprised of developments. The United Nation's humanitarian assistance has to be almost exclusively financed by voluntary contributions. In 1992, the GA created a CERF of US$ 50 million. This Fund facilitates rapid humanitarian action in emergency situations until the donor community makes funds available. By mid-1999 humanitarian agencies have borrowed from the fund on 60 occasions, a total of some US$ 135 million. The humanitarian diplomacy practiced by the UN is playing an important role in gaining access for assistance to the population affected by a conflict. Violations of humanitarian principles by parties to a conflict and threats to the safety and security of relief personnel are reasons for increasing concern.


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Between 1992 and 1998, 110 consolidated appeals for victims in 28 countries were launched; against a total of US$ 20.3 billion requested from donors, US$ 14.4 billion have been contributed. 2. The Office for the Coordination of Humanitarian Affairs (OCHA) OCHA was established in 1998 pursuant to the Secretary-General's Program for Reform and assumed the responsibilities of the Department of Humanitarian Affairs (DHA). It coordinates the assistance measures in natural disasters, in complex humanitarian emergencies (large-scale humanitarian crises in complicated political and military environments, often in the context of internal conflicts) and promotes measures for the prevention of disasters and for disaster preparedness. OCHA cooperates closely with the operational programs of the UN, with governments, with regional organizations and with NGOs. A Memorandum of Understanding with the United Nations Environment Program (UNEP) covers aspects of environmental emergencies. The head of OCHA has dual responsibilities as Under-Secretary-General for Humanitarian Affairs in the UN Secretariat, and as Emergency Relief Coordinator. As Under Secretary-General (USG) for Humanitarian Affairs is the principle adviser to the Secretary-General on humanitarian issues. He provides a link between the humanitarian community and the intergovernmental bodies of the UN (the GA and the SC), as well as the political, security, developmental and human rights elements of the UN system. This is achieved partly through the USG's role as Convener of the Executive Committee for Humanitarian Affairs (ECHA), as well as through his chairmanship of the IASC. The ECHA, one of the four Committees created by the SecretaryGeneral within the framework of the UN reform, provides a forum for the humanitarian community and the political and peace-keeping departments of the UN Secretariat to share perspectives on human crises and issues. As Emergency Relief Coordinator (ERC) he is responsible for coordination among the humanitarian entities. He achieves this through his chairmanship of the Inter-Agency Standing Committee (IASC), which brings together all major humanitarian actors, both within and outside the UN system. In addition to the heads of the UN operational agencies, the Representative of the Secretary-General on Internally Displaced Persons, representatives of humanitarian organizations outside the UN system, such as the International Organization for Migration, the International Committee of the Red Cross, the International Federation of the Red Cross and Red Crescent Societies and other NGOs participate in the IASC. The IASC established system-wide priorities for specific emergencies and supports activities for increased national capacity for assistance. Other aspects of emergency situations

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such as assistance measures for internally displaced persons (persons displaced by disasters or by humanitarian crises within their frontiers), actions in connection with landmines, and with the de-mobilization of combatants and with strengthening security arrangements for staff in the field are subjects for discussion. Part of OCHA's policy role is to ensure that those humanitarian issues that fall between gaps in existing mandates of agencies are addressed. The Emergency Relief Coordinator is the focal point for the inter-agency coordination of humanitarian assistance and protection to internally displaced persons (IDPs), for which no single agency has a comprehensive mandate. The Representative of the SecretaryGeneral on IDPs has developed the Guiding Principles on Internal Displacement and OCHA promotes their operational application. For humanitarian assistance to be successful the best local organization for coordination is essential, both in order to ensure the timely and coherent systemwide response but also to avoid overlapping and waste. In a developing country the task of coordination of the assistance of the UN system at country level lies with the Resident Coordinator or with an especially nominated humanitarian coordinator, both reporting directly to the ERC. In many developing natural disaster prone countries disaster management teams were put together. Their task is to plan already prior a disaster the required assistance measures. OCHA operates a 24-hour duty system for immediate response and for dissemination of information to permit rapid response to emergency situations. For natural disasters it has established with participation of donor governments the United Nations Disaster Assessment and Coordination teams which can be immediately deployed to affected countries to help the authorities to determine relief requirements and to coordinate the response. The office may also call upon civil and military emergency teams and expertise. The warehouses in Pisa, Italy, and Dili, East Timor stock relief items ready for airlift. 3. The operational agencies of the United Nations • During the past decade the United Nations Children's Fund (UNICEF) has sought to meet the needs of some 1 million children, orphaned or separated from their parents by war or civil strife, as well as those of 12 million children made homeless. UNICEF also aims to assist development by supporting activities such as immunization and education in refugee camps. Special programs assist traumatized children and help unaccompanied children reunite with parents or extended families. • UNICEF has pioneered the concept of "children as zones of peace" and created "days of tranquillity" and "corridors of peace" in Africa, Asia, Europe and Central America. UNICEF has drawn world attention to the plight of children


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in war. Since 1987 some 2 million children have been killed, 6 million have been seriously injured or disabled, and thousands have fought in armed conflict. The Secretary-General appointed in 1997 a Special Representative for Children in Armed Conflict in order to strengthen the protection of children in armed conflict situations. • The United Nations Development Program (UNDP) is the agency responsible for operational activities for natural disaster mitigation, prevention and preparedness. When emergencies and natural disasters occur, UNDP Resident Representatives coordinate relief and rehabilitation efforts at the national level. On many occasions, Governments call on UNDP to help design rehabilitation programs and to direct donor aid. UNDP helps to ensure that recovery activities are integrated with relief operations. Humanitarian aid and development support are thus linked, bringing the earliest possible resumption of sustainable development to a troubled area. UNDP rehabilitation projects aim to alleviate poverty, often the root cause of civil strife. To ensure that the resources provided will have the greatest possible impact, each project is carried out in consultation with local and national government officials. This community-based approach has helped provide urgent but lasting relief for hundreds of thousands of victims of war or civil upheaval. • The United Nations High Commissioner for Refugees (UNHCR): see under A.2.b. • The World Food Program (WFP) provides relief to millions of people who are the victims of disaster. It is responsible for mobilizing food and funds for transport for all large- scale refugee-feeding operations managed by UNHCR. Every day WFP emergency response teams have to rush supplies to millions of the victims of war, ethnic conflict and political strife or flood, drought or crop failure. Such crises, especially man-made disasters, consume most of WFP resources. A decade ago two out of three tons of the food aid provided by WFP was used to help people become self-reliant. Today, unfortunately, the picture is reversed, with 70% of WFP resources going to victims of conflict. In 1998 WFP, assisted 14.9 million internally displaced, 4.2 million refugees and 10 million victims of earthquakes, floods and droughts. • The Food and Agricultural Organization of the United Nations (FAO) is often called on to help farmers re-establish production following floods, outbreaks of livestock disease and similar emergencies. The Special Relief Operations Service of FAO coordinates the disaster relief assistance. The FAO Global Information and Early Warning System issues monthly reports on the world food situation. Special alerts identify, for governments and relief

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organizations, countries threatened by food shortages. • Within the UN system the World Health Organization (WHO) coordinates the international response to emergencies in the area of health. WHO provides expert advice on epidemiological surveillance, control of communicable diseases, public health information and health emergency training. Its emergency activities include the provision of emergency drugs and supplies, fielding of emergency assessment missions and technical support. In emergency preparedness, WHO's main objective is to strengthen the capacity of Member States to reduce the adverse health consequences of emergencies. 4. Respect for humanitarian principles and advocacy of humanitarian

issues

The trend in today's environment regarding the erosion of respect for international humanitarian law is preoccupying. In contemporary conflicts, over 90 percent of the victims are innocent civilians, and also humanitarian relief workers are increasingly subjected to violence. There is a growing recognition that the actions of the international community can influence the extent to which combatants comply with humanitarian principles. Yet, there is not a clear understanding of how international aid strategies can be designed so that they also promote compliance with humanitarian principles. One of the main focuses of OCHA's policy function is, together with others and particularly the International Committee of the Red Cross, to stimulate greater respect for, and compliance with, humanitarian principles. The advocacy of humanitarian concerns has been recognized as an important activity of the humanitarian community. Its main objective is to give voice to victims and ensure that humanitarian issues and concerns are taken into account in relevant forums (political, peace-keeping, developmental, human rights and humanitarian). Recent years have shown increasing disregard for fundamental humanitarian principles, serious violation of international humanitarian law, and threats to the safety and protection of civilians and relief personnel. OCHA acts as a humanitarian advocate, promoting greater respect for humanitarian norms and principles, as well as drawing attention to specific humanitarian issues. These include access to affected populations, the humanitarian impact of sanctions, the plight of IDP's, anti-personnel landmines and the humanitarian impact of the unchecked proliferation of small arms.

Population Issues at the United Nations Irene Freudenschufi-Reichl

Literature: World Commission on Environment and Development, Our Common Future (1987); Gore, Earth in the Balance (1992); Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, vol. I, Resolutions Adopted by the Conference; Bertrand, La Strategic Suicidaire de l'Occident (1993); Lutz (ed.), The Future Population of the World. Earthscan Publications (1994); Mazur (ed.), Beyond the Numbers. A Reader on Population, Consumption, and the Environment (1994); Johnson, The Politics of Population: Cairo 1994 (1995); Commission on Global Governance, Our Global Neighborhood (1995); UN, World Population Prospects: The 1996 Revision; Brown et al (ed.), State of the World 1997. A Worldwatch Institute Report on Progress Toward a Sustainable Society (1997); UN/UNDP Human Development Report 1999.

Introduction Whenever the major global problems of our days are discussed, demographic issues are given great weight. Demographic trends have far-reaching implications for social and economic development; complex correlations exist between demographic trends and the carrying capacity of ecological systems, poverty eradication, distribution of global goods, food security and urbanization. Population questions are integral to the concept of human security. Reproductivity and mortality determine the development of the world's population. A number of political, socio-economic and cultural/religious factors influence reproductivity and mortality in their turn. This chapter will also address migration - i.e. migratory movements of sizeable populations either within the boundaries of a State or across State boundaries. (For the refugee problematique see supra Homann-Herimberg.)

1. The Demographic Situation at the End of the 20th Century It took humanity until the beginning of the 19th century to reach a population of one billion. By 1960, that total had reached three billions. Today some six billion people live on the planet. Every day around 390,000 babies are born, and 125,000 people die (Population Reference Bureau, World Population Data Sheet, 1996). This means that the world's population grows by about 80 million each year - or about a billion every 12 years. In most industrialized nations the population is constant or grows slowly, either


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through a positive fertility rate, or through immigration, or through a combination of both factors. More than 90% of the global population growth occurs in the developing countries. In the middle of the next century nine out of ten people will live in the Third World. The growth rates vary: 1.4% in Asia, 1.6% in Latin America and the Caribbean, and 2.6% in Africa. Population density also varies greatly: in Asia there are currently 108 people per square kilometer, in Latin America and the Caribbean 23, in Africa 24 and in Northern America 14. It goes without saying that comparisons of population density have also to take into account that natural resources on which human life is dependent - such as fresh water, fertile soil and forests - are distributed very unevenly. Lutz presents five scenarios for the future development of the world's population until the year 2050. These scenarios range from 8 billion people (postulating high mortality and low fertility), 10 billion people (postulating low mortality and low fertility) to 12 billion people (postulating high mortality and high fertility) up to 15 billion people (postulating low mortality and high fertility). The middle projection of around 11 billion is the most probable one for Lutz. Within this range of possible developments, population policy can unfold in its attempts to influence demographic developments in a desirable way. What is desirable is of course determined to a very high degree by ideology and religion.

2. Population Issues on the International Agenda a) UN Institutions concerned with population issues Already in 1946, ECOSOC Res. 3 (HI) founded the UN "Population Commission" as a subsidiary organ of ECOSOC. The Commission had the mandate to advise ECOSOC on developments in the field of population, including migration, and the implications for economic and social affairs as well as on population policies. This Commission was renamed "Commission on Population and Development" in the wake of the Conference on Population and Development in Cairo. In 1946 also the Population Division was established in the UN Secretariat. Its main task was to develop demographic methodologies and to initiate systematic population counts in developing countries. Periodically global population statistics and scenarios are elaborated. GA Res. 2211(XXI) invites the organizations of the UN system to provide assistance in population matters. Pursuant to this resolution the UN-SG created the UN Trust Fund for Population Activities; in 1969 it was entrusted to the Administrator of UNDP and renamed "UN Fund for Population Activities" (UNFPA). UNFPA's mandate encompasses operational activities in the field of population policy and family planning in developing countries and awareness raising

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in industrialized and developing countries. UNFPA is also expected to advance and coordinate system-wide population programs. Every year UNFPA publishes a World Population Report. Its main theme in 1996 was "Changing World: Population, Development and the Future of Cities", in 1997 "The Right to Choose: Reproductive Rights and Reproductive Health", and in 1999: "Time for Decisions". b) International population politics In the 1960s population growth was increasingly perceived as a relevant political phenomenon. In 1969 some 30 developing countries already had national family planning programs as an integral element of their development strategies. In 1969 too, the then president of the World Bank, McNamara, gave a widely noted lecture at the University of Notre Dame (USA) on the necessity of finding rational and humane solutions to the population question. The "Independent Commission for International Cooperation in the Service of Economic Development" identified the rapid population growth of some countries as one of the main causes for economic difficulties. c) First international conferences on population issues Technical conferences on population issues had already taken place in 1954 in Rome and 1965 in Belgrade. The first governmental conference, however, took place only in 1974 in Bucharest. It adopted the World Population Plan of Action (Report of the United Nations World Population Conference, Bucharest, 19-30 August 1974). The Plan of Action makes no binding recommendations concerning either growth rates or the format and content of population policies. The dividing line in Bucharest was between the countries that looked upon high population growth rates as obstacles to economic development (the US) and those countries that saw population problems not as the cause but as the consequence of underdevelopment (the Communist countries and the G-77). In order to overcome underdevelopment they advocated a New International Economic Order, i.e. a fresh distribution of the goods of this earth. Bucharest took place a few years after the promulgation of the papal encyclical "Populorum Progressio" and the Holy See saw to it that its position was well known at the Conference. For the International Population Conference of Mexico 1984 the then director of the population program, Rafael Salas, defined as a goal to stabilize world population as quickly as possible. The Conference did not endorse this objective, but contributed to its propagation in public awareness. Furthermore the strong demand for family planning - which was not met by a corresponding supply - was a major theme. Most developing countries agreed in Mexico that rapid population growth could constitute an obstacle to the development of a country. The decisions

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of Mexico City are contained in the "Report of the International Conference on Population, Mexico City, 6-14 August 1984." In the years following the Mexico Conference the Brundtland Report "Our Common Future" moved population issues again into the public eye. This time the angle was the connection between environment, population and development issues. The Conference of the United Nations on Environment and Development (UNCED, Rio de Janeiro, 1992) was unable, however, to deal comprehensively with population issues even though the final document, Agenda 21, also contains demographic statements. In its principle 8 the Rio Declaration underlines that not only the absolute population numbers are in question, but also per-capitaconsumption of natural resources. Rio recommended that wasteful production and consumption patterns should be altered to enable sustainable development and higher standards of living for all people. d) The International Conference on Population and Development in Cairo (1994) 1989 ECOSOC decided in Res. 1989/91 to convene an international conference on population questions in the year 1994. ECOSOC Res. 1991/93 established the following goals for the "International Conference on Population and Development" (ICPD): • to review the implementation of the recommendations of the World Population Plan of Action of Bucharest and to enhance its implementation; • to raise awareness concerning population and development issues; • to make recommendations for intensified endeavors on population issues on the national, regional and global levels for the next decade; • to mobilize resources for the implementation of the conference decisions. In preparation for ICPD six experts meetings were held on topics deemed of particular interest for the next decade • on population, environment and development (New York, 20-24 Jan. 1992); • on population policies and programs (Cairo, 12-16 April 1992); • on population and women (Gaborone, 22-26 June 1992); • on family planning, health and family welfare (Bangalore, 26-29 October 1992); • on population growth and demographic structures (Paris, 16-20 November 1992); • on population distribution and migration (Santa Cruz, 18-23 January 1993).


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In addition to the expert meetings a number of Round Tables and regional preparatory meetings were held which all elaborated numerous recommendations. Migration issues and the demographic transition were the main topics of the preparatory meeting of the ECE region. Since many of the ECE Member States are donor-countries it was significant that the ECE meeting urged inter alia an enhanced international cooperation on population issues and underlined the responsibility of industrialized countries "to increase the quantity and quality of their assistance, particularly in the field of population" (Rec. 51). The ECE-conference also endorsed the UNFPA estimates that some 300 million women have no access to family planning services even though they desire it, and urged enhanced endeavors in this area (Rec. 53). In the course of the preparatory process the Secretary-General of the Conference and Executive Director of UNFPA Nafis Sadik (Pakistan) urged that the Conference should determine clear objectives for the population policies of the next 20 years. During the last meeting of the preparatory committee it became apparent that the question of improving women's social status would become central in Cairo. In the months leading up to the Cairo Conference in September 1994 the resistance from the Vatican and from fundamentalist Islamic parties and their respective allies mounted. The draft final document was criticized as immoral, sexually liberal, hostile to families and pro-abortion. e) The results of the Cairo Conference The conferences of Bucharest and Mexico dealt with demographic measures in the narrow sense of the word; Cairo put demographic issues in the context of sustainable development policies. The program of action (UN Doc. A/Conf. 171/13) recommends to the international community to realize quantitative and qualitative objectives in education, especially of girls, reduction of infant and maternal mortality and general access to family planning and reproductive health services. Three core areas stand out in the 100-page document: • the enhancement of the status of women; • the introduction of the concept of reproductive health which far transcends the traditional concept of family planning; • the estimates of the financial means required implementing these recommendations. Debates in Cairo were marked by high emotionality. It is to be pointed out, however, that there was no North-South confrontation, even concerning the financial implications of the recommendations. Within the group of industrialized countries there were divergences between the more liberal States (in particular the USA,

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Canada, the Netherlands and the Scandinavian countries) on the one hand and the more conservative States on the other. Within the developing countries the Asian and Caribbean countries had difficulties with the attitude of Islamic countries and of several Latin-American countries which supported the position of the Vatican. The dividing line in all regions was between the secular and the fundamentalist States. The most controversial question in Cairo - which contributed to making the conference the UN event with the highest media-coverage ever - was abortion. ICPD states unequivocally that abortion is not a means of family planning and acknowledges that abortion is illegal in a number of countries. At the same time ICPD urges governments to deal with the health consequences of "unsafe" abortions in a humane and professional way. New ground was also broken with the concepts of reproductive health and sexual health and the corresponding rights. The notions of reproductive and sexual health are wider than family planning. They affirm a satisfactory sexual life and physical, emotional and social well being in all aspects pertaining to reproduction. The Holy See submitted a detailed declaration, enumerating which parts of the final document it supports and against which it has reservations. A total of 19 States - Latin American, Islamic and Malta - made interpretative statements. Throughout the preparatory process and at the Conference itself the developing countries were the driving force. It appeared that most countries of the Third World are very aware today that measures have to be taken to moderate rapid population growth. In no phase of the negotiations did the developing countries accuse the industrialized countries of demographic imperialism. In many areas the US mediated successfully. Given its political significance and the relevance of the final document ICPD stands on a par with the conferences of Rio de Janeiro on Environment and Development and of Vienna on Human Rights. It also contributed significantly to give substance to the concept of "sustainable human development". Sustainable human development puts the society in general and the development process in particular in the service of the human person. It entails heightened emphasis on social development (primary education, basic health services, improvement of the status of women, eradication of poverty), respect for human rights, ecological compatibility, democratic participation and equity within and among societies. f) The follow-up to the Cairo Conference At its 49th session the General Assembly adopted the report of ICDPby consensus and decided that the follow-up to the Cairo Conference should happen in a threetiered way through the Commission on Population and Development, ECOSOC


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and the GA. The World Social Summit, Copenhagen, March 1995, and the Fourth World Conference on Women, Beijing September 1995, took up the major concerns of ICDP and reinforced its recommendations. The World Food Summit in November 1996 in Rome deepened the understanding of the relationship between population issues and food security and reiterated the appeal to stabilize world population as soon as possible. In the OECD context donor countries integrated quantitative goals in the areas of primary education, infant and maternal mortality and access to services for reproductive health and family planning into the DAC document "Shaping the 21st Century: The Contribution of Development Cooperation." The Special Session of the GA for the five-year review of ICPD in July 1999 confirmed the fundamental principles underlying the Cairo agenda. As newly recognized areas of great concern, HIV/AIDS, maternal mortality and issues of adolescent reproductive and sexual health and rights were specially highlighted. Throughout the review process, the EU emphasized the concept of an integrated approach to population issues. This means both integration of population policy into the wider context of social policy, and, more specifically, integration of reproductive and social health services in primary health care.

3. International Migration International migration is generally recognized as an important element of development. It constitutes a relevant economic factor. According to Mazur the transfer payments of migrants into their countries of origin amounted to approximately US$ 61 billion in 1989 (that is more than all OECD-ODA of US$ 51 billion). Global international migration increased from 75 million in 1965 to 120 million in 1999. Out of these 120 million, industrialized countries account for 54 million and developing countries for 66 million. Migration is much more of a South-South question than a North-South issue. In developed regions practically the entire population growth resulted from immigration. For the years 1990-1995 for example, some 90% of population growth in Europe resulted from immigration. In 1990, the percentage of migrants was 4.5% in industrialized countries and 1.6% in developing countries. The highest percentage of migrants registered in 1990 were in Africa south of the Sahara (2.8%), Western Asia (10.9%), the Caribbean (2.9%), Northern America (8.6%), Europe (6.1%) and Australia and New Zealand (17.8%). In spite of the demonstrable economic advantages that sending and receiving States as well as the individual migrant can usually derive from migration, migration

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is often regarded as having a detrimental effect and migrants are treated as undesirable. Xenophobia arises easily when the cultural "otherness" of the migrants is perceived. Human rights abuses are widespread. Female migrants usually are at the very bottom of the pecking order of sending and receiving societies - and therefore particularly vulnerable to abuses. 4. Reasons for International Migration Addressing the root causes had been asked for time and again in debates on migration. A 1997 UN report on "International Migration and Development" (St/ ESA/SER.A/164) shows however, that there is very little clarity on the underlying causes of migration: • existing statistics, for instance, contradict the assumption that population growth (leading to an excess of manpower that cannot be absorbed by local labor markets) leads to increased migration; • environmental degradation is hardly ever the cause for international migration; • poverty is often seen as one of the root causes for migration; the poorest of the poor however are not the ones who migrate; rather it is the better educated and economically more potent middle class that generates most migrants; • human rights abuses seem to lead to international migration only in those extreme cases where life and bodily integrity are in danger, but not if "only" economic and political rights are violated.

5. International Cooperation on International Migration International migration has been on the international agenda for decades. The World Population Plan of Action of Bucharest focussed in particular on legal migrants ("documented migrants"), in particular migrant workers. With regard to "undocumented migrants" governments were asked to respect human rights and fundamental freedoms, to protect migrants from exploitation and to combat the smuggling of migrants. In the years leading up to the Mexico Conference, the stream of permanent immigrants stabilized, and receiving countries developed a clear preference for—temporary — migrant workers. Stagnation of world economic growth, a freeze on the hiring of migrant workers in Western Europe, quotas for permanent immigration and increasing limitations for foreign workers in Western Asia and other regions led to an increase in illegal migration. Refugee flows also increased significantly. Accordingly the International Population conference of Mexico City discussed various forms of migration, without breaking too much new ground on recommendations.


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During the second half of the 1980s and the early 1990s, demographic and labor market imbalances, disparities in economic development and the fall of the Iron Curtain increased migratory pressures. The break-up of Yugoslavia, the Gulf crisis of 1990 and the civil war in Rwanda lead to a dramatic swelling of international migration flows. Migration questions became politically sensitive to the highest degree. Economic slow-down and mounting unemployment made industrialized countries increasingly hostile towards migrants. This socio-political context is reflected in the ICPD-recommendations concerning migration. ICPD put migration in the context of sustainable development. It emphasized national sovereignty and the importance of full respect for human rights. A group of developing countries led by Turkey tried to get provisions on a right to family unification into the final document. Existing human rights instruments do not grant such a right. The compromise adopted at the end urges all governments, in particular those of receiving countries, to recognize the vital importance of family reunification and to promote the integration of family reunification into national legislation in order to protect the family unity of documented migrants. The Beijing Platform for Action of the Fourth World Conference on Women contains a number of recommendations aimed at enhancing the lot of migrant women.

6. The International Organization for Migration (IOM) The International Organization for Migration goes back to the Migration Conference in Brussels in 1951. It operates on the assumption that humane and wellorganized migration is of benefit to migrants and society. IOM is an independent international organization with currently 59 members and 48 observer States headquartered in Geneva. IOM operates country offices in more than 70 countries. IOM: • supports States operationally with the handling of migratory flows; • endeavors to promote understanding for migration issues; • enhances social and economic development through migration; • works for the respect of human dignity and wellbeing of migrants. IOM has long had observer status with the General Assembly of the UN. In 1996 the GA adopted Res. 51/148, entitled "Cooperation between the UN and the IOM". Subsequently cooperation agreements between IOM and UNDP, UNFPA and UNHCR were concluded and cooperation in the field was intensified.

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7. The Role of Non-Governmental Organizations NGOs play a leading role in population policies; they lobby their governments to act nationally and internationally, they promote awareness and public education and they raise considerable funds for operational activities. The International Planned Parenthood Federation is the roof organization of national societies for family planning. It is headquartered in London, with more than 140 national members. The Washington-based Population Action International sees as its mandate "to promote action by the world's governments to slow population growth, which undermines the capacity of nations to address urgent social economic and environmental problems that stand in the way of better lives for individuals and families". Population Communication International, to give another example, specializes on mobilizing the potential of modern and traditional means of communication to create awareness e.g. concerning new role models for women or delayed marriage. The international women's movement in toto was and continues to be one of the most important driving forces in the Cairo process.

8. Evaluation and Conclusion The UN's work on population issues can be considered successful: • through the UN's demographic statistics, analyses and scenarios the phenomenon of rapid population growth was brought to the attention of political decision-makers and national action was stimulated; • three global conferences (Bucharest, Mexico and Cairo) have contributed to an international consensus on the importance of demographic decisions and generated support for sustainable population development and voluntary family planning; there is agreement today that the best way of promoting stabilization of the world population is not to set demographic targets, but to improve social development (through primary education for all, decrease in infant and maternal mortality, enhancement of the status of women); • UNFPA has given access to millions of women to safe, effective contraception and has thus enabled them to exercise their human right to determine freely the size of their family and the spacing of their births; • the UN system's elaboration of the concept of "sustainable human development" (which has a strong demographic component) has contributed greatly to defining development not just through economic criteria, but to focus on enabling the individual to exercise life-choices.


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Further efforts in international population policies are imperative. In 1999 the birth of the 6,000,000,000th human person was celebrated. Population growth will continue and probably pass the 10 billion mark in 2050. Already now 600 million people are unemployed and a much larger number is under-employed. Eight hundred million people are malnourished, 1 billion are illiterate. At least 1.3 billion people live in absolute poverty. All other things remaining equal, all these problems will be further aggravated by the continued growth of world population. Enhanced efforts are also needed with a view to reaching a more equitable distribution of the world's goods. All trends go from bad to worse as documented by various editions of the UNDP's Human Development Report: the richest get richer and the poorest poorer. Debates on changing the - wasteful - consumption and production patterns of industrial countries were widespread in the aftermath of the Conference on Environment and Development in Rio, but they have not led to significant change. Change is necessary however in industrialized countries. If the industrialized countries don't demonstrate a commitment to develop a sustainable life-style, it will not be possible to require it of developing countries. If - in their legitimate desire to develop - developing countries continue to aim for the levels of consumption current in the industrialized countries, the ecological carrying capacity of the earth and the resilience of social systems will be put under incredible pressure, even if the global population were to stabilize according to the lowest variant.


Measures to Counter Drugs and Crime Ferdinand Mayrhofer-Grunbiihel/Christian Ebner

Literature: The United Nations and Drug Abuse Control, United Nations (1992); Crime Prevention and Criminal Justice, Newsletter Nos. 20/21. United Nations (June 1993); UNDCP: Facing the Challenge, United Nations (1996); Clark, The United Nations Crime Prevention and Criminal Justice Program. Formulation of Standards and Efforts at Their Implementation; The United Nations and Crime Prevention: Seeking Security and Justice for All, United Nations (1996); World Drug Report, United Nations International Drug Control Program (1997); International Review of Criminal Policy, Nos. 47 and 48, 1996-1997, United Nations (1997); Special Session of the General Assembly Devoted to Countering the World Drug Problem Together: 8-10 June 1998, United Nations (1998); International Cooperation in Combating Transnational Crime. Commission on Crime Prevention and Criminal Justice, Seventh Session (E/CN.15/1998/5); Global Programme against Money-Laundering: Two Years in Action, 19971998; and Activity Report 1999 (Addendum), United Nations Office for Drug Control and Crime Prevention (1999); Global Programme against Corruption: An outline for action, Centre for International Crime Prevention and United Nations Interregional Crime and Justice Research Institute (1999); Global Programme against Trafficking in Human Beings: An outline for action, Centre for International Crime Prevention and United Nations Interregional Crime and Justice Research Institute (1999); Global Studies on Organized Crime, Centre for International Crime Prevention and United Nations Interregional Crime and Justice Research Institute (1999); Global Report on Crime and Justice. United Nations Office for Drug Control and Crime Prevention (1999); Report on the International Narcotics Control Board for 1999, INCB (2000); UPDATE. United Nations Office for Drug Control and Crime Prevention, Newsletter, January 2000; website of the International Narcotics Control Board http://www.incb.org; website of the United Nations Office for Drug Control and Crime Prevention http://www.odccp.org; website of the United Nations Crime and Justice Information Network http://www.uncjin.org; website of the United Nations International Crime and Justice Research Institute (UNICRI) http://www.unicri.it.

Introduction Developments in the early 1990s - the fall of the Berlin Wall and the opening of frontiers in Europe - fundamentally changed the political landscape and opened up undreamed-of possibilities for international trade. However, in today's world of globalization, of increasingly permeable frontiers, and a previously unknown freedom of movement of people and revolutionary communication technologies, new threats have developed for national security, economic development and democracy. Organized international crime and drug trafficking, as well as the related criminal practices of money laundering and corruption often pose a dramatic challenge to law and order and to economic and political institutions.

Franz Cede and Lilly Sucharipa-Behrmann (eds.), The United Nations - Law and Practice, 257-273 I KluwerLaw International. Printed in the Netherlands.

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At the same time, modern lifestyle has changed traditional paradigms and has revolutionized societies. The often traditional use of drugs by indigenous cultures such as the chewing of coca leaves by Andean peoples, for instance, has been alienated from its origins and has led to misuses in its various forms of cocaine abuse. New synthetic drugs are increasingly being consumed by youngsters as "party drugs". Misuse of both licit and illicit products by adolescents accompany new arising "sub-cultures". To maximize physical results in competitions, "doping" practices have entered the world of sports. For all these and many more reasons the United Nations has increased its attention and valuable work in the area of drug control, crime prevention and criminal justice. In his mid-1997 reform proposals, UN-SG Kofi Annan took the new situation into account. The consolidation of Vienna-based departments - the United Nations International Drug Control Program (UNDCP) and the Crime Prevention and Criminal Justice Division (CPCJD), the predecessor of today's Center for International Crime Prevention (CICP) - resulted in the creation of the Office for Drug Control and Crime Prevention (ODCCP) as a central control point for the efforts of the United Nations to counter drug abuse, crime, and terrorism. The incorporation of a terrorism branch within the new system was a particular innovation as this function had been removed from the Legal Committee of the GA. Both programs, drug control and crime prevention and criminal justice are based on Chapter IX of the United Nations Charter (International Economic and Social Cooperation).

1. The Drug Control Program a) From the Opium Commission to the International Drug Control Program International cooperation in the field of drug control dates back to the beginning of the 20th century. International conventions adopted between 1912 and 1988 constitute the legal basis for the existing drug control system: a system based on national responsibilities of States, subject, however, to the provisions of international agreements. The international conventions also entail an obligation for States to cooperate with other States as well as the international drug control organs. The International Opium Convention prepared by the Opium Commission was signed in The Hague in 1912. This first international instrument in the drug field regulates trade with drugs for licit medical use. Under the auspices of the League of Nations, three international conventions were prepared, and were signed in 1925,1931 and 1936, respectively. The functions envisaged therein for the League of Nations were transferred in 1946 to the United Nations Commission on Narcotic

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Drugs (CND), and in the initial years a number of protocols to the existing conventions were agreed upon. The Single Convention on Narcotic Drugs of 1961 was adopted with the aim of consolidating these various instruments and still plays an important part as one of today's three important drug conventions. The Single Convention of 1961 also set up the International Narcotics Control Board (INCB) as the successor of organs dating from 1925. The Board controls trafficking in drugs for licit use and monitors the compliance by States with the international drug conventions. The status of the INCB was substantially strengthened by the 1972 Protocol amending the Single Convention. That protocol also includes the first references in conventions to international technical assistance and cooperation in countering drug abuse. While the 1961 Single Convention on Narcotic Drugs prohibits, inter alia, the consumption for non-medical purposes of opium, cocaine, heroin and cannabis, the Convention on Psychotropic Substances of 1971 extends the control system to synthetic drugs such as amphetamines. The latter Convention also strengthened the role of the CND and assigned specific tasks to the World Health Organization (WHO). At the end of the 1970s, owing to the world-wide increase in drug abuse and drug-related crime, it became clear that a more comprehensive approach to tackling the drug problem had become necessary. In 1981, an International Drug Abuse Control Strategy was adopted; in 1987, the International Conference on Drug Abuse and Illicit Trafficking prepared the 1988 Drugs Convention; in 1990, a Global Program of Action was endorsed and paved the way for the establishment of the United Nations International Drug Control Program (UNDCP). The most recent international conference at the global level was a Special Session of the United Nations General Assembly (UNGASS) on the world drug situation, in June 1998. In the legal sphere, a new dimension was introduced in 1988 by the United Nations "Vienna" Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. This third important drug-control convention specifically targets illicit trafficking in drugs. According to the 1988 Convention, action against drug traffickers is to be directed to the points where it affects them most — their financial profits (money laundering) and freedom of movement between States (extradition and legal assistance). In addition, the Convention opened new possibilities for the international cooperation among law enforcement agencies, for instance, by specifically addressing certain investigation techniques such as the police-organized prosecution of clandestine drug shipments ("controlled deliveries").

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b) The main institutions of the United Nations drug control system The United Nations International Drug Control Program was set up in 1991 in order to strengthen the effectiveness of the United Nations Secretariat in the drug area. It united the then three existing departments, the Division of Narcotic Drugs, the United Nations Fund for Drug Abuse Control and the International Narcotics Control Board secretariat. UNDCP, which is based in Vienna, was entrusted with exclusive responsibility for coordinating all United Nations drug control activities. It is headed by an Executive Director, who is also a full member of the Administrative Committee on Coordination (ACC), the highest level coordination organ of the United Nations system. Through that body, efficiency in cooperation with all related organizations of the system can be maximized. Those organizations include in particular the International Labor Organization (ILO), WHO, the United Nations Educational, Scientific and Cultural Organization (UNESCO), the Food and Agriculture Organization (FAO) and the United Nations Industrial Development Organization (UNIDO), as well the United Nations Development Program (UNDP), the United Nations Children's Fund (UNICEF), the World Food Program (WFP) and the World Bank. Other regional and world organizations also work together with UNDCP. Among the latter are the Customs Cooperation Council and the International Criminal Police Organization (Interpol). In recent years, UNDCP has also strengthened its cooperation activities with drug-related regional bodies such as the European Monitoring Center for Drugs and Drug Addiction (EMCDDA), or the Inter American Drug Abuse Control Commission (CICAD) of the Organization of American States. The governing and policy-making body of UNDCP is the United Nations Commission on Narcotic Drugs (CND), which has existed since 1946 as one of the six functional commissions of the United Nations Economic and Social Council (ECOSOC). The Commission on Narcotic Drugs is the most important political organ for drug control in the United Nations system and deals with all drug-related issues. The above-mentioned conventions of 1961, 1971 and 1988 have assigned important functions to the Commission. For example, it monitors the implementation of those Conventions, recommends necessary amendments and can prepare new international legal instruments. On the recommendation of WHO, the Commission, for instance, may decide which additional chemical substances are to be placed under international control. The 53 members of the Commission are elected by ECOSOC. The CND meets annually and is responsible for adopting UNDCP's biennial budget. At its 41st session in 1998, the CND also served as the preparatory body for the Special Session. The International Narcotics Control Board (INCB), a quasi-judicial control organ that was established by the Single Convention on Narcotic Drugs of 1961

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ensures a balanced relationship between the licit production of and licit demand for drugs and their chemical precursors (for medical and scientific purposes). To that end, the INCB administers a comprehensive statistical control system for the availability of narcotic drugs on one hand and a mandatory system for estimating demand on the other hand. Thus, the Board monitors the licit international drug traffic. The information and statistics made available by States Parties or requested from other Governments enable the INCB to ensure that drugs available in each country for lawful purposes can be accounted for at all main stages of manufacture and trade. The INCB consists of 13 members elected by ECOSOC in their personal capacity. Ten members are nominated by Member States, and three members are nominated by WHO. The Board members carry out their duties in complete independence The INCB investigates all aspects of licit drug trade and also, in cooperation with UNDCP, monitors the observance of the Conventions by Governments. The Board undertakes visits and sends missions to Member States to study the drug situation. If States do not comply with their obligations as set out in the international drug conventions, the Board attempts to solve the issue in direct talks with Governments. In its annual report, the INCB gives an assessment of the world-wide drug control situation and formulates recommendations to Governments. c) The comprehensive and integrated approach of the drug control system Realizing that the drug problem can be contained only by a comprehensive and simultaneous approach directed at all its aspects, the 1981 International Drug Abuse Control Strategy called for international cooperation in a series of important areas. The main idea was to address the drug problem in macro-economic terms and to address both its supply and its demand side at the same time. This approach was further developed by the 1987 International Conference on Drug Abuse and Illicit Trafficking and was finally set forth in the 1990 Global Program of Action, at a special session of the GA. At the same time, it was decided to set up UNDCP and to proclaim the United Nations Decade against Drug Abuse (1991-2000). Since 1987, 26 June has also been observed as International Day against Drug Abuse and Illicit Trafficking. The Global Program of Action, which was not legally binding, provided, inter alia, for measures in the area of prevention and reduction of drug abuse, treatment, rehabilitation and social reintegration of drug-addicts, suppression of illicit trafficking, as well as strengthening of judicial and legal systems.

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d) The Twentieth United Nations Special Session of the General Assembly on the World Drug Problem (UNGASS) An international milestone regarding drug countering efforts in the outgoing 20th century was another "Special Session of the United Nations General Assembly to consider the fight against the illicit production, sale, demand, traffic and distribution of narcotic drugs and psychotropic substances and related activities and specific measures to strengthen international cooperation in addressing the problem of drug abuse and illicit trafficking" (UNGASS), held in June 1998, in New York. In this largest UN Drug Summit which was held to mark the 10th anniversary of the 198 8 Convention, 23 Heads of States and dozens of governmental and political leaders as well as international drug experts engaged in new commitments by adopting a series of important declarations, action plans and other documents with concrete measures to be taken by individual States and the international community in the field of drug control. In a general Political Declaration demand reduction activities were granted the same importance and weight as measures to counter the supply of drugs ("balanced approach") and outdated myths of "Northern" consumer and "Southern" producer countries of drugs were banned from the political reality ("shared responsibilities"). States also agreed to set up or strengthen subregional and national legislation and to improve overall drug strategies. At the same time, a strong political will was expressed to achieve measurable results within specific target dates set five or ten years after UNGASS, with a view to eliminate or significantly reduce all illicit coca bushes, opium poppy cultivation and cannabis plants. A Declaration on the Guiding Principles of Drug Demand Reduction (which was in the aftermath implemented by its own Action Plan) calls on States to balance drug strategies with regards to supply and demand reduction measures in a way that they reinforce each other ("integrative approach"). The guiding principles serve furthermore as minimum standards for States in their demand reduction policies. They comprise prevention measures and measures that reduce the adverse consequence of drug abuse; measures targeted at the community level, which are also sensitive to culture and gender; and activities that contribute to a sustainable environment. Another important document, which was adopted by the Special Session, was an Action Plan on International Cooperation on the Eradication of Illicit Drug Crops and on Alternative Development. The Action plan not only offers an internationally recognized definition of alternative development, but also urges States to implement a variety of concrete measures including the need for national policies, financial assistance, crops monitoring and information sharing.


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Additional concrete measures adopted at UNGASS to enhance international cooperation involve an Action Plan against Illicit Manufacture, Trafficking and Abuse of Amphetamine-Type Stimulants and their Precursors, Measures to Prevent the Illicit Manufacture, Import, Export, Trafficking, Distribution and Diversion of Precursors Used in the Illicit Manufacture of Narcotic Drugs and Psychotropic Substances, Measures to Promote Judicial Cooperation, and Measures geared at countering money laundering. UNGASS also gave new impetus to UNDCP by entrusting it with important responsibilities in assisting States to implement the agreed measures, monitor their results, and report them to the CND. In the follow up to UNGASS, the 42nd Session of the CND adopted an increased (voluntary) budget for the Program to meet the financial requirements for the new tasks ahead. At the practical level, the CND also elaborated, through a series of intersessional meetings, detailed and comprehensive questionnaires which assist States in their new reporting obligations that arose from the Special Session. The drug problem and in particular its socio-economical facets have also been addressed by other major global processes of the United Nations. The 1995 World Social Summit, for example (on the Summit see also Freudenschufi-Reichl and Keppler-Schlesinger), dealt with many drug related issues in its "Copenhagen Declaration" as well as in the Program of Action thus guaranteeing that issues such as social reintegration, gender-sensitive questions, and needs of special groups will continue to be addressed in a global interdisciplinary and cross-section manner. e) The project activities of the United Nations International Drug Control Program The biennial budget of UNDCP for 2000-2001 amounts to some US$ 200 million, 90% of which is raised through voluntary contributions. Hence, only a small share stems from regular United Nations sources. By far the largest part of the forecast budget (US$ 125 million), however, will be used for concrete projects in four thematic program areas. As a result of UNGASS as well as UNDCP's ongoing reforms and attempts to become an ever efficient program, those areas focus on (1) policy support, legislation and advocacy, (2) prevention and reduction of drug abuse, (3) elimination of illicit crops, and (4) suppression of illicit drug trafficking. In the fields of prevention and demand reduction, for instance, UNDCP works closely with Governments and non-governmental organizations (NGOs) to develop prevention, treatment, rehabilitation and social re-integration strategies. In that context, global knowledge of patterns of conduct and trends are of great importance. In a world-wide study under its recent Global Program to Assess the Magnitude of Drug Abuse, UNDCP collects information and data on demand, prevalence and

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the effectiveness of different prevention and rehabilitation approaches and tries to determine which strategy will be most effective in each particular case. In line with the UNGASS decisions, UNDCP helps Governments in implementing comprehensive strategies and supports information and education programs in schools, at the workplace and in local communities. In that respect it is important to emphasize that demand reduction activities are inspired by the understanding that an individual drug addict is a patient who can be cured from his or her addiction illness. In the area of supply reduction (the elimination of illicit crops and their trafficking), UNDCP's activities span from alternative development measures (the program's most elaborated tool) to the satellite monitoring of eradicated cultures to avoid that successful elimination of coca or opium poppy in one area will be replaced by new harvests in a neighboring area ("balloon effect"). Drug trafficking is one of the most lucrative stages in the illicit drug business. While one gram of cocaine may cost US$ 4 in Colombia, it may peak to a several hundred dollar market-value on the street in Europe or the United States. Enforcement measures therefore focus on the strengthening of national drug control agencies, the enforcement of borders, the building up of legal structures, as well as training activities of police, customs and investigative personnel. By far the largest part of the world production of opium poppy comes from Southwest- and Southeast-Asia (Afghanistan and Myanmar). In 1999, for instance, production of opium in Afghanistan multiplied to a 4,600 metric ton output. Coca grows traditionally along the eastern slopes of the Andean States (Bolivia, Colombia and Peru), while cannabis is planted in many countries. Through alternative development activities, UNDCP projects in the field attempt to create a sound environment for economic development and help farmers to find alternative crops and markets for their products. For instance, illicit coca plantations have been replaced by coffee, tea, palm oil, rubber and fruit trees. In doing so, UNDCP assists farmers who had been financially dependent on the cultivation of illicit crops, often the only source of family income. Through activities which are put forth in comprehensive business plans and in close cooperation with national master plans, the illicit cultivation of coca in Bolivia, for example, has reached a record low and might even be zeroed in the upcoming years. The manufacture of synthetic drugs, including the so-called "designer drugs", also exploded in the 1990s and is not a mere Western phenomenon anymore. Easily manufactured in clandestine laboratories and often affordable for the younger generation, millions of synthetic pills have entered illicit markets. Many of the chemicals used in the process have been subject to control since the adoption of the first Drug Convention as early as in 1961. However, often simple chemical procedures may alter the molecular structure of a substance thus taking it out of

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the legal scope of international or national legislation while maintaining the substance's dangerousness or even worsening it to an unknown and life-threatening "cocktail". In addition, substance abuse is not limited to the misuse of illicit products. Alcohol and tobacco addiction, the abuse of "allowed" merchandise such as inhaling glue or eating "magic mushrooms" to experience hallucinogenic effects are only a few examples of the depth of the problem. Not to mention those individuals who depend on the regular consumption of many psychotropic substances at the same time ("poly-users"). To cut off supply and to close legal loopholes by carrying out control measures through "early warning systems" on one hand, and to enhance comprehensive prevention and treatment measures that target not a single (licit or illicit) substance, but address the addiction phenomenon as a whole on the other hand, are only a few future strategies to counter a globally increasing problem. An important output of UNDCP and the INCB that is often overlooked are their numerous technical publications for the use of practitioners and scientists in the drug control field. Among them are the Bulletin on Narcotics and a series of training manuals on substance testing and laboratory methods as well as statistics, brochures and leaflets. In total, international efforts by the United Nations in addressing the drug phenomenon have shown remarkable results in the 20th century. Not only has an international legal regime reduced the availability of illicit drugs and confined the trafficking of licit narcotics to scientific and medicinal purposes, but at the same time, raised awareness through global, national and local conferences, events, and many project-oriented activities in the field. Thus, the international community has developed new and modern approaches to tackle the abuse of drugs and to counter the trafficking, money laundering and other criminal activities related to the drug phenomenon.

2. Crime Prevention a) From the first international crime congress to the establishment of the United Nations Center for International Crime Prevention (CICP) Unlike UN activities and interventions in the drug field which are primarily based on a sound international legal regime and institutions arising from that regime, multilateral cooperation to fight crime concentrated initially on international conferences which addressed rather general issues of criminal justice than operational responses to international crime. The first International Congress on the Prevention of Crime took place in London in 1872, and set up the "International Prison

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Commission" (IPC). After the establishment of the League of Nations, the Commission was renamed the "International Penal and Penitentiary Commission" (IPPC). The Commission dealt primarily with the solution of criminal justice problems, the abolition of slavery and the traffic in women and children being its central concerns. From the beginning of the 1930s, the Commission turned its attention to other subjects and adopted, for example, standardized minimum rules for the treatment of prisoners. At later stages, however, the Commission was also misused for the purposes of the Nazi regime when it endorsed the identification of race as the origin of criminal behavior. Even in the earliest years of its establishment, the United Nations turned its attention to questions of crime prevention and control, initially in the framework of the Temporary Social Commission and ECOSOC. In 1950, the GA approved plans for the transfer of competence from the IPPC to the United Nations, which set up an Ad Hoc Advisory Committee of Experts. In 1965, that body developed into the Advisory Committee of Experts on the Prevention of Crime and the Treatment of Offenders, which continuously grew over the years. In 1955, the first United Nations Congress on Crime Prevention and the Treatment of Offenders took place in Geneva, and concentrated on the treatment of prisoners and juvenile delinquency. Since then, Congresses dealing with a variety of topics have been held under the auspices of the United Nations every five years. Subsequently, the rapid development of crime and the increased occurrence of organized transnational crime led to emphasis on practical measures in the field of crime prevention and criminal justice. At the same time, there was a call for intensified technical cooperation for the benefit of the developing countries. In 1991, the GA redefined the task of the Congresses as to provide a forum for, inter alia, the exchange of experience in research, law and policy development; the identification of emerging trends and issues in relation with crime prevention and criminal justice; the provision of advice and comments to the Crime Commission on selected matters; and the submission of proposals for the Commission regarding possible subjects for the program of work. The Congresses usually have a definite general topic and are held at the invitation of Governments in various parts of the world. The Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders took place in April 2000, at CICP's headquarters in Vienna. It dealt with "Crime and Justice, meeting the challenges of the Twenty-First Century" and discussed (1) the promotion of the rule of law and the strengthening of the criminal justice system, (2) international cooperation in combating transnational crime: new challenges in the twenty-first century, and (3) offenders and victims: accountability and fairness in the justice process.


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In addition, four technical workshops focussed on corruption, computer-related crimes, women in the criminal justice system, and community involvement in crime prevention. The Congress adopted a political declaration with concrete recommendations directed to States and to the UN system. This "Vienna Declaration" will be submitted to the Millennium Session of the GA. b) The elements of the United Nations crime prevention program In 1991, the gradual change in the patterns of international crime was taken into account by the GA in a resolution on the "Creation of an effective United Nations program for crime prevention and criminal justice". Hence, the previous Committee of Experts became a United Nations Commi ssion on Crime Prevention and Criminal Justice. The Commission became thus the most important political organ of the program. Consequently, the secretariat branch was upgraded to a full Crime Prevention and Criminal Justice Division, which later evolved into the Center for International Crime Prevention (CICP). As in the drug field where the CND is the policy-making body, the strategies of the United Nations in the area of crime prevention and criminal justice are determined by the United Nations Commission on Crime Prevention and Criminal Justice (CCPCJ), one of the functional commissions of ECOSOC. The Commission consists of 40 Member States which are elected for a period of three years each, on the basis of the principle of equitable geographical distribution. CCPCJ monitors and reviews the program and mobilizes the support of Member States. The Commission is also responsible for coordinating the crime prevention activities that are carried out by other units of the United Nations system, particularly including those of interregional and regional crime prevention and criminal justice institutes. Finally, the Commission prepares the United Nations Congresses on Crime Prevention and the Treatment of Offenders. The Center for International Crime Prevention acts as the Commission's Secretariat. It is responsible for implementing the decisions of the Commission and is bound by the overall policy determined by the Commission. Being part of ODCCP, the Center works closely with UNDCP and the institutes comprising the United Nations crime prevention and criminal justice program network. In joint action, advisory activities are organized, training programs are carried out, regional seminars are held and cooperation between States and the United Nations is facilitated. The Rome-based United Nations Interregional Crime and Justice Research Institute (UNICRI) was established in 1968 as the United Nations Social Defense Research Institute (UNSDRI) to strengthen UN activities with regards to

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delinquency, especially juvenile delinquency. It is financed through the United Nations Crime Prevention and Criminal Justice Fund and is thus a part of the program. Regional institutes are associated with the program: the Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI), the Latin American Institute for the Prevention of Crime and the Treatment of Delinquency (ILANUD), the European Institute for Crime Prevention and Control, affiliated with the United Nations (Helsinki) (HEUNI), the African Institute for the Prevention of Crime and the Treatment of Offenders (UNAFRI), and other institutes in Saudi Arabia, Australia, Canada and Italy. UNICRI is financed through voluntary contributions. It is governed by a Board of Trustees, which in turn, is responsible to the CCPCJ. c) The crime prevention and criminal justice mandate and program activities In general, the program focuses its work on the identification of developments and trends in crime prevention and criminal justice as well as relevant social developments, the formulation of policy responses to such developments, the fostering of world-wide advocacy for the implementation of such measures, and the provisions of concrete technical assistance to requesting States in the implementation of action. In order to carry out this mandate in a programmatic and efficient way, CICP has developed a series of global strategies that guide its activities and provide a general framework. The most recent of the Center's global programs involve two global studies on organized crime, a global program on corruption, as well as a global program on trafficking in human beings. The Global Studies on Organized Crime consist of two parts. Part one involves a CICP study on the assessment of transnational organized crime groups and their dangerousness and trends. It spans over 5 years and will ultimately lead to a new publication series entitled "ODCCP Studies on Drugs and Crime" and "United Nations Journal on Drugs and Crime". The other part is carried out by UNICRI and involves the publication of the World Organized Crime report. The biannual report disseminates both qualitative and quantitative information on trends in organized crime and major governmental initiatives as well as a data bank. Drastic restrictions in immigration laws have opened up a lucrative source of income for organized crime, which has turned into an estimated annual US$ 5 billion business. The victims of the organized smuggling of refugees, up to four million per year world-wide, have to undergo great physical and mental distress in their search for a better life and frequently end up in conditions of near-slavery or prostitution. The 3-year Global Program against Trafficking in Human Beings focuses on the smuggling of migrants and trafficking in human beings by organized criminal


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groups. Its aim is to assess regional trends by taking into account demonstration projects in selected countries. A database of best practices and a global strategy based on the results of the study will be the expected outcome of the program, which shall be presented to a global forum in 2002. The program consists of a combination of policy-oriented research activities and specific technical cooperation. There are close links between organized crime and corruption. In many countries, the salaries of the police and civil servants are low (if indeed they are paid), and profits, say, from drug trafficking are astronomical by comparison. It is by no means a rarity to find corruption in the highest levels of the State. It undermines morale, democracy, good governance, and law and order. It swallows up resources that are urgently needed for economic development. The aim of the Global Program against Corruption is therefore to assist Member States in their efforts to curb corruption. Similar to the other global programs it consists of a research component including a global study and the installation of a database as well as a technical cooperation element to strengthen institutional capacities to prevent, detect and counter the corruption phenomenon. Money laundering is essential to the drug and other clandestine industries that launder their profits such as by trafficking in stolen automobiles and hazardous waste. Illegal arms trade and illegal trade in nuclear materials is largely in the hands of organized crime, in the same way as the traffic in women and children for sexual exploitation and traffic in human organs. So long as the criminal earnings have not been purged of the traces of crime, they represent a serious risk to criminals. Unlaundered profits point to a clear connection between the seller and the sale, and in other words between the criminal and the crime. In contrast to earlier years, money laundering has, however, become a separate branch of crime and is increasingly professionalized utilizing bank secrecy laws, financial havens and "cyberpayments". Under the guidance of ODCCP, the Global Program on Money Laundering (GPML), which was established in 1997, conducts research and provides technical assistance. In addition, it set up the United Nations Offshore Forum (UNOF) as a 1999 initiative to assist States in denying criminals access to offshore financial service markets for the purpose of laundering proceeds of crime. In a more normative way the crime prevention and criminal justice program also develops texts as United Nations guidelines and standards, United Nations declarations, or model treaties. Among the guidelines and standards are in particular the Standard Minimum Rules for the Treatment of Prisoners, the Code of Conduct for Law Enforcement Officials, the Basic Principles on the Independence of the Judiciary, and the Standard Minimum Rules for the Administration of Juvenile Justice.

The declarations of the United Nations include the Declaration on the

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Protection of All Persons from Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the Declaration of Basic Principles of Justice for Victims of Crime and the Abuse of Power, the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. A whole series of model treaties deal for example with the transfer of prisoners of other nationality, the extradition of accused persons, and mutual assistance in criminal matters. The secretariat arranges the circulation of normative texts chiefly by means of numerous publications and manuals. In this connection, the International Review of Criminal Policy deserves particular mention. The Review appears regularly and individual numbers are devoted to particular topics. Recently, the following have been at the center of attention: a Manual on the Model Treaty on Extradition and a Manual on Mutual Assistance in Criminal Matters; the United Nations Manual on the Prevention and Control of Computer-related Crime; Juvenile Justice in an International Perspective; The death penalty: A world-wide perspective. Another regular publication is the Crime Prevention and Criminal Justice Newsletter. In addition there are many research projects and studies on particular questions and practical examples, publications on seminars and technical publications, for instance on questions of terminology. From the very beginning, it has also been a task of the program to provide technical assistance to Member States in questions of crime prevention and criminal justice. This is an advisory service for policy formulation and implementation in a variety of areas such as penal law reform, decriminalization, corruption, organized crime, alternatives to imprisonment, extradition, criminal justice management, criminal justice statistics, the treatment of victims of crime, criminal investigative techniques with regard to money laundering and organized crime, training in forensic medicine, and the rehabilitation of offenders including alternatives to imprisonment. The training of officials also has a particular priority. Today, the needs of the developing countries and countries in transition are in the foreground of attention. The secretariat assigns interregional advisers whose task is to help the Member States to put the United Nations standards and guidelines into effect in the framework of national programs. The United Nations Surveys of Crime Trends and Operations of Criminal Justice Systems collect information and statistics, analyse such material, undertakes studies and various research projects. The most recent (i.e. sixth) survey takes into account information from over 100 countries in various regions and deals, for example, with trends in violent crime or the situation in prisons. The surveys cover in each case developments over five years and have recently dealt in particular with trends in transborder crime, particularly organized crime. Regional trend analyses are made by the United Nations institutes in the various regions. The


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findings of the survey are reflected in the Global Report on Crime and Justice. A new development is the United Nations Crime and Justice Information Network (UNCJIN), which has had a firm place in the Internet for some time. Its chief task is to strengthen the clearing-house role of the program. It offers its participants statistics on trends in criminal justice, information on training facilities and a calendar of international criminal justice events. d) Transnational organized crime and the responses by the United Nations Law breaking takes many forms, almost all of which harm an individual, several persons or society as a whole. However, in recent years, crime, specifically organized international crime, is also increasingly being perceived as a danger to the essential aims of the State, such as democratic or economic development, and even as a danger to the emergence of nations and statehood. In addition, the costs of fighting organized international crime have exploded. It is therefore no small wonder that organized international crime has become one of the central concerns of United Nations' work in this area. Generally, Governments are on the defensive against organized crime. National legislation lags behind and cannot adequately or effectively limit transnational connections. The States have insufficient resources. By means of modern technology ("computer crime"), crimes can be committed within minutes. Investigation is extremely complex and can occupy the authorities for months. Criminal organizations do not need to be very scrupulous. The scope of action of the authorities is often limited by consideration of human rights and fundamental freedoms (phone tapping, computer searches, etc.), and by lawful movement of persons and goods, etc. In developing countries and States with economies in transition, the authorities often still have little experience of the new market economy mechanisms, which crime uses skillfully for its nefarious purposes. In 1994, a World Ministerial Conference on Organized Transnational Crime held in Naples, was a decisive step forward and adopted the "Naples Declaration", to improve international cooperation in the fight against organized transnational crime despite differences in crime codes and criminal justice practices. The Conference also decided on a Global Action Plan containing concrete measures on the fight against transnational organized crime. In 1996, the GA requested CCPCJ to consider, as a matter of priority, the question of the elaboration of an international convention against organized transnational crime. Following the recommendations of CCPCJ, the GA decided, in 1997, to establish an intersessional open-ended intergovernmental group of experts of the Commission, for the purpose of elaborating a draft of such a convention. In 1998, a meeting of that group took place in Warsaw and concluded, inter alia, that there was broad consensus on the

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desirability of an international convention. In mid-1998, a meeting of the "Friends of the Chair" in Rome and several informal preparatory meetings held in Vienna and in Buenos Aires served as two additional preparatory forums to pave the way for a negotiation process that finally started officially in January, 2000, in Vienna. By its Res. 53/111 of 9 December 1998 on transnational organized crime, the GA established an open-ended intergovernmental Ad Hoc Committee to elaborate an international convention against transnational organized crime and to elaborate three additional legal instruments (protocols) against trafficking in human beings, especially women and children, illegal trafficking and transporting of migrants, and combating illicit manufacturing of and trafficking in firearms, their parts and components and ammunition. By March 2000, the Committee had held 8 Sessions in Vienna to negotiate these four comprehensive legal instruments. Upon adoption and ratification, the Convention will promote international cooperation to prevent and combat more effectively transnational organized crime by obligating States Parties to criminalize certain criminal offenses, to introduce specific counter money laundering and anti-corruption measures, by facilitating cooperation on extradition and mutual legal assistance, and by introducing rules on special and joint investigations, victims and witness protection, prevention, training and technical assistance. The additional Protocol against the Smuggling of Migrants by Land, Air and Sea will establish the smuggling of migrants as a criminal offense under the respective laws of the States Parties. It will also facilitate cooperation among those countries to prevent, investigate and prosecute the international smuggling of migrants. The purpose of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children will be to prevent and combat trafficking in human beings, with a particular emphasis on women and children. At the same time, the instrument will facilitate cooperation among the concerned authorities. Similarly, the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition will also promote the cooperation and exchange of information among States in its field of application and will prevent and combat the illicit manufacturing of and trafficking in firearms and certain weapons and ammunition. It is the GA's objective to finalize all four documents by the end of 2000 so that they can be adopted at the Millennium Assembly. In addition, the Ad Hoc Committee recommended that the issue of corruption was so vital that it should be dealt with by its own legal instrument to be developed after the finalization of the Convention. In the long run, the manufacturing of and trafficking in explosives by criminal groups, not being part of the mandate of the Firearms Protocol, might also evoke a


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legal response by the United Nations thus maintaining the joint international efforts in finding effective and global tools to fight the scourge of transnational organized crime. In order to prevent and counter effectively the negative effects of organized crime on society the work of the United Nations in this field will continue to be essential.


Non-Governmental Organizations (NGOs) and the United Nations Susanne Keppler-Schlesinger

Literature: Martens, Dabeisein ist noch nicht alles, Vereinte Nationen 5 (1993) 168; Commission on Global Governance, Our Global Neighbourhood, 1995; Edwards, Die Heifer des Nordens am Scheideweg, der Uberblick, 4(1995), 86; Weiss/Gordenker, NGOs, the UN and Global Governance, 1996; Willets (ed.), The Conscience of the World, 1996; Duner, The Fight for Greater NGO Participation in the UN, in Security Dialogue, SAGE Publ., 1997, Vol 28(3), 301; UNA-USA, A Global Agenda - Issues before the General Assembly of the United Nations, yearly editions.

In the last 20 years, the acronym "NGO" has become an important term in the context of international diplomacy. It represents the global "civil society" in its manifold appearances. The family of NGOs embraces micro-organizations with limited means acting at the grassroots level as well as international umbrella organizations registering thousands of members and networking at the global level. NGOs are united by, inter alia, the following common features: their membership is voluntary and consists of non-State actors; NGOs facilitate the dialogue between citizens and governments; they operate on a non-profit basis; their basic resources are derived mainly from contributions of their national affiliates or from individual members. Over the last 50 years, NGOs have been cooperating with governments at the national, regional and international levels. Since the end of the "Cold War", this partnership has deepened. The relationship of NGOs to the United Nations, which is an inter-governmental organization, has undergone the same trend: encounters, discussions and exchanges of experiences between and among governmental delegates, representatives of the UN and members of environmental lobbies and human rights groups or activists pushing for global disarmament have become an inherent part of the daily work at the UN. Experiences and contributions of NGOs are included into almost all relevant areas of the inter-governmental decision making processes. There is, however, no standard rule for the interaction between UN Member States and the heterogeneous world of NGOs. The willingness of the international community to cooperate with NGOs on issues of common concern varies according to the degree of the political sensitivity of the subject matter. On the one end of the spectrum we find a limited number of governments which squarely block decisions


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to further open the UN to NGOs. On the other end, we find States, which welcome and foster the cooperation with NGOs for the benefit of all parties concerned. The interaction between the UN and the "civil society" - which at times declares itself as the "conscience of the world" - has been an element of the ongoing reform debate at the UN and has fuelled countless debates. 1. Background The industrialized democracies of the northern hemisphere provided fertile ground for the development of non-governmental interest groups. Today's NGOs emanate from civil movements which originated in the early 19th century: in England and North America, numerous societies and clubs lent their support to the abolition of slavery, e.g. the "Anti-slavery International Society for the Protection of Human Rights", which was founded in 1839 in London, counted 1,800 members in 40 countries. Religious groups, missions, charitable institutions and academic organizations, political and parliamentary groups as well as the early labor unions and cooperatives paved the way for the future world of NGOs. After the first wave of decolonization in the 20th century, a great number of private development organizations took up their work in the countries of the South. In the 1970s and early 1980s, international environmental groups mobilized, for the first time, the "green conscience" of the industrialized nations. After the end of the "Cold War" and the opening of the former Communist countries of Eastern and Central Europe, the NGO community further widened its scope of activities. To give an example: it was due to the unrelenting lobbying of the "International Campaign to Ban Landmines" that the "Convention on the Prohibition of the Use, Production, Stockpiling and Transfer of Anti-personnel Mines and on their Destruction" was finalized and eventually entered into force on 1 March 1999. The commitment of this NGO was even honored by the Nobel Prize. Also the tireless advocacy of NGOs greatly contributed to the successful conclusion of the Rome Statute of the International Criminal Court.

2. NGOs and the United Nations - Legal and Institutional Basis Art. 71 of the Charter of the UN establishes the basis for the official relations between the UN and the NGOs: "The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned." It is the

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prerogative of UN Member States to grant consultative status to NGOs. It was at the insistence of NGOs that this moderate clause allowing for the involvement of NGOs in the activities of the UN was included in the Charter. The institutional framework for consultations is limited to ECOSOC and its subsidiary bodies. This explains why the legal scope for consultations between governments and NGOs in the UN, in a strict sense, is limited to economic and social issues. In 1948, there were 41 NGOs associated with ECOSOC. Today, more than 1,700 institutions are listed as NGOs in consultative status with ECOSOC (UN document E/1999/INF/5, dated 4 November 1999). The following summary highlights the major legal provisions and institutional mechanisms, which define the privileges and obligations NGOs enjoy and respect in their cooperation with the UN: ECOSOC Res. 1296 (XLIV), dated 23 May 1968, contains the first detailed rules regarding the granting of ECOSOC consultative status, recognizing that arrangements for consultation with NGOs provide an important means of furthering the purposes and principles of the UN. In 1993, following the massive participation of NGOs in the UN World Conferences and Summits, the need for a fundamental revision of these regulations became obvious. A working group of the UN was set up in order to accomplish this demanding task. However, this exercise turned out to be more controversial than originally foreseen and the working group was not in a position to come up with results at the planned target date of 1995, the 50th anniversary of the UN. The question was solved in the following year: A "package deal" comprises ECOSOC Res. 1996/31 and ECOSOC decision 1996/297. ECOSOC Res. 1996/31 on the "Consultative relationship between the UN and NGOs" stipulates the rules for cooperation with NGOs in the framework of ECOSOC, its subsidiary bodies, the UN World Conferences and their Preparatory Committees. This resolution is still valid and constitutes the bedrock for most forms of interaction between NGOs and the UN. Part I of the resolution refers to the establishment of consultative relationships with national, sub-regional, regional or international NGOs. National organizations may only be admitted after consultation with the Member State concerned. The aims and purposes of the requesting organizations should be in conformity with the spirit, purposes and principles of the Charter of the UN and the organization should support the work of the UN. The organization should be of a recognized standing with the particular field of its competence and should have a democratically adopted constitution. A governmental entity or intergovernmental agreement should not establish the organization. Any financial contribution or other support from a government to the organization has to be openly declared and must not interfere with the independence of the organization. Thefinancialsources of the organization have to be openly declared in the course of the screening process.

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NGOs from developing countries and countries with economies in transition are still under-represented in the UN. Consequently, the NGO Committee of ECOSOC, in considering applications for consultative status, is explicitly encouraged to ensure participation of NGOs from all regions, and particularly from developing countries, in order to help achieve a balanced involvement of NGOs from all areas of the world. Part II stresses again the intergovernmental character of the UN. Parts III to VI define the three categories of consultative status for NGOs as well as the forms of consultation between NGOs and the Council: Organizations that are concerned with most of the activities of the Council and whose membership is broadly representative of major segments of society in a large number of countries are being granted "general consultative status". These organizations enjoy the right to sit as observers at public meetings of the Council and its subsidiary bodies and to submit written statements. They may, within certain limitations, place items in the provisional agenda of the Council or make oral presentations. According to UN Doc. E/1999/INF/5, dated 4 November 1999, there are 111 organizations, which hold general consultative status. Among this group, there are institutions such as the "World Federation of Trade Unions", the "InterParliamentary Union" and a great number of international youth and women's NGOs. Organizations that have a special competence in only limited fields of activity covered by the Council are being granted "special consultative status" and enjoy similar rights concerning written statements. Their right to make oral presentations, however, is more restricted, than that of the NGOs referred to above. UN Doc. E/1999/INF/5, dated 4 November 1999, lists 918 organizations holding special consultative status. In this category one can find "Amnesty International", "Greenpeace", "SOS Kinderdorf International" and the "Simon Wiesenthal Center". Another important group of 672 NGOs that make occasional contributions within their area of competence to the work of the Council or which hold consultative status with other UN bodies and specialized agencies are known as "Roster NGOs". These organizations represent the most diverse and colorful constituency of the "civil society" eager to cooperate with the UN. Interest groups such as the "Gray Panthers", the "International Federation of Pedestrians" or the "International Confederation of European Beet Growers" are represented in this group. All organizations referred to above may be invited by ECOSOC to undertake studies or to prepare specific papers for the Council. Part VII of the resolution defines the participation of NGOs in international conferences convened by the UN and their preparatory processes. All NGOs in consultative status with the UN that wish to attend the relevant international


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conferences and the meetings of the preparatory bodies are automatically accredited for participation. NGOs, which do not hold consultative status with ECOSOC but wish to attend a UN conference, may apply for accreditation to the secretariat of the conference. These applications must be accompanied by information on the competence of the organization and the relevance of its activities to the work of the conference and will be evaluated by the secretariat and the UN Member States. NGOs, which pass this screening process, enjoy similar rights and have to respect similar obligations as ECOSOC NGOs. Applications of NGOs, which take part in a UN conference and which decide to file for ECOSOC status, enjoy preferential treatment in the NGO Committee in order to enable them to participate in the implementation phase of the conference. Part VIII stipulates that NGOs which do not make any positive or effective contribution to the work of the UN over a period of three years and which fail to present their quadrennial reports may be suspended or excluded from consultative status. These NGOs are entitled to reapply for consultative status not sooner than three years after the date of their exclusion. At the government level, it is the Committee on Non-Governmental Organizations (NGO Committee) of ECOSOC, which has the prerogative to prepare all relevant recommendations regarding the procedures referred to above for decision by ECOSOC. Part IX of ECOSOC Res. 1996/31 defines the functions of the NGO Committee. Since 1981, the committee comprises 19 Member States. In the context of the UN, the NGO committee has a comparatively limited membership. Since 1996, the committee meets annually at the UN headquarters in New York. It is responsible for the in-depth scrutiny of all applications of NGOs for consultative status. The NGO Committee prepares all necessary recommendations for the adoption or rejection of NGO applications as well as applications for reclassification in status and all other related issues. Discussions on a possible enlargement of the committee and a revision of its working methods were taken up in 1997 and are ongoing. Since 1996, the committee has faced a substantial increase of applications by NGOs and a commensurate increase of quadrennial reports, which cause a considerable backlog in the work of the committee. According to Part X of the resolution, the UN Secretary-General is authorized to offer to NGOs in consultative relationship, within the means at his disposal, facilities that include, inter alia, access to documentation, use of libraries and accommodation for conferences or smaller meetings. As indicated above, ECOSOC decision 1996/297 was adopted together with ECOSOC Res. 1996/31 as an essential component of a package deal. The decision

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recommends that the GA examine the question of the participation of NGOs "in all areas of the work of the UN". Intergovernmental negotiations on this ambitious suggestion were carried on until the end of 1997 and have been stalled since that time without a serious prospect of success. In the course of these discussions, the most sensitive and controversial issues which do not find consensus among governments and therefore thwart progress in the debate on access of NGOs to the work of the UN were highlighted and may be summarized as follows: • Peace and security: Access to the SC is restricted to a limited number of governments and blocked to NGOs in general. The suggestion of easing restrictions of access to the work of the SC for NGOs is firmly rejected by the overwhelming majority of UN Member States under the present circumstances. • Disarmament: Many States, in particular the nuclear powers, hold the firm view that the issue of disarmament is inseparably linked with the concept of national sovereignty. NGOs which criticize governments for their armament policies are not the most welcome guests to UN events such as the Geneva, based Conference on Disarmament. • Financial aid: The question whether or not the Bretton Woods Institutions form an integral part of the UN system has been a contentious issue for many years. It is still a matter of dispute to what extent the rules and regulations of the UN could also be extended to the international financial institutions. • Participation in the UN General Assembly: The Charter of the UN does not contain explicit references that would allow NGOs to take part in the work of the GA or its subsidiary bodies. There is a limited number of States which interpret the Charter in a conservative manner and which tend to oppose any legal development in this context. ECOSOC Res. 1297 (XLIV), dated 27 May 1968, contains the legal basis for the formal association of NGOs, which are active in the area of public information and the dissemination of information about the UN, with the UN Department of Public Information (DPI). These NGOs enable the interested public to understand better the aims and objectives of the UN and provide the UN with valuable links to people around the world. The screening process for these NGOs is carried out by a committee, which consists of members of DPI and NGO representatives. Governments do not participate in this selection process. At present, there are close to 1,600 NGOs associated with DPI. Their work includes the publication of UN activities around the world, the promotion of international years established by the GA or the participation in the annual Conference for DPI-NGOs organized by the UN Secretariat.


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Another major group of project oriented NGOs, which design and/or carry out specific projects at the local or national level, act as implementing partners in thefieldin cooperation with a number of UN programmes, funds and agencies. The legal status of association of NGOs that are implementing partners of the UN varies greatly. The major UN programmes or funds, such as UNICEF, UNDP or UNESCO, as well as the World Bank, have established specific institutional arrangements or cooperation agreements with their partner NGOs. Within the UN, the questions of an enhanced standardization of the allocation of resources to NGOs working in the field, of special accounting or reporting procedures and the need for enhanced coordination in order to reduce existing duplications, are being discussed repeatedly. The UN, however, recognize that the cooperation with small NGOs offers some valuable advantages: SmallfieldNGOs act in a comparatively independent way, operate on the basis of a lean bureaucratic structure, react in a flexible way to changing situations and are in a position to test innovative methods in thefield.(UN Doc. A/51/655 - E/1996/105 dated 5 November 1996, UN Doc. A/52/114 dated 10 April 1997). Within the UN Secretariat in New York, it is the NGO Section, which is responsible for the servicing of the meetings of the NGO Committee. The NGO Section also acts as a focal point for NGOs, which seek advice regarding their applications for ECOSOC status. The New York based NGO Liaison Office is financed by 17 UN entities and offers services and information to interested NGOs. It also maintains a comprehensive NGO databank. In the past years, the majority of the UN entities have established NGO focal points or liaison officers at headquarters level as well as in theirfieldoffices. Since 1995, the UN-SG is assisted by a Special Adviser on NGO issues responsible for the promotion of cooperation between the NGO community and the UN. Umbrella organizations such as the Conference of Non-governmental Organizations in Consultative Relationship with the UN (CONGO) facilitate collective efforts by NGOs to participate in the work of the UN. CONGO was founded in 1948 and has its headquarters in New York. It embraces more than 300 international NGOs and an even larger number of associated NGOs, which do not hold consultative status with ECOSOC. CONGO is principally concerned with the improvement of relations between NGOs and the UN. It does not take positions on substantive matters. However, it has been providing, through various special thematic committees that meet in New York, Geneva and Vienna, forums for discussion of substantive matters by its members and with members of the UN Secretariat, delegations and experts. Committees such as the "NGO Committee on Human Rights" or the "NGO Committee on the Status of Women" played an active role in the UN World Conferences.

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3. Cooperation between NGOs and Governments in the Framework of the UN a) The role of NGOs in the preparations of UN activities Most governments and the UN continuously draw on the relevant substantive as well as local expertise of NGOs: NGOs act in the field of "early warning" to prevent natural or humanitarian crises and catastrophes from erupting in a fully-fledged manner. NGOs provide research, studies and data banks which contain information that is used by interested governments for their own decision making in nearly all areas of global concern. NGOs create and stimulate interest for specific issues or problems such as the violation of human rights or environmental hazards. In numerous cases, NGOs elaborate and implement confidence-building measures, in particular measures aiming at the consolidation of peace after the ending of armed conflicts. NGO representatives lobby through personal or written interventions. In some cases NGOs provided governments with draft resolutions or conventions that later served as a basis for negotiations. b) The role of NGOs during intergovernmental

consultations

NGO representatives make use of existing formal and informal possibilities to participate in UN consultation processes. A number of UN funds and programmes as well as governments give financial support to enable NGOs from developing countries or countries with economies in transition to participate in UN conferences or related global as well as regional events. Due to the resistance of some governments, NGOs sometimes encounter obstacles that impede their active participation. Nevertheless, even under more restrictive circumstances, information about ongoing consultations are filtered to the "outside world" through UN documents, press releases or UN delegates who actively seek the advice of NGOs. The functional commissions of ECOSOC in charge with the assessment of the implementation of the outcome of the major UN World Conferences and Summits count among the most transparent UN bodies. NGOs are regularly invited to share their expertise with interested delegations in the format of specific consultation segments such as panel discussions. They also offer substantive contributions to UN documents and they make extensive use of their right to speak in the debates. Some governments include NGO representatives into their national delegations participating in UN World Conferences. In the Third Committee of the GA, NGOs active in the area of social development play a particularly important role. However, as members of national delegations, NGO representatives are expected to respect


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and follow the official lines of their respective governmental positions. c) The role of NGOs in the follow-up to UN Conferences A great number of NGOs play a particularly important role in the phase after the conclusion of negotiations of international treaties, subsequent to the main sessions of the GA or in the follow-up to UN World Conferences. They act as multiplicators and spread the word about the results of the work carried out in the UN. It is due to the commitment of NGOs that international legal standards such as the Convention on the Rights of the Child are made public and known even to citizens living in remote communities. There are NGOs, which monitor the implementation of the political guidelines governments officially subscribe to in the various UN forums. Many governments choose to involve NGOs in their activities aiming at the implementation of these guidelines. d) Examples of cooperation between NGOs and the UN Some NGOs focus on lobbying for the cause of the UN via the mass media, economic institutions, schools, universities, ministries or parliaments. It is due to their commendable work that a more comprehensive understanding of the public is achieved about the purpose and functioning of the UN. In this context, the "United Nations Association of the United States of America (UNA-USA)" may be singled out as one of the major "advocacy" - NGOs. UNAUSA publishes the reference guide "A Global Agenda - issues before the GA of the United Nations" on an annual basis. This handbook has become one of the most popular sources of information about the work of the UN used by the general public. Since the 1980s, UNA-USA has undertaken unremitting lobbying in Washington in order to convince the US government to pay its UN dues in full and on time. During the 1990s, cooperation between NGOs and the UN gained considerable momentum. A great number of NGOs acted as "motors" behind the major UN World Conferences and Summits. The following facts and figures illustrate this important development: Approximately 1,420 NGOs were accredited to the UN Conference on Environment and Development, which was held in Rio de Janeiro in 1992. 15,000 participants attended the NGO Forum, which was organized in parallel with the conference. Five years later, NGO representatives were invited, for the first time, to address a Special Session of the GA devoted to the review and assessment of the implementation of the outcome of the Rio Summit. Some 2,750 persons representing 1,550 NGOs attended the World Conference on Human Rights, which took place in Vienna in June 1993. In 1995, more than 2,300 representatives of 811 NGOs

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gathered at the World Social Summit in Copenhagen. Women's NGOs, however, were faced with a number of obstacles hindering their full participation in the Fourth World Conference on Women, held in Beijing in September 1995. Chinese authorities relegated more than 4,000 representatives of women's and feminist groups to facilities located 50 km away from the conference center. Communication between and among the representatives of NGOs and governmental delegations was greatly obstructed by these restrictive measures. To some NGO representatives, access to China was squarely denied by the host government of the conference. The final documents of the UN World Conferences and Summits of the 1990s, the political declarations and the plans for action, are clearly marked by the new and fruitful cooperation between civil society and governments, inter alia by putting the individual human person and his or her rights into the center of the work of the UN. The UN World Conferences and Summits also strengthened cooperation among NGOs leading to the creation of dynamic NGO networks, which reach across national and regional borders. The members of the international NGO community strengthened their lines of communication through the use of the new information and communication technologies and the organization and attendance of numerous NGO forums and preparatory committees. They thus actively contributed to the globalization of international relations. The UN, in order to highlight specific issues of global interest and to stimulate concerted action, heralds in "international years" such as the "International Year of Older Persons 1999" or the "International Year of Mountains 2000". The preparation and organization of these years, however, is only made possible by the efforts and activities of NGOs interested in the subject matter. The role of the UN in the celebration of the international years focuses on the coordination of national contributions and an exchange of experiences. The joint organization of international conferences or congresses, involving representatives of the UN, governments and members of civil society on an equal basis, has proven to be highly successful in recent years. In 1996, the Second World Youth Forum, organized by the Youth Section of the UN Secretariat and the Austrian Federal Youth Council, brought together more than 400 youth delegates from 150 States and all walks of life at the Vienna based UN headquarters. Their work was guided by the " UN plan of action for youth to the year 2000 and beyond", a document defining progressive youth policy adopted by the 50th session of the GA(GA Res. 50/81). NGOs operate both through voluntary members and paid staff. In recent times, the NGO community has become an attractive labor market for young academics that wish to engage in activities at the international level. Nowadays, jobs at


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international NGOs rank as attractive career choices complementing the more traditional opportunities offered by national diplomatic services and international organizations.

4. NGOs and the UN Reform Debate The contentious question of a possible opening of access for NGOs to the GA and its subsidiary organs ranks high on the agenda of the reform debate. According to the rules of procedure of the UN, NGO representatives as well as other visitors interested in the work of the UN have the right to listen to the discussions of public meetings of the GA from the various visitors galleries at the New York headquarters. However, NGO representatives do not enjoy the right to participate in the consultations of the GA on an equal footing with governmental delegates. In the daily work of the GA an increasingly pragmatic and flexible way of communication between governmental delegates and NGO representatives has been established. On special occasions such as the celebration of the "International Day of the Eradication of Slavery", the Plenary of the GA opens its doors to specific contributions by selected NGOs. The work of the Second and Third Committees of the GA, dealing with the issues of human rights, social and economic development as well as humanitarian questions, has traditionally been well attended by interested NGOs. Panel discussions as well as special NGO segments are established on a regular basis to stimulate an exchange of views and experiences between governmental delegates and other relevant experts, including NGOs. The comparatively transparent cooperation between all interested parties in the Second and Third Committees of the GA is anchored in the tight substantive relationship between these committees and ECOSOC, where a more far-reaching participation of NGOs has become the rule. NGOs that push most actively for a further opening of the GA are usually based in New York or other capitals of industrialized nations and/or represent resourceful international umbrella organizations. This is why the questions of an "equal geographical balance" as well as of the "democratic legitimacy" of the NGOs representing the interests of the global NGO community in New York are often brought up by concerned governments as well as by less fortunate NGOs from the developing world. Issues such as the legal implications of the expansion of the rights of participation for NGOs in the work of the UN, their access to UN documents, their right to speak, the possible establishment of criteria for a selection process for future "GA NGOs" and the financial aspects of the promotion of the participation of NGOs from developing countries or countries with economies in transition are being

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evaluated and discussed in most of the UN reform groups. In light of the dire financial situation of the UN, hopes for a positive outcome of discussions analyzing the financial feasibility of the above mentioned privileges and measures remain dim. However, the most serious obstacle NGOs and reform-oriented governments have to face at present is created by a limited number of "hard line" governments which squarely refuse any solution for the opening of the work of the UN to NGOs that would go beyond the provisions of the UN Charter. Another group of governments favor a rather unrealistic "package deal" that would open the UN SC, the GA and the International Financial Institution for all interested NGOs. In view of the irreconcilable positions described above, discussions of interested governments have ended in a deadlock at the end of 1998. At present, there is no serious consensus solution in sight. To end on a positive note, one should highlight the commitment of the present UN-SG, Kofi Annan, to solidify the links between his organization and representatives of the civil society and the private sector. In his report on "Renewing the United Nations - A programme for reform" (UN Doc. A/51/950 dated 14 July 1997), Kofi Annan stresses that "civil society constitutes a major and increasingly important force in international life". And it was under the reign of Kofi Annan, that the American "media tsar", Ted Turner, donated the unprecedented amount of one billion dollars to the UN. Currently, approximately US$ 30 million are being channeled annually through the "United Nations Fund for International Partnerships - Turner Fund" to UN programmes devoted to children's health, the environment, climate change and the advancement of women.

Chapter 3 The Future of the United Nations


Financing and Financial Crises Thomas Schlesinger

Literature: Rauzieres, La Crise Financiere de L'O.N.U., These present6e et publiquement soutenue devant la Faculte de Droit et des Sciences Economiques de Montpellier (1966); Goodrich/Hambro/Simons, Charter of the United Nations. Commentary and Documents (3rd ed. 1969), 148; Ohse, Die Suspension des Stimmrechts in der Generalversammlung der UNO, Vereinte Nationen, Heft 5/73, 155; Harpe, Der UN-Haushalt: Inhalt und System, Vereinte Nationen, Heft 2/80, 52; Beigbeder, La Crise Financiere de l'O.N.U. et le Groupe des 18 Perspectives de Reforme? 32 Annuaire Francais de Droit International (1986) 426; Schmidt/ Koschorreck, Commentary to Art. 17, in Simma (ed.), The Charter of the United Nations. A Commentary (1994), 293; Tomuschat, Commentary to Art. 19, in Simma (ed.), The Charter of the United Nations. A Commentary (1994), 327; Roper/Nishihara/Otunnu/Schoettle, Keeping the Peace in the Post-Cold War Era: Strengthening Multilateral Peace-keeping, in A Report to the Trilateral Commission (1993); OgataA/olcker, Financing an Effective United Nations, in A Report of the Independent Advisory Group on UN Financing (1993); Sucharipa/SucharipaBehrmann, Die Finanzkrise der Vereinten Nationen. Gibt es Chancen fur eine Losung? in Osterreichisches Jahrbuch fur Internationale Politik (1995), 1; Kanninen, Leadership and Reform The Secretary-General and the UN Financial Crisis of the Late 1980s (1995); Mttller, Planning, Budgeting and Performance Reporting in the United Nations, in de Cooker (ed.), International Administration II.8 (1995) 1; Luck, Mixed Messages - American Politics and International Organization 1919-1999 (1999).

1. Introduction The financial crisis of the United Nations is not a phenomenon of the 1990s. Since the early 1960s, unpaid contributions have repeatedly brought the Organization close to the brink of a financial collapse and have dominated its agenda. This precarious situation has lead to a systematic development of the basic fiscal law governing the Organization, triggered the establishment of numerous expert groups and constituted an enormous challenge for the UN-SG as Chief Administrative Officer. In the first year of the new millennium, Member States will have to set the course for putting the Organization on a sound financial basis. The UN requires sufficient financial resources in order to implement its everexpanding mandates. Art. 17(2) of the Charter of the UN stipulates, in a legally binding manner, the obligation of Member States to pay their assessed contributions. Unlike the Covenant of the League of Nations, however, the Charter of the UN does not specify the methodology of how to apportion the expenses of the Organization.


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The capacity of Member States to pay is the fundamental criterion for determining the scale of assessments. Yet, it is up to Member States to resolve the elements of the methodology to calculate each country's share for financing the Organization's budgets. In 1997, the General Assembly (GA) decided in its Res. 52/215 on the current scale of assessments for the regular budget to measure capacity to pay in terms of the gross national product of each Member State averaged over a six-year base period. Developing countries then receive a discount from the developed countries, which is calculated according to a complex formula. The debt-burden adjustment for countries identified for debt relief based on an actual as well as theoretical debt-service ratio, the low per capita income adjustment for countries with a per capita income (PCI) less than the world average PCI, and the ceiling for least developed countries in the amount of 0.01% give due attention to special economic and financial problems of developing countries. Finally, the GA limited the assessment rates with a ceiling of 25% and a floor of 0.001%.

2. The Financial Crisis of the 1960s Even before the first financial crisis in the early 1960s, some Member States did not fully pay their assessed contributions. The Republic of China (Taiwan), for instance, refused to pay the assessments relating to the People's Republic of China (Beijing) and was thus the largest debtor of the UN over an extended period. It was the refusal of the Soviet bloc and certain Arab States to contribute to the expenses for the First United Nations Emergency Force (UNEF I), however, that led to the first financial crisis of the United Nations. Until the establishment of UNEF I in 1956, peace-keeping activities of the Organization were financed either from the regular budget or by the parties concerned, troop contributors and voluntary contributions. Due to the unexpected and extraordinary nature of the expenses, the GA decided, for the first time, to set up a special account for peace-keeping operations in addition to the regular budget of the UN. The combined expenditures of UNEF I and the mission in the Congo (ONUC) which was established in 1960, already exceeded the regular budget. As a result, unpaid assessed contributions to these missions aggravated the financial situation: the total arrears of US$ 9.3 million in 1956 increased more then ten times by the end of 1961. In an effort to remedy this precarious situation, the GA approved a US$ 200 million bond issue. Despite Soviet resistance, the bond was offered for subscription and generated more than US$ 170 million until the end of 1965. The decision to establish the peace-keeping missions in the Middle East and in the Congo triggered a fierce legal debate. The basic question was whether the expenses of these operations were expenses of the Organization according to

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Art. 17(2). The International Court of Justice (ICJ), in its Advisory Opinion "Certain Expenses of the United Nations (Art. 17, paragraph 2, of the Charter)" affirmed in the positive and regarded the UNEFI and ONUC assessments as legally binding. (See supra Sucharipa-Behrmann.) The Advisory Opinion of the ICJ did not reverse the dire financial situation of the UN, however. Numerous Member States maintained their assertion that the UNEF I and ONUC expenses were not expenses of the Organization and thus challenged their legal obligation to pay. Further, the Soviet bloc refused to pay their share for those expenditures contained in the regular budget, which related to the bond issue. Thus, there was a notable turning point regarding the recognition of the GA's right to impose legally binding assessments. Until 1963, the Soviet Union fully paid its assessed contributions to the regular budget; thereafter, however, it applied the policy of "selective payment" of assessed contributions — a policy which is still exercised by some Member States today. As a consequence, a number of Member States, in particular the Soviet Union, were threatened by the loss of their right to vote in the GA. The Charter stipulates in its Art. 19 that a Member shall have no vote in the GA if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. Unlike the Covenant of the League of Nations, the Charter of the UN provides for a sanction for the non-payment of assessed contributions. In 1965, thirteen Member States, including the Soviet Union and France, were threatened by the application of Art. 19. Whereas the United States demanded the strict application of Art. 19, the Soviet Union and France argued that the expenses for peace-keeping operations should not be considered when applying Art. 19. They also argued that the application of Art. 19 required a majority vote in the GA. The Special Committee for Peace-keeping Operations was established in order to undertake a comprehensive review of the whole question of peace-keeping operations in all their aspects, including ways of overcoming the financial difficulties of the Organization. The consensus decision was that the applicability of Art. 19 with regard to UNEF I and ONUC should not be raised. The general applicability of Art. 19, however, was not challenged. This compromise may have prevented a withdrawal of the Soviet Union from the Organization, but it certainly did not improve the financial situation of the UN. Therefore, Member States, in particular highly developed countries, were called upon to make substantial voluntary contributions. Albeit successful in the past, the issuance of a bond did not remain an option to redress the situation. The Ad Hoc Committee of Experts to Examine the Finances of the United Nations and the Specialized Agencies established in 1966 concluded that another bond issue would

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not solve the financial crisis and would only entice further withholdings. Yet, the combined effect of four measures led to easing the financial crisis of the 1960s: the one-time bond issue, the invitation to make voluntary contributions as well as advance payments of assessed contributions, and the increase of the Working Capital Fund to cover initial expenses as well as to ensure means of financing future contingencies.

3. The Financial Crisis of the 1970s The measures taken in the 1960s did not suffice to put the UN on a sound financial basis. The arrears of the Republic of China (Taiwan), the unpaid assessed contributions for UNEF I and ONUC and the arrears for the peace-keeping mission in Cyprus accumulated since its inception in 1964 impeded the management of the Organization. Furthermore, a new dimension of the financial crisis emerged in the beginning of the 1970s. Member States decided to vote against the proposed budget and then refused to fully pay their assessed contributions. Whereas the withholding of assessed contributions for peace-keeping missions has primarily affected the reimbursement to contributors of troops and equipment, the withholding of assessments for the regular budget has impeded the payment of salaries of the staff of the Organization. The budget crisis was born. The continued expansion of the mandates of the UN necessitated a significant increase of the annual budgets. While the first annual budget in 1946 financed expenses of US$ 19 million, the UN-SG proposed a budget of US$ 226 million in 1973. The average budget growth in the 1960s amounted to 10% and thus contributed to further withholdings of assessed contributions. Consequently, the GA approved the introduction of a biennial program budget in its Res. 3043 (XXVII) as a means to improve the financial situation. Prior to this, the Organization had utilized a budget system based on a lineitem budget, i.e. the budget was presented annually by object of expenditures: for expenses of personnel services, travel, meetings and conferences, maintenance of premises, printing, etc. Further, the content of the programs of the UN was approved without reference to the necessary financial resources. In contrast, the biennialized program budget allows for a close relationship between expenditures and program formulation. The medium-term program planning has constituted the key element of the integrated budget system effective to the present. Initially covering a period of six years, the medium-term plan is a translation of legislative mandates into programs for the duration of four years and determines the format of the biennial program budget.


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In the budget process the UN-SG presents the proposed program budget based on the medium-term plan to the Advisory Committee for Administrative and Budgetary Questions (ACABQ) and to the Committee for Program and Coordination (CPC). The GA's Administrative and Budgetary Committee (Fifth Committee) reviews the proposed program budget together with the observations and recommendations of the ACABQ and CPC and submits its resolution on the proposed program budget for approval by the Plenary of the GA. Votes on the proposed program budget require a simple majority in the Fifth Committee and a two-thirds majority of the members present and voting in the Plenary. The introduction of the biennial program budget did not put an end to the budget crisis. The Special Committee on the Financial Situation of the United Nations established in 1972 therefore envisaged a "package solution" comprising measures to end unpaid dues, to prevent future withholdings and to elaborate a budget format that would enjoy consensus. Since the Special Committee could not reach consensus on recommendations for this ambitious endeavor, the GA had to resort to calling upon Member States for voluntary contributions. The high rates of regular budget growth prevailed throughout the 1970s: compared to the previous biennium, the GA approved a budget growth of 40% for 1976-1977 and of 29% and 26% for the subsequent biennia. These growth rates by far exceeded the high inflation rates of the 1970s. Despite their criticism of the dramatic increase of expenditures, the Western countries eventually approved the budgets. The Soviet bloc, however, voted against the adoption of the resolutions as of the introduction of the first proposed program budget for 1974-1975. The United States abstained in the vote. Yet, this voting pattern would fundamentally change in the next decade. The Negotiating Committee on the Financial Emergency of the United Nations established in 1976 could not agree on concrete recommendations. Every year since 1976, the UN-SG reported to the GA on the financial situation of the Organization. The introduction of a new budget system in the 1970s that reflected the relationship between programs and the budget and the continuing reports of the UN-SG which significantly increased the level of information were clearly not sufficient to terminate the financial precariousness.

4. The Financial Crisis of the 1980s The UN-SG attempted to find a solution to the steadily deteriorating financial position of the Organization in proposing budget cuts. The majority of Member States, however, rejected this initiative and approved a program budget for 19801981, which far exceeded the UN-SG's proposal. For the first time, the large

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contributors collectively abstained in the vote on the proposed program budget. In the same year, the United States also resorted to the policy of "selective payment." This constituted a significant departure from its commitment to full payment of assessed contributions so as to send a clear political signal to the Soviet Union. The US justified this policy by referring to a statement in 1965 by the United States representative, Arthur Goldberg, made in reaction to the compromise of the Special Committee on Peace-Keeping Operations. In his 1965 statement, Goldberg made clear that if any member could insist on making an exception to the principle of collective financial responsibility with respect to certain activities of the Organization, the United States reserved the same option if compelling reasons existed for doing so. Consequently, the US withheld the payment of assessed contributions for programs not approved by the US Congress. Another American policy emerged in the early 1980s that has adversely affected the financial situation of the UN. In 1981, the US deviated from its practice of paying the American contribution to the regular budget in quarterly installments. Since then the US Congress has authorized annual payments to the regular budget only in the subsequent US fiscal year, i.e. in the last quarter of the (UN) calendar year. Both payment patterns are a violation of Regulation 5.4 of the Financial Regulations and Rules, which mandates the payment of assessed contributions to the regular budget at the beginning of a calendar year. Furthermore, the GA decision to put aside in a special account the balance of the assessed contributions due from China for peace-keeping operations between 25 October 1971 (when the Assembly decided by its Res. 2758 (XXVI) to seat representatives of the People's Republic of China) and the end of 1981 incurred a further deficit on UN accounts. Since Art. 19 would not apply to this balance, the GA decision amounted to writing off a total of US$ 55.4 million of the People's Republic of China's dues. The UN-SG therefore warned that the financial situation was particularly grim. Taking into account the arrears for peace-keeping operations the deficit amounted to US$ 275 million at the end of 1981. The GA reacted to the UN-SG's report on the financial emergency by deciding to increase the level of the Working Capital Fund and to suspend the financial regulations stipulating the return of unspent appropriations to Member States. Due to strong pressure from large contributors, the UN-SG, for the first time since 1954, proposed a program budget without any growth in real terms, i.e. the growth rate should not exceed changes in rates of exchange and inflation. Since the GA, at the instigation of developing countries, decided to approve a growth rate of 19%, the large contributors voted against the resolution on the program budget. The proposed program budget for 1984-1985 gave rise to optimism regarding


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some amelioration of the degree of financial precariousness of the Organization. The UN-SG sought to balance the demands of the large contributors for budget cuts on the one side and of developing countries for budget growth on the other. The growth of expenditures in the amount of roughly 7% approved by the GA was generally considered as moderate. Consequently, the large contributors did not vote against the budget resolution, but abstained in the vote. In 1985, however, the financial situation of the UN deteriorated again dramatically. Although the budget resolution for 1986-1987 approved an increase in expenditures of just 3%, the large contributors voted against the resolution. These votes reveal that political motives prevailed over cost considerations. Whereas regular budgets were rejected in the past for their growth rates, they were now challenged because of program content. This change can be best elucidated with the US position. The US Congress passed two laws which sought to gain acceptance at the UN for US demands by means of withholding assessed contributions. In August 1985, Senator Nancy L. Kassebaum introduced a measure requiring that no payment be made for an assessed contribution to the Organization in excess of 20% of the total annual UN budget unless the GA adopted voting rights proportionate to the contribution of each Member State to the UN budget (Section 143 of Public Law 99-93 of 16 August 1985; "Kassebaum Amendment"). This measure was amended in 1989 so as to provide discretionary authority to the US Administration to withhold 20% of the funds appropriated for the US assessed contributions to the UN, if the GA failed to implement consensus-based decision-making procedures on budgetary matters which assured that sufficient attention is given to the views of major financial contributors. The second law emanated from the domestic American budget crisis. In December 1985 the US President signed into law the "Balanced Budget and Emergency Deficit Control Act" (Public Law 99-177 of 12 December 1985, "Gramm-Rudman-Hollings Act") which mandated the withholding of American contributions to the regular budget so as to reduce the domestic budget deficit. These two laws had a great impact on the financial situation of the Organization. Without prior warning the UN experienced an additional payment shortfall of US$ 100 million in 1985-1986. Consequently, the Organization faced a financial crisis in the middle of the 1980s of unprecedented dimensions: the UN-SG predicted a deficit of US$ 390 million by the end of 1985. Eighteen Member States had already resorted to the "selective payment" of their assessed contributions. Regular UN activities could only be maintained with the practice of "cross borrowing" from peace-keeping funds to cover the shortfall in regular budget cash. Such practice relied on the willingness

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of Member States, who had participated in peace-keeping operations to accept extensive delays in the reimbursement by the Organization for supplying troops and providing material for the missions. Many factors contributed to the steadily increasing arrears of Member States. The divergent views of Member States on the goals the Organization should pursue, criticism of the methodology of the budget process and the lack of general acceptance of the scale of assessments threatened the achievement of the purposes of the UN. The GA therefore established a Group of High-level Intergovernmental Experts to Review the Efficiency of the Administrative and Financial Functioning of the United Nations (the so-called "Group of 18") to address these issues. In August 1986, the "Group of 18" submitted to the GA more than 70 proposals on how to improve the intergovernmental negotiating process, the structure of the UN Secretariat and of the human resources management. Within the Group, however, there was no consensus on the reform of the scales of assessments and budget process. In a landmark decision in December 1986, the GA reached by its Res. 41/213 an agreement on substantive changes to the budget process. Henceforth, the UN-SG submits a budget outline containing a preliminary estimate of the overall level of expenditures, priorities, real growth - positive or negative - compared with the previous budget, and the size of the contingency fund to accommodate additional expenditures relating to the biennium derived from legislative mandates not provided for in the proposed program budget. Furthermore, the GA decided that the CPC should continue its existing practice of reaching decisions by consensus, whereas the Fifth Committee should make all possible efforts with a view to establishing the broadest possible agreement. Ever since the adoption of Res. 41/ 213, decisions on budgets have been based on the broadest possible agreement, and since the 1990s, were even adopted without a vote. GARes. 41/213 can therefore be considered as a major concession to the large contributors intended to give them a de facto right to veto in questions relating to the regular budget of the UN. The Member States reacted to the new budget process. China partially paid its arrears and the Soviet Union, Belarus and the Ukraine have made significant efforts since 1985 to decrease the amount of their unpaid dues to the regular budget. These measures were aimed to send a clear signal to the US, which, in turn, had dramatically increased its arrears to the regular budget from US$ 85 million in 1985 to more than US$ 300 million in 1988. At the end of 1989, the Organization experienced a cash shortfall of US$ 315 million. The arrears to the regular budget totaled US$ 395 million; those related to peace-keeping missions increased to US$ 570 million. Thus far, no durable solution


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had been found. The UN-SG therefore predicted the financial collapse of the Organization in the final quarter of 1990.

5. The Financial Crisis of the 1990s The end of the Cold War in 1989 created a political climate in which the SC not only approved a large number of new peace-keeping operations but also significantly expanded their tasks. Compared to the fifteen peace-keeping missions that were established under the umbrella of the UN during the first four decades since the first mission in the Middle East in 1948, the SC approved twenty additional peacekeeping operations in the period just from January 1989 to December 1995. Further, the number of troops of less than 7,000 "blue helmets" at the end of the 1980s increased tenfold by the mid-1990s. This development caused an unprecedented increase in the cost of peace-keeping operations. In 1993 the peace-keeping mission in the Former Yugoslavia alone accounted for one third of the total cost of peace-keeping missions. The Member States, however, increasingly refused to fully pay the rise in expenses for peacekeeping operations, which rose from US$ 410 million in 1990 to US$ 3.5 billion in 1994, partially due to disagreement on the methodology of the peace-keeping scale. The debate on how to apportion the expenses for peace-keeping missions among Member States goes back to the early 1960s. An interim solution has been in effect since GA Res. 3101 (XXVIII), which introduced a group system to apportion the costs of UNEF II: group A consists of the States permanent members of the SC; group B of economically developed countries; group C of less-developed countries, and group D of least developed countries. The ad hoc arrangement gives countries in group D 90% discounts and countries in group C 80% discounts off the percentage they pay of the regular budget. Group B countries pay the same rate of assessment for both peace-keeping and the regular budget. Finally, the amounts of the discounts received by groups C and D are shifted as a surcharge onto the permanent members of the SC on a pro-rata basis. Instead of just adjusting the membership of the four groups as applied since 1989, the developed countries now called for a fundamental revision of the 1973 ad hoc arrangement. In 1993 the US demanded the lowering of the ceiling for peace-keeping operations from 3 1 % to 25%. Whereas the growth rate of the regular budget was considered by Member States - including the US - as moderate, members of the US Congress regarded the dramatically increasing expenses of peace-keeping missions as unjustified. The GA, however, rejected the US demand for lowering the US share in the apportionment of peace-keeping expenses. The UN-SG transmitted to the GA the report entitled "Financing an Effective

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United Nations" prepared by the Independent Advisory Group on United Nations Financing (so-called "Ogata-Volcker report"), which advocated maintaining the different scales of assessments for the regular budget and peace-keeping operations. The report suggested a possible lowering of the shares of the permanent members of the SC if all Member States with above-average PCI, except for the permanent members of the SC, were included in the group B. In light of arrears totalling US$ 1.5 billion, the report proposed measures such as authorizing the UN to charge interest on late payments, the increase of the Working Capital Fund from US$ 100 million to US$ 200 million or the establishment of a Revolving Fund to fund the start up costs of peace-keeping missions. The GA could not reach consensus on these proposals. The financial situation of the UN at the end of 1994 was less precarious than in the previous years due to the payment by the US of US$ 1.2 billion, of which US$ 200 million were contingent upon the establishment of the Office of Internal Oversight Services (OIOS). Further, Member States collectively paid more than US$ 700 million of their arrears to the Organization. Nevertheless, predictions on future payment of Member States' arrears gave rise to great concern. Unlike the amount of arrears to regular budget, which had remained more or less constant since 1989, unpaid contributions for peace-keeping operations increased by 300%. Consequently, the GA by its Res. 49/143 established the High-level Open-ended Working Group on the Financial Situation of the United Nations (WGFS). Two trends emerged during the second half of the 1990s, which contributed to a further deterioration of the Organization's financial situation. First, there was a sharp decline in the overall expenditures for peace-keeping missions. Within two years, the number of troops was reduced from 78,000 in 1994 to about 14,400 at the end of 1998. Thus, the costs for peace-keeping operations decreased from an amount triple that of the regular budget in 1994 to a level below the regular budget in 1997. This trend added an additional burden to the management of the Organization. The decrease of peace-keeping activities deprived the UN of funds that were used to cover the shortfall in regular budget cash. In the past, over-cautious estimates of the financial requirements for peace-keeping operations created unencumbered balances, borrowing from which has sustained the Organization. According to Res. 1341 (XIII), the GA authorized the UN-SG to borrow cash from special funds and accounts for purposes, which normally relate to the Working Capital Fund. Since the 1970s, Member States have been regularly informed of the UN-SG's need to resort to cross borrowing. The practice of the GA has confirmed that peace-keeping funds were encompassed by the term "special funds and accounts" and has legitimized such borrowing to maintain regular budget activities. The


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decrease in the overall level of expenditures for peace-keeping activities and more precise estimates of resource requirements for the missions, however, depleted the reserves for cross borrowing. In 1997, a report by the Secretariat to the WGFS characterized cross borrowing as imprudent at best, and potentially disastrous. Secondly, US legislation imposed great pressure on the decision-making process in the Fifth Committee. In April 1994 the US Congress passed a law which limited the percentage of the US contribution to peace-keeping operations to 25% (Section 404 of Public Law 103-236 of 30 April 1994). The withholding of 6% of all expenses related to peace-keeping has served as political leverage to pressure for a reform of the scales of assessments. Furthermore, the US announced withholdings of 20% of their assessed contributions ("Kassebaum Amendment") and the non-payment of their assessment relating to the amount that exceeded the level of expenditure approved by the US Congress if the GA did not adopt zero-nominal growth for the regular budget. Finally, the US Senate passed a bill in 1997 which stipulated a gradual reduction of the US rate of assessment for the regular budget to 20% and payment of a part of the US arrears, subject to the establishment of a contested arrears account for those dues not authorized by the US Congress ("Foreign Affairs Reform and Restructuring Act of 1997", S. 903 of 17 June 1997). According to the bill, the payment of annual contributions to the UN during the US fiscal years 1998 and 1999 and of part of the US arrears over a period of three years would only be made if the GA complied with a number of benchmarks. If some of the conditions were not met, the US Administration would be obliged to withhold a predetermined amount of arrears payment. The US Congress, inter alia, stipulated cuts in the number of staff, the introduction of a code of conduct for UN personnel and the prohibition of imposing interest by the UN for unpaid dues. The UN-SG integrated a number of US benchmarks in his far-reaching reform proposals of 16 June 1997 (UN Doc. A/51/950, "track II" proposals). In order to assure the timely availability of funds to meet the obligations placed on the UN by Member States, the UN-SG proposed, inter alia, the establishment of a Revolving Credit Fund, the retention of any unspent balances under the regular budget, the introduction of results-based budgeting, and a code of conduct. As a concession to developing countries, the UN-SG proposed the creation of a "dividend for development" from savings in administration and other overhead costs. Despite the positive reaction of Member States to a number of "track II" proposals the US could not pay its arrears. ARepublican amendment in the House of Representatives restricting assistance to foreign organizations that perform or actively promote abortions prevented the bill's signing into law for more than two years. The UN-SG's presentations of the UN financial situation in 1997 and 1998 were

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therefore rather gloomy. At the end of 1998, unpaid contributions totalled US$ 2.031 billion and prevented the Organization for repaying Member States an amount of US$ 872 million owed to them for troops and equipment. Not even the announcement by Ted Turner, on 18 September 1998, of a gift valued at US$ 1 billion in support of UN causes improved the financial situation of the Organization. An agreement between the UN and the United Nations Foundations, Inc., a public charity established by Mr. Turner, was signed on the understanding that the gift would not finance activities whose costs are assessed on Member States. Furthermore, discussions on alternative revenue sources such as a surcharge on tickets for international air and sea travel, a stock transaction tax or a charge on placing satellites in the orbit remained academic. Finally, the debtors to the Organization rejected proposals of the co-vice-chairpersons of the WGFS on the introduction of a system of payment incentives and penalties. It was only in November 1999 that the US President and the Congress reached an agreement in the dispute over the abortion rights and thus provided the legal basis to pay, subject to compliance with numerous benchmarks contained in the legislation, US$ 926 million in US arrears to the UN and designated specialized agencies (Public Law 106-113 of 29 November 1999; "Helms-Biden legislation"). Both the UN and the US had to pay the price for the unilaterally imposed congressional demands. Threatened by withholdings of US$ 160 million of US annual contributions for 1997 the GA, on the one hand, adopted a zero-nominalgrowth regular budget for 1998-1999 (GA Res. 52/221). The same strategy of the US led the GA to also approve a budget for 2000-2001 just US$ 2 million above zero-nominal-growth (GA Res. 54/250). Due to rigorous budget cuts, the regular budget of US$ 2.5 billion was frozen below its 1994 level, despite a significant expansion of legislative mandates. Nevertheless, the US disassociated themselves from the consensus, since the GA approved growth of US$ 2 million. The US, on the other hand, has met so far considerable resistance in the Fifth Committee to compliance with two major benchmarks of the Helms-Biden legislation, which would release almost US$ 600 million. First, the GA has not yet been willing to reduce the ceiling in the regular budget and peace-keeping scales. Secondly, the Congressional demand to establish a special account for those US arrears for which payment was not authorized by this legislation ("contested arrearages account") will hardly find consensus in the Fifth Committee. When the GA adopted the current scale of assessments for the regular budget for 1998-2000, the US agreed to a ceiling of 25% provided that the payment of a substantial part of their arrears would allow a review of the scale for the regular budget for 1999-2000 (part D of GA Res. 52/215; "review clause"). The decision whether the amount paid would justify a reopening of the scale negotiations remained within the purview


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of the GA. But such an arrangement no longer remains a viable option. The US must convince all other Member States by December 2000 to agree to lower the ceiling in order to avoid a vote on the scale resolution for the subsequent three years. Furthermore, the US demands to establish a "contested arrearages account" has been received with skepticism. Many Member States fear that such an account could entice other countries in arrears to follow the American example. In the past, special accounts for voluntary contributions were established to allow Member States, who withheld contributions for questions of principle to make compensating voluntary contributions. The US, however, emphasized that it would not pay more than some US$ 700 million of their arrears to the Organization. The establishment of the special account would thus amount to de facto writing off the US arrears not covered by the Helms-Biden legislation. At the end of 1999, the US owed some US$ 1.2 billion, or 67% of all outstanding dues, to the Organization. Consequently, there is a widely shared view that such a measure would not create a sound financial situation of the Organization. In the course of the last years, the US has faced increasing difficulties to avoid falling under the sanction of Art. 19 of the Charter. In 1997 and 1998 the payment of annual contributions sufficed for the US to escape the sanction. At year-end 1999, however, the US had to make an arrearage payment of US$ 100 million provided for in the first installment of the Helms-Biden legislation in addition to the payment of its annual contributions to reduce its total obligations to the Organization to the equivalent of the most recent two-year assessment. As a result, the financial liquidity of the UN has improved. In December 1999, Member States combined still owed US$ 1.8 billion to the Organization, but the UN could reduce the amount owed to countries that had contributed troops and equipment for peacekeeping operations to US$ 800 million. In addition, the US payment provided modest cash surplus at the end of the year, a phenomenon not witnessed for an extended period of time.

6. Financial Stability at the Itarn of the New Millennium? At the end of the 1990s, the main parameters were set to achieve a firm financial basis for the Organization. During the 1980s, the GA reduced the rapid growth of the regular budget of the 1970s and, during the 1990s, approved rigorous budget cuts to arrive at a negative real growth. Further, the dramatic increase of expenses for peace-keeping operations until the mid-1990s fell to a level significantly below the regular budget. Finally, the implementation of reform measures and proposals enhanced the cost-effectiveness and efficiency of the Organization. These patterns alone, however, will not provide financial stability of the UN,

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unless there is a will for full, prompt and unconditional payment of assessed contributions. So far, the financial collapse of the Organization has only been prevented with the practice of cross borrowing from peace-keeping funds when the regular budget cash balances were exhausted. Furthermore, at least one parameter already changed and thus adds to the uncertainty about the financial stability of the Organization: peace-keeping assessment levels have risen since 2000 due to the establishment of new missions in Kosovo, East Timor, Sierra Leone and the Democratic Republic of the Congo. Until recently, the withholding of assessed contributions proved to be an effective means to succeed with demands in the Organization. The review clause in GA Res. 52/215, however, was a significant turning point. It was the first signal by the GA to one Member State - the largest contributor - that domestic legislation no longer suffices to attain domestic goals. The so far rather negative reaction to the contested arrearages account may be another. Consequently, the US is under great pressure to achieve the reductions in the scale of assessment ceilings mandated in the Helms-Biden legislation. The GA decision on the reform of the regular budget and peace-keeping scales by December 2000 will not only affect the payment of US arrears but also the US commitment for future peace-keeping missions. As long as the US pays its annual contributions, an increase in peace-keeping activities reduces the pressure to fall under Art. 19. In the long run, however, the US must pay a substantial amount of its arrears so as to be less vulnerable to the loss of its vote in the event of decreasing levels of peace-keeping activities. The sanction of Art. 19 would be detrimental to its international standing and would also amount to a loss of the de facto right to veto in budgetary questions.

The Reform of the Security Council Karin Proidl

Literature: Bertrand, The Historical Development of Efforts to Reform the UN, in Roberts/ Kingsbury, United Nations, Divided World. The UN's Roles in International Relations (1993) 420; Sucharipa-Behrmann, The Enlargement of the UN Security Council: The Question of Equitable Representation on and Increase in the Membership of the Security Council, AJPIL 47 (1994) 1; Reports of the Open-ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council: A/48/47, A/49/47, A/50/47, A/51/ 47, A/52/47, A/53/47; Compendium of the observations and assessments of the two ViceChairmen, A/49/965; Malone, Eyes on the Prize: The Quest for Nonpermanent Seats on the UN Security Council, Global Governance 6 (2000) 3.

The Charter of the UN is based on the international principle of sovereign equality of all States, but also reflects the inequalities in the international scene after the end of World War II. The authors of the Charter established the SC with limited membership and secured for themselves a preferential position on it: they are permanent members and have the right of veto. In the course of the decades this elitist power structure has given rise to criticism and ambitions to reform the Council. Changes in the original composition of the GA as a result of the de-colonization process and the admission of new members triggered the first enlargement debate in the 1950s. In 1963 the GA decided to increase the membership of the SC from eleven to fifteen members by adding four non-permanent seats. In addition, GA Res. 1991 (XVIII) determined the distribution of non-permanent seats among the different regional groups and redefined the quorum for decision-making of the Council. Also the second enlargement debate was motivated by the intention to restore the initial numerical ratio between GA and SC in favor of the developing countries, which - by far - constitute the majority of the GA. This endeavor, which had been initiated by India in 1979, finally failed not least due to the opposition of the permanent members (P5). In the early 1990s, new dynamics in the international political scene as a consequence of the end of the East-West confrontation caused growing interest in the work of the SC. At the same time, members of the UN increasingly questioned the legitimacy of Council decisions, which were taken by the fifteen on behalf of the more than 180 members of the Organization. In 1992, the 113 Member States of the Non-Aligned Movement (NAM) called for a thorough review of the composition of the SC as well as the scope and the application of the right of veto.


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In autumn 1992 the GA item "The Question of Equitable Representation on and Increase in the membership of the Security Council" was reactivated and thus the current enlargement discussion launched. During the debate, which was dominated by Brazil, Egypt, Germany, India and Japan, as well as in written comments, a number of countries spoke in favor of an early reform, which should ensure better representation of the entire UN membership on the Council as well as more efficiency, effectiveness, legitimacy, credibility and transparency of its work. While some countries favored a larger Council consisting of thirty members, the majority leaned towards an overall number of 20 to 25 seats. In view of equitable geographical distribution of seats the creation of new non-permanent seats should mainly benefit the developing world. Some countries named Brazil, India and Nigeria as candidates for permanent membership; others linked them to the notion of regional SC members with long-term presence on the Council and eligibility for re-election. According to another group of countries the concept of rotating regional seats should apply to India and Japan for Asia; Nigeria, Egypt and South Africa for Africa; and Brazil and Argentina for Latin America. While permanent membership for Germany and Japan was supported by some countries, it was also pointed out that this would further aggravate the current imbalance on the Council to the disadvantage of the South. The developing countries based their arguments on the "equitable geographical distribution" of Art. 23(1). The pretenders for permanent membership, in particular Germany and Japan based their claim for a permanent seat on another criteria of the same article, namely "the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization". The majority of States strictly opposed any extension of the "undemocratic" right of veto, which should in any case be eliminated, to new permanent members. The pretenders for permanent membership, however, claimed the same rights as the current permanent members. The P5 made it very clear that their prerogatives were sacrosanct. Contrary to its previous negative attitude towards SC reform, the US expressed itself in favor of an enlargement "by adding Germany and Japan as new permanent members" and representatives from the African, Asian and Latin American regional group as permanent members in an enlarged SC with not more than 21 seats. While the United Kingdom (UK) welcomed the reform debate, it warned, at the same time, against any hasty action and urged the GA to maintain an efficient SC with the ability to function effectively. At a later stage UK became one of the most active participants in the reform debate, favoring an enlargement in the existing

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two categories by including Germany and Japan as new permanent members. Three other new permanent seats should be created for non-industrialized nations. According to France, participation in peace-keeping operations and the willingness to assume global responsibility should be decisive for the selection of new permanent members. Enlargement in the permanent category should not imply any reduction in the number of non-permanent seats of a specific region. Over the years France was among those who favored an increase in both categories with permanent membership for Germany and Japan and an overall number of 21 to 25 seats. The Russian Federation (RF) and China were in no hurry to reform the SC. They were of the opinion that any ideas, on how to improve the transparency of the Council's working methods, should be discussed primarily within the Council itself. Over the years of reform discussions Germany and Japan reiterated with persistence their preparedness to assume the duties of permanent membership. Both countries are among the largest contributors to the budget of the UN and are very active in the field of development aid and development cooperation. With the aim to reform the Council, the 48th GA established a high-level "Openended Working Group on the Question of Equitable Representation on and Increase in the Membership of the SC and Other Matters related to the SC" (WG). According to GA Res. 48/26 a future decision to reform the Council should be carried by "general agreement" of the GA. Devoid of any clear definition this notion seems to imply support by the GA, which goes beyond the majority of two thirds and gets close to unanimity. The discussions of the WG circled around the question on how to increase the membership of the SC and to which extent as well as the scope of the veto and its extension to new permanent members. In February 1995 Egypt presented a position paper on behalf of the Non-Aligned Movement (NAM), which stressed the striking under-representation of the South on the SC and called for an increase in its membership by adding eleven new seats. If there was no agreement on the expansion in the permanent category, only the non-permanent seats should be expanded (NAM fallback position). A second NAM-document dated March 1996 contained observations on limitations of scope and application of the veto. With the start of the current reform discussion competing interests emerged within the different regional groups. Without realistic prospects of becoming a permanent member itself, Italy opposed the enlargement in the permanent category and worked against a permanent seat for Germany. In 1993 Italy presented its own reform proposal promoting a rotation mechanism: while maintaining the ban of immediate re-election of Art. 23 (2), ten new non-permanent seats should rotate among thirty big countries. Each of these "semi-permanent" SC members should

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return on the Council after only four years of absence, thus more often than the broad UN membership. In order to promote its model and prevent new permanent members, Italy used the traditional tensions between North and South and brought into play the argument of increased European integration. According to Italy permanent membership of Germany and Japan would stand in grave contradiction to the principle of sovereign equality of all States and further aggravate the imbalance between North and South in the Council. In the light of a strong common foreign and security policy of the European Union, a future-oriented reform should foresee only one European seat. France and UK persistently ignored this argument. Countries with regional importance due to size and population, but without prospects of becoming permanent members, felt attracted by the Italian proposal. The majority of the WG, though, tended to traditional reform proposals, foreseeing an increase in the membership in the traditional categories. In Latin America the Portuguese-speaking Brazil considers itself a logical pretender for permanent membership, thus meeting strong Argentinean-Mexican opposition. Argentina — somewhat attracted by the Italian proposal — sees the Brazilian ambitions as a potentially disruptive element for the political balance in the region. In its view the whole region would have to endorse any reform proposal prior to GA consideration. Mexico had expressed opposition against permanent membership and the right of veto as early as during the Conference of San Francisco. For the Asian Group the SC reform is characterized by the Japanese contention for a permanent seat and the Pakistani opposition to the SC ambitions of India. India considers itself - more explicitly than Indonesia does - to be the one to permanently represent the region on the Council. At the 30th summit meeting of the OAU in Tunis in 1994, the 54 members formulated their claim to two permanent seats, which should be filled according to an African rotation mechanism. The prerogatives of the new permanent members should correspond to those of the P5. The application of the right of veto should be gradually limited and eventually eliminated. Furthermore, in June 1997 the OAU called for five non-permanent seats in an enlarged SC comprising 26 members. The African concept of permanent rotating regional seats implies the transfer of responsibility for the maintenance of international peace and security from individual UN Member States to the entire region and thus departs from the traditional understanding of permanent membership. In spite of the rotation approach of the OAU, individual claims of African countries never subsided. Nigeria, for example, repeatedly pointed at its vocation to become a permanent member of the SC in the traditional sense. Its human rights record, though, which had led to its temporary suspension as a member of the


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Commonwealth, has seriously undermined Nigeria's prospects in this regard. In 1994, after the end of the apartheid regime, South Africa was readmitted to participation in the GA. As a young member of the OAU it endeavors to gradually gain confidence in Africa and therefore supports common OAU positions while exercising restraint in its own individual ambitions. Egypt is the third country to claim leadership. While Egypt is committed to complying with all OAU positions, it argues that the African rotation criteria should include such criteria as the degree of present and future economic development, history and the geographic location and size of a country's population. Egypt further claims that its regional and international contributions, inter alia in Africa, the Arab and Islamic world, the Middle East region as well as towards developing countries, qualified her to shoulder the responsibilities of permanent membership in an expanded Council, where all regions would have a balanced and equitable representation. As a member of the NAM, the OAU, the OIC, the Arab Group and the African Group at the UN, Egypt plays an important role in formulating the reform positions of the different groups. When reform protagonists proposed to apply the African rotation model to Latin America and Asia, Brazil and India strictly rejected this approach as discriminatory attempt by the North at speeding up the reform process. They denounced this approach as "quick fix by the backdoor", which would grant Germany and Japan permanent membership, while fobbing off Latin America, Asia and Africa with permanent seats for the region only. The "quick fix" option, which would limit enlargement in the permanent category to Germany and Japan only, had already been rejected before. Over the years the claims for permanent presence on the Council multiplied. The Arab Group, comprising 12% of the UN membership, called for two permanent seats in case of an increase in the permanent membership, and two non-permanent seats. In 1997, at the summit meeting in Tehran, the Islamic Conference requested a permanent seat. UN-SG Kofi Annan was among those to criticize this request which would contradict the regional approach of the Charter. In spite of the momentum of the UN's 50th anniversary, the reform discussions reached an impasse during this jubilee year due to opposing interests of Member States. For many delegations, however, a successful reform of the Council remained the key for an overall reform of the Organization, including the financial component. The President of the 51 st GA, Ismail Razali, committed himself to reviving the discussions of the WG and speeding up the reform process of the Organization. Aware of the obvious rivalries in the regions, he turned away from unanimity options and concentrated his efforts on possible majority decisions of the GA. "While general agreement in the WG must be reached on the SC reform as a whole, the

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ambiguity of this notion withstanding, concrete proposals for reform must ultimately command a huge majority in the GA," he stated. The reform should finally rectify long-standing imbalances in the composition and decision-making process of the SC, which should serve to enhance its credibility, legitimacy and authority. In early 1997 Razali presented to the WG a "whole picture of the SC reform" in the form of a draft resolution of the GA. In order to guarantee the broadest possible support, the proposal was drawn from the many diverse and comprehensive views that had been expressed by delegations in the WG for over three years. While Razali emphasized the independence of his reform package, he, at the same time, established a link to the financial reform of the UN by including a reference to the peace-keeping budget of the Organization. Razali proposed a series of reform steps to be taken within a time-span of several months. First, a framework decision of the GA should decide on the enlargement of the SC by adding five permanent and four non-permanent seats without mentioning any specific country names. In order to bridge the gap between the US, UK and the RF on the one hand and the NAM on the other hand, this compromise formula foresaw a SC of 24 members with a new quorum for decision-making. In previous discussions the US, UK and the RF had expressed willingness to consider an enlargement by six new seats, claiming that once a certain threshold number had been reached, the Council's ability to work efficiently would cease to exist. The NAM, however, had called for an additional eleven seats. As a next step, the GA should elect five new permanent members: one each from the developing countries of Africa, Asia and Latin America and the Caribbean States and two from the industrialized States. The fate of the new permanent members should be inextricably linked, thus preventing the so-called quick fix: no single State should become a new permanent member unless the other four have obtained the required majority of at least two-thirds of votes in the GA. The new non-permanent seats should go to Africa, Asia, Eastern Europe and Latin America and the Caribbean States. By omitting to explicitly name Germany and Japan, Razali wanted to counteract fears of developing countries of discriminatory treatment. It should also allow all industrialized States to put forward their own candidacy for permanent membership. To the satisfaction of Brazil and India suggestions of having regions decide on new permanent members or establishing permanent rotating regional seats have not been considered by Razali. As a third step the requirement of Art. 108 of the Charter should come to bear. According to Razali's proposal the GA should adopt by a vote of two-thirds of the members of the Organization a draft resolution containing amendments to the Charter. The entry into force of the amendments should depend on the ratification


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by the P5, but not by the new permanent members. Ten years after the entry into force, a conference pursuant to Art. 109 of the Charter should review the results of the reform. The NAM considers the right of veto as anachronistic, undemocratic and a means of discriminatory power. Although it would like to see its scope limited and eventually eliminated, it nevertheless calls for equal treatment if Germany and Japan should get this prerogative. Due to this ambivalent position of the South and the opposition of the North against any formula which would allow developing countries to block Council decisions, Razali's proposal did not foresee the extension of the veto to new permanent members. He argued that the incoming five new permanent members were different since they were to be elected and had not inherited their powers or membership as a result of 1945. According to Razali the new permanent members should, however, share with the P5 the financial burden of the so-called surcharge of the peace-keeping budget. The prospect of lower financial contributions to the peace-keeping budget had been an incentive for the US to consider SC reform. Not least because of the ratification requirements of Art. 108, Razali's draft resolution merely decided to urge the P5 to limit the use of veto to decisions pursuant to Chapter VII of the Charter, thus provoking criticism from developing countries. In reaction to Razali's proposal, delegations primarily repeated their traditional positions. Germany and Japan welcomed the reform package with some reservations regarding the implied establishment of a new category of "2nd class permanent members". A dozen or so important countries, which traditionally have supported the multilateral thrust of the UN but would not profit from the expansion of the Council, criticized Razali's proposal in the strongest terms. According to Pakistan, Italy, Mexico, Argentina, Turkey, Canada and others, his initiative could marginalize an important group of UN members and lead to tensions in the respective regions. In early summer 1997, at the NAM Conference in New Delhi and the OAU Summit in Harare, the developing countries rejected Razali's approach and its implied time pressure. While stressing the urgency of reform, the NAM reiterated its traditional position as well as its fall-back option. According to the Movement any decision of the GA had to be carried by general agreement. As the majority in the GA, the developing countries aim at finally becoming a majority in the Council, too. Their positions and voting behavior on politically sensitive questions are often different from those of the US and UK. In order to avoid alterations to the current power structures as well as potential minority positions of the West, both countries rejected an increase in the membership of the Council beyond 21 seats. While the extension of the veto to countries of the northern hemisphere did not seem problematic, southern possibilities to block Council

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decisions - be it through individual or group veto - were unacceptable. In this context it should also be mentioned, that over the years the US, UK, the RF and China continued to firmly oppose any restriction of their right of veto, even by voluntary constraint. Razali's tireless reform efforts finally failed due to the traditional problem areas, namely on how and to what extent to increase the membership of the Council and the scope and extension of the veto. At the end of his GA presidency he expressed his disappointment at the a la carte approach of some countries. A comprehensive package to reform the SC remained a "tantalizing prospect", but countries had first to comprehend the universal aspirations for change in an Organization mired in governance that was less than democratic. Not only those who did not want to redistribute power, but also those who preferred the status quo and feared expansion delayed the reform of the SC. Unanimity on this politically loaded and complicated issue would never be possible. In autumn 1998, on the initiative of Italy, Argentina, Canada, Pakistan and others, the 53rd GA decided that any resolution or decision on the reform of the SC should be adopted with the affirmative vote of at least two-thirds of the members of the GA. This quorum goes beyond the requirement of the majority of two-thirds of the States present and voting for decisions on important questions pursuant to Art. 18, and intends to make any conclusion of the reform process as proposed by Razali impossible. Since 1998 the WG has not recovered from the impasse and slipped back into its repetitive debates of the past. In 1999, after years of debate, China still favored patient and thorough discussions and consultations in order to reach consensus on a fair and reasonable reform. The RF repeated in this very debate of the 54th GA, its preparedness to discuss any reform proposal within the quantitative limit of 20 to 21 seats. The enlargement in either category should include industrial nations and developing countries, both enjoying the same status. On the other hand, the RF could also imagine States occupying new permanent positions on the basis of rotation, previously to be approved by the relevant regional groups. As for extending the right of veto to possible new permanent members, a decision should be taken only after the concrete composition of the enlarged Council had been agreed upon. While the increase in the membership is the politically more sensitive aspect of the mandate of the WG, the working methods of the SC have an important impact on the legitimacy and effectiveness of its decisions. The call for more transparency of the SC and its interaction with the GA led the SC members to accept important adjustments, inter alia in form of consultations with troop contributing countries. Although future discussions in the WG might lead to further improvements in the working methods, the SC will remain master of its own procedures. Elitist behavior,


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like decision-making behind closed doors, will most probably also characterize the future work of the Council.


The United Nations Today: It's Current Status, Reforms and Perspectives for the Future Ernst Sucharipa

Literature: Goodrich/Harbro, Charter of the United Nations, (1969); Simma (ed.), The Charter of the Untied Nations (1994); Schachter/Joyner (Ed), United Nations Legal Order (1995); Franck, Nation against Nation, What happened to the UN Dream and what the US can do about it (1985); Urquhart, A Life in Peace and War (1987); Roberts/Kingsbury, United Nations, Divided World, The UN's Role in International Relations (1994); ChildersAJrquhart, Renewing the United Nations System (1994); Our Global Neighborhood, Report of the Commission on Global Governance (1995); The United Nations in its Second Half-century, Report of the Independent Working Group on the Future of the United Nations, Ford Foundation (1995); Report of the Commission on the Prevention of Deadly Conflicts, Carnegie Corporation (1997); Boutros-Ghali, Unvanquished, a US-UN Saga (1999); Luck, Mixed Messages, American Politics and International Organization (1999)

1. Introduction With the GA's decision to grant membership to the Pacific island of Tuvalu, taken in the course of summer 2000, the total number of UN Member States has risen to 189. With the notable exception of Switzerland, the organization has thus reached a nearly universal character. East Timor will join the UN once the UN guided transition process towards independent statehood will be completed. By virtue of its Charter (in particular the preamble and Art. 1) and by subsequent practice the scope of activities of the UN is of a comprehensive nature. The draft resolutions adopted by the GA each year (more than 250 under some 160 agenda items) encompass a universality of topics related to regional conflicts, disarmament issues, social, economic, human rights and international legal questions as well as matters pertaining to internal organizational issues, including administrative and budgetary ones. In its 55 years of existence the UN has shown a surprisingly high degree of adaptability to changing international circumstances. At the same time it no doubt has lost much of the political significance originally intended for the organization in 1945. While other contributions in this book describe the historical development of the organization and its current relevance, with regard to specific substantive issues, this concluding contribution will attempt to draw general assessments of the development of the UN, its importance and relevance today, its readiness for reform and the ensuing perspectives for the organization's future.


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2. The Consequences of the Changing International Political Framework in the Course of the History of the United Nations How Adaptable is the Organization? Basic norms and structures of the international community of nations have experienced major changes since the entry into force of the UN Charter on 24 October 1945. This becomes clearly manifest through the increase in the membership to the organization from original 51 (including Poland on whose representation however there was disagreement between the Western Powers and the Soviet Union) to 189. The deep structural upheavals in international relations in the course of the UN's history left their imprint on the organization. (For an in depth treatment of the UN's development, see supra the contribution by Franz Cede, as well as Ferdinand Trauttmansdorff's extensive description of the mandates and working procedures of individual UN organs.) American preparatory work on the Charter of the future organization which commenced in 1943 and the following period of actual negotiations (Conference of Dumbarton Oaks in late summer 1944 and the Founding Conference of San Francisco of June 1945) were marked by great illusions concerning the possibility of permanent cooperation between the allied powers for the maintenance of international peace and security. It soon had to be realized that cooperation among those powers would not reach beyond joint efforts for the attainment of their immediate war aims. Even before the end of WWII a number of signs pointed to major problems to come: thus in the negotiations on the Charter of the future UN Organization the Soviet Union insisted on multiple representation in the GA (in order to counterbalance the obvious perspective of being structurally outvoted by a majority of countries belonging to the Western bloc). This dispute was finally settled through the additional admission of the Ukraine and Byelorussian Soviet Socialist Republics as "independent" members to the UN. It proved equally difficult to find agreement on the modalities of the exercise of the right to veto SC decisions reserved for the permanent members of the Council. As one of the results of the Yalta Conference of February 1945 the Soviet Union achieved agreement with the United States and Great Britain on a very wide interpretation of this prerogative. This agreement implied the "double veto": the question whether a matter subjected to a vote would be procedural (and therefore outside the application of the veto) or substantive was itself considered to be substantive and thus subject of a possible veto. Until today the vast majority of the UN membership calls for a more narrow interpretation of the veto power, considered at best being a necessary evil, which would restrict its application as much as possible. Characteristic of the atmosphere prevailing at the time of the negotiations on

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the Charter are not only many of the more idealistic aims which found their way into the founding instrument of the Organization, such as the notion of saving "succeeding generations from the scourge of war" but also provisions regarding the instruments foreseen for these purposes, for example the establishment of a Military Staff Committee "to advise and assist the SC on all questions relating to ... the employment and command of forces placed at its disposal" (Art. 47 of the Charter) and correspondingly the demand on Member States to make such forces "available to the SC on its call and in accordance with a special agreement or agreements" (Art. 43 of the Charter). Already the early stages of the UN's history proved however that these instruments could not be put into practice. The mutual distrust between the great powers was too important to allow the organization to assume such far-reaching competence. Thus, right from the beginning a central element in the Charter's theoretical design of the range of activities of the Organization remained dead letter. The Charter system of collective security (see supra H. FreudenschuB) was wrecked substantially because of great power dissent, which found its formal expression in the veto power vested in the permanent members of the SC. This period, dominated by the Soviet Union's veto in the SC and the automatic voting majority, enjoyed by the West in the GA, also saw the adoption of GA Res. 377(V), called "uniting for peace". Faced with a SC blocked from making decisions during the Korea crisis due to the veto of the Soviet Union, this

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policy. The next phase between 1970 -1980 was characterized by the emancipation of the South, the growth and gaining in strength of the non-aligned movement and the bonding together of the developing countries into the Group of 77 (G-77, see infra 5). During these two phases the UN could make a major and positive contribution towards a predominantly smooth process of decolonization. At the same time, however, debates at the UN became increasingly ideological, the positions and demands in the economic field became more pointed and lacked any possibility for constructive compromise. This development is best exemplified by the New Economic Order as proposed by the G-77 and the Charter on Economic Rights and Duties of States adopted by the 29th GA. A confrontational atmosphere characterized the GA. The developing countries in their majority had the tendency to vote in accordance with positions crafted by the Soviet Union and the other Member States of the Warsaw Pact. A new automatic majority against the West reversed the power structure in the GA as it existed until then. It took the Soviet intervention in Afghanistan to cause the great majority of non-aligned countries to recall the fundamental values of the non-aligned movement. The GA's condemnation of the Soviet intervention constituted a major break in the organization's history. Still, the ensuing period did not provide for a new impetus for the UN. On the contrary, frustration and cynicism reached a highpoint unknown until then: the antagonism between the major powers in the final phase of the Cold War again blocked the decision making procedures in the SC, automatic voting majorities in the GA led to a constant stream of growing but unstructured mandates given to the Secretariat resulting in an oversized administration. Resolutions adopted by the GA, mostly with a substantive majority remained dead letter, since - in spite of their support by numerical majorities — there was no real intention to implement the measures recommended in those resolutions. Especially in the eyes of the US, the UN increasingly became a questionable instrument further and further removed from the idealistic considerations that had inspired its establishment. This polarization led the organization in the mid-1980s straight into a major financial crisis, which was brought about by mounting arrears of payments due from the US. (Thomas Schlesinger deals in his contribution supra with the recurrent financial crises.) Increasingly American politicians started to question one of the most important underlying principles of the UN: the sovereign equality of States, expressed through the "one State one vote" principle in the GA, as well as the relevance of the UN per se. A change in perceptions, however, occurred with the adoption, in July 1987, of SC Res. 598 which demanded that Iran and Iraq observe an immediate cease-fire and withdraw all forces to the internationally recognized boundaries. With the difficult but successful negotiations on this resolution, in which also the UN-SG played a major role, the SC demonstrated a newly acquired


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capacity to act and thus fulfill its responsibility under the UN Charter. Soon, this development found its extension in the swift and forceful reaction of the Council against the Iraq invasion of Kuwait in 1991. A number of further "success stories" marked this new phase of UN Renaissance: Namibia's accession to independence by peaceful means thanks to the important contribution of UNTAG (United Nations Transitions Assistance Group), the positive political process in El Salvador which is to be credited to UNOSAL (United Nations Observer Mission in El Salvador), the cessation of civil war in Mozambique, brought about by an other UN operation (UNOMOZ). Similar to the early stages in the UN's history this development again led to overextended expectations. This time the strengthening of the organization induced Member States and in particular the permanent members of the SC to mandate the organization with tasks it could not possibly fulfill, especially since soon enough differences of opinion became again apparent within the Council thus often inhibiting the adoption of clear mandates. Simultaneously the financial and military means necessary for the fulfillment of tasks entrusted to the organization were withheld. Somalia and Yugoslavia stand as symbols for this apparent failure of the UN. Rwanda and Srebenica will for a long time come to testify to major deficiencies in the UN's decision-making processes in the conduct of difficult operations. Reamrkably, the current UN-SG has found the courage to acknowledge these failures. In the course of the 1990s this led to a new phase in the UN's history, characterized by an increase in realistic assessment as to activities that can usefully be entrusted to the UN. Not least because of the unmet high expectations during the earlier period this current phase is also marked by a further financial crisis, once again caused predominantly by US arrears, this time, however, surpassing by far all previous limits reaching far beyond the mark of US$ 1.5 billion. This crisis is, of course, a mirror of the deep estrangement of a large sector of the American political spectrum from the UN. In the face of constant criticism from important allied countries and other voices abroad the US Congress by the end of 1999 finally agreed on the basis of legislation worked out by Senators Helms and Biden to address the arrears issue. However, a number of benchmarks will condition these payments, at least some of which might well prove to be unacceptable to the UN membership at large. It is safe, however, to predict that even if there were agreement on the conditions of payments, the US-UN relationship will remain problematic, whereby the financial aspect will remain but one of many difficulties. While the UN has undergone throughout its history distinct phases with clearly accentuated characteristics, political changes have resulted in major adaptations in the UN's ways of doing business. Mostly these changes led to shifts between the focal points of decision making (SC, GA and UN-SG). Formal amendments to the

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Charter in accordance with the procedure under Art. 108 were only adopted twice: In connection with the increase in the UN's membership the number of nonpermanent members of the SC has been augmented from 10 to 15 through an amendment that entered into force in 1965. Similarly the number of Member States serving on ECOSOC has been adjusted: once from the original 18 to 27 (together with the increase in non-permanent members of the SC) and a second time in 1973 from 27 to 54. Current chances for further Charter amendments in particular in the context of SC reform are rather bleak. (See supra Karin Proidl.)

3. The Establishment of New Instruments Most changes in the UN structures and procedures occurred on the basis of the existing Charter through the creation of new instruments following a broad interpretation of the Organization's powers backed by the political will of a majority of Member States. Similar to the practice of interpretation developed in American constitutional law the UN has thus demonstrated a remarkable degree of flexibility and has been able to accommodate important structural changes in international relations without resort to Charter amendments. Peace-keeping operations (see supra Sucharipa-Behrmann) are the most prominent of these instruments the UN has established without explicit legal basis in its Charter. Ever since the Suez Canal crisis of 1956 and its solution through the creation of the UN Emergency Force (UNEF), peace-keeping operations have become essential components of the UN's activities in the service of peace and international security. The overall number of operations that exist at a given period of time and even more so the overall number of personnel employed has undergone major fluctuations. Characteristically, the UN's "renaissance" at the beginning of the 1990s and more in particular the period after the Gulf crisis 1992 saw a marked increase in the number and extent of peace-keeping operations. Parallel with that development the financial costs spent for peace-keeping have equally undergone gigantic changes. From 1986 to 1993 they have increased twelve times from US$ 234 million to US$ 3.6 billion. Thus they surpassed the UN's regular budget by a factor of three. By 1998 spending for peace-keeping operations had gone down to figures substantially below US$ 1 billion and thus below the UN's regular budget. Lately the UN has again witnessed a new upsurge in peace-keeping operations. While at the beginning of 1999 operations in Angola (MONUA) and Macedonia (UNPREDEP) had to be closed for political reasons, new important missions have again been entrusted to the Organization: both in Kosovo and in East Timor very large and complex operations have been established which put the UN's capacities in the area of comprehensive peace-keeping measures to a new test. As of September


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2000, some 45,000 military and police staff were deployed with UN peace-keeping missions Similarly new peace-keeping operations in Africa have either been initiated (Sierra Leone) or (at the time of writing) are contemplated (Democratic Republic of Congo and Ethiopia/Erithrea). Peace-keeping operations have also changed remarkably in their content and mandates. While before they were concerned with the implementation of ceasefire agreements or similar measures to reduce military activity and thus to increase the chances of a negotiating process, peace-keeping operations today usually are characterized by a multidimensional approach: in addition to the traditional objectives they assist in the reestablishment of administrative or other governmental structures, they deal with humanitarian assistance and assistance for refugees and internally displaced persons (see supra Homann-Herimberg), they extend to measures of economic and social reconstruction and improvements in the system of human rights protection. This "holistic" approach also corresponds with the tendency to employ peace-keeping operations predominantly in the context of internal conflicts, usually caused by ethnic disturbances, whereas the "traditional" international conflicts have lost most of their relevance. Peace-keeping operations with such comprehensive mandates often include elements of a "post-conflict peace-building strategy". (See supra Theuermann.) This multidimensionality of "modern" peace-keeping operations and their mandates as well as their predominant deployment in intra-state conflicts are however also the origin of many current problems with regard to the conduct of such operations. These complexities, taken together with often diverse political interests of SC Members can easily lead to overlapping or even contradictory mandates resulting from different decisions adopted by the Council over a period of time. Too often there is a wide gap between a broad mandate defined with political considerations in mind and a distinct lack of will to provide the UN with the necessary support in terms of material, finances and personnel for the implementation of the mandate. The most obvious case was the UN's engagement in the former Yugoslavia. There the UN's involvement only occurred after the blatant failure of regional European efforts undertaken by the OSCE and the European Union. The mandates given by the SC to the UN-SG for the build-up of the UN activities mirrored the political discord among the Council's members. Even more devastating was the impossibility to engage troops in sufficient strength although the UN Secretariat had presented very clear assessments to the Council. It would certainly be wrong to draw lasting conclusions from the UN's "failure" in the former Yugoslavia as to the value of peace-keeping operations in general or the UN's capability to mount and execute such operations. However, this and similar examples clearly have proven the limitations and difficulties the Organization faces in

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implementing complex peace-keeping tasks: questionable mandates, characterized by politically inspired compromises, unclear lines of command and uncertainties in the interplay of political and military leadership as well as the lack of clear rules to deal with emerging contradictions between humanitarian tasks and mandates that also include the right to use force. These negative experiences with UNPROFOR, compounded with similar negative conclusion, first of all drawn by the American public from the Somalia operation have led to the remarkable restraint in the number of new peace-keeping operations, established at the end of the 1990s. It remains to be seen whether the new trend to new PKOs - which paradoxically started after the bypassing of the UN during NATO's Kosovo operation with SC Res. 1244 of 10 June 1999 entrusting the UN with the establishment of an international civil presence in Kosovo to provide an interim administration - will be more than another episode in the UN's history. For that to happen Member States would have to muster political will around the UN and endow the organization with the necessary financial and military means. In the time for the "Millenniums GA" an expert panel mandated by the UN-SG and led by the former Algerian Minister for Foreign Affairs and UN trouble-shooter Lakhdar Brahimi submitted its findings containing concrete proposals for strategic and opertaional improvements to UN peace operations (see infra Annex II). As with the case of peace-keeping operations, the UN Charter again contains only a vague legal basis for activities of the UN-SG in the area of "good offices" and preventive diplomacy. Art. 99 of the Charter entitles the UN-SG to "bring to the attention of the SC any matter, which in his opinion may threaten the maintenance of international peace and security". On the basis of this provision as well as the position of the UN-SG as one of the six main organs of the UN all Secretaries General have undertaken efforts, not all of them successful, to put their office in the service of securing peace and promoting the peaceful solution of conflicts. (See supra Neuhold.) Art. 99 makes it clear that the UN-SG does not have to await special authorization for such activities from the SC. There are, however, only few exceptional cases in the UN's history where the UN-SG on the basis of Art. 99 acted totally on and by his own. As a rule the UN-SG would endeavor to obtain an invitation from the parties to a conflict for his activities. Often he would have a specific mandate from the SC or the GA. Nevertheless Art. 99 is important as a general foundation for the "political" activities of the UN-SG, giving him added maneuverability in this difficult arena. Frequently, good offices and mediation efforts of the UN-SG occur in the context of peace-keeping operations, sometimes also in a preparatory phase of such operations. Often the UN-SG acts independently from or outside of peace-keeping operations. The end of the East-West conflict and the concomitant termination of


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many special relationships which in former times precluded the UN-SG from activities in a number of conflicts, where any political action by him would have been directed against the clear wish of one of the permanent members of the SC, have resulted in vastly increased possibilities for the UN-SG to act in the interest of peace and international security. In itself this proves again the UN's astounding capability to react to a changing international environment and adapt its modus operandi accordingly. Thus since the 1980s the UN developed a whole new infrastructure which is at the service of the UN-SG and enables him to assume these political functions. Conceptually, UN-SG Boutros-Ghali in publishing his 1992 report "An Agenda for Peace" made a major contribution towards the further development of the instruments of preventive diplomacy and other related activities. The UN Secretariat systematically developed and enlarged its capacity to ascertain and analyze data. From an organizational point of view the UN followed the practice of many foreign ministries and localized this capacity within the regional units of the Department for Political Affairs. In addition the UN-SG's reform project which the GA endorsed politically in 1997 (see infra 6) brought the establishment of a strategic planing unit located within the office of the UN-SG. An essential element in this array of political instruments at the service of the UN-SG is a rather extended net of Special and Personal Representatives of the UN-SG for individual crises and hot spots or geographical regions. This net can be supplemented with the dispatch of high Secretariat officials on Special Missions as well as by the potential offered through the Resident Representatives of the UN system located in more than 130 countries, who have seen their positions strengthened by the UNSG's reform plan. Finally the UN's information centers located in many countries can also assume the function of political reporting to New York. While in practice the further elaboration of instruments necessary for an active exercise of the political functions of the UN-SG has made major progress over the last years, parallel efforts to develop the underlying concepts on the basis of UNSG Boutros-Ghali's initial report stagnated. This is in particular the case with regards to efforts to have the GA define and elaborate the concept of preventive diplomacy and the related authority and tasks of the UN-SG. Especially the members of the non-aligned movement who tend to focus predominantly on the issue of sovereignty were not inclined to support a concept which would broaden the authority of the UN-SG in the exercise of political functions. They called for a clear statement that the consent of the State concerned as well as an appropriate mandate by the GA were prerequisites for activities of the UN-SG in the field of preventive action. In a close context with peace-keeping activities and through the involvement of its different components the UN system has developed methods to contribute in an effective way towards the political, economic and social reconstruction of countries

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after civil wars or other conflict situations. Contributions of the UN system towards this goal can be very diverse: assistance in the preparation and monitoring of elections, measures for the reestablishment of the economy, support in the establishment of new administrative structures etc. Under the general heading of post conflict peace-building such concerted actions in different areas, carried out in cooperation with the host country, help to establish new structures of government and provide a stabile basis for new political arrangements. Similar to preventive diplomacy, actual practice will have precedence over attempts to elaborate theoretical models. This is also the approach used by the UN-SG, who nominated the Department for Political Affairs as the focal point for all post-conflict peace-building measures. Many of these new activities that do not enjoy a clear mandate arising from the Charter are in a potential conflict with the principle of non interference in matters which are essentially within the domestic jurisdiction of States. (See supra Cede.) In the course of the history of the organization the relevance of this principle arising out of the notion of sovereign equality of States underwent some cautious erosion in favor of a strengthening of the position of the individual and his/her rights. This tendency found its special expression in the area of international protection of human rights. (See supra Strohal.) The elaboration of numerous (more than 25) human rights instruments under the auspices of the UN certainly is one of the major achievements of the organization, even though practical efforts to better ensure their implementation have been less successful. A closely related interesting aspect is the question of the relevance of human rights issues in the deliberations and decisions of the SC. The underlying concept would be the recognition that grave violations of human rights can constitute a danger to international peace and security. This idea has gained acceptance at least by most Members of the SC, although formal reference to human rights considerations in SC resolutions is still difficult to achieve. At the end of the 1980s the UN started to occupy itself with election monitoring and rendering of assistance for the organization of democratic elections. The demand for periodic democratic elections was first included in numerous GA resolutions with regard to the policy of apartheid in South Africa. Then it became abstracted from the historic case and developed into a principle by its own right and the UN was called upon to develop a capacity to render the necessary assistance. For that purpose the UN Secretariat established an electoral unit which later developed into a separate division within the Department for Political Affairs. Today this division carries out monitoring and assistance activities in the context of numerous electoral processes world-wide. A further important loosening of the sovereignty of States concept in particular grave instances of human rights violations occurred when the SC in 1993 and 1994 decided to establish International Criminal Tribunals in the context of


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crimes committed in Rwanda and the former Yugoslavia. This development found its continuation in the adoption in Rome in Summer 1997 of the Statute of a Permanent International Criminal Court with a general competence to sit over individual cases This project has the strong support of a very large number of Member States. At the same time others, including the US have strong reservations as to the extent to which their own nationals could be subjected to such proceedings of an international court.

4. New Topics - New Challenges There are a number of issues that at the time of the elaboration of the Charter did not form part of any international agenda. Only later were they recognized as new and important challenges for mankind which in order to be met called for a global international response. It speaks again for the flexibility of the UN system that various UN bodies started to preoccupy themselves with these issues. Sometimes also new organizational structures had to be developed to elaborate solutions and approaches for these global challenges. First among those issues are questions concerning the environment. The 1972 Stockholm Conference on the Human Environment marks the starting point of a constant and in depth discussion of environmental issues. The 1995 Rio Conference on Environment and Development started to build the bridge to the related concept of sustainable development. (See supra Loibl.) Other issues which gained importance and were recognized as such by the UN system are World population questions (see supra FreudenschuB-Reichl) and the complex topic of drug control and the related fight against organized crime (see supra MayrhoferGruenbuehel/Ebner). Although the preamble of the Charter contains a reference to "the equal rights of men and women", a principle that was repeated in many human rights instruments, meaningful efforts to implement this principle have only commenced in the course of the 1970s (with the World Women Conference in Mexico City in 1975 and the Proclamation of the International Decade for Women 1976-1985. Since then the UN has made a major contribution world-wide towards securing equal treatment for and the promotion of the position of women. (See supra Worgetter.) In the context of these and various other issues the UN has assumed the important function to raise, through the initiation of public dialogue, international awareness of problems that have newly emerged and need an international approach for their solution. Through the adoption of resolutions and declarations, the elaboration of standards and, eventually of internationally binding legal instruments the UN has assumed an important international norm-setting function. (See supra Hafner.)

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5. The Group System within the United Nations The marked increase in the UN's membership has resulted in a system where the interaction between groups of States strongly influences the scene. In this context the importance lies less with the regional groupings than with the political/economic groups that transcend regional criteria. The five regional groups (Group of Western European and other States - WEOG, encompassing also Canada, New Zealand, Australia, the US and Israel, the group of Eastern European States as well as the Group of Asian States, the Group of African States and the Group of Latin American and Caribbean States - GRULAG) have a limited importance as caucus for the coordination of candidatures for various committees and bureau functions. As a rule they do not discuss substantial matters. Increasingly it is the political groups that dominate the negotiations. The largest of these groups is the Group of 77 (G-77), which kept its name after the number of its founding members, but today has a constituency of over 130. The G-77 can rely on support from its own secretariat in New York for the elaboration of draft statements and position papers and maintains chapters in other UN locations, in particular in Geneva, Vienna, Paris and Nairobi. This group, acting through an annual chairmanship represents the "interests of the South" in negotiations on social and economic issues. Parallel to this group and with a largely overlapping membership, the non-aligned movement counts more than 110 members. It is regularly chaired by the representatives of the country which hosted the last non-aligned summit, an event taking place on a different continent every three years. This group is less coherent in substance but nevertheless exerts great influence in negotiations on political issues, including disarmament but also human rights issues. On the side of the industrialized States there is no formally established grouping with a similar comprehensive membership. OECD countries meet informally as the "Vinci-group" (named after a former Italian Permanent Representative), although the potential of this group is not widely utilized. The situation is quite different with regard to the 15 delegations of the Member States of the European Union: these delegations to an increasing extent act coherently and jointly on a growing number of issues and are the most important negotiating partner for the G-77 and the non-aligned movement as well as for the US. At the same time on many positions Canada, Australia and New Zealand also have begun to express themselves jointly as the CANZ group. The establishment of these groups, which is characteristic for the way most business is done at the UN today, facilitates the conduct of negotiations among the 189 Member States. At the same time internal group dynamics also have negative effects: within the European Union the clear tendency is to adopt common positions on as many issues as possible. This can easily lead to the ratification of the lowest common denominator and causes a preference for the repetition of already elabor-


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ated positions over an active engagement with new developments. Within the G77 and the non-aligned movement, especially in light of their large membership, group dynamics tends to give prominence to more accentuated positions with detrimental effects on efforts to find compromise positions under which the whole UN membership could than rally. (Decision making by consensus is the preferred modus operandi for the GA.) The dominant use of the established channels of negotiations between these groups also easily results in feelings of isolation for delegations that do not form part of any of the major groups and therefore have difficulty in having their voices heard in the negotiating process. Sometimes this is even true for the US delegation, which in spite of its obvious preponderance can have difficulty in inserting themselves into the negotiating process, a circumstance that could only contribute to the ambivalent position of the US versus the UN.

6. UN Reform The UN's history is characterized by periodic major reform projects. Most of them have resulted in some structural adaptation of the UN's Secretariat. The latest of these efforts also was perhaps the most ambitious of all reform exercises. It has changed the current outlook of the organization. The 50th anniversary of the organization helped to focus some energy, also from the part of NGOs, private think tanks and governments on a reform agenda. Little happened at the anniversary session in fall 1995 itself but the first groundwork was done through a general call, repeated in most of the statements of the Heads of Delegations present, for a serious effort to bring the organization in shape for the next century. This issue then became crucial in the process of selecting a new UN-SG. The capacity of the UN to embark on a true reform became critical for the US attitude: continuing US support for the UN clearly became contingent on the UN's and in particular the UN-SG's preparedness to initiate major steps towards reform. The new UN-SG, Kofi Annan, who with strong US backing assumed office on 1 January 1997, quickly became the promoter for a comprehensive new reform effort, which he presented to the GA some six months after taking office. This project was truly comprehensive in as much as it called both for a series of measures to restructure the Secretariat in order to increase efficiency but also for major decisions to be taken by the membership on how better to conduct business in the GA and the other deliberative organs of the Organization. Three years later one can venture an assessment: clearly the UN-SG has been successful in initiating and implementing a new management structure and atmosphere within the Secretariat. At the same time it must also be said that Member States have at best been slow and reluctant to follow the leadership of the UN-SG and to adopt the necessary decisions to implement reform proposals. To a large extent the reform effort was seen as being driven by US demands, which

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in a situation of large arrears in contributions due by the US kept support for reform limited. Within the UN membership it was the European Union and the CANZ group as well as Japan that argued for reform, whereas most of the G-77 countries remained skeptical. The following are the main features of the reform package as they materialized: Management structure, strategic directions and system-wide coherence • establishment of the post of a Deputy-SG; • clustering of all departments under four executive committees: Peace and Security, Humanitarian Affairs, Development, Social and Economic Affairs; • establishment of a Senior Management Group comprising all senior officials of the UN, and its funds and programmes with weekly meetings. Peace, security and disarmament • strengthening of the UN's capacities in the field of conflict prevention and post-conflict peace-building; • establishment of a new Department for Disarmament and Arms Regulation. Enhanced role of the UN in economic and social affairs • consolidation of three competing economic/social departments into one: DES A (Department for Economic and Social Affairs); • consolidation of the three funds dealing with development activities (UNDP, UNICEF, UNFPA) into one UN Development Group; • coherent unified country presence for the UN system with UN field offices under one streamlined authority carrying out implementation of a countryspecific UN Development Assistance Framework (UNDAF); • revitalization of ECOSOC with better focused high level political segments and increased governance functions over programmes and agencies; • largely improved and more intensive relationship with the Bretton Woods Institutions; • consolidation of UN activities aimed against manifestations of "uncivil society" into the United Nations Office for Drug Control and Crime Prevention (ODCCP), located in Vienna, Austria. Enhancement of UN's human rights activities • the High Commissioner for Human Rights participates in all four Executive Committees with a view to securing that human rights considerations are represented in all UN activities; • strengthening of the New York liaison office of the High Commissioner.


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While these are no doubt major elements of reform, other important proposals made by the UN-SG are still to be implemented, e.g.: • securing the financial base for UN activities through the creation of a Revolving Credit Fund to compensate for unpaid contributions; • initiation of Sunset Clauses that would automatically terminate after a certain period of time new mandates established by GA resolutions; • streamlining of the GA's agenda, grouping agenda items around a limited number of coherent themes. "Reform is a process, not an event". This dictum by Kofi Annan describes best the hopes that his major reform initiative has generated: there is undoubtedly a new spirit at UN Headquarters. True structural reform has started, although it will still be a difficult road until the membership at large will support reform not as something that is forced upon Member States by some of the major contributors to the UN budget but out of conviction that only a reformed UN will stand the test of the future.

7. Considerations Determining the UN's Future? Beyond the issue of reform, a number of other important issues will determine the UN's future and its position of relevance or irrelevance in international relations. Among them are the following: • a realistic assessment of what the UN can do and what it cannot do; a stronger concentration on areas where the UN has a comparative advantage over other institutions; this will be necessary to safeguard adequate financial support from major contributing countries; • in this context the UN needs a better distribution of labor between the UN system and other organizations; non-competitive, mutually reinforcing and supplementing relations and a more constructive relationship vis-a-vis the Bretton Woods Institutions; • the focus of UN debates must increasingly shift towards the individual. "Human Security" has developed into the major multilateral dossier. It encompasses issues such as human rights, including social and economic rights, environmental protection, sustainable development, humanitarian law, securing the safety of the individual through the prevention of conflicts. Increasingly groups of smaller States actively engaged in UN proceedings advocate the advancement of thee issues. Their agenda needs to be strengthened; • a serious approach to the development agenda within the overall concept of human security providing for the right to development both on the national level and the level of the individual through a rules based approach to human rights;

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• the development of international relations and in particular the predominance of internal conflicts over traditional inter-state conflicts necessitates a further progressive evolution of the interpretation of Art. 2 (7), the non-intervention clause which allows for the development of instruments of preventive diplomacy and other preventive measures. UN-SG Kofi Annan has made a major contribution to this debate in underlining the dilemma the organization is confronted with when it has to face overwhelming humanitarian reasons in favour of intervention while decision-making might be blocked within the SC; • a willingness to seriously engage civil society: the UN must become aware of the fact that a number of international actors are currently engaged on the global scene: NGOs, international enterprises, academia, global interest groups, they all must be enticed to join UN efforts; • SC reform, which is long overdue, must be solved on a political level; the current limited composition of the Council is widely seen as unrepresentative which poses serious questions to the legitimacy of SC action; • last but not least: the Organization must be rescued form periodically recurrent financial crises with crippling effects on UN activities. For this to occur the ambivalent relationship between the UN and the US must be markedly improved without, however, alienating Japan and the European Union as additional major contributors. In September 2000, on the initiative of the UN-SG, Heads of State and Government of UN Member States met in New York for a "Millennium Summit". In addition to the above-mentioned issues they addressed the possibilities and challenges offered and posed by the process of globalization and the prospects of engaging civil society and private enterprise in UN activities. The world leaders agreed on a number of headline goals in the areas of social and economic development such as eradication of poverty, reduction of maternal mortality, global access to primary education and to reverse the spread of HIV/AIDS. Only the future will tell whether this unprecedented event will generate lasting results. The "United Nations Millennium Declaration" adopted by the summit on 6 September 2000, however, contains all the ingredients necessary for a profound change in paradigm for the UN in the new millennium (see infra Annex I). Following the suggestions and exhortations of the UN-SG Kofi Annan the world leaders recognized their collective responsibility to uphold the principles of human development, equality and dignity, they considered the following fundamental values to be essential to international relations in the 21st century: freedom, equality, solidarity, tolerance, respect for nature and shared responsibility for managing world-wide economic and social development as well as threats to international


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peace and security. They committed themselves to spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms. It will be up to Member States to fulfill these promises. The UN as the "indispensable common house of the entire human family" stands ready to be used as the most suitable vehicle for these purposes on the global level.


Annexes


Annex I United Nations A/RES/55/2 General Assembly / Distr.: General / 18 September 2000 Fifty-fifth session, Agenda item 60 (b)

Resolution adopted by the General Assembly [without reference to a Main Committee (A/55/L.2)] 55/2. United Nations Millennium Declaration The General Assembly Adopts the following Declaration:

United Nations Millennium Declaration /. Values and principles 1. We, heads of State and Government, have gathered at United Nations Headquarters in New York from 6 to 8 September 2000, at the dawn of a new millennium, to reaffirm our faith in the Organization and its Charter as indispensable foundations of a more peaceful, prosperous and just world. 2. We recognize that, in addition to our separate responsibilities to our individual societies, we have a collective responsibility to uphold the principles of human dignity, equality and equity at the global level. As leaders we have a duty therefore to all the world's people, especially the most vulnerable and, in particular, the children of the world, to whom the future belongs. 3. We reaffirm our commitment to the purposes and principles of the Charter of the United Nations, which have proved timeless and universal. Indeed, their relevance and capacity to inspire have increased, as nations and peoples have become increasingly interconnected and interdependent. 4. We are determined to establish a just and lasting peace all over the world in accordance with the purposes and principles of the Charter. We rededicate ourselves to support all efforts to uphold the sovereign equality of all States, respect for their territorial integrity and political independence, resolution of disputes by peaceful means and in conformity with the principles of justice and international law, the right to self-determination of peoples which remain under colonial 333

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domination and foreign occupation, non-interference in the internal affairs of States, respect for human rights and fundamental freedoms, respect for the equal rights of all without distinction as to race, sex, language or religion and international cooperation in solving international problems of an economic, social, cultural or humanitarian character. 5. We believe that the central challenge we face today is to ensure that globalization becomes a positive force for all the world's people. For while globalization offers great opportunities, at present its benefits are very unevenly shared, while its costs are unevenly distributed. We recognize that developing countries and countries with economies in transition face special difficulties in responding to this central challenge. Thus, only through broad and sustained efforts to create a shared future, based upon our common humanity in all its diversity, can globalization be made fully inclusive and equitable. These efforts must include policies and measures, at the global level, which correspond to the needs of developing countries and economies in transition and are formulated and implemented with their effective participation. 6. We consider certain fundamental values to be essential to international relations in the twenty-first century. These include: • Freedom. Men and women have the right to live their lives and raise their children in dignity, free from hunger and from the fear of violence, oppression or injustice. Democratic and participatory governance based on the will of the people best assures these rights. • Equality. No individual and no nation must be denied the opportunity to benefit from development. The equal rights and opportunities of women and men must be assured. • Solidarity. Global challenges must be managed in a way that distributes the costs and burdens fairly in accordance with basic principles of equity and social justice. Those who suffer or who benefit least deserve help from those who benefit most. • Tolerance. Human beings must respect one other, in all their diversity of belief, culture and language. Differences within and between societies should be neither feared nor repressed, but cherished as a precious asset of humanity. A culture of peace and dialogue among all civilizations should be actively promoted. • Respect for nature. Prudence must be shown in the management of all living species and natural resources, in accordance with the precepts of sustainable development. Only in this way can the immeasurable riches provided to us

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by nature be preserved and passed on to our descendants. The current unsustainable patterns of production and consumption must be changed in the interest of our future welfare and that of our descendants. • Shared responsibility. Responsibility for managing worldwide economic and social development, as well as threats to international peace and security, must be shared among the nations of the world and should be exercised multilaterally. As the most universal and most representative organization in the world, the United Nations must play the central role. 7. In order to translate these shared values into actions, we have identified key objectives to which we assign special significance. //. Peace, security and disarmament 8. We will spare no effort to free our peoples from the scourge of war, whether within or between States, which has claimed more than 5 million lives in the past decade. We will also seek to eliminate the dangers posed by weapons of mass destruction. 9. We resolve therefore: • To strengthen respect for the rule of law in international as in national affairs and, in particular, to ensure compliance by Member States with the decisions of the International Court of Justice, in compliance with the Charter of the United Nations, in cases to which they are parties. • To make the United Nations more effective in maintaining peace and security by giving it the resources and tools it needs for conflict prevention, peaceful resolution of disputes, peacekeeping, post-conflict peace-building and reconstruction. In this context, we take note of the report of the Panel on United Nations Peace Operations1 and request the General Assembly to consider its recommendations expeditiously. • To strengthen cooperation between the United Nations and regional organizations, in accordance with the provisions of Chapter VIE of the Charter. • To ensure the implementation, by States Parties, of treaties in areas such as arms control and disarmament and of international humanitarian law and human rights law, and call upon all States to consider signing and ratifying the Rome Statute of the International Criminal Court.2 1 A/55/305-S/2000/809; see Official Records of the Security Council, Fifty-fifth Year, Supplement for July, August and September 2000, document S/2000/809. 2

A/CONF.183/9.

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• To take concerted action against international terrorism, and to accede as soon as possible to all the relevant international conventions. • To redouble our efforts to implement our commitment to counter the world drug problem. • To intensify our efforts to fight transnational crime in all its dimensions, including trafficking as well as smuggling in human beings and money laundering. • To minimize the adverse effects of United Nations economic sanctions on innocent populations, to subject such sanctions regimes to regular reviews and to eliminate the adverse effects of sanctions on third parties. • To strive for the elimination of weapons of mass destruction, particularly nuclear weapons, and to keep all options open for achieving this aim, including the possibility of convening an international conference to identify ways of eliminating nuclear dangers. • To take concerted action to end illicit traffic in small arms and light weapons, especially by making arms transfers more transparent and supporting regional disarmament measures, taking account of all the recommendations of the forthcoming United Nations Conference on Illicit Trade in Small Arms and Light Weapons. • To call on all States to consider acceding to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction,3 as well as the amended mines protocol to the Convention on conventional weapons.4 10. We urge Member States to observe the Olympic Truce, individually and collectively, now and in the future, and to support the International Olympic Committee in its efforts to promote peace and human understanding through sport and the Olympic Ideal. ///. Development and poverty eradication 11. We will spare no effort to free our fellow men, women and children from the abject and dehumanizing conditions of extreme poverty, to which more than a billion of them are currently subjected. We are committed to making the right to development a reality for everyone and to freeing the entire human race from want. 3 4

See CD/1478.

Amended protocol on prohibitions or restrictions on the use of mines, booby-traps and other devices (CCW/CONF.I/16 (Part I), annex B).

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12. We resolve therefore to create an environment - at the national and global levels alike - which is conducive to development and to the elimination of poverty. 13. Success in meeting these objectives depends, inter alia, on good governance within each country. It also depends on good governance at the international level and on transparency in the financial, monetary and trading systems. We are committed to an open, equitable, rule-based, predictable and non-discriminatory multilateral trading and financial system. 14. We are concerned about the obstacles developing countries face in mobilizing the resources needed to finance their sustained development. We will therefore make every effort to ensure the success of the High-level International and Intergovernmental Event on Financing for Development, to be held in 2001. 15. We also undertake to address the special needs of the least developed countries. In this context, we welcome the Third United Nations Conference on the Least Developed Countries to be held in May 2001 and will endeavour to ensure its success. We call on the industrialized countries: • To adopt, preferably by the time of that Conference, a policy of duty- and quota-free access for essentially all exports from the least developed countries; • To implement the enhanced programme of debt relief for the heavily indebted poor countries without further delay and to agree to cancel all official bilateral debts of those countries in return for their making demonstrable commitments to poverty reduction; and • To grant more generous development assistance, especially to countries that are genuinely making an effort to apply their resources to poverty reduction. 16. We are also determined to deal comprehensively and effectively with the debt problems of low- and middle-income developing countries, through various national and international measures designed to make their debt sustainable in the long term. 17. We also resolve to address the special needs of small island developing States, by implementing the Barbados Programme of Action5 and the outcome of the twenty-second special session of the General Assembly rapidly and in full. We urge the international community to ensure that, in the development of a

5

Programme of Action for the Sustainable Development of Small Island Developing States (Report of the Global Conference on the Sustainable Development of Small Island Developing States, Bridgetown, Barbados, 25 April-6May 1994 (United Nations publication, Sales No. E.94.I.18 and corrigenda), chap. I, resolution 1, annex II).

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vulnerability index, the special needs of small island developing States are taken into account. 18. We recognize the special needs and problems of the landlocked developing countries, and urge both bilateral and multilateral donors to increasefinancialand technical assistance to this group of countries to meet their special development needs and to help them overcome the impediments of geography by improving their transit transport systems. 19. We resolve further: • To halve, by the year 2015, the proportion of the world's people whose income is less than one dollar a day and the proportion of people who suffer from hunger and, by the same date, to halve the proportion of people who are unable to reach or to afford safe drinking water. • To ensure that, by the same date, children everywhere, boys and girls alike, will be able to complete a full course of primary schooling and that girls and boys will have equal access to all levels of education. • By the same date, to have reduced maternal mortality by three quarters, and under-five child mortality by two thirds, of their current rates. • To have, by then, halted, and begun to reverse, the spread of HIV/AIDS, the scourge of malaria and other major diseases that afflict humanity. • To provide special assistance to children orphaned by HIV/ADDS. • By 2020, to have achieved a significant improvement in the lives of at least 100 million slum dwellers as proposed in the "Cities Without Slums" initiative. 20. We also resolve: • To promote gender equality and the empowerment of women as effective ways to combat poverty, hunger and disease and to stimulate development that is truly sustainable. • To develop and implement strategies that give young people everywhere a real chance to find decent and productive work. • To encourage the pharmaceutical industry to make essential drugs more widely available and affordable by all who need them in developing countries. • To develop strong partnerships with the private sector and with civil society organizations in pursuit of development and poverty eradication. • To ensure that the benefits of new technologies, especially information and

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communication technologies, in conformity with recommendations contained in the ECOSOC 2000 Ministerial Declaration,6 are available to all. IV. Protecting our common environment 21. We must spare no effort to free all of humanity, and above all our children and grandchildren, from the threat of living on a planet irredeemably spoilt by human activities, and whose resources would no longer be sufficient for their needs. 22. We reaffirm our support for the principles of sustainable development, including those set out in Agenda 21, 7 agreed upon at the United Nations Conference on Environment and Development. 23. We resolve therefore to adopt in all our environmental actions a new ethic of conservation and stewardship and, as first steps, we resolve: • To make every effort to ensure the entry into force of the Kyoto Protocol, preferably by the tenth anniversary of the United Nations Conference on Environment and Development in 2002, and to embark on the required reduction in emissions of greenhouse gases. • To intensify our collective efforts for the management, conservation and sustainable development of all types of forests. • To press for the full implementation of the Convention on Biological Diversity8 and the Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, particularly in Africa.9 • To stop the unsustainable exploitation of water resources by developing water management strategies at the regional, national and local levels, which promote both equitable access and adequate supplies. • To intensify cooperation to reduce the number and effects of natural and manmade disasters. • To ensure free access to information on the human genome sequence. 6

E/2000/L.9.

7

Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992 (United Nations publication, Sales No. E.93.I.8 and corrigenda), vol. I: Resolutions adopted by the Conference, resolution 1, annex II. 8

See United Nations Environment Programme, Convention on Biological Diversity (Environmental Law and Institution Programme Activity Centre), June 1992. 9

A/49/84/Add.2, annex, appendix II.

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V. Human rights, democracy and good governance 24. We will spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms, including the right to development. 25. We resolve therefore: • To respect fully and uphold the Universal Declaration of Human Rights.10 • To strive for the full protection and promotion in all our countries of civil, political, economic, social and cultural rights for all. • To strengthen the capacity of all our countries to implement the principles and practices of democracy and respect for human rights, including minority rights. • To combat all forms of violence against women and to implement the Convention on the Elimination of All Forms of Discrimination against Women.11 • To take measures to ensure respect for and protection of the human rights of migrants, migrant workers and their families, to eliminate the increasing acts of racism and xenophobia in many societies and to promote greater harmony and tolerance in all societies. • To work collectively for more inclusive political processes, allowing genuine participation by all citizens in all our countries. • To ensure the freedom of the media to perform their essential role and the right of the public to have access to information. VI. Protecting the vulnerable 26. We will spare no effort to ensure that children and all civilian populations that suffer disproportionately the consequences of natural disasters, genocide, armed conflicts and other humanitarian emergencies are given every assistance and protection so that they can resume normal life as soon as possible. We resolve therefore: • To expand and strengthen the protection of civilians in complex emergencies, in conformity with international humanitarian law. • To strengthen international cooperation, including burden sharing in, and the 10

Resolution 217 A (III).

11

Resolution 34/180, annex.

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coordination of humanitarian assistance to, countries hosting refugees and to help all refugees and displaced persons to return voluntarily to their homes, in safety and dignity and to be smoothly reintegrated into their societies. • To encourage the ratification and full implementation of the Convention on the Rights of the Child12 and its optional protocols on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography.13 VII. Meeting the special needs ofAfrica 27. We will support the consolidation of democracy in Africa and assist Africans in their straggle for lasting peace, poverty eradication and sustainable development, thereby bringing Africa into the mainstream of the world economy. 28. We resolve therefore: • To give full support to the political and institutional structures of emerging democracies in Africa. • To encourage and sustain regional and subregional mechanisms for preventing conflict and promoting political stability, and to ensure a reliable flow of resources for peacekeeping operations on the continent. • To take special measures to address the challenges of poverty eradication and sustainable development in Africa, including debt cancellation, improved market access, enhanced Official Development Assistance and increased flows of Foreign Direct Investment, as well as transfers of technology. • To help Africa build up its capacity to tackle the spread of the HIV/AIDS pandemic and other infectious diseases. VIII. Strengthening the United Nations 29. We will spare no effort to make the United Nations a more effective instrument for pursuing all of these priorities: thefightfor development for all the peoples of the world, the fight against poverty, ignorance and disease; the fight against injustice; the fight against violence, terror and crime; and the fight against the degradation and destruction of our common home. 30. We resolve therefore: • To reaffirm the central position of the General Assembly as the chief 12


13

Resolution 54/263, annexes I and II.

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• • • • • •

• •

•

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deliberative, policy-making and representative organ of the United Nations, and to enable it to play that role effectively. To intensify our efforts to achieve a comprehensive reform of the Security Council in all its aspects. To strengthen further the Economic and Social Council, building on its recent achievements, to help it fulfil the role ascribed to it in the Charter. To strengthen the International Court of Justice, in order to ensure justice and the rule of law in international affairs. To encourage regular consultations and coordination among the principal organs of the United Nations in pursuit of their functions. To ensure that the Organization is provided on a timely and predictable basis with the resources it needs to carry out its mandates. To urge the Secretariat to make the best use of those resources, in accordance with clear rules and procedures agreed by the General Assembly, in the interests of all Member States, by adopting the best management practices and technologies available and by concentrating on those tasks that reflect the agreed priorities of Member States. To promote adherence to the Convention on the Safety of United Nations and Associated Personnel.14 To ensure greater policy coherence and better cooperation between the United Nations, its agencies, the Bretton Woods Institutions and the World Trade Organization, as well as other multilateral bodies, with a view to achieving a fully coordinated approach to the problems of peace and development. To strengthen further cooperation between the United Nations and national parliaments through their world organization, the Inter-Parliamentary Union, in various fields, including peace and security, economic and social development, international law and human rights and democracy and gender issues. To give greater opportunities to the private sector, non-governmental organizations and civil society, in general, to contribute to the realization of the Organization's goals and programmes.

31. We request the General Assembly to review on a regular basis the progress made in implementing the provisions of this Declaration, and ask the Secretary14


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General to issue periodic reports for consideration by the General Assembly and as a basis for further action. 32. We solemnly reaffirm, on this historic occasion, that the United Nations is the indispensable common house of the entire human family, through which we will seek to realize our universal aspirations for peace, cooperation and development. We therefore pledge our unstinting support for these common objectives and our determination to achieve them. 8th plenary meeting 8 September 2000

Annex II A/55/305 Summary of recommendations 1. Preventive action: (a) The Panel endorses the recommendations of the Secretary-General with respect to conflict prevention contained in the Millennium Report and in his remarks before the Security Council's second open meeting on conflict prevention in July 2000, in particular his appeal to "all who are engaged in conflict prevention and development—the United Nations, the Bretton Woods institutions, Governments and civil society organizations — [to] address these challenges in a more integrated fashion"; (b) The Panel supports the Secretary-General's more frequent use of fact-finding missions to areas of tension, and stresses Member States' obligations, under Article 2(5) of the Charter, to give "every assistance" to such activities of the United Nations. 2. Peace-building strategy: (a) A small percentage of a mission's first-year budget should be made available to the representative or special representative of the Secretary-General leading the mission to fund quick impact projects in its area of operations, with the advice of the United Nations country team's resident coordinator; (b) The Panel recommends a doctrinal shift in the use of civilian police, other rule of law elements and human rights experts in complex peace operations to reflect an increased focus on strengthening rule of law institutions and improving respect for human rights in post-conflict environments; (c) The Panel recommends that the legislative bodies consider bringing demobilization and reintegration programmes into the assessed budgets of complex peace operations for the first phase of an operation in order to facilitate the rapid disassembly of fighting factions and reduce the likelihood of resumed conflict; (d) The Panel recommends that the Executive Committee on Peace and Security (ECPS) discuss and recommend to the Secretary-General a plan to strengthen the permanent capacity of the United Nations to develop peace-building strategies and to implement programmes in support of those strategies. 344

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3. Peacekeeping doctrine and strategy:

Once deployed, United Nations peacekeepers must be able to carry out their mandates professionally and successfully and be capable of defending themselves, other mission components and the mission's mandate, with robust rules of engagement, against those who renege on their commitments to a peace accord or otherwise seek to undermine it by violence. 4. Clear, credible and achievable mandates: (a) The Panel recommends that, before the Security Council agrees to implement a ceasefire or peace agreement with a United Nations-led peacekeeping operation, the Council assure itself that the agreement meets threshold conditions, such as consistency with international human rights standards and practicability of specified tasks and timelines; (b) The Security Council should leave in draft form resolutions authorizing missions with sizeable troop levels until such time as the Secretary-General has firm commitments of troops and other critical mission support elements, including peace-building elements, from Member States; (c) Security Council resolutions should meet the requirements of peacekeeping operations when they deploy into potentially dangerous situations, especially the need for a clear chain of command and unity of effort; (d) The Secretariat must tell the Security Council what it needs to know, not what it wants to hear, when formulating or changing mission mandates, and countries that have committed military units to an operation should have access to Secretariat briefings to the Council on matters affecting the safety and security of their personnel, especially those meetings with implications for a mission's use of force. 5. Information and strategic analysis: The Secretary-General should establish an entity, referred to here as the ECPS Information and Strategic Analysis Secretariat (EISAS), which would support the information and analysis needs of all members of ECPS; for management purposes, it should be administered by and report jointly to the heads of the Department of Political Affairs (DPA) and the Department of Peacekeeping Operations (DPKO). 6. Transitional civil administration: The Panel recommends that the Secretary-General invite a panel of international legal experts, including individuals with experience in United Nations operations that have transitional administration mandates, to evaluate the feasibility and utility

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of developing an interim criminal code, including any regional adaptations potentially required, for use by such operations pending the re-establishment of local rule of law and local law enforcement capacity. 7. Determining deployment timelines: The United Nations should define "rapid and effective deployment capacities" as the ability, from an operational perspective, to fully deploy traditional peacekeeping operations within 30 days after the adoption of a Security Council resolution, and within 90 days in the case of complex peacekeeping operations. 8. Mission leadership: (a) The Secretary-General should systematize the method of selecting mission leaders, beginning with the compilation of a comprehensive list of potential representatives or special representatives of the Secretary-General, force commanders, civilian police commissioners, and their deputies and other heads of substantive and administrative components, within a fair geographic and gender distribution and with input from Member States; (b) The entire leadership of a mission should be selected and assembled at Headquarters as early as possible in order to enable their participation in key aspects of the mission planning process, for briefings on the situation in the mission area and to meet and work with their colleagues in mission leadership; (c) The Secretariat should routinely provide the mission leadership with strategic guidance and plans for anticipating and overcoming challenges to mandate implementation, and whenever possible should formulate such guidance and plans together with the mission leadership. 9. Military personnel: (a) Member States should be encouraged, where appropriate, to enter into partnerships with one another, within the context of the United Nations Standby Arrangements System (UNSAS), to form several coherent brigade-size forces, with necessary enabling forces, ready for effective deployment within 30 days of the adoption of a Security Council resolution establishing a traditional peacekeeping operation and within 90 days for complex peacekeeping operations; (b) The Secretary-General should be given the authority to formally canvass Member States participating in UNSAS regarding their willingness to contribute troops to a potential operation, once it appeared likely that a ceasefire accord or agreement envisaging an implementing role for the United Nations, might be reached;

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(c) The Secretariat should, as a standard practice, send a team to confirm the preparedness of each potential troop contributor to meet the provisions of the memoranda of understanding on the requisite training and equipment requirements, prior to deployment; those that do not meet the requirements must not deploy; (d) The Panel recommends that a revolving "on-call list" of about 100 military officers be created in UNSAS to be available on seven days' notice to augment nuclei of DPKO planners with teams trained to create a mission headquarters for a new peacekeeping operation. 10. Civilian police personnel: (a) Member States are encouraged to each establish a national pool of civilian police officers that would be ready for deployment to United Nations peace operations on short notice, within the context of the United Nations Standby Arrangements System; (b) Member States are encouraged to enter into regional training partnerships for civilian police in the respective national pools, to promote a common level of preparedness in accordance with guidelines, standard operating procedures and performance standards to be promulgated by the United Nations; (c) Members States are encouraged to designate a single point of contact within their governmental structures for the provision of civilian police to United Nations peace operations; (d) The Panel recommends that a revolving on-call list of about 100 police officers and related experts be created in UNSAS to be available on seven days' notice with teams trained to create the civilian police component of a new peacekeeping operation, train incoming personnel and give the component greater coherence at an early date; (e) The Panel recommends that parallel arrangements to recommendations (a), (b) and (c) above be established for judicial, penal, human rights and other relevant specialists, who with specialist civilian police will make up collegial "rule of law" teams. 11. Civilian specialists: (a) The Secretariat should establish a central Internet/intranet-based roster of preselected civilian candidates available to deploy to peace operations on short notice. The field missions should be granted access to and delegated authority to recruit candidates from it, in accordance with guidelines on fair geographic and gender distribution to be promulgated by the Secretariat;

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(b) The Field Service category of personnel should be reformed to mirror the recurrent demands faced by all peace operations, especially at the mid- to seniorlevels in the administrative and logistics areas; (c) Conditions of service for externally recruited civilian staff should be revised to enable the United Nations to attract the most highly qualified candidates, and to then offer those who have served with distinction greater career prospects; (d) DPKO should formulate a comprehensive staffing strategy for peace operations, outlining, among other issues, the use of United Nations Volunteers, standby arrangements for the provision of civilian personnel on 72 hours' notice to facilitate mission start-up, and the divisions of responsibility among the members of the Executive Committee on Peace and Security for implementing that strategy. 12. Rapidly deploy able capacity for public information: Additional resources should be devoted in mission budgets to public information and the associated personnel and information technology required to get an operation's message out and build effective internal communications links. 13. Logistics support and expenditure management: (a) The Secretariat should prepare a global logistics support strategy to enable rapid and effective mission deployment within the timelines proposed and corresponding to planning assumptions established by the substantive offices of DPKO; (b) The General Assembly should authorize and approve a one-time expenditure to maintain at least five mission start-up kits in Brindisi, which should include rapidly deployable communications equipment. These start-up kits should then be routinely replenished with funding from the assessed contributions to the operations that drew on them; (c) The Secretary-General should be given authority to draw up to US$50 million from the Peacekeeping Reserve Fund, once it became clear that an operation was likely to be established, with the approval of the Advisory Committee on Administrative and Budgetary Questions (ACABQ) but prior to the adoption of a Security Council resolution; (d) The Secretariat should undertake a review of the entire procurement policies and procedures (with proposals to the General Assembly for amendments to the Financial Rules and Regulations, as required), to facilitate in particular the rapid and full deployment of an operation within the proposed timelines;

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(e) The Secretariat should conduct a review of the policies and procedures governing the management offinancialresources in thefieldmissions with a view to providing field missions with much greater flexibility in the management of their budgets; (f) The Secretariat should increase the level of procurement authority delegated to the field missions (from $200,000 to as high as $1 million, depending on mission size and needs) for all goods and services that are available locally and are not covered under systems contracts or standing commercial services contracts. 14. Funding Headquarters support for peacekeeping operations: (a) The Panel recommends a substantial increase in resources for Headquarters support of peacekeeping operations, and urges the Secretary-General to submit a proposal to the General Assembly outlining his requirements in full; (b) Headquarters support for peacekeeping should be treated as a core activity of the United Nations, and as such the majority of its resource requirements for this purpose should be funded through the mechanism of the regular biennial programme budget of the Organization; (c) Pending the preparation of the next regular budget submission, the Panel recommends that the Secretary-General approach the General Assembly with a request for an emergency supplemental increase to the Support Account to allow immediate recruitment of additional personnel, particularly in DPKO. 75. Integrated mission planning and support: Integrated Mission Task Forces (IMTFs), with members seconded from throughout the United Nations system, as necessary, should be the standard vehicle for missionspecific planning and support. IMTFs should serve as thefirstpoint of contact for all such support, and IMTF leaders should have temporary line authority over seconded personnel, in accordance with agreements between DPKO, DPA and other contributing departments, programmes, funds and agencies. 16. Other structural adjustments in DPKO: (a) The current Military and Civilian Police Division should be restructured, moving the Civilian Police Unit out of the military reporting chain. Consideration should be given to upgrading the rank and level of the Civilian Police Adviser; (b) The Military Adviser's Office in DPKO should be restructured to correspond more closely to the way in which the militaryfieldheadquarters in United Nations peacekeeping operations are structured;

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(c) A new unit should be established in DPKO and staffed with the relevant expertise for the provision of advice on criminal law issues that are critical to the effective use of civilian police in the United Nations peace operations; (d) The Under-Secretary-General for Management should delegate authority and responsibility for peacekeeping-related budgeting and procurement functions to the Under-Secretary-General for Peacekeeping Operations for a two-year trial period; (e) The Lessons Learned Unit should be substantially enhanced and moved into a revamped DPKO Office of Operations; (f) Consideration should be given to increasing the number of Assistant SecretariesGeneral in DPKO from two to three, with one of the three designated as the "Principal Assistant Secretary-General" and functioning as the deputy to the UnderSecretary-General. 17. Operational support for public information: A unit for operational planning and support of public information in peace operations should be established, either within DPKO or within a new Peace and Security Information Service in the Department of Public Information (DPI) reporting directly to the Under-Secretary-General for Communication and Public Information. 18. Peace-building support in the Department of Political Affairs: (a) The Panel supports the Secretariat's effort to create a pilot Peace-building Unit within DPA, in cooperation with other integral United Nations elements, and suggests that regular budgetary support for this unit be revisited by the membership if the pilot programme works well. This programme should be evaluated in the context of guidance the Panel has provided in paragraph 46 above, and if considered the best available option for strengthening United Nations peace-building capacity it should be presented to the Secretary-General within the context of the Panel's recommendation contained in paragraph 47 (d) above; (b) The Panel recommends that regular budget resources for Electoral Assistance Division programmatic expenses be substantially increased to meet the rapidly growing demand for its services, in lieu of voluntary contributions; (c) To relieve demand on the Field Administration and Logistics Division (FALD) and the executive office of DPA, and to improve support services rendered to smaller political and peace-building field offices, the Panel recommends that procurement, logistics, staff recruitment and other support services for all such

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smaller, non-military field missions be provided by the United Nations Office for Project Services (UNOPS). 19. Peace operations support in the Office of the United Nations High Commissioner for Human Rights: The Panel recommends substantially enhancing the field mission planning and preparation capacity of the Office of the United Nations High Commissioner for Human Rights, with funding partly from the regular budget and partly from peace operations mission budgets. 20. Peace operations and the information age: (a) Headquarters peace and security departments need a responsibility centre to devise and oversee the implementation of common information technology strategy and training for peace operations, residing in EISAS. Mission counterparts to the responsibility centre should also be appointed to serve in the offices of the special representatives of the Secretary-General in complex peace operations to oversee the implementation of that strategy; (b) EISAS, in cooperation with the Information Technology Services Division (ITSD), should implement an enhanced peace operations element on the current United Nations Intranet and link it to the missions through a Peace Operations Extranet (POE); (c) Peace operations could benefit greatly from more extensive use of geographic information systems (GIS) technology, which quickly integrates operational information with electronic maps of the mission area, for applications as diverse as demobilization, civilian policing, voter registration, human rights monitoring and reconstruction; (d) The IT needs of mission components with unique information technology needs, such as civilian police and human rights, should be anticipated and met more consistently in mission planning and implementation; (e) The Panel encourages the development of web site co-management by Headquarters and the field missions, in which Headquarters would maintain oversight but individual missions would have staff authorized to produce and post web content that conforms to basic presentational standards and policy.

Annex III Resolution 1318 (2000) Adopted by the Security Council at its 4194th meeting, on 7 September 2000 The Security Council, Decides to adopt the attached declaration on ensuring an effective role for the Security Council in the maintenance of international peace and security, particularly in Africa. Annex The Security Council, Meeting at the level of Heads of State and Government in the course of the Millennium Summit to discuss the need to ensure an effective role for the Security Council in the maintenance of international peace and security, particularly in Africa,

Pledges to uphold the Purposes and Principles of the Charter of the United Nations, reaffirms its commitment to the principles of sovereign equality, national sovereignty, territorial integrity and political independence of all States, and underlines the need for respect for human rights and the rule of law; Reaffirms the importance of adhering to the principles of the non-threat or nonuse of force in international relations in any manner inconsistent with the Purposes of the United Nations, and of peaceful settlement of international disputes; Recalls its primary responsibility for the maintenance of international peace and security, and resolves to strengthen the central role of the United Nations in peacekeeping and to ensure the effective functioning of the collective security system established by the Charter; II Pledges to enhance the effectiveness of the United Nations in addressing conflict at all stages from prevention to settlement to post-conflict peace-building;

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Reaffirms its determination to give equal priority to the maintenance of international peace and security in every region of the world and, in view of the particular needs of Africa, to give special attention to the promotion of durable peace and sustainable development in Africa, and to the specific characteristics of African conflicts; III Strongly encourages the development within the United Nations system and more widely of comprehensive and integrated strategies to address the root causes of conflicts, including their economic and social dimensions; Affirms its determination to strengthen United Nations peacekeeping operations by: - Adopting clearly defined, credible, achievable and appropriate mandates, - Including in those mandates effective measures for the security and safety of United Nations personnel and, wherever feasible, for the protection of the civilian population, - Taking steps to assist the United Nations to obtain trained and properly equipped personnel for peacekeeping operations, - Strengthening consultations with troop-contributing countries when deciding on such operations; Agrees to support: - the upgrading of United Nations capacity for planning, establishing, deploying and conducting peacekeeping operations, - the provision of a more up-to-date and sounder foundation forfinancingpeacekeeping operations; Underlines the importance of enhancing the United Nations capacity for rapid deployment of peacekeeping operations and urges Member States to provide sufficient and timely resources;

rv Welcomes the report of the Panel on United Nations Peace Operations of 21 August (S/2000/809), and decides to consider the recommendations which fall within its area of responsibility expeditiously;

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Stresses the critical importance of the disarmament, demobilization and reintegration of ex-combatants, and emphasizes that such programmes should normally be integrated into the mandates of peacekeeping operations; VI Calls for effective international action to prevent the illegal flow of small arms into areas of conflict; Decides to continue to take resolute action in areas where the illegal exploitation and trafficking of high-value commodities contributes to the escalation or continuation of conflict; Stresses that the perpetrators of crimes against humanity, crimes of genocide, war crimes, and other serious violations of international humanitarian law should be brought to justice; Emphasizes its determination to continue to sensitize peacekeeping personnel in the prevention and control of HIV/AIDS in all operations;

vn Calls for the strengthening of cooperation and communication between the United Nations and regional or subregional organizations or arrangements, in accordance with Chapter VIII of the Charter, and in particular in respect of peacekeeping operations; Emphasizes the importance of continued cooperation and effective coordination between the United Nations and the Organization of African Unity and African subregional organizations in addressing conflict in Africa, and of enhanced support for the Organization of African Unity Mechanism for Conflict Prevention, Management and Resolution;

vra Underlines that the ultimate responsibility for resolving disputes and conflicts lies with the parties themselves and that peacekeeping operations aimed at helping to implement a peace accord can succeed only to the extent that there is a genuine and lasting commitment to peace by all parties concerned;

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Calls upon all States to intensify efforts to secure a world free of the scourge of war.


Index

ACABQ 27, 31, 32, 234, 293 ACC 113, 114 Actio Popularis 65 Ad Hoc Committee of Experts to Examine the Finances of the UN and the Specialized Agencies 291 Ad Hoc Conferences (Special Conferences) 131 Ad Hoc Tribunals (see: War Crimes Tribunals) Advisory Committee of Experts on the Prevention of Crime and the Treatment of Offenders 266 Advisory Opinion of the ICJ: 49, 50, 52, 291 — concerning Certain Expenses of the UN 90, 291 Advisory Services 166,170 Advocacy NGOs 276 Affirmative Action 186 Agenda 66, 226, 278, 328 Agenda 21 200, 248 Agenda for Development 215, 218, 328 Agenda for Peace 34, 90, 95, 106, 108, 321 Aggression: Acts of aggression 4, 11, 15, 21, 33, 75, 90, 129 Aliens 155 Alternative Development 262, 264 Annan, Kofi 218, 226, 286, 307, 325, 327 Appeasement Policy 61 Arbitration 62, 64, 65, 69, 71, 149

Armed Force 60, 63, 70, 74 Arms Trade 272 Arrears in Contributions 33, 326 Assistant Secretary General (ASG) 45 Asylum: 50, 155, 231, 237, 238 — Country of Asylum 238 Atlantic Charter 6,160 Axis Powers 6, 7

B Bangui Agreement 84 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989)196,203 Beijing Platform of Action 190, 193, 253 Benchmarks 299, 300 Biological Weapons 127, 129, 132,133, 137 Blue Helmets 97, 121 Boutros Ghali, Boutros 34, 90, 94, 321 Bretton Woods Institutions 18, 107, 112, 117, 118,280,326,327 Briand Kellogg Pact 20 Brundtland Report 248 Bryan Treaties 20 Budget Competence Budget Crisis 292, 293, 295 Budget: 27, 29, 45, 47, 289-302 — Budget System 292, 293 — Procedure 290 — Voluntary Contributions 45

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Cairo Population Conference 248-250, 254 CANZ 325, 326 CAP (Consolidated Appeals Process) 114, 120 Capacity Building 228 Cartagena Declaration 237 CCA (Common Country Assessment) 114 CCPCJ 267, 268, 271 Cease Fire 82, 91, 93, 121, 319 CEDAW (see: Convention on the Elimination of all Forms of Discrimination against Women) Central Emergency Revolving Fund (CERF) 240 CFSP19 Charter of Economic Rights and Duties of States 217 Charter of the UN: — Amendments 35 — and Human Rights 17,160 — and PKOs 90, 95 — and Women's Rights 178 — History 6 — Principles 18 — Preamble 12 — Objectives 14 Chemical Weapons Convention 131, 138 Civil Society 107, 119, 153, 328 Clean Development Mechanism 211 Clearing House Mechanism 212 Climate Convention 198, 203, 204, 213 CNN- Effect 79 Codification 17, 20, 27, 29, 32, 42, 143, 145, 152, 163 Cold War 8, 89, 130, 152, 159, 172, 183, 316

Collective Security 11, 15, 21-23, 33, 34, 59,65,68,70,73-88,89,315 Collective Self-Defence 21, 73, 74, 77, 85 Commission for Crime Prevention and Criminal Justice (CCPCJ) 267, 268, 271 Commission for Narcotic Drugs (CND) 42, 259, 260, 263, 267 Commission for Population and Development 42, 219, 246, 250 Commission for Social Development (CSD)42,219 Commission on Human Settlement (see: HABITAT) Commission on Narcotic Drugs (CND) 42, 259, 260, 263, 267 Commission on the Protection of Minorities 161 Commission on the Status of Women 178, 219 Committee for Program and Coordination (CPC) 27, 219, 293, 296 Committee of the 18 161,166, 296 Committee on Conferences (CC) 27, 40 Committee on Contributions 31, 33 Committees of the GA: 39, 130, 150, 154, 258, 282 — Fifth Committee Functional Committees 27 — Sixth Committee 154 Commission on Science and Technology for Development 42, 219, 224 Commission on the Status of Women (CSW)42, 149, 178, 179-182, 185, 187, 189, 191-193,219 Committee on Contributions 31, 33 Communications (see: Human Rights) Community Interests 9 Complaints Procedure (CSW) 187, 189, 191-193

Index Complex Emergencies 240 Compliance Control 129,133,136 Compliance Mechanisms (Environment) 209, 210 Compliance Procedure 209, 210 Comprehensive Nuclear Test Ban Treaty 131, 136, 140 Comprehensive Test Ban Treaty Organization (CTBTO) 136 Computer Crime 271 Community Interests 9 Conference of NGOs in Consultative Status with the ECOSOC (CONGO) 281 Conference on Human Settlement {see: HABITAT) Conflict Management 106, 107, 121 Conflict Prevention 73, 108, 110, 111, 121,144, 178, 228, 326 Consensus: Principle of, Procedure 31, 81, 131, 205 Constructive Ambiguity 151 Consultative Status 41, 153, 277-279, 281 Contingency Fund 296 Contraception 254 Contributions (of Members): — Loss of Voting Rights 295 — Scale of Assessment 296, 298, 299, 302 — Selective Contributions 291 — Voluntary Contributions 45, 221 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment 149, 160, 164 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949) 179 Convention on a Total Ban of AntiPersonnel Mines 139, 140

359

Convention on Biological Diversity 204, 212,213 Convention on Contracts for the International Sale of Goods (Vienna, 1980) 149 Convention on Independent Guarantees and Stand-By Letters of Credit (New York, 1995) 149 Convention on International Bills of Exchange and International Promissory Notes (New York, 1995) 149 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be excessively injurious or have indiscriminate effects 139 Convention on Psychotropic Substances 259 Convention on the Elimination of all Forms of Discrimination against Women (1979) 160, 179, 185, 191 Convention on the Elimination of All Forms of Racial Discrimination 149, 160 Convention on the Liability of Operators of Transport Terminals in International Trade (1991) 149 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques 137 Convention on the Restriction of the Use of Certain Weapons 139 Convention on the Rights of the Child 149, 160, 164, 175, 283 Convention on the Status of Refugees 236 Conventional Weapons 127, 134, 138, 140 Cooling-Off Mechanism 5 Cooperative Security 60, 69, 72, 73 COPUOS 27

360

The United Nations

Corruption 257, 267, 269, 272 Countries in Transition 270, 223 Country Rapporteurs (Human Rights) 169 Covenant on Civil and Political Rights 160 Covenant on Economic, Social and Cultural Rights 160 Credentials Committee 32 Crime Prevention and Criminal Justice 258, 265-270 Crime Prevention and Criminal Justice Division (CPCJD) 258 Criminal Justice 258, 265, 271 CSCE 16 CTBTO 136

D Dayton, Peace Agreement 83 Declaration against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 270 Declaration on the Elimination of Discrimination against Women (1967) 181, 182 Declaration on the Granting of Independence to Colonial Countries and Peoples (1960) 16,44 Decolonization 16,17, 29, 31, 93, 169, 215,216,276,316 Department for Political Affairs (DPA) 45, 113-115, 124, 125 Department of Disarmament and Arms Regulation 326 Department of Economic and Social Affairs (DESA) 220, 221, 326 Department of Humanitarian Affairs (DHA) 240, 241 Department of Peacekeeping Operations (DPKO)45, 99, 113-115, 125

Department of Public Information (DPI 258)280 Depository Function of the SG 45 47 Deputy Secretary General 227 DESA (Department for Economic and Social Affairs) 220, 221, 326 Designer Drugs 264 Developing Countries: — and Population 245-250 — and ECOSOC 42 — and Disarmament 127 — and Codification of International Law 147 — and Human Rights and Women's Rights 174, 190 — and Humanitarian Aid 243, 244 — and Reform of the SC 304-309 — and Reform of the UN 315, 316, 328 Development: — Agencies 107, 227 — and Environment and Economy 196, 197 — and Human Rights 171 — and Population 21 — and Women 179 — Cooperation 217 — Decades 217 — NGOs 285 — Policy 217, 218 — Programs 217, 218 — and Trade 56 — Strategies 227 — Theories 228 Development Assistance Committee (DAC) of the OECD 107, 251 Disappearances 168 Disarmament: 127 — Committee on Disarmament 129, 130, 134 — Conference on Disarmament 129131, 136, 138,280

Index — Department for Disarmament and Arms Regulation 326 — Disarmament Commission 130, 133 — History 128 — Implementation Control 133 — Review Conference 132 — Institutions 128 — On-Site Inspection 133 — Peace Dividend 132 Displaced Persons 169, 232,235-237, 241, 242, 319 Donor Community 240 Double Standard 78,168 DPI-NGO 280 DPKO45, 99, 113-115, 125 Dumbarton Oaks 6, 13, 60, 314

E Earth Summit 200, 201 East-West Relations 152 ECA27.42, 199, 225 ECE 27, 42, 199, 201, 209, 225, 249 ECE Convention on Industrial Accidents 205 ECLAC 27, 199, 225 ECOMOG 86, 96 Economic Development 56, 111, 195, 218, 227,316,328 Economic Sanctions 80, 81, 86 ECOSOC: — Competences 39-40 — Composition 38 — Crime Prevention 42 — Functional Commissions 42 — Human Rights 42 — Legal Basis 38 — Narcotic Drug Issues 42 — NGOs41 — Population Issues 42

361

— Regional Economic Commissions 41 — Subsidiary Organs 41 — UN Reform 326 — Women's Rights 42 — Working Methods 39 ECOWAS 85, 86 El Nino Phenomenon 202 Election Monitoring 322 Embargo: — Air Embargo 80 — Oil Embargo 80 — Weapons Embargo 80 EMEP 205 Emergency Aid 240, 241 Emergency Relief Coordinator (ERC) 240, 241 Emergency Special Session (of the GA) 30, 129, 130, 136, 162, 192, 202, 217, 251,261,262,283 Empowerment of Women 184, 185, 192, 221 Enemy States 7, 21, 43 Enforcement Measures: military, economic 91, 95, 264 Environment: — and GATT/WTO 206, 213 — Awareness 195, 201, 206 — Common but Differentiated Responsibilities 197 — Compliance Mechanism 209 — Damage 138 — Financing 211 — Implementation Committee 208, 209 — Law 202-205, 207 — NGOs 55, 282 — Organizations 198 — Pollution 203, 210 — Reporting System 209 — Ressources 197, 198 — Trade in Emissions 207

362

The United Nations

Equality: — Principle of Sovereign Equality 13, 18,19 Eradication of Poverty 200, 217, 250 ERC 240-242 Escalator Ladder 66 ESCAP 27,42,199, 225 ESCWA27.42, 199,225 ESLWA27,42,199, 225 Espoo Convention (1991) 201, 205 Ethnic Cleansing 79 European Union 19, 20, 218, 227, 324 Expenses of the Organization 289, 290

Fact-Finding 140, 168 Failed States 115 Family Planning 55,183,246, 247, 249251, 254 FAO 201, 202, 224, 243, 260 Fertility Rate 246 Field Missions: 54, 120, 174, 189, 240 — and CEDAW, 189 — and Post-Conflict Peacebuilding 122 — Political, 120 Final Act (of the OSCE) 16 Financial Situation 286, 290-295, 298, 300, 301 First Optional Protocol to the UNCovenant on Civil and Political Rights 160, 165, 191 First UN Congress on Crime Prevention and Treatment of Offenders (1955) 165267 First World War 4, 159 Flight Ban 82 Force: — Prohibition 4, 5, 20, 21, 50, 60, 74, 75

— Threat of Force 21, 60, 63 — Use of Force 21, 74, 82, 94 Four Freedoms 159 Fourteen Points (President Wilson's) 4 Free Trade 206, 216, 217, 227 Friendly Relations Declaration 11, 14-16, 19, 20, 23, 61, 216 Functional Commissions 41, 42, 219, 226 Functional Immunity 101 Fundamental Rights 12, 158 Funding Gap 119

GATT206, 207, 213, 216 GEF211 GEMS 199 Gender 178, 183, 188, 190 Gender Issues 190,220 Gender Mainstreaming 170, 188 General Assembly (GA): — and Codification of International Law 27,29 — and Disarmament 31 — and Environment 31 — and NGOs 280 — and Population 246 — and Refugees 232 — Emergency Special Sessions 30 — Functions 221 — Special Sessions 30 — Subsidiay Organs 31, 32 — Voting Procedures 31 — Working Methods 30 Geneva Conference on Disarmament {see also: Disarmament) 129, 130 Geneva Convention on Long-Range Transboundary Air Pollution (1979) 201, 203, 205, 210 Geneva Law of the Sea Convention (1958) 147

Index Geneva Poison Gas Protocol (1925) 133, 137, 138 Genocide Convention 160 Global Environmental Facility {see: GEF) Global Environmental Monitoring System (see: GEMS) Globalization 172 Goldberg Reservation 294 Good Faith (Principle of) 19 Good Governance 17, 228, 269 Good Offices 47, 63, 320, 321 Gramm-Rudman-Holdings Act 295 Grassroots Level 275 Group of 77 (G-77) 109, 183, 218, 247, 316,324,326 Group of Socialist Countries 183 GRULAG 324 Gulf Conflict (1990/91) 82

H HABITAT 204, 224 Hamburg Rules 149 Hard Law 144, 145, 196, 203 Helms-Bidden Legislation 300 Helsinki Convention on Transboundary Watercourses and International Lakes (1992) 201, 205 Holy See 247, 250 Human Rights: — Advisory Services 166, 170 — and Conditionality 171 — and Development 171, 215 — andNGOs281 — and Sustainable Development 171, 220 — and UN Reform 41,117, 160, 327 — and Universality 163, 173 — and Women's Rights 173, 178, 181, 189, 191

363

— Control Mechanisms 165 — Country Rapporteur 169 — Field Missions 174 — Fundamental Freedoms 40 — High Commissioner 26, 55, 110, 115, 168, 170, 172, 173 — Indivisibilty of Human Rights 173 — Institution Building 122, 175 — Mainstreaming 169, 170 — Monitoring 93, 94 — No Powers Doctrine 162, 167 — Political Mechanisms 167 — Procedure 167 — Reporting Obligations 170 — Reports 166 — Special Procedures 168 — Special Rapporteur 168, 189 — Term 158-160 — Thematic Mechanisms 168 — Treaty Bodies 26, 53, 139, 164, 165, 170, 175, 185, 187 — Urgent Action 168 — Vienna World Conference on Human Rights 12, 55, 166, 172, 189, 283 Human Rights Center 55 Human Rights Commission 40, 42, 146, 149, 161, 170, 178, 189, 219, 220, 234 Human Rights Committee 165 Human Rights Court 166 Human Rights Instruments 12, 26,45, 160, 185, 322, 323 Human Rights Observers 164 Human Rights Protection 12, 158, 165, 170, 171, 173-175, 228, 276, 319, 322 Human Rights System 26, 40, 42, 157, 158, 165 Human Rights Violation 22, 23, 77, 79, 87, 111, 117, 158, 164-166, 282, 322, 323 Human Rights Year 175, 176 Human Security 106, 328

364

The United Nations

Human Settlement 213, 224, 228 Humanitarian Aid 243 Humanitarian Coordinator 113, 116 Humanitarian Intervention 22, 80, 87, 158

I ICJ (see: International Court of Justice) ICPO/INTERPOL260 ICRC 91 ICTY 37 IEFR225 IFOR 83, 86, 104 ILC (see: International Law Commission) ILO (see: International Labour Organization) ILO Convention Nr. 100 167, 181 ILO Convention Nr. Ill 167, 181 ILO Convention Nr. 156 167 IMF 18 Immigration 233, 246, 251, 252, 268 Immunity: 76, 100 — absolute, 100, 101 — functional 100, 101 Individual Complaints Procedure 165, 185, 187, 191, 192 Industrial Nations 310 Infant Mortality 249, 251, 254 INF-Treaty 132 Inspector General 27 Institution Building 122, 174, 175 INSTRAW 183, 184 Inter-Agency Environmental Coordination Group 202 Interagency Standing Committee (IASC) 240 Internal Conflicts 105,141, 241, 319, 328 Internally Displaced Persons 93, 106, 112, 235,242,319

International Atomic Energy Agency (IAEA) 135 International Bill of Human Rights 160, 162 International Community 8, 12 International Conference on Population and Development (Cairo, 1994) 228, 246,248-251,253 — Cairo Programme of Action 249 International Conflicts 60, 63, 70, 89, 319 International Cooperation (Principle of) 11,13, 17 International Court of Justice (ICJ): 25, 35,48-53,61,67,71,90,291 — and Procedure, 49, 50 — and SC Competence, 49 — Organization 49, 50 International Criminal Court (ICC) 37, 148, 175, 276, 323 International Customary Law 51, 144, 145, 151 International Financial Institutions (see: Bretton Woods Institutions) International Humanitarian Law 103, 131, 139, 244, 328 International Labour Organization (ILO) 147,160, 171,181,260 International Law 16-18, 21, 27, 29, 6062, 64, 143-156 International Law Commission (ILC) 32, 146 International Maritime Organization (IMO) 51, 201 International Ministerial Conference on Transnational Organized Crime (1994) 271 International Narcotics Control Board (INCB) 259-261, 265 International Organization for Migration (IOM) 253

Index International Peace and Security: 14, 20 — Maintenance, 14, 26, 33 — Threat to 92 International Penal and Penitentiary Commission (IPPC) 266 International Planned Parenthood Federation 254 International Population Commission 246 International Population Conference (Mexico, 1984) 247, 252 International Prison Commission (IPC) 266 International Review of Criminal Policy 270 International Trade Center (ITC) 223 International Tribunals (see: War Crimes Tribunals) Iraq 78-80, 82 Islamic Conference 307 Ius Co gens 21 Joint Inspection Unit (JIU) 27 Justice (principle of) 13, 19 Juvenile Criminality 266, 268, 270 Juvenile Justice 269, 270

K Kassebaum Amendment 295, 299 Kosovo 22, 78-80, 87, 236, 238, 302, 318, 320 Kyoto Protocol to the UN Framework Convention on Climate Change 198, 203,204,207,210,211

Law of the Sea 45, 53, 146, 154

365

Law of the Sea Convention 45, 53, 146, 152 LDCs 217, 223, 228 League of Nations: 3, 4, 48 — Statute 4, 5, 14, 20 Legal Disputes 49, 67 Legal Force 144, 145 Legal Norms: 29, 144, 155 — Binding 144 Lowest Common Denominator 151, 325

M Mainstreaming 169, 170, 174, 188 Mandate Regime 4 Manila Declaration 20, 61 Market Access 217 Market Economy 227 Mass Destruction Weapons 78, 82, 127129, 134, 137, 138 Mediation 62-64, 69, 321 Mexico Population Conference 247-249, 252, 254 MICIVIH 96 Migrant: — Documented Migrant, 252 — Undocumented Migrant 252 Migration 251-253 Migration Conference (Brussels) 253 Military Staff Committee 37, 76, 85, 315 Minority Protection 161, 169 MINUGUA 174 MINURCA 123 MINUS AL 122 Mission Creep 94, 104 Model Agreement (see: SOFA) Money Laundering 263, 265, 269, 270, 272

366

The United Nations

Monitoring Mechanism (NPT) 135, 164, 165 Montevideo Programme 199 Montreal Fund {see: Global Environmental Facility, GEF) Montreal Protocol on Substances leading to the Depletion of the Ozone Layer 203, 204, 209 MONUA318 MONUCA 123 Moon Treaty 134,149 Mortality 245, 246, 249, 251, 254 Multilateral Compliance Mechanism 209, 210 Munich Agreement (1938) 61

N Nairobi Declaration 54 NAM {see: Non-Aligned Movement) Naples Declaration 271 Narcotic Drugs: — Decade against Drug Abuse 261 — Designer Drugs 264 — Drug Abuse 258, 259, 261-263 — Illegal Trafficking 272 — International Conference on Drug Abuse and Illegal Trafficking (1987) 259, 261 — International Narcotics Control Board (CND) 260 — Synthetic Drugs 258, 259, 264 NATO 34, 83, 86, 87, 104, 130 Natural Disasters 239, 241-243 Needs Assessment 116 Negotiating Committee on the Financial Emergency of the UN 293 New International Economic Order 171, 217, 223, 227, 247

NGO: — and ECOSOC, 277 — and Human Rights, 173, 197, 281 — and UN Reform, 285 — and Women's Rights, 191 — Consultative Status, 277 — History, 275 — Legal Basis, 276 — Liaison Office 281 — Roster NGOs, 278 Nicaragua Case 52 Non Aligned Movement 218, 303, 305, 316, 321, 324, 325 Non-intervention 23 Non Nuclear Weapons States 129, 134, 135 Non Refoulement 236 No-Powers-Doctrine 162, 167 North-South Conflict 197, 249 Nuclear Energy 135 Nuclear Free Zones 130, 132, 136 Nuclear Powers 132,280 Nuclear Test Ban 131, 134, 136, 140 Nuclear Weapon State 135

O OAS 34, 86, 96 OAU 34, 236, 237, 306, 307, 309 OCHA244 OECD 106, 107, 251, 324 Office for Drug Control and Crime Prevention 258, 327 Office of Internal Oversight Services (OIOS) 27, 298 Ogata-Volcker Report 298 OIOS 27, 298 On-Site Inspections 132, 136 ONUC 90-92, 94, 290-292

Index ONUCA 93 ONUSAL 93, 122 ONUV 122 Open-Skies Treaty 132 Opinio Iuris 145 Opium Commission 258 Opium Convention 258 Organized Crime (International) 268-273, 323 OSCE 34, 63, 69, 96, 107,122, 319 Outer Space 27

Palestinian Refugees 233 Paris Charter for a New Europe 16 Paris Peace Treaties 4 Peace: — Breach of the Peace 15, 60, 82 — Maintenance of Peace 34, 90, 95, 108, 124 — Negative 59 — Positive 15, 59-61, 69, 178 — Threat to the Peace 15, 70, 75, 78, 79 Peace Building 34, 104-113, 326 Peace Consolidation 34 Peace Dividend 132 Peace Enforcement 34 Peace Implementation Program (PIP) 234 Peaceful Settlement of Disputes {see: Settlement of Disputes) Peacekeeping {see: Peacekeeping Operations) Peacekeeping Measures 34 Peacekeeping Operations (PKO): 33, 89, 113,291 — and Regional organizations 96 — Financing 97 120 — Impartiality 93, 94,100 — Legal Basis of PKOs 90

367

— Preventive PKOs 94 — Recruitment 97 — Traditional PKOs 93 Peacekeeping Troops 94, 99 Peacemaking 34 Permanent International Court of Justice 5, 48, 49, 90, 209, 291 Personnel of the UN 86,102 Poly-Users 265 Population Action International 254 Population Commission 246 Population Division 246 Population Growth 182, 246-255 Population Issues 245-251 Population Policy 246, 251 Population Programs 55, 247 Population Statistics 246 Populorum Progressio 247 Post Conflict Peace Building 106, 108, 110, 116, 122, 174, 319, 322, 326 Poverty {see: Eradication of Poverty) Preventive Diplomacy 26, 34, 47, 106, 320-322, 328 Privileges and Immunities 28, 44, 47, 100, 101 Program Budget 55, 293-294, 296 Program Planning 292 Program for Reform 107, 213, 241 Proliferation of Weapons of Mass Destruction 78 Protection of the Ozone Layer 198, 204 Protection of the World Climate 197,198

R Ramsar Convention 204 Rapidly Deploy able Missions Headquarters (RDMHQ) 98 Razali, Ismail 307-310

368

The United Nations

RDMHQ 98, 99 Refugee Definition 232, 235, 236 Refugees 27, 55, 93, 106, 111, 112, 122, 231-244,268,319 Regional Arrangements 33, 34, 69, 85-87, 95,96 Regional Economic Commissions 42, 199, 201, 225 Regional groups 32,161,168,303, 305, 310, 324 Regional Organizations 34, 85, 92, 95,96, 107,117,118, 121,125,199,241 Regional Seas Program 200 Relationship Agreement 42 Reporting: — CEDAW186 — Commission on the Status of Women (CSW) 187 — Environment 206 — Human Rights 168 — Obligation 166,170,263 Reproductive Health 249-251 Reservations 110, 127, 191, 217, 226, 250, 309, 323 Resident Coordinator 45, 113, 116, 122, 123, 221, 226, 242 Resident Representatives 54, 243, 321 Restatement of International Law 155 Reunification (Germany) 8 Review Clause 300, 302 Revised Montevideo Programme 199 Revolving Credit Fund 299, 327 Right to Development 164, 169, 171, 172, 197, 328 Rio Conference on the Environment and Development 1992 {see: UNCED) Rio Declaration 196,197, 201, 203, 207, 248 Rio + 5 200, 201

Rio + 10 200 Robust Action 94 Roster NGOs 278 Rule Making 133

San Francisco Conference 7, 12, 19, 306, 314 Sanctions: — nonmilitary 74, 80, 85 Sanctions Committee 37, 81 Sanctions Mechanism 5, 74 Scale of Assessment 290, 296, 300, 302 Secession (Right to) 17 Second World War 36, 48, 49, 61 Secretary General of the UN: 44 — Appointment 47 — Functions 46 — Good Offices 47 Security Council (SC): 33 — and ICJ 35 — and GA 28, 35, 303, 310, 320 — and Collective Security 7, 8, 21, 33, 68,74,315 — and Disarmament 26, 127 — and Double Veto 36, 314 — and ECOSOC 38 — and Group Veto 310 — and Human Rights 322 — and International Tribunals 323 — and NGOs 280, 286 — and Peace Consolidation 34 — and Peaceful Settlement of Disputes 65 — and PKOs 85, 89-91,95, 110, 121, 320 — and Regional Arrangements 33, 34 — and Sanctions 86 — and SG 35, 47 — and Special Agreements 76, 85

Index — and Veto Right 6, 15, 314, 315 — Composition 35, 303, 308 — Decisions 36, 308, 318, 322 — Enlargement 308 — Functions 33, 35 — Non-Permanent Members 303, 318 — Permanent Members 7, 21 — Reform 308 — Rotating Regional Seat 304, 308 — Subsidiary Organs 37 — Working Methods 39 Security Assurances 135 Selective Payment 291,294, 295 Self Determination (Right of Peoples to) 16, 17 Settlement of Disputes (Peaceful Settlement of Disputes): — and Treaties on the Environment 209 — Means 62 Sexual Health 250 SFOR 83, 86, 104 SfflRBRJG 98 Single Convention on Narcotic Drugs (1961)259,260 Single Negotiating Text 151 Slave Trade 180 Slavery 180, 189, 266, 276, 285 SOFA 100, 101 Soft Law 13, 144, 145, 196, 202 Solidarity Rights 164 South Africa 77, 130, 163, 222, 304, 307, 322 Southern Rhodesia 77 Sovereign Equality 13, 16, 18, 19, 28, 135,303,306,316,322 Sovereignty 18, 19, 152 Space Law 27, 133, 134, 144, 146, 149 Special Committee on PKOs 91, 291, 294

369

Special Committee on the Financial Situation of the UN 293 Special Consultative Status 278 Special Rapporteur {see also: Human Rights): — on the Independence of Justice 168 — on Primary Education, on Torture 168 — on Child Pornography 169 — on Freedom of Expression 168 — on Religious Freedom 168 — on Summary Executions 168 — on Violence against Women 189 — andlLC 150 Special Representative of the SG 109, 115, 243 Special Sessions of the GA 30 Specialized Agencies 18, 26, 41, 147, 291 Specialized Organs of the UN 53 Stand-by Arrangements 149 Standing Claims Commission (PKOs) 101 START 132 Statistical Commission 42, 219 Statute ofthelCJ 33, 35,48 Statute of the International Criminal Court (ICC) 37, 81, 148, 152, 154, 175, 276, 323 Statute of the League of Nations 4, 5,14, 20 Stockholm Declaration 195-197, 199, 303, 323 Strategic Planning Unit 321 Subcommission on the Prevention of Discrimination and Protection of Minorities 161 Subsidiary Organs (of the UN): 37, 42, 53 — of theSC 26, 37, 66 — of the GA 26, 32 — of the ECOSOC 41, 42, 149, 161

370

The United Nations

Supplement to an Agenda for Peace 95, 108

Support Groups 116 Sustainable Development 17, 171,195213,219

TDB 56, 222, 223 Technology Transfer 217, 223 Ted Turner Fund 286, 300 Tehran Summit Conference 307 Territorial Integrity 21, 108 Terrorism 79, 148, 258 Third World 141, 179, 246 Tlatelolco Treaty 132 Topfer Report 213 Trade and Development Board (TDB) 56, 222, 223 Trade Restrictions 206 Transnational Organized Crime 268, 271273 Travaux Preparatoires 150, 152 Treatment of Detained Persons 103 Treatment of Offenders 266-268 Treaty Law 50,133 Treaty on the Non- Proliferation of Nuclear Weapons 135 Truce 91, 93 Trusteeship Council: 25, 43 — System 43 — Territories 43

u UN Administrative Tribunal (UNAT) 27 UN Center for Crime Prevention 265 UN Center for Human Settlements 224 UN Conference on the Human Environment (Stockholm, 1972) 195, 323

UN Conferences 172, 218, 220, 224, 225, 228, 282, 283 UN Crime and Justice Information Network (UNCJIN) 271 UN Decade for Women and Development 179 UN Fund for Crime Prevention and Criminal Justice 167, 168 UN High Commissioner For Human Rights (UNHCHR) {see: Human Rights) UN House 226 UN Offices 45 UN Register of Conventional Weapons 140 UN Resident Coordinator 116, 122, 123 UN Secretariat: 44 — NGOs 280, 284 UN Stand-By Forces High Readyness Brigade {see: SHIRBRIG) UN Trust Fund for Population Activities 246 UN World Conferences 184, 277, 281-284 UNAMIR 98, 123 UNA-USA 283 UNCED 196, 203, 207, 248 UNCITRAL 146-150 Uncivil Society 327 UNCJIN 271 UNCLOS 146, 154 UNCOPUOS 146, 147, 149 UNCTAD 26, 56, 146, 202, 216, 222, 223, 224 UNDAF 114, 222, 226, 326 UNDCP45, 55, 258-261, 263-265, 267 UNDG115, 222, 227 UNDOF 93 UNDP 26,45,112-115,120-125, 170, 221224, 227, 243, 246, 253, 260, 281, 326

Index UNEF 90-93, 290-292, 297, 318 UNEP45, 54, 146, 196, 199 UNESCO 18, 51, 201, 260, 281 UNESCO Convention against Discrimination in Education 181 UNFICYP 93 UNFPA 26, 45, 55, 222, 227, 246 UNHCR {see: Human Rights) UNICEF 26, 45, 54, 222, 227, 242 UNICRI267, 268 UNIDO 202, 260 UNIFEM 183,221 UNIKOM 93 United Nations Capital Development Fund (UNCDF) 221 United Nations Development Group (UNDG)115, 222, 227 United Nations Disaster Assessment and Coordination (UNDAC) 242 United Nations Disaster Relief Office (UNDRO) 240 United Nations Training Assistance Team (UNTAT) 99 United Nations Volonteers (UNV) 221 Uniting for Peace 28, 30, 77, 315 Universal Declaration on Human Rights (1948) 29 UNMIBH 93 UNMOGIP 93 UNMOP 93 UNMOT 86, 123 UNOG 124 UNOMIG 86, 96 UNOMIL 86, 96 UNOMOZ93, 317 UNOPS 221 UNOSAL317 UNOSOM 83, 88, 94, 99, 103, 104

371

UNPREDEP95, 318 UNPROFOR 82, 83, 86, 88, 96, 97, 104, 320 UNRRA 232, 233 UNRWA233, 234 UNSCOM 37 UNTAES 93 UNTAET (UN Transitional Authority in East Timor) 122 UNTAG 93, 317 Urban Planning 224 Urbanization 182, 224, 245

Vacuum Theory 69 Vatican {see: Holy See) VCLT {see: Vienna Convention on the Law of Treaties) Verification: 136 — Mechanism 133, 138 — Procedure 134 — Regime 137 Vienna Conference on the Law of Treaties 19, 147, 148, 153 Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 259 Vienna Convention on the Protection of the Ozone Layer 204 Vienna Convention on the Representation of States in their Relations with International Organizations of Universal Character 147 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 148 Vinci-Group 324 Violence against Women 181, 189, 190

372

The United Nations

w War Crimes 34,119 War Crimes Tribunals 34, 37, 81 Warsaw Pact 8, 130,316 Warsaw Pact States 316 Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 204 WEOG 35, 38, 324 WEU96 WFP 26, 45, 55, 224, 225, 243, 260 WHO 51, 201, 202, 244, 259-261 Women: 119 — Discrimination 149, 160, 179-182 — Equal Treatment of male and female Employees 177-181 — Equality before the Law 177 — Gender Mainstreaming 188 — Individual Complaint 187 — INSTRAW183, 184 — International Women's Year Voting Rights 182, 183 — NGOsl89 — Principle of Equality 177 — Promotion of Women 26 — UN Decade for Women and Development 179 — UNIFEM183 — Violence against Women 181, 189 Women's Movement 177 Women's Organizations 178, 179 Women's Rights 26, 173, 179-181 Working Capital Fund 292, 294, 298 World Bank 107, 118, 120, 202, 211, 247, 260, 281 World Bank Group 18, 222 World Commission on Environment and Development 196

World Conference on Human Rights (Vienna, 1993) 12, 164, 166, 172, 189, 283 World Conference on Social Development (Copenhagen) 184, 228, 251, 284 World Conference on Women: — Beijing (1995) 190, 251, 253, 284 — Copenhagen (1980) 184 — Nairobi (1985) 189 World Criminal Justice Library (WCJL) World Food Summit (Rome, 1996) 225, 251 World Population Issues 251, 323 World Population Plan of Action (Bucharest) 247, 248, 252 World Population Report 247 World Trade Conference {see: UNCTAD) WTO 18, 202, 206, 213, 223

Yalta Conference 6, 314 Yalta Formula 6

The United Nations: law and practice

You and the United Nations

Max Planck Yearbook of United Nations Law

You and the United Nations

Max Planck Yearbook of United Nations Law

Max Planck Yearbook of United Nations Law