Max Planck Yearbook
of United Nations Law Volume 7 2003
Max Planck Yearbook of United Nations Law Founding Editors Jochen A. Frowein Rudiger Wolfrum
M:ax Planck Yearbook of United Nations Law Volume 7 2003
Editors Armin von Bogdandy Riidiger Wolfrum Managing Editor Christiane E. Philipp
Max-Planck-Institut fur auslandisches offentliches Recht und Volkerrecht
MARTINUS NIJHOFF PUBLISHERS LEID EN / BOSTO N
A C.LP. Catalogue record for this book is available from the Library of Congress.
This book should be cited as follows: Max Planck UNYB Printed on acid-free paper.
ISBN 90-04- 138 19-6 © 2004 Koninklijke Brill NV, Leiden, The Ne therlands Brill Academic Publishers incorporates the imprint Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means , electronic, mechanical, photocopying, microfilming, recording or otherwise, without written perm ission from the Publisher. Auth orization to phot ocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropri ate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 9 10, Danvers MA 01923, USA. Fees are subj ect to change.
Printed and bound in The Netherlands.
in memoriam SERGIO VIEIRA DE MELLO
Contents List of Contributors Abbreviations
IX XI
Wolfrum, Rudiger, The Attack of September 11,2001, the Wars Against the Taliban and Iraq: Is the re a Need to Reconsider International Law on the Recours e to Force and the Rules in Armed Conflict?
1
Minnerop, Petra, The Classification of States and the Creation of Status within the Int ernational Community
79
Fassbender, Bardo,
All Illusions Shattered? Looking Back on a Decade of Failed Attempts to Reform the UN Security Counc il..
Hilpold, Peter, Regional Integration According to Article XXIV GATT Between Law and Politics
183
219
Cottier, Thomas/ Hertig, Maya,
The Prospects of 21 st Century Constitutionalism
261
VIII
Max Planck UNYB 7 (2003)
Focus: ICC and International Criminal Law
329
Philipp, Christiane E., The International Criminal Court - A Brief Introduction
331
Dbrmann, Knut, War Crimes under the Rome Statute of the International Criminal Court, with a Special Focus on the Negotiations on the Elements of Crimes
341
Wagner, Markus, The ICC and its Jurisdiction - Myths, Misperceptions and Realities
409
Riiben, Volker, The Procedure of the ICC: Status and Function of the Prosecutor
513
Seibert-Fohr, Anja, The Relevance of the Rome Statute of the International Criminal Court for Amnesties and Truth Commissions
553
Benzing, Markus, The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity
591
Annex
633
-
-
Diagram of the International Criminal Court's Procedure and Organization
635
Rome Statute of the International Criminal Court
637
Book Reoietos
737
List of Contributors Benzing, Markus Junior Fellow at the Max Planck Institute for Comparative Public Law and International Law; Ph.D. candidate at the Faculty of Law, University of Heidelberg Cottier, Thomas Professor of Law, LL.M., Managing Director of the Institute of European and International Economic Law of the University of Berne and the World Trade Institute Dormann, Knut Legal Adviser at the Legal Division of the International Committee of the Red Cross, Geneva. Member of the ICRC delegation to the Preparatory Commission for the International Criminal Court Fassbender, Bardo Dr. iur., LL.M. (Yale), Assistant Professor at the Institute of International and European Law, Humboldt University Berlin; Lecturer in International Law at the University of St. Gallen. Hertig, Maya Attorney, Dr. iur., Senior Research Fellow at the Institute of European and International Economic Law of the University of Berne Hilpold, Peter Professor of Law at the University of Innsbruck, Austria
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Minnerop, Petra Ph.D. candidate at the Faculty of Law, University of Gottingen Philipp, Christiane E. Dr. iur., Fellow at the Max Planck Institute for Comparative Public Law and International Law Roben, Volker Dr. iur., Fellow at the Max Planck Institute for Comparative Public Law and International Law Seibert-Fohr, Anja LL.M.; S.J.D. cando (George Washington University) , Fellow at the Max Planck Institute for Comparative Public Law and International Law Wagner, Markus Junior Fellow at the Max Planck Institute for Comparative Public Law and International Law; Ph.D. candidate at the Faculty of Law, University of Frankfurt/Main Wolfrum, Rudiger Dr. iur., Dr. h.c., Professor of Public Law, Un iversity of He idelberg; Director at the Max Planck Inst itute for Comparative Public Law and Int ernational Law; Judge at the International Tribunal for the Law of the Sea, Hamburg
Abbreviations ACABQ AD A.F.D.I. AJDA AJIL Am. U. J. Int'l L. & Pol'y Am. U. Int'l L. Rev. Anu, Der. Internac.
Arch. de Philos. du Droit Aus Pol. & Zeitgesch. Austrian J. Publ. Int. Law Austr. Yb. Int'l L. AVR Brook. J. Int'l L. B. U. Int'I L. J. BVerfGE BYIL Cal. W. Int'l L. J.
Advisory Committee on Administrative and Budgetary Questions Annual Digest of Public International Law Cases Annuaire Francais de Droit International ActualiteJuridique-Droit Administratif American Journal ofInternational Law American University Journal of International Law and Policy American University International Law Review Anuario de Derecho Internacional Archives de Philosophie du Droit Aus Politik und Zeitgeschichte Austrian Journal ofPublic International Law Australian Yearbook ofInternational Law Archiv des Volkerrecht s Brooklyn Journal of International Law Boston University International Law Journal Decisions of the German Federal Constitutional Court British Yearbook of International Law California Western International Law Journal
XII
Cal. W. 1. Rev. Case W. Res.]. Int'[ 1.
Max Planck UNYB 7 (2003)
California Western Law Review Case Western Reserve journal of International Law
CL] CMLRev.
Cambridge Law journal Common Market Law Review Colo. J. Int'l Envtl. 1. & Pol'y Colorado journal ofInternational Environmental Law and Policy Colum. Hum. Rts. 1. Rev. Columbia Human Rights Law Review Colum. J. Transnat'l 1. Columbia journal of Transnational Law Colum. 1. Rev. Columbia Law Review Comunita Internaz. La Comunita Intemazionale Conn. J. Int'l 1. Connecticut journal of International Law Cornell Int'l 1. ] . Cornell International Law journal CYIL Canadian Yearbook ofInternational Law Den. J. Int'\, 1. & Pol'y Denver journal of International Law and Policy DGVR German Society of Public International Law Dick. J. Int'l 1. Dickinson journal of International Law Duke J. Compo & Int'l 1. Duke journal of Comparative and International Law Duq. 1. Rev. Duquesne Law Review Europa-Archiv EA ECOSOC Economic and Social Council ed. editor eds editors EFTA European Free Trade Association e.g.
exempli gratia
EJIL
European journal ofInternational Law
ELJ Envtl. 1. Rep.
European Law journal
Env. Policy & Law
Environmental Policy and Law
Environmental Law Reports
Abbreviations EPIL et al. et seq. etc. EuGRZ EuZW
FAa F!a. J. Int'l L. Fordham Int'l L. J. Foreign Aff. Foreign Pol'y Ga. J. Int'l & CompoL. Geo. Int'! Envtl. L. Rev.
XIII
Encyclopedia of Public International Law et alii et sequentes et cetera Europdische Grundrechte Zeitscbrift Europaische Zeitschrift fiir Wirtschaftsrecht Food and Agriculture Organization FloridaJournal of International Law Fordham International Law Journal Foreign Affairs Foreign Policy Georgia Journal of International and Comparative Law Georgetown International Environmental Law Review
Georgetown Law Journal Geo. L. J. Geo. Wash. J. Int'! L. & Econ. George Washington Journal of International Law and Economics Geo. Wash. L. Rev. GYIL Harv. Int'l L. J. Harv. L. Rev.
George Washington Law Review German Yearbook of International Law Harvard International Law Journal Harvard Law Review
Hastings Int'l & Compo L. Rev. Hastings International and Comparative Law Review HRLJ HRQ
Human Rights Law Journal Human Rights Quarterly
HuV-I
Humanitdres Volkerrecht - Informationsschrift International Atomic Energy Agency ibidem; in the same place International Bank for Reconstruction and Development
IAEA ibid. IBRD
XIV
ICAO
ICJ ICLQ ICSID id. IDA i.e.
IFAD I]IL ILA ILC ILCYB ILM ILO ILR ILSA]. Int'l L.
Max Planck UNYB 7 (2003)
International Civil Aviation Organisation International Court of Justice International and Comparative Law Quarterly International Centre for the Settlement of Investment Disputes idem; the same International Development Association id est; that is to say International Fund for Agricultural Development Indian Journal of International Law International Law Association International Law Commission Yearbook of the International Law Commission International Legal Materials International Labour Organization International Law Reports
Int'l Law.
ILSAJournal of International Law (International Law Students Association) International Monetary Fund International Marit ime Organization Indian Journal of Global Legal Studies International Affairs The International Lawyer
Int'I Rev. of the Red Cross
International Review ofthe Red Cross
Iowa L. Rev.
Iowa Law Review
IP
Die internationale Politik
Isr. L. R.
Israel Law Review
IMF IMO Ind. J. Global Legal Stud. Int'l Aff.
Isr. Y. B. Hum. Rts
Israel Yearbook on Human Rights
J. Int'l Aff.
Journal ofInternational Affairs
]IEL
Journal of International Economic Law
xv
Abbreviations
JIR JPR
jahrbuch fur internationales Recht journal of Peace Research
JWT JWTL Law & Conternp. Probs
journal of World Trade journal of World Trade Law Law and Contemporary Problems
Leiden journal of International Law LJIL League of Nations Treaty Series LNTS Loy. 1. A. Int'l Camp. 1. Rev. Loyola of Los Angeles International and Comparative Law Review
Mc Gill L.J. Mich. J. Inr'l 1. Mich. 1. Rev. Mil. 1. Rev. Minn. J. Global Trade NAFTA NATO NILR NJCL Nord. J. Int'l 1. NQHR NYIL
N. Y. U. J. Int'l 1. & Pol. N. Y. U. 1. Rev. Ocean & Coastal 1. J. ODILA OZoRV
0JEC Pace Int'l Law Rev.
McGill Law journal Michigan journal of International Law Michigan Law Review Military Law Review Minnesota journal of Global Trade North American Free Trade Area North Atlantic Treaty Organization Netherlands International Law Review Nationaljournal of Constitutional Law Nordicjournal of International Law Netherlands Quarterly ofHuman Rights Netherlands Yearbook of International Law New York University journal of International Law and Politics New York University Law Review Ocean and Coastal Law journal Ocean Development and International Law Dsterreichische Zeitschrift fur offentliches Recht und Volkerrecht Official Journal of the European Communities Pace International Law Review
XVI
PCIJ Pol. Sci. RADIC RBDI
Max Planck UNYB 7 (2003)
Permanent Court of International Justice Political Science Revue Africaine de Droit International et Compare Revue Belge de Droit International
RdC
Recueil des Cours de l'Academie de Droit International
RDI
Revue de Droit International, de Sciences Diplomatiques et Politiques
RECIEL
Review of European Community and International Environmental Law
REDI
Revista Espanola de Derecho Intemacional
Rev. Dr. Mil. Dr. Guerre
Revue de Droit Militaire et de Droit de la Guerre
Rev.ICR RGDIP
Revue Internationale de la Croix Rouge Revue Generale de Droit International Public
RIAA
Reports of International Arbitral Awards
RIW Riv. Dir. Int. RTDE
Recht der Internationalen Wirtschaft R ivista di Diritto Internazionale Revue Trimestrielle de Droit Europeen
RUDH
Revue Universelle des Droits de L'homme
San Diego L. Rev.
San Diego Law R eview
Santa Clara L. Rev.
Santa Clara Law Review
Stanford J. Int'l L. SZIERIRSDIE
Stanford Journal ofInternational Law Schweizerische Zeitschrift fur internstionales und europiiiscbes Recht/Reuue Suisse de Droit International et de Droit
Europeen Temp. Int 'l & Compo L. J.
Temple International and Comparative Law Journal
Tex. Int'l L. J.
Texas International Law Journal
Abbreviations
XVII
Tex. 1. Rev. Transnat'l, 1. & Contemp, Probs
Transnational Law and Contemporary Problems
Tul. Envtl. 1. J.
Tulane Environmental Law Journal
Tul. J. Int'l & Compo1.
Tulane Journal of International and Comparative Law University of Chicago Law Review
U. Chi. 1. R. UCDLRev. UCLAJ. Envtl. 1. & Pol'y
UCLA J. Int'l L .& Foreign Aff. UCLA Pac. Basin 1. J. UNCIO UNCITRAL UNCTAD UNDP UNEP UNESCO UNFPA UNHCR UNICEF UNIDO UNITAR
Texas Law Review
University of California Davis Law Revie w University of California Los Angeles Journal of Environmental Law and Policy University of California Los Angeles Journal of International Law and Foreign Affairs University of California Los Angeles Pacific Basin Law Journal United Nations Conference on International Organization United Nations Commission on International Trade Law United Nations Conference on Trade and Development United Nations Development Programme United Nations Environment Programme United Nations Educational, Scientific and Cultural Organization United Nations Population Fund United Nations High Commissioner for Refugees United Nations Children's Fund Uni ted Nations Industrial Development Organization United Nations Institute for Training and Research
XVIII
UNJYB UNOSOM UNPROFOR UNRWA
UNTS UNU UNYB UPU Va. J. Int'l L. Va. L. Rev. Vand. J. Transnat'l L. Vol. VRU WComp. Wash. L. Rev. WFP WIPO WMO
WTO Yale L. J. YaleJ. Int'l L. ZaoRV ZEuS ZRP Z. vgl. R. Wiss.
Max Planck UNYB 7 (2003)
United Nations Juridical Yearbook United Nations Operation in Somalia United Nations Protection Force in (former) Yugoslavia United Nations Relief and Works Agency for Palestine Refugees in the Near East United Nations Treaty Series United Nations University Yearbook of the United Nations Universal Postal Union Virginia Journal of International Law Virginia Law Review Vanderbilt Journal of Transnational Law Volume Verfassung und Recht in Ubersee World Competition Washington Law Review World Food Programme World Intellectual Property Organization World Meteorological Organization World Trade Organization Yale Law Journal Yale Journal of International Law Zeitschrift fur ausldndisches offentliches Recht und Volkerrecht Zeitschrift fur europarechtliche Studien Zeitscbrift fur Rechtspolitik Zeitscbrift fur die vergleichende Recbtswissenschaft
The Attack of September 11, 2001, the Wars Against the Taliban and Iraq: Is There a Need to Reconsider International Law on the Recourse to Force and the Rules in Armed Conflict? Rudiger Wolfrum
I. II.
Introduction Prohibition of the Use of Force in International Relations: Content, Scope and Exceptions 1. Article 2 (4) UN Charter 2. The Prohibition of the Use of Force and its Meaning for the Community of States 3. Authorization of the Use of Force by the Security Council 4. Incapacity of the Security Council as a]ustification to Act UnilateraJIy 5. Humanitarian Intervention 6. Legitimi zation of the Use of Force as Self-Defence or Other Forms of Self-Help a. Article 51 UN Charter b. Anticipatory and Pre-emptive Self-Defence c. Addressees of Acts of Self-Defence III. Jus in Bello 1. Introduction 2. Use of Weapon s 3. Prisoners of War and Prosecution of War Crimes 4. Occupation a. Introduction b. General Obligation of the Military Occupant c. The Re-Establishment of an Effective Infrastructure d. The Protection of Cultural Property e. The U se of Natural and Other Resources IV. The Role of the United Nations in the Po st-conflict Period of Iraq V. Conclusions
A. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 7. 2003, 1-78. © 2003 Koninklijke Brill N. v: Printed in the Netherlands.
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I. Introduction The attack of September 11, 2001 against the United States, the war against the Taliban in reaction thereto, and, in particular, the war against Iraq in 2003 have prompted dissonant views concerning the international law regime governing the recourse to military force. Some commentators have deplored the military actions taken by the United States and its allies against the Taliban, and particularly against Iraq as being in violation of the international law prohibition against the unilateral use of force. They take the position that such practice is likely to erode the principle that prohibits resort to force in international relations. Others have argued that these incidents make it necessary to reconsider the scope and content of the principle of the prohibition of the use of force.! The issue is a complex one. It is not only necessary to consider the ambit of the international law prohibition of the illegitimate recourse to force or - to phrase the question in a different way - under what circumstances or in pursuing what objectives is recourse to force legitimate under international law, but also to determine which law governs the respective military conflict and the period thereafter. To put it more generally, the attack of September 11,2001, the war against the Taliban and the war of 2003 against Iraq have put the ius ad bellum and the ius in bello on the test bench. None of these incidents should be considered in isolation; they should also be seen in connection with the war against Iraq in 1990/1991 and the military intervention in the former Yugoslavia in 1999. What is of interest for the development of international law is whether the actions taken by the United States and its allies and the reaction thereto from the international community reveal a pattern or a tendency indicating that there have been changes in the international law concerning the use of force and the law in armed conflict. As will be shown later, international law and customary internationallaw are quite responsive to new challenges. Two different situations have to be taken into consideration. Where no international rule exists, it is much easier to ague in favour of the development of new rules. However, where the development of new rules
*
I am grateful to Thomas Mensah, Judge at the International Tribunal for the Law of the Sea, for his valuable recommendations. WM. Reisman, «Assessing Claims to Revise the Laws of War", A]IL 97 (2003), 82 et seq.
Wolfrum , Recourse to Force and ius in bello Reconsidered?
3
would result in the derogation of established ones the onus is on those advocating the development of new rules, to prove that the old rules have fallen into desuetudo or have been replaced by new ones . In any case, before considering the modification of existing rules, it is necessary to establish, whether all the possibilities of interpreting and adapting the existing rules to the new situation have been exhausted. For example the notion of "matters ... within the domestic jurisdiction" as referred to in Article 2 (7) UN Charter has a different meaning under the increased bearing of the international protection of human rights than it had in 1945. The developments referred to since September 11,2001 have neither put the existence of international law into question, nor undermined its regulatory function for the conduct of international relations.I Those who argue the point differently3 attempt to revitalize theories which have been voiced before." Such theories do not reflect the realities of international relations where the rule of law is an established principle. Although the means to enforce international law, or rather induce its implementation and compliance with it, differ from the enforcement mechanisms on the level of national law.t None of the states which participated in the military action against Iraq has denied that binding force of international law, in general, or its prohibition to have recourse to military force. On the contrary, they, and in particular the United
2
3
4
5
].A. Frowein, "Ist das Volkerrechr tot?", Frankfurter Allgemeine Zeitung of 23 July 2003,6. See amongs t others J.R. Bolton, "Is there Really "Law" in International Affairs", Transnat'l L. &.Contemp. Probs 10 (2000), 1 et seq.; R. Kagan, "Power and Weakness", Policy Review No. 113. J. Austin, Lectures on Jurisprudence or the Philosophy of Positive Law, 5th edition 1911, in particular Lecture VI; see on that M. Koskenniemi, The Gentle Civilizer ofNations, 2002. Quite some research has been undertaken on this issue; see for example: E. Brown-Weiss/ H.K. Jacobsen, Engaging Countries, 1998; R. Wolfrum, "Means of Ensuring Compliance with and Enforcement of International Environmental Law", RdC 272 (1998), 25 et seq., both with further references and on the enforcement of international law in general. A more general inquiry on the issue of compliance or non compliance of states with their international oblig ations has been undertaken by A. Charles/ A.H. Chayes, The New Sovereignty, 1995, critical in this respect L.P. Damrosch, "The Permanent Five as Enforcers of Controls on Weapons of Mass Destruction: Building on the Iraq 'Precedent?', E]/L 13 (2002), 305 et seq.; she argues that only enforcement measures will prove to be effective.
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States and the United Kingdom, have made every attempt to justify their actions vis-a-vis the Security Council and the community of states at large. Although one may disagree with their reasoning in substance, such reasoning constitutes a clear confirmation of their acceptance of the view that recourse to military force needs justification under international law. This is not meant to diminish or even to deny the existence of a profound divergence of views between, on the one hand, those who advocate the use of military force against Iraq - and thus a reinterpretation or modification of existing international law in that respect - and, on the other hand, those who are opposed to the use of military action in the circumstances. They disagree to some extend on status and scope of the international law prohibition on the use of military force in international relations and the factors legitimizing such use of force. The two groups further disagree on the scope, content and applicability of some aspects of the rules governing such conflicts, including in particular the scope of respective customary international law, the limits to targeting, the treatment of detainees and the rules governing military occupation. Phrased in more general terms, disagreement exists on some aspects of the methods and means of warfare, especially against an enemy which itself disregards the rules of warfare.
II. Prohibition of the Use of Force in International Relations: Content, Scope and Exceptions 1. Article 2 (4) UN Charter A central element in modern international law is the prohibition of the unilateral use of force in international relations as codified in Article 2 (4) UN Charter." Marking a decisive evolution of international law in
6
There is an overwhelming literature dealing with the international prohibition of the use of force in particular. See for example: C. Antonopoulos, The Unilateral Use of Force by States in International Law, 1997; B. Asrat, Prohibition of Force under the UN Charter: A Study of Art. 2 (4), 1991; D.W. Bowett, Self-Defence in International Law, 1958; 1. Brownlie, International Law and the Use of Force by States, 1963; J. Delbriick, "Effektivitat des UN-Gewaltverbots: Bedarf es einer Modifikation der Reichweite des Art. 2 (4) UN Charta", Die Friedenswarte 74 (1999), 139 et seq.; Y. Dinstein, War, Aggression and Self-Defence, 3rd edition 2001; T.M. Franck, "Who killed Art. 2 (4), or: The Changing Norms Governing the Use of
Wolfrum, Recourse to Force and ius in bello Reconsidered?
5
the last century," this provision obliges all Member States, and as customary international law all states, to refrain in their international relations from the threat of force or the use of force." This provision is part of the 'Purposes and Principles' of Chapter I of the United Nations Charter which the drafters considered of transcendent importance indicating the directions which the activities of the Organization were to take and the common ends of its mernbers.? The prohibition of unilateral recourse to force by states is generally held to be a principle of customary international Iawl? and to constitute a peremptory norm of international law (ius cogens ).11 The scope of the evolution that international law has undergone concerning the prohibition of the use of force becomes apparent by comparing Article 2 (4) UN Charter with article I of the Kellogg-
7
8
9 10
11
Force by States", AjIL 64 (1970), 809 et seq.; T.M. Franck, "When, If Ever, May States Deploy Military Force Without Prior Security Council Authorisation", SingaporeJournal of International and Comparative Law 4 (2000), 362 et seq.; T.M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks, 2002; C. Gray, International Law and the Use of Force, 2000; S. Khare, Use of Force under the UN Charter, 1985; H. Neuhold, Internationale Konflikte - Verbotene und erlaubte Mittel ihrer Austragung, 1977; D . Schindler, "Die Grenzen des volkerrechtlichen Gewaltverbots", Reports of the DeVR 26 (1986), 11 et seq.; S.M. Schwebel, "Aggression, Intervention and Self-Defence in International Law", RdC 136 (1972), 411 et seq.; A. Randelzhofer, "Art. 2 (4)", in: B. Simma (ed.), The Charter of the United Nations, 2nd edition, 2002; J. Zourek, L'interdiction de l'emploi de la force en droit international, 1974; R. Mullerson, "Jus ad bellum: Plus \a change (le monde) plus c'est la meme chose (Ie droit)",Journal of Conflict and Security Law 7 (2002), 149 et seq. See in this respect for example : G. Dahm/ ]. Delbriick/ R. Wolfrum, Volkerrecht 113, 2002, 816 et seq. Franck, Recourse to Force, see note 6, 12 points out that the obligation to respect the territorial integrity or political independence of any state was meant to strengthen the obligation under Article 2 (4) UN Charter. Any attempt to exclude minor military action from the ambit of that provision is therefore incongruent with the intent of the drafters of this provision. See L. Goodrich/ E. Hambro, Charter of the United Nations: Commentary and Documents, 2nd edition, 1949, 22. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), IC] Reports 1986,14 et seq. (99, para. 188). IC], see above; Dinstein, see note 6, 93 et seq.; M.N. Schmitt, "Pre-emptive Strategies in International Law", Mich. j. Int'l L. 24 (2003) 513 et seq. (525).
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Briand Pact of 27 August 1928 12 which itself already constituted a major step in the progressive development of international law in this respecr.P Article I of this Pact abandons the unrestricted freedom to resort to war as a feature of state sovereignty and imposes in its place a universal and general prohibition of war as an instrument of national policy in the relations amongst states. Article 2 (4) UN Charter has broadened this prohibition by also covering the use and the threat to use force. This prohibition of the unilateral use of force is meant to be implemented and enforced by a system of collective sanctions against any offender as provided for under Chapter VII of the UN Charter. It has been argued with respect to the case of Iraq, amongst others, that the system of collective sanctions has failed since the Security Council has been unable to enforce the obligation it had imposed upon Iraq with the view to preserving peace and security and, accordingly, that resort to unilateral force was again not only possible but mandatory.!"
12
13
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LNTS Vol. 94 No. 2137 General Treaty for the Renunciation of War as an Instrument of National Policy. The Pact provided the legal basis for multiple bilateral non-aggression pacts, for example: between Germany and Luxembourg (11 September 1929), Germany and the Kingdom of Denmark (31 May 1939) and Germany and the USSR (23 August 1929). The violation of these agreements provided a basis for charges at the Nuremberg Trials . The Kellogg-Briand Pact is still considered to be in force; Barbados (30 November 1966), Fiji (10 October 1970) and Grenada (7 February 1974) have declared to further apply it. The system of the League of Nations constituted the first attempt under modern international law to limit the right of states to have recourse to war. Article 15 of the Covenant of the League of Nations of 1919 -chttpc//www.ku.edu/carrie/docs/texts/leagnat.htrnb- obliged states not to resort to war as long as a dispute was under consideration by the Council of the League of Nations. Once the process set into motion had failed to produce an amicable settlement the parties of the conflict remained free "to take such action as they shall consider necessary for the maintenance of right and justice". In the period between the wars multilateral treaties attempted to further limit the possibility of states to have recourse to war. For example, according to article 2 of the Locarno Treaty (Treaty of Mutual Guarantee) of 16 October 1925 (LNTS Vol. 54 No. 1292), the States parties to that treaty undertook "... in no case [to] attack or invade each other or to resort to war ...". Another example to that extent is the Anti War Treaty of 10 October 1933 (LNTS Vol. 163 No. 3781). See, for example, the statement of the Permanent Representative of Australia in the Security Council, Doc. S/PV. 4726 of 26 March 2003, 27; on the validity of that argument see below.
Wolfrum, Recourse to Force and ius in bello Reconsidered?
7
It is the prevailing view that scope and content of the prohibition on the unilateral use of force cannot be interpreted on the basis of Article 2 (4) UN Charter alone. Arts 39, 51 and 53 of the UN Charter have also to be taken into consideration. Nevertheless, there are uncertainties as to the exact meaning of the notion of force which neither the rulings of the IC] nor resolutions of the UN General Assembly'! have overcome. As far as the definition of the notion of force is concerned only the qualification of the attack of September 11, 2001 poses a problem. The attack of September 11, 2001 was not an act of war although, at that time, politically it qualified as such. The term 'war' only describes armed conflicts between states or amongst them and organised groups or amongst such groups. This term does not embrace terrorist actions against the civilian population of another state." On the other hand, the action taken by the United States in response to the terrorist attack of September 11, 2001 constituted the use of force against the Taliban within the meaning of Article 2 (4) UN Charter and therefore requires justification under international law, self-defence being the only reliable option.l/ Equally, the military attack on Iraq constituted an act of force. In respect of that it has been argued that it was either authorised by the UN Security Councilor that it was a legitimate act of self-defence. IS Although this shifts the emphasis in the analysis of this article onto the Iegirimisation of the recourse to force, an assessment of the meaning of this central principle of international law is necessary.
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Definition of Aggression A/RES/3314 (XXIX) of 14 December 1974; A/RESI2625 (XXV) of 24 October 1970 (Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations; A/RES/42122 (1987) of 18 November 1987 (Refraining from the Threat or Use of Force); T. Treves, "La Declaration des Nations Unies sur la renforcement de l'efficacite du principe du non recours a la force ", A.F.D.I. 33 (1987) 379 et seq., points out that this resolution doe s not make a respective attempt to deal with controversial issues. C. Tomuschat, "Der 11. September 2001 und seine rechtl ichen Folgen", EuGRZ 28 (2001), 535 et seq. (536); EL. Kirgis, "Security Council adopts Resolution in Combating International Terrorism", ASIL Insight 2001; J. Cerone, "Acts of War and State Responsibility in 'Muddy Waters': The Non-state Actor Dilemma", ASIL Insight 2001; R. Wolfrum/ C. Philipp, "The Status of the Taliban: Their Obligations and Rights under International Law", Max Planck UNYB 6 (2002), 559 et seq. (588). See below. See below.
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2. The Prohibition of the Use of Force and its Meaning for the Community of States The prohibition of the use of force is one of the constituent principles of the community of states. The term 'community of states' or, more appropriately, 'international community"? can theoretically mean different things in different contexts. In the context used here it means that states have assented to community values which are the basis for a normative order guiding the conduct of states in international relations or in issues which are of international concern. By referring only to states in this context is not meant to ignore the growing impact nongovernmental actors have not only on the formation of the common values of the international community but on the normative order as wel1.2° Neither the common values nor sti11less the normative order is static; it is in permanent development. In former periods of international law attempts were made to develop common values of the international community from the common Christian beliefs. Subsequently, this approach was superseded by references to natural law as the ultimate foundation for international law values. As at present, taking into consideration the plurality of states and peoples and their differing cultural, religious, economic and national political backgrounds on the one hand, and on the other the growing universal interdependence of factors governing the lives of individuals, common values can only develop - on the universal or re-
19
20
See in particular on this R.]. Dupuy, "Cornmunaute international et disparite de developpent", RdC 165 (1979), 21 et seq.; G. Abi-Saab, "Whither the International Community", EJIL 9 (1998), 248 et seq.; C. Tomuschat, "Die Internationale Gemeinschaft", AVR 33 (1995), 1 et seq.; A.L. Paulus, Die Internationale Gemeinschaft im Volkerrecht - Eine Untersuchung zur Entwicklung des Volkerrechts im Zeitalter der Clobalisierung, 2001; B. Simma/ A.L. Paulus, "The 'International Community': Facing the Challenge of Globalization", EJIL 9 (1998),266 et seq.;J.A. Frowein, "Konstitutionalisierung des Volkcrrechts", Reports of the DCVR 39 (2000), 427 et seq.; C. Walter, "Constitutionalizing (Inter)national Governance: Possibilities for and Limits to the Development of an International Constitutional Law", CYIL 44 (2001),170 et seq.; Dahm/ Delbriick/ Wolfrum, see note 7, 776 et seq. O. Schachter, "The Decline of the Nation-state and its Impact for International Law", in:].I. Charney/ D.K. Anton/ M.E. O'Connell, Politics, Values and Functions: International Law in the 21st Century, 1997, 13 et seq. (19).
Wolfrum, Recourse to Force and ius in bello Reconsidered?
9
gionallevel - in a free and permanent discourse of the respective governmental and social factors. They are not pre-existent but have to be developed. The international system provides for various mechanisms for this development. It offers institutions and procedures such as codification conferences, state conferences, the UN General Assembly, the Security Councilor the institutions of international organizations. In addition non-governmental fora such as the one which has developed the San Remo Manual-! are of relevance. The results achieved may be of a general normative nature but may also constitute binding decisions as the ones issued by the Security Council under Chapter VII UN Charter. In effect, the international common values thus developed crystallize into international norms or form the respective foundation for such norms which together constitute the international normative order. Hence, there is a permanent mutual cross fertilization between the community values and the international normative order. Those international norms which have contributed to the progressive development of international common values are the UN Charter, in particular, its principles and purposes,22 the international human rights regime, the international economic and the international environmental regime. The common value system was further enhanced by the establishment of the ICC providing for the prosecution of individual offenders on the basis of internationally accepted criminal law. What is the meaning of the prohibition of the use of force in this context? Through it - and that is its most traditional meaning - the very existence of each member of the international community is guaranteed, as well as its right to participate in the process for the development and articulation of common values and norms. But the prohibition of the use of force is more than a limitation on the means through which states may pursue their political intentions. It reflects a value judgment of the international community, namely, that no objective pursued by a state justifies recourse to force in international relations, except where international law so provides. The qualification of the prohibition of force as a reflection of a value judgment transpires from the wording of article F3 of the Kellogg-Briand Pact as well as from
21
22
23
San Remo Manual Applicable to Armed Conflict at Sea B.D. Lepard, Rethinking Humanitarian Intervention, 2002,39 et seq. "The High Contacting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of in-
10
Max Planck UNYn 7 (2003)
that of Article 2 (4) UN Charter. Both provisions clearly establish that a recourse to war or, respectively, recourse to force is not a legitimate means to pursue national policy in international relations. The prohibition of the use of force is, as already indicated, not of an absolute nature, though. The possibility of self-defence has been clearly acknowledged. This exception is in line with what has been said earlier. As the prohibition of the use of force is meant to protect the existence of each member of the international community, it follows that each member of the international community has the right to implement that principle against an offender, independently of actions that may be taken by the international community acting through the Security Council. International law also provides for resort to force against a state having fundamentally violated common values. However, the legality of force in this case must be decided upon in a different procedure . In such a case the resort to force is not a means to protect the existence of one member of the international community but rather a means to protect the community as such, namely its normative system. In this connection it is noted that those who argue in favour of the legality of the use of military force against Iraq in fact referred to that aspect. They have claimed that the military action against Iraq was the only remaining means to effectively ensure compliance by Iraq with its international obligations.v' But in such a situation it would appear that only the international community as a body can act or may authorize an individual state or group of state to act on its behalf. For the notion of unilateral use of force as a means to enforce international law in general it cannot be conceived as compatible with the maintenance of the fabric of an international normative order which is the foundation of an international community. It is accordingly incorrect to claim that international law prohibits the resort to armed force in absolute terms and, on that basis, to argue
24
ternational controversies, and renounce it, as an instrument of national policy in the relations with one another". See letter of 20 March 2003 from the Permanent Representative of Australia to the United Nations addres sed to the President of the Security Council (Doc. 5/2003/350 of 20 March 2003; "... The objective of the action is to secure compliance by Iraq with its disarmament obligations as laid down by the Council ..."; in this respect, an identical letter has been sent by the Permanent Representative of the United Kingdom (Doc. 5/2003/350 of 21 March 2003).
Wolfrum, Recourse to Force and ius in bello Recon sidered?
11
that there is a "cultural division" concerning the use of force." The correct position is rather that the UN Charter channels the use of force. Only if force is used to protect a state, force may be used unilaterally and upon the decision of the state concerned to counter this attack. In all other cases, in particular, when force is used to defend community interests, it is for the institutions representing this international community, namely the Security Council, to take respective counter measures which may include the use of force. The underlying philosophy of Arts 2 (4) and 39 et seq. of the UN Charter reflects a certain value decision taken at the time when the UN Charter was adopted. It was heavily influenced by the experiences of the two world wars. An act of a state contrary to this value decision, even if such action is upheld by the international community, does not yet change this underlying philosophy. To the contrary, as long as other members of the international community remain committed to that value decision it remains in force and the political price to be paid by the violating state is high.
3. Authorization of the Use of Force by the Security Council The members of the United Nations have conferred upon the Security Council primary responsibility for the maintenance of world peace and international security. To this extent, the Security Council acts in their name (Article 24 UN Charter). The members of the United Nations have, according to Article 25 UN Charter, agreed to accept and carry out the decisions of the Security Council. Article 39 UN Charter authorizes the Security Council to determine that a threat to or a breach of the peace exists. Article 39 UN Charter grants to the Security Council broad - certainly not unlimited-" - discretionary powers which the Security Council on several occasions was ready to exhaust. For instance, in October 2002 the Security Council labelled the hostage taking at the Moscow theatre a threat to international peace? and did the same concerning the bombing in Bali.28 It has even characterized Libya's fail-
25 26
27 28
M.J. Glennon, "Why the Security Council failed", Foreign Aff. 8 (2003),16 et seq. (21). For that reason the statement of Schmitt, see note 11, 527, that a threat to peace is what the Security Council declares as such, disregards the inherent limitations of the Security Council under Chapter VII UN Charter. S/RES/1440 (2002) of 24 October 2002. S/RES/1438 (2002) of 14 October 2002.
12
MaxPlanck UNYB 7 (2003)
ure to cooperate in the prosecution of the Pan Am Flight 103 bombers as a threat to peace." This declaration under Article 39 UN Charter is the precondition for the Security Council to take measures in accordance with Chapter VII of the UN Charter with the view to maintain or to restore international peace and security. The measures the Security Council may include, are according to Article 42 UN Charter, military measures if other measures are considered inadequate or have proved to be inadequate. To that end all members have undertaken" ... to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, ..., necessary for the purpose of maintaining international peace and security" (Article 43 UN Charter). The idea of securing peace through collective action is an old one; in the history of ideas it can be traced to, among others, Abbe St. Pierre, Emanuel Kant and William Penn. No agreements or arrangements as envisaged by Article 43 UN Charter have been concluded so far, leaving, at least in theory, a vacuum concerning the implementation of the collective security system. However, practice has filled or rather overcome this gap since the Security Council, instead of using forces at its disposal, has authorized states ready to do so (so-called coalition of the willing) on an ad hoc basis to respond militarily to a threat or breach of the international peace and security. The basis for such an approach is to be found in Article 42 UN Charter, read alone or in conjunction with Article 48 UN Charter.P The first situation in which such an approach was used was the Korean war where the Security Council held - acting under Chapter VII of the UN Charter - "... that the Members of the UN furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area" .31 In 1960 the Security Council authorized another coalition of the willing to respond to an appeal of the government of the Republic of the Congo to restore order and facilitate the removal of Belgian
29 S/RES/748 (1992) of 31 March 1991. 30 SeeJ.A. Froweinl N. Krisch, "Art. 42" , MN 20-24, in: Simma, seenote 6. 31 S/RES/83 (1950) of 27 June 1950; S/RES/82 (1950) of 25 June 1950 had already stated that there had been a breach of peaceand thus invoked Article 39 UN Charter. Froweinl Krisch, see above, MN 21 take the view that the respective action of the Security Council was merely a recommendation to use selfdefence.
Wolfrum, Recourse to Force and ius in bello Reconsidered?
13
troops.V In 1966 the Security Council authorized the British navy to enforce UN sanctions against the government of Southern Rhodesia.P The most significant example to that extent is, though, the authorization of states co-operating with the government of Kuwait "to use all necessary means" to reverse the aggression of Iraq and to restore peace and security in the area." There have been subsequent occasions where the Security Council has authorized the use of force by states to achieve specified objectives and thus to restore international peace and security. The Security Council has authorized a multilateral force "to use all necessary means" to facilitate the ousting of the military leadership from Haiti-" and has mandated the United States and other willing states "to use all necessary means" to achieve the objectives as defined by the Security Council vis-a-vis Somalia.I" In Resolution 1386 the Security Council authorized the creation of an Interim Assistance Force for Afghanistan and welcomed the offer of the United Kingdom to organize and command the force.V Alternatively, the Security Council may turn to regional organizations. The particularity of this authorization of a group of states, having previously consented to that particular action, to use military force rests in the fact that it combines mandatory and non-mandatory elements on various levels.38 The first step is the finding of the Security Council that there is a breach or a threat to international peace and security. This finding, made in accordance with Article 39 UN Charter, is binding upon all members of the United Nations. Further, it is the Security Council which formulates the obligations to be fulfilled by the state having breached or threatened international peace and security and defines the objectives to be achieved by the use of force if these obligations are not fulfilled. For example, in S/RES/678
32 33 34
35
36 37
38
S/RES/143 (1960) of 14 July 1960. S/RESI221 (1966) of 9 April 1966; S/RESI232 (1966) of 16 December 1966. S/RES/678 (1990) of 29 November 1990; "2 . Authorizes Member States cooperating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the fore going resolutions, to use all necessary means to uphold and implement Security Council resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area." S/RES/940 (1994) of 31 July 1994. S/RES/794 (1992) of 3 December 1992. S/RES/1386 (2001) of 20 December 2001. This has been highlighted by Franck, Recourse to Force, see note 6, 27.
14
Max Planck UNYB 7 (2003)
(1990) of 29 November 1990 the Security Council speaks in mandatory terms of Iraq's obligation to comply with its demands to restore the sovereignty of Kuwait. Equally the Security Council spelled out in S/RES/794 (1992) of 3 December 1992 what humanitarian changes it was seeking in respect of Somalia.'? This means that the reason for military action is defined in mandatory terms. Which states are authorized to take action would depend on the reasons as defined by the Security Council. In most cases the Security Council has refrained from identifying such states in the respective resolutions but rather referred to the coalition of the willing. The establishment of such a group is organized by the respective states themselves and the adherence thereto depends upon the individual decision of each state. This constitutes the voluntary element in this approach. However, states carrying out the authorized military intervention are limited in their action by the objective to be achieved, as defined by the Security Council. It is for that reason that the coalition forces in 1990 refrained from attacking Baghdad, since the liberation of Kuwait had been accomplished, although it is an open question whether the mandate "... to restore international peace and security in the area ..." would have covered such action.f? This combination of mandatory and non-mandatory elements marking out the features of the authorization of a willing coalition by the Security Council has made it acceptable in practice. It has to be acknowledged, though, that compared to the system envisioned under Article 43 UN Charter the control the Security Council may exercise over such military activity is significantly reduced .f This certainly was another incentive for such an approach. The Security Council is unable to control the military action in detail and the original mandate being unlimited requires another Security Council resolution to end such mandate. This gives the permanent members of the Security Council, without whose consent no such authorization to take action, or to end the mandate, can be given, an overwhelming influence on scope and duration of such mandate. Concerning the war against Iraq in 2003 there was no such authorization of the Security Council. The military attack on Iraq by the United States and its allies can neither be based upon S/RES/1441
39
40 41
See note 36. See S/RES/678 (1990) of 29 November 1990. Frowein/ Krisch, see note 30, MN 25 argue that the UN Charter favours centralized enforcement and thus the Security Council should be in full control of the action. The reality, though, is different.
Wolfrum, Recourse to Force and ius in bello Reconsidered?
15
(2002) of 8 November 2002, nor as it has been claimed by, in particular, the governments of Spain,42 the United Kingdom'? and the United States" upon previous Security Council resolutions authorizing the use of military force against Iraq in 1990. S/RES/1441 states in its operative paragraph 1 - the Security Council acting under Chapter VII - "... that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq's failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687 (1991); ...". The obligations formulated by S/RES/687 (1991) were confirmed in Resolution 1441, and matters relating to disarmament, proof thereof and cooperation with inspectors were specified and expanded upon. The Security Council Resolution 1441 characterizes false declarations or omissions in the report required of Iraq, as well as the lack of cooperation with the inspectors, as violations of Iraq's obligations. In the event of continuous non-fulfilment of the obligations, the Resolution announces "serious consequences " for Iraq. That of which Iraq was accused, or that which was demanded of Iraq by the Security Council in exercising its functions under Chapter VII UN Charter included various elements. The most prominent thereof was the renunciation of atomic, biological and chemical weapons as well as of ballistic missiles which range greater than 150 kilometres, the destruction of corresponding weapons, the disclosure and proven dismantling of relevant development programs and the cooperation with international inspectors.P In addition, Iraq was obliged to provide information as to the whereabouts of interned prisoners of war and civilians, their repatriation or return, and the restoration of looted property." Further, it was claimed that the system of government which Saddam Hussein created, and which maintained him in power, violated international human rights standards on a massive scale. Iraq
42 43
44 45 46
Doc. S/PV. 4707 of 14 February 2003; Doc. S/PV. 4701 of 5 February 2003. See letter of the Permanent Representative of the United Kingdom to the United Nations of 20 March 2003 (Doc. S/2003/350 of 21 March 2003). Letter of the Permanent Representative of the United States to the Security Council of 20 March 2003 (Doc. S/2003/351 of 21 March 2003). S/RES/687 (1991) 00 April 1991, paras 7 to 14. S/RES/1441 (2002) of 8 November 2002 in connection with S/RES/686 (1991) of 2 March 1991, S/RES/687 (1991) of 3 April and S/RES/1284 (1999) of 17 December 1999.
16
Max Planck UNYB 7 (2003)
was accused of oppressing the civilian population, persecuting minorities, and failing to cooperate with relief organizations. Thus, Iraq was requested by the Security Council to end the repression of its civilian population and to provide access by international humanitarian organizations to all those in need of assistance.F Finally, Iraq was accused by the Security Council of having failed to comply with its obligation against international terrorism.t" The Security Council has determined many times that actions of the government of Iraq or rather its lack of cooperation constituted a threat to international peace, S/RES/1441 (2002) of 8 November 2002 only being the last instance. In this respect, the Security Council has a farreaching prerogative of political discretion. Such discretionary power is rather restricted through the voting system of the Security Council than juridical review. Apart from that it would be difficult to question the assessment of the Security Council that the existence of nuclear, biological or chemical weapons in the hands of the then existing government of Iraq had a destabilizing effect in the entire region, if not world wide, and thus endangered international peace. The demand for the destruction of such weapons, the dismantling of respective research programs and reliable information to that extent was just a matter of consequence. It is also for the Security Council to determine whether Iraq is in the possession of weapons of mass destruction or programs for their production, or whether their destruction and the discontinuation of the respective research has been proven. In making such assessment the Security Council does not act as court; it is not bound by judicial rules of evidence. The Security Council - in keeping with the design of the UN Charter - acts as a political organ. The greater the perceived danger to international security, the less it will be necessary to present fully confirmed facts: it is a question of proportionality. As already indicated, Iraq's possession of weapons of mass destruction and the possibility of their use was not the only basis on which the Security Council could rest its determination that Iraq posed a threat to international peace and security. The Security Council could also take action on humanitarian grounds and has done so in the past. On several occasions it has classified serious violations of human rights as a threat
47 48
S/RES/1441 (2002) of 8 November 2002 in connection with S/RES/687 (1991) of 3 April 1991. S/RESI1441 (2002) of 8 November 2002 in connection with S/RES/688 (1991) of 5 April 1991.
Wolfrum, Recourse to Force and ius in bello Reconsidered?
17
world peace; examples are Southern Rhodesia, South Africa,"? Somalia, Rwanda, Former Yugoslavia and Zaire (today the Congo) .50 This has expanded the concept of peace under the UN Charter. Peace is not only to be understood as the absence of military engagement. A threat to the peace may already exist if essential elements of the international legal order that provide the conditions for an enduring peace, are violated. There is no doubt that gross and large scale violations of human rights may reach that threshold. 51 Finally, the Security Council has already, on previous occasions, determined that international terrorism may constitute a threat to international peace and security.V However, a determination by the Security Council that a threat to international peace exists does not automatically result in the authorization of the use of military force. The latter requires an explicit determination by the Security Council. Considering the legitimizing effect accorded to such a Security Council Resolution by the world community to justify an exception from the prohibition of the use of force, it is indispensable that the resolution should contain a clear statement authorizing the use of military force, an indication of the states which are authorized to use force and the states or entities against whom such force may be used. In the cases in which the Security Council has to
49
50
51
52
It is doubtful whether it is fully justified to quote the decisions of the Security Council in this respect. Its determination that the situations in South Rhodesia and in South Africa constituted threats to the international peace and security may primarily have been motivated by the destabilizing effect these regimes had on neighbouring countries; see Froweinl Krisch, "Art. 39". MN 19 and 20, in: Simma, see note 6. See the assessment of H. Gading, Der Schutz grundlegender Menschenrechte durch militdrische Maflnahmen des Sicherheitsrates - das Ende staatlicher Souveranitat?, 1996, 91 et seq.; S.D. Murphy, Humanitarian Intervention, 1996, 145 et seq.; S. Chesterman, Just War or Just Peace? Humanitarian Intervention in International Law, 2001, 14 et seq. Critical also MJ. Glennon, Limits of Law, Prerogatives of Power, Interventionism after Kosovo, 2001, 120; in favour of a more flexible interpretation of the respective provisions of the Charter, see Miillerson, see note 6, 171. Gading, see above, 165 et seq.; B. Conforti, The Law and Practice of the United Nations, 2nd edition, 2000, 177; sceptical Froweinl Krisch, see note 49,21 who argue that it is not for the Security Council to enforce all overarching values of the international community; but this is not to say that the Security Council has no scope of action at all in this regard . S/RES/731 (1992) of 21 January 1992; S/RES/I044 (1996) of 31 January 1996; S/RES/I054 (1996) of 26 April 1996 (Sudan); S/RES/1267 (1999) of 15 October 1999; S/RES/1333 (2000) of 19 December 2000 (Afghanistan).
18
Max Planck UNYB 7 (2003)
authorized states to use military force it has made it clear that such measures may be taken and has identified the coalition of the willing. The formula "... to use all necessary means ..." seems, after the resolution concerning Haiti, to have become the standard one. 53 Both elements are missing in S/RES/1441 (2002) of 8 November 2002 and it therefore cannot be read as an authorization of the Security Council to use military force against Iraq. Neither docs the resolution authorize a particular group of states nor does it contain a reference to the use of military force. Instead the resolution states in para. 13: "Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations; ...". Taken verbally, it only reminds Iraq of previous warnings which, however, fall short of respective decisions. That even the United States and its allies did not consider S/RES/1441 as an authorization to take military action against Iraq transpires from the attempts to have the Security Council to agree upon a further resolution. 54 Finally is it not possible to justify the military actions taken by the United States and its allies against Iraq by reference to S/RES/678 (1990) of 29 November 1990, which provided for a military liberation following Iraq's aggression against Kuwait, although S/RES/1441 in its preambular paragraph 4 referred to the former. This resolution had authorized Member States co-operating with the government of Kuwait "... to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent resolutions and to restore international peace and security in the area; ...". This authorization which embraced the use of military force was meant to serve two different purposes namely the liberation and the restoration of peace and security in the area, both conforming to the objectives which may be pursued under Article 39 UN Charter. It is the latter one which has been invoked in the attempt to justify the attack on Iraq in 2003. Following the liberation of Kuwait the Security Council set out, in S/RES/686 (1991) of 2 March 1991 and S/RES/687 (1991) of 3 April 1991 the steps Iraq had to take as a precondition for a formal cease-fire.
53
54
See S/RES/940 (1994) of 31 July 1994 (Haiti); S/RES/678 (1990) of 29 November 1990 (Iraq); S/RESI794 (1992) of 3 December 1992 (Somalia). See the draft offered by the United States, United Kingdom and Spain on 24 February 2003 (http:/ / usinfo.stategov/ to pical/poll arms/ 0302241O.htm) and the one on 3 March 2003 (http:/ /www.msnbc.com/news/87601.asp ).
Wolfrum, Recourse to Force and ius in bello Reconsidered?
19
These conditions Iraq was requested to accept/" which it did. Although S/RES/687 did not explicitly repeal the authorization of the Security Council to use military force 56 it provided for a cease-fire and furthermore confirmed the commitment of all Member States" ... to the sovereignty, territorial integrity and political independence of Kuwait and Iraq ...". The resolution also took note" ... of the intention expressed by the Member States cooperating with Kuwait under paragraph 2 of resolution 678 (1990) to bring their military presence in Iraq to an end as soon as possible consistent with paragraph 8 of the resolution 686 (1991) ..."Y On that basis it cannot be argued that after twelve years the authorization to use military force revived for a group of states at least in part different from the original ones, merely by the statement in S/RES/1441 that Iraq had violated its obligations under resolution 687.58 Since the formal cease-fire had been declared by the Security Council"? only the latter could effect an end to the cease-fire and, thereby authorize renewed military action against Iraq. In this context it has been pointed out that twice, in 1993 and in 1998, the coalition took military action under the authority of S/RES/678 (1990) of 29 November 1990 and that the attack of 1993 had been declared by the Secretary-General of the United Nations to conform to that resolution.s? It is doubtful whether such limited strikes 55 56
57 58
59
60
Para. 33, see note 59, below. The first operative paragraph reads: "Affirms all thirteen resolutions noted above, except as expressly changed below to achieve the goals of the present resolution, including a formal cease-fire; ....". Third pre-ambular paragraph. See operative paras 1 and 2 of that resolution. A different position has been taken in the Written Answer of the Attorney General, Lord Goldsmith, to a Parliamentary Question on the legal basis for the use of force in Iraq. See also letter by the Permanent Representative of the United Kingdom to the Security Council Doc. S/2003/350 of 21 March 2003. It is worth noting that the justification of the United Kingdom differed from that of the United States which also invoked self-defence (see letter of the Permanent Representative of the United States to the Security Council, Doc. S12003/351 of 21 March 2003). Para . 33 of S/RES/687 reads: "Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwa it in accordance with resolution 678 (1990). " In a statement of 14 January 1993 it was said that: "... the raid and the forces that carried out the raid, have received a mandate from the Security
20
Max Planck UNYB 7 (2003)
against surface-to-air missile sites (11 and 18 January 1993) and a strike against a nuclear fabrication facility (17 January 1998) near Baghdad can be compared to the large scale armed attack against Iraq launched by the coalition in 2003. But what is more important is the fact that such military acts as have occurred, since only one of them found the approval of the Secretary-General of the United Nations, do not necessarily lead to the conclusion that they were legal under S/RES/678 or the UN Charter. Far less can any conclusion be drawn concerning the legality of later large scale military attacks against Iraq . In any case a statement made by the Secretary-General of the United Nations justifying the military action of 1993 is of no relevance in this respect since the Secretary-General has neither the function nor the authority to give an authoritative interpretation of Security Council resolutions or the UN Charter.
4. Incapacity of the Security Council as a Justification to Act Unilaterally It has been argued that the incapacity of the Security Council to act reopened the possibility for states to take the necessary military actions unilaterally.''! In fact, the arguments advanced in this respect resemble the clausula rebus sicstantibus debate of earlier periods when this principle was given wider applicability than it seems at present.s- It is held that the limits the UN Charter imposes on self-help as a means of enforcing international law presupposes the operation of an effective collective security system based on a respective willingness of states to cooperate. Due to the ineffectiveness of the collective security system and the lack of co-operation states have regained their original capability to act unilaterally. 63
61 62
63
Council, according to Resolution 687, and the cause of the raid was the violation by Iraq of Resolution 687 concerning the cease-fire. I, as Secretary-General of the United Nations, I can say this action was taken and conforms to the resolutions of the Security Council and conformed to the Charter of the United Nations ...". See e.g. Introduction, in: M.WI A.R. Willard, International Incidents, 1988. R. Jennings/ A. Watts (eds), Oppenheim's International Law, 1992, 1305 et seq.; Dahm/ De1briickl Wolfrum, see note 7,743 et seq. Reisman, see note 1, 83.
Wolfrum, Recourse to Force and ius in bello Reconsidered?
21
At least in respect of the war against Iraq 1990/1991 such approach is hardly convincing. Certainly Article 43 UN Charter has not been implemented but Security Council practice was able to overcome that by entrusting a coalition of the willing Member States. In 2003 the Security Council acknowledged that Iraq was in breach of its international obligations but did not follow the view of the United States and its allies that the time was ripe for military action. That the Security Council did not follow the assessment of one group of states cannot mean - if the decision-making process in the Security Council has a meaning at all - that it was unable to meet its functions concerning the preservation of international peace and securiry.v'
5. Humanitarian Intervention It has been argued that the serious violations of human rights committed by the government of Iraq could be used as a justification for the military attack with the objective to put an end to such violations (socalled humanitarian intervention). Humanitarian intervention may be defined as the use of force across state borders by a state, or a group of states, aimed at preventing or ending widespread and grave violations of fundamental human rights of individuals other than its own citizens .s! It is already questionable even under the assumption that humanitarian interventions conform to international law whether Iraq can be considered a case for such humanitarian intervention. The serious human rights violations referred to occurred several years ago and it is more than doubtful that the concept of humanitarian intervention would cover int ervent ions against a regime, which by its very nature, may be likely to commit serious human rights violations. However, this consideration should not detract from the question whether under present international law the protection of human rights has acquired such a weight that such protection may legitimize an infringement on the prohibition of the use of force in international relations.
64
65
See also T. Farer, "Humanitarian Intervention before and after 9/11: Legality and Legitimacy", in: J.L. H olzgrefe/ R.O. Keohane, (eds), Humanitarian Intervention, Ethical, Legal and Political Dilemmas, 2002, 53 et seq. (65). See J.L. Holzgrefe, "The Human International Debate", in: Holzgrefe/ Keohane, see above, 18.
22
Max Planck UNYB 7 (2003)
Under the UN Charter, the prohibition against the use of force excludes a priori humanitarian intervention by military me ans .sf The obligation of Member States contained in the UN Charter to protect hu man rights does not justify unilateral military means to enforce them.s/ To this extent the prohibition against the use of force is absolute. Several attempts have been made to argue the legitimacy of unilateral humanitarian intervention through military means. Recourse has been made inter alia, to the right of self-help, in cases where the Security Council fails to discharge its obligation to act,68 or to the right of selfdefence on behalf of the population concerned.s? This approach does not find a justification in existing international Iaw.P However, it is claimed that precedents for unilateral humanitarian intervention exist which have generated respective customary international law. Among these reference has been made to the Indian encroachment in what was then East Pakistan, which led to the creation of the state of Bangladesh;" the Tanzanian intervention in Uganda, which resulted in the downfall of ldi Amin's regime;72 the provision of assistance for the Kurds in Northern Iraq after Saddam Hussein's defeat in the Kuwait conflict.F' and the deployment of troops from West African
66 67
68 69 70
71
72 73
Dahm/ Delbriick/ Wolfrum, see note 7, 826 et seq.; Dinstein, see note 6, 66; Franck, Recourse to Force, see note 6, 138. Different M.J. Glennon, "The New Interventionism: The Search for a Just International Law", Foreign Alf 78 (1999), 2 et seq. Delbriick, see note 6, 152; K. Doehring (ed.), Volkerrecht, 1999,435. Doehring, see above, 435; R. Wedgwood, "NATO's Campaign in Yugoslavia", A]IL 93 (1999), 828 et seq. (833). P. Hilpold, "Humanitarian Intervention: Is There a Need for a Legal Reappraisal?", E]IL 12 (2001), 437 et seq. (450 et seq.); J. Duursma, "Justifying NATO's Use of Force in Kosovo", L]IL 12 (1999),287 et seq.; L. Henkin, "Editorial Comments: NATO's Kosovo Intervention: Kosovo and the Law of 'Humanitarian Intervention''', A]IL 93 (1999), 824 et seq. (825 et seq.). T.M. Franck/ N .S. Rodley, "After Bangladesh: The Law of Humanitarian Intervention by Military Force", A]IL 67 (1973), 275 et seq. (299-302); in the United Nations neither in the Security Council nor in the General Assembly India's claim that its military intervention was prompted by human rights concerns was accepted. This intervention was ignored by the Security Council. For an assessment see Franck, Recourse to Force, see note 6,152-153.
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states in the internal conflicts in Liberia and Sierra Leone-" But it is highly questionable, whether these cases can be drawn upon to justify unilateral military humanitarian intervention. None of the intervening states relied solely on a right to humanitarian intervention when legally justifying their actions; they all claimed that their interventions were necessary to preserve or restore peace in the regions concerned. In addition, and more prominently, in none of the cases was the intervention explicitly accepted for humanitarian reasons. If it was not criticized by the community of states, as in the case of India, the results achieved were merely tolerated as an improvement of the political situation. Apart from that there are cases in which corresponding interventions were treated as violations of international law. This is true, for example, for the dispute in the United Nations regarding the use of military measures against the Pol Pot regime,75 Finally, it is impossible to refer to the NATO military action in Yugoslavia to prevent ethnic cleansing and human rights violations in Kosovo as a precedent to support military humanitarian intervention. This deployment of force was incompatible with existing international law,76 and many of the politicians who defended it at the time stressed emphatically that it should not serve as a precedent to justify future humanitarian interventions. It is of no relevance in this context that the Security Council later implicitly accepted the results achieved and that the United Nations resumed responsibili74
75
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K. Nowrot/ E.W Schabacker, "The Use of Force to Restore Democracy: International Legal Implications of the ECOWAS Intervention in Sierra Leone", Am. U. lnt'l L. Rev. 14 (1998/99), 321 et seq. (411). See in particular A/RES/34/22 of 14 November 1979 which clearly condemned the intervention of Vietnam. This resolution is similar to the one which the USSR had vetoed in the Security Council; for an assessment see Franck, Recourse to Force, see note 6, 145 et seq. H.P. Neuhold, "Die Operation 'Allied Forces' der NATO: Rechtrnaliige humanitare Intervention oder politisch vertretbarer Rechtsbruch", in: E. Reiter (ed.), Der Krieg um das Kosovo 1998/1999,2000,193 et seq.; Dahm/ Delbriick/ Wolfrum, see note 7, 828 et seq.; A. Cassese, "Ex iniuria ius oritur: We are Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?," EJIL 10 (1999),23 et seq.; Henkin, see note 70,825; different B. Simma, "NATO, the UN and the Use of Force: Legal Aspects", EJIL 10 (1999),1 et seq. According to Schmitt, see note 11, 532 the action of NATO was justified in spite of the lack of authorization of the Security Council since it was evident that - due to the fact of the objection by Russia - no affirmative decision of the Security Council could have been achieved. On the debate in the Security Council see Lepard, see note 22,339 et seq.
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ties in relation to the administration of Kosovo . This does not amount to a general endorsement of a humanitarian intervention initiated and carried out without the consent of the Security Council. In the end, international law cannot evade the question of how to react to national regimes that gravely violate internationally protected human rights on a large scale and thus violate the value system of the community of states. But this question cannot be answered by according a so-called right of unilateral humanitarian intervention to individual states. First and foremost it is for the Security Council to act as the organ that has been mandated by the UN Charter to act on behalf of the community of states. Where the control and reaction system of the Security Council, short of military measures is exhausted, the possibility of collectively responsible military measures must exist. A military humanitarian intervention can be made compatible with existing international law if it takes place on the basis of a Security Council resolution that expressly authorizes the mission. In this connection it is not correct, as occasionally suggested, that such a resolution by the Security Council legitimates the war. A negative value judgment is implied by the word "war" that does not apply to military missions authorized by the Security Council to enforce international law. In this regard the Security Council acts in the name of the world community to advance common goals. This paramount objective removes the odium of war from military missions authorized by the Security Council, the negative connotation that normally attaches to the term "war". As already indicated the Security Council has in the past taken action in this respect, although sometimes only retroactively. The crucial question, though, is how to deal with a situation when the Security Council does not take up the issue or cannot come to a positive decision due to either the opposition of a majority of its members or a veto of one of its permanent members. Those who argue in favour of humanitarian intervention point out that giving prominence to the prohibition of the unilateral use of force even in cases where the use of force may be necessary to remedy grave and widespread human rights violations is not in keeping with the protection of human rights as envisioned by the UN Charter and does not take due account of the increased prominence given to human rights since the adoption of the UN Charter." The Secretary-General of the United Nations high-
77
W.M. Reisman/ M. McDougal, "Humanitarian Intervention to Protect the Ibos", in: R.B. Lillich (ed.), Humanitarian Intervention and the United Nations, 1973, 167 et seq. (175).
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lighted this dilemma when addressing the Kosovo conflict." Michael Reisman argues, in effect, that international protection of human rights has been elevated to an "imperative level of international law"."? Furthermore, referring to the relative increase in the importance of non state actors in the international decision process and the lack of consensus in the Security Council with regard to the importance of human rights, he has concluded that, in the absence of such consensus among the PS to take remedial action, democratic states may do so unilaterally, and thus compensate for the dysfunctional decision-making in the Security Council. One of the problems with this approach is that it would place a particular group of states in a privileged position and would open the possibility that such states may impose on the majority of other states a value system not acceptable to them. This is hardly reconcilable with the principles governing the international community at present. Apart from that, those being in favour of unilateral humanitarian interventions do not adequately take into consideration the real record of the Security Council. The Security Council has in fact endorsed humani tarian interventions in the past, or at least acquiesced in such interventions. Therefore, it is difficult to sustain the claim that there is a lack of consensus on the relevance of international human rights protection or the necessity to enforce them. Finally, the argument that the protection of human rights enjoys or should enjoy priority over the prohibition of the use force is hardly tenable from the point of view of morality. The prohibition of the use of force is not only meant to ensure the integrity of existing states; nor is it just a limitation on the conduct of states in
78
79
"To those for whom the greatest threat to the future of the international order is th e use of force in the absence of a Security Council mandate, one might ask, not in the context of Kosovo but in the context of Rwanda, if in those days ... leading up to genocide, a coalition of states had been prepared to act in defence of the Tutsi population, but did not receive prompt Council authorisation, should such coa lition have sto od aside and allow the horror to unfold? To those for whom the Kosovo action heralded a new era when states and groups of states can take military action outside the established mechanisms for enforcing international law, one may ask: is there not a danger of such intervention undermining the imperfect, yet resilient, security system created after the Second World War ..." (GAOR 54 Sess., 4th Plenary Mtg of 20 September 1999, 2, Doc. A/54/PVA). WM . Reisman, "Unilateral Action and the Transformation of the World Constitutive Process: The Special Problem of Humanitarian Intervention", EJIL 11 (2000),3 et seq. (15).
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order to improve international relations. The prohibition of the use of force reflects the recognition - as indicated in the Preamble of the UN Charter - that war has resulted in the past in the most serious violations of human rights. It is thus meant to protect human rights against the most fundamental violations. It is beyond the scope of this paper to analyze the pros and cons in detail as to whether international law should develop into the direction where individual states, without an international mandate, should have the right to militarily intervene in other states to put an end to widespread and grave human rights violations. State practice does not seem to have moved in that direction yet. 80 The maximum which can be deduced from the experience concerning Uganda, Liberia and Sierra Leone is a certain willingness on the part of the international community to acquiesce in a violation of the prohibition against the unilateral use of force for humanitarian purposes in cases of necessity, if the action has been carried out by a group of states of the region rather than one state, especially where the national interests of the intervening states can reasonably be excluded as the significant factor in the decision to intervene. Even this limited acquiescence (and certainly any step further) could lower the threshold of the prohibition against recourse to force in international relations, and thus infringe upon one of the major values of the community of states.s! This is, in particular, disquieting since no international control mechanism exists either over the actions taken by regional arrangements, where one may at least assume some self restraint because of the plurality of actors, or over unilateral humanitarian intervention. For unilateral humanitarian intervention to be accepted, it is at least necessary to ensure that aparticular national or sectional interests of an economic or geopolitical character are not wrapped up in the garment of human rights protection.V
80
81 82
See in this respect the statements of the Non-Aligned Summit in 1999 and the Group of 77 meeting in 2000. In both statements the formula was used: « ... We reject the so-called, 'right of humanitarian intervention' which has no legal basis in the UN Charter or in the general principles of international law ..."; see so far, dealing with the post-conflict situation in Iraq, both under Chapter VII of the Charter. Although they, in fact, restrict the role of the United Nations to humanitarian assistance they reconfirm several principles relevant for the administration of Iraq by the occupymg powers. Both re-confirm the sovereignty and territorial integrity of Iraq thus indicating that the Security Council would not accept a fragmentation of Iraq or the occupation of parts thereof by other states. This would not rule out, though, that a future constitution for Iraq would provide for a decentralized governmental system vesting territorial units with some autonomy so as to accommodate ethnic or religious diversity. The resolutions of the Security Council give some explicit guidance as to the future governmental system of Iraq. It shall be based on the free decision of the people of Iraq; it shall be representative, based upon
229 A detailed analysis of the governmental activities of the Authority is provided by Stahn, see note 220, 134et seq. 230 S/RES/1272 (1999) of 25 October 1999. See also in this respect, C. Stahn, "The United Nations Transitional Administration in Kosovo and East Timor: A First Analysis", Max Planck UNYB 5 (2001),105 et seq. 231 SeeStahn, see note 220, 165 et seq. 232 G.B. Helman/ S.R. Ratner, "Saving Failed States", Foreign Policy 89 (19921993), 12 et seq. (13) add another form, namely the assistance to a government such as supervising elections or a referendum. 233 S/RES/1483 (2003) of 22 May 2003; S/RES/1500 (2003) of 14 August 2003.
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the rule of law and affording equal rights and justice to all Iraqi citizens without regard to ethnicity, religion, or gender. 234 In respect to the latter topic reference is made to S/RES/132S (2000) of 31 October 2000 calling, amongst others, upon the Member States of the United Nations to increase the number of women in national institutions at all levels. It is astonishing tha t both resolutions refrain from explicitly referring to democracy as the governing principle for the future constitution - the term "representative government" may be taken only to refer to a government which is the representative of the composition of the Iraqi population as far as ethnicity, religion and gender is concerned; equally there is no explicit reference to the protection of human rights according to international standards. This may be due to the expressed desire of representatives of the Iraqi society that "democracy should not be imposed from the outside".235 The Governing Council which was established on 13 July 2003 is not considered as a government but only as an important step towards the establishment of an internationally recognized representative government.P" This means that the Security Council considers the occupying powers as those who are fully responsible for the present administration of Iraq and its future development. This view was clearly expressed in some of the statements made at the adoption of S/RES/1S00 (2003) of 14 August 2003.237 This situation will only change with the constitution of a new Iraqi government. Whereas actions of the occupying powers are limited under the Hague Regulations and the Fourth Geneva Convention this is not the case for the future government of Iraq to that extent it acts independently from the occupying powers. Although there are precedents that the United Nations have assumed administrative functions with respect to state territories or parts thereof to provide for a peaceful governmental transition in the postconflict period there is no legal obligation under the UN Charter to entrust the United Nations with respective functions. The principle governing the transition of Iraq from the former governmental regime
234 S/RES/1483 (2003) of 22 May 2003, fifth pre-ambular paragraph. 235 See Report of the Secretary-General pursuant to para. 24 of S/RES/1483 (2003) of 22 May 2003, Doc. S/2003/715 of 17July 2003, para. 19. 236 According to the Report of the Secretary-General, see above, para. 24, the 25 member Governing Council has a slight Shi'ah majority; it includes three women, and an equal representation of Kurds and Sunnis. There are also representatives of Christians and Turkmen. 237 See, in particular, the statement of the representative of Mexico.
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via the power exercised by the occupying states to a government under a new regime is the principle of self-determination. This obliges the occupying powers to induce the population into the political decisionmaking process. This has been highlighted in S/RES/1483 (2003) of 22 May 2003 which stresses the right of the Iraqi people to freely determine their own political future. 238 In that respect this resolution can be read as the confirmation of an evolving international principle, namely the right to democratic governance. 239 If the United Nations were to take over administrative functions for a transitional period in Iraq it would be worth considering whether, in such a situation, the same restrictions would apply as would apply to the exercise of authority by an occupying power. The different objectives pursued by the United Nations, as compared to an occupying state, would argue against applying the same restrictions.P? The rules on military occupation attempt to strike a balance between the security interest of the occupying power and the humanitarian need of the population. Also these rules try to prevent the occupying power which is modelling the governmental structure of that territory according to its own needs disregarding the cultural, religious or ethnic background of the society of the occupied territory. It has already been pointed out that international law rules on military occupation are not designed to provide the occupying power with the appropriate authority, including clearly formulated and adequate limits, and respective mechanisms to alter a governmental structure of an occupied territory although the governmental structure in question may, as in the case of Iraq, not conform to the international standards concerning a responsible government. To elaborate such rules borders on the impossible. A military occupant cannot, by its very nature, be considered a neutral entity acting only in the interest of the occupied territory and its society. Certainly the society of that occupied state will not consider the occupying state in such light. The position of the United Nations administration in post-conflict periods in the past was different. It derived its authority from a Security Council resolution and thus from its overarching responsibility to restore and preserve international peace and security or a respective inter-
238
239
240
This has been highlighted in the Report of the Secretary-General, see note 235, in particular paras 19 to 21. See T.M. Franck, "The Emerging Right to Democratic Governance", AjIL 46 (1992), 86 et seq. Stahn, see note 220, 141.
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national agreement. Therefore the United Nations is in the position to act as a neutral entity. The limits imposed upon it in the respective peace agreements or the limits formulated in the Security Council resolution mandating the exercise of governmental or administrative authority together with the limits inherent in or to be derived from the UN Charter should be sufficient to ensure an exercise of authority based upon the rule of law and the respect for international human rights srandards .s" However, what has been said concerning international law on military occupation is true in some respect for the administration of territories by United Nations institutions, too. The United Nations is lacking the legal framework to fulfill administrative or governmental functions. Each situation is dealt with on its own. Given the uniqueness of each situation this may be mandatory but this does not exclude the application of the international human rights instruments, including codes of conduct, such as the Code of Conduct for Law Enforcement Officials.
v
Conclusions
At the outset the question was raised whether actions taken by the United States and its allies in fighting the Taliban and Iraq and the reactions thereto from among the international community reveal a pattern or a tendency indicating already accomplished changes or future changes in the international law concerning the use of force and the law in armed conflict. In spite of opinions voiced from among the academic world the binding force of international law has not been challenged as a matter of principle; and international treaties and customary international law continue to be considered as valid restrict ions on the conduct of states in international relations. There is a disagreement, though, to what extent international law should automatically follow what has been referred to as the realities of international relations. In this respect the inherent function of the law should not be lost out of sight; law is one of the stabilizing factors in society. As such it must not blindly follow or seek to validate political or other changes in the community in which it 241
Critical, however, as far as East Timor and Kosovo are concerned, Frowein, see note 219, 50 et seq.; Stahn, see note 220, 152 et seq. claims that in Kosovo international human rights standards have not always been fully respected by the UN administration.
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operates. This does not mean law can remain oblivious to such changes though if, and that is decisive, these changes are endorsed or sought for by states reflecting the plurality within the international community. However, international law disposes of instruments and mechanisms for closing the gap between law and the permanently changing circumstances. As far as the prohibition against the unilateral recourse to force is concerned, the policy pursued by the United States and its allies clearly indicates that such recourse to military force requires justification. What may serve as justification, which objectives may be pursued and by whom, is the issue rather than the need for justification as such. This became quite apparent in the negative reaction of the United States government to the allegation of the Indian government that it, too, could invoke pre-emptive self-defence vis-a-vis the nuclear armament policy of Pakistan. Of paramount relevance in respect of the necessity to justify an armed attack are the letters of the United States and the United Kingdom addressed to the Security Council setting our their reasons in favour of the legality of the attack on Iraq. They are of relevance not only for what they state - that is evident - but also what they do not state. Both letters emphasize that the armed attack on Iraq was authorized by the Security Council. This means - although one may disagree with the reasoning - both states consider the authorization of the Security Council as necessary for such an attack. Thus, the counterposition advanced in literature and in general political statements is not reflected in the official political position taken by both states. It is this practice which contributes to the development of customary internationallaw rather than academic writing. As far as self-defence is concerned there is a general tendency, in particular, pursued by the United States to invoke self-defence on the basis of a liberal interpretationof that notion. For example, the invasion of Panama in December 1989 was qualified as self-defence as was the aerial attack of 1993 against the Iraqi intelligence headquarters in Baghdad and the missile attacks against Ai Qaeda training camps in 1998. All these acts fall short of the conditions required for self-defence; and they were rejected, in one form or the other, from among the international community. Accordingly it can hardly been argued that a broader interpretation of the notion of self-defence has been accepted in principle . What may have found international acceptance is that self-defence may be triggered by an attack of non-state actors. Such an evolution reflects the growing relevance of non-state actors in international relations.
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As far as pre-emptive self-defence is concerned it is worth noting that only the United States has advanced this form of self-defence as a justification for the war against Iraq in 2003. Not even its allies seem to have followed the United States in this respect. Accordingly, it is not possible to consider the military attack against Iraq as a clear cut case of such form of self-defence . There is no indication that pre-emptive self defence will be accepted in the international community in the near future. One has to acknowledge, though, that valid security interests of states against the spreading of international terrorism and the proliferation of weapons of mass destruction must be accommodated. The claim for pre-emptive self-defence, although it is an unacceptable approach, at least signals a security lacuna which needs to be accommodated. The evaluation of the prevailing tendencies concerning the acceptance of a military humanitarian intervention provides little indication that this means is considered as a valid exception to the prohibition of the use of force. This is in spite of the fact that grave and persistent violations of human rights are no larger considered as an internal affair of a state immune from intervention from the outside. It is rather a matter where the international community is called upon to react. In that respect a significant shift in the value system of the international community can be identified. This does not amount to a justification of unilateral military intervention, though. The recent armed conflicts have demonstrated that the respective rules have not been fully adhered to but also that some of the rules can no longer be considered adequate. The law in armed conflict was originally designed for inter-state conflicts; later adjustments to cover internal conflicts or conflicts with non-state entities, such as the Additional Protocol II, are rudimentary and have not found universal recognition. 242 To fill this lacuna the ICTY applies, on a case by case basis, humanitarian rules designed for an international conflict to noninternational conflicts. Such an approach does not meet the standards for transparency and predictability as required, in particular, for criminal proceedings. Given the fact that most armed conflicts are of a noninternational nature it seems mandatory to consider codifying humanitarian law in non-international conflicts in a way which balances hu-
242
Only article 3 common to the Four Geneva Conventions providing some basic humanitarian rules for the internal conflict can be regarded as being universally accepted.
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manitarian needs and the fact that the belligerent non-state entities either cannot or do not intend to apply the traditional rules of warfare. The legal rules in armed conflict which, on the basis of experience gained in the armed conflicts of the recent years particularly deserve reconsideration, are the ones on targeting, weaponry, prisoners of war and the rules on military occupation. The rules on targeting and on weaponry as they stand at the moment were formulated on the basis of a different weapons technique. Modern weapons technology allows for a more accurate targeting which is to be taken into account when judging whether collateral damage was avoidable and whether appropriate precautionary measures were taken. Articles 51 and 57 Additional Protocol I should be read to fully accommodate the possibilities of the new weapons technology concerning targeting. The respective national military manuals or operationallaw handbooks should be rewritten to reflect this modern understanding of the limits on targeting. Another issue concerning targeting has emerged from a shift in the understanding of what is a military objective which alone may become a military target. In the two wars against Iraq as well as in the bombardment in Yugoslavia a tendency has developed in practice to define objects, which make an effective contribution to military action, as objects which generally contribute to the war-sustaining efforts of the adversary. This goes beyond the established limits on targeting and disregards that the provision of article 52 Additional Protocol I, reiterated in later instruments, was formulated with the view to ensure that practices used in World War II should not be reiterated. Modifications in military manuals which provide for more latitude in targeting should be revised. One of the salient points in recent practice is the treatment of persons detained in an armed conflict and where there are doubts whether these are members of regular armed forces and whether the persons in question have themselves acted according to the rules of armed conflict. These persons are either to be treated as prisoners of war or in a procedure applying international human rights standards. The treatment of the detainees in Guantanamo Bay is open to criticism, in particular, their denial of the formal status as prisoners of war. In spite of that one has to concede that existing humanitarian law should provide for an internationally accepted standard for the prosecution and punishment of international terrorists, balancing the security interests of the detaining state against persons applying criminal methods and disregarding all principles upon which international humani-
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tarian law is founded, with the necessity to provide for the minimum standards of human rights that every human person is entitled to. The rules on occupation may be the ones which, in particular, require reconsideration. These rules, many of which are heavily influenced by the thinking of the beginning of the 20th century, do not adequately cover situations where the occupant is initiating a restructuring of the political organization of the occupied state. The full respect of the principle of self-determination which means the earliest possible involvement of fora representative for the population as expressed in S/RES/1483 (2003) of 22 May 2003 is pertinent. Given the fact that an occupying state will never be considered as neutral it seems political advisable, although not legally mandatory, to provide for a substantial involvement of the United Nations. Events, such as the assassination of the Special UN Representative of the UN Secretary-General in Iraq Sergio Vieira De Mello, however, sadly show that even the established neutrality of the United Nations does not make it immune against terrorist attacks.
The Classification of States and the Creation of Status within the International Community Petra Minnerop
1. II.
The Classification of "rogue states" by the United States Exclusion, Inclusion and the Emergence of Community 1. Society and Community: Different Conceptions of World Order 2. The International Society as a Legal Community 3. The Sovereign Equality of States as a Community Principle a. Intervention via Stigmatization? aa. A Right to Dignity? bb . Political Independence aaa. Defamation of States bbb. Exception to Immunity b. The Meaning of Sovereign Equality aa. The Equality of States as an Ideal bb. Safeguarding the Legal Capacities of States c. Discussion III. Hegemonic Law in the International Community? 1. Concepts of Hegemony a. The Historical Perspective aa. Differentiating between Leadership and Predominance bb. Legitimized Hegemony? b. The Current Debate aa. The Legitimacy of the Benign Hegemon bb. Effective Stability cc. Hegemonic International Law 2. Law Creation through Leadership and the Role of Reaction 3. The Stigmatization of States as a Concept of Leadership a. Defining the Community Interests b. Stigmatization as a Legal Argument c. The International Response to the Classification of "rogue states" IV. The Creation of Second-Rate Legal Status in International Law? 1. Pre-emptive Self-Defence against "rogue states"
A. von Bogdandy and R. Wolfrum (eds.). . Max Planck Yearbook ofUnited Nations Law, Volume 7, 2003, 79-182. © 2003 Koninklijke Brill N. V. Printed in the Netherlands.
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V.
Max Planck UNYB 7 (2003) a. The New National Security Strategy b. The War against Iraq 2. Sanctions Regime against "state sponsors of terrorism" Conclusion
I. The Classification of "rogue states" by the United States" Throughout the second half of the twentieth century the United States of America (henceforward: the United States) developed a number of multifarious terms for states to which it ascribed a high threat potential as regards the United States and international security. President Reagan referred to these countries as "terrorist states" or "renegade regimes."! In the aftermath of the Iraq-crisis of 1990/1991 the United States Department of State (henceforward: DoS) coined the formulations "Iraqs of the future" and "other Iraqs" for states possessing a similar threat potential.? In addition to this, the United States has been warning of the increasing danger posed by "rogue states", "i.e, their striving for weapons of mass destruction (henceforward: WMD) and their support of international terrorism since the mid-nineties". The (perceived) support of international terrorism has been a principal reason for the United States Government to denote countries as "rogue states" in its statements. Besides this factor, the designation of a country as a "state sponsor of terrorism" by the DoS serves as a cornerstone for such a lexical stigmatization. The DoS has been engaged in this procedure since 1979, when it commenced publishing an annual list of countries the United States thought of as "states supporting international terrorism", At the time of writing the list included Cuba (since 1982), Iran (since 1984), Iraq (s-ince 1990), Libya (since 1979), North
2
For a more detailed description of United States practice concerning the use of pejorative classifications and the reaction of other states, see P. Minnerop, Die Stigmatisierung von Staaten. Eine volkerrechtliche Bewertung unter dem Prinzip der souuerdnen Gleichheit der Staaten (Dissertation, University of G6ttingen, fonhcoming). Address by President Reagan before the American Bar Association, Washington D.C., 8 July 1985, Current Policy No. 721 (United States Department of State). Cheney, Statement before the House Armed Services Committee, Washington, D.C., 19 March 1991,7 et seq.
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Korea (since 1988), Sudan (since 1993) and Syria (since 1979).3 Since the establishment of this list only one country (South Yemen, following the reunification with the North in 1990) has been deleted from it." Hence, the content of this list has remained virtually unaltered after the addition of Sudan in 1993. 5 The DoS, however, engages in annual evaluations as to whether listed countries can be deleted or new ones should be added.f Government statements leave little room for doubt as regards the clear distinction made between "the community of democracies" and "rogue states" as a grouping of countries'! This dichotomy has been expanded by Secretary of State, Albright during her incumbency. By adding "emerging democracies" and "international good citizens" Secretary Albright devised a classification which subsumed all countries of the world into the four categories of "[ijnternational good citizens,
3
4
5
6
7
Iran: 15 C.ER. 742.8 and 746.7, 66 Fed.R. 36683, 12 July 2001; Syria: 15 C.ER. § 742.9, 66 Fed.R. 36682, 12 July 2001; Sudan: 15 C.ER. 742.10,66 Fed.R. 36682, 12 July 2001; North Korea: 15 C.E R. 742.19, 66 Fed.R. 36682, 12 July 2001; Cuba: 15 C .ER. 7462, 66 Fed.R. 36682, 12 July 2001; Iraq: 15 C.ER. 746.3, 66 Fed.R. 36682, 12 July 2001; Libya: 15 C.ER. 746.4, 61 Fed.R. 64284,4 December 1996,62 Fed.R. 25469, 9 May 1997,63 Fed.R. 42229, 7 August 1998, 64 Fed .R. 49383, 13 September 1999, 67 Fed.R. 51033,6 August.2002, d. also 31 C.ER. 596.310,1 July 2001. E. Day, Economic Sanctions imposed by the United States against specific Countries: 1979 through 1992, Congressional Research Service Report to Congress, Order No. 92-631 Fed .R., 1 October 1992. According to press releases the DoS has been investigating the track records of North Korea and Sudan, in order to determine if they could be excluded from the list. But no concrete steps of this kind have been taken so far. See Washington Post, 1 May 2001. Cf. Patterns of Global Terrorism, Overview of State-Sponsored Terrorism, 2000, , accessed on 9 September 2002: "State Sponsorship has decreased over the past several decades. As it decreases, it becomes increasingly important for all countries to adopt a 'zero tolerance' for terrorist activity within their borders [...]. The United States continued actively re-searching and gathering intelligence on other states that will be considered for designation as state sponsors". Press briefing with Spokesperson Rubin, 25 April 2000 on the adoption of a Resolution by the UN Commission on Human Rights which in his words: "[ ...] also confirms that democracy is not a regional value vested in any particular social, cultural, or religious tradition, but rather a universal value rooted in the rich and diverse nature of the community of democracies" .
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emerging democracies, "rogue states" and countries where a state hardly exists, such as Somalia and Sierra Leone".8 This process of differentiation introduced a hierarchical order between groups of states at the same time. This becomes visible through Secretary Albright's explanation that: "[tjhe largest group are those that understand that it is important to have some kind of rules of the game within the international system; that understand the value of working together. That is the largest group. We may not agree with the governments in all those groups - in that group. But generally, there is an agreement about the importance of abiding by international systems. The second group was basically the countries transitioning to democracy that wanted very much to be a part of the first group but did not yet have all the institutional structures to do that. The third group of countries was the "rogue states", who not only did not want to be a part of the first group, but deliberately were doing everything they could to undermine it. The fourth group was the so-called failed states that for some reason or another were basically eating their own seed grain" .9 The existence of "rogue states" - and their repeatedly underscored threat potential - also served as a rationale for the United States Government to follow up on its announcement and cancel the ABM-Treaty with Russia on 13 December 2001. The official wording of the announcement cited "extraordinary circumstances.t"? a phrase which implied that immediately after 11 September 2001 "rogue states" became the prime target of counter-terrorism strategies.'! One more exhibit in 8 9
10
11
G. Wright , Washington Post, 19June 2000. Secretary of State, Albright, International Economic Leadership: Keeping America on the Right Track for the 21st Century, 18 September 1997, 9. ABM Treaty Fact Sheet, Statement by the Press Secretary, Announcement of Withdrawal from the ABM Treaty on 13 December 2001, Archiv der Gegenwart 71 (2001),45360. Press briefing by Spokesperson Fleischer, 26 November 2001, , "Because there are many nations that hold weapons of mass destruction. The President was referring to those nations that are listed on the State Department's list as nations that sponsor terrorism, that would use them, which I think is something that should be self-evident to everybody in the room. What, if the American President would not speak sternly about any nation that is listed as a nation that sponsors terrorism from using weapons of mass destruction? Does anybody think that any nation that is a terrorist sponsor that would use
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support of this claim was President Bush's State of the Union Address on 29 January 2002, when "terror states" was a repeatedly used denotation, and three "rogue states" were eventually merged into an "axis of evil". President Bush then delineated the wide notion of counterterrorism, which would include state sponsors, as: "[i]f we stop now - leaving terror camps intact and terror states unchecked - our sense of security would be false and temporary" .12 This is due to the fact that such countries pose a threat, which the President summed up in the following manner: "Our second goal is to prevent regimes that sponsor terror from threatening America or our friends and allies with weapons of mass destruction. Some of these regimes have been pretty quiet since September 11tho [...] States like these constitute an axis of evil, arming to threaten the peace of the world". The different interpretations of the reference "rogue states" was to be defined explicitly and in detail on 17 September 2002, upon the publicizing of the United States Government's new National Security Strategy. The fifth section of this document lists the common features of "rogue states",'? whereas preceding and subsequent items set forth a recalibration of the legal system to counter the particular threat "rogue states" pose - in addition to justifying pre-emptive measures of defence against these countries' synergizing of WMD and support for international terrorism.
12
13
weapons of mass destruction would not be held accountable? Of course th ey will be. That's an existing American policy, always has been, and under President Bush it always will be" . The President's State of the Union Address, 29 January 2002, . According to it "rogue states" display the following features. They: «: brutalize their own people and squander their national resources for the personal gain of the rulers , - display no regard for international law, threaten their neighbours, and callously violate international treaties to wh ich they are party, - are determined to acquire weapons of mass destruction along with other advanced military technology, to be used as threats offensively to achieve the aggressive designs of these regimes, - sponsor terrorism around the globe, and - reject basic human values and hate the United States and everything for wh ich it stands ", National Strategy for Homeland Security, 14.
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Hence, the question to what extent the stigmatization of certain states in international law, employed to complement their political isolation, becomes increasingly important. Especially since such classifications are utilized in legal contexts to expand binding provisions in the light of unprecedented danger. This article will attempt to outline aspects of the answer to this question , by focusing on the impact of a unilaterally introduced stigmatization of states upon an international community, based on the sovereign equality of states as one of its founding principles. One of the issues linked to this subject-matter consists of the fact that the United States does succeed in creating a dichotomy of "rogue states" and the international community. Reactions of the latter exclude "rogue states" from the "social community" of states. At the same time, it becomes obvious, however, that such an exclusion does encounter limitations at the legal level, in spite of the fact that any legal order is usually derived at the social level through a conversion of values and principles. Thus the exclusion of "rogue states" from the international community becomes an impossibility, if the latter defines itself as a legal community. This article, furthermore, shows that exclusion at the social level will affect the legal order of the community if the consensus on its principles is being challenged, i.e. if the social community returns to a previous stage of development. The argumentation tasked with procuring an answer to the abovementioned question and its implications consists of three sections. The first centres on structural distinctions between an international society and an international community. It hence deals with the question which principles are recognized by states as community-forging principles? It also delves into the extent to which stigmatization undermines these principles. The second section indicates that the derogation of states represents a form of hegemony, which is rooted in the legal traditions of the domestic law of another state. These are then elevated to a rationale at the level of international law. The final section feeds on the thought that hegemony has the tendency to petrify power disparities, while focusing on the effects of stigmatizing designations of sovereign states, as well as the use of such formulations as an instrument of hegemony within an international community.
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II. Exclusion, Inclusion and the Emergence of Community 1. Society and Community: Different Conceptions of World Order Every legal order is based on a social order, i.e. on the values and interests of those acting within the legal order.!" Within this framework the legal and social orders are exercising influence over each other at the same time. On the one hand common values and interests are conducive to codification and they determine the application of laws; on the other hand, laws provide patterns for action and they determine the procedure for reaching a consensus on common values and interests within the social order. IS The conduct of states towards each other is likewise dependent on the scope of their common values consensus and on which interests they choose to pursue jointly. One prominent historical example for this is the multitude of Christian states, which were dedicated to a standardized norm application within the value community of the res publica christiana, while societies outside this community were not recognized as subjects in an international legal order. Simultaneously to this, the legal provisions regulating relations between civilized states were not applicable to countries outside the community of civilized states. Hence the civilizational criterion not only embodied a "logic of exclusion-inclusion,"16 it also symbolized a value consensus conducive to the demarcation of boundaries between social orders . This division consequently defined the purview of the law of civilized states. Beyond the borders of a community incorporated through a civilizing process, which fathered a value consensus, the application of the laws designed for it was impossible . Thus the con vergence on common material values determines the social quintessence, which in turn provides a foundation for the development of a legal order. The scope of this value canon is decisive for the possible establishment of states as a community. One indicator for such a process, however, lies in the exclusion of countries which do not share 14
N . Luhman, Das Recht der Gesellschaft, 1993, 550; W. Friedman, The Changing Structure of International Law, 1964, 3. IS N. Luhman, Die Politik der Gesellschaft, 2000, 372 et seq. 16 M. Koskenniemi, The Gentle Civiliser of Nation s, 1989, 127.
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the common values. The notions "international community" and "international society" still embody the basic explanatory models for functional prerequisites, w hich have to be met by an assembly of states in order to incorporate an international order. Both of them have been based on the dichotomy of the sociologist Ferdinand Tennies between community and society.'? According to Tiinnies, the notion of community is characterized by a certain genuine homogeneity of its members and their interests." The key feature of distinction with respect to the term society, nevertheless , lies in the fact that a community is marked by an intrinsic common denominator, whereas an society is at best capable of producing an overlapping of pragmatic preferences.'? Hence there is no genuine common ground in an association - there merely is a multitude of individual interests, which do not have an impact on each other.F? As a consequence of this, the co-existence of states generates the functional prerequisites for an international socicty.-! The interior state boundaries are very prominent within such associations, and the exclusion-inclusion function is initi ally executed by national social i.e. constitu tional orders.P Pressures for an optimum structure and performance gain ground throughout the pursuit of national interests . All this , however, does not preclude several states from defining themselves as a super-ordinate unit th rough value convergence.P This yields a particular form of community in an international society, as the development of legal provisions may take a different turn. But at the same time, this particular kind of organizational form will produce po ssibilities for the exclusion of states. In contrast to this, an international community is characterized by common values as its foundation. It is not merely dom inated by national interests, but acts on the common interests of all states - even if these can only be determined through confrontational bargaining, i.e. through the balancing of all national interests. What is decisive is the fact that each consensus reached on material values alters the social substratum, which underlies the legal order. This raises the question if -
17
18 19 20 21 22 23
F. Tennies, Gemeinschaft und Gesellschaft, 1935, 1st edition 1887, 14; M. Weber, Wirtschaft und Gesellschaft , 1980,20 et seq. (234 et seq). Tennies, see abov e, 14. Tennies, see not e 17,45. Tonnies, see not e 17,40 et seq. Fri edman, see not e 14, 60 et seq. U. Di Fabio, Der Verfassungsstaat in der Weltgesellschaft, 2001,1 8. Friedman, see note 14, 62.
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upon crossing a certain threshold of integration and concordant social order development - it is still possible to subsume this legal order under the reference "international society". 24 It would seem plausible to presume, after all, that the consensus-forging process creates a value conversion which intensifies social cohesion up to a level of development corresponding exclusively to the "international community" model. This, however, would mean that (still) feasible processes, which are idiosyncratic traits of the international society, would no longer be applicable without threatening to undermine the value consensus of a community. Such instances would occur at least upon applying international-association processes to the detriment of a material value of the international community that has been recognized as a basic principle by the units of the latter. Apart from the agreement on the purview of legal provisions , the stigmatization of states has always been linked to a division of social orders throughout each epoch of history. This exclusive function of a community, which defined itself as a community based on values, reached a particular degree of prominence in the Medieval Age, when the Christian system of international law defined itself as an "in-group" with respect to non-Christian states. Such a notion of Christianitybased community subsequently permeated the civilization criterion. This process of clustering common traits, in order to define the compo sition of the civilized world, created the prerequisites for excluding certain states which were consequently awarded the epithet "noncivilized" . This exclusion of other countries had to be preceded by a certain amount of integration, as only a convergence on value systems attributes the necessary weight to common denominators, thus elevating them to criteria of exclusion.P It is therefore hardly surprising that each instance of stigmatization revolves around the defining feature of each "in-group" - regardless of the type of existing legal order.
24
25
A similar view is upheld by A.L. Paulus, Die internationale Gemeinschaft im Volkerrecht, 2001, 426 et seq ., who arrives at the conclusion that statecommunity structures have emerged in some areas of legislation, while state-association structures still persist in others. M. Koskenniemi, From Apology to Utopia - the Structure of Legal Argument, 1989,466 et seq.; B. Simma, From Bilateralism to Community Interest in International Law, RdC 250 (1994), 217 et seq . (248 et seq.).
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The categorization of social orders entails a stigmatization of states similar to their designation as "rogue states" or "state sponsors of terrorism," along the same operative principles. Countries branded with such references (ascribed traits) cannot belong to the community of (all remaining) states. The latter cannot, after all, include countries threatening its existence. This assertion is based on the fact that the co-operation within the war against international terrorism has become a principal component of the international community's ideological core. Against this backdrop, the offence of countries classified as "state sponsors of terrorism" by the United States cannot be seen as anything but fatal, since these states are accused of contributing substantially to the furthering of terrorism. Such a threat analysis justifies the exclusive function of the above-mentioned classification in the eyes of the existing international community. In addition to this, states on the terrorism-sponsor list are also segregated on the grounds of other values shared by the international community, since: "[e]mpowered by the reality that a world of democracy, is a world in which terrorism cannot thrive, the United States war to eradicate the cancer of terrorism, quickly became a part of a larger struggle for democratic principles, universal freedoms and the demands of human dignity".26 The United States' differentiation between "rogue states" on the one hand and the "community of democracies" on the other entails the following assertions." First, the United States upholds the view that there is such a thing as an international community, and second - there are states which are not part of the latter. "Rogue states" have yet to undergo a transformation, they have to meet the accession criteria, before being admitted. This process of conversion is complicated by their lack of progress so far, summed up charges of curtailing rights of political
in
26
27
"A Review of the State Department's Human Rights reports from the victims' Perspective", Hearing before the Foreign Relations Committee, Ser. No. 107-73,6 March 2002, 6, or also in the National Strategy for Homeland Security, 17 September 2002, 14; Wolfowitz, Speech delivered at the XXXVIII Munich Security Policy Conference, February 2002, . "It is not an accident that every state that sponsors terrorism also terrorizes its own people". National Strategy for Homeland Security, of 17 September 2002, 14, Secretary of State, Albright, see note 9, 9.
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participation and massive human rights violations, in order to underpin totalitarian leadership mechanisms.P On the basis of all this, it can be said that (regardless of the legal consequences entailed by the process of stigmatization) the designation of countries as "rogue states" and "state sponsors of terrorism" accomplishes the explicit dichotomization of social orders in one step. Such processes of exclusion are nevertheless subject to legal constraints, which are binding for the international community, should it consider itself a legal community as well.
2. The International Society as a Legal Community The notion of "international community" is marked by a "jet set" status: it leaves room for a wealth of different interpretations and travels across academic disciplines . The exclusion of certain states from the international community can only have legal consequences if "rogue states" were part of this community under normal circumstances. Hence it can be said that the exclusion of "rogue states" from the international community aims at a change of their status under (international) law, i.e. it is dominated by the intention of according them the status of pariah-states. The references "international community," communaute intemationale, and intemationale Staatengemeinschaft are used synonymously for states capable of acting together, and willing to do so in situations of crisis. In political speeches the formulation is frequently employed in connection with the United Nations, as in Joschka Fischer's speech given for the Council of Foreign Relations, when he advocated the: "[...] strengthening of multilateralism, the capacities for action of the UN and the codification of the international community"29 as desirable aims. This could imply that the United Nations constitute the "international community". In contrast to this usage there are instances which question such an absolute overlap. During the air campaign against Yugoslavia in Kosovo political leaders spoke of a military intervention by the "international community" - in spite of the fact that a mandate (according to Chapter VII of the UN Charter) had not 28
29
National Strategy for Homeland Security, 17 September 2002,14. Speech given by the German Minister of Foreign Affairs Fischer before the Council of Foreign Relations in New York,S November 1999.
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been negotiated within the United Nations Security Council, due to the resistance of Russia, the People's Republic of China and France. An identification of the states comprising the "international community" could, however, still be possible. This is implied by the inclusion of the reference into positive legal acts, as well as by the thesis on the constitutionalization of the international community, which has emerged within international law literature.'? In 1949 the IC] utilized the formulation "international community" to establish the objective legal personality of the UN.3! In subsequent years this formulation was at times embellished by the phrase "as a whole" in rulings of the IC]. In case of the siege and hostage-taking at the US Embassy in Teheran the Court's documents contain the more general reference "international community't.V But the records of the Barcelona Traction case speak of duties erga omnes towards the "international community as a whole," which the IC] had spelled out for all states during this trial.33
3D
3!
32 33
J.A. Frowein, "Reactions by not Directly Affected States to Breaches of Public International Law", RdC 248 (1994), 344 (350 et seq.); B. Fassbender, "The United Nations Charter as Constitution of the International Community", Colum . j. Transnat'l L. 36 (1997/98), 529 et seq.; C. Tomuschat, "Die internationale Gemeinschaft", AVR 33 (1995), 1 et seq. For a survey of notions of the international community and their origins in sociology and ethics, Paulus, see note 24. Reparations for Injuries Suffered in the Service of the United Nations, IC] Reports 1949, 174 et seq. (185). In its Opinion on the GenocideConvention the IC] recognizes "the principles underlying the Convention [as] principles which are recognized by civilized nations as binding on States, even without any conventional obligation", Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, IC] Reports 1951, 15 et seq. (23). Case Concerning United States Diplomatic and Consular Staff in Teheran, IC] Reports 1980,3 et seq. (42 et seq., para. 92). This is supported by the IC] via one of its 'obiter dicta', Barcelona Traction, Light and Power Company, Limited, IC] Reports 1970,3 et seq. (32, para. 32), the IC] also addresses 'erga omnes' duties without an explicit linkage to the international community in the Case Concerning East Timor (Portugal v. Australia), IC] Reports 1995,90 et seq. (102, para.28), and in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, IC] Reports 1996,595 et seq., (616, para. 33).
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Such formulations remind us of article 53 of the Vienna Convention on the Law of Treaties (henceforward: VCLT), according to which a legal provision enjoying the status of ius cogens represents a norm accepted by the "international community as a whole" .34 Hence, there is a possibility that the reference "international community" encompasses most (but not all) countries, whereas the formulation "the international community as a whole" covers all countries. The United Nations employs both references. The more elaborate notion of the "international community as a whole" was used by the General Assembly for the first time in 1993. Up to this time only the "international community" had been common in United Nations parlance.35 The Chairperson of the UN Security Council referred to the "international community as a whole" for the first time in 1994. 36 Two years later this reference emerged for the first time in an appeal to states for cooperation in the fight against terrorism, in shape of a UN Security Council Resolution.'? Ever since the United Nations regularly resorts
34 Vienna Convention on the Law of Treaties, UNTS Vol. 1155 No. 18232. 35 A/RES/48/23 of 24 November 1993: "[s]tresses the importance for the
36
37
zone of peace and cooperation of the South Atlantic of the results of the United Nations Conference on Environment and Development, particularly the principles of the Rio Declaration on Environment and Development [...] in the conviction that their implementation will strengthen the basis for cooperation within the zone and for the benefit of the international community as a whole"; A/RES/48/139 of 20 December 1994: "Deeply preoccupied by the increasingly heavy burden being imposed, particularly upon developing countries with limited resources of their own and upon the international community as a whole, by these sudden mass exodus and displacements of population", also in A/RES/48/258 of 23 June 1994, A/RES/49/26 of 2 December 1994, A/RES/49/137 of 19 December 1995, A/RES/S-2014 of 10June 1998. Doc. S/PRST/1994/40 of 29 July 1994: "the members of the Security Council demand an immediate end to all such terrorist attacks. They stress the need to strengthen international cooperation in order to take full and effective measures to prevent, combat and eliminate all forms of terrorism, which affect the "international community as a whole", also subsequently in Doc. S/PRST/1996/1 of 5 January 1996. S/RES/1044 (1996) of 31 January 1996: "Stressing the imperative need to strengthen international cooperation between States in order to make and adopt practical and effective measures to prevent, combat and eliminate all forms of terrorism that affect the international community as a whole", also see S/RES/1045 (1996) of 8 February 1996; S/RES/1055 (1996) of 8 May 1996; S/RES/1064 (1996) of 11 July 1996.
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to the phrase "international community as a whole" if it explicitly encourages all states to take an action, or if it underscores that every country is affected by an issue. In the latter case the relevance of a problem is amplified by appealing to the "communal ties" uniting all states. What is not intended by this usage is the implication that there has been a quantitative increase in states addressed to act.38
The ILC of the United Nations also utilizes both references. Following the first deliberation session of the ILC's provisions on state responsibility in 1996, it was agreed that according to article 19 (2) the distinction between state crimes and state delicts was to be rationalized in the following manner: "An international wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole constitutes an international crime".39 This dichotomy was subsequently dropped during the adoption of a significantly revised Draft on the 52nd ILC Conference in the summer of 2000. Hence article 40 (1) stipulates massive and substantial violations of international legal obligations without resorting to the "international community'T'? What has been preserved through article 42 (b), however, is the opportunity for one state to appeal to the liability of
38
39
40
S/RES/1189 (1998) of 13 August 1998: "Also stressing the need to strengthen international cooperation between States in order to adopt practical and effective measures to prevent, combat, and eliminate all forms of terrorism affecting the international community as a whole"; also see S/RES/1087 (1996) of 11 December 1996, S/RES/I075 (1996) of 11 October 1996, S/RES/1064 (1996) of 11 July 1996, A/RES/54/109 of 9 December 1999, A/RES/56/83 of 12 December 2001, Counter-terrorism is therefore always "essential for the maintenance of international peace and security", S/RES/1214 (1998) of 8 December 1998, S/RES/1269 (1999) of 19 October 1999. Article 19 (2) of the draft, ILC Yearbook 1996 Il/2, 60; M. Spinedi, "International Crimes of State. The Legislative History", in: H .H. Weiler! A. Cassese/ M. Spinedi, International Crimes of States, 1989, 7 et seq. (10 et seq. and 339 et seq.). ILC Report 2000, J. Crawford, Third Report on State Responsibility, Doc. A/CNA/507 (2000), 29 et seq.; Doc. A/CNA/507/AddA (2000), J. Crawford, The International Law Commission's Articles on State Responsibility, 2002,249 et seq.
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another state, should the latter have violated a norm whose upholding is owed to the "international community as a whole". The above-mentioned legal contexts illustrate that the international community is called upon to justify duties of states (or their qualifications), which have to be performed in order to respect and maintain the international community of states. This may not clarify which states comprise the international community, but the rulings of the IC] indicate that the exclusion of any country from the community has not been intended. This particularly applies when elaborating the responsibilities of states, as is shown by the IC]'s statement in connection to the hostage-taking at the US Embassy in Teheran. The Ie] felt compelled to: "[...] recall [...] yet again the extreme importance of the principles of law which it is called upon to apply in the present case, the Court considers it to be its duty to draw the attention of the entire international community, of which Iran itself has been a member since time immemorial [...]".41 This illustrates that the IC] held Iran accountable for a violation of international law which applies to all members of the international community. In addition to this, the IC] did not release Iran from this community as a result of the transgression. The Court appeared to lend particular weight to its charges against Iran based on the fact that - in spite of being a member of the international community - it had violated international law. All the arguments presented so far indicate that there is no international community in contemporary international law which can be restricted to some states. The notion of the international community consequently encompasses all states. Analyses of the literature focusing on the constitutionalization of the international community set forth the question whether the countries referred to in the just mentioned legal texts are those comprising this constitutionalized community or whether the latter represents a smaller but closer community of states. Verdross defined norms stipulating the laws of the international system (as well as their formulation, implementation and interpretation) as the constitution of the internationallegal community, as early as 1926.42 ]ellinek upheld the view that 41 42
Case Concerning United States Diplomatic and Consular Staff in Teheran, ICJ Reports 1980,3 et seq. (42 et seq., para. 92). A. Verdross, Die Verfassung der Volkerrechtsgemeinschaft, 1926.
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the functional load of each state established it as a permanent member of an international communiry.P According to Tomuschat article 53 VCLT equates the international community with all states. In his opinion the inclusion of all states into the international community is an unwavering axiom of the current international order.t" This has led to the acceptance of the notion of "international community" beyond classical international law - it is being ascribed as constitutive function with respect to "cornmunitarian international law," which made the traditional structures of international law (shaped through the sovereignty, autonomy and equality of states) obsolete." The references "international society" or Staatengesellschaft remain in usage when the concept of community is subordinated to an explicitly realistic view of international relations. Depending on the perceived potential for the development of a community, the formulation "international society" is either used as a denotation for the achieved final stage, or as a transitional system leading towards an "international communiry'v" At time the latter also encompasses international or ganizations, or even international interest groups and associations." These instances, however, remain at the periphery of legal writings on the international community. Most texts focus on (and personify) states acting within the latter,48 over individuals affected by such actions (in the sense of a world community).
43
44 45 46
47
48
G. Jellinek, Die Lehre von den Staatenverbindungen, reprinted 1996,93 et seq. (95): "Therefore no civilised state dares, even if he has transgressed a norm of international law a hundred times, to question the validity of the norm itself". Tomuschat, see note 30,1,4 and 7. M. Nettesheim, "Das komrnunitare Volkerrecht", [uristen Zeuung 57 (2002),569 et seq. G. Schwarzenberger as an illustrative example in: Power Politics, 1951,148, 254: "In any international society, inter states relations are almost bound to be conducted initially on a society footing rath er than on a community, for each of the independent groups has less in common with any of the others [ ...]". As described by C. Tomuschat, "International Law: Ensuring the Survival of Mankind on the Eve of a New Century", RdC 241 (1993), 195 et seq. (228 et seq.); S. Hobe for the response of international law to transnational threats by including private actors, "Die Zukunft des Volkerrechts im Zeitalter der Globalisierung", AVR 37 (1999), 254 et seq. (272,279). Paulus, see note 24, 228 et seq.
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With time many experts have also come to consider the UN Charter as the constitution of the international community." In contrast to this, the New Haven School views the Charter as the expression of a single constitutive decision. This school defines the drafting of a constitution as a process in which law and all social phenomena and processes influence each other. 50 The ultimate clarification of this issue remains of secondary importance for the question whether the international community is being personified. What is decisive is the fact that 190 states ratified treaties committing them to uphold the provisions of the UN Charter. Consequently, it can be concluded that there is a community of states. It is characterized by their obligation to adhere to the same treaty, i.e. the same basic provisions contained in the latter. If one were inclined to view the UN Charter as a "special" or "constitution-like" document, the rationale could be constructed as follows: by adopting this international legal treaty to establish the United Nations, the Contracting Parties have acted in the manner of a pouvoir constituant and developed a specific legal framework. This would establish them as the principal actors within this community, and the legal specification of the community would have to remain based on the UN Charter. Yet for policy its additional qualification as constitution does not increase its legal impact, as states are bound by the Charter as it is an international treaty. To summarize within United Nations parlance and legal texts the reference "international community" applies to the Contracting Parties to the UN Charter - those 191 states representing the United Nations. The usage of the formulations "international community" and "international community as a whole" confirms this finding, as variance merely depends on the extent to which the community ties among states is to be stressed. At no time does this usage point towards different quantitative scopes, i.e, the exclusion of some states. What is, moreover, emphasized is the sense of community dominating these lexical shells. 51
49
50 51
J.A. Frowein, "Das Problem des grenziiberschreitenden lnformationsflusses und des 'domaine reserve'", Reports of the DGVR 39 (1999), 427 et seq.,Tomuschat, seenote 30, 12 et seq., Paulus,see note 24, 293-296. M. Me Dougal! W.M. Reisman, International Law Essays: A Supplement to International Law in Contemporary Perspective, 1981, 191 et seq. (195). Tonnies based his sociological dichotomy between association and community on the presenceand strength of ties: "the theory of association con-
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In particular the ICl's legal texts concerning the hostage-taking of United States diplomatic personnel in Iran stress the inclu sion of all states into the latter. This function increases in relevance upon the stipulation of stat es' responsibilit ies. In cases where bodies of the United Nations appeal to the entire international community, it may be that this organization hopes to activate certain countries with the capacity to provide a solution. This does not, however, absolve other states from action, as such "fitted" appeals would violate the basic principles and aims of the UN Charter.
3. The Sovereign Equality of States as a Community Principle The process of stigmatization is particularly challenging to the existence of an international community, as it possibly not only limits the applicability of a legal principle but also excludes th e branded states. In addit ion to this, it questions the validity of this principle for the international community itself. The designation of count ries as "rogue states" or "state sponsors of terrorism" devaluates their standing. At the same time , this process tr iggers several legal mechanisms within United States domestic law, which significantl y alter the legal status of designated states. Apart from numerous provisions imposing economic means of coercion, these legal mechanisms include the annulment of state immunit y. According to provisions of the Foreign Sovereign Immunities Act (henceforward: FSIA) in 1996, states listed as sponsors of terrorism are not accorded protection from civil compensation claims in the United States. In contrast to this, the international community has conv erged on the principle of the sovereign equality of states. Thus the stigmatization of states, and the substantial alteration of their legal status through domestic laws, may be conducive to the violation of th is principle. The
structs a circle of human beings who - as in a community - live side by side. These human beings, however, are not tied to each other as humans. Hence is a community people tied to each other in spite of all divisions, whereas in an association they remain divided in spite of all proximity", Tonnies, see note 17, § 19, 39, in: § 7. Tennies points to the "from status to contract" formula of H.S. Maine, in his Ancient Law, 1905, 12 et seq., (170); D. Vagts focuses on the misuse of this terminology during the national socialist era, "International Law in the Third Reich", A]IL 84 (1990), 661 et seq. (687).
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sovereign equality of states embodies one of the quintessential principles of international law, as: "[ejach nation is a sovereign person, equal to others in moral dignity, and having, whether small or great, weak or powerful, an equal claim to respect for its rights, an equal obligation in the performance of its duties".52
It is therefore hardly surprising that the principles of sovereignty and equality are also enshrined in the UN Charter, in the shape of Article 2 (1), which sets out the sovereign equality of its rnembers.P This provision is usually analyzed by extracting its two constitutive principles: sovereignty and equality" Analyses also emphasize that the equality of states is derived from their sovereignty, thus establishing equality as a synonym for sovereignty. 55 The formulations contained in Article 2 (1) of the UN Charter, however, indicate that states ascribe a particular normative relevance to equality. Consequently this principle stands fast as a second "pillar" next to sovereignty, rather than acting as a foil to the latter.56 The domain of sovereignty is equal to the extent to which one state may enact rules independently of other states.V The IC] summed up 52
53
54
55 56 57
Statement delivered by the French Representative Bourgouis to the Second Peace Conference at the Hague in 1907, on the relevance of this Conference for the sovereign-equality-of-states principle see M. Huber, Die Gleichheit der Staaten, in: Juristische Festgabe des Auslandes zu ]. Kohlers 60. Geburtstag, 1909, 88 et seq. (99 et seq .), and also, PCIJ Ser. A, No.1 (1923), 25, more precisely on this A. Cassese, International Law, 2001, 88. On the meaning of the Charter's principles A. Randelzhofer, "Ziele und Grundsatze der UN", in: R. Wolfrum, Handbuch Vereinte Nationen, 1991, 1151 et seq ., the difficulties intrinsic to such general principles are analyzed by K. Doehring, Volkerrecht, 1999, item 188, et seq., also K. Hail bronner, in: W. Graf Vitzthum, Volkerrecht, 2001, Chapter III No. 91 et seq. H..P. Anand, "Sovereign Equality of States in International Law", RdC 197 (1986), 9 et seq. (52), Cassese, see note 52, 88; Vitzthurn, in: id., see above, Chapter I No. 45 et seq. G. Dahm/ J. DelbriickJ R. Wolfrum, Volkerrecht, Band Ill, 1989,236. R.Y. Jennings/ A. Watts, Oppenheim's International Law, 1992, Vol. I, 8 (§ 2); H.]. Morgenthau, Politics Among Nations, 1985, 290 et seq . C. De Visscher: "La theorie de la souverainete relative explique Ie fait que les Etats individuels sont indus dans les relations qui necessairement imposes certaint limitations sur leur volonte d'etre autonornes", quoted by J.P. Cot/ A. Pellet, in: id. (eds), La Charte des Nations Unies, Art. 2 Para. 1,87; H . Dreier, "Souveranitat", in: Gorres Gesellschaft (cd.), Staatslexikon Vol.
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this self-sufficiency as the "[r]ight of every sovereign State to conduct its affairs without outside interference't.f The emphasizing of this subjective dimension of empowerment within the principle of sovereignty by the IC} substantiates that sovereignty is always the output of law created by stares.>? The participating states at the UN's Founding Conference in San Francisco hence based their decision to establish an organization on the sovereign equality of its members on a particular concept of sovereignty.60 The debates on the possibility of states to end their United Nations membership revealed that the Contracting Parties attributed greater importance to inter-state cooperation for the securing of world peace, than to the creation of "opting-out" clauses, which would enable a state to renege on its obligations, set out in the UN Charter.s!
IV, 1988,Note 91, Columns 1203, 1208;D. Held, "Three Models of Sovereignty. Law of States. Law of Peoples", Legal Theory 8 (2002),1 et seq. (17 et seq.). 58 Case Concerning Military and Paramilitary Activities in and against Nicaragua, IC] Reports 1986,14 et seq. 59 See also ECJ, Rs. 26/62, van Gend & Loos, Ruling of 5 February 1963, Collection 1963,1, as regards the rationale for the ruling: "All this indicates that the Community represents a new legal order within international law, who se member-states limit their own sovereign rights, although in a limited fashion", d . also the rationale of the PCJ in the Wimbledon Case, PCIJ Ser. A, No .1 (1923),25: "The Court declined to see, in the conclusion of any treaty by which a state undertakes to perform or refrain from performing a particular act, an abandonment of its sovereignty [...] the right of entering into international engagements is an attribute of state sovereignty". Island of Palmas Case, 2 RIAA (1928), 829; the Corfu Channel Case, ICJ Reports 1949,4 et seq. (25, 27), d. also the Dissenting Opinion Judge Winiarski, 49, 56 et seq. 60 UNCIO, Vol. I, 9th Plenary Sess. of 25 June 1945, Documents of the San Francisco Conference, 612, 614. 61 This a priori determined devaluation of opting-out mechanisms was considered an infringement on the principle of sovereignty by the Soviet Union. It aired the view that: "[...] it is wrong to condemn beforehand the grounds on which any state might find it necessary to exercise its right of withdrawal from the Organization. Such right is an expression of state sovereignty and should not be reviled, in advance, by the International Organization" UNCIO, see above, 619. The eventually adopted Report of Committee 1/2 therefore felt obliged to stress that: "The Committee deems the highest duty of the nations which will become Members is to continue their cooperation within the Organization for the preservation of interna-
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Hence, it becomes clear that the principle of sovereignty was to bestow upon states a relative capacity to assert positive rights (liberties), as an intrinsic component of statehood, within the framework of the United Nations. The sovereignty of a state is limited by the exercise of its own rights, as well as by those of other sovereign states. This demarcation is strengthened by the prohibition to use violence and to intervene respectively, in order to shield a level of state sovereignty from undesired exogenous actions by other states. Therefore: "[tjhe principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference, though examples of trespass against this principle are not infrequent, the Court considers that it is part and parcel of international law't.P This means that, on the one hand the sovereignty of states is subject to change, while on the other hand it is protected from change. What remains is a protected core of sovereignty, which may not be diminished through interference by another state.P Consequently, the principle of non-intervention is directly rooted in the provision of Article 2 (1) of the UN Charter. The above-mentioned protection granted to state sovereignty is further enhanced by the prohibition to use violence in inter-state relations, contained in Article 2 (4), and by the prohibition of intervention in Article 2 (7) of the UN Charter. The ban stipulated in Article 2 (4) includes both the threat and the use of violence by United Nations members in international rela-
62
63
tional peace and security. If, however, a Member because of exceptional circumstances feels constrained to withdraw, and leave the burden of maintaining international peace and security on the other Members, it is not the purpose of the Organization to compel that Member to continue its cooperation in the Organization", UNCIO, see above, 619, see the decision to adopt this proposal including the dissenting vote of the Soviet Union, 620. Case Concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 14 et seq. (106 et seq.); Jennings/ Watts, see note 56,428 (§128). IeJ Reports, see above, 118, 121, 259, and previously the Corfu Channel Case, ICJ Reports 1949,4 et seq., (34); G. Nolte, Eingreifen auf Einladung, 1999, 167; id., "On Art. 2", in: B. Simma (ed.), The Charter of the United Nations, 2002, item 7; j.A, Frowein, "Die Intervention im heutigen System der Weltverfassung ", in: E. von Jackel (ed.), 1st das Prinzip der Nichteinmischung uberbolti, 1996, 9 et seq. (20 et seq.); id., "D ie Verpflichtungen erga omnes im Volkerrecht und ihre Durchsetzung", in: Volkerrecht als Rechtsordnung, internationale Gerichtsbarkeit, Menschenrechte, 1983, 241 et seq. (255 et seq.).
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tions, in order to affect the territorial integrity or the political independence of another state. Article 2 (7) accords states protection from interference by the United Nations, with regard to issues falling und er the domestic jurisdiction of a state. 64 The principle of non-intervention among states can be traced back to customary law.65 Article 2 (4) of the UN Charter shields state sovereignty from a qualified form of intervention. Beneath the threshold of threatening or employing military coercion any prohibition of unacceptable interference can only be derived from the general principle of non-inrervention.w In this sense a "maximalistic" concept of sovereignty protection has to be based on the prohibition of inter-state intervention. Only once the use of violence has been threatened, this shield becomes strengthened by the prohibition of violence in conducting international relations. a. Intervention via Stigmatization? The stigmatization of states could violate the sovereignty of countries, since the formulations employed aim at the devaluation of the objects they refer to. This, however, would imply that the principle of sovereignty also consists of the right of a state to have its honour respected by other countries. Apart from this, their sovereignty could be infringed upon by the consequences attached to the process of stigmatization - whether this be the intended international isolation of "rogue states" or the legal mechanisms entailing economic sanctions for "state sponsors of terrorism", according to United States domestic laws. Eventually this rhetoric employed at the international level, coupled with tangible consequences set out by domestic law, could even more affect the political independence of the targeted states.
64
65
66
Nolte, in Simma, see above, 63; B.D. Ro, Governmental Illegitimacy in International Law, 1999, 160 et seq.; M. Herdegen, Volkerrecht, 2002, § 35 item 1 et seq. Case Concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 14 et seq. (106); the Corfu Channel Case, ICJ Reports 1949,4 et seq., (34 et seq.). Jennings/ Watts, see note 56,428 (§128); A. Verdross/ B. Simma, Unioerselles VOlkerrecht, 1984, 301 (§ 492).
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aa. A Right to Dignity?
The assertion that derogatory references harm the dignity of natural persons would hardly require a rationale. The same does not apply to pejorative terms aimed at states. In such instances the question whether depreciating references injure the dignity or honour of a state has to be dealt with. An injury of this sort can only be committed if notions like "dignity" and "honour" can be applied to states, i.e. if states can be "insulted". The entitlement to respect and a fair reputation has been inevitably linked to the teachings on the basic rights and duties of states in the earliest stages of international law. According to these teachings, states were accorded a "personality" and the thus derived rights and duties of states acquired a significance in their own rightP It is therefore logical that states should be granted the right to have their dignity upheld.P This attribution enjoyed a measure of support in international relations up to the beginnings of the nineteenth century. Hence the premeditated generating of a negative climate, via the diffusion of false or detrimental news about a nation in the press, was considered a substantial danger to inter-state peace. British courts provided the following assessment of this threat during a trial concerning the slandering of Russia by the British press: "When this paper went to Russia and held this great sovereign as being a tyrant and ridiculous over Europe, it might tend to his calling for satisfaction as for a national affront, if it is passed unreprobated by our government and in our courts of justice".69
67
L. Oppenheim/ H. Lauterpacht (eds.), International Law, 1955, Vol. I, 8th edition, 260 et seq. (§ 112), also Jennings/ Watts, see note 56, 379 (§115); P. Kunig, "Staatenehre im Volkerrecht",]ura 20 (1998),160 et seq. (161). 68 K.J. Partsch, Von der Wurde des Staates, 1967, 12 et seq.; also H . Lauterpacht, "Revolutionary Activities by Private Persons Against Foreign States", A]IL 22 (1928), 105 et seq. (106), for a critical viewpoint see Oppenheim, see note 67, 282 (§ 120). 69 King v. Vint, State Trials (edited by T. B. Howell), 27 (1799), 627, 641, the trial had been caused by the following press statement: "The emperor of Russia is rendering himself obnoxious to his subjects by various acts of tyranny, and ridiculous in the eyes of Europe by his inconsistency, he has now passed an edict prohibiting the exportation of timber, deals etc.", quoted by E. Dickinson, "The Defamation of Foreign Governments", AjIL 22 (1928), 840 et seq. (842).
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It was thus concluded that the verbal abuse of states could disrupt peaceful relations between states, since: "[a]ny publication which tends to disgrace, revile, and defame per sons of considerable situations of power and dignity in foreign countries, may be taken to be, and treated as a libel, and particularly where it has a tendency to interrupt the amity and peace between the two countries'V?
The potential for inter-state wars as a result of affronting foreign countries was considered real and unwanted. Hence: "[e]very publication is intrinsically illegal, which tends to produce any public inconvenience or calamity. Under this division, those rank the first in respect of the magnitude of their results, which tend to interrupt the good understanding which prevails between this country and others, by malicious reflections upon those who are possessed of high rank and influence in foreign states. Since the natural tendency of these is to involve the government in a foreign war, their authors have, in several instances, been punished as offenders at Common Law".?! According to these assessments, states came to be considered as targets of slander in the late nineteenth century. This opinion was upheld in most legal analyses well into the twentieth century? Following World War I various proposals emerged to oblige states to punish the slander of foreign states or peoples in the press ." Several states were already penalizing the slandering of their own and foreign governments at that
70
71 72
73
King v. Peltier, State Trials, see note 69, 28 (1803), 529, 619. This case had been investigated by the following statement: "O! Eternal disgrace of France, - Caesar, on the banks of the Rubicon, has against him in his quarrel, the Senate, Pompey, and Cato, and in the plains Pharsalia, if fortune is unequal, if you must yield to the destinies, Rome in this sad reverse at least remains to avenge you a poignard among the last Romans", quoted by T. Starkie, Law ofSlander and Libel, 1832 (reprinted 1997),351 et seq. Starkie, see above, 350. R. J. Alfaro, "The Rights and Duties of States", RdC 97 (1959), 91 et seq., 110; Jennings/ Watts, see note 56, 379 (§ 115); G. Gidel, "Droits et Devoin des Nations", RdC 10 (1925), 537 et seq., (542); P. Fiore, International Law Codified and its Legal Sanction, 1918, article 62. W Schiicking, Internationale Rechtsgarantien, Ausbau und Sicherung der zwischenstaatlichen Beziehungen, 1919, 127 et seq.
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point of time.74 Countries such as Denmark, Norway, Austria, and Switzerland considered the affronting of foreign governments a threat to peace and codified legal sanctions for such offences." Initiatives at the international level attempted to introduce punishment not just for journalistic slander targeting the head of a foreign state; they aimed at penalizing the slander of an entire people, as a collective actor. Such requests were founded on the belief that, in the era of democracy, the climate among an entire people was of greater relevance than the mood of a single statesman." In addition to this, the recognition that a national consciousness existed in every country entailed that an entire nation could become the target of verbal abuse. In an opinion for the InterParliamentarian Conference of Stockholm, the impact of negative press coverage of states was summed up as follows: "The most efficient instrument to maintain states in permanent combat readiness, and to actually involve them in armed conflict at any point in time, is the regular diffusion of false or derogatory news on the evil intentions of one state against another. In present
74
7S
76
An example in support is offered by Canada's Cr iminal Code , Revised Statutes of 1927, c. 36, § 135: "Every one is guilty of an indictable offence and liable to one year's imprisonment who , without lawful justification, publishes any libel tending to degrade, revile or expose to hatred and contempt in the estimation of the people of any foreign state, any prince or per son exercising sovereign authority over such state." Article 95 of the Norwegian Criminal Code (1901) sets forth in a similar manner that: "Persons endangering the peaceful relations with ano ther country, by reviling it in public or by inciting to hatred towards Norway and its Government, or by the unsubstantiated attributions of unjust or disgraceful action s to a foreign Government - or by acting as an accomplice to such deeds - shall be punished with a fine or a imprisonment of up to one year". Article 115 of the Austrian Criminal Code (1912) stipulates that: "Every one diffusing false or defamatory news in print, which endanger the relations of the monarchy with a foreign country, shall be sentenced to a time span from nine week to one year in prison, or he shall be fined with 40-50 000 Krona". See e.g, the provisions in article 84 of the Danish and article 95 of the N orwegian Criminal Code (1902). The Norwegian regulation was eventually annulled in 1909, due to significant application difficulties, see also article 115 of the Austrian Criminal Code (1912) and a Swiss Dir ective of 2 July 1915 (on 'Offentliche Beschimpfung eines fremden Volkes, eines Souverans oder einer fremden Regierung'). Cf. Starkie, see note 70, 350; F.L. Holt, Law of Libel, 1816, 86; Schiicking, see note 73, 130.
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times armed conflict may not - in spite of governmental support be initiated due to the will of one single man, one monarch, one minister or one bank. In order to attain the military force required for (the prospect of) victory, at least one section of the nation has to consider war a necessity, a duty. Should a genuine grievance be lacking with respect to a foreign state, offences are concocted in order to create the required mass psychosis known as war glorification. [...] This occurs quite frequently at the behest, or with the support, of a government lacking a just 'casus bel/imp With time the concepts of "state dignity" or "state honour" lost their relevance in international law analyses, analogous to the marginalization of the teachings on states' basic rights and duties . The UN Charter, moreover, does not contain any provisions on the dignity of states. This does not imply that the UN never addressed the issue of slander. In 1949 the UN General Assembly adopted a Convention on the International Transmission of News and the Right of Correction that inter alia focused on the representation of states through false press coverage in another country. This Convention, however, was never released for signature." although it was less concerned with the liability of states for false statements aired by structures on its territory; the Convention rather delved into the duties of states to ascertain the correction of false sraternents. Z? This treaty intended to provide states with a legal instrument, in cases where the press of other states had diffused false or ambiguous news which could impair the international relations, the national prestige or the dignity of the targeted state. In cases where any Contracting Party to the Convention, which harboured offenders, has neglected to fulfil its duty and oversee the correction of slanderous news, the UN Secretary-General would assume the obligation to oversee the publication of a correcued) version.P In 1952 the UN General Assembly adopted a part of these provisions as the Convention on the International Right of CorrectionP The introduction to the Convention provides the rationale that false statements about a foreign country can be used to influence inter-state relations. Thus the Convention's
77 78
79
80
81
Lammasch, capita selecta, No.5, September 1917, 31 et seq. A/RESI277 (III) C of 13May 1949, the text of the Convention is contained in the Annex. A/RESI277 (III) C of 13 May 1949, article IX , 2 and article X. A/RES/277 (III) C of 13 May 1949, article XI. A/RES/630 (VII) of 16 December 1952. The text of the Convention is contained in the Annex, effective as of 24 August 1962.
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aim is "to combat all propaganda which is either designed or likely to provoke or encourage any threat to the peace, breach of the peace, or act of aggression't.V An extremely wide concept of state dignit y had been upheld only by socialist states during preparatory discussions, despite implications of restricting the free flow of information that such a maximalistic notion entails.P International law analyses on the subject are able to derive a mutual obligation of states to uphold state dignity without, however, advocat ing legal consequences for a violation of this duty.84 Such a debate un derlines the critical qu estion in which sense the concept of dignity is applicable to states, if it is applicable to them at all.85 Few voices are heard in support of a " right" to dignity. Whenever the existence of such a right is presumed, legal provisions are being tasked to not only prevent slander by other states , but to establish the honourable conduct of states. 86 The debates on dealing with the slandering of an entire state - preceding the establishment of the League of Nations - nevertheless proved the relevance whi ch certain states attached to the ir rep resentation in public. These debates were not only led by those states focusing on the liability for World War I, which were accordingly most likely to become the targets of slander; the inviolability of states was considered a vital prerequisite for the preservation of peace. Th e volatility of states, created by uns anctioned pejorative statements, was hence viewed as a potential catalyst for confl ict, i.e. a weak link in the framework for maintaining peace. Similar discussions did not resurge until prior to the founding of the Un ited Nations. In its D eclaration on Principles of International Law concerning Friendly R elations and Co-operation am ong States in accordance w ith the Charter of the United Nations (henceforward: FriendlyRelations Declaration) the UN General Assembly set forth that
82
83
84
85
86
A/RES/630 (VII) of 16 D ecemb er 1952, Preamble of the Con vention. Cf. Frowein, see note 49, 29 and B. Simma, " Grenziib erschreitender InformationsfluB und do maine reserve der Staaten ", Reports of the DGVR 19 (1979), 39 et seq. (60). Cf. ]ennings/Watts, see not e 56, 379-381 (§ 115); M.N. Shaw, International Law , 1997, 137 et seq.; Verdross/ Simm a, see note 66, §§ 455, 1052, Part sch, see note 68, 14. A.A. D 'Amato, "there is no N o rm of Interventi on or Non-Interventi on in Internation al Law", Internati onal L egal Theory 7 (2001), 1 et seq. F. Berb er, Volkerrecht I, 1967,202.
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"[e jvery State has th e duty to respect the personality of other States " without mentioning th e co ncepts of " state honour" or "state dignity". 87 An explicit reference to "state dignity" is, however, contained in the Assembly's Declaration on the inadm issibility of interventions. It is important to stress in this context th at this reference is only indirectly linked to states, through the formulation that " [r]ecognition of the inherent dign ity [00'] of all members of the human famil y" 88 is to be accorded without discrimination. Proof for the recognition of the intangible volatility of states is found in the lLC's draft on state responsibility.''? Thus, in cases of violations the"offending state" is not only being tasked with restitution of the material - but also the "moral" loss.90 The draft diffe rentiates between three categories of remedies."! According to article 37 (1) the reestablishment of the status-quo ante (restitution) can be complemented by compensation for inflicted damages, or by the granting of satisfaction - if the former two procedures cannot make amends for the harm caused." Paragraph (2) of article 37 sp ecifies "satisfaction " as a subsidiary form of " reparatio n ", compared to rest itution and compensation. It can amount to "an acknowledgement of the bre ach, an exp ression of regret, a formal apology or another appropriate modality ". Hence, it is possible to "undo" the damage in certain cases, through a course of action procuring satisfaction to the targeted state, as this process contains the element of regr et over the injury inflicted. A commentary on the lLC Draft sums th is up as follows: "Material and moral damage resulting from an internationally w rongful act will normally be financially assessable and hence covered by th e rem ed y of compensation. Satisfaction, on the other hand, is the remedy for those inju ries, not finan cially assessable, which amount to an affront to the State. These injuries are fre-
87 88 89
90 91 92
A/RESI2625 (XXV) of 24 October 1970. A/RESI2131 (XX) of 21 December 1965. The Draft Articles on the Responsibility of States for Internationally Wrongful Acts were adopted by the ILC during its 53rd Sess. the text is available in: Report of the International Law Commission on the Work of its 53rd Sess., GAOR 56th Sess. Suppl. No. 10 Chapter IV.E.l, 43 et seq. Article 31 of the ILC-Draft. Article 34 of the ILC-Draft. Arts 35-37, the formulation "insofar" in article 37 (1) indicates at this third kind of remedy is only applied in cases where other compensation methods do not provide sufficient remedy, d . also Crawford, see note 40, 231.
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quently of a symbolic character, arising from the very fact of the breach of the obligation, irrespective of its material consequences for the State concerned't.v Satisfaction therefore embodies a remedy accessible to states if a violation of international law is linked to the affronting of another state, which has caused intangible damage apart from the assessable damage. Such provisions presume that states can be the targets of slander. They also require, however, the existence of an "internationally wrongful act" to entail remedies if the dignity of states is affected. The Draft provisions thus recognize that states can be abused when an "internationally wrongful act" has been committed. At the same time such an action is, however, presupposed for an affront. The provisions do not provide the basis for the conclusion that slandering constitutes an internationally wrongful act. They merely embody the foundation for an exhaustive neutralization of damages, which have been caused by a violation of international law (containing an affront to other states). A general codification and prohibition of injuries to the honour of states cannot be derived from them on a discrete basis. Endeavours to achieve a remedy to violations of international law in an exhaustive manner (including intangible damages) - and thus ensure the continuation of good international relations - may have guided the Ie] throughout its deliberations in the LaGrand-case. 94 In its findings on this matter the ICJ ascribed a remedial impact to the apology of the United States to Germany." The violation of inter93
94
95
Commentary on the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, art. 37, 264, the text is available at , accessed on 6 May 2003. On the impact of this ICJ ruling see United States-Department of State letter to United States-Court after the LaGrand Decision; Taft, United States-Department of State Legal Adviser, to Keating, Governor of Oklahoma on 11 July 2001, or also S.D. Murphy, "Contemporary Practice of the United States",A]IL 96 (2002), 461 et seq. (462). ICJ Judgement of 27 June 2001, para . 125 - LaGrand, ILM 40 (2001), 1069 et seq.: "In the present proceedings the United States has apologized to Germany for the breach of Article 36, paragraph 1, and Germany has not requested material reparation for this injury to itself and to the LaGrand brothers. [...J The Court considers in this respect that if the Un ited States, notwithstanding its commitment referred to in paragraph 124 above, should fail in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the indi-
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national law did not consist of the verbal abuse of Germany, but the failure of the United States to comply with article 36 (1) of the Vienna Convention on Consular Relations. This ruling outlines the possibility that a breach of international law can affront a state. But, as in the case of the ILC Draft, the IC] rulings emphasize that the affronting of a state presupposes a concrete wrongful act. Once again, it cannot be said that the verbal abuse of a state co nstitutes a transgression of international law. Th e fact th at an internationally wrongful act can affront a state does not impl y that the slandering of a stat e constitutes an internationally wrongful act. State practice does not suffice either to draw a line between the permitted criticizing of a foreign government and an inadmissible affront on the grounds of an explicit right or duty to respect the honour of states." The question whether the latter can be injured through derogato ry design ations seems to be based on the question (if and how) the distinction is to be made between the permitted critique of another state 's govern ment and the illegal imp acting of its political independence. H ence the categorization of states is ring -fenced by th e distinction between acceptable criticism and the inadmissible exertion of influence over the political independence of a state. But even within these bounds, the debate on state honour may provide indicators for the point at which pejorative formulations transcend the area of allowed critique. This is based on the fact that the slandering of stat es is registered as one element of a breach of international law.
bb. Political Independence It is well-known and recognized that several states command the resources to exert political and economic pressure. They are able to do so to an extent where the resulting pressure may equal or sur pass the application of milita ry force. It also has to be emphasized that the appli-
96
viduals concerned have been subjected to prolonged detention or convicted and sentenced to severe penalties", d . also K. Oellers-Frahm, "Der Internationale Gerichtshof starkt die Stellung des Individuums im Volkerrecht und klan wichtige Fragen der Internationalen Gerichtsbarkeit, Ne ue Juristische Wochen schrift 54 (2001 ), 368 8 et seq. and W. ] . Aceves, "LaGrand (Germany v. United States)", AJI L 96 (2002), 210 et seq. See also Kunig, note 67, 163.
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cation of coercion is "part of the game"97 in international relations. State sovereignty secures political independence for each state, but it does not provide benchmarks to determine its deterioration or its lack. Hence, upon attempting to delineate the scope of an inviolable domestic jurisprudence of states, it appears advisable to rely on what can be grasped for now: tendencies emerging out of the evolution of international law. Within such a venture, however, it must be emphasized that the principle of non-intervention remains unquestioned. This means that the latter may and will at times regulate certain tendencies on the grounds of its standing in customary law. This process of delineation must pay heed to the inherent dynamic just outlined. It should not be reduced to enumerating the "don'ts". aaa. Defamation of States As a matter of principle, it is admissible to criticize the domestic policies of other states, if this critique is based on facts .?" The line towards inadmissible conduct is crossed when states can be held liable for radioor TV-broadcasts inciting a 'coup d'etat' in another state, or calling for violent actions against another state. Additional legal issues of a different nature are being raised through instances where the domestic laws of a country declare the aiding of regime change in a foreign country a political goal."? The Ie] has thus agreed that certain modes of assistance accorded to insurgents in intra-state conflicts may constitute inadmissible interventions.P? This is conducive to the ambiguous status of derogatory designations of states (which air exhaustive criticism and contain devaluating connotations) as falling into a domain that neither totally excludes nor includes their embodying an intervention. The most clear-cut cases would be the use of such designations with the explicit intent to bring
97 Tomuschat, see note 47,13,231. 98
99
100
A. Fischer, in: K. Ipsen (ed.), Volkerrecht, 1999, § 59 item 60. Iraq Liberation Act of 31 October 1998, Pub.L. 105-338, H.R. 4665, sec. 3: "It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime", d. also sec. 7, Assistance for Iraq upon replacement of Saddam-Husseins Regime. Case Concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 14 et seq. (103, 124); Jennings/ Watts, see note 56, 431 (§ 129).
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about a regime change. Apart from this, it has to be borne in mind that contemporaneous international law cannot prohibit specific forms of mutual control and influence; it actually encourages them. Thus, an inadmissible intervention would not be diagnosed in cases where one state employs stigmatizing references to affect the internationally illegal conduct of targeted states. This could be due to the fact that the intrinsic criticism of such designations would not refer to "affairs under domestic jurisprudence" (which are not regulated by international law), or to the view that in such cases derogatory designations are no longer considered inadmissible political pressure. Consequently, an intervention via classifying states would not be covered by a legal prohibition, if its principal mission were to inspire the targeted state to fulfil its existing international obligations, such as abstaining from supporting terrorism. If such a "right" to the unilateral securing of compliance with international law were to be recognized, however, the "enforcing state" would also have to abide by international law. Any other kind of conduct would justify the inadmissibility of its intervention. Apart from this, if the targeted state would comply with its international obligations, there would be little leeway left for the legal influencing of states via stigmatization. This applies to cases where the UN Security Council is being accorded not only the authority to determine this, but also to implement measures - as long as it does not choose to explicitly outsource this competence to other states. It would also affect cases where states have been legally bound to cooperate, since the question emerges if unilateral action may be undertaken in such areas. At least as a consequence evolved from S/RES/1373 (2001) of 28 September 2001, states are legally bound to co-operate in the fight against international terrorism, pursuant to Chapter VII of the UN Charter. This obligation to cooperate does not justify a unilateral classification of states, because a measure of this sort inevitably relies on unilateral criteria. Another argument against the procedure lies in the fact that the stigmatization of states transcends the counter-terrorism measures approved by the UN Security Council. All this implies that the exerting of influence upon the political independence of states (via stigmatization) does not acquire "legal correctness" by designating coercive measures as instruments of ensuring compliance with international law. It is more likely that the utilization of derogatory references with respect to states will be considered an illegal form of government critique, as they verbalize unilateral and exhaustive pejorative evaluations of another state. Whether the mere process of stigmatization equals the "coercive load" of interna-
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tionally prohibited interventions will be addressed upon delineating its legal consequences.l?' bbb. Exception to Immunity A comprehensive analysis of the issue of stigmatization has to include the exception to immunity, which is applied to "state sponsors of terrorism", as it extends the jurisdiction of the sending state to the targeted state. The admissibility of this cannot be demarcated without a survey of state practice. Only then can it be fathomed to which extent the implementation of domestic laws infringes upon the sovereign core of the targeted state. Provisions contained within the United States Foreign Sovereign Immunities Act (henceforward: FSIA), for example, do not adhere to a restrictive notion of immunity - nor is their purview limited to cases subject to United States jurisdiction on grounds of the territoriality principle.P? It has to be emphasized, however, that a "state sponsor of terrorism's" immunity may only be annulled if certain breaches of international law are being prosecuted, such as "personal injury or death caused by an act of torture, extra-judicial killing, hostage taking or the material support of such acts" . In its ruling of 14 February 2002, the IC] found that various international conventions on the prevention and punishment of capital crimes tasked states with the expansion of their jurisdiction, by committing them to the criminal prosecution and extradition of perpetrators. The IC] nevertheless added that the mandate to prosecute granted to domestic courts does not obliterate the rules defining and granting immunity. Therefore "[tjhe jurisdiction of national courts does not imply absence of immunity while absence of immunity does not imply jurisdiction'i.P!
101 102
103
For further details, see the discussion under II. C. On the recognition of the restrictive immunity-theory by the IC], see IC] Reports 1998, Case Concerning the Differences Relating to Immunity from Legal Process of the Special Rapporteur of the Commission on Human Rights, items 33-35 B, as regards state practice and the recognition of the territoriality principle, see the Report of the Working Group of the ILC on "Immunities of States and their Property", Report of the International Law Commission, 1999, Annex, No. 45-55. Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), IC] Ruling of 14 February 2002.
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This does not resolve all dilemmas, as the expansion of the jurisdiction of domestic courts, on grounds of international obligations, is inextricably linked to the question to what extent immunity may bridle national courts upon prosecuting crimes committed by state officials. The above-mentioned possibility to sue a "state sponsor of terrorism" in the United States could be approximated to international law standards, if there were concrete instances of state conduct (state practice) which resort to the annulment of a foreign state's immunity by a domestic court - if the latter had supported grave crimes .P' The immunity of former heads of state during criminal prosecution has been an issue for the British House of Lords on two occasions. Both of them revolved around the exception to immunity of Chile's former President Augusto Pinochet. 105 In the case of the first appellative ruling by the House of Lords the rationale centred on the fact that the instances of torture and hostagetaking being considered were not acta iure imperii. The ordering of such massive violations of human rights, after all, could not be included in this category of tasks attributed to a head of state. Hence immunity could not be accorded for such actions in the sense of ratione materiae.l 06
104
105
106
On the scope of state immunity during violations of ius cogens in armed conflict, d . article 7 of the Charter of the International Military Tribunal (1945), article 7 (2) of the Statute of the International Criminal Tribunal for the former Yugoslavia (1993), d. also Prosecutor v, Tadic, ILR (1995), 419 et seq.; arts 3 and 6 (2) of the Statute of the International Criminal Tribunal for Rwanda (1994), arts 27, 28 and article 8 of the ICC (1998). On the historical i.e. case-based evolution and the "double criminality" etxradition criterion (which requires a decision on immunity, as extraditions can only be lawful if domestic jurisdiction would apply to a case where British nationals had been injured) d. M. Byers, "The Law and Politics of the Pinochet Case", Duke]. Compo & Int'!. L. 10 (2000), 415 et seq. (422-437); A. Bianchi, "Immunity versus Human Rights: The Pinochet Case", EjIL 10 (1999), 237 et seq. (254 et seq.), on the immunity of former heads of state also article 13 (2) of the Resolution issued by the Institut de Droit International in 2001, in addition, see the legal positions as regards the Case Concerning the Arrest Warrant of 11 of April 2000 (Democratic Republic of the Congo v. Belgium), ICJ Ruling of 14 February 2002. House of Lords, Regina v, Bow Street Metropolitan Stipendiary Magistrate and others, Ex parte Pinochet Ugarte of 25 November 1998, Weekly Law Repo rts 2 (1998), 1456, 1500, Lord Nichols of Birkenhead: "And it hardly
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In its second ruling the House of Lords'P? annulled the immunity only for instances of torture falling under the purview of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (henceforward: Anti-Torture Convention), which has been directly applicable to British law since 29 September 1988.108 The Anti-Torture Convention's article 1 (1) stipulates that its purview concentrates on instances of torture committed as acta iure imperii. In contrast to the first case, the judges could not apply the rationale that the latter did not include massive violations of human rights. On the contrary, the majority of judges was convinced that immunity did not cover those crimes , which had been branded crimes against humanity and violations of ius cogens within the enactment of the Anti-Torture Convention, thus entailing universal jurisdiction.P? This was conducive to the conclusion that British law would have accorded jurisdiction to British courts, if acts of torture had been committed against British citizens. As a consequence of this finding, the extradition of perpetrators is lawful, provided the "double criminality" requirement is met. This
107
108
109
needs saying that torture of his own subjects, or of aliens, would not be regarded by international law as a function of a head of state", and 1501: "Acts of torture and hostage-taking, outlawed as they are by international law, cannot be attributed to the state to the exclusion of personal liability", also d. Lord Steyn, 1506 and 1507. The vote consisted three votes in favour and two against. The plaintiffs had been striving towards such a decision, as the first appellative chamber had not been constituted according to legal requirements, d . House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and others, Ex parte Pinochet Ugarte, Weekly Law Reports 3 (1999), 827, 828. House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and others, Ex parte Pinochet Ugarte of 24 March 1999, see above, 847 et seq., Lord Wilkinson: "Under the Convention the international crime of torture can only be committed by an official or someone in an official capacity. They would all be entitled to immunity. [...] In my judgement all these factors together demonstrate that the notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention". The verdict in this matter was reached by a majority of five to one votes. Byers, see note 105; on the immunity of incumbent heads of state d. Clinon v. Jones, 520 S.Ct. (1997), 681 et seq.; United States of America v. Noriega, 746 ET Seq. Supp. (1990),1506 (1519); Filartiga v. Pena-Irala 577 F, Supp. (1984), 860 et seq., on civil-court litigations see Argentine Republic v. Amerada Hes s Shipping Corporation, 109 S.Ct. (1989) 683 et seq .; Siderman de Blake v. Republic of Argentina, 965 F,2d (1992) 699 et seq.
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ruling is strictly limited to the immunity of former heads of state during criminal prosecution. In March 2001 France's Court de Cassation found that international customary law accorded immunity to incumbent heads of state facing trial.U? Participation in acts of terrorism, moreover, did not constitute transgressions of international law mandating the exception of heads of state from immunity. I I I The European Court of Human Rights (henceforward: ECHR) was likewise concerned with aspects of immunity in November 2001, on the grounds of the cases filed on behalf of Fogarty, Al-Adsani and McElhiney against the United Kingdom and Ireland respectively.Uf The Fogarty case centred on the admissibility of the United Kingdom's evocation of state immunity in a labour rights dispute, against the backdrop of article 6 (1) of the European Convention on Human Rights (henceforward: EConvHR). The McElhiney trial raised compensation charges against civil-service structures in Ireland, which had impaired the health of the plaintiff. 113 Both cases were rejected by the ECHR on the grounds that the rights of the plaintiffs were not unduly restricted by the litigation threshold embodied by immunity, as the latter represents a generally recognized principle of international law.114 The Al-Adsani case concentrated on the immunity in civil claims, triggered by violations of the ius cogens. The plaintiff had filed charges due to his having been captured and tortured by Kuwaiti fighters after the withdrawal of Iraqi forces from Kuwait in 1991. His claim for compensation against Kuwait, lodged at a British court, was finally rejected by an appellative court, as it accorded Kuwait immunity in this matter. The plaintiff had justified his suit before the ECHR by stating that the Pinochet-ruling lifted state immunity in cases where the Anti-Torture 110
III
112
113
114
Ruling by the Court de Cassation of 13 March 2001, Bulletin des Arrets de la Court de Cassation, No. 1414, 1. See S. Zappala, "Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case before the French Cour de Cassation", EjI L 12 (2001), 595 et seq. (607). Fogarty v. United Kingdom, Ruling of 21 November 2001 HRL] 23 (2002), 50 et seq.; McElhinney v. Ireland, Ruling of 21 November 2001, HRL] 23 (2002), 57 et seq.; AI-Adsani v. United Kingdom, Ruling of 21 November 2001, No. 35763/97, HRL] 23 (2002), 39 et seq. On the civil character of this claim, d . W. Peukert, in: J. A. Frowein/ A. Peukert (eds), Europdiscbe Menschenrechtskonvention, article 6 (15) and on the claim to compensation see item 22. ECHR, Fogarty, see note 112, item 26 f, 35-37; McElhiney, see note 112, item 25 f, 35-38.
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Convention had been violated. 115 The ECHR had to decide if the rejection of Al-Adsani's suit by the British judiciary constituted a breach of article 6 (1) of the EConvHR, and if the British Government had not ultimately violated article 3 (in conjunction with arts 1 and 13) of the EConvHR. The ECHR found that the British Government had not breached article 3 (1),1t6 as the warranty stipulated in article 6 (1) of the EConvHR was not absolute - but subject to limitation by rules serving a legitimate purpose, and crafted according to the principle of proportionality. The ECHR furthermore clarified that it considered the prohibition of torture as ius cogens, but as the case was a civil lawsuit (and not a criminal prosecution trial), it first had to decide if a breach of the ius cogens could annihilate a state's legitimacy in this type of litigation. Eventually the judges of the ECHR arrived at a negative conclusion (with nine votes to eight) and opposed the extension of jurisdiction by analogy (via transfer from cases concerning the immunity of former heads of state, in the sense of a functional immunity, to litigations concerning the immunity of states). The rationale of the ECHR emphasized that: "[t'[he growing recognition of the overriding importance of the prohibition of torture, docs not accordingly find it established that there is yet acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum State".117 The implicit requirement of a territorial link to a breach of international law, contained in this justification, was to be elaborated subsequently. In the Bankouic-csse the ECHR stressed that in order for the application of article 1 of the EConvHR to be possible, NATO should have been in "effective control" of the territory where the violation had been committed. I 18 The Draft of an international convention on the jurisdictional immunities of states and their property similarly contains limitations to the annulment of immunity. These Draft Articles on Jurisdictional Im-
liS 116 117 118
ECHR, Al-Adsani, see notel12, item 51. ECHR, Al-Adsani, see notel12, item 41. ECHR, Al-Adsani, see note112, item 66. ECHR, Ruling of 19 December 2001, Bankovic v. Belgium, No. 52207/99, item 80, the verdict of the ECHR differs, however, in Loizidou v. Turkey, No. 15318/89, (1995), item 71, for a critical view on this finding, see A. Laursen, "NATO, the War over Kosovo, and the IClY Investigation", Am. U. Im 'l L. Rev . 17 (2002), 765 et seq. (796-800).
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munities of States and their Property!'? were presented by an Ad-hoc Committee on Jurisdictional Immunities of States and their Property in February 2002. The Committee had received the mandate to do so by the UN General Assembly back in 2000. 120 According to this Draft, the immunity of a state remains intact as long as no legal exception becomes binding.V! One such exception to immunity, based on massive human rights violations, is set out in article 12 of the Draft as follows: "Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State and if the author of the act or omission was present in that territory at the time of the act of omission".122 Hence, a territorial link to the violation of international law is necessary to justify the jurisdiction of one state against another. In addition to this, a claim can, at best, aim at financial compensation. Charges cannot be pressed for punitive damages. In one of its reports on the work of the Ad-hoc Committee, the ILC concludes that so far state practice had established scenarios for the lifting of immunity, due to human rights violations, only in the following cases: the first scenario revolved around violations of the AntiTorture Convention, as in the Pinochet case; and the second scenario represents the exception of immunity of "state sponsors of terrorism" under the FSIA.123 With regard to the compulsory execution of claims
The Working Group has been established in December 2000, see A/RES/55/150 of 12 December 2000, A/RES/56/78 of 12 December 2001, item 4. The ad-hoc Committee was convened for a sessionbetween 4th and 13th February 2002. 120 Report of the ad-hoc Committee on Jurisdictional Immunities of States and their Property, Doc. A/57122 of 15February 2002. 121 Report of the ad-hoc Committee on Jurisdictional Immunities of Statesand their Property, see above, article 5: «A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present articles." 122 See Doc. A/57122, see note 120, article 12 on personal injuries and damage to property. 123 Report of the ILC (1999) Annex, Report of the Working Group on Immunities of Statesand their Property, Annex, 1999, No. 122, items 9-12. 119
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using state assets, the ILC found that it had to be proven that "[njot only ... the activity or transaction at issue was performed in the sense iure gestionis, but also that the property affected was not destined for the fulfilment of sovereign functions". 124 The report mentions the exception to immunity under the FSIA and in the Pinochet case as precedents, but it also underscores the differences: the Pinochet case represents a criminal prosecution trial of a former head of state, whereas the provisions of the FSIA on "state sponsors of terrorism" focus on the immunity of states during civil claims. Hence the report implies that international law had established as vital: a differentiation between state immunity and the derived immunity of a head of state.125 The annulment of the immunity of a former head of state does not set a precedent for the issue whether a state enjoys immunity as a legal person. Upon relinquishing his incumbency, a former head of state (as in the case of diplomats) only enjoys immunity for his actions (in the sense of ratione materiae), or along the lines of ratione personae. The basis underlying this idea is the thought that a person who no longer represents the state should no longer be shielded by the state's immunity as a private individual. Therefore immunity merely applies to the acta iure imperii during his term in office. The novelties surrounding the exception of immunity with respect to "state sponsors of terrorism" become even more striking if one compares the contexts of the Al-Adsani and the Pinochet case. Their processing by the judiciary does not so much imply an inconsistent jurisdiction - apart from the qualification of the Pinochet case as a precedent along the lines of the immunity exeption for state sponsors of terrorism of the Unites States Code - as it indicates the divergences of state practice so far, in instances where immunity has been annulled according to the FSIA. Even if the contentious issue of the Pinochet case had not been the immunity of a former head of state, but the immunity of Chile - the ruling would still not have been applicable to the Al-Adsani case and its challenge to Kuwait's immunity. In the Pinochet case the judges were first forced to determine the legality of the "double criminality" requirement; a criterion which has to be met prior to every extradition
124 125
Report of the ILC, see above. Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v, Belgium), see note 103, para. 53-55; P. Daillier/ A. Pellet, Droit International Public, 1999,446 et seq.
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according to British law. For this purpose they had to clarify if British jurisdiction would have been expanded in cases where British nationals were tortured in Chile. Thus the judges were not supposed to decide whether a violation of the prohibition of torture was basically conducive to the general forfeiture of immunity. The actual dilemma was if the annulment of immunity applied to cases where British nationals had been harmed. It was found that the extradition of Pinochet would be lawful only under these circumstances. This aspect of the case could have been transferred to the Al-Adsani trial only if the plaintiff were a British national. Then the territorial-link requirement for an extension of jurisdiction would have been surpassed by the principle of passive legal personality. This, however, would not have been the case with the distinction between the immunity of heads of state and of states, or the different kinds of litigation embodied by both cases. The Pinochet case referred to a completely different subject-matter, when compared to the Al-Adsani case. Therefore, it remains debatable if there is a similar case to the instances where the immunity of "state sponsors of terrorism" has been annulled. The Pinochet case did not revolve around state immunity - it merely tried to assess if an extradition was lawful, based on the hypothetical assumption that one's own nationals had been injured. In contrast to this, the Al-Adsani case centred on a civil lawsuit against a state, where neither the plaintiff nor the violation of the law established a link to the state as a forum. The exception of immunity in case of "state sponsors of terrorism" is conducted under circumstances which were not the object of deliberation in the Pinochet case, and which the ECHR did not acknowledge as rationale to state immunity under international law as it currently stands. The exception of immunity for "state sponsors of terrorism" therefore has to be considered the only case where states forfeit their immunity during civil claims, and not another precedent besides the Pinochet case. b. The Meaning of Sovereign Equality Based on the teachings on the basic rights of states, their equality was considered a "classical basic right" towards the end of the nineteenth century. The notion that this equality represented a subjective empowerment, however, could not gain the upper hand throughout the
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twentieth century. 126 What did succeed is the enshrining of the equality of states as a principle in several international conventions.F? The UN General Assembly confirmed this principle through the FriendlyRelations Declaration, by claiming that: "[a]ll States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature" .128 In contrast to this, it has to be stressed that general international law has always been aware of an asymmetric distribution of rights and duties among states. Numerous international agreements, such as the NonProliferation Treaty, entail a differing level of empowerment and liability among countries.V? The United Nations itself has accorded the five permanent members of the Security Council special influence on the consensus-forging and decision-making processes within this body, as well as within the United Nations in general. The same applies to spe-
126
127
128
129
Cf. Jennings/ Watts, see note 56, 331 (§104): "Until the last two decades of the 19 century there was general agreement that membership of the international community necessarily bestowed so-called fundamental rights on states", Note 1: "these were chiefly enumerated as the rights of existence, of self-preservation, of equality, of independences, of territorial supremacy, of holding and acquiring territory, of intercourse, and of good name and reputation"; T.]. Lawrence, The Principles of International Law, 1925, 106 et seq.; d. P.H. Kooijmans, The Doctrine of Legal Equality of States, 1964, 53 et seq. Cf. article 4 of the Montevideo Convention on the Rights and Duties of States (1933), AJIL 28 (1934), Suppl. 75, d . also the former article III .l of the Statute of the Organization of African Unity, ILM 2 (1963), 766, or article 6 of the Charter of the Organization of American States. A/RES12625 (XXV) of 24 October 1970, the general principle quoted above serves as a foundation for the following rights, derived in the Resolution: "(a) States are juridically equal, (b) Each State enjoys the rights inherent in full sovereignty, (c) Each State has the duty to respect the personality of other States, (d) The territorial integrity and political independence of the State are inviolable, (e) Each State has the right freely to choose and develop its political, social, economic and cultural systems, (f) Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States". Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996,226 et seq. (263 et seq., para. 98-104).
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cial voting arrangements within the IMF.130 Many other examples could be listed in support of the assertion that there is a disparity between the de iure guarantee of state equality and the de facto inequality among them. Even the interpretation of this principle (set out in Article 2 (1) of the UN Charter) in expert analyses reflects the chasm between a codified ideal and its realistic/concrete application. Some international law experts distinguish between a factual and a legal plane, accordingly. Inequality may, in the views of one faction, be considered a social phenomenon which has an insignificant impact on the legal level, as it does not affect the equal treatment of states through the law.131 Another faction has pushed the purview of the principle of equality out of the legal domain, since equality among states cannot be realized.P! or because the existing inequalities represent exceptions supported by a consensus among states, and thus an indicator of the principle being rooted in customary law. 133 With regard to the question what kind of standards may be derived out of Article 2 (1) of the UN Charter, none of these options offers an explicit answer. Hence, it may be realistic to conclude that states are de iure equal, i.e. subject to relations of coordination without enjoying completely equal rights, but such a statement will not shed light on the question whether this condition complies with the normative contents
130 B. Kingsbury, "Sovereignty and Inequality", E]IL 9 (1998), 599 et seq. (610). 131 Cf. P. Fiore, Nouveau droit international Public, 1918 Vol. I, § 428, 374:"II nous semble que pour etre completement exact, on devrait dire que chaque Etat devrait avoir Ie droit d'etre I'egal des autres, independamment de son importance et de sa force. II y a loin entre ce desir vertueux exprime avec raison par les publicistes et la realite", Doehring adds the standpoint that equality was always pretence, and never a factual condition, see note 53, para.189. 132 J.L. Brierly, The Law ofNations, 1963, 132 et seq. 133 Cf. Cassese, see note 52, 90 et seq.: "Consequently, possible legal hindrances or disabilities may be the result of factual circumstances [...]. Alternatively, legal constraints, if any, are only valid if accepted, in full freedom, by the State concerned [.. .]"; Jennings! Watts, see note 56, 376-379 (§114); P. Cullet, "Differential Treatment in International Law: Towards a New Paradigm of Inter-state Relations", E]IL 10 (1999), 549 et seq. (553 et seq.); G. Schwarzenberger, "Equality and Discrimination in International Economic Law (I)", Yearbook of World Affairs 25 (1971), 163et seq.
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of Article 2 (1) - or whether, on the contrary, it represents a restraint of the equality principle in practice.P" Should one opt for the second standpoint and attribute the interpretation of the equality principle to the factual asymmetries among countries, then the bounds between the possible interpretations of the principle as a normative postulate and the constraints on actual state equality will be obscured.I" Therefore this approach provides a stark illustration of the fundamental dilemma concerning the principle of state equality: is the rule of the UN Charter based on a deductive imposition, as a result of general ideas linked to states' equality - or is it to be derived from concrete state practice?
Vattel entertained the view that the equality of states could not be enforced through a legislator, as at the domestic level. Therefore, state equality was to be founded on the practice of states alone.P" The inconsistent de facto conduct of states subsequently strengthened many authors in their belief that equality among states was neither feasible nor just (due to the differing requirements of each state). This view prevailed up to the beginning of the twentieth cencury.l-" Current international law is marked by having enshrined the principle of equality of states in the UN Charter. Consequently, the key distinctions to be made do not stem from the relativization of the normative content by practical conduct, but rather from the fact that states have included this principle in the UN Charter. The important issue therefore revolves around the states' concept of the principle as a legal rule. Which function do they ascribe to the inclusion of the principle of state equality into the UN Charter? Only after answering this question can attention be shifted to the purview of the principle, i.e. the manner in which the latter emerged out of state practice. The concrete conduct of states as such will determine to what extent the principle can be implemented. Both aspects combined will result in a principle of state
134
135
136
137
Cf. Verdross/ Simma, see note 66, 275 (§ 475), and K. Hailbronner, in: W. Graf Vitzthurn (ed.), Vo/kerrecht, Chapter III, items 91 et seq. E. Dickinson, "The Equality of States in International Law", 1920, 122, therefore Goebel opts for another approach, which bases his theory of equality on the philosophical ideals of equality and a state community, ibid ., 3 et seq., (79 et seq.). E. Vattel, Le Droit Des Gens ou Principes De La Loi Nature//e, 1758 (reprinted 1959), Vol. II, Chapter III, § 40. J. Lorimer, The Institutes of the Law of Nations, Vol. I, 1883, 170 et seq .; S. Amos, A Systematic View of the Science ofJurisprudence, 1872,235.
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equality, which can aid the development of international law through its regulatory function, on the one hand, and which can limit the utilization of defamatory designations of states on the other.
aa. The Equality of States as an Ideal The principle of state equality, enshrined in Article 2 (1) of the UN Charter, emphasizes the egalitarian status of states within the international legal order. This warranty is coupled with the recognition of states as subjects of international law.138 The Friendly-Relations Declaration of the UN General Assembly states that all countries possess the same rights and duties as equal members of the community of states regardless of the factual differences among them ("[T]hey have equal rights and duties and are equal members of the international community, notwithstanding differences [...]").139 This interpretation is mainly considered an "additional Charter" and an expression of customary law. As such it provides important insights into the scope of the principle, although it fails to explicitly outline the resulting duties affecting the states' implementation of the principle. Should the latter e.g. encompass both equality before the law and equality of capacity rights? A historical analysis of the debates surrounding the formulation of this principle during the San Francisco Conference reveals that several states insisted on a lexical "shell" allowing a maximalistic interpretation of equality. Some proposals went as far as outlining the eradication of factual and political inequality.P? The position forwarded to cornple-
138
139 140
Kingsbury, see note 130, 599, 603, Jennings/ Watts, see note 66, 339 et seq. (§115), in the first edition (1905) Oppenheim defined equality as follows: "In entering the Family of Nations a State comes as an equal to equals, it demands a certain consideration to be paid to its dignity, the retention of its independence, of its territorial and its personal supremacy [...] derived from their International Personality", Hailbronner, see note 134, Chapter III , item 91. A/RESI2625 (XXV) of 24 October 1970. Ecuador's proposal states that the juridical equality of sovereign states should be seen: "[...] as an expression of their identical law which governs their reciprocal relations and as a means for correcting and repairing any practical or political inequality which may occur between them", Text of Proposals for the Establishment of a General International Organization, UNCIO, Documents of the San Francisco Conference, Vol. 111,420, 421. The Turkish Government used the principle of sovereign equality to derive the proposal that the General Assembly should function as the supreme
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ment the Dumbarton Oaks Proposals was somewhat more restrictive, as it envisaged an organization with "juridically equal" members, which would enjoy certain rights equally. These rights were accorded to them as "inherent in their full sovereignry'U'" Proposals set out by the Governments of the United States, the United Kingdom, the Soviet Union and China at the earliest stage of discussions upheld the view (verbalized in the aims of Article 1 of the UN Charter) that the organization was to further friendly relations amongst states based on the principles "of equal rights and [the] self-determination of peoples".142 Article 2 thus codified the principle of "sovereign equality of all its members".143 The Netherlands maintained that there is a legal principle of "sovereign equality of peace-loving states," in spite of the existence of factual differences among countries, which had to be borne in mind.Iv' Following the deliberations on the complementary proposals to the Draft compiled at Dumbarton Oaks, the Rapporteur of Commission I summed up the states' positions as follows: "(1) Members are juridically equal, (2) all enjoy the rights inherent under sovereignty; and (3) they all should act in accordance with their duties under the Charter".145 The Subcommittee in charge of this subject-matter proposed to replace the formulation "juridically equal" with "sovereign equality". The interpretation of the latter was to be guided by the postulates: "(1) that states are juridically equal; (2) that they enjoy the rights inherent in their full sovereignty;
decision-maker as regards preserving the peace. UNCIO, see above, 480, 481, and Vol. IX, 274. Venezuela agreed with this position, Vol. IX, 274,
141 142
143 144 145
Cuba added its own Draft Declaration of Duties and Rights of Nations, in which equality is defined as follows: "All states are equal before the law, and each one has the same rights as any other which is a member of the International Community", UNCIO, Vol. III, 493, 497. New Uruguayan Proposals on the Dumbarton Oaks Proposals, UNCIO, Vol. III, 34, 35. Amendments proposed by the Governments of the United States, the United Kingdom, the Soviet Union, and China, 5 May 1945, UNCIO, Vol. III, 622. Ibid. 623. This proposal substituted the preceding formulation, which contained the reference to "peace-loving states." UNCIO, Vol. 1,230,249. Report of Committee 1 to Commission I, Documents of the San Francisco Conference, Vol. VI, 310 et seq.
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(3) that the personality of the state is respected, as well as its territorial integrity and political independence; (4) that the state should, under international order, comply faithfully with its international duties and obligations't.!" Committee Ill, tasked with outlining the basic principles of the Charter, eventually adopted a revised version, which contained the phrase "sovereign equality of all its members" in addition to the abovementioned axioms, thus accommodating the views of Subcommittee Ill/A. 147
Commission I subsequently adopted the same version.U'' after clarifying that the formulation "sovereign equality" was to be interpreted along the lines set out by Committee Ill. The Government of Peru had triggered this clarification by stating that, in its view, the Draft lacked outlines on the "personality of states". Such consultations, and the resolution of relevant issues, were conducive to the General Assembly's adoption of the draft-proposal containing the reference "sovereign equality" of 25 June 1945.149 The codification of this principle within the UN Charter thus bears testimony to the will of states to enshrine equality before the law as a legal postulate. In addition to this, the signatories were also concerned with guaranteeing equal rights to states on grounds of their sovereignty. Hence, equality before the law was complemented by the equality of capacity of rights, which emanates entitlements directly attributable to the sovereignty of states. In 1947 the issue of state equality, in particular the equality of capacity of rights, surged to the top of the agenda when the ILC produced a Draft on the Rights and Duties of States. Article 5 of this Declaration on the Rights and Duties of States stipulates the equality of all states before the law and with regard to the rights they enjoy - as supported by the statement that "[ejvery State has the right to equality in
146
147
148
149
Report of the Rapporteur of Subcommittee 1/1/A to Committee III of Commission I , 1 June 1945, UNCIO, Vol. VI, 717, also cf. the discussion of Commission I, 15June 1945,UNCIO, Vol. VI, 65, 70. UNCIO, Appendix to Rapporteur's Report, Committee 1/1 on 9 June 1945, Vol. VI, 402, 404. Report of the Rapporteur of Commission I, 21 June 1945, UNCIO, Vol. VI, 229 et seq. UNCIO, Vol. I, 612, 631.
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law with every other State".150 In the opinion of Commission I, this formulation was to equal the notion of "sovereign equality" along the lines of the interpretation provided at the United Nations Conference of San Francisco.P' Had such an extensive concept as the "equality in law" been adopted, it would still have contained a limitation in the form of a reference to the Committee's interpretation.W
It, furthermore, has to be stressed that neither the Commission's interpretation nor the different governmental positions of the San Francisco Conference indicate that all states are to enjoy the same rights in every aspect. The formulations of the Draft Declaration Resolution on states' rights and duties was not to alter this situation. It therefore becomes clear that states are equal before the law and that they do enjoy the same capacity of rights, if those are rooted within their sovereignty, or if they are vital to the preservation of their sovereignty. Thus the principle of state equality contains only these (decisive) postulates. Despite these qualifications, the principle of state equality in the UN Charter meets the requirements publicized in texts prior to its codification. In those analyses the principle of (state) equality before the law is considered a fundamental element of a legal order, which is derived from the postulate on the rule of law. This quintessential component is also said to ensure equal legal protection.P' As far as the equal capacity to rights is concerned, analyses emphasize that their origin from material concepts of justice and their aiming at an exhaustive equality of opportunities for states both embody the idealistic dimension of the equality postulate: "Equality of capacity of rights is commonly regarded as a desideratum, as an ideal towards which the law should seek to develop, asDraft Declaration on the Rights and Duties of States; A/RES/178 (II) of 21 November 1947. The provision corresponds to article 6 of the Panamanian Draft. lSI Report of Committee 1 to Commission I, UNCIO, Vol. VI, 457. 152 I LCYB 1 (1949), 288: "this text was derived from Article 6 of the Panamanian draft. It expresses, in the view of the majority of the Commission, the meaning of the phrase 'sovereign equality' employed in Article 2 (1) of the Charter of the United Nations as interpreted at the San Francisco Conference, 1945". 153 Dickinson, see note 135, 3: "International Persons are equal before the law when they are equally protected in the enjoyment of their rights and equally compelled to fulfil their obligations". ISO
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This provided a basis for the contentious request that all states would have to be granted identical rights. 155 Such a request is to be distinguished from the demand that identical conduct entails identical evaluation and legal consequences (Rechtsfolgenidentitiit), which can also be traced back to the equality of opportunities. The thus derived equality in law refers to equal opportunities to generate and implement laws, i.e. equal bargaining power, which are ultimately to obliterate status asymmetries.P"
bb. Safeguarding the Legal Capacities ofStates Instances of discrimination generally imply that substantively equal issues (items, subjects) are being treated differently. Hence, every dissimilar treatment of sovereign states would have to be considered a violation of Article 2 (1) of the UN Charter, as the latter elevates all states to an equal footing. The ideal of egalitarianism underlying this provision is not being implemented in practice, however, neither at the intra-state nor the inter-state level. State practice reveals that not only asymmetrical treaties are being signed, but the "law-and-order" mission advanced by particularly influential states is being "accepted," i.e, not effectively disputed.P? In 154 Dickinson, see note 135,4 et seq. 155 G. Jellinek, System der subjektiven offentlichen Rechte, 1919,319, or see J. L. Brierly, The Outlook for International Law, 1945 (reprinted 1977), 30, 65 et seq.; also the Declaration on the Rights and Duties of States adopted by the American Institute of International Law 1916, article III: "Every nation is in law and before the law the equal of every other national belonging to the society of nations", AJIL 10 (1916), 125, Dickinson, see note 135,4 et seq. 156 Dickinson, see note 135, 4: "the equality of states in this sense means, not that all have the same rights, but that all are equally capable of acquiring rights, entering into transactions, and performing acts. When used in this significance, equality may be said to constitute the negation of status", J. Goebel, The Equality of States, 2 et seq.; Kooijmans, see note 126, 50 et seq.; also d . R. W. Cox, "Labor and Hegemony", International Organization 31 (1977),385 et seq. (423). 157 Cf. Dahm/ Delbriick/ Wolfrum, see note 55, 238, for a critical view on the NATO-intervention in Kosovo in 1999 without a UN-m andate, but on behalf of the "international community" see N. Krisch, "More Equal than
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contrast to this, it must be borne in mind that the above-mentioned positions of governments confirm that the concept of sovereign equality is not exclusively constituted by multifarious necessities and interests, exhibited by states throughout concrete interactions. They tend to view the principle as a manifestation of their (political) will, of their endeavour to materialize the ideal of equality via legal rules. The principle of sovereign equality does not, however, entail the obligation to actively engage in the eradication of inequality. Apart from this, the UN Charter also gives no suggestion of the view that the principle of sovereign equality secures absolutely identical rights to each state. In this context it must be mentioned that the dichotomy between equality before the law and equality in law is less clear than would appear at first sight. There is, after all, the possibility that inequality in law (lessened capacity of states to generate law or shape this process) is conducive to inequality before the law. Such possibilities become reality when factual disparities become enshrined in laws, i.e. when states with low political influence being excluded from the process of law-making, whereas they are subsequently confronted with new legal rules which they were not able to shape. This vicious cycle can be controlled through the principle of state equality, as the Dissenting Opinion of IC] judge Weeramantry illustrates. According to him: "[d]e facto inequalities always exist and will continue to exist so long as the world community is made up of sovereign States, which are necessarily unequal in size, strength, wealth and influence. But a great conceptual leap is involved in translating de facto inequality into inequality de jure. It is precisely such a leap that is made by those arguing, for example, that when the Protocols of the Geneva Convention did not pronounce on the prohibition of the use of nuclear weapons, there was an implicit recognition of the legality of their use by the nuclear powers".158 Derogatory designations of states could represent a breach of Article 2 (1) of the UN Charter, whenever they transfer factual inequalities into the Rest? Hierarchy, Equality and US Predominance in International Law", in: M. Byers/ G. Nolte (eds), United States Hegemony and the Foundations of International Law, 2003, quoted from the pre-publication version, 9 et seq. 158 Legality of the Threat or Use of Nuclear Weapons, IC] Reports 1996,226 et seq., Dissenting Opinion]udge Weeramantry, 429, 527.
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the legal domain. The attribution of negative features to states could eventually be conducive to their suffering a loss of trust and credibility.159 This would embod y the direct transmission of political power asymmetries to the legal plane, since a decrease of political power will invariably lessen its weight, and therefore its legal capacity. This loss would be suffered in the area of sovereignty-based rights, which are contained in the postulate of equality in law and whose decrease could endanger a state's equality before the law. Hence, the principle of the sovereign equality of states can develop an optimum of regulatory capacity if the opportunity of sovereign states to generate international laws is kept as equal as possible for all, in spite of power disparities among them. The convergence of states on the purview of this principle underlines that equality is to be secured to states with regard to their sovereignty-based rights. The principle consequently guarantees participatory rights to all states in the process of legislation and the process of claiming/implementing their rights, while prohibiting the "legal oligarchy" of a few powerful states. c. Discussion The legal consequences of United States proVISiOns on international economic exchanges and state immunity affect the core of sovereignty : the political independence of states and the principle of state immunity. According to the latter in particular, it is still inadmissible (apart from a few exceptions) for states to extend their jurisdiction over other states. Against this backdrop it also has to be considered whether the coercive impact of economic sanctions has not already transgressed the bounds of legality in some cases. Clear boundaries emerge on the grounds of the sovereignty postulate, as regards the extra-territorial jurisdiction of states included in the list of terrorist states. The requirements for the exception to immunity during investigations likewise transgress the rules established by state practice so far. This transgression consists, largely, in the fact that the inclusion of states into the list alone annuls the immunity of these
159
On the meaning of trust in international relations, see, IC] Reports 1974, 252 et seq. (268 para. 46): "One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith . Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential ".
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countries, thus violating the prima facie rule stipulating that states per se enjoy immunity. This is complemented by the loss of immunity as regards future litigations, a damage which cannot establish a credible link between claims which might be lodged against this country and the reasons prompting the DoS to enter this state into its list. A third dimen sion of complexity is added through the realization that most litigations (made possible by the lifting of immunity) revolve around acta iure imperii of the states listed as sponsors of terrorism. State practice so far has not supplied any support to the hypothesis that such acts lose their protection if they embody grave breaches of international law, i.e. just on the basis of the gravity of the violation. In addition to this, the immunity of a state cannot be annulled for civil claims, even in cases of violations of ius cogens, since a recognized rule to this purpose has not been established so far. Hence the exceptions to immunity do not adhere to a restrictive concept of immunity. It also has to be noted that the annulment of a state's immunity in the United States is not limited to cases where United States nationals suffered injury - it is merely important that the plaintiff be a United States citizen. As far as the substantive scope of exceptions is concerned, it is not restricted to acts of torture (as stipulated by the UN Anti-Torture Convention), but also includes extra judicial killings, the sabotaging of aircraft, hostage-taking and assistance rendered in the execution of these crimes . The extension of jurisdiction over other states cannot, moreover, be justified via arts 4 and 5 of the Anti-Torture Convention, as these provisions apply to the criminal prosecution of perpetrators, but not to the instigation of civil claims. All this indicates that there are no instances of state practice in support of a universal jurisdiction in cases of torture - regardless of the types of immunity, the types of litigation or the existence of a link to one's own nationals being affected - outside the provisions of the FSIA.160 Such a discrimination of states reaches its limits the moment it strives to annul the sovereignty-based rights of a state, since these cannot be curtailed without the consent of the targeted country. The exception of immunity with regard to designated "state sponsors of terrorism" entails the different treatment of these states. Such an unequal treatment, however, is only admissible within the range of binding international law, unless a state has agreed to a more intrusive action. Provisions justifying the annulment of immunity sub-
160 On the existence of an implicitforfeiture of immunity, in caseof a violation of ius cogens see the Dissenting Opinion of Judge Wald in Princz v. Federal Republicof Germany, 26 F. 3d (1994), 1166, 1182.
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stantially surpass binding rules of extra-territorial jurisdiction. As such, even the consent of states cannot establish their legality. This means that the extra-te rritorial jurisdiction over "state sponsors of terrorism" transcends the bounds set by the internationally binding principle of the sovereign equality of states. Such a transgression loses little of its weight when another element of coercion is introduced, in the shape of courts according punitive damages. This form of legal consequence is not so much aiming to compensate plaintiffs for inflicted damages, as aiming to penalize the states targeted . Thus, punitive damages are reduced to plain punishment, in spite of the inadmissibility of imposing pecuniary compensation on a state (according to binding regulations), as compulsory execution remains a legal option. Both the latter and the prerequisite annihilation of immunity can be considered instruments of coercion. This is supported by the fact that provisions within the FSIA permit the seizing of assets appropriated for acta iure imperii - thus enlarging the scope of rules of this law contravening current state practice. It is hard to deny that the overall impact of such measures affects the political independence of the states targeted, in spite of there being a few cases where coercive effects would be considered negligible. All the considerations outlined so far indicate that the gravity of coercive intrusions lies in the consequences attached to the designation of countries as "state sponsors of terrorism" according to United States domestic laws. A slightly different conclusion can be reached if the amplification of coercion contained in defamatory references is analyzed. Should the element of coercion exert unm itigated pressure on targeted states, then their verbal devaluation (and not resulting legal consequences) will be labelled as "dictatorial interference". Hence, attention would have to be paid to the coercive potential of such denotations as "rogue states", "axis of evil" or "state sponsors of terrorism". Governmental statements in particular abound in pejorative designations of states (e.g. "rogue states" or "axis of evil"), whose derogatory impact is quite explicit. Documents enacting concrete legal provisions, however, tend to resort to the less devaluating "state sponsors of terrorism". The coercive impact in such instances is not adequately mirrored by this lexical reference, as the legal consequences could be initiated under the cover of non-derogatory formulations. Any reference would merely be required to ensure the identification of the states in question. Hence, if the primary goal consisted of applying coercion, the sending state would not have to resort to pejorative references at all: the mere identification of states and their subsequent subjection to sane-
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tions, according to domestic laws, would suffice. The devaluation of targeted states, intrinsic to depreciating designations, should not playa decisive role in cases where coercion is mainly achieved by the legal consequences attached to a state's classification. If the principal aim were simply to exert considerable pressure upon targeted states, the legal consequences would accomplish this task in their own right, without creating the means to amplify this by employing devaluating formulations. The inclusion of the latter in government statements, however, still cannot be considered dictatorial interference, as long as they are not utilized intentionally to foster regime change. Any other finding would have to be based on a discrete right to state dignity. Since the threshold delimiting inadmissible interference is set at a relatively high level, moreover, the usage of pejorative designations cannot constitute intervention, in spite of considerable economic pressure being applied. This subject-matter should not be confused with the issue whether the continuous stimatization of states has an impact on the political status - and subsequently the legal equality - of states. Political inequality can affect the legal level, as the political standing of states will influence the process of drafting laws. In addition to this, the principle of the sovereign equality of states is incompatible with the premeditated creation of state inequality via stigmatization, generated in the political realm, due to its limiting impact on the capacities of states to generate and implement laws. This is to be ascribed to the direct influence on the sovereign rights of states of such formulations. The results of all these asymmetries in political standing not only includes the lessened impact of states during international law-making, but also the pronounced influence of a few powerful states throughout this process.P!
III. Hegemonic Law in the International Community? The following sections are not concerned with the designation of states as hegemonies, or with the assessment of power (a)symmetries. They merely concentrate on the question whether the utilization of derogatory designations at the international level indicates hegemonic relations, as the normative consequences of this process are not only felt by
161
Cf. Kingsbury, see note 130, 599, 611.
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the targeted states, but also by the international community as a legal order.
1. Concepts of Hegemony
Initially the notion of hegemony described a particular political constellation during the era of the Greek polis. It denoted the supremacy of one city-state with respect to other counterparts, incorporated into an alliance of independent units. 162 Hegemony was accorded to states which, in addition, to their power supremacy, enjoyed considerable trust and respect, on the basis of their advantages and achievements. Such states were entrusted with the management of common affairs. As far as the usage of this notion in modern diplomatic discourse is concerned, it can be traced back to the Congress of Vienna, where the explicit differentiation between great powers and small states acquired prorninence.P! Apart from the thus established political connotation, the concept of hegemony also gained influence as regards the codification of inter-state relations. Hence the Treaty for Peace and Friendship between the People's Republic of China and Japan (12 August 1987) contains an anti-hegemony clause.l'" The purview of hegemony is consequently based on the minimum threshold of a negative freedom enshrined in international treaties.
162
163
164
Cf. o. Kallscheuer, "Hegemonic", in: D. Nohlen (ed.), Lexikon der Politik, Vol. I, 1995, 174; P. Noack (ed.), Grundbegriffe der politikwissenschaftlichen Fachsprache, 1976, 99 et seq. The British Prime Minister Palmerston described the decision-making process within the "Concert of Europe" in 1848 as follows: "the smaller Sovereigns, Princes, and States, had no representatives in the deciding congress, and no voice in the decisions by which their future destiny was determined. They were all obliged to yield to overruling power, and to submit to decisions which were the result, as the case might be, of justice or of expediency, of generosity or of partiality, of regard to the welfare of nations, or of concessions to personal solicitations" , quoted by Dickinson, see note 135, 295. Treaty of Peace and Friendship between the People's Republic of China and Japan of 12 August 1987, article II: "The Contracting Parties declare that neither of them should seek hegemony in the Asia-Pacific region or in any other region and that each is opposed to efforts by any other country or group of countries to establish such hegemony", ILM 17 (1978),1054.
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Scientific debates revolve around different forms of hegemony. These provide the foundation for an analysis of prerequisites and maintenance modes of hegemonic forms in the ensuing sections, and for a subsequent attempt to arrive at a definition uniting the advantages of each approach. a. The Historical Perspective
aa. Differentiating between Leadership and Predominance The cornerstones for the differentiation between leadership and predominance were laid in the twentieth century, by the Italian intellectual and leading communist activist Antonio Gramsci (1891-1973). In his Letters From Prison (1929-1935) Gramsci attempted to provide a detailed answer to issues hampering national unification and communist alliances. His notion of ideological hegemony is marked by the connotation of the legitimate leadership, based on a consensus between the ruling and the ruled classes. Only homogeneous cultures and values, the argument runs, can maintain this class structure, not brute force. 165 Thus, hegemony embodies an effective form of predominance, based on the conviction of all that the existing order is satisfactory, or at least the best which can be expected. In contrast to this ideology-infused variant, Heinrich Triepel developed the notion of consensus-based hegemony in his Hegemony - a Book on Leading States, by combining sociological, historical and legal methods.Pf By examining leadership relations in polities at the interpersonal, societal and state level, Triepel came to the conclusion that lead ership is constrained power, marked by the" energy of the will, but not by the mere will to rule".167 This dichotomy between leadership and predominance characterizes Triepel's concept of hegemony at the inter-state level: the relational configuration within hegemony is deter-
165 A. Gramsci, Sozialismus und Kultur, 1916 and Gefangnishefte, (1929-1935), on Gramsci's impact on an area of critical legal studies, d. D.E. Litowitz, "Gramsci, Hegemony and the Law", Brigham Young University Law Rev iew 2000,515 et seq. 166 H. Triepel, Die Hegemonie. Ein Buch von [idrrenden Staaten, 1943. 167 Triepel, see above, 40, 59 et seq., 128, 131; d. also U.M. Gassner, Heinrich Triepel, Leben und Werk, 1999, 333 et seq.
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mined by two complementary aspects.P" The will of a state to lead has to be complemented by the will to follow in the case of the other states.l''? Hegemony is not a "one-state show," but a continuous, reciprocal exchange between the hegemonic state and the "disciple states, " i.e. it relies on their voluntary acceptance of leadership. This embodies the integration function of hegemony, as an instrument for the pursuit of common goals, under the aegis of a hegemony.V? These traits enabled Triepel to develop his thoughts on the directions and modi of hegemonic politics (i.e. the means employed by a leading state).' ?' The latter include the creation of a genuine sense of leadership acceptance, the influencing of domestic laws, the politicaladministrative system and foreign-policy makers. Apart from this, the hegemonic leader maintains these modes through various channels, ranging from warning and advice (as weak forms of interference) to concrete interventions (as the strongest form).172 This concept of Triepel has subsequently been utilized by Wilhelm Grewe in his Powerplay in World Politics. In his opinion, hegemony is a "primordial phenomenon in international relations, "173 i.e. the ability of a state to exercise decisive influence on ideological currents and international developments over a period of time. The effects of hegemony 168 Triepel, see note 166, 41: "[ ...] Fiihrung ist als diejenige Macht zu bezeichnen, die ein starkes MaB von Energie des Willens, aber nicht den Willen zur Herrschaft enthalt, Fiihrung ist [...] gebandigte Macht"; d. also the argumentation on sovereignty and hegemony on page 141, and later 224. 169 It becomes clear at this point that Triepel recognizes an aspect of hegemony linked to political psychology: "Auch das Yolk denkt, will, ist Affekten zuganglich. Nicht nur Menschen, auch Volker und Staaten sind imstande, Sympathien und Antipathien zu hegen, zu lieben und zu hassen, Furcht und Vertrauen, zu hegen, Treue zu iiben und Verrat zu begehen, zu wiinschen, zu hoffen, zu befehlen und zu gehorchen", d . Triepel, see note 166, 10. "Es ist daher nicht nur eine der iiblichen, durch das Bedurfnis nach plastischer Darstellung hervorgerufenen popularen Analogien, sondern es ist wissenschaftlich zulassig und geboten, bei der Behandlung von Willensbeziehungen zwischen verschiedenen Gruppen, insbesondere zwischen verschiedenen Staaten, auch individualpsychologische Begriffe, wie etwa Machtstreben, Nachahmung und dergleichen zu verwenden", 11. 170 Triepel, see note 166, 134 et seq. 171 Triepel, see note 166,222 et seq. 172 Triepel, see note 166,224-239. 173 W.G. Grewe, Spiel der Krafte in der Weltpolitik, 1970, 116.
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are reflected in advantages in military and economic resources, in political power and in the potential to shape international law - when compared to the" disciple states. "174 Such an extensive influence can only be exerted by a state which has been moulded into a stable national unit. 175 The sequencing of international law in Grewe's The Epochs of International Law (1944) adheres to the succession of different hegemonic
states.!" In addition to this, Ludwig Dehio concluded that hegemony and the balance of power embody two extreme types on a continuum, which could accommodate the entire diachronic evolution of the state system, from Charles V to World War II. 177 Wolfgang Windelband similarly resorted to a periodization based on power structures in his history of international law. 178 In contrast to Triepel, however, Grewe does not analyze hegemony embedded into a variety of equal social relations; he rather extracted similarities between his concept of hegemony and the historical succession of power configurations among states. Grewe also distinguishes between hegemony and predominance. According to him, hegemony is marked by the fact that power is not exercised exclusively in a selfinterested manner. Only when hegemonic rule is reduced to abuse as self-interested politics can one speak of predominance, whose rejection is justified. Whereas Triepel requires voluntary adherence as a prerequisite for hegemony, Grewe reverts this assertion into the question when hegemony may be rejected without censure. In Grewe's opinion voluntary adherence is not a constitutive trait of hegemony, and its rejection must be based on its genuine assessment in concrete cases, such as when hegemony develops into predominance.V?
George Schwarzenberger develops a concept of hegemony in his Power Politics based on the premises that the state system is organized along aristocratic lines and subordinated to the power positions of 174 175 176
177 178 179
WG. Grewe, Epochen der VOlkerrechtsgeschichte, 1984,679 et seq. (691). Cf. Grewe, see above, 165,326 et seq. Grewe, see note 174; and Epochs of International Law, translated and complemented by M. Byers, 2000, d. also B. Fassbender, "Stories of War and Peace on Writing the History in the "Third Reich" and after", E]IL 13 (2002),479 et seq. L. Dehio, Gleichgewicht oder Hegemonie, 1997,28 et seq. W Windelband, Die auswiirtige Politik der Groflmachte in der Neuzeit, 1922. Grewe, see note 173,117.
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states.P? A powerful state differs from the remaining sovereign states
through political, economic and military resources, as well as through its capacity to utilize these resources in order to preserve its power.P" As a result, Schwarzenberger categorizes states (on the grounds of their power) into world powers (states possessing a supremacy of power), middle powers and small states. A world power must, furthermore, be marked by several traits upon its ascension, such as: a large enough territory, a certain population density, military capabilities and economic strength.P? These and other features (advantages) will have to be preserved in all policy areas. This striving for universal i.e. absolute power by one single state, with the aspiration to replace the international community, is justified by the need for security.V' A fundamentally different approach for defining hegemony is enshrined in the international law principle of "large areas" (Grossraumprinzip) by Carl Schmitt. He does not delve into the social or historical manifestations of power disparities, but rather demands "territorial i.e. spatial order" for world powers. This notion has been developed in The International Law's Large-Area Order and the Prohibition of Intervention for Extraneous Forces,184 but a complete outline becomes visible only with the publication of The 'Nomos' of the Earth in the International Law of the 'Ius Publicum Europeeum'P> In the opinion of Schmitt the dichotomy between leadership and predominance is not of primary importance, in contrast to the assertion that the exercise of hegemony is centred on a certain space, the latter being an expression of "natural boundaries". This equips Schmitt's concept with a direction, which is fundamentally different to that of Triepel's or Grewe's concepts.186 The linkage of hegemony to space is contrasted with the prin-
180
181 182 183 184
185
G. Schwarzenberger, Power Politics, first edition 1942, second edition 1951, 113 et seq., 127. Schwarzenberger, see above, 121. Schwarzenberger, see note 180, 118 et seq. Schwarzenberger, see note 180, 188. C. Schmitt, Volkerrechtliche Groflraumordnung mit Interuentionsuerbot fur raumfremde Miichte, 1939. C. Schmitt, Der Nomos der Erde, 1988, on Schmitt's being influenced by Bilfinger and Triepel d. M. Schmoeckel, Die Groflraumtheorie, 1994, 117120.
186
Fassbender points out the overlapping terminology, used by Grewe as borrowings from Schmitt, see note 176,479,503.
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ciple of "de-territorialization" .1 87 Both principles pronounced by Schmitt originate from his view of large areas, as a concrete order along biologically deterministic lines (summed up in the term volkisch, which equates the nation with a superior group of human species) in international law, thus revealing the influence of national socialism upon the author. 188 The adherence of Schmitt to th inking in terms of concrete orders, which dates back to the institutional jurisprudence of the Weimar Republic era and feeds on the abstract, general terms introduced by Larenz, is conducive to Schmitt's designating his principle as a concrete order. In his opinion, large areas are more than just inflated small territories. The qualitative difference between both concepts lies in the transcending of a void notion of state territory towards a focus on the Reich ('empire'). It is the latter, and not states, which are the principal subjects of international law according to Schmitt. In this context the Reich will affect state territory, without the total convergence of both notions being obligatory.l"? According to Schmitt, the first successful model of a large-area order had been established by the Monroe-Doctrine, since it is based on the "independence of all American states, on the absence of colonization and on the non-intervention of non-United States forces in this area". This "quasi-legal" (or at least "semi-legal") character of the Monroe-
187 188
189
Schmitt, see note 185, 12. See M. Stolle is, Geschichte des offe ntlichen Rechts in Deutschland, Band 3, 1999, 389-392. Thus, it can be questioned, whether Schmitt's understanding of hegemony can be useful in this context. On the one side, one cannot exclude, that a con cept can bring th e discussion forward, as long as it contains general thoughts apart from being "volkisch". On the other side, it has to be taken into account, that Schmitt based his "volkerrechtliche GroBraumordnung" mainly on the idea of "volkische" legal institutes. Thus, this con cept of "GroBraumordnung" can easily be seen as an derivation of his thinking, which had to be int erpreted in the light of the "volkisch" thoughts. Notwithstanding, this concept wa s based on an universal approach, insofar as he did not mean to restrict its use for one nation. Thus, the fact that this concept was open easily for nationalsocialism int erpretation and therefore particularly dangerous, does not necessarily mean that th e concept as such cannot be ab stracted from its concrete adaptation. Only insofar as absta ction is po ssible, his concept serves as a further example of hegemonic thinking and its dangerous implications for a community of states in general. Schmitt, see note 184,67 et seq .
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Doctrine, as well as the Lebensraum (living space) it created, were to provide a foundation for general legal criteria, and subsequently a rationale for the creation of other spaces like it. 190 Such an interpretation of the Monroe-Doctrine provides actors with a mandate to create an order through law (Rechtsgestaltung), as well as underlining its influence.'?'
bb. Legitimized Hegemony?
Triepel also raises the question whether it is possible for factual hegemonies to be legitimized or restrained by legal provisions, i.e. if there are regulations in general international law which acknowledge or contravene hegemony. These would adhere to the principles of the balance of power and the legal equality among states. The first principle revolves around the prohibition for world powers to attain a supremacy in power resources. The second principle relies on the claim to legal equality in spite of power asymmetries. If, as Triepel outlined, hegemony requires voluntary acceptance, then the principle of state equality will limit the leadership of one single state. The power of a state, fortified by the acceptance of "disciple states," must not increase to the extent where the "totality of the remaining states will not be able to oppose the hegemonic state and its followers». 192 In the end Triepel comes to the conclusion that there are no provisions in general internationallaw which would obstruct the establishment of a genuine hegemony.193 The principle of balance of power among states, however, may ameliorate the hegemony of a single state.'?" Within the framework of Schwarzenberger's thoughts there is almost no room to consider legal impediments to hegemony, since he considered international law a system mainly defined - and determined - by power.l'" Schwarzenberger is therefore searching for ethi190 Cf. also Schmoeckel, see note 185,64-67. 191 On the decisionist aspect of Schmitt see Schmitt, Uber die drei Arten des rechtswissenschaftlichen Denkens, second edition 1993, 21-24. 192 Triepel, see note 166, 212 et seq. 193 Triepel, see note 166, 217 et seq. 194 Triepel, see note 166, 213. 195 Schwarzenberger, see note 180,206, and 224: "International law is so subservient to power politics and it flourishes best where it does not interfere with the international struggle for power", "The State or States which, owing to the aggressive formulation of the objectives of their foreign poli-
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cal criteria, which would provide a basis for the assessment and the justification of hegemony, despite the fact that he doubts that lofty ethical criteria carry sufficient weight to regulate international society. State practice implies that inter-state ethics will only be upheld if they can be utilized to further state interests.l?" Ethical rationales will mainly be employed when political justifications are conducive to a possible decline of reputation.l'" In such cases states would have to comply with the standards they have set, at least in order to keep up appearances. Otherwise, they might be forced into compliance by public opinion.l'" Upon considering all aspects, however, the relevance of ethical principles in international law could neither be described as mono-causal nor as decisive, but they still do succeed in committing states to respecting (if not implementing) them - and they do have an impact on the expansion and development of (international) law.199 b. The Current Debate
Modern analyses are shedding light on various aspects of hegemony. The following sections will single out three aspects, in order to complement the established historical approaches: the first is concerned with the legitimacy of hegemony; the second with its contribution to the maintenance of stability in the international system and the third with the prerequisites for the development of hegemony-based internationallaw. aa. The Legitimacy of the Benign Hegemon
The function of morality, which had been touched upon by Schwarzenberger in his work, comprises the focus of Lea Brilmayer's American Hegemony - Political Morality in a One Superpower World (1994). By
196 197
198 199
cies or to the distrust of their intentions on the part of other States, tend to enforce the law of the lowest level in international society usually belong to the international oligarchy or are on the point of gate-crashing into this select circle ",148 et seq. Schwarzenberger, see note 180, 225. Schwarzenberger, see note 180, 227: "The ideological use of international morality reaches its highe st pitch when public opinion has to be prepared for war or to be sustained in a prolonged struggle". Schwarzenberger, see note 180,227. Schwarzenberger, see note 180,230.
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resorting to the United States as an example, she provides a moral justification for the predominance of one state. 200 In her opinion hegemony denotes the relations among one dominant and several subordinated states - regardless of the fact that there may be states outside this network. 101 Thus, hegemony is not necessarily global, but rather a relative concentration of power "in the hands" of one state. 102 It becomes clear that Brilmayer considers power disparities among states an axiom, while state equality is reduced to legal fiction. 203 She centers her analysis on the structural comparability of governance and the exercise of hegemonic power, and not on the impact of a hegemon upon (legal) structures of the international system.P" Her argumentation commences with a critique of realistic principles, only to develop into a liberal theory of international hegemony, revolving around legitimacy criteria for the predominance of a state. 205 The latter are based on benchmarks which could also apply to the exercise of power within a state. This indicates that Brilmayer views hegemony as a primitive form of governance.P" Both the constitution of predominance, and the discrete instances in which hegemonic power is exercised, require a legitimate foundation. Hegemony generated on the grounds of voluntary consensus alone would still lack a continuing
200
101
202 203
104
lOS
206
L. Brilmayer, American Hegemony, Political Morality in a One Superpower World, 1994. Brilmayer, see above, 16: "Hegemony below, will refer to the relationship
between a dominate state and its subordinates, even if there are states beyond the hegemon's effective reach". Brilmayer,see note 200, 16 et seq. Brilmayer, see note 200, 22: "Governance roles may be created or filled by formally equal participants. In both international and domestic affairs, the political leader plays a dual role, simultaneously a member of society and its head". Brilmayer, see note 200, 20 et seq. Brilmayer, see note 200, 4 et seq.; d . also L. Brilmayer, "Transforming International Politics: An American Role for the Post Cold War World", University of Cincinnati Law Review 64 (1995), 119 et seq. (123). Brilmayer, see note 200, 19: "the hegemon should be evaluated, in other words, as the world political leader that it is, despite its formal differences from domestic governance structure's it has the same sorts of responsibilities to subordinate states that a domestic government with comparable capabilities would have over those within its power".
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moral justification, as single (concrete) acts could be illegitimate, i.e. deficient of an ethical rationale.P" In this context Bri/mayer differentiates between three forms of consensus: contemporaneous consent, ex-ante consent and hypothetical consent. 208 The third form in particular provides leeway for the actions of states, since the latter remain legitimate as long as a "rational (actor) state" has agreed with the steps taken by the "agent state". Thus, the provision of positively evaluated goods, such as stability, order and security by a hegemon will be accorded legitimacy. This applies even to cases where the process of provision has not been supported by a factual consensus at any point of time, since it can be assumed that a "rational (actor) state" would have given its consent. All this implies that a morally justified "global" hegemon would not only pursue its own interests, but also the well-being of the world. Hegemonic power could, furthermore, be exercised in a rather democratic fashion - e.g. via the influencing of multilateral organizations. One major instance justifying the existence of a "benign hegemon," which is frequently being cited and debated, is the United States intervention in Kosovo in 1999.209 Bri/mayer, therefore, does not object to the utilization of political, economic and military coercion, as long as the underlying rationale
207
208
209
See C.A.J. Coady for a critique, which raises the question if these ethical criteria command any power of definition, in: "Evaluating Hegemony", N. Y. U. J. Int'l L. & Pol. 27 (1995), 933 et seq. (935). Contemporaneous consent denotes the consensus at the time of execution of a concrete action, whereas the ex-ante variant precedes action and underpins general norms of behaviour, which favour the action to be taken. Hypothetical consent is materialized when a rational-actor state would have been obliged to agree to the action, Brilmayer, see note 200,66 et seq. M.J. Maeson, "Justification for the NATO air campaign in Kosovo", ASIL Proceedings 94 (2000), 301; S.D. Murphy, "The Intervention in Kosovo: A Law-Shaping Incident?", ASIL Proceedings 94 (2000), 302 et seq.; or d . J. Lobel, "Benign Hegemony?", Chicago j. Int'l L. 1 (2000), 19 et seq. (27 et seq.); G . Nolte, "Kosovo und Konstitutionalisierung: Zur humanitaren Intervention der NATO-Staaten", ZaoRV 59 (1999), 941 et seq. (954 et seq.); B. Simma, "NATO, the UN and the Use of Force", E]I L 10 (1999), 1 et seq. (14 et seq.), on combatting a clear and present danger through a benign hegemon in the post Cold-War era d . W. Kristol! R. Kagan, The National Interest, 2000, 57 (58 et seq.).
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does not exclusively consist of the interests of the hegemon. The hegemonic state is entitled to sanction the misconduct of other states.s'? Brilmayer ultimately comes to the conclusion that a group of liberal democracies, led by a hegemon, recognizes the right to intervention based on its ethical motives for action. Hence, as long as there is no "global" hegemon to enforce an international law of subordinated liberal democracies. One has to differentiate between the international law with the group of liberal democracies led by a justified hegemon and the inter-state law as general, emerging within the intercourse of all states. The latter would govern the relations of states outside the hegemon's scope.l!' bb. Effective Stability
While Brilmayer justifies the predominance of a state by the ethical posture of a hegemon (as long as the latter pursues hypothetically agreed aims), other authors find a rationale in necessities imposed by current international relations. The predominance of a state is considered temporarily inevitable, in order to secure stability within the international system. Such a view is most explicitly expressed in the conviction that the current hegemony of the United States provides the proper protection against a breakdown of the entire international order. 212 In order to prevent this, the United States is obliged to react adequately to the threats posed by "rogue states" and the axis of evil. This is all the more desirable as the relative military weakness of European countries contributes to their incorrect assessment of these dangers. 213 Still other viewpoints define hegemony as a result of regional geographic condi210
211
212
213
Coady, see note 207, 940 et seq.: "If we are told in reply that this form involves the Superpower's exercising a dominant governance role akin to the leadership of a domestic government, but using diplomacy, bribery, sanctions, and violence to achieve what it takes to be good outcomes for people who are not formally its citizens and subjects, then I think we are entitled to ask whether it is really such a good idea, and, if not, whether the attempt to improve on it by, as it were, building upon it, might not be a mistake". For a critical review of the implications of this liberal theory, see J.E . Alvarez, "Do Liberal States Behave Better? A Critique of Slaughter's Liberal Theory", EJIL 12 (2001) 183 et seq. (185 et seq.), W Kristol/ R. Kagan, "Toward a Neo-Reaganite Foreign Policy", Foreign Aff 75 (1996), 18 et seq. (23); R. W Tucker, "Alone with others", Foreign AI! 78 (1999), 15 et seq. R. Kagan, Paradise and Power, 2003,30 et seq.
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tions and the spheres of influence generated by them.F'" Hence the argument that power disparities are needed to maintain an international order encompassing all states not only occupied a prominent position in theoretical constructs on political relations during the Cold-War era, but it also constitutes the backbone of a theory on hegemonic stability, whose application includes present times. 215 The theory of hegemonic stability, however, aims above the delineation of the status quo among states; it strives towards answering the questions on how the well-being of all states might be best advanced and how the relations between international predominance and international cooperation might be defined most precisely. Keohane and Nye, for example, attempt to answer these queries by denoting hegemony as a situation where one state is sufficiently powerful and willing to uphold the essential rules regulating international relations.Ps According to Nye, the conduct of a hegemon is characterized by the implementation of its national interests via the international system it leads. The resulting economic prosperity of the hegemon (as one output) could then benefit all the subordinate states as welJ.217 Hegemony therefore requires the definition of these national interests by the hegemon, as only concrete aims can be pursued suecessfully.218 Within the framework of this theory, the growth of international cooperations is proportionately related to the power advantage of the hegemon, i.e. "[tjhe theory of hegemonic stability predicts that the more one such power dominates the world political economy, the more cooperative will interstate relations be".219 Hence hegemony em-
214 P. O'Sullivan, Geopolitics, 1986,5 et seq.; ].M. Picard, "International Law of Fisheries and Small Developing States: a Call for the Recognition of Regional Hegemony", Tex. Int'l L. j. 31 (1996),317 et seq. (339). 215 H. Bull, The Anarchical Society. A Study of Order in World Politics, 1977, 205-229.
216 R.O. Keohanel J. Nye, Power and Interdependence: World Politics in Transition, 2001, 44. 217 Keohane/ Nye, see above, 39; d. also S. Huntington, "The Lonely Superpower", Foreign Aff 78 (1999), 35 et seq. (39): "[T]he most powerful actors had an interest in maintaining the system." 218 D.P. Calleo, "The US Post-Imperial Presidency and Transatlantic Relations", International Spectator 1 (2000), 69 et seq. (74): "Henry Kissinger used to complain that he never knew what telephone number to call to discover what was Europe's policy. It would be interesting to know what the telephone number might be nowadays in Washington". 219 R.O. Keohane, After Hegemony, Cooperation and Discord in the World Political Economy, 1984,34.
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bodies the solution to the needs of all states; it has a stabilizing impact and contributes to the well-being of all.220
Keohane agrees with the starting point of the theory of hegemonic stability, i.e. the necessity of a hegemon to maintain int ernational order. 221 But he doubts that there is a causal connection between hegemony and international cooperation, and he warns against considering economic power the decisive element of hegemony. In his opinion, a negative trade balance does not necessarily challenge the power supremacy of a state. 222 For him hegemony is to be defined as a temporary condition, conducive to the establishment of efficient institutions, which must subsequently evaporate - in order to ensure the participation of all states. From this point, international cooperation no longer depends on the existence of a hegemon, but becomes self-enforcing.V' These views are supported by Krasner, who (as a representative of the regime theory) emphasizes that existing regimes may neutralize power asymmetries and power shifts.224 Nye criticizes the theory of hegemonic stability as a construct overly dependent on its definition of hegemony: "If hegemony is redefined as the ability and willingness of a single state to make and enforce rules, furthermore, the claim that hegemony is sufficient for cooperation becomes virtually tautological".225 Thus Nye complements this theory with the core ideas of political economy, in order to identify the driving forces for hegemonic action - and in order to outline given power constellations. Such a step is based on the observation that a state which does not only elevate its own interests to "national interests," but also has empathy for others, faces fewer difficulties in setting international 220 ]. Nye, Bound to lead. The changing Nature of American Power, 1990, 9 et seq.; R. Gilpin, War and Change in World Politics, 144, or see Calleo, see note 218, 79: "The combination of excessive power and governmental indiscipline is not good for the US, the Westor the world in general. The US needs to be contained - not by a new enemy,but by an old friend". 221 Keohane,see note 219, 31. 222 Keohane, see note 219, 33, also d. S.D. Krasner, "United States Commercial and Monetary Policy: Unravelling the Paradox of External Strength and International Weakness", in: P.]. Katzenstein (ed.), Between Power and Plenty: Foreign Economic Policies of Advanced Industrial States, 1978, 51 (68 et seq.). 223 Keohane, see note 219,32 . 224 S.D. Krasner, "Structural Causes and Consequences of regimes as intervening variables", in: id. (ed .), International Regimes, 1983,355 (357). 225 Keohane, see note 219,38 et seq.
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rules. 226 Thus it appears only logical to develop a concept of hegemony tracing the structure of the hegemon's calculations. Keohane consequently resorts to defining hegemony as the will and ability to lead,227 in order to outline the conditions under which a powerful state invests resources into creating rules and institutions. cc. Hegemonic International Law
Several authors not only detect traces of hegemony in international law; but also include the ability to influence the creation of international law into their definitions of hegemony. Hence, one cannot speak of a hegemonic constellation within the international system unless a power shift among great powers establishes one country as primus inter pares. Such a position will then enable it to achieve its aims in the domains of economy, politics, military might, diplomacy and culture - including the codification of adequate rules in these areas.228 This is the fashion in which superpowers have shaped international law in the past, prior to the moment when it became binding for them and for less influential states.P? Thus, hegemony enables the dominant state to affect internationallaw-making, i.e. it embodies the prerequisite for hegemony-based international law. Apart from this, (strengthened) hegemony represents a result of such laws, since they "petrify" the power disparities among states. It must be borne in mind that international law alone cannot alter the prerequisites for hegemony, although the latter affects a state's orientation with respect to international law and vice versa. Only an international order based on human rights could restrain hegemony.P'' The positions presented so far, share the assumption that internationallaw is influenced by hegemony, without delving into the particularities of this process. Several authors have attempted to outline this procedure, by tracing how hegemonic leadership affects the stage of legal aim formulation and by identifying various channels of influence. 226
227 228
229
230
Keohane, see note 219, 131. Keohane, see note 219,39. 1. Wallerstein, The Polititics of the World Economy: The States, the Movements, and the Civilizations, 1984, 38 R. Gilpin, War and Change in World Politics, 1981, 29 et seq. P.W. Kahn, "American Hegemony and International Law. Speaking Law to Power: Popular Sovereignty, Human Rights and the New International Order", Chicago]. Int'l L. 1 (2000), 1 et seq. (16 et seq.) .
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This is essentially conducive to the substantiating of a "hegemonic international law".2Jl A very general definition of the main goal of hegemony in international law would thus be the adaptation of the latter to the objectives of the hegemon.P'' This raises the spectres of increasingly obscure international laws, of the increasingly incoherent conduct of both the hegemon and its subordinated states and of the increasing loss of legitimacy as regards international Iaw-making.P'' The shift of international law to a hegemony-based international law, i.e. the undermining of the principles of state equality and state sovereignty, will generate demands for the annulment of the principle of non-intervention (as regards the domestic affairs of states) .234 This goal can be achieved in three ways: First, states may establish interventionary practices outside the bounds of existing international law.235 Second, the hegemon may refuse to comply with international treaties or regimes which prune its power, or enable "smaller" states to form coalitions and resist the will of the hegernon.Ps In such instances the latter can abstain from the signing and ratifying of a multilateral treaty, and accept merely those provisions as customary law which serve its interests. Or the hegemon can declare certain treaties to be an expression of the political will, but not a legally binding agreement. In addition to this, it can utilize existing international regimes and organizations to fortify its power,237 or withdraw from them altogether.P" The cancellation option also applies to international treaties. Then other states may
231 D. Vagts, "Hegemonic International Law", A]IL 95 (2001), 843 et seq. 232 Vagts, see above, 843. 233 G. Nolte, "The Single Superpower and the Future of International Law", ASIL Proceedings 94 (2000), 65. 234 Vagts, see note 231, 845. 235 Vagts, see note 231,846: "Indeed, even without the United Nations' blessings we have projected military force into the areas outside Latin America such as Sudan, Afghanistan, Libya, and the former Yugoslavia. A true hegemon would have reverted to the practice of overt interventions and would have demonstrated its unapologetic and implacable will by not cancellingair cover for the Bay of Pibs invasion. Whateverchanges that would require international law would have been made". 236 J. Joffe, "Who's afraid of Mr. Big?", National Interest of 1 July 2001, 43 (48); Vagts, see note 231,843,846. 237 On the use of this terminology see Vagts, see note 231,846 et seq. 238 R.W Cox, "Labor and Hegemony", International Organization 31 (1977), 385 et seq. (388).
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be excluded from international institutions-" or treaties by their verbal categorization.c'? As a third path to inter-state interference hegemons can alter the general purview of a possible customary-law principle via the adequately modified implementation of the latter. Thus, "[a]bstention by a hegemonic power does seem to be enough to keep it from being general".241 The chances of non-hegemonic states escaping compliance as well are not helped by such tactics. Powerless states, unlike hegemons, are frequently strong-armed in compliance with treaty provisions, which had previously been accepted and elevated to customary law. In contrast to this, a powerful state can violate the latter and claim that its own conduct constitutes new international law.242 This decisive amount of influence on international law-making becomes conspicuous in cases where legal developments (hypothetically) hinge upon the reaction of a single state.243 Additional light was shed on this issue by models based on power asymmetries during the multifarious creation of customary law. Whereas one such model focuses on inter-state cooperation, another recently concentrates on "rogue states". The latter is founded on the assumption that there are fewer civilized states, which are less trustworthy as regards contractual compliance. As such, these "spoilers" create incentives for other states to follow suit. 244
2. Law Creation through Leadership and the Role of Reaction Hegemony represents a concept of power politics which - utilized within the community of states - affects interactions and consensusforging within the latter. Hence stem its legal implications. It is an obvious fact that hegemony influences international law; no dissenting 239 Cf. Huntington, seenote 217,38. 240 Cox, see note 238, 412 et seq. The author quotes the United States withdrawal from the ILO as an example. 241 Vagts, see note 231,847. 242 Vagts, seenote 231, 847. 243 T.]. Farer, "Beyond the Charter Frame: Unilateralism or Condominium", AjIL 96 (2002), 359 et seq. (360), "The normative consequences of 9/11 are likely to depend on the what and how of United States action". 244 ].L. Goldsmith/ E.A. Posner, "A theory of Customary International Law", U. Chi. L. R. 66 (1999),1113 et seq. (1136 et seq .).
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opinions are to be found in the literature on this issue. Such an influence on international law certainly does not contravene the political quintessence of hegemony. Political influence is exerted to affect the manner in which political will is generated in other states, and ultimately any international legal order based on the will and actions of its "Member States" will also be affected. It is more difficult, however, to ascribe decisive causal weight to such interference within the process of international law-making, as intra-state political will is always a result of several factors. Apart from this, the scope of hegemony is also dependent on the reactions of targeted states. What is certain, nevertheless, is the fact that hegemony rests on the ability of the hegemon to affect the perceptions and visions of other states. This could be interpreted as proof in support of Triepel's dominance-free notion of hegemony. States would actually subordinate themselves voluntarily, due to a change of the convictions they entertained prior to this time, without coercion. Such a process requires the hegemon to abstain from the latter, of course. It outlines requirements which the hegemon must meet in order to ensure compliance. This also applies to the nature and clarity of its goals, and to the means employed to achieve these. The means will almost certainly include the shaping of international law-making, within an order embodying an "international society". If the order, however, corresponds to an "international community," this kind of coercion-free hegemony will become problematic in cases where a consensus-based principle may fall prey to the agendasetting privilege of a hegemonic state. Another aspect of importance is the non-static, dynamic nature of hegemony, as the latter is a relational phenomenon (generated via interactions among states). This contributes to the difficulty of drawing a clear distinction between instruments creating and instruments maintaining hegemony. It also becomes less easy to determine when hegemony commences. The least complicated categorization of instruments of hegemony focuses on their efficiency, i.e. their ability to affect the will of other states (when employed to this purpose). On these grounds Triepel has included a considerable number of instruments in his "starter-kit" for hegemons: from government statements and advice directed at other states (i.e. legally non-binding declarations, which nevertheless have an impact on international law as verbal assertions of hegemonic leadership),245 via actions within international organizations, the (withholding 245 See above, III. 1. a. aa.
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of) signature of international agreements, the shaping of customary international law, to the self-serving interpretation of international law proper. 246 This range of instruments not only illustrates the manifold manifestations of hegemony - it also underlines its varying levels of intensity. It, furthermore, becomes clear that the ethical justification of hegemony is not a monolithic argumentation at all. Certain types of "advice" or "recommendations" offered by the hegemon may be justified, whereas more concrete and coercive interventions may not only be unethical, but downright illegal. The requirement for an ethical rationale, however, may be relativized if hegemony is understood (in the sense of Keohane's definition) as a temporary state of affairs, established in order to secure stability. However, it has to be emphasized that such a concentration on devising justifications for hegemony neglects the question whether hegemonic leadership alters the ethical principles of the dominant state. Does power supremacy undermine the morality which subsequently determines action? Any apology of hegemony runs the risk of ignoring that its effects on an inter-state community may well exceed the immediate aims of the hegemon. This is due to the tendency of hegemony to affect the legal level and perpetuate the monopoly of the hegemon over international law-making. Such a development contravenes the principle of the sovereign equality of states, which does not represent a mere legal fiction, but an evolutionary goal of any international order whose aspirations include cooperation as well as stability. This may not inoculate such a system against change in the sense of power shifts, but it specifies hegemony as a power-based relation of leadership in which the hegemon is attempting to affect international law by increasing his own competencies, while avoiding the alienation of the "disciple-states".
3. The Stigmatization of States as a Concept of Leadership a. Defining the Community Interests The designations "rogue state" and "state sponsor of terrorism" are always used in the context of national security. They are employed to label states posing the most acute threats since the end of the Cold War.
246
Cf. Morgenthau, see note 56, 258.
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With regard to the United States they have always revolved around states' support of international terrorism, the proliferation of WMD and their carriers (long-range or inter-continental ballistic missiles). In its annual reports on the Global Patterns of Terrorism the United States DoS has accordingly stressed the importance of counter-strategies and measures, which the United States and the international community should implement against these "rogue states" and "state sponsors of terrorism". The utilization of these derogatory formulations also made it clear that the United States Government attributed negative traits to the designated states. The establishment of a dichotomy between the latter and the international community emphasized the exclusion of branded countries from the "family" of states. The linkage of the "rogue state" label to the status of a "public enemy" of the United States became even more explicit through the publication of the new National Security Strategy in September 2002, when even pre-emptive military measures were no longer ruled out. This paved the way for the attainment of a goal, which was implicitly formulated in the mid-nineties of the preceding century. Apart from all this, the (non-lutilization of these designations may shed light on the conduct of other states that has to be expected in their interaction with the state utilizing stimatization. Thus, the use of designations supports to predict other states reactions. The United States withdrawal from the ABM-Treaty can serve as an illustrative example in support of this hypothesis, as Washington justified its action with the threats posed by "rogue states" and the extraordinary circumstances they helped to create. Russia accepted, this rationale, in spite of the fact that opinions on the actual threat posed by "rogue states" diverge with respect to United States assessments. A withdrawal from the Treaty would have been possible without resorting to this designation, but the United States was fully aware of the fact that any other country employing the same terminology would not contest this kind of rationale; it would rather "accept" the threat assessment. It was, furthermore, possible for the United States to prevent an excessive deterioration of its political reputation in the counterpart-state (Russia) and the Member States of the international community in general. The security-linkage of the defamatory labels embodies the manifestation of a clearly-defined goal: the identification of states demanding a different security strategy from all other countries, as the former do not strive towards the establishment and maintenance of world peace and international security. This implicit threat attribution, however, is
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not only based on the "functional deviation" of designated states, but on the intentional exclusion of such states from the community of democratic countries. This premeditated isolation is founded on the fact that each social order can only remain unchallenged if it advances the internalization of agreed upon values. Hence "civilized" states will consider the achievement of a certain "level of civilization" a decisive accession criterion.
It remains questionable, nevertheless, if there can be certain states within the international community which would be vested with the unilateral power to enforce the fulfillment of the accession criteria (i.e. values). The potential for contestation is amplified by the fact that the internalization of values has to rest on a procedure securing the respect for the values themselves; their being respected, i.e, the essence of a value will actually demand "compatible" procedures. Thus a democracy brought about by coercion would hardly live up to the ideal notion. b. Stigmatization as a Legal Argument The legal acts of the United States contain the reference "state sponsors of terrorism", but not the designation "rogue states". The latter is still being employed within international relations, in support of legal argumentation. This is also illustrated by the United States withdrawal from the ABM-Treaty and the new National Security Strategy. The United States Government announced the cancellation of the ABM-Treaty on 13 December 200I,247 Pursuant to article XI, the withdrawal was to become effective after six months,248 but only if one of the Contracting Parties could prove that "extraordinary events related to the subject matter of this treaty have jeopardized its supreme inter-
247 ABM-Treaty Fact Sheet, Statement by the Press Secretary, Announcement of Withdrawalfrom the ABM Treaty, 13 December 2001. 248 Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems of 26 May 1972, UNTS Vol. 944 No. 13446, «Art. XV: (1) This Treaty shall be of unlimited duration. (2) Each Party shall, in exercising its national Sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this treaty have jeopardized its supreme interest. It shall give notice of its decision to the other Party [during the] six month prior to withdrawal from the Treaty. Such notice shall include a statement of the extraordinary events notifying Party regards as having jeopardizedits supreme interests".
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ests". The United States argued, among other things, that "rogue states" had brought about a fundamental change, as regards its nationalsecurity interests. The statement announcing the withdrawal literally said that: "[r[he circumstances affecting United States national security have changed fundamentally since the signing of the ABM-Treaty in 1972. The attacks against the United States homeland on September 11 vividly demonstrate that the threats we face today are far different from those of the Cold War. [... J Today, our security environment is profoundly different. Today, the United States and Russia face new threats to their security. Principal among these threats are weapons of mass destruction and their delivery means yielded by terrorists and "rogue states"."249 Consequently a new threat assessment (centring on "rogue states") required different counter-strategies, and these could no longer be subordinated to provisions drafted in 1972.250 Prior to this, the United States had attempted to effect a mutual withdrawal from the Treaty. This had been accompanied by warnings that Russia had better not stall United States missile tests (waiting in the pipeline) by dragging on negotiations on the withdrawal.P! In the early stages of this process Russia had threatened to equip its ballistic missiles with multiple warheads in case of a unilateral United States withdrawal.W Russia justified this threat by declaring it would no longer feel obliged to honour the (never ratified) START-II Treaty, which prohibited the equipment of re-entry vehicles with multiple warheads.P!
249
250
251 252 253
ABM Fact Sheet, Announcement of Withdrawal from ABM Treaty, 13 December 2001, see also Response to Russian Statement of United States ABM Treaty Withdrawal, Statement by the Press Secretary, 13 December 2001, . Wolfowitz/ Kadish, Testimony Before the House Armed Services Committee on Ballistic Missile Defense, 19 July 2001, -chtrp./zwww.defenselink. mil>, accessed on 14 August 2001; d. also International Herald Tribune of 4 May 2001, "China Warns "Weak" Bush over Shield Plan;" Myers/ Glanz, "Pentagon set to accelerate Development of limited Missile Defense, ibid., 4; and "rogue states" of America, Why Bush Needs the Bad Guys", The Guardian of 12 March 200l. Keesing's Records of World Events 47 (2001),44429. Archiv der Gegenwart 71 (2001),44825. On the debate also cf. the articles, "Strategisches Denken", Frankfurter Allgemeine Zeitung, 16 June 2001, 11, which warns of an excessive rnilitari-
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This snapshot of the negotiations indicates that the formulation "rogue states" was used as an argument to annul the validity of the ABM-Treaty. Apart from this, the designation is often used in attempts to convince other states of the severe threat posed by "rogue states" and nuclear WMD, and the need for effective and timely counter-measures, as: "We must be prepared to stop "rogue states" and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends; [...] We must deter and defend against the threat before it is unleashed; [...] given the goals of "rogue states" and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. [...] We cannot let our enemies first. [...] But deterrence is less likely to work against leaders of "rogue states" more willing to take risks, [...] The overlap between states that sponsor terror and those that pursue WMD compels us to action. [...]".254 The scope of this new threat and the resulting urgency for action ultimately require the consideration of pre-emptive action, as the following excerpt reveals: "To for[e]stall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively. [...] The United States will not use force in all cases to pre-empt emerging threats, nor should nations use pre-emption as a pretext for aggression. Yet in an age where the enemies of civilization openly and actively seek the world's most destructive technologies, the United States cannot remain idle while dangers gather".255 These pre-emptive options require, of course, adequate measures and structures to increase security and readiness. Otherwise the ultimate goal of any such option (the elimination of threats to the United States and its allies) may not be achieved. It, furthermore, must to be stressed that each step of this sequence has to conform to the requirement that: "[tjhe reasons for our actions will be clear, the force measured, and the cause just".256 zation of Bush's foreign policy. On the negotiations between Bush, Powell, Rumsfeld and the European Union, see "Schutzschild oder Miihlstein?", Frankfurter Allgemeine Zeitung, 11 June 2001, 16. 254 National Strategy for HomelandSecurity, 14 et seq. 255 Ibid., 15. 256 Ibid., 16.
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Apart from this, several members of the House of Representatives had sponsored the Joint Transatlantic Security and NATO Enhancement Resolution of 2002, which emphasized the relevance of NATO for the fight against the threat posed by "rogue states". Article 12 (2) of the Resolution, which had been lodged with the United States Congress on 27 June 2000, stipulates that: "NATO must act to address new post-Cold War risks emerging from outside the treaty which are in the interests of preserving peace and security in the Euro-Atlantic area, including risks from "rogue states" and non-state actors possessing nuclear, biological, or chemical weapons and their means of delivery [...]".257 A few months prior to this, President Bush had welded North Korea, Iran and Iraq into an "axis of evil" during his State-of-the-Union Address on 29 January 2002,258 while stressing that the war against terrorism would not be limited to these states. The United States Government actually underscored that the United States would do more than "deal" with those protecting, supporting and harbouring terrorists - it would engage in continuous, pro-active warfare against international terrorism. This means that all states had to consider their positions on this "battlefield," following 11 September 2001. Hence: "America is determined to prevent the next wave of terror. States that sponsor terror and pursue WMD must stop. States that renounce terror and abandon WMD can become part of our effort. But those that do not can expect to become our targets".259
It becomes increasingly clear that pejorative designations are part of an argumentation, which strives to convince foreign governments of the danger emanated by the labeled states. The new National Security Strategy (September 2002) only amplifies this finding, as "rogue states" and their inherent threat potential, i.e, aspirations to acquire (or the possession of) WMD, and the support of international terrorism, have
257 107 Congress, 2nd Session, H.R.E 468 of 27 June 2002, lodged by House Representatives Gallegly, Bereuterm, Lanots and Cox. 258 The President's State of the Union Address of 29 January 2002, . 259 Cf. also, International Herald Tribune, 8 May 2002, "Cuba Makes Germs for Use in War, United States Says", or The Guardian Unlimited, 7 May 2002, "War on Terror May Extend to Cuba".
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to be countered prior to its crossing the line from potential to concrete capacities being utilized.P?
It cannot be confirmed with certainty that the adoption of these designations by other states indicates their sharing the United States' convictions. An argument in favour of this supposition could be that a state adopting this terminology (e.g. Russia upon the cancellation of the ABM-Treaty) is also convinced of the threats posed by "rogue states". Such a view, however, comes too close to the standpoint of the United States. One of the many purposes attached to such a transfer is more likely a threat perception equal to that of the United States or, if this is not attainable, other states should tolerate United States security measures, either due to the logically consistent and transparent premises on which they rest, or because there may not be any credible alternatives dealing with a threat which cannot be discarded entirely. All in all, it can be said that the United States is resorting to the usage of "rogue states" in order to convince other states of the correctness of their identification of dangerous countries. This is, after all, the rationale for a special United States security strategy being employed with regard to such threats. Apart from this, the denotation "rogue states" is also utilized to create a legal framework for the United States National Security Strategy, or to alter the existing legal framework affecting the United States (such as the cancellation of the ABM-Treaty). The formulation is used to emphasize that there are countries which are fundamentally different, and hence entitled to a different kind of treatment. Thus, at the legal level, the formulation is being employed as a rationale for the fact that United States reactions to this kind of danger may not be restrained by certain legal provisions. c. The International Response to the Classification of "rogue states"
Relations among states can only be considered an expression of leadership if the reactions of non-hegemonic states signal acceptance of this leadership. Reactions to a designation like a "rogue state" already indicate that the level of acceptance varies. Hence many of the states, which have appropriated this formulation may stress the fact that it is not their own invention. A country which does so implicitly is the United Kingdom, since the British Government stopped short of adopting the" axis
260
The National Security Strategy of the United States of America, September 2002, 14-16.
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of evil" in addition to "rogue state" - opting for "major states of concern" instead. Other countries which use "rogue state" mainly for states listed as sponsors of terrorism by the United States include Israel, the Ukraine, Botswana and Sierra Leone. It has to be emphasized, nevertheless, that Israeli usage stands out for placing the modifier rogue under quotation marks. This does not entail that Israel opposes the isolation of designated states, which the United States Government intends to achieve by wielding this "weapon." Then, there are states like Afghanistan, Egypt, Ethiopia, India and Pakistan, which use the formulation "rogue states" for other countries than those listed by the United States Government. This does not denote a complete decontextualization, however, India, for example, has been demanding that Pakistan be included in the DoSlist. Still other states, like France , Russia and China mark the designation "rogue state" as part of the United States security strategy, and not a product of domestically generated parlance. These states also frequently voice disagreement with the United States strategy towards "rogue states". Germany highlights its different lexical approach in a similar context, by not adopting the designation - while recognizing that it exists as a label for countries occupying a particular position in United States security policy. Berlin abstains from voicing explicit criticism of this practice. These "routines" of all states were only shaken up in case of the introduction of the "axis of evil" - as can be demonstrated by the reaction of France. If one remains at the lexical level, it can be said that pejorative designations for states do not muster enough support to substantiate a leadership relation. Such a (superficial) analysis would obliterate the distinction between linguistic denotations as a manifestation of hegemony and their validity as notions of international customary law. The latter semantic aspect, should it be embraced, would require the usage of the designations in conformity to that of the United States Government. Such a prerequisite, however, would obscure the fact that the hegemon is attempting to influence the will of other states prior to the formalized development of international law. This implies that the benchmarks for measuring the acceptance of hegemony have to be lowered to the level where acceptance is present, i.e. where non-hegemonic states do not criticize the usage of stigmatizing denotations. This may include cases where states adopt the latter, while underscoring their foreign origin (i.e. their embeddedness in the United States security strategy) and as-
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cribing different or less (legal) weight to them. Another dimension complementing this issue lies in the fact that the usage of statusdesignations (as part of a hegemon's national security policy) does not necessarily demand universal application in order to be effective. It suffices that such formulations are recognized at the international level, upon discussing the threat potential of certain states. The benchmark will eventually be met if countries not only adopt a terminology to signal a lack of criticism, but rather if they use it in spite of divergent opinions on the acuteness of a threat and the quality of countermeasures to be taken. Against this kind of backdrop the usage of statusdesignations acquires particular prominence, up to a point where it influences the officials of even those states which do not share the assessment implied by the designations.P! A different insight into the (non-)existence of a hegemonic configuration is obtained when several states explicitly criticize the use of a derogatory denotation, as has been the case with the "axis of evil" (in contrast to "rogue states" and "state sponsors of terrorism"): no other state adopted the formulation. According to a merely pragmatic/lexical analysis, the conclusion would be that leadership acceptance has been withheld in this case. The usage of "rogue states" and "state sponsor of terrorism" contravene the finding above; their adoption by other states (even while qualifying them as part of the United States security strategy) may be conducive to positioning designated states in the spotlight of the security policies of the adopting countries, even via renouncing the United States threat assessment. This illustrates that pejorative formulations invariably influence the creation of the political will of other countries rather than the sending state. The reference" axis of evil" has done so, too, in a direction divergent from the aims of the hegemonic state. Hence it cannot be considered a manifestation of hegemony, since the latter requires the acceptance by non-hegemonic states. 261
This mechanism is described in a different context by M. Lazarus-Black! A. Hirsch, "Performance and Paradox: Exploring Law's Rule in Hegemony and Resistance", in: id. (eds), Contested States, 1994, 1 (10): "Although some people seek inclusion in legal processes for specific ends, others 'get included' in the law quite implicitly through the legalities that hegemonically organize their lives. In both cases, people regularly appropriate the terms, constructs, and procedures of law in formulating opposition. For example, colonial subjects protested their subordination through domestic documents which incorporated, often inaccurately, the language of colonial law".
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I~
The Creation of Second-Rate Legal Status in International Law? The United States utilized its influence to stigmatize states to which it ascribed a considerable threat potential, and to influence the behaviour of third countries towards this group. These measures represent a manifestation of hegemony, since the unilateral classification of states is to expand the scope and range of actions by providing a legal rationale for it. Within current debates on security the evolution of a second-rate legal status can be traced on the grounds of the new National Security Strategy of the United States and its attempts to create new categories of threats endangering a state. The National Security Strategy, for instance, justifies the application of military coercion to "rogue states" (as they pose an acute threat) even outside binding legal rules. This implies that the "rogue states" cannot claim the full protection of their sovereignty through the prohibition to employ violence in inter-state relations. Consequently, the legal status of targeted states would change into a new category, which isolates them from all other states, thus challenging the principle of sovereign equality. The war against Iraq in 2003, however, illustrates that so far the international community has not accepted a reduction for justification for military intervention as contained in the National Security Strategy. The listing of countries as "state sponsors of terrorism" also begs the question of how much of an impact this unilateral identification and punishment process can have on international efforts to combat terrorIsm.
1. Pre-emptive Self-Defence against "rogue states" a. The New National Security Strategy President Bush has repeatedly stressed the acute threat posed by "rogue states" , his State-of-the-Union Address of February 2002 being a particularly explicit example of this. This danger is to be countered by the new National Security Strategy (September 2002) and its broadened and deepened focus on "rogue states". The Strategy seems to consolidate a "paradigm shift," which
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had been sporadically implied in previous government statements.P? This policy shift will not stop short of preventive military measures: "F or centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. [...] We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries. [...] The United States has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security. The greater the threat, the greater the risk of inaction - and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack".263 This contravenes Article 2 (4) of the UN Charter, which prohibits states to threaten or employ violence in inter-state relations, with the aim to affect the territorial integrity and political independence of another state or to violate any other goal of the United Nations. In addition to this, the IC] has explicitly outlined the purview of this provision in its rulings in the Nicaragua Case. 264 According to the Court, Article 2 (4) embodies the benchmark for the admissibility of inter-state military violence. 265 The UN Charter recognizes two exceptions to the prohibi262 M. Weller, "The Changing Environment for Forcible Responses to Nontraditional Threats", ASIL Proceedings 92 (1998),177 et seq. (184 et seq.), on changes in Un ited States foreign policy after 11 September 2001 also W.R. Mead, Special Providence, American Foreign Policy and how it changed the World, 2002, 56 et seq., 79 (306 et seq.); Nye, see note 220, who proposes a "strategy based on Global Public Goods," which would rest on the following six issues, 147: "(1.) Maintain the balance of power in important regions, (2.) Promote an open international economy, (3.) preserve international commons, (4.) Maintain international rules and institutions, (5.) Assist economic development, (6.) Act as convenor of coalitions and mediator of disputes", see also his interview for the Frankfurter Allgemeine Zeitung, 23 April 2003, 5: "Notwendig ist eine Diskussion tiber das Volkerrecht", zum Verhaltnis zwischen Unilateralismus und Multilateralismus. 263 See note 260, section V, 15. 264 Case Concerning Military and Paramilitary Activities in and against Nicaragua ICJ Reports 1986, 14 et seq. (100 et seq. paras 190-192); or ILCYB 1966-11,247, for a reference to the ILC Comment on article 50 of the Draft on treaty law. 265 Case Concerning Military and Paramilitary Activities in and against Nicaragua, see above, 102, para. 193: "The general rule prohibiting force allows for certain exceptions", also d. Jenningsl Watts, see note 66,8, (§ 2).
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tion: one being the right to self-defence (Article 51) and the other the use of violence authorized by the UN Security Council (Chapter VII). The United States National Security Strategy outlines a pre-emptive right to self-defence against "rogue states", while failing to delineate whether counter-measures against "rogue states" could be based on a resolution by the UN Security Council, just as it fails to delve into military interventions founded on a violation of resolutions, or the activation of a mandate contained in past resolutions.t'" 267 The National Security Strategy conveys the impression that it does not attempt to push back the boundaries set by existing or future resolutions. The notion of "rogue states" is being employed exclusively to justify self-defence against the threat these states pose. Thus, the designation can only be employed as an instrument of hegemony within existing laws on self-defence. The validity of the right to self-defence against an armed attack has been enshrined in Article 51 of the UN Charter. 268 Another explicit rule on the prerequisites for self-defence dates back to 1841. The then incumbent United States Secretary of State Daniel Webster said in connection with the Caroline Case that: "[i]t will be for the Government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberatiori'V''? The IC} confirmed the validity of the criteria of "necessity" and "proportionality" - contained in Webster's formulation - during its deliberations on the Nicaragua Case in 1986. 270 On the grounds of the definition of aggres-
266
267
268
269
270
The air force operations of 2 August 2001 in Northern Iraq were denoted by President Bush as "fully in accordance with established allied war plans," Keesing's Records of World Events 47 (2001), 44320. Cf. the International Herald Tribune, of 11 October 2002, 4 and 8, also d. the Press Statement on the signing of the "Iraq Resolution" of 16 October 2001, at , accessed on 17 October 2002. Case Concerning Military and Paramilitary Activities in and against Nicaragua, see note 264. Cf. D. Webster's correspondence on 24 April 1841, printed in: M. Dixon/ R. McCorquodale, Cases and Materials on International Law, 2000 (562), also d. Shaw, see note 84,787-791. Case Concerning Military and Paramilitary Activities in and against Nicaragua 1986, 14 et seq. (103 para. 194), d. also Legality of the Threat or Use of Nuclear Weapons, Ie] Reports 1996, 226 et seq. (245 para. 41). For a detailed account of the standing of the right of self-defence in legal provi-
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sion by the UN General Assembly, the ICJ clarified that not every violation of Article 2 (4) of the UN Charter, but only an armed attack justified self-defence."! For an assault to qualify as an "armed attack" the assailant does not necessarily have to be a state, despite the fact that such a constellation underlies Article 51 of the UN Charter.P? Within its ruling on the Nicaragua Case, the IC] had come to the conclusion that even the deployment of armed bands or groups into another country, which has been conducted "by or on behalf of a state,"273 may provide a cause for self-defence.I" according to the Assembly's definition. Following the adoption of S/RES/1368 (2001) of 12 September 2001, i.e. the "inherent right of self-defence" mentioned in its Preamble, there has been an increase in those who focus on the impact of an attack (the damage and the harm caused) in order to determine if it constitutes an armed attack, or equals its weight. 275 The operative section of Resolution 1368, however, refers to the assaults as "terrorist attacks" - not armed attacks. Hence this Resolution cannot answer the question at
sions on peace-keeping and peace-enforcement, see: N. Krisch, Selbstuerteidigung und kollektive Sicherheit, 2001. 271 Case Concerning Military and Paramilitary Activities in and against Nicaragua, 14 et seq., (103 para. 195). 272 Shaw, see note 84, 789. 273 A/RES/3314 (XXIX) of 14 December 1974, Annex, article 3 lit. (g). 274 Case Concerning Military and Paramilitary Activities in and against Nicaragua, see note 264, "The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces", on the attribution of private acts of violence see the various constellations proposed by C. Kref], according to the level of state involvement, Gewaltverbot und Selbstverteidigungsrecht nach der Satzung der Vereinten Nationen bei staatlicber Verwicklung in Gewaltakte Privater, 1995, 129 et seq. 275 C. Walter, "Zur volkerrechtlichen Beurteilung der Reaktion der USA auf die Terroranschlage auf New York und Washington", (not yet published) 4, 5. For a different opinion see C. Stahn, "International Law at a Crossroads? The Impact of September 11", ZaoRV 62 (2002), 183 et seq. (214), who interprets the Resolutions 1368 (2001) and 1373 (2001) as having clearly subsumed terrorist acts among armed attacks in the sense of Article 51 of the UN Charter.
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which point a terrorist attack meets the "benchmarks" implied in Article 51 UN Charter. The NATO-Council has been more explicit in its actions, as it decided to evoke article 5 of the Washington Treaty (1949) on 12 September 2001, should it be proven that the attacks were conducted by outof-area perpetrators - which was substantiated by 2 October 2001. 276 Five days later the United States commenced Operation Enduring Freedom, while evoking Article 51 UN Charter as a rationale. Although the assailant, therefore, does not has to be a state, the armed attack serving as a casus belli must be attributable to the state against which measures of self-defence are initiated. 277 In order to prevent an escalation of violence, Article 51 of the UN Charter provides protection for both the assailant and the defender. But these mechanisms are based on the assumption that self-defence has been triggered by a concrete armed attack. Article 51 does neither contain a rationale for self-defence when no attack has occurred, nor does it explicitly limit self-defence to cases of ongoing armed attacks. The article also fails to set out a "statute of limitation" after whose expiry selfdefence is no longer acceptable. In contrast to this, the United States National Security Strategy attempts to justify the need for pre-emptive measures against "rogue states", due to their unpredictability. Another reason lies in the assessment that Cold-War-type deterrence will not work in such cases, since governments of "rogue states" are less risk-averse.V" Hence the criteria on proving an "imminent threat" (in absence of a concrete armed at276
277
278
Doc. S/946 of 7 October 2002; Keesing's Records of World Events 47 (2001), 44391; d . the resolutions empowering the President to undertake measures against those responsible for the attacks, Pub.L. 107-40, Section 1 and 2 of 18 September 2001, see also D. Abramowitz, "The President, the Congress, and the Use of Force: Legal and Political Considerations in Authorizing Use of Force against International Terrorism," Harv. Int'l L. j. 43 (2002), 71 et seq. (74 et seq.). New benchmarks for the attributability of terrorist acts by private actors have been developed by C. Tietje/ K. Nowrot, "Volkerrechtliche Aspekte militarischer MaBnahmen gegen den internationalen Terrorismus", Neue Zeitschrift fur Wehrrecht 44 (2002), 1 et seq., these authors modify the essential criterion of effective control, thus, each state action, which is obviously executed in support of terrorism and enables private actors to launch terrorist attacks, entails that the state will be held accountable for, if these attacks should meet the criteria of Article 51. See note 260, 13, 15.
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tack), as stipulated by current international law, can no longer be considered valid. The solution is "[...][to] adapt the concept of imminent threat to the capabilities and objectives of today's adversaries'V" Another aspect influencing this stance is the assumption that "rogue states" produce and possess WMD, which could be passed on to terrorist organizations. The rationale supporting the use of pre-emptive measures rests on three pillars: (1) the unpredictability of "rogue states" (making an attack at any time a likely possibility), (2) their continuous support of international terrorism and (3) their aspirations to acquire WMD.280 The question if and when a state may resort to pre-emptive defence is a hotly debated issue. Differing weight is attached to different state positions (interests) in military conflicts. On the one hand, the option of self-defence (according to Article 51) is emphasized as regards the attacked state, or the state facing an "imminent threat," as the latter leaves no time for the country to wait until it has been attacked.F" On the other hand, it is stressed that pre-emptive self-defence is at best an exception to the "right to self-defence" set out by Article 51. The latter, then, is likewise an exception - this time to Article 2 (4) of the UN Charter. Thus, pre-emptive self-defence is not a right of the same rank as the right to self-defence; it can merely be accorded under specific conditions.W Following the terrorist attacks of 11 September 2001, a
Ibid., 15. 280 Ibid., 14. 281 For a thorough account on the defence of state interests without an imminent threat, see D.W: Bowett, Self-Defence in International Law, 1958, 118 et seq.; also 1. Brownlie, International Law and the Use of Force by States, 1963,257 et seq. (275 et seq.); on the state of emergency, see 376, then d . R. Higgins, The Development of International Law through the Political Organs of the United Nations, 1963; T.M. Franck, Fairness in International Law and Institutions, 1995, 267; id., "When, if ever, may States deploy Military Force without Prior Security Council Authorization", Singapore Journal of International and Comparative Law 4 (2000), 362 et seq. (368 et seq., 373-376). 282 On the proposal to distinguish between interceptive self-defence, upon the imminent threat of an armed attack and anticipatory self-defence, in cases where an armed attack is foreseeable, d. Y. Dinstein, War, Aggression and Self-defence, 2001, 190, on the distinction between pre-emptive selfdefence and preventive warfare. See Verdross/ Simma, see note 66, 288 (§ 471); H. Kelsen, The Law of the United Nations. A critical Analysis of its Fundamental Problems, 1950,792; Shaw, see note 84, 790; L. Henkin, How 279
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gradually increasing divergence could be observed between United States and European interpretations of Article 51 of the UN Charter. Whereas United States international law experts advocate a conceptual stretching of the right to self-defence,283 their European counterparts tend to favour a restrictive interpretation of Article 51. 284
Nations Behave, 1979, 143; Jennings/ Watts, see note 56, 421 (127): "The better view is probably that while anticipatory self-defence is normally unlawful, it is not necessarily unlawful in all circumstances, the matter depending on the facts of the situation including in particular the seriousness of the threat and the degree to which pre-emptive action is really necessary and this is the only way of avoiding that serious threat, [...]."; Doehring, see note 53, item 764, considers a state's right to self-defence subject to restraints only if the United Nations can provide better protection; P. Malanczuk, Akehurst's Modern Introduction to International Law, 1997, 314; W.G. Sharp, "The Use of Armed Force Against Terrorism: American Hegemony or Impotence?", Chicago J. Int'l L. 1 (2000), 37 et seq. (46 et seq.): also G. Zimmer, Terrorismus und Volkerrecht, Militdrische Zwangsanwendung, Selbstverteidigung und Schutz der internationalen Sicherheit, 1998, 54 et seq.; and M. Byers, "Terrorism, the Use of Force and International Law after 11 September", ICLQ 52 (2002), 401 et seq. 283 For a very extensive account see WM. Reisman, "In Defense of World Public Order", AJIL 95 (2001), 833 et seq.; as well as Franck, see note 281, 368 et seq., see also for an encompassing argument in favour of pre-emptive self-defence in the case of Computer Attacks on Critical National Infrastructure, E.T. Jensen, "Computer Attacks on Critical National Infrastructure: A Use of Force Invoking the Right of Self Defense", Stanford J. Int'l L. 38 (2002),207 et seq. (229 et seq. to 240); for a restrained position J.1. Charney, "The use of force against terrorism and international law", AJIL 95 (2001), 835 et seq.; also T.M. Franck, "Terrorism and the Right of Self-Defense", AJIL 95 (2001), 839 et seq.; C. Greenwood, "International Law and the War against Terrorism", Int'l Af! 78 (2002), 301 et seq. (312 et seq.); S. D. Murphy, "Terrorism and the Concept of "Armed Attack'''', Harv. Int'l L. J. 43 (2002), 41 et seq. (47-50); RR Koh, "The Spirit of Laws", Harv. Int'l L. J. 43 (2002), 23 et seq. (27 et seq).; also the different opinions in the ASIL-Insights, at which contains contributions by EL. Kirgis, R. Wedgwood, J. Cerone, A. Montalvo, J.J. Paust, W. Hall, G.H. Fox, S. Mahmoudi; for a well differentiating account on the functions of the ICC in the war against terrorism, see A.P. Rubin, "Legal Response to Terror: An International Criminal Court?", Harv. Int'l L. j. 43 (2002), 65 et seq. (69), also d. the earlier text by M. Reisman, "International Legal Responses to Terrorism", Houston Journal of International Law 22 (1999), 3 et seq. 284 For a detailed account of the legal consequences of 11 September 2001, see C. Tomuschat, "Der 11. September 2001 und seine rechtlichen Konsequen-
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The strategy to justify military operations, prior to an armed attack, is not new, however, in 1956 Israel employed this argumentation to provide a rationale for measures taken against Egypt. In an extraordinary UN Security-Council session (convened at the insistence of the United States), Israel accused Egypt of having taken up arms prior to its attacks, thus actually necessitating Israeli measures to prevent more violence.285 Israel did not explicitly resort to the imminent threat scenario as a justification for self-defence.l'" Australia, Iran, the Soviet Union, the United States and Yugoslavia consequently criticized Israeli measures as a violation of the ceasefire concluded between Israel and Egypt on 24 February 1949. They demanded the withdrawal of Israeli troops and a cessation of armed hostilities.P? One United States sponsored resolution to this purpose ended up being defeated by France and zen", EuGRZ 28 (2002), 535 et seq., and on the issue of self-defence 540; A. Cassese, "Terrorism is also Disrupting some Crucial Categories of International Law", EjIL 12 (2001), 993 et seq. (995 et seq.), on the challenge to international law posed by counter-terrorism after 11 September 2001; see, Y. Sandoz, "Lutte contre Ie terrorisme et droit international: risque et op portunites", SZIER 3 (2002), 319 et seq . (335); S. Oeter, "Terrorismus ein volkerrechtliches Verbrechen? Zur Frage der Unterstellung terroristischer Akte unter die internationale Strafgerichtsbarkeit", Die Friedenswarte 76 (2001), 11 et seq. (23 et seq.); T. Bruha/ M. Bortfeld, "Terrorismus und Selbstverteidigung", Vereinte Nationen 49 (2001), 161 et seq. (162166); J. Delbriick, "The Fight Against Global Terrorism: Self-Defence or Collective Security as International Police Action? Some Comments on the International Legal Implications of the 'War against Terrorism"', GYIL 44 (2001), 9 et seq. (17 et seq.); C. Walter, see note 275, 4-7; M. Krajewski, "Terroranschlage in den USA und Krieg gegen Afghanistan", Kritische ]ustiz (2001),363 et seq. (377 et seq.), also see the contributions by A. Pellet at bearingthetitleuNo.this is not 'War"'; G. Gaja, UIn What Sense was there an Armed Attack"?", ZaoRV 62 (2002), 183 et seq. (216 et seq.); F. Megret, U'War'? Legal Semantics and the Move to Violence", E]IL 13 (2002), 361 et seq. (392 et seq.), for a more differentiating account see R. Wolfrum, "Irak - eine Krise auch fur das System der kollektiven Sicherheit", 2003, at http://www.mpivhd.mpg.de/inome/inome.cfm, also E. Denninger, Anmerkungen zum Terrorismusbekampfungsgesetz", Aus Pol. & Zeitgesch.10 (2002), 22 et seq. (24 et seq.) . SCOR 11th Year 1956, 748 Mtg of 30 October 1956. SCOR 11th Year 1956, 748 Mtg of 30 October 1956. SCOR l l th Year, 748 Mtg of 30 October 1956, the United States, 3 (No. 11), the Soviet Union, 5 (No. 29), Australia, 6 (No. 35), Iran, 5 (No. 27), Yugoslavia, 4 (No. 22 et seq.). U
U
285 286 287
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the United Kingdom in the UN Security Council.P" The same fate was shared by an analogous Soviet proposal.P? Following this deadlock, the Security Council resorted to a procedure which had yielded the Uniting-far-Peace Resolution (A/RES/377 (V) of 3 November 1950) and transferred the matter to the General Assembly.F? The latter was convened for several emergency special sessions, which led to the adoption of an adequate resolution on 1 November 1956, with 65 votes in favour, 5 votes against and 6 abstentions. The Resolution called upon all parties to sign a truce and to withdraw their troops from foreign territory.I"! In 1962 the United States attempted to prevent the funher armament of Cuba (especially its being equipped with long-range ballistic missiles by the Soviet Union) by using the self-defence motive.292 This case developed into a situation where violence could have been used to avert a perceived acute threat. This was not threatened or done, however, on the grounds of an explicitly formulated right to pre-emptive self-defence. Israel would resort to this rationale expressis verbis in 1967, after Egypt had blocked the South Israeli port of Eilat and concluded a military cooperation treaty with Jordan. 293 The Security Council eventually condemned the conflict as a threat to regional peace, while appealing to both warring parties to sign and implement a truce, but it did not challenge Israel's argument that it had the right to pre-emptive defence.294 As regards the preceding acts of violence prompting Israel's response, there are several analyses indicating that the response does not qualify as pre-emptive self-defence. Should the blockade of Eilat port be considered an act of violence, then Israel's reaction would count as
288 289
290 291
292
293 294
Doc. 5/3710 of 30 October 1956. SCOR 11th Year, 750 Mtg of 30 October 1956, 5 (No. 23), Text of the Resolution at SCOR 11th Year, 729 Mtg of 26 June 1956. SCOR 11th Year, 752 Mtg of 2 November 1956. GAOR 1st Emergency Special Sess., 562 Plenary Mtg of 1 November 1956, 13, 34, Doc. A/PV.562. See the Proclamation of the President, printed in: A]IL 57 (1966), 512 et seq. Shaw, see note 84, 789. On the position of Israel d. SCOR 22nd Year, 1342 Mtg of 24 May 1967,7, (Nos. 56-68) and SCOR 22nd Year, 1343 Mtg of 29 May 1967, 15 (No. 179); S/RES/233 (1967) of 6 June 1967, S/RES/234 (1967) of 7 June 1967, S/RES/235 (1967) of 9 June 1967, S/RES/237 (1967) of 14 June 1967, S/RES/240 (1967) of 25 October 1967.
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self-defence proper. 295 This does not "justify" Israel's actions; it merely points out the fact that this case may not be adequate to ensure the answer to the question when pre-emptive self-defence would be considered lawful. This may also explain why Israel was not condemned by the United Nations for exercizing its right to self-defence.F" Things become even less clear in the case of Iraq's claim to engage in pre-emptive self-defence against Iran in 1980. On the one hand, Iraq had denoted Iran as a threat, after this country had declared the Algeria Treaties (1815/1816) null and void. But on the other hand, Iraq denied having initiated the armed conflict, by stating it was engaging in selfdefence. 297 In contrast to this, Israel fell back on the pre-emptive self-defence against an imminent attack motive,298 upon destroying Iraq's Osirak nuclear reactor on 7 June 1981. The Israeli Government justified the air strikes with (the threatened) increased capability of Iraq to launch attacks against Israeli targets, once the reactor had been activated in the near future. Therefore Israel could not wait for Iraq to develop its nuclear bombs."? It had been forced to engage in an "act of selfpreservation," according to the "inherent right of self-defence," went the argumentation of representatives of the UN Security Council.P'' The preparing of a nuclear war was, they continued, an armed attack along the lines of Article 51 of the UN Cltarter.P! These detailed elabo rations did not prevent several countries (e.g. Egypt, India, Indonesia, Japan, Pakistan, Spain) from condemning the military intervention of Israel.302 They argued that Article 51 was restricted to cases of actual, 295 Shaw, see note 84,789. 296 Shaw, see note 84, 789. 297 SCaR 35th Year, 2250 Mtg of 15 October 1980, or for a similar position 3, (No. 21), 5 (No . 39), SCaR 35th Year, 2251 Mtg of 17 October 1980, 6 (No. 49). 298 SCaR 36th Year, 2280 Mtg of 12 June 1981, 8 et seq. (Nos. 58 f, 68), 10 (Nos. 86-92), a particular spin to the Israeli position has been detected by J.A. Frowein, "Der Terrorismus als Herausforderung fUr das Volkerrecht", Speech for the Siemens-Foundation on 3 July 2002, (unpublished manuscript), 16. 299 See the Letter of Israel's Permanent Representative of 8 June 1981, Doc. 5/14510 of 8June 1984. 300 UNYB 1981,277. 301 Doc. S/14576 of 29June 1981. 302 On the debates in the Security Council cf. SCaR 2288 Mtg, Vote 14 (No. 151), for a condemnation of the violence, see letter dated 9 June 1981 from
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and not anticipated, armed attacks. 303 In S/RES/487 (1981) of 19 June 1981 the UN Security Council thus unanimously branded Israel's strike as a violation of th e UN Charter and the norms of international conduct. 304 In November 1981 the UN General Assembly also adopted a Resolution (with 109 votes in favour, 2 against and 34 abstentions) emphasizing the grave consequences of Israel's action for the maintenance of international peace, and especially the peaceful use of nuclear energy and the system of non-proliferation of nuclear weapons.F" The IAEA likewise condemned the air strike and decided to cut its technical assistance to Israel. 306 These cases indicate that there is basically no consensus among states that pre-emptive self-defence is admissible. The elaborate justifications of each intervening country, or its attempts to prove that its actions had not been conducted pre-emptively, tend to delineate an awareness that self-defence without an actual armed attack represents an exception to the rule . An exception to be made only under additional special circumstances, as far as international law is concerned. The Osirak case furthermore proves that neither the UN's Security Council nor the General Assembly adopted Israel's rationale at the expense of their reluctance to recognize the lawfulness of pre-emptive measures. A slightly different verdict might be reached, however, in cases where a country has fallen prey to a terrorist attack. Here the right to self-defence might be accorded more liberally. Such a line of reasoning, focusing on preceding acts of (political) violence as a basis for preemption, was employed by the United States in 1986. Air strikes against Libya had thus been necessary due to this country's repeated attacks against United States targets and nationals, and the endeavour to prevent any further assaults.P'" The UN Representative justified the strikes as the exercise of the right to self-defence in the Security Council, since:
303
304 305 306
307
the Permanent Representative of Egypt see Doc. A/36/314-5/14513 of 10 June 1984, by Japan Doc. 5/14512 of 9 June 1981, by Pakistan Doc. 5/14517 of 11 June 1981, by India Doc. 5/14523 of 12June 1981, by Indonesia Doc. 5/14536 of 15June 1981. UNYB 1981,277. 5/RE5/487 (1981) of 19June1981, item 1. A/RE5/36127 of 13 November 1981,item 8. See telegram dated 12June 1981 from the Director General of the IAEA to the President of the Security Council, Doc. 5/14532 of 15June 1981. Doc. 5/17990 of 14 April 1986.
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"The United States took these measures of self-defense only after other repeated and protracted efforts to deter Libya from its ongoing attacks against the United States in violation of the Charter". 308 Some African states, the non-aligned countries and the Soviet Union nevertheless condemned the United States air strikes and British support as an aggression against Libya.P" The United States upheld the view that the threat of an armed attack was particularly acute, as Libya had executed several terrorist attacks.U? Another element of the United States rationale was that these assaults had repeatedly violated the prohibition to threaten or use violence in international relations, according to Article 2 (4) of the UN Charter. The United States, however, did not equate a single (or all) terrorist attack(s) with an armed attack.'!' The UN Security Council was nevertheless divided on the issue and a resolution condemning the United States military action had been proposed, but it was not adopted due to the resistance of France, the United Kingdom and the United States. This was induced to the General Assembly passing a resolution with 79 votes in favour, 28 votes against and 33 abstentions.W This, once again, illustrat es the contentious nature of pre-emptive military interventions. In this particular case, th e precarious foundation for anticipatory military measures also rests on the fact that - although Libya had repeatedly employed violence against the United States these att acks never reached the scope of a full-spectrum military operation. Thus, it remains questionable if such below-the-threshold assaults should be used to evoke the right to self-defence, as outlin ed in Article 51 of the UN Charter, since these insufficient actions are instrumentalized to construct an imminent threat in absence of a concrete armed attack. Such a substitution will hardl y suffice to establish pre-emptive self-defence as a lawful undertaking.
308
309
310
311 312
M.N. Leich, "C ontempor ary Practice of the United States relating to International Law ", AjIL 80 (1986), 612 et seq. (633). Th e pos ition of the Soviet Union is contained in Doc. 5/17999 of 15 April 1986, of India in Doc. S/17996 of 15 April 1986, cf. the Annex of the C ommunique of the non- aligned stat es, Ghana in Doc. S/18002 of 16 April 1986, Nicaragua in Doc. S/18004 of 16 April 1986, Burundi in Doc. 5/18006 of 16April 1986. Leich, see note 308, 612, 632 et seq. Leich, see note 308, 633. Also d. G.P. Int occia, "American Bombing of Lib ya: An International Legal Anal ysis", Case \v, Res. j. In t'l L. 19 (1987), 177 et seq. (180 and 189).
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This very issue has been addressed by the IC] in its deliberations on the Nicaragua Case. The Ruling stipulates that even repeated violent assaults which do not qualify as a (full-spectrum) armed attack may not be evoked to justify self-defence. It also does not prohibit, however, that the assaulted state undertakes armed counter-measures, after having suffered attacks below-the-threshold of armed attacks. It must be borne in mind against such a backdrop that the IC] calibrated these findings to suit a concrete situation, where the United States justified its military action against Nicaragua on the grounds of aiding El Salvador within the framework of a collective self-defence (security) system. The IC] responded to this by hinting that collective defence measures would have been superfluous if El Salvador had undertaken any countermeasures on its own behalf. 313 The IC], however, did not specify whether such measures by El Salvador would have been acceptable as self-defence. This implies that a violation of Article 2 (4) of the UN Charter does not by itself justify the evocation of Article 51 by another state, as far as this Court is concerned. This state of affairs could change if a country argues that it is facing an imminent threat or terrorist attack, and that the materialization of these threats was highly probable due to past severe (terrorist) attacks. Hence, it becomes important to analyze a country's past conduct: if it has suffered a severe (terrorist) attack without launching retaliatory measures in the past, it will be difficult to demand restraint in the face of another attack by the same perpetrator. Other standards will apply to cases where counter-measures have been taken, which ended the aggression. A repeated evocation of this stifled aggression, upon building the case for an imminent threat by the same perpetrator, would violate the principle of proportionality in Article 51. According to this principle, measures of self-defence must be fitted to the ending of a concrete, ongoing attack. This principle is even more important for cases where the connection between past counter-measures and the culpability of the "aggressor" cannot be fully substantiated. Thus the right to pre-emptive self-defence represents an issue which has to be resolved on the basis of concrete situations, rather than past acts of violence. In this context binding international law does not allow for the construction of an imminent-threat scenario on the grounds of a state's possession of WMD alone . In its Opinion on the Legality of the Threat or Use of Nuclear Weapons the IC] stated that an imminent threat is
313
Case Concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 14 et seq., (110 para. 210).
Minnerop, Classification of States and Creation of Status
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given when the danger of threatened violence against a country's territorial integrity or political independence is credible. The intentions of the potential aggressor have to be clearly visible, in order to violate Article 2 (4) of the UN Charter by its existence and/or execution.F" Such a violation of Article 2 (4) requires that a state in possession of WMD threatens to use them. In this context it remains contentious, however, if threats which do not represent a clear violation of Article 2 (4) still entitle a country to pre-emptive self-defence against an imminent attack. The IC] has not addressed this question. It has made it clear, nevertheless, that the possession of WMD alone does not constitute an imminent threat. The latter is given only when a threat to use WMD (and their actual usage) comprise a clear violation of Article 2 (4) of the UN Charter. Against this backdrop it becomes clear that the endeavours of the United States National Security Strategy to lower the benchmarks for determining an imminent threat (in order to improve counter-measures targeting "rogue states") represents a substantial expansion of the right to self-defence. The latter would be applicable not only to concrete, but anticipated threats, by resorting to a rationale which has not been used in justifications of pre-emptive self-defence so far. b. The War against Iraq
The United States-led coalition commenced Operation Iraqi Freedom on 21 March 2003 .315 By 9 April 2003 troops had reached Iraq's capital and were dismantling Hussein's statue in the vicinity of the "Palestine" Hotel.3 16 The military campaign against Iraq constitutes the first case where full-spectrum military operations have been launched against a "rogue state". The United States rationale for this war, however, did not centre on this designation, but on existing argumentation, which had been recognized and tolerated by international law.W Thus it appeared
314
315
316
317
Legality of the Threat or Use of Nuclear Weapons, IC] Reports 1996,226 et seq. (246 et seq. para. 48). CENTCOM Operation Iraqi Freedom Briefing on 22 April 2003, at http.//www.cemcom.miIlCENTCOMNews/Transcripts/20030419.htm. accessed on 22 May 2003. J. Habermas, "Was bedeutet der Denkmalsturz?", Frankfurter Allgemeine Zeitung, 17 April 2003, 33. Cf. Powell's speech at the Security Council of 5 February 2003, Doc. S/PV.4701, is in accordance with the draft of the "U SA Patriot Act II " of 7
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that several argumentations were being pursued by the United States throughout 2002, with the same amount of legitimating weight. Prior to the beginning of the war in 2003, however, official statements of the United States Government focused on Resolution 1441, issued by the UN Security Council on 8 November 2002. 318 This Resolution represented the last in a chain of Security Council Resolutions, such as S/RES/661; 678; 687 and 1284,319 granting Iraq one last chance to avoid any "serious consequences" by the fulfilment of its international obligations.P? This argumentation complemented efforts to substantiate a "material breach" of Resolution 687, which establishes a truce between Iraq and Kuwait, and of Resolution 678, which enters the "states cooperating with Kuwait"321. The constitution of such a material breach would then reactivate the mandate to undertake military countermeasures, contained in Resolution 687.322 This rationale, ranging up to Resolution 1441, became predominant compared to efforts justifying a right to pre-emptive self-defence on the grounds of Iraq being a "rogue state", which would have transcended the boundaries of international law. Resolution 1441 in particular became the basis to demand Iraq's
318 319
320
321 322
January 2003, especially the findings in Sec. 1302, which do address the situation in Iraq. S/RES/1441 (2002)of 8 November 2002. S/RES/661 (1990) of 6 August 1990, S/RES/678 (1990) of 29 November 1990, S/RES/687 (1991) of 3 April 1991, S/RES/1284 (1999) of 17December 1999. S/RES/1441 (2002) of 8 November 2002, item 13 of the operative section (based on Chapter VII of the UN Charter), also see Powell, see note 317: "Resolution 1441 (2002) was not dealing with an innocent party, but with a regime that the Council had repeatedly convicted over the years. Resolution 1441 (2002) gave Iraq one last chance to come into compliance or to face serious consequences.", see also the statement given by Powell at the Security Council on 14 February 2003, .accessed 17 February 2003. S/RES/687 (1991) of 3 April 1991, item 33. Cf. M. Weller, "The Legality of the Threat or Use of Force against Iraq", at . accessed on 30 July 2002; R. Wedgwood, "The Enforcement of Security Council Resolution 687: The threat of Force against Iraq's Weapons of Mass Destruction", AjIL 92 (1998),724 et seq.
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disarmament, i.e. the destruction of suspected WMD, in order to prevent their use by terrorists.V' The ensuing military campaign, therefore, could not evoke a violation of Article 2 (4) of the UN Charter. Its masterminds also abstained from citing their National Security Strategy as a rationale.F" Apart from this, the UN Security Council refused to provide an authorization on the grounds of Resolution 1441 in order to ensure Iraq's fulfilment of clearly existing legal obligationsv" via military coercion. 326 The United States nevertheless "authorized itself" for a unilateral military intervention to this purpose, outside recognized rationales for the use of military force in international law. At no time, however, did the United States try to justify the campaign (i.e, to fill the void of a multilateral mandate) by stressing that Iraq was a "rogue state". This implies that "the doctrine of verbal stigmatization," typical for the United States, did not acquire a new dimension by advocating the use of violence against designated countries. Such a scenario appeared possible after the publication of the National Security Strategy in September 2002. However, this argumentation would neglect the fact that verbal stigmatization entails consequences. Even without employment for the justification of the use of force in the concrete case as it is designed to be effective in the forefront. The repeated usage of stigmatizations is dedicated to diminish the political pressure for the acting state to substantiate the justification of its actions.
323
324
325
326
This is consistent with the "National Strategy to Combat Weapons of Mass Destruction", of December 2002, on the obligations of Iraq see Wolfrum, see note 284. Powell speech to the Security Council, see note 320; Negroponte, Doc. S/PV:4726 of 27 March 2003: "The military campaign in Iraq is not a war against the people of Iraq, but rather against a regime that has denied the will of the international community for more an 12 years. [..] Resolution 687 (1991) imposed a series of obligations on Iraq [..] . Resolution 1441 (2002) explicitly found Iraq in continuing material breach". Also d. the Report by El Bahradei, the Status of Nuclear Inspections in Iraq of 27 January 2003, at , accessed on 28 January 2003, Press Release SC/7644 of 27 January 2003 and the IAEA Report Doc. S/2003/95, Annex, of 27 January 2003. G. Nolte, "Gewalteinsatz muB Regeln unterliegen", Handelsblatt, 24 March 2003; Wolfrum, see note 284, 5.
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Max Planck UNYB 7 (2003)
Nonetheless the war against Iraq does not qualify as an appl ication of the "stigmatization doctrine" as the United States attempted to justify its campaign along the lines of recognized rationales, in order to secure (international) legitimacy. T his utilization of existing SecurityCouncil Resolutions, however, went hand in hand with the (repeatedly stated) intent to launch a military campaign without a multilateral mandat e. But the debate on whether Resolution 1441 provided enough of a justification to permit the use of military coercion indicates that the United States accords "rogue states" the same standing in this respect as non-designated states. Hence, it becomes obvious that the United States tried to procure as much legitimacy as possible, without abandoning its determination to wage war. International reactions to this strategy imply that the United States may have paid a high political price for executing its intentions. Most states were critical of the military campaign.V? Thus the designation of a country as a "rogue state" did not grant legitimacy to a military intervent ion against it, in their opinions. Their reactions revealed that an acceptable rationale would have to be based on a breach of Article 2 (4) of the UN Charter. To sum up, it cannot be concluded that "rogue states" enjoy so little protection that the use of military force against them has become an aliud in international law.
2. Sanctions Regime against "state sponsors of terrorism" The United States considers the countries included in its list of terrorist organizations the main focus of stage two in the war against terrorism.328
327
Cf. the debates at the Security Council of 5 February 2003, Doc. S/PV.4701, and of 29 March 2003, Doc. S/PV.4726 the Letter of the Perma-
328
nent Representatives of France, Germany and Russia to the Chairman of the Security Council of 24 February 2003, Doc . S/2003/214, the Speech by Minist er of Foreign Affairs Fischer at the Security Council of 20 February 2003, at . accessed on 21 January 2003; the Letter of the Permanent Repre sentative of Iraq to the United Nations of 31January 2003, Doc. 5/2003/131 ; the Press Release Doc. 5CI7665 of 18 February 2003. Doc. 5/946 of 7 O ctober 2001; Greenwood, see note 283,310.
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From a legal standpoint, countries are not forbidden to compile lists of states they consider dangerous, as long as this does not violate international law. The situation becomes less liberal when attempts are launched to establish such a list at the international level. This is the case when the inclusion in a list triggers (economic) sanctions, which affect the sovereign rights of targeted states and third countries. In addition to this, the process of verbal stigmatization attempts to convince other states of the danger posed by designated states. Were this aspiration materialized without obstruction, "rogue states" would be condemned as sponsors of terrorism at the international level as well. This would accord international significance to the unilateral categorization criteria of the United States DoS. So far there exists no international version of the United States list of terrorist organizations. The United Nations abstains from designating countries as "state sponsors" of international terrorism.V? as does the Security Council, even in cases where repeated terrorist activities were attributable to states, or states failed to clearly distance themselves from terrorist activities.P? The Security Council has only practised the identification of actions supporting (international) terrorism, if a state had taken concrete measures of this sort. A condemnation of such action, in contrast, is usually linked to an appeal to the named state to explicitly distance itself from any support of (international) terrorism.P! Thus the presumption of innocence applies to states until proof is procured of their supporting a concrete terrorist action. Once this has been achieved, however, even the insufficiently clear renouncing of terrorism by a state may be considered a threat to international peace.332 Unlike the DoS, the UN Security Council does not consider the credibility of a state as a decisive factor to determine a threat to international peace.
329
330
331 332
The international agreements on the combating of certain terrorist acts also focus on precisely defined felonies, which have to be prosecuted and penalized by the signatories, see Wolfrum, see note 53, 853 et seq. On Sudan d. S/RES/I044 (1996) of 31 January 1996, S/RES/I054 (1996) of 26 April 1996, S/RES/I070 (1996) of 16 August 1996, on Afghanistan S/RES/1214 (1998) of 8 December 1998, S/RES/1267 (1999) of 15 October 1999, S/RES/1333 (2000) of 19 December 2000. The first explicit formulation of this is found in S/RES1748 (1992) of 31 March 1992. On the categorization of terrorism as a threat to international peace, d . J.D. Aston, "Die Bekampfung abstrakter Gefahren fur den Weltfrieden durch legislative MaBnahmen des Sicherheitsrates - Resolution 1373 (2001) im Kontext", ZaoRV 62 (2002), 257 et seq. (277 et seq.),
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Max Planck VNYB 7 (2003)
But it should not be forgotten that both the Security Council and the General Assembly have adopted a number of resolutions obliging all states to abstain from supporting international terrorism.P'' A complicating aspect to such a demand is the fact that there is no clear-cut definition of terrorisml'" and of state sponsorship of terrorism so far.335 The Security Council, however, provides a compilation of several state actions, which constitute support of terrorism and are therefore not to be engaged in states. 336 Upon analyzing these prohibited acts and Security-Council documents on this subject diachronically, several changes emerge over the past ten years. 337 The most recent documents, for example, appear to reveal United Nations support for the United States war against international terrorism.P'' As regards the different forms of state support to this type of political violence, the UN Security Council distinguishes between direct and
333
334
335
336
337
338
See V. Roben, "The Role of international Conventions and general International Law in the Fight against International Terrorism", at -chttpc//edoc. mpil.de/conference-on-terrorism/present/roeben.pdf>. Cf. C. Walter, "The Notion of Terrorism in National and International Law", at . On attempts of a definition d. A.C. Brown, "Hard Cases Make Bad Laws: An Analysis of State-Sponsored Terrorism and its Regulation under International Law", journal of Armed Conflict Law 2 (1997),135 et seq. (136 et seq.) . The most recent instance is to be found in S/RES/1373 (2001) of 28 September 2001, item 2, references are also contained in A/RES/49/60 of 9 December 1994, Annex, item 3, A/RES/51/210 of 17 December 1996, A/RES/54/110 of 9 December 2000, also d. R.A. Friedlander! T. Marauhn, "Terrorism", in: R. Bernhardt (ed.), EPIL IV (2000), 845 et seq. (850 et seq.). The same applies to the assessment of state terrorism as a threat. Initially, formulations would regularly stress at countering terrorism, including the forms of state activities in this domain, were vital to the preservation of international peace and security (S/RES/l054 (1996) of 26 April 1996, S/RES/1189 (1998) of 13 August 1998). More recent resolutions of the Secur ity Council clarify that international terrorism can pose a threat to international peace and security. On 12 September 2001 it publicized the statement that the attacks of "11 September" embodied a threat to international peace and security, as did any other terrorist act. See S/RES/1368 (2001) of 12 September 2001, item 1. Charney, see note 283, 835, 837.
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indirect modes, since it considers "state sponsors of terrorism" as countries furthering: "[...] acts of international terrorism in all its forms, including those in which States are directly or indirectly involved I.P? The latter include 'inter alia' the: "organizing, instigating, assisting or participating in terrorist acts in another State or aquiescing in organized activities within its territory directed towards the commission of such acts".340 Acts of support furthermore include "activities of assisting, supporting and facilitating terrorist activities and from giving shelter and sanctuaries to terrorist elemencs't.r" Another formulation prohibits the sheltering and training of terrorists and planning terrorist acts. 342 By the end of the nineties this list (proscribing the organizing, instigating, assisting or participating in terrorist acts) was complemented by new "don'ts", In 1999, for example, the UN Security Council delegitimized the provisions of a safe haven, by:
"[djeploring the fact that the Taliban continues to provide safe haven to Usama bin Laden and to allow him and others associated with him to operate a network of terrorist training camps from Talibancontrolled territory and to use Afghanistan as a base from which to sponsor international terrorist operations".343 In 2000 it added "harbouring" terrorists to the acts of state support.r" and ultimately the Chair of the Security Council declared the attack of
339 S/RES/731 (1992) of 21January1992, S/RES/748 (1992) of 31 March1992. 340 S/RES/748 (1993) of 31 March 1993, S/RESI 1189 (1998) of 13 August 1998, S/RES/1371 (2001) of 26 September2001. 341 S/RES/1044 (1996) of 31January 1996, S/RES/I064 (1996) of 11 July 1996. 342 S/RES/1333 (2000) of 19 December 2000. 343 S/RES/1267 (1999) of 15 October 1999, as well as S/RES/1333 (2000) of 19 December 2000, a document not mentioning the Taliban is S/RES/1269 (1999) of 19 October1999, which strives to: "deny those who plan, finance or commit terrorist acts safe havens by ensuring their apprehension and prosecution or extradition". 344 S/RES/B33 (2000) of 19 December 2000: "Not[es] that the Taliban benefits directly from the cultivation of illicit opium by imposing a tax on its production and indirectly benefits from the processing and traffickingof such opium, and recognizing that these substantial resources strengthen the Taliban's capacity to harbour terrorists."
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11 September 2001 an "attack on humanity as a whole,"3 45 upon convening a session on 12 September 2001. The Resolution adopted on this day states that: "The Security Council calls on all States to work together urgently to bring to justice the perpetrators and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable't.P" The UN Security Council also committed all states to abstain from any form of active or passive support of terrorist acts, on the grounds of Chapter VII of the UN Charter, on 28 September 2001. This included the prohibition to provide shelter to terrorist organizations on their territories. Hence: "[a]ll states shall (a) refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons of terrorists; (b) [...] (c) deny safe haven to those who finance, plan, support or commit terrorist acts, or provide safe haven; [...]".347 In this context the Security Council's employment of terms like "safe haven" and "harbour" implied an internationalization of the notions used mainly by the United States in its war on international terrorism. But even in S/RES/1373 the UN Security Council did not designate any countries as "state sponsors of terrorism", nor did it single out any countries as particularly dangerous within the multilateral campaign against terrorism. Such a resorting to "loan-words" could be accompanied by the transfer of the definitions on various terrorist activities .348 The findings mentioned above indicate that the United States practice of listing "state sponsors of terrorism" is marked by a specific form of identification, evaluation and treatment of such states . These traits are not mirrored by United Nations practice. At the same time, the founding of stage two in the war against international terrorism on the
345 346 347 348
Doc. S/PY.4370 of 12 September200l. S/RES/1368 (2001) of 12 September200l. S/RES/1373 (2001) of 28 September200l. Brown, see note 335, 135, 144 et seq. concludes that there is a "Legal Regime Governing States Sponsoring Terrorism" contained in Resolutions and Declarations, which strives to regulate unilateral measures outside the United Nations as well, also d. Charney, see note 283, 835, 837.
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DoS list, represents an attempt to secure international relevance for a domestic political instrument, in order to proclaim it a part of the "canon" of international counter-terrorism. It could also imply that the United States reserves the leadership in this campaign for itself. This would have been corroborated by international law if the UN Security Council had accorded the United States Government a privileged role within the war against terrorism. Resolution 1373, however, establishes the United States as a state with rights and duties equal to all other countries. The operative section of Resolution 1373 explicitly demands the improvement and intensification of international cooperation in this context. In addition, sight should not be lost of the fact that the Preamble stresses the "inherent right of individual or collective self-defence in accordance with the Charter". The United States could be accorded a special role mainly in cases where international cooperation assumes the form of collective self-defence. This does not entail, however, that the UN Security Council is attempting to provide the United States with a rationale for dealing with the state sponsors of its list, as "abstractly" dangerous states, by equating international cooperation and collective self-defence. The right to self-defence is, after all, inherent and not dependent on authorization by the Security CounciJ.349 In addition to this, the provisions outlined in Article 51 of the UN Charter must be met for acts of self-defence. What the Security Council can nevertheless do, is to influence the development of international customary law by recognizing a particular form of exercizing the right to self-defence as lawful. In spite of all this, it has to be remembered that the provisions of Resolution 1373 were drafted at a time when terrorist acts were not considered armed attacks along the lines of Article 51 of the UN Charter. This does not amount to an absolute prohibition, as the Preamble of Resolution 1373 (and of Resolution 1368) recognizes the right to selfdefence. It rather indicates that, under certain conditions, even terrorist acts may constitute a justification for self-defence. The .abstract threat posed by terrorism, however, does not legitimate the exercise of this right. Against this backdrop the Chapter VII derived duty to cooperate in the fight against international terrorism, contained in the operative section of Resolution 1373, mirrors the distinction between self-defence and collective defence and security maintained by the UN Security Council. It therefore cannot be concluded that the potential of certain 349 Also cf. Franck, see note 283, 839 et seq.
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terrorist acts to entail the right to self-defence (substantively or procedurally) expand s th is right within the war against international terrorism. The launching of self-d efence measures against "rogue states" will continue to depend on concrete constellation s and dangers - and not on abstract classifications which do not fulfil the provi sions of Article 51.
The inclusion of state s in lists, not only as a reaction to single acts and their overall conduct, cannot predetermine their threat potential within the war against international terrorism. At least not as far as binding international law is concerned. This contravenes the rationale behind designations such as "rogue states," since they have been designed to affect the perceptions of other states to this effect. Hence it could be concluded that derogatory denotations embody an instrument of hegemony.
V. Conclusion For the time being, the process of verbally stigmatizing states occurs at a "political" plane. Th is does not prevent the alteration of the targeted states' legal status, as the examples of this article have illustrated. The legal consequences of derogatory formulations are not determined by their usage alone; they also depend on the bind ing principles of a legal order as possible checks and balances. Should one state be able to elevate its domestic classification to an international standard, these principles would be undermined in th eir overall purvie w, not just in one concrete application. Whether defamatory designations infringe upon the sovereign equality of states will depend on what notion of equality we attribute to this principle. In the earlier cases of verbal stigmatization less emphasis was placed on the discrimination of the countries targeted. The main issue was if international law was applicable to "barbaric" or "uncivilized " states which were not recognized as full subjects in international law at all. Thus the question on their legal equality would not even be consid ered at the time. Although there always have been pariah-states in the past , their impact on community principles was insignificant, as they did not belong to the community at any time. This changes in th e case of communities based on the sovereign equality of its Member States: here unilaterally stigmatized states re-
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main part of the community. A change in the legal status of these states would, therefore, not just violate the principle of state equality - it would undermine its validity as a principle of the international community. This would, again, not require deliberations on charges of discrimination - it would require debates on the general applicability of international law in case of these states. Against such a backdrop, the international community could revert to a previous stage of development. The international community as we know it is also vulnerable as regards processes based purely on the existence of spheres of influence. Within this community, and its international law, however, states labelled with pejorative designations (i.e. being branded with negative traits) still enjoy the same sovereignty-based rights as all other countries. The designations examined, such as "rogue states," "state sponsors of terrorism," "states of concern" and "axis of evil," are not recognized elements of international law. They are used to affect the constitution of the political will in other states. Hence, the principle of sovereign equality has not been annulled either within the war against terrorism as regards a group of states (designated as threats) or during applications of violence against single "rogue states". The reactions to the war in Iraq clearly demonstrate that the unilateral stigmatization of a country does not allow for an extraordinary right to use military force. The dangers which such a process of (verbal) abuse entail, however, remain real to the development of international law in our current order, as they threaten the consensus on fundamental principles. As regards the prerequisites for the generation of legal concepts within the current system, the considerable influence of the United States requires a clear reaction by the international community to counter the aspiration to codify a domestic classification at the international level. Otherwise the principle of the sovereign equality of states will no longer be able to act as a check during international law-making. Thus reactions to single cases of stigmatization may prevent the erosion of this fundamental principle of international law. Any change in the legal status of the designated states contravenes (the maintenance of) state equality, since they would have been denied key elements of statehood, rendering them incompatible with the rest of the system. This in turn could render the application of binding legal rules of the existing international community non-obligatory with regard to these states. Sub optimum standards and exceptions could be wielded at them instead, without ever raising the question of state equality. The latter, after all, would apply only to countries considered
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internationally sovereign states. This is the very scenario the UN Charter strives to prevent, by explicitly stipulating the sovereign equality of its signato ries in Article 2 (1). The UN Charter tri es to prevent the loss of sovereignty-based, equal rights by stigm atized states. It also attempts to ensure that the latter continue to honour the ir international obligations. If pariah-states were to be factually excluded from the international community (created by the UN Members), the y would suffer the loss of the ir communal rights, on the one hand. Another loss would be suffered by the international community, on the other hand, as it would no longer command an instrument to effectively deal with any threats emanating from these countries.P? It has to be borne in mind that a change in the legal status will not only divest stigmatized states of their rights (as equal members of the international community): it will absolve them from fulfilling their duties. Hence, there is no con cept of "international community" that stands for an evolution of int ern ational law or even the const itutionalization of the "international community", admitting at the same time the exclusion of "pariah-states" from its ranks. It is less clear, howe ver, what the exact relations between the notion of an " international community" and antonymous designations like "rogue state" are. These appea r to require further, in-d epth research, in yet another "linguistic const ruction ".
350
O n the options outside the UN Charter d. DJ Scheffer, "Staying the Course with the Int ernation al Criminal Court", Cornell Int'l L. Rev. 35 (2002), 47 et seq. (99).
All Illusions Shattered? Looking Back on a Decade of Failed Attempts to Reform the UN Security Council Bardo Fassbender
I.
II. III.
Iv. V.
Introduction The Course of the Debate since 1991 A Summary of Views on the General Structure of the Security Council 1. The Question of Permanent Membership 2. Proposals Regarding a "Third Category" of Members of the Security Council The Reform of the Veto Power Conclusion
I. Introduction In a September 2002 report, UN Secretary-General Kofi Annan spoke of the "stalled process of Security Council reform". He stated that after nearly a decade of discussions in the UN "a formula that would allow an increase in Council membership is still eluding Member States", notwithstanding the fact that "in the eyes of much of the world, the size and composition of the Security Council appear insufficiently representative";! Indeed, today prospects for a comprehensive reform of the Council, which would encompass both the body's composition and its decision-making process, are dim, and the pressure for such a reform, still strong in the early nineties, has given way to a certain ennui or resignation of the interested governments and NGOs. Was it an illusion to See "Strengthening of the United Nations: an agenda for further change", Doc. A/57/387 of 9 September 2002, para . 20. A. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 7, 2003, 183-218. © 2003 Koninklijke Brill N. v: Printed in the Netherlands .
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believe that the Council could be adapted, in a rational process of discussions and negotiations, to a world so different from that of 1945? And are now "all illusions shattered", to quote from a song by the American singer Tracy Chapman F While the need for a "comprehensive reform of the Security Council in all its aspects", as the UN Millennium Declaration of September 2000 put it,3 is still generally acknowledged, conflicting views of Member States continue to block a solutionr' • All governments appear to support an enlargement of the Council in the category of non-permanent members (which is not to say that there is a consensus on the size of such an enlarged Council, an issue which is discussed under the opposing slogans of "representativeness" on the one hand, and "effectiveness" on the other hand). But while a majority of governments also wishes to increase the number of permanent members, others strongly object to such a change . • At the end of the nineties, the candidacies of Germany and Japan for permanent membership were almost universally supported. However, among the states favoring more permanent seats there has been disagreement about how the developing countries of Africa, Latin America and Asia should be represented in the category of permanent members. For the time being, the proposal to replace the present British and French permanent seats with a common European (EU) seat (which thus would be shared also by Germany) is unrealistic; neither the United Kingdom nor France are ready to give up their individual seats. The developing regions which are aspiring to permanent representation have so far been unable to decide on the states they want to nominate for permanent membership. The idea of having "rotating permanent members", i.e. states which would represent a region for a
2
3 4
T. Chapman, "Paper and Ink", from the album "Telling Stories" (Elektra Records, 2000). A/RES/55/2 of 8 September2000, para. 30. For a recent summary of the various proposals (which, however, does not identify the states standing behind them), see "Conference room paper submitted by the Bureau of the Working Group on the Principal Elements of Proposals Concerning (a) decision-making in the Security Council, including the veto, (b) expansionof the Security Council, and (c) the periodic review of an enlarged Security Council". Report of the Open-ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council and Other Matters related to the SecurityCouncil, Doc. A/56/47, Annex IV.
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certain number of years, that was advanced to overcome this difficulty, seems to be a contradictio in adiecto, and is very controversial. It is not sincerely supported by the most promising aspirants for permanent seats among the developing countries. Allocating permanent seats to regions instead of states is also at variance with the state-centered system of the UN Charter. • A majority of states wants to abolish or curtail the right of veto of the permanent members (Article 27 para . 3 of the UN Charter), but the present P-5 are unwilling to accept any such diminution of their status. There are also conflicting opinions about the question whether new permanent members should be entitled to the veto (and if so, all of them or only some). In recent months, this unfortunate situation has been exacerbated by the uncertainty about the future relationship of the United States with the United Nations. Already President Clinton was far from taking the lead in promoting a reform of the Security Council. Pressed by a majority in Congress openly hostile to the United Nations, he instead limited United States support for the organization to narrowly defined measures directly serving American national interests. But now much more is at stake. It is unclear whether the United States, in its fully developed role as the "only superpower", is at all interested in the existence of a world organization of a type represented by the present United Nations.f In any case it is unlikely that the present Bush Administration will advance a major reform of the Security Council. In the following sections, the original positions of United Nations Member States regarding the composition, size and voting procedure of the Council, as well as their modifications during the discussions that have taken place since 1991 will be outlined." However, it is not always
6
For a discussion of United States ambivalence about international law in the post-Cold War era, see N. Krisch, "Weak as Constraint, Strong as Tool: The Place of International Law in U .S. Foreign Policy", in: D.M. Malonel YF. Khong (eds), Unilateralism and u.s. Foreign Policy: International Perspectives, 2003, 41 (concluding that the United States "has sought to secure inequality [of states] in international law and to retain the flexibility that had traditionally characterized international rules"). See also M.l Glennon, "Why the Security Council Failed", Foreign Aff 82 (2003), 16 et seq. ("there likely will be little impulse to revive the Council"). The question of working methods and transparency of the work of the Security Council will not be addressed in this article. For an overview of the respective discussions in the early nineties, see 1. Winkelmann, "Bringing the Security Council into a New Era", Max Planck UNYB 1 (1997),35 et
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easy to assess the degree of these modifications, and the positions presently taken by governments because, in general, official statements of the last years have been much less detailed than those put forward between 1994 and 1997. Because of the long-lasting deadlock, in many governments questions of Security Council reform have not been thoroughly discussed on a high political level for several years.
II. The Course of the Debate since 1991 In the UN General Assembly, the question of "equitable representation on and increase in the membership of the Security Council" has been an item on the agenda since 1979. At that time India, supported by a number of other, mainly developing states, asserted that the increase in membership of the United Nations since 1963 - the year in which the number of non-permanent members had been raised from six to ten? had led to an under-representation of non-aligned and developing countries in the Council. It was proposed to expand the non-permanent members from ten to fourteen, and to introduce a new pattern of geographical distribution.f Another draft resolution, submitted by Latin
7
8
seq. (IlL). For a summary of improvements in the Council's working methods actually achieved over the past few years, see S.C. Hulton, "Evolving Council Working Methods", in: D.M. Malone (ed.), The United Nations Security Council, 2004 (forthcoming). See also the revised conference room paper submitted by the Bureau of the Working Group on the Working Methods of the Security Council and Transparency of its Work, Doc. A/56/47, Annex Y, and the "descriptive index to notes and statements by the President of the Security Council relating to documentation and procedure (june 1993 to August 2002)", Doc. N57/382 and S/2002/1000 of 6 September 2002, Annex. For a brief history of the 1963 amendments to the Charter, see E.C. Luck (ed.), Reforming the United Nations: Lessons from a History in Progress, 2003, 7-10, 48. The author reminds his readers of the fact that in 1963, of the five permanent members only China voted for the General Assembly resolution to expand the Security Council, "yet all [permanent members] eventually found it easier to go along with the tide for expansion" and ratified the amendments. See Draft Resolution Doc. N34/L.57 and Add .1. Four non-permanent members should come from African States, three from Asian States, and two from Western European and other States; one seat was to alternate between African and Asian States. Compare the 1963 allocation (A/RES/1991 (XVIII) of 17 December 1963):
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American states, sought to increase the Council's membership to twenty-one, sixteen of which would be non-permanent members." However, all the permanent members of the Security Council, except China, opposed any expansion.l? and no substantive discussions on the matter were held until 1991 when, at the 47th Session, eight countries revitalized the debate.'! In January 1992, the Security Council met at the level of heads of state and government for the first time in the history of the United Nations. A number of representatives, especially from developing countries, took this occasion to express the view that the structure and the working methods of the main organs of the United Nations should be reviewed after the end of the Cold War. The Prime Minister of Japan, Kiichi Miyazawa, for instance, declared that it is necessary for the United Nations to evolve while adapting to a changing world. "[S]ince the Security Council is at the center of U.N. efforts to maintain international peace and security, it is important to consider thoroughly ways
"The General Assembly,
9
10
11
3. Further decides that the ten non-permanent members of the Security Council shall be elected according to the following pattern: (a) Five from African and Asian States; (b) One from Eastern European States; (c) Two from Latin American States; (d) Two from Western European and other States". The original allocation was different. According to a "gentlemen's agreement" concluded between the permanent members in 1946, two of the then six non-permanent seats would be given to Latin America and one each to the British Commonwealth, Western Europe, Eastern Europe, and the Middle East. This arrangement became ineffective in 1955. See R. Geiger, "Comment on Art. 23", in: B. Simma (ed.), Charter of the United Nations, 2nd edition, 2002, Vol. I, 437 et seq. (440). See Draft Resolution Doc. A/34/L.63 and Add.l, amendments to IS-power draft resolution Doc. A/34/L.57 and Add.I. For further documentary references, see UNYB 1979,435-436. See P. Wilenski, "The Structure of the UN in the Post-Cold War Period", in: A. Robertsl B. Kingsbury, United Nations, Divided World, 2nd edition, 1993,437 et seq. (441). See also M. Bertrand, "The Historical Development of Efforts to Reform the UN", in: Roberts/ Kingsbury, see above, 421-436. Cf. also O. Fleurence, La reforme du Conseil de securite, 2000.
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to adjust its functions, composition, and other aspects so as to make it more reflective of the realities of the new era".12 At the summit meeting of the countries of the Non-Aligned Movement in Jakarta in September 1992, the United Nations reform became a major topic. In the meeting's Final Document, the heads of state and government declared, inter alia: "They were of the view that the veto powers which guarantee an exclusive and dominant role for the permanent members of the Council are contrary to the aim of democratizing the United Nations and must, therefore, be reviewed in line with the reform of the United Nations aimed at bringing about greater democratization and transparency in the work of all United Nations bodies. They also called for a review of the membership of the Council with a view to reflecting the increased membership of the United Nations and promoting a more equitable and balanced representation of the members of the United Nations't.P During the following months, almost global consent developed according to which the increase in membership of the United Nations, the fundamentally changed international situation after the end of the Cold War, and the new challenges faced by the organization (in areas like development, protection of the environment, and human rights, for instance) required a thorough rev iew of the structure and working methods of the major UN organs, including the Security Council. The permanent members of the Security Council who wanted to avoid a broad review of the Council's functioning and composition, were not able to contain the discussion any longer. The new current of opinion became obvious at the session of the General Assembly in November 1992. 14 As a result of this debate, the General Assembly adopted on 11 De cember 1992 Resolution 47/62, entitled "Question of equitable repre-
12
13
14
Statement at the UN Security Council meeting of 31 January 1992; see Ministry of Foreign Affairs (ed.), Diplomatic Bluebook 1992 - Japan's Diplomatic Activities, 399,401. Tenth Conference of Heads of State or Government of Non-Aligned Countries, Jakarta, 1-6 September 1992, Final Document, Chapter II: Global Issues. Political and Economic Committees, para. 32, Doc. A/47/67S. See General Assembly, Provisional Verbatim Record of the 69th Plenary Mtg, 23 November 1992, Doc. A/47/PV.69.
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sentation on and increase in the membership of the Security Council"." The developing countries, in particular, saw this resolution as an expression of the general acknowledgement that the membership of the Security Council must be changed in order to (re)establish equitable representation of all Member States on the Council, and to respond adequately to the "changed international situation" which the document refers to in its preamble. In its operative part, the resolution requested the Secretary-General "to invite Member States to submit ... written comments on a possible review of the membership of the Security Council". The Secretary-General presented the comments submitted to him in a report dated 20 July 1993, and four addenda to this report.!" Altogether, seventy-five Member States from all regions replied. The submissions can be regarded as the most comprehensive statement of the original UN Member States' policies with regard to a reform of the Security Council. At its 48th Session, the General Assembly, on the basis of the report submitted by the Secretary-General, discussed the matter in three plenary meetings during which fifty-seven delegations took the opportunity of communicating their viewsY The debate led to the consensual adoption of Resolution 48/26 of 3 December 1993, by which the General Assembly decided "to establish an Open-ended Working Group to consider all aspects of the question of an increase in the membership of the Security Council and other matters related to the Council't.l" In the resolution's preamble, the General Assembly recognized as the two 15
16
17
18
The draft resolution was sponsored by 37 Latin American, African and Asian states, among them Brazil, Egypt, India, Indonesia, Japan, and Mexico; see Doc. A/47/L,26, A/47/L,26/Rev.l, and A/47/L,26/Rev.1/Add.1. "Question of Equitable Representation on and Increase in the Membership of the Security Council. Report of the Secretary-General", Doc. A/48/264 and Add.l, Add.2 and Add.2/Corr.l, Add.3 and 4. General Assembly, 48th Sess.; Provisional Verbatim Records of the 61st, 62nd and 64th Plenary Mtgs, 23 and 24 November 1993. Doc. A/48/PV.61, A/48/PV.62 and A/48/PY.64. For an analysis of the discussions of the Working Group up until 1998, see B. Fassbender, UN Security Council Reform and the Right of Veto: A Constitutional Perspective, 1998, 221-275, and Winkelmann, see note 6. For brief evaluations of the first stage of discussions, see B. Fassbender, "The Gordian Knot of Security Council Reform", German Comments, No. 45 (january 1997), 55 et seq., and id., "Reforming the United Nations", Contemporary Review 272 (1998), 281 et seq.
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primary reasons for the need to review the Council's membership "the substantial increase in the membership of the United Nations, especially of developing countries, as well as the changes in international relations'L'? The mandate of the Working Group was extended by the General Assembly at its 48th through 57th Sessions.P Participation in the Working Group is open to all Member States an issue which, in the course of the Group's work, has recurrently been raised by delegations whenever the vice chairmen tried to speed up discussions by inviting only certain states to consultations in "closed session". The broad formulation of the Working Group's mandate in this 1993 Resolution is a reflection of the general view that the issue of increasing the membership of the Security Council can not be looked at in isolation. There were, however, different expectations behind this consensual readiness to also deal with "other matters related to the Council". The industrialized states, generally trying to restrict the reform debate to a few "manageable" items, hoped to be able to fend off claims regarding an increase in membership they regarded as inappropriate by making some concessions concerning the Council's working methods, and its interaction with non-members of the Council, regional groups and troop-contributing countries. The developing countries, on the other hand, wanted to broaden the discussion so that it would include, for instance, the question of how to strengthen the role of the General Assembly and of the ICj, respectively, vis-a-vis the Security Council in the field of international peace and security.
19
20
This decision implied that the Committee on the Charter of the United Nations and the Strengthening of the Role of the Organization, which the General Assembly had established in 1975 and the standing of which had suffered from the fact that in more than 15 years its work had been basically fruitless, was not to become the central forum for addressing questions of Security Council reform. For the Committee's latest report, see Doc . A/57/33, for discussion of the report by the Sixth Committee of the General Assembly Doc. A/57/566 of 11 November 2002. See GA Decisions A/48/498, GAOR 48th Sess., Suppl. No. 49, Vol. II, 59; A/491499, GAOR 49th Sess., Supp!. No. 49, Vo!. II, 39; A/50/489, GAOR 50th Sess., Supp!. No. 49, Vo!. 11,49; Al511476 , GAOR 51st Sess., Suppl, No. 49, Vo!. III, 128; A/52/490, GAOR 52nd Sess., Supp!. No. 49, Vo!. III, 58; A/53/487, GAOR 53rd Sess., Suppl, No. 49, Vo!. III, 58; A/54/488, GAOR 54th Sess., Supp!. No. 49, Vo!. III, 78; Al55/503, GAOR 55th Sess., Suppl. No. 49, Vo!. III, 93; A/56/477, GAOR 56th Sess., Supp!. No. 40, Vo!. III, 98.
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The"draft timetable and programme of work for the first round of discussions"!' in the Open-ended Working Group which delegations agreed upon on 1 March 1994, listed the topics that were viewed as constituting the core of the questions the Group had to consider. The programme organized the topics in two so-called "clusters" which determined the Group's agenda: "[1] Equitable representation on and increase in the membership of the Security Council, including regional distribution, categories of membership, numbers, and modalities of selection [II] Other matters related to the Security Council: - Relationship of the Security Council with the General Assembly, other bodies and organizations as well as non-members of the Security Council, - Reform by the Security Council of its working methods and procedures (effective and efficient functioning of the Security Council; decision-making in accordance with the provisions of the Charter; elections and terms of office) Modalities for bringing changes into effect and consideration of related Charter amendments". The Working Group, under the chairmanship of the President of the General Assembly, began its substantive work on 1 March 1994. In the first year, the meetings were generally attended on the ambassadorial level. Since discussions of the Working Group are not open to the public and no official records are kept, the observer mainly must rely on the annual reports submitted by the Group to the General Assembly, press releases of the Member States' missions and information obtained from members of delegations. Further, there are so-called "non-papers" presented and periodically revised by the vice-chairmen of the Group, which try to summarize and organize the views expressed by Member States, indicate major lines of thought and identify areas of agreement. The "non-papers" are not agreed upon in consultations. For this reason, it is not surprising that some Member States objected to their contents and evaluations. In September 1994, the Working Group submitted its first report to the General Assembly.V On 13 and 14 October 1994, the Assembly 21
22
Blank dated. The documents relating to the work of the Working Group and the statements of delegations of Member States quoted in this article are all on file with the author. See Doc. A/48/47, GAOR 48th Sess., Suppl, No. 47.
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discussed the "question of equitable representation on and increase in the membership of the Security Council and related matters" as agenda item 33. Fifty-seven Member States participated in the debate.P In the following years, too, the question was placed on the Assembly's agenda and discussed by it. 24 The Special Commemorative Meeting of the General Assembly on the occasion of the fiftieth anniversary of the United Nations in October 1995 provided an opportunity for Member States unanimously to reaffirm at the highest political level their agreement to expand the membership of the Security Council. At this meeting, the heads of state, government and delegation adopted a declaration, the relevant passage of which reads as follows: "The Security Council should, inter alia, be expanded and its working methods continue to be reviewed in a way that will further strengthen its capacity and effectiveness, enhance its representative character and improve its working efficiency and transparency".25 Similarly, the UN Millennium Declaration, adopted by the heads of state and government on 8 September 2000, said that Member States will intensify their efforts "to achieve a comprehensive reform of the Security Council in all its aspects".26 On 20 March 1997, the President of the General Assembly and chairman of the Group, Ambassador Ismail Razali of Malaysia, presented a paper in the form of a draft resolution.F The Razali plan is widely regarded as the culmination of the most productive phase of discussions in the Working Group.28 He proposed that in a first stage, the General Assembly should adopt with a simple majority a resolution calling for the Council to be
23
24 25 26 27
28
See General Assembly, 49th Sess., Provisional Verbatim Records of the 29th to 32nd Plenary Mtgs 13 and 14 October 1994, Docs A/49/PV.29 A/491PY.32. For the latest discussions, see GAOR 57th Sess., Prov isional Verbatim Records of the 27th to 32nd Plenary Mtgs, 14-16 October 2002, Doc.A/57/PV.27 - A/57IPV.32. Declaration on the Occasion of the Fiftieth Anniversary of the UN, A/RES/50/6 of 24 October 1995, para. 14. See A/RES/55/2 of 8 September 2000, para. 30. See Doc. A/AC.247/1997/CRP.l and A/51/47, Annex II. See I. Winkelmann, "Das Postulat einer starkeren Beteiligung des Siidens am Sicherheitsrat der Vereinten Nationen", in: J.A . Frowein et al. (eds), Verhandeln fur den Frieden- Liber Amicorum Tono Eitel, 2003, 229 et seq. (238).
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enlarged by five permanent and four non-permanent members. The resolution would allocate the new permanent seats to the "industrialized states " (2) and to the developing states of Africa (1), Asia (1), and Latin America and the Caribbean (1). The new permanent members would not enjoy the right of veto. Of the four new non-permanent seats, one would go to Africa, one to Asia, one to Eastern Europe , and one to Latin America and the Caribbean. In a second stage, specific states would be designated as permanent members by a vote of twothirds of the members of the General Assembly. A week later, in a third stage, the necessary amendments to the Charter would be adopted by the Assembly in accordance with Article 108 of the UN Charter. Ten years after the entry into force of the amendments, a conference would be convened under Article 109 of the Charter "in order to review the situation created by the entry into force of these amendments". However, this attempt to achieve a Council reform in a step-by -step approach (shuffling the stumbling stone of a two-thirds majority of the general membership necessary for a Charter amendment to the very end of the process) was repudiated by the General Assembly on 23 November 1998, when it determined, referring to Chapter XVIn of the UN Charter, "not to adopt any resolution or decision on the question of equitable representation on and increase in the membership of the Security Council and related matters, without the affirmative vote of at least two thirds of the Members of the General Assembly". 29 The primary opposition to the Razali plan came from mid sized states which felt that they would be somewhat disenfranchised under a plan elevating certain large developing countries to permanent member status without reducing the current number of permanent members.P
III. A Summary of Views on the General Structure of the Security Council In September 1995, the Vice-Chairmen of the Group summarized the state of the debate as follows:
29
30
A/RES/53/30 of 23 November 1998. (Emphasis added). In contrast the second stage resolution proposed by Razali could have been adopted by a two-thirds majority of the General Assembly members "present and voting" (Article 18 para. 2 of the Charter). See Luck, see note 7, 50.
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"Discussions showed that there was agreement in the Open-ended Working Group on the need to strengthen the effectiveness of the Security Council by an increase in its membership in order to reflect more accurately the important international changes that have taken place, including the substantial increase in the membership of the United Nations, especially of developing countries. Discussions further showed that there was agreement on the need to review the Council's composition, its working methods, and other matters related to its functioning't.t! By and large, this statement is still accurate today. Positions on concrete proposals could not be reconciled. Many states, among them the members of the African Group, seek an increase in both permanent and nonpermanent membership; they constitute a clear majority.V Some delegations (in particular Argentina, Canada, Italy, Libya, Mexico, Pakistan and Turkey) have supported an increase in the non-permanent membership only, while others (like the Republic of Korea and Sweden) propose a reform process in stages, the first stage being an enlargement limited to non-permanent members. However, criteria and modalities for the election of non-permanent members remain to be agreed upon. Proposals aiming at an introduction of new categories or types of Council membership, which had some importance in the early discussions of the Working Group, remain on the agenda but appear to enjoy very limited support. Views are divided on how, if there was to be an expansion in permanent membership, such members should be elected, 3!
32
" O bservations on and assessment by the Vice-Chairmen of the progress of the work of the Open-ended Working Group during the forty-ninth session of the General Assembly", Doc. AlAC.247f1 of 15 September 1995, reprinted in: Doc. A f49f965 of 18 September 1995, 5. According to informal consultations of the vice-chairmen of the Openended Working Group with representatives of 165 member states held in early 1997, a "very large majority" of governments supported an increase in both categories of Council members. See Doc. Al51/47 of 8 August 1997, Annex VI. The majority view is shared by Germany. See Permanent Mission of Germany to the UN, "Security Council Reform: Germany's position" (2002): "Expansion of the non-permanent category only would not represent a genuine reform of the Security Council. Such a one-sided expansion would leave the current balance of power in the Council unaf fected. This current balance of power does not reflect today's realities". For an explanation of the present official German position, see also G. Pleuger, "Die Reform des Sicherheitsrates der Vereinten Nationen", in: S. von Schorlemer (ed.), Praxishandbuch UNO: Die Vereinten Nationen im Lichte globaler Herausforderungen, 2003, 683 et seq.
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and whether formal criteria such as those contained in Article 23 para. 1 of the Charter should guide such an election. In the event that there is agreement on an increase in the permanent membership, an increase only by industrialized countries is widely regarded as unacceptable. If one takes a general look at the proposals, the question of a reform of the Security Council is first of all a North-South issue. The industrialized states of the Northern hemisphere, which make up four of the five permanent members and to which, according to the 1963 allocation, are assigned three of the ten non-permanent seats (leaving aside the two Latin American seats), acknowledge that the increase in the general membership from 51 in 1945 to 113 in 1963 and 191 in 2002 suggests that the number of Council seats should again be raised.P The Northern industrialized states, however, want to limit an increase in the overall membership of the Security Council since any such increase would necessarily amount to a certain restraint on their influence and, according to the official reasoning, might impede the Council's ability to fulfill its mission speedily and effectively ("efficiency and effectiveness" argument) . In particular, the permanent members have been reluctant to say that the Council, in its present composition, is unrepresentative. The developing nations of the Southern hemisphere, on the other hand, tend to promote a stronger increase in the Council's membership in order to improve their representation on the body. The figures most commonly quoted in the discussions of the Working Group seem to be between twenty and twenty-five, the lowest and highest figures being twenty and thirty, respectively.-" The Movement
33
34
In recent years, Germany has become a particularly vocal supporter of a stronger representation of Southern developing states on the Council. See Winkelmann, see note 28. See also B. Fassbender, "Die prekare Stellung des Siidens im Volkerrecht der Gegenwart", Politiscbe Studien 357 (1998), 99 et seq. For the United States position in the days of the Clinton Administration, see Bureau of International Organization Affairs, Department of State, "US Fact Sheet on UN Security Council Expansion" of 5 January 2000: "The overall size of the Council should be limited to a maximum of 20 or 21, in order to ensure that it will continue to function efficiently". The German Government declared: "A total of 24 seats should strike the necessary balance between enhancing the opportunities for participation and maintaining the efficiency of the Council". See "Germany's Position ", see note 32.
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of Non-Aligned Countries and the African Group favor a Council of at least twenty-six members.V Of course, this contrasting of North and South holds good only in very general terms because there are numerous differences of opinion within the two "camps", and overlappings of views which make developed and developing nations find some common ground. There is, in particular, general agreement about the fact that the number of non-permanent members should be raised," and that the criteria contained in Article 23 para. 1 of the Charter should, by and large, remain valid. In contrast, different opinions exist as to whether additional (and, if so, which) criteria should be applied, and whether the chances of smaller states of being selected for non-permanent membership by their regional groups should be enhanced. Some delegations pointed to the lack of uniformity in the way regional groups select candidates and suggested that the selection procedures could be unified to ensure equality of treatment across regions. Proposals for a new distribution of seats among regional groups, and for a new definition of these groups , usually favor the developing countries and seek to reduce the number of European and Western seats. Other proposals intend to regularize the practice of selecting certain states more often for nonpermanent membership. Views have also been expressed in support of, and against, lifting the ban on immediate re-election of non-permanent members (Article 23 para. 2 of the Charter).
1. The Question of Permanent Membership On the part of the Northern industrialized states, there are still severe differences with regard to changes in the Council's permanent membership. The Minister for Foreign Affairs of Singapore quite frankly addressed the crucial points: "[I]f the new Security Council is really to reflect the current international distribution of power, it should logically entail the reiega35
36
See Final Document of the Twelfth Ministerial Conference of the Movement of Non-Aligned Countries of 8 April 1997, Doc. NAC/FM/Doc.1I Rev.3, para. 28. For the German view, which coincides with the Razali plan of 1997 (see text accompanying note 27), see "Germany's position", see note 32: "We also favour four new non-permanent seats, three for Africa, Asia, Latin America and the Caribbean as well as one for Eastern Europe."
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tion of some from the elite as well as the anointment of others. Even if some were to be so elevated without necessarily displacing others, the expansion of the small group of the select would imply the relative diminution of the status of the current permanent mernbers 't.V Already the Administration of President George H .W Bush had favored permanent membership for Japan and Germ any, and President Clinton adopted this policy." Pointing to the two states' "record of constructive global influence and their capacity to sustain heavy global responsibilities", the American representative even said in the November 1995 debate of the Gen eral Assembly that the United States "enthusiastically endorsers] the candidacies of Japan and Germany", and that it "could not agree to a Council enlargement that did not result in their permanent membership'l.'? The Administration regarded both countries as economically potent Western democracies which it expected substantially to share the burden the United States must carry in the post -Cold War world.40 In October 2002, the Administration of President George W. Bush affirmed the policy goal of its predecessors ("a reformed Council, with Japan and Germany assuming permanent seats ")." It remains to be seen whether the recent difference of opinion between the United States and Germany in the question of the war 37
Speech by Mr. Won g Kan Seng, Minister for Forei gn Affairs of the Republic of Singapore, at the 48th Sess. of the General Assembly, 6 O ctober 1993. 38 See, e.g., Joint Remarks by President Clinton and Jap anese Prime Minister H osok awa, New York City, N .Y., Federal N ews Service, 27 September 1993. 39 Statement by Amb assador Inderfurth, 14 November 1995, General Assembly, 50th Sess., Provisional Verbatim Record of the 58th Plenary Mtg Doc. A/50/PV.58, 5. See also statement by Ambassador Inde rfurth in the Openended Working Group, 27 March 1996, Press Release of the United States Mission to the United Nations 39-(96) of 27 March 1996, 1. 40 See United States statement of 30 June 1993, Doc. A /48/264, see note 16, at 92: "[T]he United States supports permanent membership for Japan and Germany as well, full y recognizing that permanent membership entails assuming an active role in global peace and security activities". (Emphasis added.) 41 See statement by Amb assador Siv at the General Assembly of 14 O ctober 2002, Doc. A/5 7/PV.27, 10. See also Bureau of Internation al Organization Affairs, Department of State, Fact Sheet "U nited N ations " of 26 N ovember 2002: "The U .S. supports permanent seats on the Securi ty C oun cil for Japan and Germany and a mod est further enlargement of the Council to include permanent seats for developi ng nations from Asia, Africa, and Latin America".
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against Iraq will make the Administration change its position.F Cautiously, the Clinton Administration declared that it was "prepared to accept three additional permanent seats for developing nations from the regions of Africa, Asia, and Latin America".43 However, the United States strictly opposed the idea of granting any developing country the right of veto. The United Kingdom and France, on the other hand, initially were reluctant to accept the idea of additional permanent seats. It was clear from the beginning that any such addition would give testimony to a relative loss of global power of the United Kingdom and France and might also increase Germany's regional influence in Europe, thus adding to the "imbalance" that was brought about by Germany's reunification in 1990. However, in the nineties both states became strong supporters of Germany's and Japan's candidateships. They realized that only by supporting Germany they could bring to a stand the increasing demand for a joint European (EU) seat. France later also decided to support India's aspiration to become a permanent member.t" Russia's and China's statements on the subject continue not to be very outspoken. Neither state appears really to welcome the prospect of German and Japanese permanent membership. In a more recent Russian pronouncement, Germany and Japan were not mentioned, but India was called "a strong and worthy candidate for permanent membership".45 The People's Republic of China presents itself as a representative of the developing countries. Repeatedly, China has declared that "at the present time, the main reform task should be the increase, as a priority, of membership of the developing countries in the Council in accordance with the principle of equitable geographical distribution'l.t" It
42
43 44
45
46
For a sceptical view, see T. Eitel, "Partner in den Vereinten Nationen", Deutschland 1 (2003),40 et seq. (45) ("in the foreseeable future, a German permanent seat will hardly find American support"). See United States fact sheet of 5 January 2000, see note 34. See statement by the representative of France, Mr. Levitte, at the General Assembly of 15 October 2002; Doc. A/57fPV.30, 9. See statement by Mr. Ordzhonikidze, Deputy Foreign Minister of the Russian Federation at the General Assembly, 31 October 2001, Doc. A/56fPV.34,16-17. See statement by Mr. Zhang Yishan at the meeting of the Open-ended Working Group, 10 February 2003.
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will thus not be easy to win China's support for any improvement in the position of Western capitalist states on the Council. Since 1992, Japan and Germany increasingly stressed their "willingness" to become permanent members of the Security Council.t/ Germany also favors the inclusion of three developing countries (one Asian, one African, and one Latin American) in the circle of permanent members, a concept that has been described as the "2+3" proposal, and which aims at creating a certain balance between developed and developing countries (or the North and the South) within the permanent membership (six developed countries compared to four developing countries). To make its candidacy even more palatable, Germany also proposed a so-called periodic review clause to be included in Article 23 of the Charter. A review, compulsorily taking place after fifteen years, was said to "guarantee that an increase in both membership categories is not irreversible". "All new permanent and non-permanent seats would be subject to re-examination after a certain period. As far as new permanent members are concerned, their status will be permanent but not eternal. ... The performance and the action of any new permanent member will be taken into account at the moment of review. Any new permanent member could be replaced. "48 However, neither Japan nor Germany pushed hard for a permanent seat in the past decade, and domestic political and public interest in, and support for, that goal remained weak in both countries. The candidacy of Japan and Germany for a permanent seat is supported to a varying degree. A number of states advocated permanent membership for Japan and Germany only if this membership will not entail the right of veto. Italy turned out to be one of the fiercest oppo47
48
See, e.g., speeches of Mr. Morihiro Hosokawa, Prime Minister of Japan , and Mr. Klaus Kinkel, German Minister of Foreign Affairs, before the 48th Sess. of the General Assembly, 27 and 29 September 1993, respectively. See also statement of German Ambassador Eitel, 13 November 1995, General Assembly 50th Sess., Provisional Verbatim Record of the 56th Plenary Mtg., Doc. Al50/PV.56, 24-25. See "Periodic review clause: working paper by Germany", 3 July 1996, Doc . AlAC.247/1996/CRP.15/Rev.l, reprinted in: "Report of the Openended Working Group", Addendum", 9 September 1996, Doc. A/50/47/ Add.1 , Annex XIV See also "Germany's position", see note 32: "Periodic review must be an integral part of any reform package and it must be compulsory, i.e. appear automatically on the General Assembly's agenda. Periodic review should apply to the whole reform package. It should occur every 15 years".
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nents of new permanent seats. In its view, the "2+3" proposal "would benefit only two or five Members of the United Nations, to the detriment of the remaining". "The end result would be a small directorate of big countries, making critical decisions on questions that affect us all, but on which we would have no say .. . "49 Italy's main motive appears to be the country's status in comparison to that of other European states. A German permanent seat, in addition to those held by the United Kingdom and France, is regarded as evidence of Italy's decline to a power of secondary rank in Europe. Whereas Italy first held that "should it be decided to increase the number of permanent members, Italy feels entitled to be one of them",50 it later proposed to leave the permanent members at five, and increase the Security Council by adding ten new non-permanent seats reserved for states rotating more frequently than others.t! These states are to be selected "on the basis of objective criteria" to be determined by the General Assembly. Italy challenges "the political, geopolitical or global - and not merely financial - entitlement" for obtaining the "privilege" of permanent membership.V Smaller countries were generally less disturbed by possible changes within the group of the leading military and economic powers to which they clearly cannot count themselves. By June 1996, about fifty governments of such countries - developing nations as well as industrialized ones - had publicly announced their support for Japan's and
49
50 51
52
Statement by Ambassador Fulci, 13 November 1995, General Assembly 50th Sess., Provisional Verbatim Record of the 56th Plenary Mtg, Doc. A/501PV.56, 16. For a comprehensive depiction of the Italian position, see Comitato Nazionale per fa Celebrazione del Cinquantesimo Anniversario delle Nazioni Unite (ed.), La Riforma del Consiglio di Sicurezza: Una Proposta Italiana - The Reform of the Security Council: An Italian Proposal, 1996. Italian statement of 30June 1993,Doc. Al481264, see note 16, 52. See statement by Ambassador Fulci, see note 49, 17. See also the revised Italian proposal for the enlargement of the Security Council of 15 May 1995, Doc. A/AC.247/5 (g), reprinted in: Doc. A/49/965 of 18 September 1995, 83-91, and the [second] revised proposal presented to the Working Group in May 1996, Doc. A/AC.247/1996/CRP.ll of 12 June 1996, reprinted in: "Report of the Open-ended Working Group", Addendum, see note note 48, Annex IX. See statement by Ambassador Sergio Vento at the General Assembly, 15 October 2002, Doc. A/57/PV.29, 21.
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Germany's candidacies.53 Other states were, however, opposing any new permanent seats. Their objections were prominently voiced by Pakistan: "We believe that any increase in the permanent membership would serve the interests of only a few countries, and would be to the det riment of small and medium sized countries, who constitute an overwhelming majority of the membership of the United Nations. Pakistan remains strongly opposed to the centers of privileges within the UN system. These are anachronistic, anti-democratic, and contrary to the spirit of sovereign equality as enshrined in the UN Charter. "54 At the beginning of the debate, the Northern industrialized states rather disliked the idea of creating new permanent seats for developing countries. The main argument put forward was the same as that used against anything but a modest increase in the number of non-permanent seats. It is best captured in the two words "efficiency" and "effectiveness", The former is meant to describe the Council's ability to deal swiftly with a situation that falls within its sphere of competence, that is to say, to adopt necessary measures without delay. "Effectiveness" shall characterize the degree to which the Council's decisions are actually implemented. The more "players" there are, so runs the argument , the less efficient and effective the work of the Council will be. Later, this position changed, particularly in view of the firm position of the African states without which a majority necessary for Charter reform cannot be obtained. The United Kingdom declared to be in favor of "additional seats for Asia, Africa and Latin America and the Caribbean". "As to the nature of those additional seats, we remain open-minded, although the views of the regions themselves will clearly be important't.>! Germany, too, came out in favor of new permanent
53 54
55
Information provided by the German Mission to the United Nations. See also statements reproduced in Doc. A/481264 and Addenda, see note 16. Intervention by Ambassador Kamal before the Open-ended Working Group, 27 March 1996, 2. Similarly the statement by the representative of Pakistan at the General Assembly of 14 October 2002, Doc. A/57/PV.28, 29. See also statement by the representative of Argentina, ibid. 20. Statement by Mr. Manley to the Open-Ended Working Group, 28 March 1996, United Kingdom Mission to the UN, Press Release 023/96 of 28 March 1996, 2.
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seats for developing countries. Norway'" and, in a joint paper of 9 May 1995, Austria, Belgium, the Czech Republic, Estonia, Hungary, Ireland and Slovenia also suggested giving Africa, Asia and Latin America one permanent seat each.V Portugal supported one additional seat for Africa and another one for Latin America.V Most importantly, the United States announced in July 1997 that it endorsed the proposal of giving three new permanent seats to developing countries. "The regions themselves [i.e., Africa, Latin America, and Asia] ought to decide how these seats will be filled". The Clinton Administration did not take a position on the question of a veto for new permanent members, including Japan and Germany, but declared that it would oppose any solution that would infringe on the prerogatives of the current permanent members." Besides the question of the veto, it was the inability of the three regions to agree on states that would represent them as permanent members which prevented the emergence of a consensus. The candidacy of Brazil is opposed by Latin American Spanish-speaking countries (in particular Mexico, Argentina and Columbia), and India's claim is strongly rejected by Pakistan. In Africa, the post-Apartheid Republic of South Africa and Egypt emerged as strong competitors of Nigeria. Proposals favoring certain types of rotating or "semi-permanent" seats were put forward in order to overcome these difficulties. Apparently there is also some opposition on the part of the franco phone African countries against the aspirations of Nigeria, South Africa and Egypt which are all English-speaking. The views of the developing countries with regard to an increase in the number of permanent seats of the Security Council are also by no means unanimous. Common ground is still reflected by a 1995 statement of the Movement of Non-Aligned Countries which since then has
56
57
58
59
Statement by Ambassador Lian to the Open-ended Working Group, 25 March 1996,3. Doc. A/AC.247/5 (c), reprinted in: Doc. A/49/965, 68, 69. See also the joint position paper of the Nordic Countries (Denmark, Finland, Iceland, Norway and Sweden) of 14 June 1995, Doc. A/AC.247/5 (j), reprinted in, Doc. A/49/965,104. Statement by Portugal to the Open-ended Working Group, 30 January 1995,3. See statements by the spokesman of the Department of State of 17 and 18 July 1997; United States Department of State, Daily Press Briefing Nos 108 and 109.
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often been repeated: "The non-aligned countries are grossly underrepresented in the Council. This under-representation should, therefore, be corrected by enlargement of the Security Council ... The extent, nature and modalities of the expansion of the Security Council should be determined on the basis of the principles of equitable geographical distribution and sovereign equality of states".60 However, it is still controversial how exactly these goals shall be achieved. In particular, the question of permanent membership and the veto is highly contentious. A small number of developing countries wish the category of permanent membership, and the veto power which it entails, to be abolished altogether because of its "undemocratic character". Cuba, for instance, ridiculed the permanent membership as "a quasi-divine right", leaving the members of the United Nations as a whole no opportunity periodically to confirm the P-5 in their status. "The 'right' to initiate warfare, conclude peace, impose sanctions, deploy military forces and so forth is in the hands of those who would use the United Nations, and in particular the Council, for their own, not always legitimate, political ends".61 A more significant opponent of new permanent members is Mexico.fA larger number of developing countries, however, does not question the existence of permanent members but favors additional permanent seats for the Southern hemisphere. In particular, the Member States of the Organization of African Unity (now African Union), though emphasizing that "[ujltimately ... all members of the Security Council would be elected according to the principle of equitable geographical representation", adopted this position.P The key phrase re-
60
Statement of the Movement of Non-Aligned Countries of 13 February 1995, Doc. A/AC.247/5 (i), reprinted in: Doc. A/49/965 of 18 September 1995,94. 61 Cuban statement of 29 June 1993, Doc. Al48/264, see note 16, 29 (31-32). 62 See, e.g., remarks by Ambassador Tello to the Open-ended Working Group, 22 April 1996, 1-2, and statement by the representative of Mexico at the General Assembly, 14 October 2002, Doc. A/57/PV.27, 16. 63 See "Reforrnes des Nations Unies: Position Africaine Commune", OAU Doc. NY IOAU/POLl84/94 Rev. 2 of 29 September 1994, paras 31, 33,34. English translation issued as Doc. AIAC.247/1996/CRP.6 of 25 April 1996, and reprinted in "Report of the Open-ended Working Group", Addendum, see note 48, Annex IV. See also the "Harare Declaration of the Assembly of Heads of State and Government of the OAU on the Reform of
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ferred to most often in this context stems from Article 23 para. 1 of the UN Charter, according to which the General Assembly, when electing the ten non-permanent members of the Security Council, shall pay due regard "in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution"(emphasis added). The developing countries in question want to extend the scope of application of the latter criterion to the selection of permanent members. In the last analysis, the criterion shall even take precedence over the others mentioned in Article 23. Accordingly, the respective governments point to the fact that presently three of the five permanent members of the Security Council are European states; that Asia, with only one member, is underrepresented; and that Latin America, including the Caribbean region, and Africa are not represented at all. From this they draw the conclusion that additional permanent seats have to be allocated to Asia, Latin America and Africa. This claim is further backed by the explanation that the states of these regions constitute the overwhelming majority of the total membership of the United Nations, and represent the great bulk of the world's population. On 29 September 1994, the Council of Ministers of the Organization of African Unity unanimously declared Africa to be entitled to two permanent seats, to be occupied on a rotating basis according to criteria to be established by the OAU. 64 The representative of Tunisia, setting forth the African proposal, made it understood that Asia and Latin America should equally get two such seats.65 The demand was reiterated by the speaker of the African Group in the General Assembly in October 2002.66 By way of summary, it may be said that there is wide support for three additional permanent seats for developing states (one for Africa,
64
65
the United Nations Security Council" of 4 June 1997; Doc. A/AC.2471 19971CRP.ll of 27]une 1997. See "Position Africaine Commune", see note 63, para. 34. For discussion, see N.M. Mulikita, "Kooperation und Differenz: Die OAUIAU und der Sicherheitsrat", Vereinte Nationen 50 (2002), 44 et seq. (47 et seq.). See statement by the Permanent Representative of Tunisia, Ambassador Slaheddine Abdellah, to the Open-ended Working Group, 25 March 1996, 1.
66
See statement by the representative of Ethiopia, Mr. Hussein, on behalf of the African Group of 16 October 2002, Doc. A/57/PV.31, 19.
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one for Asia, and one for Latin America and the Caribbean), but no consensus in the three geographic areas on which states should be nominated for permanent membership or how exactly a system of "rotating permanent seats" would work. The Western states have generally rejected the idea that the criterion of equitable geographical distribution should be decisive for the selection of permanent members, and laid more stress on the contribution of member states to the maintenance of international peace and security and/or the other purposes of the organization. A number of states, from the developed as well as the developing world, came forward with often lengthy catalogues of criteria which should govern the selection of permanent members or members constituting one of the differently designed groups of "semi-permanent members". According to most of these proposals, the criteria shall only be applied to new members. Some states, however, want to submit even the present permanent members to them. The governments of India and Nigeria have particularly stressed the importance of the size of population of a given country. They hold the view that the principle of democracy entitles countries with a large population to increased rights of participation in the international sphere.s? The other criteria listed by India are "size of economy, its resilience and self-sufficiency in terms of raw material supply and markets", a member-state's contribution to UN peace-keeping operations with troops and money, and the "future potential" of a state. Germany declared that countries selected to serve as permanent members "should have global influence and demonstrate the capacity and a willingness to contribute to the maintenance of international peace and security". 68 However, these efforts to establish common standards for (future) permanent and "semi-permanent" members of the Security Council have met with mixed response. The British Ambassador called them "an academic exercise t.s? It appears that lately only Tunisia has tried to re67
68
69
See, e.g., Indian statement of 29 June 1993, Doc. A/48/264, see note 16, 46 (48-49). See also the Nigerian statement of 30 June 1993, ibid., 70, 72 (referring to the phrase "We the peoples of the United Nations" in the preamble of the UN Charter as "encapsulat[ing] the notion of peoples, the aggregation of which is the population of the world"). See Germany's position, see note 32. Statement by Ambassador Gomersall at the Open-ended Working Group, 27 May 1994. Similarly the French non-paper of April 1996 "Questions relatives ala composition et ala taille du Conseil de Securite", para. (a).
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vitalize the idea when it suggested applying the following "criteria for enlargement": geographical representation; economic significance and financial contributions to the United Nations; size of population; identities and cultures."
2. Proposals Regarding a "Third Category" of Members of the Security Council The idea of creating a "third category" of members of the Security Council - which would enjoy a "better" status than the nonpermanent members but not the privileges of the present permanent ones - has found substantial support during the discussions of the Open-ended Working Group. The respective proposals are closely linked with the problem of the veto power in that one of their major concerns is to prevent a further proliferation of the veto. Certain "mid-sized" states, realizing that their chances of becoming permanent members are minimal, see a "third category" as a possibility of being represented more often on the Council. Lastly, some governments support the idea because they fear it might not be possible at all to reach agreement on an increase in the permanent membership. In their opinion, the aspirations of the respective states should then, for the sake of the organization, at least be accommodated as far as possible. According to the different motives, proposals for a "third category" vary. One such category would be established by adding to the present P-S a group of permanent members without the right of veto. This concept is supported by a number of states, in particular those who regard permanent membership for Japan and Germany as a necessity but, for a variety of reasons, reject the right of veto. Another "third category", in addition to the one just mentioned or standing by itself, would be constituted by a group of "regional representatives serving a long term of office", as the Chilean Government proposed." Similarly, Belize suggested a so-called "indefinite membership" to replace the present category of permanent membership: "Tenure would be indefinite in the sense that it would be of longer duration
70
71
See statement by the representative of Tunisia, Mr. Mejdoub, at the General Assembly of 15 October 2002, Doc. A/57/PV.30, 6. Statement by Chile, 30 June 1993, Doc. A/48/264, see note 16, 15 (17).
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than the two years for regular members. The period could conceivably be five years."72 As mentioned before, the Organization of African Unity has claimed two permanent seats for Africa." The OAU wants Asia and Latin America equally to be endowed with two seats. These seats ("permanent regional rotating seats") shall rotate among members of the respective regional group, according to criteria established by the region. Although the seats are described as a "privilege of the regions entitled to them", membership on the Council shall be governed by the rules of the Charter. What is meant by this was made clear in a statement by Tunisia: "The country which occupies that seat will have to enjoy the veto right and would not have to consult with other states of that region before exercising it",74 The states shall be designated by the region (for a period of approximately four to six years, with the possibility of immediate re-election) and be elected by the General Assembly, this procedure being not unlike the one presently observed with regard to non-permanent members. Actually, this proposal seems to be based on the idea of lifting the ban on immediate re-election of nonpermanent members (Article 23 para. 2 in fine of the Charter) as advanced by Germany and other states. It goes beyond that idea in that the normal terms of two years shall be exceeded and the role of the respective regional group be strengthened. The African states see this approach as a first step towards a more far-reaching democratization of the Council: "In time, the present permanent members should also be subject to nomination by their regions and election by the General Assembly",75 A different plan aiming at the creation of a "third category" was based on global rather than on regional considerations. Turkey advanced the idea of "creating ten new seats to be rotated among a specific
72
7J
74 75
Submission made by the delegation of Belize to the Open-ended Working Group, 15 September 1995, reprinted in: Doc. A/49/965, 71 (74). For a similar proposal (semi-permanent membership, without the right of veto, for two states of each of the five regions, the states rotating every two years), see L.B. Sohn, "Modernizing the Structure and Procedure of the Security Council", in: R.J. Dupuy (ed.), The Development of the Security Council: Peace-keeping and Peace-building, 1993, 385 (388-90). See supra text accompanying note 63 et seq. Statement of 10 May 1996, 3-4. "Position Africaine Commune", see note 63, para. 36; Harare Declaration, see note 63, para. 3.
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number of States" which would be determined according to the following criteria: population, geopolitical situation, military capacity, economic potential, "history of working within the Charter", record of contributions to the maintenance of international peace and security and to the other purposes of the Organization, and equitable geographical distribution." Similar schemes were presented by the Italian and Spanish Covernments.Y These various proposals have, however, not passed unchallenged, and this, again, for different reasons. India and Mexico rejected the regional rotation schemes as discriminatory because only developing countries shall be submitted to this procedure." India is not inclined to share the seat to which it feels entitled with other states of the region, or to seek their support for obtaining and keeping this seat. More widely, the idea of creating a new category of permanent members that would lack the right of veto has been criticized. Guatemala, for instance, called this idea "an infringement of the principle of the sovereign equality of States'V? According to this view, the introduction of a three-class membership system would only aggravate the present situation in which the prerogatives of the permanent members compromise the equality of states. On the other hand, a "realistic" approach led some states, among them Singapore, to the conclusion that suggestions to introduce a new class of permanent members without the veto are impractical: "No country that is capable of making a contribution as a new permanent member will accept such second class status for long".80 76
77
78
79
80
Statement by Turkey, 28 June 1993, Doc. A/481264, see note 16, 87 (88). See [second] Italian proposal of May 1996, see note 51, paras 7 (b) and (e). The Spanish proposals are outlined in a working paper of 28 February 1996, Doc. A/AC.247/1996/CRP.10 of 4 June 1996, reprinted in: "Report of the Open-ended Working Group", see note 48, Annex VIII. For India, see statement by Ambassador Shah in the Open-ended Working Group, 27 March 1996. For Mexico, see remarks by Ambassador Tello to the Open-ended Working Group, 22 April 1996, 4. Statement by Guatemala, 28 June 1993, Doc. A/481264, see note 16,44 (45). See also "Permanent Regional Representation: Working Paper by Malaysia", Doc. A/AC.247/1996/CRP.18, reprinted in: "Report of the Openended Working Group", see note note 48, Annex XVI, para. 11: "Permanent regional members shall exercise all rights similar to other permanent members". Speech by the Fore ign Minister of Singapore, 6 October 1993, see note 37, 5.
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Moreover, Germany declared that if it becomes a permanent member of the Council "this has to be on an equal footing with the other permanent members, without discrimination, i.e. with the same rights and the same obligations't.f This view is shared by the governments of other states interested in becoming permanent members.F The African states have outrightly rejected the idea of "semi-permanent seats" rotating on a universal basis, as suggested by Turkey and Italy.83 Finally, there are concerns that apply to the creation of any of the "third categories" described above. In particular governments of smaller states are afraid that, given certain limits of the overall size of an enlarged Council, the establishment of such a category would impede their chances of entering the Council.s" Any "third category" might also diminish the position of non-permanent members in the Council because it is likely that links between permanent and semi-permanent members would be closer than those with non-permanent members.
If, therefore, the formal establishment of a "third category" of members of the Security Council is unlikely, a less complicated amendment to the UN Charter could lead to a similar result. Article 23 para. 2 of the Charter provides that "[a] retiring member shall not be eligible for immediate re-election". A number of states proposed to delete, or to provide for certain exceptions from, this clause.f" Among these states was Germany which explained that, together with an increased number of seats on the Security Council, such a removal of the ban to re-elect non-permanent members would give to Africa, Asia and 81
82
83 84
85
Statement by Ambassador Henze to the Open-ended Working Group, 17 May 1994, 4. In essence, this position was reiterated in the statements by Ambassador Eitel to the Open-ended Working Group of 25 March 1996, and 23 April 1996, 6 and 9-10, respectively. See also" Germany's position", see note 32: "The veto should be exercised with utmost restraint ... Germany holds the view that, in principle, new permanent members should be granted the same powers as the current permanent members." But see the Razali plan, text accompanying note 27. See statements to the Open-ended Working Group by the Permanent Representative of India of 27 March 1996, para. 13, and by the Japanese Ambassador Owada of the same day, 6. See "Position Africaine Commune", see note 63, para. 37. See, e.g., Statement by Luxembourg, 12 July 1993, Doc. A/48/264, Add.1, see note 16, 14 (15). See the statements of Australia, Ecuador, the Netherlands, New Zealand, Norway and Canada, Doc. A/48/264 and Add.1, see note 16, and of Germany, see note 81.
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Latin America a full range of options as to which Member State they want to send and for how long to the Security Council as their representative.s" The main difference between this proposal to amend Article 23 para . 2 of the Charter and the above-mentioned models of a "third category" membership is that in case of a removal of the ban immediately to reelect non-permanent members, the respective states would still have to gather the necessary support of their region and, in the second place, the whole United Nations membership every other year. In contrast, the "third category" plans would assure them a continuous or rotating membership on the Council for a longer, or even indefinite, period of time. A possibility for non-permanent Council members of being reelected in uninterrupted and indefinite succession was already known to the League of Nations. In 1926, when Germany was about to join the League and become a permanent member of its Council, a number of other states (Poland, Brazil, Spain, China and Persia) also laid claim to a permanent seat. The majority of the members of the League opposed these wishes but was willing to accommodate the aspirations of the states in question by providing for a category of "semi-permanent" membership. Different from the ordinary non-permanent members, the respective states could immediately be re-elected after the end of their three-year term of office. A state which wanted to continue its membership had, however, to apply for a specific declaration of the League Assembly, which had to be passed by a two-thirds rnajoriry.'"
IV: The Reform of the Veto Power The debate among governments about the right of veto resembles very much the one of 1945. Many governments oppose the veto for its violation of the principle of sovereign equality of states. 88 Often the veto is 86 87
88
Statement by Ambassador Henze of 17 May 1994,see note 81, 2. See W. Schiickingl H. Wehberg, Die Satzung des Volkerbundes, 3rd edition, Vol. 1,1931,477-479. According to informal consultations of the vice-chairmen of the Openended Working Group with representatives of 165 Member States held in early 1997, a "vast majority" of governments regarded the right of veto as anachronistic and undemocratic. See Doc. A/51147 of 8 August 1997, Annex VI. The Razali draft resolution, see note 27, said that "an overwhelm-
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also said to be inconsistent with a concept of "democracy in the United Nations" although it is doubtful whether such a concept has a firm basis in the United Nations Charter.s? Radical proposals aim at a total removal of the right of veto from the Charter, whereas more cautious ones suggest certain modifications and limitations. It is interesting to note that Latin American countries figure prominently in both of these groups. A third group, partially overlapping with the first two, contests the extension of the veto power to any new permanent members of the Security Council. Among these states, we find with Australia, Italy, Spain, Sweden and Iceland important members of the Western European and Other States Group. In comparison, the camp of the supporters of the veto is less densely populated. However, among its protagonists are particularly strong states - the veto's present beneficiaries and the states aspiring to per manent membership. An abolition of the right of veto was originally called for by Colombia , Cuba, Guatemala, Malaysia, New Zealand, Yugoslavia, Libya, Sudan and Yemen.P Their arguments are basically the same. The Government of Colombia characterized the veto as "a mechanism of non-cooperation in a system of collective security which necessarily requires cooperation". The right of veto, Colombia believed, "has lost practically all its raison d'itre, having become a privilege lacking any proportion". "[I]t has become necessary to formulate specific proposals on ways to replace the veto mechanism, either through a qualified majority or by a weighted vote, depending on the type of decision to be taken or, if this is not accepted, through the active participation of other bodies of the United Nations system as appeal mechanisms, particularly through the General Assembly (on the basis of special majorities). "91 Malaysia was of the view that "an assessment of utilization of veto power would indicate that the veto is being used in support of partisan
89 90
91
ing number of Member States consider the use of veto in the Security Council anachronistic and undemocratic, and have called for its elimination". See Fassbender, UN Security Council Reform ... , see note 18,301-305. See the respective statements in Doc. A/48/264 and Add.l, 2 and 3, see note 16. For Malaysia, see also the working paper referred to in note 79, paras 2, 20-21. Statement by Colombia, 29 June 1993, Doc. A/481264, see note 16, 19 (21).
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and national interests rather than in defence of issues and principles and in the interest of the international community t .V Like the Movement of Non-Aligned Countries, the African states wish the right of veto - an "anti-democratic practice" - eventually to be eliminated . However, in case it is maintained , Africa wants the new permanent members to enjoy the same prerogatives as the present P-5: "No fewer than two permanent seats, with all the privileges - including the veto - attached thereto, should be allocated to Africa."93 In general accordance with this view, quite a number of states have come forward with specific recommendations for restrictions of the veto power or, in more general terms, with a call for a "review" of the present system of voting in the Security Council. The reasons given to support the different proposals are mainly the same as those asserted for an abolition of the veto. The first of the specific proposals wants to limit the scope of the veto. According to a proposal of the Movement of Non-Aligned Countries?' and a number of individual submissions, the right of veto should be confined to decisions made under Chapter VII of the United Nations Charter." The second of the specific proposals aims at restricting a single permanent member's power to prevent the Council from adopting a resolution. A "requirement that, for a veto to become effective, it should be exercised by at least two permanent members" 92
93
94
95
Statement by Malaysia, 28 June 1993, Doc. A/481264, see note 16,55 (5859). See also the working paper referred to in note 79, para. 2. Statement of the representative of Ethiopia, Mr. Hussein, on behalf of the African Group at the General Assembly, 16 October 2002, Doc. A/57/PY.31, 19. See the Egyptian working paper "The Question of the Veto" of 27 March 1996, Doc. A/AC.247/1996/CRP.9, para. 11, and the NAM Final Document of 1997, see note 35, para. 30 ("The Ministers reaffirmed the Movement's proposal that the veto should be curtailed, with a view to its elimination, and that the Charter of the United Nations should be amended so that, as a first step, the veto power should only apply to actions taken under Chapter VII of the Charter"). See the respective statements in Doc. A/481264 and Add.3, see note 16, 7 and 25. See also the Razali plan of 1997, see note 27, according to which the General Assembly would "decide to discourage use of veto, by urging the original permanent members of the Security Council to limit the exercise of their veto power to actions taken under Chapter VII of the Charter". For a discussion of other proposals seeking to limit the scope of the veto, see Fassbender, UN Security Council Reform ... , see note 18,266-268.
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was suggested by the GAU and a number of other states." Similar to this is a third proposal which thinks about ways of over-ruling a veto cast by only one permanent member by a majority decision of either the Security Councilor the General Assembly.V In more general terms a substantial number of United Nations members has called for a review of the right of veto ." These calls confirm Malaysia's dictum that "there is a universal clamour to reform the veto, even if it cannot be eliminated'T" Lastly, a third group of states emphasized that any new permanent members of the Security Council should not be awarded the right of veto. Such extension is regarded as furthering an inherently undemocratic privilege which should actually be restricted and eventually abolished in the post-Cold War world.P? During the discussions of the Working Group, it was suggested that new permanent members should unilaterally declare their intention to restrict the use of the veto. In view of the position adopted by the present permanent members, it has been proposed that they too should be urged to limit the exercise of their veto power. Other delegations have doubts whether such political declarations would be effective. Only a handful of countries have defended the veto. Australia, although believing that there are good reasons not to extend the veto to new permanent members, has acknowledged the value it has had so far as a form of "last resort" safeguard to protect the national interests of the strongest players in the system of collective security, "if only to ensure that they have a stronger stake in acting within the system than outside of it" .101 The Foreign Minister of Singapore was one of the few underlining the veto's merits in a more resolute way: "It is neither practical nor even desirable to do away with the veto ... It is a recognition of the hard reality that great powers will not consent to put their 96 97 98
99 100
101
See "Position Africaine Commune", see note 63, para. 33 (e). See, e.g., statement by Ukraine, 2 August 1993, Doc. A/481264, Add.2, see note 16, 6 (8). See the statements of Honduras, Paraguay, Algeria, Indonesia, Venezuela and the Republic of Korea, Doc. A/481264 and Add. 1 and 2, see note 16. See Permanent Regional Representation, see note 79, para. 21. See "Observations by the Vice-Chairmen of the progress of the work of the Open-ended Working Group during the forty-ninth session of the General Assembly", 15 September 1995, Doc. NAC.247/1, reprinted in: Doc. A/49/965, 4-17, para. 16. Statement by Australia, 7 July 1993, Doc. N481264, see note 16, 8 (9).
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power at the disposal of a sheer majority for the implementation of decisions which they do not agree with. It is a safety valve that prevents the UN from undertaking commitments that it lacks the power to fulfil".102 In a statement of March 1996, US Ambassador Inderfurth said: "The US does not support any abridgement of the right of veto or its scope of application as set forth in Article 27 of the Charter, As a matter of daily practice we seek to use the Council as effectively as possible and thus try vigorously to reduce or minimize conditions which may lead to veto use. These efforts are increasingly successful. There are exceptions, but they are rare and they carry far less risk for the United Nations or the world community, than veto restriction or abolition. It is a fact that the continued existence of the veto has repeatedly avoided a level of disunity or direct confrontation between the major powers, or anyone of them and the United Nations, which could subvert a Council action or fatally impair the Council's ability to carry out its duties. We do not take this fact lightly or casually or see it as anachronistic'i.P' The United States also discarded the idea of defining "procedural matters" as referred to in Article 27 para. 2 of the Charter, which some delegations saw as a way of limiting the use of the veto. Apart from a few procedural matters that are clearly indicated as such in the Charter, it is unclear what constitutes a "procedural matter". In accordance with the San Francisco Declaration of the Four Powers.l'" this preliminary decision is made by a qualified majority as provided for in Article 27 para. 3, which means that any permanent member may establish the non-procedural character of a given proposal by use of the veto and then may veto the proposal itself. This method has come to be called 102 Speech by the Minister of Foreign Affairs of Singapore, 6 October 1993, see note 37, 6. 103 Statement by Ambassador Inderfurth, United States Representative for Special Political Affairs, to the Open-ended Working Group, 27 March 1996, United States Mission to the UN, Press Release 39-(96) of 27 March 1996, 2. See also United States fact sheet of 5 January 2000, see note 34, ("We are firmly opposed to changes to the veto held by the current permanent members"), and statement by Ambassador Siv at the General Assembly of 14 October 2002, Doc. A/57/PV.27, 10 ("we will continue to oppose efforts to limit or eliminate the veto") . 104 See Statement by the Delegations of the Four Sponsoring Governments on Voting Procedure in the Security Council, 7 June 1945, para. II.2. For text, see B. Simma et a!', "Comment on Art. 27", in: Simma, see note 8, 521-523 .
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the "double veto".105 As in the beginning, the United States thus seeks to secure as much flexibility in the interpretation and practical application of Article 27 as possible. For years now, this deadlock has not been overcome, and it is unlikely that it will any time soon. The present P-S insist on preserving their right of veto in its given form. At the same time, the P-S, with the exception of France.P" do not support new permanent seats for the developing world endowed with that full-fledged right. In particular, they are not willing to accept a scheme like the African plan of "rotating permanent seats" according to which the states enjoying the right of veto would not be known in advance. On the other hand, the NonAligned Movement and the African Union have made it clear that they expect the new African, Asian and Latin American permanent members to enjoy the same rights as all the other permanent members, and that they will not agree to any new permanent seats for industrialized states if this condition is not met. The speaker of the African Group at the fifty-seventh session of the General Assembly expressly warned that an expansion of the Council, particularly of the permanent members, will only occur if Africa is included.P?
v
Conclusion
It is well known that any amendment to the UN Charter requires a vote of two-thirds of the members of the General Assemblyl08 and a ratification by two-thirds of the Member States, including all the permanent members of the Security Council (Arts 108 and 109 of the UN Charter). After almost a decade of discussions about a reform of the Security Council, such a level of agreement does not appear to be any-
See Simma et aI., see note 104,476 (489-492), and L. Gross, "The Double Veto and the Four-Power Statement on Voting in the Security Council", Haru. L. Rev. 67 (1953), 251 et seq. 106 See Questions relatives a la composition et a la taille du Conseil de Securite (French non-paper of April 1996), para. (f), 107 See statement of the representative of Ethiopia on behalf of the African Group, Doc. A/57/PV.31, 19. 108 For explanation, see W. Karl et aI., "Comment on Art. 108", in: Simma, see note 8, Vol. II, 1341 et seq. (1347): "[T]his wording must be taken at face value, which means that the majority has to be calculated on the basis of the total number of members of the General Assembly (and the UN)". lOS
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where in sight. In fact, it seems that today there is less agreement than there was in 1996 or 1997. In the following years, and largely due to a sense of resignation and exhaustion of those involved in the prolonged and apparently fruitless discussions, the famous "momentum for reform", built up in the nineties, was lost. It is impossible to say whether a draft resolution submitted to the General Assembly by one or several of the governments taking the strongest interest in a Council enlargement (Germany, Japan, India, Brazil) would have succeeded, or whether an initial opposition on the part of certain states, in particular the present permanent members, could have been overcome, as happened in 1963.109 All we know is that it was not even tried, and that it is unlikely that there will be a similar "window of opportunity" any time soon. The most modest of all Council reforms, a repeat of 1963 with a further increase in the number of non-permanent seats from the current ten to either fifteen or seventeen, about which there was broad agreement in the Open-ended Working Group, was neither supported by the United States, nor by Western European and Other States (which could not expect to get an additional non-permanent seat), nor by the Non-Aligned Movement. At present, many observers are of the opinion that the general international situation drastically changed in the aftermath of the terrorist attacks of 11 September 2001, and that we are witnessing a fundamental reorganization of the international system characterized by a United States pursuing its national interests, and in particular its security interests, much more resolutely and determinedly than before, and paying less attention to multilateral rules and procedures. If this assessment is correct, the question follows whether in this new international order there will be a meaningful place for the United Nations and the Security Council. Will the internationalist project that began with the League of Nations and was continued with the United Nations of 1945 survive? It has almost been forgotten that this project was promoted by two great American presidents, Woodrow Wilson and ED. Roosevelt. At any rate, the only one state which today could launch a United Nations reform initiative with a reasonable chance of succeeding is the United States, but there is clearly a lack of any will in this direction in the present administration. Perhaps a Democratic President elected in 2004 would take a genuine interest in a renewed and effective United Nations as a partner, and not just an instrument, of the United States. Next to the United States, UN reform could also be successfully ad109
See note 7.
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vanced by the European Union, provided that its Member States (including the United Kingdom, France and Germany) truly agreed on a common position.
It has rightly been said that the powers of the Security Council "are a precious, but at the same time precarious trust of the international community, certainly the greatest achievement of the new world order that emerged after the catastrophe of the Second World War". "Each and every state should be aware of the enormity of the progress that Chapter VII of the Charter embodies compared with the earlier system of unbridled coexistence of national sovereignties. "110 The Security Council is the principal organ of the international community. It has been entrusted with the task of defending "the interests and values regarded by the same community as being fundamental for the maintenance of its own integrity" .111 The Council represents a centerpiece of the post-1945 constitution of the international communiry.Ut If the authority and legitimacy of the CounciJ113 are seriously impaired by a further delay of its reform as well as a gradual erosion of its powers under Chapter VII of the Charter, this will inevitably have a direct and negative impact on the international constitution as a whole, and hence the edifice of international law which rests upon that constitution. In other words, the price that members of the international community will have to pay for their prolonged neglect of, and indifference to, the future of the Security Council and the international security system built around it, may be much higher than they seem to imagine today. It is true that it is extremely difficult to adapt to the present situation a Charter so closely, and intrinsically, associated with the international power structure of 1945 or, from a somewhat different perspective, with the specific stage of development that the international state system had
110
111
112
113
See C. Tomuschat, "Using Force against Iraq", Die Friedens-Warte 73 (1997),75 et seq. (81). See P.M. Dupuy, "The Constitutional Dimension of the Charter of the United Nations Revisited", Max Planck UNYB 1 (1997), 1 et seq. (1). See B. Fassbender, "The United Nations Charter as Constitution of the International Community", Colum. J. Transnat'l L. 36 (1998), 529 et seq. (574-576). See also id., "Quis judicabit? The Security Council, Its Powers and Its Legal Control", EjIL 11 (2000),219 et seq. For the notion of legitimacy as applied to the Security Council, see Fassbender, UN Security Council Reform ... , see note 18,315 et seq., and id., "Uncertain Steps into a Post-Cold War World: The Role and Functioning of the UN Security Council after a Decade of Measures against Iraq", EjIL 13 (2002),273 ct seq. (292-95).
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reached at the end of World War II. However, there is no viable alternative to facing that challenge, and to facing it soon. The difficulties of building a new order on the ruins of the UN Charter would certainly be much greater. «All illusions shattered"? Tracy Chapman's song continues with the lines: "We'll destroy ourselves if we can't agree / How the world turns / Who made the sun / Who owns the sea / The world we know will fall piece by piece". 114
114
See note 2.
Regional Integration According to Article XXIV GATT - Between Law and Politics Peter Hilpold
I. II.
Introduction Forms and Dimensions for Modern Economic Integration III. The Content of Article XXIV IV. First Conclusions about Regional Integration in GATTIWTO Law V. The Turkey - Restrictions on Imports of Textile.and Clothing Products Case VI. The European Union and Modern Trends in Regional Integration VII. Conclusion
I. Introduction Regionalism is back! This is, at least, what many studies on this issue assert and what the ongoing European integration process in particular seems to confirm.' In reality, regionalism has never gone away since January 1948 when GATT law first started to be applied.f The drafters
2
See, for example, N. Nagarajan, "Regionalism and the WTO: New Rules for the Game?", in: European Commission, Economic Papers No. 128, June 1998, 3. As is known, GATT as such never entered into force but found provisional application by the way of the so-called Protocol of Provisional Application (UNTS Vol. 55 No. 814). See J.H. Jackson, The World Trading System, 1997, 39 et seq. Of course, economic integration is a much older phenomenon than GATT law which cannot be recounted in detail here. See, in this respect, for example, J. Viner, The Customs Union Issue, 1950.
A. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook a/United Nat ions Law, Volume 7, 2003, 219-260 . © 2003 Koninklijke Brill N. V. Printed in the Netherlands .
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of this agreement have created with article XXIV an open space where Regional Trade Agreements (RTAs) could blossom and enter into competition with the multilateral system. This space was further enlarged through developments on the level of primary and secondary law offering particularly advantageous conditions for RTAs including developing countries.' While cyclical developments in this half century cannot be denied, the trend is clear in the sense of a continuous strengthening of regionalism in a multilateral system which had to adapt to these impulses and to find adequate responses. In this steady process of proliferation and strengthening of RTAs in an ever-evolving multilateral environment for the last decade an acceleration could be noticed. The most authoritative source to proof this allegation is surely the WTO Secretariat which in a recent paper" evidenced that as of March 2002, 250 RTAs had been notified to the GATT/WTO, of which 168 are currently in force.! Most interesting is, however, the fact that from 1948 to 1995 exactly the same number of RTAs has been notified to the GATT as in the seven years since 1995 to the WTO (125). Of those 125 notified to the WTO 94 are still in force. Notification procedures take time and have often to pass administrative or political obstacles. If non-notified RTAs are also taken into consid-
3
4
In any case, lacking at that time a general legal framework for multilateral trade and, most of all, a general MFN obligation as imposed afterwards by article I GATT, a comparison of developments before and after 1948would be of limited value. These earlier developments are, however, of great factual importance as the existence of preferential regimes after World War II and the determination of the participating countries to defend them has had a decisive influence on the outcome of the negotiations on article XXIV. In 1965 Part IV entitled "Trade and Development" was added to the GATT agreement . On 28 November 1979 the CONTRACTING PARTIES adopted the so-called Enabling Clause, a decision entitled "The Differential and more favourable Treatment, Reciprocity and Fuller Participation of Developing Countries" , GATT BISD 26S 1980,203-205. Regional Trade Integration under Transformation, preliminary draft prepared for the Seminar on Regionalism and the WTO, WTO Secretariat, Geneva, 26 April 2002; http;llwww.wto.org/english/tratop_e/region_e/ sem_april02_el sem_apriI02_e.htm Ibid., 3. As of March 2003 this number has risen to 263 of which 180 remain in force.
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eration then the number of RTAs in force rises to 243.6 According to the WTO Secretariat this acceleration can be explained for the first half of the 90s by the uncertainties about the outcome of the UruguayRound and by the integration efforts within Europe after the collapse of the COMECON block." For the second half of the 90s the strengthened notification obligations under WTO law can only partly explain this upsurge which does not appear to be only statistical, or, in other words, due to greater transparency. It is more convincing to argue that these developments are more real than apparent and that there are factual reasons to explain these trends convincingly. In fact, in literature many explanations have been expounded. Paul Krugman has listed the following reasons why regionalism is a natural, almost necessary phenomenon in face of the present status of international trade relations.f With the number of participants in international trade negotiations ever-increasing, according to the game theory, the costs of noncooperation are reduced . This assumption would also explain why, once trading blocs following a common policy in external trade relations have formed, interest in cooperation again increases. As modern trade negotiations concentrate more on complex nontariff trade barriers than on rather simple tariff reduction as in past GATT Rounds, multilateral trade negotiations with a great number of participants are far more difficult than negotiations between a smaller number of trading blocs. The United States are no longer the determining influence on trade negotiations. The reduction of the number of participants could again facilitate the steering of the negotiations towards a successful end. Whether the United States has really lost so much power is, however, open to debate. While it is obvious that the influence it had immediately after World War II is no longer present - at being a totally ex-
6
7
8
Ibid., 4. The WTO Secretariat predicts further the coming into existence of another 87 RTAs by 2007. In these numbers neither the accessions to existing RTAs are taken into account nor are the 18 notified Economic Integration Agreements considered. Ibid., note 3. Ibid., 3. See P. Krugman, "Regionalism versus Multilateralism: analytic notes", in: J. De Melo! A. Panagariya (eds), Ne w Dimensions in Regional Integration, 1993,58 et seq. (74).
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ceptional situation - since then there have been ups and downs during the last decade seeing an increase rather than a diminution in economic dominance. Unconditional Most-Favoured-Nations treatment (MFN) has lost its appeal because of widespread non-compliance to GATIIWTO obligations. Regionalism can become an alternative to multilateralism, at least so long as rule adherence has been restored. Baldwin has recently referred to the so-called domino-theory as the main cause for the expansion of RTAs.9 According to this theory the trade and investment diversion engendered by the creation, extension or deepening of a preferential trade area incites economic actors in nonparticipating nations to exert "pressure for inclusion't.'? There are always lobbies both for a multilateral approach and for a regional one but the latter, which are directly harmed by the discriminatory practices of trade blocs, usually lobby harder.11 This theory can explain very convincingly the essentially two-polar regionalisation process where the NAFTA forms one centre, and the EU the other.P On the whole, however, these various theories are not mutually exclusive but should be seen as complementary. There is another risk associated with this classification. In fact, by adopting a purely economic perspective one risks ignoring one of the most important motives for regional integration: the political one. We should never forget that political motives were of decisive importance for the creation of article XXIV and it was also of central importance for each integration project of the past. As we will see later, political elements also have to be considered when the permissible extension of regional trade integration has to be assessed. 9
10 11
12
See R. Baldwin, "A Domino Theory of Regionalism", in: R. Baldwin/ P. Haaparnata/ J. Kiander (eds), Expanding Membership of the European Union, 1995, 25-53; id., "The Causes of Regionalism", in: World Economy 1997,865 et seq. Ibid., 878 et seq. See Baldwin, see note 9, 879 et seq. for a detailed analysis of this asymmetric lobbying process. Interestingly, the Asian continent was a far harder place for integration initiatives than Europe or the Americas. A leading trading nation as Japan has not even joined one single RTA. See, in this context, H. Saburi, "The GATT/WTO and Regional Integration", The Japanese Annual of International Law 44 (2001), 60 et seq. (61). At a closer look, however, this situation is another confirmation of the paramount importance of politics in regional integration as political cohesion on the Asian continent is arguably extremely low.
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Before we enter into a detailed discussion about the various concepts that come into consideration here, we should perhaps set the focus right. Usually we associate regionalism with issues that happen at the subnationallevel. Economic regionalism, however, is different, as it concerns, mainly, phenomena of transnational relevance. This different perspective can be easily explained if we consider that the reference point for International Economic Law is not the national order but the mutilateral, and potentially the universal one. In this light, economic regionalism turns again to a second stage with regard to the primary objective, the multilateral system. As this issue is totally different from that of national regionalism it is also submitted that the values associated with economic regionalism are of a diverse nature. On a national and even on the EU level regionalism is considered predominantly as a positive development.P It is an important expression of the principle of subsidiarity, a necessary counterbalance against centralism and a purely state-oriented perspective. It fosters the participation of broader parts of the society in the democratic decision-making process and it allows for better consideration of local realities in the spending of public funds. Through the transnational cooperation of subnational regions, regional necessities can be taken into account even on a level transgressing national boundaries. The overall attitude towards economic integration is, on the other hand, mixed. Economic regionalism is often seen as a second best solution which should be resorted to only where the first best solution, multilateralism, is not attainable. There are even outright opponents of economic regionalism who maintain that this tendency is endangering the multilateral system or even the principle of free trade altogether.l" Others are of the opinion the economic integration can be conducive to the further liberalisation of trade as it may have an experimental function, it may show the way for further liberalisation attempts and it may
13
14
It may here suffice to mention the great importance attributed in the European politic discussion to the principle of subsidiarity and the ever louder call for a "Europe of Regions". Although these cal1s had so far only limited practical success it cannot be denied that they are widely seen as legitimate political goals. RTAs are sometimes defined as "stumbling stones" on the way towards a more liberal international trade system. See also note 54 and accompanying text .
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engender a competitive process where market liberalisation is the ultimate goal." The International Economic Order and - in particular - article XXIV GATT, the most important legal provision in this regard, reflects very impressively the broad dissent and conflict of opinion prevailing in this field. We will see that this provision is in many ways inconclusive. Its underlying tendency may be favourable towards regional integration zones but the main reason for this attitude seems to lie in the fact that regionalism as such cannot be impeded and therefore the primary goal should be to rein in its most detrimental effects.
II. Forms and Dimensions for Modern Economic Integration So we have learnt that economic regionalism - understood in its traditional sense - is mainly a transnational phenomenon and we have anticipated that there are rather contradictory attitudes towards this reality. Before proceeding to a detailed analysis of the legal problems resulting from economic integration we should first try to present and to clarify some basic concepts through which regionalism presents itself in reality. There are several classification systems which attempt to grasp the broad variety of regional integration zones. A first classification attempt could result in a hierarchy of various forms of integration according to their scope, intensity and deepness. In this sense the following order could be identified: Preferential Trade Agreement, Free Trade Area, Customs Union, Common Market and Monetary Union. It should be immediately stated that this classification in practice is not as neat as it might seem at first glance. Starting with the preferential agreements it should be pointed out that this concept has been used as an over-arching category which
IS
The theory of the "domino effect" mentioned above also contradicts the "stumbling stone" - thesis - perhaps not in a static view but surely in a dynamic one as it predicts an ever greater scope of application for the inter-se liberalization agreed upon within the RTA.
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should comprise the subsequent ones.l" With regard to this proposal it suffices to say that the coining of a concept which is to encompass all forms of regional integration would surely be beneficial for the discussion of the whole subject, but this advantage must be balanced against the drawback of interfering with another usage of this term which is well-established and appears to be worth maintaining. In the following we will therefore keep to the traditional usage of this term according to which by a preferential agreement one country opens its borders to other countries for a certain range of goods (and maybe services) but there is no general liberalisation scheme. Preferential trade agreements are clearly trade diverting and the drafters of the GATT aimed particularly at outlawing such agreements as they are, from a global perspective, welfare-reducing.'? On the other hand, they wanted to legalize Free Trade Areas and Customs Unions. The rationale lying beneath this attitude was rendered explicit by Clair Wilcox, then the Director of the Department of International Trade Policy in the book, A Charter for World Trade, published in 1949: "A customs union creates a wider trading area, removes obstacles to competition, makes possible a more economic allocation of resources, and thus operates to increase production and raise planes of living." "A preferential system, on the other hand, retains internal barriers, obstructs economy in production, and restrains the growth of income and demand. It is set up for the purpose of conferring a privilege on producers within the system and imposing a handicap on external competitors." "... a customs union is conducive to the expansion of trade on a basis of multilateralism and non discrimination, a preferential system is not".18 This distinction is categorical and appears to be very clear even though it is not so evident what its basis is. We will have a look at them towards the end of this paragraph.
See A. Panagariya, "The Regionalism Debate: An Overview", World Economy 22 (1999), 477 et seq., referring to J. Bhagwati, "U.S. Trade Policy: The Infatuation with Free Trade Areas", in: J. Bhagwati/ A.a. Krueger (eds), The Dangerous Drift to Preferential Trade Agreements, 1995. 17 In fact, it can be assumed that previously trade was done with the most cost-efficient producer while the introduction of trade preferences is distorting the relative prices giving false signals to the economy thereby reducing national and global welfare. 18 C. Wilcox, A Charter for World Trade, 1949, 70 et seq. 16
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In line with this reasoning, article XXIV GATT refers only to two forms of regional integration, Free Trade Areas and Customs Unions. What are Free Trade Areas? Para. 8 lit. b) of article XXIV defines them as "a group of two or more customs territories in which the duties and other restrictive regulations of commerce are eliminated on substantially all the trade between the constituent territories in products originating in such territo. ". nes For a Customs Union to be in line with GATTIWTO law para. 8 lit. a) states the following conditions: - First of all, the same condition as with a Customs Union applies according to which "duties and other restrictive regulations of commerce [...] are eliminated with respect to substantially all the trade between the constituent territories of the union or at least with respect to substantially all the trade in products originating in such territories", - Secondly, "substantially the same duties and other regulations of commerce are applied by each of the members of the union to the trade of territories not included in the union". Basically, a Customs Union represents a more developed Free Trade Area where the member countries apply a common external tariff. In principle, GATT law does not know further forms of regional integration. Article XXIV mentions also so-called "interim agreements". These are nothing more than agreements which do not yet fulfil all the requisites for a fully-fledged Free Trade Area or Customs Union but which should, in the end, lead to such a RTA. The underlying rationale is that it is hardly possible for an integration endeavour to become fully operative from scratch. Allowance must be made for a transitory agreement in which the necessary adaptions to the national legal and economic system can be undertaken. The problem is that interim solutions tend to be very long-lasting and resilient thus becoming in fact a-discriminatory-preference agreement. In order to avoid this para. S lit. c) of article XXIV requires any interim agreement to be furnished with a plan and schedule for the formation of a Free Trade Area or a Customs Union within a reasonable length of time. This expression has been clarified to state that this period "should exceed 10 years only in exceptional cases" .19
19
See the Understanding on the Interpretation of article XXIV of the GAIT 1994 agreed upon during the Uruguay Round. '
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When we ask why GATT law does not address further forms of RTAs we must bear in mind that article XXIV was drafted in the immediate aftermath of World War II when forms of higher integration where not foreseeable - at least not as a real challenge to the multilateral system. In various parts of the globe and, especially, in Europe, however, international cooperation and integration has assumed, over the years, an astonishing intensity. The creation of the EC as a Customs Union was a rather slow process. It was planned that the "transitional period", during which the EEC treaty was not fully operative, should end on 31 December 1969. The completion of the Customs Union was anticipated for 1 July 1968. It was, however, always planned that the EEC should not only be a Customs Union but become a Common Market. The Common Market concept was based on three pillarsr'? the establishment of "an internal market characterized by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital";21 -
"a system ensuring that competition in the internal market is not distorted"22 and
-
"a common commercial policy". 23 The common market has been defined as "a market in which every participant within the Community in question is free to invest, produce, work, buy and sell, to supply or obtain services under conditions of competition which have not been artificially distorted'V" The concept of the Common Market has been supplemented by that of the Internal Market. According to article 3 (c) an Internal Market is characterized by the elimination of all restrictions for the free circulation of goods, persons, services and capital. According to article 14 ECT25 "[tjhe internal market shall comprise an area without internal frontiers in which the free movement of goods, services and capital is ensured in accordance with the provisions of the Treaty". The launch-
20
21 22 23
24
25
See P.J.G. Kapteynl P. VerLoren van Themaat, Introduction to the Law of the European Communities, 1998, 122. Article3 (c). Article 3 (g) and arts 81 et seq. See article 3 (b) and 131 ECT. See note 20, 123. Formerly article 7 (a) and previously article 8 (a) EEC.
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ing of this concept in 1985 26 has given much impetus to the integration process and the date of 1992, when the internal market should have been completed, seemed to be of almost magical importance. This goal was not fully achieved by that date and this was no wonder as a real internal market between sovereign countries in an economy with continuos changing technologies requires relentless effortsP There can be no doubt, however, that the achievements in this field are formidable. While the definition of the Internal Market given by article 3 (c) and article 14 ECT seems to refer to a concept of lesser dimensions than that of a Common Market developed by the doctrine, this finding does not correspond to the factual application of the former concept through jurisprudence and legislative practice. As it does not appear to be possible to draw a clear line between these two concepts it can be argued that both are widely identical in content but the internal market concept has been conceived in order to revitalize an approach which has lost its appeal over the years, primarily because of the obstinate resistance the ongoing integration process had to face. The Internal Market was not the end of the story. According to article 4 ECT "[...] the activities of the Member States and the Community shall include, as provided in the Treaty and in accordance with the timetable set out therein, the adoption of an economic policy which is based on the close coordination of Member States' economic policies, on the internal market and on the definition of common objectives, and conducted in accordance with the principle of an open market economy with free competition". Further integration steps could still be in the offing as time and again proposals for the creation of a federal model for the integration of Europe are presented. The realisation of these models, though being improbable for the time being, would mark an extreme development of an integration process, which since 1957, has continuously searched for other limits of article XXIV. Of course, once Member States have lost their sovereignty we would no longer be in the ambit of a regional integration model according to article XXIV GATT but, instead, be confronted with a single unity, a single Member State whose internal constitutional divisions would be widely irrelevant to
26
27
See the Commission's White Paper "Completing the Internal Market", COM (85) 310 of 14 June 1985 which led to the Single European Act of 1986. See P. Craigl G. de Biirca, EU Law, 1998, 1116, pointing at the fact that the internal market is not a once-for-all, static objective.
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GATT law, with the exception of article XXIV:12 which states the following: "Each contracting party shall take such reasonable measures as may be available to it to ensure observance of the provisions of this Agreement by the regional and local governments and authorities within its territories". This is the only provision of GATT which makes an explicit reference to what has been called in the introductory part "subnational regionalism". What has been depicted here as a continuum of integration forms with rising integration intensity, in practice often presents itself in a different way. It suffices to point at the European Economic Area, per se a Free Trade Area but which in reality is more deeply integrated than many of the existing Customs Unions. What is the reason for this "crumbling hierarchy"? In 1947 when the GATT text was drafted, the main obstacles to trade were tariffs; to liberalize international trade meant to reduce tariffs. What later became the major target of trade liberalisation efforts was then regarded primarily as an expression of the internal powers of sovereign states. As long as tariffs where of such paramount importance no sensibility could develop for qualifying such norms as barriers rather than as legitimate national regulations. As is known this changed with the declining tariff levels and at the Tokyo-Round (1973-1979) non-tariff trade barriers became a more important negotiating item than tariffs themselves. This is even more true for the present day where the average tariff level for industrial goods amounts to not more than 3.9 per cent. The real trade barriers are now regulatory.-" As tearing down regulatory barriers is a much more delicate issue than the reduction of barriers, consent of this kind could be reached far more easily in regions like that one where the EEA operates which was and still is home to vigorous and successful integration attempts and where member countries share common values on a very broad scale. How should these integration forms "of a higher degree" be qualified from a GATT/WTO perspective? This is difficult to assess. In this field GATT law has not changed since 1947 and even the understanding on the interpretation of article XXIV remains silent in this regard. Also
28
See P. Holmes, "The WTO and the EU: Some Constitutional Comparisons", in: G. de Biirca/ J. Scott, The EU and the WTO, Legal and Constitutional Issues, 2001, 59 et seq. (68).
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economic theory has so far not given an unequivocal answer to this question. Does this mean that GATT law has become inadequate for judging RTAs? Not necessarily. The main aim of the relative provi sions is still to counter effectively preferential agreements which are openl y trade diverting. In this article XXIV succeeds very well already by its preventive force. In fact, notwithstanding all the interpretative difficulties to which this provision gives rise, it conveys the message that RTAs which are openly trad e-diverting are not tolerated by GATTIWTO law.29 This is, however, not yet the key to the ongoing success of a norm which has been drafted in a time when the intensity and the direction of the regionalisation process could not even remotely be foreseen. Why does it still make sense to draw such a clear line between preferential agreements providing only for imperfect discrimination and all the remnant RTAs which are continuously evolving towards ever-higher degrees of discrimination? In fact, it has been argued that from the viewpoint of the Most Favoured Nation principle a RTA is a discriminatory agreement and therefore a preferential agreement, as an imperfect RTA should not be regarded as worse than a perfect RTA where discrimination is more pronounced.'? According to this line of thought, the modern forms of "deep integration " should be given special attention whil e agreements with lesser integration intensity could perhaps be considered with more leniency. There are, however, good reasons to uphold the traditional view on this issue:
29
3D
An open challenge to GATTIWfO law would be contrary to the interests of each individual Member State as it would undermine th e authority of the institution and may lead to countermeasures. The particularities of law enforcement in public international law apply fully to this field. See, in general, on this subject L. Henkin, Ho w Nations Behave, 1979. Kenneth Dam has expre ssed this consideration in 1963 the following way: "Since the tariff reduction inherent in such a pr eferential arrangement might be considered to be a movement towards free trade, albeit not so dramatic as th at produced by a customs union or free-t rade area, and since such a preferential arrangement by definition involves less discrimination against non members than a customs union or free-trade area, th e justification for proscribing such arrangements absolutel y is not clear." See K.W: Dam, "Regional Economic Arr angements and the GATT, the Legacy of a Misconception", U. Chi. L. Rev . 30 (1963), 615 et seq. (633).
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First of all, permitting preferential agreements in the sense of only partially integrated RTAs could lead to agreements which are predominantly trade-diverting as the forces representing these interests may be prevailing over the political forces representing trade-creating interests." The more extensive the coverage of a RTA is, the more it can be assured that also trade creation happens and that, finally, this element will prevail. The second reason why the traditional distinction appears to be still valid can be found in the fact that article XXIV discriminates basically between RTAs that seem to be strong enough so that they cannot be impeded any way and those which seem to be not so resilient. While the first category of RTAs could become a real danger for the multilateral system if not subjected to some sort of at least generic control system, with regard to the latter group the GATTIWTO seems strong enough to prohibit them altogether. Without doubt, Common Markets and other RTAs which have successfully also tackled regulatory tariff barriers pertain to the group of highly integrated RTAs for which it is usually easy to pass the admissibility test. With regard to these RTAs it is in the interest of the whole GATT/WTO system to ensure the appearance that control over them is maintained even if in some cases this is nothing more than an illusion. As will be shown in the following section a central condition for a RTA to correspond to GATT /WfO law is the integration of substantially all the trade. Those RTAs that fulfil this demanding requisite can
3!
See, in this context, Robert Hudec, comment on M. Finger, "Gait's Influence on Regional Arrangements", in: J. De Melo/ A. Panagariya (eds), New Dimension in Regional Integration, 1993, 155: "In addition, once governments are allowed to select some products and not others, political forces will inevitably exert enormous pressure to choose trade-diverting preferences first . Trade-diverting preferences are the ones that result in the greatest net political gain for governments; the political gains arise from pleasing local producers who displace third-country producers, while political losses are entirely avoided because third-country producers do not vote". In the same vein also F. Roessler, "The Relationship Between Regional Integration Agreements and the Multilateral Trade Order", in: K. Anderson/ R. Blackhurst (eds), Regional Integration and the Global Trading System, 1993,311 et seq. (314). It is, of course, not possible, to predict such a development with absolute certainty but the scenarios cited appear realistic. See also J.H. Mathis, Regional Trade Agreements in the GATT/WTO, 2002, 113 et seq.
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be considered as the expression of a clear underlying will by the participating states which by concluding these agreements pursue not only economic goals but also strictly political ones. In this sense it is not really surprising that the provisions of article XXIV have not been adapted to the new reality characterized by the formation of highly integrated zones with possibly far larger trade diverting effects than those deriving from traditional Free Trade Areas and Customs Unions.V It is not up to the GATT/WTO system to second-guess these political decisions even if the price for this restraint is further imperfections in the multilateral system. This price, however, will not be too high as the conditions, exposed in detail in the following paragraph, are still rigorous. Subsequently, it will be shown that this rigour, in order to be credible, requires resolve when it comes to the enforcement of these rules. Recently, the WTO dispute settlement organs have demonstrated this resolve in a very pronounced form.
III. The Content of Article XXIV33 Article XXIV is an exception to the Most -Favoured-Nation-principle of article I GATT according to which "any advantage, favour, privilege or immunity" granted by any contracting party to any product originating from other contracting parties shall be extended to like products originating from other contracting parties. Essentially the MFN principle in the ambit of the GATTIWTO system leads to the multilateralisation of preferences accorded bilaterally. Article XXIV prevents this multilateralisation from operating in a circumscribed setting. What are the conditions, article XXIV poses to regional integration? Para. 4 of article XXIV spells out the general function attributed to RTAs. This is to "facilitate trade between the constituent territories and not to raise barriers to the trade of other contracting parties with such territories". This general aim has later been specified by Jacob Viner
32
33
See P. Krugman, EFTA and 1992, EFTA Occasional Paper No. 23, who argued that the EC single market programme had detrimental effects on EFTA-based firms. See in this context also, for example, H. Steinberger, GATT und regionale Wirtschaftszusammenschlasse, 1963; R.S. Imhoof, Le GATT et les zones de libre ecbange, 1979; P.Hilpold, "Regionale Integrationszonen und GATTDie Neuerungen der Uruguay-Runde", RIW 25 (1993), 657 et seq.
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with the request that the trade creating effects of regional integration should prevail over the trade diverting effects of such initiatives.r' Before Viner's seminal contribution to integration theory, or, if we see his research work as an interpretation of the new GAIT philosophy on RTAs, before the creation of this law, the distinction between trade creation and trade diversion could hardly come to the mind of the observer of integration movements as a multilateral framework protecting free trade as a value per se was lacking and the attention always focussed on the effects on trade in the integration area itself. With the attention shifting from the regional to the multilateral level it was a natural consequence that regionalism should be considered a positive phenomenon only as long as its positive effects on trade, taking into consideration also the situation of non members, should prevail. On an abstract level, the soundness of this approach could hardly be contested if non-discriminatory free trade on a multilateral level is the ultimate goal to be pursued." The devil, is, however, as always, in the detail. How can the prevalence of the trade creating effects of regional integration over the trade diverting ones be guaranteed by a legal text which should potentially be suited for global application over an undefined period of time? It is evident that such an endeavour can be successful only if the drafters of the relevant provisions can rely on a settled theory to which they can give expression in a clear and succinct way. The principle thereby stated should be applicable to differing situations not foreseeable in every detail at the moment the relevant norm is being drafted. It does not seem that article XXIV is meeting these demands. Not only is this provision poorly drafted. It is neither easy to discover an underlying settled economic theory on which the 34
35
See also, for example, J. Huber, "The practice of GATT in examining regional arrangements under article XXIV", Journal of Common Market Studies 19 (1981),281 et seq. (294). N. Nagarajan, on the other hand, contests in his paper "Regionalism and the wrO: New Rules for the Game", Economic Papers No . 128, June 1998,8 that article XXIV is about distinguishing between trade-creating and trade-diverting arrangements, pointing at the fact that GATT pre-dates Viner's book of 1950. It could, however; be argued that Viner's aim was not to establish a new rule but to interpret the existing rules as set out in article XXIV. That free trade is, according ~o mainstream economics, still the superior ideal for the conception of national foreign trade law notwithstanding that many rival positions have been formulated during the last two centuries has aptly been shown by M. Trebilcock/ R. Howse, The Regulation of International Trade, 1999,7 et seq.
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evaluation process should be based,36 nor is it clear how the conditions set for a RTA in order to respond to GATT/WTO law should be implemented. The only details about how the prevalence of the trade creating effects over the trade diverting ones shall be obtained for Free Trade Arcas and Customs Unions respectively are furnished in paras 5 and 8 of article XXIV. Para . 5 aims at protecting the interests of WTO members remaining outside a RTA. For those countries the duties and other regulations of commerce imposed after the formation of a Customs Union shall not, on the whole, be higher than before. In the case of the formation of a free-trade area this comparison refers to the duties and other regulations of commerce imposed by each individual member of the FTA since there are no common tariffs. There has always been much disagreement on how to interpret this provision. First of all, it was not clear whether the applicable or the applied tariffs should be compared. While the applicable tariffs are those resulting from tariff bindings, in practice the applied tariffs are often far lower. Common sense would suggest that the latter should be referred to as they alone matter, but there was strong opposition to this approach, first of all by the EEC since for the calculation of the original six members of the EEC customs union, the Italian bound tariff was used even though the respective rate had never been applied.V In the meantime, in the 1994 Understanding on the Interpretation of article XXIV, it has been clarified that for the assessment of Customs Unions the applied tariffs are relevant. Though there is a strong case for an extension of this principle to FTAs, until now, no explicit statement in this sense can be found in WTOlaw. For Customs Unions a further question needing clarification regarded the way the general incidence of the duties and other regulations of commerce applicable before and after the formation of the Customs 36
37
See, in this regard, for example, the statement by R. Pomfret, "The Theory of Preferential Trading Arrangements", Weltwirtschaftliches Archiv 122 (1986), 439 et seq. (460) : "The theory of preferential trading has been one of the more disappointing branches of post war economics. That is despite Viner's great insight about the ambiguity of welfare effects, which is led of the theory of second best." See also, more broadl y, R. Pomfret, The Economics of Regional Trade Arrangements, 1997. See N. Nagarajan, Regionalism and the WTO: Ne w Rules for the Game?, European Commission, Directorate-General for Economic and Financial Affairs, Economic Paper No. 128, June 1998, 14.
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Unions should be calculated. For a long it has been argued that a meaningful comparison should take into account the trade volume under the single tariff lines and therefore weighted average tariff rates should be referred to. This position was finally adopted by the Understanding on the Interpretation of article XXIV, 1994. In para. 8 we find the most important condition of all for the creation of a regional integration zone: it has to comprise substantially all the trade between the member countries. For Customs Unions the common external tariff has to consist of the application of "substantially the same duties and other regulations of commerce" to trade with countries not included in the union.V The attempt to quantify this condition has been the subject of much controversy, whereby the various proposals ranged from 51 to 99 per cent.'? It seems that a range between 80 to 90 per cent has found the broadest consensus but it must be stated that a quantitative criterion alone cannot fully do justice to this condition. This condition rather requires also the respect of so-called qualitative elements in the sense that no major sector of the economy should be excluded from the intraRTA liberalization scheme.t? Traditionally, problems arose in this field with trade in agriculture where the most obstinate protectionist forces regularly are at work. But even on the occasion of the examination of the EFTA agreement which excluded the predominant part of agricultural products from liberalization, the GATT contracting parties could not find an agreement on how to assess this siruation.t! 38 39
40 41
Article XXIV, para. 8 lit. a) ii). See Hilpold, see note 33,663. The 51 per cent mark has been advocated by G. Roselieb, "Die rechtliche Stellung der europaischen Wirtschaftszusammenschliisse (Montan-Union, EWG, EFTA) zum GATT", OZoRV 2 (1961),27 et seq. GATT BISD 9S, 1961,83 et seq. The EFTA Member States argued that the "substantially-all-the-trade" condition in article XXIV was appositedly introduced to allow for the exclusion of the agricultural sector in view of a possible participation of the United Kingdom in a European free trade area. Furthermore the wording of this provision required the liberalization of substantially all the trade and not of the "trade in substantially all the products." "There was [...J a divergence of view regarding the justification for including, in estimating the amount of trade within the free-trade area to be freed from barriers in terms of article XXIV, the trade in agricultural products were freed in the case of one member State only. In the time at its disposal, the Working Party was unable to reach agreement concerning the inter-
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The main reason why a clarification of these contentious issues in the interpretation of article XXIV could not happen in the GATT working groups established to evaluate these RTAs can be found in the fact that these groups worked on the basis of the consensus principle, the central decision making criterion for the whole GATT law, which is not very well suited to find agreed solutions if interests of fundamentally different nature have to be considered.F It comes therefore as no surprise that the working parties formed for the evaluation of the many RTAs notifi ed to the GATT came to no conclusion since to the GATT conformity this integration project was negligible.P As is known, article XXIV, despite all its shortcomings and lacunae which became more and more evident over the decades, after the Havana Conference remained substantially unchanged not only until the end of the days of GATT 194744 but was brought again to life in WTO law. To the WTO Members it appeared to be sufficient to recall the basic principle cited before according to which tolerance towards RTAs required a balancing between positive and negative trade effects of regional integration. This was, however, not a complacency towards past events in this area but rath er an admonition that this balancing should be taken seriously. Consequently, in the Understanding on the Interpretation of article XXIV adopted at the end of the Uruguay Round it was reaffirmed:
42
43
44
pretation which should be given to the relevant provISIons of article XXIV." See GATT Ll1235 of 4 June 1960, GATT BISD 9S/70, paras 48-49, 51, 54 and Analytical Index, Guide to GATT Law and Practice, 1994,767. Despite the discriminatory nature of RTAs these agreements have always found strong support by a consistent number of GATT Contracting Parties. The reasons varied. They ranged from a politically motivated support for the European integration initiatives to the hope to foster progress in developing countries concluding inter-se agreements. Empirical tests have shown that on the whole only in five cases it was possible to find a decision by consensus . The most important one regarded the Customs Union between the Czech and the Slovak Republic of 1993 (GATT Ll7212 of 30 April 1993, Add. 1 of 12 May 1993 and GATT Ll7501 of 15 July 1994). See P.c. Mavroidis, "Judicial Supremacy, Judicial Restraint, and the Issue of Consistency of Preferential Trade Agreements with the WTO: The Apple in the Picture", in: D .L.M. Kennedy/ J. D . Southwick (eds), The Political Economy of International Trade Law, 2002, 583 et seq. (587) referring to J. Schott, "More Free Trade Areas?", in: J. Schott (ed.), Free Trade Areas and u.s. Trade Policy, 1 et seq. (25). See GATT Analytical Index, see note 41.
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"[...] that the purpose of such agreements should be to facilitate trade between the constituent territories and not to raise barriers ...; and that in their formation or enlargement the parties to them should ... avoid creating adverse effects on the trade of other Members". In the Declaration adopted at the Singapore Ministerial Conference of 1996 we find the prudent statement that "[regional agreements] can promote further liberalization and may assist least-developed, developing and transition economies in integrating into the international trading system.t?" At the same time the Ministers stated that "[tjhe expansion and extent of regional trade agreements make it important to analyse whether the system of WTO rights and obligations as it relates to regional trade agreements needs to be further clarified." They went on to "reaffirm the primacy of the multilateral trading system, which includes a framework for the development of regional trade agreements" and they renewed their "commitment to ensure that regional trade agreements are complementary to it and consistent with its rules. "46 On the whole, these statements are the expression of a rather cautious approach towards regionalism and the very basis of this caution seems to be the uncertainty about the real impact of regionalism on the multilateral system, especially in the longer run . Far clearer than in article XXIV, the WTO members, with half a century of experience on this issue behind them, point out that the multilateral system must always enjoy priority. If the reading of the relevant provision in the Singapore Ministerial Declaration might give the impression that on balance a slightly positive attitude towards regionalism prevailed among the ministers, this impression might be due to the confidence the Ministers put into the operating of the newly established Committee on Regional Trade Agreements (CRTA, see below) which should bring new rigour to the procedure for the examination of RTAs. The Understanding on the Interpretation of article XXIV resulting from the Uruguay Round improved this picture somewhat as thereby
45
46
Emphasis added. See para. 7 of the Declaration.
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important clarifications to some long-contested issues could be obtained.V The most important results were the following: The evaluation of the general incidence of the duties and regulations of commerce applicable before and after the formation of a Customs Union shall be based upon an overall assessment of weighted average tariff rates and of customs duties collected. Thus, a far more realistic picture of the potential trade deflection generated by the creation of a Customs Union could be achieved. The application of the general dispute settlement provision on issues of regional trade integration was confirmed.t" Thereby it was acknowledged that the conclusion of RTAs was not only a political question but remained an issue which should be assessed by a judicial organ on legal terms. Without doubt, the judicialization of the evaluation process added rigour to it. On the other hand, with clarifications on important clements of this evaluation process still lacking, this also meant that it was up to the dispute settlement organs to specify them. True, even under GATT law there were several attempts to obtain further clarifications about the meaning of article XXIV but under GATT law none of these procedures lead finally to an adopted report.'? As will be shown afterwards it was not before the Turkey-Restrictions on Imports of Textile and Clothing Products case'? that this happened and it was more than natural that the large interpretative leeway would, however it was used by the WTO dispute settlement organs, lead to considerable criticism. 47
On the specific function of this provision of the Dispute Settlement Understanding to strengthen article XXIV see also J.H. Jackson, The World Trade Organization: Constitution and Jurisprudence, 1998, 55. 48 Para. 12 of the Understanding. This appears to be a further confirmation of the supervisory role of the WTO dispute settlement system recently emphasized by Y. Iwasawa, "WTO Dispute Settlement as judicial supervision",JIEL 5 (2002), 287 et seq. 49 See EEC-Tariff Treatment of Imports of Citrus Products from Certain Countries in the Mediterranean Region, GATT L/5776 of 7 February 1986; EEC Member States' Imports Regimes for Bananas, Panel Report WT/DS32/R of 3 June 1993; EEC - Member States' Import Regimes for Bananas, Panel Report WT/DS38/R of 11 February 1994. As it is known, under GATT law the adoption of a Panel Report required consensus among the CONTRACTING PARTIES which was hard to achieve in such a contentious matter as the one here at issue. 50 Panel Report WT/DS34/R of 31 May 1999; Report of the Appellate Body WT /DS34/AB/R of 22 October 1999, AB-1999-5 .
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With regard to the overall political assessment of RTAs the most important development of the post-Uruguay-Round period concerned the introduction of the WTO Committee on Regional Trade Agreements.t! By the establishment of this Committee it was hoped to render the evaluation of RTAs more transparent, thereby enabling it to develop common standards which should also provide for more legal certainty in this area. Until now these hopes have remained largely unfulfilled since standard-setting by a political body operating in a very considerate diplomatic environment characterized by only vague legal criteria has proved to be a difficult task. Above all, it must be recalled that decision making in this field follows a totally different path from that with regard to dispute settlement. While the negative consensus rule assures nearly automatic adoption of Panel reports by the Dispute Settlement Body, outside this area the still dominant positive consensus rule makes it rather difficult to pass a verdict on a confrontational issue.S As the CRTA itself admitted in its report to the General Council in 1998 on the operation of this body the lack of consensus regarded not only the factual evaluation of single integration projects but the far more difficult issue of the interpretation of the applicable rules. 53
IV. First Conclusions about Regional Integration in GATT/WTO Law Before we deal with the latest developments in the endeavour, now lasting several decades, to find a proper place for regionalism in the multilateral system and to determine both its scope for further development and its borders which may not be transgressed, an attempt to
51
52 53
This organ was created by a decision of the WTO General Council on 6 February 1996. See also under note 60. See Mavroidis, see note 43, 591. See G . Fisch, "Regionalism and Multilateralism - Side by Side", in: K.G. Deutsch/ B. Speyer (eds), The World Trade Organization Millennium Round, 2001, 213 et seq. (217). In recent literature the hope has been voiced that the analytical tools to assess the phenomenon of regional integration will be greatly improved over the next years. See A. Krueger, "Are preferential trading arrangements trade liberalising or protectionist?", Journal of Economic Perspectives 13 (1999), 105 et seq.
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which the WTO dispute settlement organs have lately given an important contribution, a short summary of the fundamental position GATT/WTO law takes towards regionalism and the conditions it sets to this phenomenon might be helpful to grasp the enormous challenge the WTO dispute settlement was faced with when asked to provide for further clarification in this area. We have seen that GATTIWTO law in principle, takes a positive attitude towards regional integration, partly because this phenomenon cannot be impeded anyway, and partly because this corresponds to strongly felt interests by several WTO members which, confronted with an option, might decide against the multilateral system. On the whole it appears safe to say that the drafters of GATT/WTO law have seen in RTAs more a building block than a stumbling stone 54 for the architecture of a multilateral free trade system and this assumption has been proven correct by the developments. While recognizing that trade integration has both positive and negative effects in the sense that there are both trade creating as trade diverting consequences the main intent of GATT/WTO law has been to ensure that the positive, trade creating effects of RTAs should prevail. In the preceding paragraph it was shown that this result was to be obtained by the "substantially-all-the-trade" criterion as well as by the obligation that tariffs and regulations of commerce with regard to non-participating countries should not become more restrictive than they were before. It was also shown that the clarification of these conditions was a difficult process which is in part still ongoing. In any case these conditions are far from being sufficient to guarantee that the general purpose of RTAs, set out in para. 4 of article XXIV, "to facilitate trade between the constituent territories and not to raise barriers to the trade of other contracting parties with such territories" would be really attained. At the most the fulfilment of these conditions provides prima facie evidence that the integration process goes in the right direction, but we are far away from a final assessment of the overall economic impact resulting from the creation of a RTA. In fact, in an ex-ante-evaluation of an integration project there are so many elements to be considered that it is often nearly impossible to quantify the real impact on trade of such an endeavour. As has been re-
54
This famous comparison has been coined by]. Bhagwati, The World Trading System at Risk, 1991.
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cently shown'? the following elements can influence changes in trade volumes in the wider context of the creation of a RTA: trade creation and diversion existing within the union; changes in the flows of capital and labour; changes in the general level of prices; changes in exchange rates. Furthermore, short-term static effects of regional integration have to be distinguished from dynamic effects showing up in the longer term. Thus, while at the moment of the creation of a RTA the trade diverting effects may prevail, the growth stimulus engendered by the formation of an integration area may, in the longer run, attract further imports thereby compensating for former losses in trade by non-members. 56 Changes of trade flows after the creation of a RTA may also depend on other factors such as changes in the terms of trade, welfare gains as a consequence of economies of scale, shifts in consumer preferences or industry competitiveness. Finally, regard has to be taken to business cycles and to whether there is world-wide a situation of growth or slowdown. In this context, account must also be taken of the fact that the causalities may operate in two ways as the creation of RTAs may have positive or negative consequences on the growth of the world economy.57 It stands to reason that the isolation of the effects of regional integration from all the factors just mentioned is an almost impossible task and in any case the theoretical instruments needed for this task are not yet available. As a consequence, it should not come as a surprise that opinions in academic literature on how to judge the effects of RTAs are divided and this is the case even for European Integration where reliable statistical data as well as a wealth of econometric studies should be easily available. In fact, some authors see in the context of European Integration the trade creating effects as prevalent, others the trade diverting ones. 58 There is more consensus with regard to the broad net of
55 See G. Marceau/ C. Reiman, "When and How Is a Regional Trade Agreement Compatible with the WTO?", Legal Issues of Economic Integration 28 (2001) ,297 et seq. (305 et seq.).
56 Ibid. 57 Ibid. 58 Among the first group Balassa, Robson and Winters can be found, among the second El-Agraa and Pomfret. See P. Moser, "Reasons for Regional In-
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FTAs concluded by the European Community. In view of the, in part problematic, treatment of agriculture within this agreement the prevalence of trade diverting effects seems most probable. 59 These agreements have, however, mostly a development background or have been concluded in the framework of an approaching process which in many cases should finally lead to membership within the European Union. In part, they are typical interim-agreements, where the parties promise to add in future the missing elements of integration so that these agreements should correspond to GATTIWTO law. Once political and developmental considerations are at issue, it is evident that the global assessment of RTAs becomes extremely complex and this is even more so when there is not even an unanimous view of the economic consequences of regional integration. At the same time it is also clear that the wro cannot behave like the GATT contracting parties for which the lack of consensus in the relevant working groups was a welcome excuse not to do anything. The WTO has to act for the following reasons: -
The long feared competition between multilateralism and regionalism becomes more and more a reality. As shown above, regionalism is no longer a mainly ~¥opean phenomenon but poses a challenge to multilateralism on a global level. With the attractive force of the dominant integration areas (the socalled "domino effect" mentioned above) and RTAs creating a network of "second grade" integration areas RTAs are developing a steering and coordination potential which is on a par if not superior to that of multilateral institutions such as the wrO. In the ambit of a framework which relies heavily on diplomatic processes for decision making, dispute settlement and rule compliance such as that of GATT, indulgence towards attempts to circumvent article XXIV may be justified by broader policy considerations and by the expression of a pragmatic compromise. In an institution like the WTO for which an important element of distinction from the GATT lies in a far-reaching judicialization of its law and which derives an important part of its legitimacy from the specific task to ensure rule-adherence a "blind spot" in an important area like that regulated in article XXIV cannot be tolerated without the WTO risking its credibility.
59
tegration Agreements", lntereconomics September/October 1997, 225 et seq. (229). Ibid.
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With the 1994 Understanding on the Interpretation of article XXIV confirming the general applicability of the GATT dispute settlement provision to issues relating to RTAs, the door was opened for a judicial clarification of the most pressing issues in this field. Though the WTO with the institution of the CRTA in 199660 took care not to neglect the "diplomatic" approach in the sense that a forum was created where regionalism could find consideration with all its multi-varied causes and justifications, it seems that the judicial approach has cast, at least for the moment, a much brighter light on this issue, notwithstanding the fact that this has happened essentially in one single procedure. In 1999 a GATT panel and afterwards the Appellate Body had the occasion to express themselves about central aspects of regionalism within the WTO system. As these statements were ground-breaking they merit closer examination.
60
The CRTA was instituted by the WTO General Council (WT/L/127). Its terms of reference are the following: "(a) to carry out the examination of agreements in accordance with the procedures and terms of reference adopted by the Council for Trade in Goods, the Council for Trade in Services or the Committee on Trade and Development, as the case may be, and thereafter present its report to the relevant body for appropriate action; (b) to consider how the required reporting on the operation of such agreements should be carried out and make appropriate recommendations to the relevant body; (c) to develop, as appropriate, procedures to facilitate and improve the examination process; (d) to consider the systemic implications of such agreements and regional initiatives for the multilateral trading system and the relationship between them, and make appropriate recommendations to the General Council; and (e) to carry out any additional functions assigned to it by the General Council."
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~
The Turkey - Restrictions on Imports of Textile and Clothing Products Case"
In the long-lasting process between Turkey and the EC - the relevant Free Trade Agreement dates back to the year 1963 - on 6 March 1995, the Turkey-EC Association Council adopted Decision 1/95 which should introduce the final phase of the customs union between Turkey and the European Communities. Article 12 (2) of this Decision states: "In conformity with the requirements of article XXIV of the GATT Turkey will apply as from the entry into force of this Decision, substantially the same commercial policy as the Community in the textile sector including the agreements or arrangements on trade in textile and clothing." In the following Turkey introduced, as of January 1996, quantitative restrictions on imports from India on 19 categories of textiles and clothing products. Turkey considered this as a measure directed to apply "substantially the same commercial policy" as the EC on trade in textiles and clothing; a measure, therefore, covered by article XXIV GATT. For India this was a quantitative restriction according to article XI GATT, a measure not even article XXIV allowed to resort to. In the end, India's viewpoint prevailed but the whole controversy permitted a discussion of many details of the legal boundaries of regional integration within WTO law. The first question to be settled was of a jurisdictional, preliminary nature in the sense that the specific relationship between the functions of the CRTA and the Dispute Settlement Body had to be clarified. There seemed to be a case of overlapping jurisdictions with far-reaching consequences as both bodies not only rely on a totally different deci61
Report of the Panel and the Appellate Body, see note 50. This case has already been widely commented. See, inter alia, J. Mathis, "WTO, TurkeyRestrictions on Imports of Textile and Clothing Products", Legal Issues of Economic Integration 27 (2000), 103 et seq.; G. Marceau/ C. Reiman, "When and How Is a Regional Trade Agreement Compatible with the WTO?", Legal Issues of Economic Integration 28 (2001),297 et seq.; A. von Bogdandy/ T. Makatsch, "Collision, Co-existence or Co-operation), Prospects for the Relationship between WTO Law and European Union Law", in: G. de Biirca/ J. Scott (ed.), The EU and the WTO-Legal and ConstitutionalIssues, 2001, 131 et seq.; M. Cremona, "Neutrality or Discrimination? The WTO, the EU and External Trade", in: de Btirca/ Scott, see above, 151 et seq.;. Mavroidis, see note 43.
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sion-making process but also the material elements on which they base their decisions differ considerably: The CRTA considers a vast range of elements of economic, legal and political nature, the Dispute Settlement Body decides on legal grounds. For Turkey the right place for an evaluation of this agreement was the CRTA, giving preference to the political elements. The Panel, however, pointed rightly at para. 12 of the Understanding on the Interpretation of article XXIV, mentioned above, according to which the GATT dispute settlement provision should apply "to any matters" of regional integration. How then to solve this conflict? The panel took an equivocal approach. "Specific measures adopted on the occasion of the formation of a customs union or in the ambit of a customs union" would fall "clearly" under the jurisdiction of the WTO dispute settlement organs while the assessment of the overall compatibility of a RTA with article XXIV would be up to the CRTA as this organ was appositely created and the only one in the position to confront this "very complex undertaking" which involves not only legal but also economic and political elements and which has at its centre not a bilateral conflict between WTO members but questions which are of importance for the system as a whole. 62 While the position taken by the panel on this question seems very sensible and humble the Appellate Body was not so convinced it should exercise judicial self-restraint. On the contrary, the Appellate Body acting like a constitutional court defending its ultimate, allencompassing jurisdiction within a given system, was eager to take a different stance and to affirm its unrestricted jurisdiction even on the question of the overall compatibility of RTAs with GATIIWTO law. This clarification seemed to be of such an importance to the Appellate Body that it was made obiter, i.e. even without being asked by the parties.63 Whether this decision was wise remains debarablc.r' The overall 62
63
For the panel it was "arguable" that panels do not have jurisdiction for an assessment on the overall compatibility of Customs Unions with the requirements of article XXIV. Panel Report WT/DS34/R of 31 May 1999, para. 9.53, see note so. This statement was not only made obiter but also indirectly, i.e. by reference to a former report: "[...]The Panel maintained that "it is arguable" that panels do not have jurisdiction to assess the overall compatibility of a customs union with the requirements of article XXIV. We are not called upon in this appeal to address this issue, but we note in this respect our ruling in India - Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products
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compatibility of a RTA with GATT /WTO law is, also in view of the many uncertainties left open, a question that requires the taking into consideration of a vast panoply of elements be they juridical, economic or political in nature. To balance these elements and the related interests the dispute settlement organs would need information they do not possess and assume the role of an umpire that they are not equipped for. A case of this kind still has to be brought before the Dispute Settlement Body. As there are many RTAs whose overall compatibility with article XXIV could be questioned, the restrain showed so far by WTO members could be seen as expression of the awareness of the dangers associated with such a move. On the other hand, should this issue once come to the fore, the ensuing challenge to the very heart of the constitutional consensus within the WTO could perhaps prompt the WTO members finally to give more efficacy to the diplomatic assessment mechanism for which the CRTA has been created. An overall assessment carried out by the CRTA would not necessarily infringe upon the Dispute Settlement Bodies' competence. It would rather allow for a more appropriate attribution of control powers. In extreme cases, even an overall assessment of the compatib ility of a RTA to WTO law would be possible under the condition that this assessment would be carried out under a juridical perspective. Normally, of course, the legal assessment of RTAs should be confined to single juridical problems. If such a "separation of powers " in a two-stage assessment process could be achieved, where the first, diplomatic stage would be necessary, and the second, judicial one, only possible, even conflicting assessments would be apparent rather than real. In fact, if the CRTA comes to the conclusion that minor legal imperfections of a proposed RTA should not stand in the way of an otherwise politically and economically commendable integration project the DSB may adopt a report which contains a finding on a violation of WTO law if a WTO member is prepared to complain. The future will show whether the WTO dispute settlement organs are capable by their own to act with self-restraint in a manner as proposed here or whether this has to be imposed by a legislative act. Perhaps the most important question addressed by the Panel and the Appellate Body concerned the potential scope of an article XXIV ex-
64
on the jur isdictio n of panels to review the justification of balance-ofpayments restrictions under article XVIII:B of th e GAIT 1994[...J". Critical in this regard von Bogdandyl Makatsch, see note 61, 138.
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ception. In other words: to what extent could the creation of a RTA exempt WTO members from WTO obligations? The Panel referred the article XXIV exemption directly and exclusively to the Most Favoured Nations obligation according to article I, while the Appellate Body accepted a broader scope of this exception. In this context, the Appellate Body attributed particular relevance to the chapeau of para. 5 of article XXIV. Its relevant part reads as follows: "Accordingly, the provisions of this Agreement shall not prevent, as between the territories of contracting parties, the formation of a customs union ...; Provided that: ... (emphasis added)". The Appellate Body interpreted "shall not prevent" as "shall not make impossible" and inferred from that that also provisions other than article I could be derogated should the formation of a Customs Union become otherwise impossible.s" The Appellate Body stated in its report the following: "[...] article XXIV may, under certain conditions, justify the adoption of a measure which is inconsistent with certain other GATT provisions, and may be invoked as a possible "defence" to a finding of inconsistency't.ss The Appellate Body, however, also made it clear that not every derogation from provisions other than article I could be justified under article XXIV. Any derogation must, instead, come up to the following conditions, referred to the specific situation of a Customs Union: - First of all, the relevant measure has to be introduced upon the formation of the Customs Union.V This condition is primarily directed at guaranteeing transparency and legal certainty. Furthermore, it appears to encourage a strict interpretation of the article XXIV exception, since those measures not introduced upon formation of the RTA do not seem to be absolutely necessary for its existence. - Second, the Customs Union has to fully meet the requirements of subparas 8 lit. a and 5 lit. a of article XXIV. This means that the respective WTO members have to prove that the Customs Union respects the "substantially-all-the-trade"-cri terion described above, that substantially the same duties and other regulations of commerce are applied by each of the members of the Customs Union to the trade of territories not included in the union and that the 65 66 67
Appellate Body Report, para. 45. Ibid. Ibid., para. 52.
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duties and other regulations of commerce imposed at the institution of the Customs Union are not, on the whole, higher or more restrictive than the general incidence of the duties and regulations of commerce that were applicable before. These are essentially the criteria by which the drafters of article XXIV tried to translate the central economic condition of para. 4, according to which the trade creating effects of integration should prevail over the trade diverting ones, into a legal norm in relation to which compliance should be controllable. We have, however, seen that the vagueness of these provisions leaves many questions open and to attribute the task to fill these lacunae to a judicial organ means that this organ is bestowed with enormous power. The Panel took a very pragmatic approach. It did not specifically address the question of whether the RTA between Turkey and the European Communities really meets the requirements of the paras 8 lit. a and 5 lit. a, limiting itself to assume that this compatibility was in fact given. As this assumption was not appealed the Appellate Body could not address it. Nonetheless, the Appellate Body took the occasion to warn the panel that it had to require the parties to prove that the conditions required had been fulfilled.68 It will be interesting to see in which way the panels will, in future, respond to this invitation. - Of decisive importance for this case was, finally, the third condition, referring to the "necessity" of the measures introduced. The parties to a RTA should prove the "necessity" of the derogations in question and bring evidence that otherwise it would be impossible to create the respective formation. In literature it has been maintained that by stating this the Appellate Body had introduced a rule which inverted the previous practice: it was no longer the other parties who had to demonstrate the inconsistency of a planned RTA with article XXIV but it was up to the members of this agreement to prove the necessity of the derogations in the sense described before.s? Turkey asserted that had it not introduced quantitative restrictions, the European Communities would have excluded these products from free trade within the Turkey/EC Customs Union in order to prevent trade diversion. In view of the enormous relevance trade in textiles and clothing has in this Customs Union (40 per cent) such an exclusion would have made it impossible to respect the substantiallyall-the-trade criterion. The Appellate Body maintained, however, that 68 69
Ibid., para. 59. See, for example, Marceau/ Reiman, see note 55, 312.
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the introduction of quantitative restrictions on textiles and clothing products from India was not necessary for the creation of a Customs Union between the EC and Turkey/? Like the Panel, the Appellate Body pointed at the fact that Turkey could, for example, "adopt rules of origin for textile and clothing products that would allow the European Communities to distinguish between those textile and clothing products originating in Turkey, which would enjoy free access to the European Communities under the terms of the customs unions, and those textile and clothing products originating in third countries, including India . "71 In the end, however, the Appellate Body left the door open for another finding in another situation: "We wish to point out that we make no finding on the issue of whether quantitative restrictions found to be inconsistent with article XI and article XIII of the GATT 1994 will ever be justified by article XXIV. We find only that the quantitative restrictions at issue in the appeal in this case were not so justified. "72 What lessons can be drawn from this decision? The Appellate Body has accepted that the regional exception according to article XXIV can have potentially a very large scope as this exception is not confined to the MFN principle. At the same time the Appellate Body showed, however, clear boundaries to this exception. Derogations of this kind should be accepted only if their necessity was demonstrated. In this sense the creation of such formations remains a right, but a conditional one. Indirectly, the Appellate Body has highlighted that it did not support the position sustained in the past by some authors that article XXIV as a "structural exception" put RTAs in the same place as the multilateral system." The primary function of such formations is, on the contrary, still to be seen in their contribution to the strenghtening of the multilateral system. This report may, on a whole, also be seen as a hint that the WTO dispute settlement organs will, from now on, look
70
71 72 73
Appellate Body Report, para. 61. Ibid., para. 62. Ibid., para. 65. It was said that both multilateralisrn and regionalism were conducive to the same end, to the liberalisation of trade, the only difference between them lying in the fact that regionalism pursues this end in an indirect way. Sec, for example, R. Imhoof, Le GATT et les zones de libre ecbange, 1979, 35; F. Jaeger, GATT, EWG und EFTA: Die Vereinbarkeit von EWG- und EFTARecht mit dem GATT-Statut, 1970, 159. Now, the subsidiary role of regionalism has clearly been highlighted.
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very closely at the interplay of regional and multilateral forces within the world trade order and not accept that the former prevail. All in all, the Appellate Body saw in RTAs more an exception to multilateral ism rather than an equivalent alternative to it for which WTO members could freely opt. This exception should not be interpreted as strictly as possible guaranteeing at the same time that the creation of RTAs should be rendered impossible. In literature it has been argued that in so reasoning the Appellate Body not only defined the scope of article XXIV with regard to its coverage but also the nature of a Customs Union.Zt It has been inferred that the Appellate Body had used as a reference model the EC before the completion of the common commercial policy when internal controls and barriers still existed.i" Does this mean that so-defined Customs Unions form the outer border of RTAs which can still be subsumed under article XXIV? Are, therefore, higher forms of integration, such as Common Markets, inadmissible? Such a conclusion would, of course, be unacceptable. The necessitycriterion has rather to be applied on a case-by-case-basis. For a RTA uniting two geographically distant countries in a Customs Union which shows no significant political cohesion, the elimination of all internal borders may not be strictly necessary to achieve the bulk of the economic goals the respective integration agreement was directed at. In a Common Market the elimination of all internal barriers may, from the outside, give the impression that a fortress is being build but this more extended digression from multilateralism may be justified in view of the broader political goals pursued by this agreement. It is, therefore, misleading to believe that WTO law is, in principle inimical to deeper integrated RTAs. In this field, as in many others, WTO law has rather to balance interest: that of non-participating countries which are interested in trade relations being as little distorted as possible, against that of the RTA members which want to rely on the particular regime of article XXIV for a multitude of reasons amongst which political considerations rank very prominently. It is therefore not one single reference model on which a specific integration attempt has to be gauged, but the allowed "deepness" of a RTA varies in dependence from the necessities of the specific case to be assessed from the subjective perspective of the countries willing to integrate. It is clear that in those cases in which the 74
7S
See M. Cremona, "Neutrality or Discrimination? The WTO, the EU and External Trade", in: de Biirca/ Scott, see note 61, 151 et seq. (182). Ibid.
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proposed RTA pursues mainly economic goals the necessity-criterion will be the subject of an assessment which will be far more objective in nature than in the case of a regional integration project with predominant political connotations. The Appellate Body report in Turkey-Restrictions on Imports of Textile and Clothing Products case should therefore not be interpreted as the expression of a new WTO philosophy which wants to reduce regionalism to a mere marginal role or even to pose outright obstacles to regionalism. Though it is true that regionalism and multilateralism do not hold the same value and reputation in WTO law the specific role attributed to regionalism is not a marginal one and it commands the necessary respect . The most important conclusion we can draw from this case it that article XXIV may not serve as an excuse for abuses. The necessity-criterion is, therefore, not an instrument to reduce the role of regionalism in WTO law but to make sure that RTAs really pursue the aims this exception to multilateralism has been created for. As there are not only a multitude of reasons for which the regional exception has been created and as the most important, the political one, can be of most varied forms, so the RTAs and article XXIV must offer sufficient leeway for this necessary variety.
VI. The European Union and Modern Trends in Regional Integration As has been shown above Western Europe has always been at the centre of the regional integration movement: first to maintain colonial preferences, then as the beneficiary of special consideration in the ambit of EC integration and finally, when article XXIV seemed to have lost all its force of restraint, as a self-conscious actor on the international stage which seemed to be determined to carve out its preferential structures in international trade relations. As a consequence, at the present day, the greatest concentration of RTAs can be found in Europe, with the EC and the EFTA at the centre, both entities being tied to a whole network of RTAs over further agreements. These agreements cover not only the Western part of the European continent but also its Eastern and South-Eastern regions. Paradoxical as it may seem at the first glance, the extraordinary success of these integration movements will also lead to a reduction of the
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number of RTAs in force in Europe. In fact, the enlargement of the EC by 12 accession candidates (Bulgaria, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, the Slovak Republic and Slovenia) will render obsolete the relative bilateral association agreement (10 of which are so-called Europe agreements) by the year 2007. The newly acceding countries, will, on the other hand, become integration partners not only with each other and the 12 traditional EC countries but also with all the other countries which are part of the large integration network stretching well beyond Europe." The EC has not only been per se a successful integration zone but it has also been very successful in creating a large network of RTAs, thereby creating a focal centre where a Customs Union connects with a large number of Free Trade Areas. Two main problems arise in this context. First, there is the problem of overlapping RTAs, a phenomenon of world-wide importance but of special relevance for the European con tinent characterized in the meantime by criss-crossing, mainly bilateral RTAs where the EC stands at the centre and other countries are connected to this centre through RTAs like spokes in a hub (so-called "hub-and-spoke"-system). This development engenders a flurry of problems.F The most important one is to be seen in the fact that the overlapping of RTAs with different scope, coverage, depth of liberalization and rules of origin (where FTAs are concerned) creates a widely intransparent situation and enormous administrative costs." What are intended to be preferences in bilateral perspectives may be acts of outright discrimination when seen from a more distanced, multilateral point of view. Where RTAs overlap a situation is created in which regional integration may produce effects which directly counterbalance those resulting from the application of the MFN principle. In this situation, regionalism is no longer a valid alternative to multilateralism and conducive to the 76
77
78
See regional TradeIntegration under Transformation, para. 13, see note 4. These problems have recently been described in detail by A. Sapir, "Trade Regionalism in Europe: Towards an Integrated Approach", Journal of Common Market Studies 38 (2000), 151 et seq. (158 et seq.) and in the report Regional Trade Integration under Transformation, para. 10 et seq., see note 4, prepared by the WTO Secretariat. See WTO Secretariat, Rules of Origin in Regional Trade Agreements, WT/REG/W/45. As it is known, this problem has been described by Bhagwati as the "spaghetti bowl of regional integration".
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same end but, instead, clearly threatening the multilateral framework. This problem is evident where different rules of origin collide. It stands to reason that in a heavily integrated world, rules of origin are of decisive importance to maintain independent FTAs. The more demanding they are the greater are the trade diverting effects ("trade deflection") also partly hindering trade with goods coming from outside the FTA but further processed within. Rules of origin can become one of the most important protectionist instruments and the object of costly lobbying activities. In such a situation of dubious access of products originating from the "spokes" in the "hub-market" it is a small wonder that investors prefer to invest in the "hub-market" instead of the "spoke-market"."? As the straight solution to the rules of origin-problem, the transformation of all FTAs in Customs Unions is, in most cases politically not feasible, a "second-best"-approach could be seen in a world -wide harmonization of the rules of origin. Attempts in this sense are, especially on the regional level,80 under way but different national preferences, and, not least, the will to preserve a protectionist instrument stand in the way of a rapid success of such endeavours . Furthermore, the different coverage of overlapping RTAs and the different phasing out of preferences enhance, especially in the field of agricultural products, the need for control measures, thereby adding again to the administrative costs. In view of this array of problems generated by overlapping FTAs which are not only hypothetical but very real many compelling questions arise: why are FTAs still allowed? Why do members of regional integration initiatives not resort to Customs Unions in which trade deflection is not possibler'" Does article XXIV still offer valid criteria for 79
80
81
Cfr, Sapir, see note 77, 159, referring to R.E. Baldwin, Towards an Integrated Europe, 1994. In Europe, the PANEURO system of rules of origin has to be mentioned. On the basis of this system a single set of rules of origin and of diagonal cumulation of origin is applied to preferential trade between the EC, the EFTA states and the Central and East European countries. As these countries have, again, preferential trade relations with other countries on a world-wide level and as they are taking recourse, also in these relations, to the PANEURO system this system is gaining importance far beyond the European region. Cf. WTO Secretariat Report, see note 4, 10 et seq. This, of course, is only true if this Customs Union fulfils substantially-allthe-trade-criterion and if it is fully implemented .
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the evaluation of RTAs? In fact, today regionalism presents a picture, especially in Europe, which could hardly have been foreseen half a century ago. It could therefore be argued that the regional exception according to article XXIV is based on an economic theory which no longer corresponds adequately to the challenges of reality. Most important of all, it could be argued that the inefficiencies caused by overlapping RTAs must be known to the members of such agreements. Why, then, do these countries allow the advantages of regionalism to be offset by these dysfunctional developments? The answers to all these questions lie mainly in a fact, that this article has already been pointed at: Regionalism is not only an economic phenomenon but also, in some cases mainly, a political one. Often, the creation of a Free Trade Area is an expedient when the political consensus for a Customs Union is not given. Criss-crossing, overlapping RTAs reflect the complexities of international relations where personal sympathies between statesmen, historic ties between nations and membership in broader alliances often count more than economic reason. Therefore, preferential economic relations that may seem awkward from a purely economic viewpoint may appear to fit well in a sensible scheme when seen in a more holistic perspective. Secondly, the EC has been one of the most important actors in the attempt to use regional integration as a development instrument. Again, what was thought to be an important step forward in the attempt to foster cooperation between North and South resulted, in the end, in widespread discrimination between single developing countries and questionable results even in the preferred countries. The EC in its development policy followed and, in many cases, heavily influenced the rather tortuous way along which the special role of developing countries in GATT/WTO law was subject to continuous change. As is known, the development issue caused a considerable amount of headache in GATT/WTO circles (or, respectively, among the Member States) and the response to this problem was a never-ending trial-anderror process where the definite answer is not yet in sight. Looking back half a century it could be said that this process has gone almost full circle. While GATT 1947 was originally widely ignorant of the woes and needs of developing countries, the only exception having been arti-
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cle XVIII, 82 with the introduction of Part IV in 1965,83 developing countries were allowed to depart from the reciprocity obligation in RTAs - both in those concluded among themselves as in those concluded with industrialized countries. While this exception was thought to be of a temporary nature not unlike a waiver with the introduction of the so-called Enabling Clause'" a permanent basis for a privileged treatment of developing countries in a multilateral setting where otherwise the principle of non-discrimination was paramount was created." In hindsight, it is doubtful whether this was the right way for promoting the interests of the developing countries as RTas among those countries proved to be largely unsuccessful'" and the preferential agreements between developed and developing countries were highly trade-distortive. Also from a legal point of view these special relationships were hardly defensible, a fact that became more and more evident as the relevant law was clarified over the years. The special, non-reciprocal preferences between industrialized countries and developing countries have always been a contentious issue. They cannot be justified on the basis of article XXIV as their nonreciprocal character stands in the way of the "substantially all the trade" criterion. The EC has tried to justify them on the basis of Part IV of the GAlT and with reference to the so-called enabling clause. Part IV of the GAlT was added to this agreement in 1965 with the special purpose of allowing the concession of preferences to developing countries in a non-reciprocal way. The enabling clause was a decision of the CONTRACTING PARTIES of 1979 whereby the possibilities of pref82 This provision allows for special measures of governmental assistance (es-
83 84
85
86
pecially import restriction s) in the case of Contracting Parties which are in the early stages of development. The relevant provisions entered into force on 27 June 1966. Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries of 28 November 1979 (GATT Ll4903), GATT BISD 26S 1980,203-205. On the whole issue see recently E. de Vos, "The Cotonou Agreement: A Case of Forced Regional Integration?", in: G. Kreijen (ed.), State, Sovereignty, and International Governance, 2002, 497 et seq. Nonetheless, they mak e up for a considerable percentage of the whole number of RTAs: the WTO Secretariat, para. 26, see note 4, estimates that of 243 RTAs in force at the time the respective draft was written, between 30-40 per cent were agreement s between developing countries. Until now the appeal of su ch agreements with developing countries seems to be un broken.
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erential treatment should be still enlarged. This approach was, however, not totally convincing as these provisions did allow for the concession of special preferences to the developing countries but not for the discrimination between these countries. The whole problem gained most of its publicity with regard to the so-called Lome Agreements.V While the WTO compatibility of the Lome IV agreement could be ensured only by a waiver 88 in the successor regime, the Cotonou agreement, a waiver is no longer pursued, at least for the time after this new regime becomes fully operative in 2008.89 The EC had to take note of the fact that the time for this kind of preference was over and that a waiver suited to cover this exception on the long run was probably no longer obtainable.j? Most impressively, in various stages of the long banana dispute before the GATT/WTO dispute settlement organs it became clear that the old preferential policy
87
88
89
90
As it is known, since 1976 four Lome Agreements, distinguished by Roman numerals, have been concluded. In a working party set up to examine the compatibility of Lome IV with the GATT provisions several members voiced strong objections pointing at the fact that Part IV of the GATT allowed only for special treatment of developing countries on a generalized basis and not for single countries or groups of countries. See GATT BISD 41S 1994, 125 (128). Though upholding their traditional position the European Community applied subsequently for a waiver which was granted by a decision of the Contracting Parties of 9 December 1994 until 29 February 2000, the date of expiry of Lome IV. See J. Huber, "The Past, Present and Future ACP-EC Trade Regime and the WTO", E]IL 11 (2000),427 et seq. (430). As is known, the waiver granted for the Fourth Lome Convention was not the only one directed to assure GATT/WTO compatibility of RTAs. Other waivers for RTAs still in force regard the US-Caribbean Basin Economic Recovery Act (CBERA) concluded between the United States and 21 C aribbean and Central countries as well as the CARIBCAN, concluded between Canada and 18 Caribbean countries. See WTO Secretariat, Report, see note 4, 9 note 25. In fact, the aim is to conclude either fully fledged RTAs on the basis of article XXIV or to grant preferential status on the basis of the Enabling clause to those ACP countries which qualify as LDCs. For the transitory period until 2008, when the Cotonou regime will become fully WTO compatible, however, a waiver may still be necessary. It has to be noted that any such measure will no longer be governed by the rather "liberal" (or, to put it differently, vague) provision in article XXV GATT but by the much more demanding provisions in the para . 3 and 4 of article IX of the WTO agreement.
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for former colonies of single EC countries could no longer be upheld."! This jurisprudence can be seen as the expression of a new attitude towards preferences for developing countries taken by the WTO as a whole. In this context it is planned to withdraw the special preferences granted to the bulk of the developing countries and to fully integrate them in the multilateral regime on the basis of equal rights and duties. Only for those developing countries which pertain to the group of the least-developed-countries will the special and differential treatment continue to apply, though this special regime shall be phased out step by step as soon as the countries concerned "graduate" to a more developed status. These being the preconditions for preferential cooperation set by the multilateral framework the EC had to undertake a thorough restructuring of her large network of agreements in this field and the Cotonou agreement was surely the most significant step in this direction. 92 The question whether these agreements were compatible with the general, multilateral framework, has been present since the day of their conclusion and it was, as already mentioned, mainly the degree of awareness of this problem that has continuously risen. In this sense, it can be said that the EC has always been prepared to challenge the multilateral rules in this field believing that the risk was contained and that it would, in any case, always control the game. For years, this assumption may have corresponded to reality but in the meantime it no longer holds true. While the EC is still the dominant player in international regionalism, things have changed since the heyday of European regionalism in the 1960s and 1970s. The United States, in particular, have now discovered the attractiveness of regionalism, first by a Free Trade Area with Canada, afterwards through the creation of NAFTA. The next 91
92
For a detailed account of this jurisprudence see P. Hilpold, Die EU im GATTIWTO-System, 1999. The same is true for the "second-generation" Euro-Mediterranean agreements concluded between the EC and the countries of North Africa. These agreements should intensify the cooperation between the EC bloc and several countries of the Northern African region not only on an economic level but also on a political one. In this latter regard issues such as the fight against illegal immigration and the attempt to promote the idea of democracy has gained paramount importance. At the same time these new agreements offered an ideal opportunity to enter into an economic cooperation regime on the basis of the principle of reciprocity thereby also countering any criticism about the WTO compatibility of these agreements. For the year 2010 a "Euro-Mediterranean" free trade area is planned.
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goals seem to be the Free Trade Area of the Americas (FTAA) and the Trans-Atlantic Free Trade Area (TAFTA).
VII. Conclusion Regional integration has become a world-wide phenomenon. As has been shown, the integration tendencies have even been accelerating in the last years. Also among developing countries regional integration has become popular through inter-se agreements. Though it must be said, that the attempt to copy the European success has all but failed.93 In view of this situation, the EC has discovered the virtues of ruleadherence. Generally, the EC tries to renegotiate its non-reciprocal agreements so that they can be based on article XXIV. A particular problem is represented by the association agreements concluded in view of the accession of the 12 candidates mentioned above. They contain large exemptions with regard to the agricultural area. The "substantially all the trade" criterion most likely prohibits the exclusion of a whole area from the integration obligation and in particular one of such an importance as agriculture. On the other hand, these agreements are of a provisional nature and shall lead to full membership. Therefore other WTO members might probably abstain from action. On the whole, two main elements have to be taken into consideration with regard to the situation described above. First of all, the considerations made for regional integration in general also apply to the special issue of regional integration between developing countries: no solution can be found if this matter is considered only from an economic point of view. Developing countries resort to regional integration initiatives both for economic as for political reasons. The finding that a specific initiative is economically unsound is therefore not sufficient to convince the participating countries to abstain from it. On the other hand, political reasons are difficult to judge by third parties interested mainly in a functioning multilateral framework. This means that it may be difficult for third parties - in our case for the EC - to secondguess the political decision by third parties to conclude a RTA. From 93
See World Bank, Trade Blocs, A World Bank Policy Research Report, 2000. For an attempt to distil lessons from the European integration process and to apply them on the developing countries context see L.A. Winters, "What Can European Experience Teach Developing Countries About Integration? ", World Economy 20 (1997), 889 et seq.
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this follows the second important conclusion. In view of the pivotal importance of the principle of reciprocity the best approach to choose by the EC might be to take seriously its traditional leadership in the field of regional integration and to draw all the necessary consequences. It can be said, therefore, that there are good reasons for the EC to try to mend the system as its many defects are apparent and defeats before WTO dispute settlement organs are looming. But the most important reason for this newly found confidence of the EC in multilateral trade rules is the fear of imitations.?" In this, the behaviour of the EC can best be explained by theories developed by the social sciences such as the prisoner dilemma and the theory of the second-best, both already mentioned in this article. With regard to the first theory it is important to note that the EC has learnt to take into consideration the possibility of reactions by other states and the fact that cheating does not payoff on the long run. Although in this field the times of reaction are relatively long and in the first years after GATT had come into existence it seemed that Europe was the natural - and by far the most important - playing ground for regional integration experiments, after several decades even the staunchest advocate of multilateralism, the United States, has adapted to this new situation and shows that it is very able of playing this game. As a consequence, the EC is now demanding a more detailed regulation of the rules of the game. With regard to the second theory it was said that "it was precisely in the context of preferential trading arrangements that the Byzantine complexities of the second best were first discovered."95 As is known, the theory of the second best has met with harsh criticism in literature. 96 The recommendation that the failure to attain the optimum in one area of a general equilibrium should be taken into consideration when other optima pursued in the sense that the Pareto optima have not to be determined in an isolated way but under consideration of all changes to the applicable conditions deriving from the first-mentioned area appears to be theoretically compelling but in many cases impossible to translate into practice for the lack of the necessary information." In practice it may still be preferable to pursue first-best-solutions even 94
95 96 97
See, in particular, European Commission, WTO relevant aspects of EU preferential agreements with third countries, SEK (96) 2168 final. See Krugman, see note 8, 58. See also Pomfret, see note 36, 460. Cf., for example, D. Briimmerhoff, Finanzwissenschaft, 2001,117 et seq. Ibid.
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knowing that the results are not Pareto optima when the available information is insufficient for the necessary adaptations. Applied to the RTA issue this criticism strongly recommends to hold on to multilateralism. This criticism finds expression - though not expressly and most probably not knowingly - in the reports of the panel and the Appellate Body in the Turkey-Restrictions on Imports of Textile and Clothing Products case where it was confirmed - as already stated - that regionalism is no equivalent alternative to multilateralism. It follows implicitly from the adoption of the necessity principle - as defined above - that every effort has to be made to avoid restrictions that go beyond a mere exception of article I GATT. As a consequence, it can be said that the modern interpretation given to the theory of the second best needs to be very careful towards all too sweeping demands for exceptions to the general multilateral framework. With regard to the EC it has to be noted that this institution is itself interested in stable multilateral trade relations and in open markets on the basis of the MFN principle. It has now much to fear that other countries are in the meantime copying the EC's unruly behaviour of the past.
The Prospects of 21st Century Constitutionalism Thomas Cottier/Maya H ertig
"Wir Leben insow eit v on dem Gedankengut einer Welt, die nicht mehr die unsere ist und, w ie wir immer deutlicher sehen, in den tiefen WandLungen des ausgehenden 20. Jahrhunderts ihren Untergang gefunden hat. Ober ihre GrundLagen, bisher als gesichert geLtende Bestandt eiLe der Staats- und Veifassungslebre, ist die Gescbichte hinweggegangen." (Konrad Hesse)
I. II.
Introduction The Converging Evolution of Constitutional and Public International Law 1. The Traditional Dichotomy Between International and Constitutional Law 2. Towards Structural Rapprochement a. Th e Impact of State Failures, Decol onization, Rcgionalization and Glob alization aa. 'Internationalization' of Constitutional Law bb. 'Constitutionalization' of International Law III. Con stitution alism Beyond the Nation State 1. The Contested Notion of the ' Co nstitution' a. Recourse to Constitution al Termino logy b. De scriptive versus Normative Concept of Constitution 2. The Quest for a Graduated App roach to Constitutionali sm a. The Immobilizating Effect of Statism b. The Need for Peaceful Constitutional Transiti ons c. Constitutionalism as a Pro cess IV. Toward s a Five Storey House 1. Multil evel Go vernance 2. Shared Sovereignt y
A. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 7, 2003, 261-328 . © 2003 Koninklijke Brill N. V. Printed in the Netherlands.
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V.
Max Planck UNYB 7 (2003) 3. The Relationship Between the Different Levels of Governance a. The Principle of Supremacy b. Exceptions to Supremacy 4. The Normative Interaction Between the Different Layers of Governance 5. The Allocation of Powers a. The Limits of Traditional Pattern of Power Allocation b. Reallocation of Powers c. Shared and Interlocked Powers d. Substantive Remedies e. Procedural Remedies 6. The Role of the Judiciary Conclusion
I. Introduction At the outset of the Millennium and with the advent of a new Century, traditional foundations of constitutional governance face new challenges in the light of enhanced international interdependence, globalization of markets, of technologies and communication way beyond the boundaries of the Nation State. The moment has come to live up to these challenges in legal theory and constitutionalism. The goals of liberty, justice and dignity, of equity but also efficiency and security all remain unimpaired. But ways and means to secure them in coming decades and perhaps centuries need to be developed in the context of an increasingly globalized society. The past, building upon the achievements and failures of the Westphalian system of Nation States and the republican ideas of the French and American Revolutions brought about the consolidation of constitutionalism within the Western Nation State. The theories of constitutional and traditional public international law emerged as a response to a Europe highly fragmented and torn by devastation. An account of the Thirty Years' War, of religious and political fragmentation, social misery and the decline of law reminds us of the implications of such disorder.' This experience created the underpinnings of the modern state.? The call for central governance and sovereignty in the writings of
1 2
Cf. G. Mann, Wallenstein. Sein Leben erzdhlt von Golo Mann, 1974. See C. Walter, "Constitutionalizing (Inter)national Governance", GYIL 44 (2001),92 et seq .
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Bodin 3 and Hobbes.' and for limited government and checks and balances in the works of Locke' and Montesqieui all served in differing ways the causes of liberty and peace within the system of Nation States, at their respective times." Indeed, it is important to recall that all these efforts were directed at achieving freedom and security through governance under contemporary conditions, within the bounds of society, markets and means of communication of that time, seeking to overcome incoherence, fragmentation and abuse of power. Yet, these endeavours were operational answers to their times and societies and cannot claim eternal truth. Meanwhile, the historical, political and economic context has undergone important changes which a modern theory of constitutionalism has to account for if it is to ensure its traditional functions and to contribute to global governance. With technological advances of the past and present, interaction of states and societies has considerably increased, leading from traditional coexistence to cooperation and even to integration by means of international law and organizations. It is obvious that Constitutionalism of the 21st century needs to address these complexities and to reach beyond the boundaries of the Nation State. This raises difficult theoretical questions as to how this can be achieved. The current efforts mainly focus on the problem as to whether levels of governance other than the Nation State are constitutionally framed or not, and therefore what essential qualities and properties amount to a whereas int ernational law remained a "constitu tion-free" and "morality-free zone",16 dominated by utter ReRecht 117 (1998),1 et seq . (7). Similarl y, the foundin g fathers of th e United States invoked th e hostile international environment as one of the main reasons justifying th e foundation of the federal state: " It is true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, that absolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private co mpacts to aggrandize or suppon their particular families or partisans. " Cf. A. Hamilton/ J. Madison / J. Jay, The Federalist Papers, 1969 (first published in 1788), Paper No.4 Gay), 46; see also Paper No.6 (Hamilto n), 59 et seq. 13 J. Locke, Th e Treatises of Gov ernment 395-99, 1965,411 , quoted in E.U . Petersmann, "How to Constitutionalize International Law and Foreign Policy for the Benefit of Civil Society ", Mich.]. Int 'l L. 20 (1998), 1 et seq. (25 et seq.), 14 For a definition of con stitutionalism, see for example M. Ros enfeld, Constitutionalism, Identity, Difference and Legitimacy, 1994, 3, according to whom "constitutionalism requires imposing limits on the powers of government, adherenc e to th e rul e of law, and th e protection of fundamental rights. " Similarly E.U. Petersmann, "Constitutionalism, Constitutional Law and European Integrati on ", Aussenwirtschaft 46 (1991), 247 et seq. (252 et seq .): "Constitutionalism" denotes the basic idea of limited government under the rule law." See also U.K. Preuss, "Patterns of Constitutional Evolution and C hange in Eastern Europe", in: J.Hesse/ V. Wright (eds), Constitutional Policy and Change in Europe, 1995,95 et seq. (95): " [C]onstitutionalism embraces essentially the idea of limited government". 15 T. Cottier! D. Wu ger, "Auswirkungen der Globalisierung auf das Verfassungsrecht: Eine Diskussionsgrundlage", in: B. Sitter-Liver (ed.), Herausgef orderte Verfassung, Die Schweiz im globalen Kontext, 1999,241 et seq . (242 et seq .); th e view according to which no con stitutional constraints should be imp osed in the field of foreign policy is also reflected in the Fed eralist Papers: "The circumstances that endanger the safety of nati ons are infinite, and for this reason no constitutional shackles can wisely be imposed on the po wer to which the care of it is committed. T his power ought to be coextensive w ith all th e possible combinations of such circumstances", H amilton / Madison/ Jay, see note 12, Paper N o . 23 (Hamilton), 153. 16 Allot, see note 9, 35.
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alpolitik and the barrel of the gun. Domestic and international law were thus, in principle, looked upon as two essentially distinct systems.
2. Towards Structural Rapprochement a. The Impact of State Failures, Decolonization, Rcgionalization and Globalization During the 20th century the concept of coexistence remained of paramount importance and still shapes international law to a large extent. Yet, the boundaries between domestic and international spheres gradually blurred, with public international law evolving from a law of coexistence to a law of cooperatiori'", increasingly addressing domestic matters, and, partially, to a regional or even global law of integration.l'' The latter can be described as the making and shaping of uniform or approximated domestic legal standards by way of international treaty making, particularly in the field of economic regulation. The legacy of two world wars, led in the name of the Nation State, saw the advent of the United Nations, the Bretton Woods Institutions and a relatively open global trading system based upon the GATT, now the World Trade Organization (WTO). In Europe, the Council of Europe and the European Communities were founded with a view to assuring peace and prosperity. International instruments for the protection of human rights, namel y the European Convention on Human Rights and the two United Nations Covenants of 1966, were set up as minimal safeguards for the citizens against the failure and abuse of state power.'? These developments are partly rooted in enhanced interdependence, partly in assisting newly independent states, but mainly in failures of states to protect and promote human well being, world peace and stability on their own. They were implicitly guided by the aim of intro-
17 18
19
The term 'law of co-operation' was coined by W. Friedmann, The Changing Structure of International Law, 1964,60-68. The term ' global law' instead of 'law of integration' is increasingly used, cf. Hobe, see note 8, 663, see also the series of 'Studies in Global Economic Law ', Vol. I -VI., (Peter Lang). See T. Cottier, "Trade and Human Rights: A Relation ship to Discover", JIEL 5 (2002), 11 et seq. (116).
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ducing a new layer of constitutional checks and balances so as to constrain the power of the sovereign states. At the same time, bilateral and multilateral cooperation increased dramatically so as to cope with the profound technical, social, ecological and economic changes commonly described as globalization.2o Nowadays, states are locked in and bound by many treaties. These agreements not only define external relations, but increasingly shape national law. In the case of the WTO, the process is accompanied by effective dispute settlement and enforcement. Even the United States of America as a superpower grudgingly adheres to this in principle with a view to securing its own market access and legal compliance interests abroad." The same holds true for the European Communities. Failure to comply with a number of big WTO cases across the Atlantic must not detract from the fact that overall levels of compliance are high. The more so, this is true within regional integration. Contemporary law of the European Union and the Community not only limits the powers of Member States but also those of non-members, like Switzerland, who see themselves under factual constraint to adapt and implement European Community law with a view to minimizing trade barriers and distortions to their own disadvantage. As a legal phenomenon, regionalization and globalization can be described as a process of "legal and de facto denationalisation",22 resulting from the declining regulatory 20
21
22
For a succinct description of the process of globalization, see K. Dicke, "Erscheinungsformen und Wirkungen von Globalisierung in Struktur und Recht des internationalen Systems auf universaler und regionaler Ebene sowie gegenlaufige Renationalisierungstendenzen", in: K. Dicke/ W. Hummer! D . Girsberger et al.(eds), Public Law and Private International Law in a Globalising International System, Berichte der Deutschen Gesellschaft fiir Volkerrecht 39 (2000), 13 et seq. (14 et seq.); P. Pernthaler, "Die Glebalisierung als Herausforderung an eine moderne Staatslehre", in: H. Schaffer! W. Berke/ H. Stolzlechner! J. Werndl (eds), Staat - Verfassung - Verwaltung: Festschrift anlasslich des 65. Geburtstages von Prof Dr. Dr. h.c. Friedrich Koja, 1998, 67 et seq. (69 et seq.); D. Held/ A. McGrew/ D. Goldblatt/ J. Perraton, "Rethinking Globalization", in: D . Held/ A. Mc Grew (eds), The Global Transformations Reader. An Introduction to the Globalization Debate, 2000, 54 et seq.; U. Beck, "What is Globalization?", in: Held/ McGrew, see above, 99 et seq. Cf. in this context the seminal work of L. Henkin, How Nations Behave, 1979, 12 et seq. C. Tietje, "Global Governance and Inter-Agency Co-operation in International Economic Law",fWT 36 (2002), 501 et seq. (502 et seq.); D. Thiirer, "Die Bundesverfassung von 1848: Kristallisationspunkt einer Staatsidee",
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capacity of the Nation State 23 and consisting in the transfer of policies traditionally regulated by domestic law to international or supranational governance structures or regimes.I" All these changes have deeply affected the structure of law in general and both constitutional and public international law in particular. Giovanni Biaggini put it succinctly: "constitutional law is becoming more international, international law more constitutional'V!
aa. 'Internationalization' of Constitutional Law As regards constitutional law, the growing interdependence of states and their declining regulatory capacity have caused, in Biaggini's words, a "partial outsourcing" of constitutional functions.P Importantly, the protection of fundamental rights and safeguarding peace are no longer the exclusive responsibility of national constitutions.F They have also become important tasks of international and supranational organizations. 28 The same is particularly true in economic relations. Market access rights and level playing fields are secured by basic treaty principles of non-discrimination (most favoured nation and national treatment) which do not form part of the introverted traditions of constitutional law.29 They are accompanied by a multitude of rules which in certain fields are more detailed than corresponding domestic regulations.
23
24
25
26 27
28 29
Zeitschrift fur Schweizerisches Recht 117 (1998), 163 et seq. (176); J. Delbriick, "Globalization of Law, Politics, and Markets - Impl ications for Domestic Law - A European Perspective", Ind. j. Global Legal Stud. 1 (1993), 10 et seq.; Dicke et al., see note 20, 14. Hobe, see note 8, 656. The concept of regime can be defined as a set of "principles, norms, rules, and decision-making procedures around which actors' expectations converge in a given cause-area", S.D. Krasner, International Regimes, 1983, 1. G. Biaggini, "Die Idee der Verfassung - Neuausrichtung im Zeitalter der Globalisierung?", Zeitschrift fur Schweizerisches Recht 119 (2000), 445 et seq. (455) (translated by the authors). Biaggini, see note 25,454. Biaggini, see note 25, 454 et seq. Biaggini, see note 25,454 et seq. T. Cottier, "Structure-Substance Pairings in the EFTA Experience ", in: M. Hilfl E.U. Petersmann (eds), National Constitutions and International Economic Law, 1993,409 et seq. (434 et seq.)
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The transfer of constitutional functions from the national to the internationallevel has been described by some legal scholars in terms of "internationalisation of constitutional law",30 "the opening up of the constitutional state"3! or the emergence of "international parallel consritutions'l.V
bb. 'Constitutionalization' ofInternational Law As regards public international law, the increasing importance of non state actors, such as international and non-governmental organizations (NGO's) and multinational corporations, are challenging the role of the state as the exclusive subject of international law.P The individual, traditionally considered an object of international law, is gradually gaining the status of a "partial subject".34 These developments mark a slow shift of paradigm from an international society of independent, sovereign states to the international comrnunity.P evoking the idea of interde-
30
Biaggini, see note 25, 452. G. Biaggini, "Die bffnung des Verfassungsstaates als Herausforderung fur Verfassungsrecht und Verfassungslehre", in: B. Ehrenzeller et al. (eds), Der Verfassungsstaat oor neuen Herausforderungen: Festschrift fur Yvo Hangartner, 1998, 957 et seq. (957); T. Cottier, "Globalisierung des Rechts - Herausforderung fur Praxis, Ausbildung und Forschung", Zeitscbrift des Berner [uristenuereins 133 (1997),217 et seq. (224); D. Schindler, "Der Weg vom "geschlossenen" zum "offenen" Verfassungsstaat", in: Ehrenzeller, see above, 1027; S. Hobe, Der offene Verfassungsstaat zwischen Souuerdnitdt und Interdependenz: eine Studie zur Wandlung des Staatsbegriffs der deutschsprachigen Staatslehre im Kontext internationaler institutionalisierter Kooperation, 1998. 32 C. Tomuschat, "Der Verfassungsstaat im Geflecht der internationalen Beziehungen", VVDStRL 36 (1978), 7 et seq. (9, 50); D. Thurer, Perspektive Schweiz. Obergreifendes Verfassungsdenken als H erausforderung, 1998, 86. 33 Hobe, see note 8, 659 et seq. 34 Hobe, see note 8, 661 et seq. 3S One of the first proponents of the concept of 'international community' was the judge of the IC] Hermann Mosler, see H. Mosler, "The International Society as a Legal Community", in: Collected Courses, The Hague Academy of International Law No.4 (1974),140 et seq. and id., The International Society as a Legal Community, 1980. For later works, see in particular C. Tomuschat, "Obligations Arising for States Without or Against Their Will", in: Collected Courses, The Hague Academy of International Law No.4 (1993), 195 et seq. and A.L. Paulus, Die internationale Gemein31
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pendence, shared responsibility and solidarity.-" The departure from the voluntaristic, state-centred concept of international law and the emphasis on the interests of the community of states as a whole also affect the sources and the implementation of public international law. The idea of 'higher law', binding the states independently of their individual consent, is reflected in the concepts of 'ius cogens', 'obligationes erga omnes' and 'international crime'Y However limited in scope, they have resulted in a rudimentary mandatory hierarchical structure of the international legal system which no longer is at the disposition of national law and the Nation State. As the creation of the European Court of Human Rights in Strasbourg, the ICC in The Hague, the WTO, the United Nations Convention on the Law of the Sea, and, most importantly, the European Union with their binding dispute settlement system shows, law enforcement mechanisms have been established with varying, but enhanced efficiency compared to voluntarist classical international law.38 With human rights lawyers at the forefront, the changing structure of the international legal system and its increased focus on the rights of the individuals, is referred to as the «constitutionalization of public international law".39 Before it was employed by international lawyers, the term 'constitutionalization' was introduced in the context of the European Community, describing the "process by which the ECJ [European Court of Justice] transformed treaty into constitution.Y? mainly by attributing
36
37
38 39
40
schaft im Volkerrecht. Eine Untersuchung zur Entwicklung des Volkerrechts im Zeitalter der Globalisierung, 2001. Salcedo, see note 10,588; Thiirer, see note 8, 44. For these concepts, see, among the vast literature, for example the articles by J.H.H. Weiler! A.L. Paulus, "The Structure of Change in International Law or Is There a Hierarchy of Norms in International Law?" EJIL 8 (1997), 545 et seq.; M. Koskenniemi, "Hierarchy in International Law: A Sketch", EJIL 8 (1997), 566 et seq.; Salcedo, see note 10,583 et seq. For a critical account, d . P. Wei!, "Vers une normativite relative en droit international?", RGDIP 86 (1982), 5 et seq. See J.A. Frowein, "Konstitutionalisierung des Volkerrechts", in: Dicke et al., see note 20, 427 et seq. (438 et seq.). For Frowein, the "constitutionalization of public international law means recognition of interests of the community of states and the introduction of mechanisms for their implementation", Frowein, see above, 447. F. Snyder, "General Course on Constitutional Law of the European Union", in: Academy of European Law (ed.), Collected Courses of the Academy of European Law, Vol. VI, No.1 (1995),41 et seq. (56).
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direct effect and supremacy to Community law and developing a fundamental rights doctrine for the European Union."! In comparison with the European Union, the theory of 'constitutionalization' is, of course, less developed and unsettled in public international law. It stands both for an analytical tool to describe the structural changes of the international legal system and for a strategy as to how to further enhance the efficiency, coherency and legitimacy of international law by applying constitutional law theories to the international system as a whole or to international organizations. The theory of constitutionalization is thus both descriptive and normative, which is illustrated by the 'constitutionalization debate' with regard to the WTO . Within the community of WTO scholars, different schools of thought can be observed, ranging from general descriptions to specific normative claims. Hannes L. Schloemann and Stefan Ohlhoff, for instance, use the term 'constitutionalization' to describe the important substantive reach of WTO law, the quasi-obligatory dispute settlement system and the shift of the WTO from a power to a rule oriented system, which has developed into a "proto-supranational structure L''-' Similarly, for Deborah Z. Cass, 'constitutionalization' characterizes "the generation of a set of constitutional-type norms and structures by
41
42
Snyder, see above, 56; J.H.H. Weiler, "The Transformation of Europe", in: J.H.H. Weiler, The Constitution of Europe, 1999, 19 et seq., first published in Yale L. j. 100 (1991), 2403 et seq.; id., "The Reformation of European Constitutionalism", in: Weiler, see above, 221 et seq.; E. Stein, Thoughts from a Bridge, a Retrospective of Writings on New Europe and American Federalism, 2000, 15. The first account of the 'constitutionalization' of the EC treaties is generally attributed to an article written by Eric Stein in 1981: "Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe. From its inception a mere quarter of a century ago, the Court has construed the European Community Treaties in a constitutional mode rather than employing the traditional international law methodology". E. Stein, "Lawyers, Judges, and the Making of a Transnational Constitution", AjIL 75 (1981),1 et seq. (1), also published in: Stein, see above, 16 et seq. H. Schloemann/ L. Ohlhoff, "Constitutionalization" and Dispute Settlement in the WTO: National Security as an Issue of Competence", AjIL 93 (1999),424 et seq. (424) and footnote 1. Cf. also id., "Transcending the Nation State? Private Parties and the Enforcement of International Trade Law", Max Planck UNYB 5 (2001), 675 et seq.
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judicial decision-making"." john jackson's constitutional analysis of the WTO focuses mainly on the institutional structure of the Organization.f He emphasizes the need to increase transparency and the participation of non-governmental organizations in the decision-making procedures of the WTO, without advocating fundamental changes in the structure of international and inter-governmental law.45 Markus Krajewski also considers transparency an important legitimating strategy. But contrary to jackson, he does not believe that NGO's participation would increase the legitimacy of the WTO.46 Similar to Krajewski's opinion.'? Steve Charnovitz defends the view that international governance must meet the standards of legitimacy according to constitutional principles and writes in support of what he calls cosmopolitics as opposed to traditional intergovernmental diplomacy or ortho-politicsr'" "The individual wants legitimate, democratic governance at all levels, be it the local school board, the city, the province, the nation, or the WTO".49 Ernst-Ulrich Petersmann has made a passionate claim for integrating human rights law into the WTO, arguing that national courts should directly apply WTO norms, which embody the fundamental right to free trade, whereas panels should construe the general exception and safeguard clauses in the light of international human rights
43
44
45 46 47 48
49
D .Z. Cass, "The ' Constitutionalization' of International Trade Law: Judicial Norm-Generation as the Engine of Constitutional Development in International Trade", EJlL 12 (2001), 39 et seq. (39). J.H. Jackson, "The WTO 'Constitution' and Proposed Reforms: Seven 'Mantras' Revisited", jIEL 4 (2001), 67 et seq. (70 et seq.); for a summary of Jackson 's view, see J.L. Duvigneau, "Die Konstitutionalisierung des WTO-Rechts. Zur juristischen Diskussion tiber Verfassungsstrukturen im Bereich des Handelsvolkerrechts", Aus senwirtschaft S6 (2001), 29S et seq. (300 et seq.) , Jackson, see note 44,76 et seq. M. Krajewski, Verfassungsperspektiven und Legitimation des Rechts der Welthandelsorganisation (WTO), 2001, 2S2 et seq. (261 et seq.). Cf. M. Krajewski, "Democratic Legitimacy and Constitutional Perspectives of WTO Law",JWT 3S (2001), 167 et seq. (171). The term "orthopolitics" describes a state-centered view of international. law, according to which the individuals only participate in international policy making through their own governments, S. Charnovitz, "WTO Cosmopolitics", N. Y. u.j. Int'l L. & Pol. 34 (2002),299 et seq. (306). Charnovitz, see above 48,310 et seq.
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norms. 50 This strategy has been criticized on different grounds. 51 Philip Alston , for instance, fears that Petersmann's theory of constitutionalizing the WTO will result in the instrumentalization of human rights for trade liberalization purposes.V Robert Howse and Kalypso Nicolaides warn against constitutional language and concepts being imported into the debate about the WTO, fearing an increased polarization between free trade advocates and its detractors. In general, they argue that constitutionalizing WTO law goes too far, as it impedes Member States from pursuing legitimate policy goals domestically, and overstrains the international systern.P In a similar vein, Armin von Bogdandy's coordinated interdependence model emphasizes the regulatory autonomy of WTO members, highlighting the important differences between the European Union and the WTO.54 Eric Stein also points out that the differences, in terms of the integration level achieved, between the international structure of the WTO and the supranational European Union "make transfers of the basic features of the European Union difficult to envision".55 Joseph H.H. Weiler considers" 'constitutionalizing' 50
51
52
53
Cf. E.U. Petersmann, "Time for a United Nations "Global Compact" for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration", EJIL 13 (2002), 621 et seq., also published in The Jean Monnet Working Paper No. 12, 2002; ibid., "Taking Human Dignity, Poverty and Empowerment of Individuals More Seriously: Rejoinder to Alston", EJIL 13 (2002), 845 et seq. P. Alston, "Resisting the Merger and Acquisition of Human Rights by Trade Law. A Reply to Petersmann", EJIL 13 (2002), 815 et seq., also published in The Jean Monnet Working Paper No . 12, 2002; R. Howse, "Human Rights in the WTO: Whose Rights, What Humanity? - Comment on Petersmann", EJIL 13 (2002), 651et seq., also published in The Jean Monnet Working Paper No . 12, 2002; Krajewski, see note 47, 179 et seq.; D.K. Tarullo, "The EU and the WTO: Legal and Constitutional Issues",JIEL 5 (2002),941 et seq. (942). Alston, see note 51, 842 et seq. R. Howse/ K. Nicolaides, "Legitimacy and Global Governance: Why Constitutionalizing the WTO is a Step Too far", in: R.B. Porter (ed.), Effi-
ciency, equity and legitimacy: the multilateral trading system at the millennium, 2001, 227 et seq.; Thiirer, see note 8, 43, defends a similar view as regards the constitutionalization of public international law, considering this strategy too ambitious. 54 A. von Bogdandy, "Law and Politics in the WTO - Strategiesto Cope with a Deficient Relationship", Max Planck UNYB 5 (2001), 647 et seq. 55 E. Stein, "International Integration and Democracy: No Love at First Sight", AJIL 95 (2001), 502 et seq. (533).
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the GATT in structural terms and in some ways using the EV as a 'model' [a] simplistic dream"56 and "wholly misguided"Y Finally, one of the authors of this article advocates within the existing legal framework a modest shift, reflected in case law, from a functional paradigm, primarily aimed at trade liberalization, towards a framework capable of "reasonably balancing and weighing different, equally legitimate and democratically defined basic values and policy goals of a polity dedicated to promote liberty and welfare in a broad sense".58 In other words, there is no common ground, at this stage, and different authors have different conceptions on whether constitutionalizing the WTO is possible or desirable in the first place, and if so, what the practical implications of constitutionalization are and should be. Despite the lack of common notions and perceptions, the constitutionalization discussion should be welcomed as a sign that strict separation between domestic and international law has come under challenge, opening the debate on the prospects for 21 st century constitutionalism.
III. Constitutionalism Beyond the Nation State 1. The Contested Notion of the 'Constitution' a. Recourse to Constitutional Terminology The debate on the 'constitutionalization' of European and international law goes hand in hand with an increasing, sceptics would say inflationary, use of the term 'constitution'. While the traditional notion of 'con-
56 J.H.H. Weiler, "Epilogue: Towards a Common Law of International
57
58
Trade", in: J.H.H. Weiler (ed.), The EU, the WTO and the Nafta. Towards a Common Law of International Trade, 2000, 230. J.H.H. Weiler, "Cain and Abel - Convergence and Divergence in International Trade Law ", in: J.H.H. Weiler (ed.), The EU, the WTO and the Nafta . Towards a Common Law of International Trade, 2000,1 et seq. T. Cottier, "Limits to International Trade: the Constitutional Challenge," ASIL Proceedings 94 (2000), 220 et seq. (221).
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stitution' has been limited to the Nation State,59 we observe that it is increasingly employed in the context of European and public interna-
59
For Swiss authors, see W. Kagi, Die Verfassung als rechtliche Grundordnung des Staates. Untersuchungen iiber die Entwicklungstendenzen im modemen Verfassungsrecht, 1945; A. Auer! G. Malinverni/ M. Hottelier, Droit constitutionnel Suisse, Vol. I, 2000, 1: "La constitution est un ensemble de normes qui ont trait a l'Etat", ("The constitution is a set of legal norms which refer to the state"); for French legal doctrine, d. G. Vedel, Manuel elementaire de droit constitutionnel, 1949, 3; A. Esmein , Elements de droit constitutionnel [rancais et compare, 1921, 1; it is true that the concept of 'constitution' is, according to French legal theory, primarily related to the nation, and not to the state (see A. Peters, Elemente einer Theorie der Verfassung Europas, 2001, 97 et seq.), but since the state is considered the legal personification of the nation, state and constitution are clearly connected; d . Esmein, see above, 1: "L'Etat est la personnification juridique d'une nation: c'est Ie sujet et Ie support de I'autorite publique [...]. Le droit public consiste en ce qu'il donne a la souverainete, en dehors et au-dessus des personnes qui l'exercent atel ou tel moment, un sujet ou titulaire ideal et permanent, qui personnifie la nation entiere: cette personne morale, c'est l'Etat, qui se confond ainsi avec la souverainete, celle-ci etant sa qualite essentielle", ("The state is the legal embodiment of the nation: it is the subject and the underpinning of public authority. Public law consists in giving to sovereignty, apart and beyond the people who exercise it at a given moment, an ideal and permanent subject or holder, which embodies the whole nation: this legal entity is the state, which herewith is identical with sovereignty, the latter being its essential attribute"). For a similar approach, see, among Belgian scholars, Y.Lejeune/ O. De Schutter, "L'adhesion de la Cornmunaute a la Convention europeenne des droits de l'homme. A propos de l'avis 2/94 de la Cour de justice des Communautes", Cahiers de Droit Europeen 32 (1996), 556 et seq. (572), note 31: "Dne constitution est ['00] l'expression souveraine de la volonte d'un peuple de se constituer en Etat [...]." ("A constitution is [00'] the sovereign expression ofthe will of a people to be constituted in a State [00']")' It is the German constitutional doctrine which insists the strongest on a state centered concept of constitution. Cf. C. Schmitt, Verfassungslehre, 1928, 3: "Das Wort "Verfassung" muss auf die Verfassung des Staates, d.h. der politischen Einheit eines Volkes beschrankt werden, wenn eine Verstandigung moglich sein soli," (The term "constitution" has to refer to the constitution of the state, i.e. the political unity of the people, if communication shall be possible"). P. Kirchhof, in:]. Isensee/ P. Kirchhof, Handbuch des Staatsrechts der Bundesrepublik Deutschland, Vol. I, 1987, 776: "Die Verfassung ist das Fundamentalgesetz eines Staates, das die Organisation und die Ausiibung der Staatsgewalt regelt, die Entwicklung des Staatswesens und seines Rechts anleitet und die Rechtsposition des Einzelnen im Staat bestimmt", ("The
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tional law.60 A number of international organizations explicitly depict their charters as 'constitutions', such as the ' Constitution' of FAa and UNESCO.61 Others implicitly qualify basic instruments in constitutional terms. The European Court of Justic e already depicted the founding treaties as the "constitutional Charter of a Community based on the rule of law",62 long before efforts to create a formal constitution of the EU were undertaken. In a similar vein, a decision of the European Commission of Human Rights considers the "Convention as a constitutional instrument of European public order in the field of human rights" .63 In doctrine, Alfred Verdross 64 and Georges Scellesv were among the first scholars to develop a theory of international constitutionallaw. Other scholars refer to an "emerging global constitution",66 the "constitution of mankind",67 the "universal constitution of public internationallaw"68 and speak with regard to the WTO and the United Nations Charter of an "international economical constitution"69 and a "constitution of the International Community".7° constitution is the fund amental charte r of a state; it govern s the organization and th e exercise of state authority, guides the development of the state and its laws, and determines the legal po sition of the ind ividual s in the state"). 60 For a detailed description of th e use of the term 'cons titution' outside th e context of the Nation State, see Biaggini, see note 25, 448 ct seq.; Peters, see note 59, 46 et seq. 61 Cf. Petersmann, see not e 13, 11 et seq. 62 Opinion 1191 , Referring to the D raft Treaty on a European Economic Area , ECR 1991 I, 6084; the terms "c onstitu tio nal chart er" and "Community based on the rule of law " have been first used in Case 294/ 83, Parti ecologiste 'Les Verts' u. European Parliament, ECR 1986, 1339 et seq., 1365. 63 Decision Ch ryso storn os, Papachrysostomou and Loizidou v. Turkey of March 4, 1991, Application Numbers 15299/89; 15300/89; 15318/89; see also the subsequent judgment in the same case of the European Court of Human Rights of May 23,1995, Series A No. 310 § 75. 64 A. Verdross, Die Verfassung der Volkerrechtsgemeinschaft, 1926. 65 G. Scelles, "Le Droit co nstitutionnel international ", in: Melanges Carre de Malberg, 1933,503 et seq . 66 Muller; see note 7, 63 (translated by the authors). 67 C. Tornuschar, "Intern ational Law as the Constitution of Mankind", in: United Nation s (ed.), In ternational Law on the Ev e of th e Twenty-first Centu ry. View sfrom the International Law Commission, 1997, 37 et seq. 68 Miiller, see note 7, 62 (translated by the auth or s). 69 S. Langer, Grundlagen einer inte mationalen Wirtschaftsverfa ssung: Strukturprinzipen, Typik und Perspektiv en anhand v on Europdischer Union un d
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Should such extensive use of the term 'constitution' be approved of, or is it misleading, fraught with the risk of diluting the meaning and essence of the consriturionj" This question has given rise to controversy, dividing legal scholars into two camps, which we will name, following Biaggini, the "statist " and the "internationalist" school.r? According to the statist strand of thinking, the constitution is inherently linked to the state. "Internationalist"73 scholars, on the other side, defend the view that the concept of 'constitution' should be decoupled from the state, insisting that the notion of 'the constitution' has considerably evolved over time and has only been linked to the state for the last two hundred years.?" According to the 'statist' point of view, however, this historical argument is not relevant as it fails to distinguish between a descriptive and a normative concept of 'constitution'r"
70
71
72 73
74
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Welthandelsorganisation, 1995, 17 et seq.; T. Oppermann, "Die Europaische Gemeinschaft und Union und die Welthandelsorganisation (WTO)", RIW 41 (1995), 920 et seq.; for a critical assessment, see Krajewski, see note 46,208 et seq. (translated by the authors). B. Fassbender, "The United Nations Charter As Constitution of the International Community", in: Colum. J. Transnat'l L. 36 (1998), 529 et seq.; see also P.M. Dupuy, "The Constitutional Dimension of the Charter Revisited", in: Max Planck UNYB 1 (1997), 1 et seq. For an author warning against the risk that the meaning of the constitution may be diluted, d. J.P. Miiller, Die demokratische Verfassung, 2002, 91. Biaggini, see note 25, 455, (translated by the authors). Biaggini, see note 25, 455, (translated by the authors). Cf. Krajewski, see note 46, 123; C. Doraul P. Jacobi, "The Debate over a 'European Constitution': Is it Solely a German Concern", European Public Law 6 (2000), 312 et seq. (417 et seq.); for 'the historical evolution of the term 'constitution', d. H. Mohnhauptl D . Grimm, Verfassung. Zur Geschichte des Begriffs von der Antike bis zur Gegenwart, 2002; J.E Aubert, "La Constitution. Son contenu, son usage", in: J.E Aubert (ed.), La Constitution. Son contenu, son usage; K. Eichenberger, Sinn und Bedeutung der Verfassung, Referate zum 125. Schweizerischen ]uristentag 1991, Schweizerischer Juristenverein No. 1/2, 1991, 1 et seq.; Peters, see note 59, 40 et seq. See also, D. Grimm, "Braucht Europa eine Verfassung?" [uristen Zeitung 50 (1995), 581 et seq. (582); id., "Does Europe Need a Constitution?", EL] 1(1995), 284 et seq.; the dichotomy 'normative' and 'descriptive' constitution is sometimes used in a different sense than thereafter. According to J.E Aubert, for instance, the meaning of 'constitution' is normative as soon as it refers to a human collectivity, defining how it should be organized, whereas used in a descriptive manner, the constitution refers to an object or
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b. Descriptive versus Normative Concept of Constitution Indeed, in a broad, descriptive sense, constitutions can be understood to depict simply any structure of governance. Any polity has a constitution in this sense, since power is at least de facto constituted. Power structures throughout history, on any level of governance, would live up to this factual and descriptive concept. Such a notion of constitution is not limited to the Nation State. It can apply as much to tribal, communal" and international structures of governance. From this perspective, all communities have had their consrirurion.V from the early beginnings of settlement, to Greek and other polities, to the Roman Empire,78 to the city states prior to the advent of the Nation State in modern times. Understood as a factual concept, the constitution can thus be readily employed for any structures, independently of their qualities. Such an extensive concept, however, reduces the role of the constitution to a mere set of organizational rules. It does not take into account the functions other than setting up an organizational framework that modern constitutions are expected to fulfiJ.79 As a normative con-
76
77
78
79
a human being, describing what its disposition is like, J.F. Aubert, "Notion et fonctions de la Constitution", in : D. Thiirer/ J.F. Aubertl J.P. Muller (eds), Verfassungsrecht der Schweiz, 2001, 3. For this distinction, see also Peters, see note 59, 40 et seq. See B. Marquardt, Das Riimisch-Deutscbe Reich als Segmentdres Verfassungssystem (1348-1806/48): Versuch zu einer neuen Verfassungstheorie auf der Grundlage der Lokalen Herrschaften, 1999. See R. Uerpmann, "Internationales Verfassungsrecht", ]uristen Zeitung 56 (2001), 565 et seq. (566): "Nicht jedes Gemeinwesen hat eine geschriebene Verfassung, aber jedes Gemeinwesen hat Verfassungsrecht. Dieses Verfassungsrecht muss mindestens die Hauptakteure konstituieren und gewisse Verfahrensregeln enthalten. Theoretisch konnte sich eine Verfassung damit begniigen, ein Organ der Rechtssetzung einzusetzen und zu regeln, wie dieses Gesetze beschliesst." ("Not every polity has a written constitution, but every polity has constitutional norms. These constitutional norms must at least constitute the main actors and comprise certain procedural rules. Theoretically, a constitution could content itself with establishing one legislative organ and with regulating how the latter is to adopt the laws"). See the work of T. Mommsen, Riimisches Staatsrecht, 1969. D. Castiglione, "The Political Theory of the Constitution", in: R. Bellamyl D. Castiglione (eds), Constitutionalism in Transformation: European and Theoretical Perspectives, 1996, 5 et seq. (9), stresses the close link between the concept and the function of the "constitution": "Indeed, what a constitution is can hardly be distinguished from what a constitution does".
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cept, the constitution has to meet certain requirements. Its basic and core function consists in both setting up and limiting the power of the polity, defining the fundamental boundaries between the private and the public, the state and the individual, mainly in terms of fundamental rights , and between the different branches of government. The concept of limited government entails the rule of law, the idea of "government by laws and not by men". As 'higher law', binding both those subject to power and those in power, the constitution is meant to have a stabilizing effect. 80 It guarantees a degree of predictability of conduct and therefore also entertains legitimate expectations as to human behaviour. In addition, a constitution is expected to legitimize political authority, which implies, under a doctrine of modern constitutionalism, that all power is ultimately derived from the citizens.P! Beyond that, additional qualifications exist in isolation or in combination. A liberal constitution emphasizes the defensive function of constitutionalism as a powerrestricting device and human rights in the form of negative, individualliberty rights,82 while a teleological constitution stresses the integrative Iunction'" of a constitution by laying down common social and economic objectives and enshrining affirmative claims vis-a-vis the state. 84 A federal constitution has to draw the lines between the federal and sub-federal levels and define their interaction.
80 81
82
83
84
Also Walter, see note 2, 2001, adopts a functionalist vision. He points out that the traditional constitution of the nation state "is characterized by a bundling of different functions in a single political unit and by means of a single text", ibid., 191. Cf. N. Luhmann, "Verfassung als evolutionare Errungenschaft", RechtshistorischesJournal 9 (1990), 176 et seq. (181 et seq.). Aubert, see note 74, 20 et seq. D.P. Kommersl W.J.Thompson, "Fundamentals in the Liberal Constitutional Tradition", in: J,J. Hessel V. Wright, Constitutional Policy and Change in Europe, 1995, 35. The integrative function of the constitution is stressed by R. Smend, Verfassung und Verfassungsrecht, 1928; contra: Aubert, see note 75, 15 et seq. For the concept of 'teleological constitution', see U.K. Preuss, "Patterns of Constitutional Evolution and Change in Eastern Europe", in: Hessel Wright, see note 82, 95 et seq.; N. Johnson, "Constitutionalism: Procedural Limits and Political Ends", in: Hessel Wright, see note 82, 46 et seq. (49, 54). For the distinction between a liberal and a teleological constitution, see also J.P. Muller, Soziale Grundrechte in der Verfassung?, 2nd edition, 1981, 55 et seq., who distinguishes between the constitution as "instrument of government" and the constitution as a "material fundamental order" of a polity (translated by the authors).
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Overall, the normative standards and yardsticks for a Constitution (with a capital C) are fairly ambitious. Without distinguishing between liberal, teleological and federal constitutions, the normative concept of Western constitutionalism, as it was shaped in the 18th and 19th centuries, broadly entails in many variants, organizational functions, the concept of the rule of law, the prote ction of fundamental rights, checks and balances, and democratic legitimacy.85 A purely descriptive concept of the 'constitution' should, in our view, not be maintained , since 'everything goes' will not help in the process of building global governance . Indeed, the constitutionalization debate of the WYO, briefly summarized above,86 shows how deeply the discourse is rooted in a normative understanding of the concept of 'Constitution', whatever its precise contours. The different visions of constitutionalization are for instance linked to the protection of fundamental rights, the rule of law and judicial review, or aspects of the democratic principle, such as transparency and participation. Devoid of any normative content, the debate on whether political entities or governance structures other than states should be apprehended in constitutional terms becomes a futile exercise. At the same time, it is clear that recourse to the normative concept of the constitutional Nation State, containing democratic, liberal, social and often federal traits, is equally not helpful. It is evident that not all the attributes can realistically be achieved in fora other than the Nation State. For example, it would simply not be realistic or desirable to transpose the majoritarian principle 'one man, one vote' to polities lacking the necessary degree of integration which only renders majority decisions acceptable. Indeed, in polities with strong social cleavages, non-rnajoritarian decision making procedures are an important condition of political stability, since they help to avoid the problem of 'permanent minoriries'i'" Similarly, it may be neither useful nor inherently 85 86 87
For the normative concept and the functions of the constitution, d. Muller, see note 71, 87 et seq.; Aubert, see note 75, 14; Grimm, see note 75,584; id., see note 75, ELf, 284 et seq.; Preuss, see note 84,98. See under II. 2. a. bb. In the context of the ED, this point is stressed for example by].F. Aubert, "Cornmentaire", Swiss Papers on European Integration 1 (1995),48 et seq.; with regard to public international law, see S. Oeter, "Intern ationale Organisation oder Weltfoderation.? Die organisierte Staatengemeinschaft und das Verlangen nach einer "Verfassung der Freiheit", in:H. Brunkhorst/ M. Kettner (eds), Globalisierung und Demokratie, Wirtschaft, Recht, Medien, 2000,208 et seq. (215 et seq.),
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necessary to provide human rights guarantees to the same extent on each level of governance.P' The maximalist concept of 'constitution' is moreover fraught with the risk that the Nation State remains the only standard against which other governance structures are measured, which necessarily makes them seem underdeveloped and deficient.f? Instead, a broader model is required. As Tarullo puts it, "it is neither likely nor even necessarily desirable that all constitutional arrangements evolve towards a single, ideal model".90 What therefore should be the key normative components of a constitution in a broad sense? What are the minimal standards of a normative constitutional order? To answer this question, scholars generally either generalize and re-conceptualize certain normative aspects of the constitution.?' or consider that not all of them are inherent to the concept of constitution.Y
2. The Quest for a Graduated Approach to Constitutionalism From a methodological point of view, defining the core minimal standards of a normative constitutional order is extremely difficult, since it requires us to establish firm conceptual boundaries and to draw a clear line between polities with a constitution and those whose organizational structures do not qualify as such. In the end, this amounts to defining the minimal standards of legitimate governance in global law and, consequently, to enforcing such standards by the international community. This, we must leave to the future. At this stage, a more fruitful approach could be, as Walker suggests, to conceive constitutionalism "not in black-and-white, ali-or-nothing terms, but as a question of nuance
SS S9
90 91
92
On this issue, see under IV. 4. See also, Biaggini, see note 25, 465; Thiirer, see note 8, 49; the problem of setting the adequate standard is highlighted by G. Majone, "Europe's 'Democratic Deficit': the Question of Standards", ELf 4 (1998), 5 et seq. Tarullo, see note 51, 43. This approach is for example chosen by Biaggini, see note 25, 459 et seq., who considers that the requirement of democratic legitimacy can also be fulfilled in the case of international organizations , since their founding treaties are legitimized, indirectly, by the consent of the peoples of the Member States. For such an approach, d . Peters, see note 59, 67 et seq., who argues, based on a functional analysis, that the democratic principle is not a necessary prerequisite of the concept of constitution but a question of its legitimacy.
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and gradation't.v The idea of 'constitutionalization' , which refers to an open-ended process," reflects this concept: constitutionalism, as Walker puts it, can be viewed as a set of different factors which serve as "indices in terms of which degrees of constitutionalization can be measured".95 Such a graduated approach may sound strange to legal scholars, who are accustomed to translating facts and events into clear legal concepts." In Jacque's words, "lawyers like clear situations and are used to analyzing situations in a static way, like a photographer, whose representation of reality immobilizes the latter"Y Life, however, is more complicated, and static thinking will not assist in solving practical problems of modern governance. The debate relating to the European Union is an example in point. a. The Immobilizating Effect of Statism The reasoning of the 'statist school' with regard to the question as to whether the European Union has, or is capable of having'" a constitution, illustrates the immobilizing effect of a 'black and white' conceptual approach. The 'statist' argument takes the classical distinction be93
94
95 96
97
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N. Walker, "The ED and the WTO: Constitutionalism in a New Key", in: G. de Biirca/ J. Scott (eds), The EU and the WTO. Legal and Constitutional Issues, 2001, 31 et seq. (33); Walker proposes seven criterias: (i) the development of an explicit constitutional discourse and constitutional selfconsciousness; (ii) a claim to foundational legal authority, or sovereignty, whereas sovereignty is not viewed as absolute; (iii) the delineation of a sphere of competences; (iv) the existence of an organ internal to the polity with interpretative autonomy as regards the meaning and the scope of the competences; (v) the existence of an institutional structure to govern the polity; (vi) rights and obligations of citizenship, understood in a broad sense; (vii) specification of the terms of representation of the citizens in the polity. Cf. Biaggini, see note 25, 473; J. Trachtmann, "Summary", in: R. Porter! P. Sauve! A. Subramanian/ A.B. Zampetti (eds), Efficiency, Equity, Legitimacy, 2001, 353; In this sense also Walker, see note 93, 39. Walker, see note 93, 33; similarly, Walter, see note 2, 173, 193, views constitutionalism as the bundling of different functions. In this sense, G. Jellinek, Allgemeine Staatslehre, 1929,282. J.P. Jacque , "Cours general de droit communautaire", in: Academy of European Law (ed.), Collected Courses of the Academy of European Law, Vol. I, 1991,247, free translation by the authors. Cf. D. Konig, Die Obertragung von Hoheitsrechten im Rahmen des europdiscben Integrationsprozesses, 1998, 268 et seq.
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tween a federal state and a confederation or international organization as a starting point.'" constitutions are the fundamental charters of states, it is argued, whereas international organizations or confederations are based on treaties.P? Contrary to a treaty, the constitution can be revised according to majority rule and does not require an unanimous decision. The majority principle implies - are equipped with similar constraints. This could lead to a different interpretation of essentially the same crimes." Moreover, the ICTY's interpretation of humanitarian law has lead to significant developments of the present status of humanitarian law with respect to the war crime of rape , e.g. in the Furundzija 47 and Kunarac4 8 cases.
40
41 42
43 44
45
46
47
During the preparatory process, "elements of crimes" were first suggested by the United States in 1996. Report of the Preparatory Committee, see note 27. The final Preparatory Committee session prior to the Rome Conference saw another attempt by the United States, when it submitted a proposal calling for a binding document containing the Elements of Crimes. See Proposal Submitted by the United States, Elements of Offences for the International Criminal Court, Doc. AIAC.249/1998/DP.ll of 2 April 1998. Another proposal by the United States was tabled at the beginning of the Rome Conference. See Proposal Submitted by the United States, Annex on D efinitional Elements for Part Two Crimes, Doc. AlCONF,183/C.l/L.10 of 19 June 1998. A final proposal was submitted towards the end of the Diplomatic Conference. Proposal Submitted by the United States Concerning the Bureau Proposal, Do c. A/CONF.183/C.l/L.69 of 14July 1998. v. Hebel, see note 34, 3 et seq. (8); Politi, see note 32, 473. Delbriickl Wolfrum, see note 35, 1145; Politi, see note 32, 473. Statute of the International Criminal Tribunal for the form er Yugoslavia, pursuant to S/RES/827(1993) of 25 May 1993. Statute of the International Criminal Tribunal for Rwanda, pursuant to S/RES /955 (1994) of 8 November 1994. D. Sarooshi, "The Powers of the United Nations International Criminal Tribunals", in: J. Froweinl R. Wolfrum (eds.), Max Planck UNYB 2 (1998), 141 et seq. (143 et seq.). Delbriickl Wolfrum, see note 35, 1146; Politi, see note 32, 473. IT-95-1711-T, Prosecutor v. Furund zija of 10 December 1998, paras 165 et seq. and especially para. 173.
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In light of the fact that the genocide definition in the ICC-Statute is identical to article II of the Convention on the Prevention and Punishment of the Crime of Genoade/" that there is no other document which lists crimes against humanity in such a detailed manner and that the definition of war crimes is based on a variety of precedents in international law, the legal necessity of the Elements of crimes can be called into question.P However, this does not preclude the usefulness of the Elements in the interpretation of the norms embodied in the ICCStatute. b. Individual Crimes under the Statute - Genocide The provision concerned with the Crime of Genocide was the least controversial norm in the process leading to the adoption of the text of the ICC-Statute at the Rome Conference.!! Its inclusion was therefore already agreed upon at an early stage of the drafting process. However, its exact delineation was not as clear as a comparison between article II of the Genocide Convention and article 6 of the ICC-Statute would suggest, as the operative part of both provisions are exactly the same.
aa. Cases on the National and International Level While the importance of the Genocide Convention has never seriously been questioned, there has been a relatively low number of prosecutions and an even lower number of actual convictions for the crime of Genocide both on the national 52 and inrernational level.v
48
49
50 51
52
53
IT-96-23-T & IT-96 -23/1 -T, Prosecutor v. Kunarac of 22 February 2001, para. 436.In this judgment, the Trial Chamber states that "[tjhe jurisdiction to prosecute rape as [a violation] of the laws or customs of war pursuant to Article 3 of the Statute, including upon the basis of common Article 3 to the 1949 Geneva Conventions, is also clearlyestablished". A/RES1260 A (III) of 9 December 1948, UNTS Vol. 78 No. 1021. Hereonafter Genocide Convention. Robinsonl van Hebel, see note 25, 223. Zimmermann, see note 9,171. W. Schabas, "National Courts Finally Begin to Prosecute Genocide, the 'Crime of Crimes'", Joumal of International CriminalJustice 1 (2003), 39 et seq. (41 et seq.), Schabas, see above, 59 admits however that there was only "one truly clearcut case of genocide since 1948, that of the physical destruction of
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aaa. National Prosecutions
Domestically, some of the most well-known early cases were the trial of Rudolf Franz Hoess, the commander of the Auschwitz concentration camp, before the Supreme National Tribunal of Poland in 194754 and the trial of Adolf Eichmann before Israeli courts'? in 1961 after having been abducted in Argentina in 1960.56 Other, more recent cases took place in Germany V and Canada'f with respect to events that took place in the territory of the former Yugoslavia and Rwanda, respectively.
54
55
56
57
58
Rwanda's Tutsi minority over three months in 1994, [...]."; A. Zahar, "Command Responsibility of Civilian Superiors for Genocide", LjIL 14 (2001),591 et seq. (591). United Nations War Crimes Commission, Law Reports of Trials of War Criminals VII (1948), Trial of Obersturmbannfiihrer Rudolf Franz Ferdinand Hoss, 11 et seq. (24-26). A.G. Israel v. Eichmann , ILR 36 (1968), 18 et seq. (34) - District Court decision; A.G. Israel v. Eichmann, ILR 36 (1968), 277 et seq. - Supreme Court decision. For an account of the events surrounding the abduction, see M. Lippman, "Genocide: The Trial of Adolf Eichmann and the Quest for Global Justice", Buffalo Human Rights Law Review 8 (2002), 45 et seq. Prosecutor v. Djajic, Bavarian Supreme Court, Judgment of 23 May 1997, reprinted in: Neue juristische Wochenschrift 1998, 392 et seq. The Bavarian Supreme Court acquitted the defendant of the count of Genocide on the grounds of lack of mens rea. Bavarian Supreme Court, 3 St 20/96, Judgment of 23 Mai 1997, Neue ]uristische Wochenschrift 1998, 392 et seq.; see commentary by K. Ambos, Case Note, Neue Zeitschrift fur Strafrecht 1998, 138 et seq. Other judgments by German courts include German Supreme Court, 3 StR 215-98, judgment of 30 April 1999, Neue Zeitschrift fur Strafrecht 1999, 396 et seq.; German Supreme Court, 3 StR 244/00, Judgment of 21 February 2001, Neue juristische Wochenschrift 2001, 2732 et seq.; German Supreme Court, 3 StR 372/00, Judgment of 21 February 2001, Neue juristische Wochenschrift 2001,2728 et seq. Federal Court of Canada, Mugesera v. Canada (Minister of Citizenship and Immigration), 2001 FCT 460. For the initial decision of the Canadian Immigration and Refugee Board, Revue Universelle de droits de l'homme 7 (1996), 195 et seq. For a comment to the latter decision, W. Schabas, "Denial of Residence Status to Alien on Grounds of Genocide - Application of Refugee Convention - Duty to Extradite under Genocide Convention Use of NGO-Reports and Experts in Municipal Proceedings", AjIL 93 (1999), 529 et seq. In the Akayesu judgment, the ICTR made passing reference to the Leon Mugesera , ICTR-96-4-T, Prosecutor v. Akayesu, Judgment of 2 September 1998, paras 100 and 149.
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bbb. International Decisions On the international level, the IC] has so far commented on the Genocide Convention on two occasions. First, it stated in a 1951 Advisory Opinion that the "principles underlying the Convention are recognised by civilised nations as binding on States even without any conventional obligation" and that "[i]t was intended that the Convention would be universal in scope".59 This view was refined in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide between Bosnia-Herzegovina and Yugoslavia, when the IC] indicated that the content of the Genocide Convention was reflective of customary international law.60 Apart from these decisions and prior to 1994, the Genocide Convention had thus not been of major importance in judicial decisions and political interpretations.t! when the ICTR handed down the first criminal judgment of an international court with respect to the crime of Genocide in the Akayesu trial.62 This judgment was to be followed by a number of other judgements both by the ICTR and the ICTY.63 Taken together, these cases form the basis upon which future decisions will most likely be based. A number of questions have arisen in judgments rendered so far with respect to the meaning of the relevant provisions of the Genocide Convention.
59
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, IC] Reports 195115 et seq. (23). 60 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, IC] Reports 1993, 325 et seq. The same view was taken by the Secretary-General of the United Nations in his report to the Security Council, Doc. S125704, Report pursuant to para. 2 of S/RESI 808 (1993) of 3 May 1993, 12, para. 45. 61 The General Assembly in 1982 declared that the events surrounding the Sabra and Shatila refugee camps situated at Beirut constituted "an act of genocide." A/RES/37/123 D of 16 December 1982, The situation in the Middle East,. However, a resolution cannot be considered to have judicial character, but especially in this instance has to be considered a political statement. This view is echoed by the ICTY in IT-95-10-T, Prosecutor u. G. [elisic, Judgment of 14 December 1999, para. 83. 62 Prosecutor u. Akayesu, see note 58. 63 It should be noted however that both the Statute of the ICTY and the Statute of the ICTR include both article II and III of the Genocide Convention.
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bb. actus reus Requirement The protected groups are explicitly mentioned in the text of article 6 of the ICC-Statute. They are limited to national, ethnical, racial or religious groups . A number of attempts have been made to afford the protection of the Genocide Convention to other groups, such as political.s" economic or social groups.v However, to date, none of these suggestions has found entry into the Genocide Convention or any other relevant international treaty. The ILC had concluded in 1996 that the "[...] definition of genocide contained in article II of the Convention, [...] is widely accepted and generally recognized as the authoritative definition of this crime [...]".66 Especially with respect to the inclusion of political groups, the ILC stated that such groups did not possess the required stability for the purposes of the crime of genocide.f? Other suggestions to extend the meaning of the text of the Genocide Convention by way of extensive interpretation have also been rejected in the case law of the ICTY.68 Referring specifically to the judgment of the German Constitutional Court, the ICTY has stated that it cannot disregard the principle of nullum crimen sine lege and that "customary international law limits the definition of genocide to those acts seeking the physical or
64
65
66
L. Bruun, "Beyond the 1948 Convention - Emerging Pr inciples of Genocide in Customary International Law ", Maryland Journal of International Law and Trade 17 (1993),193 et seq. (207); B. v. Schaack, "The Crime of Political Genocide: Repairing the Genocide Convention's Blind Spot", Yale L. j. 106 (1997), 2259 et seq. (2280 et seq.), W. Schabas, Genocide in International Law, 2000, 145; M. Lippman, " Genocide: The Crime of the Century. The Jurisprudence of Death at the Dawn of the New Millennium", Houston Journal of International Law 23 (2001),467 et seq. (485). Report of the International Law Commission on the Work of its 48th Session, 6 May - 26 July 1996, GAOR 51st Sess., Suppl, No. 10 (Doc. A/5l/l0),87. Report of the International Law Commission, see note 66, 87. In a decision of the German Constitutional Court of 2000, the Court had pronounced that "the statutory definition of genocide defends a supraindividual object of legal protection, i.e. the social existence of the group [...]. The intent to destroy the group [...] extends beyond physical and biological extermination [00']. The text of the law does not therefore compel the interpretation that the culprit's intent must be to exterminate physically at least a substantial number of the members of the group ", BVerfG 2 BvR 1290/99, available at <www.bverfg.de> (4 August 2003).
r.
67
68
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biological destruction of all or part of the group".69 It thus made clear that an attack on the sociological characteristics of a human group, even if all other requirements of the Genocide Convention are fulfilled, would not lead to a conviction of genocide. In this respect, the Akayesu judgment of the ICTR is especially noteworthy. Facing the problem of not being able to distinguish the minority Tutsi population from the majority Hutus under any of the groups mentioned in the Genocide Convention, it adopted something that could be labeled a "no challenge to group membership" approach. It deduced from the travaux prepsratoires of the Genocide Convention that the crime of genocide was perceived as targeting only "stable" groups to which one belongs to not by choice - such groups are labeled "mobile" groups by the ICTR -, but in which membership is determined by birth.F? It concluded that "membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner."71 Such an interpretation is open to criticism for various reasons. First and foremost, reliance on the travaux preparatotres is inconsistent with arts 31 and 32 of the Vienna Convention on the Law of Treaties, of which the latter stipulates that recourse to the travaux preparatoires may only be had when the interpretation according to article 31 of the Vienna Convention: "(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable".?2 It is apparent that a literal interpretation of the Genocide Convention neither leaves the meaning ambiguous or obscure, nor does it lead to a result which is absurd or unreasonable. It might not yield the desired result , but that does not warrant 'stretching the boundaries of legal interpretation. Secondly, if the drafters of the Convention had wanted to include a reference to stable groups, wording to that effect would have been included in the text of the Convention." Moreover, as
69 IT-98-33-T, Prosecutor v. Krstic, Judgment of 2 August 2001, para. 580; C.
70
71 72
73
Hos sl R. Miller, "German Federal Constitutional Court and Bosnian War Crimes: Liberalizing Germany's Genocide Jurisprudence", GYIL 44 (2001),576 et seq. (601-610). Prosecutor v. Akayesu, see note 58, para. 511. Prosecutor v. Akayesu, see note 58, para. 511. Vienna Convention on the Law of Treaties, 23 May 1969, UNTS Vol. 1155 No. 18232. The Delalic Judgment alludes to this principle, see IT-96-21-T, Prosecutor v. Delalic of 16 November 1998, para. 412.
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pointed out above, the ICTY in its Krstic judgment considered such extensions to be inconsistent with the criminal law principle of nul/urn crimen sine lege/" Allegations claiming the existence of "loopholes"75 or of fundamental flaws or "blind spots"76 leading to an escape from liability are unfounded as there are other international instruments under which such action can be subsumed. While it must be acknowledged that those acts would thus not receive the same stigma as that attached to genocide, it should be stressed that extending the content enshrined in the Genocide Convention - and thus the parallel meaning of the crime of genocide under customary international law - to include other groups could - in the long run - leave the Convention less meaningful. cc. mens rea Requirement
One characteristic which sets genocide apart from the other crimes in the ICC-Statute is the requirement of a dolus specialis which has to be proven in addition to the criminal intent accompanying the underlying offences,77 and which are mentioned in subsections (a)-(e). Thus, the
74
IT-98-33-T, Prosecutor v. Krstic, Judgment of 2 August 2001, para. 580. In the Delalic judgment, the ICTR specifically laid out the requirements set out by international criminal law, Prosecutor v. Delalic, see note 73, para. 402 et seq. The ICTR, in a later judgment and through a different trial chamber, found that the Tutsis did constitute a different ethnic group the Hutus, thereby circumventing the problem posed by the finding of Trial Chamber I in the Akayesu Judgment. See ICTR-95-1-T, Prosecutor u. Kayashima and Ruzindana, Judgment of 21 May 1999, para . 523. 75 P. Drost, The Crime ofState, Volume II - Genocide, 1959, 123. 76 v. Schaack, see note 64, 2272. 77 Prosecutor v. Akayesu, see note 58, para. 516; ICTR 97-23-5, Prosecutor v. j. Kambanda, Judgment and Sentence of 4 September 1998; ICTR-95-1-T, Prosecutor v. C. Kayashima and O. Ruzindana, Judgment of 21 May 1999, para. 91; ICTR-96-3, Prosecutor v. G. Rutaganda of 6 December 1999, para . 59 et seq.; A. Cassese, "Genocide", in: Cassese et al., see note 11, 335 et seq. (338); Schabas, see note 65, 215 and 217 et seq. The Appeals Chamber in the [elisic case held that the terms dolus specialis and special intent could be used interchangeably, IT-95-10-A, Prosecutor v . Goran [elisic, Judgment of 5 July 2001, 18 et seq.
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mens rea requirement can be separated into two parts. " While it is sufficient to prove that one or more of the underlying offences enumerated in subsections (a)-(e) were committed "with intent and knowledge?", thus mirroring the actus reus,80 it must be proven that the perpetrator had the specific intention to destroy, in whole or in part, one of the groups mentioned in the chapeau of article 6 of the ICC-Statute. While this connotes a considerably higher requirement, no physical destruction of the group must have taken place, i.e. the perpetrator must not have achieved this result." Any lower level of mens rea, such as negligence or recklessness, neither meets the threshold required by article 30 of the ICC-Statute nor the specific intent required by genocide for forms of direct participation.V It is also noteworthy that the Elements of crimes seem to insert an additional layer of conditions which needs to be met. All subsections are annotated to include an element outlined as: "The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction".83 Such an element does not add anything to the existing definition. If anything, it can bring about confusion with respect to the delineation of the crime of genocide. The additional element enshrined in this phrase requires similar conduct to that embodied in the chapeau of article 7 of the ICC-Statute, i.e. Crimes against Humanity, which refers to "a widespread or systematic attack".84 This element was included in order to
78
79
80 8! 82
83 84
O. Triffterer, " Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such", LJIL 14 (2001), 399 et seq. (400). Thus , the opinion that "[w]hether Article 30 applies to acts of genocide remains an open question" is at least doubtful, D. Nersessian, "The Contours of Genocidal Intent: Troubling Jurisprudence from the International Criminal Tribunals", Tex. Int'l L.]. 37 (2002), 231 et seq. (265). Article 30 of the ICC-Statute. Triffterer, see note 78, 400. Triffterer, see note 78, 401. Report of the International Law Commission, see note 66, 87; Hass i Miller, see note 69, 603, fn. 150. National criminal codes might differ with regard to thi s element however, see K. Ambos, Der Allgemeine Teil des Yolleerstrafrecbts, 2002, 412. Elements of Crimes, see note 22, 6-8. This phrase is the last element in each of the subsections (a)-(e). Article 7 ICC-Statute.
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provide guidance on the context of the acts carried out and which are the basis for an accusation of the crime of genocide.P Furthermore, there was concern that isolated hate crimes could lead to a conviction and thus to a trivialization of genocide.w The premise that seemed to be the basis for the inclusion of such an element can only be explained by a deep-rooted mistrust towards the organs of the ICC, and ultimately the judges. The track record of the ICTY or ICTR with respect to genocide does not indicate that there has been a lack of judicial self-restraint and while the situations that these tribunals are concerned with could be different from those the ICC will have to deal with as a permanent organ, it seems far-fetched that individuals qualified and chosen for the position of a judge on the bench of the ICC would not bear these issues in mind.V On the other hand, if one follows the interpretation of the Elements of crimes presented above'" and if one accepts that there could be cases that do not involve a plan that would lead to the destruction of one of the groups in the chapeau.s? it is still possible to make a finding of genocide despite the lack of such a contextual element. dd. Participation in Genocide One aspect that deserves special attention is the lack of a provision similar to article III of the Genocide Convention, which deals with the various forms of participation in the crime of genocide, in the ICCStatute. This "omission" however must be seen against the background that the ICC-Statute aimed at codifying not only the actual crimes, but also general principles of criminal law that are to be applied. 90 Thus, 85 86 87
88 89
90
V. Oosterfeld, "The Elements of Genocide -II. The Context of Genocide", in: Lee, see note 20, 45. Oosterfeld, see above, 45. Article 36 ICC-Statute makes specific reference to the qualifications of the judges and their election. The ICC would be competent to deal with situations that do not necessarily require the existence of an armed conflict, be it an international or internal one. See note 38. Only very few cases are conceivable in this respect, as was pointed out in the discussion of the Preparatory Commission, see Schabas, see note 65, 209. The Statutes of the ICTY and ICTR took a different approach in that they included both article III of the Genocide Convention as well as a general provision on participation. This might explain some inconsistencies in a number of cases before the ICTR, see Schabas, see note 65, 265.
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participation is dealt with in a separate provision of the ICC-Statute, namely article 25 of the ICC-Statute. A close analysis reveals that most - though not all - forms of participation laid down in the Genocide Convention are included in this provision. Article III (c) Genocide Convention - direct and public incitement to commit genocide is included in article 25 (3)(e) of the ICC-Statute, article III (d) Genocide Convention - attempt to commit genocide is codified in article 25 (3)(f) of the ICC-Statute and article III (e) - complicity in genocide is to be found in article 25 (3)(c) and (d) of the ICC-Statute. Thus, the only participatory form of genocide that is not included in the ICCStatute is "conspiracy to commit genocide't.?' i.e. an inchoate crime consisting of planning and organizing of genocide not necessarily followed by the actual perpetration of the crime. 92 This dichotomy between the original wording of the Genocide Convention and the ICCStatute can only be explained by taking into account two legal traditions with considerably different approaches to this issue. While the common law approach has a long history of including conspiracy.P the continental European tradition treats complicity not as a separate crime, but presumes that it can only be committed as a form of complicity with the additional requirement that the crime must have been carried out or at least attempted (Akzessorietatsgmndsatz).94 The relevant provisions of the ICC-Statute indicate that, contrary to the Genocide Convention which followed the common law tradition, the RomanoGermanic traditions have prevailed/"
9! 92
93
94 95
See article III (b) of the Genocide Convention. A. Cassese, "Genocide", in: Cassese et al., see note 11, 335 et seq. (347). See e.g, the concurring opinion of Justice Jackson in Krulewitch v. United States, 336 U.S. 440, who noted that "[tjhe doctrine does not commend itself to civil-law countries, despite universal recognition that an organized society must have legal weapons for combating organized criminal ity [...J. Jackson referred to F. Sayre, "Criminal Conspiracy", Harv . L. R. 35 (1922), 393 (427), who stated - in 1922 - that conspiracy "is utterly unknown to the Roman law; it is not found in modern Continental codes; few Continentallawyers ever heard of it"; G. Fletcher, "The Storrs Lectures: Liberals and Romantics at War: The Problem of Collective Guilt", Yale L. j. 111 (2002),1499 et seq. (1512). W. Schabas, "Article 6 - Genocide", mn. 16, in: Triffterer, see note 17. W. Schabas, see note 94, 116, mn. 16. However, Schabas' claim that the inconsistency of the ICC-Statute with the Genocide Convention in this regards "appear to be inadvertent" are refuted by the drafting history of the
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One aspect that, at least so far, is unresolved is the question of whether a commander is required to have the same dolus specialis as the actual perpetrator of the crime if the commander was not directly involved in any of the acts mentioned in subsections (a)-(e) of article 6 of the ICC-Statute. 96 While the general issue of command responsibility has been discussed in both national and international fora as well as in acadernia'" - one of the early and most frequently referred to cases being that of General Tomoyuki Yamashita for his conduct - or lack thereof - during the American advance on the Philippines during 1945. 98 One of the few cases which actually dealt with this issue of command responsibility with respect to the crime of genocide was the District Court's decision in the Eichmann case."? In recent case law, only the indictment of Radovan Karadzic and Ratko Mladic made such a reference.P? Different views have been promulgated. While Schabas indicates that the ICC-Statute "appears to allow" that genocide be committed with a lower level of intent "in that it contemplates liability of commanders for genocide committed by their subordinates even if they have no real knowledge of the crime",lOl Cassese reasons that such a view is unacceptable on the grounds that one must distinguish between the subjective requirement for a commander and that of the principal perpetrator of the crime. 102 This is also reflected in article 28 of the ICC-Statute, the provision pertaining to the responsibility of the commander. Before presenting
96
97
98
99
100 101 102
ICC-Statute. See A. Eser, "Individual Criminal Responsibility", in: A. Cassese et al., see note 11, 767 et seq. (802). See generally on the issue of command responsibility Ambos, see note 82, 666 et seq.; T. Wul Y. Kang, "Criminal Liability for the Actions of Subordinates - the Doctrine of Command Responsibility and its Analogues in United States Law", Harv. Int'l L. J. 38 (1997), 272 et seq. See e.g. N. Laviolette, "Commanding Rape: Sexual Violence, Command Responsibility, and the Prosecution of Superiors by the International Criminal Tribunals for the Former Yugoslavia and Rwanda", CYIL 36 (1998),93 et seq. United Nations War Crimes Commission, Law Reports of Trials of War Criminals 4 (1948), 1 et seq.; B. Landrum, "The Yamashita War Crimes Trial: Command Responsibility Then and Now", Mil. L. Rev. 149 (1995), 293 et seq. A.G. Israel v. Eichmann - District Court decision, see note 55. IT-95-5-I, Prosecutorv. R. Karadzic and Ratko Mladic, Indictment. Schabas, see note 94, mn. 4. Cassese, "Genocide", in: Cassese er aI., see note 11,335 et seq. (348).
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the central argument, it is necessary to briefly outline the general approach that is embodied in the ICC-Statute with respect to the required mental element. In this regard, article 30 of the ICC-Statute is the central and generally applicable norm. However, it stipulates that its degree of mens rea applies only "unless otherwise provided". Article 6 of the ICC-Statute requires a higher degree of mens rea and in cases of direct responsibility of the actual perpetrator constitutes a rule lex specialis to article 30 of the ICC-Statute. However, in cases of superiors, article 28 of the ICC-Statute becomes lex specialis to article 30 of the ICCStatute.i'" This provision provides that the commander is responsible for the acts of her/his subordinates when s/he "either knew [...] or should have known that the forces were committing or about to commit such crimes" and "failed to take all necessary and reasonable measures within his or her power to prevent [...]" the commission of the crime.P' A second possibility to attribute criminal responsibility to a commander arises when "the superior either knew, or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes" at a time when the commander was in effective control over the troops in question .105 Thus, if a commander had knowledge or, due to failure in overseeing the troops under her/his command, failed to have such knowledge and did not take the necessary and reasonable steps within her/his power, it falls within that individual's responsibility that genocidal acts should not take place. The opposing view106 fails to make the crucial differentiation between the subjective requirement for a commander and that of the principal perpetrator of the crime that is necessary when having to attribute responsibility of the commanding officer.l 07 Such an understanding was prominently put forth in the trial of Adolf Eichmann in the Jerusalem District Court when it stated that "[...] the legal and moral responsibility of he who delivers up the victim 103
104 lOS
106
107
This is what Cassese seems to imply when he states that "[i]t may be argued that Article 28 constitutes an exception to that which is provided for in Article 30 [..]" . Cassese, "Genocide", in: Cassese et a!., see note 11, 335 et seq. (348). Article 28 (a) (i) and (ii) ICC-Statute. Article 28 (b) ICC-Statute. K. Ambos, "General Principles of Criminal Law in the Rome Statute", Criminal Law Forum 10 (1999), 1 et seq. (19); W.A. Schabas, "General Principles of Criminal Law", European Journal of Crime and Criminal Justice 4 (1998), 84 et seq. Similar to the view taken here, Zahar, see note 53, 613.
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to his death is, in our opinion, no smaller, and may be greater, than the responsibility of he who kills the victim with his own hands".I08 The Trial Chamber in the Akayesu Judgement echoed that sentiment when it pronounced - referring to the Eichmann case - that: "[I]f the accused knowingly aided and abetted in the commission of such a murder wh ile he knew or had reason to know that the principal was acting with genocidal intent, the accused would be an accomplice to genocide, even though he did not share the murderer's intent to destroy the group".109 A similar line of argument was used in the indictment of Radovan Karadzic and Ratko Mladic when they were charged with, inter alia, genocide on the grounds that they "individually and in concert with others planned, instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of persecutions on political and religious grounds or knew or had reason to know that subordinates were about to do the same or had done so and failed to take necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof".110 While an indictment in and of itself should not be accorded an excessive amount of significance and certainly cannot be considered to represent proof of a certain practice in international law, it can nevertheless serve as an indication of the current state of law when seen in light of the developments outlined above. It would thus seem that - in light of the command responsibility doctrine's origins, codification and most recent application - "it is apparent that the doctrine now operates under agreed-upon principles".111 Moreover, the problem might in reality never present itself. It seems highly unlikely that a commanding officer will not have knowledge of genocidal acts of her/his subordinate(s) or that s/he does not possess the required genocidal intent herself/himself. Considering the purported uniqueness of the crime of genocide.U- such a finding - if the
108 A.G. Israel v. Eichmann - District Court decision,see note 55,179 et seq. Prosecutorv. Akayesu, see note 58,para. 541. 110 IT-95-5-I, Prosecutor v. R. Karadzic and Ratko Mladic, Indictment, para. 33. 111 Wu/ Kang,see note 96,278. 112 W. Schabas, "The]elisic Case and the Mens Rea of the Crime of Genocide", L]IL 14 (2001), 125 et seq. (139) and Schabas, see note 65, 9 calls it the "crime of crimes". It has also been described as "the ultimate crimeand the gravest violation of human rights it is possible to commit." E/CNA/Sub.2/1985/6, Benjamin Whitaker, Special Rapporteur, Review of Further Developments in Fields with Which the Sub-Commission Has 109
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other requirements are met, if the circumstances so warrant, and if no extenuating circumstances exist - does not seem inappropriate. c. Individual Crimes under the Statute - Crimes Against Humanity While the inclusion of a norm under the heading "Crimes Against Humanity" was uncontroversial.U'' it proved considerably more difficult to agree on its content. Some of the difficulties that could only be resolved at the Rome Conference included the exact definition of the crimes under this heading, the questions of whether the victims can only be civilians and whether crimes against humanity could be committed in times of armed conflict, and finally whether the terms "widespread" on the one hand and "systematic" on the other must be fulfilled cumulatively or whether it would be enough if only one element was present at the time of the commission of the crime. These manifold problems stemmed from the fact that the precedents for crimes against humanity were to some extent contradictory and - in comparison to genocide and war crimes - the content of crimes against humanity was not clearly marked out.U" Crimes against humanity can probably be classified as the category of crimes which was - apart from aggression - most hotly debated due to divergent views of the content of the state of customary law in this regard. However, the debates prior to and during the Rome Conference alleviated this category of crimes from its customary form 1l5 to take a more precise, conventional form .
113 114
115
Been Concerned, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, Human Rights Commission, Sub-Commission on the Prevention of Discrimination and Protection of Minorities, 38th Sess., 5. Zimmermann, see note 9,172; van Hebel! Robinson, see note 20,90. These precedents included the Nuremberg and Tokyo Charters, but also the statutes of the two international criminal tribunals which were operating at the time, the ICTY and the ICTR. Moreover, the Draft Code of Crimes Against the Peace and Security of Mankind, prepared under the auspices of the International Law Commission served as a another source. All of these sources are contained in M.C. Bassiouni, "Crimes Against Humanity", in: M.C. Bassiouni (ed.), International Criminal Law - Volume I, 2nd edition 1999, 521 (563 et seq.). See also Delbriick! Wolfrum, see note 35, 1094. M. Lippman, "Crimes Against Humanity", Boston College Third World Law Journal 17 (1995),171 et seq. (271).
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aa. Drafting History The first time crimes against humanity were prosecuted was under the statute of the International Military Tribunal at Nuremberg, although some authors date its history back well into the Middle Ages. 116 Its article 6 (c) included crimes such as "murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during" World War 11. 117 If the aforementioned wording can serve at least as an indication that not only acts during times of armed conflict were to be included, the second part of this subsection makes such a finding even more convincing. It considers crimes against humanity to include "persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal" regardless of whether such action was in violation of the domestic law of the country where it took place.I'" Crimes against humanity have their conceptual origin in the laws of war, namely the "Martens clauses" of the 1899 and 1907 Hague Conventions.!'? but go beyond international humanitarian law in that they
116
117
118
119
Various opinions exist in this regard, d. L. Green, "The Law of Armed Conflict and the Enforcement of International Criminal Law", Annuaire Canadien de Droit 1ntemational27 (1984),1 et seq. (7); L. Green , "Human Rights and the Law of Armed Conflict", 1sT. Y. B. Hum. Rts 10 (1980), 9 et seq. (10); but also K. Chaney, "Pitfalls and Imperatives: Applying the Lessons of Nuremberg to the Yugoslav War Crimes Trials", Dick. j. 1nt'l L.14 (1995), 57 et seq. It seems however, that caution should prevail in this regard. While the term humanity is innate in earlier codifications, only some of them concern the well-being of the civilian population, such as the St. Petersburg Declaration of 1868, Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, reprinted in: A. Roberts/ R. Guelffs (eds.), Documents on the Laws of War, 3rd edition, 2000,53 et seq. Similar wording was included in article 5 (c) of the Charter of the International Military Tribunal for the Far East. Schwarzenberger raises doubts about whether the Nuremberg Charter was declaratory at the time of its inception; G. Schwarzenberger, The Law ofArmed Conflict, 1968,498. The wording "in connection with any crime within the jurisdiction of the Tribunal" ties crimes against humanity to other criminal acts set forth in this, thereby limiting the jurisdiction of the Tribunal. See B. van Schaack, "The Definition of Crimes Against Humanity: Resolving the Incoherence", Colum. j. Transnat'l L 37 (1999), 787 et seq. (795 et seq.); Lippman, see note 115, 173, The purpose of the Martens Clause was to act as a catch-all clause which was to curb the action of military
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criminalize acts which take place in a territory that is under the control of the state to which the perpetrator belongs and furthermore do not have to be committed in times of armed conflicr.F? It has been argued that the provision on crimes against humanity in the Nuremberg Charter was adopted for the sole purpose to ensure that offences committed by German individuals against Germans would not be left in a legal vacuum, but could.be prosecuted under the statute of the Nuremberg tribunal.P! For fear of potential internal problems or problems regarding their colonies, the Allies insisted that crimes against humanity could only be committed if they were associated with one of the other crimes within the tribunal's jurisdiction, i.e. war crimes or crimes against the peace. 122 Be that as it may, crimes against humanity have since their coming into being before a judicial body - left behind their oftentimes vague and overlapping relationship with war crimes.F' Some even argue that their "delayed maturation [...J allowed the international community better to clarify, expand and shape them, taking fuller account of relevant norms of contemporary general international law".124
bb. Crimes Against Humanity in the Rome Statute The final form agreed upon during the Rome Conference lays out a series of subsections in section 1 which mention the criminal acts that can lead to a conviction for crimes against humanity. These crimes include, inter alia, murder, extermination, torture, rape and sexual slavery, but
120 121 122
123
124
commanders for which no prohibition existed. See DelbriickJ Wolfrum, see note 35, 1087. For a more thorough discussion see II. 1. c. bb. aaa. M.e. Bassiouni, Crimes Against Humanity in International Criminal Law, 2nd edition, 1999, 41 et seq. E. Schwelb, "Crimes Against Humanity", BYIL 23 (1946), 178 et seq. (183); R. Clark, "Crimes against Humanity at Nuremberg", in: G. Ginsburgs/ V. Kudriavtsev (eds), The Nuremberg Trials and International Law, 1990, 177 et seq. (197). L. Sunga, Individual Responsibility in International Law for Serious Human Rights Violations, 1992, 68. See also Clark, see note 122, 199; M.C. Roberge, "Jurisdiction of the Ad Hoc Tribunals for the Former Yugoslavia and Rwand a over Crimes Against Humanity and Genocide", Int'l Rev. of the Red Cross 321 (1997),651 et seq. (654). L. Sunga, "The Crimes within the Jurisdiction of the International Criminal Court (Part II, Articles 5-10)", European Journal of Crime, Criminal Law and Criminal Justice 6 (1998), 61 et seq. (68).
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also «other inhumane acts of a similar character" which cause great suffering, or serious injury to body or to mental or physical health. These acts are more clearly defined in article 7 (2) of the ICC-Statute, while section 3 defines gender not only for the purpose of article 7 of the ICC-Statute, but equally for all other provisions of the entire document.V" According to the chapeau of article 7 of the ICC-Statute, these crimes must have been committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. aaa. Nexus to Armed Conflict On a general level, the most contentious issue during the negotiating process - both before and during the Rome Conference - turned out to be the question whether there needed to be any kind of nexus to armed conflict, or whether crimes against humanity would be punishable also in times of an absence of such conflict if all other conditions were met. The outcome of this discussion was crucial with respect to the operability of crimes against humanity. Those nations that argued in favor of the requirement of such a nexus - with some even going as far as demanding the existence of an international armed conflict - cited the Nuremberg and Tokyo charters, but also the ICTY statute as precedent. However, there are several reasons why the existence of such a correlation would ultimately render the provision of crimes against humanity almost entirely useless. First and foremost, once it is accepted that these conditions would have to be present, the relationship with war crimes under article 8 of the ICC-Statute would be one of duplicity, as most of the crimes covered under article 7 of the ICC-Statute could be subsumed under the former provision.V" Moreover, the perceived precedent of the Nuremberg and Tokyo charters did not take into consideration other important aspects and developments. First of all, the nexus requirement in the charters of the Nuremberg and Tokyo tribunals served as a limitation to the jurisdiction of these tribunals rather than narrowly defining crimes against humanity.V? Secondly, the
125
126
127
See M. Boot, "Article 7 - Crimes against Humanity, mn. 127", in: Triffterer, see note 17. D. Robinson, "Defining Crimes Against Humanity at the Rome Conference", AJIL 93 (1999),43 et seq. (46). M.e. Bassiouni, "Crimes Against Humanity", in: M.e. Bassiouni (ed.), International Criminal Law, 2nd edition 1999,41 states that the "definition
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ICTY in its Tadic decision had regarded the nexus to armed conflict to be superfluous taking into account the development of the doctrine of crimes against humanity after World War II, i.e. leaving out of consideration the current state of customary international law regarding this crime.P" In this regard, it should be noted that US military courts, declared that "[...J crimes against humanity are in international law, completely independent of either crimes against peace or war crimes."129 Finally, the statute of the ICTR, which came into force after the statute governing the ICTY, does not contain such a requirement any more. These arguments prevailed in the end, giving meaning to crimes against humanity outside of times of armed conflict.P? bbb. Widespread and/or Systematic Another issue that caused considerable debate was that of the threshold that was necessary in order for international adjudication to be war-
in the Nuremberg charter fitted the unforeseen and unforeseeable depredations which had occurred between 1932-1945". Delbriick/ Wolfrum, see note 35,1097; V. Morris/ M. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, 1995,239. 128 The ICTY stated in its Tadic decision on the trial chamber level, that "[d]espite this precedent, the inclusion of the requirement of an armed conflict deviates from the development of the doctrine after the Nuremberg Charter, beginning with Control Council Law No. 10, which no longer links the concept of crimes against humanity with an armed conflict." See IT-94-1-T Prosecutor v. Dusko Tadic of 7 May 1997, para. 618. A similar argument is advanced in the Report of the Secretary-General, see note 60, para. 47. Bassiouni, see note 127, 70 argues that the Nuremberg Charter was "the final step of a steady progressive historical development and evolution of international criminal responsibility for harmful conduct committed against civilian populations irrespective of nationality, but subject to the condition that the violation be linked to the initiation and conduct of war." However, following the Nuremberg trials, "this connection to war was removed in Control Council Law No. 10, and in subsequent historical developments". 129 United States v. Ohlendorf, Trials of War Criminals Before the Niirnberg Military Tribunals under Control Council Law No. 10, Vol. 4,49. This decision was based on Control Council Law No. 10, which did not require such a nexus any more, see note 128. 130 The outcome of this discussion can also be derived from article 7 (2) (a), which speaks of a "course of conduct [...] pursuant to or in furtherance of a State or organizational policy to commit such attack".
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ranted.P! It is clear that not every crime mentioned in subsection 1 of article 7 of the ICC-Statute would warrant a conviction for crimes against humanity, but would be better dealt with on the national level. Thus a certain threshold requirement was necessary. The division between two major groups of countries concerned the question whether the two elements "widespread" as well as "systematic" would be linked cumulatively or whether they would operate independently.W The proponents of the former alternative pointed to the problem that a "widespread" commission of the crime would not only encompass large-scale atrocities, but also "crime waves" which were generally recognized not to fall under the jurisdiction of the ICC. The group of "like-minded" states on the other hand argued that customary international law - evidenced by the statute of the ICTR133 and ICTY jurisprudence'P" - regarded as sufficient such a disjunctive test. 135 The ICTR in the Akayesu case had declared that "it is a prerequisite that the act must be committed as part of a wide spread or systematic attack and not just a random act of violence. The act can be part of a widespread or systematic attack and need not be a part of both. "136 In light of this, it
van Hebel/ Robinson, see note 20,94. The content of these terms were defined by the ICTR in its Akayesu Judgment, see note 58, para. 580: "The concept of 'widespread' may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims", while [tjhe concept of 'systematic' may be defined as thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources". 133 The chapeau of article 3 of the statute of the ICTR reads in its relevant part: "The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds [...]." 134 See especially Prosecutor v. Dusko Tadic, see note 128, paras 645 et seq. (647). There the trial chamber cites numerous authorities, ranging from another trial chamber's finding in the Vukovar Hospital Decision case, and more conclusively, the various statements by the ILC in the process leading to the Rome conference. 135 WJ. Fenrick, "Should Crimes Against Humanity Replace War Crimes?", Colurn.]. Transnat'l L. 37 (1999),767 et seq. (777). 136 Prosecutorv. Akayesu, see note 58, para. 579. However, the French version of the ICTR statute suggests a conjunctive rather than a disjunctive reading, essentially raising the threshold for the application of the crime to a considerably extent: "Dans Ie cadre dune adieux generalise et systematic 131
132
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seems appropriate to state that the state of customary international law in 1998 was reflected in this codification - with its disjunctive test. 137 ccc. Attack Directed against any Civilian Population The solution to the question of whether there needed to be a conjunctive or disjunctive relation between the elements "widespread" and "systematic" was made considerably easier by the inclusion of the requirement that the attack be "directed against any civilian population". Similar wording can be found in the statutes of the ICTY and ICTR. The element that the attack be committed against the "civilian population" is one of scale ("multiple commission"), but must be interpreted to be considerably lower than the "widespread" element also present in the chapeau.P" More controversial, however was the inclusion of the element of a governmental or organizational policy.P? This element is part of the definition of the term "attack directed against any civilian population" contained in article 7 (2) (a) of the ICC-Statute. It was moreover mentioned by the Trial Chamber in the Tadic case that the reason why crimes against humanity"so shock the conscience of mankind and warrant intervention by the international community is because they are not isolated, random acts of individuals but rather result from a deliberate attempt to target a civilian population. Traditionally this requirement was understood to mean that there must be some form of policy to commit these acts".140 Compared to the term "systematic", it is not necessary that the attack be highly organized and orchestrated in accordance with a developed plan.l"! The question whether such an organizational policy should be included was decided on the basis of a
137
138 139
140 141
[...]." However, the trial chamber declared that "[s]ince Customary International Law requires only that the attack be either widespread or systematic, there are sufficient reasons to assume that the French version suffers from an error in translation. M. de Guzman, "The Road from Rome: The Developing Law of Crimes against Humanity", HRQ 22 (2000), 335 et seq. (375); Fenrick, see note 135,777; DelbriickJ Wolfrum, see note 35, 1096. van Hebel/ Robinson, see note 20, 96. Bassiouni, see note 127, 255 argues that without such a governmental or organizational policy, crimes against humanity could simply not be carried out. Similarly, Morris and Scharf assert that this element requires a "systematic plan or general policy". Morris/ Scharf, see note 127, 79 et seq. Prosecutor u. Dusko Tadic, see note 128, para. 653. van Hebel! Robinson, see note 20,97.
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compromise whereby the proponents of a conjunctive test with respect to the elements "widespread" and "systematic" were satisfied that "crime waves" would not be subject to international adjudication and would therefore fall outside of the jurisdiction of the ICC. 142 The concept of the presence of such an organizational element was also not an entirely novel one at the Rome Conference despite criticism to that effect from various non-governmental organizations.v'? In addition to the judgment of international tribunals, various national courts - with varying differences in certain elements - made similar pronouncements on this issue. Some of the best known national cases to deal with this aspect was the Menten decision by the Hoge Raad in the Netherlands in 1981,144 the Barbie 145 and Touvier 146 cases before the French Cour de Cassation, in 1985 and 1991, respectively, and the 1994 Pinta case before the Canadian Supreme Court.lf? all of which considered an element of organizational policy to be necessary when crimes against humanity were concerned. One final aspect that should be mentioned is the question of whether crimes against humanity can be committed against military personnel. The wording of crimes against humanity under the ICCStatute seems to indicate that this is not the case, as it speaks solely of an attack against "any civilian population". It is however conceivable that some of the acts embodied in article 7 (1) (a)-(k) of the ICCStatute will be committed against military personnel, but would not fall under war crimes according to article 8 of the ICC-Statute. To start with, one would have to rule out that murder would fall under this category of crimes - a view adopted by the International Military Tribunal for the Far East . 148 If the acts were prohibited under international humanitarian law, but could not be prosecuted under war crimes, a
142 L. Wexler, The International Criminal Court and the Transformation of International Law - justice for the New Millenium , 2002, 152. 143 van Hebel! Robinson, see note 20, 96. 144 Public Prosecutor v. Menten, International Law Review 75 (1981), 362 et seq. (363).
Federation Nationale Des Deportee Et Internes Resistants Et Patriots And Others v. Barbie, 20 December 1985, ILR 78 (1988), 124 et seq. 146 Touvier, 1 June 1995, ILR 100 (1995), 337 et seq. (340). 147 Regina v. Finta, [1994] 1 S.C.R., 701 (814). 148 International Military Tribunal for the Far East, 1 November 1948, B. Roling/ C. Ruter, The Tokyo judgment, Volume 1, 1977, 1 et seq. (32 et seq.). 145
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prosecution under crimes against humanity would nevertheless be possible. 149 This is especially true in situations in which belligerents hors de combat have laid down their weapons because they are wounded or because they were captured. 150 This view is confirmed by the position taken by various international and national courts.P! ddd. Element of Discrimination Another cause for debate in the deliberation process was the question of whether crimes against humanity necessarily included an element of discrimination.l'< The differing views are mirrored when analyzing the statutes of the ICTR and the ICTY - the former containing a discrimination clause,lS3 the latter omitting such an element. Similarly, while the ILC held that such an element was contained in article 6 (c) of the Nuremberg charter.P" this view was vehemently and widely rejected in academia. 155 The latter seems to be the view that it is closer to the wording of the relevant provision of the Nuremberg charter. While its article 6 (c) makes mention of discriminatory - political, racial or Zimmermann, see note 9,179. A. Cassese, "Crimes Against Humanity", in: Casseseet al., see note 11,353 et seq. (375). lSI For a list of cases, see Zimmermann, see note 9, 178 et seq. and Cassese, "Crimes Against Humanity", in Cassese et aI., see note 11, 353 et seq.
149 150
(368).
Lippman, see note 115, 171 who defines crimes against humanity before the background of discriminatory grounds; it should be borne in mind that this article was written well prior to the Rome Conference. 153 The relevant provision of the ICTR statute - article 3 - states that "[t]he International Tribunal for Rwanda shall have the power to prosecute [...] crimes when committed as part of a widespread or systematicattack against any civilian population on national, political, ethnic, racial or religious grounds [...]." 154 ILC, Draft Code of Offences against the Peace and Security of Mankind, 1954, ILCYB 1954, Vol. II, 112 et seq. Article 2 (10) of the 1954 Draft Code reads: "Inhuman acts such as murder, extermination, enslavement, deportation or persecutions, committed against any civilianpopulation on social, political, racial, religious or cultural grounds by the authorities of a State or by private individuals acting at the instigation or with toleration of such authorities". ISS D. Johnson, "Draft Code of Offenses against the Peace and Security of Mankind", ICLQ 4 (1955), 445 et seq. 152
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religious - motives, it does so explicitly only with respect to "persecutions in execution of or in connection with any crime within the jurisdiction of the Tribunal". While this does seem to give the opportunity to narrow the scope of the application of this provision, a teleological interpretation leaves no other choice but to restrict the discriminatory grounds to persecutions. While it is thus obvious that the crime of persecution (article 7 (1) (h) of the ICC-Statute) does require a discriminatory motive, it is far more plausible that such a requirement is not necessary with respect to other crimes under the jurisdiction of the ICC, e.g. murder. Persecution as defined in that provision.P" and as explained in article 7 (2) (g) of the ICC-Statute - meaning the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectively -, is by its very nature based on discrimination.W A similar conclusion was reached both by the Trial Chamber-'f as well as the Appeals Chamber in the Tadic case, which found that on the basis of a textual interpretation of the specific subsection.P? a logical and systematic construction of the entire provision.l'" as well as a historical interpretation-'" in addition to a comparison with the customary international rule,162 a discriminatory motive could only be said to exist with respect to persecution. Such a construction is also a sensible approach to the crimes in question. Especially with respect to the crime of persecution, a general requirement of a discriminatory motive would impose a double re-
156 According to article 7 (1) (h), the criminal act consists of "[pjersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court [...J". 157 Robinson, see note 126, 46. 158 Prosecutor v. Dusko Tadic, see note 128, paras 650 et seq. 159 IT-94-1-A, Prosecutor v. Dusko Tadic, Judgment of 5 July 1999, para. 283. 160 Prosecutor v. Dusko Tadic, see note 159, para. 284. 161 Prosecutor v. Dusko Tadic, see note 159, para. 285. 162 Prosecutor v. Dusko Tadic, see note 159, paras 287 et seq. and para. 293. However, the Appeals Chamber noted that its own view was "not in keeping with the Report of the Secretary-General and the statements made by three members of the Security Council before the Tribunal's Statute was adopted by the Council", all of which had at least made mention of the need for these elements to be present. See Report of the Secretary-General, see note 60, para. 48.
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quirement for acts of persecurion.l -' On a more general level, raising the threshold for crimes against humanity to include a discriminatory approach would place an onerous and unnecessary burden on the prosecution, in addition to resulting in a possible and inadvertent exclusion of some acts that would have otherwise fallen under this provision. 164 eee. mens rea The final element of the chapeau - mentioning "with knowledge of the attack" and referring to the subjective element or mens rea - is essentially superfluous. Under general principles of national and international criminal law, the accused must have been at least aware that her/his individual action formed part of a widespread or systematic attack. 165 Indeed, article 30 of the ICC-Statute already contains such a general rule. In addition, the reality of past events seems to be indicative that an individual who commits one of the crimes under article 7 (1) of the ICC-Statute as part of a widespread or systematic attack cannot claim to have been unaware of that particular situation. fH. The Criminal Conduct Listed in Article 7 (1) of the ICC-Statute General Remarks Most of the provisions in para. 1 of article 7 follow closely the precedents of the Nuremberg charter or the statutes of the ICTY or the ICTR. The Nuremberg charter already listed "murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population [...], or persecutions on political, racial, or religious grounds", almost all of which were repeated in the statutes of
163
164 165
Zimmermann, see note 9, 176; Amnesty International, The International Criminal Court: Making the Right Choices - Part 1 of 1 January 1997, 46. Robinson, see note 126, 47. Similar to the view of this author, A. Cassese, "Crimes Against Humanity", in: Cassese et al., see note 11, 353 et seq. (373); Sunga, see note 124, 72. For a different view - based on a characterization of the terms "widespread" and "systematic" as objective elements - see ELSA, Handbook on the draft Statute for an International Criminal Court, May 1998, 25.
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the ICTY and the ICTR, with only slight modiiications.l'" The ICCStatute departs from this established route in a number of ways. One of these changes concerns the addition of the term "forcible transfer of population" in subpara. (d), thereby expanding and refining considerably the previous jurisdiction as it now also includes the forcible transfer of a population within the boundaries of a state,"? in accordance with national laws, which themselves have to conform to the ordre public. Furthermore, persecution, imprisonment and gender crimes were expanded - sometimes considerably - in scope compared to earlier documents. Some of the crimes listed mark entirely new entries into the category of crimes against humanity, such as torture, enforced disappearances of persons and apartheid. This constitutes a considerable step forward in the status of these crimes as the Rome Statute attaches a higher stigma as these crimes now form part of a category of crimes which - according to the Preamble of the ICC-Statute - are the most serious crimes of concern to the international community as a whole, which must not go unpunished. The Crimes of Murder, Extermination, Enslavement and Enforced Disappearances While murder is - in line with previous jurisdictional charters - the first crime mentioned among the inhumane acts of article 7 (1) of the ICC-Statute, the content of the crime was regarded to be sufficiently clear so as to not warrant more specific elaboration.P" In contrast to
166
167 168
The ICTY and ICTR charters differ slightly from the Nuremberg formulation, which stated that persecutions would have to be based on "political, racial or religious grounds", while the ICTY and ICTR statutes use a conjunctive terminology. The first alternative - deportation - means the "forced removal of people from one country to another", see Bassiouni, see note 127, 312. van Hebel! Robinson, sec note 20, 98. Two judgments by the ICTR and the ICTY have reached similar conclusions as to the elements of murder. The trial chamber in the Akayesu case stated that murder - the unlawful, intentional killing of a human being - consisted of three elements, namely (1) the victim is dead, (2) the death resulted from an unlawful act or omission of the accused or a subordinate, and (3) at the time of the killing the accused or a subordinate had the intention to kill or inflict bodily harm on the deceased having known that such bodily harm is likely to cause the victim's death, and is reckless whether death ensues or not. Prosecutor v. Akayesu, see note 58, para. 587 ct seq.
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murder, where one single offence is sufficient, extermination (article 7 (1) (b) of the ICC-Statute) is directed against a group of individuals and involves an element of mass destruction."? One requirement is necessarily the destruction of a group of individuals, although this group does not need to be tailored along the lines of the definition of the Genocide ConuentionP? Enslavement - article 7 (1) (c) of the ICCStatute has been included in all predecessor regimes and was one of the earliest violations of human rights that was specifically recognized un, der international law with the creation and subsequent entry into force of the Slavery Convention of 1926. 171 According to the Elements of crimes, slavery can take a variety of forms, including when the "perpetrator exercises any or all of the powers attaching to the right of ownership over one or more persons, such as purchasing, selling, lending, or bartering such a person or by imposing on them a similar deprivation of liberty."172 However, the Appeals Chamber in the Kunarac case correctly stated that "the law does not know of a 'right of ownership over a person'. Article 1(1) of the 1926 Slavery Convention speaks more guardedly 'of a person over whom any or all of the powers attaching to the right of ownership are exercised.' That language is to be preferred. "173 Another novelty is embodied in article 7 (1) (i) of the ICC-Statute, which prohibits the enforced disappearance of persons on the universal level.V" One obvious requirement stemming from the plural form of the term person is that more than one person must have disappeared. While the impetus for the crime is somewhat unclearf" and its inclu169 170
171 172
173
174
175
Report of the International Law Commission, see note 66, 97. Report of the International Law Commission, see note 66. Similarly, IT-9833-T, Prosecutor v. Krstic, Judgment of 2 August 2001, para. 503 which found that for "the crime of extermination to be established, [...] there must be evidence that a particular population was targeted and that its members were killed or otherwise subjected to conditions of life calculated to bring about the destruction of a numerically significant part of the population". Slavery Convention, LNTS Vol. 60 No. 1414. Elements of Crimes, see note 22, 10. Prosecutor v. Kunarac, Trial Chamber, see note 48, para. 118. Previously, the General Assembly had recognized the severe problem of enforced disappearances in A/RES/47/133 of 18 December 1992, Declaration on the Protection of all Persons from Enforced Disappearances. Wexler, see note 142, traces the inclusion back to the experience in Latin America, C. Hall, "Article 7 - Crimes against Humanity", mn. 73 et seq., in: Triffterer, see note 17, attributes the inclusion to the Nacht und Nebel
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sion into the ICC-Statute open to criticism.P" the provision raises a number of interesting problems. One noteworthy aspect in connection with this crime is that it supports the decision of the Rome Conference that there does not need to be a nexus to armed conflict, as such en forced disappearances do occur in times of peace as well as in times of war. Another problem could arise with respect to the principle of nonretroactivity (article 24 of the ICC-Statute) should the ICC consider these crimes to be ongoing crimes. Furthermore, the ICC-Statute seems to include enforced disappearance of persons not only by governmental organs, but also by "political organizations't.V? thus deviating considerably from the current notion of this crime under customary international law. 178 However, despite this departure.V? it seems in line with the decision to expand the notion of crimes against humanity to nonstate actors. Finally, on a practical level, this provision might increase the caseload of the court,180 considering that the number of reported enforced disappearances around the world has reached abominable levels. 181 However, given that the requirements of the chapeau need to be fulfilled, the number of potential cases could decrease significantly.
176 177
178
179 180 181
Erlass (Night and Fog Decree) of 7 December 1941. In light of the considerable amount of such acts, specifically in Latin America, the former proposition seemsmore likely. Zimmermann, see note 9,184. Article 7 (2) (i) of the ICC-Statute reads: "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time". Article II of the Inter-American Convention on the Forced Disappearance of Persons of 9 June 1994, states: "For the purposes of this Convention, forced disappearance is considered to be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support , or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legalremedies and procedural guarantees". Hall, see note 175, mn. 124, in: Triffterer, see note 17. Wexler, see note 142, 158. Doc. E/CNA/1997/34, Report of the Working Group on Enforced or Involuntary Disappearances, Question of Human Rights of All Persons Sub-
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Persecution The inclusion of persecution as a separate crime was the cause of considerable debate prior to and during the Rome Conference. 182 While all previous major precedents had included this category of crimes, some states argued that its ambiguity and the lack of a firm basis in international criminal law would require it being left out of the ICC-Statute entirely,183 with at least one author calling it "the weakest element of the Rome Statute's definition of 'crimes against humanity' [...]."184 Another aspect that should also be considered is that the concept of a crime under the label "persecution" is alien to the major criminal justice systems in the world.l'" A compromise was reached when the wording of prior statutes was amended considerably, especially in comparison to the statutes of the ICTY and ICTR.186 Persecution is now described as a conduct in connection with acts embodied in one of the crimes under the jurisdiction of the court, if that conduct is carried out against an identifiable group of collectivity-V because of that group's/collectivity's
jeered to Any Form of Detention or Imprisonment - Question of Enforced or Involuntary Disappearances, 13 December 1996. 182 Report of the Committee on the Establishment of a Permanent International Criminal Court, see note 19, 17; W. Schabas, An Introduction to the International Criminal Court, 2001, 39; van Hebel/ Robinson, see note 20, 101.
183 van Hebel/ Robinson, see note 20,101. 184 Sunga, see note 124, 73. 18S Bassiouni, see note 127, 327. Delbriick! Wolfrum, see note 35, 1088 point out that the prohibited conduct within crimes against humanity is for the most part included in national penal codes. 186 Both the ICTY and ICTR statutes merely contained the wording "persecutions on political, racial and religious grounds". Contrary to the analysis of Schabas, see note 182, 39, the Nuremberg Charter was more elaborate and the ICC-Statute resembles it more closelywhen it criminalized "persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated" 187 It is unclear what purpose the distinction between group and collectivity serves. Neither article 7 (2) (g) ICC-Statute nor the Elements of Crimes provide any guidance on this issue. If one were to assume that it meant a people as a whole, such a meaning could be subsumed under the element "group". The same is true if collectivity is to be understood as an association of individuals who share an ideological basis. Thus, every collectivity could be subsumed under the term group, but not vice versa.
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identity.188 The latter aspect requires that persecution must be committed on discriminatory grounds, the list of which has been extended by inclusion of the grounds of nationality, ethnicity and gender. However, this list is not exclusive, but any other such ground must reach the level of being "universally recognized as impermissible under international law". This wording leaves the door open for a wide margin of interpretation by the bench of the ICC and is at the very least problematic given the nature of the ICC-Statute as a tool of criminal law, which is bound to a high degree of specificity.l''? The terminology in connection with other crimes under the jurisdiction of the ICC-Statute could potentially lead to cases in which a single murder was committed, while the persecution was carried out including the elements mentioned in the chapeau.P? This departure from legal regimes recently established under the ICTY and ICTR statutes might be attributable to the different 188 The definition set out in article 7 (2) (g) of the ICC-Statute - apart from including a subjective element which would have to be present in any case does not clarify the rather imprecise provision in section 1, as it reads: " Article 17 (2) itself is not clear, yet commentators have reasoned that the system of complementarity at least presupposes that states must have adequate legislation (both in terms of substantive and procedural law) enabling them to genuinely prosecute war criminals according to "proper" categories of crimes.U" Having said that , others have argued that such interpretation
crimes' refers to the situation where the act has been treated as a common crime as distinct from an international crime having the special characteristics of the crimes referred to in article 20 of the Statute [crimes within the jurisdiction of the Court]". 113 L. CondorelIi, "La Cour penale internationale: Un pas de geant (pourvu qu 'il soit accompli ...)", RGDIP 103 (1999), 7 et seq. (21); Meiliner, see note 29,83. 114 Prosecutorv. Tadic, see note 40,51, para. 58. l1S See also Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 of 22 February 1993, Doc. S/25704, 3 May 1993, reprinted in: V. Morris/ M.P. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol. 2, 1995, 3 et seq. (15, para . 66). 116 Benvenuti, see note 64, 45; CondorelIi, see note 113, 19; ]. Kleffner, "The Impact of Complementarity on National Implementation of Substantive International Criminal Law", Journal of International Criminal Justice 1 (2003), 86 et seq. (89). Kleffner contends that the Statute, together with sub sequent state practice, imposes a duty on states to implement the sub stantive law of the Statute into their domestic system. Different in that he only sees a political pressure, as opposed to a legal duty, on states to that effect: H. Satzger, "Das neue Volkerstrafgesetzbuch - Eine kritische Wiirdigung", Neue Zeitscbrijt fur Strafrecht 22 (2002), 125 et. seq. (127); Zimmermann, see note 26, 98, who sees an "Obliegenheit" (non-enforceable legal duty) to incorporate the crimes under article 5 into domestic law; BroomhalI, see note 85, 148: no express obligation and id., see note 49, 86: only an "indirect effect on State practice"; W. Schabas, "Follow up to Rome : Preparing for the Entry Into Force of the International Criminal Court Statute", HRLJ 20 (1999), 157 et seq. (160).
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would undermine the respect for national sovereignty as formulated by the complementarity principle.U ? The problem cannot be solved in isolation from article 17 (l)(c) read in connection with 20 (3). As opposed to the Statutes of the ad hoc Tribunals, the double jeopardy provision of the ICC Statute does not make explicit reference to "ordinary crimes", but rather refers to "conduct also proscribed under article 6, 7 and 8". Even though one might argue that the abandonment of the language used in the respective Statutes of the ad hoc Tribunals does not necessarily mean that the underlying idea as such was also rejected in its entirety.U" it is clear that the different wording must influence the interpretation of the norm. Article 20 (3) is much broader in ambit and also accommodates prosecutions of behaviour falling into the categories of article 5 for crimes where the charges are not classified as "genocide", "war crimes" or "crimes against humaniry'i.U? Taking this into account, it may be argued that a more flexible approach is called for than merely stating that the prosecution of such acts as "ordinary crimes" automatically and without further requirements entails an exception to the rule of double jeopardy. Where the charge chosen by national authorities does not reflect and adequately capture the severity of the perpetrator's conduct.F? or where the national legal system provides for excessively broad defences or statutes of limitation, this may be seen as conflicting with an intent to bring the perpetrator to justice or even to shield him or her from criminal responsibility and thus falls under one of the exceptions of article 20 (3)(a) and (b).121
It is now decisive whether the same should go, for reasons of consistency, for article 17 (3),122 given that article 20 (3) in its formulations 117 118 119
M.A. Newton, see note 5,70. Van den Wyngaertl Ongena, see note 38, 726. Cf. Holmes, see note 69, 59, who refers to the negotiations within the Preparatory Committee, where the majority of states did not agree with the necessity to try crimes as international crimes. Tallgren, see note 72, MN 22 remarks that the notion "ordinary crimes" was rejected because it was not known to many legal systems; Newton, see note 5, 71; Meiliner, see note 29,83.
120 Tallgren, see note 72, MN 27 gives the example of an atrocity amounting to genocide being charges as an assault. 121 Similar, Meifsner, see note 29 , 83. 122 It should be noted that article 20 (3) does not envisage an "inability" option as elaborated in article 17 (3). However, the general considerations are similar.
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is closely related and has been drafted with regard to article 17. 123 It could be argued that it would be a contradiction if one took a different approach to situations where the alleged perpetrator is or has been under investigation, or is being prosecuted, on the one hand (article 17) and the scenario where he or she has already been tried (article 20). However, such difference may be explained b y the greater respect accorded to the sovereignty of the state where a judicial procedure before a court has already been concluded. P' From a factual point of view, it may be also said that several states have incorporated or are incorporating the substantive rules of the Rome Statute with a view to forestalling being declared unwilling by the Court, which may be taken to point to a conviction of these states that punishing crimes under the Statute as "ordinary crimes" is insufficient with regard to article 17. Nevertheless it has rightly been pointed out that the prosecution or conviction of a perpetrator on the charge of an "ordinary crime", such as murder or rape, does not necessarily benefit and privilege him or her.125 Furthermore, to impose such a duty may be tantamount to establishing an obligation of states to prosecute the crimes under the Statute, which the Statute does not establish.F'' Cases where a state is declared unable because its national legislation differs from the substantive provisions of the Rome Statute should therefore be limited to situations where it either does not penalise a conduct proscribed under the Statute at all,127 or where the legislative path chosen by the state does not enable courts to impose an adequate sentence and would lead to a gross understatement of the actual gravity of the offence that falls significa ntly short of the characterisation that act received in the Statute. The first case would possibly even amount to mere inaction of the state, which would m ake the case admissible without having to have recourse to the notions of unwillingness or inability. 128
123 Tallgren, see note 72, MN 29. 124 MeiBner, see note 29, 89. 125 Zimmermann, see note 65, 221; MeiBner, see note 29, 83; Tallgren, see note 72, MN 22. 126 See und er II. 2. 127 See the example given by J.D. van der Vyver, "P ersonal and Territor ial Ju risdiction of the International Criminal Court", Emory Int ernational Law Review 14 (2000), 1 et seq. (95-96). 128 See under III. 1.
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2. Article 17 (1)(b) Article 17 (1)(a) and (b) differ in that para. (a) envisages a situation where the state is still in the process of investigating or prosecuting, whereas para. (b) regulates the case in which the state has concluded an investigation, but has decided not to pursue the case to the stage of criminal prosecution, whether for reasons of procedural or substantive law.129 Article 17 (1)(b) raises the same questions as to a state having jurisdiction and being unwilling or unable as article 17 (1)(a); the analysis pertaining to that provision may therefore be referred to.
3. Complementarity and ne his in idem (Article 17 (1)(c» Article 17 (1)(c) captures the situation where a person has already been tried by another domestic court. It refers to article 20 (2). From the wording of the provision, it is clear that the court proceedings have to be cornpleted.P? However, the omission of the words "for which the person has (...) been convicted or acquitted" which are included in article 20 (1) and (2) suggests a contrario that a final judgement on the merits is not necessary for para. (3). Instead, any termination of the proceedings, e.g. on procedural grounds, would suffice as long as the proceedings have been conducted bona fide before and by the national courts.P! It thus seems that the Statute has taken a different path to the ICTY: in the Tadic case,132 an ICTY Trial Chamber, interpreting article 10 (2) of the ICTY Statute, which also does not contain the relevant phrase, stated that "there can be no violation of non-his-in-idem, under any known formulation of that principle, unless the accused has already been tried. Since the accused has not yet been the subject of a judgment on the merits on any of the charges for which he has been indicted, he has not yet been tried for those charges".133 This may be yet another illustration for the complementary nature of the ICC, in that the Statute Meillner, see note 29, 77. Meifjner, see note 29,78. 131 Tallgren, seenote 72,MN 26. 132 ICTY, Prosecutor v. Tadic, Decision on the Defence Motion on the Principle of Non-Bis-in-Idern, Case IT-94-1-T, 14 November 1995, reprinted in: Klip/ Sluiter, see note 22, 143 et seq. 133 Ibid., para. 24 (emphasis added). 129
130
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appreciates state sovereignty by posing a greater trust in national systems. The point in time decisive to distinguish between article 17 (l)(b) and (c) is the transition of responsibility for the case and the competence to decide on its progress on the judge.P" Article 20 (3) does not provide for the situation of inability. 135
4. Gravity of the Offence (Article 17 (1)(d» Article 17 (l)(d) is distinct from the other criteria in article 17 (1), as it applies to all cases which are brought before the Court, not just those with respect to which national authorities have already taken action;136 it is not a subsidiary criterion but stands on an equal footing with the other factors enumerated in article 17 (1). The concern leading to the rule was that the Court may be flooded with cases.!" it thus serves purposes of practicability, but is also an expression of the will of states to tackle impunity for the "most serious crimes of concern to the international community as a whole",138 The meaning of "sufficient gravity" is not defined by the Statute and will have to be developed by the Court over time.P? in its application of the term, the Court will enjoy a considerable margin of appreciation.r'? As relevant factors for sufficient gravity, the Court may take into account the degree and magnitude of the wrongdoing, including the extent to which they were planned or part of a general policy.I"! and the detrimental effect the crimes (potentially) had or still have on the social
134 MeiBner, see note 29, 77. 135 This may be due to the fact that the negotiators had in mind that in case of inability there would be no judgment of a nationalcourt at all. 136 Broomhall,see note 85, 144. 137 Benvenuti, see note 64, 43. 138 Preambularpara. 4 (emphasis added). 139 L. Sadat Wexler, "A First Look at the 1998 Rome Statute for a Permanent International Criminal Court: Jurisdiction, Definition of Crimes, Structure and Referrals to the Court", in: M.e. Bassiouni, International Criminal Law, Vol. 3, 2nd edition, 1999,655et seq. (677). 140 Bourdon/ Duverger, see note 9, 96. 141 SadatWexler, see note 139, with reference to the chapeauof article8.
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and cultural fabric of the region or state where they (allegedly) occurred. 142 The policy paper issued by the Office of the Prosecutor.t? taking up suggestions in literature.lt" envisages that the gravity requirement is not exclusively interpreted as relating to the acts that constituted the "crime base" but also to the degree of participation in their commission. This is not necessarily synonymous with a limitation to "high-level perpetrators" from the higher echelons of the state, but can also connote a substantial role in the commission of the crime. It is however debatable whether this additional restriction should be read into article 17 (l)(d), with the consequence that the possibility of the Court to exercise jurisdiction would strictly be limited to these categories, or whether the place better suited for such considerations is the decision of the Prosecutor to abstain from an investigation or prosecution under article 53 (l)(c) and (2)(c).
It is interesting to analyse the relationship of this provision with article 5 (1), pursuant to which the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. This is often interpreted to confine the jurisdiction of the Court to such acts which would fall under article 5 (l)(a) to (c), but additionally are of an especially high gravity and severity.P" If this were so, the question of inadmissibility under article 17 (l)(d) would never arise, at least not within the procedural framework of the Court.l'" rendering the provision essentially redundant. It is submitted that the reference in article 5 to "the most serious crimes" is merely a general characterisation of the crimes that are set out in this norm, thus clarifying that genocide, crimes against humanity, war crimes and aggression are, per se, and without having regard to any specific occurrence of such crimes, the most serious crimes of concern to the international community as a whole. The chapeau of article 5 (1) does not restrict the Court's jurisdiction more than paras (a) to (d) of article 5 (1) read in connection with arts 6 to 8. With this interpretation, article 17 (l)(d) retains its relevance by giving the Court the possibility to distinguish between different levels of crimes within its jurisdiction. 142 143 144 145 146
MeiBner, see note 29, 79. <www.icc-cpi.int/otp/policy.php>. SadatWexler, see note 139. Newton, see note 5, 39; similar: A. Zimmermann, "Article 5", in: Triffterer, see note 2, MN 9. Cf. Rule 58 (4).
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rv: The Procedural Framework The procedural framework':" relating to complementarity is intricate and primarily designed to reconcile the two opposing maxims of effective operation of the Court and preservation of states' right to investigate and prosecute. The sovereignty-protecting aspect of the principle is "strengthened" by the possibility of challenging the admissibility of a case at a very early stage in the proceedings, which is counterbalanced by the one-month preclusion period provided for in article 18 (2) and the limitation for bringing such challenges in article 18 (7).148 The exact development of the procedure to be followed with regard to a challenge to the admissibility of a case has been described in detail elsewhere.l"? Some important issues should, however, be highlighted.
1. The Court as Arbiter over the Complementarity Regime The procedural regime governing complementarity is clearly based on the assumption that it is the Court as a judicial bod y ls 0 itself that determines conclusively whether or not a case is admissible, including all necessary criteria for such determination. 151 However, as opposed to its jurisdiction, it is not per se obliged to consider the matter on its own initiative, but may raise the issue proprio motu (article 19 (1)) if it wishes to. 152
147
148 149
150 151
152
Arts 18, 19 and Rules 51 to 62 of the Rules of Procedure and Evidence. Compare Holmes, see note 15,681-682. Bergsmo, see note 57; Holmes, see note 15; C. KreB, "Rornisches Statut des Internationalen Strafgerichtshofs - Vorbemerkungen", in: H . Griitzner/ P.G. Potz (eds), Internationaler Rechtshilfeverkehr in Strafsachen, 2nd edition, 2002, Vor III 26, MN 22 et seq.; MeiBner, see note 29,89 et. seq. I.e. the Chambers of the Court. Cf. Dahm/ Delbriick! Wolfrum, see note 19, 1155; G.S. Goodwin-Gill, "Crime in International Law: Obligations Erga Omnes and the Duty to Prosecute", in: Goodwin-Gill/ S. Talmon, The Reality of International Law, Essays in Honour of Ian Brownlie, 1999, 199 et seq. (221); KreB, see note 149, MN 23; Fife, see note 21, 68; MeiBner, see note 29,69. Cf. Broomhall, see note 49, 88.
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2. Duty of the Prosecutor to Inform States under Article 18 Under article 18 (1), the Prosecutor has an obligation to notify states when a State party has referred a situation to the Court or where he or she initiates an investigation proprio motu .153 Under the clear wording of the provision, this duty exists also vis-a-vis non-States parties.P" The norm thus provides for a right for third states, i.e, states that are not party to the treaty. 155 The duty to notify only extends to such states as, "taking into account the information available, would normally exercise jurisdiction over the crimes concerned". It thus begs the question which states are included by that phrase. A possible interpretation may be that it indeed includes all states that have incorporated universal jurisdiction regarding the crimes under article 5 of the Statute in their domestic jurisdiction. l s6 In practice, however, few states actually do prosecute alleged perpetrators under the principle of universality in the absence of any specific link to the crime .P? Thus, "normally" could and should be interpreted to refer to actual state practice. One may further argue that the term "normally" limits the number of states to be notified to those 153
154
155
156 157
It is not applicable for Security Council referrals under article 13 (b). The duty to inform arises as soon as the Prosecutor has concluded that there is a reasonable basis to proceed with an investigation under article 53 (1), or, in the case of an initiation proprio motu, when the Pre-Trial Chamber has authorised such commencement under article 15 (4), see S. Fernandez de Gurrnendi/ H. Frirnan, "The Rules of Procedure and Evidence of the International Criminal Court", Yearbook of International Humanitarian Law 3 (2000), 289 et seq. (295). Cassese, see note 48, 159; El Zeidy, see note 103, 907; E. David, "La Com penale internationale: une Com en liberte surveille?" , International Law Forum du droit international 1 (1999),20 et seq. (26); S. Rosenne, "The Jurisdiction of the International Criminal Court", Yearbook of International Humanitarian Law 2 (1999),119 et seq. (131). The question is governed by article 36 (1) and (2) Vienna Convention on the Law of Treaties which makes the coming into existence of a right dependent on the express or presumed assent of the third state in question. Stahn, see note 59, 589. Schabas, see note 116, 160. A particularly topical case is Belgium: see <www.hrw.org/press/2003/08/belgium080103.htm>. See also National Prosecution of International Crimes from a Comparative Perspective, Project of the Max Planck Institute for Foreign and International Criminal Law, Freiburg, <www.iuscrim.mpg.delforsch/straf/projekte/nationalstraf verfolgung2_e.html>.
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which, apart from having jurisdiction over the case, have some type of additional link to the crime in question.P'' and that link is known to the Prosecutor ("according to the information available").159 In the interest of expediency and effectiveness of international criminal proceedings and of preventing abuse, it is desirable to keep the number of states to be informed limited to a reasonable number.ls? Moreover, in the absence of an obligation of states to inform the Office of the Prosecutor of their domestic jurisdictional regime, it is hardly conceivable that the Office be obliged to ascertain which states have established universal jurisdiction within their domestic legal system before launching an investigation. Such a link exists where the state in question would be entitled to exercise jurisdiction under traditional international law criteria, i.e, as the state of nationality of the alleged offender; where the crime occurred on the territory of the said state; and where nationals of that state are amongst the victims of the crime. A link can also be made where the suspect or accused resides or is present in the territory of that state. 161 It may also apply where states have informed the Court that they have established and are exercising universal jurisdiction with regard to crimes within the jurisdiction of the Court, even where no such specific connection exists. An even more restrictive interpretation of the norm has been advocated, concluding that the complementarity principle as such, i.e. not only the duty to inform under article 18, merely applies to states which
158 Kref], see note 149, MN 25; implicitly: G. Palmisano, "The ICC and Third States", in: Lattanzi/ Schabas, see note 64,391 et seq. (399, note 18).
159 One may also ask what "available" information means, i.e. whether it only
160 161
refers to information that is already in the possession of the Prosecutor or whether he or she has to make further inquiries. In order to give effect to the protection of state sovereignty accorded by article 18, the Prosecutor must make a reasonable effort to determine whether such links exist. This should be less onerous than to require the Prosecutor to establish whether a state has provided for universal jurisdiction under its national legal system. Bos, see note 61, 258. This differs from the other criteria in that it is not per se a requirement for jurisdiction under international law; however, it has been used in national law to regulate the exercise of universal jurisdiction. For Germany, see C. HoB/ R. Miller, "German Federal Constitutional Court and Bosnian War Crimes: Liberalizing Germany's Genocide Jurisprudence", GYIL 44 (2001),576 et seq. (596 et seq.).
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have such a link. 162 Only these states, it is argued, may reasonably be presumed to be in a position to successfully collect evidence of the alleged crimes and enforce a judgement. 163 Furthermore, it is maintained that the central goal of the Statute, i.e. the effective repression of crimes under the jurisdiction of the Court, could be frustrated if every state were able to invoke the complementarity principle regardless of the strength of the link or the probability of obtaining the accused and recovering the evidence. However, one should differentiate between the applicability of the principle as such on the one hand, and the duty of the Prosecutor to inform as well as the right of states to bring challenges on the other hand, which is just a corollary designed to give the states concerned an opportunity of raising objections at as early a stage as possible. As observed, this right is coupled with a preclusion period of one month, after the lapse of which no such challenges may be brought, which fosters legal certainty in that area and prevents a waste of resources. Moreover, article 19 (2)(b) does not in any way restrict the number of states entitled to bring challenges to the admissibility of a case, a right not dependent on previous notification.
If once accepts the reasoning offered above, one has to consequently pose the question of the legal consequences of non-notification. Such non-notification may happen (a) following the interpretation given as to the scope of this duty above, because the state in question did not have a specific link to the crime in question, or (b) because of a breach of the Prosecutor's duty to notify such states which can point to a link. Article 18 (2) does not provide for any legal consequences of this situation. The problem arising is whether the time limit of one month for information that the state is investigating or has investigated the situation still applies. General principles in national systems suggest that the time limit is at least not appli cable where the failure to notify constituted a breach of the Prosecutor's obligations.
3. Request by States to Defer Investigation Article 18 (2) provides that, within one month of receipt of a notification under article 18 (2), states, again including non-States parties, may inform the Court that they have investigated or are investigating the 162 163
Benvenuti, see note 64, 48. F. Lattanzi, "Competence de la Cour penale internationale et consentement des Etats", RGDIP 103 (1999) 425 et seq. (430-431).
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crime. "Within its jurisdiction" must be construed to mean that the state actually has jurisdiction under its domestic legal system lest article 18 be used to delay proceedings. This is in line with the interpretation of article 17 (1)(a) and (b) and the requirement laid down in article 19 (2)(b). The Prosecutor has to comply with the request ("shall") inasmuch as he or she needs to challenge it by seeking an authorisation to proceed with the Pre-Trial Chamber (article 18 (2) in fine). This also applies in situations where the state has only initiated investigations after having been notified by the Prosecutor. The Statute does not regulate the question of in how far a state has to substantiate the claim that (a) it has jurisdiction and (b) is investigating or has investigated. Rule 53 merely provides that a state 164 shall make the request for deferral in writing and provide information concerning its investigation. The Prosecutor may then request additional material. However, this rule seems to be intended solely to put the Prosecutor in a position to consider seeking an authorisation under article 18 (2) in fine, rather than giving the Prosecutor the right to evaluate the material submitted by the state and to reject a request for deferral. According to the clear wording, the Prosecutor has to comply with the request; questions of evidence and the burden of proof do not arise until proceedings before the Pre-Trial Chamber under article 18 (2) and Rules 54 and 55 have been initiated by the Prosecutor,
4. Complementarity and the Security Council The issue of admissibility has to be considered also in connection with the triggering mechanisms of the Court. Article 17 establishes substantive criteria for admissibility without clarifying its relationship with the different triggering options provided in article 13. The relationship between the Security Council referring a situation to the Court and the application of the complementarity regime is particularly unclear. While article 18 does not apply to Security Council referrals, article 19 clearly does. 165 Still, it has been argued that the complementarity regime as
164 165
Rule 53, from its text, applies both to States parties and non-States parties. Holmes, see note 15,683; Bourdon/ Duverger, see note 9,106.
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such does not apply to such a referral.l 66 A majority of scholars, however, contends that it does. 167
It is imaginable that the Security Council, in a resolution referring a situation to the Court, may declare a situation admissible, e.g. by declaring a state unable or unwilling to investigate or prosecute, raising the question whether the Court would be bound by such a decision of the Council. Reference to the ICC being intended as an independent and impartial international organisation with the power to determine its own comperencet'f is not sufficient as such: the independence of the Court and its judges only exists within the ambit of the legal framework established by the Statute and does not per se preclude the influence of other organs on questions of jurisdiction and admissibility.P? However, the Statute presupposes that the Court will apply the complementarity principle to Security Council referrals, in particular since article 53 (1)(b) requires the Prosecutor to have regard to the admissibility of the case when deciding whether to initiate an investigation also if the case has been referred to the Court by the Security Council.V? The fact that article 18 does not refer to the Security Council can be explained by the reason that a resolution would be public and consequently states would be informed without the Prosecutor having to act. However, the problem cannot be considered by an exclusive reference to the Statute; the obligation of states and the Court with regard to the UN Charter must also be taken into consideration. While some argue that the Court would not be bound by a determination of admissibility by the Security Council since Arts 24, 25 and 103 of the Charter of the United Nations only address UN Member States, not interna-
166 167
168
169 170
Dixon/ Khan/ May, see note 55, 30, § 2-41; Newton, see note 5, 49. Holmes, see note 15,683; Benvenuti, see note 64, 41; Cassese, see note 48, 159; M.H. Arsanjani, "The Rome Statute of the International Criminal Court", A]IL 93 (1999),22 et seq. (28); F. Hoffmeister/ S. Knoke, "Das Vorermittlungsverfahren vor dem Internationalen Strafgerichtshof - Prufstein fur die Effektivitat der neuen Gerichtsbarkeit im Volkerstrafrecht", ZaoRV 59 (1999), 785 et seq. (798); Sadat/ Carden, seenote 87, 417. G.H. Oosthuizen, "Some preliminary remarks on the relationship between the envisaged International Criminal Court and the UN Security Council", NILR 46 (1999) 313 et seq. (326). Cf. article 16 and the ongoing discussions on the crime of aggression. P. Gargiulo, "The Controversial Relationship Between the International Criminal Court and the Security Council", in: Lattanzi/ Schabas, see note 64, 67 et seq. (84).
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tional organisations.F! others correctly contend that decisions of the Security Council under Chapter VII of the UN Charter are binding on international organisations.P? at least inasmuch as they are established by UN Member States.V' since states cannot vest an international organisation with more powers than they themselves have l 74 and must not circumvent their own duties under the UN Charter by creating an international organisation which exercises its duties in contradiction to the United Nations and its organs.I" However, it seems reasonable to say that the Security Council may only "utilise" an international organisation by way of Chapter VII resolutions within the framework set by the treaty establishing that organisatioml-" if one accepts this reasoning, it then follows that, since states have created the ICC as a complementary institution and retained the right to investigate and prosecute unless deemed unwilling or unable by the Court, the Security Council may not ignore that restriction on the Court's scope of action. Having said that, from a more practical viewpoint, it is highly unlikely that the Court would disagree with a determination by the Council in the light of its persuasive weight. It is a different issue whether UN Member States are under an obligation not to bring a challenge to admissibility in case of such determination, given that the Council acts on behalf of all Members States and these are bound by its resolutions. Indeed, the case has been made for such a reading.l" Moreover, a UN Member State may be under the obligation to defer to the jurisdiction of the Court.V" However, even if this were the case, this would not prevent the court from making a de171 172
173
174
175 176
177 178
Arsanjani, see note 167. R.H. Lauwaars, "The Interrelationship Between United Nations Law and the Law of Other International Organizations", Mich. L. Rev. 82 (19831984), 1604 et seq. (1605-1606). As to the situation of non-member states see generally R. Bernhardt, "Article 103", in: B. Simma, The Charter of the United Nations: A Commentary, 2nd edition, Vol. 2, 2002, 1292 et seq. (1298). Cf. E. de Wet, "Judicial Review as an Emerging General Principle of Law and its Implications for the International Court of Justice", NILR 47 (2000),181 et seq. (194). Meiliner, see note 29,105. Ibid. The que stion raises complex questions of the law of int ernational institutions which are beyond the scope of this article. See also: P. Sands/ P. Klein, Bowett's Law of International Institutions, 2001, 460 et seq. Newton, see note 5, 49. Oosthuizen, see note 168, 328.
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termination of inadmissibility proprio motu or pursuant to a challenge by the accused.
5. Burden and Standard of Proof Even though article 17 establishes a general "presumption" for state action, this only emphasises the fact that national authorities should primarily deal with the matter.l/? The negative formulation ("shall determine that a case is inadmissible") does not in and of itself give any indication as to the burden of proof in admissibility proceedings. In order to establish which party bears the onus in admissibility proceedings, one has to look at each subpara. of article 17 (1). The Rules of Procedure and Evidence do not further clarify the matter. The way article 17 (1)(a) and (b) are devised ("unless"), it is apparent that the burden to show the unwillingness or inabilityls? of a state to genuinely investigate or prosecute rests with the Prosecutor.l''! This is true for both article 18 and 19 proceedings before the Court. 182 A presumption for admissibility to be rebutted by the state that claims inadmissibility may be established if that state fails to respond to a request by the Prosecutor under article 18 (5)183 or to provide information concerning its investigation in accordance with Rule 53 of the Rules of Procedure and Evidence. 184 On the other hand, a plain reading of article 17 suggests that the state itself bears the onus to show (a) that it is investigating or prose179
180
181 182
183 184
Cassese speaks of a "presumption in favour of action at the level of states", see note 48. In the context of inability, it should be noted that, even though the concept of "unavailability" of national systems may be interpreted with reference to the unavailability of domestic remedies in the exhaustion of the local remedies rule, the burden of proof still lies on the Prosecutor to show that the national system is not available, as opposed to human rights law, d. Velasquez Rodriguez case, see note 76,305, para. 59. Holmes, see note 15, 677; Bergsmo, see note 57, 43; id., see note 12, 96; Philips, see note 75, 77; Stahn, see note 59, 589; Llewellyn, see note 52, 202. Bourdon/ Duverger, see note 9,100; Ntanda Nsereko, see note 22,117. Holmes, see note 15,682. In the light of the pacta tertiis rule, this can only apply to States parties. It is furthermore questionable whether the suspect or accused should bear the consequences of a failure of a state to comply with its obligations to inform where he or she initiates the admissibility proceedings under article 19 (1)(a).
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curing, or has investigated the case, 185 and (b) that it has jurisdiction over the case, 186 since these requirements are not contained in the phrase commencing with " unless" . The same goes for authorisation proceedings following a request for deferral under 18 (2) and 19. Another interesting question is whether the burden of proof is reversed where it is the suspect or accused that challenges the admis sibility of a case under article 19 (2)(a). It may be argued that art icle 66 (2) effects such reversal. However, article 66 (2) only refers to the question of guilt of the accused, not to issues of admissibility of proceedings; as discussed above, article 19 (2)(a) merely provides the suspect or accused with standing to assert that state sovereignty was infringed. Thus, the accused or suspect bears the onus to show that the state investigating or prosecuting him or her, or having done so, has jurisdiction over the case. As to the standard of proof, the negotiating history evidences that the judges will have to be convinced "beyond reasonable doubt", given that it proved impossible during the negotiations to incorporate a proposal to let reasonable doubts as to th e genuineness of a state's efforts to prosecute suffice. 187
6. Waiver of Complementarity To ask whether a state m ay "waive" its right to investigate and claim complementarity as a bar to admissibility is as much an interesting as a practical legal question, co nsidering that the Office of th e Prosecutor has issued a policy pap er in which it refers to a consensual division of labour and th e sharing of burden between states and the Court,I88 and taking into account that at least one State party has legislated for the possibility to abstain from exercising its jurisdiction in favour of a prosecution by the ICC if such restraint is in th e int erests of jusrice.l"? 185 Fife, see note 21, 72. 186 MeiBner, see note 29, 71. 187 H.P. Kaul, "Towards a Permanent International Criminal Court, Some Observations of a N egotiator ", HRL] 18 (1997), 169 et seq. (172). 188 <www.icc-cpi.int/otp/policy.php>, 4, last paragraph. 189 Section 28 of the German law on co-operation with the International Criminal Court. Cf. C. KreB, "Gesetz iiber die Zusammenarbeit mit dern In rern atio nalcn Strafgerichtshof", in: Griitzn er/ Por z, sec note 149, III 26, MN 15.
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Possible grounds for such a waiver are well conceivable, for instance if the case is of international importance and/or politically too sensitive for the state to handle it itself. 190 If one reads the complementarity principle as a safeguard of national sovereignty in the form of the right to prosecute, then it is indeed convincing to argue that a state, by declining to exercise the right, under general international law, may waive its primacy and so enable the Court to act. 191 If, however, the complementarity principle did not exclusively protect state sovereignty, but also created a right for the individual (cf. article 19 (2)(a)), then such a waiver by a state would not be possible, as the state cannot unilaterally take away a right of a person that it has agreed to in a multilateral instrument. Given that, as concluded above, the Statute does not grant such right to the individual, a waiver should be possible, if only limited to a state's own right to prosecute; other states (also) having jurisdiction may naturally still raise objections. Neither is a "waiver" of complementarity proscribed where a duty to exercise criminal jurisdiction over those responsible for international crimes exists. 192 Handing over the prosecution to the international plane would not amount to a breach of an international obligation since the state in question would fulfil its obligation by ensuring that the Court investigates and adjudicates the crimes, provided that the Court does actually initiate proceedings. In considering the question of waiver, however, one must differentiate between the gravity requirement (article 17 (1)(d)) and ne his in idem (article 17 (1)(c)) on the one hand, and inability or unwillingness on the other hand (article 17 (a) and (b)).193 The requirements of sufficient gravity and ne his in idem are important to the validity of a prosecution before the ICC, and to this extent seem quasi-jurisdictional.l?' Both ne his in idem and the gravity requirement are not limited in their rationale to the protection of the right of states to prosecute. More importantly, ne his in idem reflects a fundamental principle of fair trial of
190 Duffyl Huston, seenote 6,32. 191 Solera, see note 12, 159; Newton, see note 5, 68-69; G. Seidell C. Stahn, "Das Statut des Weltstrafgerichtshofs, Ein Uberblick iiber Entstehung, Inhalt und Bedeutung", Jura 21 (1999), 14 et seq. (16). A waiver of rights is generally recognised under international law: Ch. Rousseau, Droit international public, Vol. 1, 1970, 428 et seq. 192 Seenote 26. 193 L.N. Sadat, Th e Int ernational Criminal Court and the Transformation of
International Law, 2002, 125-126.
194 Ibid.; Meiilner, seenote 29,74.
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the accused recognised under international law.195 It is thus not conceivable that by "waiving" its right to prosecute, a state could vitiate these requirements.l'" The Court would still have to rule the case to be inadmissible. In light of the above, it is also unproblematic to only partially "waive complementarity". If a state can waive a right in its entirety, then it can also decide in how far and to what extent it wants to give up certain rights (argumentum a maiore ad minus). The complementarity principle remains open to a consensual approach inasmuch as it is permissible to let the Court deal with some (e.g. the most serious) cases and leave the investigation of other (lower-level) perpetrators to the national state.
"\T. Conclusion The complementarity regime of the Court has some interesting implications which have not been specifically addressed in this contribution, and that will not be easy to resolve in practice. To name but a few, it is obvious that the Court is completely dependent on the co-operation of states for the proper discharge of its functions . It is less clear how the Court will be able to co-operate with a state that it has just declared unable or unwilling to deal with the case at hand itself (complementarity paradoxl.!'" Another topical issue is how truth and reconciliation commissions, amnesties and pardons should be dealt with. 198 The principle has received much praise and much criticism. For some, it signifies an ingenious solution to a deadlock in negotiations between sovereignty -anxious states and those who wished the Court to take a more active and prominent role. For others, it is an excessive concession to state sovereignty, potentially endangering the success of the endeavour to establish the first permanent international institution with jurisdiction over the most serious international crimes. Only the application of complementarity in practice will show whether it will indeed hamper the Court in pursuing its main goal, to ensure that "the most serious crimes of concern to the international
195 196 197 198
A. Cassese, International Criminal Law, 2003, 319 et seq. MeiBner, see note 29, 73. Cf. Bergsmo, see note 12, 98. Cf. Seibert-Fohr, see note 26, and Robinson, see note 51.
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community as a whole must not go unpunished" and to contribute to the deterrence of future perpetrators from committing international crimes. Thus, without taking sides in this controversy, the essential results of the discussion of complementarity offered here may be summarised as follows: 1. Complementarity is designed to find a balance between the sovereign right of all states to exercise criminal jurisdiction over acts within their jurisdiction and the interest of the international community in the effective prosecution of international crimes, the avoidance of impunity and the deterrence of future crimes within the jurisdiction of the Court. 2. Besides being a diplomatic compromise, it is also a recognition of the fact that the resources of the ICC will be limited and that the Court, due to its permanent and global nature, will not be able to act in every case where a crime within the jurisdiction of the Court is committed. 3. Acknowledging that the effective prosecution of international crimes depends on action on the national level, the Statute operates as a catalyst encouraging states to investigate and prosecute crimes under the jurisdiction of the Court. 4. States may generally waive their right to raise complementarity as a bar to the admissibility of the case. The principle permits a flexible approach to co-operation between states and the ICC. 5. The complementary nature of the ICC requires that the Court, in particular the Office of the Prosecutor, monitors the situation in states with a view to identifying possible situations in which the goals of the Statute are in danger of being disregarded.
Annex
Appeals Division Pre.ident of the ICC and rour other judge.
Offlce of the Registrar of the Trial Division no less than siJ.judges
Trial Chamber three judges .ludgments and Sentences
Pre-Trial Division no less than six judges
Office or CheProseeeter independent rrum .11 other ol'l"n. of the ICC
o Markus Wagner, Diagram of the International Criminal Court's Procedure and Organization
International
Criminal Court
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
Preamble The States Parties to this Statute, Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time, Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, Recognizing that such grave crimes threaten the peace, security and well-being of the world, Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the nationallevel and by enhancing international cooperation, Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes, Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the U nited Nations, Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State, Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with
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jurisdiction over the most serious crimes of concern to the international community as a whole, Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions, Resolved to guarantee lasting respect for and the enforcement of international justice, Have agreed as follows:
Part 1. Establishment of the Court Article 1 The Court An International Criminal Court ("the Court") is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.
Article 2 Relationship of the Court with the United Nations The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf.
Article 3 Seat of the Court 1. The seat of the Court shall be established at The Hague in the Neth-
erlands ("the host State").
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2. The Court shall enter into a headquarters agreement with the host
State, to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf. 3. The Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute.
Article 4 Legal status and powers of the Court 1. The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. 2. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.
Part 2. Jurisdiction, Admissibility and Applicable Law Article 5 Crimes within the jurisdiction of the Court 1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression. 2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.
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Article 6 Genocide For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
Article 7 Crimes against humanity 1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in con-
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nection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.. 2. For the purpose of paragraph 1:
(a) "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; (b) "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; (c) "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; (d) "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; (e) "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; (f) "Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; (g) "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;
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(h) "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; (i) "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 3. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.
Article 8 War crimes 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Wilful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Wilfully causing great suffering, or senous injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
Rom e Statute of the International Criminal Court
(v)
643
Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages. (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; (vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive em-
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blems of the Geneva Conventions, resulting in death or serious personal injury; (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; Intentionally directing attacks against buildings dedi(ix) cated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; Subjecting persons who are in the power of an adverse (x) party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; Killing or wounding treacherously individuals be(xi) longing to the hostile nation or army; Declaring that no quarter will be given; (xii) Destroying or seizing the enemy's property unless (xiii) such destruction or seizure be imperatively demanded by the necessities of war; (xiv) Declaring abolished , suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; Compelling the nationals of the hostile party to take (xv) part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war; Pillaging a town or place, even when taken by assault; (xvi) (xvii) Employing poison or poisoned weapons; (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; Employing bullets which expand or flatten easily in (xix) the human body, such as bullets with a hard envelope
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which does not entirely cover the core or is pierced with incisions; (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the internationallaw of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123; (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; (xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions; (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid
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down their arms and those placed bors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, In particular humiliating and degrading treatment; (iii) Taking of hostages; (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (iii) Intentionally directing attacks against personnel , installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (v)
Pillaging a town or place, even when taken by assault;
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Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;
Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; (ix) Killing or wounding treacherously a combatant adversary; (x) Declaring that no quarter will be given; (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medicalor scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict; (f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature . It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. 3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.
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Article 9 Elements of Crimes 1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two-
thirds majority of the members of the Assembly of States Parties. 2. Amendments to the Elements of Crimes may be proposed by: (a) Any State Party; (b) The judges acting by an absolute majority; (c) The Prosecutor. Such amendments shall be adopted by a two -thirds majority of the members of the Assembly of States Parties. 3. The Elements of Crimes and amendments thereto shall be consistent with this Statute.
Article 10 Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.
Article 11 Jurisdiction ratione temporis 1. The Court has jurisdiction only with respect to crimes committed
after the entry into force of this Statute. 2. If a State becomes a Party to this Statute after its entry into force,
the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.
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Article 12 Preconditions to the exercise of jurisdiction 1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. 2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national. 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.
Article 13 Exercise of jurisdiction The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
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Article 14 Referral of a situation by a State Party 1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. 2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.
Article 15 Prosecutor 1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. 2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. 3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence. 4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case. 5. The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the
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Prosecutor based on new facts or evidence regarding the same situation. 6. If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence.
Article 16 Deferral of investigation or prosecution No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.
Article 17 Issues of admissibility 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court.
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2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a)
The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;
(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c)
The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.
Article 18 Preliminary rulings regarding admissibility 1. When a situation has been referred to the Court pursuant to article 13 (a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation pursuant to articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States.
2. Within one month of receipt of that the Court that it is investigating or others within its jurisdiction with may constitute crimes referred to in
notification, a State may inform has investigated its nationals or respect to criminal acts which article 5 and which relate to the
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information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State's investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation. The Prosecutor's deferral to a State's investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State's unwillingness or inability genuinely to carry out the investigation. The State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with article 82. The appeal may be heard on an expedited basis. When the Prosecutor has deferred an investigation in accordance with paragraph 2, the Prosecutor may request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions. States Parties shall respond to such requests without undue delay. Pending a ruling by the Pre-Trial Chamber, or at any time when the Prosecutor has deferred an investigation under this article, the Prosecutor may, on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative steps for the purpose of preserving evidence where there is a unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available. A State which has challenged a ruling of the Pre-Trial Chamber under this article may challenge the admissibility of a case under article 19 on the grounds of additional significant facts or significant change of circumstances.
Article 19 Challenges to the jurisdiction of the Court or the admissibility of a case 1. The Court shall satisfy itself that it has jurisdiction in any case
brought before it. The Court may, on its own motion, determ ine the admissibility of a case in accordance with article 17.
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2. Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by: (a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58; (b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or (c) A State from which acceptance of jurisdiction is required under article 12. 3. The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court. The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1 (c). 4. A State referred to in paragraph 2 (b) and (c) shall make a challenge at the earliest opportunity. 5. Prior to the confirmation of the charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber. After confirmation of the charges, they shall be referred to the Trial Chamber. Decisions with respect to jurisdiction or admissibility may be appealed to the Appeals Chamber in accordance with article 82. 6. If a challenge is made by a State referred to in paragraph 2 (b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17. 7. Pending a ruling by the Court, the Prosecutor may seek authority from the Court: (a) To pursue necessary investigative steps of the kind referred to in article 18, paragraph 6;
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(b) To take a statement or testimony from a witness or complete the collection and examination of evidence which had begun prior to the making of the challenge; and (c) In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58. 9. The making of a challenge shall not affect the validity of any act performed by the Prosecutor or any order or warrant issued by the Court prior to the making of the challenge. 10. If the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17. 11. If the Prosecutor, having regard to the matters referred to in article 17, defers an investigation, the Prosecutor may request that the relevant State make available to the Prosecutor information on the proceedings . That information shall, at the request of the State concerned, be confidential. If the Prosecutor thereafter decides to proceed with an investigation, he or she shall notify the State to which deferral of the proceedings has taken place.
Article 20 Ne his in idem 1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court. 2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court. 3. No person who has been tried by another court for conduct also proscribed under article 6,7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
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(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
Article 21 Applicable law 1. The Court shall apply:
(a) In the first place, this Statute, Elements of Cr imes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed confl ict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with internationallaw and internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status .
Part 3. General Principles of Criminal Law Article 22 Nullum crimen sine lege
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1. A person shall not be criminally responsible under this Statute un-
less the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.
Article 23 Nulla poena sine lege
A person convicted by the Court may be punished only in accordance with this Statute.
Article 24 1. No person shall be criminally responsible under this Statute for
conduct prior to the entry into force of the Statute. 2. In the event of a change in the law applicable to a given case prior to
a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.
Article 2S Individual criminal responsibility 1. The Court shall have jurisdiction over natural persons pursuant to this Statute. 2. A person who commits a crime within the jurisdiction of the Court
shall be individually responsible and liable for punishment in accordance with this Statute. 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
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(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsibl e; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime; (e) In respect of the crime of genocide, directly and publicly incites others to commit genocide; (f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. 4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.
Article 26 Exclusion of jurisdiction over persons under eighteen The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.
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Article 27 Irrelevance of official capacity 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
Article 28 Responsibility of commanders and other superiors In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the .jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecunon.
(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by
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subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded informat ion which clearly indicated , that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective respons ibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
Article 29 Non-applicability of statute of limitations The crimes within the jur isdiction of the Court shall not be subject to any statute of limitations.
Article 30 Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for puni shment for a crime with in the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of th is article, " knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary cours e of events. "Know " and "knowingly" shall be construed accordingly.
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Article 31 Grounds for excluding criminal responsibility 1. In addition
to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct:
(a) The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law; (b) The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxi cation, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court; (c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph; (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person's control.
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2. The Court shall det ermine the applicability of the grounds for ex-
cluding criminal responsibility provided for in this Statut e to the case before it. 3. At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in para graph 1 where such a ground is derived from applicable law as set forth in article 21. The proc edures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidenc e.
Article 32 Mistake of fact or mistake of law 1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding cr iminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33.
Article 33 Superior orders and prescription of law 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Go vernment or of
a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes
against humanity are manifestly unlawful.
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Part 4. Composition and Administration of the Court Article 34 Organs of the Court The Court shall be composed of the following organs: (a) The Presidency; (b) An Appeals Division, a Trial Division and a Pre-Trial Division; (c) The Office of the Prosecutor; (d) The Registry.
Article 35 Service of judges 1. All judges shall be elected as full-time members of the Court and shall be available to serve on that basis from the commencement of their terms of office. 2. The judges composing the Presidency shall serve on a fullntime basis as soon as they are elected. 3. The Presidency may, on the basis of the workload of the Court and in consultation with its members, decide from time to time to what extent the remaining judges shall be required to serve on a full-time basis. Any such arrangement shall be without prejudice to the provisions of article 40. 4. The financial arrangements for judges not required to serve on a full-time basis shall be made in accordance with article 49.
Article 36 Qualifications, nomination and election of judges 1. Subject to the provisions of paragraph 2, there shall be 18 judges of the Court. 2. (a) The Presidency, acting on behalf of the Court, may propose an increase in the number of judges specified in paragraph 1, indicating the reasons why this is considered necessary and appro-
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priate. The Registrar shall promptly circulate any such proposal to all States Parties. (b) Any such proposal shall then be considered at a meeting of the Assembly of States Parties to be convened in accordance with article 112. The proposal shall be considered adopted if approved at the meeting by a vote of two thirds of the members of the Assembly of States Parties and shall enter into force at such time as decided by the Assembly of States Parties. (c) (i)
Once a proposal for an increase in the number of judges has been adopted under subparagraph (b), the election of the additional judges shall take place at the next session of the Assembly of States Parties in accordance with paragraphs 3 to 8, and article 37, paragraph 2;
(ii) Once a proposal for an increase in the number of judges has been adopted and brought into effect under subparagraphs (b) and (c) (i), it shall be open to the Presidency at any time thereafter, if the workload of the Court justifies it, to propose a reduction in the number of judges, provided that the number of judges shall not be reduced below that specified in paragraph 1. The proposal shall be dealt with in accordance with the procedure laid down in subparagraphs (a) and (b). In the event that the proposal is adopted, the number of judges shall be progressively decreased as the terms of office of serving judges expire, until the necessary number has been reached.
3. (a) The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices. (b) Every candidate for election to the Court shall: (i)
Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or
(ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a profes-
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sional legal capacity which is of relevance to the judicial work of the Court; (c) Every candidate for election to the Court shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court.
4. (a) Nominations ot candidates for election to the Court may be made by any State Party to this Statute, and shall be made either: (i) By the procedure for the nomination of candidates for appointment to the highest judicial offices in the State in question; or (ii) By the procedure provided for the nomination of candidates for the International Court of Justice in the Statute of that Court. (iii) Nominations shall be accompanied by a statement in the necessary detail specifying how the candidate fulfils the requirements of paragraph 3. (b) Each State Party may put forward one candidate for any given election who need not necessarily be a national of that State Party but shall in any case be a national of a State Party. (c) The Assembly of States Parties may decide to establish, if appropriate, an Advisory Committee on nominations. In that event, the Committee's composition and mandate shall be established by the Assembly of States Parties. 5. For the purposes of the election, there shall be two lists of candidates: List A containing the names of candidates with the qualifications specified in paragraph 3 (b) (i); and List B containing the names of candidates with the qualifications specified in paragraph 3 (b) (ii). A candidate with sufficient qualifications for both lists may choose on which list to appear. At the first election to the Court, at least nine judges shall be elected from list A and at least five judges from list B. Subsequent elections shall be so organized as to maintain the equivalent proportion on the Court of judges qualified on the two lists. 6.
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(a) The judges shall be elected by secret ballot at a meeting of the Assembly of States Parties convened for that purpose under article 112. Subject to paragraph 7, the persons elected to the Court shall be the 18 candidates who obtain the highest number of votes and a two-thirds majority of the States Parties present and voting. (b) In the event that a sufficient number of judges is not elected on the first ballot, successive ballots shall be held in accordance with the procedures laid down in subparagraph (a) until the remaining places have been filled. 7. No two judges may be nationals of the same State. A person who, for the purposes of membership of the Court, could be regarded as a national of more than one State shall be deemed to be a national of the State in which that person ordinarily exercises civil and political rights. 8.
(a) The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for: (i) The representation of the principal legal systems of the world; (ii) Equitable geographical representation; and (iii) A fair representation of female and male judges. (b) States Parties shall also take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children. 9.
(a) Subject to subparagraph (b), judges shall hold office for a term of nine years and, subject to subparagraph (c) and to article 37, paragraph 2, shall not be eligible for re-election. (b) At the first election, one third of the judges elected shall be selected by lot to serve for a term of three years; one third of the judges elected shall be selected by lot to serve for a term of six years; and the remainder shall serve for a term of nine years. (c) A judge who is selected to serve for a term of three years under subparagraph (b) shall be eligible for re-election for a full term . 10.Notwithstanding paragraph 9, a judge assigned to a Trial or Appeals Chamber in accordance with article 39 shall continue in office to
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complete any trial or appeal the hearing of which has already commenced before that Chamber.
Article 37 Judicial vacancies 1. In the event of a vacancy, an election shall be held in accordance with article 36 to fill the vacancy. 2. A judge elected to fill a vacancy shall serve for the remainder of the predecessor's term and, if that period is three years or less, shall be eligible for re-election for a full term under article 36.
Article 38 The Presidency 1. The President and the First and Second Vice-Presidents shall be elected by an absolute majority of the judges. They shall each serve for a term of three years or until the end of their respective terms of office as judges, whichever expires earlier, They shall be eligible for re-election once. 2. The First Vice-President shall act in place of the President in the event that the President is unavailable or disqualified. The Second Vice-President shall act in place of the President in the event that both the President and the First Vice-President are unavailable or disqualified. 3. The President, together with the First and Second Vice-Presidents, shall constitute the Presidency, which shall be responsible for: (a) The proper administration of the Court, with the exception of the Officc of the Prosecutor; and (b) The other functions conferred upon it in accordance with this Statute. 4. In discharging its responsibility under paragraph 3 (a), the Presi-
dency shall coordinate with and seek the concurrence of the Prosecutor on all matters of mutual concern.
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Article 39 Chambers 1. As soon as possible after the election of the judges, the Court shall organize itself into the divisions specified in article 34, para-
graph (b). The Appeals Division shall be composed of the President and four other judges, the Trial Division of not less than six judges and the Pre-Trial Division of not less than six judges. The assignment of judges to divisions shall be based on the nature of the func tions to be performed by each division and the qualifications and experience of the judges elected to the Court, in such a way that each division shall contain an appropriate combination of expertise in criminal law and procedure and in international law. The Trial and Pre-Trial Divisions shall be composed predominantly of judges with criminal trial experience. 2.
(a) The judicial functions of the Court shall be carried out in each division by Chambers. (b) (i) The Appeals Chamber shall be composed of all the judges of the Appeals Division; (ii) The functions of the Trial Chamber shall be carried out by three judges of the Trial Division; (iii) The functions of the Pre-Trial Chamber shall be carried out either by three judges of the Pre-Trial Division or by a single judge of that division in accordance with this Statute and the Rules of Procedure and Evidence; (c) Nothing in this paragraph shall preclude the simultaneous constitution of more than one Trial Chamber or Pre-Trial Chamber when the efficient management of the Court's workload so reqUlres.
3. (a) Judges assigned to the Trial and Pre-Trial Divisions shall serve in those divisions for a period of three years, and thereafter until the completion of any case the hearing of which has already commenced in the division concerned. (b) Judges assigned to the Appeals Division shall serve in that division for their entire term of office.
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4. Judges assigned to the Appeals Division shall serve only in that division. Nothing in this article shall, however, preclude the temporary attachment of judges from the Trial Division to the Pre-Trial Division or vice versa, if the Presidency considers that the efficient management of the Court's workload so requires, provided that under no circumstances shall a judge who has participated in the pre-trial phase of a case be eligible to sit on the Trial Chamber hearing that case.
Article 40 Independence of the judges 1. The judges shall be independent in the performance of their functions. 2. Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence. 3. Judges required to serve on a full-time basis at the seat of the Court shall not engage in any other occupation of a professional nature. 4. Any question regarding the application of paragraphs 2 and 3 shall be decided by an absolute majority of the judges. Where any such question concerns an individual judge, that judge shall not take part in the decision.
Article 41 Excusing and disqualification of judges 1. The Presidency may, at the request of a judge, excuse that judge
from the exercise of a function under this Statute, in accordance with the Rules of Procedure and Evidence.
2. (a) A judge shall not participate in any case in wh ich his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investi-
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gated or prosecuted. A judge shall also be disqualified on such other grounds as may be provided for in the Rules of Procedure and Evidence. (b) The Prosecutor or the person being investigated or prosecuted may request the disqualification of a judge under this paragraph. (c) Any question as to the disqualification of a judge shall be decided by an absolute majority of the judges. The challenged judge shall be entitled to present his or her comments on the matter, but shall not take part in the decision.
Article 42 The Office of the Prosecutor 1. The Office of the Prosecutor shall act independently as a separate organ of the Court, It shall be responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court. A member of the Office shall not seek or act on instructions from any external source. 2. The Office shall be headed by the Prosecutor. The Prosecutor shall have full authority over the management and administration of the Office, including the staff, facilities and other resources thereof. The Prosecutor shall be assisted by one or more Deputy Prosecutors, who shall be entitled to carry out any of the acts required of the Prosecutor under this Statute. The Prosecutor and the Deputy Prosecutors shall be of different nationalities. They shall serve on a full-time basis. 3. The Prosecutor and the Deputy Prosecutors shall be persons of high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases. They shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. 4. The Prosecutor shall be elected by secret ballot by an absolute majority of the members of the Assembly of States Parties. The Deputy Prosecutors shall be elected in the same way from a list of candidates provided by the Prosecutor. The Prosecutor shall nominate three candidates for each position of Deputy Prosecutor to be filled. Unless a shorter term is decided upon at the time of their election, the
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Prosecutor and the Deputy Prosecutors shall hold office for a term of nine years and shall not be eligible for re-election. Neither the Prosecutor nor a Deputy Prosecutor shall engage in any activity which is likely to interfere with his Or her prosecutorial functions or to affect confidence in his or her independence. They shall not engage in any other occupation of a professional nature. The Presidency may excuse the Prosecutor or a Deputy Prosecutor, at his or her request, from acting in a particular case. Neither the Prosecutor nor a Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground. They shall be disqualified from a case in accordance with this paragraph if, inter alia, they have previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted. Any question as to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by the Appeals Chamber. (a) The person being investigated or prosecuted may at any time request the disqualification of the Prosecutor Or a Deputy Prosecutor on the grounds set out in this article; (b) The Prosecutor or the Deputy Prosecutor, as appropriate, shall be entitled to present his or her comments on the matter; The Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children.
Article 43 The Registry 1. The Registry shall be responsible for the non-judicial aspects of the
administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor in accordance with article 42. 2. The Registry shall be headed by the Registrar, who shall be the prin-
cipal administrative officer of the Court. The Registrar shall exercise his or her functions under the authority of the President of the Court.
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3. The Registrar and the Deputy Registrar shall be persons of high
moral character, be highly competent and have an excellent knowledge of and be fluent in at least one of the working languages of the Court. 4. The judges shall elect the Registrar by an absolute majority by secret ballot, taking into account any recommendation by the Assembly of States Parties. If the need arises and upon the recommendation of the Registrar, the judges shall elect, in the same manner, a Deputy Registrar. s. The Registrar shall hold office for a term of five years, shall be eligible for re-election once and shall serve on a full-time basis. The Deputy Registrar shall hold office for a term of five years or such shorter term as may be decided upon by an absolute majority of the judges, and may be elected on the basis that the Deputy Registrar shall be called upon to serve as required. 6. The Registrar shall set up 'i!. Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.
Article 44
Staff 1. The Prosecutor and the Registrar shall appoint such qualified staff as
may be required to their respective offices. In the case of the Prosecutor, this shall include the appointment of investigators. 2. In the employment of staff, the Prosecutor and the Registrar shall ensure the highest standards of efficiency, competency and integrity, and shall have regard, mutatis mutandis, to the criteria set forth in article 36, paragraph 8. 3. The Registrar, with the agreement of the Presidency and the Prosecutor, shall propose Staff Regulations which include the terms and conditions upon which the staff of the Court shall be appointed, remunerated and dismissed. The Staff Regulations shall be approved by the Assembly of States Parties.
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4. The Court may, in exceptional circumstances, employ the expertise
of gratis personnel offered by States Parties, intergovernmental organizations or non-governmental organizations to assist with the work of any of the organs of the Court. The Prosecutor may accept any such offer on behalf of the Office of the Prosecutor. Such gratis personnel shall be employed in accordance with guidelines to be established by the Assembly of States Parties.
Article 45 Solemn undertaking
Before taking up their respective duties under this Statute, the judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall each make a solemn undertaking in open court to exercise his or her respective functions impartially and conscientiously.
Article 46 Removal from office 1. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the
Deputy Registrar shall be removed from office if a decision to this effect is made in accordance with paragraph 2, in cases where that person: (a) Is found to have committed serious misconduct or a serious breach of his or her duties under this Statute, as provided for in the Rules of Procedure and Evidence; or (b) Is unable to exercise the functions required by this Statute. 2. A decision as to the removal from office of a judge, the Prosecutor or a Deputy Prosecutor under paragraph 1 shall be made by the Assembly of States Parties, by secret ballot: (a) In the case of a judge, by a two-thirds majority of the States Parties upon a recommendation adopted by a two-thirds majority of the other judges; (b) In the case of the Prosecutor, by an absolute majority of the States Parties;
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(c) In the case of a Deputy Prosecutor, by an absolute majority of the States Parties upon the recommendation of the Prosecutor. 3. A decision as to the removal from office of the Registrar or Deputy Registrar shall be made by an absolute majority of the judges. 4. A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar whose conduct or ability to exercise the functions of the office as required by this Statute is challenged under this article shall have full opportunity to present and receive evidence and to make submissions in accordance with the Rules of Procedure and Evidence. The person in question shall not otherwise participate in the consideration of the matter.
Article 47 Disciplinary measures A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar who has committed misconduct of a less serious nature than that set out in article 46, paragraph 1, shall be subject to disciplinary measures, in accordance with the Rules of Procedure and Evidence.
Article 48 Privileges and immunities 1. The Court shall enjoy in the territory of each State Party such privileges and immunities as are necessary for the fulfilment of its purposes. 2. The judges, the Prosecutor, the Deputy Prosecutors and the Registrar shall, when engaged on or with respect to the business of the Court, enjoy the same privileges and immunities as are accorded to heads of diplomatic missions and shall, after the expiry of their terms of office, continue to be accorded immunity from legal process of every kind in respect of words spoken or written and acts performed by them in their official capacity. 3. The Deputy Registrar, the staff of the Office of the Prosecutor and the staff of the Registry shall enjoy the privileges and immunities and facilities necessary for the performance of their functions, in ac-
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cordance with the agreement on the privileges and immunities of the Court. 4. Counsel, experts, witnesses or any other person required to be present at the seat of the Court shall be accorded such treatment as is necessary for the proper functioning of the Court, in accordance with the agreement on the privileges and immunities of the Court. 5. The privileges and immunities of: (a) A judge or the Prosecutor may be waived by an absolute majority of the judges; (b) The Registrar may be waived by the Presidency; (c) The Deputy Prosecutors and staff of the Office of the Prosecutor may be waived by the Prosecutor; (d) The Deputy Registrar and staff of the Registry may be waived by the Registrar.
Article 49 Salaries, allowances and expenses The judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall receive such salaries, allowances and expenses as may be decided upon by the Assembly of States Parties. These salaries and allowances shall not be reduced during their terms of office.
Article 50 Official and working languages 1. The official languages of the Court shall be Arabic, Chinese, English, French, Russian and Spanish. The judgements of the Court, as well as other decisions resolving fundamental issues before the Court, shall be published in the official languages. The Presidency shall, in accordance with the criteria established by the Rules of Procedure and Evidence, determine which decisions may be considered as resolving fundamental issues for the purposes of this paragraph. 2. The working languages of the Court shall be English and French. The Rules of Procedure and Evidence shall determine the cases in which other official languages may be used as working languages.
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3. At the request of any party to a proceeding or a State allowed to in-
tervene in a proceeding, the Court shall authorize a language other than English or French to be used by such a party or State, provided that the Court considers such authorization to be adequately justified.
Article 51 Rules of Procedure and Evidence 1. The Rules of Procedure and Evidence shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties. 2. Amendments to the Rules of Procedure and Evidence may be proposed by: (a) Any State Party; (b) The judges acting by an absolute majority; or (c) The Prosecutor. Such amendments shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties. 3. After the adoption of the Rules of Procedure and Evidence, in urgent cases where the Rules do not provide for a specific situation before the Court, the judges may, by a two-thirds majority, draw up provisional Rules to be applied until adopted, amended or rejected at the next ordinary or special session of the Assembly of States Parties. 4. The Rules of Procedure and Evidence, amendments thereto and any provisional Rule shall be consistent with this Statute. Amendments to the Rules of Procedure and Evidence as well as provisional Rules shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted or who has been convicted. 5. In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.
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Article 52 Regulations of the Court 1. The judges shall, in accordance with this Statute and the Rules of Procedure and Evidence, adopt, by an absolute majority, the Regulations of the Court necessary for its routine functioning. 2. The Prosecutor and the Registrar shall be consulted in the elaboration of the Regulations and any amendments thereto. 3. The Regulations and any amendments thereto shall take effect upon adoption unless otherwise decided by the judges. Immediately upon adoption, they shall be circulated to States Parties for comments. If within six months there are no objections from a majority of States Parties, they shall remain in force.
Part 5. Investigation and Prosecution Article 53 Initiation of an investigation 1. The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether: (a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (b) The case is or would be admissible under article 17; and (c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber. 2. If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because:
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(a) There is not a sufficient legal or factual basis to seek a warrant or summons under article 58; (b) The case is inadmissible under article 17; or (c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime; the Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under article 14 or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion. 3.
(a) At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the PreTrial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision. (b) In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the PreTrial Chamber. 4. The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information .
Article 54 Duties and powers of the Prosecutor with respect to investigations 1. The Prosecutor shall: (a) In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally; (b) Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in ar-
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ticle 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children; and (c) Fully respect the rights of persons arising under this Statute. 2. The Prosecutor may conduct investigations on the territory of a State: (a) In accordance with the provisions of Part 9; or (b) As authorized by the Pre-Trial Chamber under article 57, paragraph 3 (d). 3. The Prosecutor may: (a) Collect and examine evidence; (b) Request the presence of and question persons being investigated, victims and witnesses; (c) Seek the cooperation of any State or intergovernmental organization or arrangement in accordance with its respective competence and/or mandate; (d) Enter into such arrangements or agreements, not inconsistent with this Statute, as may be necessary to facilitate the cooperation of a State, intergovernmental organization or person; (e) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents; and (f) Take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence.
Article 55 Rights of persons during an investigation 1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt; (b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
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(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and (d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute. 2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned: (a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court; (b) To remain silent, without such silence being a consideration in the determination of guilt or innocence; (c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and (d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.
Article 56 Role of the Pre-Trial Chamber in relation to a unique investigative opportunity 1.
(a) Where the Prosecutor considers an investigation to present a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for the purposes of a trial, the Prosecutor shall so inform the Pre-Trial Chamber.
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(b) In that case, the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence. (c) Unless the Pre-Trial Chamber orders otherwise, the Prosecutor shall provide the relevant information to the person who has been arrested or appeared in response to a summons in connec tion with the investigation referred to in subparagraph (a), in order that he or she may be heard on the matter. 2. The measures referred to in paragraph 1 (b) may include: (a) Making recommendations or orders regarding procedures to be followed; (b) Directing that a record be made of the proceedings; (c) Appointing an expert to assist; (d) Authorizing counsel for a person who has been arrested, or appeared before the Court in response to a summons, to participate, or where there has not yet been such an arrest or appearance or counsel has not been designated, appointing another counsel to attend and represent the interests of the defence; (e) Naming one of its members or, if necessary, another available judge of the Pre-Trial or Trial Division to observe and make recommendations or orders regarding the collection and preservation of evidence and the questioning of persons; (f) Taking such other action as may be necessary to collect or preserve evidence. 3.
(a) Where the Prosecutor has not sought measures pursuant to this article but the Pre-Trial Chamber considers that such measures are required to preserve evidence that it deems would be essential for the defence at trial, it shall consult with the Prosecutor as to whether there is good reason for the Prosecutor's failure to request the measures. If upon consultation, the Pre-Trial Chamber concludes that the Prosecutor's failure to request such measures is unjustified, the Pre-Trial Chamber may take such measures on its own initiative. (b) A decision of the Pre-Trial Chamber to act on its own initiative under this paragraph may be appealed by the Prosecutor. The appeal shall be heard on an expedited basis.
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4. The admissibility of evidence preserved or collected for trial pursu-
ant to this article, or the record thereof, shall be governed at trial by article 69, and given such weight as determined by the Trial Chamber.
Article 57 Functions and powers of the Pre-Trial Chamber 1. Unless otherwise provided in this Statute, the Pre-Trial Chamber shall exercise its functions in accordance with the provisions of this article. 2. (a) Orders or rulings of the Pre-Trial Chamber issued under articles 15,18,19,54, paragraph 2,61, paragraph 7, and 72 must be concurred in by a majority of its judges. (b) In all other cases, a single judge of the Pre-Trial Chamber may exercise the functions provided for in this Statute, unless otherwise provided for in the Rules of Procedure and Evidence or by a majority of the Pre-Trial Chamber. 3. In addition to its other functions under this Statute, the Pre-Trial Chamber may: (a) At the request of the Prosecutor, issue such orders and warrants as may be required for the purposes of an investigation; (b) Upon the request of a person who has been arrested or has appeared pursuant to a summons under article 58, issue such orders, including measures such as those described in article 56, or seek such cooperation pursuant to Part 9 as may be necessary to assist the person in the preparation of his or her defence; (c) Where necessary, provide for the protection and privacy of victims and witnesses, the preservation of evidence, the protection of persons who have been arrested or appeared in response to a summons, and the protection of national security information; (d) Authorize the Prosecutor to take specific investigative steps within the territory of a State Party without having secured the cooperation of that State under Part 9 if, whenever possible having regard to the views of the State concerned, the Pre-Trial Chamber has determined in that case that the State is clearly unable to execute a request for cooperation due to the unavailabil-
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ity of any authority or any component of its judicial system competent to execute the request for cooperation under Part 9. (e) Where a warrant of arrest or a summons has been issued under article 58, and having due regard to the strength of the evidence and the rights of the parties concerned, as provided for in this Statute and the Rules of Procedure and Evidence, seek the cooperation of States pursuant to article 93, paragraph 1 (k), to take protective measures for the purpose of forfeiture, in particular for the ultimate benefit of victims.
Article 58 Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear 1. At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that: (a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b) The arrest of the person appears necessary: (i) To ensure the person's appearance at trial, (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings , or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances. 2. The application of the Prosecutor shall contain: (a) The name of the person and any other relevant identifying information; (b) A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed; (c) A concise statement of the facts which are alleged to constitute those crimes;
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(d) A summary of the evidence and any other information which establish reasonable grounds to believe that the person committed those crimes; and (e) The reason why the Prosecutor believes that the arrest of the person is necessary. The warrant of arrest shall contain: (a) The name of the person and any other relevant identifying information; (b) A specific reference to the crimes within the jurisdiction of the Court for which the person's arrest is sought; and (c) A concise statement of the facts which are alleged to constitute those crimes. The warrant of arrest shall remain in effect until otherwise ordered by the Court. On the basis of the warrant of arrest, the Court may request the provisional arrest or the arrest and surrender of the person under Part 9. The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest by modifying or adding to the crimes specified therein. The Pre-Trial Chamber shall so amend the warrant if it is satisfied that there are reasonable grounds to believe that the person committed the modified or additional crimes. As an alternative to seeking a warrant of arrest, the Prosecutor may submit an application requesting that the Pre-Trial Chamber issue a summons for the person to appear. If the Pre-Trial Chamber is satisfied that there are reasonable grounds to believe that the person committed the crime alleged and that a summons is sufficient to ensure the person's appearance, it shall issue the summons, with or without conditions restricting liberty (other than detention) if provided for by national law, for the person to appear. The summons shall contain: (a) The name of the person and any other relevant identifying information; (b) The specified date on which the person is to appear; (c) A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed; and (d) A concise statement of the facts which are alleged to constitute the crime.
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The summons shall be served on the person.
Article 59 Arrest proceedings in the custodial State 1. A State Party which 'has received a request for provisional arrest or
for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9. 2. A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that: (a) The warrant applies to that person; (b) The person has been arrested in accordance with the proper process; and (c) The person's rights have been respected. 3. The person arrested shall have the right to apply to the competent
authority in the custodial State for interim release pending surrender. 4. In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b). 5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make recommendations to the competent authority in the custodial State. The competent authority in the custodial State shall give full consideration to such recommendations, including any recommendations on measures to prevent the escape of the person, before rendering its decision. 6. If the person is granted interim release, the Pre-Trial Chamber may
request periodic reports on the status of the interim release. 7. Once ordered to be surrendered by the custodial State, the person
shall be delivered to the Court as soon as possible.
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Article 60 Initial proceedings before the Court 1. Upon the surrender of the person to the Court, or the person's appearance before the Court voluntarily or pursuant to a summons, the Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed, and of his or her rights under this Statute, including the right to apply for interim release pending trial. 2. A person subject to a warrant of arrest may apply for interim release pending trial. If the Pre-Trial Chamber is satisfied that the conditions set forth in article 58, paragraph 1, are met, the person shall continue to be detained. If it is not so satisfied, the Pre-Trial Chamber shall release the person, with or without conditions. 3. The Pre-Trial Chamber shall periodically review its ruling on the release or detention of the person, and may do so at any time on the request of the Prosecutor or the person. Upon such review, it may modify its ruling as to detention, release or conditions of release, if it is satisfied that changed circumstances so require. 4. The Pre-Trial Chamber shall ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If such delay occurs, the Court shall consider releasing the person, with or without conditions. 5. If necessary, the Pre-Trial Chamber may issue a warrant of arrest to secure the presence of a person who has been released.
Article 61 Confirmation of the charges before trial 1. Subject to the provisions of paragraph 2, within a reasonable time after the person's surrender or voluntary appearance before the Court, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her counsel. 2. The Pre-Trial Chamber may, upon request of the Prosecutor or on its own motion, hold a hearing in the absence of the person charged
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to confirm the charges on which the Prosecutor intends to seek trial when the person has: (a) Waived his or her right to be present; or
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(b) Fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before the Court and to inform the person of the charges and that a hearing to confirm those charges will be held. In that case, the person shall be represented by counsel where the Pre-Trial Chamber determines that it is in the interests of justice. Within a reasonable time before the hearing, the person shall: (a) Be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial; and (b) Be informed of the evidence on which the Prosecutor intends to rely at the hearing. (c) The Pre-Trial Chamber may issue orders regarding the disclosure of information for the purposes of the hearing. Before the hearing, the Prosecutor may continue the investigation and may amend or withdraw any charges. The person shall be given reasonable notice before the hearing of any amendment to or withdrawal of charges. In case of a withdrawal of charges, the Prosecutor shall notify the Pre-Trial Chamber of the reasons for the withdrawal. At the hearing, the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. The Prosecutor may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial. At the hearing, the person may: (a) Object to the charges; (b) Challenge the evidence presented by the Prosecutor; and (c) Present evidence.
7. The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. Based on its determination, the Pre-Trial Chamber shall:
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(a) Confirm those charges in relation to which it has determined that there is sufficient evidence, and commit the person to a Trial Chamber for trial on the charges as confirmed; (b) Decline to confirm those charges in relation to which it has determined that there is insufficient evidence; (c) Adjourn the hearing and request the Prosecutor to consider: (i) Providing further evidence or conducting further investigation with respect to a particular charge; or (ii) Amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court. 8. Where the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall not be precluded from subsequently requesting its confirmation if the request is supported by additional evidence. 9. After the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges. If the Prosecutor seeks to add additional charges or to substitute more serious charges, a hearing under this article to confirm those charges must be held. After commencement of the trial, the Prosecutor may, with the permission of the Trial Chamber, withdraw the charges. 10. Any warrant previously issued shall cease to have effect with respect to any charges which have not been confirmed by the PreTrial Chamber or which have been withdrawn by the Prosecutor. 11. Once the charges have been confirmed in accordance with this article, the Presidency shall constitute a Trial Chamber which, subject to paragraph 9 and to article 64, paragraph 4, shall be responsible for the conduct of subsequent proceedings and may exercise any function of the Pre-Trial Chamber that is relevant and capable of application in those proceedings.
Part 6. The Trial Article 62 Place of trial Unless otherwise decided, the place of the trial shall be the seat of the Court.
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Article 63 Trial in the presence of the accused 1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt
the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required . Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.
Article 64 Functions and powers of the Trial Chamber 1. The functions and powers of the Trial Chamber set out in this article shall be exercised in accordance with this Statute and the Rules of Procedure and Evidence. 2. The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses. 3. Upon assignment of a case for trial in accordance with this Statute, the Trial Chamber assigned to deal with the case shall: (a) Confer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings; (b) Determine the language or languages to be used at trial; and (c) Subject to any other relevant provisions of this Statute, provide for disclosure of documents or information not previously disclosed, sufficiently in advance of the commencement of the trial to enable adequate preparation for trial. 4. The Trial Chamber may, if necessary for its effective and fair functioning, refer preliminary issues to the Pre-Trial Chamber or, if necessary, to another available judge of the Pre-Trial Division. 5. Upon notice to the parties, the Trial Chamber may, as appropriate, direct that there be joinder or severance in respect of charges against more than one accused.
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6. In performing its functions prior to trial or during the course of a trial, the Trial Chamber may, as necessary: (a) Exercise any functions of the Pre-Trial Chamber referred to in article 61, paragraph 11; (b) Require the attendance and testimony of witnesses and production of documents and other evidence by obtaining, if necessary, the assistance of States as provided in this Statute; (c) Provide for the protection of confidential information; (d) Order the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties; (e) Provide for the protection of the accused, witnesses and victims; and (f) Rule on any other relevant matters. 7. The trial shall be held in public. The Trial Chamber may, however, determine that special circumstances require that certain proceedings be in closed session for the purposes set forth in article 68, or to protect confidential or sensitive information to be given in evidence. 8.
(a) At the commencement of the trial, the Trial Chamber shall have read to the accused the charges previously confirmed by the Pre-Trial Chamber. The Trial Chamber shall satisfy itself that the accused understands the nature of the charges. It shall afford him or her the opportunity to make an admission of guilt in accordance with article 65 or to plead not guilty. (b) At the trial, the presiding judge may give directions for the conduct of proceedings, including to ensure that they are conducted in a fair and impartial manner. Subject to any directions of the presiding judge, the parties may submit evidence in accordance with the provisions of this Statute. 9. The Trial Chamber shall have, inter alia, the power on application of a party or on its own motion to: (a) Rule on the admissibility or relevance of evidence; and (b) Take all necessary steps to maintain order in the course of a hearing. 10.The Trial Chamber shall ensure that a complete record of the trial, which accurately reflects the proceedings, is made and that it is maintained and preserved by the Registrar.
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Article 65 Proceedings on an admission of guilt 1. Where the accused makes an admission of guilt pursuant to article 64, paragraph 8 (a), the Trial Chamber shall determine whether: (a) The accused understands the nature and consequences of the admission of guilt; (b) The admission is voluntarily made by the accused after sufficient consultation with defence counsel; and (c) The admission of guilt is supported by the facts of the case that are contained in: (i) The charges brought by the Prosecutor and admitted by the accused; (ii) Any materials presented by the Prosecutor which supplement the charges and which the accused accepts; and (iii) Any other evidence, such as the testimony of witnesses, presented by the Prosecutor or the accused. 2. Where the Trial Chamber is satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt, together with any additional evidence presented, as establishing all the essential facts that are required to prove the crime to which the admission of guilt relates, and may convict the accused of that crime. 3. Where the Trial Chamber is not satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt as not having been made, in which case it shall order that the trial be continued under the ordinary trial procedures provided by this Statute and may remit the case to another Trial Chamber. 4. Where the Trial Chamber is of the opinion that a more complete presentation of the facts of the case is required in the interests of justice, in particular the interests of the victims, the Trial Chamber may: (a) Request the Prosecutor to present additional evidence, including the testimony of witnesses; or (b) Order that the trial be continued under the ordinary trial procedures provided by this Statute, in which case it shall consider the admission of guilt as not having been made and may remit the case to another Trial Chamber.
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Any discussions between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court.
Article 66 Presumption of innocence 1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. 2. The onus is on the Prosecutor to prove the guilt of the accused. 3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.
Article 67 Rights of the accused 1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks; (b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence; (c) To be tried without undue delay; (d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against
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him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute; (f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks; (g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence; (h) To make an unsworn oral or written statement in his or her defence; and (i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal. 2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.
Article 68 Protection of the victims and witnesses and their participation in the proceedings 1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 2. As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and
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witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness. Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in article 43, paragraph 6. Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. A State may make an application for necessary measures to be taken in respect of the protection of its servants or agents and the protection of confidential or sensitive information.
Article 69 Evidence 1. Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness. 2. The testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or in the Rules of Procedure and Evidence. The Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by
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means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused. The parties may submit evidence relevant to the case, in accordance with article 64. The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth. The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence. The Court shall respect and observe privileges on confidentiality as provided for in the Rules of Procedure and Evidence. The Court shall not require proof of facts of common knowledge but may take judicial notice of them. Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if: (a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings. When deciding on the relevance or admissibility of evidence collected by a State, the Court shall not rule on the application of the State's national law.
Article 70 Offences against the administration of justice 1. The Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally: (a) Giving false testimony when under an obligation pursuant to article 69, paragraph 1, to tell the truth; (b) Presenting evidence that the party knows is false or forged;
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(c) Corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence; (d) Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties; (e) Retaliating against an official of the Court on account of duties performed by that or another official; (f) Soliciting or accepting a bribe as an official of the Court in connection with his or her official duties. 2. The principles and procedures governing the Court's exercise of jurisdiction over offences under this article shall be those provided for in the Rules of Procedure and Evidence. The conditions for providing international cooperation to the Court with respect to its proceedings under this article shall be governed by the domestic laws of the requested State. 3. In the event of conviction, the Court may impose a term of imprisonment not exceeding five years, or a fine in accordance with the Rules of Procedure and Evidence, or both.
4. (a) Each State Party shall extend its criminal laws penalizing offences against the integrity of its own investigative or judicial process to offences against the administration of justice referred to in this article, committed on its territory, or by one of its nationals; (b) Upon request by the Court, whenever it deems it proper, the State Party shall submit the case to its competent authorities for the purpose of prosecution. Those authorities shall treat such cases with diligence and devote sufficient resources to enable them to be conducted effectively.
Article 71 Sanctions for misconduct before the Court 1. The Court may sanction persons present before it who commit mis-
conduct, including disruption of its proceedings or deliberate refusal to comply with its directions, by administrative measures other than
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imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures provided for in the Rules of Procedure and Evidence. 2. The procedures governing the imposition of the measures set forth in paragraph 1 shall be those provided for in the Rules of Procedure and Evidence.
Article 72 Protection of national security information 1. This article applies in any case where the disclosure of the informa-
tion or documents of a State would, in the opinion of that State, prejudice its national security interests. Such cases include those falling within the scope of article 56, paragraphs 2 and 3, article 61, paragraph 3, article 64, paragraph 3, article 67, paragraph 2, article 68, paragraph 6, article 87, paragraph 6 and article 93, as well as cases arising at any other stage of the proceedings where such disclosure may be at issue. 2. This article shall also apply when a person who has been requested to give information or evidence has refused to do so or has referred the matter to the State on the ground that disclosure would prejudice the national security interests of a State and the State concerned confirms that it is of the opinion that disclosure would prejudice its national security interests.
3. Nothing in this article shall prejudice the requirements of confidentiality applicable under article 54, paragraph 3 (e) and (f), or the application of article 73. 4. If a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, that State shall have the right to intervene in order to obtain resolution of the issue in accordance with this article.
5. If, in the opinion of a State, disclosure of information would prejudice its national security interests, all reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means. Such steps may include:
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(a) Modification or clarification of the request; (b) A determination by the Court regarding the relevance of the information or evidence sought, or a determination as to whether the evidence, though relevant, could be or has been obtained from a source other than the requested State; (c) Obtaining the information or evidence from a different source or in a different form; or (d) Agreement on conditions under which the assistance could be provided including, among other things, providing summaries or redactions, limitations on disclosure, use of in camera or ex parte proceedings, or other protective measures permissible under the Statute and the Rules of Procedure and Evidence. 6. Once all reasonable steps have been taken to resolve the matter through cooperative means, and if the State considers that there are no means or conditions under which the information or documents could be provided or disclosed without prejudice to its national security interests, it shall so notify the Prosecutor or the Court of the specific reasons for its decision, unless a specific description of the reasons would itself necessarily result in such prejudice to the State's national security interests. 7. Thereafter, if the Court determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused, the Court may undertake the following actions: (a) Where disclosure of the information or document is sought pursuant to a request for cooperation under Part 9 or the circumstances described in paragraph 2, and the State has invoked the ground for refusal referred to in article 93, paragraph 4: (i) The Court may, before making any conclusion referred to in subparagraph 7 (a) (ii), request further consultations for the purpose of considering the State's representations, which may include, as appropriate, hearings in camera and ex parte; (ii) If the Court concludes that, by invoking the ground for refusal under article 93, paragraph 4, in the circumstances of the case, the requested State is not acting in accordance with its obligations under this Statute, the Court may refer the matter in accordance with article 87, paragraph 7, specifying the reasons for its conclusion; and
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(iii) The Court may make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances; or (b) In all other circumstances: (i) Order disclosure; or (ii) To the extent it does not order disclosure, make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances.
Article 73 Third-party information or documents If a State Party is requested by the Court to provide a document or information in its custody, possession or control, which was disclosed to it in confidence by a State, intergovernmental organization or international organization, it shall seek the consent of the originator to disclose that document or information. If the originator is a State Party, it shall either consent to disclosure of the information or document or undertake to resolve the issue of disclosure with the Court, subject to the provisions of article 72. If the originator is not a State Party and refuses to consent to disclosure, the requested State shall inform the Court that it is unable to provide the document or information because of a pre-existing obligation of confidentiality to the originator.
Article 74 Requirements for the decision 1. All the judges of the Trial Chamber shall be present at each stage of the trial and throughout their deliberations. The Presidency may, on a case-by-case basis, designate, as available, one or more alternate judges to be present at each stage of the trial and to replace a member of the Trial Chamber if that member is unable to continue attending. 2. The Trial Chamber's decision shall be based on its evaluation of the evidence and the entire proceedings. The decision shall not exceed the facts and circumstances described in the charges and any
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amendments to the charges. The Court may base its decision only on evidence submitted and discussed before it at the trial. 3. The judges shall attempt to achieve unanimity in their decision, failing which the decision shall be taken by a majority of the judges. 4. The deliberations of the Trial Chamber shall remain secret. 5. The decision shall be in writing and shall contain a full and reasoned statement of the Trial Chamber's findings on the evidence and conclusions. The Trial Chamber shall issue one decision. When there is no unanimity, the Trial Chamber's decision shall contain the views of the majority and the minority. The decision or a summary thereof shall be delivered in open court.
Article 75 Reparations to victims 1. The Court shall establish principles relating to reparations to, or in
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respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state th e principles on which it is acting. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79. Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States. In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1.
6. A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article. 7. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law.
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Article 76 Sentencing 1. In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence. 2. Except where article 65 applies and before the completion of the trial, the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence, in accordance with the Rules of Procedure and Evidence. 3. Where paragraph 2 applies, any representations under article 75 shall be heard during the further hearing referred to in paragraph 2 and, if necessary, during any additional hearing. 4. The sentence shall be pronounced in public and, wherever possible, in the presence of the accused.
Part 7. Penalties Article 77 Applicable penalties 1. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute: (a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. 2. In addition to imprisonment, the Court may order: (a) A fine under the criteria provided for in the Rules of Procedure and Evidence; (b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.
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Article 78 Determination of the sentence 1. In determining the sentence, the Court shall, in accordance with the
Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person. 2. In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime. 3. When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1 (b).
Article 79 Trust Fund 1. A Trust Fund shall be established by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims. 2. The Court may order money and other property collected through fines or forfeiture to be transferred, by order of the Cou rt, to the Trust Fund. 3. The Trust Fund shall be managed accord ing to criteria to be determined by the Assembly of States Parties.
Article 80 Non-prejudice to national application of penalties and national laws Nothing in this Part affects the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part.
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Part 8. Appeal and Revision Article 81 Appeal against decision of acquittal or conviction or against sentence 1. A decision under article 74 may be appealed in accordance with the
Rules of Procedure and Evidence as follows: (a) The Prosecutor may make an appeal on any of the following grounds: (i) Procedural error, (ii) Error of fact, or (iii) Error of law; (b) The convicted person, or the Prosecutor on that person's behalf, may make an appeal on any of the following grounds: (i) Procedural error, (ii) Error of fact, (iii) Error of law, or (iv) Any other ground that affects the fairness or reliability of the proceedings or decision.
2. (a) A sentence may be appealed, in accordance with the Rules of Procedure and Evidence, by the Prosecutor or the convicted person on the ground of disproportion between the crime and the sentence; (b) If on an appeal against sentence the Court considers that there are grounds on which the conviction might be set aside, wholl y or in part, it may invite the Prosecutor and the convicted person to submit grounds under article 81, paragraph 1 (a) or (b), and may render a decision on conviction in accordance with article 83;
(c) The same procedure applies when the Court, on an appeal against conviction only, considers that there are grounds to reduce the sentence under paragraph 2 (a). 3.
(a) Unless the Trial Chamber orders otherwise, a convicted person shall remain in custody pending an appeal;
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(b) When a convicted person's time in custody exceeds the sentence of imprisonment imposed, that person shall be released, except that if the Prosecutor is also appealing, the release may be subject to the conditions under subparagraph (c) below; (c) In case of an acquittal, the accused shall be released immediately, subject to the following: (i) Under exceptional circumstances, and having regard, inter alia, to the concrete risk of flight, the seriousness of the offence charged and the probability of success on appeal, the Trial Chamber, at the request of the Prosecutor, may maintain the detention of the person pending appeal; (ii) A decision by the Trial Chamber under subparagraph (c) (i) may be appealed in accordance with the Rules of Procedure and Evidence. 4. SJbject to the provisions of paragraph 3 (a) and (b), execution of the decision or sentence shall be suspended during the period allowed for appeal and for the duration of the appeal proceedings. I
Article 82 Appeal against other decisions 1. Either party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence: (a) A decision with respect to jurisdiction or admissibility; (b) A decision granting or denying release of the person being investigated or prosecuted; (c) A decision of the Pre-Trial Chamber to act on its own initiative under article 56, paragraph 3; (d) A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings. 2. A decision of the Pre-Trial Chamber under article 57, paragraph 3 (d), may be appealed against by the State concerned or by the Prosecutor, with the leave of the Pre-Trial Chamber. The appeal shall be heard on an expedited basis.
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3. An appeal shall not of itself have suspensive effect unless the Appeals Chamber so orders, upon request, in accordance with the Rules of Procedure and Evidence. 4. A legal representative of the victims, the convicted person or a bona fide owner of property adversely affected by an order under article 75 may appeal against the order for reparations, as provided in the Rules of Procedure and Evidence.
Article 83 Proceedings on appeal 1. For the purposes of proceedings under article 81 and this article, the Appeals Chamber shall have all the powers of the Trial Chamber. 2. If the Appeals Chamber finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error, it may: (a) Reverse or amend the decision or sentence; or (b) Order a new trial before a different Trial Chamber. For these purposes, the Appeals Chamber may remand a factual issue to the original Trial Chamber for it to determine the issue and to report back accordingly, or may itself call evidence to determine the issue. When the decision or sentence has been appealed only by the person convicted, or the Prosecutor on that person's behalf, it cannot be amended to his or her detriment. 3. If in an appeal against sentence the Appeals Chamber finds that the sentence is disproportionate to the crime, it may vary the sentence in accordance with Part 7. 4. The judgement of the Appeals Chamber shall be taken by a majority of the judges and shall be delivered in open court. The judgement shall state the reasons on which it is based. When there is no unanimity, the judgement of the Appeals Chamber shall contain the views of the majority and the minority, but a judge may deliver a separate or dissenting opinion on a question of law. 5. The Appeals Chamber may deliver its judgement in the absence of the person acquitted or convicted.
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Article 84 Revision of conviction or sentence 1. The convicted person or, after death, spouses, children, parents or one person alive at the time of the accused's death who has been given express written instructions from the accused to bring such a claim, or the Prosecutor on the person's behalf, may apply to the Appeals Chamber to revise the final judgement of conviction or sentence on the grounds that: (a) New evidence has been discovered that: (i) Was not available at the time of trial, and such unavailability was not wholly or partially attributable to the party making application; and (ii) Is sufficiently important that had it been proved at trial it would have been likely to have resulted in a different verdict; (b) It has been newly discovered that decisive evidence, taken into account at trial and upon which the conviction depends, was false, forged or falsified; (c) One or more of the judges who participated in conviction or confirmation of the charges has committed, in that case, an act of serious misconduct or serious breach of duty of sufficient gravity to justify the removal of that judge or those judges from office under article 46. 2. The Appeals Chamber shall reject the application if it considers it to be unfounded. If it determines that the application is meritorious, it may, as appropriate: (a) Reconvene the original Trial Chamber; (b) Constitute a new Trial Chamber; or (c) Retain jurisdiction over the matter, with a view to, after hearing the parties in the manner set forth in the Rules of Procedure and Evidence, arriving at a determination on whether the judgement should be revised.
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Article 85 Compensation to an arrested or convicted person 1. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. 2. When a person has by a final decision been convicted of a criminal offence, and when subsequently his or her conviction has been reversed on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the nondisclosure of the unknown fact in time is wholly or partly attributable to him or her. 3. In exceptional circumstances, where the Court finds conclusive facts showing that there has been a grave and manifest miscarriage of justice, it may in its discretion award compensation, according to the criteria provided in the Rules of Procedure and Evidence, to a person who has been released from detention following a final decision of acquittal or a termination of the proceedings for that reason.
Part 9. International Cooperation and Judicial Assistance Article 86 General obligation to cooperate States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.
Article 87 Requests for cooperation: general provisions 1.
(a) The Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate chan-
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nel as may be designated by each State Party upon ratification, acceptance, approval or accession. Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of Procedure and Evidence. (b) When appropriate, without prejudice to the provisions of subparagraph (a), requests may also be transmitted through the International Criminal Police Organization or any appropriate regional organization. 2. Requests for cooperation and any documents supporting the request shall either be in or be accompanied by a translation into an official language of the requested State or one of the working languages of the Court, in accordance with the choice made by that State upon ratification, acceptance, approval or accession. Subsequent changes to this choice shall be made in accordance with the Rules of Procedure and Evidence. 3. The requested State shall keep confidential a request for cooperation and any documents supporting the request, except to the extent that the disclosure is necessary for execution of the request. 4. In relation to any request for assistance presented under this Part, the Court may take such measures, including measures related to the protection of information, as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families. The Court may request that any information that is made available under this Part shall be provided and handled in a manner that protects the safety and physical or psychological well-being of any victims, potential witnesses and their families. 5.
(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis. (b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.
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6. The Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate. 7. Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.
Article 88 Availability of procedures under national law States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.
Article 89 Surrender of persons to the Court 1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their nationallaw, comply with requests for arrest and surrender. 2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne his in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.
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3. (a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender. (b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain: (i) A description of the person being transported; (ii) A brief statement of the facts of the case and their legal characterization; and (iii) The warrant for arrest and surrender; (c) A person being transported shall be detained in custody during the period of transit; (d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State; (e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time. 4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.
Article 90 Competing requests 1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person's surrender, notify the Court and the requesting State of that fact.
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2. Where the requesting State is a State Party, the requested State shall
3.
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give priority to the request from the Court if: (a) The Court has, pursuant to article 18 Or 19, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or (b) The Court makes the determination described in subparagraph (a) pursuant to the requested State's notification under paragraph 1. Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition from the requesting State but shall not extradite the person until the Court has determined that the case is inadmissible. The Court's determination shall be made on an expedited basis. If the requesting State is a State not Party to this Staturethe requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court, if the Court has determined that the case is admissible. Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to: (a) The respective dates of the requests; (b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and (c) The possibility of subsequent surrender between the Court and the requesting State.
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7. Where a State Party which receives a request from the Court for the
surrender of a person also receives a request from any State for the extradition of the same person for conduct other than that which constitutes the crime for which the Court seeks the person's surrender: (a) The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court; (b) The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the Court or to extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question. 8. Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision.
Article 91 Contents of request for arrest and surrender 1. A request for arrest and surrender shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record , provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. In the case of a request for the arrest and surrender of a person for whom a warrant of arrest has been issued by the Pre-Trial Chamber under article 58, the request shall contain or be supported by: (a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location; (b) A copy of the warrant of arrest; and (c) Such documents, statements or information as may be necessary to meet the requirements for the surrender process in the requested State, except that those requirements should not be
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more burdensome than those applicable to requests for extradition pursuant to treaties or arrangements between the requested State and other States and should, if possible, be less burdensome, taking into account the distinct nature of the Court. 3. In the case of a request for the arrest and surrender of a person already convicted, the request shall contain or be supported by: (a) A copy of any warrant of arrest for that person; (b) A copy of the judgement of conviction; (c) Information to demonstrate that the person sought is the one referred to in the judgement of conviction; and (d) If the person sought has been sentenced, a copy of the sentence imposed and, in the case of a sentence for imprisonment, a statement of any time already served and the time remaining to be served. 4. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
Article 92 Provisional arrest 1. In urgent cases, the Court may request the provisional arrest of the
person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91. 2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain: (a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location; (b) A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the cnme; (c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and
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(d) A statement that a request for surrender of the person sought will follow. 3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible. 4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date.
Article 93 Other forms of cooperation 1. States Parties shall, in accordance with the provisions of this Part
and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions: (a) The identification and whereabouts of persons or the location of items; (b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court; (c) The questioning of any person being investigated or prosecuted; (d) The service of documents, including judicial documents; (e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court; (f) The temporary transfer of persons as provided in paragraph 7; (g) The examination of places or sites, including the exhumation and examination of grave sites; (h) The execution of searches and seizures; (i) The provision of records and documents, including official records and documents;
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(j) The protection of victims and witnesses and the preservation of evidence; (k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and (I) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court. The Court shall have the authority to provide an assurance to a wit ness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State. Where execution of a particular measure of assistance detailed in a request presented unde~ paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security. Before denying a request for assistance under paragraph 1 (I), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
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(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled: (i)
The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree. (b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
8. (a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request. (b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence. (c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence. 9.
(a) (i)
In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90. (b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the
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Court and the Court shall direct its request international organization.
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the third State or
10.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State. (b) (i) The assistance provided under subparagraph (a) shall inelude, inter alia: a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and b. The questioning of any person detained by order of the Court; (ii) In the case of assistance under subparagraph (b) (i) a: a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State; b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68. (c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.
Article 94 Postponement of execution of a request in respect of ongoing investigation or prosecution 1. If the immediate execution of a request would interfere with an on-
going investigation or prosecution of a case different from that to which the request relates, the requested State may postpone the execution of the request for a period of time agreed upon with the Court. However, the postponement shall be no longer than is neces-
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sary to complete the relevant investigation or prosecution in the requested State. Before making a decision to postpone, the requested State should consider whether the assistance may be immediately provided subject to certain conditions. 2. If a decision to postpone is taken pursuant to paragraph 1, the Prosecutor may, however, seek measures to preserve evidence, pursuant to article 93, paragraph 1 (j),
Article 95 Postponement of execution of a request in respect of an admissibility challenge Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19.
Article 96 Contents of request for other forms of assistance under article 93 1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a). 2. The request shall, as applicable, contain or be supported by the following: (a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request; (b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided; (c) A concise statement of the essential facts underlying the request; (d) The reasons for and details of any procedure or requirement to be followed;
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(e) Such information as may be required under the law of the requested State in order to execute the request; and (f) Any other information relevant in order for the assistance sought to be provided. 3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law. 4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.
Article 97 Consultations Where a State Party receives a request under this Part in relation to which it identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter. Such problems may include, inter alia: (a) Insufficient information to execute the request; (b) In the case of a request for surrender, the fact that despite best efforts, the person sought cannot be located or that the investigation conducted has determined that the person in the requested State is clearly not the person named in the warrant; or (c) The fact that execution of the request in its current form would require the requested State to breach a pre-existing treaty obligation undertaken with respect to another State.
Article 98 Cooperation with respect to waiver of immunity and consent to surrender 1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State,
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unless the Court can first obtain the cooperation of that third State for the waiver of the immunity. 2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.
Article 99 Execution of requests under articles 93 and 96 1. Requests for assistance shall be executed in accordance with the relevant procedure under the law of the requested State and, unless prohibited by such law, in the manner specified in the request, including following any procedure outlined therein or permitting persons specified in the request to be present at and assist in the execution process. 2. In the case of an urgent request, the documents or evidence produced in response shall, at the request of the Court, be sent urgently. 3. Replies from the requested State shall be transmitted in their original language and form. 4. Without prejudice to other articles in this Part, where it is necessary for the successful execution of a request which can be executed without any compulsory measures, including specifically the interview of or taking evidence from a person on a voluntary, basis, including doing so without the presence of the authorities of the requested State Party if it is essential for the request to be executed, and the examination without modification of a public site or other public place, the Prosecutor may execute such request directly on the territory of a State as follows: (a) When the State Party requested is a State on the territory of which the crime is alleged to have been committed, and there has been a determination of admissibility pursuant to article 18 or 19, the Prosecutor may directly execute such request following all possible consultations with the requested State Party; (b) In other cases, the Prosecutor may execute such request following consultations with the requested State Party and subject
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to any reasonable conditions or concerns raised by that State Party. Where the requested State Party identifies problems with the execution of a request pursuant to this subparagraph it shall, without delay, consult with the Court to resolve the matter. 5. Provisions allowing a person heard or examined by the Court under article 72 to invoke restrictions designed to prevent disclosure of confidential information connected with national security shall also apply to the execution of requests for assistance under this article.
Article 100 Costs 1. The ordinary costs for execution of requests in the territory of the requested State shall be borne by that State, except for the following, which shall be borne by the Court: (a) Costs associated with the travel and security of witnesses and experts or the transfer under article 93 of persons in custody; (b) Costs of translation, interpretation and transcription; (c) Travel and subsistence costs of the judges, the Prosecutor, the Deputy Prosecutors, the Registrar, the Deputy Registrar and staff of any organ of the Court; (d) Costs of any expert opinion or report requested by the Court; (e) Costs associated with the transport of a person being surrendered to the Court by a custodial State; and (f) Following consultations, any extraordinary costs that may result from the execution of a request. 2. The provisions of paragraph 1 shall, as appropriate, apply to requests from States Parties to the Court. In that case, the Court shall bear the ordinary costs of execution.
Article 101 Rule of speciality 1. A person surrendered to the Court under this Statute shall not be proceeded against, punished or detained for any conduct committed prior to surrender, other than the conduct or course of conduct
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which forms the basis of the crimes for which that person has been surrendered. 2. The Court may request a waiver of the requirements of paragraph 1 from the State which surrendered the person to the Court and, if necessary, the Court shall provide additional information in accordance with article 91. States Parties shall have the authority to provide a waiver to the Court and should endeavour to do so.
Article 102 Use of terms For the purposes of this Statute: (a) "surrender" means the delivering up of a person by a State to the Court, pursuant to this Statute. (b) "extradition" means the delivering up of a person by one State to another as provided by treaty, convention or national legislation.
Part 10. Enforcement Article 103 Role of States in enforcement of sentences of imprisonment 1.
(a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons. (b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part. (c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court's designation.
2. (a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' no-
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tice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110. (b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1. 3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following: (a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence; (b) The application of widely accepted international treaty standards governing the treatment of prisoners; (c) The views of the sentenced person; (d) The nationality of the sentenced person; (e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement. 4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.
Article 104 Change in designation of State of enforcement 1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State. 2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement.
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Article 105 Enforcement of the sentence 1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall
be binding on the States Parties, which shall in no case modify it. 2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person .
Article 106 Supervision of enforcement of sentences and conditions of imprisonment 1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners. 2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement. 3. Communications between a sentenced person and the Court shall be unimpeded and confidential.
Article 107 Transfer of the person upon completion of sentence 1. Following completion of the sentence, a person who is not a na-
tional of the State of enforcement may, in accordance with the law of the State of enforcement, be transferred to a State which is obliged to receive him or her, or to another State which agrees to receive him or her, taking into account any wishes of the person to be transferred to that State, unless the State of enforcement authorizes the person to remain in its territory.
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2. If no State bears the costs arising out of transferring the person to another State pursuant to paragraph 1, such costs shall be borne by the Court. 3. Subject to the provisions of article 108, the State of enforcement may also, in accordance with its national law, extradite or otherwise surrender the person to a State which has requested the extradition or surrender of the person for purposes of trial or enforcement of a sentence.
Article 108 Limitation on the prosecution or punishment of other offences 1. A sentenced person in the custody of the State of enforcement shall not be subject to prosecution or punishment or to extradition to a third State for any conduct engaged in prior to that person's delivery to the State of enforcement, unless such prosecution, punishment or extradition has been approved by the Court at the request of the State of enforcement. 2. The Court shall decide the matter after having heard the views of the sentenced person. 3. Paragraph 1 shall cease to apply if the sentenced person remains voluntarily for more than 30 days in the territory of the State of enforcement after having served the full sentence imposed by the Court, or returns to the territory of that State after having left it.
Article 109 Enforcement of fines and forfeiture measures 1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law. 2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited , without prejudice to the rights of bona fide third parties.
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3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.
Article 110 Review by the Court concerning reduction of sentence 1. The State of enforcement shall not release the person before expiry of the sentence pronounced by the Court. 2. The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after having heard the person. 3. When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced . Such a review shall not be conducted before that time. 4. In its review under paragraph 3, the Court may reduce the sentence if it finds that one or more of the following factors are present: (a) The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions; (b) The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or (c) Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence. 5. If the Court determines in its initial review under paragraph 3 that it is not appropriate to reduce the sentence, it shall thereafter review the question of reduction of sentence at such intervals and applying such criteria as provided for in the Rules of Procedure and Evidence.
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Article 111 Escape
If a convicted person escapes from custody and flees the State of enforcement, that State may, after consultation with the Court, request the person's surrender from the State in which the person is located pursuant to existing bilateral or multilateral arrangements, or may request that the Court seek the person's surrender, in accordance with Part 9. It may direct that the person be delivered to the State in which he or she was serving the sentence or to another State designated by the Court.
Part 11. Assembly of States Parties Article 112 Assembly of States Parties 1. An Assembly of States Parties to this Statute is hereby established.
Each State Party shall have one representative in the Assembly who may be accompanied by alternates and advisers. Other States which have signed this Statute or the Final Act may be observers in the Assembly. 2. The Assembly shall: (a) Consider and adopt, as appropriate, recommendations of the Preparatory Commission; (b) Provide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court; (c) Consider the reports and activities of the Bureau established under paragraph 3 and take appropriate action in regard thereto; (d) Consider and decide the budget for the Court; (e) Decide whether to alter, in accordance with article 36, the number of judges; (f) Consider pursuant to article 87, paragraphs 5 and 7, any question relating to non-cooperation; (g) Perform any other function consistent with this Statute or the Rules of Procedure and Evidence. 3.
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5.
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(a) The Assembly shall have a Bureau consisting of a President, two Vice-Presidents and 18 members elected by the Assembly for three-year terms. (b) The Bureau shall have a representative character, taking into account, in particular, equitable geographical distribution and the adequate representation of the principal legal systems of the world. (c) The Bureau shall meet as often as necessary, but at least once a year. It shall assist the Assembly in the discharge of its responsibilities. The Assembly may establish such subsidiary bodies as may be necessary, including an independent oversight mechanism for inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy. The President of the Court, the Prosecutor and the Registrar or their representatives may participate, as appropriate, in meetings of the Assembly and of the Bureau. The Assembly shall meet at the seat of the Court or at the Headquarters of the United Nations once a year and, when circumstances so require, hold special sessions. Except as otherwise specified in this Statute, special sessions shall be convened by the Bureau on its own initiative or at the request of one third of the States Parties. Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute: (a) Decisions on matters of substance must be approved by a twothirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting; (b) Decisions on matters of procedure shall be taken by a simple majority of States Parties present and voting . A State Party which is in arrears in the payment of its financial contributions towards the costs of the Court shall have no vote in the Assembly and in the Bureau if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The Assembly may, nevertheless, permit such a State Party to vote in the Assembly and in the Bureau if it is satisfied
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that the failure to pay is due to conditions beyond the control of the State Party. 9. The Assembly shall adopt its own rules of procedure. 10.The official and working languages of the Assembly shall be those of the General Assembly of the United Nations.
Part 12. Financing Article 113 Financial Regulations Except as otherwise specifically provided, all financial matters related to the Court and the meetings of the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be governed by this Statute and the Financial Regulations and Rules adopted by the Assembly of States Parties.
Article 114 Payment of expenses Expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be paid from the funds of the Court.
Article 115 Funds of the Court and of the Assembly of States Parties The expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, as provided for in the budget decided by the Assembly of States Parties, shall be provided by the following sources: (a) Assessed contributions made by States Parties; (b) Funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council.
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Article 116 Voluntary contributions Without prejudice to article 115, the Court may receive and utilize, as additional funds, voluntary contributions from Governments, international organizations, individuals, corporations and other entities, in accordance with relevant criteria adopted by the Assembly of States Parties.
Article 117 Assessment of contributions The contributions of States Parties shall be assessed in accordance with an agreed scale of assessment, based on the scale adopted by the United Nations for its regular budget and adjusted in accordance with the principles on which that scale is based.
Article 118 Annual audit The records, books and accounts of the Court, including its annual financial statements, shall be audited annually by an independent auditor.
Part 13. Final Clauses Article 119 Settlement of disputes 1. Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court. 2. Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations
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on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court.
Article 120 Reservations No reservations may be made to this Statute.
Article 121 Amendments 1. After the expiry of seven years from the entry into force of this Statute, any State Party may propose amendments thereto. The text of any proposed amendment shall be submitted to the SecretaryGeneral of the United Nations, who shall promptly circulate it to all States Parties. 2. No sooner than three months from the date of notification, the Assembly of States Parties, at its next meeting, shall, by a majority of those present and voting, decide whether to take up the proposal. The Assembly may deal with the proposal directly or convene a Review Conference if the issue involved so warrants. 3. The adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties. 4. Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them . 5. Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals or on its territory.
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6. If an amendment has been accepted by seven-e ighths of States Parties in accordance with paragraph 4, any State Part y which has not accepted the amendment may withdraw from th is Statute with immediate effect, notwithstanding article 127, paragraph 1, but subject to article 127, paragraph 2, by giving noti ce no later than one year after the entry into force of such amendment. 7. The Secretary-General of the United Nations shall circulate to all States Parties any amendment adopted at a meeting of the Assembly of States Parties or at a Review Conference.
Article 122 Amendments to provisions of an institutional nature 1. Amendments to provisions of this Statute wh ich are of an exclusively institutional nature, namely, article 35, article 36, paragraphs 8 and 9, articl e 37, article 38, article 39, paragraphs 1 (first two sentences),2 and 4, article 42, paragraphs 4 to 9, article 43, paragraphs 2 and 3, and articles 44, 46, 47 and 49, may be proposed at any time, notwithstanding articl e 121, paragraph 1, by any State Part y. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations or such ot her person designated by the Assembly of States Parties who shall promptly circulate it to all States Parties and to others participating in the Assembly. 2. Amendments und er this article on which consensus cannot be reached shall be adopted by the Assembly of States Parties or by a Review Conference, by a two-thirds majority of States Parties. Such amendments shall enter into force for all States Parti es six months after their adoption by the Assembly or, as the case may be, by the Conference.
Article 123 Review of the Statute 1. Seven years after the entry into force of this Statute the Secretary-
General of the United Nations shall convene a Review Conference to consider any amend ments to this Statute. Such review may include, but is not limited to, the list of crimes contained in article 5.
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The Conference shall be open to those participating in the Assembly of States Parties and on the same conditions. 2. At any time thereafter, at the request of a State Party and for the purposes set out in paragraph 1, the Secretary-General of the United Nations shall, upon approval by a majority of States Parties, convene a Review Conference. 3. The provisions of article 121, paragraphs 3 to 7, shall apply to the adoption and entry into force of any amendment to the Statute considered at a Review Conference.
Article 124 Transitional Provision Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.
Article 125 Signature, ratification, acceptance, approval or accession 1. This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and Agriculture Organization of the United Nations, on 17July 1998. Thereafter, it shall remain open for signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October 1998. After that date, the Statute shall remain open for signature in New York, at United Nations Headquarters, until 31 December 2000. 2. This Statute is subject to ratification, acceptance or approval by signatory States. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations.
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3. This Statute shall be open to accession by all States. Instruments of
accession shall be deposited with the Secretary-General of the United Nations.
Article 126 Entry into force 1. This Statute shall enter into force on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations. 2. For each State ratifying, accepting, approving or acceding to this Statute after the deposit of the 60th instrument of ratification, acceptance, approval or accession, the Statute shall enter into force on the first day of the month after the 60th day following the deposit by such State of its instrument of ratification, acceptance, approval or accession.
Article 127 Withdrawal 1. A State Part y may, by written notification addressed to the Secretary -G eneral of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date. 2. A State shall not be discharged , by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute , including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and pro ceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.
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Article 128 Authentic texts The original of this Statute, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States. IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Statute. DONE at Rome, this 17th day of July 1998.
) '
Book Reviews Jochen Abr.
Froweinl Klaus Schariothl Ingo Winkelmannl Rudiger Wolfrum (eds): Verhandeln fur den Frieden - Negotiating for Peace Liber Amicorum Tono Eitel Springer-Verlag, 2003, XIII + 866 pages
It is unusual for a career diplomat to be honoured with a Festschrift. But then Tono Eitel is no ordinary diplomat, having had an exceptional career. As personal assistant to Egon Bahr in the late sixties and early seventies, he became intimately involved in the negotiations leading to the Moscow Treaty and to the Grundlagenvertrag, milestones in Willy Brandt's Ostpolitik. In the early eighties, he headed the German delegation at the United Nations Law of the Sea Conference. Ten years later, he became Head of the Legal Department of the Auswiirtiges Amt, following in the footsteps of Hermann Mosler and Carl-August Fleischhauer, who were later elected to the IC]. As Legal Adviser, Tono Eitel drew on his knowledge of the law as well as on his considerable political skills and instinct to advise the German Government on issues of public international law. During this time he was made an Honorary Professor at Bochum University. In 1995, he was appointed Germany's Permanent Representative to the United Nations, a position he held until his retirement in 1998. He assumed the rotating Presidency of the United Nations Security Council during Germany's non-permanent membership of that body in 1995/1996.
Tono Eitel continues to serve the German Government in various capacities, notably as the Commissioner for the return of cultural objects displaced during World War II and Occupation. He also played a significant role in the campaign for the election of Bruno Simma to the IC] in 2002. The Festschrift is divided into four parts: "United Nations", "International Treaty Law - International Law of the Environment - InternaA. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook ofUnited Nations Law, Volume 7, 2003, 737-742. © 2003 Koninklijke Brill N. V Printed in the Netherlands.
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tional Courts", "Law of the Sea", and "EU Law, Constitutional Law, German Reunification". The collection of essays - roughly one half written in English, the other half in German - thus reflects Tono Eitel's career as a lawyer and a diplomat. The reader will find a stimulating mix of essays by academics and practitioners on themes central to current international law and United Nations law. Many of the essays were written under the impression of the events of 11 September 2001 and the Iraq crisis of 2002/2003. In fact, "September 11" and the Iraq crisis are the underlying themes in no less than ten of the essays, demonstrating the profound impact these events have had (and continue to have) on the use of force under international law and on the role of the United Nations Security Council. In "Effectiveness and Legitimacy of the United Nations Security Council", Celso Amorim gives us a first-hand account of the debate on Security Council reform. That debate has reached a practical standstill, with little hope of progress under the present generally ambivalent attitude of the United States towards the United Nations. It comes as no surprise that Amorim argues for a stronger role for the United Nations Security Council, whose legitimacy would have to be enhanced by a more equitable geographical representation. United Nations reform is also the theme of lngo Winkelmann's contribution "Das Postulat einer stdrkeren Beteiligung des Siidens am Sicherheitsrat der Vereinten Nationen". Over the years, Germany has been one of the foremost advocates for a Security Council that is both more efficient and representative of today's international community, not least because of her (Germany's) own aspirations towards permanent member status. Winkelmann is of the opinion that the call for a European seat on the Council is "under the present circumstances neither helpful nor realistic". Rather, Germany's (and the EU's) focus should be on a European "bench" comprising more permanent European Member States than the present two. Winkelmann's scepticism has received new nourishment from the recent Iraq crisis, whe.« the rift between the EU Member States presently on the Council (the United Kingdom and Spain on the one hand, France and Germany on the other) was all too apparent. Approaching the subject from another angle, Christian Tomuschat "Die Europdiscbe Union als ein Akteur in den intemationalen Beziehungen" reaches the same conclusion: the United Nations will remain for the foreseeable future an assembly of states, and nobody in the United Nations will be inclined to elevate the EU to membership
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status. One might add that "nobody in the United Nations" includes at least some of the EU members themselves: the UK's Foreign Minister Jack Straw stating very clearly in a speech as recently as 19 May 2003 that "the UN is and will remain an association of sovereign nation states". Tomuschat makes a number of practical suggestions how, in his view, and in the context of the planned EU reform, the Union could assume a stronger role as a "player" in international relations: a clear-cut legal personality, an improved decision-making process and joint overseas representations. The EU's role within the United Nations is also the theme of "Die Gemeinsame Aufien- und Sicherheitspolitik (GASP) der Europdischen Union im Rahmen der Vereinten Nationen" by Ernst Sucharipa, who, as Austria's former Permanent Representative to the United Nations, gives a first-hand account on how CFSP "works" in New York and where its limits lie. The legal bases for the use of force in international relations are the focus of Jost Delbriick's contribution entitled" Right v. Might - Great Power Leadership in the Organized International Community of States and the Rule of Law". Delbriick traces the role of the Great Powers back to the classical period of the international system, thus putting into perspective the concept and philosophy underlying the UN Charter, which is based on the power substrate of the Great Powers represented in the Security Council. Delbriick maintains that the legal foundations of the peace order established by the UN Charter has survived the chain of cases of deviant state practice by the Great Powers and other states. Faced with the present unilateralist approach of the United States, however, a United Nations based order has come under threat. Delbriick calls for the full commitment of those Member Sates possessing the necessary resources and potential. He concludes: what is needed is "good leadership under law, not above the law". The various threats posed to the contemporary legal order are also the subject of Nabil Elaraby's "Some Reflections on the Role of the Security Council and the Prohibition of the Use of Force in International Relations: Article 2 (4) Revisited in Light of Recent Developments". Elaraby is an advocate of a restrictive interpretation of Article 51 of the UN Charter, calling into question the concepts of "anticipatory selfdefence" and "pre-emption". Elaraby is also critical of a Security Council exceeding its competencies: the problem confronting the international community at present is "how to inject limitations on the Security Council's freedom of action". Elaraby calls for the introduction of a degree of judicial review of the actions of the Security Council in or-
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der to ensure that the vast powers vested in the Council are carried out in conformity with the principles of international law. However, the determination of the existence of a threat to the peace should remain the sole prerogative of the Council, a political determination which by its nature is not justiciable. Thomas Franck examines the question" Is the UN. Charter a Constitution?" In his view, four characteristics of the Charter, namely "perpetuity, indelibleness, primacy, and institutional autochthony" make it more proximate to a constitution than to an ordinary treaty. Franck makes the point that this is not simply an academic question. As a constitution, the Charter should be read broadly so as to advance, rather than encumber, its institutional ability to accomplish the purposes for which it was created. Being a "living tree", a constitution develops its own customary law of interpretation, contributing to the ability of the Organization to continue to reinvent itself in the face of new challenges. The issue of interpretation, this time of Security Council resolutions, is also addressed by Jochen Abr. Frowein in "Issues of Legitimacy around the United Nations Security Council". Citing Resolutions 1154 (1998) and 1441 (2002) on Iraq, Frowein criticizes the Security Council for adopting resolutions to which, from the very beginning, different interpretations were put forward as to the justification of the use of force. Indeed, one might add, these resolutions - in particular Resolution 1441 (2002) - were only adopted because they were open to different interpretations. Frowein points out that the danger created by unilateral interpretation of Security Council resolutions in the most important area of use of force should not be underestimated, as this constitutes a real threat to the legitimacy of the Security Council. Another issue of legitimacy surrounding the Security Council about which Frowein has serious misgivings is the adoption of Resolution 1422 (2002), which requests the ICC, initially for a period of one year, not to commence or proceed with the investigation or the prosecution of any case concerning officials or personnel of United Nations operations from a state not a party to the Rome Statute. Frowein sides with those states which during the debates in the Security Council, expressed doubts whether this is a resolution within the framework of Chapter VII of the UN Charter and calls the resolution "an extremely dubious decision". This view is echoed by Claudia Fritsche "Security Council Resolution 1422: Peacekeeping and the International Criminal Court" and by Andreas Zimmermann "Acting under Chapter VII (...) - Resolution 1422 and Possible Limits of the Powers of the Security Council". Ac-
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cording to Fritsche, the greatest casualties of Resolution 1422 are the credibility of the Security Council and of peace-keeping operations. Zimmermann, who points to the fact that a first attempt (by France) to exclude Security Council mandated operations from the jurisdiction of the ICC had already been made during the drafting of the Rome Statute, refers to the many critical statements, both by United Nations Member States and by the United Nations Secretary-General during the discussions leading to the adoption of Resolution 1422. Both Fritsche and Zimmermann express their hope that Resolution 1422 will not be renewed when it comes up for review in the summer of 2003 (Resolution 1487 was passed on 12 June 2003. However, in contrast to Resolution 1422, it was not passed unanimously). While the ICC, according to article 5 of the Rome Statute, does have jurisdiction over the crime of aggression, it cannot yet exercise this jurisdiction. Gerd Westdickenberg and Oliver Fixson, in their essay "Das Verbrechen der Aggression im Rbmischen Statut des Intemationalen Strafgerichtshofes", draw on their intimate involvement in the negotiations and discussions over the years to give an in-depth analysis of the problems of defining this particular crime and of setting out the conditions under which the Court should exercise its jurisdiction. The authors call for a realistic approach in trying to seek a consensus by the year 2009, when the first Review Conference of the States Parties to the Rome Statute is to take place. As Westdickenberg and Fixson point out, considerable restraint should be exercised in defining the crime of aggression not least in order to protect the Court's functioning and integrity. International Humanitarian Law and the fight against international terrorism are the focus of contributions by Dieter Fleck, Wolff Heintschel von Heinegg, Thomas Mensah and Rudiger Wolfrum. While admitting that major questions remain unanswered or disputed, Fleck ("Humanitarian Protection Against Non-State Actors") maintains that there is no need to revise the laws of war in light of September 11. Heintschel von Heinegg (" Das maritime ius in bello im 21. [abrhundert"), on the other hand, foresees a development that could lead to major changes in the Law of Maritime Warfare, caused by various "asymmetries" (actors, technologies, applicable laws). Mensah ("Suppression of Terrorism at Sea: Developments in the Wake of the Events of 11 September 2001"), in reviewing the various initiatives in strengthening the fight against terrorism at sea, argues that it is essential that the legitimate interests of flag states, coastal and port states, shipping and cargo interests, and the fundamental human rights of persons on board
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a ship or interested in its operation are not unduly compromised as a result of these initiatives. Wolfrum examines the various actions mandated by the Security Council in the fight against terrorism and their impact on the Law of the Sea. In "Fighting Terrorism at Sea: Options and Limitations under International Law" he points out that these actions, such as the maritime interdiction operations in the framework of the US-led Operation "Enduring Freedom", are designed to deal with a particular situation only, and that they may not be sustainable over the long term. What is needed is a comprehensive agreement which allows for the inspection of goods transported by sea and their monitoring without unduly burdening shipping, as well as improved possibilities to investigate ships on the high seas and within the exclusive economic zones if there is a sustained suspicion that they may support terrorist activities. In an interesting aside, Wolfrum is critical of a Standing Order of the German Ministry of Defence, according to which the German Navy may not pursue pirate vessels - not even on the high seas - nor may they free a merchant ship already under the control of pirates. The author argues that this restriction is neither compatible with Germany's obligations under the Law of the Sea, nor with a proper reading of the German law as laid out by the German Constitutional Court. Amongst the many other outstanding essays in the Festschrift, special mention should finally be made of Bruno Simma's "Staatenuerantwortlichkeit und Menschenrechte im ILC-Entwurf 2001". Simma, who had been a member of the ILC before being elected to the IC] in 2002, takes us through the different revisions of the ILC's Draft Articles on State Responsibility as they relate to erga omnes obligations and the protection of human rights. This is a very timely subject, as it demon strates that international law today does not accept the proposition of unlimited sovereignty. At the same time, Simma's essay serves as a reminder of the difficulties encountered in the "progressive development of international law" (d. Article 13 of the UN Charter). Dr. Christophe Eick, LL.M., Berlin
Book Reviews
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Marrack Goulding (ed.): Peacemonger John Murray Publishers , 2002, XXI + 378 pages For about seven years (1986 to 1993), Marrack Goulding was in charge of peacekeeping operations in the United Nations Secretariat. As a direct predecessor to "the legendary" (p. 3) Brian Urquhart he held a prominent post during the tenure of both Perez de Cuellar and Boutros Boutros-Ghali, Kofi Annan was his successor before taking over the Secretary-Generalship. Goulding's time in office marks the transformation of world politics induced by (and leading to) the end of the Cold War. This transformation also had direct consequences for the practice of peacekeeping. In 1986 Goulding had to take care of five operations with roughly 10.000 personnel in the field. By 1993 the numbers had changed dramatically: now thirteen operations with 55.000 personnel were in place; the expenditure for peacekeeping operations had risen from US$ 240 million to US$ 2.7 billion. In 1988 the UN peacekeepers had received the Nobel Peace Prize but the limitations and shortcomings of this tool of world organization were becoming increasingly obViOUS.
The book is subdivided into eighteen chapters arranged under five broad headings. Goulding portrays the peculiarities and specific constellations of about a dozen conflicts scattered all over the globe. "Relics from the Past" for example deals - among others - with Cyprus and Lebanon whereas "New Opportunities" focuses on Namibia or Cambodia. In "New Threats" the challenge of collapsing states (Somalia and Haiti) as well as the conflict in Yugoslavia is analyzed. Goulding masters his material with a remarkable ability to outline the characteristic features of a given conflict in a concise and readable way. Witness for example his account of the situation in Lebanon: "Think of Lebanon as a cockpit. But it is not a normal cockpit. The fights are not single combats between two cocks; they are fights between teams of cocks, in everchanging alliances (... ). Inside the cockpit there are several resident teams of cocks. The four principal ones are the Maronite Christians, the Sunni Muslims, the Shi'ite Muslims and the Druze, a heretical Islamic sect. There are other lesser teams of cocks. Each team includes some fighting cocks, called 'militias' (...). Sometimes teams fight within themselves and split into two or more smaller teams (... ). Around the cockpit there are several gamblers. The principal ones are Israel, Syria, Iran and the Palestine Liberation Organization (PLO). Lesser ones are Egypt, Iraq and Jordan. Like the resident teams, the gamblers' objective is to accumulate and control assets in the Lebanese cockpit. Three of A. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook a/United Nations Law, Volume 7, 2003. 743-747. © 2003 Koninklijke Brill N. V. Printed in the Netherlands.
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them (Israel, Syria and the PLO) have, or have had, their own fighting cocks in the cockpit. But all of them also hire the services of one or more of the resident teams, as do Iran and the lesser gamblers". (p. 58) In his analysis, Goulding draws from entries in his diary, letters to his family as well as accounts of meetings and negotiations. His itinerary amidst the different missions consists of a multitude of visits and travels, intense shuttle diplomacy, drafting sessions for reports, dealings with troop-contributing countries and the day-to-day procedure of international bureaucracy. Goulding claims to write "with a frankness that is not customary in the United Nations" (p. 341). He apologizes in advance for possibly hurting former colleagues and persons involved in the various missions: "But as the writing proceeded it became clear that the drawing of conclusions and the definition of precepts that would enhance the United Nations' efficacy would be impeded if I did not write frankly about the performance of individuals, myself included". (p. x) The inclusion of the author among the objects of scrutiny and criticism is no hollow promise. There are various examples when Goulding unreservedly blames himself for his own misjudgernents, failures and shortcomings. A constant feature of his description of work in the Secretariat is for example the rivalry between the departments and Under-SecretariesGeneral on the one side and the Secretary-General and his core staff and personal advisers on the other side. These tensions are exemplified in Goulding's relationship with Giandomenico Picco, who worked as de Cuellar's Assistant for Special Assignernents and at various times (for example in the hostage negotiations in Lebanon) crossed lines with Goulding, who even speaks of the so-called "palace guard" (p. 238) that at times undermined his own efforts. The exclusion or inclusion in delegations, travels etc. from this point of view is a measure for administrative standing and Goulding does not avoid speaking of "personal setback]s]" (p. 121) when for example negotiations are being driven from his field of competence. The "absence of clearly defined divisions of labour between the Under-Secretaries-General and the SecretaryGeneral's personal staff and between the Under-Secretaries-General themselves" (p. 208) thus led to "turf warfare" (p. 210). It is, however, impressive to see that Goulding sticks to his aim of an unbiased view on the United Nations when he still shows respect for qualities of even his adversaries. This accounts for a good deal of the authenticity that his report can claim. Negative coordination and, the lack of coherent guidance due to the dispersal of responsibilities between departments made the management
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of peacekeeping even more daunting and underline a common feature of international bureaucracy: "All multinational bureaucracies are rent by jealousy, intrigue and the clash of personalities. This is not surprising: the officials concerned come from varied backgrounds; most of them are loyal to the institution they serve but they also have loyalities to their own countries; and they often have differing perceptions of the people and situations with which they deal" (p. 174). This judgement however does not distract from Goulding's insistence on the unmatched quantity of courage, idealism and enthusiasm he found among United Nations staff. He himself stresses the fact that insistence on his independence from his "home country" made him "something of a misfit on the 38th floor" (p. 6) since the Secretary-General at times may want to utilize his U nder-Secretary-General's ties with and channels to his respective home country and administration. The requirement of internationalloyalty thus becomes a constant tightrope walk. The need to keep a delicate balance also permeates other features of the work at the United Nations. Goulding gives various examples of "UN speak" (p. 32), diplomatic language that tries to reconcile the irreconcilable . Nearly all negotiations offered "terminological pitfalls" (p. 49, fn. 49) that could endanger substantial progress on the diplomatic front. But even within the Secretariat, language had to be guarded in face of power structures: "Boutros-Ghali shared Perez de Cuellar's view about the Secretary-General's right to decide what he will recommend to the Member States. But, like Perez de Cuellar, he respected power and usually preferred to give in privately to the Five rather than be shot down in flames by them in the Security Council" (p. 180) . But such mechanisms in the end led to problematic wording of United Nations resolutions: "I often used to feel that more heed would be given to the Security Council's resolutions and statements if they were fewer, shorter and less distant from reality (... )" (p. 188). A little bit later Goulding postulates: "The length of resolutions is a reliable indicator of UN impotence" (p. 197). This is not the least problem peacekeeping operations have to face. Goulding conceptualizes different types of peacekeeping: traditional peacekeeping operations (e.g. UNIKOM in Iraq/Kuwait), preventive peacekeeping (e.g. UNPROFOR in Macedonia), multifunctional peacekeeping (e.g. UNTAC in Cambodia) and complex emergency peacekeeping (e.g, UNPROFOR in Bosnia) (pp. 15-16). In general, Goulding favours a reluctant understanding of the purpose and aim of peacekeeping: "The peacekeepers' task is not to use force to end a war or impose the will of the international community" (p. ix). Peacekeep-
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ers have to observe the requirements of neutrality and impartiality; two terms on whose difference Goulding writes : "The answer I usually gave was that 'impartiality' was about judgement and 'neutrality' about action. Impartiality means applying common standards in judging the behaviour of two hostile parties and not condoning acts by one that are condemned if committed by the other. Neutrality means not taking action that would serve one side's interest and damage the other's" (p. 222). This may cause considerable confusion in the field: "Peacekeeping can require military commanders to accept operational arrangements which make little sense from the military point of view" (p. 160). A more general observation in this context is the ever-present "sensitivity about sovereignty" (p. 22) that emerges as a core problem of Goulding's time in office. He witnesses a considerable change of the "international ethos" (p. 24) with regard to the definition of purely internal affairs of a state and the requirement of consent for peacekeeping operations that is linked to the scope and legitimacy of sovereignty attributed to various actors in a given conflict . It is in this and other dimensions that peacekeeping emerges as an "ethical enterprise" (p. xi). Against the background of his experience, Goulding sums up: "Pious and naive though it may sound, I believe that the shortcomings which have been described in this book will be corrected only if the United Nations can find a way back to the ethical role defined in its Charter" (p. 343). This way back needs action from both the Secretariat and Member States. Regarding the Secretariat, Goulding draws the conclusion: "[W]e in the Secretariat adjusted too slowly to the demands of the new types of conflict which proliferated after the end of the Cold War" (p. 17). Due to the lack of resources and the rise in quantity and complexity of operations "an undeniable decline in the quality of our performance" (p. 138) could be observed. With a view to his personal responsibility, Goulding deplores the fact that unresolved administrative issues that probably could have been settled in the eighties were aggravated and exposed by the turmoil and stretch of capabilities at the beginning of the nineties. Regarding the obligations of Member States he points to the need for continuous support regarding resources, information and political support that alone can keep peacekeeping on track. The resoluteness to confront even the smallest denials and neglect of obligations by the conflicting parties must be met by the constant search for face-saving options for all concerned. Goulding clearly utters warnings against the "illusions of grandeur" (p. 344) that for a short time were attached to the possibilities of peacekeeping. But he nonetheless identifies the vital role peacekeeping
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can play in the search for peaceful resolutions of conflicts and the range of successes that could be achieved. The theory and practice of peacekeeping need constant adaption: "Peacekeeping was (and still is, to a lesser extent) an unwritten art practised by an organization whose collective memory is not strong" (p. 125). With his account of seven crucial years in the history of the United Nations Goulding adds to the collective memory of the organization. In that sense one may also take his description of Urquhart as a valid description of Goulding's own achievement: "Urquhart's courage, intelligence and political streetwisdom had made him a model international civil servant, committed to the multilateral ideal, but realistic, and often very funny, about the shortcomings of the institutions and individuals charged with putting it into practice" (p. 3). Dr. Manuel Frohlich, Assistant Professor, Jena
Beitrage zum auslantlisch'en,."... offentlichen Recht und Volkerrecht -w.,
Veroffentlichungen des Max-Planck-Instituts fUrausl.iindisches offent liches Recht und Volkerrecht A. Bodnar, M. Kowalski, K. Raible, F. SChorkopf(Eds)
R. Wolfrum, N. Matt (Eds)
The Emerging Constitutional Law of the European Union
Conflicts in International Environmental Law
German and Polish Perspectives
Thi s volum e is an imp ort ant contribution to both th eoretic al and pra ctic al appro aches to solve co ntradic tions and conflicts between th e approaches, principles, objectives and regulation s of international enviro n m ental agre em ent s. The issue of the coordina tio n and streamlining of environme ntal agre ements is of growing importance regardi ng th e increasing number of international regulation s on th e one hand and the urgen cy for effective instruments in the light of continuing enviro nm ent al degr adat ion on th e other.
Young lawyer s from different academic cent res in Ge rmany and Poland comment on th e ongo ing con st itutional debate in th e EU. Each of the more than 20 ar ticles is dedi cated to a spe cific theme , i.e. human right s, institutional design, curr ent and future fu nction of the EU, homogeneity and iden tity, secu rity an d defence po licy. home policy and com mo n values. Similarities as well as differe nces in the pe rsp ectives of an old EU Me mber State on the one hand and an EU Member State-to-be on the othe r hand are revealed. 2003. IX. 595 p. HardcoverE 99.95; sFr 155; [ 70 ISBN 3-540·40424-4 (Vol. 163)
J. A. Frowein, K. Scharioth , I.Winkelmann , R. Wolfrum (Eds)
Verhandeln fur den Frieden Negotiating for Peace Liber Amicorum Tono Eitel T he an niversa ry volume in honou r o f 'limo Eitel's 70t h bi rt hday is a collectio n of essays by disli nguished inte rnational law experts as well as prom inen t Ger man and for eign dipl om ats and other specialists. T he issues dea lt with cover a rang e of themes relating to internat ional and con stitution al law as well as Ge rma n reunificati on . Several contributions of par ticu lar interest focus on the United Nations Security Counc il, th e law of the sea, human rights an d the fight against terr orism . The subjects covered are all reflected in the vario us stages of Tono Eitel's career. He not o nly played an imp ortant part in nego tiating the so-ca lled Easte rn Treaties with the Soviet Union, Poland and Czechoslovakia as well as th e Unit ed Nations Convention on the Law of th e Sea, but also served as Legal Adviser of the Fede ral For eign Office and as Germa ny's ambass ado r to the Uni ted Natio ns.
2003. XI, 213S. Hardcover E 64.95;sFr 101; £ 50 ISBN 3·540-40520-8 (Vol. 1641
C.Walter, S. Voneky, V. Roben, F. Schorkopf
Forthcoming
Terrorism as a Challenge for National and International Law: Security vs. Liberty? T he event s of II September 2001 have pr ovok ed reaction s (worldwide) to fight terror ist activities in nation al legal orders. Th ey have also led to significant developm ents in int ernation al law with respect to co mbat te rror ism by mi lita ry an d non-milita ry acti on . ThL< book adr esses th e issues raised in a co mpreh ensive manner. It com prises co unt ry reports with analyses of the developm ent s in a n umber of counties wh ich ha ve been selected on the basis of the ir involvement in anti-terrori st activities. Based on th ese country repor ts it trac es new developments in the de finition of inter nationa l terrorism, ad resses the issue of huma n rights protec tion under new anti-te rro rist legislation and examines th e recen t developm ent s towards intern atio nal military action against te rro rism .
2003. XIII, 866 S. Hardcover € 121.45; sFr 19650 ; [ 8S ISBN 3·540-40073·7 (Vol. 162)
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Zeitschrift fur auslandisches offentliches Recht und Volkerrecht -ZaoRV Heidelberg Journal of International Law Founded by Victor Bruns Edited in cooperation with Rudolf Bernhardt, Karl Doehring, Jochen Abr. Frowein, Gunther Jaenicke, Helmut Steinberger by Armin von Bogdandy, Rudiger Wolfrum Managing editor: Professor Dr. Ulrich Beyerlin The editorial programme of the ZaoRV
Articles and notes on fundamental and topical issues of public international law, European law, and foreign and comparative public law. Among the main topics are the United Nations collective security system, the international protection of human rights, as well as recent developments in international economic law, the law of the sea and international environmental law. The spectrum of analyses in comparative law reaches from the East and Central European states and the USA to South Africa, Israel and Japan. Annual reports on government practice and jurisprudence concerning international law in the Federal Republic of Germany are provided in each volume. Manuscripts and review copies should be sent to: Redaktion MPI fur Volkerrecht, Im Neuenheimer Feld 535, D-69120 Heidelberg, e-mail:
[email protected]. Manuscripts will only be accepted if they have not been published elsewhere; the views expressed are strictly those of the author. Prices: 4 issues and index per year (about 900 pages): Euro 166.-/ SFr 324.65 (plus Euro 9.60 for postage and handling) Single issues: Euro 43.40/SFr 84.90 Index: Euro 23.-/SFr 46.15 W. Kohlhammer GmbH, Hcl~briihlstraBe69, 70565 Stuttgart
Marine Issues From a Scientific, Political and Legal Perspective
edited by Peter N. Ehlers Elisabeth Mann- Borgese Rudiger Wolfrum Assistant Editor: Cristina HoB
This volume collects a number of essays and articles from about twenty experts in various fields connected to marine environmental issues. These essays were first presented at the XXVIII Pacem in Maribus Conference held in December 2000, at the International Tribunal of the Law of the Sea in Hamburg, Germany. The purpose of the Conference was to enhance awareness of the European public, governments, the private sector and academia about the importance of responsible ocean and coastal management based on ocean science. Reflecting the innovative interdisciplinary approach of the conference , these volume groups contributors from leading biologists, political scientists, geographers, and jurists according to specific regional relevance and not along strict disciplinary lines. This approach allows the experts to treat marine issues concerning regions such as the North Sea, the Baltic Sea, or the Black Sea in a comprehensive manner. This collection could become an essential instrument for scholars and scientists working within the field of marine environmental issues.
Kluwer Law International, The Hague Hardbound, ISBN 90-411-1740-7 February 2002 , 352 pp. EUR 102.00 I USD 94.00 I GBP 64.00